Geier v. Blanton Reply Brief for Plaintiffs-Intervenors, Appellants Richardson

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 
Nos. 77-1622 & 1624

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaint iff-int ervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-lntervenors, 
Appellants,

VS.
RAY BLANTON, Governor of the State of 
Tennessee, et al.,

Defendants-Appellees, 
UNIVERSITY OF TENNESSEE, et al.,

Defendants-Appellees.

IN THE

REPLY BRIEF FOR PLAINTIFFS-INTERVENORS , APPELLANTS 
RICHARDSON, et al. IN NOS. 77-1622 & 1624

AVON N.- WILLIAMS, JR.
MAURICE E. FRANKLIN 
RICHARD H. DINKINS

Suite 1414 Parkway Towers 
404 James Robertson parkway 
Nashville, Tenn. 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

Suite 2030 
10 Columbus circle 
New York, New York 10019

Attorneys for Plaintiffs-Intervenors, Appellants 
Richardson, et al. in Nos. 77-1622 & 1624

/



INDEX

Page

Preliminary Statement ............................... 1
I. THE LOWER COURT ERRED IN ORDERING 

THE IMPLEMENTATION OF THE 
NASHVILLE MERGER WITHOUT HEARING 
AND DECIDING OBJECTIONS TO ITS 
CONSTITUTIONAL ADEQUACY .........  3
A. The Issue ....................  3
B. The Duty Of the Court To

Supervise the Desegregation 
Process ......................  9

C. The Lower Court's Jurisdiction 
to Enforce Its Judgment
Pending Appeal ............... 14

II. THE LOWER COURT ERRED IN FAILING
TO EVALUATE THE SPECIFIC GOALS AND 
POLICIES OF DEFENDANTS' STATEWIDE 
DESEGREGATION PLAN ............... 15
A. The Issue ..................... 15
B. The Duty Of The Court To 

Supervise the Desegregation
Process ......................  19

CONCLUSION..........................................  22
APPENDIX A ..........................................  la

i



TABLE OF AUTHORITIES
Page

Adams v. Califano .................................... 12

Adams v. Rankin County Board of Education, 485 F.2d
324 (5th Cir. 1973) ...........................  11

Bradley v. Milliken, 540 F.2d 229, (6th Cir. 1976)
aff'd, 433 U.S. 267, 53 L.Ed.2d 745 (1977) .........  12,20

Causey v. Ford Motor Company, 516 F.2d 416, (5th Cir.
1975) .............................................  19

Davis v. Board of School Commissioners of Mobile
County, 402 U.S. 33 (1971) ......................  21

Green v. School Board of New Kent County, 391 U.S.
430, (1968)   12, 19,

20, 21

Keyes v. School District, 413 U.S. 189 (1973) .....  21

Lee v. Macon County Board of Education, 453 F.2d 1104
(5th Cir. 1971) ................................... 3

Raney v. Board of Education, 391 U.S. 443 (1968) ... 11
Senter v. General Motors Corp., 532 F.2d 511

(6th Cir. 1976) ................................... 19
Sloan v. Tenth School District of Wilson County, 433

F.2d 587 (6th Cir. 1970) .........................  11
Swann v. Charlotte Mecklenborg Board of Education,

402 U.S. 15 (1971) ............................... 21
Wright v. Council of City of Emporia, 407 U.S. 451

(1972) ............................................  11

li



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
Nos. 77-1622 & 1624

RITA SANDERS GEIER, et al.#
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-lntervenors, 
Appellants,

VS.
RAY BLANTON, Governor of the State of 
Tennessee, et al.,

Defendants-Appellees, 
UNIVERSITY OF TENNESSEE, et al.,

Defendants-Appellees

REPLY BRIEF FOR PLAINTIFFS-INTERVENORS, APPELLANTS 
RICHARDSON, et al. IN NOS. 77-1622 & 1624

Preliminary Statement
It is the position of plaintiffs-intervenors Richardson, 

et al. in these consolidated appeals that the lower court 
properly ordered the merger of TSU and UTN in order to



desegregate public higher education in Nashville, but that
the district court erred in its further rulings on the
implementation of the Nashville merger and the adequacy of
statewide desegregation efforts outside Nashville with respect
to students, faculty and administrative staff. We argued
that the Nashville merger per se was proper in our separate
brief as appellees in the appeals filed by UT and THEC in

1/Nos. 77-1621, 1623 and 1625.
We first presented our arguments on implementation 

of the Nashville merger and adequacy of statewide desegre­
gation outside of Nashville in our principal brief in 
Nos. 77-1622 & 1624; we reply here to responses of the 
other parties on our appeal. Plaintiffs Geier, et al. and
the State defendants oppose our appeal for a variety of

2/
reasons. The United States, on the other hand, agrees 
with plaintiffs-intervenors Richardson, et_ al. that the 
lower court erred in refusing to consider objections to 
the Nashville merger plan and the inadequacy of the faculty

1/ We separately opposed the intervention of UTN faculty 
members in a separate brief, 77-1620.
2/ Plaintiffs Geier, et_ al. do not state any reason for 
their position other than that "the District court reached 
an eminently reasonable accommodation between the competing 
interests in the instant case, " p. 23, Brief filed in Nos. 1621, 1623 & 1625.

2



and administrative relief part of statewide desegregation 
efforts; the United States, however, joins the other parties
with respect to the adequacy of statewide desegregation efforts

4/as to students.
For the convenience of the Court in considering these 

consolidated appeals as a whole, we reply first to the 
responses on implementation of the Nashville merger and then 
to those on statewide desegregation.

V

I.
THE LOWER COURT ERRED IN ORDERING THE 
IMPLEMENTATION OF THE NASHVILLE MERGER 
WITHOUT HEARING AND DECIDING OBJECTIONS 
TO ITS CONSTITUTIONAL ADEQUACY

A. The Issue
5/In our principal brief, plaintiffs-intervenors Richardson,

et al. argued that while the merger was a proper and necessary 
remedy for the egregious constitutional violations found by the 
district court, the district court erred in two further respects 
in post-judgment proceedings; First, the lower court erred

3/ Although the government's brief does not expressly treat 
relief for administrative personnel, counsel for the United 
States informs us that the government does seek a remand on both 
faculty and administrative staff issues. It is of course well 
established that institutional administrative staff are deemed 
part of the faculty for purposes of desegregation, see, e.g.,
Lee v. Macon county Board of Education, 453 F.2d 1104 (5th Cir. 
1971).
4/ The briefs of the parties in these appeals, i.e., Nos.
77-1622 and 1624, are hereinafter referred to by the name of party.
5/ Richardson brief, pp. 50, 62-69.

3



in approving the proposal prepared by the State Board of 
Regents for the desegregation of TSU and UTN that was 
objected to by Richardson, et_ al_. as seriously deficient as to 
the system of governance, insufficient protections for TSU
faculty and administrative staff, and inadequate program 
consolidation (Some of the same features of the plan were 
objected to by the United States.) Plaintiffs-intervenors 
Richardson, et_ al. also objected to and sought further relief 
for attempts, after judgment, by the State Board of Regents 
and other defendants to oust the black president of TSU,
Dr. Frederick S. Humphries, from office in retaliation for 
his support for the merger remedy and to disrupt the deseg­
regation process. Although these objections are obviously 
serious, the lower court refused to hear these objections; 
instead, the district court approved the merger proposal 
submitted by the State Plan of ixi toto without analyzing 
whether the proposal complied with the court's January 31, 
1977 judgment. Indeed, in refusing to hear the objections, 
the Court made clear that it had no intention of evaluating

declined to specify the details of the merger" (emphasis 
added).

the adequacy of the Regents proposal; "rt]he court purposely/

4



"After determining that merger was the 
necessary remedy in this case, and ordering 
m a t  it be done, the details were left to 
the educators of the Board of Regents. The 
plan submitted by the Board was timely filed 
and provides for the merger of the institutions 
by July 1, 1980. consequently, it does not 
violate the judgment. Absent a stay, the plan 
should be put into effect."

(S.R. 15, A. 790 ) (emphasis added). This was error.
Second, the lower court gave as another reason not to 

hear objections to the merger proposal, that notices of 
appeal had been filed (S.R. 11, A. 751 ). This too was
error.

The result of these rulings is aggravated by the court's
subsequent (and entirely proper) order that the desegregation of

6/
TSU—UTN proceed pending appeal. , The net effect is that 
a desegregation plan is being implemented without the district 
court ever deciding timely-filed objections and motion 
for further relief that the plan does not comply with the 
judgment. yAs relief, a remand of these issues to the lower 
court was sought. Because of the immediacy of the problem, 
plaintiffs-intervenors Richardson, et al_. also filed a 
Motion For Remand Pending Appeal to have the lower court 
hear and decide the objections and motion so that the merits 
could be reviewed more expeditiously in this Court.

6/ The lower court denied UT's motion to stay the judgment 
on August 22, 1977 (R. 308, A. 803), and this court denied
a stay on October 3, 1977.

5



Summarized the objections to the plan are: First,
although it was ordered that "merger under the Board of 
Regents, with UTN supporting TSU during the transition 
period . . . offers the best prospect for success," 427 
F. Supp. at 660, the Regents proposal gives TSU administra­
tors and staff no effective governance authority to determine 
the eventual form of "expanded TSU." Instead, the Regents
plan gives the Regents chancellor complete and unprecedented

7/power to shape TSU's future, ^and assigns TSU administra­
tion and faculty no more of a role than UTN, Richardson

8/
brief at 64-65. This is simply merger with a vengeance,
given the record of the Board of Regents in maintaining and 
perpetrating the dual system revealed at trial: The Regents,
along with other defendants, is responsible for historical 
unequal resource allocation, see Richardson principal brief 
at 15-16, and during the litigation the Regents consistently 
took positions at odds with the interests of TSU, see

7/ Compare, e.g., the Chancellor's authority under the 
Regents plan with that under the Long Range Plan, see, e.g.,
T. 1761-1762,
8/ The lower court, consistent with the factuax record, only 
gave the Regents supervisory governance authority as sought by 
plaintiffs-intervenors Richardson and the United States to (1) 
avoid the dangers of "built-in conflict" between TSU and UTN 
being governed by separate Regents and UT boards, 427 F. Supp. 
at 658-660, and (2) because " [f]or the Board of Trustees of UT 
to take over the merged institution would mean the elimination 
of TSU as an educational institution with all the concomitant 
losses entailed therein," 427 F. Supp. at 660. The lower court 
did not contend that the Regents be given carte blanche to 
preside over the elimination of TSU.

6



Richardson principal brief at 27-28.
9/

Second, the
provisions of the Regents plan explicitly give UTN 
faculty and administrators greater retention rights than 
are given TSU faculty and administrators in the face of a 
factual record replete with testimony on the need to 
provide adequate retention guarantees for TSU faculty, 
administrators and staff, see Richardson principal brief 
at 66-68. Third, the Regents plan makes no provision for 
the immediate elimination of duplicative programs, such 
as nursing and engineering, which the record shows can be 
feasibly accomplished in the interim period, see Richardson 
principal brief at 68.

9/ For instance, the Regents opposed merger and concurred 
in Long Range program allocations that "followed the wishes 
expressed by the University of Tennessee," 427 F. Supp. 
at 657 ; TSU President Humphries was expressly reprimanded 
by several board members for supporting merger? Chancellor 
Nicks contemplated firing President Humphries for the same 
reason; and it is alleged that after judgment President 
Humphries was subjected to further pressure to resign.

7



parties apparently misunderstand the thrust of the appeal.
The ultimate truth or not of the objections is simply not before 
the Court. The issue is whether the district court should 
have determined the adequacy of the plan and implementation 
in order that any party with objections can seek appellate 
review. Of course, it is_ clear that the objections are serious 
and, on their face, put into question whether the Regents 
plan will in fact enforce the court's judgment on merger.

(The statement in the principal brief, p. 13, that "UT 
and UTN continue to refuse to participate in implementation 
of the merger" is erroneous. Under the Regents plan, UTN 
was required to appoint members to several committees, see 
Richardson brief, pp. 12, 64-66. The existing record shows

We have described the issue in detail because several
10/

10/ Regents brief, THEC brief, pp. 19-20, UT brief, pp. 35-36 
("[Richardson, et al.] express dissatisfaction only with the 
fact that the district court failed to entertain and review 
their objections to the merger plan and ordered that the 
merger plan formulated by the State Board of Regents should be 
placed into effect. (Order, July 22, 1977). Their chief com­
plaint seems to be that the district court ordered and directed 
the State Board of Regents to formulate and implement a merger 
plan rather than authorizing TSU to formulate and implement 
the merger plan. Thus, they advocate the 'gospel' according 
to plaintiffs-intervenors rather than the 'gospel' according 
to the district court"); see also opposition papers on the 
motion for limited remand pending appeal.

8



that UT refused to do so, id. After a stay of the judgment 
was denied by the lower court July 22, 1977, UT did apparently 
appoint members to the committees in question, as defendants 
now point out, UT brief at 14 and Affidavit of Charles E.
Smith. This, of course, does not foreclose inquiry before the 
district court on UT's cooperation.)
B. The Duty Of The Court To Supervise The Desegre- 

gation Process_________________________________
Defendants assert generally that " [tjhere is no consti­

tutional requirement that a district court, in fashioning 
relief, must supervise the details of the methods and procedures
whereby state defendants proposed to achieve desegregation of

11/the State's educational system." The record demonstrates
that this view of the role of the federal district court in the 
desegregation process has been adhered to throughout by the 
lower court in deferring to defendants by "declin [ing] to 
specify the details of [desegregation]," see Richardson brief, 
pp. 4-12. (Although this assertion is made in the context 
of the adequacy of statewide efforts, because the court 
operated under this view for both issues, we, therefore, 
address it first here.)

We respectfully submit that it was patently erroneous 
for the district court to refuse to supervise the desegregation

ii/ See, e.g., UT brief, p. 30, THEC brief, 17-18.

9



process by carefully evaluating the elements of the Regents
proposal before ordering it into effect, especially where,
as here, there were objections as to constitutional adequacy.
In Brown II, the court announced that:

"School authorities have the primary 
responsibility for elucidating, assessing, 
and solving these problems; courts will 
have to consider whether the action of school 
authorities constitutes good faith implemen­
tation of the governing constitutional 
principles. Because of their proximity to 
local conditions and the possible need for 
further hearings, the courts which originally 
heard these cases can best perform this 
judicial appraisal.* * *
"The burden rests upon the defendants to 
establish that such time is necessary in the 
public interest and is consistent with good 
faith compliance at the earliest practicable 
date. To that end, the courts may consider 
problems related to administration, arising 
from the physical condition of the school 
plant, the school transportation system, 
personnel, revision of school districts and 
attendance areas into compact units to 
achieve a system of determining admission 
to the public schools on a nonracial basis. 
and revision of local laws and regulations 
which may be necessary in solving the fore­
going problems. They will also consider the 
adequacy of any Plans the defendants mav 
propose to meet these problems and to 
effectuate a transition to a.xaciallv. nondis- 
criminatorY school system. During this period 
of transition, the courts will retain 
jurisdiction of these cases."

347 U.S. at 299, 300-301 (emphasis added). Since 1955,
the duty of the district court to "perform this judicial
appraisal" and to "consider the adequacy of any plans
the defendants may propose" has only increased as the
appellate courts have strengthened and further specified

10



the often-complex task of desegregation. "In light of the 
complexities inhering in the disestablishment of the state- 
established segregated school system, Brown II contemplated 
that the better course would be to retain jurisdiction until 
it is clear that disestablishment has been achieved," Raney 
v. Board of Education, 391 U.S. 443, 449 (1968); see Sloan 

T̂ rifh Qf-Vinnl District of Wilson County. 433 F.2d 587 (6th 
Cir. 1970). Where, as here, the lower court merely retains 
jurisdiction without supervising the desegregation process , 
the entire enterprise is frustrated.

A district court can only perform its obligation to 
assure the most effective desegregation plan is formulated 
and implemented, Wright v. council of City of Emporia,
407 U.S. 451 (1972); see Adams v. Rankin County Board of 
education, 485 F.2d 324, 325-326 (5th Cir. 1973), by actually 
scrutinizing and evaluating defendant's proposal, the 
objections of other parties and any alternatives.

"The obligation of the district courts, as it 
always has been, is to assess the effectiveness 
of a proposed plan in achieving desegregation.
There is no universal answer to complex problems 
of desegregation; there is obviously no one plan 
that will do the job in every case. The matter 
must be assessed in light of the circumstances 
present and the options available in each 
instance. It is incumbent upon the school board 
to establish that its proposed plan promises 
meaningful and immediate progress toward dis­
establishing state-imposed segregation. It is 
incumbent upon the district court to weigh that 
claim in light of the facts at hand and in light 
of any alternatives which may be shown as feasi-  ̂
ble and more promising in their effectiveness.

11



Where the court finds the board to be acting 
in good faith and the proposed plan to have 
real prospects for dismantling the state- 
imposed dual system 'at the earliest practi- 
able date.1 then the -plan may be said to 
provide effective relief. Of course, the 
availability to the board of other more 
promising courses of action may indicate a 
lack of good faith; and at the least it places 
a heavy burden upon the board to explain its 
preference for an apparently less effective 
method."

Green v. School Board of New Kent County, 391 U.S. 430,
439 (1968) (emphasis added). The duty is no less for higher 
education systems, cf. HEW Amended Criteria Specifying 
Ingredients of Acceptable Plans to Desegregate State Systems 
of Public Higher Education, 42 Federal Register 40780
(August 11, 197 Moreover, this Court is in no position
to perform its review of the adequacy of the plan, see, e.g. 
Bradley v, Milliken, 540 F.2d 229 (6th Cir. 1976), aff*d, 433 
U.S. 267, 53 L.Ed. 2d 745 (1977), until the lower court in 
the first instance performs its duty.

Of particular moment is the lower court's refusing even 
to entertain plaintiffs-intervenors Richardson, et a1.1s 
assertion that the Regents and other defendants are attempting 
to have President Humphries removed from office. The effect 
of such attempts on TSU's administration, staff and students 
when decisions are being made as to the future of TSU may

12/ The HEW criteria establish only minimal standards, whose 
adequacy is being challenged in the Adams v. califano litigation, 
see Brief For Plaintiffs-Intervenors, Appellees Richardson, et_ al. 
in Nos. 77-1621, 1623 & 1625, p. 40.

12



well be detrimental. it was not enough for the district
court to find that the State's program allocation approach 
"had not worked" and provides "little hope for the future, " and 
that merger offered the "best prospect for success," and then 
leave the "details" completely in the hands of the Board of 
Regents. It was the obligation of the lower court to make sure 
that the plan proposed is in fact the best-suited and most 
efective plan that could be formulated and implemented

For these reasons, to "purposely declinef ] to specify the 
details of the merger" was error, the question of implementation 
of the Regents proposal should be remanded, and the district court 
should be directed to hear and decide the objections and motion

13/ The government agrees that the assertions as to President 
Hamphries are "extremely serious" and that " [t]he district court 
has unquestioned power to redress or prevent such retaliation, " 
but suggests that "[i]f this matter is presented to the district 
court in a motion separate from objections to the merger plan, 
the district court should hold a prompt hearing," pp. 17-18.
The simple answer is that the 9-page objections and motion 
plainly specified the Humphries issue and specifically asked for 
a hearing. Both the objections and motion were presented to 
the court (S.R. 10, A. 738), and the lower court specifically 
denied consideration of both objections and motion (S.R. 11,
A. 751 ) . Indeed, plaintiffs-intervenors Richardson, et al. 
even filed a motion for reconsideration (S.R. 12), which the 
district court also denied (S.R. 15, A. 787). Under the circum­
stances, it would be totally useless to "request a separate 
hearing or separate relief on the Humphries matter," p. 18, 
n. 28, the district court having made itself abundantly clear.

13



for further relief and to otherwise supervise the desegre­
gation process.

C. The Lower Court's Jurisdiction To Enforce Its 
Judgment Pending Appeal
The legal error of the district court in declining 

to enforce its judgment pending appeal has been fully
14/briefed in our principal brief, pp. 68-69, and the 

papers filed with the Motion For Limited Remand Pending 
Appeal.

14/ The facts underlying our argument on pp. 69-70, 
that UT has refused to participate in implementation of 
the Regents Plan, supra, at p. 8-9 , are in error.

14



II.
THE LOWER COURT ERRED IN FAILING TO 
EVALUATE THE SPECIFIC GOALS AND 
POLICIES OF DEFENDANTS' STATEWIDE 
DESEGREGATION PLAN

A. The Issue
In our principal brief, we asserted that it was error for 

the district court to find it "unnecessary to evaluate specific 
policies and goals contained in the [defendants'] Long Range 
Plan."

"Since the predominantly white institu­
tions are continuing to made steady progress, 
the Court finds it unnecessary to_ evaluate 
the^pecif Ic policies and goals~ contained in 
the Long Range Plan. The court expects, 
however, that the Monitoring Committee will 
function as outlined in the Plan and will call 
to task any institution which does not achieve 
steady progress. This court will retain juris­
diction so that, should the state-^wide progress 
be abated, it may consider specific State 
policies as they relate to the decline in pro­
gress . "

427 F. Supp. 651. We set forth in our view what any appropriate 
ruling, in light of the evidence in the record, see Richardson
principal brief, pp. 34-48, would have at the minimum addressed, 
i.e., effective desegregation of students ̂ faculty, and 
administrations, Richardson principal brief, pp. 59-62. We
then argued, first, that the district court was under a duty 
to carefully review record before it and, second, that the 
lower court abdicated its duty to supervise progress toward 
desegregation to defendants' Monitoring Committee, Richardson 
principal brief, pp. 53-59.

15



Summarized, the lower court should have addressed 
the following areas in formulating a statewide desegregation 
plan: First, the district court should have looked beyond
overall system-wide student enrollment statistics to determine 
how each school was progressing and evaluate the relevant 
specific policies and goals which produce undisputed wide 
fluctuations in enrollment at the various schools and programs, 
see Richardson principal brief at 34-38, 43-46, 59-60. On 
its face, the state system remains largely segregated; fully 
51.5% of black 1975 entering freshman went to either of 
two state institutions: TSU with its 93% on-campus population
(24.9%) and Shelby Community College which is now 2/3 black
(2 6.5%) . Second, the lower court should have looked beyond

15/ Thus, if both TSU and Shelby State Community College are 
excluded from statewide enrollment statistics, even the obstensible 
regular progression of black enrollment in terms of percentage 

of total enrollment," 427 F. Supp. at 650, is substantially diminished.

Without TSU and Shelby CC
Without TSU
With TSU & Shelby CC

1972* 1973
6.1 6.0
6.7 7.1

10.3 10.7

1974 1975
7.3 7.8
8.8 9.7

11.9 12.6
♦Enrollment statistics prior to 1972 are apparently unavailable 
for Shelby; the introduction of Shelby enrollment statistics after 
1972 largely accounts for ostensible progress between 1971 and 
1972; thus from 1969-1971, without TSU and Shelby, the comparable 
enrollment statistics are 4.6, 5.2, and 5.8. Source: THEC Table I 
from DX 11, Progress Report of February 13, 1976, set forth in 
Appendix C to the Richardson principal brief.

At the present rate of increase in the predominantly white 
institutions, i.e., 1% every two years, it would be years more 
ksfo^e the white schools as a whole reach a point of being unitary institutions, see, e.g., (T. 274-277, A. 889-891) (Dr. Elias 
Blake, Jr.).

16



what was conceded to be "small, but steady, increase" reflected
in system-wide black faculty statistics to again determine how
each school was progressing and evaluate the relevant specific
policies and goals which produce the undisputed wide fluctuations
in faculty and administrative staff in the various schools and
programs, see Richardson principal brief at 38-42, 43-47, 60-62,
compare government’s brief at pp. 13-15. Looking at the progress
of the individual schools, the same spotty picture of widely
varying progress toward desegregation is present as in student
enrollment area, particularly the concentration of 82% of all
black Regents faculty in 1975 at TSU, of 50% of^all black
community college faculty in 1975 at Shelby State and, as the
court noted, 55% of all black faculty at TSU and Shelby State,
427 F. Supp. at 650-651; the pattern holds true for administrative

16/
and other staff as well. \ Third, the lower court failed 
completely to rule on such questions as the uncontradicted

16/ The--concentration _o_f black faculty at two institutions; 
the existence o f  salary disparities between black and white 
raculty, infra; and the failure'of defendants to develop black 
faculty -through their own graduate progrems, see Richardson

brief, pp. 37—38, see also T.260—261, A. 879—880, largely 
undermine the lower court's conclusion that "the record shows 
the difficulties in recruiting black faculty members due to 
demand in other State and private institutions which are able 
to offer more lucrative positions," 427 F. Supp. at 651.
Certainly, the large numbers of black faculty of TSU and 
Shelby State indicate that black faculty can be attracted to 
positions in the Tennessee public higher education system.

17



evidence of significant salary disparities attributable 
17/

to race and structual defects in the Long Range Plan,
notably the lack of power of the Supervisory Monitoring
Committee, see Richardson principal brief, pp. 42—48,
government's brief, pp. 15-16.

As with the Nashville implementation issue, we fully
reiterate the statewide issue because the defendants largely
ignore the actual question before the Court. Instead, the
State defendants recite at length the virtues of the policies18/
and goals of the Long Range Plan, although the lower court 
of course expressly declined to approve or disapprove the 
Long Range Plan policies and goals. (Defendants also dispute 
certain record facts, which we answer in turn by page in 
Appendix A to this reply brief.) The united states, on 
the hand, at p. 10, takes the position on student desegregation 
in the traditional white institutions that "the court was 
unable to conclude that [progress] was 'so slow and devoid 
of good faith efforts . . . that it constitutes, at this 
time, a violation of constitutional requirements'" are "fjndinag

17/ The undisputed direct testimony on his multiple regression 
analysis of Mr. Mark Killingsworth speaks for itself, see 
Richardson brief, p. 42 n. 58, as does the full opportunity 
accorded defendants to cross-examine him. There is simply 
no merit in defendants' belated attempts on this appeal to 
minimize the results and methodology of Mr. Killingsworth's 
analysis. Indeed, the lower court itself stated after his 
testimony that "I hope this witness was being paid by his 
worth" (T. Ill 413). Compare Brief for United States, 
pp. 15-17.
18/ E.g. Blanton brief, UT brief.

18



[that] are not clearly erroneous" (emphasis added). we address 
in the next section, the substantive nature of the court's duty; 
here we merely note that the government misperceives that 
whether the progress "'constitutes, at this time, a violation 
of constitutional requirements' " obviously calls for the 
application of legal principles to facts or findings of ulti­
mate fact, rather than the clearly erroneous standard, see, 
e.q., Senter v. General Motors Corp., 532 F.2d 511, 526 (6th 
Cir. 1976); Causey v. Ford Motor Co., 516 F.2d 416, 420-421 
(5th Cir. 1975) .
B. The Duty Of The Court To Supervise The Desegregation

Process_______________________________________________
As with the Nashville implementation issue, defendants 

contend that the lower court has no duty to supervise the 
desegregation process, supra. We demonstrate, however, that 
this was error and that the obligation imposed by Green v .
School Board of New Kent County, 391 U.S. 430, 439 (1968) is 
to assure that defendants "come forward with a plan that 
promises realistically to work and promises realistically to 
work now" (original emphasis). As to the Nashville implemen­
tation, the district court ordered defendant Regents' plan into 
effect without hearing and considering objections and motion 
for further relief based on constitutional inadequacy. In 
contrast, the lower court heard evidence concerning the 
constitutional inadequacy of defendants' statewide desegregation

19



efforts and alternatives of plaintiffs-intervenors 
Richardson, et_ al. and the United States at the 1976 trial, 
but failed to adopt any plan. Instead, the lower court permitted 
defendants1 statewide desegregation efforts to continue in 
effect, finding it "unnecessary to evaluate the specific 
policies and goals contained in the Long Range Plan," 427 
F. Supp. at 651.

The lower court's disposition of statewide desegregation 
efforts cannot be recounciled with the duty imposed by 
Brown II, supra, to "consider the adequacy of any plans the 
defendants may propose" and the obligation of Green v. School 
Board of New Kent County, supra, 391 U.S. at 439, "to assess 
the effectiveness of a proposed plan in achieving desegregation 
. . .  [and] to weigh th [e] claim [that a "proposed plan promises 
meaningful and immediate progress toward disestablishing State- 
imposed segregation"] in light of the facts at hand and in 
light of any alternatives which may be shown as feasible and 
more promising in their effectiveness," see supra at part 
IB. The lower court simply had no discretion not to order 
the most effective desegregation and not to thoroughly analyze 
of the specific policies and goals of the Long Range Plan.
The failure of the lower court to discharge its plain duty 
results of course in this Court not having findings and 
conclusions which would permit a review of any desegregation 
plan, see Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976), 
aff'd, 433 U.S. 267, 53 L.Ed. 2d 745 (1977). Thus, no

20



appellate court can review if the State's statewide desegre­
gation efforts provide the most effective relief, or if the 
specific goals and policies of the Long Range Plan are the most 
appropriate means to achieve dismantlement of the dual system.

Moreover, the concentration of black students, faculty
and administrators at, and, indeed, the very existence of,
predominantly black TSU and Shelby State Community college
in a state system that is otherwise predominantly white is the
kind of circumstance that should trigger the closest judicial
scrutiny. "[W]here it is possible to identify a 'white
school' or a 'Negro school' simply by reference to the racial
composition of [students,] teachers and staff . . . , a prima
facie case of violation of substantive constitutional rights
under the Equal Protection Clause is shown," Swann v. Charlotte-
Mecklenburg Board of Education. 402 U.S. 15, 18 (1971); Bradley
v. Milliken, supra. 540 F.2d at 237-238. As this Court put it
in Bradley (where the district court erroneously left several
schools "virtually untouched") "[t]his perfunctory treatment . . .
falls far short of the 'root and branch' requirements of
Green v. County Board. 391 U.S. 430, 437-38 . . . (1968),
and the 'all-out desegregation' requirements of Keyes v .
School District. 413 U.S. 189, 214 . . . (1973)," 540 F.2d
at 238, see also Davis v. Board of School Commissioners of MobileI|7 --------
County, 402 U.S. 33, 38 (1971).

12/ Dayton Board of Education v. Brinkman.433 U.S. 406, 53 L.Ed.2d 
851 (1977), cited by UT and THEC, has no application here where 
there was systemic segregation imposed by law, and perpetuated and maintained since.

21



For these reasons, to "find[ ] it unnecessary to evaluate 
the specific policies and goals contained in the Long Range 
Plan" was error, the question of statewide desegregation 
should be remanded, and the district court should be directed 
to decide on the most effective means for dismantling the 
statewide dual system outside Nashville and to otherwise super­
vise the statewide desegregation process.

CONCLUSION
For the reasons stated above, the district court's 

Nashville merger implementation and statewide desegregation 
orders should be reversed, and the case remanded for further 
proceedings in the lower court, on both issues, the district 
court should assure itself that defendants have "come forward 
with a plan that promises realistically to work, and promises 
realistically to work now."

AVON N. WILLIAMS, JR. 
MAURICE E. FRANKLIN
RICHARD H. DINKINS

1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Plaintiffs- 
Intervenors, Appellants 
Richardson, et al. in 
Nos. 77-1622 & 1624

22



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Reply 

Brief For Plaintiffs-Intervenors, Appellants Richardson, et al. 
In Nos. 77-1622 & 1624 have been served upon the following 
counsel of record in this cause by first class mail, postage 
prepaid, as follows, this the 18th day of January, 1978:

Hon. William J. Haynes, Jr. 
Assistant Attorney General 
State of Tennessee 
450 James Robertson parkway 
Nashville, Tenn. 37219
Robert Reinstein, Esq. 
Appellate Section 
Civil Rights Division 
Department of Justice 
Washington, D. C. 20530
Nathaniel Douglas, Esq. 
Education Section 
Civil Rights Division 
Department of Justice 
Washington, D. C. 20530
George E. Barrett, Esq.
9th Floor
Third National Bank Building 
Nashville, Tenn. 37219
William Willis, Esq.
Alfred H. Knight, Esq. 
Seventh and Union Street 
Nashville, Tenn. 37219
Hon. Hal Hardin 
United States Attorney 
United States courthouse 
Nashville, Tenn. 37201

Joseph O. Fuller, Esq. 
Fuller & Tunnell 
426 Shelby Street 
Kingsport, Tenn. 37660
D. Bruce Shine, Esq. 
Ferguson & Shine 
700 Sullivan Street 
Kingsport, Tenn. 37660
Beauchamp Brogan, Esq.
The University of Tennessee 
Suite 810, Andy Holt Tower 
Knoxville, Tenn. 37916
Thomas Wardlaw Steele, Esq. 
Post Office Box 2757 
Nashville, Tenn. 37219
James E. Drinnon, Jr., Esq. 
Assistant General Counsel 
Administrative Building 
University of Tennessee 
Knoxville, Tenn. 37916
Lewis L. Laska, Esq.
1231 17th Avenue South 
Nashville, Tenn. 37212

Attorney for Plaintiffs- 
Intervenors, Appellants 
Richardson, et al., in Nos. 
77-1622 and 1624



APPENDIX A

REPLY RE CERTAIN RECORD FACTS DISPUTED 
BY DEFENDANTS*

1• Brief For Defendant-Appellee Ray Blanton, Governor, State 
of Tennesee in Case No. 77-1621 [sic]
a) P. 13. While Dr. Elias Blake, Jr., expert for the 

United States agreed that the increase of black students at 
historic white institutions under defendants' Long Range Plan 
was "a favorable improvement" (T. 338, A. 933) , the thrust of 
Dr. Blake's testimony was that in 1975 "there was still a 
significant under-enrollment" (T. 274-275, A. 889-890) and 
that "the plan needs to have a greater sense of urgency"
(T. 276-277, A. 890-891). Dr. Blake made this clear in his 
preface to the cited passage (T. 337, A. 931-932).

b) p. 15 n. 4. Memphis State University Law School 
accepted 12.9% (8 of 62) of minority students who applied while 
accepting 34.1% (278 of 729) of white applicants (see DX 9,
T. 295-297, A. 903-904), with admission requirements having
a racially disparate effect eliminating more black applicants 
than white applicants (72.6% vs. 17.8%), id.

c) p. 15 n. 5. DX 11, p. 140 clearly shows that there 
has been a net increase of only 3 black faculty in Regents

* The United States states that the Richardson principal brief 
"accurately sets forth (at pp. 2-48) the facts of this litigation, 
with one exception," Brief For The United States in Nos. 77-1622 
& 1624 at p. 2. That exception, also corrected earlier in the 
reply brief, pp. 8-9, concerns the participation of UTN faculty 
in various committees of the Regents Plan.

la



Universities from 1969 through 1975 (230 to 233) because 
the increase of 42 black faculty members at the white schools 
was offset by the loss of 39 black faculty from TSU, see 
Richardson principal brief, p. 43, n. 60. There was an 
increase in the number of black faculty in Regents Community 
Colleges from 1 in 1969 to 48 in 1975, DX 11, p. 140. (The 
term "Regents system," as used in Richardson brief, p. 43, 
n. 60, and elsewhere, means Regents University system.)

d) pp. 18-19. Mr. Mark Killingsworth1s regression 
analysis of defendants' computer information was sophisticated 
and controlled various factors in order to determine the effect 
of race on salary (T. Ill 215-222, A. 2288-2293). The fact is 
that the regression analysis showed racial disparities con­
trolling, for example, for faculty rank (see, e,g., T. Ill 
223-227, A. 2293-2297). Defendants had a full opportunity to 
cross-examine Mr. Killingsworth with the assistance of their 
computer experts and did (T. Ill 265-398, A. 2323-2327). The 
lower court properly denied UT's motion to strike because 
Mr. Killingsworth had stated the bases of his analysis, and 
defendants had had a full opportunity to prepare for his 
testimony but failed to (T. Ill 396-398).

2a



2. Brief For Appellee Board of Regents State University 
and Community College System, Tennessee, Case Nos.
77-1622 & 1624, 77-1621 & 1625, 77-1623
a) PP» 11-12. The record facts, supported by citations 

to the record, that the Regents has taken positions at odds 
with the interest of TSU is set forth in Richardson principal 
brief, pp. 27-28. The lower court, for instance, found that 
the Regents agreed to "program allocations [under the Long 
Range Plan that] have, for the most part, followed the wishes 
expressed by the University of Tennessee," 427 F. Supp. at 
657. (Elsewhere the court explained how these program 
allocations were detrimental to TSU's growth and development, 
427 F. Supp. at 653-656, see also Richardson principal brief 
at 16-25.) These facts are not voided merely by the statement 
that "it is . . .  a jurisdictional impossibility for the Board 
to take a position inconsistent with the interests of one of 
its institutions."

b) p. 12. With respect to control of merger, the lower 
court found that "Dr. Berrian testified that the merger should 
take place over a period of years with UT-N supporting TSU and 
TSU gradually taking over the programs offered at UT-N," 427 
F. Supp. at 658, and that "merger under the Board of Regents, 
with UT-N supporting TSU during the transition period, as 
suggested by the witness Dr. Albert H. Berrian, offers the

3a



best prospect for success," 427 F. Supp. at 660, see also 
T. II 780—781, A. 2073. It was to avoid the "built-in con­
flict" between the competing boards of UTN and TSU, and the 
court's conclusion that governance by UT "would mean the 
elimination of TSU as an education institution," 427 F. Supp. 
658, 660, that the two institutions "be merged under the 
governance of the State Board of Regents," 427 F. Supp. at 
661. In fact, TSU's faculty and staff have no more of a 
role than UTN under the Regents plan, see Richardson principal 
brief at pp. 65-66.

c) PP- 12-13. While the Regents Chancellor has general 
supervisory power over Regents institutions, the degree of 
control over such administrative matters as appointment of 
new faculty, library, etc. given to the Regents Chancellor 
under this Regents plan is extraordinary, compare, Regents 
plan (see Richardson principal brief, p. 65), with. Regents 
role in Long Range Plan implementation (see, e.g., T. 1761- 
1762 ) .

d) PP. 13-14. With respect to support for TSU's merger 
given by the Regents, the record is clear that there was no 
such support, supra 1T2 .a.. see also Richardson principal brief, 
PP- 27-28. With respect to inadequate financial support, 
factual record citations are set forth in Richardson principal 
brief, pp. 15-16; these citations demonstrate that TSU has 
been short-changed, as the district court recognized as early 
as 1968, 288 F. Supp. at 943.

4a



3. Brief On Behalf of Appellee, Tennessee Higher Education 
Commission in Nos. 77-1622 & 1624
a) p. 16 n. 17. See, supra, 5l.a.

4. Brief Of Defendants-Appellees The University Of Tennessee, 
Its President, Edward J. Boling, The Board Of Trustees 
Of The University Of Tennessee, The Present Members Of The 
Board Of Trustees, And The Vice-chairman in Nos. 77-1622 & 1624
a) PP. 15-16. With respect to TSU's on-campus 92.5%

black student enrollment: The tentative 1976 enrollment
statistics show that only 463 white students regularly attend 
classes on the TSU campus (T. 1382/ A. 1280), which is 7.5%ofTSU 
on-campus enrollment of 6144 (DX 36 at pp. 1-3, 6, A. 4676-4678, 
4681). This statistic is comparable with the 1975 7% white
on-campus enrollment stated in defendant's February 1976 
Progress Report, 427 F. Supp. at 652, 656, see also DX 11,
pp. 38, 42 & 48, A. 522, 526, 532. The finding of the court 
that "most of TSU's whites are still in the off-campus centers," 
427 F. Supp. at 656, is thus amply supported and not clearly 
erroneous, and indeed, the district court specifically rejected 
the probative value of white enrollment at TSU per se because 
of the existence of the mostly-white off-campus centers, id.

b) pp. 16-17. With respect to the fact that UTN was 
established as an exclusively white extension center of UT 
Knoxville in 1947 and formally barred black students until
1960, the lower court clearly found in 1968 that TSU was the only

5a



institution operated by the State for black students prior 
to 1954 and that "some six years elapsed before racial 
requirements for admission were formally abolished" for 
UTN as for all other historic white institutions, 288 F.
Supp. at 940. In addition, defendants’ available records 
show that the first black student was not admitted to UTN 
until 1965, Response of Defendants to Richardson Intervenors 
Supplemental Interrogatories, June 13, 1974.

c) pp. 17-18. The paragraph at pp. 15-16 of the Richardson 
principal brief, which UT only partially quotes, is fully 
supported by the illustrative record citations given. In 
addition, while TSU was specifically founded as Tennessee's 
black land-grant institution in 1912 pursuant to the 1890 
Morrill Act, it received no portion of federal funds received
by Tennessee for agricultural research until 1967, and only 
1.1% of Morrill Act funds to Tennessee in 1970 (PIX 46,
May 15, 1970 Memorandum To Joint Commission of Legislature, 
pp. 1, 3, A. 3302, 3305). TSU is allocated Morrill Act funds by 
UT, the original white land-grant institution (T. II 282- 
283) .

d) pp. 18-19. The lower court's finding that white 
students have always "overwhelmingly" enrolled at UTN and that 
black students have always "overwhelmingly" enrolled at TSU,
427 F. Supp. at 653, is amply supported by the record, see,

6a



e.g., Richardson principal brief, pp. 15, 18. The court 
could hardly find otherwise in light of statistics showing, 
for example, that from 1968 and 1976 between 85-98% 
of Nashville black undergraduates attended TSU while in the 
same period 90-97% of the non-black Nashville under­
graduates attended UTN, and that common programs have "remained 
predominantly one-race at each institution." The lower court's 
finding is thus amply supported by the record and not clearly 
erroneous.

e) pp. 19-20. The table on p. 18 of the Richardson 
principal brief entitled Racial Predominance in Undergraduate 
Enrollments at TSU and UTN (setting forth percentages of black 
and non-black Nashville undergraduates attending the respective 
schools for several years) is based on Appendix B to the 
Proposed Findings of Fact of the United States (set forth as 
part of Appendix A to the principal brief, p. A82-A83). The 
record sources for Appendix B are clearly stated, and we 
reiterate these sources in the margin.* Moreover, the chart

* 1968-69 - Report to the Court dated 4/1/70 - Table 1.
Report to the Court dated 6/14/71 - Exhibit A.

1970 - Report to the Court dated 6/14/71 - Exhibit A.
1971 - Report to the Court dated 8/1/72 - Table 1.
1972 - Answer of University of Tennessee Nashville to

U.S. Interrogatory 1 (c-h),
April 1973, Appendix A, Table 1«*1.
Answer of C. C. Humphreys to U.S« Interrogatory 1 (c-f).

(Cont *d)

7a



is not inconsistent with underlying UTN 1975 and 1976 
enrollment statistics as the face of Appendix B reveals.

f) p. 20. UT's claim that " [t]here is no evidence in 
the record . . .  that TSU, at any time, 'began to offer evening 
programs at its campus'" is erroneous, see, e.g., T. II 977,
A. 2179.

g) pp. 20-21. With respect to the analogy between 
competition between MSU and UT Memphis and competition between 
TSU and UTN, the court found on the basis of substantial 
support in the record that: "The competition for students 
between UT-N and TSU is paralleled by the situation in Memphis 
several years ago . . .  UT-N and TSU are in competition for 
students just as were MSU and the UT-Memphis Center. With 
TSU's black history and UT's prestige, this competition 
inevitably fosters dualism,"427 F. Supp. at 653, see also 
Richardson brief, pp. 19-20, government's brief, pp. 25-26. 
These findings are not clearly erroneous.

h) pp. 21-22. With respect to UT's evasion of the lower 
court's orders to develop a meaningful desegregation plan, 
the record citations amply support Richardson principal brief, 
pp. 25-27, and the court's opinion at 427 F. Supp. at 656-657. * 1

* (Continued)
1973 - Answer of University of Tennessee Nashville to

U.S. Interrogatory 1 (c-h),
Summer 1974 Update.
Answer of C. C. Humphreys to U.S. Interrogatory
1 (c-f), January 17, 1974.

1974-75 - Defendants' Progress Report, p. 148, 164.
1976 - Defendants' Exhibit #36 and #68.

8a



Moreover, UT is being disingenuous; the quotation on p. 22 
of UT's brief concludes "the Court takes notice that program 
allocations have, for the most part, followed the wishes 
expressed by the University of Tennessee," 427 F. Supp. at 644.

i) PP. 22-24. With respect to the joint UTN-TSU 
engineering program, the finding of the court that it was 
admittedly a failure, 427 F. Supp. at 654, and Richardson 
principal brief, pp. 22-23, are fully supported by the record. 
The lower court had a substantial basis in the record to reject 
UT1s contention that the modified joint program was any better 
than it predecessor, see, e.g., T. 178-184, A. 859-860 (Dr. 
Edward I. Isibor).

j) P- 24. See, supra, 54.d.
k) pp. 25-26. With respect to defendants' assignment 

to TSU of programs with little likelihood of attracting white 
students, Dr. Berrian's statement at T.II 787, that
as to graduate programs "the programs that are at Tennessee 
State University are fundamentally what I would call low-yield 
programs" is not contradicted by his testimony quoted by 
UT at pp. 25-26, nor is Dr. Humphries' testimony at T. 1356,
A. 1263, that " [i]n the long term I don't see that we are going 
to have a tremendous increase of white students from what we 
now have at the university unless we get some different kinds 
of programs at the school" contradicted by his testimony 
quoted by UT at p. 26.

9a



I

%

1. pp. 26-28. With respect to Mr. Mark Killingsworth.'s 
testimony, see Richardson reply brief, p. 18 n. 17. Lastly, 
the court did not decline to give any weight to this specific 
testimony; rather, the court found it "unnecessary to evaluate 
[all] the specific policies and goals contained in the Long 
Range Plan," 427 F. Supp. at 651.

10a