Terrell v. Alexander Brief for Plaintiff/Intervenor-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ERNEST TERRELL, )
)Plaintiff-Appellant, )
)RITA SANDERS GEIER, et al., )
)Plaintiffs-Appellees, )
)UNITED STATES OF AMERICA, )
)Plaintiff-Intervenor-Appellee )
)RAYMOND RICHARDSON, JR., et al., )
)Plaintiff-Intervenors-Appellees. )
)H. COLEMAN McGINNIS, et al. , )
)Plaintiff-Intervenors-Appellees. )
)vs. )
)LAMAR ALEXANDER, et al., )
)Defendants/Appellees. )

No. 84-6124

On Appeal From The United States District Court 
Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES 
RAYMOND RICHARDSON, JR., et al.

AVON N. WILLIAMS, JR. 
RICHARD H. DINKINS 
203 Second Avenue North 
Nashville, TN 37201 
(615) 244-3988

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT III 
JOEL BERGER 
THEODORE M. SHAW 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Plaintiffs/lntervenors-AppelleesRaymond Richardson, Jr., et al.



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ERNEST TERRELL, )
)Plaintiff-Appellant, )
)RITA SANDERS GEIER, et al., )
)Plaintiffs-Appellees, )
)UNITED STATES OF AMERICA, )
)Plaintiff-Intervenor-Appellee )
)RAYMOND RICHARDSON, JR., et al., )
)Plaintiff-lntervenors-Appellees. )
)H. COLEMAN McGINNIS, et al., )
)Plaintiff-Intervenors-Appellees. )
)vs. )
)LAMAR ALEXANDER, et al. , )
)Defendants/Appellees. )

No. 84-6124

On Appeal From The United States District Court 
Middle District of Tennessee 

Nashville Division

BRIEF FOR PLAINTIFF/INTERVENORS-APPELLEES RAYMOND RICHARDSON, JR., et al.

AVON N. WILLIAMS, JR. 
RICHARD H. DINKINS 
203 Second Avenue North 
Nashville, TN 37201 (615) 244-3988

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT III JOEL BERGER 
THEODORE M. SHAW 
99 Hudson St., 16th Floor New York, NY 10013 
(212) 219-1900

Attorneys for Plaintiffs/lntervenors-AppelleesRaymond Richardson, Jr., et al.



TABLE OF CONTENTS

Table of Authorities...............................  i
Statement of the Case..............................  ii
Statement of Facts.................................
Questions Presented for Review.....................  iv
Argument

I. Under The Circumstances Of The Case The 
District Court Acted Within Its Discretion 
When It Did Not Require Formal PublicationOf Notice Of Settlement.......................  1

II. The Stipulation Of Settlement Does Not
Inequitably Single Out TSU For Desegregation Goals And Timetables..........................  4

Conclusion..........................................  6
Certificate of Service..............................  g
Attachment A

V



TABLE OF AUTHORITIES

Sanders v. Ellington,
288 F.Supp. 937 at 939 (M.D. Tenn. 1968)

Fed.R.Civ.P. 23(b)(2)
Keen v. United States,

81 FRD 653 (S.D. W.Va. 1979)
Johnson v. City of Baton Rouge, Louisiana,50 FRD 295 (D.C. La. 1970)
Gregory v. Tarr,

436 F.2d 513 (6th Cir. 1971)
West Virginia v. Chas P. Finger & Co.,

440 F.2d 1079 (2nd Cir. 1971)
In re Four Seasons Securities,

525 F.2d 500 (10th Cir. 1975)
Mullane v. Central Hanover Bank & Trust Co., 335 U.S. 306 (1950) ---

l



STATEMENT OF THE CASE

Richardson et a 1. hereby adopt by reference their 
statement of the case in No. 84-6055, a related appeal.
On October 22, 1984, the plaintiff-appellant in the instant 
appeal filed a letter (docket no. 165) with the district 
court objecting to the Stipulation of Settlement (docket no. 
163 & 164) on the basis that as a class representative, he 
was not consulted about its terms and given an opportunity 
to object. Dr. Terrell further requested time to consult 
with an attorney and to file formal objections to the 
Stipulation of Settlement. On November 13, 1984 Dr. Terrell 
moved the district court to rule on his October 22 motion 
and to set a hearing on his objections. (docket no. 182)
He further moved to substitute Richard E. Jackson for 
George E. Barrett as the attorney representing him and a 
class of plaintiffs. The district court denied Dr.
Terrell's motions on Novmeber 16, 1984. Dr. Terrell filed 
this pro se appeal.

ii



STATEMENT OF FACTS

Plaintiff-Intervenors/Appellees Richardson et al. 
hereby adopt by reference their statement of facts as set 
forth in their brief in No. 84-6055.

in



QUESTIONS PRESENTED FOR REVIEW

1. Whether the district court abused its discretion 
when it approved the Stipulation of Settlement.

2. Whether Stipulation of Settlement imposes goals 
and timetables for TSU without doing so for traditionally 
white institutions.

iv -



ARGUMENT

I. UNDER THE CIRCUMSTANCES OF THIS CASE THE DIS­TRICT COURT ACTED WITHIN ITS DISCRETION WHEN IT 
DID NOT REQUIRE FORMAL PUBLICATION OF NOTICE OF SETTLEMENT.

The original complaint in this action named five 
plaintiffs, each of whom sued on his or her own behalf and 
on behalf of others similarly situated. The district court 
(Judge Gray) found “that the action can be sustained as a 
class action." Sanders v. Ellington, 288 F.Supp. 937 at 939 
(M.D. Tenn. 1968). In an unpublished order dated February 
27, 1978 the district court reiterated its ruling on the
class action.1

Assuming that this is a class action, the district 
court acted within its discretion when it approved the 
Stipulation of Settlement.* 2 This case best falls within the 
parameters of Fed.R.Civ.P. 23(b)(2), which provides in rele­
vant part that upon compliance with certain prerequisites

An action may be maintained as a class action 
if...the party opposing the class has acted or 
refused to act on grounds generally applicable 
to the class, thereby making appropriate final 
injunctive relief or corresponding declaratory 
relief with respect to the class as a whole....

••-Joint Appendix in Geier v. University of Tennessee, 6th 
Cir., No.s 77—1621—25 Vol. I, p. 240, 241. The prior joint 
appendix is designated as part of the record in No. 84-6055.
2The State claims that no properly certified class exists 
in this case. If this Court credits that argument, Dr. Terrell's appeal must be dismissed. Richardson et al.



A suit to desegregate public institutions of higher 
education is the paradigm of the Rule 23(b)(2) class action. 
Once the Rule 23(a) requirements of numerosity, commonality 
and adequacy are met, racial discrimination by definition 
brings the action within 23(b)(2) perameters. The party 
opposing the class has acted or refused to act on grounds of 
race — applicable to all class members.

Notification is not constitutionally required in 
Rule 23(b)(2) class actions. Keen v. United States, 81 FRD 
653 (S.D. W.Va. 1979); Johnson v. City of Baton Rouge, Louis­
iana , 50 FRD 295 (D.C. La. 1970). Where a significant
number of people were part of the class and locating them 
would entail great difficulty, this Court has not required 
notice. Gregory v. Tarr, 436 F.2d 513 (6th Cir. 1971). The 
manner and form of notice are best left to the dictates of 
the court to be construed in relation to the situation in a

believe that Judge Gray's 1968 ruling rendered this suit 
into a class action, although the scope of the class could 
have been defined more explicitly. Richardson et al. submit 
that the language of that opinion supports the contention 
that the class is comprised of those persons similarly situated to the named plaintiffs.

In any event, any uncertainty about class status can be 
raised formally in the district court where it possibly can 
be cured. For purposes of this appeal it is sufficient to 
note (as argued above) that the district court acted within 
its discretion when it approved the stipulation of settlement.

2



specific case. Id.
Even if this action were brought under Rule 

23(b)(3), which requires notice to class members, no defini­
tive regulations concerning adequacy of notice have been 
institutionalized as acceptable for every case. West
Virginia v. Chas P. Finger & Co. , 440 F.2d 1079 (2nd Cir. 
1971)- In re Four Seasons Securities, 525 F.2d 500 (10th 
Cir. 1975) suggests that notice need not be read to every 
class member in order to be adequate. Mullane v. Central 
Hanover Bank & Trust Co., 335 U.S. 306 (1950) vests discre­
tion in the district court when it comes to effectuating 
notice.

In this case, where the proceedings and issues have 
a high public profile, are carried in print and broadcast 
media and where the settlement culminated months of dif­
ficult negotiations,3 Richardson et al. submit that anyone 
with an interest had opportunity to press his or her con­
cerns. Moreover, on July 30, 1984, the district court held 
an open hearing, well-publicized and attended by represen­
tatives of various sections of the Nashville community, in 
which the Justice Department stated its opposition to the 
Stipulation of Settlement, which it is presently pursuing in 
this Court.

The TSU Alumni Association moved to intervene in the 
district court on January 29, 1983. That motion was denied, 
(docket No. 51). However, counsel for the association was 
present in amicus status at some of the negotiations at his

- 3 -



II. THE STIPULATION OF SETTLEMENT DOES NOT INEQUI­TABLY SINGL OUT TSU FOR DESEGREGATION GOALS AND TIMETABLES.

Dr. Terrell's substantive objection to the 
Stipulation of Settlement (505) is based upon incomplete 
information and misreading of its terms. While on its face 
it may appear to levy unique burdens on TSU, that appearance 
is primarily the result of the procedural posture of the 
litigation in its latest stage. Specifically, the settle­
ment is the result of a long and complex negotiation process 
in which varying and sometimes conflicting interests were 
brought to bear. The Richardson plaintiffs initiated the 
negotiation process in March of 1984 by sending a draft of
proposed steps to be taken by the State of Tennessee to
achieve statewide desegregation of its institutions of
higher education. During the ensuing months the State
responded with counter—drafts and the negotiations expanded 
to include all of the parties presently in the lawsuit. 
Throughout the course of the negotiations, Richardson et al. 
maintained and they continue to maintain, that certain prin­
ciples must be observed in the process of desegregating dual 
systems of public higher education. First, and above all, 
the desegregation process must ensure that educational and

own discretion.
- 4 -



employment opportunities for black citizens in Tennessee's
system of public higher education are expanded and not dimi­
nished as a result of the implementation of the desegrega­
tion plan.

Second, Richardson et al have maintained that at 
this stage of the lawsuit the proper focal point is not TSU, 

rather, the State's failure to desegregate Tennessee's 
predominantly white institutions of public higher education. 
The burden of the desegregation process should not fall ine­
quitably on TSU.

Third, the progress of implementation of the state­
wide plan must be measurable; thus it is necessary to estab­
lish goals and timetables for implementation of the plan.

Based upon these principles, Richardson et al. 
negotiated a settlement, in the presence and with the parti­
cipation of all counsel, to which they and the State agreed. 
Subsequently, the State met separately with counsel for 
intervenors McGinnis, et al. and negotiated further terms 
with respect to increasing white presence at TSU. These 
modifications prompted another round of negotiations which 
focused on the appropriateness of desegregation goals and 
timetables for TSU.4

Richardson et al ♦ recite this history of the pro­

4As a result of this round of negotiations prompted by th 
Mcginnis intervenors' insistence upon remedial measures to 
be implemented at TSU, some specific TSU goals were expli­
citly included in the decree. Richardson, et al. acceded to

- 5 -



cess by which the consent decree was forged to demonstrate 
that they have been acutely aware of the kinds of concerns 
that Dr. Terrell is raising.5 Nonetheless, with respect to 
the fairness of the buren imposed upon TSU, Dr. Terrell is 
simply wrong. The goals and timetables for TWI's incor­
porated by reference and the principles which provide the 
context for the Stipulation of Settlement invalidate the 
attempt of any party who would seek to impose unequitable 
burdens on TSU.

CONCLUSION
The district court acted within its discretion when 

approved the Stipulation of Settlement. In any event, 
the Stipulation of Settlement does not single out TSU for 
inequitable imposition of goals and timetables. For these

the inclusion of these references with the understanding 
that they ere to stand in the context of the three prin­
ciples set forth above, and that TSU was not being signled 
out for disparate burdens to be borne by institutions of 
higher education. Desegregation goals have previously been 
set by the Desegregation Monitoring Committee for all state 
institutions of higher education. Goals currently exist for 
racially identifiable white institutions. (See Attachment A) 
They are incorporated by reference into the Stipulation of 
Settlement in paragraphs 1(B) and 11(B), and are subject to 
modification pursuant to those paragraphs. If those goals 
are not met, TSU cannot be expected to meet its goals —  
because in that event TSU could not meet its goals without 
reduction of the statewide presence of black students and 
faculty, in violation of paragraph 1(A) of the Stipulation.
5Richardson et al. understand how on its face the stipula­

tion of settlement may appear to unduly burden TSU. That 
appearance is a function of the peculiar posture of the par­ties in this litigation and the manner in which the dual 
negotiations (i.e. Richardson et al. with the State on the

-  6 -



reasons, plaintiffs/intervenors-appellees Richardson et al. 
pray that this Court enter judgment against appellant Dr. 
Terrell.

Respectfully submitted,

7
AVON N. WILLIAMS, JR. 
RICHARD H. DINKINS
203 Second Avenue North 
Nashville, TN 37201 
(615) 244-3988
JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT III 
JOEL BERGER 
THEODORE M. SHAW 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900
Attorneys for Plaintiffs/lnter- 
venors-Appellees Raymond 
Richardson, Jr., et al.

statewide desegregation of TWI's and enhancement of TSU and Mcginness et. al. and the State on increased wh-it- presence at TSU) proceeded.
7



CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the
foregoing Brief of Plaintiffs/lntervenors-Appellees Raymond 
Richardson, Jr., et al. has been mailed, first class postage 
prepaid, to Mrs. Aleta G. Arthur, 31 Wentworth Street, 
Charleston, SC 29401; John L. Norris, Esq., Hollins, Wagster 
and Yarbrough, P.C., 8th Floor, Third National Bank 
Building, Nashville, TN 37219; R. Stephen Doughty, Deputy 
Attorney General, 450 James Robertson parkway, Nashville, TN 
37219; Nathaniel Douglas, Esq., Ms. LaVern Younger and Ms. 
Mirian R. Eisentstein, Room 7732, General Litigation 
Section, Civil Rights Division, U. S. Department of 
Justice, Washington D. C. 20530; Joe B. Brown, Esq., United 
States Attorney, 879 U.S. Courthouse, Nashville, TN 37203; 
Carl A. Cowan, Esq., 1100 Crestview St., S.W., Knoxville, TN 
37915; and Julian W. Blackshear, Jr., Esq., Suite 1000, 
Parkway Towers, 404 James Robertson Parkway, Nashville, TN 
37219; and Ernest Terrell, pro se, P. 0. Box 1254,
Martinsburg, WV 25401,

THEODORE M. /SHAW 
Attorney for Plaintiffs/ 
Intervenors-Appellees Raymond Richardson, Jr., et al.

8



ftrr/}o^w?/yr A

Set forth below are the current objectives for student 
desegregation of Tennessee's institutions of public higher
education, contained in Table I of the December 30, 1983 De-

(docket no. 98)
segregation Progress Report*submitted to the Court by the 
Tennessee Desegregation Monitoring Committee. These objectives 
are subject to change pursuant to Paragraphs 1(B), 11(B) and 
II(C) of the Stipulation of Settlement.
Institution

State Board of Regents Universities
Austin Peay State Univerisity
Undergraduate
Graduate
East Tennessee State University
Undergraduate
Graduate
Medicine
Memphis State University
Undergraduate
Graduate
Law
Middle Tennessee State University
Undergraduate
Graduate
Tennessee State University
Undergraduate
Graduate
Tennessee Technological University
Undergraduate
Graduate

Goal 1986 
% Black

Demographic 
Long-Range < 

% Black

15.4
7.5 10.4

.... 2.8
— 2.1

5.0 15.8

22.2 40.3
16.0 35.3
8.0 15.8

9.8 12.3
8.1 10.7

58.0 *
32.1 26.9

3.4 6.8
2.3 2.5

; 11lement sets a 1993
interim objective of 50% white undergraduate full-time equivalent 
enrollment, and establishes guidelines for calculating future 
long term objectives.



Institution Goal 1986 
% Black

Demographic 
Long-Range Goals 

% Black

Community Colleges 
Chattanooga State 
Cleveland State 
Columbia State 
Dyersburg State 
Jackson State 
Motlow State 
Roane State 
Shelby State 
Volunteer State 
Walters State
University of Tennessee System

UT Knoxville 
Undergraduate 
Graduate 
Law
Veterinary Medicine
UT Chattanooga
Undergraduate
Graduate
UTCHS
Undergraduate
Graduate
Medicine
Dentistry
Pharmacy
UT Martin
Undergraduate
Graduate

15.0 18.3
3.5 5.8
9.0 10.5
15.0 19.1
16.0 22.6
4.7 6.2
3.7 3.7

41.7 *41.7
5.0 11.9
__ 3.3

8.5 10.6
7.1 11.0
3.2 16.0
0.5 16.0

15.0 18.1
8.0 16.0

8.0 22.0
4.2 20.0
3.5 16.0
4.0 16.0
4.0 16.0

19.7 19.7
14.0 14.0

The 1983 Desegregation Progress Report (Table I) also 
contains numerous goals for desegregation of faculty and 
other employees at Tennessee's institutions of public higher 
educat ion.