Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Petition for Permission to Appeal and to Expedite

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et a 1 . , ]

]
Third Party Plaintiffs ]

]
VS. ]

3
STATE OF TENNESSEE, et al., ]

3
Third Party Defendants 3

From the District Court 
for the Middle District 
of Tennessee in Cases 
Nos. 2094, 2956

PETITION FOR PERMISSION TO APPEAL PURSUANT TO 28 U.S.C.
§1292(b ) AND TO EXPEDITE THE APPEAL IF PERMISSION IS GRANTED

William R. Willis, Jr.
Marian F. Harrison

WILLIS & KNIGHT 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600

Counsel for Metropolitan County 
Board of Education of Nashville 
and Davidson County, Tennessee, 
et a 1.



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., 

Plaintif fs

VS.

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE, 
et a 1 . ,

Third Party Plaintiffs

VS .

STATE OF TENNESSEE; et al.,

]
]
]
]
]
]
] From the District Court
] for the Middle District
] of Tennessee in Cases
] Nos. 2094, 2956
]
]
]
]
]
]
]
]Third Party Defendants

PETITION FOR PERMISSION TO APPEAL PURSUANT 
TO 28 U.S.C. §1292(b ) AND TO EXPEDITE 
THE APPEAL IF PERMISSION IS GRANTED

PRELIMINARY STATEMENT

On August 29, 1985, the District Court stayed its 

injunction requiring the State of Tennessee and other state 

defendants to fulfill their long-ignored constitutional duty to 

help eliminate the vestiges of state-imposed segregation in the 

Nashville public school system. The stay pending the appeal to



this Court in Kelley v. Metropolitan County Board of Education,

Nos. 85-5794, 85-5837/5838 was entered summarily and without

reasons therefor, in the face of the state defendants' admissions

in their application for stay that they could not meet all of the

usual requirements for a stay of an injunction pending appeal.

On October 4, 1985, the District Court directed the amendment of

its stay order to permit an appeal therefrom pursuant to 28
1

U.S.C. §1292(b). This application for permission to appeal 

seeks an immediate appeal from the District Court's stay order 

which threatens not only the effectiveness of this Court's ulti­

mate decision regarding the state defendants' responsibility for 

desegregation in Nashville, Tennessee, (Kelley, Nos. 85-5794,

8 5-583 7/5 83 8) but also the effectiveness of Nashville's desegre­

gation plan previously ordered by this Court, and the overall 

quality of education for all of Nashville's youngsters.

STATEMENT OF FACTS

On March 25, 1981, the Metropolitan County Board of Educa­

tion of Nashville and Davidson County, Tennessee, et al. 

(hereinafter Metro) moved to include the State of Tennessee, the 

Governor of Tennessee, and other state officials (hereinafter the

1
In addition, the petitioners have filed a "Petition to 

Vacate Stay Pursuant to 28 U.S.C. §1651 and to Expedite Appeal" 
in case number 85-5837/5838, as well as an original appeal from 
this stay in case number 85-5883, because the appropriate route 
for review of this stay is in question. (See discussion infra at 
pp. 7-8 ) .

2



state defendants) as third party defendants in this desegregation 

action. The gravamen of the third party complaint was that the 

state defendants had an unfulfilled affirmative duty to remove 

the remaining vestiges of state-imposed segregation in the 

Nashville public school system. This motion was granted by the 

District Court, and a subsequent motion by the state defendants 

to vacate the order making them parties was denied by the 

District Court in a memorandum opinion. During the critical time 

when the District Court and this Court considered various dese­

gregation plans for use in Nashville after the 1971 plan proved 

ineffective over time, the state defendants sat mute, never 

offering counsel, advice, ideas, or assistance during the 

planning process, nor appearing in the appellate hearings when

this Court found that vestiges of state-imposed segregation 
2

remained and set forth the general parameters of the current 

plan.

While the plan ordered by this Court in 1982, and approved
3

by the District Court, was being implemented for the first 

time, Metro and the state defendants were engaged in extensive

2
After setting forth in detail some of the significant 

Tennessee statues and constitutional provisions imposing segrega­
tion and thwarting desegregation, this Court found: "The effects
of state-imposed segregation have yet to be eradicated."
Kelley v. Metropolitan County Board of Education, 687 F.2d 814, 
815-16 (6th Cir. 1982), cert . denied, 45 9 U.S. 1183 (1983 ).

3
Id., Kelley v. Metropolitan County Board of Education,

572 F.Supp. 317 (M.D. Tenn. 1983).

3



discovery concerning the state defendants' responsibility for 

desegregation in Nashville. Upon completion of discovery, cross­

motions for summary judgment were filed by Metro and the state 

defendants. On August 14, 1985, the District Court granted 

Metro's motion for partial summary judgment, enjoining the state 

defendants from refusing to fulfill their affirmative responsi­

bility to eliminate the remaining vestiges of state-imposed 

segregation in Nashville. (Exhibit A.)

In its memorandum opinion on August 14, 1985, the District 

Court found upon the undisputed record that the state defendants 

had abdicated their affirmative responsibility after Brown v.

Board of Education, 347 U.S. 483 (1954) (Brown I), 349 U.S. 294

(1955) (Brown II), to desegregate their local school systems.

The Court found that rather than actively seeking desegregation, 

the state defendants and their predecessors had adopted a hands- 

off attitude, passing the responsibility for constitutional
4

compliance in the desegregation arena to local school systems, 

in stark contrast to their extensive involvement in and control 

over local school systems in all other areas of local school life.

4
Prior to Brown, segregation of local school systems had 

clearly been a state responsibility through statutes and consti­
tutional provisions. These statutes and provisions remained on 
the books for many years after Brown II, as this Court recently 
noted. Kelley v. Metropolitan County Board of Education, 687 
F.2d 814, 815 (6th Cir. 1982) , cert, denied, 459 U.S. 1183 
( 1983) .

4



While proclaiming this lack of involvement and responsibility, 

the state continued to pass statutes and resolutions aimed toward 

thwarting local school desegregation efforts. Indeed, at the 

same time Tennessee Attorney General McCanless was proclaiming no 

state responsibility after Brown II, the Governor commissioned 

several lawyers to draft statutes, which, after appearances by 

General McCanless as amicus curiae in this action, were held to 

foster unconstitutional segregation. Kelley v. Board of 

Education of the Nashville City Schools, 270 F.2d 209, 230 (6th 

Cir.) cert. denied, 361 U.S. 924 (1959).

Based upon its detailed findings of undisputed fact, the 

District Court enjoined the state and its officials from refusing 

to carry out their affirmative constitutional responsibilities to 

eliminate the vestiges of state-imposed segregation in Nashville. 

To insure compliance with its decision and to meet critical needs 

which are a part of Nashville's desegregation remedy, the Court 

ordered the state defendants to participate in the desegregation 

plan to the extent of 60% of the direct costs attributable to 

desegregation from the date the state defendants became parties 

and continuing on an annual recurring basis. The Court then 

stated that, absent agreement, the case would be referred to a 

Master for determination of the specific extent of the state 

defendants' participation. (Exhibit A.)

5



On August 29, 1985, without comment, the District Court
5

stayed its injunction pending appeal. (Exhibit B). In issuing 

its stay, the District Court not only postponed until the deci­

sion on appeal the state defendants' long awaited and much-needed 

participation in the current desegregation plan, it also stayed 

the fact-finding and discovery process before the Master. This 

delay of further proceedings in the District Court promises to 

further delay the state defendants' recognition of their long- 

avoided constitutional duty after this appeal is decided, which 

may adversely effect the desegregation process. The District 

Court ordered the amendment of its stay order on October 4, 1985, 

to include the requisite language for an immediate appeal under 

28 U.S.C. §1292(b ). (Exhibit H).

This stay was granted three days after the state applied 
for tne stay. Pursuant to the Local Rules of the District Court, 
Metro filed a motion for reconsideration of the stay which had 
been granted before there had been an opportunity to respond to 
the state's application. This motion was denied without comment 
on September 16, 1985, and by order entered September 2 7, 1985, 
the Court denied Metro's motion to vacate the stay premised on 
the state's position taken on appeal. (See discussion infra at 
pp. 15-16, regarding state defendants' position on appeal.) The 
District Court's orders of September 16, 1985, and September 27, 
1985, are submitted herewith as Exhibits C and D respectively.
The state defendants'
as Exhibit E, 
submitted as 
submitted as

Metro's 
Exhibit F 
Exhibit G

application for stay is submitted herewith 
motion for reconsideration of the stay is 
and Metro's motion to vacate the stay is

6



ISSUE TO BE PRESENTED FOR REVIEW

The issue regarding the stay to be presented for review if 

permission to appeal is granted as follows:

1. Whether the District Court erred in staying its 

injunction requiring the state defendants to finally meet their 

affirmative constitutional duty to eliminate the vestiges of 

state-imposed segregation when the District Court:

a) did not issue any findings on the stay;

b) could not have found the requisite elements for 
stay present;

c) threatened not only the public interest, and the 

desegregation process in Nashville, but also the 

effectiveness of this Court's eventual judgment on

the substantive appeal by issance of the stay.

REASONS FOR GRANTING PERMISSION TO APPEAL

I . The appropriate procedural mechanism for review of the 

stay order is in question, but immediate review is critical to 

the public interest, the desegregation remedy in Nashville, and 

to the effectiveness of this Court's decision on the substantive 
appeal.

Some courts have held that stays amounting to denials of 

injunctive relief are appealable as a matter of right. Fuchs v. 

Hood Industries, Inc., 590 F.2d 395, 396 (1st Cir. 1979). Other 

courts nave held that an application for extraordinary relief 

pursuant to 28 U.S.C. §1651 is the most appropriate avenue for

7



review of a lower court's stay order. Coleman v. Paccar, Inc.,

424 U.S. 1301 (1976); Ohio Environmental Council v. United 

States . 565 F.2d 393, 396 ( 6th Cir. 1977). Finally, some courts 

have advocated or permitted the use of interlocutory appeals 

pursuant to 28 U.S.C. §1292(b) as an appropriate procedural 

mechansim when immediate review of a stay order is warranted. 

Lynch v. Johns-Manvi1le Sales Corp., 701 F.2d 42 (6th Cir. 1983); 

Lear Siegler , Inc, v. Adkins, 330 F.2d 595, 598 ( 9th Cir.

1964); PPG Industries Inc, v. Continental Oil Co., 478 F.2d 674, 

676 ( 5th Cir . 1973 ) .

In light of the critical issues associated with the

District Court's issuance of the stay and its potential impact

upon Nashville's desegregation plan and this Court's eventual

judgment in Kelley, Nos. 85-5794, 85-5837/5838 (see discussion

infra) , Metro has utilized all three routes to obtain
6

appellate review of the District Court's stay order. Metro 

respectfully reguests that this Court determine which procedural 

mechanism for review is most appropriate in this case so that 

these critical issues may be decided in an expeditious manner.

6
See n. 1, supra. It should be noted here that an exten­

sive appendix was filed in conjunction with Metro's "Petition to 
Vacate Stay Pursuant to 28 U.S.C. §1651 and to Expedite Appeal" 
in cases nos. 85-5837/5838, to which this Court is referred for 
further documentation from the District Court should it be deemed 
necessary. The text of this application for an extraordinary 
writ, without the appendix, is submitted herewith as Exhibit I 
for the Court's convenience.

8



II. The District Court could not have found that the

state defendants had met their burden of demonstrating the 

presence of the necessary elements for a stay of injunction 

pending appeal.

The District Court issued no reasons in any of its 

decisions to stay the injunction pending appeal or to refuse 

reconsideration of the stay. (Exhibits B, C, D). This failure 

to state its reasons renders the stay suspect at best; at worst 

it demonstrates clear error and abuse of discretion. In this 

instance, a possible effect of the stay is the ultimate denial of 

injunctive relief which would otherwise require specific findings 

pursuant to Rule 52, Federal Rules of Civil Procedure. (See 

discussion infra at pp. 15-16, regarding state's position on 

appeal.) In such a case, where Rule 52 may apply and require 

findings, tne absence of such findings constitutes a per se abuse 

of discretion. Cf. Coleman v. Paccar, Inc., 424 U.S. 1301, 1305 

(1976) (recognizing that the application of a statute or rule 

requiring recitation of findings may present basis for reversal 
of stay).

Even if the District Court were not required to make 

specific findings in this case when the stay was granted, the 

record demonstrates unequivocally that the requisite elements for 

stay of an injunction pending appeal have not been met nor can

tney be met. That is, the record demonstrates (a) that no harm

will come to the state defendants if a stay is not granted; (b)

that the stay is likely to harm both Metro and the public

9



substantial likelihood of prevailing on the merits of this case.

A. The state defendants have admitted that further
proceedings at the District Court level will cause 
the* no irreparable harm.

interest; and (c) the state defendants cannot demonstrate a
7

In their memorandum in support of their application for 

stay before the District Court (Exhibit E), the state defendants 

admitted that they would not suffer harm if proceedings to deter­

mine the degree of their participation in the desegregation 

remedy were permitted to continue before a Master. (Exhibit F.) 

Thus, at minimum, the District Court could not have found that 

further proceedings at the District Court level would be harmful 

to the state defendants. Metro respectfully submits that the 

full implementation of the Court's order, even during the appeal, 

will cause no irreparable harm. In the unlikely event that the 

Master's process could be completed prior to the time the substan­

tive appeal is determined in Kelley, Nos. 85-5794, 85-5837/5838 

in this Court, the state defendants could presumably recoup any 

payments made to Metro, if necessary, through reduction in 

Metro's budgetary allotment from the state. Alternatively, at

7
"Cl]t generally is required that (a) the applicant make a 

strong showing that he is likely to succeed on the merits of the 
appeal; (b) the applicant establish that unless a stay is granted 
he will suffer irreparable injury; (c) no substantial harm will 
come to other interested parties; and, (d) a stay will do no harm 
to the public interest." 11 Wright & Miller, Federal Practice 
and Procedure, §2094at316.

10



that time, a stay of execution of the final judgment could be 

sought if the requisite elements were shown to be present.

B. Further delay threatens harm to Metro, 
the public interest, and Nashville's 
desegregation plan.

While no irreparable harm will come to the state defen­

dants from the denial of a stay, the record demonstrates that 

further delay in implementing the state's participation threatens 

not only Metro but also the public interest and the desegregation 

plan ordered by this Court. The record indicates that every day 

that Metro is forced to shoulder the desegregation burden alone 

is a day that threatens both the desegregation plan now in effect 

and the quality of educational opportunity for all of the city's 

youngsters.
These problems Metro is facing in implementing the dese­

gregation plan along with its regular educational programs were 

recognized specifically by the District Court in its memorandum 

of August 14, 1985. (Exhibit A.) The memorandum states as follows

[State participation in the desegregation 
remedy will] permit Metro to offer those 
remedial programs which currently are part 
of a comprehensive remedial plan but 
presently are not offered because of insuf­
ficient funding. The effects of past 
discrimination continue to be manifested in 
many school age black children in terms of 
level of performance on standardized 
testing, development of effective communi­
cation skills, and the ability to earn high 
school and higher education degrees. The 
present desegregation plan seeks to amelior­
ate these conditions. The payment of state 
funds to finance the remedial programs seek 
to improve the educational opportunities for

11



black children so as to permit them to 
achieve a level of academic performance that 
reasonably could be expected had the black 
population not have been subjected to long 
term segregation in public education.

Exhibit A, p. 26. See also affidavit submitted with Metro's

motion to vacate stay in the District Court, Exhibit G.

With these findings and the undisputed record before the 

Court, it was impossible for the District Court to find that the 

stay would not harm the public interest, the Metropolitan 

Nashville Board of Education, or the desegregation plan ordered 

by this Court.

C. The state defendants have not shown they
are likely to succeed on the merits of this 
appeal, and they cannot do so.

The state defendants likewise did not demonstrate to the 

trial court, nor could they, that they were likely to succeed on 

the merits of this appeal. (Exhibit E.) The state defendants 

have not been able to find any case wherein a state, which bears 

primary responsibility for public education, which mandated 

segregation prior to Brown, which passed segregative statutes and 

resolutions after Brown, and which maintained a stated hands-off 

policy regarding local school desegregation after Brown in sharp 

contrast to state policy elsewhere, has been absolved of respon­

sibility for desegregation and desegregation-related expenses.

To the contrary, the closest case to Nashville is Liddell v.

State of Missouri , 731 F.2d 1294, 1305-09 (8th Cir. 1984), cert. 

denied, ____ U.S. ____ , 105 S.Ct. 82, 83 L .Ed.2d 30 (1984),

12



wherein the state of Missouri was required to bear the lion's
8

share of the desegregation remedy in St. Louis, Missouri. 

Furthermore, while Missouri has been required to pay many 

millions of dollars in desegregation costs during the pendency of 

numerous appeals, to Metro's knowledge no stay of injunction has 

been granted.
The state defendants have repeatedly relied upon Banas v.

Dempsey, 742 F.2d 277 (6th Cir. 1984), for the proposition that

relief in this case is barred by the Eleventh Amendment, and

their motion for stay also relies upon this case as the corner-
9

stone for their argument concerning the merits of this case. 

Specifically, the state defendants argued before the District 

Court that the stay should be granted because a certiorari 

petition has been granted by the Supreme Court in Banas.

(Exhibit F. )

8
In both Missouri and Tennessee, state statutes and 

constitutional provisions mandating segregation were enforced at 
the time of Brown, and in both cases these statutes and 
constitutional provisions were not stricken until many years 
after Brown. See Adams v. United States, 620 F.2d 1277, 1280 
(8th Cir. 1980). However, never is there in any of the St. Louis 
opinions any indication that the state of Missouri continued to 
pass unconstitutional statutes and resolutions after Brown, 
nor is there a strong indication that Missouri's treatment of 
desegregation in its public school systems is any different from 
its treatment of other issues.

9
The state defendants also make a brief reference to 

Penick v. Columbus Board of Education, 583 F.2d 787, 818 (6th 
Cir. 1978), stating that the District Court's findings "do not 
seem specific enough to meet the criteria of the Sixth Circuit." 
(Exhibit E). The District Court's detailed findings and the 
undisputed record in this case demonstrate clearly that there is 
no likelihood the state defendants will prevail on this point.

13



The District Court's opinion of August 14, 1985, readily 

distinguishes Banas from the case before this Court, and elimi­

nates the possibility that Supreme Court action may directly bear 

upon this case. (Exhibit A.) Here, contrary to Banas, state 

officials continue to deny their affirmative duty to rid the 

Metropolitan Nashville Public School system of the effects of 

prior state unconstitutional activity. As the District Court 

found, this refusal constitutes ongoing unlawful conduct, just as 

such refusal would constitute ongoing unlawful conduct on the 

part of Metro or any other entity of state government which 

refused to fulfill its affirmative obligations. Banas was not a 

desegregation case, and there was no such ongoing failure to 

fulfill an unmet affirmative responsibility at issue in Banas. 

Rather than Banas, the rule promulgated by this Court and the

Supreme Court in Milliken v. Bradley, 540 F.2d 229, 244 (5th Cir.
10

1976), aff'd, 433 U.S. 267, 289-290 (1977), should apply and 

the Eleventh Amendment should pose no bar to the order requiring 

the state defendants to aid in the desegregation process.

10
See also Liddell v. State of Missouri, 731 F.2d 1294,

1308 (8th Cir. 1984), n. 13 (order requiring state defendants to 
pay 1/2 of the annual cost of the local desegregation remedy held 
to be no violation of the Eleventh Amendment); Penick v.
Columbus Board of Education, 663 F.2d 24 (6th Cir. 1981), cert . 
denied, 455 U.S. 1018 (1982) (Ohio state defendants held jointly 
liable for intentional segregation); United States v. Board of 
School Commissioners of the City of Indianapolis, 677 F.2d 1185 
(7th Cir. 1982) (order requiring Indiana to pay the entire cost 
should apply, and the Eleventh Amendment should pose no bar to 
of the Indianapolis desegregation remedy held not violative of 
the Eleventh Amendment).

14



Ill. The stay not only threatens irreparable harm to

Metro and its school children, it also potentially threatens the 

effectiveness of any order issued by this Court.

The state defendants' pre-argument statement of issues on

appeal in Kelley, Nos. 85-5794, 85-5837/5838 (Exhibit J) lists

as one of the issues the state's position that the Eleventh Amendment

bars any recoupment of desegregation costs previously incurred by

Metro from 1981 (when the state defendants were made parties) to

August 14, 1985 when the District Court found the state liable.

(Exhibit A.) While Metro believes that the Eleventh Amendment
11

poses no such bar, if the state defendants prevail in this

11
The award of accrued costs is not a new idea in 

desegregation cases. In other cases in this circuit, where 
accrued costs of desegregation have been addressed, they have 
been ordered. For example, in Penick v. Columbus Board of 
Education, 519 F.Supp. 925, 942 (S.D. Ohio 1981), aff'd, 663 F.2d 
24 (6th Cir. 1981), the court "[o]rdered that the state defen­
dants share equally with the Columbus defendants all expenses 
incurred or which will be incurred in remedying the unconstitu­
tional racial segregation found in this case in the Columbus 
school district." The order was not disturbed on appeal to the 
Sixth Circuit. In Reed v . Rhodes, the District Court entered a 
similar order, also affirmed on appeal:

At the very least, therefore, the state 
defendants must, except where statutes, 
legislation, or normal practice provide for 
greater reimbursement, share jointly and 
severally in the cost of implementation of 
desegregation on a continuing basis, and 
must reimburse the local defendants for the 
state's share of desegregation-related 
expenses incurred so far.

500 F.Supp. 404, 426 (M.D. Ohio 1980), aff'd , 662 F.2d 
1219 (6th Cir. 1981). Also, in United States v. State of 
Arkansas. LR-72-C-290 (E.D. Ark. December 28, 1984), the District

15



argument but are deemed responsible for participation on an

annual recurring basis, the delay caused by the stay will render

largely ineffective the District Court's order and this Court's

review of that order through the elimination of several years of
12

much needed and long awaited state aid. The state's position 

on appeal thus increases the danger of irreparable harm "impair­

ing this Court's ability to provide full relief" upon appeal. 

This threat to the effectiveness of the Court's jurisdiction 

provides a definite need to review the stay order by whatever 

means are available to this Court.

IV. Any appeal of the stay order should be expedited.

Should permission to appeal be granted pursuant to 28 

U.S.C. §1292(b), Metro respectfully submits that this case is a

11 Continued
Court approved a Master's report reguiring reimbursement of 
expenditures which had directly resulted from the court's 
desegregation order plus interest from the date of the court's 
liability determination. This order included legal expenses from 
1972, capital costs already expended, moving costs already 
expended, transportation costs already expended, and other costs 
already expended which were deemed to be a direct result of the 
court order. (App., 244-254 to Petition to Vacate Stay Pursuant 
to 28 U.S.C. §1651) .

12
effect 
Court 
consti 
annual 
will h

In this 
iveness of 
of Appeals 
tutionally 
recurring 

ave been 1

instance, the granting 
the eventual judgment, 
finally decides in 198 
liable for desegregati 
basis, three years of 

os t.

of a stay threat ens the
If, for exampl e , the

8 that the state is
on expens es only on a n
needed state par tic ipation

16



13
particularly appropriate one in which to expedite the appeal. 

Unless the stay is reviewed in an expeditious manner, there will 

be no point in such review. A speedy review and reversal of the 

stay will insure continued effective implementation of the 

desegregation plan in Nashville, Tennessee, which was ordered by 

this Court in 1982. Kelley v. Metropolitan County Board of 

Education, 687 F.2d 814 (6th Cir. 1982).

CONCLUSION AND RELIEF REQUESTED

For all of the foregoing reasons, the Metropolitan County 

Board of Education of Nashville and Davidson County, Tennessee, 

et al., hereby respectfully request that pursuant to 28 U.S.C. 

§1292(b) and Rule 5, Federal Rules of Appellate Procedure, that 

permission be granted to appeal from the District Court's 

granting of a stay of its injunction pending appeal. Should such 

permission be granted, Metro additionally requests that such 

appeal be expedited.

13
There is no procedural or technical reason why the 

District Court's stay order could not be reviewed in an expedi­
tious manner, since there is no significant record or transcript.

17



Respectfully submitted,

WILLIS & KNIGHT

By:
W i l l i a m  R _ W i l l i s  , Tr

By:

&
215 Second Avenue North 
Nashville, TN 37201
Attorneys for Third Party Plaintiffs 

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the fore­

going document has been forwarded to Mr. Stephen Nunn, Assistant 

Attorney General, 450 James Robertson Parkway, Nashville, TN 

37219; Mr. Theodore Shaw, NAACP Legal Defense Fund, 99 Hudson 

Street, 16th Floor, New York, NY 10013; and Mr. Avon Williams, 

Attorney for Plaintiffs, 203 Second Avenue North, Nashville, TN

3 72 01 on of October, 1985

WILLIS & KNIGHT

By:

18



EXHIBITS

EXHIBIT A 

EXHIBIT B

EXHIBIT C

EXHIBIT D 

EXHIBIT E

EXHIBIT F 

EXHIBIT G 

EXHIBIT H

EXHIBIT I 

EXHIBIT J

- Order of the District Court dated August 14, 1985 
granting Metro's motion for partial summary judgment

- Order of the District Court dated August 29, 1985 
granting the state defendants a stay of injunction 
pending appeal

- Order of the District Court dated September 16, 1985 
denying Metro's motion to reconsider order granting 
stay

- Order of the District Court dated September 27, 1985 
denying Metro's motion to vacate order granting stay

- State defendants' Motion for and Memorandum in 
Support of Stay of Injunction and Order Pending 
Appeal

- Metro's Motion to Reconsider Order Granting Stay

- Metro's Motion to Vacate Order Granting Stay

- Order of the District Court dated October 4, 1985 
granting Metro's Motion to Amend Order of August 29, 
1985 to Permit Appeal Pursuant to 28 U.S.C. §1292(b)

- Metro's Petition to Vacate Stay Pursuant to 28 U.S.C. 
§1651 and to Expedite Appeal

- State defendants' Pre-Argument Statement of Issues on 
Appeal



8 - / ¥ -  2 S "

O F F I C E  O F  T H E  C L E R K

M I D D L E  D I S T R I C T  O F  T E N N E S S E E  
P O O  U N I I T L 3  I T A 1 C 3  C O U R T H O U S E  

N A S H V I L L E .  T E N N E S S E E  3 7 2 0 3
615-251-7178

U n i t c d  S t a t e s  d i s t r i c t  C o u r t

DATE* AUG 1 4 1335

RE: 2094, 2956
Judge Wiseman

ENCLOSED IS A COPY OF THE FOLLOWING:
ORDER(S )

AUG 1 4 1335 „ . . ,
signed by the Judge on ____________ ___  and entered on the docket
by the Clerk on AUG j ̂  1985 in the above styled civil action.

Enclosure

xc: Avon Williams, Jr., Esquire
Richard H. Dinkins, Esquire 
James M. Nabrit, III, Esquire 
Theodore M. Shav, Esquire 
Bill Lann Lee, Esquire 
William R. Willis, Jr., Esquire 
Marian F. Harrison, Esquire
R. Stephen Doughty, Deputy Attorney General 
Stephen Nunn, Asst. Attorney General

CASE NOTICE NO. ___________ 51

EXHIBIT A
t-nnii n»Br>»TMMirv ru»mvr»



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION
R EC EIV ED  FOR E N T R Y

-fy ___ m
ROBERT W. KELLEY, et aL )

)
v. )

)
METROPOLITAN COUNTY BOARD OF ) 
EDUCATION OF NASHVILLE & )
DAVIDSON COUNTY, TENNESSEE, )
et al., )

)
v. )

)
STATE OF TENNESSEE; )
LAMAR ALEXANDER, Governor of the ) 
State of Tennessee; )
ROBERT L. MCELRATH, )
Commissioner of Education; and )
STATE BOARD OF EDUCATION )

NOS. 2G94, 2956

MEMORANDUM

The City of Nashville and surrounding Davidson County have struggled with 

desegregation since 1956. Social and political turmoil created by the issue have made 

the process particularly arduous—and in recent years expensive. Between 1971 and 

19S2, Metropolitan Nashville and Davidson County [Metro] spent approximately 

$20,000,000 to desegregate its public schools, with an estimated annual recurring cost

(as of 1982) of $6,000,000.
~0

Until today, Metro Nashville has gone it alone. The State of Tennessee has 

viewed desegregation strictly as a local matter. The Court now rules that State officials 

shall be enjoined from further refusing to carry out their affirmative, continuing duty 

to eliminate the vestiges of segregation which Tennessee’s own constitution, statutes, 

policies and practices created and maintained during the last one hundred years. Pursuant

AUG i 4 1935



to the injunction, the Court orders the State to assume sixty percent (60%) of the costs 

of the desegregation program in Metropolitan Nashville and Davidson County.

The Court grants the motion for partial summary judgment of third party plaintiff 

Metropolitan County Board of Education of Nashville and Davidson County. Fed. R. 

Civ. P. 56.

Jurisdiction

The Court proceeds under 28 U.S.C. § 1343 and 2201 to adjudicate issues arising 

under the Civil Rights Acts, 42 U.S.C. § 1983 and 1985. The Eleventh Amendment does 

not bar the action since third party plaintiffs seek to enjoin state officials from refusing 

to conform their conduct to well established constitutional standards. Ex parte Young, 

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court is vested with legal 

authority to decide the merits of the claims against these officials and to issue such 

ancillary orders as equity deems necessary to enforce the injunction. Bradley v. Milliken, 

540 F.2d 229, 245-46 (6th Cir. 1976), aff'd, 433 U.S. 267 (1977).

Facts

This case has proceeded before this Court since 1956. The facts are long and 

detailed. For purposes of the current issue, the Court confines its consideration to 

the conduct of state and county officials in carrying out the mandate of Brown v. Board 

of Education, 347 U.S. 483, 74 S.Ct. 686, SS L.Ed. 873 (1954), which ordered the end 

of state-imp>osed segregation and directed states to desegregate public schools "with ail 

deliberate speed."*

1 A more detailed review of the history of this case appears in an earlier opinion 
by this Court. See Kelley v. Board of Education, 4S2 F. Supp. 167 (M.D. Tenn. 1980).

-2-
A UG 1 * mot



The issue presented is whether the undisputed facts demonstrate that the State 

of Tennessee is o "constitutional wrongdoer” culpable for the continuing effects of 

state-imposed segregation and is therefore subject to an injunction and ancillary order 

directing the State to share in the costs of desegregating Metro schools.

The Thirteenth, Fourteenth and Fifteenth Amendments represent the end of a 

century of slavery throughout the South. Despite Congress’ enactment of the Civil 

Rights Acts, 42 U.S.C. § 1931, et seq., to protect blacks against unfair treatment by 

state officials and to assure them the rights and privileges guaranteed to all persons 

within the United States, enforcement of the Jim Crow laws through the mid-1060's 

diminished the rights of blacks, segregating them from other American citizens and 

limiting their opportunities to obtain quality education, housing, and medical care.

In 1954 the Supreme Court, recognizing the inequitable position of the nation’s 

minorities, declared an end to the "separate, but equal" policies practiced by many 

states. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). 

In 1955, Chief Justice Warren, speaking for the Court in Brown v. Board of Education, 

349 U.S. 294, 299-301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), directed school 

authorities to devise and implement policies to assure the admission of all students to 

public schools on racially nondiseriminatory bases at the earliest practicable date.

The Brown decision had an immediate impact in Tennessee. At the time Brown

was decided, the Tennessee Constitution mandated separation of the races in public

schools. Article XI § 12 provided in relevant part:

No school established or aided under this section shall allow 
while and negro children to be received as scholars in the 
same school.

The Tennessee Supreme Court struck down the. provision as unconstitutional in 1956. 

Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1958). The State of Tennessee held 

four constitutional conventions between 1959 and 1978. Despite the Brittain Court's 

ruling, the provision was not removed from Tennessee’s official books until the fourth 

convention in 1978. AUG j ^-3-



The Brown 11 directive created great apprehension throughout many communities. 

Local school boards were particularly concerned about their responsibility to desegregate 

schools. In response to numerous requests for advice and direction, Attorney General 

George McCanless issued an opinion letter defining the State's legal responsibility in 

implementing the Brown II mandate and that of the local school boards. The June 16, 

1955, letter states:

Under the Code of Tennessee the management of the public 
schools is solely the business of the local school beards.
These boards, within the limits of applicable law, determine 
all of the local school problems. This has been the law since 
the origin of the public school system in Tennessee and is 
the lav/ today.

Under this state of the lav/ it is the responsibility of each 
local school board to determine for itself the v/ay in which it 
is going to meet the problem of desegregating the schools 
under its jurisdiction.

Each board must determine for itself, in light of ell existing 
applicable circumstances, (physical, fiscal, sociological, 
transportation problems, etc.) when, where, how and to what 
degree, the schools under its jurisdiction are to be 
desegregated. This imposes upon each board the duty of 
considering for itself its own course of action.

Local school-boards which are sued by negroes seeking 
admission to schools under their jurisdiction must be prepared 
to defend their own action determining the manner in which 
their schools shall be desegregated. It will be necessary for 
legal counsel for defense of such suit to be provided by the 
county, the city, or special school district involved. While 
the office cf the Attorney General is aware of the problems 
that will confront the school boards arid is sympathetic with 
their problems, the office can do no more than to advise with 
representatives of the boards with respect to these problems 
as they arise. Under the Constitution and the statutes of 
Tennessee, the office of the Attorney General is limited to 
representation of the state and of state officials with respect 
to state revenue and other state matters. Counties, cities, 
and special districts have always been required by law to 
provide their own legal counsel in matters affecting them, 
and this has not been changed because of the desegregation 
opinion; however, within the limits of our ability and to the 
extent permitted by the most favorable interpretation of the 
statutes defining and regulating our duties, we stand ready

AUG
-4-

1 4 1585



to furnish such advice and guidance as under the circumstances 
we can.

While, as indicated above, the State Department of Education 
has no legal responsibility to determine the manner in which 
the segregation problem will be dealt with in each school 
district, there is much the Department can do by way of 
correlation of information and other tilings which will occur 
to you as the responsible head of that Department. As a 
result of conferences with you I know that you intend to 
have the Department of Education do all that it can within 
the framework of existing law to assist local school boards 
in the solution of their heavy and vexing proolems.

The McCanless opinion letter established the State’s policy to keep out the 

politics of desegregation, leaving local communities to grapple with the issue. The 

State asserts in its brief that the McCanless letter represents the State of Tennessee's

policy on desegregation which continues today. Third Party Defendant's Motion for 

Summary Judgment, Memorandum at 7 (filed December IS, 1S84).

The plaintiffs in this case filed their complaint on September 23, 1955. The 

State was not named as a defendant.

Despite General McCanless' 1S55 statement that desegregation was purely a "local 

school problem," in January of 1S57, the Tennessee legislature passed the parental 

preference statutes permitting "voluntary segregation" of the races in public schools.

T.C.A. § 49-3704 (1357); see_ Transcript of Debate on House Bill 29 (1957), Exhibit D, 

Third Party Plaintiff's Motion for Summary Judgment (filed 12-16-34). In September of 

1957, this Court struck down the parental preference statutes; the holding later was 

affirmed by the Sixth Circuit. Kelley v. Board of Education, 270 F.2d 209, 230 (6th 

Cir.), cert, denied 261 U.S. 924 (1959). Ignoring the ruling, in December of 1957, the 

Nashville School Board submitted a desegregation plan to this Court grounded on the 

parental preference statute and the principles of "voluntary desegregation." This Court

disapproved of the plan.

-5-
^ 6  1 J JQftf



In 1960, a separate suit was filed seeking the desegregation of Davidson County 

schools. Subsequently, in 1963, that suit was consolidated with the original Nashville

desegregation suit.

In 1971, Judge Morton entered a comprehensive order directing the desegregation 

of Metro Nashville and Davidson County schools. Kelley v. Board of Education, Nos. 

2094, 2956, at 6 (M.D. Tenn. June 28, 1971); see also Kelley, 492 F. Supp. 167 (M.D. 

Tenn. 19S0). The order constitutes a watershed event in this litigation, finding that 

the separation of races in the public schools was the result of a policy of de jure 

segregation. See Kelley v. Board of Education, 687 F.2d 814, 815-16 (6th Cir. 1882). 

During 1971, this Court increasingly became concerned over Metro’s "half hearted" 

efforts to devise and implement an effective program to desegregate its public schools. 

See 492 F. Supp. 167, 171. Ultimately, the Court found Metro to have failed to act in 

good faith. See 687 F.2d at 816.

While Metro dragged its feet, the State of Tennessee did nothing to facilitate 

the desegregation process. In 1972 the legislature passed a bull providing that if a 

local school board voluntarily adopted a transportation plan aimed at achieving racial 

balance, the governor was authorized to order the withholding of ell state funds from 

the local school board. "T.C.A. § 49-6-2101(0 (1883). This is the law today. During 

the early 1970’s, State officials also adopted a number of anti-busing resolutions.

The State of Tennessee along with a number of State officials were joined as 

defendants in this case in 1981. Twenty-six years had elapsed since the filing of the 

original complaint, and ten years from Judge Morton's entry of the 1971 comprehensive 

order. The Metropolitan County Board of Education of Nashville and Davidson County, 

Tennessee now seek (1) an injunction prohibiting the State from continuing to refuse 

to participate in the desegregation process and (2) ancillary oroers directing the Slate 

to provide funds to assist Metro in carrying on the desegregation plan ordered by this 

Court.
-6-

/UiG 1 /<



Issues

The State asserts three principal propositions which they argue preclude issuance 

of the relief sought'by the third party plaintiffs.

1. The State is not now and has not been a "constitutional wrongdoer." That is, 

the State claims that it has committed no post-Brown acts that have adversely affected 

desegregation in Nashville. Moreover, the State claims that the exercise oi federal 

jurisdiction over Nashville and Davidson County schools has made itate intervention into 

the local desegregation program inappropriate and, as such, has absolved the State of 

any affirmative duty that may have required them to participate in the elimination of 

vestiges of state-imposed segregation.

2. The Eleventh Amendment bars the award of retrospective or prospective 

relief against the state.

3. Plaintiffs are barred from relief by operation cf both the statute of limitations 

to the equitable doctrines of laches and unclean hands.

Discussion

A. The State of Tennessee is Obliged to Eliminate the Vestiges of State-Imposed

Segregation.

The State of Tennessee asserts that it cannot be held responsible for the costs

of desegregating Metro schools because, although admittedly a historical force imposing 

mandatory segregation, it has been innocent of any culpable conduct since the 1954

decision in Brown. The State argues that only upon a showing of "direct impact" of 

its policies or practices—either in maintaining segregation or in inhibiting the 

desegregation efforts—can the State be implicated and thereby held responsible for 

desegregating Nashville's schools.

This Court views the State's responsibility quite differently from the view adopted 

by state officials. A state is obliged to do more than merely abandon its prior

-7-
AUG i / iqqc-,



discriminatory conduct. Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99

S.Ct. 2971, 61 L.Ed.2d 720 (1979) (Dayton II). A state which initially creates a dual 

system of education for its citizens has a continuing, affirmative duty to eradicate all 

the lingering effects of its pro-segregation efforts. Reed v, Rhodes, 500 F. Supp. 4G4, 

424 (N.D. Ohio 1980), aff'd 662 F.2d 1219 (6th Cir. 19S1) cert, denied, 455 U.S. 1018 

(1982); United States v. State of Missouri, 363 F. Supp. 739, 747 (E.D. Mo. 1973), aff'd 

in relevant part, 515 F.2d 1365 (Stn Cir. 1975), cert, denied, 423 U.S. 951 (1975); Liddell 

v. Board of Education of City of St. Louis, 491 F. Supp. 351, 359 (E.D. Mo. 1980) 637 

F.2d 643 (8th Cir.), cert, denied 454 U.S. 1081 (1981) (subsequent citation history 

omitted). Contrary to the position of the State, when it became necessary for this 

Court to step in and supervise the dismantling of the dual system, the presence of the 

Court did not end the obligation of the State to participate in eliminating segregation—it 

merely limited the State's discretion in directing the overall process. The limitation 

did not release the State from its constitutional and statutory duty to end the 

discriminatory system it had created and maintained for a significant period of time and 

to take affirmative steps to remedy the debilitating effects that resulted from the 

system.

B. The Eleventh Amendment Permits this Court Both to Enjoin Tennessee Officials 

from Refusing to Perform Their Constitutional Duties and to Issue Appropriate Ancillary

Orders Aimed at Assuring Compliance.

1. The "Prospective Compliance" Exception to the Eleventh Amendment

"The Eleventh Amendment does not prevent enforcement of the Fourteenth 

Amendment. . . ." United States v. Board of Education of the City of Indianapolis, 

503 F.2d 68, 82 (7th Cir. 1974), cert, denied 421 U.S. 929 (1975); Bradley v. Milliken, 

540 F.2d 229, 244 (6th Cir. 1876), aff'd 433 U.S. 257 (1977). Federal courts are 

empowered to enjoin state officials from acting in * manner that violates federal 

constitutional or statutory law or from failing to carry out an affirmative duty imposed

-8-



under federal constitutional or statutory provisions. Ex parte Young, 209 U.S. at ICO.

As discussed below, .be undisputed facts presented before the Court establish as a 

matter of law that state officials have failed to carry out their affirmative legal 

obligation to eradicate the lingering effects of state-imposed segregation and are 

therefore liable for a continuing v.olation of the Fourteenth Amendment rights of the 

black citizens of Metropolitan Nashville and Davidson County. The Court deems it 

appropriate to issue an injunction enjoining state officials from further refusing to carry 

out their affirmative obligations and to issue such ancillary orders as are necessary to

ensure proper compliance with the injunctive relief ordered.

Well established principles of federal law recognize the authority of this Court

to issue the ordered.relief. The Eleventh Amendment provides:

The Judicial power of th. United States z h £

pros»c‘u"ed acainst one of the United States by Citizens of 
another State or by Citizens or Subjects of any foreign state.

The Amendment constitutionalizes the doctrine of sovereign immunity of the states,

imposing a constitutional limitation on the federal judicial power established under

Article 111 of the Constitution. Pennhurst State School & Hospital v. Haldennan, 465

U.S. 89, 104 S.Ct. 690, 906, 79 L.Ed.zd 67, 77 (1984). In the absence of a state’s

consent, federal courts may not entertain suits against a state or one of its cgene.es

or departments, or against a state official when the state is the "real substantia! party

in interest." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 6= S.Ct.

347, 89 L.Ed. 389 (1S45).
Third party plaintiff's claims against the State of Tennessee would be lost but 

for the saving grace of Ek parte Young, 299 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 ,1908).

In Younts the Supreme Court recognized the "prospective-compliance".exception to the 

jurisdictional bar of the Eleventh Amendment, permitting federal courts to enjoin ongoing 

conduct by a state official that is in violation of federal law. The "fiction ■ of You.,,..

Ann-9-



holds that a state tr.ay not authorize an unconstitutional action by its officers. Hence, 

for Eleventh Amendment purposes, a. state official is stripped of his official status and 

subject to the consequences of his conduct when he acts in an unlawful manner. Ex 

parte Young, 209 U.S. at 160."

2. Tennessee Officials Continue to Fail to Discharge the State’s Duty to Assure 

the Desegregation of Metro Schools

The State of Tennessee argues that this Court lacks authority to order injunctive 

relief agaiast the State because none of its officials currently is acting in violation of 

federal constitutional or statutory law. The State admits that although prior to Brown 

the State mandated strict separation of the races in public schools, presently no officials 

are acting in a matter to intentionally foster such segregation. The State argues further 

that the duty to desegregate schools and to eiiminate the lingering effects of past 

discrimination is solely an issue of local county concern and, as such, the State has no 

present, affirmative duty to participate in Metro’s desegregation program. The State 

relies on the recent decision in Bar.as v. Dempsey, 742 F.2d 277 (6th Cir. 1984), cert. 

granted, sub nom., Green v. Mansour, 105 S.Ct. 1863, 85 L.Ed.2d 158 (1985), for the 

proposition that in the absence of ongoing unlawful conduct, federal district courts 

have no basis on which to issue an injunction since the requisite facts (warranting the

2 Justice Stephens speaks of the Young fiction as a "well-recognized irony" since 
an official's unlawful conduct constitutes "stale action" under the Fourteenth Amendment 
but not "state action" under the Eleventh Amendment. Florida Department of State _y._ 
Treasurer Salvors, Inc., 458 U.S. C79, 685, 102 S.Ct. 3304, 73 L,.Lc.ud 3.0c*. ui-'S-b 
(Stephens,' J., plurality opinion). See also Banas v. Dempsey, 742 F.2d 277, 284 n.12 
(6th Cir. 1984), cert, granted, sub'nom., Green v. Mansour, 105 S.Ct. 1863, 85 L.Ed.2d 
158 (1985).

AUG i 4 is>-10-



Young prospective compliance exception to the jurisdictional bar of the Eleventh

Amendment) are no longer present, jd. at 286-87.

Banas was a class action alleging that the State of Michigan wrongfully had 

denied certain AFDC recipients benefits by refusing to permit deductions appropriate 

under federal law. After the suit was filed, but before the district court ruled on the 

plaintiffs’ motion for a preliminary injunction, Congress amended the Social Security 

Act, 42 U.S.C. § 602(a), with the result that Michigan's actions, though improper under 

former law, became legal. The Banas court held that the Eleventh Amendment barred 

the court from issuing any order requiring notice of any possible past unlawful state 

conduct to the putative classes. Congress' amendment of the Social Security Act 

legitimized Michigan's actions, eliminating the possibility for prospective relief in the 

suit. As a result, the plaintiffs’ claims were only for relief for past harm—and therefore 

barred. The Eleventh Amendment prohibits "the award of an accrued monetary liability" 

which represents "retroactive payments." Edelman v. Jordan. 415 U.5. 651, 662-64, 94 

S.Ct. 1347, 39 L.Ed.2d 662 (1974). That is, federal courts may only issue prospective 

relief against a State or its officials; principles of sovereign immunity preclude the 

award of relief for past wrongs. This Court finds that the undisputed facts demonstrate 

that State officials continue to deny their responsibility to participate in Metro's "local 

problem" of desegregation. For purposes of Banas, this refusal constitutes ongoing 

unlawful conduct—conduct which this Court has the power to enjoin. The Court is 

empowered to order the State to share in the prospective costs of desegregation; 

however, the Eleventh Amendment prohibits a retroactive award for costs already 

sustained by Metro. The order is made effective from March 16, 1981, the date on 

which the motion to implead third party defendants was filed.

- 1 1 -

AU6 j 4



a. Public Education is Primarily a State Function; Therefore, Desegregation 

Requires the Formulation and Implementation of State Public Policy.

Contrary to the opinion of Attorney General McCanless, segregation in county 

schools is not merely a local problem. Public education is a state function, involving

a delegation to local officials the duty to administer the details of daily operations.

Since the inauguration of the present system of [Tennessee] 
public schools, in 1S73, it has never been even suggested that 
the state and counties may have different systems and schools, 
the state operating a stale school, and the county a county 
school, but the basic idea is that the county may supplement 
the state funds, so as to enlarge and improve the state 
schools. . . . We are of the opinion that the legislature . . . 
may as well establish a uniform system of schools and a 
uniform administration of them, as it may establish a uniform 
system of criminal laws and of courts to execute .hem. The 
object of the criminal laws is, by punishment, to deter others 
from the commission of crimes, and thus preserve the peace, 
morals, good order, and well-oeing oi society; and the object 
of the public-school system is to prevent crime, by educating 
the people, and thus, by providing and securing a higher state 
of intelligence and morals, conserve the peace, good order, 
and well-being of society. The prevention of crime, and 
preservation of good order and peace, is the highest exercise 
of the police power of the state, whether done by punishing 
offenders or educating the children.

* * *

[T]he schools, in which are educated and trained children who 
are to become rulers of the commonwealth, are matters a  
state, and not local, jurisdiction; that in such matters the 
state is a unit, and the legislature a source of power; that 
the establishment and control of public schools is a function 
of the general assembly, both under the constitution and 
because it is a matter of state concern. . . . Power thus 
asserted is exercised in a manner which is not of common 
right, but which concerns institutions founded and fostered 
by the state. The regulation, in its entire scope, relates 
exclusively to the enjoyment of the privilege afforded a system 
of education created and maintained by the slate for the 
general good, and it must follow that the state does have 
power to make the regulations effective by prescribing the 
method which shall be pursued by those who seek to enjoy 
the privilege it has created, Certainly, no one wiT. deny the 
existence of such a right, and, if it does exist, it must reside 
in the lav/ making power of the state.

-12- A U E 1 A Ti



Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (189S) (upholding as constitutional the 

Tennessee Uniform Textbook Act). The Leeper court’s analysis of the state's authority

over public schools is as valid today as when it was spoken at the turn of the century. 

The Tennessee Constitution establishes the State’s central role in public education.

(emphasis added). Tennessee Const. Art. XI, § 12 (amended March 31, 1378). Title 49 

of the Tennessee Code addresses public education within the State of Tennessee. Its 

thirteen chapters illustrate the control state officials exert over local school matters. 

For example, the State regulates teacher compensation and advancement under the 

"master teacher" program; it approves the location of new school facilities, and frequently 

prescribes the curriculum offered in schools.

Counties do not operate their own, autonomous schools; rather, local districts 

operate state schools at the direction and for the benefit of the state, serving those 

children who reside within their jurisdictional boundaries. Matters which affect the 

educational milieu in a local school district are matters of state concern. Desegregation 

certainly is one such matter. General McCanless’ opinion letter declaring the State 

shall stay ..out of the "local problem" of desegregation establishes a policy to delegate 

fully the State's responsibility to formulate and achieve a solution.

b. The State Deliberately Has Refrained From Participating in the Desegregation 

of Public Schools.

The State has the nondelegable duty to participate in the desegregation of local 

schools. State officials have abdicated that duty. The violation continues today. 

Placing all consideration of the State's post-Brown conduct aside, this Court believes

Education^ Inherent Value—Public Schools-—Support of Higher 
Education.—The State of Tennessee recognises the inherent 
value cf education and encourages it support. The General 
Assembly shall provide for the maintenance, support and 
eligibility standards oi a system of free public schools. The 
General Assembly may establish arid support such post 
secondary educational institutions, including public institutions 
of higher learning, as it determines.

-13-
* » i ^



that State action prior to 1954—in mandating strict separation of the races in public 

schools—serves, in and of itself, as a sufficient basis on which to find the State 

responsible for eliminating the continuing effects of racial discrimination. The decision 

by Tennesse to cease its official discrimination against blacks in light of Brown did 

not eliminate the debilitating effects created by generations of segregation. The effects 

continue today. Milliken v. Bradley, 433 U.S. 267, 287-88, 9.7 S.Ct. 2749, 53 L.Ed.2d 

745 (1977) ("[pjupil assignment does not automatically remedy the impact of previous, 

unlawful educational isolation; the consequences linger and can be dealt with only by 

independent measures.").

There exist numerous post-Brown acts, however, that demonstrate the State's 

refusal to discharge its duty to participate in the desegregation of Metro schools. The 

Sixth Circuit Court of Appeals has set forth a five-part test for determining whether 

a state has intentionally supported a segregated school system. In Penick v. Columbus 

Board of Education, 583 F.2d 787, 818 (6th Cir. 1978), aff'd 443 U.S. 449 (1979), the 

court remanded the case to the district court to make more detailed findings of fact 

concerning:

1. The State School Board's knowledge (if any) of the 
[local school board's] intentional segregative 
practices;

2. The State Board's failure to protest or restrain [the 
local board] by withholding funds,

3. The State Board's continuance of support in the face 
of such knowledge,

4. The motivation of the State Board in failing to 
investigate the reasons for de facto segregation, and

5. The effect of findings, if any, under 1, 2, 3 and 4.

Applying the Penick test to the undisputed facts presented, by the parties the 

Court makes the following findings: following the original decision in Brown, the local

boards looked to the State Department of Education for guidance, only to be rebuffed

-14-
r • • r>



and cast adrift by Attorney General McCanless's letter of June 16. 1955. Faced with 

the Supreme Court mandate to desegregate its public schools, the State abdicated its 

responsibility, placing the onus upon each individual school district. Rather than

coordinating, the State created chaos. General McCanless was correct in stating ’’[The 

local school boards], within the limits of applicable law. determine all of the local 

school problems.” That is to say, the local school boards could do whatever they desired 

so long as their actions comported with state law on the subject. For example, a local 

school district currently faced with the "local problem” of segregated schools may 

voluntarily pursue a desegregation policy so long as the program does not "use or 

authorize the use of ar.v school transportation facility for the purpose of achieving a 

racial balance . . .  in any school by requiring the transportation cf any student or pupil 

from one school to another or from one school district . . .  to another." T.C.A. § 4S- 

6-2101(f)(1)- Statutory prohibition of the principal remedial approach to desegregation 

of public schools illustrates the State’s involvement in the "local" issue of desegregation.

More fundamentally, however, this Court does not believe that state-imposed 

segregation is merely a "local school problem." Mandated by the Tennessee Constitution 

and regulated by Tennessee statutes, the dual system of public education was wholly a 

product of State-inspired segregation. General McCanless’ opinion letter established 

the State’s "hands off" policy. Yet, what the State characterizes as a federalism-based 

respect for the jurisdiction of the United States District Court, the Court views as a 

failure to discharge the affirmative responsibility to participate in devising and 

implementing an effective remedy. Burton v. W U 365 U.S. 

715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (”[n]o State may abdicate its responsibilities 

by either ignoring them or by merely failing to discharge them whatever the motive

may be.").

AUG i  1 s
-15- o>



Acknowledging the less than good faith efforts of Metro preceding the 1971 

order, the Court nevertheless believes that the State’s failure to assume a strong 

leadership role promoting desegregation has delayed the efficient implementation of 

desegregation plans throughout the State and has fueled the intransigent attitudes held 

by many local school boards. Although the Tennessee Supreme Court struck down the 

Tennessee constitutional provision mandating separation of the races in public schools 

in Roy v. Brittain, 201 Tenn. 140, 297 S.W.2d 72 (1956), the State maintained the 

provisions on its books until 1978. While the State had no authority to enforce the 

provisions, the continued publication may be construed as an official statement of State 

policy on the issue of desegregation. The 1957 parental preference statutes, the 

statutory prohibition on voluntary busing and the numerous official antibusing resolutions 

reaffirm the State’s lack of commitment to eliminate the vestiges of discrimination in 

Tennessee.

The State was aware of the segregated conditions in Metro schools and of Metro’s 

resist&nce throughout the 1960’s to desegregation. The State did not protest nor 

threaten sanctions, but continued to fund Metro and to pass legislation consistent with 

Metro’s obstructionist spirit. The State, like Metro, simply did not want to desegregate 

Metro schools through a busing remedy. Following a policy of abdication, the State 

has been free to set up as many hurdles as possible to disrupt those school districts 

either required bv federal court order or voluntarily choosing to desegregate their schools.

The Court concludes that the State of Tennessee has failed to acknowledge its 

duty imposed under Brown and that State officials continue to refrain from discharging 

their constitutional obligation to participate in the elimination of the vestiges of state- 

imposed segregation. See Liddell v. Board of Education of City of St. Louis, 491 F. 

Supp. at 359 (”[i}n sum, the State defendants stand before the Court as primary 

constitutional wrongdoers who have abdicated their affirmative remedial duty.").

-16-
A U G  i  4  i S S



3. Federal Courts Frequently Have Applied the "Prospective Compliance''

Exception to School Desegregation Cases and Have Ordered States to Share the Costs 

of Desegregation Plans.

"A state which initially compelled or authorized the creation of a local dual 

system has a continuing affirmative duty to eradicate all lingering effects on segregation; 

the neglect of that constitutional duty renders the state liable." Reed v. Rhodes, 400 

F. Supp. 404, 424 (N.D. Ohio 1930), aff’d 662 F.2d 1219 (6th Cir. 1981), cert, denied 

455 U.S. 1018 (1932). "[T]he primary responsibility for insuring a constitutional structure

of public education is the state's, . . .  it is appropriate for the Court to order the State 

to affirmatively participate in remedial efforts . . . including the provision of funding, 

to the extent necessary, for desegregation ordered by the Court. Liddell v. Board of 

Education, 491 F. Supp. at 360. In Reed, the Ohio State Attorney General and state 

statutes mandated that the state school board participate in the desegregation of local 

schools. The school board was found to have failed to do so and, in the light of its

.post~Bro\vn conduct, was held to have violated the rights of the plaintiffs. The State 

was ordered to share in the costs of desegregation.

This Court, having determined that State officials are in violation of federal 

law, has the power to enjoin the continuation of the conduct and to order the State

to share in the desegregation costs.

[I)n the event of a constitutional violation all reasonable 
methods [are] available to formulate an effective remedy, 
"and that effort should be made by a federal court to employ 
those methods to achieve the greatest possible degree of 
relief, taking into account the practicalities of the situation. 
. . . Once a right and a violation have been shown, the 
scope of a district court’s equitable powers to remedy past 
wrongs is broad, for breadth and flexibility are inherent in 
equitable remedies.

Hills v. Gautreaux, 425 U.S. 284, 297, 9S S.Ct. 1538, 

the operations of the state school board in Poniek

47 L.Ed.2d 792 (1976). Reviewing 

v. Columbus Board of Education,

-17-
A U G  i 4  1955



663 F.2d 24, 26 (6th Cir. 1981), the Sixth Circuit Court of Appeals noted that unlike 

the other activities of the school board, the board operated under a "hands-off" policy 

with respect to school desegregation. The court found that the state had failed to 

exercise its power to facilitate the dismantling of the state-created segregated systems 

and that the "incremental effect of the State Board's action and inaction [was] the 

total failure of compliance with the constitution and laws of the United States and of 

Ohio in the performance of the duty to eliminate racial segregation in the Columbus 

school system." The circuit court affirmed the district court's order directing the state 

to share in the lost of desegregating Columbus schools. See also United States v. 

Indianapolis Board of School Commissioners, 677 F.2d 1185 (7th Cir.), cert, denied, 459 

U.S. 1086 (1982) (ordering State to pay the entire cost of desegregating Indianapolis 

schools).

While a state's failure to act, in and of itself, may be insufficient to support a 

finding of liability against a state, see Reed v. Rhodes, 400 F. Supp. at 423 (citing 

cases), the undisputed facts presented by the parties in this case support the finding 

that the creation and maintenance of the segregated school systems in Metro Nashville 

and Davidson County are the result, in part of the intentional conduct of the state 

officials. See Dayton Board of Education v, Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 

53 L.Ed.2d 851 (1S77). The culpability of the State's inaction is compounded by its 

active campaign against busing. Such conduct has been counterproductive to the 

desegregation efforts of local administrators and parents.

The State's conduct in attempting to undermine the efforts of Metro Nashville 

and Davidson County is to be distinguished from those cases in which the state was 

held not liable for the segregated conditions in local schools. In Alexander v. Youngstown 

Board of Education, 454 F. Supp. 965, 1074 (N.D. Gnio 1378), aff'd, 675 F.2d 7-S7 (6th 

Cir. 1982), the court held that because the local school board was held not liable for

-18-



intentionally segregating its schools, the state could not be liable. Ohio o 

fai,ure ,o investigate and ac, on l o c a t i o n  concetning tacia, imbalances vthi, 

supporting the inference of intentional segregation, was held no, to be a su .cen  

basis for liability in light of the s ta te , other affirmative actions in attempting to 

secure the desegregation of the Youngstown schools. M. Similarly, w Arthurja_vs

573 , 2d 134 (3d Cir, a S J B M r  -  ■ *  «  ~  Y° rk “
held not liable for the segregated conditions in Buffalo schools. In that case, e

Commissioner of the Board of Education issued a policy statement on desegregation

directing local school districts to eliminate dual systems and threatening to withhold

fu„ds for those districts failing to comply. The commissioner, subse,uent fai.ure to

Withhold funds from recalcitrant school districts ultimately was held to be prudent,al

in light of legitimate policy concerns over unduly disrupting schools. W. at 143.

• „„ i„ this -ase the State did nothing constructive abjm oo. . e In comparison, in tnis case,
, . the existence of racial imbalances in Metro schools and knewState had knowledge of the existence

t --vs this: Court's orders to implement an effective 
of Metro’s failure to comply wuh th^ Cou,

• f ♦v,;c rn-irt to aid Metro in dismantling its 
desegregation remedy. Rather than assrst th.s Court
dual system, state officials passed antibusing resolutions, maintained segregation statute 

and constitutional provisions on the books, and threatened to eu, off funds to any schoo, 

system vo.untariiy Imposing busing to alleviate raciai balances. In M  - t e  o f f i ^ s  

Kere held not liable for failing to withho.d state funds in light of their other affirmative 

efforts to promote desegregation. Here, state officials have no favorable light .o 

reflect on their actions. No .legitimate poiiey consideration, iustify the S ta te , conduct.

The Eleventh Amendment does no, bar this Court from e n d in g  state officials 

from continuing to refuse to discharge their duty to participate in the implementation 

of desegregation in Metro schools. To assure compliance with the injunction, the Cour

-19- AUG l  4 193$



exercises its remedial authority to order State officials to assist Metro in meeting the 

costs of eliminating the invidious effects of past discrimination.

C. The Statute of Limitations Does Not Bar Metro from Seeking an Injunction 

and Appropriate Orders Against the State of Tennessee and Its Officials.

The Court holds that the statute of limitations does not bar the claims of

Metropolitan Nashville and Davidson County for injunctive relief against the State of 

Tennessee because (1) the third party plaintiffs sue in their official governmental 

capacity seeking relief as an arm of the State for the general good of the population, 

and (2) the State is liable for a continuing violation of federal law thereby staying the 

operation of the statute of limitations period.

1. The Claim Pursued by Metropolitan Nashville end Davidson County Involves 

Conduct in the Discharge of a Public Function Thereby Immunizing Third Party Plaintiffs 

from the Operation of the Relevant Statute of Limitations.

"Nullum tempus occurritt regi," that is, the lapse of time does not operate to 

bar the right of the state to pursue its civil remedies. Willie vis v. Cravens, 31 Tenn. 

App. 248, 214 S.W.2d 57, 59 (Tenn. App.) cert, denied (Tenn. 1948). In Tennessee, 

actions for compensatory and/or punitive damages brought under the federal civil rights 

statutes must be commenced within one year after the cause of action has accrued.

T.C.A. § 28-3-104 (1930); Wilson v. Garcia, __ U.S.___ , 105 S.Ct. 1938, 35 L„Ed.2d 254,

268-69 (1985) (holding that the applicable statute of limitations for claims arising under 

the federal Civil Rights Act is to be determined by reference to the state statute of 

limitations for personal injury actions). The provisions of Title 28 of the Tennessee 

Code (governing limitation of actions), however, do not apply to bar actions brought by 

the State unless otherwise expressly provided by law. T.C.A. 5 28-1-113 (1980).

Political subdivisions of the State are not automatically entitled to state immunity 

from the operation of the statute of limitations. Only when a legal corporation, such as

-20- A U b  1 4 1$



a municipality or school board, acts as an agency and arm ot the State in executing a 

public function is that agency entitled to the immunity provided under T.C.A. 5 28-1- 

113; central Hospital for Insane v. Adams, 134 Tenn. 429, 183 S.K. 1(U2, 1033 <19161'

!„ Adams, the Supreme Court of Tennessee held that the Central Hospital for the Insane 

was not barred by the six year statute of limitations in seeding to recover compensation 

for care given a patient a. the hospital. In ruling that the limitations period did not 

operate to bar the claim, the Court held that the care and custody of insane persons 

constituted the discharge of a government-assumed duty, thereby cloaking the institution 

with the sovereign immunity enjoyed by the State. Id. at 1034. Similarly, in Jennings

V .  navidson County, 208 Tenn. 134, 344 S.W.M 359, 362 (1951), Davidson County was 

permitted to pursue a claim against the estate of a former patient who, though during 

treatment was a pauper, had later inherited the modest estate of a relative. The 

Tennessee Supreme Court held that the provision of medical care to the poor is a public 

function carried on by local governments and constituted the discharge of a state-

assumed duty to the population of all Tennessee.
The principle that political subdivisions of the state are. under certain

circumstances, entitled to the state's sovereign immunity when pursuing civil claims was 

reaffirmed most recently in County of Johnson, Tennessee î j i t e d _ S ta u s _ g v ES:H 

Company, 580 F. Supp. 284 (E.D. Tenn. 1984). In that case, the district court held that 

the statute of limitations operated to bar the claims of a county school board suing 

for damages resulting from the installation of asbestos-containing acoustical and ceiling 

plaster throughout county schools. The Court reasoned that the maintenance of the 

physical plant of county structures constituted a purely local function of interest only

-21- AU'o ] 4 1



to the local population. _Id. at 288-82.3 Distinguishing a series of other Tennessee 

state cases in which local political subdivisions were entitled to immunity from the 

statute of limitations, the Court held that the county in this particular situation was 

suing on claims involving contract or property rights, rather than in a governmental 

capacity for the benefit of the general public. Id. See also Hamblen County v. Cain, 

115 Tenn. 279, 88 S.W. 103 (1905); Shelby County v. Bickford, 102 Tenn. 395, 52 S.W. 

772 (1899) (action by county to recover against a grantor on covenant against 

encumbrances).

The maintenance of the physical structure and land of county schools is a local 

concern and function. However, the provision of public education, involving matters of 

curriculum, funding, teacher qualifications and compensation, and other academic 

considerations are state concerns, albeit often shared by local officials. Deeper v. 

State, 103 Tenn. 500, 53 S.W. 962 (1899). See discussion, supra at pp. 11-1S.

This Court finds that Metro’s claims constitute claims made as an arm of the 

state government regarding the discharge of a state assumed public duty. Just as a 

political subdivision is immune from the running of the statute of limitations for claims 

involving medical care provided to the indigent or to the insane, third party plaintiffs 

are entitled to immunity with respect to claims arising from the provision of education 

to the young.

^This Court views the Johnson County ease as setting forth the relevant 
considerations for determining whether a political subdivision is entitled to immunity 
from the stutute of limitations. However, the Court takes exceotion to the overbroad 
statement by the Johnson County Court that "the authorities across the country virtually 
unanimously hold, the operation "of a school system is a particularly local affair." 580 
F. Supp. at 290.

-22- AUG 1 4 ESS



2. The State of Tennessee is Liable for a Continuing Violation of Federal Law

Thereby Staying the Operation of the Statute of Limitations.

The vestiges of state-imposed segregation continue to be present in Davidson 

County. State officials are under a continuing obligation to act affirmatively to 

eliminate these debilitating effects. Yet, the State continues to refrain, maintaining 

that the issue of desegregation is one exclusively between this district court and local 

officials. This Court views the State's conduct as malfeasance, indicative of a continuing 

violation of federal law, thereby staying the running of the relevant statute of limitations.

The statute of limitations begins to run from the date of the injury, or if the 

injury is not apparent, from the time the harm reasonably should have been discovered. 

However, when the injury-causing activity continues over time, unabated, that conduct 

is not legitimized by the passage of time. Unlike the doctrine oi adverse possession in 

real property law, acquiescence to a continuing violation of constitutional rights does 

not extinguish the individual's rights. The failure of the attorneys ior the various 

parties in this case to pursue their civil remedies against the State of Tennessee during 

the asserted statute of limitations period does not constitute a waiver of those rights 

end will not insulate the State from legal liability.

D. Principles of Equity Do Not Bar Third Party Plaintiffs from Pursuing their

Legal Remedies.

1. Laches.

This case was filed in 1955 and a comprehensive desegregation order entered in 

1971. Nevertheless, the State of Tennessee was not joined as a defendant until 1931. 

The State argues therefore that the doctrine of laches should bar the award of any 

relief against it. The Court disagrees.

Mere delay is insufficient to justify the operation of laches. The doctrine requires 

both delay and injury. Williams v. Cravens, 31 Tenn, App. 216, 214 S.W‘.2ri 57, 60 (Ct.

-23-
j 4 1S8!



App.), cert, denied (Tenn. 1946). The State has failed to allege any consequence that 

the Court reasonably can consider to have injured or prejudiced the interest of the 

State as a result of other parties' failure to have joined the State at a earlier date. 

In seeking to invoke the doctrine of laches, the State calls upon the Court to exercise 

its powers in equity. Accordingly, the Court will consider the dictates of fairness and 

justice and will evaluate all factors in determining whether relief should be barred 

against the State.

The State created and maintained a system of segregation between the races 

since statehood. That system remained in place, officially, through 1254. Even assuming 

delinquency on the part of other parties in this case in failing to join the State until 

1981, fairness dictates that the actor primarily responsible for the discriminatory system 

should bear some responsibility for remedying the system's invidious consequences.

Finally, the racial minorities in Tennessee are, for the most part, concentrated 

in urban centers. Recognizing the affirmative legal obligation to eliminate the vestiges 

of state-imposed segregation, it is unfair to call only upon urban dwellers to bear the 

expenses of desegregation. The remedy should be carried out at the expense of all 

Tennesseans, both those residing in the cities and those who live in rural areas.

2. Unclean Hands.

The State asserts that in view of Metro Nashville and Davidson County’s 

recalcitrance in failing to comply with the Court's order to desegregate local schools, 

the State should not be forced to share in the cost of desegregating Nashville schools. 

The Court notes that the State likewise has been less than enthusiastic about the 

prospects of desegregation. The failure to remove the State's unlawful constitutional 

and statutory provisions mandating segregation and its passage of statutory provisions 

authorizing the cutoff of funds to local schools districts voluntarily desegregating schools

-24-
AUG 1



through busing reflects conduct taken in less than good faith, vis-a-vis the state s 

affirmative obligation to eradicate the effects of past discrimination.

If an equitable doctrine is to apply at all, the Court would look to the principles 

of -in pari delicto. That is, recognizing that both Metro and the State have been 

culpable of acts taken in bad faith, as between the two, the State is just as, if not 

more, subject to condemnation for its conduct. The Court, however, refrains from 

assessing the relative reprehensibility of the conduct of the defendants in this action. 

Rather, it holds that whatever bad deeds Metro may be responsible for, that conduct 

win not operate to bar the State from sharing in its responsibility to desegregate 

Metropolitan Nashville and Davidson County schools.

E. Relief.

The Court hereby enjoins the State officials and the State of Tennessee from 

refusing to carry out their affirmative obligation to participate in eliminating the 

vestiges of past discrimination and to participate in the desegregation of Metro Nashville 

schools. Pursuant to the injunction, the Court directs trie State to pay sixty percent 

(60%) of the costs directly attributable to the desegregation program. Directing payment 

of state funds is a necessary consequence of compliance in the future with a substantive 

federal-question determination.” Edelman v. tiorrian, 415 U.S. 651, 94 S.Ct. 1347, 39 

L.Ed.2d 662 (1974); Millikan v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2748, 53 L.Ed.2d 

745 (1977).

The'relief ordered today complies with the standards set forth by the Eighth 

Circuit Court of Appeals in Liddell v. State of Missouri, 731 F.2d 1294, 1305-03 (8th

Cir. 1384), cert, denied, __ U.S.___ , 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), for evaluating

the boundaries of the remedial power of federal district court in devising reliei ordeied 

against State officials in school desegregation cases. The Liddell court set forth three 

considerations: (1) the remedy must be closely tailored to the nature and scope of the

All v i 4 1385-25-



violation; (2) the remedy must seek to restore the victims of discrimination as nearly 

as possible to the position they would have occupied absent the discrimination; and (3) 

the order must not unduly infringe on state or local government autonomy.

This Court concludes that the order in this case directing the State to assume 

part of the costs of desegregc‘.ing Metro Nashville schools is responsive to the 

constitutional violations and injuries that have occurred. The infusion of state funds 

into the Metro desegregation effort will permit Metro to offer those remedial ptograms 

which currently are part of the comprehensive remedial plan but presently are not 

offered because of insufficient funding. The effects cf past discrimination continue to 

be manifested in many school age black children in terms of levels of performance on 

standardized testing, development of effective communication skills, and the ability to 

earn high school and higher education degrees. The present desegregation pxan seeks 

to ameliorate these conditions. The payment of State funds to finance the remedial 

programs seek to improve the educational opportunities for black children so as to 

permit them to achieve a level of academic performance that reasonably could be 

expected had the black population not have been subjected tc long term segregation m 

public education. Finally, the Court believes that the impact on the state treasury 

will not unduly infringe on the state’s ability to carry on traditional state functions. 

The remedy is not intrusive on the autonomy of state officials to exercise discretion 

over state affairs.

For these reasons, the Court grants the motion of Metropolitan Nashville and 

Davidson County for summary judgment.

-26-
AUG C

O



IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE,

NASHVILLE DIVISION

ROBERT W. KELLEY, et al.

v.

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE & 
DAVIDSON COUNTY, TENNESSEE, 
et al.,

v.

STATE OF TENNESSEE;
LAMAR ALEXANDER, Governor of the 
State of Tennessee;
ROBERT L. MCELRATH,
Commissioner of Education; and 
STATE BOARD OF EDUCATION

r e c e i v e d  f o r  e n t r y  
_____ j - ftA  ( / V o  M

) NOS. 2094, 2956 
)
)
)
)
)
)
)
)
)

ORDER

In accordance with the accompanying Memorandum, the Court grants the motion 

for summary judgment of Metropolitan County Board of Education of Nashville and 

Davidson County, Tennessee. The State of Tennessee and state officials named as 

defendants shall be enjoined from refusing to carry cut their duty to participate in the 

elimination of the vestiges of past discrimination in the State's public education system. 

To assure compliance with the injunction, the Court orders the State to assume sixty 

percent (60%) of the costs directly attributable to Metro's desegregation program from 

and after the date of the filing of this petition on March 16, 1981. If the parties 

cannot agree upon the dollar amounts thereof, a reference to the Master will be ordered.

AUG  1 /» 1GOC



IN THE UNITED STATES DISTRICT COURT FOR THE "
MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

ROBERT W. KELLEY, e t  a l . , )
)

P l a i n t i f f s ,  )
)

v s .  )
)

METROPOLITAN COUNTY BOARD OF )
EDUCATION OF NASHVILLE AND )
DAVIDSON COUNTY, TENNESSEE, )
e t  a l . , ) Nos.

)
D e f e n d a n t ,  )
T h ird  P a r t y  P l a i n t i f f  )

)
v s .  )

)
STATE OF TENNESSEE; LAMAR )
ALEXANDER, GOVERNOR OF THE )
STATE OF TENNESSEE; ROBERT )
L.  McELRATH, COMMISSIONER )
OF EDUCATION; and STATE )
BOARD OF EDUCATION )

)
Third  P a r t y  D e f e n d a n t s ,  )

2094 ,  2956

RECEIVED FOR ENTRY 
_____ / k . 'P D lf lr  M

MOTION FOR AND MEMORANDUM IN SUPPORT OF 
STAY OF INJUNCTION AND ORDER PENDING APPEAL

Come now th e  t h i r d - p a r t y  d e f e n d a n t s  and, p u rsu a n t

t o  Rule  6 2 ( 1 )  o f  th e  F e d e r a l  R u le s  o f  C i v i l  P r o c e d u r e ,  move 

t h e  Court  f o r  a s t a y  o f  i t s  i n j u n c t i o n  and ord er  e n t e r e d  on 

A u gu st  14 ,  198 5 ,  in  t h i s  c a u s e ,  p e n d in g  d i s p o s i t i o n  o f  an

EXHIBIT B



1 1

N THE UNITED STATES 
MIDDLE d i s t r i c t of 

NASHVILLE DT,

DISTRICT
' T E N N E S S 
/1SION

COURT
p? V S.-J PV
g 5  h  P  
u Su lia

ROBERT W. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al. , ]

3
Defendants/ ]
Third Party P l a i n t i f f s  ]

3
vs.  ]

3
STATE OF TENNESSEE, et a l . ,  3

3
Third Party Defendants 3

MOTION TO RECONSIDER

NOS: 2094, 2956

JUDGE WISEMAN

RECEIV ED  FOR EN TR Y  
_____ c S ' . C D  M

PRELIMINARY STATEMENT

On or about Tuesday,’ August 27 , 1985, th e  th ir d  p arty
1

p l a i n t i f f s  (h e r e in a f te r  "Metro") r e c e iv e d  in  th e  m ail th e  th ir d  

p arty  d e fen d a n ts ' (" h e r e in a fte r  the s t a t e  d e fen d a n ts" ) motion fo r  

and memorandum in support o f  a s ta y  o f  in ju n c t io n  and order pend­

ing a p p ea l. This s ta y  was g ra n ted  by the cou rt on or about 

August 29, 1985, th e  order b e in g  d e l iv e r e d  by m ail August 30, 

1985, to  the th ir d  p arty  p l a i n t i f f s .  Metro r e s p e c t f u l ly  su b m its ,

EXHIBIT C



IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

VS.

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE, 
e t  a l . ,

ROBERT W. KELLEY, e t  a 1

P la in t i f  f s

]
]
3
]
]
]
]
3
]
]
]
3
3
3
]
3
3
3
3

NOS :

JUDGE WISEMAN
D efen d a n ts/
Third P arty  P l a i n t i f f s

VS. R e c e i v e d  FOR E N T R Y

STATE OF TENNESSEE, e t  a l . ,

Third Par ty  D e fe n d a n ts

MOTION TO VACATE ORDER GRANTING STAY ^ U T Y c l T r k / — 

The M e t r o p o l i t a n  N a s h v i l l e  Board o f  E d u c a t i o n ,  e t  a l .
t

( h e r e i n a f t e r  Metro) h ereb y  moves th e  c o u r t  p u r su a n t  t o  Rule 60 ,  

F e d e r a l  Rules  o f  C i v i l  P r o c e d u r e ,  to  v a c a t e  th e  s t a y  o r d e r  

p r e v i o u s l y  g r a n t e d  i n  t h i s  c a u s e  and t o  r e c o n s i d e r  i t s  f i n d i n g s .  

As grounds t h e r e f o r  Metro r e c i t e s  th a t  the  s t a t e  d e f e n d a n t s  have  

taken  a p o s i t i o n  on a p p e a l  which  t h r e a t e n s  th e  e f f e c t i v e n e s s  o f  

t h i s  c o u r t ’s  order  and may i r r e p a r a b l y  harm Metro and th e  p u b l i c  

s c h o o l  c h i l d r e n  i n  t h i s  c i t y  i f  th e  s t a y  rem ains  in  e f f e c t .  

A c c o r d in g ly ,  Metro r e s p e c t f u l l y  r e q u e s t s  t h a t  t h i s  c o u r t  

r e c o n s i d e r  i t s  order  gr

SEP 2 7 1935

EXHIBIT D



IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

ROBERT W. KELLEY, e t  a l . ,  )
)

P l a i n t i f f s ,  )
)

v s . )
)

METROPOLITAN COUNTY BOARD OF )
EDUCATION OF NASHVILLE AND )
DAVIDSON COUNTY, TENNESSEE, )
e t  a l . ,  ) Nos.  2094 ,  2956

)
D efen d an t, )
Third  P a r ty  P l a i n t i f f  )

)
v s .  )

)
STATE OF TENNESSEE; LAMAR )
ALEXANDER, GOVERNOR OF THE )
STATE OF TENNESSEE; ROBERT )
L. McELRATH, COMMISSIONER )
OF EDUCATION; and STATE )
BOARD OF EDUCATION )

)
Third  P a r ty  D e f e n d a n t s ,  )

MOTION FOR AND MEMORANDUM IN SUPPORT OF 
STAY OF INJUNCTION AND ORDER PENDING APPEAL

Come now th e  t h i r d - p a r t y  d e f e n d a n t s  and, pursuant  

t o  R ule  6 2 (1 )  o f  the  F e d e r a l  R u les  o f  C i v i l  P r o c e d u r e ,  move 

t h e  Court  f o r  a s t a y  o f  i t s  i n j u n c t i o n  and order  e n t e r e d  on 

A ugust  14 ,  1985,  in  t h i s  c a u s e ,  pend ing  d i s p o s i t i o n  o f  an 

a p p e a l  o f  s a i d  o r d e r .  A n o t i c e  o f  a p p e a l  i s  b e in g  f i l e d  

c o n c u r r e n t l y  w i t h  t h i s  m o t io n .

- 1-

EXHIBIT E



In i t s  order  awarding r e l i e f  a g a i n s t  t h i r d - p a r t y  

d e f e n d a n t s ,  t h i s  Court  d i r e c t e d  the  S t a t e  t o  assume s i x t y  

p e r c e n t  (60%) o f  the  c o s t s  d i r e c t l y  a t t r i b u t a b l e  t o  t h i r d -  

p a r t y  p l a i n t i f f ' s  s c h o o l  d e s e g r e g a t i o n  program from and 

a f t e r  f i l i n g  o f  th e  t h i r d - p a r t y  c o m p la in t  on March 16 ,  1981.  

The Court s p e c i f i e d  no e x a c t  d o l l a r  amount, but ord ered  a 

r e f e r e n c e  t o  th e  Master  i f  th e  p a r t i e s  c o u ld  n o t  agree  

t h e r e o n .

In d e c i d i n g  w hether  to  g r a n t  a s t a y  o f  i t s  in j u n c ­

t i o n  and o r d e r ,  t h i s  Court  s h o u ld  c o n s i d e r  th e  f o l l o w i n g  

f  a c t o r s :

1. Whether th e  p a r t y  s e e k i n g  r e l i e f  has shown a 
s t r o n g  l i k e l i h o o d  o f  s u c c e s s  on t h e  m e r i t s ;

2 .  Whether th e  p a r t y  s e e k i n g  r e l i e f  has shown 
i r r e p a r a b l e  i n j u r y ;

3 .  Whether a s t a y  would c a u s e  s u b s t a n t i a l  harm 
t o  th e  o t h e r  p a r t i e s ;  and

4.  Where th e  p u b l i c  i n t e r e s t  l i e s .

USACO Coal Co. v.  Carbomin Energy I n c . ,  689 F .2d  (6 th  C i r .  

1 9 8 2 ) ;  Moran County M e d ic a l  A s s o c i a t i o n  v .  K n e b e l ; 563 F.2d  

256 (6 th  C i r .  1977) .

The S t a t e  a ck n ow led ges  th a t  i t  would not  be i r r e ­

p a r a b l y  harmed i f  p r o c e e d i n g s  t o  d e te r m in e  th e  e x a c t  amount 

due under th e  C o u r t ' s  r u l i n g  were a l lo w e d  t o  go forward  

p en d in g  d i s p o s i t i o n  o f  the  i n s t a n t  a p p e a l .  However,  the

- 2 -



S t a t e  would show (a) t h a t  i t  has a s u b s t a n t i a l  l i k e l i h o o d  o f  

s u c c e s s  on th e  m e r i t s ;  (b) t h a t  no s i g n i f i c a n t  harm would 

o ccu r  t o  o t h e r  p a r t i e s  by r e a s o n  o f  a s t a y ;  and (c) t h a t  the  

p u b l i c  i n t e r e s t  m i l i t a t e s  in  f a v o r  o f  a s t a y .

A. T h ird  P a r ty  D e fe n d a n ts  Have a S u b s t a n t i a l  
L i k e l i h o o d  o f  S u c c e s s  on th e  M e r i t s  o f  
T h is  A p p ea l .

In  Banas v. Dempsey, 742 F.2d 277 (6 th  C i r .  1984) 

c e r t ,  g r a n te d  105 S. C t .  1863 ( 1 9 8 5 ) ,  th e  S i x t h  C i r c u i t  h e ld  

t h a t ,  in  the  a b se n c e  o f  any b a s i s  upon which t o  e n j o i n  s t a t e  

o f f i c i a l s  t o  conform t h e i r  o n g o in g  c o n d u ct  to  f e d e r a l  law,  

no b a s i s  was a f f o r d e d  f o r  a n c i l l a r y  r e l i e f  under th e  p r i n ­

c i p l e s  o f  Ex P a r te  Young, 209 U .S .  123,  28 S .  C t .  441 ,  52 

L.Ed. 714 (1908) . The named o f f i c i a l s  o f  th e  S t a t e  o f  

T e n n e s s e e  are  engaged i n  no o n g o in g  c o n d u ct  v i o l a t i v e  o f  

f e d e r a l  law.

The Court  based  i t s  summary f i n d i n g s  r e g a r d in g  th e  

S t a t e ' s  l i a b i l i t y  on two in d e p e n d e n t  g r o u n d s .  The S t a t e ' s  

i n i t i a l  r o l e  i n  e s t a b l i s h i n g  a mandatory d u a l  s c h o o l  system  

was found s u f f i c i e n t  t o  impose l i a b i l i t y ,  s t a n d i n g  a l o n e .  

W hile  some o t h e r  d i s t r i c t  c o u r t s  have ta k en  s i m i l a r  p o s i ­

t i o n s ,  no a p p e l l a t e  c o u r t  seems t o  have u n e q u i v o c a l l y  s o  

h e l d .

The S t a t e ' s  p o s t - Brown c o n d u c t  was a l s o  found t o  

meet the  S i x t h  C i r c u i t ' s  t e s t  f o r  de f a c t o  s e g r e g a t i o n ,  but

- 3 -



th e  f i n d i n g s  do not  seem s p e c i f i c  and d e t a i l e d  enough t o  

meet th e  c r i t e r i a  o f  th e  S i x t h  C i r c u i t .  S ee  P e n ic k  v.  

Columbus Board o f  E d u c a t i o n , 583 F.2d 787,  818 ( 6 th  C i r .  

1978) .

B . A S t a y  Would Cause No S i g n i f i c a n t  Harm To 
Other P a r t i e s

A s t a y  o f  th e  C o u r t ' s  order  would work no s i g n i f i ­

c a n t  harm on th e  o t h e r  p a r t i e s  t o  t h i s  l a w s u i t .  O p e r a t io n  

o f  the  Metro s c h o o l  sy s tem  would c o n t i n u e  u n i n t e r r u p t e d ,  as 

i t  has e v e r y  s c h o o l  day s i n c e  March 16 ,  1981.  S i n c e  much 

may depend,  in  t h i s  a p p e a l ,  upon the  U . S .  Supreme C o u r t ' s  

h a n d l i n g  o f  the  Banas c a s e ,  s u p r a , th e  f a c t  t h a t  Banas i s  

s e t  f o r  a h e a r in g  i n  e a r l y  October  o f  t h i s  year  a l s o  s u g g e s t s  

t h a t  a d v e r s e  c o n s e q u e n c e s  t o  o th e r  p a r t i e s  w i l l  be l i m i t e d .

C. A S t a y  Would B e n e f i t  The P u b l i c  I n t e r e s t .

Under terms o f  th e  C o u r t ' s  o r d e r ,  r e f e r e n c e  t o  a

Master  t o  d e te r m in e  the  e x a c t  d o l l a r  amount due under the  

A ugust  14 o rd er  i s  a v i r t u a l  c e r t a i n t y .  T h i s  p r o c e s s  w i l l  

be t im e -c o n su m in g  and e x p e n s i v e  f o r  th e  j u d i c i a l  system  and 

f o r  the  l i t i g a n t s .  That e f f o r t  and money w i l l  be f o r  

n au g h t ,  s h o u ld  t h i r d - p a r t y  d e f e n d a n t s  p r e v a i l  in  t h e i r  

a p p e a l ,  and th e  p u b l i c  i n t e r e s t  would t h e r e f o r e  be s e r v e d  by 

a s t a y .

- 4 -



CONCLUSION

For th e  reaons  s t a t e d  above ,  t h i r d - p a r t y  d e f e n d a n t s  

move th e  Court  t o  s t a y  i t s  A ugust  14 ,  1985 ,  i n j u n c t i o n  and 

ord er  pending  d i s p o s i t i o n  o f  the  a p p ea l  t h e r e o f .

R e s p e c t f u l l y  s u b m i t t e d ,

W. J .  MICHAEL CODY 
A t t o r n e y  G e n e r a l  and R ep orter

A s s i s t a n t  A t t o r n e y  G en era l  
450 James R o b e r t so n  Parkway 
N a s h v i l l e ,  T e n n e s s e e  37219 
(615) 741 -3046

- 5 -



CERTIFICATE OF SERVICE

I hereby c e r t i f y  t h a t  a t ru e  and e x a c t  copy o f  the  

f o r e g o i n g  has been hand d e l i v e r e d  t o  Mr. Avon N. W i l l i a m s ,  J r . ,  

A t t o r n e y  a t  Law, 203 2nd Avenue N o r th ,  N a s h v i l l e ,  T e n n e s se e  

37201 and Mr. W i l l ia m  W i l l i s ,  A t t o r n e y  a t  Law, 215 2nd

Avenue N o r th ,  N a s h v i l l e ,  T e n n e s s e e  37201 t h i s  ^  &____  day

o f  A  ----------- • 1985.

STEP«EW N U N N ^  
A s s i s t a n t  A t t o r n e y  G en era l

- 6 -



IN THE UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT K. KELLEY, et al., ]
]

Plaintiffs ]
]

VS. ]
J

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al . , ]

]
Defendants/ ]
Third Par tv Plaintiffs ]

]
VS. ]

3
STATE OF TENNESSEE, et al., ]

]
Third Party Defendants ]

NOS: 2094, 2956

JUDGE WISEMAN

MOTION TO RECONSIDER ORDER GRANTING STAY

PRELIMINARY STATEMENT

On or about Tuesday, August 27, 1985, the third party 

plaintiffs (hereinafter "Metro") received in the mail the third 

party defendants' ("hereinafter the state defendants") motion for 

and memorandum in support of a stay of injunction and order pend­

ing appeal. This stay was granted by the court on or about 

August 29, 1985, the order being delivered by mail August 30, 

1985, to the third party plaintiffs. Metro respectfully submits,

serve "KContrary to the certi •r -i te of serv
V' mai this motion was

EXHIBIT F



t
pursuant to Local Rule 6(b)(3), the stay should be reconsidered 

and denied because:

1. The state defendants have admitted that they will not 

suffer irreparable injury by a stay; anc

2. The stay is likely to harm the public interest and 
Metro; and

3. The state defendants have not demonstrated a substan­

tial likelihood of prevailing on the merits of this case.

STATEMENT OF THE CASE

On August 14, 1985, this court entered an order directing 

the state defendants to step forward to meet their affirmative 

constitutional duty with regard to local school desegregation in 

Nashville. Specifically, this court required the state defen­

dants to fulfill their longstanding affirmative duty to 

desegregate the Nashville public school system, and to foot 60% 

of the cost of the desegregation remedy here in Nashville. As 

this court recognized, the school beard of Metropolitan Nashville 

had been required to "go it alone" during the quarter of a cen­

tury of desegregation efforts, despite the fact that the state 

defendants had, to a large extent, established and fostered the 

unconstitutional system. The court directed that, in the absence 

of an agreement to the amount of participation by the state, the 

case would be referred to a master for determination.

The state defendants filed a notice of aopeal, along with
:eir motion for stay. pr:
r"' 0' o  j. ^ - 0  ■£-  ̂ 0<■*< p t p j '

r' •

no wmc h  was c ran tecor a me



tne s
THE REQUIREMENTS FOR A STAY

The prerequisites for a stay of injunction pen dlHG Spp€a i

under Rule 62 , Federal Rul es of Civil Procedure , are as fcl lows:

[I ]t generally is required tha t (a ) the
applicant make a strong showing that he is 
likely to succeed on the merits of tne 
appeal; (b) the applicant establish that 
unless a stay is granted he will suffer 
irreparable injury; (c) no substantial harm 
will come to other interested parties; and,
(a) a stay will do no harm to the public 
interest.

Wright & Miller, Federal Practice and Procedure, Vol. 11, §2094
at 316.

The state defendants' memorandum in support of the stay 

admits that they will not be irreparably harmed if proceedings to 

determine the exact amount due under the court's ruling were

allowed to go forward pending disposition of the instant appeal. 

Metro respectfully submits that the state defendants have not 

demonstrated, nor can they, that they meet the requirements for a 

stay set forth above.

1. Irreparable Harm to the Public 
Interest and to Metro

As indicated previously, the state defendants have 

admitted without equivocation that determination by a master of 

the amount or amounts deemed owinc will not irreparably harm



1
t h e j. o n g 6 r tr. e ststt c e r troc'ts are permittee t c s n i r k t r, eir 

duties, the longer that rcth the public and Metre will be 

irreparably harmed. (Requirements (b) and (c), supra).

Any appeal of this case is very unlikely to be heard and

determined in Cincinnati any earlier before one or perhaps two
2

years have passed from the date the record is transmitted.

During the time spent on appeal, the master in this case could 

easily hear such expense proof as is necessary for a determina­

tion. If the state defendants then feel a stay is necessary, 

they could apply at that time, then attempt to make the necessary 

showings.

To permit the master's process to proceed will facilitate 

the expedient resolution of this phase of the litigation, includ­

ing most particularly, the long overdue participation by the 

state in the desegregation process. Should the stay remain in 

effect, the state defendants will avoid participation in the 

final implementation of the long range plan developed during the 

time they were parties, and on which plan the public and Metro

2
For example, the original briefs in the attorneys' fees 

part of the litigation in this case were filed in the Sixth Cir­
cuit during the summer of 1983. Oral arguments thereon were set 
for October, 1S84. The decision, later vacated pursuant to a 
petition for rehearing en_ banc , was rendered by the panel in 
February, 1985, approximately two years after this court's order 
setting fees. The opinion from the full court has not yet been 
entered.



Pi 6  6  C n e I p .

2. Likelihood of Success on the Merits

The state defendants have once again relied upon 

Banas v. Dempsey , 74 2 F. 2 d 277 ( 6th Cir. 1964), as the 

cornerstone for their argument that this court should stay its 

decision. Specifically, they argue that because certiorari has 

been granted by the Supreme Court in Banas, the merits of this 

court's decision are in question, and any implementation thereof 

should await the Supreme Court's decision in Banas.

As this court indicated on page 11 of its August 14, 1985 

memorandum, Banas is readily distinguishable from this desegre­

gation case, and it is quite unlikely that any decision of the 

Supreme Court will address the distinction on the facts before 

it. Here, contrary to Banas, state officials continue to deny 

their affirmative duty to rid this school system of the effects 

of prior state unconstitutional activity. As this court found, 

this refusal constitutes ongoing unlawful conduct, just as such 

refusal would constitute ongoing unlawful conduct on the part of 

Metro, or any other entity of state government which refused to 

fulfill its affirmative constitutional obligations. There was no 

such ongoing failure to fulfill an affirmative responsibility in 
Banas.

As this court is aware , th _g ; rvc 1 ves :r; ccr s t ruc‘. io 
two comprehensive high schools , s_r:c with runner extensive 
cross-town busing.



The Public Interest

The state defendants nave argued that the determination of 

the exact dollar amount due under the August 14 order will be a 

time-consuming and expensive process for the judicial system and 

for the litigants. On that basis alone, the state defendants 

argue that the public interest will be served by a stay. Metro 

respectfully submits that the state defendants have a total mis­

conception of where the public interest lies in this case.

From Brown II until 1968, the desegregation cases were 

based on the proposition that equality in educational opportunity 

should proceed with at least "all deliberate speed." Brown v . 

Board of Education of Topeka, 349 U.S. 294,  75 S.Ct. 753,  99 

L.Ed. 1083 ( 1 9 5 5 ) .  This was later modified in 1968 by the 

Supreme Court to require compliance with the Constitution "at the 

earliest practicable date." Green v. County School Board of New 

Kent County, 391 U.S. 430, 438-39, 88 S.Ct. 1689, 1694, 20 

L.Ed.2d 716 (1968). This concern for immediate relief has pro­

vided the rationale whereby the Supreme Court and other courts

across this country have refused stays of desegregation remedies,
4

even when the remedy was unique and costly.

3 .

4
See discussion of stay denied in the unpublished order by 

the Chief Justice, dated August 25, 1970, in Swann v, Charlotte- 
Mecklenburg Board of Education , 399 U.S. 926, 90 S.Ct. 2247, 26
L .Ec.2c 791 (19 7C ; , and Kel 1ey v . Metrccoil tan County Board cf



; e N a £ r. \

chiicrer. are or 

students in the

Vfci'3 €'

1 nvc1v1 ng bo tn 6 O u C £ t 1 Cna 1 and transpi

t n e n d c> e s the U J. —■ w, -J- - *ter est 11 e--i n
5

a master, or in using the time affor

p1e t e the determination of the level

.revirg quality education ter s:i 

~ a corrpreher.sive long range plan 

nsportaticn components. Where 

oregeing a hearing before

thereby expediting and insuring quality education for all 

children at the earliest possible date;
Undoubtedly, in view of the state defendants' current 

posture, they will not only appeal the liability determination by 

this court, but they also will appeal any amount deemed due and 

owing pursuant to a master's report. A reference to a master at 

this time might even permit the Court of Appeals to look at the

entire matter simultaneously.
It should be noted that during the multitude of district 

court and appellate court decisions in tne St. Louis litigation, 

Liddell v. Board of Education, of the City of St. Louis, 731 F.2d

4 Continued
Charlotte-Mecklenburg Beard of Education , 399 U.S. 926 (15 70).
Kelley v. Metropolitan County Board of Ecucation of Nashville, 
Tennessee, 436 F. 2 c S56, 658 (6th Cir. 1970).

ig anc expensive for the litigants. Metro 
s is necessarily so, although even if it 
srest would militate against a stay. It does
I £_ ■*- ̂ s r r c c 0 € c i n 3 dy t h 0 T's s 16 r i r.

5
The state def

will be time -co nsu mi
does not b e11 e v e thi
W6 r 6 , the pu Cl 1 c in t* 1
r. c * atrear fr r* 6-/. s ̂ rc>. - • — - w.' V . ------
I- e 1 •. - 5 -
n c c tb P 1' _ . V TUTt.- r; ?



Missouri has been required to( 8t r, Ci r - 1S 6 4 ) , : av t

millions of dollars in d e s e g r e g a t i o n  costs. To Metre's know­

l e d g e ,  during tne appeals of the District Court's decisions, no 

stay has been ordered. According to counsel for the St. bouis 

school system,6 Missouri is now, and has been for some time, 
participating in the desegregation remedy on an annual monetary 

basis, just as Tennessee should be  required to do.

CONCLUSION

For all of the foregoing reasons, the third party 

plaintiffs respectfully submit that the stay granted by this 

court should be reconsidered and dissolved.

Respectfully submitted 

WILLIS & KNIGHT

Nashville, TN 37201
Attorneys for Third Party Plaintiffs

Mr. Paul p 0 ci .



of theI hereby certify that a true and exact copy

foregoing document has been forwarded to y r St ephe n Dou ghty

Deputy Attorney General, 45 0 James Rober t son Parkway,, N a s h v i

TN 37219 and Mr. Avon Williams, Attorney for Plaintiffs, 203 

Second Avenue North, Nashville, TN 37201 on this day of

September, 1985.

WILLIS & KNIGHT



IN THE u n i t e d  s t a t e s  d i s t r i c t
MIDDLE DISTRICT OF TENNESSE 

NASHVILLE DIVISION

COURT
p

ROBERT W. KELLEY, et al., ]"I
Plaint if fs ]

]
VS. ]

]
METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al., ]

]
Defendants/ ]
Third Party Plaintiffs ]

]
VS. ]

]
STATE OF TENNESSEE, et al., ]

]
Third Party Defendants ]

NOS : 2094, 295 6 

JUDGE WISEMAN

MOTION TO VACATE ORDER GRANTING STAY

The Metropolitan Nashville Board of Education, et al. 

(hereinafter Metro) hereby moves the court pursuant to Rule 60, 

Federal Rules of Civil Procedure, to vacate the stay order 

previously granted in this cause and to reconsider its findings. 

As grounds therefor Metro recites that the state defendants have 

taken a position on appeal which threatens the effectiveness of 

this court's order and may irreparably harm Metro and the public 

school children in this city if the stay remains in effect. 

Accordingly, Metro respectfully reguests that this court 

reconsider its order granting the stay and vacate it.

EXHIBIT G



Respectfully submitted,

WILLIS & KNIGHT

By:

B y:

^Strian F. Ha^fig'on

215 Second Avenue North 
Nashville, TN 37201

Attorneys for Defendants and 
Third Party Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the 

foregoing document has been forwarded to Mr. Stephen Doughty, 

Deputy Attorney General, 450 James Robertson Parkway, Nashville, 

TN 37219, and Mr. Avon Williams, 203 Second Avenue North,

Nashville, TN 372 01 on of September, 198 5.

WILLIS & KNIGHT

Maid.an F. tj&'rrlson

2



ROBERT

IN' THE UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT CF TENNESSEE 

NASHVILLE DIVISION

W . KELLEY, et al. , ]
]

Plaint if fs ]
]

VS. ]
]

METROPOLITAN COUNTY BOARD OF ]
EDUCATION OF NASHVILLE AND ]
DAVIDSON COUNTY, TENNESSEE, ]
et al., ]

]
Defendants/ ]
Third Party Plaintiffs ]

]
VS. ]

]
STATE OF TENNESSEE, et a 1. , ]

]
Third Party Defendants ]

NOS : 2094, 2956 

JUDGE WISEMAN

MEMORANDUM IN SUPPORT OF MOTION TO 
VACATE ORDER GRANTING STAY

PRELIMINARY STATEMENT

On or about September 16, 1985, this court denied without

comment or reasons the application filed by the Metropolitan

Nashville Board of Education, et al. (hereinafter Metro) for

reconsideration of the court's previous order entered on August

29, 1985 summarily granting the state defendants' motion for stay
1

of injunction pending appeal. On September 17, 1985, the state

1
The motion for reconsideration was based upon Local Rule 

which provides that if the court acts on a motion before the ten 
day time period for response runs, the non-movant's response will 
be considered as a motion for reconsideration.



defendants filed their statement of issues in tne Court of 

Appeals, a copy of which is attached hereto as Exhibit A. This 

statement indicates that the state defendants are seeking rever­

sal of this court's order requiring payment of desegregation 

costs from 1981 to date, in part because that award is impermis­

sibly retroactive under the Eleventh Amendment.

Because the state defendants have admitted in their 

memorandum in support of their application for stay that they 

cannot meet one of the necessary elements for stay--that they 

will suffer irreparable injury if the stay is not granted; 

because the statement of issues filed this week in the Court of 

Appeals indicates that the state defendants are seeking relief 

there which, if granted, will render a large portion of this 

court's order ineffective if the stay remains in effect to the 

irreparable detriment and injury of Metro and the public served 

by the school system; and because the state defendants have not 

demonstrated that they can meet the remaining prerequisites for a 

stay, Metro respectfully submits that this court should recon­

sider its order in light of the state's position on appeal and 

modify or rescind its order.

ARGUMENT

1. The state defendants' position in the Court of Appeals 

refutes their contention that the stay they are seeking will simply 

preserve the status quo and will not cause irreparable injury to

Metro or to the oublic.



it continues to shoulder the desegregation burden alone is 

another day that threatens not only the desegregation plan which 

is being implemented, but also the quality of educational ex­

perience for all of its youngsters. As Dr. Bill Wise's affidavit 

submitted with Metro's motion for summary judgment indicates, 

many programs, including desegregation programs, have, of neces­

sity, been implemented at a minimal level, and other programs or 

needs of the school system have been cut or deferred indefinitely 

(Exhibit B). Accordingly, Metro was concerned that a stay of the 

proceedings at the District Court level would further delay the 

state's participation for possibly two years or more on this

appeal. If the appeal is resolved in Metro's favor, it will
2

undoubtedly be followed by discovery concerning the specific 

degree of participation in preparation for hearings before the 

Master, whose findings the state will also likely appea1. This 

procedure will effectively permit yet another generation of Metro 

students to suffer because the state defendants refuse to meet 

their constitutional duties.

The state defendants statement of issues on appeal illus­

trates on a more pragmatic level how they, by asking for a stay, 

are seeking not only to delay their participation, but also to

2
As this court will recall, at one of the status 

conferences in this case, General R. Steven Doughty indicated 
that should the motion for summary judgment be granted on the 
issue of liability, the state defendants might well want to take 
additional discovery regarding the desegregation expenses 
incurred by Metro.

3



reduce or eliminate it merely by delaying these proceedings.

While Metro does not believe that the state's position regarding 

retroactivity is meritorious, the logical extension of that argu­

ment should the state defendants prevail is that they should 

never be required to participate in any desegregation plan other 

than on an annual recurring basis. Thus, in asking for a stay 

and telling this court that no one will be harmed thereby during 

the pendency of this appeal, the state defendants have misstated 

themselves and the court has been misled. Should the state de­

fendants prevail in their argument before the Court of Appeals 

and be ordered to participate in Metro's desegregation plan only 

on an annual recurring basis, the delay which will accompany the

stay will render largely ineffective this court 's intention
3

through its order, and will irreparably harm Metro and the 

public school children in this city who are now in need of and 

entitled to long awaited state aid.

3
Rule 62(c) authorizing the trial court to suspend, modify, 

restore or grant an injunction during the pendency of an appeal 
in injunction cases is in essence a codification of the "inherent 
power of courts to make whatever order is deemed necessary to 
preserve the status quo and to insure the effectiveness of the 
eventual judgment." 11 Wright & Miller, Federal Practice and 
Procedure , §2904 at 315. In this instance the granting of the 
stay threatens the "effectiveness of the eventual judgment." If, 
for example, the Court of Appeals finally decides in 1988 that 
the state is constitutionally liable for desegregation expenses 
only on an annual recurring basis, three years of state 
participation will have been lost.



2 . The state defendants have admitted they will r.ct 

suffer irreparable injury in the absence of a stay, and they 

have not shown, that they are likely to succeed on the merits of 

their appeal.

With regard to the additional elements a court mus t find 

present before it grants, restores or modifies an injunction 

pending appeal, Metro refers again to its brief filed in 

conjunction with its motion for reconsideration. (Copy attached 

as Exhibit C.) In summary, the state has admitted that no harm 

will come to them if a stay is denied, and have not shown that 

they will likely prevail on the merits of the case.

CONCLUSION

For all of the foregoing reasons Metro respectfully 

submits that the stay order issued by this court on September 16, 

1S85, pursuant to reconsideration under Local Rule 8(b)(3), 

should be vacated.

Respectfully submitted,

WILLIS & KNIGHT

By:

By:

215 Second Avenue North 
Nashville, TN 37201

Attorneys for Defendants and 
Third Party Plaintiffs



:ate of servici

I hereby certify that, a true and exact copy of the 

foregoing document has been forwarded to Mr. Stephen Doughty, 

Deputy Attorney General, 450 James Robertson Parkway, Nashville, 

TN 37219, and Mr. Avon Williams, 203 Second Avenue North, 

Nashville, TN 37201 on this _day of September, 1985.

6



( z y l y }  b ' - l *  A
\

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CIVIL APPEAL PRE-ARGUMENT STATEMENT
?‘ EASE TV!>E OR PO|Nr at-ach 4DDIr'0NAt PAGES 'NECESSARY

.......  / ■N.S-NAl .■« ,N JV  5,.;
ks  5 ’

T-
\

I r -  n a e rocc, £»- b t r  Uo
•£

TITLE IN FULL.

Robert W. K e l l e y ,  et a l  v.
M e t r o p o l i t a n  County Board o f Educat ion  o f
N a s h v i l l e  & Dav id son  County, 
v .
S ta te  o f  Tennessee, et a l

Tennessee, et a.

' j 1

District td.D. Tenn judge Wiseman

CATE COMPLAINT DISTRICT COURT 2094
F'LED / DOCKET NUMBER 2 9 5 ^

DATE NOTICE OF IS THIS A
■ APPEAL RILED CROSS APPEAL7 I  y£S

HAS THIS MATTER 3EEN BEFORE THIS COURT PREVIOUSLY7 
•f YES STATE

S YES

CASE NAME
CITATION DOCKET NUMBER

NAME

J. M ichae l  Cody

ATTOPNEY(S) FOR:
APPELLANT:
| ) PLAINTIFF W.
i l OEFENDANT 
| X OTHER iSRECIFYl 
T h i r d - P a r t y  Defendant

R. Stephen Doughty 
Stephen Nunn

APPELLEE
i l PLAINTIFF 
I , DEPENDANT 
ix i OTHER (SPECIFY,

ADDRESS

450 James Robertson  Pkwy 
N a s h v i l l e ,  TN 37219

Same
Same

TELEPHONE

(615)  741-6474

(615) 741-6440 
(615)  741-3046

Th i rd -P a r t y P l a i n t i f f
W i l l i am  R. W i l l i s  215 Second Ave, No.

N a s h v i l l e ,  TN 37201
(615)  259-9600

CHECK AS MANY AS APPLY
A. JURISDICTION

X ccrjJQiL 1 AM>EUAT£ 1 STAGE OF ppOCEEONGS
0 DISTRICT COURT DISPOSITION

2 fy0£ Of -uXMEHT :aCE° aP̂ alED 3 REL EF
X • ;EDES»l QuESTON 1 • P.NAI OEC.SON Of . ppe trial ■ - DEFAULT-uOGMENT .uSGMENT COUAT : AM AGES

• 3ivE»Sî DISTRICT COURT
X 1 NTERlOCuTORv OCCIS'ON . DlRiNG tpial DEC S'ON. dismissal jurisoict'On .lOGMEnT • jury

AMOUNT SOUGHT s ---------
AMOUNTl : aAANTEO

• ■ Oth6B S P E CFyi appealable as of sight
1 1 NTSRlOCUTOAV OPCEB CERr'Fi£9 9y 0*STRICT 

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1 ' deClaaatoav judgment , ;:«ECTEO VEROICT 

, , QTmEII SPtClFVi

O iH :iO J
i NJUNCT'ONS V, PRELIMINARY OR tA . PERM AN

,X . GAANTEO 3< 1 1 GEN e:

C. NATURE OF SUIT
PEOERAL STATUTES 

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PAGE 2 CASE NAME. Kp 1 y V Mpi-rn Rrl. nf Pr!. -SLaLe TH CIRCUIT NUMBER . 83-5794

0 GENERAL
BASED OK YOUR PRESENT KNOWLEDGE:

I D  DCES THIS APPEAL WVOlvE A QUESTION OF P'PST MPPESSiON’ $  VES I  NO
t2) WILL THE DETERMINATION OF THIS APPEAL TURN ON THE INTERPRETATION OR APPLICATION OF A PARTICULAR CASE OR SrATU'E’ I  YES 

F YES. PROVIDE.
CASE NAME/STATUTE

NO

CITATION DOCKET NUMBER iF UNREPCRTED
(3) IS THERE ANY CASE NOW PENDING OR ABOUT TO BE BROUGHT BEFORE THIS COURT CP ANY OTHER COURT QR ADMINISTRATIVE AGENCY WHICH 

(A) ARISES FROM SUBSTANTIALLY THE SAME CASE OR CONTROVERSY AS THIS APPEAL’ I  VES Xl NO 
(8) EVOLVES AN ISSUE THAT IS SUBSTANTIALLY THE SAME SIMILAR OR RELATED TO AN ISSUE IN THIS APPEAL’ X y£S ~ NO 

IF YES. PROVIOE.
Banas v. Dmepsey 
742 F.2d 277

6th  C i r

CASE NAME

CITATION DOCKET NUMBER IF UNREPORTED. COURT OR AGENCY
(4) WILL THIS APPEAL INVOLVE A CONFLICT OF LAW WITHIN THE SIXTH CIRCUIT’ I  YES X: NO 

IF YES. EXPLAIN. BRIEFLY
AMONG CIRCUITS’ YES NO

ISSUES PROPOSED TO BE RAISED ON APPEAL. INCLUDING JURISDICTIONAL CHALLENGES:

SEC ATTACHMENT NO. 1

THIS IS CERTIFY THAT THIS CIVIL APPEAL PRE-ARGUMENT STATEMENT WAS MAILED TO THE CLERK OF THE U S. COURT OF APPEALS FOR THE 
SIXTH CIRCUIT AND A COPY THEREOF SERVED ON EACH PARTY OR THEIR COUNSEL OF RECORO THIS

/ 7 -J- , DAY OF



KELLY ISSUES CN APPEAL

1 .

2 .

3.

4.

5.

6 .

7 .

Whether the District Court's order violates the Eleventh 
Amendment by requiring funds to be expended from a state 
treasury without ordering substantive injunctive relief.

Whether the District Court's order violates the Eleventh 
Amendment insofar as it awarded relief retroactive to 
March, 19 81.

Whether the existence of state constitutional and statu­
tory provisions mandating segregated public schooling 
prior to 1954, standing alone, was insufficient to 
impose liability on the State defendants in this case.

Whether the undisputed facts in this case fail to sup­
port the Court's summary judgment against the State 
def endants.

Whether the Statute of Limitations oars Third-Party 
Plaintiff's claim.

Whether the equitable doctrines of laches and/or unclean 
hands bar Third-Party Plaintiff's claim.

Whether the evidence before the court was
to support its setting reimbursement to 
Third-Party Defendant at 6C% of Third-Party

i ns uf f ici ent
be pa i d by 
Plai ntif f's

desegregation related costs.

ATTACHMENT NO. 1



EXHIBIT B

AFFIDAVIT OF BILL WISE



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT W. KELLEY, et al. )
)
)

VS . )
)
)

METROPOLITAN COUNTY BOARD )
OF EDUCATION OF NASHVILLE )
AND DAVIDSON COUNTY, )
TENNESSEE, et al. )

)
VS . )

)
)

STATE OF TENNESSEE; LAMAR )
ALEXANDER, GOVERNOR OF THE )
STATE OF TENNESSEE; ROBERT )
L. McELRATH, COMMISSIONER )
OF EDUCATION; and STATE )
BOARD OF EDUCATION )

NOS. 2094, 2956 
JUDGE WISEMAN

AFFIDAVIT OF BILL M. WISE

STATE OF TENNESSEE)
COUNTY OF DAVIDSON)

The Affiant, BILL M . WISE, being first duly sworn, here­
by deposes and says:

1. I am the Assistant Superintendent for Business and 
Facilities Services for the Metropolitan Nashville Public School 
System. I have held that position since 1983. Prior to 1983 I 

was Assistant Superintendent for Facilities 3rd Services for the 
school system from 1971 to 1983.

j



2. My duties in these positions have involved the 

supervision of transportation, zoning, business and budget mat­

ters, and the school desegregation case, among other duties.

3. I have been intimately involved in the desegregation 

process in Nashville since prior to Judge Morton's desegregation 

order in 1971. Since that order, the school system has spent, 

through 1982, over $20,000,000.00 in transportation costs alone 

(including capital costs) for desegregation purposes. The annual 

recurring costs for the plan now in effect are approximately 

$6,000,000.00 (after the initial start-up year). These recurring 

costs include operating costs (not capital costs) and the current 
costs of the educational components.

4. Since mandatory busing for desegregation began in 

1971, the school system and its students have suffered both 

financially and educationally from the added expenditures. Im­

mediately after the 1971 order, a shortage of funds and buses 

required severely staggered opening and closing schedules for 

schools, beginning as early as 7:00 A.M. and as late as 10:00 

A.M., and closing as early as 2:00 P.M. and as late as 4:30 P.M. 

For a short period we were able to improve slightly the schedules 

of elementary schools, but budget deficiencies have since forced
a return to undesirable schedules.

5. The mere staggering of these schedules is an impedi­

ment to the educational experience for small children, especially
mo s t  als an attentive hours are often exhausted

2



before they arrive at school as late as 9:30. Further, some of 

these same children often arrive home after dark, a condition 

which, at minimum, concerns parents. Finally, the staggered 

opening and closing schedules are inconvenient for parents, 

especially for families with children of different ages or for 

families with working parents, and this inconvenience plus the 

educational detriment accompanying it fosters some loss of public 
support for the public schools.

6. Eecause desegregation must be considered a first 

priority fixed expense, it has an impact on other areas of educa­

tional services. Since 1971 we have essentially been proceeding 

on a status quo budget, deferring expenditures which cannot be 

deferred indefinitely. Some programs have been cut, other pro­

grams, including the educational components contained in the 

desegregation plan, can only be funded at a very minimum level.

In 1982-1983, the 5oard of Education adopted a list of critical 

needs, attached hereto as Exhibit 1, only two of which needs have 

been funded. Some of these projects have been deferred for many 

years, including such things as air conditioning of schools 

(schools were closed for four days last year because of heat), 

adequate maintenance and repairs of school buildings and equip­

ment, replacement of school equipment, and the like. While the 

Beard has attempted to concentrate its budget cuts in the areas 

of facilities and equipment, such expenditures can be deferred

c m y  so long before they have a detrimental effect on the



educational environment.

7. In the middle 1970's, when changes in the State's 

transportation formula were being considered, the Board and staff 

approached legislative members and the Commissioner of Education 

to plead for recognition of systems like Nashville where manda­

tory desegregation costs were escalating. (See Exhibit 2). The 

formula was changed to Nashville's detriment, but the Davidson 

County delegation of the legislature was able to grandfather the 

system's current budget for five years of gradual cuts -- T.C..A. 

§4 9-3-30 9 (c ) . The grandfathering has expired, and the transpor­

tation reimbursement has been cut drastically. For example, in 

1977-1978 before the formula changed, 39.30% of Metro's transpor­

tation budget was reimbursed by the State. In 1983-1984, 12.46% 

of Metro's transportation was reimbursed. Meanwhile, the total 

expenditures for Metro in the area of transportation were in­

creased, particularly with the Court’s order of 1983-1984. None 

of these figures for reimbursement include sums for the purchase 

of buses, since the State formula does not provide a single dol­

lar for purchase of school buses. Neither does the State formula 

take into account time or distance on the bus, or actual costs of 

transportation in a school system.

8. In the last year for which State statistics are 

available (1982-1983), a comparison of the percentages of local 

transportation costs reimbursed by the Stare reveals that Metro's 

reimbursement is substantially lower than the vast majority of



school systems around the State. In many of these school 

systems, the State provides over 40% of the local school system's 

costs , and in a significant number of cases the percentage is

substantially higher. Meanwhile, in 1982-1S83, only 15.22% of
1 /

Metro's transportation costs were paid by the State.

9. In my position, I am now, and have been since 1970, 

in charge of supervising the selection of new school sites in the 

construction of new schools. To my knowledge, all school sites 

and construction have been subject to approval by the Commis­

sioner of Education, both before and after my tenure, pursuant to 

stringent rules and regulations imposed by the State Board of 

Education and enforced by the Commissioner.

10. Since the Court Order of 1971, I have received 

numerous complaints from parents and the public that the school 

system is in violation of T.C.A. §49-6-2101 which, as I under­

stand it, prohibits the use of State funds for the purpose of 
achieving a racial balance or quota.

11. In the past two years or so, in my supervision of 

the desegregation case, T.C.A. §4 9-6-3005(c ) has been used as a 

defense to the mandatory assignment plan under which we are now 

operating. (See Exhibit 4) . In addition, the Board of Education 

has spent hundreds of hours in 1979 and 1980 hearing appeals of 

students denied transfer under the general procedural framework

A / T!̂ e attached table was prepared under my supervision 
utilizing the 1 9 8 2 - 1 9 8 3  annual statistical report of the 
Department of Education. (Exhibit 3).



of T.C.A. §49-6-3201 in order to give them an opportunity for 
State mandated vocational education.

FURTHER THE AFFIANT SAITH NOT.

BILL M. WISE
Sworn to and subscribed before me 

this l j ±  day of December, 1984.

■Mnot^ ry p u b l i c

My Commission Expires:.  My C onim ission  Expires C c t  2 3 ,  1 5 3 3

6



CRITICAL PROGRAM AND CAPITAL NEEDS

Transition Classes

To provide transition classes after grades 
3 to 6 (50 classes w / ratio of 1:20)

To provide summer transition classes after 
grades 3 to 6 (3 hour six-week prograi - 30
classes at 1:20)

Classroom Mater ia l s

T )Tv.\

V

\

Increase allocation of supplies and materials 
by approximately 25 percent

Ai £_-Cond ltioning

To provide cooling in non-airconditioned 
classrooms, cafeterias, etc. by the use of 
central type mechanical equipment ($5,438,720)

Language Arts Teachers Grades 7 and 8

To add 48 language arts teachers to staff 7th 
and ffth grade Fundamentals classes at 1:20

Den mg-Closing Sch.edu 1 es

To improve opening and closing schedules 
($1,530,000)

Improve Maintenance

To improve general building repair of schools 
'JPguage Arts Teachers 9-12

To add 27 language arts teachers, decreasing

OPERATION

1 , 0 7 5 , 0 0 0  

45.000

185,000

92.000

1,048,800

312,000

651.400

-  ) -

DEBT 5 F»V I •' F 
FOR

• • \ p r r a l

- 0 -

- 0 -

5 4 3,8 72

- 0 -

153,000

- 0 -

-C-58L,175



- 5 -

CRITICAL PROGSAM AND CAPITAL NEEDS
DE3

OPERATION

Tur r i :u I _n Development

To continue curriculum development in the 
basic skills in grades 7-12

Pupi 1-Teacher Ratio

To reduce the pupi1/teacher ratio by an 
average of one in grades K-12

Libraria n s

To employ three add itional librarians in 
order to provide full-time service for 
every school with 300 students

£ tipi 1 Personnel El em e n t a ry

To employ 26 Pupil Personnel specialists 
for grades K-6 to provide counseling, 
attendance, and social work service to 
s tudents

Special Education Centers

To begin the operation of a center for 
serious emotionally distnbed teenagers

To expand the dual diagnosis center’s 
services to students who are severely 
handicapped

50,000

1,748,000

65,500

645 ,840

482,500

108,700

SERV Ic
FOR
A PITAL 

- 0 -  

- 0-  

-0 -

-0 -

- 0 -

- 0-



C>j nmunitv :.i .:ati:n

CRITICAL PROGRAM AND CAPITAL SEEDS
CE3 l S l.RV I\_ c.

FOR
CPF. RATION CAPITAL

To employ six part-tine program facilitators 
at satellite sites for the Community Education 
Programs at East/Warner, Glencliff, and McCavock, 
and to provide contingency funds to be used for 
classes (particularly in the inner-city schools) 
where enrollment is less than adequate to cover 
cos t s

To provide part-time clerical assistance for 
tne East/Warner and Glencliff Community 
Education Centers

G if t ed

To increase the numbers of teachers in the 
gifted program from seven to ten to expand 
the special focus program to grades 7 and 3

> r u g F in - - t 1 .

Conn selors

Test . ng

To expand the current School Team approach 
for the prevention of alcohol/drug use by the 
training of additional teams 3nd the identifi­
cation of a coordinator for the program

To employ 23 counselors to reduce the ratio in 
secondary schools to 1:300

To update and extend existing systemwide 
standardized testing by adopting new achieve- 
~er,t tests for grades, K, 1,2,4,5 and 7

15,000

10 ,000

72,621

45,000

571,320

19,166

- 0 -

- 0 -

- 0 -

- 0 -



Computer Coordinator

CSIiICAL PRCG.aA.H AND CAPITAL SEEDS

OPERATION
DEBT SERVI 

FOR
C\PITAL

To employ a coordinator of computer assisted 35,000
instruction, curriculum development, ar.d 
manaqemen t

Micro-c o nputers

To purchase micro-computers for use in grades 220,000
1-6

P^Pi1 Personnel Services

To expand related pupil personnel services and 156,727
counseling for students as identified in lEP's 
(3) and to meet increased demands for testing(3)

- 0 -

- 0 -

- 0 -

Spec ial Educat i on

To provide for additional special programs 486 916
needed by current students: for new students
in special programs and resource rooms; and
allowing a reduction in the pupi1 -teacher
ratio (18 teachers, 12 aides)

Lxbraria n s

To provide a full-time librarian for each 22 996
school having an enrollment of 300. (This 
position is in add 1 1 ion to the three presently 
listed in the Resource Planning Document)

Library Miternls Clerks

To provide eight additional library materials 
clerks for elementary schools with Southern 
Association deficiencies or with large enrollments

- 0 -

- 0 -

- 0 -



a * .*■*, -cut*« i m i i M K M a w  M a n M M  -y^i-.ww— H M M M M W w a a i  teMWUM nm aatoa iM m ucw teo u i"  » x i  ijp a w am— an—  a —  t  a—  r-rfivinn-afl* m m m m — iw m im u m w b m i ----------- .,

- 3 - -

CRITICAL PRCCRAM A ND CAPITAL LEEDS

OPERATION
DEBT SERVICE FOR

CAPITAL
Summer Library Program

To open ten elementary libraries one day per 
week for four weeks in summer of 1984 (Public 
Library to pay similar cost)

1.175 - 0 -

Participation in the Arts
To expand the number of schools participating 
in NIA to the maximum for 1984-85 63,000 0-

Replacement of Equ i pment
To replace 300 typewriters in Business Education 
to begin a seven year cycle of replacement 195,000 -0 -

S c l) o o l Aides

To increase the aides available to school by 
providing additional funds to replace the lunch- 364,255 - 0-

room attendants with general aides for elementary 
and 5-6 middle schools. School having fewer than 
200 students would be assigned an aide for one- 
half day (4 hours) and schools having more than 
200 students would be assigned a full-time aide 
(7.5 hours). This aide would also serve as the 
lunchroom attendant for the appropriate number of 
hours per day and work in the school office, 
clinic, classrooms, etc., for the remaining hours of the assigned day

: £ 5 5 Supplies and Materials
To increase appropriation for Materials in Lieu 78,306
of Textbooks by 1) upgrading and replacement of 
kindergarten manlpu1 a1 1ves, 2) availability of

-0 -



>- /* / A Fut'.A iH ftfa UJ8W* - . M . • - . —w ii'iW U B i fei& fcfi»9fcfa»A t& O & M t **i « : j KaM3U&t f Oi , a t t i c

- 9 -
CRITTOL 5\D n o T ^ i  r vcrnc---------------- 1.1 _  *■ J -"ruLO. DEBT SERV [C

FOR
OPERATION CAP [ TA (.,

1' 1 a ? - tooti Suppl res  and Ma t e r i a i s  ( Cont . )

OCRP and MIP m a t e r i a l s  at no c os t  to l o c a l  
s c h o o l s  and 3) a n c i l l a r y  m a t e r i a l s  for adopted  
t e x t  (This  r equest  i s  in add i t i on  to the program 
l i s t e d  in the Resource Planning Document)

School  Equipment

To r ep la c e  worn-out . t y p e w r i t e r s  and other  o f f i c e  
equipment such as d u p l i c a t i n g  machines to begin  
a ten year  replacement  program for school  e q u i p ­
ment.  This l e v e l  of  funding would permit the  
replacement  o f  wet c o p i e r s  with dry c o p i e r s

P lant  Maintenance

To improve gene ra l  r ep a i r  o f  s choo l  b u i l d i n g s
To improve repai r  of grounds and o u t s id e  
u t i l i t i e s ,  inc lu d i ng  paving

!Cl_bt i» J v- F a c i l i  t i e s

To make m o d i f i c a t i o n s  n e c e s s a r y  to expand and 
improve l i b r a r i e s

Rpi , LK: ^ - nt o f  Worn-Out Furni ture  and Eau i pmen t

Classroom f u r n i t u r e  

Student  l ockers

Counselors

86,478

200,000  

500,000

300,000

323,000  

115,200

To employ 20 fu 1 1 - *■ -Lme 
(1:200 s e n i o r s )  in the placement counselors 

high s c h o o l s

- 0 -

- 0 -

- 0 -

- 0 -

-0-

-0-

0-496,800



niivrtrt̂ rtflKVi1 rii ̂atr ̂  rfcir.M

-  L ' J  -

CRITICAL FRCGRAH AND CAPITAL NEEDS

-School Suscension Centers
OPERATION

DEBT SER^It
FOR

CAPITAL

To replace substitutes with regular 
in the In-School Suspension Centers

teachers 
(25 Centers)

546 ,250 - 0 -

Support Services

To increase the support services for the students 100,000 -0-
residing in group homes and/or Juvenile Court by 
the provision of two- teachers plus part-time 
tutors

Driver Education

To provide driver education instruction for 222,550 -0-
high school students at the level of the 
program in 1980 (seven teachers)

Bi 1 i n q u a I Pro gram

To continue present bilingual program using 70,221 -0-
native language instructional aides

Sy s t e rnw irje Screening

To facilitate the mandated systemwide develop- 54 150 -0-
mental screening program in grades K-1,3,5 and 
9 by providing personnel and equipment to test 
students

Data Processing

To purchase 
with the ma 
of Research 
and analyze 
to schools

a computer 
i n f r a - n e ,  a l  

and E v a l u a  
t e s t  d a t a

which will interface 
lowing the Department 
tion to better utilize 
and provide more data

16 ,260 -0 -



i ■ i "i-' '*-Vr-i T i ’n • Jhfrir‘‘a~fl ffi i i frmfri i 1 TlI*f11 -ASKkti&a***

CRITICAL PROGRAM AND CAPITAL NEEDS

cro-Compu ters

To implement a pilot Home Economics program in 
Home Computer Usage

Comput er Technici ans

To employ a computer technician to assist 
teachers in the use of micro-computers

Currlculum Materials

To purchase special education curriculum 
materials for local school based oroarams 
(1984-85)

A V Tec?inicians

To employ three av/electromc technicians in 
1984-85 and three additional ones in 1986-87 
to operate and maintain equipment in the 
comprehensive high schools

hi f- i p a t i o n  ij i t h e  A r t s

To increase by ?5’X the system's contribution 
to the Cumberland Museum ( $ 3 , 5 0 0 ) .  the Nashville 
Symphony ( $ 3 ,000 ) .  and the Nashville Academy 
Theatre ($2,500)  1

io:Visual Equipment

School audio-visual equipment

X5'V.'..l...ron<1 iKqu l pmen t

OPERATION

1 0 , 0 0 0

24,000

150,000

45,000

9,000

100,000

-11-'

DEBT SERVIC! 
FOR

CAPITAL

-0 -

- 0 -

-0 -

- 0 -

- 0 -

0-

Vocational equipment originally purchased bv 
the State Y 100,000 -0 -



- 1 2 -

o r r 11

F̂ r-j

P«pl

R ."m ! j o

Con t i

£?..LLr_(I*_rfJLR0GRAM AND CAPITAL NEEDS

~e Equipment
OPERATION

Office
Elementary Program

- PupiL Personnel Centers 
school guidance offices

I Personnel Equipment

To purchase "call back" machine for use by the 
Attendance Department

» 1 '/ F'qu i pmen t

To purchase an elevator at Waverly Belmont to 
facilitate the movement of books and equipment

cement_of >iorn-out Equlpment

Transportation shop trucks, w r e c k e r s ,  e t c .

Warehouse equipment

Microfilming equipment 

Bcokbindery equipment 
s for School Buses

To add 50 two-way radios to school buses
rrgency Fund

11,300

5,000

40,000

158.500

16.000

7,150

4,810

50,000

A 2% contingency fund to be expended for 
for unanticipated increases that occur 
after the final budget adoption

3,472,640

DEBT SERVir 
FOR

CAP I PAL

- 0 -

- 0 -

-0 -

- 0 -  

- 0 -  

- 0 -  

- 0  -

- 0 -

- 0 -



ELBERT D. 8R00KS
DIUCTCW Of IC M O Oli

• o p u tm i i a n
7 * •§-*9 f h j •** 5̂  ̂ .$AL«/ Schools

& ft 0  \ SSKANStPOyt O A V S£ N U 2 
WA8 3 VI LLE,  TSHPf.  3 ? 2 0 •»

March 10, 1977

T h e  H o n o r a b l e  John H i c k s  
S u i t e  5
L e g i s l a t i v e  P l a z a  
N a s h v i l l e ,  T e n n e s s e e  3 7 2 1 9

D e a r  S e n a t o r  H i c k s :

m 6 ^ ? r i r er 6pi‘2arr po" ; “ on in Davidson s ^ o i  Y ci r
b u r a e d  the f„ ’ , a ’ , ' ° ° '  t h ‘ “ * n10un ' , h '  S “ “ '  h a .  h e r e t o f o r e  r e i n , -

18 rlCt at a rate ° f  approximately thirtv-two 32) Derrent  or approximately $1, 604 177 00 if .u , , y ° percent
received from the State k ,C neW ormu.a :b paeeed,  the amour.!
which will  - c o r e  • . ! b<! rcduc<;d to approximately $960, 000. 00
for t « n , M , t a  k T lyv 4,a°Ul n,n' t" :n 0 9 )  percent of the annual coat porting school children in Davidson County.

0Wur'concerna.r^  c t h i ' * ' ° rnlUla W“  b“ "S w« axpre .aed
on th, , ^ t° r T r er Ir'eram and h ,“ *u h  ,or the « « • “ «  - p -
of  the formula to 7  ^  maj0r  co"“ r"‘ a « t  M) the failure 
tat 1 mUla t0 rLeco gn^ «  the pr imary cost  features of a pupil tranapor-
de l iver  chl ldrenTo th8 aCtUal, ^ ance travel led and time required to 
conaid i a ; on ass igned schools ,  and (2) the absence  of any
Federal  c l r .  o rde°r ' I  t °  tran8P ° r“ "S ^ t l d r e n  in accordance  with 
c h i l d r e l ^ ^ ; ; ^ ^ ; - -  P « v . n ,  the . . . l a m e n t  of

eWr'..lo m  L w e l l r '  \ T '  ni,m b.°r 1 ra"*P° r a  valid conaid-
weight  of the p e r ^ a p U a T a T u V i ^ p° r Caplt* 6nd lho ^dat ive
n e e * .  F u r t h e r m o r e ,  we see  r.o t r ue  and c on s  
b e t w e e n  the cos t  of  pupi l  t r a n s p o r t a t i o n  and th
A g a ; n , w e  c o i*t c n d  d i s ^ . i ^ c e  f r w.. t > » 4 .

d c t u a i  n u m b

- « —--* ’ ̂
C‘ 1,19 f o r m u i a  tends  to n e g a t e  i t s  e f f e c t i v e -_i

stent cost relat ionship
e o g r a p h i c  s i z e  o f  a c ount '

O ILsb
—s ' uf-jcp-1s t r a n s p o r t e d  are.  f a r

f i e u v e r i r . 3  t  U C 1
n ere

A  / / / / ?  /



The Honorable John Hicks - 2 - M&rch 10, 1977

T h e  l o s s  o f  $ 0 4 4 ,  0 0 0 .  0 0  in S t a t e  r e i m b u r s e m e n t  f or  t r a n s p o r t a t i o n  w o u l d  
h a v e  a s e r i o u s  i m p a c t  on the l o c a l  s c h o o l  b u d g e t  and w i l l  j e o p a r d i z e  the  
d i s t r i c t ' s  a b i l i t y  to p r o v i d e  t r a n s p o r t a t i o n  at the p r e s e n t  l e v e l  o f  s e r v i c e .  
We  a r e  e n c o u r a g e d  by the C o m m i s s i o n e r ' s  i n t e r e s t  and  c o n c e r n  for  the  
p r o b l e m  the ne w  f o r m u l a  p o s e s  for  D a v i d s o n  Co un t y  a nd  a r e  h o pe f u l  that  
e o m e  s t e p s  can be t a k e n  to r e d u c e  the b u d g e t a r y  i m p a c t  o f  the  p r o p o s e d  
l e g i s l a t i o n .

A g a i n ,  I a m  g r a t e f u l  f o r  y o u r  e x p r e s s e d  i n t e r e s t  in t h i s  m a t t e r  and a p p r e ­
c i a t e  the i n f o r m a t i o n  r e c e i v e d  w i t h  y o u r  l e t t e r .

S i n c e r e l y ,

D r .  S a m  I n g r a m , .  C o m m i s s i o n e r  o f  E d u c a t i o n
M a y o r  R i c h a r d  F u l t o n ,  M e t r o p o l i t a n  G o v e r n m e n t
M r .  John R e e d ,  . L e g i s l a t i v e  L i a i s o n  M e t r o p o l i t a n  G o v e r n m e n t
S e n a t o r  Bi l l  B o n e r
S e n a t o r  D o u g l a s  H e n r y ,  J r .
S e n a t o r  Av o n  W i l l i a m s  
R e p r e s e n t a t i v e  J o h n  S t e i n h a u e r  
R e p r e s e n t a t i v e  J a m e s  R.  M c K i n n e y  
R e p r e s e n t a t i v e  C h a r l e s  R.  R o b i n s o n  
R e p r e s e n t a t i v e  E .  M a r v i n  F l e m i n g  
R e p r e s e n t a t i v e  V i c t o r  E l l i s  
R e p r e s e n t a t i v e  H a r o l d  L o v e  
R e p r e s e n t a t i v e  M i k e  M u r p h y  
R e p r e s e n t a t i v e  S t e p h e n  Cobb  
R e p r e s e n t a t i v e  John  C h i l e s ,  Jr .
R e p r e s e n t a t i v e  C h a r l e s  P r u i t t  
R e p r e s e n t a t i v e  R i c h a r d  C l a r k  
R e p r e s e n t a t i v e  E l l i o t t  O z m e n t  
R e p r e s e n t a t i v e  C l a r e n c e  P h i l l i p s  
C o u n c i l m a n  T a n d y  W i l s o n  
D r .  B i l l  W i s e ,  A s s i s t a n t  Supe  r i n t e n d e n t

E D B / j j



L‘ *■!COMPARISON UP L I >1 'i L 
] EANSP0RTA7 l On AL L OLA i l UN 

TO TOTAL LOCAL COO FS

SYSTEM

ANDERSON CD.
CL. i NT UN 
(JAt L l DUE 

bLLFOKu CU.
BENTON CO.
BLEDSOE CO.
BLiJUNT CO.

ALCOA 
MARYVILLE 

BRADLEY CO.
Cl. LULL AND 

CAMPBELL CO.
CANNON CO.
CARROLL CU.

El RUCl BRUCETON 
HUNTINGDON 
NCI LNZ I E 
SO. CARROLL 
WEST CARROLL 

CARTER CO.
EL I 2ABET HTON 

CEIL A THAN CO. 
CHESTER CO. 
CLAIBORNE CO.
Cl m r Cfj.
COCKE CO.

NEWPORT 
COFFEE CO.

MANCHESTER
IULLAHONA

CROCKETT CD.
ALAND
BELLS
CROCKETT MILLS 
FRIENDSHIP 
GADSDEN 
MAURY CITY 

CUMBERLAND CO. 
DAVIDSON Cu.
DECATlJR CO. 
LEU ALB C O . 
Bi n SON CO.

f A > L T

TOTAL STATE S ! t i 1 l.NS PORT A T I ON rKANLF'UP TPiT I ON
BUDGET AL 1 .OCA 1 ION LClCiU. COPTS- —■ —------- --------- -------- ------ --------- -

, 3 /3 , 596 . 34 191,400.UV 1 . V 3 4 Y.l ,899.OO (.) . 90 < 1 . ('ll ll )V
401,013.70 0. <X> (.) . OO' )*'
429,012.00 162,281.05 3 /. 7567.341,049.l4 127,488.10 37.2643243,607.40 I’M  , cj 2 3.49 4 1.71 67.,217,911. £:7 2 76,3<jO. 7 8 22.69 1 7.20,980.99 O . 00 O _ ( m j*:*)"-'
140,u07.US 3‘2,443. 2 /. i >‘\ 3.
936,019.DO 1 / . ■ , o J • 3l'J 18.52. : : :190,977.32 S' 4 , O'/ 1.33 20. 32 37.740,079.Ik 206,217.20 27.6D77.224,942.04 7‘ >,' i•/! 1.12.
0 30,011. Ill 16 3, 2/1 . 15 -• • 41 - • • .10. 00 o . oo 0 . 09* /**427.00 0. oo (i. 0007.0 * 00 9. oo 9 • 000*.6,676.4D o . oo ().OOOM0. Oo 0. Ou 11. (TOi i7.64 9,069.06 185,255.62 28. *542::79,662.14 25,23V.84 2 I . 66 4 7.41D ,322.42 136,399.07 32.8427.2 33,9/6. IE; 97-, 630. 24 4o.0175604,484.40 19 o ,346.72 3 l . 4897.20D ,008.71j 7 4 ,o51.48 *5.9p|5671,222.34 16 3,436. 49 24.3497.C>. 00 0. oo O „ OOl t “
437,936.17 1 _'wj j • 09 ( .i ,'4

3,10D.64 0. oO 9 « 9( M )/'.0,312.30 (j. oo 9.00« )*.31,967.04 1 S', L"/«... 09 47.050520,781.97 10,160.99 48. '.'90518,061.91 C , cV. *6. 30 1 6 . 6 2 : ,522,9D6.09 1J ,627.31 50.6D0513,078.10 2,197.12 -’15.6 4 1 522,192.00 16,4 ,27 . 3 1 74.024524,200.62 1 Si . 2v<!. . 09 6 ‘ /.D7 0,005.77 -- 1 O , 1 4 Ld . 38.2685307,391„29 960 , (TOO. (TO 1 .*“>. ‘ 1V.259,4 25.00 99,225.61 36. 24 1 5274,086.62 1 03 . i .'77 . 4 5 3 7 . 6 i’ • ? *.632,942.55 159,0,v4 . 1 3 2v.87174 3 6,179'. 11 147,33.6. Do30,699.4 7 f. # ( J. ;
' '—' > »—■ U-' . .'wl 214,436.03

A/v £>



TOTAL STATE ST ATE
TRANCHOR iA 1 ION I R ANSf O f 1 A I ION

s y s t e m BUDGET AL l OCATI UN L.IJLAL c o s  I s
KENT REGS CO. 296,950. 56 144,650.93 4 0.711 7.
f KANI-L IN CO. 566,795.90 204,3 56.56 36. v5l5
GIBSON CO. 0 . 0 0 ij.  oo (*). ooo’i

HUMBOLDT 62,908.94 4 2,5 3 5.oi 6 7 . 6  3 07.
MILAN 90,518.56 40,065.23 53. 1007.
TRENTON 196,945.29 34,764.98 1 7.6527.
BRADFORD 54,270. E<3 20,499.04 3 7 .7 727.GIBSON OF. 205 , £919. 93 65,316. i >4 3 1 . / 6 1 7.

GILES CO. 622,500.81 16 8 ,060.09 27. 124*4
GRAINGER CO. 497,729.89 i 22,560.4 2 24.624 V.
GREEN El! CO. 691,893.75 250,4 94.5:;. 3b. b'U V.

GREENVILLE 131,542.37 53,411.56 40.604/1
ORIJNDY CO. 180,535.73 105,245.96 55.0027.
HAMBLEN CU. 430,234.01 140,234.02 LL. 0 0 *.1/I

MORRISTOWN 205,060.71 3/,6 0 0 . 0 5 10.2o55
1 IAMJ l T ON CO. 2 ,ii 34,523.96 3 17 , .0 /. 9/ J*.. 6(.(>7.

CHATTANGOGA 1,571,253.33 3 7 8 , 17 7 .00 2 4 .0687.
HANGOLT LO. 101,734.00 67 ,i -46. 1 1 5.. 1
H A(i DEM AN GO. 4 0 1 ,054 .22 2 0 1  ,.'14. ..'6 4 1 . 11497.
HARDIN CO. 440,621.68 1 7r.», 074 . /a 39.2405
HAULING CO. 763,400.20 246,047.8/ 32. 2 .07.

ROGERSVILLE 12,034 .70 u. uu (_) „ 0» M )b
HAYWOOD CD. 384 ,951 .00 160,273.3o 4 3. /  1 35
HENDERSON Cu. 482,212.07 1 5 2 ,51.5.01 3 1 .6 7 97.

LEX 1 NO TON 0 , 00 (j „ 1)1.1 • t . 1./: ‘i 1 * ’
HENRY LO. 512,014.81 15 V , • >5 I . 0 i 3*5 04 55PAR I 6 49,023.05 3o , 07 v . OX1 6 55 9 725HIT IT’li-iN GO. 411,650.14 159 , 140.95 4 ,. o M  5HOGG T ON LO. 120,202 .30 61 , 65 5 .65 *tl } .1ILIMKT IE K Y S CO. 347,986.65 1 Lb , (' 1 *41 1. Lb 45.. nl 5.• JAl i SON CO. 2 4 7 , 227 . 31 8 7 , 3V9 . 22 35 . 7  1 1 7JL t 1 LIT SON LU. 51 >U ,53/. /  6 179 , 551 . 86 35 . 2605JOHNSON CU. 3 4 8 , 209.56 104 , 3*7 7.14 27.9 / 451 NO a  CO. 4,015,120 . 00 794,871 . 00 lv.7975

KNOXVILLE 253,675.82 0 .  00 O  . l .U .»( ) /„

LAKE CO. 105,972.90 4 0 , 398.00 *1 8. Ct /  i  ,

LAUDERDALE CO. 31 7 , 59 6 . 92 1 G< • ,  7.3.tL * 5 ) .  7o/5
l a w r l n l l  LO. 5 7 0 , 005.50 2 0 7 , 1 oc. .  67 36. ,245LEWIS CO. 133,139.84 G 4 ,210.00 0 L . LLLX1 INLUt N LO. L4 b ,  J  < >6j  .  L7 1 64 ,  * / (  .< > .  8 3 4.1.24 65FAYL-1 fEVlLL.E 34,837.30 12,421 . 63 35 . 64/67.LOUDON CO. 4 5 6 , 3u6 . 51 107,697.65 2 3. 61 >25LENOIR Cl 1Y 55,055.21 15,.:42. 1 2 2 7 . 6 0  5 7.MCMINN CO. 57U ,  t >53.  37 177,1(0.71 3v .  c. 387.ATHENS 5 4 , 7-.'6.52 23. -’0 6 .71 4 :* . 4815ET OWAI1 1 t, ILL. i ■ 5 , 57 ( . < .  7'3 9  .  M c. 1 7.MCI -i A I R y  CO. 442 , 738.8 g 182,025.10 9 1 .  9^4*.HnLON CO. 3 9 0 , 780.61 1 1 2 , 146. 73 r> <*-- cj' .M H  L; I  'rj Lj * n: [ _ U . 7 i 9 7 7 £  . 7 v ~y ' v -y 2 .c- '  1 ^  V

-J ALLS ON . L , 9 L b . 4b *“ • , • •
' -1 ’ . . > • i *.

M m ! I ON CO. 6 3 1 , 3 1 8 . 2 0 i b - ' ,  *-► j u .  ‘i 35 .  '■* 3 . - 5
. I C.HOK'I) LI ! v 0 . 0  <j .  i l( J 1 • . 1 *1 r, ■



i
i\

ovo i e n

1 OTAL
‘l RAN01 Tui > 1 A I i ON T R 

BUEGE1

0 f n i l 
•>001 'U'• * ; i j LiN 
ALLiJi'i El ION L.OCi'

i

iC Ll

All!

i ‘
NAKSHALL L U . 360,305.3 4 1 15 A'-'03. 91 7> .1 .V ' • u •- J  - •

hAUF.'Y LOU. 603,109.09 i5 / 'V
liE 1 OS LU, 151, 954.41: 69,802.0* > 4 1 i .*'/70
NUNKUE LO. 7 0 V ,473.91 O'.'M, 5 4

swcr. i w a t e r : 4 ,.. 1 0.2 1 i >.t M. 'll" ,
i-iui n i ,t jni i %v f.i i. 1 , 101 ,A.7.h 1 3s o , i. ,v.: > > t.,8
NUURIi CO. 10' , 105.50 io. 0 '• ,*w
I’ll ll 'I .Mil L (1. 3 (T. , > 'AiJ. 9 j . ' i;. *i > < < ‘ ■'»l(-<.; J0
UbiUN cu. 400 , O' 1 (J . 09 160,142.60 14 .om

UNION CITY 0 . 0 0 0. 00 ( ) .1 >' M.J0
i o v e r  to n c o . 302,180.44 14 1, 490.04 0"7 t _; 0* 0 0
| FERRY CU. 163,578.46 91,544.71 00 .9:., 4 7.
j PlOf.TT CO. 109,703.64 46,790.48 40. *j.V/

1 ’ L i i 1 CU. 049,001.49 1 30,4< > 1 . Ui 0 j O:.
1 'U 1 NAM CO. 59 7,167.03 1 6'/ f j /* j . 28. ."'99',.
KTil. A CL). 363,480. 1 ;• 130,147.80 • 0 .I ;< f.‘,.

1 CAYTON 994.50 0 .00 0. 1 >887.
ROANE CD. 66 1,939.04 205, < > 10.09 0.0 .97 1 7HARR I MAN 516.75 o . 00 0 .l/l. J V.
RuRE.R 1 CON CO. 533,506.75 194,5o7.98 36. 4 7 < >7.RLTI HEREORD CO. 1,690,768.58 341,680.12 00. 1 J 42

I'lURFRECSBORO 97,014.31 37,359.09 3.8. 4 o.o 7.OCtiTF CO. 449,671.94 J. 6j / ̂ 1 u... cj.: f '■> 17 42
ONE 1L>A 0.00 \ i . oo o _< >002SEKJA1CHIE CO. > 001,64 9.34 Q 0,21 j J .64 " 1:• / .3 202S E W E R  CO. 77U ,574.09 05 3,014.96 4 972CHI LAY CO. 0 , <.>60,144.34 375,010.15 18. 04.10 0
Uf.l-IRUIS 5 , C..43,530. 09 681' , Ul '9.6 J i .1 5 02C.IN I 1 I I 00. 310,686.30 1 Oi, , 505 . 1 6 ' ' OCR.All WAIEI CO. 044,904.66 J 15, / < , 1.0 c, 4 7. 041 >2OlJl l, IVAN CO. 0,318, ’.u6.27 376,881.55 16.* OR ILCI 01 3> >,  >> 1 7 . 90 0 .  O' ; o _ l1 -1 NODPURi 246,954.11 4 9,74 67 16. 7 5 1 2| RUNNER Lu . 1,510,289.26 352,96b.56 _• / :•/:1 IRI UN C O . 513,766.76 160,915.05 .• .J . or:. 2CO VI NCI ON 12,193.20 11,1,9.7V VI . 1 97 7.TRUUSDAI .1" 00. 120,879.42 4 1 , 084 . 00 98! 17.UNICOI CO. 1 8 2 , 69 .'.61 /U , 9< >7 . / I 51. • . 8 l 07.UNION CO. 326,929.96 68,554.71 07 . 0867VAN BUR LIN 00. 94,177.21 60,74 9 . 76 O (.9 . 6097.WARREN CO. 505,206.61 17 3, 7 4 0 . 0 O’ 3 4  . 3907.W a s h i n g t o n  c o . 6 7 2 , 952.65 219,0/4.60 0 0  • 1 1 97.•JOHNSON CITY 

WoYNl CO. 3 3 l .095 • 97 59 ,  /'' 1. 67 45. 6 11 7.
■ v  i  o i  >i / .  u  : 1 < ! 1 ,  8  8  '• . 1 ' 0 5 . 4 9 2WEAKLEY CU. 4 6 9 , 50 _■.  4o 1 7 4 . 8 5 5 . 3 ' • y 1 V 4+ V

| WHITE CO. 1 7 I ,';5. : 4 -

* W1 Li. I ANCON CO. i  ,  * , r ‘ * 9 .  1 (V.: . w  < c ------ . , .
.■ C-' . . .FRAN! LIN

5 0 . 0 0WIl SON CO. 0 4 0 , 0 '  h . j . j  v 0  - . . 0  i 7 l.' . J 4 . 4 '4 2
i~  L . ;  ; r-. 0  Li ! a' 

5
7 _ > . 1 0 / '  0 ■ ’ .  8 8 0 0 .



r! J T t < l.. b I h ! I .
Th'ANUf '(Jf< rA I 1 UN I Ki'iNUt ■ON 1 AT 1 UN 

bUDUET ( iL. LuC ; ) l 1 ON

□ f A L X 7 0 U 9 4  , ( 3 4 0 . 0 3  X 1 b  , u 3 o  , 9 9  1 . O ' )



Metropolitan Public _  shook
>
7 * 0 1  C 5 A N S F O R D  AVENUS5 • N A S H V I L L E .  T E N S .  3 7 2 0 4

December 7, '982

Mr. and Mrs. Walter 
1007 Douglas Avenue 
Nashvil le, Tn., 37206

Kirby

Special Transfer Request - Lloyd Eugene Brunmett
* Grade 8

Transfer from Assigned School, L itton,
To Requested School, Highland heights

Dear Mr. and Mrs. Kirby:

The Transfer Committee has received and reviewed your reouest for i w h  
Eugene Brummett to be transferred to Highland Heights. >d

crhn°iUld ?° real need for the transfer. Just beinq c loser to a 
0 l t^n d 53V1n9 9,r3de leVel and curr iculum cannot be used as need 

for transfer?** ™  th#t parentS COuld advance th is  same reason

According to our information, Lloyd Eugene's problem is  mainlv 
attendance and effort which he should and can improve at Litton.

cc: Dr.
Mr.
Mr.
Dr.
Dr.
Mr.
F i le

Dolphus Spence, Superintendent, D i s t r ic t  One 
Cox, D is t r ic t  One
Lloyd H i l l  Attendance Teacher, Litton Pupil Personnel
Ingram, Principal, Litton Jr. H igh ’ r u n n e l
Brunson, Principal,  Highland Heights
J. Randall LaFevor, Ass istant  Public Defender •

K o c . /V//9 / T

i



RENDER 
_ WEATHEtVY.

. R O P O L I T A N  G O

D  F U D U C  D C f S N D E R  C R IM IN A !  
1 * 0 1  S T A M L M A N  O U I L O I N C  

N A 8 H V I L L C .  T t N N C S S C t  3 7 */< ASSISTANT®
j C  H A M N E R

V-SMJ m c g c e •
O-iAM L SMULMAN

December 2, 19B2
2 3  P U B L I C  D C F T N D C P  J U V C N I L I  

* 1 0  H O W A R D  O F F I C E  B U IL O I  
700  9 C C O N O  A V C N U C .  S O U T l  
N A 8 M V I L L E .  T C N N f  5 6 £ C  3 7 2

(6 I &) 230-62 1 t

/ N O R  a d m i n i s t r a t i v e  
a s s i s t a n t (CI&J *3»-3!M#

DORIS B BiTNER

ASSISTANTS 
J  RANOALL LA TEVOR 
SUELLEN WIDE MAN 
ANDREI E LEE 
K EN NE TH  J  HIES 
WALtAM P  P U H C E IL  * 
JIMMIE LYNN RAMSAUR 
R O S S  £ ALD ERMAN 
MARY W  W RA SW A N

Mr. Joseph R. Garrett
Coordinator, Pupil Accounting & Transfers 
Metropolitan Public Schools 2601 Bransford Ave.
Nashville, IN 37204
Re: Application for Special Transfer, Lloyd Eugene Brummett
Dear Mr. Garrett:
Attached is Lloyd Brummett's application for Special Transfer which 
has been completed by his father and the principals of the schools 
involved. This office has been assisting Lloyd and his father in 
this natter pursuant to a referral from Juvenile Court. I would 
appreciate your sending me a copy of your written notice of approval 
or denial.
Thank you for your consideration.

JRL:bh

Enclosure



Ia

1I
aV!

V

/

IN THE JUVENILE COURT FOR pAVIDSON COUNTY, TENNESSEE

STATE 0? TENNESSEE )
)

IN TOE MATTER OF: )
)

LLOYD EUGENE BRUMMETT )

MOTION

Comes the defendant, Lloyd .Eugene Brummett, and moves this Honorable 
Court to dismiss Truancy Petition Η82— 7A77, filed again3t him on the 11th 
day of November, 1982. In support of his motion, defendant would show as 
follows: .

1. Defendant's residence at 1007 Douglas Avenue is closer to Highland
Heights Junior High School (123 Douglas Ave.) than it is to Litton Junior 
High School (4600 Gallatin Rd.) See Exhibit 01, attached.

2. Defendant's parents submitted, on forms provided by the school
authorities, a request for transfer from Litton, where he has been assigned, 
to Highland HeightB, a Metropolitan public school offering equivalent grade 
levels and curriculum. See Exhibit 02, attached.

3. Mr. Joseph Garrett, Coordinator of Pupil Accounting and Transfer, 
acting on behalf of the Metropolitan Public Schools, rejected defendant's 
request for a transfer on the basis that "Just being closer to a school and 
having grade level and curriculum cannot be used as need for a transfer..." 
See Exhibit 03, attached.

4. Since defendant has been "refused attendance in a school nearer to 
his residence having equivalent grade levels and curriculum," he is no longer 
subject to compuBory school attendance. See 7CA J49-1772, attached as

k CHILD UNDER TOE AGE 07 

18 YEARS

FILE NO. 04-9S-34

Exhibit 04.



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5 , Since the echool system, by jtB action, haa chosen to exempt 
defendant from compulsory attendance, the truancy petition alleging non- 
compliance with the compulsory education law should be dismissed.

WHEREFORE, the defendant Lloyd Eugene Brummett, respectfully requests 
this court to di6misa Truancy Petition C1-82-7477.

Respectfully Submitted
, /

/U - '
LaFevor 
)Iic Defender 

Appointed Counsel for 
Lloyd Eugene Brummett

NOTICE
This motion i s  set  for hearing on Wednesday, th e 2 - ^ ^  day of ’f ^ S - n~n~ ** ,

__________________.1983 at 9:00 A.M, , on the Docket of

CERTIFICATE OF SERVICE
I hereby c e r t i f y  that a copy of this.motion was mailed to Mr. Lloyd Hill, 

Attendance Teacher, Metro Beard of Education, 2601 Bransford Ave., Nashville,

i



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public or day cchool aa provided Ln 2 40-1703. [/jots 1071, eh. 207, 2 1; 1972 
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JBLTC SCHOOLS 
i Avenue 
/nnossee 3720^

Data

CooixJinatbr of Pupil Accounting and Transfers 

7 '— uj^u/yy

\AjCU~t PARENT/GUARDIAN___

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Race

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Grade
White
Black
Other

' > 7  7  O

■SIGNED SCHOOL REQUESTED SCHOOL (4^ c-A

Check one : Medical*

REASON FOR REQUEST

Other ^Adjustment*

Course/Program (Grs. 9-12 ONLY)

*If medical reasons are cited, you MUST include a supportive statement from the physi 
treating the student. If adjustment reasons are cited, supportive evidence from cer 
fied personnel in the field of psychology would be considered.

---- lA- cA^UiUr- Vo CVe^rvPLi AtL/iV^gw* ^ ./

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(use extra slicck if mere spatte is needed! îao_

A Z J L U ^ .Signature of parent/guor&lan
Phone fJhrr\x̂

TO BE COMPLETED BY SENDING AND RECEIVING PRINCIPALS 

Principal of Zoned School Transfer Recommet

Reason for Recommendation ■*’ . Yes No

Principal of Requested

Reason for Recommendation
o,f~r̂

f t - i

i e: No

r / ^  r



L k I\! b / "t C_

-N THE UNXTED £TATES DISTRICT C7 RI
MIDDLE D1STR ICT OF TENNESSEE

N A S H VI LL E DIV j. i * o; ■<

ROBERT W. KELLEY, et al., ]“1
PI a in t if fs

J
]
3*1J
3

vs.

METROPOLITAN COUNTY BOARD OF ] NOS: 2094, 29
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE, 
e t a 1 . ,

3
J
3
3
3

JUDGE WISEMAN

Defendants/
Third Party Plaintiffs 3

VS . 3~l
STATE OF TENNESSEE, et al.,

J
3
3
3Third Party Defendants

MOTION TO RECONSIDER ORDER GRANTING STAY

PRELIMINARY STATEMENT

On or about Tuesday, August 27, 19S5, the third party

plaintiffs (hereinafter "Metro") received in the mail"1 the third 

party defendants' ("hereinafter the state defendants") motion for 

and memorandum in support of a stay of injunction and order pend­

ing appeal. This stay was granted by the court on or about 

August 29, 1985, the order being delivered by mail August 30, 

1985, to the third party plaintiffs. Metro respectfully submits,

1
Contrary to the cer 

served by mail. cate of service this î o li on was



pursuar. t to Local Rule 6(b, (3 ) , the stay should be reconsidered 
or.d denied because:

1. The state defendants have admitted that they will not 

suffer irreparable injury by a stay; and

2. The stay is likely to harm the public interest and 
Metro; and

o. The state defendants have not demonstrated a substan­

tial likelihood of prevailing on the merits of this case.

STATEMENT OF THE CASE

On August 14, 1985, this court entered an order directing

the state defendants to step forward to meet their affirmative 

constitutional duty with regard to local school desegregation in 

Nashville. Specifically, this court required the state defen­

dants to fulfill their longstanding affirmative duty to 

desegregate the Nashville public school system, and to foot 60% 

of the cost of the desegregation remedy here in Nashville. As 

this court recognized, the school beard cf Metropolitan Nashville 

had been required to "go it alone" during the quarter of a cen­

tury of desegregation efforts, despite the fact that the state 

defendants had, to a large extent, established and fostered the 

unconstitutional system. The court directed that, in the absence 

of an agreement to the amount of participation by the state, the 

case would be referred to a master for determination.

The state Defendants filed a notice of acoeal 2 ' -,vith



[ I ] t generally is required that (a) the 
applicant make a strong shewing that he is 
likely to succeed cn the merits of the 
appeal; (b) the applicant establish that 
unless a stay is granted he will suffer 
irreparable injury; (c) no substantial harm 
will come to other interested parties; and,
(d) a stay will do no harm to the public 
interest.

Wright & Miller, Federal Practice and Procedure, Voi. 11, §2094
at 316.

The state defendants' memorandum in support of the stay 

admits that they will not be irreparably harmed if proceedings to

determine the exact amount due under the court's ruling were 

allowed to go forward pending disposition of the instant appeal. 

Metro respectfully submits that the state defendants have not 

demonstrated, nor can. they, that they meet the requirements for a 

stay set forth above.

1 . Irreparable Harm to the Public 
Interest and to Metro

As indicated previously, the state defendants have 

admitted without equivocation that determination by a master of 

the amount or amounts deemed c w m c  will net irreparably harm



Mtr

cetermr.ed :r. Cincinnati any earlier before one cr perhaps twc
z

years nave passed from the date the record is transmitted.
During the time sper: t on a poea1 , the master in this case could
easily hear such expense proof as is necessary for a determma-
tion. If the state defer'.cants then feel a stay i s necessary,
they could apply at that time, then attempt to make the necessary
showinas.

To permit the master's process to proceed will facilitate 

the expedient resolution of this phase of the litigation, includ­

ing most particularly, the long overdue participation by the

state in the desegregation process. Should the stay remain in 

effect, the state defendants will avoid participation m  the
final impleme.n t a 11 on of the lorig range plan developed curing the
time they were parties , a nd on which plan the public and Metre

2
For example, the

part of the li tigat ion
CUl t during the summer
for C'c to be r , 1984. Tne
petition for rehearing __
February, 1985, approximately 
setting fees. The opinion fr 
en tered.

two
o m the f u]



2 . Likelnood of Success on the Merits

The state defendants have once again relied aeon 
B a n a s v . D e mo s e y , 742 F.2d 277 (61 n Cir. 19 8 4), as the

cornerstone for their argument that this court snculc stav its 

decision. Specificaily, they argue that because certiorari has 

been granted by the Supreme Court in Banas , the merits of this 

court's decision are in question, and any implementation thereof 

snourd await the Supreme Court's decision in Eanas.

As this court indicated on page 11 of its August 14, 1985 

memorandum, Banas is readily distinguishable from this desegre­

gation case, and it is quite unlikely that any decision of the 

Supreme Court will address the distinction on the facts before 

it. Here, contrary to Banas, state officials continue to deny
thei r affirmative duty to rid th is school system of t.ne effects
O f £n o r  state unconstitutional activity. As this court found,
this refusal constitutes ongoing ur.la wf u 1 conduct , just as such
refusal would constitute ongoing unlawful conduct on the part of

Metro, or any ether entity of state government which refused to 

fulfill its affirmative constitutional obligations. There was no 

such ongoing failure to fulfill an affirmative responsibility in 
Banas.



; n e s t a r  a- c e r e r. a 

m e  exact dollar accent 

time-ccnsuminc and extensive

:e t er m:

; e u n c e r

conception of where the pub]

t r. e A /**» r*d e r will re a

s s f or tr.e juc T i a i system and

alone , the sta te de fendants

1 oe served by a s tay . Metro

e def e n d a n t s ha ve a total mis-

e r e s t lies in t h 1 s case.

he de segrega tion cases were

based on the proposition that equality in educational opportunity 

should proceed with at least "all deliberate speed." Brown v . 

Board of Education of Topeka , 349 L . S . 294, 75 S.Ct. 753, 9 9 

L.Ed. 1083 (1955). This was later modified in 1968 by the 

Supreme Court to require compliance with the Constitution "at the 

earliest practicable date." Green v . County School Beard of New 

Kent County , 391 U.S. 430, 438-39, 6 6 S.Ct. 1689, 1694, 2 0 

L.Ed.2d 716 (1968). This concern for immediate relief has pro­

vided the rationale whereby the Supreme Court and other courts

across this country have refused stays of desegregation remedies,
4

even when the remedy was unique and costly.

t n e
See discussion of stay denied in the unpubl ished order by
61 oustice, dated August 25, 137 C , in Swann v . Chariot te -
;burc Board of Educ 3*.'101, J r . S . 926. 90 S . C t. 2 2 4 ", 2 6

a n r.



a master

CjC

: n e r e:

*. v, e £ n'susrt tc a core rs r. er.si v e i o eg ranee P- a

rotr. educational anc transportation components. Vine re 

tne curie c interest lie--ir. foregoing a hearing re feu 

or in using the time afforded by the appeal tc corn- 

determination of the level of state participation,

y expediting and insuring quality educatj.cn -or cl.

cm. ■er. at the earliest possible date?
Undoubtedly, rr. view of the state defendants' current 

posture, they will not only appeal tne liariiity determination b\ 

this court, but they also will appeal any amount deemed due and 

owing pursuant to a master's report. A reference to a master at 

this time might even permit the Court of Appeals to look at the 

entire matter simultaneously.
r.c the multitude of district 

in tne St. Louis litigation,
hou1a be noted that c u

ppe1late court decisio

Board of Education off the Citv St. i,ouis, / 331 F.2d

4 Continued
Char lot te-Mecklenburg Board of Education,
Ke11ev v . Metropolitan intv Boa:

! g g u.s. 926 (19 70) . 
ration of Nashville,

Tennessee, 4 36 F.2< S 5 S 1970).

T he state
]_ be time-co n
c ll O v_ believe
e , the  ̂ _ 1 4 „ u.1 c. J-

. . - v ■£ •- — a.

ex pe ns i ve
.s is 
: e r e s -

that th is hearing an
ve ■C QT~ the litigants
1 y s o although even
_L Tut a te against a sta
r c— a- c- A 2.—, t« ♦* fj FT|S S

M0 ‘
:t does

2 -1



nas

c: cellars :n desegregation

:ee n recur rec tc 

;sts . To M & ‘

av

ledge . during the appeals i c t Co urt's dec::

s t a y  r. a . ien ordered. According 
6

■ u n s e. tn<

Missouri is new, arid has been for some time,
an annual ir.one t ar

school s v s t. 0 m ,
participating in the desegregation remedy on 
basis, just as Tennessee should re requirec to do.

CONCLUSION

For all of the foregoing reasons, the third party 

plaintiffs respectfully suomit that the stay granted by this 

court should be reconsidered and dissolved.

Respectfully submitted,
WILLIS S KNIGHT

Bv : / /
/

/l / /
--William R . Will"'

Bv:
W& r i a n son

215 Second Avenue Norh 
Nashville, TN 37201

\

Attornevs for Third Party Plairin tiffs



.  ̂l- cr q 4 copy or tne
__ _ _

larkw ay , N a s h

fcrecci'c document has beer: forwarded t c V 

Deputy Attorney General, 45G James Roberts'

TN 17211 and Mr .  Avon Williams, Attorney for Plaintiffs, 203 

Second Avenue North, Nashville, TN 37201 or. this '/n—  day c: 

September, 1S85.

WILLIS & K NIG Hr



IN’ THE UNITED STATES DISTRICT COURT | ^  ^  
MIDDLE DISTRICT OF TENNESSEE /■

NASHVILLE DIVISION £QJ j_ ^Q5

ROEERT W. KELLEY, et al., 
Plaint if fs

VS.
METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE, 
et al.,

Defendants/
Third Party Plaintiffs

VS.
STATE OF TENNESSEE, et al.,

Third Party Defendants

]
]
]
]
]
]
3
3
3
3
3
3
3
3
3
3
3
3
3

NOS 2094, 2956

JUDGE WISEMAN
RECEIVED FOR EN T R YlyED FOR E!

j ( I Z j P. M

MOTION TO AMEND ORDER OF AUGUST 29, 1985 TO PERMIT 
APPEAL PURSUANT TO 23 U .,S.C .• §1292(b)

The Metropolitan County Board of Education of Nashville
and Davidson County, Tennessee, et al. (hereinafter Metro) hereby
move the Court to amend its stay order entered on August 29,

1985, to include the following requisite language for appeal:

This order involves a controlling question 
of law as to which there is substantial 
grounds for difference of opinion and 
an immediate appeal from the order may 
materially advance the ultimate termination 
of the litigation.

As grounds therefor, Metro respectfully submits that there 
are genuine and legitimate grounds for Metro's contention that



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W. KELLEY, et al., 

Plaintiffs

VS.

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY.. TENNESSEE, 
et a 1 . ,

Defendan t s/
Third Party Plaintiffs

VS.

STATE OF TENNESSEE, et al.,

Third Party Defendants

]
]
3
3
3
3
3
3
3 NOS: 85-5837/85-5838
3
3
3
3
3
3
3
3
3
3

PETITION TO VACATE STAY PURSUANT TO 28 U.S.C. §1651 
AND TO EXPEDITE APPEAL

William R. Willis, Jr.
Marian F. Harrison

WILLIS & KNIGHT 
215 Second Avenue North 
Nashville, TN 37201 
(615) 259-9600

Counsel for Metropolitan County 
Board of Education of Nashville 
and Davidson County, Tennessee, 
e t al.

EXHIBIT I



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT K. KELLEY, et al., 

Plaintif fs

VS .

METROPOLITAN COUNTY BOARD OF 
EDUCATION OF NASHVILLE AND 
DAVIDSON COUNTY, TENNESSEE, 
et a 1 . ,

Defendant s/
Third Party Plaintiffs

VS.

STATE OF TENNESSEE, et al.,

Third Party Defendants

]
]TJ
]
]
]
] NOS: 85-5837/85-5838
]
]
]
3
3
3
3
3
3
3
3
3

PETITION TO VACATE STAY PURSUANT TO 
28 U.S.C. §1651, AND TO EXPEDITE APPEAL

PRELIMINARY STATEMENT

On August 29, 1985, the District Court stayed its 

injunction requiring the State of Tennessee and other state 

defendants to fulfill their long-ignored constitutional duty to 

eliminate the vestiges of state-imposed segregation in the 

Nashville public school system. The stay was entered summarily 

and without reasons therefor, in the face of the state defen­

dants' admissions in their application for stay that they could 

not meet all of the usual requirements for a stay of an injunc­

tion pending appeal. This petition to vacate the stay and to 

expedite the underlying appeal is based upon the District



Court's abuse of its discretion in summarily granting 

the stay which threatens not only the effectiveness of this 

Court's ultimate decision regarding the state defendants' respon­

sibility f°r desegregation in Nashville, Tennessee, but also the 

effectiveness of Nashville's desegregation plan, and the overall 

quality of education for all of Nashville's youngsters.

STATEMENT OF FACTS

On March 2 5, 19 61, the Metropolitan County Board of Educa­
tion of Nashville and Davidson County, Tennessee, et al. 

(hereinafter Metro) moved to include the State of Tennessee, the 

Governor of Tennessee, and other state officials (hereinafter the 

state defendants) as third party defendants in this desegregation 

action. (App., 298). The gravamen of the third party complaint 

was that the state defendants had an unfulfilled affirmative duty 

to remove the remaining vestiges of state-imposed segregation in 

the Nashville public school system. (App., 356, 365). This 

motion was granted by the District Court, and a subsequent motion 

by the state defendants to vacate the order making them parties 

was denied by the District Court in a memorandum opinion. (App., 

291). During the critical time when the District Court and this

1
An appendix of relevant materials from the record in this 

case is included in support of this petition. The materials are 
referred to with page number as App. It should be noted here 
that exhibits to the parties' cross-motions for summary judgment 
have been omitted from the appendix, but copies are available and 
will be supplied should the Court deem them necessary for 
consideration of this petition.

2



Court considered various desegregation plans for use in Nashville
after the 1S71 plan proved ineffective over time, the state

defendants sat mute, never offering counsel, advice, ideas, or

assistance during the planning process, nor appearing in the
appellate hearings when this Court found that vestiges of state-

2
imposed segregation remained and set forth the general
parameters of the current plan.

While the plan ordered by this Court in 1982, and approved
3

by the District Court, was being implemented for the first time, 

Metro and the state defendants were engaged in extensive discov­

ery concerning the state defendants' responsibility for 
desegregation in Nashville. Upon completion of discovery, cross 

motions for summary judgment were filed by Metro and the state 

defendants. (App., 121, 167, 210, 278). On August 14, 1985, the 

District Court granted Metro's motion for partial summary judg­

ment, enjoining the state defendants from refusing to fulfill 

their affirmative responsibility to eliminate the remaining 

vestiges of state-imposed segregation in Nashville. (App., 22).

2
After setting forth in detail some of the significant 

Tennessee statues and constitutional provisions imposing segrega­
tion and thwarting desegregation, this Court found: "The effects
of state-imposed segregation have yet to be eradicated."
Kelley v. Metropolitan County Board of Education, 687 F.2d 814, 
815-16 (6th Cir. 1982), cert . denied, 45 9 U.S. 118 3 ( 1983 ).

3
Id., Kelley v. Metropolitan County Board of Education,

572 F.Supp. 317 (M.D. Tenn. 1983).

3



In its memorandum opinion on August 14, 1985, the District

Court found upon the undisputed record that the state defendants 

had abdicated their affirmative responsibility after Brown v.

Board of Education , 347 U .S . 483 (1954) (Brown I ), 349 U.S. 294

(1955) (Brown II), to desegregate their local school systems.

The Court found that rather than actively seeking desegregation, 

the state defendants and their predecessors had adopted a hands- 

off attitude, passing the responsibility for constitutional
4

compliance in the desegregation arena to local school systems, 

in stark contrast to their extensive involvement in and control 

over local school systems in all other areas of local school life. 

(App., 35-38). While proclaiming this lack of involvement and 

responsibility, the state continued to pass statutes and resolu­

tions aimed toward thwarting local school desegregation efforts. 

Indeed, at the same time Attorney General McCanless was proclaim­

ing no state responsibility after Brown II, the Governor 

commissioned several lawyers to draft statutes, which, after 

appearances by General McCanless as amicus curiae in this action, 

were held to foster unconstitutional segregation. Kelley v .

Board of Education of the Nashville City Schools, 270 F.2d 209,

230 (6th Cir.) cert. denied , 361 U.S. 924 ( 1959 ). (App., 36-38).

4
Prior to Brown, segregation of local school systems had 

clearly been a state responsibility through statutes and consti­
tutional provisions. These statutes and provisions remained on 
the books for many years after Brown II , as this Court recently 
noted. Kelley v. Metropolitan County Board of Education, 687
F.2d 814, 815 (6th Clr. 1982), cert, denied, 459 U.S. 1183 
( 1983) .

4



Based upon its detailed findings of undisputed fact, the 

District Court enjoined the state and its officials froir refusing 

to carry out their affirmative constitutional responsibilities to 

eliminate the vestiges of state-imposed segregation in Nashville. 

To insure compliance with its decision and to meet critical needs 

which are a part of Nashville's desegregation remedy, the Court 

ordered the state defendants to participate in the desegregation 

plan to the extent of 60% of the direct costs attributable to 

desegregation from the date the state defendants became parties 

and continuing on an annual recurring basis. The Court then 

stated that, absent agreement, the case would be referred to a 

Master for determination of the specific extent of the state 

defendants' participation. (Ap p . , 47-49).

On Auaust 29, 1985, without comment, the District Court
5

stayed its injunction pending appeal. (App., 61). In issuing 

its stay, the District Court not only postponed until the deci­

sion on appeal the state defendants' long awaited and much needed 

participation in the current desegregation plan, it also stayed 

the fact-finding and discovery process before the Master. This

5
This stay was granted three days after the state applied 

for the stay. Pursuant to the Local Rules of the District Court, 
Metro filed a motion for reconsideration of the stay which had 
been granted before there had been an opportunity to respond to 
the state's application. (App., 62). This motion was denied 
without comment on September 16, 1985 (App., 71) , and by order 
entered September 27, 1985 (App., 378), the Court denied Metro's 
motion to vacate the stay premised on the state's position taken 
on appeal. (See discussion infra at pp. 15-16, regarding state 
defendants' position on appeal.)

5



delay of further proceedings in the District Court promises to 

further delay the state defendants' recognition of their long 

avoided constitutional duty after this appeal is decided.

REASONS FOR VACATING THE DISTRICT COURT'S STAY PURSUANT 
TO 28 U.S.C. §1651, AND FOR EXPEDITING THE APPEAL

I . A petition for mandamus or other writ pursuant to 

28 U.S.C. §1651 is the most appropriate mechanism for review of 

the District Court's stay order.

The usual routes for review of district court orders do

not appear to be clearly applicable to the District Court's order

granting a stay. While the Court's granting of a stay may

effectively be deemed a denial of injunctive relief and therefor

may arguably be appealable as a matter of right pursuant to 28

U.S.C. §1292(a)(l), such a construction turns on the specific

facts of the individual orders and many cases have decided other- 
6

wise. Furthermore, if this application is heard as a normal

6
On September 27, 1S85, out of an abundance of caution, the 

third party plaintiffs filed a notice of appeal from the Court's 
order of August 29, 1985. The third party plaintiffs felt it 
prudent to file such appeal in light of the importance of the 
District Court's order of August 14, 1985, and of cases which 
have held that a stay of an injunction may effectively constitute 
a denial of injunctive relief. Cf_. Fuchs v. Hood Industries,
Inc . , 590 F.2a 395, 396 (1st Cir. 1979) (indefinite stay amounted 
to a denial of an injunction during a substantial part of the 
time to which the application for injunctive relief was 
directed). But see Dellinger v. Mitchell, 442 F.2d 782, 789 
(D.C. Cir. 1971) (recognizing that stay of injunction may amount 
to a denial of an injunction, but under the practical circum­
stances of that case court held not appealable as of right).

6



matter of right or with permis-appeal, whether appealable as a
7

sion from the District Court, its consideration will be further 

delayed. Kith such delay, the ultimate effect of this Court's 

consideration of the appeal may be threatened and Metro and the 

public interest may be irreparably harmed.

In other similar situations, the Supreme Court and 

courts of appeal, including this Court, have deemed mandamus or 

other writs pursuant to 28 U.S.C. §1651 the appropriate avenue 

for review* of a lower court's stay order. E . g . Coleman v .

Paccar , Inc . , 42 4 U.S. 1301 ( 1976) (Justice Rehnquist sitting as 

Circuit Justice vacated a stay order pursuant to 28 U.S.C.

§1651); Ohio Environmental Council v. United States District 

Court , 565 F.2d 393 (6th Cir. 1977) (mandamus pursuant to 

28 U.S.C. §1651 was appropriate avenue by which to vacate 

District Court's stay order where Court abused its discretion); 

Metropolitan County Board of Education, et. al. v. Kelley,

453 U.S. 1306 (1981) (Justice Stevens as individual Justice 

persuaded that he has jurisdiction to vacate the stay pursuant to 

28 U.S.C. §1651 but declines to do so).

Courts have recognized two particular types of cases where 

vacation of a stay is appropriate pursuant to 28 U.S.C. §1651. 

These are: (1) where the District Court is found to have abused

7
On October 1, 1985, out of a further abundance of 

caution, the third party plaintiffs filed an application for 
permission to appeal from the United States District Court, 
pursuant to 28 U.S.C. §1292(b).



its discretion in granting a stay or could not have found the 

stay appropriate under the record presented to it; and (2) where 

the stay threatens to defeat the effectiveness of appellate 

review or presents the danger of irreparable harm which cannot be 

adequately redressed by appeHate review. Coleman v . Paccar ,

Inc.. 424 U.S. 1301, 1305 (1976); Pet Milk Co. v. Ritter, 323 

F.2d 586, 588 (10th Cir. 1963), n. 1.
In this case, both problems are apparent in the District 

Court's issuance of a stay. The District Court could not have 

issued a stay on the basis of the record before it, and a further 

delay of state participation in the desegregation plan threatens 

this Court's jurisdiction and presents the prospect of irrever­

sible harm to the Metropolitan Nashville Public,School system and 

to the public interest.

Ii. The District Court could not have found that the state 

defendants had met their burden of demonstrating the presence of the 

necessary elements for a stay of injunction pending appeal.

The District Court issued no reasons in any of its 

decisions to stay the injunction pending appeal or to refuse 

reconsideration of the stay. This failure to state its reasons 

renders the stay suspect at best; at worst it demonstrates clear 

error and abuse of discretion. In this instance, a possible 

effect of the stay is the ultimate denial of injunctive relief 

which would otherwise require specific findings pursuant to Rule 

52, Federal Rules of Civil Procedure. (See discussion infra at

8



pp. 15-16 regarding state's position on appeal.) In such a case, 

where Rule 52 may apply ana require findings, the absence of such 

findings constitutes a per se abuse of discretion. Cf.

Coleman v. Paccar, Inc., 424 U.S. 1301, 1305 (1976) (recognizing 

that the application of a statute or rule requiring recitation of 

findings may present basis for issuance of writ pursuant to 

26 U.S.C. §1651) .

Even if the District Court were not required to make 

specific findings in this case when the stay was granted, the 

record demonstrates unequivocally that the requisite elements for 

stay of an injunction pending appeal have not been met nor can

they be met. That is, the record demonstrates (a) that no harm

will come to the state defendants if a stay is not granted; (b)

that the stay is likely to harm both Metro and the public

interest; and (c) the state defendants cannot demonstrate a
6

substantial likelihood of prevailing on the merits of this case.

A. The state defendants have admitted that further
proceedings at the District Court l e v e l  w i l l  cause 
them no irreparable harm.

In their memorandum in support of their application for 

stay before the District Court, the state defendants admitted

8
"[l]t generally is required that (a) the applicant make a 

strong show-ing that he is likely to succeed on the merits of the 
appeal; (b) the applicant establish that unless a stay is granted 
he will suffer irreparable injury; (c) no substantial harm will 
come to other interested parties; and, (d) a stay will do no harm 
to the public interest." 11 Wright & Miller, Federal Practice 
and Procedure , §2094 at 316.

9



that they would not suffer harm if proceedings to determine the 

degree of their participation in the desegregation remedy were 

permitted to continue before a Master. (App., 51-52). Thus, at 

minimum, the District Court could not have found that further 

proceedings at the District Court level would be harmful to the 

state defendants. Metro respectfully submits that the full 

implementation of the Court's order, even during the appeal, will 

cause no irreparable harm. In the unlikely event that the 

Master's process could be completed prior to the time this appeal 

is determined, the state defendants could presumably recoup any 

payments made to Metro, if necessary, through reduction in 

Metro's budgetary allotment from the state. Alternatively, at 

that time, a stay of execution of the final judgment could be 

sought if the requisite elements were shown to be present.

B. Further delay threatens harm to Metro,
the public interest, and Nashville's
desegregation plan.

While no irreparable harm will come to the state defen­

dants from the denial of a stay, the record demonstrates that 

further delay in implementing the state's participation threatens 

not only Metro but also the public interest and the desegregation 

plan ordered by this Court. As indicated in an affidavit offered 

without opposition in support of Metro's motion for summary 

judgment and in support of Metro’s motion to vacate the stay, 

every day that Metro is forced to shoulder the desegregation 

burden alone is a day that threatens both the desegregation plan

10



now in effect and the quality of educational opportunity for all
9

of the city's youngsters.

These problems Metre is facing in implementing the dese­

gregation plan along with its regular educational programs were 

recognized specifically by the District Court in its memorandum 

of August 14, 1985. The memorandum states as follows:

[State participation in the desegregation 
remedy will] permit Metro to offer those 
remedial programs which currently are part 
of a comprehensive remedial plan but 
presently are not offered because of insuf­
ficient funding. The effects of past 
discrimination continue to be manifested in 
many school age black children in terms of 
level of performance on standardized 
testing, development of effective communi­
cation skills, and the ability to earn high 
school and higher education degrees. The 
present desegregation plan seeks to amelior­
ate these conditions. The payment.of state 
funds to finance the remedial programs seek 
to improve the educational opportunities for 
black children so as to permit them to 
achieve a level of academic performance that 
reasonably could be expected had the black 
population not have been subjected to long 
term segregation in public education.

(Ap p ., 4 8).

With these findings and the undisputed record before the 

Court, it was impossible for the District Court to find that the 

stay would not harm the public interest, the Metropolitan 

Nashville Board of Education, or the desegregation plan ordered 

by this Court.

o
See Affidavit of Dr. Bill Wise. (App. , 84, et sea.).

11



C. The state defendants have not shown they
are  l i k e l y  to  s u c c e e d  on the  m e r i t s  o f  t h i s
appeal and they cannot do so.

The state defendants likewise did not demonstrate to the 

trial court, nor could they, that they were likely to succeed on 

the merits of this appeal. The state defendants have not been 

able to find any case wherein a state, which bears primary 

responsibility for public education, which mandated segregation 

prior to Brown, which passed segregative statutes and resolutions 

after Brown, and which maintained a stated hands-off policy 

regarding local school desegregation after Brown in sharp 

contrast to state policy elsewhere , has been absolved of respon­

sibility for desegregation and desegregation-related expenses.

To the contrary, the closest case to Nashville is Liddell v.

State of Missouri , 731 F.2d 1294, 1305-09 (8th Cir. 1984), cert. 

denied, ____ U.S. ____ , 105 S.Ct. 82, 83 L .Ed.2d 30 (1984),

wherein the state of Missouri was required to bear the lion's
10

share of the desegregation remedy in St. Louis, Missouri. See 

also United States v. State of Arkansas, LR-72-C-290 (E.D. Ark.,

10
In both Missouri and Tennessee, state statutes and 

constitutional provisions mandating segregation were enforced at 
the time of Brown , and in both cases these statutes and 
constitutional provisions were not stricken until many years 
after Brown. See Adams v. United States, 620 F.2d 1277, 1280 
(8th Cir. 1980). However, never is there in any of the St. Louis 
opinions any indication that the state of Missouri continued to 
pass unconstitutional statutes and resolutions after Brown, 
nor is there a strong indication that Missouri's treatment of 
desegregation in its public school systems is any different from 
its treatment of other issues.

12



1970, and December 28, 1984), where the Arkansas pre—lerown
mandate of segregated public schools was sufficient too hold the

state responsible for the total cost reasonably expemded by rural

school districts in implementation of a desegregation plan.
11

(App., 244-255, 260-263). Furthermore, while Missovuri has been 

required to pay many millions of dollars in desegregation costs 

during the pendency of numerous appeals, to Metro's knowledge no 

stay of injunction has been granted.
The state defendants have repeatedly relied uprn Banas v. 

Dempsey, 742 F.2d 277 (6th Cir. 1984), for the proposition that 

relief in this case is barred by the Eleventh Amendment, and 

their motion for stay also relies upon this case as true corner­

stone for their argument concerning the merits of thi.~s case.
12

(App., 52). Specifically, the state defendants arcrujed before 

the District Court that the stay should be granted because a 

certiorari petition has been granted by the Supreme Court in 

Banas. (App., 52).

11
For a full discussion of the merits on appeal. ( Metro 

respectfully directs the Court to the parties' cross-^motions for 
summary judgment and the responses thereto at App., i.21-289.

12
The state defendants also make a brief reference to 

Penick v. Columbus Board of Education, 583 F.2d 787, £>18 (6th
Cir. 1978), stating that the District Court's finding "do not 
seem specific enough to meet the criteria of the Sixbb Circuit." 
(App., 53). The District Court's detailed findings /̂nd the 
undisputed record in this case demonstrate clearly th.at there is 
no likelihood the state defendants will prevail on this point. 
See App., 30, 32, 34-38, 41, 126-146, 213-222.

13



The District Court's opinion of August 14, 1985, readily 

distinguishes Banas from the case before this Court, and elimi­

nates the possibility that Supreme Court action may directly bear 

upon this case. (App., 33). Here, contrary to Banas, state 

officials continue to deny their affirmative duty to rid the 

Metropolitan Nashville Public School system of the effects of 

prior state unconstitutional activity. As the District Court 

found, this refusal constitutes ongoing unlawful conduct, just as 

such refusal would constitute ongoing unlawful conduct on the 

part of Metro or any other entity of state government which 

refused to fulfill its affirmative obligations. Banas was not a 

desegregation case, and there was no. such ongoing failure to 

fulfill an unmet affirmative responsibility at issue in Banas. 

Rather than Banas , the rule promulgated by this Court and the

Supreme Court in Milliken v. Bradley, 540 F.2d 229, 244 (6th Cir.
13

1976), aff'd , 43 3 U.S. 26 7, 28 9-29 0 (197 7), should apply and 

the Eleventh Amendment poses no bar to the order requiring the 

state defendants to aid in the desegregation process.

13
See also Liddell v. State of Missouri, 731 F.2d 1294,

1308 (8th Cir. 1984) , n. 13 (order requiring state defendants to 
pay 1/2 of the annual cost of the local desegregation remedy held 
to be no violation of the Eleventh Amendment); Penick v.
Columbus Board of Education, 663 F.2d 24 (6th Cir. 1981), cert. 
denied, 455 U.S. 1018 (1982) (Ohio state defendants held jointly 
liable for intentional segregation); United States v. Board of 
School Commissioners of the City of Indianapolis, 677 F.2d 1185 
(7th Cir. 1982) (order requiring Indiana to pay the entire cost 
should apply, and the Eleventh Amendment should pose no bar to 
of the Indianapolis desegregation remedy held not violative of 
the Eleventh Amendment).

14



III. The stay not only threatens irreparable harm to 

Metro and its school children, it also potentially threatens the 

effectiveness of any order issued by this Court.

The state defendants' pre-argument statement of issues on

appeal lists as one of the issues the state's position that the

Eleventh Amendment bars any recoupment of desegregation costs

previously incurred by Metro from 1981 when the state defendants

were made parties to August 14, 1985 when the District Court

found the state liable. (App., 58, Issue No. 2). While Metro
14

believes that the Eleventh Amendment poses no such bar, if the

14
The award of accrued costs is not a new idea in 

desegregation cases. In other cases in this - circuit , where 
accrued costs of desegregation have been addressed, they have 
been ordered. For example, in Penick v. Columbus Board of 
Education , 519 F.Supp. 925, 942 (S.D. Ohio 1981), aff1d , 6G3 F.2d 
24 (6th Cir. 1981) , the court "[ojrdered that the state defen­
dants share equally with the Columbus defendants all expenses 
incurred or which will be incurred in remedying the unconstitu­
tional racial segregation found in this case in the Columbus 
school district." The order was not disturbed on appeal to the 
Sixth Circuit. In Reed v . Rhodes , the District Court entered a 
similar order, also affirmed on appeal:

At the very least, therefore, the state 
defendants must, except where statutes, 
legislation, or normal practice provide for 
greater reimbursement, share jointly and 
severally in the cost of implementation of 
desegregation on a continuing basis, and 
must reimburse the local defendants for the 
state's share of desegregation-related 
expenses incurred so far.

500 F.Supp. 404, 426 (M.D. Ohio 1980), aff'd, 662 F.2d 
1219 (6th Cir. 1981). Also, in United States v. State of 
Arkansas, LR-72-C-290 (E.D. Ark. December 28, 1964), the District 
Court approved a Master's report requiring reimbursement of 
expenditures which had directly resulted from the court's

15



state defendants prevail in this argument but are deemed respon­

sible for participation on an annual recurring basis, the delay 

caused by the stay will render largely ineffective the District 

Court's order and this Court's review of that order through the

elimination of several years of much needed and long awaited 
15

state aid. The state's position on appeal thus increases the 

danger of irreparable harm "impairing this Court's ability to 

provide full relief" upon appeal. This threat to the effective­

ness of the Court's jurisdiction provides clear authority for

vacation of the stay pursuant to 28 U.S.C. §1651. Coleman v.
16

Paccar , Inc., 424 U.S. 1301, 1305 ( 1976).

14 Continued ‘ >
desegregation order plus interest from the date of the court's 
liability determination. This order included legal expenses from 
1972, capital costs already expended, moving costs already 
expended, transportation costs already expended, and other costs 
already expended which were deemed to be a direct result of the 
court order. (App., 244-254).

15
In this instance, the granting of a stay threatens the 

effectiveness of the eventual judgment. If, for example, the 
Court of Appeals finally decides in 1988 that the state is 
constitutionally liable for desegregation expenses only on an 
annual recurring basis, three years of needed state participation 
will have been lost.

16
In Coleman v. Paccar, Inc., 424 U.S. 1301 (1976), Justice 

Rehnquist, sitting as Circuit Justice, granted the petitioner's 
application pursuant to 28 U.S.C. §1651, and vacated the order 
previously entered by the United States Court of Appeals staying 
the operation of a new motor vehicle safety standard. Justice 
Rehnquist determined that he had jurisdiction pursuant to 28 
U.S.C. §1651, and that a writ pursuant to that section was appro­
priate to vacate the stay order. In Justice Rehnquist's opinion, 
the petitioner Secretary of Transportation had shown that the 
Court of Appeals did not evaluate the likelihood of respondent's 
success on the merits, and that, in addition, substantial harm

16



IV. The appeal should be expedited in this case.

Whether or not the stay is vacated, Metro respectfully

submits that this case is a particularly appropriate one in which
1 7

to expedite the appeal. If the stay is vacated, both Metro

and the state defendants have an interest in a speedy determina­

tion of this appeal; if the stay is not vacated, Metro and the 

public it serves have a greater interest in the speedy determina­

tion of this appeal. Most importantly, a speedy resolution of 

this case will insure continued effective implementation of the 

desegregation plan in Nashville, Tennessee, which was ordered by

16 Continued
would come from the stay issued by the Court.of Appeals which 
could not be redressed by a final decision from any court. 
Specifically, Justice Rehnquist found that during the stay, manu­
facturers could stockpile autos later deemed unsafe pursuant to 
the regulation, which would, during the stay or afterwards, be 
released upon the public. This possible effect would thwart the 
goals of the Federal Motor Vehicle Safety Program which would be 
"dealt an enormous setback". Those possibly unsafe vehicles 
flooding the market would undermine "Congress's intention to 
promote improved highway safety as expeditiously as practicable." 
Id. at 1307-08.

In the instant case, the District Court's stay threatens 
precisely the type of result Justice Rehnquist feared in Paccar. 
That is, every year the state defendants fail to remove the 
remaining vestiges of discrimination in Nashville is another year 
in which all youngsters are denied the quality of educational 
opportunity they require and deserve.

17
There is no procedural or technical reason why this case 

cannot proceed to argument in a swift and expeditious manner, 
since the case was decided on cross-motions for summary judgment 
and there is no significant transcript to be produced.

1 7



this Court in 1982. Kelley v. Metropolitan County Board of 

Education, 687 F.2d 814 (6th Cir. 1982).

CONCLUSION AND RELIEF REQUESTED

For all of the foregoing reasons the third party plain­

tiffs, Metropolitan County Board of Education of Nashville and 

Davidson County, Tennessee, et al. hereby respectfully request 

that pursuant to the All Writs Statute, 28 U.S.C. §1651, this 

Court vacate the stay of the District Court's injunction pending 

appeal, and order an expedited determination of state liability 

on appeal. Alternatively, Metro requests that, at minimum, the 

stay be modified to permit the Master to hold hearings on the 

remaining issues, so that once this Court issues its decision, a 

final judgment can be entered in an expeditious manner. In any 

event, Metro respectfully submits that this case is a particu­

larly appropriate one for issuance of an order expediting the 

determination of the appeal from the District Court's order of 

August 14, 1985.
Respectfully submitted,

WILLIS & KNIGHT

Nashville, TN 372 01
Attorneys for Third Party Plaintiffs



CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the fore­

going document has been forwarded to Mr. Stephen Doughty, Deputy 

Attorney General, 450 James Robertson Parkway, Nashville, TN 

37219 and Mr. Avon Williams, Attorney for Plaintiffs, 203 Second 

Avenue North, Nashville, TN 372 01 on t h i d a y  of October, 
1 985.

WILLIS & KNIGHT

19



UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CIVIL APPEAL PRE-ARGUMENT STATEMENT

PLEASE TYPE OR PRINT ATTACH AOOITlONAb PAGES iF NECESSARY

TITLE IN FULL.

Robert W. K e l l e y ,  et a l  v.
M e t ro po l i t a n  County Board o f  Educat ion  o f  
N a s h v i l l e  & Dav idson  County, Tennessee, et 
v.
S ta te  o f  Tennessee, et a l

district Tenn____ JUDGE Wiseman

CATE COMPLAINT DISTRICT COURT 2 0 9 4
FILED____________/ / DOCKET NUMBER 2 9 5 6

a DATE NOTICE OF 
APPEAL FILEO

iS this a
CROSS APPEAL’’ Z  yes

HAS THIS MATTER BEEN BEFORE THIS COURT PREVIOUSLY7 X  YES 
IF YES STATE

ATTORNEY(S) FOR: NAME
APPELLANT:
{ ) PLAINTIFF w. J. M ichae l  Cody
l ) OEFENOANT 
( X OTHER .SPECIFY)
T h i r d - P a r t y  Defendant

R. Stephen Doughty 
Stephen Nunn

APPELLEE:
i | PLAINTIFF 
I ) DEFENDANT 
ly i OTHER iSPECIFYi

T h i r d -P a r t y  P l a i n t i f f
W i l l i am  R. W i l l i s

CASE NAME

CITATION:

ADDRESS

450 James Robertson  Pkwy 
N a s h v i l l e ,  TN 37219

Same
Same

215 Second Ave, No. 
N a s h v i l l e ,  TN 37201

DOCKET NUMBER

TELEPHONE

(615) 741-6474

(615) 741-6440 
(615) 741-3046

(615) 259-9600

CHECK AS MANY AS APPLY
B. DISTRICT COURT DISPOSITION

X  CED68AL 2 appellate i STAGE OF PROCEEDINGS 2 rY°E OF JUOGMENT CROER APPEALED 3 PEL1 EE

X  , federal question

i . Diversity

i . Fin a l  oec.s .cn of
DISTRICT COURT 

X  1 NTERLOCUTORY DECISION

. PRE-TRIAL 

. DURING TRIAL

, i DEFAULT-UOGMENT -U0GMENT COURT 
DECiSiON

i . OiSMiSSAl JURISDICTION
.uOGMENT'juRY

CAMAGES
AMOUNT SOUGHT s ----------------------

AMOUNT) . GPANTEO
. OTHER'SPECIFY) APPEALABLE AS of right

1 1 NTERLOCUTORY 0R0ER 
CERTIFIED BY DISTRICT 
lUOGE SPECIFY) 

i , OTHER .SPECIFY,

, AFTER trial i i DISMISSAL MERITS vEROiCT 

.X . su m m a r y  juOCMENr . cuOGMENT nov 

. . OECLARATORY JUDGMENT , ; C.R£CtEO VEHOlCT 

. 1 0THER SPECIE*.

. - DENiEO S

l , NJUNCT.ONS y
l ) PRELIMINARY OR lA i perm anen

iX.GRANTEOOR 1 i OEN EO

federal statutes

, ANTITRUST 
I . BANKRUPTCY 

I S A N * S  ANO 3ANK.NG

X . CIVIL SIGHTS
i i COMMERCE ROUTES 

AMO TAAIFPS

i I COMMOOiTiES

. COMMUNICATIONS

CONSUMER PROTECTION

. COPYRIGHT PATENT
QR I i TRACEMARK

I ElECT’ON

ENERGY

. environmental

FREEDOM OF
NFORMAf.r'N 

m m i GRa t  o *  

lABOR 
OSHA

SECliRi f,ES

C. NATURE OF SUIT

TORTS
* AOMlRALTY MARITIME 

I I ASSAULT DEFAMATION 

cElA

I i PROOUCT .:ABil: TV / 
aarranty

CONTRACTS
i ADMIRALTY 

MARi TiME

. arbitration

i i comm ercial

em ployment

NSuRANCE

OTHER
( , ARBITRATION

i i atty disqualification 

. j c la ss  action 

i I COUNSEL PEES 

OTHER (SPECIFY)

FORFEITURE p e n ; 

REAL PROPERTY

Share-oloe0
'AANSFER

EXHIBIT J
5CA 53 5/83



PAGE 2 CASE NAME K p I I .  v M p f r n  Rri n f  FH. u___S t a t f t  5TH CIRCUIT NUMBER 8 5 - 5 7 9 4

0 GENERAL
BASED ON YOUR PRESENT KNOWLEDGE:

(1) OOES THIS APPEAL INVOLVE A QUESTION OF FiRST IMPRESSION’ % YES I  NO
(2) WILL THE DETERMINATION OF THIS APPEAL TURN ON THE INTERPRETATION OR APPLICATION OF A PARTICULAR CASE OR STATUTE’ I  v£S * NO 

IF YES. PROVIDE;
CASE NAME/STATUTE:

CITATION OOCKET NUMBER. IF UNREPORTED
(3) IS THERE ANY CASE NOW PENOING OR ABOUT TO BE BROUGHT BEFORE THIS COURT OR ANY OTHER COURT OR ADMINISTRATIVE AGENCY WHICH 

(A) ARISES FROM SUBSTANTIALLY THE SAME CASE OR CONTROVERSY AS THIS APPEAL’ Z YES XZ NO 
(8| INVOLVES AN ISSUE THAT IS SUBSTANTIALLY THE SAME. SIMILAR OR RELATED TO AN ISSUE IN THIS APPEAL’ X YES “ NO 

IF YES. PROVIOE.
CASE NAME Banas v. Dmepsey 

742 F .2d 277
CITATION. DOCKET NUMBER IF UNREPORTED COURT OR AGENCY 6th C i r

(4) WILL THIS APPEAL INVOLVE A CONFLICT OF LAW WITHIN THE SIXTH CIRCUIT’ Z YES X: mo AMONG CIRCUITS’ 'YES * NO 
IF YES. EXPLAIN. 8RIEFLY

ISSUES PROPOSED TO BE RAISED ON APPEAL. INCLUDING JURISDICTIONAL CHALLENGES:

SEE ATTACHMENT NO. 1

THIS IS CERTIFY THAT THIS CIVIL APPEAL PRE-ARGUMENT STATEMENT WAS MAILED TO THE CLERK OF THE U S COURT OF APPEALS FOR THE 
SIXTH CIRCUIT AND A COPY THEREOF SERVED ON EACH PARTY OR THEIR COUNSEL OF RECORO THIS



KELLY ~ ISSO BS ON APPEAL

Whether the D i s t r i c t  C o u r t ' s  order  v i o l a t e s  the E l e v e n t h  

Amendment by r e q u i r i n g  funds  to  be expended from a s t a t e  

t r e a s u r y  w i t h o u t  o r d e r i n g  s u b s t a n t i v e  i n j u n c t i v e  r e l i e f .

Whether th e  D i s t r i c t  C o u r t ' s  order  v i o l a t e s  the E l e v e n t h  

Amendment i n s o f a r  as i t  awarded r e l i e f  r e t r o a c t i v e  t o  

March, 19 81.

Whether the e x i s t e n c e  o f  s t a t e  c o n s t i t u t i o n a l  and s t a t u ­

t o r y  p r o v i s i o n s  mandating s e g r e g a t e d  p u b l i c  s c h o o l i n g  

p r i o r  to  1954 ,  s t a n d i n g  a l o n e ,  was i n s u f f i c i e n t  t o  

impose l i a b i l i t y  on the  S t a t e  d e f e n d a n t s  in  t h i s  c a s e .

Whether th e  u n d isp u te d  f a c t s  in  t h i s  c a s e  f a i l  to  su p ­

p o r t  the C o u r t ' s  summary judgment a g a i n s t  the  S t a t e  

d e f e n d a n t s .

Whether the  S t a t u t e  o f  L i m i t a t i o n s  bars  T h i r d - P a r t y  

P l a i n t i f f ' s  c l a i m .

Whether th e  e q u i t a b l e  d o c t r i n e s  o f  l a c h e s  and/or  u n c lea n  

hands bar T h i r d - P a r t y  P l a i n t i f f ' s  c l a i m .

Whether the  e v i d e n c e  b e f o r e  th e  c o u r t  was i n s u f f i c i e n t  

t o  su p p o rt  i t s  s e t t i n g  re im bursem ent  t o  be p a id  by 

T h i r d - P a r t y  D e fe n d a n t  at  60% o f  T h i r d - P a r t y  P l a i n t i f f ' s  

d e s e g r e g a t i o n  r e l a t e d  c o s t s .

ATTACHMENT NO. 1