Mapp Et Al v Board of Education of the City of Chattanooga TN Opening Brief for Plaintiffs-Appellants

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

NOS. 74-2100, 2101

JAMES JONATHAN MAPP, et al.,

Plaintiffs-Appellants-Cross Appellees,

vs.

THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, TENNESSEE, et al.,

Defendants-Appellees-Cross Appellants.

Cross Appeals From The United States District Court 
For The Eastern District Of Tennessee, Southern Division

OPENING BRIEF FOR PLAINTIFFS-APPELLANTS

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants-Cross Appellees



INDEX

Table of Authorities .......................................  n

Issues Presented for Review ...............................  1

Statement of the Case ...................................... 4

Statement of Facts .........................................  5

ARGUMENT:

I. Areas Added To The City Of Chattanooga 
By Annexation Must Be Included In The 
System's Plan Of Desegregation ..............  10

II. The District Court Should Have 
Required A Completely New And 
System-Wide Desegregation Plan
For Chattanooga In 1973 .....................  30

III. The District Court Should Have
Amended Its Decree So As To Include 
Therein A Comprehensive Reporting
Provision .................................... 34

Conclusion .................................................. 35

Appendix A - schematic representation of Chattanooga
Schools .......................................  la

1



TABLE OF AUTHORITIES

Cases
Page

Berry v. School Dist. of Benton Harbor, No. 71-1957
(6th Cir., Nov. 1, 1974) ................................  20,25,28

Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973),
rev'd on other grounds,   U.S.   (1974) ....... ......  23,24

Bradley v. School Bd. of Richmond, 317 F. Supp. 555
(E.D. Va. 1970) .........................................  15

Bowman v. County School Bd. of Charles City County,
382 F.2d 326 (4th Cir. 1967), companion case reversed 
sub nom. Green v. County School Bd. of New Kent
County, 391 U.S. 430 (1968) .............................  13

Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091
(5th Cir. 1972) .........................................  13,31,32

Brewer v. School Bd. of Norfolk, 397 F.2d 37
(4th Cir. 1968) .........................................  31

Cisneros v. Corpus Christi Independent School Dist.,
467 F.2d 142 (5th Cir. 1972), cert. denied, 413 U.S.
920 (1973) ................................................ 18

Davis v. Board of School Comm'rs of Mobile, 402
U.S. 33 (1971) ...........................................  20

Dowell v. Board of Educ. of Oklahoma City, 465 F.2d 
1012 (10th Cir.), cert, denied, 409 U.S. 1041
(1972) ....................................................  13

Drummond v. Acree, 409 U.S. 1228 (1972) ..................  4

Ellis v. Board of Public Instruction of Orange County,
465 F . 2d 878 (5th Cir. 1972) ............................ 13

Goss v. Board of Educ. of Knoxville, 444 F.2d 632
(6th Cir. 1971) ..........................................  17

Green v. County School Board of New Kent County, 391
U.S. 430 (1968) ..........................................  12,19,31

Hall v. St. Helena Parish School Bd. 443 F.2d 1181
(5th Cir. 1971) ..........................................  27,35

11



Table of Authorities (Continued)

Cases Page

Hereford v. Huntsville Bd. of Educ., No. 74-3363
(5th Cir., Nov. 20, 1974) ............................  13,31

Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 
732 (6th Cir.), cert, denied, 409 U.S. 1001
(1972) ................................................. 15,16,31

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) ..........................  20

Keyes v. School Dist. No. 1, Denver, 413 U.S. 189
(1973) .........................................  17,19,21,28,32

Lemon v. Bossier Parish School Bd., 444 F.2d 1400
(5th Cir. 1971) .......................................  27

Louisiana v. United States, 380 U.S. 145 (1965) ......  20

Mapp v. Board of Educ., 477 F.2d 851 (6th Cir.), cert.
denied, 414 U.S. 1022 (1973) .........................  1

Medley v. School Bd. of Danville, 482 F.2d 1061
(4th Cir. 1973), cert. denied, 414 U.S. 1172 (1974).. 24

Monroe v. Board of Comm'rs of Jackson, 391 U.S.
450 (1968) ............................................. 12,30

Monroe v. Board of Comm'rs of Jackson, 427 F.2d 1005
(6th Cir. 1970) .......................................  13

Newburg Area Council v. Board of Educ. of Jefferson 
County, 489 F.2d 925 (6th Cir. 1973), vacated and 
remanded on other grounds, __ U.S. __ (1974) .......  16,31

Northcross v. Board of Educ. of Memphis, 466 F.2d 
890 (6th Cir. 1972), cert, denied, 410 U.S. 926 
(1973), vacated and remanded on other grounds,
412 U.S. 427 (1973) .................................  13,15,31

Raney v. Board of Educ. of Gould, 391 U.S. 443
(1968) ................................................ 27

Sloan v. Tenth School Dist. of Wilson County, 433 F.2d
587 (6th Cir. 1970) ................................... 21,25,35

- iii -



Cases Page

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) ...............................  26,27,28,29,36

United States v. Aluminum Co. of America, 91 F. Supp.
333 (S.D.N.Y. 1950) ................................  14

United States v. DuPont deNemours & Co., 366 U.S.
316 (1961) ......................................... 14

United States v. Hinds County School Bd. 433 F.2d
611 (5th Cir. 1970) ................................ 35,36

United States v. Paramount Pictures, Inc., 334 U.S.
131 (1948) ......................................... 20

United States v. Scotland Neck City Bd. of Educ.,
497 U.S. 484 (1972) ...............................  23,24

United States v. Texas Educ. Agency, 467 F.2d 848
(5th Cir. 1972) .................................... 18

United States v. Union P.R. Co., 226 U.S. 470
(1913) .............................................  14

United States v. United Shoe Machinery Corp., 391
U.S. 244 (1968) ...............................   21

Wright v. Board of Public Instruction of Alachua
County, 445 F.2d 1397 (5th Cir. 1971) .............  27

Wright v. Council of the City of Emporia, 407
U.S. 451 (1972)   23,24

Statute

§ 803, Education Amendments of 1972, 20 U.S.C.A.
§ 1653 ........................................  4

Table of Authorities (Continued)

IV -



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

NOS. 74-2100,-2101

JAMES JONATHAN MAPP, et al.,

Plaintiffs-Appellants-Cross Appellees

vs.
THE BOARD OF EDUCATION OF THE CITY OF 
CHATTANOOGA, TENNESSEE, et al..

Defendants-Appellees-Cross Appellants

Cross Appeals From The United States District Court 
For The Eastern District Of Tennessee, Southern Division

OPENING BRIEF FOR PLAINTIFFS-APPELLANTS 

Issues Presented For Review

These cross appeals are taken from Orders entered by the 

District Court in proceedings which followed this Court1s 

affirmance and remand, Mapp v. Board of Educ., 477 F.2d 851 

(6th Cir.), cert, denied, 414 U.S. 1022 (1973), and which were 

occasioned by the filing of a "Motion for Further Relief" by

defendant Chattanooga Board of Education. The trial court



denied both the defendant School Board's motion and also certain 

post-hearing alternative motions of the plaintiffs. The Board 

of Education's appeal, No. 74-2101, seeks review of the District 

Court's refusal to permit it to amend its plan of desegregation 

in the manner set forth in its Motion for Further Relief. The 

issues on the plaintiffs' cross-appeal, briefed herein, are as 
follows:

1. When a school system has never fully implemented a 

system-wide desegregation decree and has not therefore achieved 

unitary status, nor maintained such status for a period of time 

sufficient to indicate that the decree is effective, is it 

proper to exclude from the operation of the desegregation plan, 

areas annexed to the school system (either after the framing of 

the decree but before its full implementation, or during the 

initial stages of compliance therewith) which are overwhelmingly 

white, when schools serving such annexed areas will thereby have 

student populations substantially disproportionate to the system- 

wide racial composition? 2

2. in light of the evidence reflecting the lack of success 

even of those portions of the 1971 desegregation decree which 

were implemented, and the significant change in demography of the 

Chattanooga school system between entry of that decree and the 

1973 hearing, did not the District Court err in refusing to order 

the preparation and implementation of a new, comprehensive, and

2



effective desegregation plan for the entire Chattanooga school 
system?

3. Is not the District Court's decree inadequate because it 

contains only a vague, virtually voluntary, reporting provision?

Statement of the Case

In 1971, the District Court entered a decree approving a 

Chattanooga school board-submitted desegregation plan and 

requiring its implementation as soon as, and to the extent that, 

transportation facilities became available (329 F. Supp. 1374 

[E.D. Tenn. 1971]). Thereafter, the District Court granted a 

stay pending appeal of so much of its Order as might require the 

transportation of pupils, acting pursuant to its interpretation 

of § 803 of the Education Amendments of 1972, 20 U.S.C.A. § 1653 

(341 F. Supp. 193 [E.D. Tenn. 1972]). Compare Drummond v. Acree, 
409 U.S. 1228 (1972).

That stay remained in effect until this Court, en banc, in 

1973 determined cross-appeals which had been taken from the 

1971 decree. (The school board had contended it was under no 

legal obligation to act affirmatively in order to bring about 

any greater desegregation of the Chattanooga public schools than 

had existed prior to the 1971 decree; plaintiffs contended that 

the board's desegregation plan was inadequate and discriminatory.) 

This Court affirmed the judgment of the District Court.

4



At the time that the mandate of this Court issued, the 

Chattanooga School Board had put into effect portions of the 

desegregation plan incorporated into the District Court's 1971 

decree. Rather than proceeding to implement the remainder of the 

plan in September, 1973, however, the Board in August of that 

year filed a "Motion for Further Relief" which indicated that, 

in light of demographic changes in Chattanooga between 1971 and 

1973, that plan was no longer expected to be effective. By its 

motion, the Board sought to implement a new plan, the object of 

which would have been to maintain a limited number of Chattanooga 

schools with a "viable racial mix" (majority white), while
1/assigning other students to virtually all-black schools (A. 8-30).

Plaintiffs filed objections to the Board's proposal, and 

following a hearing the District Court denied the Board's request 

and ordered full implementation of its 1971 decree. The Board 
appeals from this denial.

The Court's Order also granted certain relief which had not 

been sought either by the plaintiffs or by the Board: it directed

that the Board, in its discretion, might make zone changes affecting 

areas annexed to Chattanooga or zones contiguous to such annexed 

areas. Plaintiffs thereupon filed a timely motion to amend the

1/ Citations are to the single-volume Appendix on this appeal.

5



judgment so as to require that areas annexed to the City of 

Chattanooga be included in the desegregation plan through 

modification, for a new trial, or for further relief so as to 

require the development and effectuation of a new plan of 

desegregation for the city's public schools. Plaintiffs cross­

appeal from the denial of their post-judgment motions.

Statement of Facts

The prior history of this case is well known to this Court,
2/

and will not be repeated here. Facts relevant to this appeal 

begin with a description of the posture of this case at the time 

it was last remanded by this Court.

During the 1971-72 and 1972-73 school years, while appeals 

were pending here, the Board of Education "implemented" those 

parts of its 1971 plan which did not require additional pupil
3/

transportation. The term "implemented" is used advisedly, since 

some parts of the “plan" which were "put into effect" called for

2/ See the reported opinions herein: 295 F.2d 617 (6th Cir. 1961);
203 F. Supp. 843 (E.D. Tenn. 1962), aff'd 319 F.2d 571 (6th Cir. 1963) 
373 F .2d 75 (6th Cir. 1967); 274 F. Supp. 455 (E.D. Tenn. 1967); 329 
F. Supp. 1374 (E.D. Tenn. 1971), 341 F. Supp. 193 (E.D. Tenn. 1972), 
aff1d 477 F .2d 851 (6th Cir.), cert, denied, 414 U.S. 1022 (1973).

3/ The city school board was already providing home-to-school busing 
in areas annexed from surrounding Hamilton County, such as RiVermont 
and Amnicola (see schematic representation of school locations in 
Appendix A, infra p. la, which does not, of course, represent 
topographical characteristics except for the river).

6



the unaltered continued operation of racially identifiable schools 

with the same zones they had before (e.£., Elbert Long Elementary 

and Jr. High Schools). The net results during the 1972-73 school 

year were as follows: 63% of all black elementary students, 53%

of all black junior high students, and 59% of Chattanooga's black 

high school pupils, remained in virtually all-black schools 

(A. 147-48). At the same time, 59% of all white elementary and 

66% of white junior high school students were in schools at least 

78% white (A. 148-49). 60% of Chattanooga's schools remained

grossly identifiable by race in this fashion.

Between 1970-71 (the school year whose enrollment data were 

the basis for the projections offered when the 1971 plan was 

developed) and 1972-73, the Chattanooga school system continued 

to lose both white and black student enrollment; due to differential 

losses, the percentage of white pupils declined from 51 to 43 (A.

20; see A. 45). Pupil population declined in areas unaffected 

by the partial implementation of the 1971 plan, as well as in 

those serving schools with altered or paired zones (A. 46, 124, 152) 

and was paralleled by a disparity in the issuance of housing 

permits which heavily favored the county (A. 82-83, 340-41).

Although this demographic change altered the specific racial 

proportions which could have been anticipated to result from 

implementation of the remaining pairings and rezonings of the 1971 

plan, it would not have produced school populations disproportionate

7



to the new system-wide ratio, in most instances (A. 203-05). 

However, heavily white schools called for under the 1971 plan 

were even more glaringly disporportionate than had been anticipated 

when the decree was entered, in light of the changes.

The matter was further complicated by the effect of annexa­

tions to the City of Chattanooga. Between 1971 and 1973, two 

areas were taken into the city from Hamilton County: one which

encompassed an existing county school building (Hillcrest) and 

one which did not ("Area 10D" adjacent to the city's eastern 

boundary, and to the Elbert Long elementary and junior high school 

zones). The Board's Motion for Further Relief, in addition to 

seeking a general modification of its plan in the direction of
5/

greater segregation, proposed the following disposition of 

these heavily white areas, for school assignment purposes:

4/ At the high school level, the 1971 plan had proposed zoning 
the four regular academic schools (Brainerd, Chattanooga, Howard and 
Riverside) so as to assign a 25% white minority at each of the 
formerly black schools. Dr. Stolee had testified in 1971 that such 
a plan would lead to resegregation and the relocation of white 
families, and he therefore favored a more even distribution of 
students among the schools (the system was 51% white at that time). 
Unfortunately, the Board's plan did not work; Riverside and Howard 
have been over 95% black since the 1971-72 school year.

5/ The nature and effect of the Board's proposed modifications will 
be the subject of dispute between the parties in connection with 
the Board's appeal, No. 74—2101, and it will not be further described 
herein, except to note that it proposed the retention of eight 
elementary, four junior high, and two high schools with all-black 
student bodies (A. 42).

8



maintain the existing Hillerest zone for elementary students 

(96% white); and add Area 10D to the Elbert Long zone (82% white)

(A. 15). Although the District Court rejected the Board's attempt 

to change its 1971 plan, the court did approve its proposals for 
the Hillerest and 10D annexed areas.

The parties also presented considerable descriptive testimony 

at the 1973 hearing about additional, overwhelmingly white areas 

of Hamilton County which were due to be annexed to the city (e.£.,

A. 48-54, 61-62, 349-52). Although the Board had not requested 

such relief in its Motion, and although the school system had not 

yet developed recommendations for assignment of pupils in these 

areas upon completion of the annexation process (A. 51-67), the 

District Court nevertheless added to its Order the following 

provisions:

The Board may at any time effect changes in school 
attendance zones under the following circumstances:
. . . (c) where such changes involve the alteration
of school attendance zones to include contiguous 
annexed areas; and (d) where school attendance zones 
are created wholly within newly annexed areas.
(A. 432-33, 436).

Since entry of the decree, additional territory has been added to 

the city school district; pursuant to these provisions of the 

Court's ruling, the Board has retained their isolated, predominantly 

white enrollment characteristics despite the large number of

predominantly black schools which it operates in the older part
6/

of its system, (a . 483-89) and despite the fact that it furnishes

6/ With the latest annexations, Chattanooga's overall school 
population is again majority whiteo (A. 430).



transportation to pupils in such annexed areas (A. 48, 80-83,
90) .

Plaintiffs' objection to the provision for annexed areas to 

be exempted from operation of the Chattanooga desegregation plan, 

to the continued approval of the 1971 desegregation plan —  

particularly at the high school level —  and to the failure of 

the court to include a comprehensive reporting requirement, were 

specified in timely post-judgment motions and supporting documents 

(A. 438-53; see ici., at 450-64) . These contentions were summarily 

rejected by the District Court as being "without merit" (A. 467). 
This appeal followed.

ARGUMENT

I

Areas Added to the City of Chattanooga 
By Annexation Must Be Included•in the 
System's Plan of Desegregation

The error committed by the District Court in not requiring 

that areas annexed to the Chattanooga school system be desegregated, 

along with the other public schools of the district, is typified 

by its ruling with respect to the Hillcrest and Area 10D annexa­

tions. At the time the city became responsible for providing 

educational services in these regions, no system-wide desegregation
V

had ever taken place in Chattanooga. For purposes of measuring

7/ A plan which purported to provide system-wide relief was approved 
by the District Court in 1971 but was never fully implemented.
See pp. 6-7, supra.

10



compliance with the Fourteenth Amendment, therefore, the school 

system was in the same position as it had been the day after this 

lawsuit was initially filed. There had been a systematic 

Constitutional violation which had never been remedied, the 

effects of which had never been eliminated; plaintiffs were 

entitled to a system-wide remedy which would, at the time of its 

effectuation, extirpate the vestiges of segregation from all of 

Chattanooga's schools. This demand of the law was clearly not 

satisfied by the approval of a plan which creates heavily black 

schools in one part of the system, and heavily white schools in 

another, making no attempt whatsoever to alter the racial 

identifiability of the facilities.

Moreover, the District Court's decree erects serious road­

blocks to the successful functioning of the very Chattanooga 

desegregation plan of which it directs implementation. For it 

creates, and insures the future creation and perpetuation of, a 

ring of suburban, heavily white, "neighborhood" schools —  to 

which white students may nevertheless continue to be bused at 

public expense —  within a school system, the remainder of whose 

schools have become increasingly black. The result is a built-in 

incentive toward resegregation. One need not have extraordinary 

psychic powers in order to foresee the accelerated relocation of 

Chattanooga's white population within newly annexed areas of the 

city, leaving the "core city" schools ever more heavily black.

11



Thus does the District Court's "desegregation" decree work 
substantial mischief.

Although the District Court fails to articulate any legal 

kasis for its ruling, it is possible, based upon comments made 

by the court (orally and in its opinions), to examine some of 

the mistaken notions upon which the court may have rested its 
decision:

1. The District Court may have proceeded on the assumption 

that entry of its 1971 decree sufficed to create a unitary school 

system in Chattanooga, and for that reason, it had no concern 

with changes affecting schools covered by its decree, or schools 

added to the system by annexation since issuance of the ruling. 

("The plan submitted by the Board and approved by the Court in 1971 

was addressed to this problem and remedied the constitutional 

defects remaining in the system" [A. 429].) Such an approach 

conflicts with applicable legal principles.

(a) It is settled law that a unitary school system 

is established only when a desegregation plan works in practice, 

and not merely on paper. This cardinal tenet of school desegrega­

tion law underlies all modern decisions, starting with the Supreme 

Court's rejection of ineffective free choice plans in Green v.

County School Bd. of New Kent County. 391 U.S. 430 (1968) and 

Monroe v. Board of Comm'rs of Jackson. 391 U.S. 450 (1968). It 

has long been given regular application by this Court. E.g.,

12



Monroe v. Board of Comm'rs of Jackson, 427 F.2d 1005 (6th Cir.

1970); Northcross v. Board of Educ. of Memphis. 466 F.2d 890 

(6th Cir. 1972), cert, denied, 410 U.S. 926 (1973), vacated and re­

manded on other grounds, 412 U.S. 427 (1973). Decrees which seemed 

satisfactory have frequently been reopened and altered when, due 

to population movement, withdrawal, or for other reasons, projected 

results have not materialized. E.g., Hereford v. Huntsville Bd. 

of Educ., No. 74-3363 (5th Cir., Nov. 20, 1974), typewritten slip 

op. at p. 2: "We view this case as presenting no more than a 

motion in the district court for further relief in a typical school 

desegregation case where modification is indicated because of lack 

of success." [Emphasis supplied]. Accord, Ellis v. Board of 

Public Instruction of Orange County, 465 F.2d 878 (5th Cir. 1972); 

Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091 (5th Cir. 1972); 

Dowell v. Board of Educ. of Oklahoma City, 465 F.2d 1012 (10th Cir.), 

cert, denied, 409 U.S. 1041 (1972). Entry of the District Court's

1971 decree in this case, therefore, cannot be viewed as some sort
§/

of legally talismanic act which circumscribed the further 

jurisdiction and responsibility of the court to see to it that 

Chattanooga actually established a unitary system.

This is all the more so in light of the fact that the 1971 

decree was never fully effectuated, because of the District Court's 

stay. Under these circumstances, the court was required to take

8/ Bowman v. County School Bd. of Charles City County. 382 F.2d 326, 
333 (4th Cir. 1967)(Sobeloff, J., concurring), companion case rev'd 
sub nom. Green v. County School Bd. of New Kent County, supra.

13



a fresh look at the Chattanooga system, as it actually existed 

and functioned at the time system-wide relief was to be implemented. 

As in antitrust cases, the decrees of a court of equity speak to 

conditions actually existing at the time of their entry, 

irrespective of the more limited, or different, circumstances 

which may have prevailed at the time of the original violation.

E.g., United States v. Aluminum Co. of America. 91 F. Supp. 333,

339 (S.D.N.Y. 1950); United States v. Union P.R. Co., 226 U.S. 470, 

477 (1913); United States v. DuPont deNemours & Co., 366 U.S. 316, 

331-32 (1961).

By mechanically calling for the defendants merely to finish 

up the 1971 plan, and removing from its review or consideration 

all future additions of territory and schools to the Chattanooga 

system, the District Court abdicated its responsibility to insure 

the establishment of a unitary system in practice, as well as 

on paper.

(b) The District Court's reliance upon its 1971 ruling 

may also indicate an assumption that its Constitutional 

responsibility and jurisdiction were limited to the Chattanooga 

system as constituted at the time that decree was entered, 

irrespective of the fact that the 1971 plan was not fully 

implemented. Such an interpretation of the law is likewise 

erroneous.

14



In numerous school desegregation cases, the contours and

characteristics of school districts have been altered by a 

variety of forces (including the addition of territory by 

annexation) between the initial finding of Constitutional violation 

and implementation of an effective remedy. in such instances, 

judicial decrees have not been limited to separate portions of 

the school systems. In Kelley v. Metropolitan County Bd. of 

Educ., 463 F.2d 732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972), 

for example, individual actions against the City of Nashville and 

against Davidson County were consolidated after the political 

subdivisions were merged into one metropolitan government. Never­

theless, the desegregation plan ultimately ordered by the district 

court and approved by this Court did not treat the former systems 

independently. Similarly, this Court directed formulation of a 

comprehensive desegregation plan for Memphis in Northcross v.

Board of Educ., supra, and that plan included all areas within 

the City of Memphis at the time of its submission, see Civ. No.

3931 (W.D. Tenn., May 3, 1973), aff'd 489 F .2d 15 (6th Cir. 1973), 

cert, denied, 416 U.S. 962 (1974); see also, No. 74-2232, pending. 

And the district court's interim and final orders in the Richmond, 

Virginia case, for further example, required complete desegregation 

of schools in a large area added to the city in 1970, Bradley v. 

School Bd. of Richmond, 317 F. Supp. 555 (E.D. Va. 1970); 325 F. 

Supp. 828 (E.D. Va. 1971).

15



In short, annexations —  like other demographic changes 

occurring before effective and complete desegregation takes 

place, e.g., Kelley v. Metropolitan County Bd. of Educ.. supra,

463 F.2d, at 732; Newburg Area Council v. Board of Educ. of 

Jefferson County, 489 F.2d 925, 931 (6th Cir. 1973), vacated and

remanded on other grounds, __ U.S. __ (1974) —  must be taken

account of in school desegregation orders.

(c) Finally, the District Court's indifference to the 

composition of the schools in the annexed areas cannot be justified 

on the basis of its 1971 Order for two additional and different 

reasons. First, the intervening demographic and other changes 

which have taken place have significantly weakened the factual 

basis for the Court's approval of the Board plan in 1971. Schools 

which were a part of the Chattanooga system in 1971, and which 

were not substantially affected by the Board plan (such as, for 

example, Elbert Long), now appear far more substantially dis­

proportionate in their racial composition than may have been the 

case at that time. Schools proposed for closure in the 1971 plan, 

with their students assigned so as to further desegregation (e.g., 

Lookout Jr. High) were retained. It was thus clearly error for 

the District Court to affirm its 1971 decree without revisiting 

the factual bases for its approval.

16



intervening decisions have undercut the legal analysis upon which

the District Court's 1971 approval of the Board's plan rests.

Cf. Goss v. Board of Educ. of Knoxville, 444 F.2d 632, 634 (6th

Cir. 1971) ("We believe, however, that Knoxville must now conform the

direction of its schools to whatever new action is enjoined upon

it by the relevant 1971 decisions of the United States Supreme

Court"). We discuss some of these developments below; but we

should like to emphasize at this point one of the most significant.

The District Court in 1971 conducted a school-by-school analysis

of the Chattanooga system, determining that heavily white schools

such as Dalewood and Long were Constitutionally acceptable since

it could not find evidence of direct school board manipulation

to establish or preserve their uniracial character. 329 F. Supp.,

at 1382, 1384. That analysis, we submit, failed to take account

of the principle which has been enunciated by the Supreme Court

in Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973), that

"racially inspired school board actions have an impact beyond the

particular schools that are the subjects of those actions," id., at

203. As the Court put it (in language unexpectedly

appropriate to this case):

[Segregative acts which] have the clear effect 
of earmarking schools according to their racial 
composition . . . together with the elements of 
student assignment and school construction, may 
have a profound reciprocal effect on the racial 
composition of residential neighborhoods within

Second, developments in school desegregation law and

17



a. metropolitan area, thereby causing further 
racial concentration within the schools.

413 U.S., at 202. See generally, id., at 201-03; United States 

v * Texas Educ. Agency. 467 F.2d 848, 888 (5th Cir. 1972);

Cisneros v. Corpus Christi Independent School Dist.. 467 F.2d 

142 (5th Cir. 1972), cert, denied, 413 U.S. 920, 922 (1973).

We thus conclude that entry of the Orders now under 

consideration can in no way be justified by reference to the 
earlier ruling of the court.

2. The District Court may have assumed that relief in this 

school desegregation case was limited to ameliorating segregative 

conditions at individual schools shown to have been directly 

caused by the activities of these defendants and their predecessors 

in office, as indicated by these comments:

- . . it's my further recollection that 
in the hearings two and a half years ago 
that the evidence identified one school 
after another that had been built and 
located for the purpose of establishing 
and maintaining a segregated school system 
back at the time when Chattanooga was 
operating dual school systems.

Now, as I understood, it was our respon­
sibility to try to eliminate the segre­
gation that was caused by that lawfully —  
it was lawfully imposed at the time it 
was done, but since it's been held to be 
unconstitutional. . . .

What does that have to do —  what I have 
difficulty understanding is what does

18



that have to do with the elimination of 
the dual school system that the School 
Board built and operated up until 1962 
or '64? . . .

[The School Board] should look and see 
whether each school now has any conse­
quences in that school that resulted 
from their having operated it as a 
segregated school back in 1961 and prior 
to that time. . . .

Now, the Supreme Court has said that equal 
protection of the law means that we must 
remove all vestiges of segregation that were 
imposed by reason of the past actions of 
the Board or any more recent actions that 
caused segregation. [A. 222, 223, 224, 225].

Proceeding upon this hypothesis, the court would naturally have 

excluded areas not a part of the historical Chattanooga official 

dual system from its consideration. However, this approach finds 

no support in the decisions of the United States Supreme Court 
or of this Court.

(a) Whatever may have been the proper characterization 

of the Constitutional violation in this case (but see Keyes v. 

School Dist. No. 1, Denver, supra, and discussion thereof at pp. 17- 

18 above), the remedial authority and responsibility of a federal 

district court in a school desegregation case is broad. "Root and 

branch," Green v. County School Bd. of New Kent County, supra,

391 U.S., at 437-38, or "all-out," Keyes, supra, 413 U.S., at 214, 

desegregation of the school system is required. Racially identifi­

19



able schools —  the hallmark of the dual system —  must be 

eliminated by any successful, adequate remedy. cf. Kelly v.

Guinn, 456 F.2d 100, 109-110 (9th Cir. 1972), cert, denied,

413 U.S. 919 (1973). "Having once found a violation," Davis v. 

Board of School Comm'rs of Mobile, 402 U.S. 33, 37 (1971), the 

District Court has "not merely the power but the duty to render 

a decree which will . . .  so far as possible eliminate the 

discriminatory effects of the past as well as bar like discrimina­

tion in the future." Louisiana v. United States, 380 U.S. 145,

154 (1965).

That the schools which must be affected by such a decree may 

include facilities newly added to the system since the finding 

of Constitutional violation is not cause for concern, but rather 

is consistent with the application of settled equitable principles. 

In antitrust law, for example, in order to remedy unlawful 

practices "equity has the power to uproot all parts of an illegal 

scheme —  the valid as well as the invalid." United States v. 

Paramount Pictures, Inc., 334 U.S. 131, 148 (1948). Thus, it 

would be error to limit the operation of a remedial decree to the 

Chattanooga school system as it existed in 1971, ignoring the

9/ See Berry v. School Dist. of Benton Harbor, No. 71-1957 
(6th Cir., Nov. 1, 1974), slip op. at p. 6 , n. 4 and accompanying 
text.

9/

20



fact that a pattern of annexations from Hamilton County would

very rapidly lead to the reestablishment of racially identifiable
10/

schools in the system.

(b) This record contains affirmative evidence which 

negates any assumption that state action was unrelated to the 

composition of the Hamilton County schools which have recently 

been made a part of the Chattanooga school system.' Although it 

is presently operating pursuant to an HEW-approved pupil assign­

ment plan, the County formerly maintained dual overlapping zones 

for black and white students as did Chattanooga (A. 54-63). Thus, 

viewing the Chattanooga board as the successor to the Hamilton 

County board, the Fourteenth Amendment imposes affirmative 

desegregation obligations even with respect to the annexed 

territory.

(c) A narrow approach which limits the remedial
11/obligation to only one portion of the Chattanooga district

10/ Similarly, in antitrust cases, the court's obligation is to 
"prescribe relief which will terminate the illegal monopoly, deny 
to the defendants the fruits of its statutory violation, and ensure 
that there remain no practices likely to result in monopolization 
in the future,11 United States v. United Shoe Machinery Corp., 391 
U.S. 244, 250 (1968)(emphasis supplied). Cf. Sloan v. Tenth School 
Dist. of Wilson County, 433 F .2d 587 (6th Cir. 1970).

11/ Absent a finding that the violation was limited to a physically 
or otherwise separable portion of the school district, see Keyes, 
supra, 413 U.S., at 203, 213.

21



undercuts the Constitutional requirement of a workable, effective 

plan. At the time it entered its Orders in 1973, the District 

Court was presented with an elaborate argument by the Chattanooga 

Board (in support of an effort to return to segregation) to the 

effect that white population movement within and out of the City 

of Chattanooga had seriously interfered with the expected success 

of those portions of the 1971 plan which the Board had implemented. 

Approval of the Hillcrest zone, and the assignment of Area 10D 

students to Elbert Long, when those students were being transported 

to school anyway pursuant to the plan of services filed by the 

City in its annexation case (A. 368) could only exacerbate the 

tendency of whites to relocate in the suburbs from which blacks 

were largely excluded by discrimination (A. 417). Common sense 

alone should have told the District Court that exclusion of 

annexed areas from the operation of the plan would doom it. The 

testimony was to that effect (A. 383-85).

The District Court's action was equivalent to subdividing 

Chattanooga into predominantly black and predominantly white 

subsystems —  an action whose results were certain to be the 

forestalling, rather than the advancement, of desegregation. The 

Supreme Court has indicated the unacceptability of such a course 

of action:

Nor does a court supervising the process of 
desegregation exercise its remedial discretion 
responsibly where it approves a plan that, in 
the hope of providing better "quality education" 
to some children, has a substantial adverse effect

22



upon the quality of education available to 
others. In some cases, it may be readily 
perceived that a proposed subdivision of a 
school district will produce one or both of 
these results.

Wright v. Council of the City of Emporia, 407 U.S. 451, 463 

(1972). And while the District Court was undoubtedly correct 

in rejecting the school board's proposals despite the argument 

that reestablishment of segregated schools in the "core city" 

would counteract the withdrawal of white students from the public 

system (see discussion infra), see United States v. Scotland Neck 

City Bd. of Educ., 497 U.S. 484, 491 (1972), it erred in not 

exercising its remedial discretion to the fullest extent and in 

such a manner as would both maximize desegregation and eliminate 

opportunities for resegregation within the areas under the 

jurisdiction of the Chattanooga school board, see Wright, supra,

407 U.S., at 464-65.

This case presents an appropriate, perhaps ideal, opportunity 

for the application of the sound remedial principles enunciated 

by this Court in Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973),

rev1d on other grounds, __ U.S. __ (1974). For, unfettered by

considerations of school district boundaries, federalism, or 

state law, it involves a plan ostensibly intended to remedy a 

Fourteenth Amendment violation which proposes to create and 

maintain "[predominantly] black school[s] . . . immediately

surrounded by practically all white suburban school[s] . . . with

23



[a predominantly] white majority population in the total [district] 

area," 484 F.2d, at 245. The school population disproportions 

which are proposed to be maintained are, with little dispute, 

so great as to render unacceptable any plan which purported to 

effect them. See, e.g., Medley v. School Bd. of Danville, 482 

F.2d 1061 (4th Cir. 1973), cert, denied, 414 U.S. 1172 (1974).

Many of the additional factors which motivated this Court in 

Bradley v. Milliken to direct that district boundary lines be 

crossed, are also present here, such as the differential provision 

of home-to-school transportation between annexed and non-annexed 

areas. Surely, then, these circumstances warrant application 

of the meaningful remedy principles of Bradley and the inclusion 

in the plan of territory annexed to the Chattanooga system.

3. The District Court may have shaped its decree as it

did in order to prevent further loss of white-students from the

Chattanooga system, for it evidenced concern over the demographic

changes in the district but stated:

Annexation, and not resegregation of the 
schools, is the obvious answer to this loss 
of affluence as well as a declining residential 
population and a declining school enrollment.
It should be noted in this regard that next year, 
as a consequence of recent annexations, the 
Chattanooga Public Schools will have an all time 
high student enrollment as well as again having 
a majority of white students.

(A. 430). While the Court paid lip service to the principles of 

Wright, supra and Scotland Neck, supra, which reject the prevention

24



of white flight as a justification for limiting desegregation 

(A. 430-31), its Orders ultimately embodied a mechanism whereby 

the Chattanooga school system could retard white withdrawal from 

its system by limiting the number of schools within that system 
which would be desegregated.

The only justification offered by the District Court for 

this material incentive to resegregation, is contained in a 

footnote (A. 431) labelling such resegregation as may occur,

"de facto." Not only does this simplistic approach ignore the 

responsibility of board and court to implement an effective, 

workable plan by avoiding foreseeable resegregation, but it 

is also an inaccurate statement of the law. In this Circuit the 

action of the Chattanooga Board in annexing heavily white areas 

without altering their zone lines so as to alleviate obvious 

racial imbalances would, without regard to the long history of 

official segregation in the State of Tennessee and the City itself, 

constitute evidence of intentional, cte jure segregation. Berry v. 

School Dist. of Benton Harbor, supra, slip op. at p. 7? cf. Sloan 

v. Tenth School Dist. of Wilson County, supra, 433 F.2d, at 589,

590 (6th Cir. 1970) (dicussing reciprocal school-residential 

incorporation of institutional segregation).

For these reasons, it would be impermissible for this Court 

to affirm the judgment below on the theory that the District Court 

was, with benign intent, attempting to prevent "white flight" 

from Chattanooga.
- 25 -



4. Finally, in an effort to cover all conceivable bases

for the District Court's ruling, we consider the possibility

that (although it did not specifically advert to it) the Court

thought this case was governed by Section VI of Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 31-32 (1971).

The relevant portions of the Supreme Court's opinion provide:

At some point, these school authorities and 
others like them should have achieved full 
compliance with this Court's decision in 
Brown I. The systems will then be "unitary" 
in the sense required by our decisions in 
Green and Alexander.

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 constitutionally 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 eliminated 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 demographic patterns 
to affect the racial composition of the schools, 
further intervention by a district court should 
not be necessary.

The Supreme Court's language does not fit this case, so as 

to justify the District Court's abstention from "further 

intervention," for several reasons.

(a) The prerequisite established by the Supreme Court 

the achievement of "full compliance" —  must be understood in

26



the context of the requirements of effectiveness and workability

which we have previously discussed. This is the reason for 

the retention of jurisdiction beyond entry of a decree approving 

a plan, see, e.g., Raney v. Board of Educ. of Gould, 391 U.S.

443 (1968); Hall v. St. Helena Parish School Bd., 443 F.2d 1181 

(5th Cir. 197.1) ; Wright v. Board of Public Instruction of Alachua 

County, 445 F.2d 1397 (5th Cir. 1971); Lemon v. Bossier Parish 

School Bd., 444 F.2d 1400 (5th Cir. 1971). Since the 1971 decree 

calling for sysrem-wide relief was never put into effect, and 

since its Constitutional adequacy is open to serious question 

in light of intervening changes of fact and law’, it can hardly 

be said that Chattanooga has reached "full compliance."

(b) The eventuality assumed in this passage from the 

Supreme Court's opinion in Swann is that demographic changes take 

place within a school system wholly without the connivance or 

participation of state agencies or officials. Once again, that 

is hardly the situation which the court confronted in this case. 

First, as Dr. Stolee predicted in 1971, the ineffectual high 

school plan adopted by the Board in 1971 could be expected to 

prod\ice exactly the sort of demographic change which took place 

in Chattanooga (A. 403-06). Second, the School Board members, 

school officials and attorneys spent two years making self-fulfilling 

prophecies about the inevitability of "white flight" in the event 

of desegregation (See A. 88-89, 240-41, 312-14, 329-31, 334-38, 

385-86). Third, the action proposed by the Board and the District

27



Court with respect to assignments of pupils in the annexed areas 

is the equivalent of an extensive, periphery or suburban school 

construction program which cannot but have a marked effect on 

residential patterns. See, Swann, supra, 402 U.S., at 20-21;

Keyes, supra, 413 U.S., at 202. For these reasons, then, it 

would not be accurate to consider recent demographic changes in 

Chattanooga as being so divorced from discriminatory state actions 

as to bring the system within the purview of Part VI of Swann.

(c) Finally, the quoted language appears at the 

conclusion of the Court's decision in Swann in order to emphasize 

that full and effective compliance by a school district does not 

require constant redrafting of a plan to maintain perfect racial 

balance, or to compensate for minor demographic shifts. The 

Court was not faced with, nor did it purport to establish legal 

rules for, determining when a school board's refusal to act to 

relieve segregation may amount to a violation of the Fourteenth 

Amendment. Subsequently, in Keyes v. School Dist. No. 1, Denver, 

supra, the Court endorsed the thesis that school boards are 

Constitutionally responsible for the natural or foreseeable 

consequences of their actions, or failures to act. 413 U.S. 189, 

aff1g 303 F. Supp. 279 (D. Colo. 1969). This Court, in Berry v. 

School Dist. of Benton Harbor, supra, has recognized the justifiable 

corollary principle that a decision "not to adopt new attendance

28



boundaries [for a consolidated or annexed area] in the face of 

a readily discernible pattern of residential segregation" may 

indicate a Constitutional violation. The principle is most 
assuredly applicable to Chattanooga, and it takes the case outside 

Part VI of Swann.

In conclusion, careful study of all possible grounds which 
might support the District Court's action respecting annexed 
areas reveals no valid ground therefor. The Court's Order 
represents an abdication of its authority and duty to retain 
jurisdiction to insure the establishment and operation of unitary 
schools; it should be reversed and the court instructed to require 
inclusion of these areas in an effective Chattanooga desegregation 

plan.

i--
„

»* •

• W : -
a, > %

T

• ^



II

The District Court Should Have 
Required A Completely New And 
System-Wide Desegregation Plan 
For Chattanooga In 1973

At the time of the 1973 hearings on the School Board's 

Motion for Further Relief, the District Court had given only 

tentative approval to the high school zoning portion of the 

1971 plan —  the only grade level at. which the plan had been 

"fully implemented" (A. 115-17, 125). Although the court had 

indicated that its ultimate endorsement of the high school plan 

would depend upon the results attained thereunder (A. 125), and 

despite the uncontested failure of the plan, in actual operation, 

to alter the all-black character of Riverside or Howard High 

Schools, the court nevertheless concluded after the evidentiary 

hearing on the Boeird's motion that the plan had made Chattanooga's 
high schools "unitary."

Such a conclusion can hardly be supported under any reasonable 

interpretation of the law. The high school plan simply did not 

work at all; not for the first three minutes, days, weeks, months 

or years after it was put into effect. When a desegregation plan 

—  particularly one which relies upon zoning —  is such a total 

flop, the courts have uniformly required the development and 

implementation of a new method which is more likely to produce 

actual results. Monroe v. Board of Coram1rs of Jackson, 427 F.2d

30



<-

1005 (6th Cir. 1970); Northcross v. Board of Educ, of Memphis,

466 F.2d 890 (6th Cir. 1972); Boykins v. Fairfield Bd. of Educ., 

supra; Hereford v. Huntsville Bd. of Educ., supra; Brewer v.

School Bd. of Norfolk, 397 F.2d 37 (4th Cir. 1968).

The District Court's lame excuse for its decision on the 

high school plan: that demographic changes had resulted in

the plan's ineffectiveness, is irrelevant and unconvincing.

Since the Chattanooga school system, including the high school 

subsystem, had never been adequately desegregated, demographic 

changes of whatever sort or cause do not relieve the school 

authorities of their continuing obligation to bring about

« jL\r~  -L. .J-C3 y v • i»iC  u i U } J U ± l .  t a l l  J3U. • U I

Educ., supra; Newburg 2\rea Council v. Board of Educ . of Jefferson 

County, supra.

To accept demographic change which totally prevents even 

the momentary effectiveness of a desegregation plan, or white 

refusal to attend desegregated schools which produces the same 

result, is but to return to "free choice" days when the paper 

promise of a plan sufficed. Just as the refusal of white students 

to desegregate all-black schools by freedom of choice signalled 

the unacceptability of that method of desegregation, e .q., Green 

v. County School Bd. of New Kent County, supra, so the immediate 

withdrawal of white students assigned under a zoning plan to

- 31 -



Riverside and Howard denotes the ineffectiveness of the plan. 

Boykins v. Fairfield 13d. of Educ., supra.

Not only should the District Court have required a new 

plan for assigning high school students, but it should have 

ordered preparation of an entirely new and coniprehensj.ve pupil 

assignment scheme for the entire Chattanooga system. As set 

out above, p. 17, the 1971 District Court opinion approving the 

Board's plan, and this Court's en banc affirmance thereof, were 

issued prior to the decision of the United States Supreme Court 

in Keyes v. School Dtst. No. 1, Denver, supra. The District 

Court's analysis, upon which it determined to permit the 

continuation of numerous severely d j.sproportj.onate one-race 

schools, was based on the notion that segregative acts affecting 

each school in the system had to be shown by plaintiffs. See 

329 F. Supp., at 1381-84. That burden is not one which plaintiffs 

must carry in a desegregation suit initiated in a State which never 

required segregation by law, much less in one where the 

affirmative obligation to terminate dual systems and uniracial 

schools has existed since 1954. Keyes, supra, 413 U.S., at 200. 

Thus, the legal basis upon which the District Court originally 

approved the plan, and upon which this Court's affirmance may 

have been based, can no longer withstand scrutiny.

Furthermore, and again as discussed above, the elementary 

and junior high school portions of the 1971 plan were never fully

32



implemented in Chattanooga. During the period of the District 

Court's partial stay, the underlying factual pattern against 
which the sufficiency of the plan must be judged, underwent 
significant alteration. Shifts in racial concentration through 
residential relocation and annexation by the City of Chattanooga 
worked substantial changes in the projected results which could 
be anticipated (without considering the Board's further speculation 
about increased "white flight") if the remainder of the 1971 plan 
were implemented. Schools whose assignment zones may have been 
approved because their racial composition did not seem to the 
District Court in 1971 to be "substantially disproportionate" 
look entirely different in relation to the 1973 Chattanooga school 
system. For this reason as well, the District Court should have 

reexamined the Constitutional sufficiency of the 1971 plan in 
light of changed conditions and circumstances. It was not 
enough to deny the Board's motion seeking greater segregation; 
the District Court's obligation was to ensure the creation, 
at long last, of a unitary system in Chattanooga.

Finally, of course, we have argued above that the annexed 

areas must be desegregated. This, too, would require the 
redrafting of the entire Chattanooga desegregation plan; and 

this Court should so instruct the District Court on remand.

33



Ill

The District Court Should Have 
Amended Its Decree So As To 
Include Therein A Comprehensive 

Reporting Provision

The 1971 plan submitted by the Chattanogga Board of

Education contained the following provision:

It is proposed that the Chattanooga Board 
of Education submit to the Court a report 
by October 31, 1971, based on tenth day 
enrollment figures and staff assignments.
The report will encompass pertinent data 
relative to plan implementation in both 
student enrollment and staffing. Other 
reports would be forwarded to the Court 
pertaining to those specific instances in 
which directions and/or positions of 
compliance arise.

(Appendix in 6th Cir. Nos. 71-2006, - 2007, Vol. I, p. 112).

The 1971 decree of the District Court accepted this non-specific 

virtually voluntary procedure for the submission of compliance 

reports, adding only that they should be made annually (329 

F. Supp., at 1388):

Paragraph VII of said amended desegregation 
plan is modified to provide for the continuation 
of annual reports of the continued implementation 
of all approved provisions of said plan, until a 
final order of compliance may be entered, copies 
of said reports to be furnished counsel for 
plaintiffs.

In their 1973 post-hearing motions, plaintiffs called the

inadequacy of the reporting provisions to the attention of the

District Court, and sought modification of the court's decree to
- 34 -



strengthen the reporting requirement so that the Court might 

be more properly informed of the progress, or lack thereof, 
in establishing a unitary system in Chattanooga. The District 

Court declined to alter its orders.

The reports which the school board proposes to furnish 

deal only with a small portion of the information relevant 
to the continuing responsibilities of the District Court. 
Notification of new construction proposals, or possible annexations, 

for example, is not required. Cf. Sloan v. Tenth School Dist. 

of Wilson County, supra.

mi, _ -v- A 4- 'hne r). 1-3 LlVGlv StlOl. u lC>U.C

complete and informative reporting requirement which it has 

uniformly applied to school systems undergoing desegregation 

during the transitional process. Hall. v. St. Helena Parish 

School Bd., 443 F.2d 1181 (5th Cir. 1971); see United States 

v. Hinds County School Bd., 433 F.2d 611, 618-19 (5th Cir. 1970). 

We urge this Court to require the same, either m  all school 

cases as a matter of Circuit policy, or at the least m  this 

case, so that the Court and the parties may better carry out 

the terms of an adequate plan and take all necessary action to 

maintain a unitary school system in Chattanooga.

35



CONCLUSION

For the foregoing reasons, the judgment of the District 

Court should be reversed, and the case remanded with instructions 

to the District Court to require the submission and implementation 

of a new,,updated and comprehensive desegregation plan for all 

of Chattanooga's schools, including those in areas annexed to 

the city since 1971 and in the immediate future, in accordance 

with the remedial guidelines cf Swann v. Charlotte-Mecklenburg 

Bd. of Educ., supra, and the decisions of this Court; and with 

the further instruction that the District Court include within 

its final decree a reporting requirement similar to that set

u x i x u o u  u  e u o u o  v  • n a .x x

Respectfully submitted,

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

JACK GREENBERG ■
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants-Cross Appellees

36 -



CERTIFICATE C)F SERVICE

I hereby certify that on this daY °f December, 1974,

I served two copies of the foregoing Opening Brief for 

Plaintiffs-Appellants upon counsel for the Defendants-Appellees 

herein, by depositing same in the United States mail, first 

class, postage prepaid, addressed as follows:

Raymond B. Witt, Jr., Esq.
.1100 American National Bank Building
Chattanooga, Tennessee 37402

37



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