Board of Education of the City of Chattanooga, Tennessee v. Mapp Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit (Witt)

    In The

SUPREME COURT OF THE UNITED STATES
O CTO BER TERM , 1973 

N o .__________

T h e  B oard o f  E d u catio n  o f  T h e  C it y  o f 
C h a tta n o o g a , T e n n e s s e e , C o m m issio n e r  
J o h n  P. F r a n k l in , R e v . H. H. B a t t l e , 
M cC l e l l a n  C o o k , M r s . C . M . H o o pe r , 
J a m es  L. J e n k in s , E dw ard S. P ro cto r , and 
C o r le y  R. Y o u n g , members and J a m e s  W. 
H e n r y , Superintendent,

Petitioner,

v.

J a m e s  J o n a th a n  M a p p , e t  a l .,

Respondents.

P E T IT IO N  FO R A W R IT OF C ER T IO R A R I
TO  T H E  U N IT ED  STA TES C O U R T  OF 

APPEALS FO R T H E  SIX T H  C IR C U IT

W ITT, G A ITH ER , A BERN A TH Y & WILSON

RAYMOND B. W ITT , JR .
JO H N  T . HENNISS 
W. FRA NK BROW N, III

1100 American National Bank Building 
Chattanooga, Tennessee 37402

Attorneys for Petitioner

COURT INDEX PRESS. INC. —  809 Walnut Street, Cincinnati, Ohio 45202 —  (513) 241-1450



IND EX

Title Page

IN TRO D U C TO RY PRAYER ....................................... I

OPINIONS BELOW .....................      1

JU R ISD IC TIO N  ..........    2

QUESTIONS PRESENTED ...........................   2

STA TEM EN T OF T H E C A S E ...........................    3

REASONS FOR G RA N TIN G  T H E  W R I T ...............  5

CONCLUSION .....................     20

APPENDIX:

Opinion of the United States District Court for 
the Eastern District of Tennessee, 329 F. Supp.
1374 (July 26, 1 9 7 1 )................      21

Opinion of the United States District Court for 
the Eastern District of Tennessee, 341 F. Supp.
193 (Feb. 4, 1972 ).......................      50

Opinion of the United States Court of Appeals for
the Sixth Circuit, en banc,--- F .2 d -----(April
30, 1973) 66



II.

TA BLE OF A U TH O R ITIES

Cases: Page

Bradley v. M illiken,----F .2 d---- (6th Cir., 1973) . . . . 12

Brown v. Board of Education of Topeka (I), 347
U.S. 483 (1954) ...................  6, 10, 12, 13, 15, 17, 18

Brown v. Board of Education of Topeka (II), 349
U.S. 294 (1955) ..........  6, 10, 12, 13, 14, 15, 17, 18

Goss v. Board of Education of City of Knoxville,
444 F.2d 632 (6th Cir. 1971) . . ................................... 8

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ..............................................  10, 17

Kelley v. Metropolitan County Board of Education 
of Nashville and Davidson County, 436 F.2d 856 
(1971) ................... ................ .......................................... 12

Keyes v. School District No. 1, Denver, Colorado,
41 U.S.L.W. 5002 (1973) ...........................  5, 6, 13, 16

Mapp v. Board of Education of City of Chattanooga,
—  F .2d ----(6th Cir. 1973) ................................ . 6

Mapp v. Board of Education of City of Chattanooga,
341 F. Supp. 193 (E.D. Tenn. 1972) .......................  10

Mapp v. Board of Education of City of Chattanooga,
329 F. Supp. 1374 (E.D. Tenn. 1971) ............... 8, 11

Swann v. Charlotte-Mecklenhurg Board of Educa­
tion, 402 U.S. 1 (1971) ............. 5, 6, 7, 8, 14, 15, 16

Other Authorities:

The Supreme Court, 1970 Term, 85 Harvard L. 
Rev. 3, 74 (1971) ................................................... 16



In The

SUPREME COURT OF THE UNITED STATES
O CTO BER TERM , 1973

No.

T h e  B oard o f E ducation  o f T h e  C ity  o f 
C h a tta no o g a , T e n n e sse e , e t  a l .,

Petitioner,

v.

J a m e s  J o nath an  M a p p , e t  a l .,
Respondents.

P ET ITIO N  FOR A W RIT OF C ERTIO R A RI 
TO  T H E U N ITED  STA TES CO U RT OF 

APPEALS FOR T H E SIX T H  C IR C U IT

The petitioner, the Board of Education of the City of 
Chattanooga, respectfully prays that a writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Sixth Circuit entered in 
this proceeding on April 30, 1973.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported, 
appears in the appendix hereto at pp. 66 to 83. The 
opinions of the District Court were rendered on Feb­
ruary 4, 1972, 341 F. Supp. 193, and on July 26, 1971,



2

329 F. Supp. 1374, and are printed in the appendix hereto 
at pp. 50 to 65 and 21 to 49, respectively.

JU R ISD IC TIO N

The judgment and opinion of the Court of Appeals for 
the Sixth Circuit, sitting en banc, was entered on April 
30, 1973. No petition for rehearing of that opinion was 
filed and this petition for certiorari was filed within ninety 
(90) days of April 30, 1973. This Court’s jurisdiction is 
invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

Whether the District Court correctly applied the proper 
legal standards enunciated in the school desegregation cases 
in:

1. Placing upon petitioner the burden of proof (initial­
ly going forward with the evidence and the ultimate bur­
den) in resisting respondents’ motions for further relief;

2. Confusing the distinction between the right and the 
remedy by inferring a status of default solely from admitted 
racial statistics without any proof or explanation of such 
statistics;

3. Ignoring completely the threshold question as to 
the necessity of default as a condition precedent to any 
consideration of a remedy, and along with the means per­
missible in effectuating an adequate remedy;

4. Ordering the petitioner to maximize integration, 
above all other factors, notwithstanding this Court’s un-



s

qualified rejection of racial balance as a constitutional 
right; and

5. Construing the legal standards to require that the 
burden of proof could be met only by showing Board 
decisions (based upon race) made with the specific intent 
to maximize integration.

STA TEM EN T OF T H E CASE

The jurisdiction of the District Court was invoked under 
28 IJ.S.C. § 1343 (3) upon respondents’ complaint based 
upon 42 U.S.C. § 1983 and the Equal Protection Clause 
of the Fourteenth Amendment. This suit was originally 
filed on April 6, 1960 by the respondents as a class action 
against the Board of Education of the City of Chattanooga, 
its members and superintendent, for the desegregation of 
the Chattanooga Public School System. Since filing the 
original complaint, respondents have from time to time 
filed various “ Motions for Further Relief” seeking addi­
tional relief, relief often contradictory to the relief sought 
previously and relief based upon pleadings inconsistent 
with previous findings and opinions of both the District 
Court and the Court of Appeals. For example, on March 
29, 1965, respondents filed a motion for further relief 
asking the District Court to order petitioner to operate its 
system “without regard to race.”

The District Court received evidence in April and May 
of 1971 upon the respondents' motion for further relief 
and motion for immediate relief. Petitioner had the bur­
den of proof to show that it was operating a unitary school 
system. Notwithstanding the fact that the respondents 
made the allegations as to racial discriminatory actions by 
the petitioner, the petitioner was forced to have the burden 
of initially going forward with the evidence. On the



4

completion of that evidentiary hearing, the District Court 
on May 19, 1971 orally ordered the petitioner to file an 
amended plan of desegregation which would maximize 
integration. That plan was submitted according to the 
instructions of the Court. The plan was approved, with 
the exception of the high school portion, after a hearing, 
and ordered implemented to the extent the Board had 
the necessary funds. (The petitioner does not have the 
power to raise funds and is dependent upon the City of 
Chattanooga for such funds as would be needed to provide 
student transportation. The City was not made a party 
defendant in this case until January 26, 1972.) From such 
approval the respondents first, and then the petitioner, 
appealed.

On October 11, 1972, a panel of the Court of Appeals 
for the Sixth Circuit voted two-to-one to remand the case 
to the District Court. The majority held that the District 
Court had erred on the burden of proof issue and stated 
several other guidelines for the District Court to follow 
in any further hearing upon the cause. Even though the 
Court of Appeals had initially refused to grant petitioner’s 
suggestion that the case should be heard en banc, the Court 
of Appeals voted to hear the case en banc upon the respon­
dents’ suggestion after the adverse decision was rendered. 
After the rehearing on December 14, 1972, the Court of 
Appeals on April 30, 1973 entered a per curiam opinion 
in which seven judges voted to affirm the District Court. 
Two judges dissented and one judge concurred in the 
action of the majority, but did not approve all of the 
District Court’s language and opinion. (A more complete 
statement of the facts is found in Petitioner’s Brief filed 
with the Court of Appeals at pp. 5-16 inclusive.)



5

REASONS FO R G RA N TIN G  T H E W RIT

Petitioner respectfully requests the Petition for Writ of 
Certiorari issue to the United States Court of Appeals for 
the Sixth Circuit because the District Court applied in­
correct legal standards by:

(1) Erroneously applying the guidelines in Swann v. 
Charlotte-Mecklen burg Board of Education, 402 U.S. I 
(1971) to the facts in the Chattanooga Public School Sys­
tem, and specifically:

(a) in applying the racial balance thrust of the remedy 
approved in Swann as the exclusive constitutional criteria 
for formerly dual systems, and thus ignoring completely 
the threshold question of default by directing attention to 
the required remedy without first determining the existence 
of a constitutional violation.

(b) emphasizing the supposed constitutional command 
to maximize integration, above all other factors, and in 
so doing reduced to a nullity this Court’s absolute rejection 
of “any particular degree of racial balance” as a constitu­
tional right.

(2) In such failure to interpret Swann correctly, the 
District Court’s decisions are now in conflict with the de­
cision of this Court in Keyes v. School District A'o. 1, Den­
ver, Colorado, 41 U.S.L.W. 5002, decided June 21, 1973. 
particularly with reference to the nature of the presump­
tion created by the presence of schools substantially dispro­
portionate in their racial composition, the essentiality of 
segregative intent, and the recognition that it is possible to 
overcome such presumption of an unconstitutional act and 
resulting condition.

(3) As this Court recognized in Swann as a possible 
future necessity, school boards now desperately need a



6

further definition of guidelines as to their constitutional 
obligation to provide an equal educational opportunity. 
The District Court requested clarification on appeal. The 
petitioner raised ten issues in addition to those raised by 
the NAACP. The en banc decision of April 30, 1973 pro­
vided not one sentence of clarification.

Default

The abbreviated chronology that follows, considered 
alone, reflects that the District Court did not interpret 
Swann as requiring a factual finding of default upon the 
part of petitioner as the condition precedent to the necessity 
for the second step, that is, what constitutional means are 
“ legally tolerable” for a District Court once total default 
is found as a fact.

Are the remedial racial means first permitted in Swann 
available only where school boards are found to be totally 
in default, or is Swann to be read as an expansion of Brown 
v. Board of Education of Topeka, 347 U.S. 483 (1954) 
and 349 U.S. 294 (1955) commanding all formerly statu­
tory dual school systems (and now, since Keyes, supra, all 
school systems with segregative intent) to enforce racial 
decisions as a means available to eliminate racial segrega­
tion in public schools?

(The default aspect of Swann is covered in petitioner's 
reply brief at pp. 16-22 inclusive as filed with the Sixth 
Circuit.)

Chronology

1. On February 19, 1971, the District Court denied 
respondents’ motion for summary judgment and set the 
case for evidentiary hearing upon respondents’ motion for 
further relief filed December 31, 1968 and a motion for 
immediate relief on November 14, 1969. As invited by



7

the order of February 19, 1971, petitioner responded by 
objecting to the appropriateness of the burden of proof 
being placed upon petitioner, particularly when that bur­
den was to prove, in effect, that the petitioner Board had 
taken the necessary affirmative steps to establish a unitary 
school system as to school zones, no zoning in high schools, 
transfers, faculty and construction (Joint App. Vol. I, p. 
82) . The uncertainty of meaning associated with this 
unitary school system concept, in addition to the burden 
of proof placed upon petitioner by the District Court, 
made the nature of the proof which could be adequate 
virtually impossible of achievement. Petitioner requested 
a pretrial conference prior to the hearing for purposes of 
clarification, but none was held.

2. Following the decision in Siuann of April 20, 1971, 
petitioner filed a motion for summary judgment under 
Rule 56. The essence of the motion and accompanying 
brief was that Swann did not apply to the Chattanooga 
school system because it was not in default; and further 
that Swann held that decisions made solely or primarily 
upon race might be used in desegregation plans only where 
the petitioner Board was in default in the sense that the 
Charlotte Board was totally in default; and further that 
the burden of proof placed upon school boards in default 
“ to satisfy the court that their racial composition is not 
the result of present or past discriminatory action” on their 
part, also did not apply to the Chattanooga Board. (See 
explanation of motion for summary judgment beginning at 
page 32 of brief for petitioner in the United States Court 
of Appeals for the Sixth Circuit.)

3. Frequent references during the course of the hearing 
by the District Court clearly reflect that no significance was 
attached to this motion nor the rationale supporting said 
motion by the District Court- To illustrate, references



8

to counsel for petitioner having admitted that the Board 
was not in compliance reflected no consideration of the 
default contention laid before the Court by the motion 
for summary judgment. Such admissions were clearly con­
ditional upon a resolution of the default aspect of Swann 
as applicable to Chattanooga.

4. The initial decision of the United States Court of 
Appeals for the Sixth Circuit following the decision by 
this Court in Swann, was on June 22, 1971, Goss v. Board 
of Education of City of Knoxville, 444 F.2d 632. The Dis­
trict Court Judge filed an order on June 29, 1971 after the 
Amended Plan of Desegregation had been submitted to the 
Court on June 16, 1971 and attached to such order on 
June 29, 1971 a copy of the Goss, supra, opinion. The 
Court directed the petitioner to review its plan filed earlier 
on June 16, 1971 to the extent the language of Goss, supra, 
might appear to be applicable.

5. In response, on July 12, 1971, petitioner filed a mo­
tion under Rule 60 (b) asking the Court to vacate and set 
aside its orders of May 19, 1971 and June 23, 1971, and 
for a rehearing limited to faculty desegregation. Petitioner 
interpreted Goss, supra, as action by the Sixth Circuit limit­
ing the means approved in Swann to school boards found 
totally in default by the District Court Judge. This motion 
to reconsider was denied in the July 26, 1971 decision by 
the District Court. Mapp v. Board of Education of City 
of Chattanooga, 329 F. Supp. 1374 (E.D. Tenn. 1971).

6. In the District Court’s opinion, supra, the following 
language was used, reflecting findings of fact and conclu­
sions of law.

The Court said, at page 1380:

“The purpose of this lawsuit since its filing in 1960 
has been to remove that dual system of schools and



9

replace it with a unitary system in which all vestiges 
of racial discrimination have been eliminated. In the 
intervening years very substantial progress has been 
made. Following appellate guidelines as they then 
existed, this Court believed upon each previous occa­
sion it entered desegregation orders, first in 1962, then 
in 1965 and 1967, that all vestiges of the dual system 
of schools would be removed upon fulfilment of its 
orders and only a unitary system remain. Experience 
and appellate redefinition of the concept of a unitary 
school system have now mandated that further steps 
be taken to accomplish the full and final desegregation 
of the Chattanooga schools.” (Emphasis ours)

At page 1381:

“ It is also appropriate to note in this regard that both 
the administrative staff and the Chattanooga Board of 
Education are themselves fully desegregated, and this 
by voluntary or elective action. The Board of Educa­
tion is comprised of seven members. Three of these 
members, including the Commissioner of Education, 
a duly elected official of the City of Chattanooga, are 
black. Four of the Board members are white. Three 
of the top school staff officials who testified at the hear­
ings held recently were black, including the Assistant 
Superintendent of Schools and the Director of Teacher 
Recruitment.”

Then at page 1387:

“ Moreover, the evidence is undisputed that the de­
fendants have heretofore administered their previous 
transfer plan in a manner that was wholly free from 
racial or other discrimination.”

Then again at page 1387:

“ There appears to be no purpose in multiplying re­
strictions for which no need or justification in fact 
exists. A school system that has voluntarily placed a



10

black staff member in charge of teacher recruitment 
and assignment needs no Court-imposed restrictions 
on potential forms of faculty discrimination which 
the record clearly and affirmatively shows it does not 
practice.”

7. The above quotes reflect a recognition by the District 
Court that appellate courts have given new definition to the 
constitutional mandate of Brown I  and II.

8. The above quotes are completely inconsistent with 
a finding of bad faith or even an intimation of bad faith 
upon the part of petitioner Board. Chattanooga is thus 
distinguished from Detroit, Nashville and Denver on an 
essential - segregative intent.

9. On February 4, 1972 in an opinion, Mapp v. Board 
of Education of City of Chattanooga, 341 F. Supp. 193 
(E.D. T enn .), the following quote appears at pages 200- 
201 :

“Turning finally to the motion for the allowance 
of attorney fees for all legal services performed on 
behalf of the plaintiffs since the filing of this lawsuit, 
the Court is of the opinion that the motion should be 
denied. In the absence of a showing of bad faith 
on the part of the defendants, the Court is of the 
opinion that the allowance of attorney fees would not 
be proper. This lawsuit has been in an area where 
the law has been evolving, and the Court cannot say 
that the defendants have acted in bad faith in failing 
always to perceive or anticipate that development of 
the law. For example, in all of its orders entered prior 
to the decision of the United States Supreme Court 
in the case of Green v. School Board of New Kent 
County, 391 U.S. 430, 88 S. Ct. 1689, 20 L.Ed.2d 716 
(1968) , this Court was itself of the opinion that gen­
uine freedom of choice on the part of students in 
school attendance was compliance with the Equal Pro­



11

tection Clause of the Constitution. While the Board 
has vigorously contested the plaintiff’s contentions at 
every stage of this lawsuit, it further appears to the 
Court that when factual and legal issues have been 
resolved, the Board has at all times complied or at­
tempted to comply in good faith with the orders and 
directions of the Court. Accordingly, it has never 
been necessary for this Court to direct that outside 
persons or agencies, such as the United States Depart­
ment of Justice or the United States Department of 
Health, Education and Welfare, enter into the lawsuit 
in aid of the development of a lawful plan of desegre­
gation or in aid of enforcement. As recently as in its 
opinion entered upon July 26, 1971, the Court had 
this to say:

“ ‘The wisdom and appropriateness of this pro­
cedure (i.e., looking to the School Board for the 
development of a desegregation plan) is further 
enhanced in this case by the apparent good faith 
efforts of the Chattanooga school authorities and 
the School Board to come forward with a plan 
that accords with the instructions of the Court 
and its order of May 19, 1971, and with the appel­
late guidelines therein cited.’

“ Under these circumstances the Court is of the opinion 
that an award should not be made taxing the defen­
dant Board of Education with the plaintiff’s attorney 
fees.” (Emphasis added)

10. The actual findings reflected in the above quotes 
cannot be made consistent with a finding of default with 
respect to the Chattanooga Board.

11. In an addendum to the July 26, 1971 decision, 
Mapp, supra, at page 1388, the District Court had this to 
say:

“Although the Court has tried earnestly to -weigh the 
evidence and to follow the law, if errors have been



12

made by the Court in what has been here decided, 
judicial processes are available to correct those errors.”

12. While the appellate court affirmed the District 
Court judge in the en banc hearing which reversed the 
decision of the three-judge panel, no clarification or ex­
planation was given to the District Court Judge in the 
course of the brief opinion. The ten issues raised by 
petitioner Board received not one sentence of explanation 
or clarification. Nor did the issues raised by the respon­
dents. Only the dissent and concurrence developed any 
explanation.

13. At the time that the burden of proof was assigned 
to petitioner in February of 1971 by the District Court, the 
most recent decision in the Sixth Circuit with reference 
to Broivn I  and II  was the case of Kelley v. Metropolitan 
Comity Board of Education of Nashville and Davidson 
County, 436 F.2d 856 which had been filed during Decem­
ber 1970. However, the opinion of the District Court in 
Kelley, supra, is replete with unqualified findings of fact 
to the effect that the Davidson Board had taken many 
actions based upon race for the purpose of creating or 
maintaining or resisting desegregation. There is no evi­
dence and no factual findings by the District Court with 
reference to Chattanooga that can be placed in the same 
category as such referenced findings of fact as applicable 
to Davidson County.

14. Bradley v. M illiken ,----F.2d —— (6th Cir.) de­
cided on June 12, 1973 with reference to the City of De­
troit is replete with factual findings to the effect that the 
Detroit Board of Education “ formulated and modified at­
tendance zones to create or perpetuate racial segregation.” 
(Slip Opinion, page 9) It was also found that the Board 
in Detroit in the operation of its transportation policy to



13

relieve overcrowding had admittedly bused black pupils 
past or away from closer white schools with available space 
in black schools (Slip Opinion, page 21) - The Sixth Cir­
cuit summed up the constitutional violations of the Detroit 
School Board with this language at page 48, Slip Opinion:

“The discriminatory practices on the part of the 
Detroit School Board arid the State of Michigan re­
vealed by this record are significant, pervasive and 
causally related to the substantial amount of segrega­
tion found in the Detroit school system by the District 
judge.”

Default is obvious, and based upon current board actions 
reflecting segregative intent.

15. In Keyes, supra, it is clear that the District Court 
found that the Denver School Board “had engaged in over 
almost a decade after 1960 in an unconstitutional policy 
of deliberate racial segregation with respect to the Park 
Hill schools.” 41 U.S.L.W. 5002. There is ample 
additional factual findings in the opinions to indicate that 
the Denver School Board was making decisions upon the 
basis of race for the purpose of creating or maintaining 
segregation or minimizing desegregation. The presence 
of default is obvious.

16. This Court may not have had before it a factual 
situation from a formerly statutory dual school system 
which made an initial unqualified commitment to abide 
by the mandate of Brown I  and II  while attempting to 
maintain the viability of its school system, and a school 
board which could justify the factual findings referenced 
above by the District Court and affirmed by the Court 
of Appeals by inference.

17. Brown I  focused upon the importance of education 
with these words:



14

“Today, education is perhaps the most important 
function of state and local governments.” (page 493)

18- In Brown 11, with reference to implementation, 
school boards were given the following directive:

“Full implementation of these constitutional princi­
ples may require solution of varied local school prob­
lems. School authorities have the primary responsi­
bility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith im­
plementation of the governing constitutional princi- 
pies.

19. When the record indicates that a school board has 
accepted this responsibility, and has discharged this re­
sponsibility in good faith, and has had its efforts in several 
stages approved by appellate courts, the harsh and experi­
mental means permitted in Swann should not be required 
of such board upon the same basis as if it had made no 
effort to comply with the Constitution, and when such 
means may be inconsistent with the best judgment of the 
local school authorities whose responsibility for education 
is primary.

20. How can a school board be characterized as in the 
posture of default when the trier of the facts specifically 
finds said Board to have acted in good faith, and has spe­
cifically recognized that the constitutional principles appro­
priate to said board have been redefined in a field where 
the law is evolving, and this evolutionary aspect of the 
constitutional requirement is recognized by the District 
Court, appellate judges and by the Supreme Court of the 
United States?

21. The evolutionary aspect of the constitutional obli­
gation of school boards is reflected in several instances by 
language used in Swann. At page 6:



15

“ Understandably, in an area of evolving remedies, 
those courts had to improvise and experiment without 
detailed or specific guidelines. This Court, in Brown 
I, appropriately dealt with the large constitutional 
principles; other federal courts had to grapple with 
the flinty, intractable realities of day-to-day implemen­
tation of those constitutional commands. Their efforts, 
of necessity, embraced a process of ‘trial and error,’ 
and our effort to formulate guidelines must take into 
account their experience.”

Then again at page 14:

“ The problems encountered by the district courts and 
courts of appeals make plain that we should now try 
to amplify guidelines, however incomplete and imper­
fect, for the assistance of school authorities and courts.”

22. The partial implementation of the plan approved 
on July 26, 1971 has resulted in a school system pre­
dominantly black although statistical data would indicate 
that the community served by petitioner Board still re­
mains predominantly white when all ages are considered. 
The fears and the concerns and the uncertainty present in 
the Chattanooga system in the last several years is pro­
ducing resegregation, and there is continuing evidence in 
various areas of the city that the resegregation will con­
tinue to move with the overwhelming power of a glacier 
to the point where any meaningful desegregation within 
the Chattanooga system will be token and without sub­
stance as to the equal educational opportunity envisioned 
by Brown I  and II. Under such circumstances, how the 
constitutional rights of the black children in the Chatta­
nooga area are to be provided remains an enigma if an 
all-black school is unconstitutional.



16

Maximize Integration

The District Court assigned such emphasis to the essen­
tiality of student racial ratios, and upon a school-by-school 
basis, as to reflect only passing attention to that portion of 
Swann where this Court clearly stated that there is no 
constitutional requirement for a racial balance in public 
education. An examination of the July 26, 1971 opinion 
reflects a judicial procedure during the course of the draft­
ing of this opinion that is structured in a racial ratio man­
ner, and with each school deviation from the 70%-30% 
ratio requiring separate analysis and requiring some proof 
to justify the deviation from the racial ratio or balance 
suggested by Dr. Stolee, the expert witness for the NAACP.

As was made reference to in The Supreme Court, 1970 
Term, 85 Harv. L. Rev. at page 83:

‘A district judge faced with pressures for a lesser de­
gree of integration might justify his use of percentages 
by reference to Swann: since the Court has never ap­
proved a plan in which racial percentages varied more 
widely, the only way to he sure of compliance with 
the constitutional command is to approximate Swann’s 
scheme.”  (Emphasis ours)

The Burden of Proof

Keyes, supra, makes the intent of the school board the 
key factual determination as to the existence of a constitu­
tional violation where actual racial student segregation 
admittedly exists in a Northern (de facto) school system 
(thus a system that has never practiced such segregation 

at the direction of a state statute) .
Keyes, supra, requires the plaintiffs to carry the burden 

of proving (1) the necessary intent and (2) causal con­
nection between such intent and the racial segregation 
giving rise to the inquiry. Once these two factors are



17

determined to be present “ in a meaningful portion of a 
school system . . . ” such establishes “a prima facie case of 
unlawful segregative design on the part of school author­
ities” and shifts the burden of proof to school authorities, 
to prove such segregation is not the result of intentionally 
“segregative actions.” (41 U.S.L.W. 5002 at 5007)

Such principle must admit of (and permit) special cir­
cumstances within a single school system where unconsti­
tutional segregation and constitutional segregation exist 
within that one system. And the sole distinguishing factor 
is either the board so intended and so caused the segrega­
tion or the board did not so intend.

Intent is the key.
Then take a look at a school board where substantial 

racial segregation continues, but where the record shows, 
and is unquestioned by both the District Court and the 
Court of Appeals, that there has been no intent to create 
or maintain such segregation since 1966. And, on the 
contrary, the record shows continued effort to achieve 
greater desegregation with stability and with due consid­
eration of basic educational requirements; and where the 
Board did not interpret Green, supra, as a directive to 
reverse course and make decisions upon the basis of race 
as a remedial necessity. Proof of the absence of such intent 
will clear Denver, but not Chattanooga.

Brown I  and II  condemned racial segregation in public 
schools as resulting in inherently unequal educational treat­
ment. The presence of state action, coupled with its direct 
causal relationship to such segregation, made the Four­
teenth Amendment applicable and controlling. Intent was 
implicit in state statutes requiring racial segregation. Does 
the taint of this pre-1954 intent (expressed in a state law) 
continue to contaminate 19 years later despite a major 
effort to avoid such objectionable intent, and to remove 
the continuing effects of pre-1954 intent, but all the while



18

under severe restrictions as to the practical scope of the 
power available to a local school board? Racial segregation 
in public schools wherever it is to be found is objectionable 
and results in unequal treatment of children. However, 
such condition is not per se illegal for state action is a 
prime ingredient in order to trigger the protective force 
of the Fourteenth Amendment. In addition to state action 
there must be coupled a causal connection between such 
state action and the complained of racial segregation. Un­
less both are judicially found, the racial segregation is out­
side the scope of the Fourteenth Amendment and cannot 
be characterized as unconstitutional. Unfair? Yes, but 
not unconstitutional.

With the affirmance of the District Court’s decisions by 
the en banc, per curiam opinion of April 30, 1973, the 
Disti'ict Court’s decisions are the only reality as to what 
the Constitution and Brown I  and II  mean to the petitioner 
and its constituency. Without consideration by this Court, 
the students within the Chattanooga system, and petitioner, 
will be denied the opportunity to negate segregative intent 
by appropriate proof.

Denver was found to have segregative intent as late as 
1970, some 17 years after Brown I. Yet such has not yet 
required desegregation of the entire Denver system. And 
unequal racial student segregation exists. Petitioner, per 
the record, has had no segregative intent since 1966. Such 
segregation as continues to exist in petitioner’s school sys­
tem remains because of factors over which petitioner had 
no control as long as it was under injunctive command to 
avoid making decisions with reference to students upon 
the basis of race. Such was in response to and as a result 
of respondents’ motion for further relief in 1965 requesting 
that all decisions be made “without regard to race.”

Petitioner’s actions reflect no intention to maintain 
segregation upon its part. Denver’s segregation exists but



19

becomes unconstitutional only if the necessary intent is 
found as a fact coupled with the requisite causal connection. 
Denver will have adequate time to make preparation to 
meet this burden of proof. Petitioner has not had this 
opportunity, and without review by this Court, will never 
have such an opportunity. Thus the intent of a state legis­
lature sometime prior to 1954 will continue to have its 
influence even though the petitioner as a Board has not 
possessed such intent since 1966, and has attempted to 
remove continuing effects of past intent with the tools at 
its command.

If petitioner had relied upon the burden of proof aspect 
of Swarm as to justification of a plan, such could have had 
the effect of waiving the threshold question of default in 
Swarm. And this posture would have served also to de- 
emphasize the importance of the default aspect. Petitioner 
believed its posture to be that of compliance.

Need for Guidance

Petitioner has been committed to compliance since 1955 
enduring the hostility such commitment engendered. Peti­
tioner seeks clarification of the nature of its constitutional 
responsibility based upon the facts existent in the Chatta­
nooga community. The April 30, 1973 en banc decision 
by the Sixth Circuit overruling an earlier two-to-one de­
cision by a three-judge panel indicates that able appellate 
judges read the same language and then interpreted such 
language in a contradictory manner. With such learned 
conflict in interpretation, it is next to impossible for a 
board such as petitioner to perform in accordance with the 
Constitution. And particularly when certain interpreta­
tions if applied would, in the judgment of petitioner, cause 
grievous harm to the school system and the quality of the 
available educational opportunity.



20

The Chattanooga situation is desperate. Unless clarifi­
cation is provided quickly, the confusion will expand, the 
mistrust and misunderstanding will spread, resegregation 
will accelerate to the point where meaningful desegregation 
will not be possible within the system. Unless integration 
is defined and clarified as a constitutional goal with volun­
tary action an essential element, instead of forced integra­
tion, or desegregation, dis-integration of our public school 
system will be the result.

CONCLUSION

For the reasons set forth above, a writ of certiorari should 
issue to review the judgment and opinion of the Sixth 
Circuit.

Respectfully submitted,

RAYMOND B. W ITT , JR . 
JO H N  T . HENNISS 
W. FRANK BROWN, III

1100 American National Bank 
Building

Chattanooga, Tennessee 37402 

Attorneys for Petitioner



21

A P P E N D I X
U N ITED  STA TES D IST R IC T  CO U RT 

E. D. TENNESSEE, S. D.

Civ. A No. 3564

JAM ES JO N A TH A N  MAPP, E T  A L„

v.

T H E BOARD OF EDUCATION OF T H E CITY OF 
CHATTANOOGA, H AM ILTO N COUNTY, 

TENNESSEE, E T  AL.

OPINION

(Filed July 26, 1971)

FRANK W. WILSON, Chief Judge.

This case is presently before the Court for settlement 
upon a plan that will accomplish full and final desegrega­
tion of the Chattanooga, Tennessee public schools in ac­
cordance with recent decisions of the United States Supreme 
Court and of the United States Court of Appeals for this 
Circuit. The case has a lengthy history. A recitation of 
that history is set forth in an opinion of this Court en­
tered upon February 19, 1971, wherein the Court also 
set forth certain guidelines that were to be followed in 
conducting further hearings upon the present phase of the 
lawsuit. Pursuant to the guidelines referred to, extensive



22

further hearings were held regarding the effectiveness of 
prior desegregation plans to accomplish the establishment 
of a unitary school system in Chattanooga as that concept 
has been defined in recent appellate court decisions, in­
cluding the decision of the United States Supreme Court 
in the case of Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 
(1971) . At the conclusion of the evidentiary hearing on 
May 19, 1971, this Court entered an opinion from the 
bench finding that previous plans had not succeeded in ac­
complishing a unitary school system, basing its finding in 
this regard upon the undisputed evidence, and directing 
the defendants to submit further plans for the final accom­
plishment of a unitary school system in Chattanooga in 
accordance with the Swann decision and other recent ap­
pellate court decisions. Following the submission of de­
segregation plans both by the plaintiff and by the defen­
dants, a further hearing was held upon July 19, 1971, 
at which evidence was received in support of and in oppo­
sition to the respective plans before the Court. Also at 
that time argument was received and a decision was re­
served upon certain motions pending in the case.

PENDING M OTIONS

Turning first to the pending motions upon which de­
cision has been reserved, these include:

(1) A motion by four citizens and residents of Chatta­
nooga, Tennessee, to be allowed to intervene;

(2) A motion by the defendants seeking reconsidera­
tion of the Court’s findings and order entered May 19, 
1971, wherein the Court directed the defendants to sub­
mit further desegregation plans; and

(3) A motion by the defendants to strike the plain­
tiffs’ objections to the defendants’ desegregation plan.



23

Regarding the motion to be allowed to intervene, the 
intervenors assert various objections to the proposed de­
segregation plans submitted by the present parties to this 
litigation. The relief sought by the intervenors is to be 
allowed to present their objections to the desegregation 
plans now before the Court, to be allowed to join the Ham­
ilton County, Tennessee, Board of Education as a party 
defendant, and to establish a uniform racial ratio in the 
combined City of Chattanooga and Hamilton County School 
Systems. The defendants have raised no objection to the 
intervention, but the plaintiffs have objected. Having 
considered the briefs and arguments of counsel, the Court 
is of the opinion that the motion to intervene must be 
disallowed and this for more reasons than one.

In the first place, it does not appear that the motion has 
been timely filed. This lawsuit has now been in litigation 
for more than 11 years. Extensive hearings and extensive 
relief has heretofore been granted and appellate review of 
that relief has been had upon three prior occasions. See 
Mapp v. Board of Education of City of Chattanooga, D.C., 
295 F.2d 617 (1961) ; D.C., 203 F.Supp. 843 (1962) : 6 
Cir„ 319 F.2d 571 (1963); 6 Cir„ 373 F.2d 75 (1967);
D.C., 274 F.Supp. 455 (1967). The present phase of the 
lawsuit has been in active litigation for more than a year. 
Evidentiary hearings extending over a period of ten days 
were completed within the past two months. Both the 
plaintiff and the defendants have now submitted desegre­
gation plans. The motion to intervene came only seven 
days before a hearing was scheduled to commence for final 
approval of a desegregation plan which in part, if not in 
its entirety, must be implemented in the six weeks that 
remain before the opening of school in September 1971. 
To allow intervention at this advanced stage of the litiga­
tion, particularly intervention which seeks to add new 
parties, to litigate the legality as well as the propriety



24

of adding the new parties, and to litigate all relevant 
issues regarding a school system not presently before the 
Court, could only unduly burden and delay the present 
litigation. See Kozak v. Wells, 278 F.2d 104, (C.A. 8, 
1960) ; Pyle-National Co. v. Amos, 172 F.2d 425, (C.A. 
7, 1949), note, “The Requirements of Timeliness Under 
Rule 24 of the Federal Rules of Civil Procedure,” 37 
Va.L.Rev. 563.

Insofar as the intervenors seek the right to interpose 
objections to the desegregation plans now before the Court 
it is believed that all matters in this regard are being vig­
orously and extensively contested by the present litigants. 
There is nothing in the record or history of this litigation 
to indicate any inadequate representation of any relevant 
viewpoint regarding any issue that has heretofore been 
before the Court or that is now before the Court. Rather, 
every issue throughout the long history of this litigation has 
been vigorously and resourcefully contested and has been 
resolved only by decision of the Court. In 11 years there 
has been no significant issue resolved by agreement of the 
parties. In this connection it may be further noted that 
while the intervenors are critical of the transportation pro­
visions in the plans now before the Court, the proposed 
relief sought by them would require much more exten­
sive transportation than proposed in any plan now be­
fore the Court.

Finally, insorfar as the intervenors seek to join the Ham­
ilton County Board of Education and to establish a uniform 
racial ratio in the combined City of Chattanooga and 
Hamilton County School Systems, they appear to be as­
serting a new lawsuit based upon new and untested legal 
theories. No direct authority has been cited for the con­
solidation of two school systems by judicial fiat. Rather, 
such matters have historically been left for legislative, ex­
ecutive, or political resolution, all as borne out by the



25

numerous statutory citations in the interveners’ briefs, all 
of which without exception contemplate resolution by such 
means. Although the interventors assert that they do not 
seek consolidation, but only a joint unitary school plan, it 
does not readily appear how this would differ from con­
solidation when it is borne in mind that transportation 
and other facilities would be subject to joint use, and that 
staff, teachers and students would be subject to inter­
change between the systems. Likewise, the geographical, 
political or other limitations for determining which school 
systems might be joined for such relief is new matter upon 
which no prior authority appears to exist. Additionally, the 
entire matter of whether the Hamilton County School Sys­
tems was or was not itself operating a unitary school sys­
tem would appear to be a subject for new litigation.

For all of the foregoing reasons the Court is of the opin­
ion that the motion to intervene must be denied.

Taking up next the defendants’ motion seeking reconsid­
eration by the Court of its decision upon May 19, 1971, 
wherein the Court found that the present Chattanooga 
School System was not a unitary one as required by recent 
Supreme Court and other appellate court decisions, the 
motion is predicated upon the contention that the issue of 
whether the Chattanooga schools were unitary had been 
decided in the course of previous hearings and was there­
fore res judicata. The motion appears to be based largely 
upon the recent Sixth Circuit decision in the case of Goss 
v. Board of Education of City of Knoxville, Tennessee, 
(decided June 22, 1971) 444 F.2d 632. Although that case 
spoke of prior court findings of a unitary school system 
within the Knoxville schools, and suggested that upon tra­
ditional principles of res judicata such findings might con­
stitute the law of the case, three matters must be noted 
in this regard. First, it must be noted that the Court went 
on to conclude: “We believe, however, that Knoxville



26

must now conform the direction of its schools to what­
ever new action is enjoined upon it by the relevant 1971 
decisions of the United States Supreme Court.” Second, 
it must be noted that in the face of prior findings of a uni­
tary system, the Court of Appeals nevertheless remanded 
the case for redetermination by the District Court of the 
unitary school issue “consistent with Swann v. Bd. of Ed., 
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and other rele­
vant Supreme Court opinions announced on April 20, 
1971.” Finally, as noted in the Goss decision, the law in the 
field of school desegregation has been in the process of 
development over the past 17 years, and concepts once 
thought adequate have been replaced by new and more 
definitive instructions from the Supreme Court. Findings 
of fact and conclusions of law based upon legal concepts now 
discarded form no basis for applying the principles of res 
judicata or determining the law of the case. The defen­
dants’ motion to reconsider will accordingly be denied.

Turning finally to the defendants’ motion to strike the 
plaintiffs’ objections to the amended plan for desegregation 
submitted by the defendants, it would appear that this 
motion might more appropriately be considered in connec­
tion with a review of the defendants’ plan upon its merits, 
as will be hereinafter undertaken by the Court.

LEGAL GUID ELINES

At the conclusion of the hearing upon May 19, 1971, 
the Court in its opinion reviewed the relevant decisions of 
the United States Supreme Court and the Court of Ap­
peals for this Circuit and set forth the legal guidelines 
that should direct the defendant School Board in prepar­
ing its plan for further and final desegregation of the Chat­
tanooga schools. Without attempting again to repeat in



27

full those guidelines, it does seem appropriate again to 
refer to certain of those guidelines.

In the first place, the fundamental proposition bears re­
peating that the legal basis for this lawsuit is that pro­
vision of the Fourteenth Amendment to the United States 
Constitution which requires that no state shall “deny to 
any person within its jurisdiction the equal protection of 
the laws.” This Court is charged with the responsibility of 
requiring nothing less of the Chattanooga schools than 
full compliance with the Equal Protection Clause. This 
Court is permitted to require nothing more of the Chatta­
nooga schools than such full Constitutional compliance.

In the second place, full compliance with the Equal Pro­
tection Clause of the Constitution requires the elimina­
tion from public schools of “all vestiges of state imposed 
segregation” and in this connection “ the burden upon 
school authorities will be to satisfy the Court that their 
racial composition (z. e., the racial composition of each 
school) is not the result of present or past discrimination 
upon their part.” Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 
(1971) . The responsibility of the Court is to assure that 
the Chattanooga schools “operate now and hereafter only 
unitary schools,” that is, schools “ in which no person is 
to be effectively excluded from any school because of race 
or color.” Alexander v. Holmes County Board of Education, 
396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) .

In the third place, while freedom of choice in matters 
of school attendance may have appealing features, “ if it 
fails to undo segregation, other means must be used to 
achieve this end” and “ freedom of choice must be held 
unacceptable.” Green v. County School Board of New Kent 
County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 
(1968).



28

Finally, it should be remembered that the initial re­
sponsibility for devising and implementing constitutionally 
adequate plans for the full and final desegregation of the 
Chattanooga schools lies with the school authorities and 
that “judicial authority enters only when local authority 
defaults.” Swann v. Charlotte-Mecklenburg Board of Edu­
cation, supra. It should accordingly be the purpose of the 
Court to leave unto the School Board the maximum discre­
tion and responsibility for all phases of the operation of the 
Chattanooga Public Schools, limited only by constitutional 
requirements. Absent a constitutional violation, the wis­
dom or lack of wisdom of any plan or policy established 
by the Board is not a proper subject for judicial interven­
tion or direction. The Court should not substitute its 
judgment for that of the School Board in areas where the 
exercise of judgment does not violate some principle of the 
law. Mapp v. Board of Education of City of Chattanooga, 
D.C., 203 F.Supp. 843 (1962), aff. 6 Cir., 319 F.2d 571.

PLANS FOR T H E FINAL DESEGREGATIO N OF 
T H E  CH ATTANO O GA SCHOOLS

Before undertaking an analysis and evaluation of the de­
segregation plans submitted by the respective parties, a 
statement of certain relevant historical matters and back­
ground data regarding the City of Chattanooga and its 
schools would be helpful. The City of Chattanooga, lo­
cated upon the southeastern border of the State of Tennes­
see, was a part of the Southern Confederacy during the War 
Between the States. Although the City in modern times 
has become one of the most progressive and forward look­
ing cities of the South, traditions of the past have their 
role and their influence. Memories of the past linger, 
with innumerable historical monuments marking the sites 
of some of the most significant events of the War Between



29

the States and with the City’s rich lore of history being 
recalled by such names and places as Missionary Ridge, 
Lookout Mountain, Signal Mountain, Orchard Knobb, and 
Chickamauga Battlefield. Among other traditions inherited 
from the past, the City inherited the practice of operating 
a dual system of schools for its black and white citizens. 
Pursuant to the decision of the United States Supreme 
Court in the case of Brown v. Board of Education, 347 
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), this lawsuit 
was instituted. The purpose of this lawsuit since its filing 
in 1960 has been to remove that dual system of schools 
and replace it with a unitary system in which all vestiges 
of racial discrimination have been eliminated. In the in­
tervening years very substantial progress has been made. 
Following appellate guidelines as they then existed, this 
Court believed upon each previous occasion it entered de­
segregation orders, first in 1962, then in 1965 and 1967, 
that all vestiges of the dual system of schools would be 
removed upon fulfillment of its orders and only a unitary 
system remain. Experience and appellate redefinition of 
the concept of a unitary school system have now mandated 
that further steps be taken to accomplish the full and final 
desegregation of the Chattanooga schools. As reflected by 
the undisputed evidence, a number of the Chattanooga 
schools remain racially identifiable.

Turning to certain relevant data, it may first be noted 
that the City of Chattanooga, according to the 1970 census, 
has a population of 118,661 persons. Of these 43,199 
or 36.4% were black. These population statistics reflect 
that even in the face of some annexation by the City, 
there has been a net decline in the City’s population since 
1960 of 11,321 persons with all but 27 of this decline being 
in the white population. In the 1970-71 school year, the 
total school enrollment was 25,967 students. Of this total,



30

12,669, or 48.8% were black students and 13,298, or 51.2% 
were white students.

At the time of the recent evidentiary hearing upon the 
issue of compliance, the plaintiff submitted a plan for the 
desegregation of the Chattanooga schools. That plan is set 
forth in Exhibits 124 thru 135. In essence the plaintiff’s 
plan calls for the establishment of a racially balanced 
faculty and staff in each school and the establishment of 
racial ratios among students in each school, with no school 
having less than 30% nor more than 70% of one race. The 
racial balance of faculty and staff in each school is to be 
accomplished by administrative assignment. The racial 
ratios among students is to be accomplished by rezoning, 
pairing, grouping and clustering elementary schools, by 
rezoning and reordering the feeder systems into the junior 
high schools, and by rezoning of the high schools. Extensive 
transportation of students, both to contiguous and non­
contiguous school zones, would be required to effectuate 
the plaintiff’s plan.

As stated in the legal guidelines set forth above, the initial 
responsibility for devising and implementing constitution­
ally adequate plans for full and final desegregation of the 
Chattanooga schools lies with the school authorities. Ac­
cordingly, before giving further consideration to the plain­
tiff’s desegregation plans, it is appropriate that the Court 
should first turn its attention to the defendants’ plan for 
desegregation of the Chattanooga schools. The wisdom 
and appropriateness of this procedure is further enhanced 
in this case by the apparent good faith efforts of the Chatta­
nooga school authorities and School Board to come forward 
with a plan that accords with the instructions given by the 
Court in its order of May 19, 1971, and with the appellate 
guidelines therein cited. It is also appropriate to note in this 
regard that both the administrative staff and the Chatta­
nooga Board of Education are themselves fully desegregated,



3 1

and this by voluntary or elective action. The Board of 
Education is comprised of seven members. Three of these 
members, including the Commissioner of Education, a 
duly elected official of the City of Chattanooga, are black. 
Four of the Board members are white. Three of the top 
school staff officials who testified at the hearings held re­
cently were black, including the Assistant Superintendent 
of Schools and the Director of Teacher Recruitment.

Turning to the defendants’ plan, a few words in regard 
to its organization are in order. The plan, as set forth in 
Exhibit 146, consists of an introduction, stating policy, 
Paragraphs 1 thru VIII, stating the plan, and Appendices 
A and B, setting forth the statistical justification and illus­
trating the plan. Illustrative school zoning maps for the 
elementary, junior high and high schools are shown in Ex­
hibits 143, 144, and 145 respectively.

No criticism of the enrollment projections set forth in 
Paragraph I of the plan are made by the plaintiff and none 
are found by the Court. This portion of the plan is ac­
cordingly approved.

Paragraph II of the plan, when read in conjunction with 
the statistical data set forth in Appendix A and the illus­
trative matter set forth in the school attendance zone maps 
(Exhibits 143, 144 and 145) defines the new proposed 

student attendance zones and sets forth the methods pro­
posed for accomplishing full and final student desegregation. 
The sufficiency of [sic] insufficiency of these proposals can 
best be determined by considering the elementary, junior 
high and high school plans in order.

Elementary Schools

During the school year 1970-71, the Chattanooga School 
System operated 33 elementary schools. Of the ten former 
black elementary schools within the system, four remained



32

all black and a total of only 30 white students attended the 
other six. In the 23 former white elementary schools there 
were 13,250 white children and 3,446 black children. Four 
former white elementary schools (Cedar Hill, Normal Park, 
Pineville, and Rivermont) remained all white. Barger had 
only two black students and East Lake had only three black 
students. Two former white elementary schools (Avondale 
and Glenwood) had changed to all black schools, having 
only three white students between them. The remainder 
of the former white elementary schools had ratios of black 
students varying from a low of 4% to a high of 64%.

The School Board proposes the accomplishment of a 
unitary system within the elementary schools by the closing 
of five elementary school, by the pairing of 16 elementary 
schools, by the clustering of six elementary schools, by the 
rezoning of three elementary schools, leaving the attendance 
zones of only three elementary schools unchanged. The 
overall result of the defendants’ plan is to achieve a racial 
ratio of not less than 30% nor more than 70% of any race 
in each elementary school within the system with but five 
exceptions (Barger-20%  black and 80% white; Carpenter

86% black and 14% white; Long—16% black and 
84% white; Rivermont-12% black and 88% white; and 
Sunnyside—15% black and 85% white). These five schools 
will be discussed further shortly.

Turning first to the five elementary schools that are 
proposed for closing, three were substantially all black 
last year (Davenport, Glenwood, and Trotter), one was 
substantially all white last year (Cedar H ill), and the fifth 
(Amnicola) had a majority of black students but was quite 

small. No meritorious objections are believed to have been 
raised by the plaintiffs to the selection of schools for closing. 
Furthermore, their closing contributes to the overall plan 
for desegregation and sound fiscal, safety, and administra­



33

tive reasons were given by school authorities for each school 
so selected for closing.

With regard to the five elementary schools that will 
retain racial ratios of less than 30% or more than 70% 
of one race, the Court is of the opinion that the Board has 
carried the burden of establishing that their racial compo­
sition is not the result of any present or past discrimination 
upon the part of the Board or other state agency. Rather, 
such result is the consequence of demographic and other 
factors not within any reasonable responsibility of the 
Board.

Barger, having a proposed racial ratio of 20% black and 
80% white, is paired with Sunnyside with the effect of 
giving that school a racial ratio of 15% black and 85% 
white. These schools, particularly Sunnyside, are located 
in an area of the City where the residential patterns are 
rather rapidly becoming more black. The completion of 
housing projects now in progress in the area will speed up 
this trend. No purpose of discrimination appears with 
regard to pairing of these two schools. Rather, sound plan­
ning for the elimination of racial discrimination supports 
the plan of the Board in this regard.

Carpenter, having a proposed racial composition of 86% 
black and 14% white, is located within a sizeable area of 
the City that has a heavily black private residential pattern. 
Further, due to commercial expansion and expansion of 
the University of Tennessee within this area, and the con­
sequent decline of elementary students, Carpenter is sched­
uled for closing within one or two years. Not only will 
time shortly remove any problem at Carpenter, but the 
inclusion of the school in some pair or cluster at this time 
would only serve to shortly impair the overall plan.

Elbert Long, having a proposed racial ratio of 16% black 
and 84% white, is located on the eastern extremity of the



34

City. It is located within a sizeable area of the City having 
a private residential pattern that is substantially white. 
There are no contiguous areas having a significant number 
of blacks, other than possibly areas outside the present 
municipal limits. Any significant annexation that may 
occur is likely to occur within this area and will include 
additional blacks. No purpose of discrimination appears 
regarding the zoning of this school.

Much that has been said regarding the Elbert Long 
School, which is also true of the Rivermont School, which 
under the defendants’ plan will have a racial ratio of 12% 
black and 88% white. This school is located in the northern 
extremity of the City, and was recently acquired from the 
County by annexation. At the time it was acquired, it was 
all white and remained all white during the past school 
year. T o  accomplish desegregation the defendants propose 
to close Amnicola School, which is located across the Ten­
nessee River, and place those students in Rivermont. This 
involves transportation of students for a substantial distance, 
but is nevertheless the nearest area having any significant 
black residential population. No purpose of discrimination 
appears regarding the consolidation and rezoning of these 
schools.

All 27 of the remaining elementary schools not hereto­
fore discussed will have racial ratios of not less than 30% 
nor more than 70% of any race in each school. The Court 
has carefully reviewed the treatment proposed for each 
school, together with all statistical demographical and other 
data available in the record. To the extent that any student 
racial imbalance exists in any of the elementary schools, the 
Court is of the opinion that the Board has carried the bur­
den of establishing that such racial imbalance as may remain 
is not the result of any present or past discrimination upon 
the part of the Board or other state agency. Rather, such



35

limited racial imbalance as may remain is the consequence 
of demographical, residential, or other factors which in no 
reasonable sense could be attributed to School Board action 
or inaction, past or present, nor to that of any other state 
agency.

The Court is accordingly of the opinion that the de­
fendants’ plan for desegregation of the Chattanooga elemen­
tary schools will eliminate “all vestiges of state imposed 
segregation” as required by Swann v. Charlotte-Mecklen- 
burg Board of Education, supra. Under these circum­
stances, it is accordingly not necessary for the Court to 
consider other or alternate plans. Likewise it would not be 
proper for the Court to pass judgment upon whether an­
other plan would accomplish a “better” result from the 
viewpoint of educational policy and apart from any issue 
of legality.

Junior High Schools

During the school year 1970-71, the Chattanooga School 
System operated 12 junior high schools. Of the four former­
ly black junior high schools within the system, two remained 
all black and a total of only 9 white students attended the 
other two. In the eight formely white junior high schools, 
there were 3,341 white students and 908 black students. 
One formerly white junior high school (East Lake) had 
only one black student. The remainder of the formerly 
white junior high schools had ratios of black students 
varying from a low of 8% to a high of 70%.

The School Board proposes the accomplishment of a 
unitary system within the junior high schools by closing 
two junior high schools and by rezoning the remaining ten 
junior high schools, tying them into the restructured ele­
mentary school system. The overall result of the defendants’ 
plan is to achieve a racial ratio of not less than 30% nor



36

more than 70% of any race in all but three junior high 
schools. Those three schools are Hardy, with 73% black 
and 27% white, Dalewood, with 29% black and 71% 
white, and Long, with 15% black and 85% white. Further 
discussion will be given to these three schools.

Turning first, however, to the two junior high schools 
that are proposed for closing, one is a former black school 
and the other is a former white school. The former black 
school, Howard Junior High School, was all black last year. 
The former white school, Lookout Junior High School, 
was 37% black and 63% white last year. No objections 
were raised by the plaintiffs to the selection of schools for 
closing. The Board represents that the closing of Howard 
Junior High School was necessary to the effectiveness of 
their overall plan. They represented that the closing of 
Lookout Junior High School was necessary in order to 
obtain desegregation of Alton Park Junior High School, 
one of the former all black junior high schools. Alton Park 
is stated to be a new school with greater capacity, whereas 
Lookout is one of the older and smaller junior high schools. 
Furthermore, financial economies, along with optimum 
development of quality instruction programs, were given 
as additional reasons for the selection of the junior high 
schools to be closed.

Turning to the three junior high schools that will retain 
a racial ratio of less than 30% or more than 70% of one 
race, Hardy Junior High School is expected to have a ratio 
of 73% black and 27% white. Until 1965 Hardy was an 
all white school. Changing residential patterns have gradu­
ally changed the racial composition of the school to its 
present pattern. The proposed zone for Hardy is bounded 
by obstacles to its enlargement, including Missionary Ridge 
on the east, the Tennessee River on the west, the city limits 
on the north, and predominantly black residential areas on



37

the south. Under all of these circumstances, the Court is of 
the opinion that the Board of Education has carried the 
burden of establishing that such racial imbalance as remains 
at Hardy Junior High School arises from conditions beyond 
the responsibility of the Board and is not the result of any 
present or past discrimination on the part of the Board or 
of any state agency.

Dalewood Junior High School, a former white school, 
is expected to have a ratio of 29% black and 71% white 
under the present plan. However, the trend in residential 
patterns in the zone is toward increasing the black popula­
tion. Apartments now under construction will shortly 
increase the ratio of black students to a point in excess of 
30%. No purpose of discrimination appears in the zoning 
of the Dalewood Junior High School.

The final junior high school having a ratio in excess of 
70% is the Elbert Long Junior High School. Under the 
defendants’ plan this school will have a racial composition 
of 15% black and 85% white. Everything that the Court 
has heretofore said in regard to the Elbert Long Elementary 
School is applicable to the junior high school. Additionally, 
the Elbert Long junior High School is the smallest junior 
high school in the system, having an enrollment of only 
166 students.

All of the remaining junior high schools not heretofore 
discussed will have ratios of not less than 30% nor more 
than 70%, of any race in each school. The Court has care­
fully reviewed the proposed racial composition of each 
school and all of the relevant statistical, residential, demo- 
graphical, and other data available in the record. The Court 
has also considered the manner in which the junior high 
schools are tied into the elementary school plan which the 
Court has hereinabove approved. In this connection the 
Court cannot overlook the fact that it is a matter of great 
importance to proper school administration that school



38

authorities be able to make reasonably reliable forecasts 
of school enrollments. T o  do this there needs to be a 
carefully devised system of feeder schools. In the light of 
all the record, the Court is of the opinion that the junior 
high school plan as submitted by the defendants removes 
all state created or state imposed segregation. T o  the extent 
that any student racial imbalance exists in any of the junior 
high schools, the Board has carried the burden of estab­
lishing that such racial imbalance as remains is not the 
result of any present or past discrimination upon the part 
of the Board or upon the part of other state agencies. 
Rather, such limited racial imbalance as may remain is the 
consequence of demographical, residential, or other fac­
tors which in no reasonable sense could be attributed to 
School Board action or inaction, past or present, nor to 
that of any other state agency. The Court is accordingly 
of the opinion that the defendants’ plan for desegregation 
of the Chattanooga junior high schools will eliminate “all 
vestiges, of state imposed segregation” as required by the 
Swann decision. It is accordingly unnecessary to consider 
other or alternate plans.

High Schools

During the school year 1970-71, the Chattanooga School 
System operated five high schools. These included four 
general curricula high schools and one technical high school. 
Kirkman Technical High School offers a specialized cur­
ricula in the technical and vocational field and is the only 
school of its kind in the system. It draws its students from 
all areas of the City and is open to all students in the City 
on a wholly nondiscriminatory basis pursuant to prior 
orders of this Court. Last year Kirkman Technical High 
School had an enrollment of 1218 students, of which 129 
were black and 1089 were white. The relatively low en­



39

rollment of black students was due in part to the fact that 
Howard High School and Riverside High School, both 
of which were all black high schools last year, offered many 
of the same technical and vocational courses as were offered 
at Kirkman. Under the defendants’ plan these programs 
will be concentrated at Kirkman with the result that the 
enrollment at Kirkman is expected to rise to 1646 students, 
with a racial composition of 45% black students and 55% 
white students. No issue exists in the case but that Kirkman 
Technical High School is a specialized school, that it is 
fully desegregated, and that it is a unitary school.

While some variation in the curricula exists, the remain­
ing four high schools, City High School, Brainerd High 
School, Howard High School, and Riverside High School, 
each offer a similar general high school curriculum. At 
the time when a dual school system was operated by the 
School Board, City High School and Brainerd High School 
were operated as white schools and Howard High School 
and Riverside High School were operated as black schools. 
At that time the black high schools were zoned, but the 
white high schools were not. When the dual school system 
was abolished by order of the Court in 1962, the defendants 
proposed and the Court approved a freedom of choice plan 
with regard to the high schools. The plan accomplished 
some desegregation of the former white high schools, with 
City having 141 black students out of an enrollment of 1435 
and Brainerd having 184 black students out of an enroll­
ment of 1344 during the 1970-71 school year. However, 
both Howard, with an enrollment of 1313, and Riverside, 
with an enrollment of 1057, remained all black. The free­
dom of choice plan “having failed to undo segregation 
*  *  *  freedom of choice must be held unacceptable.” Green 
v. County School Board of New Kent County, 391 U S. 
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).



40

The School Board proposes to accomplish a unitary 
school system within the high schools by zoning the four 
general curricula high schools with the following results 
in terms of student ratios:

Black White
Students Students

Brainerd High School 32% 68%
Chattanooga High School 44% 56%
Howard High School 75% 25%
Riverside High School 75% 25%

The plaintiffs have interposed objections to the defen­
dants’ high school plan upon the ground that it does not 
achieve a racial balance in each school. T o  some extent 
these objections are based upon matters of educational 
policy rather than legal requirements. It is of course ap­
parent that the former white high schools, particularly 
Brainerd High School, remain predominantly white and 
that the former black high schools remain predominantly 
black. However, the defendants offer some evidence in 
support of the burden cast upon them to justify the re­
maining imbalance. The need for tying the high school 
zones to feeder junior high schools is part of the defendants’ 
explanation. Residential patterns, natural geographical 
features, arterial highways, and other factors are also part 
of the defendants’ explanation.

A matter that has given concern to the Court, however, 
and which the Court feels is not adequately covered in the 
present record, is the extent to which the statistical data 
upon which the defendants’ plan is based will correspond 
with actual experience. Among other matters there appears 
to be substantial unused capacity in one or more of the city 
high schools. Before the Court can properly evaluate the 
reliability of the statistical data regarding the high schools,



41

the Court needs to know whether the unused capacity does 
in fact exist and, if so, where it exists, whether it will be 
used and, if so, how it will be used. It would be unfortunate 
indeed if experience shortly proved the statistical data in­
adequate and inaccurate and this Court was deprived of 
the opportunity of considering those matters until on some 
appellate remand, as occurred in the recent case of Davis 
v. Board of School Commissioners of Mobile, 402 U.S. 33, 
91 S.Ct. 1289, 28 L.Ed.2d 577.

The plaintiff has submitted a high school plan with high 
school zones which the plaintiff’s witness has testified will 
achieve a racial balance in each high school. However, this 
plan is not tied into the junior high school plan herein­
above approved and the Court is unable to say whether it 
could be so tied in. Furthermore, the same statistical prob­
lem discussed above would appear to exist with regard to 
the plaintiff’s plan.

The Court accordingly is unable to give final approval 
to a high school desegregation plan at this time. Time, 
however, is a pressing factor. Pre-school activities will com­
mence at each high school within less than a week, if in 
fact they have not already commenced. Full commence­
ment of the fall term is only one month away. It is clear 
that the high schools must move at least as far as is proposed 
in the defendants’ high school plan. Accordingly, the Court 
will give tentative approval only at this time to the defen­
dants’ high school plan in order that at least as much as is 
therein proposed may be placed into operation at the com­
mencement of the September 1971 term of school. Further 
prompt but orderly judicial proceedings must ensue before 
the Court can decide upon a final plan for desegregation of 
the high schools.

In the meanwhile, the defendants will be required to 
promptly provide the Court with information upon the



42

student capacity of each of the four high schools under dis­
cussion, upon the amount of unused space in each of the 
four high schools, the suitability of such space for use in 
high school programs, and the proposed use to be made 
of such space, if any. In this connection the defendants 
should likewise advise the Court regarding its plan as to 
tuition students. Last year almost one-third of the total 
student body at City High School were non-resident tuition 
paying students. There is no information in the present 
record as to the extent the Board proposes to admit tuition 
students nor the effect this might have on the racial compo­
sition of the student body. The Court has no disapproval 
of the admission of tuition students nor to the giving of 
preference to senior students in this regard, provided that 
the same does not materially and unfavorably distort the 
student racial ratios in the respective schools. Otherwise, 
the matter of admitting tuition students addresses itself 
solely to the discretion of the Board. No later than the 10th 
day of enrollment the defendants will provide the Court 
with actual enrollment data upon each of the four high 
schools here under discussion.

T R A N SPO R TA TIO N

The defendants propose to make available limited trans­
portation for some elementary and junior high school stu­
dents. Under the defendants’ plan elementary school 
students will continue to report in the morning and depart 
in the evening from their nearest elementary school. School 
sponsored transportation will be provided to and from the 
paired and clustered schools and to those students living 
more than one and one-half miles from their nearest school. 
On the junior high level transportation will be provided 
only to students living more than one and one-half miles 
from the school to which they are assigned. No school



43

sponsored transportation is proposed for high school stu­
dents.

The estimate of total capital outlay and operating ex­
penses for the transportation proposed is $468,126.00. 
While this is a burden for a city, which, like all cities, is 
faced with revenue shortages, a substantial portion of the 
transportation expense is borne by the State. No estimate 
was placed in the record of the economies to be effected 
or the savings to be made by the consolidation of schools 
and the closing of five elementary schools and two junior 
high schools, but these savings will doubtless be substantial.

The defendants’ transportation proposals are substan­
tially less than those proposed by the plaintiffs. No cross­
town busing is proposed by the defendants. The Court, 
however, believes that the defendants’ transportation pro­
posals are adequate to assure fulfilment of all student de­
segregation plans heretofore approved. Accordingly, the 
defendants’ proposals in this regard are approved.

REM AINING PROVISIONS OF TH E 
DESEGREGATIO N PLAN

There remain to consider those portions of the defen­
dants’ plan as set forth in Paragraph III thru VIII of the 
plan. Paragraph III of the plan provides for non-discrimi- 
natory practices in educational programs and in extra­
curricular activities. No objection was raised to this por­
tion of the plan and the Court is of the opinion that it is 
adequate to avoid any discrimination in these areas. More­
over, the evidence does not indicate that any such discrimi­
nation is now being practiced within the Chattanooga 
School System, but rather bears out the testimony of the 
defendants’ witnesses that all such practices have heretofore 
been eliminated.



44

Regarding student transfers, the defendants propose in 
Paragraph IV of their plan to greatly simplify their pre­
viously complex student transfer plan and provide for trans­
fers only in the following situations: (a) the majority to
minority transfers, as required by the Swann decision, (b) 
the non-discriminatory transfer of orthopedically handi­
capped children, (c) the non-discriminatory transfer of 
students eligible for special education programs, and (d) 
permission for students, upon moving their residence to 
another zone within the school year, to elect to complete a 
school year in the school of their initial assignment. The 
transfer provisions appear to be wholly free of any potential 
for discrimination. Moreover, the evidence is undisputed 
that the defendants have heretofore administered their 
previous transfer plan in a manner that was wholly free 
from racial or other discrimination. Nor was it in any 
manner used to avoid desegregation, although the potential 
for such use may have existed to an extent beyond that 
possible under the proposed transfer plan. Paragraph IV 
of the defendants’ plan will be approved.

The defendants’ plan for desegregation of faculty and 
other staff as contained in Paragraph V provides for the 
assignment of teachers and staff to each school in ratio to 
their existence within the system and in a manner so as 
to avoid any racial identification of one school from another. 
Other provisions to avoid racial discrimination in the re­
cruitment, assignment, reassignment, promotion, and demo­
tion of teachers and staff are made. The provisions of the 
defendants’ plan in this regard appear to provide for re­
moval of all vestiges of racial segregation in matters of staff 
and faculty. The plaintiff proposes that a number of addi­
tional provisions be added that are intended to regulate 
potential discriminatory practices which the record shows 
clearly are not and have not been practiced with the Chat­



45

tanooga School System since its desegregation under prior 
orders of the Court. There appears to be no purpose in 
multiplying restrictions for which no need or justification 
in fact exists. A school system that has voluntarily placed a 
black staff member in charge of teacher recruitment and 
assignment needs no Court-imposed restrictions on po­
tential forms of faculy discrimination which the record 
clearly and affirmatively shows it does not practice.

Paragraph VI of the defendants’ plan, relating to school 
construction and site selection, provides that such activities 
shall be conducted in a manner to avoid a reoccurrence of a 
dual school system and that any proposal in this regard 
shall be subject to judicial review regarding its legality 
before it shall be implemented. The evidence reflects that 
no site selection, construction, or proposed construction is 
presently pending or in the offing. While somewhat dif­
ferent wording of the defendants’ plan in this regard is 
urged by the plaintiff, the Court is of the opinion that the 
defendants’ proposal adequately fulfils the requirements of 
the law in regard to school construction and site selection. 
This provision of the plan will accordingly be approved.

Finally, Paragraph VII of the defendants’ plan proposes 
a continuation of the practice of annual reporting of de­
segregation statistics. The defendants’ plan, however, is 
limited to an additional report in October of 1971. It is 
believed that the plan must be amended to provide for the 
continuation of such annual reports until a final order of 
compliance may be entered.

IM PLEM EN TA TIO N  OF PLAN

There remains to consider the matter of implementation 
of the various provisions of the plan for desegregation 
hereinabove approved by the Court. No lawful or judici­
ally acceptable reason appears why the provisions of the



46

plan hereinabove approved should not be implemented in 
time for the commencement of the 1971-72 school term; 
provided, however, that in implementing any portion of the 
plan xegarding student assignments in the elementary and 
junior high schools as is dependent upon acquiring, staffing, 
and scheduling transportation facilities not now available 
to the schools, may be delayed until such facilities can be 
made available in the prompt, orderly, and necessary course 
of school and governmental affairs and can be placed in use 
with a minimum of disruption to the educational program. 
It appears undisputed in the record that the defendant does 
not now have available the facilities for accomplishing the 
transpoi tation requirements of its plan. It is likewise estab­
lished in the record that such facilities cannot be financed, 
acquired, staffed, and routed within the short time that re­
mains before the commencement of school in September 
1971, without total disregard for all orderly processes of 
government. The defendants will accordingly be per­
mitted to implement such portions of its elementary and 
junior high school plans as may be feasible with the trans­
portation facilities reasonably available to it at the com­
mencement of the September term of school, and will be 
permitted to delay the implementation of any remaining 
portions of the said student assignment plans in the ele­
mentary and/or junior high schools until the transportation 
facilities necessary therefor can be acquired in the prompt 
but orderly process of school administration and of local 
governmental affairs, and until such facilities can be placed 
in use with safety and with a minimum interruption to the 
education program. As soon as the defendants can formal­
ize their plans in this regard, and in no event later than 
within 30 days, the defendants will advise the Court of 
their proposed implementation schedule in accordance with 
the foregoing.



47

Having considered and decided all issues appropriate for 
decision at this time, the defendants will prepare and sub­
mit an order in accordance with this opinion.

ADDENDUM

The legal decisions in this case are for the present com­
pleted. A few further words, however, seem in order. This 
Court would hope that its opinion might be read with an 
effort at understanding by those who have an interest in 
the problems here discussed. Although the Court has tried 
earnestly to weigh the evidence and to follow the law, if 
errors have been made by the Court in what has been here 
decided, judicial processes are available to correct those 
errors.

If understanding of the legal basis for the decisions 
heretofore made cannot be given, then the Court can only 
appeal to the conscience of the community for that under­
standing.

As anyone who has kept up with public affairs in recent 
times must know, Chattanooga is not being singled out 
for special judicial treatment. One has but to read to know 
that most of the major cities of this Nation are contending 
with the problems here being judicially dealt with. The 
City of Chattanooga can never expect to remain an island 
within the Nation living in the pre-Brown v. Board of Edu­
cation era, when the rest of the Nation is moving into the 
post-Brown v. Board of Education era. This City has 
made great progress in racial affairs in recent years. Though 
some were opposed at the time to that progress, few 
would now publicly propose that the racial clock be run 
back in Chattanooga to where it stood in 1960, and none 
would suggest that it be run back to where it existed a 
century ago.



48

This Court is not insensitive to the fears and anguish 
expressed by some within the City in recent days, nor does 
it relish the abuse and worse that has been so abundantly 
shared by word and letter, but this Court would be un­
worthy of trust in the least of its functions if it were to 
allow these things to cause it to deviate in the least from 
its sworn duty to uphold the Constitution and the laws as 
that Constitution and as those laws have been duly estab­
lished and interpreted by the properly constituted au­
thorities, including the United States Supreme Court and 
the Appellate Court under which this Court functions. 
How could anyone expect this Court to uphold a law of 
Congress regarding robbery of a bank, but in the face of 
public misunderstanding and criticism, turn its back upon 
the Constitutional requirement that all citizens be treated 
equally before the law?

There may well exist basis for criticism of the interpre­
tation placed upon the Equal Protection Clause by the 
United States Supreme Court as it applies to public schools. 
But there can be not the least doubt that this Court, as 
well as every Court in the Nation, is bound by that inter­
pretation. Furthermore, who is so certain of the correct­
ness of his own views of the Equal Protection Clause that 
he would be willing to swap places in the social and racial 
scheme of affairs in our society? How many are so con­
vinced of the correctness of their own interpretation of 
that clause that they would be willing to live in a society in 
which each man is free to make his own interpretations of 
all laws? Surely thoughtful men must agree that the rule 
of the law is the single greatest achievement of the cen­
turies’ long struggle for freedom.

This City can continue upon the path of orderly progress 
and racial harmony in all of its affairs, including the opera­
tion of its schools. This City can live within the law. This



49

City can maintain and improve its program of quality 
education for all children within its schools. This City can 
have one of the finest school systems within the State or 
within the Nation, but it first must believe that it can. It 
first must want the finest schools for its children. Medieval 
Florence, a miserable hovel of a City compared with mod­
ern Chattanooga, gave America its name and the world the 
Renaissance. But it did it only because its leaders and its 
people believed that it could be done and willed that it 
should be done.

Equal protection of the law might not seem so heavy a 
burden for anyone to carry if he felt that it were truly his 
brothers’s child who was asking for it. Quality education 
might not seem so difficult for anyone to maintain if it were 
truly his brother’s child that was being deprived or handi­
capped by its denial.

This City has seen its share of law violators, racial dis­
harmony, fear, and distress in recent weeks and months. 
For those who believe that defiance of the lawr can be re­
placed with willing obedience, for those who believe that 
racial strife can be replaced with racial harmony, for those 
who believe that fear can be replaced with trust, for those 
who believe that quality education can be maintained and 
enlarged within the Chattanooga Public Schools, for those 
wffio believe that mankind can live in peace and harmony 
with his fellowman, for those who believe in the essential 
brotherhood of man, the bell tolls now.



50

U N ITED  STA TES D IST R IC T  CO U RT
E. D. TENNESSEE, S.D.

Civ. A. Nos. 3564 and 5954

JAM ES JO N A TH A N  MAPP E T  AL.

v.

THE BOARD OF EDUCATION OF T H E  CITY OF 
CHATTANO OGA, TENNESSEE, E T  AL.

OPINION
(Filed February 4, 1972)

MEMORANDUM AND ORDER

FRANK W. W ILSON, Chief Judge.

This case is presently before the Court on a motion filed 
on behalf of the defendants reciting that upon January 14, 
1972 an order was entered in a state court case entitled 
John E. Grannon, [sic] Jr. v. City of Chattanooga, Tennes­
see, et ah, No. N-15967 in the Circuit Court for Hamilton 
County, Tennessee, wherein the City of Chattanooga and 
certain officials of the city were enjoined from making 
available any funds for transportation of school students 
“ to achieve a racial balance within the Chattanooga public 
school system” from and after thirty days from the entry 
of the state court order. Interpreting the state court order 
and the stated intention of officials of the City of Chat­



51

tanooga that they expect to comply with that order without 
appeal, as interfering with or forbidding the defendant 
from complying with the plan for establishing a unitary 
school system as required by the Equal Protection Clause 
of the United States Constitution and as heretofore ap­
proved by order entered in this cause, the defendants seek 
the instructions of this Court.

It is of course readily apparent what those instructions 
must be. A brief recitation of the history of this litigation 
will serve to render obvious what must be done. This 
case, seeking the desegregation of the public schools of the 
city of Chattanooga, Tennessee, has been in various stages 
of litigation since 1960. Extensive hearings have been held 
and orders entered, which orders have now been approved 
upon appeal upon three occasions. Hearings extending 
over a period of weeks were held upon the present phase 
of the case in the spring and summer of 1971. These hear­
ings resulted in an order being entered instructing the de­
fendants to submit a further plan for the desegregation of 
the Chattanooga city schools, such plan to be in accord­
ance with the controlling appellate court decisions, includ­
ing the decision of the United States Supreme Court in the 
case of Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) . In 
addition to these general instructions and by way of inter­
pretation of these appellate court mandates, this Court gave 
the following directions to the Board:

Now in that connection, I read the Swann case as hold­
ing that the establishment of any exact racial balance in the 
schools is not constitutionally mandated. Likewise, the use 
of means to accomplish desegregation, such as, for example, 
bussing the students to accomplish an exact racial balance, 
is not constitutionally mandated. But these factors are 
matters which should be considered in every case. And, as I



52

have said, the Court goes on to say that when it does appear 
that there are schools which do not have some reasonable 
balance in relationship to the total population of the school, 
the school board ‘has the burden of showing that such 
school assignments are genuinely non-discriminatory.’

*  *  *  #  #

. . .  A unitary school system as I understand it, is just 
simply a system in which no segregation exists by reason 
of any past action of a school official . . .  or by reason of 
any present action of the school board or officials, or any 
lack of action on their part. To the extent that any segrega­
tion exists in the system today which is traceable to actions 
of the board at the time when they were operating a dual 
system, then they have an obligation to remove that segre­
gation. To the extent that any segregation exists in the 
system as a result of present action or inaction on the part 
of the board, then they have an obligation to remove that 
segregation.

# #  #  #  *

. . .  A unitary school system is simply an attempt to 
visualize what the Chattanooga school system would have 
looked like today had there been no white children and had 
there been no black children, but only just children. . . .

With this model of a school system built and structured 
only to serve and educate children and not to educate black 
children and not to educate white children, but educate 
just children, we must seek to restructure our present 
schools as nearly as feasible and as nearly as possible along 
these lines, with zone lines being drawn and all other 
available means of desegregation being used to the extent 
necessary to achieve the model. When all present segrega­
tion that is the result of either past action of school au­



53

thorities and school boards, including action that occurred 
when a dual school system was operated pursuant to law, 
and/or that which is the result of action or inaction on 
the part of the present school board, including the obliga­
tion of that Board to eliminate the results of previously 
state-imposed segregation, we will have achieved a unitary 
system, as I understand that term, and as it appears to be 
defined in the cases.

Pursuant to these instruction, the Board of Education 
submitted a proposed plan for further and final desegre­
gation of the Chattanooga public schools, the plaintiff’s 
having previously submitted their proposed plan. The 
respective plans were considered by the Court and an 
opinion was entered approving a substantial portion of the 
Board of Education’s plan, including that portion of the 
plan relating to the transportation of students electing to 
transfer from a school in which they were of the majority 
race to a school in which they would be in the minority 
race, all as explicitly mandated by the unanimous decision 
of the United States Supreme Court in the Swann case, 
supra, and including that portion of the plan relating to the 
transportation of students where rezoning of elementary 
schools was deemed to render such transportation conven­
ient or necessary. Neither “racial balance” nor crosstown 
bussing to accomplish “racial balance” was ordered or ap­
proved. The opinion of the Court upon these matters was 
entered July 26, 1971. See Mapp v. Board of Education 
of the City of Chattanooga, Tennessee, 329 F.Supp. 1374 
(E.D.Tenn.1971) . An appeal is now pending in the United 

States Courtjof Appeals for the Sixth Circut with regard to 
that opinion.

[1] No issue has heretofore been raised in this case re­
garding the legality of providing for transportation of stu­
dents as a part of a plan for achieving a unitary school



54

system. If issues exist in this regard they should be present­
ed in this case. They may be presented in the United States 
Court of Appeals where issues in regard to this phase of 
the plan are now in contention. It is clear however that a 
Federal Court may not be ousted of jurisdiction nor may its 
jurisdiction be by-passed or circumvented when the case 
involves federal constitutional issues. See Thomason v. 
Cooper, 254 F.2d 808 (8th Cir. 1958).

[2] All parties named as plaintiffs or as defendants in the 
state court litigation in the case of John E. Grannan, Jr. 
vs. the City of Chattanooga, Tennessee, et al., No. N-15967 
in the Circuit Court for Hamilton County, Tennessee, in­
cluding the attorneys for the plaintiff therein, must be 
immediately joined as parties-defendant to this litigation 
and they must be called upon forthwith to show cause why 
they should not be enjoined from complying with or seek­
ing to enforce the order entered in that cause purporting 
to enjoin the use of public funds for the transportation of 
students pending the litigation of that issue in these pro­
ceedings.

This Court has at all times sought to limit the parties 
to this litigation to those essential to its litigation, leaving 
out of the litigation those public officials not immediately 
and directly responsible for the operation of the Chat­
tanooga public schools. Accordingly, neither the members 
of the City Commission nor the United States Department 
of Health, Education and Welfare have been made parties 
to these proceedings. Rather the Court has sought to leave 
to those public officials who are directly responsible for the 
operation of the Chattanooga public schools the maximum 
authority and responsibility for the operation of those 
schools, subject only to the requirement that that operation 
be consistent with the United States Constitution as inter­
preted by the United States Supreme Court. It is with



55

sincere regret that the Court must now add further parties- 
defendant to this litigation, including additional public 
officials of the City of Chattanooga. This Court is not per­
mitted, however, either by its oath or by its conscience to 
ignore or to disregard the requirements of the United 
States Constiution, including the Equal Protection Clause 
of that Constitution. Neither is it permitted to substitute 
its personal views regarding matters of constitutional inter­
pretation for the decisions of the United State Supreme 
Court in regard thereto. Neither can it permit others to do 
so in matters pertaining to this litigation.

The plaintiff will accordingly file forthwith a petition 
adding as parties-defendant to this cause all those who are 
named as parties-plaintiff or defendant in the aforesaid 
case of John E. Grannan, Jr. vs. The City of Chatanooga, 
Tennessee, et al., No. N-15967 in the Circuit Court for 
Hamilton County, Tennessee, including the attorneys for 
the plaintiff therein. An order will thereupon issue re­
quiring that the said parties appear forthwith to show cause 
why a temporary restraining order should not issue en­
joining them from compliance with or enforcement of the 
state court order pending further proceedings and further 
orders in this cause.

It is so ordered.

OPINION

Upon July 26, 1971, this Court entered its opinion upon 
all matters then before the Court in this case. See Mapp 
v. Board of Education of the City of Chattanooga, Tennes­
see, 329 F.Supp. 1374. The order entered upon that 
opinion is now pending upon appeal. At the time that 
order was entered the following matters were reserved for 
further consideration by this Court: (1) matters relating



56

to the schedule for full implementation of that portion of 
the School Board plan relating to student assignments in 
elementary and junior high schools; (2) tentative approval 
only was given to the School Board plan for desegregation 
of the Chattanooga high schools other than Kirkman 
Technical High School, which was found to be a unitary 
school and to which final approval was given. There ac­
cordingly remain to consider matters relating to final ap­
proval of the plan for desegregation of the four general 
purpose high schools; and (3) matters relating to the plain­
tiffs’ claim for recovery of attorney fees from the defendant 
School Board.

Reports, affidavits, and briefs have now been filed regard­
ing the matters remaining for decision as summarized 
above. Upon December 14, 1971, the plaintiff filed a mo­
tion for further relief which substantially reasserts the fore­
going matters.

In addition, a further issue was injected into the case 
by recent motions filed by each party seeking to enjoin a 
state court judgment alleged to impede or interfere with 
the desegregation plans heretofore approved in this case. 
Thereupon an order was entered directing the joinder of 
additional parties as parties defendant to this case and 
ordering that the said additional parties should appear and 
show cause why they should not be enjoined from the 
enforcement of or compliance with a certain judgment 
entered in a state court and to which lawsuit they were each 
parties or counsel for parties.

Taking up first the matters just referred to, that is, the 
defendant’s motion for instructions and the plaintiff’s mo­
tion seeking to enjoin compliance with or enforcement of 
an order entered in the state court, reference is made to 
this Court’s instructions and orders entered upon January 
25 and 26, 1972. Pursuant to these instructions and orders



57

of this Court, there have now been added as additional 
parties defendant to this lawsuit all parties to that certain 
state court proceeding entitled “John E. Grannan, Jr. v. 
City of Chattanooga, Tennessee, et al.” #N-15967 in the 
Circuit Court for Hamilton County, Tennessee, including 
the plaintiff, John E. Grannan, Jr., each of his counsel of 
record, and including the City of Chattanooga, its Mayor, 
each City Commissioner, and the City Auditor. Upon Janu­
ary 28, 1972, a hearing was held wherein the original parties 
were present or represented by counsel and wherein each 
new party defendant was present in person and by counsel 
except Commissioner Rose, who had sought and obtained 
permission to be excused but who was represented by 
counsel. The City of Chattanooga was represented by 
corporate counsel. One of the attorneys of record for the 
plaintiff Grannan in the state court proceedings, Ray Dod­
son, having disclaimed at the show cause hearing any 
interest in the state court judgment or proceedings, was 
dismissed as a party defendant to this case. The purpose 
of the hearing was to call upon the newly added parties 
defendant to show cause why a temporary injuction should 
not issue enjoining and restraining them from enforcement 
of or compliance with the order entered in the aforesaid 
case of John E. Grannan, Jr. v. City of Chattanooga. Upon 
the basis of the pleadings and the record made upon that 
hearing, the following matters appear undisputed.

Upon December 9, 1971, a lawsuit was filed in the Circuit 
Court for Hamilton County, Tennessee, in the aforsaid case 
of John E. Grannan, Jr. v. City of Chattanooga, et al. Upon 
January 18, 1972, a final judgment was entered in that 
case purporting to permanently enjoin the City of Chat­
tanooga and its officials from using public funds “for the 
purpose of transporting pupils in order to achieve a racial 
balance within the Chattanooga Public School System.”



58

According to that final judgment a trial was held in the 
state court upon January 14, 1972, just 35 days after the 
filing of the original lawsuit. Reference is made to “Exhibit 
B ” to the plaintiff’s petition for a full and true copy of the 
state court final judgment. The legal basis for the state 
court judgment, as cited an the face thereof, is (1) Section 
49-2201 of the Tennessee Code Annotated; (2) Section 
1232 (a) of Title 20 of the United States Code, and (3) 
“ sanity, reason, and the health and well being of the chil­
dren.”

At the time of the show cause hearing in this court the 
only counsel to speak in support of the validity of the 
state court order was counsel for the plaintiff therein. 
Counsel for the City of Chattanooga and for other city 
officials who were parties defendant in the state court pro­
ceedings, stated that he Avas of the opinion both prior to 
and after the entry of the state court order that the order 
was a wholly void and unconstitutional order. Although 
specifically invited by this Court to do so, no other party or 
legal counsel present at the hearing, including the Mayor of 
the City of Chattanooga who is himself an attorney, spoke 
in support of the validity of the state court order. It was 
further represented at the show cause hearing, however, 
that within a matter of days after entry of the state court 
judgment a public announcement was authorized and made 
on behalf of the City of Chattanooga and other defendants 
in the state court proceedings that no appeal would be 
taken from the state court judgment and that the said defen­
dants expected to fully comply therewith.

[3] Upon the basis of the foregoing undisputed record, 
it is perfectly clear that the aforesaid state court judgment 
seeks to interfere with or impede the orders entered in this 
case and that the state court judgment is unconstitutional 
upon its face in that it is in direct conflict with the unani­



59

mous decisions of the United States Supreme Court written 
by Chief Justice Burger in the cases of Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 
1267, 28 L.Ed.2d 554; McDaniel v. Barresi, 402 U.S. 
39, 91 S.Ct. 1287, 28 L,Ed.2d 582; and North Carolina 
Board of Education v. Swann, 402 U.S. 53, 91 S.Ct. 1284, 
28 L.Ed.2d 586, all of which were entered upon April 20, 
1971. It should be noted in passing that these decisions 
were entered more than six months prior to the filing of 
the lawsuit in the state court.

[4] Although these decisions are sometimes referred to 
by persons not knowledgeable in the law as “mere prece­
dents,” all persons with either knowledge of or respect for 
the law are fully aware that these unanimous decisions of 
the United States Supreme Court are the law of the land, 
binding upon every person in the land, and every court in 
the land, including the state courts of Hamilton County, 
Tennessee and this Court. These matters are so dear 
as to render any contention to the contrary frivolous upon 
its face.

In the decision of the United States Supreme Court en­
tered in the case of North Carolina Board of Education v. 
Swann, supra, the Court unanimously held that a state 
statute having the identical purpose as the Tennessee statute 
recited as the basis for the court order in Grannan v. City 
of Chattanooga was unconstitutional, saying:

“ However, if a state-imposed limitation on a school 
authority’s discretion operates to inhibit or obstruct 
the operation of a unitary school system or impede the 
disestablishment of a dual school system, it must fall; 
state policy must give way when it operates to hinder 
vindication of federal constitutional guarantees.”

Not only does Section 1232 (a) of Title 20, United States 
Code, cited in the state court judgment show on its face



60

that it has no application to state and local officials in school 
desegregation cases, but the United States Supreme Court 
in a unanimous opinion written by Chief Justice Burger 
in the case of McDaniel v. Barresi, supra, clearly so stated 
in regard to an almost identical statute in the Civil Rights 
Act of 1964, saying:

“Nor is the board’s plan barred by Title IV of the 
Civil Rights Act of 1964. The sections relied upon by 
the respondents [42 U.S.C. §§ 2000c (b), 2000c (6) ] 
are directed only at federal officials and are designed 
simply to foreclose any interpretation of the Act as ex­
panding the powers of federal officials to enforce the 
Equal Protection Clause. Swann, 402 U.S. at 15, [91 
S.Ct. at 1276], 28 L.Ed.2d at 567. Title IV clearly 
does not restrict state school authorities in the exercise 
of their discretionary powers to assign students with­
in their school systems.”

Finally, the contention that the use of public funds for 
student transportation is contrary to “ sanity, reason, and 
health and well being of the children” is directly contrary 
to the decision of the United States Supreme Court in the 
case of Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra, wherein the Court stated:

“Bus transportation has been an integral part of the 
public education system for years, and was perhaps the 
single most important factor in the transition from the 
one-room schoolhouse to the consolidated school. 
Eighteen million of the nation’s public school children, 
approximately 39%, were transported to their schools 
by bus in 1969-1970 in all parts of the country.”

The City of Chattanooga has for years financed transporta­
tion of students, long prior to this desegregation lawsuit. 
Likewise, Hamilton County, Tennessee, schools have fur­
nished transportation for children and is now doing so. It 
is obvious that the only transportation of students objected



61

to in the state court order is that transportation which may 
further the removal of racial discrimination in the schools. 
When dual school systems were being operated, no conten­
tion was then made that transportation used to keep the 
races apart was contrary to “sanity, reason and health and 
well being of children.” Counsel for the defendant Gran- 
nan himself, the only counsel to make any contention in 
support of the state court order, admitted that transporta­
tion of students to further municipal annexation is lawful 
and proper. T o  seek to argue that transportation of stu­
dents in furtherance of a municipal annexation ordinance 
is lawful and valid but transportation of the same students 
in furtherance of the Equal Protection Clause of the United 
States Constitution is unlawful needs only to be stated to 
demonstrate its irrationality.

An order must accordingly enter enjoining all parties 
from either seeking to enforce or in any manner comply­
ing with the judgment entered in the case of John E. 
Grannan, Jr. v. City of Chattanooga, Tennessee, et al., 
#N-15967 in the Circuit Court of Hamilton County, Ten­
nessee, the said judgment being void and unconstitutional 
on its face.

[5] With regard to the injunction to be entered herein, 
there remains only to consider the issue of the taxation of 
costs as to this phase of the lawsuit and whether the legal 
expenses incurred by any party by reason of these proceed­
ings should be taxed as a part of the costs and, if so, to 
whom. T o  advance contentions and to undertake proceed­
ings which parties or their legal counsel know to be di­
rectly contrary to specific, clear, and controlling decisions 
of the United States Supreme Court and which are de­
signed to delay or impede the proceedings or orders of this 
Court is an act of bad faith upon the part of those parties 
or their counsel who may so act, and, when established in 
the record, will be grounds for awarding all costs in such



6 2

proceedings against parties or their attorneys so found 
to have acted in bad faith, such costs to include the legal 
expenses incurred on behalf of all parties not found to 
have acted in bad faith. The case will remain before this 
Court only for resolution of any issues regarding costs. 
All other matters in regard to this phase of the lawsuit, if 
any, must be taken up in the United States Court of Ap­
peals where the case is now pending on appeal.

Turning to the matters heretofore reserved following en­
try of the Court’s opinion upon July 26, 1971, and as 
summarized at the beginning of this memorandum, it ap­
pears that full implementation of the student assignment 
plans heretofore approved has not been accomplished as 
yet in certain elementary and junior high schools. It fur­
ther appears that the delay in this regard has been oc­
casioned by the unavailability of funds “ in the prompt 
and orderly process of local governmental affairs,” as di­
rected by the Court, the delay in this regard having been 
occasioned in very substantial part by the uncertainties re­
garding various programs of federal aid to education. Ac­
cordingly, the provisions for full implementation of the 
plan for student desegregation as contained in paragraph 
4 of the order entered upon August 5, 1971, will continue 
in effect with the further provision that full implementa­
tion will be accomplished not later than the fall term of 
school in 1972, subject, of course, to the rights of the parties 
to present in the appeal now pending any matters in re­
gard thereto.

Tentative approval only having heretofore been given to 
the School Board plan for desegregation of the Chattanooga 
high schools other than Kirkman Technical High School (to 
which final approval has been given) . Further consideration 
must be given to this phase of the plan. At the time that 
the Court gave its tentative approval to the high school 
desegregation plan, the Court desired additional informa­



63

tion from the Board of Education as to whether three, 
rather than four, general purpose high schools would be 
feasible or desirable in Chattanooga. It now appears, and 
in this both parties are in agreement, that three general 
purpose high schools rather than four is not feasible or 
desirable, at least for the present school year. Having re­
solved this matter to the satisfaction of the Court, the de­
fendant Board of Education will accordingly submit a fur­
ther report on or before June 15, 1972, in which they either 
demonstrate that any racial imbalance remaining in the 
four general purpose high schools is not the result of 
“present or past discriminatory action on their part” Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 
26, 91 S.Ct. at 1281, 28 L.Ed.2d 554 at 572, or otherwise, 
and to the extent that the Board is unable to demonstrate 
that such racial imbalance which remains is not the result 
of past or present discriminatory action, they should sub­
mit a further plan for removal of all such remaining racial 
discrimination, the further plan likewise to be submitted 
on or before June 15, 1972.

[8] Turning finally to the motion for the allowance of 
attorney fees for all legal services performed on behalf of 
the plaintiffs since the filing of this lawsuit, the Court is of 
the opinion that the motion should be denied. In the 
absence of a showing of bad faith on the part of the de­
fendants, the Court is of the opinion that the allowance of 
attorney fees would not be proper. This lawsuit has been 
in an area where the law has been evolving, and the Court 
cannot say that the defendants have acted in bad faith 
in failing always to perceive or anticipate that development 
of the law. For example, in all of its orders entered prior 
to the decision of the United States Supreme Court in the 
case of Green v. School Board of New Kent County, 391 
U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), this Court 
was itself of the opinion that genuine freedom of choice



6 4

on the part of students in school attendance was compli­
ance with the Equal Protection Clause of the Constitution. 
While the Board has vigorously contested the plaintiff’s 
contentions at every stage of this lawsuit, it further ap­
pears to the Court that when factual and legal issues have 
been resolved, the Board has at all times complied or at­
tempted to comply in good faith with the orders and di­
rections of the Court. Accordingly, it has never been 
necessary for this Court to direct that outside persons or 
agencies, such as the United States Department of Justice 
or the United States Department of Health, Education, and 
Welfare, enter into the lawsuit in aid of the development 
of a lawful plan of desegregation or in aid of enforcement. 
As recently as in its opinion entered upon July 26, 1971, 
the Court had this to say:

“The wisdom and appropriateness of this procedure 
(i.e., looking to the School Board for the development 

of a desegregation plan) is further enhanced in this 
case by the apparent good faith efforts of the Chatta­
nooga school authorities and the School Board to come 
forward with a plan that accords with the instructions 
of the Court and its order of May 19, 1971, and with 
the appellate guidelines therein cited.”

Under these circumstances the Court is of the opinion that 
an award should not be made taxing the defendant Board 
of Education with the plaintiff’s attorney fees.

In conclusion, it appears appropriate for the Court to 
once again state in simple and basic terms the things it 
has and has not done in this case.

Acting pursuant to the Equal Protection Clause of the 
United States Constitution and the unanimous decision of 
the United States Supreme Court in the case of Swann v. 
Charlotte-Mecklenburg Board of Education, this Court 
has ordered the removal of all vestiges of racial discrimina­



65

tion in the Chattanooga City Schools where such discrimina­
tion was shown to have been created by past or present ac­
tions of the state or local government. Nothing more nor 
nothing less than this has been ordered. Where school 
zone lines were shown to have been deliberately drawn 
upon racial lines, either as a carryover from the days when 
a dual system of schools was operated for white and black 
children, or otherwise, the redrawing of school zone lines 
was ordered. In some instances this was done on the basis 
of pairing or grouping schools. Where transportation of 
students was shown to be necessary in getting children to 
the school to which they were zoned, such transportation 
was approved. No child has ever been ordered by this 
Court to use school provided transportation. Each child 
has been ordered to attend the school to which he or she 
is zoned, a requirement that has been followed since the 
beginning of public education in this City and in this 
Nation. When persons attempted to interfere with or 
prevent the removal of racial discrimination in the Chatta­
nooga Public Schools by means of an illegal and unconstitu­
tional state court order, enforcement of that order was 
enjoined.

An order will enter in accordance with this opinion.



66

Nos. 71-2006, 71-2007, 72-1443 & 72-1444

U N ITED  STA TES CO U RT OF APPEALS 
FOR T H E  SIX T H  C IR C U IT

Ja m e s  J o n a th a n  M a p p , e t  a l ..
Plaintiff s-Appellants 
and Cross-Appellees,

v.

T h e  B oard o f  E ducatio n  o f  T h e  
C it y  o f  C h a tta n o o g a , e t c ., e t  
a l .,

Defendant-Appellee 
and Cross-Appellant.

A p p e a l  from the 
United States Dis­
trict Court for the 
Eastern District of 
Tennessee, South­
ern Division.

Decided and Filed April 30, 1973.

Before: P h il l ip s , Chief Judge, W e ic k , E dwards, C e l e -
brezze , P e c k , M c C r e e , M il l e r , K e n t  and L iv e l y , Circuit 
Judges, and O ’Su l l iv a n , Senior Circuit Judge, in banc.

P e r  C u r ia m . This is a school desegregation case in­
volving the school system of Chattanooga, Tennessee.

The present appeals are from the decisions of District 
Judge Frank W. Wilson reported in 329 F. Supp. 1374 
(E.D. Tenn. 1971) and 341 F. Supp. 193 (E.D. Tenn. 
1972) • Appeals have been perfected by the City Board 
of Education and by the City of Chattanooga and its Mayor. 
An appeal also has been perfected by the plaintiffs from



6?

the decision reported at 329 F. Supp. 1374 (E.D. Tenn. 
1971).

The appeals originally were heard by a panel of three 
judges of this court, whose decision was announced on 
October 11, 1972. The majority opinion of the panel re­
manded the case to the District Court for further consider­
ation. The dissenting opinion favored affirmance of the 
judgments of the District Court. Thereafter, a majority 
of the judges of this court who are in regular active service 
ordered that the appeals be reheard by the court in banc. 
F e d . R. A p p . P. 35, Local Rule 3 (b) of this court provides 
that: “The effect of the granting of a rehearing in banc 
shall be to vacate the previous opinion and judgment of this 
court, to stay the mandate and to restore the case on the 
docket as a pending appeal.”

The comprehensive reported opinions of District judge 
Wilson contain a full statement of the issues and pertinent 
facts, and repetition in this opinion is not required.

Upon consideration of the briefs of the parties, the oral 
arguments before the court sitting in banc, and the entire 
record, we affirm the judgments of the District Court for 
the reasons stated in the opinions of Judge Wilson. Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1 (1971) ; Davis v. Board of Commissioners, 402 U.S. 33 
(1971) ; North Carolina State Board of Education v. Swann, 

402 U.S. 43 (1971) ; Brown v. Board of Education [II], 
349 U.S. 294 (1955) , Broiun v. Board of Education [I], 
347 U.S. 483 (1954) ; Northcross v. Board of Education of 
Memphis City Schools, 466 F.2d 890 (6th Cir. 1972) ; 
Kelley v. Metropolitan Board of Education of Nashville & 
Davidson County, Tennessee, 463 F.2d 732 (6th Cir.), 
cert, denied 409 U.S. 1001 (1972) ; Davis v. School District 
of City of Pontiac, 443 F.2d 573 (6th C ir.), cert, denied, 
404 U.S. 913 (1971).



68

The Board of Education has filed a supplemental record 
in this court containing statistics said to reflect changes 
which have occurred after the decisions of the District 
Court. We decline to consider these statistics in the present 
appeal. Appropriate relief required by changed condi­
tions is a matter for presentation to and consideration by 
the District Court. We reemphasize the holding of this 
court in Kelley v. Metropolitan Board of Education of 
Nashville and Davidson County;, supra: “ Like most decrees 
in equity, an injunctive decree in a school desegregation 
case is always subject to modification on the basis of 
changed circumstances.” 463 F.2d at 745-46.

Affirmed. Since both parties appealed, no costs are taxed.

M il l e r , Circuit Judge, concurring in the result.

I concur in the result reached by the Court in these ap­
peals.

As I read the opinion of the Supreme Court in Swarm v. 
Charlotte-Meckienburg Board of Education, 402 U.S. 1 
(1971), where vestiges of state-imposed segregation still 
exist, the district courts have broad powers to fashion reme­
dies that will assure a unitary school system.

A careful review of the record in this case indicates to 
me that the district judge was not only clearly justified 
in holding that vestiges of state-imposed segregation still 
existed in the Chattanooga system, but that he did not 
abuse his discretion in fashioning remedies within the pre­
cepts of the Swarm decision. Since for these reasons I con­
cur in the result, I do not feel committed to all of the 
language, reasons and conclusions set forth in the per 
curiam opinion of this Court or in the two opinions of 
Judge Wilson under review reported at 329 F.Supp. 1374 
(E.D. Tenn., 1971) and 341 F.Supp. 193 (E.D. Tenn„ 
1972).



69

W e ic k , Circuit Judge, and O ’S u l l iv a n , Senior Circuit 
Judge, dissenting.

As members of the original panel who wrote the majority 
opinion from which the en banc hearing was ordered, we 
respectfully dissent.

Following the en banc hearing, the District Court’s opin­
ion was affirmed, per curiam, without, in our opinion, 
adequate discussion of the assignment of errors or the merits 
of substantial and important issues raised on appeal by 
the School Board and the Board of Commissioners of the 
City of Chattanooga. The Commissioners were the taxing 
authority; however, the Board of Commissioners was not 
made a party initially, but has since been made a party 
to the judgment without affording it an opportunity to 
question the merits of the case.

No consideration was given to the supplemental record 
certified to this Court by the District Court indicating 
substantial changes in conditions affecting the school sys­
tem, brought about by mobility of both white and black 
families, which changes in our judgment impel a remand for 
consideration before we place our stamp of approval on the 
District Court’s opinions.

We consider it right to say preliminarily that, in our 
view, no decision of the United States Supreme Court has 
held that in ail events and without reference to the good 
faith and good conduct of the involved school or other state 
or municipal authorities, there must always be bussing to 
bring about a mix of the races. Goss v. The Bel. of Educ. of
the City of Knoxville, T en n .,--- F .2 d -----(6th Cir., No.
72-1766-1767, decided Mar. 29 1973).

In the case before us, the District Judge found that the 
Chattanooga School Board was guilty of no bad faith and 
that up to February 4, 1972, the Board had, in fact, estab­
lished a unitary school system “within which no person is



70

to be effectively excluded from any school because of race or 
color.” This was the command of Alexander• v. Holmes 
County Board of Educ., 396 IJ.S. 19, 20 (1969).

The District judge ’s opinion dealing with the Chatta­
nooga Board’s good faith (not reported) had this to say:

“This lawsuit has been in an area where the law 
has been evolving, and the Court cannot say that the 
defendants have acted in had faith in failing always to 
perceive or anticipate that development of the lav/. For 
example, in all of its orders entered prior to the de­
cision of the United States Supreme Court in the case 
of Green v. School Bd. of New Kent County, 391 
U.S. 430 . . . (1968), this Court was itself of the opin­
ion that genuine freedom of choice on the part of 
students in school attendance was compliance with the 
Equal Protection Clause of the Constitution. While 
the Board has vigorously contested the plaintiff’s con­
tentions at every stage of this lawsuit, it further ap­
pears to the Court that when factual and legal issues 
have been resolved, the Board has at all times com­
plied or attempted to comply in good faith with the 
orders and directions of the Court.” (Emphasis added) .

There seems now to have developed a view that since 
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1 (1971), nothing other than bussing will satisfy the
original command of Brown I  and Brown II. This is not 
so. In the Swann decision the District Court found that 
the school authorities there involved had flouted the Brown 
commands. His opinion cannot be read as other than a 
finding that the school authorities were deliberately main­
taining de jure segregation. The opposite is true in Chatta­
nooga. Swann did no more than affirm the District Judge’s 
finding of deliberate creation or perpetuation of de jure 
segregation.

We do not read Swann as holding that the Constitution 
requires that, black or white, a school child must now be



71

denied the right to attend the school of his choice — de­
sirable because of its nearness to his place of residence, or 
for any other circumstance prompting such choice — solely 
because of the color of his skin. In our view such a holding 
would collide with the commands of Brown I  and Brown II, 
347 U.S. 483 (1954) and 349 U.S. 294 (1955).

Can obedience to Brown I  and Brown II be accomplished 
only by imposition of an Attainder upon so many whose 
only contribution to the wrongs sought to be alleviated 
by Brown derives from the circumstance of their birth? 
What will be the dimensions of such selective attainting 
of some, but not others, among the groups that make up 
our total society?

We have set out above that the District Judge believed 
that in Chattanooga the schools had been desegregated 
and that a unitary system had been established. We have 
affirmed such holding. Mapp v. Board of Educ. of City of 
Chattanooga, 373 F.2d 75 (1967) .

The District Judge then went on to say:

“This lawsuit has been in an area where the law 
has been evolving and the Court cannot say that the 
defendants have acted in bad faith in failing always to 
perceive or anticipate that development of the law.”

Must every School Board now be expected, clairvoyantly, 
to guess what new judicial device may be considered by 
a District Judge to be a better way of serving desegrega­
tion, and make fresh adjustments if such device is found 
permissible by some appellate court? Across the nation, 
especially in the cities, rapid population shifts have brought 
about new concentrations of racial groups. Must the courts 
be ready to move in with fresh commands and new rerout­
ing of buses? The chaos that can be the result is forecast by 
Chief Justice Burger’s language in Swann.



72

“ It does not follow that the communities served by 
such systems will remain demographically stable, for 
in a growing, mobile society, few will do so. Neither 
school authorities nor district courts are constitutional­
ly required to make year-by-year adjustments of the 
racial composition of student bodies once the affirma­
tive duty to desegregate has been accomplished and 
racial discrimination through official action is elimi­
nated from the system. This does not mean that 
federal courts are without power to deal with future 
problems; but in the absence of a showing that either 
the school authorities or some other agency of the 
State has deliberately attempted to fix or alter demo­
graphic patterns to affect the racial composition of the 
schools, further intervention by a district court should 
not be necessary.” (Emphasis added.) (402 U.S. at 31, 
32.)

We must therefore consider the issues raised on appeal.

I

T H E QUOTA SYSTEM

The District Court misconstrued recent decisions of the 
Supreme Court as requiring racial quotas in the public 
schools. It ordered “a racial ratio of not less than 30% 
nor more than 70% of any race in each elementary school 
within the system with but five exceptions . . . .” 329 F. 
Supp. 1374, 1382. The five schools excepted therefrom 
were found not to be imbalanced on account of past or 
present discrimination. Similar quotas were ordered for 
Junior High Schools. Senior High Schools are still under 
consideration.

In our opinion, the decision in Swann v. Charlotte-Meck- 
lenburg Board of Educ., 402 U.S. 1 (1971) , on which the 
District Court relied, does not mandate the adoption of



73

quotas in each and every school in the system regardless of 
where the children reside.

Mr. Chief Justice Burger, who wrote the opinion for 
the Court said:

“ If we were to read the holding of the District Court 
to require, as a matter of substantive constitutional 
right, any particular degree of racial balance or mix­
ing, that approach would be disapproved and we would 
be obliged to reverse. The constitutional command 
to desegregate schools does not mean that every school 
in every community must always reflect the racial com­
position of the school system as a whole.” (409 s 
at 24).

In Winston-Salem,/Forsyth Bd. of Educ. v. Scott, 404 
U S. 1221 (1971) , in an Opinion in Chambers, Chief Ju s­
tice Burger, after quoting the above language from Swann, 
stated:

“Nothing could be plainer, or so I had thought, 
then Swann's disapproval of the 71%-29% racial com­
position found in the Swann case as the controlling 
factor in the assignment of pupils, simply because that 
was the racial composition of the whole school system ” 
(404 U.S. at 1228) .

Chief Justice Burger further said:

“The present status of the findings is not clear to 
me, but the District Court on reconsideration follow­
ing the remand seems to have thought that it was com­
pelled to achieve a fixed racial balance reflecting the 
composition of the total county system. The explicit 
language of the Court’s opinion in Swann suggests 
a possible confusion on this point. I do not attempt 
to construe that language, but simply to recite it ver­
batim: ‘The constitutional command to desegregate 
schools does not mean that every school in every com­
munity must always reflect the racial composition of



74

the school system as a whole.’ 402 U.S. at 24. (404
U.S. at 1230-1231) .

In Deal v. Cincinnati Bd. of Educ., 369 F,2d 55 (6th 
Cir. 1966) , affirming 244 F.Supp. 572 (S.D. Ohio, 1965), 
cert, denied, 389 U.S. 847, we stated:

“ Moreover, our refusal to restrict the school board 
with a mathematically certain formula for the vin­
dication of individual constitutional rights iŝ  not an 
innovation. The right to a trial by an impartial, fa il­
ly selected jury, is well established in our law and it 
has been protected against the same sort of disguised 
racial discrimination that has been attempted in the 
school desegregation cases. Eubanks v. State of Louisi­
ana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) ; 
Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 
85 L Ed 84 (1940) ; Norris v. State of Alabama, 294 
U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) ; Ex parte 
State of Virginia, 100 U.S. 339, 25 L.Ed. 6/6 (1879) , 
Strauder v. State of West Virginia, 100 U.S. 303, 25 
L.Ed. 664 (1879).

However, it is equally clear that a defendant in a 
criminal case is not constitutionally entitled to de­
mand a proportionate number of his race on the jury 
which is to try him nor on the venire or jury roll 
from which petit jurors are to be chosen. Swain v. 
State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 
13 L Ed 2d 759 (1965) ; Akins v. State of Texas, 32d 
U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). 
While the two situations may not be completely an­
alogous, the potential dangers to a criminal defendant, 
forced to face a racially imbalanced jury, are at least 
as great as the intangible, often speculative injuries 
threatening a student in a racially imbalanced school.
(369 F.2d at 61-62).

The trouble is that the quota system, which in our



75

judgment is alien to a free country, has been extended to 
other fields and with discriminatory and disastrous results.1

We see no occasion for the District judge to rely on the 
drastic order of Judge McMillan considered in Swann, 
supra, or that of judge Merhige, reversed in Bradley.2

The District Court was obviously influenced by the fact 
that the Supreme Court in Swann affirmed a very broad 
order of District Judge McMillan. This appears from a 
colloquy between the Court and counsel for the Board, 
at the evidentiary hearing, as follows:3

“T H E CO U RT: Well, what is your question
about what they did? Did they or did they not ap­
prove all of the procedures that had been followed in 
the Mecklenburg case?

MR. W IT T : They placed great —
T H E  CO U RT: Well, just answer my question,

did they or did they not approve every single pro­
cedure followed in the Mecklenburg case.

MR. W ITT : Yes.
T H E  CO U RT: So is there any question about

what they did?
MR. W ITT : Yes.” (Tr. 1693-19-20)

But the Supreme Court in Swann pointed out the back­
ground of defiance by that Board which occasioned the 
broad order:

“As the voluminous record in this case shows, the 
predicate for the District Court’s use of the 71% —

1 Ross, “Why Quotas Won’t Work,” Reader’s Digest, Feb. 1973, page 
51: “Current effort to atone for past discrimination against minori­
ties is creating new victims by reverse discrimination. Can two 
wrongs make a right?”

2 Bradley v. School Board of Richmond, 462 F. 2d 1058 (4th Cir. 
1972), cert, granted, Jan. 15, 1973, 41 U.S.L. Week 3391.

3  See 83 Harvard Law Review 81, 82.



76

29% ratio was twofold: first, its express finding, ap­
proved by the Court of Appeals and not challenged 
here, that a dual school system had been maintained 
by the school authorities at least until 1969: second, 
its finding, also approved by the Court of Appeals, that 
the school board had totally defaulted in its acknowl­
edged duty to come forward with an acceptable plan 
of its own, notwithstanding the patient efforts of the 
District Judge, who, on at least three occasions, urged 
the board to submit plans," (Emphasis added.) (Foot­
notes omitted) (402 U.S. at 24) .

In our case, prior to the entry of the orders from which 
these appeals had been taken, no child was excluded from 
any school on account of color or race. I he District Court 
found that the Board has acted in good faith and has at 
all times “complied or attempted to comply with the or­
ders and directions of the Court.” 1 he Board was not 
in default. This distinguishes Swann.

The quota system results in the violation of the constitu­
tional rights of innocent black children and white chil­
dren in order to redress past violations of the constitu­
tional rights of the plaintiffs. Both black and white chil­
dren, without their consent or that of their parents, are 
forced by judicial fiat to be transported away from their 
homes and neighborhood schools to other strange places 
and schools, solely because of the color of their skin. 1 hese 
innocent children have committed no offense to justify such 
treatment.4 Plaintiffs seem to recognize this fact because 
one of the assignments of error in their appeal was their 
claim that the District Court erred in ordering the closing 
of black schools without ordering a sufficient number of 
white schools closed. Plaintiffs’ brief states:

4 Many black people oppose forced bussing of their children. At 
the National Black Political Convention, held in Gary, Indiana (March, 
1972) mandatory bussing and school integration were condemned 
as racist and as preserving a black minority structure.



77

“Thus, black youngsters will be required to leave 
their neighborhoods to go to other schools for all 
grades or for grades 1-3 in numbers disproportionate 
to the numbers of blacks.” (Plaintiff-Appellants’ brief, 
P- 30) .

There is no provision in the Constitution which can be 
read as saying that the races must be mixed in each and 
every school in the system, and no provision requiring that 
white children be bussed away from their neighborhood 
schools in the suburbs, to schools in the inner city, or 
that black children must be bussed away from their neigh­
borhood schools to schools in the suburbs, in order to 
achieve a racial mixture or quota.

The Board can hardly be faulted for housing patterns 
of a community or for the concentration of blacks in the 
inner city, as these conditions exist in other cities through­
out the country, regardless of the type of school system in 
operation, i.e., whether de jure or de facto.

In his book, “Negroes In Cities,” Dr. Karl Taeuber states 
that residential segregation exists “ regardless of the char­
acter of local laws and policies and regardless of other forms 
of discrimination.” He said substantially the same thing 
in his article, “ Residential Segregation,” in the August, 
1965 issue of Scientific American.

In Bradley v. School Board of City of Richmond, 462
F.2d 1058 at 1066, (4th Cir. 1972) , cert, granted, Jan. 
15, 1973, 41 U.S.L.Week 3391, the Court said:

“ [T]he root causes of the concentration of blacks in 
the inner city are simply not known . . . .”

And

“Whatever the basic causes, it has not been school 
assignments and school assignments cannot reverse that 
trend.”



78

It is, of course, popular to blame the Boards of Edu­
cation for everything, but it is unfair to require the edu­
cational system to dismantle this condition for which it 
was in no wise responsible.

II

U N ITA RY SCHOOL SYSTEM

Unlike the District Court, we have experienced difficul­
ty in understanding not only what constitutes a unitary 
school system, but also what steps the Constitution requires 
must now be taken to eliminate a de jure system and to 
bring about a unitary system. Other Judges, legal scholars 
and writers have had similar difficulty.5 We suggested in 
Northcross that the Supreme Court had not defined a uni­
tary school system. North-cross v. Board of Educ. of Mem­
phis, Term. City Schools, 420 F.2d 546 (6th Cir. 1969) . 
We were corrected in a concurring opinion written by Chief 
Justice Burger, wherein he said:

“The suggestion that the Court has not defined a 
unitary school system is not supportable. In Alexan­
der v. Holmes County Bd. of Educ., 396 U.S. 19 (1969), 
we stated, albeit perhaps too cryptically, that a uni­
tary system was one ‘within which no person is to be 
effectively excluded from any school because of race 
or color.’ ” Northcross v. Bel. of Educ. of Memphis, 
Tenn., 397 U.S. 232 at 236-7 (1970) . (Emphasis add­
ed) .

Under this definition the School Board already had 
achieved a unitary system long before the entry of the 
orders from which the appeals were taken. While this did 
not establish racial quotas, or a mixture in all of the

5 85 Harvard Law Review 3, 74, 76, 81, 83.



79

schools as desired by plaintiffs, no pupil was excluded from 
any school on account of his color or race. This is all that 
Brown I  and Brown II  ever contemplated,6 7 These de­
cisions, in our judgment, did not envision the use of school 
children to bring about an integration of the races.

TII

MAXIMIZING IN TEG R A TIO N

The District Court required the Board to establish that 
it had taken affirmative action to “maximize integration” 
in all feasible ways as required by Kelley7 and Robinson,8 
The Supreme Court in Davis v. Board of School Comm’rs 
of Mobile County, 402 U.S. 33 (1971) , held that “school 
authorities should make every effort to achieve the great­
est possible degree of actual desegregation, taking into ac­
count the practicalities of the situation.” (402 U.S. at 37) . 
We have not found where the Supreme Court has ever 
required School Boards to “maximize integration” . The 
difficulty is that the District Court may well have understood 
the words to require integration of the races by fixed num­
bers or quotas in each public school in the system, re­
gardless of where the pupils live, and regardless of their 
economic circumstances. This can be accomplished only by 
extensive and expensive bussing and by violation of the 
constitutional rights of both races.

If it is desirable to integrate the races, why not start 
with adults, rather than to pick on defenseless school 
children? Of course, it would take an Act of Congress to

6 Brown I, 347 U.S. 483 (1954); Brown II, 349 U.S. 294 (1955).
7 Kelley v. Metropolitan County Bd. of Educ. of Nashville & David­

son County, 436 F.2d 856 (6th Cir. 1970).
8 Robinson v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 

1971).



80

compel adults to integrate. We doubt that Congress could 
ever be persuaded to pass such legislation, and if it were 
so persuaded, such law would clearly be unconstitutional, in 
violation of the First Amendment which guarantees free­
dom of association. N.A.A.C.P. v. Alabama, 357 U.S. 449 
(1958).

In that case the Court denied enforcement of a state 
contempt citation against the petitioner, which citation 
was issued when petitioner refused to disclose its Alabama 
membership list. The adverse effect on the membership 
of disclosure of the roster of N.A.A.C.P. was, of course, some­
what speculative. Yet the Court held that the importance 
of the right of association was so great as to require pro­
tection, stating:

“ . . . [S]tate action which may have the effect of 
curtailing the freedom to associate is subject to the 
closest scrutiny.” (357 U.S., at 460-461).

This principle was reaffirmed in Bates v. City of Little 
Rock, 361 U.S. 516 (1960) . The language in the concur­
rence of Mr. Justice Black and Mr. Justice Douglas, is 
instructive.

“ . . . [W]e believe, as we indicated in United States 
v. Rumely, 345 U.S. 41, 48, at 56 (concurring opin­
ion) , that First Amendment rights are beyond abridg­
ment either by legislation that directly restrains their 
exercise or by suppression or impairment through ha­
rassment, humiliation, or exposure by government. 
One of those rights, freedom of assembly, includes of 
course freedom of association; and it is entitled to no 
less protection than any other First Amendment right 
as N. A. A. C. P. v. Alabama, 357 U.S. 449, at 460, 
and De Jonge v. Oregon, 299 U.S. 353, at 363, hold. 
These are principles applicable to all people under our 
Constitution irrespective of their race, color, politics, 
or religion.” (Emphasis added) 361 U.S. at 528.



81

“All people” includes children.

It. should be pointed out that there is a marked differ­
ence between voluntary bussing and induced or forced 
bussing in the effect on the children involved and their 
parents. No one can have any objection to the school 
system’s furnishing voluntary transportation from the child’s 
residence to the school nearest thereto. It is something 
entirely different when the child, solely because of the 
color of his skin, is assigned away from his neighborhood 
school, by a court order, and is required to be transported 
to another school (whether by his parents’ car or by in­
duced bussing) some distance away from his home.

Brown I  speaks of the feeling-of-inferiority effect on chil­
dren as the result of discriminatory state action where the 
children are not permitted to attend certain public schools 
because of the color of their skin. This condition would 
seem to persist still if children of both races are prohibited 
by court order from attending schools nearest to their 
residences, merely because of the color of their skin, and 
are required to be taken elsewhere to school.

IV

BURDEN OF PROOF

Where a dual system has been maintained, the courts 
have placed the burden of proof upon the School Board 
to establish that present racial imbalances in a particular 
school are not the result of past discriminatory actions, al­
though the cases are not very clear as to just how or in 
what manner the Board can ever meet such a heavy burden. 
But in a case like ours, where the Board has always com­
plied with the desegregation orders of the Court, and the 
plaintiffs have filed motions for further relief whenever 
new decisions have been announced expanding the rights



82

of plaintiffs in school desegregation cases, it would seem 
to us to be only fair that plaintiffs should have the burden 
to prove that they are entitled to such further relief. The 
Board ought not to have the burden of disproving every 
contention -which the plaintiffs may see fit to make in this 
case. In our judgment the Court erred in placing on the 
defendants the burden of proof in resisting plaintiffs’ mo­
tion for further relief.

V

PRA C TIC A LITIES

In considering desegregation plans the District Court 
must take into account the practicalities of the proposals. 
These include the cost thereof, how such proposals may 
affect the rights of the children involved in the assignments, 
induced bussing, and the educational achievement of such 
proposals.

Boards of Education do not have unlimited funds to 
adopt any program which they please. Funds can be raised 
by taxation and appropriation. In the present case the 
Board of Education does not have the power to levy taxes 
or to appropriate funds to carry out its programs. Only 
the Board of Commissioners of the City has such power and 
authority. That Board was not made a party to the case 
in the District Court until after the desegregation orders 
had been entered by the Court. We would assume that 
the Board of Commissioners has already appropriated the 
funds for the 1972-73 school year. If so, we do not know 
how an expenditure of $500,000 for buses would affect 
operation of the schools. The District Court has not or­
dered the Board of Commissioners to appropriate funds to 
provide for transportation of pupils, and we do not con­
sider in this appeal the question whether it has the power



83

to enter any such order. The Board of Commissioners is 
entitled, on remand, to a hearing on all issues of the case 
before any order is entered against it.

We would not affirm the District Court’s opinions, but 
would remand for an evidentiary hearing to consider the 
changed circumstances and to proceed not inconsistent with 
this opinion.

The District Court also should consider Title VIII of 
the Education Amendments of 1972, and its prohibition 
against the use of funds appropriated by Congress for 
bussing.

In our judgment a quota system can discriminate invidi­
ously in favor of one race against other races. Such a 
system can lower the quality of education and educational 
achievement, and instead of bringing harmony and good will 
between the races can polarize them.