Northcross v. Memphis City Schools Board of Education Brief for Plaintiffs-Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO. 72-1630

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Appellees,

vs.
BOARD OF EDUCATION OF THE MEMPHIS 
CITY SCHOOLS, et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

BRIEF FOR PLAINTIFFS-APPELLEES

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
URAL B. ADAMS, JR.525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees



TABLE OF CONTENTS
Page

Issues Presented For Review ............................  1
Statement ..............................................  2
ARGUMENT

Introduction ........................................  2
I. “Good Faith" .....................................  2
II. Residential Segregation in Memphis .............  11
III. The Busing Issues .............................  25
IV. The Memphis Plan: Continued Segregation .........  39

CONCLUSION.............................................  41

l



Page
Cases

Acree v. County Bd. of Educ. of Richmond County,
336 F. Supp. 1275 (S.D. Ga.), aff'd and
remanded, 458 F.2d 486 (5th Cir. 1972).... 25

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) ....................................  4, 5n

Bradley v. School Bd. of Richmond, 382 U.S. 104
(1965).........................................  7n

Bradley v. School Bd. of Richmond, No. 72-1058
(4th Cir., June 5, 1972) .....................  4n

Bradley v. School Bd. of Richmond, 325 F. Supp. 828
(E.D. Va. 1971) .............................. 4n

Brewer v. School Bd. of Norfolk, 456 F.2d 943 (4th
Cir.), cert, denied, 40 U.S.L.W. 3544 (1972) . . 33, 37

Brewer v. School Bd. of Norfolk, 397 F.2d 37
(4th Cir. 1968) ..............................  15n

Brown v. Board of Educ., 347 U.S. 483 (1954) . . . .  2,3,6,17,20n,22n
Brown v. Boardcf Educ., 349 U.S. 294 (1955) . . . . .  3, 5n
Davis v. School Dist. of Pontiac, 443 F.2d 573

(6th Cir.), cert, denied, 404 U.S. 913 (1971) . 4n, 15
Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th

Cir. 1966), cert, denied, 389 U.S. 847 (1967) . 12, 33
Green v. County School Bd. of New Kent County,

391 U.S. 430 (1968) ..........................  2, 4, 40
Kelley v. Board of Educ. of Nashville, 2 Race Rel.

L. Rep. 970 (M.D. Tenn. 1957) ................ 3
Kelley v. Metropolitan County Bd. of Educ., No.

71-1778 (6th Cir., May 30, 1972)..............  3, 4n, 12, 33

TABLE OF AUTHORITIES

i i



TABLE OF AUTHORITIES (cont'd)

Page
Mayor and City Council of Baltimore v. Dawson,

350 U.S. 877 (1955) ..........................  4n
Monroe v. County Bd. of Educ. of Madison County,

439 F. 2d 804 (6th Cir. 1971)..................5
Northcross v. Board of Educ., 397 U.S. 232 (1970) . . 5n, 9
Northcross v. Board of Educ., 333 F.2d 661 (6th

Cir. 1964)....................................  37n
Plessy v. Ferguson, 163 U.S. 537 (1896)............  20n, 40
Robinson v. Shelby County Bd. of Educ., 442 F.2d

255 (6th Cir. 1971) .......................... 4n
Robinson v. Shelby County Bd. of Educ., 311 F.

Supp. 97 (W.D. Tenn. 1970), remanded, 442 
F•2d 255 (6th Cir. 1971), on remand, 330 F. Supp.
837 (W.D. Tenn. 1971), appeal pending ........  16, 30

Rogers v. Paul, 382 U.S. 198 (1965)................  7n
Sloan v. Tenth School Dist. of Wilson County, 433

F.2d 587 (6th Cir. 1970).....................  15n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971) ................................ 2,5,8n, 11,13,14,
15n,26,38

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F.
Supp. 1358 (W.D.N.C. 1969), 431 F.2d 138 (4th 
Cir. 1970).................................... ...

Taylor v. City of Millington, Civ. No. C-71-249
(W.D. Tenn., April 25, 1972).................  23n

United States v. Board of Educ. of Webster County,
431 F.2d 59 (5th Cir. 1970) ..................  40n

ii i



TABLE OF AUTHORITIES (cont'd)

Page
United States v. Board of Educ., Tulsa, 429 F.2d

1253 (10th Cir. 1970) ........................ 12
United States v. Greenwood Municipal Separate

School Dist., No. 71-2773 (5th Cir., April
11' 1972)   33, 37

Watson v. City of Memphis, 373 U.S. 526 (1963) . . . 4n
Wright v. Council of the City of Emporia, 40 U.S.L.W.

4806 (1972) .................................. 2

Other Authorities
A. Bickel, The Least Dangerous Branch (1962) . . . .  4n
P. Freund, The Supreme Court of the United

States (1961) ............................ 4n

iv



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

NO. 72-1630

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Appellees,

vs.
BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

BRIEF FOR PLAINTIFFS-APPELLEES

Issues Presented for Review

All of the issues which defendants have described as 
raised by their appeal amount to nothing more than the 
following single question:

Did the district court apply incorrect legal standards 
or make clearly erroneous findings when it concluded that 
the Board had raised no cognizable legal excuse for its total 
failure to desegregate the Memphis school system?



Statement

We respectfully refer the Court to the Statement of 
Facts and procedural history contained in Appendix A of the 
opening Brief for Plaintiffs-Cross-Appellants heretofore
filed.

ARGUMENT 

Introduction

Defendants seek to support maintenance of the status 
quo in Memphis by substituting claims of good faith for 
effective desegregation by presenting legal arguments 
which have never found acceptance before this Court, any 
other Court of Appeals, or the Supreme Court and by making 
a variety of policy arguments against desegregation which 
are irrelevant to the constitutional duty of the Board under 
Brown, Green and Swann.

I. "Good Faith"

Defendants commence their opening brief with a renewed 
claim of "good faith." While we think the Supreme Court has 
made it abundantly clear —  repeated in its decisions from 
Green v. County School Bd. of New Kent County, 391 U.S. 430 
(1968) through Swann v. Charlotte-Mecklenburg Bd. of Educ..
402 U.S. 1 (1971) and Wright v. Council of the City of Emporia. 
40 U.S.L.W. 4806 (1972) —  that a finding of constitutional
compliance must rest upon the achievement of actual desegre-

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gation rather than the fact that a school board has managed 
to avoid a contempt citation for wilfully disobeying a district 
court order, we shall take up the Board's claim since so much 
of its brief rests not upon the record herein but upon a sort 
of "feeling" or "mood" about itself which it attempts to 
create by such self-serving comments.

We very respectfully suggest that the starting point 
for the measurement of the Board's good faith claim is the 
institution of this lawsuit in 1960. Despite the passage 
of six years after the Supreme Court's declaration that the 
kind of educational system which Memphis operated was unconsti­
tutional, Brown v. Board of Educ., 347 U.S. 483 (1954), and 
of five years since the implementing decision in Brown II,
349 U.S. 294 (1955), the Memphis school system remained 
rigidly segregated by race. Administration, planning and 
construction functions all continued toward unabashedly 
segregationist ends.

The Board has at least implied that prior to the insti­
tution of this lawsuit, it was concerned with desegregation 
and would have moved to execute policies toward that end but 
for various Tennessee statutes such as the Parental Preference 
Laws. It is important to note, in this regard, that such 
statutes were declared unconstitutional as early as 1957.
Kelley v. Board of Educ. of Nashville, 2 Race Rel. L. Rep. 970 
(M.D. Tenn. 1957). See Kelley v. Metropolitan County Bd. of 
Educ., No. 71-1778 (6th Cir., May 30, 1972), slip op. at p. 5.

-3-



It is typical of this school system that a lawsuit directed 
against it specifically was necessary, however. The Board 
has never taken it upon itself to act cognizantly of legal
requirements unless they had been expressly litigated against

1/it in this case; whether the legal principles were established 
in a case involving a sister city in Tennessee or by the United 
States Supreme Court was irrelevant.

Thus defendants have consistently emphasized the Supreme
Court's function as dispute-settler and minimized its role in

2/the establishment of a consistent body of national law. They 
earlier argued that in Green, supra, and Alexander v. Holmes
County Bd. of Educ., 396 U.S. 19 (1969), the Supreme Court

2/was saying nothing of consequence for Memphis. Now they

1/ it is interesting to compare the intransigence of city 
authorities some eight years after Mayor and City Council of 
Baltimore v. Dawson, 350 U.S. 877 (1955). See Watson v. City of Memphis, 373 U.S. 526 (1963).
2/ See A. Bickel, The Least Dangerous Branch 247 (1962); P.Freund, The Supreme Court of the United States 12-18 (1961).
3/ In their latest brief defendants ignore this Court's recent 
decisions in Kelley v. Metropolitan County Bd. of Educ., No. 
71-1778 (6th Cir., May 30, 1972); Davis v. School Dist. of 
Pontiac, 443 F.2d 573 (6th Cir.), cert, denied, 404 U.S. 913 
(1971); and Robinson v. Shelby County Bd. of Educ., 442 F.2d 2 55 (6th Cir~ 1971) and instead gather together those few 
decisions of the last year in which federal courts held that 
school desegregation was not constitutionally required. Both Calhoun v. Cook and Goss v. Board of Educ. of Knoxville, 
cited by defendants, are on appeal; and Bradley v. School Bd. 
of Richmond, involving issues utterly divorced from the factual 
context of this appeal, may be reviewed by the Supreme Court 
of the United States. The latter case is interesting, however, 
for the fact that the Fourth Circuit approved of a district 
court order requiring the transportation of 23,000 students 
by a school system which had never previously furnished bus 
services (except in an area of annexed territory). Bradley v. 
School Bd. of Richmond, No. 72-1058 (4th Cir., June 5, 1972), 
slip op. at p. 15; id.. 325 F. Supp. 828, 840 (E.D. Va. 1971).

-4-



contend that Swann v. Charlotte-Mecklenburg Bd.ofEduc., 402
U.S. 1 (1971) does not support the determination of the district
court in this case to employ busing as a means of desegregating
Memphis because Charlotte had previously afforded some of its

4/students free transportation, while Memphis did not. A 
similar contention previously has been urged before this Court 
without success. Monroe v. County Bd. of Educ. of Madison 
County. 439 F.2d 804 (6th Cir. 1971).

In this vein, defendants point to the Supreme Court's 
description of one technique for preserving segregation: closing 
inner city schools in transition neighborhoods while engaging 
in extensive new construction programs in suburban areas far 
from any black population. Swann, supra, 402 U.S. at 20-21. 
Swann is distinguishable in its entirety, defendants intimate, 
because they closed two formerly black Shelby County schools 
after annexation and assigned their pupils to white schools. 
Apart from the lack of factual support for this claim, the 
Supreme Court's comments were intended to be exemplary rather 
than exhaustive; in any event, of 76 Memphis schools constructed 
since 1954, 72 opened with enrollments more than 90% of one 
race. (I XX 55, 55A).

In specific support of their claim of good faith, defen­
dants point to "[t]he closing of the former Patterson School
4/ Such circumstances were precisely those which led the 
Supreme Court in Brown II to allow time for adjustment. But 
the total failure of school systems such as this one to prepare 
themselves for the necessary changes compelled the Court to 
require that immediate desegregation be the rule, Alexander 
v. Holmes County Bd. of Educ., 396 U.S. 19 (1969), in Memphis 
as elsewhere. Northcross v. Board of Educ., 397 U.S. 232 (1970).

-5-



in 1967 and Getwell School in 1969 ..., " which closings were 
allegedly carried out "voluntarily." (Defendants' Brief at 5). 
Patterson (annexed in 1950) was closed at a time when the 
United States Department of Justice was threatening to inter­
vene in this case for the purpose of seeking further relief.
(See I x 38C). Continued operation of this small all-black 
school, situated in the shadow of the (all-white) White 
Station school 14 years after Brown I, can hardly be viewed 
as an act of good faith. The ultimate closing is more properly 
viewed as an effort by the Board to avoid further desegre­
gation at the behest of the Department of Justice by elimina­
ting one of the system's most flagrant examples of the contin­
uing dual system.

Similarly, the Getwell school closing could not by any 
stretch of the imagination be deemed voluntary. During the 
1968-69 school year, 50 black and no white students were 
enrolled in Getwell School, although 48 white pupils lived in 
its attendance zone but were transferring to white schools 
under the Board's free-transfer policy. Only after plaintiffs 
urged elimination of minority-to-majority transfers, with 
particular emphasis on Getwell (2/6/69 Tr. 410), did the

5/Board agree (in its post-hearing brief) to close the school.

I'he Getwell school issue was revived recently when defendants 
proposed to reopen the school to accommodate an influx of 
students (black) from a newly-opened public housing project in 
the area. (11/5/71 Tr. 14-19). And this proposal was made 
despite defendants' subsequent admission that Getwell was a 
vestige of the dual system. (I Tr. 161, 337-45, 739-40). Only 
vigorous opposition by plaintiffs (11/5/71 Tr. 18, 30-32) 
resulted in the adoption of an alternative which enhanced desegregation.

-6-



(May 15, 1969 Opinion at 5).

The Board next urges as evidence of its good faith the 
construction of Northside High School (opening in 1967) as 
"another attempt on the part of this Board to create stable 
desegregation in a transitional area by using the magnet 
school concept." (Defendants' Brief at 6). But the record 
belies this claim. According to the testimony of a white 
real estate appraiser, Northside was built "in the middle of 
an all-black ghetto" (I Tr. 1539), an area of Memphis which 
had been designated by the real estate industry as early as 
1960 for black occupancy (I Tr. 1531-32, 1535-36). Further­
more, its attendance zone was drawn in such a manner as to 
preclude any possibility of substantial integration at North- 
side. (I Tr. 1477-81, 1486-87, 1493-94).

At page 10 of their brief defendants state that they 
"voluntarily and without court order, ... began faculty 
desegregation ...." This statement is a misrepresentation
of the record. The tact is  that f a c u l t y  desegregation began

6 /
with the 1966-67 school year {?/<:■/69 Tr.  284-85; May 15, 1969 
Opinion at 8; 312 F. Supp. at 1160) as the result of an order 
entered July 29, 1966 (following threatened intervention by 
the Justice Department) requiring that thereafter all assign-

6./ After this Court had held in 1964 that plaintiffs had 
standing to challenge faculty segregation (333 F.2d 661, 666 
(6th Cir. 1964)), and after the Supreme Court's decisions in 
Rogers v. Paul, 382 U.S. 198 and Brad ley v. School Bd. of
Richmond, 382 U.S. 104 (1965).

-7-



merits of newly employed faculty or reassignments of present 
faculty were to be made without regard to race. (2/6/69 Tr. 
306; I X 38C). Although at least 800 new teachers were hired 
each year after 1966, only 441 teachers (of a total faculty of 
5200) were in minority race assignments at the time of the 
February 6, 1969 hearing. (2/6/69 Tr. 329-30; May 15, 1969 
Opinion at 8). Faculty desegregation was accomplished only 
by the district court's 1969 and 1970 orders setting minimum 
ratio requirements, not by the "good faith" actions of defen­
dants. In fact, the district court specifically found that
defendants had not publicized the majority-to-minority transfer

1/preference as required by its 1969 order (312 F. Supp. at 
1159-60), nor had they carried out faculty desegregation 
procedures in "good faith." 312 F. Supp. at 1161.

More typical of this Board's "good faith" is its present 
position that the continuing racial identifiability of schools 
in the Lester-Treadwell-Carpenter-East area is the only 
"vestige of the dual system" remaining in Memphis. Is that

I T  On this appeal defendants argue that no further remedial 
steps need be taken in Memphis because the majority-to-minority 
transfer requirement, with free transportation, assures that 
no member of plaintiffs' class will be denied his constitutional 
rights. (See Defendants' Brief at 11, 54). This claim must 
be weighed against defendants' past bad faith conduct in imple­
menting the minimal requirements of majority-to-minority 
transfers. In addition to their failure to give adequate 
notice of the transfer preference, defendants refused, in the 
face of Swann's clear holding, to provide free transportation 
for those seeking majority-to-minority transfers (11/5/71 Tr. 
21-27), and the district court had to order compliance with 
thrs clear, yet minimal, legal requirement. (Order of July 
27, 1971).

-8-



what: defendants told this Court in 1969 when they succeeded 
in obtaining a declaration (which the prayer terminating their 
brief seeks once more) that Memphis was then a unitary system?

We urge this Court to keep this salient fact foremost 
in its contemplation during its consideration of this appeal 
and cross-appeal: in 1971-72, 87.7% of all black students in
the Memphis public schools attended schools that were 90% or

8/more black. (Response to Requests for Admission, No. 74).
That is the school system which defendants would have this 
Court declare unitary.

In 1970, the Supreme Court held, upon examination of
1969-70 enrollment figures revealing that 93% of Memphis' black

9/students attended 90%-t black schools, that substantial 
evidence supported the district court's finding that Memphis 
was not a unitary school system. Northcross v. Board of 
Educ., 397 U.S. 232, 235 (1970). The degree of change from 
those conditions represents nothing but continued tokenism.
See generally. Brief of Plaintiffs-Cross-Appellants in No. 
72-1631.

We cannot close the discussion of the defendants' "good 
faith" without pointing out to the Court that the Board's 
interest in achieving an end to discrimination has been and

17 ~  76.4% of white students attended schools 90% or more white. (ibid.)
9/ Four copies of the Petition for a Writ of Certiorari are being tendered to the Clerk along with this Brief.

-9-



remains invisible to black Memphians. After the election 
this school year of the first three black members of the

10/Board, those new members have often and vocally dissented
from the white majority's adoption and execution of policies
which hardly demonstrate good faith or an interest in deseqre-

11/gation. Surely a Board so involved for so long in searching 
for the means to desegregate its school system should have
been able to find greater common ground with its newly elected

12/black members!
Il1
I

—  See, e.g. , Submission of Statements of Individual Board Members, March 3, 1972.
11/ Nor can we believe assertions of good faith from Board 
attorneys who attempted to exclude a lawfully elected black 
Board member from a school board conference. (5/23/72 Tr 26 50) .

•

12/ The three black Board members voted against the decision 
to appeal the district court’s order implementing Plan A but 
were joined by only one white Board member: its President, who 
has served on the Board throughout this litigation and who 
stated that the court had not ordered more than was feasible 
for Memphis. The other five white Board members voted to appeal.

-10-



II. Residential Segregation in Memphis

A great deal of defendants’ brief is devoted to arguments 
concerning the existence, scope and causes of residential 
segregation in Memphis. Much of this discussion is directed 
toward a legal theory never propounded by the plaintiffs or 
the district court and irrelevant to this litigation.

Defendants proceed as though it has been plaintiffs' 
argument that school desegregation is required in Memphis only 
because there is housing segregation for which the entire or 
major share of blame is the school board's.

Swann explicitly eschewed any such theory and we did 
not urge it below nor do we in this Court. The district court 
itself did not purport to base either its December 10, 1971 
or April 20, 1972 opinions upon such a standard. The issue 
described by the district court's September 28, 1971 Order 
Pertaining to Hearing was as follows:

2. Are the one race schools, or virtual one 
race schools, genuinely non-discriminatory; 
that is, are they not the result of present 
or past discriminatory action on the part of the defendants or their predecessors?

It was the Board's defensive claim on this issue, that its 
schools are segregated only because of racially separate 
housing patterns, which brought the subject of residential 
segregation into this lawsuit.

-11-



Thus the Board has claimed, at least since it finally 
eliminated the last dual overlapping attendance zone in 1966, 
that it operates a non-discriminatory "neighborhood school 
system" and any racial imbalance in its schools is purely 
fortuitous and entirely unrelated to its past or present 
actions. However, the long-standing maintenance of segregated 
schools in all of Tennessee, including Memphis, mandated by 
state constitutional and statutory prohibitions (see Kelley 
v. Metropolitan County Bd. of Educ., supra, slip op. at pp.
5, 28-30), as well as defendants' continuing discriminatory 
school site location and construction practices (see infra) 
clearly distinguish this case from one in which virtually 
unaltered, neutral, non-racial single geographic attendance 
zones have always been used for student assignment. Compare 
Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U.S. 846 (1967) with united States v. Board 
of Educ., 429 F.2d 1253 (10th Cir. 1970).

It was the Board's defensive claim that it contributed 
in no way to either existing school or existing housing segre­
gation in Memphis which led plaintiffs to demonstrate defen-

13/
dants' involvement in housing segregation —  although
we took the position in the district court and maintain it here,

n r - Indeed, the Atlanta testimony of Dr. Taeuber, to which 
defendants point, was introduced only to rebut the Board's oft- repeated claim that such little school desegregation as Atlanta 
suffered to occur was responsible for the very significant 
racial change in its residential population. unfortunately, 
the district court opinion overemphasizes portions of Dr.
Taeuber's testimony shorn of the context.

-12-



that in Memphis the result of that particular inquiry is 
irrelevant:

The problem posed by the Court's second 
issue here has arisen in the wake of Swann's 
directive that " [t]he court[s] should 
scrutinize such [racially disproportionate] 
schools, and the burden upon the school 
authorities will be to satisfy the court[s] 
that their racial composition is not the 
result of present or past discriminatory 
action on their part." 402 U.S. at 26. This language simply does not constitute a 
limitation on the strict guideline . . .
that "[t]he district judge or school auth­
orities should make every effort to achieve the greatest possible degree of actual 
desegregation, taking into account the prac­
ticalities of the situation." [Davis, 402 
U.S. at 37] Swann clearly contemplates that 
this "effort" to achieve thorough desegregation 
must be made in every case. Only after this 
effort has been made is it permissible to have "schools that are substantially disproportionate 
in their racial composition." To state it 
another way, the only way a school board can 
"satisfy the court that . . . [the one-race
schools'] racial compos ition [s] [are] not the 
result of present or past discriminatory 
action on their part" is by a showing that the 
school board has made "every effort to achieve the greatest possible degree of actual deseg­
regation" and that the one race schools are the 
result of "the practicalities of the situation." 
Only then will the racial composition of each school be "genuinely non-discriminatory."

(Plaintiffs' November 12, 1971 Pre-hearing Brief, at pp. 7-8).
The degree to which actions of the school board may have
contributed to housing segregation aside, it is very clear
on this record that Memphis school assignments were made
on the basis of race, and the case is therefore governed by
the remedial principles of Swann.

-13-



We do not reach in this case the question 
whether a showing that school segregation 
is a consequence of other types of state 
action, without any discriminatory action 
by the school authorities, is a constitu­
tional violation requiring remedial action 
by a school desegregation decree. (emphasis 
added)

14/(402 U.S. at 23). Thus, the district court correctly
stated the standard by which plans were to be judged in its
April 20, 1972 opinion (at p. 13):

The second area considered in Section V of 
the Swann opinion was entitled "One-race 
Schools". The Supreme Court noted that the 
"district judge or school authorities should 
make every effort to achieve the greatest 
possible degree of actual desegregation and 
will thus necessarily be concerned with the 
elimination of one-race schools." However, 
the Court did note that in some circumstances 
certain schools may remain all, or largely, 
of one race until new schools can be provided 
or neighborhood patterns change. The Court 
noted that, in this situation, a provision 
for optional transfer of students in the maj­
ority racial group to other schools where 
they will be in a minority is an indispens­
able remedy to lessen the impact of the state 
imposed stigma of segregation. This optional 
plan must provide free transportation and space in the schools to which the students 
desire to transfer.

14/ Although there was considerable evidence of housing segre­
gation resulting from discrimination accepted by the lower courts, see Swann v. Charlotte-Meeklenburg Bd. of Educ,, 300 
F. Supp. 1358, 1365-66, 1369 (W.D.N.C. 1969), 431 F.2d 138,
141 (4th Cir. 1970), the Supreme Court did not rely upon 
this evidence because it found relief required by the failure 
to dismantle the dual school system, and it reserved the 
question. Defendants' description of the issue turns the 
Supreme Court's reserved question on its head by excusing even 
gross discrimination unless the entire responsibility for 
all housing segregation is shown to be the school authorities' 
(Brief for Defendants-Appellants at p. 11).

-14-



In any event, the findings in the December 10, 1971 
opinion that the school system had contributed to, aggravated 
and accommodated racially segregated housing patterns in 
Memphis are supported by substantial evidence and are not 
clearly erroneous. Davis v. School Dist. of Pontiac, supra.

Defendants do not challenge the district court's
findings that the segregated housing patterns in Memphis are
the direct product of racial discrimination. Indeed, no
other findings would have been possible on the record developed
below (I Tr. 815-20, 836-41, 843-65, 866-69, 872-74, 889-93,
896-98, 906-12, 923, 924-25, 939-40, 943, 958-66, 1018-21,
1100-05, 1109-21, 1244-51, 1257, 1531-32, 1535-36, 1566-92,
1619-20; 4/1/70 Tr. 1010-13, 1117-20; I XX 30A, 30B, 30C, 31A-
F, 33A-C, 35, 36, 68, 69, 69A, 70, 71, 72, 73, 74, 76, 77, 78,
82). What defendants do appear to challenge, however, are
the district court's findings that the Board "accommodated the

15/white housing discrimination" (Dec. 10 Op. at 7). (See
Defendants' Brief at pp. 27, 28). The general conclusions 
of the district court are based on its findings that the Board's

15/ We say "appear to challenge," because defendants agree with 
the district court's finding that "ft]he proof unquestionably 
establishes that the one-race schools do follow racial housing 
patterns" (Defendants' Brief at p. 11). Defendants thus begin 
their brief by conceding that they have, by their construction, 
attendance and zoning policies and practices, incorporated 
the racial discrimination in housing into the school system.
See Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir.
1968)(cited with approval in Swann, 402 U.S. at 21); Davis v. 
School Dist. of Pontiac, supra; Sloan v. Tenth School Dist. 
of Wilson County, 433 F.2d 587, 589 (6th Cir. 1970) (citing 
Brewer).

-15-



construction, zoning, busing and pupil assignment policies 
have been interrelated with and inseparable from the pervasive 
housing discrimination (Dec. 10 Op. at 5-6, 7, 8, 9, 10, 11,
14, 19, 22-23; see also April 20 Op. at 11-21). These 
findings and conclusions are supported by evidence not merely 
substantial but overwhelming.

As the district court noted, "[bjetween 1950 and 1971,
the City of Memphis increased in size from 97 square miles

16/
to 217 square miles." (Dec. 10 Op. at 5? I Tr. 103).
Memphis is located in Shelby County, Tennessee, a county of 
approximately 750 square miles (I Tr. 766). All of the public 
schools in Shelby County are under the jurisdiction of and 
operated by the Shelby County Board of Education with the 
exception of the public schools within the City of Memphis, 
which are operated by defendants. The Shelby County Board, 
like defendants, historically has operated a dual school system 
pursuant to state law and continuing practice, and which it 
began to dismantle in 1964 (I Tr. 765). See Robinson v.
Shelby County Bd. of Educ., 311 F. Supp. 97 (W.D. Tenn. 1970), 
remanded, 442 F.2d 255 (6th Cir. 1971), on remand, 330 F.
Supp. 837 (1971), appeal pending.

Prior to 1950 Memphis was even smaller in area. When 
the Superintendent of the Shelby County schools came to that 
system in 1929, schools such as Manassas, Treadwell, Messick,

16/ 17.7 additional square miles were annexed on December 31, 
1971, and 25 square miles more are scheduled for annexation 
on December 31, 1972 (I Tr. 103).

-16-



Hollywood, Bethel Grove and Mallory were being operated by 
the County Board, but were annexed to the City in 1929 and 
1930 (I Tr. 766-68; I X 13). The map in the pocket part 
attached to Exhibit 10, prepared by defendants, reflects 
additional areas of Shelby County which were annexed by 
Memphis beginning in 1950; Exhibit 13 reveals the schools 
involved in five of these seven separate annexations since 
1950. The construction policies followed by the Board in 
these annexed areas are typical.

Prior to these annexations, which are discussed in greater 
detail below (pp. 26 - 30 infra), the Shelby County Board of 
Education provided transportation by bus to all pupils in 
each area living more than 1H miles from their assigned schools 
(I Tr. 801-02). Rather than continue the busing in these 
areas, however, defendant Board elected, notwithstanding the 
enormous cost involved and the post-Brown affirmative obliga­
tion to desegregate, to construct new schools and additions 
to existing schools. The following table reflects the cost 
of construction (new schools and additions) by defendant Board 
(or by defendant Board in conjunction with the County Board) 
in areas annexed since the Brown decision (taken from I X 19):

-17-



New Construction Additions[Annexation]
School Name Date Cost Date Cost

[MEMPHIS EAST (1957)]
Avon . . . .  Colonial Jr. 1956 $ 259,989

$237,8311960 201,2501960 60,6891962 49,100Kingsbury . . 
Kingsbury H. 1959 540,999

242,0001959 532,6521960 83,1701965 187,394Macon . . . . 1956 260,660Overton H. • • • 1959 975,509 1961 398,4181963 121,2451967 280,210Richland . . 1957 324,232 1960 303,9421964 36,993Richland Jr. • • • 1960 682,476 1963 167,424Sea Isle . . . 1960 183,6001962 227,720Shady Grove . • • • 1963 411,700 1964 154,499Wells Station 153,402Willow Oaks . • 1957 345,239 1960 124,3401960 94,8601964 129,110

[FRAYSER (1958)]
Brookemeade . • • • 1960 427,309 1966 133,898Corning . . . 1967-68 660,795Delano . . . 1957 296,657Denver . . . 1957 296,426 1963 106,693Frayser H. 194,2871960 362,1651960 374,0191963 84,508Georgian Hills 115,699Georgian Hills Jr. 1959 419,131 1965 142,358Grandview . . 
Hawkins Mill 1965 611,237 227,732
Trezevant H. • • 1960 1046,783 1963 637,1791970 389,713Westside . . . 1963 86,541Westside High • • • 1960 373,870 1960 488,5491963 264,416Whitney . . . 1962 415,847

-18



Additions Date Cost[Annexation]
School Name

New Construction 
Date Cost

[OAKHAVEN-PARKWAY VILLAGE (1965)]
Evans......  1966 $ 632,000 1968 $177,000
Fox Meadows . . . .  1965 529,000Goodlett ..............................  1969 181,072
Newberry ........  1970 665,080
Sheffield ........  1970 765,900
Sheffield H. . . .  1967 3,000,000
Wooddale Jr. . . . 1970 2,621,600
Wooddale H . 1966-7 3,416,585

[WESTWOOD-WALKER HOMES (1968)]
Chickasaw Jr. . . . 1971 2,586,000

[WHITEHAVEN (1969)]
Fairley High ......................Hillcrest High ....................
Lanier Jr.........  1970 2,425,933

[MEMPHIS EAST (RIDGEWAY-BALMORAL)(1969)]
Balmoral ........  1970 637,890
Ridgeway ........  1970 581,787
Ridgeway H........  1970 3,342,429

T O T A L ...................... $ 29,553,063 . . . .$ 8,803,9288,803,928
$ 38,356,991.00

1970 433,274
1970 434,976

Although some of this construction might have been 
necessary, even with the large number of underutilized 
facilities in the system, it is quite clear that much of it 
was economically wasteful and examination of the map and 
census exhibits compels the conclusion that the Board has 
"accommodated" the housing discrimination and further entrenched 
the dual school system. I XX 55 and 55A reflect that the Board

-19



has constructed 76 new schools since 1954, of which only 
four opened with racial minorities of more than 10%: Airways
Jr. (10.1% black), Chickasaw Jr. (85.5% black), Fairley 
High (16.7% black), Northside High (79.9% black). (See I 
Tr. 998-99). Plaintiffs' educational expert concluded that 
the pattern of school construction since 1954 has had the 
clear effect of perpetuating school segregation (I Tr. 1317- 
26, 1300-02; I XX 86A, 86B, 86C [school construction overlays]; 
I XX 52A, 52B, 52C, 52D [racial census maps for 1950, 1960,
1967 and 1970]). I X 37A contains the Board's 1959-60-61 
Building Program which is broken down into a "White" program
(total cost: $8,531,219) and a "Negro" program (total cost:

12/$5,773,532).

And the dual construction pattern continues. Next year
defendants will open the new Melrose High School (total
cost: $5,220,944) and the new Hamilton High School (total
cost: $7,040,230) in locations which insure that they will

18/
be black schools. (I Tr. 241, 682-84, 687-88; II X 24).
I X 44 contains the 1971 an3 1972 Capital Improvement Programs
n r  In 1961 the system was 47.2% black (Response to Requests for Admission, No. 74), yet black schools were allotted only 
40.4% of the building program budget. At the time this lawsuit 
began, six years after Brown I, Memphis was still not in com­
pliance with Plessy v. Ferguson, 163 U.S. 537 (1896).
18/ The new Melrose is affected by Plan A (boundary changes), 
but even then it is projected to be 86.8% black. Also witness 
the opening last year (1971-72) of Lanier (5.7% black) and 
Chickasaw (89.7% black), two new junior high schools in the 
southwest part of the city, which have contiguous attendance 
zones but which are both located on the edges of their respec­
tive zones furthest away from the other school's zone —  and 
furthest away from pupils of the opposite race (I X 2; I Tr.

(cont'd)
-20-



Most of theof $15,500,000 and $12,800,000, respectively, 
construction will further impact existing racial isolation, 
and none of it will alleviate segregation.

But the Board has done even more to "accommodate" racial 
discrimination in housing (and consequently in schooling); 
it has indeed become an "active partner in the entire process." 
Related to the segregation-oriented construction program 
just described are the Board's historic and present attendance 
zoning practices. Prior to initiation of this lawsuit the 
Board had maintained the state-mandated dual system of pupil 
assignment by means of separate, overlapping attendance zones 
for the black and white schools. Under a stairstep plan the 
Board finally eliminated the dual high school zones effective 
with the commencement of the 1966-67 school year (I X 1049- 
62, 1286-87). As was demonstrated to the district court with 
the use of zone line overlays and maps reflecting the racial 
distribution of the Memphis population according to the 1950, 
1960, 1967 and 1970 U. S. Census compilations, the dual over­
lapping attendance zone system, coupled with school construction

18/ (cont'd) 685-87). Under Plan A, however, the two schools 
would be paired; but the point is that $5*5 million should not have been spent separating them in the first place.
19/ Since 1960 the Board has averaged spending over $10 million a year in school construction (2/6/69 Tr. 253, 268; 4/1/70 Tr. 869; I Tr. 676-77).

-21-



practices, played a significant role in determining housing 
choices (I Tr. 1021-37, 1326-38, 1381-85, 1451-57, 1465-70;
I XX 47B, 48C, 83, 83A, 84, 84A).

Of even greater significance to the continued existence 
of the dual system are the new zone lines drawn by defendants 
upon elimination of the dual zones. Under the dual zone 
operation the zones were quite large; often black attendance 
areas were so large as to encompass within their boundaries 
six or more white attendance areas of the same grade level, 
and the same was true of white zones in relation to black 
attendance areas (I Tr. 1021-37). The dual zones were 
eliminated by creating single zones for each school in the 
system, and it was in this process that defendants carried the 
dual system forward into the purported unitary system: the
single zone lines, almost without exception, were drawn by 
contracting the former black and white zones to conform almost 
precisely with residential segregation lines, thereby 
continuing to exclude whites from the black schools and blacks 
from the white schools (I Tr. 1390-1402, 1410-11, 1458-63,
1471-76, 1049-62; I X 49B, 50B, 5lB). Defendants concede that 
they have not drawn zone lines to maximize desegregation (I 
Tr. 214-15, 739); the 1966 Desegregation Plan (I X 38C) under 
which most existing zones were drawn makes no mention of doing so.
20/ The Superintendent admitted that the location of schools 
as of 1954 had made desegregation more difficult (I Tr. 692-93). 
And, as illustrated earlier in the text, the Board's post-Brown 
construction practices have followed the pre-Brown pattern(See 2/6/69 Tr. 26-27).

20/

-22-



Over the years the Board has worked closely with the
IVMemphis Housing Authority (I Tr. 927-29), which operated 

public housing projects under an overt policy of segregation 
until 1965, with only ineffective policy modifications since 
then (I. Tr. 909-12). One example should suffice. Hurt 
Village was one of the white-only projects built and operated 
by MHA. The white school (Pope) which served Hurt Village, 
however, was not as close and convenient as a nearby black 
school (Grant). In 1960 defendant Board, in order to 
accommodate the whites in Hurt Village, reversed the racial 
designations of the two schools (and exchanged their names as 
well), so that overnight the formerly white-only school took
on the name and function of the formerly black-only school

22/and vice versa (I. Tr. 271-78, 906-09, 1401-02).

Every witness in this case who has been questioned on 
the subject has conceded or testified that the racial composi­
tion of schools and school locations and attendance policies 
do have an effect on individual housing choices (I. Tr. 442, 
952-54, 1101-02, 1105-09, 1498-1501, 1529-31, 1612-13; 4/1/70 
Tr. 156, 158, 848-60, 868-69, 873, 877).
21/ The Board has also worked Jointly in the acquisition of 
school sites with the Memphis Park Commission (I Tr. 669-71), 
which in past years condemned, allegedly for park purposes, 
tracts in white neighborhoods which had been purchased for 
black residential development (I Tr. 963; see also U.S. Civil 
Rights Commission, Hearings - Memphis (1962)). School sites 
are also selected in conjunction with urban renewal projects 
(I Tr. 416-19, 941-42, 77-78), which compounds the segregatory 
effect of defendants' construction policies.
22/ In Taylor v. City of Millington, Civ. No. C-71-249 (W.D. 
Term., April 25, 1972)(Wellford, J.) the court found that the 
M-llington Housing Authority deliberately located white and 
black public housing projects near established racially identifiable schools.

-23-



The district court's findings cannot be evaluated solely 
on the basis of a reading of the transcript, let alone upon 
the basis of defendants' selective excerpting in their brief 
—  but must include examination of the demonstrative exhibits 
placed before the district judge. Such a fair and compre­
hensive canvass of the record will compel the conclusion 
that there is substantial evidence to support the lower 
court's determination as to the interrelationship between 
Board actions, housing and school segregation. Although 
defendants seek to attack Dr. Taeuber's testimony without even 
describing it and then assert that the district court did not 
rely upon it anyway, we invite the Court to consider all of 
Dr. Taeuber's testimony.

The district court correctly concluded that defendants 
had failed to carry their burden of showing that they were 
in no way entangled in racially segregated housing patterns 
and practices in Memphis. But the contrary determination 
would have controlled only a threshhold issue, leaving for 
further determination the question whether defendants' incor­
poration of Memphis housing segregation through school zoning 
was in any sense neutral, fortuitous and innocent. Since 
that is emphatically not the case, the district court was 
right in requiring the design of desegregation plans affecting 
every Memphis school —  especially since defendants' position 
has been that it is entirely blameless for all Memphis' 
segregated schools except Lester-Carpenter-Treadwe11-East.

-24-



Ill. The Busing Issues

Under the rubric of three separately-stated issues 
(numbers II, III and IV, which we consolidate here for reply) 
the Board presents "a mishmash and embranglement of ...
[arguments] opposing desegregation of the system" raising
.. ■ 23/"every carping, contumacious objection conceivable." These
arguments are essentially that the Board should not be required 
to implement even such a minimal desegregation plan as Plan 
A, necessitating pupil transportation, because: (1) it has 
never operated a transportation system, and there are "diffi­
culties and dangers of operating a transportation system ..." 
in Memphis; (2) the plan will cause "white flight"; (3) the 
plan would impinge on the educational process by adversely 
affecting "outside activities," after-school jobs and school- 
to-parent relations; (4) school desegregation has no demon­
strated social or educational benefits; (5) teachers will 
have to be reassigned and more white teachers will leave the 
system; and (6) the plan is economically impractical and the 
system cannot afford it.

None of these considerations —  quite aside from their 
substantive accuracy raises a cognizable legal objection 
to constitutionally required desegregation. Insofar as they 
implicate real policy concerns, it is important to keep in

0 3 /—  Acree v. County Bd. of Educ. of Richmond County [Augusta!. 
3o6 F. Supp. 1275, 1279 (S.D. Ga.), aff'd and remanded. 458F.2d 486 (5th Cir. 1972).

-25-



mind the Supreme Court's recognition in Swann, 402 U.S. at 
28, that the Constitution will require plans which are admin­
istratively awkward or bizarre and inconvenient. Such 
practical difficulties as may occur can of course be minimized 
through judicious planning by a truly concerned school system. 
See Acree. supra.

At pages 17 et seq., above, we discussed the territorial 
expansion of Memphis by annexation as it related to defendants’ 
segregatory construction policies and practices. Here we will 
discuss the various annexations as they relate to defendants' 
express and implied claims that they have never provided 
pupil transportation, that they have never "bused to segregate," 
ana that pupils in this system have never utilized transporta­
tion for school attendance purposes, as well as defendants' 
assertions that they have done nothing to cause school segre­
gation.

The 1950 annexation expanded Memphis to the east and 
southeast, taking in the following schools operated by the 
County Board (under the dual system): Douglass (black), St. 
Stephens (black), White Station (white), Patterson (black),
South Park (white), Maple (white), Gragg (white), Grahamwood 
(wnite), Cane Creek (now Dunn) (black). (I Tr. 769-76; I XX 
10 (map), 13) . Sherwood (white) and another school (probably 
Charjean, see I X 13 at 2), although not operated by the 
County Board were built by them pursuant to a joint agreement 
with defendant Board. (I Tr. 777). The black schools in

-26-



this annexed area were elementary schools; black secondary 
students in this area were bused, depending on where they 
lived, to black high schools which remained in the county: 
Neshoba (grades 1-10) at Germantown in the eastern part of 
the county, and Geeter (grades 1-12) in the south. Those 
black students who went to Neshoba through grade 10 were 
assigned to Woodstock, in the northern portion of the county, 
for grades 11 and 12. For these students no bus transportation 
was provided; they traveled to Woodstock on Sunday afternoon 
and lived in a dormitory until Friday night. (I Tr. 772-75). 
(Prior to 1947 or '48 no transportation at all was provided 
for black students, I Tr. 773-74.) The white students in this 
area were also provided bus transportation (I Tr. 775-76).

The next annexation, in 1957, expanded Memphis further 
to the east, taking in Sea isle (white) School, which was 
built jointly by the County and City Boards. Also, defendant 
Board acquired the present Barclair (white) school site from 
the County Board. (I Tr. 776-78).

The next annexation brought the Frayser area into the 
city in 1958, thereby expanding Memphis considerably to the 
north and adding 6,011 students to defendant system. (The 
schools involved in this and subsequent annexations are listed 
on the fifth page of I X 13.) (I Tr. 778-82, 784). There 
were no black schools in this area; black students had been 
bused to Woodstock (north of the Frayser area) (I Tr. 779, 781). 
Several schools were built in the Frayser area under a joint

-27-



building program with defendant Board (I Tr. 779-81) while 
the white students in the area were bused to white schools.
(I Tr. 781-82). After the annexation, defendant Board con­
tracted with the County Board to continue busing black students 
in the Frayser area to the County "black" school, Woodstock. 
(Dec. 10 Op. at 11; I Tr. 1348-49, 1645).

In 1965 Memphis expanded to the southeast, annexing the 
Oakhaven-Parkway Village area and 6,051 public school students. 
All the schools in this area were white, except Getwell; all 
students were provided transportation with the black high 
school students being bused to Capleville School (still in 
the county) and the whites to Oakhaven. (I Tr. 784-87).

In 1968 the Westwood-Walker Homes area was annexed to 
the southwest portion of the city, adding 8,998 pupils to 
defendant system. There were 2 white and 6 black schools in 
this area. (I Tr. 787-90). The County Board had provided 
transportation for both black and white students. (I Tr. 790). 
One of the black schools (Ford) was built, and its site 
provided, in conjunction with the private development of a 
black subdivision. (I Tr. 788-89) .

The Whitehaven area to the south was annexed to the City 
in 1969, along with an additional area to the east (Ridgeway- 
Balmoral area). This annexation added 10,500 pupils to defen­
dant system. There were no black schools in the Whitehaven 
annexation area; transportation was provided by the County

-28-



Boara prior to annexation. (I Tr. 790-94). There were no 
schools in the Ridgeway-Balmoral area annexed at the same time 
as Whitehaven; the pupils in this area were bused to Germantown 
(county) schools. (I Tr. 797).

24/

On December 31, 1971, the extreme southwestern corner of 
Shelby County (bordered on the south by the Mississippi state
line and on the west by the Mississippi River) was annexed to25/
Memphis. This area contains one black school (White's Chapel) 
and one white school (Coro Lake). under court orders in the 
county case, Coro Lake had been desegregated, but, prior to 
this past (1971-72) school year, White's Chapel remained 100%

24/ ——  —
— ' Much of the more vocal opposition to "busing" in Memphis presently emanates from the Whitehaven area. it is interesting to compare how these same white citizens felt about busing 
when Whitehaven was under the jurisdiction of the County Board 
of Education. As the County Superintendent testified, prior 
to the Whitehaven annexation, the county schools were operating 
under a court-ordered freedom-of-choice pupil assignment pro­
vision. The experience under this assignment plan was that, 
parwicularly in the Whitehaven area, pupils would select schools farther than lh miles from their homes, rather than their closer neighborhood schools," so that they could take advantage of the free busing provided by the County Board. (State law 
requires free transportation for any pupil living farther than 
1*5 miles from his assigned school, Tenn. Code Ann. § 49-2201.) 
This practice became so wide-spread that the County Board sought 
and received from the parties and the court (in the county school case) permission to modify the free choice provision so as to 
reduce the massive busing which had resulted. (I Tr. 794-97).
25/ Although all of the annexations since 1950, except the 1957 
Memphis East annexation, have taken place in the middle of 
the school year, the defendant Board, pursuant to agreement 
wita the County Board, has not taken over the operation of 
the schools involved until the pending school year ends. (I Tr 798-99). '

-29-



black. White students were assigned to White's Chapel for
the first time beginning with the past school year when
certain white county students who (by agreement with defendant
and County Boards) had been attending a city school (Westwood)

26/were required by court order to attend White's Chapel. (I 
Tr. 799-800); see Robinson v. Shelby County Bd. of Educ., supra, 
330 F. Supp. at 844-45 (the Memphis Board was joined as a 
party defendant to the county case for the purpose of desegre­
gating White's Chapel).

In these annexed areas the defendant Board and the County 
Board, as the preceding discussion points out, have histori­
cally cooperated in such joint ventures as building programs 
and educational services (one system providing education for 
pupils residing in the other system's jurisdiction). (Also 
see 2/6/69 Tr. 401.) Although the Board has consistently 
chosen to construct new schools and additions rather than 
continue transportation (I Tr. 305-09), and although it has 
begun construction programs in the annexed areas even before 
the effective date of the annexation (I Tr. 309-10, 436, 452- 
53), the Board has had to provide temporary transportation, 
pending completion of new schools, after every annexation.
(I Tr. 763, 433, 435, 436, 736-38). For a recent example,
I X 67 reflects that the Board provided transportation for

JL§/ During 1971-72 all of the high school students in the 
White's Chapel-Coro Lake area attended city high schools 
(Mitchell, Westwood and Geeter) pursuant to agreement between 
the two systems. (I Tr. 812-13).

-30-



220G pupils in 1970-71. (I Tr. 745-49). The largest portion 
of this busing, for example, was the result of the 1969 
Ridgeway-Balmoral annexation. As previously noted, there were
no county schools in this area, the pupils being bused to other

27/schools which remained in the county. When the area came 
under the jurisdiction of defendants in 1970-71 they bused 
the white pupils in this area to white city schools which
were underutilized: 333 pupils were bused to Grahamwood Elemen-28/
tarY/* 332 were bused to Sea isle and Willow Oaks elementary 
schools; 504 were bused to Sheffield High School. (I x 67). 
This past year, of course, defendants were able to eliminate

compulsory busing by virtue of having completed construc­
tion of the new Ridgeway elementary and junior-senior high
schools and Balmoral Elementary School —  total cost*2 9/
$4,562,106.

The school segregation resulting from zoning, busing and 
construction practices has been further maximized by the

s transfer policies. Defendants concede that majority— 
to-majority and minority-to-minority transfers, which have been

-̂ -Z/ During 1971-72, the County Board bused 14,000 of its 23,000 pup—1 enrollment. (I Tr. 803; II Tr. 1160).
28/ The white Grahamwood School is located roughly half-way 
across the city from Ridgeway; Grahamwood is no farther from 
Ridgeway than Melrose and other black schools. (I Tr. 760).
29/ At an annual transportation cost of $50 per pupil, the 
1169 pupils being bused in the Ridgeway-Balmoral area could, 
at the same cost as the new construction, be bused for 78 
years, longer than the average life of a new school. (See 4/1/70 Tr. 157).

-31-



permitted at defendants' request (I Tr. 40), have caused schools
30/which might otherwise be desegregated to become segregated.

(I Tr. 19, 23, 702-07; II Tr. 171, 211-12, 296). The Board's 
"pockets and coves" (optional attendance) policy has had the 
same segregatory effect. (I Tr. 720-24). Further, the transfer 
policies have assisted all-white schools in acting as "magnets" 
to attract whites from racially mixed schools. (I Tr. 37).

One specific example of "busing for segregation" (which 
defendants say they have never done) occurred only last year.
The example involved the busing of black students from the 
black Graves Manor public housing project to the all-black 
Walker School which was woefully overcrowded with 5 portables 
on its site, rather than busing them to the underutilized, but 
76.5% white, Raineshaven School. The Raineshaven alternative 
was rejected by defendants because of racial hostility on the 
part of the Raineshaven white community. (I Tr. 363-82, 740- 
45, 752, 755-56, 908; I X 18). Defendants do concede, however, 
that they have never bused for the purpose of desegregation.
(I Tr. 750-51).

307-The Board allowed over 10,000 pupil transfers last year. 
(I Tr. 26; I X 23). These transfers also affect construction planning. (I Tr. 454-55).

-32-



Whatever may be the responsibility of school authorities 
generally for the acts of other public agencies, see Pea 1 v. 
Cincinnati Bd. of Educ., supra, the Memphis educational auth­
orities are clearly linked to the segregatory busing practices 
of the Shelby County system not only because they are the 
immediate successor to the County Board but also by their 
affirmative participation in the continuation of such programs 
after annexation. Thus defendants are hardly in a position 
to maintain that they have never "bused for segregation" or 
that many of their students are not now attending segregated 
schools as the result of past segregatory busing.

(
Even were this not the case, Memphis would gain no 

immunity from being required to use "any of the tools of 
modern life in carrying out [the] constitutional mandate," 
Kelley, supra, slip op. at p. 27, including busing. While the 
costs of implementing desegregation may be substantial (although 
not in comparison to the Board's expenditures for segregated 
construction, see pp. 18-19 supra), those expenditures must 
be made. Brewer v. School Bd. of Norfolk. 456 F.2d 943 (4th 
Cir.), cert, denied, 40 U.S.L.W. 3544 (1972); United States 
v. Greenwood Municipal Separate School Dist., No. 71-2773 (5th 
Cir., April 11, 1972) .

Insofar as defendants intimate that Memphis is somehow 
unsuited or unsafe for a pupil transportation system, they 
are refuted by their own witnesses. Defendants' school trans­
portation expert, who buses 100,000 pupils daily in 25 school

-33-



systems (including urban systems) in other parts of the 
country (II Tr. 445-46), testified that "geographywise and 
climatewise, it [busing] is much more ideal here [Memphis] 
than other areas" (II Tr. 515). With specific regard to 
safety, a pupil transportation system quite probably will 
ma.<e Memphis' streets safer by reducing the number of parents 
driving their children to and from school during peak hours, 
for, as another of the Board’s witnesses agreed with the 
district court, "the less vehicles you have on the street the 
less accidents you have" (II Tr. 647).

The logistical feasibility of pupil transportation in 
Memphis is further demonstrated by the fact that existing 
Memphis Transity Authority routes serve, within two blocks, 
every elementary school in the Memphis system (II Tr. 760-

31/62; . And the times and distances between schools, based
on existing MTA runs, are quite reasonable (4/1/70 Tr. 1125 
et seq.). In the words of the Board's attorney: "The service
is there to transfer from any school in any part of the city 
to any other part of the city and get there within a 
reasonable length of time" (4/1/70 Tr. 1223-24).

3_ly/ During the 1960-61 school year an estimated 8,300 pupils 
daily rode MTA buses to school; the estimated number for 1971- 72 was 5,562 (II XX 61, 62). An additional 1,024 students 
rode MTA buses during 1971-72 pursuant to the majority-to- 
minority transfer provisions (II x 59). Defendant Board 
maintains a liaison with MTA to coordinate transit routing with school needs and schedules (4/1/70 Tr. 1549).

-34-



The value which defendants place upon public school 
desegregation is demonstrated by their argument that Plan A 
is economically impractical for the Memphis system. The true 
facts are, as we shall demonstrate, that defendants cannot 
economically afford not to implement Plan A.

We do not dispute defendants' statement, at page 40 of 
their brief, that the estimated annual transportation cost 
per pupil is $50 (and that implementation of Plan A will cost 
approximately $700,000), but we do point out that this figure 
is computed on the basis of a Board-owned and operated trans­
portation system —  i.e., the $50 per pupil estimate includes 
both operating expenses and amortized capital outlay (II Tr. 
659-61). The cost of contracting for implementation of Plan 
A with a private transportation company (the manner in which 
defendants, prior to the stay, proposed to implement Plan A,
II Tr. 718; 5/23/72 X 1) may be somewhat cheaper than imple­
mentation via a Board-owned bus system. Golden Arrow Line 32/
Corporation, a private school bus transportation company 
ir. Rochester, New York, has submitted an estimated contract 
price of $752,000 for implementing Plan A  (which price would 
be reduced by $152,000 if the company is able to utilize each

32/ The President of Golden Arrow testified for defendants as 
a school transportation expert (II Tr. 445-62, et seg.); he 
was the only transportation specialist to testify and presum­
ably it was his testimony that influenced the district court's 
conclusion that Plan A was all that was feasible for September implementation (See II Tr. 475-81, 476-78, 480-81).

-35-



bus for four trips per day, rather than three); another 
private company, School Transportation, Inc., of Kansas City, 
Missouri, submitted an estimate for Plan A of $565,758 (5/23/72 
X 1, attached hereto as Appendix A).

While the implementation of Plan A may cost from $565,000 
to $700,000, it also provides counterbalancing savings: the
plan permits the closing of seven elementary schools, allow­
ing defendants to better utilize their facilities (as well '

33/as eliminate some overcrowding problems), thereby resulting
in considerable savings (II Tr. 165, 167, 172, 728-29; April

34/20 Op. at 16, 17; May 5 Order Denying Stay at 5); the plan 
eliminates the need for the construction of at least three

lplanned new schools, resulting in a savings approaching 
$5,000,000 —  proposed new elementary school near the present 
Oakville school (estimated savings, $1,000,000), proposed new 
elementary school in Glenview Park (estimated savings, $800,000), 
and proposed replacement of Merrill (estimated savings, prob­
ably $500,000-$800,000) (II Tr. 172-75, 265-68). And the
35/ I X 18 reveals 19 schools with enrollments larger than 
the rated maximum capacity. In the system as a whole, however, 
there are 33,875 net vacant pupil spaces based on rated 
maximumcapacity, of which 41% are in 90%+ black schools and 
36.5% are in 90%+ white schools (I X 57) .
34/ Although the amount of savings resulting from these 
school closings is not precisely known, it is obvious that 
the amount would be significant: at page 47 of their brief
defendants urge that "[a]nother standing need of the school 
system is the entire area of maintenance and repair of buil­
dings which has perenially been reduced below an adequate level . . . . "

-36-



long-range economics of plan A may be equally favorable, 
providing defendant Board with the means to better utilize 
its under-capacity facilities and generally operate a more 
economically efficient school system.

We would think it clear from the foregoing that imple­
mentation of Plan A is not fiscally unsound, as defendants
claim; nor could Plan A possibly be considered "punishment"

35/(Defendants' Brief at 22), at least in the economic sense.

Putting the argument over the cost of Plan A aside,
however, the real issue was stated by the district judge
during the November hearing: "what are the constitutional
rights of over a hundred thousand children worth?" (I Tr. 643).
Surely the answer, if there is one, is greater than $700,000
in a system with an annual budget of over $98,000,000. In
Brewer v. School Bd. of Norfolk, supra, the Fourth Circuit,
sitting en banc, held that an initial transportation cost of
$3,600,000, with proper amortization of capital outlay, "from
a school budget of over 35 million dollars would be in line
wirh what was considered reasonable in Swann, where an increased
annual operating expense of $1,000,000 imposed on a total
school budget of $66,000,000 was held reasonable." 456 F.2d
at 947 n.6. See also, United States v. Greenwood, supra.
35/ We do, of course, understand that defendants perceive 
the requirement of desegregated public schools in Memphis as 
"punishment," but it goes without saying that the legal mandate 
cannot be compromised to accommodate the feelings of the white 
constituency which defendants represent. See Northcross v.Bo.:-.rd of Educ. , 333 F. 2d 661 (6th Cir. 1964).

-37-



The defendants' remaining arguments contend that no 
effective desegregation should ever be ordered in Memphis 
because student participation in extracurricular activities 
or their availability for after-school employment, etc., may 
be affected. These considerations are characterized as 
features of desegregation which "impinge upon the educational 
process." But as we noted above, Swann recognizes that the 
process of desegregation will result in some awkwardness and 
inconvenience (402 U.S. at 28); the Supreme Court clearly 
limits those circumstances which will excuse failure to 
desegregate to plans under which "the time or distance of tra­
vel is so great as to either risk the health of the children 
or significantly impinge on the educational process." 402 
U.S. at 30-31. Defendants have not made any such argument 
bur have opposed any and all pupil transportation. Further­
more, as we pointed out in our Brief in No. 72-1631 (pp. 5-6,
8), not only are the transportation times proposed under both 
Plans A and B well within the parameters considered reasonable 
in Swann, but many pupils will get to their new schools with 
busing under the plans faster than others who must now either 
walk or furnish their own transportationFinally, it is 
well within defendants' power to avoid some of these practical
problems as, for example, by scheduling extra "late" bus

. . 16/runs for students participating in extracurricular activities,
36/ Many districts with substantial numbers of transported 
pupils have rescheduled extracurricular activities in the middle of the day (II Tr. 1114-16).

-38-



much as they now employ extra bus runs in their "Cultural 
Exchange" program.

IV. The Memphis Plan: Continued Segregation

Uhder their final issue, defendants argue that the district 
court erred in "pre-judging" and rejecting "The Memphis Plan." 
This "plan," prepared by Board attorneys and staff members 
(II Tr. 386-87), was submitted prior to the November hearing 
in response to the district court's September 28, 1971 order 
directing defendants to file "any proposed desegregation plan 
changes which the Board intends to recommend in view of the 
Court of Appeals opinion remanding this case to the Court for
consideration in the light of Swann and Davis." (emphasis37/
added).

We too invite the Court to read "The Memphis Plan," for 
it will patently demonstrate that the district court was 
correct in finding that defendants had defaulted and that 
their proposal "should not be considered as a desegregation 
plan which would meet the requirements of Swann and Davis and 
the remand of the Court of Appeals." (Dec. 10 Op. at 18).

Why defendants submitted this plan to the court is not38/
clear, for the "plan" is predicated upon the fact that "the

3 7 /  ’—  In this Court's collateral opinion denying plaintiffs' 
petition for rehearing on the denial of a construction injunc­tion, the Court referred to its remand opinion of the same 
date as remanding the case "to the District Court for the 
adoption of a new plan of desegregation ...." 444 F.2d 1184 (emphasis added).
_38/ Except for pages 4-11, which contain legal arguments against desegregation.

-39-



Board of Education and the Administrative Staff felt very
strongly -- [t]hat the Memphis City School System is indeed
a unitary system .... ("The Memphis Plan," page i). if that 
is indeed the case, defendants are free (insofar as this 
litigation is concerned) to implement any educational programs 
they choose. But what "The Memphis Plan" proposes, for 
approval by the federal judiciary, is "a new direction in 
reorienting its present instructional program so as to more 
adequately provide better educational opportunities for all 
children, most particularly poor children." (ibid.) This 
"plan" is an obvious attempt to purchase plaintiffs' consti­
tutional rights by offering black children as decent an 
education as can be afforded under continued segregated con­
ditions. Cf_. Plessy v. Ferguson, 163 U.S. 537 (1896).
Obviously, plaintiffs were unwilling to sell out for what 
they had been legally entitled to for the century prior to 
Brovn, and fortunately the district court wasn't buying either.

The other non-desegregation aspect of The Memphis Plan 
is a proposed expansion of the Board's Cultural Exchange or 
partial part-time desegregation (cross-racial contact) program. 
This program was first introduced during the 1969 hearing on 
plaintiffs' Green motion and was defendants' first post-Green 
offer seeking to forestall vindication of plaintiffs' consti­
tutional rights. Similar offers have been repeatedly rejected

3 9/by -che courts as substitutes for "actual" (Swann) desegregation.

S.g., United States v. Board of Educ. of Webster County.431 F.2d 59 (5th Cir. 1970).
-40-



The program's use of busing, however, indicates defendants' 
willingness to do anything to avoid sending white youngsters 
to school with black youngsters. But what Superintendent 
Stimbert said in 1969 when the Cultural Exchange Program was 
first introduced, applies with even greater force as an argu­
ment for full-time actual desegregation (2/6/69 Tr. 381):

Q. [By Mr. Petree] Mr. Stimbert, you have no 
hesitancy in conceding or admitting the fact that 
this program does contemplate the transportation of pupils?
A. Yes, definitely. i think without the means 
of transporting these children —  let's go to 
Wisconsin [school] again. I attended a banquet 
at Holiday inn for the parents of students at 
that area, and unless you study the dreams and 
problems of those people you don't know. Without 
us furnishing transportation to break through that barrier these children don't have a chance, they 
will just stay in Wisconsin with some rat infested 
homes, and the school will be the bright spot, 
and they need to have some experiences with other 
schools of the system if this is not an isolated thing.

CONCLUSION

On the basis of a total misrepresentation of the testimony 
of one of plaintiffs' witnesses (see the relevant transcript 
attached hereto as Appendix B), defendants make an outrageous 
claim to represent the interests of plaintiffs' class and 
charge that plaintiffs' efforts to bring the Memphis school 
system into compliance with the Fourteenth Amendment to the 
Constitution of the united States are "as vicious and insidious 
an attack upon the rights and freedom of those black people 
as was state-imposed segregation in decades past." The record

-41-



in this case not only gives the lie to the Board attorney's 
preposterous assertion but establishes conclusively that 
state-imposed segregation continues in full flower in Memphis, 
Tennessee —  aided and abetted by the kind of misrepresenta­
tions to the courts which are replete in defendants' latest 
brief. Not under the broadest conceivable reading of Supreme 
Court decisions could the Memphis school system be declared 
unitary, as defendants seek. There is no warrant for reversing 
the judgment below on any of the grounds urged by defendants, 
and we repeat our prayer in No. 72-1631 "that the stay hereto­
fore granted by this Court be immediately vacated and that 
this case be remanded to the district court for the establish­
ment and execution of an expedited schedule of such further 
proceedings as may be necessary to complete the desegregation 
of the Memphis public schools at the earliest practicable 
date, and in no event later than the commencement of the 1973- 
74 school year. "

Respectfully submitted.

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
URAL B. A D A M S ,  JR.

525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG / 
JAMES M. NABRI/T, III 
NORMAN J. CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- Appellees
-42-



CERTIFICATE OF SERVICE
This is to certify that on this 7th day of July, 1972,

I served two copies of the foregoing Brief upon counsel of 
record herein by mailing to them at their addresses as below, 
air mail postage prepaid, as follows:

Jack Petree, Esq.
Suite 900, Memphis Bank Bldg. 
Memphis, Tennessee 38103

Rowlett W. Scott, Esq. Commerce Title Bldg. 
Memphis, Tennessee 38103

C
Attorney for Plaintiffs-Appellees

-43-



A P P E N D I X  A

TRANSPORTATION PROPOSAL 
1972-73

We have discussed tl.e cost of implementing Plan "A" under a "turn key" 

contract basis with three firms. We have explored the companies and have 

inquired with various users as to their competence. We are satisfied that 

/my of the three companies could operate an effective transportation system 

for the Memphis City Schools.

The following general assumptions were given to the companies involved 

to prepare price quotations from:

1. The opening and closing time of the school day could 
be staggered not to exceed 1 1/2 hours.

2. Each school must have single trip service.

A  20% overload of rated seating capacity may be used.

£» Pick up stations will be conveniently located in the 
community.

5 . -The number of children to be transported should be ---  --------
approximately 14,000.

V. All state rules and regulations pertaining to 
transportation must be adhered to.

Hi© tujs&panies listed have submitted the following proposals:

MEMPHIS TRANSIT 
MEMPHIS, TENNESSEE

Tote* Contract Cost

a. 1 year contract
b* Based on 67 buses
£» 243 trips

School starting times1. 7:00 e.m.
2 . 7:30 a.m.
3 , 8:00 a.m.4. 8:30 a.m.
5 . 9:00 a.m.
6. 9:30 a.m.
7. 10:00 a.m.

S» Based on 75,600 hours

$ 982,800



Page 2 - Transportation Proposal

GOLDEN ARROW 
ROCHESTER, NEW YORK

Total Contract Price $ 752,000

a. Includes radios
b. Based on 75 buses
c. 2 maintenance facilities (Land furnished by us)
d. Adjustment of $8,000 per bus added or credit '

for bus reduction.
e. Average of 3 trips per bus.
f. 4 trips per day could reduce cost by $152,000

or 19 buses.
g. School district to purchase gasoline.
h. Require a 3 year contract with an inflation clause.
1. We would furnish a supervisory employee to

- coordinate transportation.

SCHOOL TRANSPORTATION, INC. 
KANSAS CITY, MISSOURI

Total Contract Price $ 565,758

a. To eliminate radios would give us a credit 
of $3.50 per child or $50,130.

____b^ We could select a 1 or 2 year contract at
the above rate.

c. The contract would be on a per child basis
adjusted each month.

d. A  minimum of 14,000 children would be charged
the first 3 months with a credit of $24.00.

e. School system would furnish gasoline with a credit
for the amount expended.

f. Assume 4 trips per day. If we require 3 trips
the cost would be $45.00 per child.

g. We v:ould furnish a supervisory employee to
coordinate transportation.

- ■ h. 2 maintenance facilities (We furnish land)
1. No vehicle would be older than 2 years 

vith about 50% being new equipment.



SUMMARY

MEMPHIS GOLDEN SCHOOL
TRANSIT ARROW TRANSPORTATION

Base Cost $ 982,800 $ 752,000 $ 565,758

Adjustments:
4 starting times •0- (152,000) -0-

Gasoline -0- 12.000 -0-

ADJUSTED COST: $ 982,800 $ 612,000 $ 565.758*

* This could be reduced by $50,120 if we eliminated radios.

The above report gives a summary of the proposals submitted by the various 

companies. Golden Arrow and School Transportation, Inc. have stated that 

May 16, 1972, is as late as they can wait to order new buses. School Trans­

portation, Inc. indicates that they can possibly furnish used buses after that 

date, but the cost would be higher and the service of the older equipment would 

not be es satisfactory.

M a y  15, 1972



SCHOOL TRANSPORTATION BUDGET 
1972-73

EXPENDITURES:

Contract Transportation $ 566,000

Administrative Cost 
Supervisory personnel 
Clerical

20,000

Volunteer Transfer
(majority to minority)

100,000

TOTAL BUDGET $ 686.000

Hay 15, 1972



April 26, 1972
C O N T R A C T  S E R V I C E S

1. Purchase Vehicle
a. Specifications
b. Ordering
c. Determine needs
d. State requirements
e. Funding

2. Maintenance
a. Build or lease facilities
b. Repair vehicles
c. Employ mechanics
d. Handle security
e. Central parking facilities
f. Washing, etc.

3. Operation
a. Scheduling buses
b. Insurance
c. Supplies
d. Routing
e. Supervision

- • -f.- Radio dispatch
g. Discipline
h. Security

4. Personnel
a. Recruitment
b. Selection
c. Training
d. Human relations
e. Substitutes
f. Payrolls, fringes, etc.

5* Procedures
a. Prepare maps
b. Instructions to parents and schools
c. Code buses and stops
d. Newspaper, radio, T.V. costs



6. Changes
a. Ability to add more students
b. Flexibility to change timec. Unusual release time (Evacuations, early release

for exams, weather, etc.)
d. Cancellation privileges at Board request.

7. State Requirements
a. Meet all State regulations for vehicles
b. Meet State regulations for drivers and physical

examination.



remaing 44 should be retained one through three in the 
predominantly white schools?
A Well, I would not be opposed to that if other conditions
were present.
Q And what other conditions?
A Like the conditions upon which you base a decision
to do the grade structure. For example, I guess the distance 
would be one.
0 You have not made a study sufficiently in depth to
tell the Court which of the schools —  the predominantly black 
shool should be retained as grades one through three?
A No, I haven't.
Q Mr. Smith, why does it make any difference that a
particular school is selected as a one through three school 
and another as a four through six school?
A My criticism is based primarily on how I feel the black
community will perceive such distubution of grade structure. 
That's all.
Q You deem yourself qualified to speak as to the
perception of black people?
A To some degree.
Q In the field of education?
A To some degree. Not totally, but to some degree.
0 How do you perceive the attitude of a majority of the

8 3 3 -



8 3 4 -

black people toward busing of pupils.
A In Memphis or the country as a whole?
Q Either way you want to answer it, or both ways.
A Well, I would perceive the attitude of the majority of
the black people in Memphis as being in favor of desegregation. 
C Correct.
A Now, one of the techniques which you use to desegre­
gate the schools will be to bus.

And if this is going to improve or facilitate the 
educational processes Insofar as black children are concerned 
I would have to say that the majority of the black people in 
the City of Memphis would be in favor of transporting students 
to school.
Q What about throughout the United States?
A I would say that the majority of blaok people throughout
the United States would be in favor of transporting children 
to school.
Q For desegregation?
A If this is the technique that is used.
Q For desegregation?
A Yes.
Q And what size majority would you perceive of the black
people would be in favor of transporting pupils for desegre­
gation?



8 3 5 -

A Well, 0 0  that I want be too liberal I will just say
over half, 51 percent.

Q 51 percent favor the transportation of children?
Yes, I will 8ay that would be a conservative estimate* 

Q A conservative estimate.
Now, what about that 49 percent of the black people 

whom you peroelve to disfavor busing for desegregation 
purposes, do you think they have a right to expression of 
their attitudes and fulfillment of their objectives for their 
children?

MR. CALDWELL: Your Honor, I don't understand
the purpose of the question, nobody plans to take 
anybody's right to express anything away.

MR. PETRELi Perhaps the question was too broad, 
I will withdraw it, Your Honor.

THE COURT: All right.
0 We will agree that 49 percent, or approximately 49
percent of the black patrons of the sohool system do not want 
to have their children bused for desegregation purposes, can 
we agree to that?

A Well, if we could come up with that figure we would
agree.
Q Is that right?

a If that's the figure we are going to arrive at.



0 I want to use a figure, Mr. Smith.
A A l l  right, we w i l l  agree to that.
Q Do you think that those children should be bused if
their parents oppose busing for desegregation purposes?
A Uh -- I think that those 49 percent have never had the
right legally to determine whether their children went to 
school next to their house or the school across town or the 
school three or four miles away, so I see this as Just another 
phase of implementing an educational decision, and hopefully 
it 18 to improve the education that all children are going 
to receive.
Q Hopefully it will improve.

Are you aware -- 
A  Y e s ?

Q Are you aware of any study in the United States that
yields concrete evidence that busing for educational -- 
or to achieve desegregation results in educational improvement? 
A There are no such studies that I know of. However, I
think I ought to make this clear, that there is a difference 
between desegregation and busing. There is a difference.
Busing is only one of the techniques by which you desegregate, 
so most of the studies which I am familiar with are desegre­
gation studies, and not specifically Isolated and called

8 3 6 -

busing studies