Metropolitan County Board of Education v. Kelley Reply Brief

    No. 82-702

In The

Supreme (Eourt of tlje United Staten
October Term, 1982

Metropolitan County Board O f Education O f 
Nashville A nd Davidson County, Tennessee, et al., 

Petitioners,

v.

Robert W. Kelley, et al.,
Respondents.

O n Petition for a W rit o f Certiorari 
To The United States C ourt o f Appeals 

For the Sixth Circuit

REPLY BRIEF

W illiam R. W illis, Jr.
Marian F. Harrison 

W illis & Knight 
215 Second Avenue, N orth 

Nashville, Tennessee 37201 
(615) 259-9600 
A ttorneys fo r  Petitioners

Novem ber 11, 1982

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



TABLE OF AUTHORITIES CITED

Page

Cases

Colum bus Board o f Education v. Penick, 443 U. S. 449
(1 9 7 9 ) .................................................................................  4,5

Davis v. Board o f School Commissioners o f Mobile
County, 402 U.S. 33 (1 9 7 1 ) .......................................... 6

Pasadena City Board o f Education v. Spangler, 427 U.S.
424(1976)........................................................................... 1,4,5

Spangler v. Pasadena City Board o f Education, 611 F. 2d
1239 (9th Cir. 1979).........................................................  4,5

Swann v. Charlotte-M ecklenburg Board o f Education,
402 U.S. 1 (1971) ............................................................. 1,5,6,7



No. 82-702
In The

Supreme Qlourt of tlje Hntteii States
October Term, 1982

Metropolitan County Board Of Education Of 
N ashville A nd Davidson County, Tennessee, et al., 

Petitioners,

v.

Robert W. Kelley, et al., 
Respondents.

O n Petition for a W rit o f Certiorari 
To The United States Court o f Appeals 

For the Sixth Circuit

REPLY BRIEF

The issues herein concern the proper interpretation o f this 
C o u rt’s decisions in Swann v. Charlotte-Mecklenburg Board o f  
Education, 402 U. S. 1 (1971) and Pasadena City Board o f  
Education v. Spangler, 427 U. S. 424 (1976) and, more broadly, 
the ability o f  district courts across the nation to  respond to the 
need to m odify decade-old desegregation decrees in light o f 
changing conditions. The Sixth Circuit im properly rejected 
pupil assignment portions o f the 1981 plan approved by the 
D istrict C ourt and required that new school attendance zones be 
draw n to approxim ate the current racial population o f the 
C ounty despite the fact that a school desegregation plan has



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been in place for ten years. A lthough full argum ent on the 
merits o f these questions is properly reserved for briefing on the 
merits, we take this opportunity  to reply to  the R espondents’ 
Brief in Opposition:

1. The District Court stated in 1981 that “ [t]he good faith ef­
forts o f this [School] Board to achieve desegregation have been 
amply dem onstrated .”  A. 153. Nonetheless, the Respondents 
contend that the School Board has engaged in continuing con­
stitutional violations since the im plem entation o f the 1971 plan. 
Brief in Opposition (“ Br. O p p .” ) 31. Yet the Respondents can 
refer to no explicit holding o f a lower court to  support their 
assertion because, quite simply, there is none. The Respondents 
rely solely on scattered phrases culled from  the lower court 
opinions that fail to  support their assertion.

Respondents first quote from  the District C ourt order o f 
August 17, 1972, in which the District C ourt criticized the 
School B oard’s first year o f im plem entation o f the 1971 plan 
and ordered it to take certain additional actions, including the 
purchase o f school buses. Br. O pp. 21. As we explained in our 
Petition for Certiorari (“ P e t.” ) 10 n. 5, the District C ourt has 
never, since the 1972 order was put into effect, held that the 
School Board has obstructed the system-wide im plem entation 
o f the 1971 plan. Actions now a decade old, which were rec­
tified when the 1971 plan was fully im plem ented, cannot now 
support the Sixth C ircuit’s requirem ent that each school district 
be redrawn to reflect the current racial m akeup o f the school 
system.

Respondents also rely on the conclusion o f the District C ourt 
that the im plem entation o f the 1971 plan constituted de jure 
segregation because it encouraged population shifts to  parts o f 
the County not included within the desegregation remedy. It is 
clear, however, that the District court was referring to  its own 
actions as de jure. The District Court said that “ [t]he perim eter



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line draw n by the C ourt in 1971. . .  has encouraged white flight 
to  the suburbs and to  those school zones unaffected by the 1971 
order . . . .  The resegregation, resulting, at least in part, from  
the nonetheless good faith efforts o f the School Board in the im ­
plem entation o f the C o u rt’s order, am ounts to a de jure 
segregation.”  A. 44-45. As the District Judge further explained 
in open court, ‘‘it appears to me that the previous Court action . . .  
has contributed to  resegregation . . . and to the extent it has, this 
C ourt is o f the opinion — I d o n ’t know whether there is any 
case law to support it — but that is de jure  action rather than de 
facto  ac tion .”  Pet. 10 n. 5. The finding o f "de jure"  segrega­
tion relied upon by the Respondents thus does not reflect upon 
the actions o f the School B oard .1

The Respondents note that the District C ourt stated in 1979 
that the School B oard’s adm inistration o f an optional transfer 
program  as it affected one largely black high school conflicted 
with the ‘‘sp irit”  o f the 1971 plan, A. 56-57, and that this obser­
vation was repeated by the C ourt o f Appeals, A. 5. Yet the 
District C ourt sim ultaneously refused to  hold the School Board 
in contem pt o f court because the Board had not been given ade­
quate notice that its actions might conflict with the District 
C o u rt’s orders. A. 56. Indeed, the District C ourt concluded that

1 Respondents also mischaracterize the District Court’s comments 
concerning the accommodation of white flight in the suburban areas 
through new construction. Br. Opp. 11 n. 9. The reference by the 
Court to accommodation was not an indictment of the School Board’s 
actions — indeed, no construction in the areas excluded by the 1971 
order had been undertaken. Rather, the Court was questioning the 
feasibility of bringing young students from those excluded areas to the 
innercity, routes the Court had rejected in 1971 because of “ practical 
considerations, common sense, and judgment.” A. 169. The District 
Court’s ultimate answer to this question was incorporated into the 
1981 plan and essentially confirmed the 1971 exclusion for elementary 
students after the judge himself had traveled some of these lengthy 
routes. According to the Court, the distances and inconveniences pro­
duced by such long routes “ defie[d] logic and create[d] an almost im­
possible barrier to liaison between parent and teacher.” A. 113-14; Tr. 
of June 26, 1979, Hearing, Volume III, at p. 26-28.



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a contem pt o f court order would violate due process. A . 56-57. 
Taken in context, therefore, the District C o u rt’s observation 
does not justify the Respondents’ conclusion, see, Br. O pp. 23, 
that the School Board has within the past decade engaged in the 
type o f unconstitutional conduct with system-wide impact that 
this Court found in Columbus Board o f  Education v. Penick, 
443 U. S. 449, 454-63 (1979). N or, given the absence o f a finding 
that the School Board had violated the C onstitution and the fact 
that the School B oard’s actions affected only one school, could 
a court have so characterized the School B oard’s actions.2

Finally, the Respondents note the C ourt o f A ppeals’ state­
ment that the school system has yet to  achieve unitary status. As 
the Spangler C ourt emphasized, however, this fact alone does 
not permit a federal court “ to rearrange its attendance zones . . . 
so as to ensure that the racial mix desired by the court was m ain­
tained in perpetu ity ,”  once “ a racially neutral attendance p a t­
tern”  has been im plem ented. 427 U. S. at 435-36.3 The Sixth

2 The Respondents’ reliance on the 1979 District Court statement 
was not shared by the Court of Appeals. That court did not purport to 
rely upon the School Board’s conduct affecting one high school to 
justify its creation of a new plan for the entire school system. 
Presumably, the Sixth Circuit recognized that any problem existing in 
the administration of the optional transfer program had been cured by 
the 1981 plan and that, in any event, this issue could not justify its 
refusal to permit the 1981 plan constructed by the District Court to go 
into effect.

3 In a footnote, the Court of Appeals also said that the failure to 
achieve unitary status was in large part because of “ the Board’s im­
plementation of the 1971 plan.” A. 11 n.5. The court may have been 
referring to the effects of the 1971 plan criticized by the District 
Court, see, pp. 2-3 supra. In any event, the suggestion that the 
School Board “ implemented” the 1971 plan and that the plan has yet 
to achieve unitary status does not mean, as the Respondents suggest, 
that the School Board has committed continuing constitutional viola­
tions. A desegregation plan may be in place for some time before a 
federal court concludes that the effects of pre-plan constitutional 
violations have been fully vitiated. See, Spangler v. Pasadena City 
Board o f Education, 611 F. 2d 1239 (9th Cir. 1979).



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C ircuit’s order that the District C ourt redraw attendance zones 
to reflect the current racial m akeup o f the school system — 
which was not based on any finding that the School Board 
within the past decade had obstructed the system-wide im ­
plem entation o f the 1971 plan — directly conflicts with this 
C o u rt’s decision in Spangler/

2. The Respondents argue that the Sixth Circuit “ carefully 
and conscientiously”  applied the dictates o f Swann v. 
Charlotte-Mecklenburg Board o f  Education when it refused to 
allow the im plem entation o f  the 1981 plan. Br. O pp. 27. The 
Respondents have not challenged the fact that the “ District 
C o u rt’s m odification o f the pupil assignment portion o f the 
plan creates m ore integrated schools for secondary students”  
than  continued use o f the 1971 plan. Pet. 11. Both the 
Respondents and the Sixth Circuit believe that Swann bars a 
m odification to  a desegregation plan that increases integration 
merely because the plan is not explicitly designed to reflect 
within each school the racial balance o f the school system. That 
is a sure sign that Swann is being seriously misread by litigants 
and courts alike. 4

4 The Respondents claim that the School Board has “ erroneously 
ignored that ‘[e]ach instance of a failure or refusal to fulfill [its] affir­
mative duty continues the violation of the Fourteenth Amendment.’ ” 
Br. Opp. 24 n. 15, quoting, Columbus Board o f Education v. Penick, 
443 U.S. at 459. The School Board has ignored nothing — the quoted 
language from the Columbus case concerns a school board’s affir­
mative duty to dismantle a segregated system before a court-ordered 
desegregation plan exists. Once a desegregation plan has been put into 
effect, the inquiry shifts to whether subsequent changes in the racial 
makeup of the school system were caused by the school board’s ac­
tions. Pasadena City Board o f Education v. Spangler, 427 U.S. at 435. 
Neither the District Court nor the Court of Appeals made findings of 
fact that would support the conclusion that the actions of the School 
Board in the last ten years have caused resegregation of the school 
system.



3. The Respondents also em brace the Sixth C ircuit’s 
mistaken interpretation o f the Swann C o u rt’s approval o f 
busing as a permissible remedy. Respondents themselves 
characterize the C ourt o f Appeals as having instructed the 
District Court to order the busing o f children in grades K-4 
unless busing risks the health o f the children or significantly a f­
fects the educational process. Br. O pp. 30-31. Swann recognizes 
that busing is permissible; it does not m andate the transporta­
tion o f pupils. Pet. 14. The proper inquiry is whether a 
desegregation plan is effective, see, Davis v. Board o f  School 
Commissioners o f  Mobile County, 402 U .S . 33, 37 (1971), not 
— as the Sixth Circuit and respondents believe — merely 
whether it includes the busing o f young school children. The 
Respondents’ brief thus further dem onstrates that this C o u rt’s 
Swann decision has been widely m isunderstood. 4

4. The Respondents attem pt to  justify the C ourt o f A ppeals’ 
“ failure to  address the issue o f the effectiveness o f  the 
desegregation p lan ,”  A. 35 (Celebrezze, J .,  dissenting), by 
claiming that the district court com m itted legal error and ig­
nored “ undisputed findings o f continuing constitutional viola­
tio n .”  Br. Opp. 31. As we have dem onstrated in our Petition 
for Certiorari and in this Reply, the District C ourt com m itted 
no legal error by refusing to  adopt the Sixth C ircu it’s m istaken 
interpretation o f Swann v. Charlotte-Mecklenburg Board o f  
Education. As we have also explained, one will search in vain in 
either the District C ourt or the C ourt o f  Appeals opinions for 
the “ undisputed”  conclusion that the School Board has com ­
mitted a continuing constitutional violation in the last decade. 
There is no difficulty in ascertaining, however, tha t the District 
Court explicitly applauded “ [t]he good faith efforts o f  this 
[School] Board to  achieve desegregation.”  A. 153. Quite 
simply, the Respondents have offered no legally sufficient ra-

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tionale tha t supports the C ourt o f A ppeals’ refusal to allow im ­
plem entation o f  the District C o u rt’s 1981 p lan .5

Respectfully subm itted,

W ILLIS & KN IG HT

By W ILLIA M  R. W ILLIS, JR .

By M ARIA N F. HA RRISO N 
215 Second Avenue, North 

Nashville, Tennessee 37201

A ttorneys for Petitioners

5 Although the Court of Appeals did not reverse the District 
Court’s findings of fact as clearly erroneous, the Respondents 
challenge the District Court’s finding — based upon the testimony of 
Respondents’ own witness — that young school children would be 
best served by a lessened emphasis on busing and a greater emphasis 
on remedial and cultural education. Pet. 5-6. The Respondents base 
their contention upon “ dispositive social science evidence” contained 
in an appendix to the opinion of the Court of Appeals. Br. Opp. 33 n. 
20. This evidence was never introduced in the District Court and the 
School Board has never had an opportunity to cross-examine the 
authors of the study or to introduce evidence in rebuttal. We do not 
understand the Court of Appeals to have rejected the District Court’s 
findings on the basis of information that was not part of the record. 
Rather, the Sixth Circuit, because of its mistaken understanding of the 
Swann decision, reversed the 1981 plan despite the District Court’s 
findings of fact.



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I hereby certify that a copy o f  the foregoing reply has been 
mailed this 10th day o f Novem ber, 1982, to  the following 
counsel:

Avon N. Williams, J r ., Esquire 
203 Second Avenue, N orth 
Nashville, Tennessee 37201

Richard H . Dinkins, Esquire 
203 Second Avenue, N orth 
Nashville, Tennessee 37201

Jack Greenberg, Esquire 
10 Colum bus Circle 
Suite 2030
New York, New York 10019

James M. N abrit, III, Esquire 
10 Colum bus Circle 
Suite 2030
New York, New York 10019

Bill Lann Lee, Esquire 
10 Colum bus Circle 
Suite 2030
New York, New York 10019

The H onorable Frank Scanlon 
Assistant A ttorney General 
State o f Tennessee 
450 Jam es Robertson Parkw ay 
Nashville, Tennessee 37219

W ILLIA M  R. W ILLIS, JR.