Davis, John, Dr., undated - 9 of 14

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
Nos. 77-1621, 1623 & 1625

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-Intervenors, 
Appellees,

VS.
RAY BLANTON, Governor of the State of 
Tennessee, et al.,

Defendants-Appellees, 
UNIVERSITY OF TENNESSEE, et al.,

Defendants-Appellants.

BRIEF FOR PLAINTIFFS—INTERVENORS, APPELLEES 
RICHARDSON, et al., IN NOS. 77-1621, 1623 & 1625

< ‘ 
♦ AVON N. WILLIAMS, JR.

MAURICE E. FRANKLIN 
RICHARD H. DINKINS

Suite 1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tenn. 37219

JACK GREENBERG 
JAMES M. NABIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Intervenors, Appellees 
Richardson, et al., in Nos. 77-1621, 1623 & 1625



IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
Nos. 77-1621, 1623 & 1625

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-lntervenors, Appellees,

VS.
RAY BLANTON, Governor of the State of Tennessee, et al.,

Defendants-Appellees, 
UNIVERSITY OF TENNESSEE, et al.,

Defendants-Appellants.

BRIEF FOR PLAINTIFFS-INTERVENORS, APPELLEES 
RICHARDSON, et al., IN NOS. 77-1621, 1623 & 1625

AVON N. WILLIAMS, JR.
MAURICE E. FRANKLIN 
RICHARD H. DINKINS

Suite 1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tenn. 37219

JACK GREENBERG 
JAMES M. NABIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

Suite 2030 
10 Columbus circle 
New York, New York 10019

Attorneys for Plaintiffs-intervenors, Appellees 
Richardson, et al., in Nos. 77-1621. 1623 & 1625



INDEX

Preliminary Statement ................................  1
Counterstatement of Question Presented ..............  2

Counterstatement of the Case ......................... 2

Argument ..............................................  3
I. The Dual System of Public Education in

Tennessee Has Not Been Dismantled............ 5

A. Evidence of Discrimination ..............  6
B. The Continuing Constitutional Violation . 10

C. UT1 s Liability ...........................  17
II. The State Has An Affirmative Duty to

Dismantle the Dual System....................  21
A. The Constitutional Standard .............  21

B. THEC and UT Misconstrue the Standard .... 24
III. The Lower Court Properly Exercised Its 

Equitable Discretion in Ordering the 
Merger of TSU and UTN......................... 31
A. The Equitable Standard ..................  31

B. Merger Is an Appropriate Remedy in
This Case ................................  33

C. THEC and UT's Objections to Merger Do
Not Demonstrate an Abuse of Equitable 
Discretion ...............................  36

Conclusion ............................................  44

Page

i



TABLE OF CASES

Adams v. Califano, 430 F. Supp. 118 (D. D.C. 1977).... 23,38,40
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.

1973)   16,23,37
Alabama State Teachers Association v. Alabama Public 

School and College Authority, 289 F. Supp. 784 
(M.D. Ala. 1968)   23,24,25

Alexander v. Holmes County Board of Education, 396
U.S. 19 (1970) ..................................  22,40

Arlington Heights v. Metropolitan Housing Corp., ___
U.S. ___, 50 L.Ed. 2d 450 (1976) ................. - 10

Bishop v. Starkville Academy, N.D. Miss. No. E.C.
74-97-K, decided December 28, 1977   12

Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976)
aff'd U.S. , 53 L.Ed. 2d 745 (1977) .....  6,10,15,16--- 23,30,37,41

Brown v. Board of Education, 347 U.S. 483(1954)   11,21,29,30
Cisners v. Corpus Christi Independent School

District, 467 F.2d 142 (5th Cir. 1972) ............ 41
Cooper v. Aaron, 358 U.S. 1 (1958) ..................  14
East Texas Motor Freight v. Rodriguez, ___ U.S. ___,

52 L.Ed. 2d 453 (1977)    42
Evans v. Buchanan, 393 F.Supp. 428 (D.Del.)(3-judge 

court) sum.aff'd. 423 U.S. 963 (1975) 416 F.Supp.
328 (D. Del. 1976)(3-judge court) aff'd. 555 F.2d
373 (3rd Cir.) cert.denied, 46 U.S.L.W. 3220 (1977)..18,20,41

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 42
Green v. County School Board, 391 U.S. 430

(1968) ........................................... . 23,27, 38
Hicks v. Crown Zellerbach Corp., 310 F.2d 536

(E.D. La. 1970) ..................................  41
Hills v. Gautreaux, 425 U.S. 284 (1976) ............ 18,20,23
Hunnicut v. Burge, 356 F. Supp. 1227 (M.D. Ga. 1973)..

Page

23



Page
Keyes v. School District No. 1, 413 U.S. 189 (1973) 10,11,12

13,23
Kirsey v. Board of Supervisors of Hinds County,

554 F. 2d 139 (5th Cir. 1977) ....................  42
Lau v. Nichols, 414 U.S. 563 (1974) ...............  13
Lee v. Macon County Board of Education, 453 F.2d

(5th Cir. 1971) ..................................  23,37,38
Local 189, United Paper Makers and Workers v.

United States, 416 F.2d 980 (5th Cir. 1969) .....  41
Louisiana v. United States, 380 U.S. 145 (1965) .... 23
McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950) ...........................................  29
Milliken v. Bradley, 418 U.S. 717 (1974) ......... 6,7,9,1017,18,21,22

23,26,28
Milliken v. Bradley II, ___ U.S.___ , 53 L.Ed. 2d

745 (1977) aff'g, 540 F.2d 229 (6th Cir. 1976) ... 4,31,35,43
Monroe v. Board of Commissioners, 391 U.S. 450

(1968) ..........................................  27
NAACP v. Lansing Board of Education, 559 F.2d 1042 

(6th Cir. 1977), cert.denied 46 U.S.L.W. 3886
(Dec. 12, 1977)   11,13

Newburg Area Council, Inc. v. Board of Education,
510 F.2d 1358 (6th Cir. 1974), cert.denied
421 U.S. 931 (1975)   6,18,20,41

Norris v. State Council of Higher Education,
327 F. Supp. 1368 (E.D. Va. 1971) ..............  23,24,2529, 37 ,38

Northcross v. Board of Education, 397 U.S. 232
(1970)    16

Norwood v. Harrison, 413 U.S. 455 (1973) ......... 12
Oliver v. Michigan State Board of Education, 508

F .2d 178 (6th Cir. 1974)   13
Pasadena City Board of Education v. Spangler, 427

U.S. 424 (1976)     16

iii



Pa^e
Singleton v. Jackson Municipal Separate School

District, 419 F.2d 1211 (5th Cir. 1970) ......
Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 15 (1971) .............................

Sweat v. Painter, 339 U.S. 629 (1950) .............
United States v. International Longshoremen's Assoc., 

319 F. Supp. 737 (D. Md. 1970) ..................
United States v. Scotland Neck Board of Education,

407 U.S. 484 (1972) ..............................

40

15,23,25
32,42

29

41

12,13
30,41

United Jewish Organization of Williamsburgh v. Carey,
___ U.S. ___, ___  L.Ed. 2d ___ (1977) ........... 41

United States v. Texas Education Agency (Austin ISD),
5th Cir. No. 73-3301, decided(November 21, 1977) .. 6,11,13

Washington v. Davis, 426 U.S. 229 (1976) . 6,7,9,10
11,12,13,21

White v. Regester, 412 U.S. 755 (1973) .........
Wright v. Council of City of Emporia, 407 U.S. 451 

(1972) .........................................

42

12,13
28,41

Other Authorities:

42 U.S.C. § 2000d ..........................
42 Federal Register 40780 (August 11, 1977)

iv



IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
Nos. 77-1621, 1623 & 1625

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-lntervenors, 
Appellees,

VS.
RAY BLANTON, Governor of the State of 
Tennessee, et al.,

Defendants-Appellees, 
UNIVERSITY OF TENNESSEE, et al.,

Defendants-Appellants.

BRIEF FOR PLAINTIFFS-INTERVENORS, APPELLEES 
RICHARDSON, et al., IN NOS. 77-1621, 1623 & 1625

Preliminary Statement
It is the position of plaintiffs-intervenors Richardson, 

et_ al. in these consolidated appeals that the lower court 
properly ordered the merger of TSU and UTN in order to desegre­



gate public higher education in Nashville, but the district
court erred in its further rulings on the implementation of
the Nashville merger and the adequacy of statewide desegregation
efforts outside Nashville. We, therefore, respond in this
brief as appellees to the briefs of two of the defendants, UT
and THEC, on their appeals on the validity of the TSU-UTN
merger (77-1621 and 1625, and 77-1623 respectively). in a
separate brief, we reply to the responses of the other
parties on our appeal from the implementation of merger and

{/the adequacy of the statewide remedy (77-1622 and 1624).

COUNTERSTATEMENT OF QUESTION PRESENTED 
Whether the district court abused its discretion in 

ordering as a form of equitable relief that TSU and UTN be 
merged in order to dismantle Tennessee's dual public higher 
education system?

COUNTERSTATEMENT OF THE CASE 
Plaintiffs-intervenors Richardson, et_ al. incorporate 

by reference the Statement Of The Case and Statement Of Facts 
in Brief For Plaintiffs-lntervenors, Appellants Richardson, 
et al. in 77-1622 and 1624 (hereinafter "Richardson brief")

1/ Plaintiffs-intervenors Richardson, et al. also have
opposed the intervention of UTN faculty, 77-1620, in a 
separate brief.

2



pp. 2-48. 2/

ARGUMENT
In response to the contentions made by defendants

1/UT and THEC against merger, we argue three key points 
in support of the lower court's merger ruling: (a) the
State continues to operate a dual public higher education 
system, (b) the duty of the State is to affirmatively desegre­
gate the dual system, and (c) merger of TSU and UTN is an 
appropriate remedy. Initially, however, we note that the 
thrust of UT and THEC's arguments ignores altogether the 
lower court's comprehensive findings of fact on the dual state­
wide system and the underlying voluminous trial record,
which are presented in detail in the Richardson brief,

4/pp. 2-48, and the government's brief, pp. 2-34: The
statewide dual system remains in place. UTN was 
established in Nashville in 1947 as the white public higher 
education alternative to all-black TSU, the preexisting 
State-supported higher education institution in Nashville.
Since State-imposed segregation required by law formally

2/ Compare the Statement Of The Case in Brief For The 
United States in 77-1621, 1623 & 1625 (hereinafter "govern­
ment's brief"), pp. 2-34.
3/ Defendants Ray Blanton, Governor of Tennessee, represented 
by the State Attorney General, and the State Board of Regents 
have not appealed the merger order.
4/ Compare Brief For Plaintiffs Rita Sanders Geier, et_ al. 
in 77-1622 and 1624, pp. 1-5.

3



ended in I960, UTN has greatly expanded from a non-degree 
granting night school to a 4-year, degree-granting university
with classes after mid-afternoon. In contrast, TSU has not

6/been able to expand significantly. UTN and TSU provide dupli­
cative academic programs, and compete for white students. With 
UT's prestige and TSU's black history, UTN has been able to 
siphon off white Nashville area students who would have natu­
rally desegregated TSU. As a result, 9 years after the lower 
court's first order that the dual system be dismantled, TSU's 
student body remains overwhelmingly black and UTN's majority 
white, and TSU is identifiably black and UTN identifiably white. 
As the court further found, defendants, including UT and THEC, 
have been recalcitrant, and actively opposed and frustrated 
meaningful efforts to desegregate. After years of such recal­
citrance, the lower court finally ordered the merger of TSU and
UTN, as the best alternative, in order to dismantle the dual

7/
system in Nashville, and Tennessee generally.

5/ 288 F. Supp. at 940. Available records show that the first black Student was not admitted to UTN until 1965, Response of Defendants to 
Richardson Intervenors Supplemental Interrogatories, June 13, 1974.
6/ Although the court did not update its finding that "the 
failure to make [TSU] a viable desegregated institution in the 
near future is going to lead to its continued deterioration as 
an institution of higher learning," 288 F. Supp. at 943, the 
1976 record shows that tangible unequal educational opportunity 
continues, see Richardson brief, pp. 15-16; cf. Milliken v .
Bradley, ___ U.S. ___, 53 L.Ed.2d 745, aff'g, 540 F.2d 229 (6th
Cir. 1976).
7/ See Richardson brief, pp. 13-32; government's brief, pp. 2-34.

4



Ignoring these findings, UT and THEC develop at 
length several legal contentions which attempt (a) to gut 
the lower court's careful findings of fact merely by invoking 
recent Supreme Court decisions concerning proof of discrimi­
nation, (b) to argue that the State has only the duty to 
"remove compulsive segregation," and (c) to argue that 
merger of TSU and UTN is per se an abuse of discretion. We 
refute these contentions in turn below, but press the threshold 
point that UT and THEC do not even attempt to met their 
burden to show that these plain findings of fact are clearly 
erroneous. For example, neither THEC and UT mention that 
all expert opinions, including that of THEC officials and 
defendants' Long Range Plan consultants, was that merger 
was "the best long range solution for desegregating the 
Nashville area," 427 F. Supp. at 657-659, Richardson brief, 
pp. 28-31, government's brief, pp. 28-32. The failure to 
meet the clearly erroneous standard is a defect which, as we 
further detail below, is fatal to their appeals.

8/

I.
THE DUAL SYSTEM OF PUBLIC EDUCATION IN 
TENNESSEE HAS NOT BEEN DISMANTLED.

Throughout 9 years of litigation, the parties did not
contest the basic existence of de jure systemic segregation

8/ The UT appellants brief in 77-1621 & 1625 is hereinafter 
cited as "UT appellants brief," and the THEC appellant brief in 
77-1623 is hereinafter cited as "THEC appellant brief."

5



and maintenance of a dual system in the State of Tennessee; 
the issue -was the steps required to dismantle the dual system.
UT and THEC now throw up legal defenses based on Washington 
v. Davis, 426 U.S. 229 (1976) and Milliken v. Bradley/ 418 
U.S. 717 (1974), which if accepted, would exempt the State 
from the long-recognized but unrealized "affirmative duty 
imposed upon the State by the Fourteenth Amendment to the 
Constitution of the United States to dismantle the dual system of 
higher education which presently existed in Tennessee,"
288 F. Supp. at 942. As in other recent school desegregation 
cases in which defendants have attempted to raise Washington 
v. Davis (see, e.g., Bradley v. Milliken, 540 F.2d 229 (6th
Cir. 1976), aff*d. __U.S.__, 53 L.Ed. 2d 745 (1977); United
States v. Texas Education Agency (Austin ISD), 5th Cir.
No. 73-3301, decided November 21, 1977) and Milliken v .
Bradley I (see, e.g., Newburg Area council Inc, v. Board 
of Education, 510 F.2d 1358 (6th Cir. 1974), cert, denied,
421 U.S. 931 (1975)) these defenses come too late, have no 
basis in the record and are clearly without merit. They 
therefore, must be rejected.
A. Evidence of Discrimination

THEC and UT contend that the only valid evidence of 
segregation in Tennessee public higher education is statisti­
cal disparity in the enrollment of traditionally black TSU

6



and the traditional white institutions, including UTN.
It is upon this factual premise that defendants base their
Washington v. Davis and Milliken v. Bradley I contentions
that the evidence is legally insufficient for liability.
The factual premise, however, is a straw man.

In 1968, 1972 and 1976 the lower court concluded that the
de jure statewide dual system required by law until 1960,
particularly all-black TSU, has not been dismantled, 288
F. Supp. at 940; 337 F. Supp. at 576; 427 F. Supp. at 652.
As the lower court put it in 1972, "the phenomenon of a
black Tennessee State, so long as it exists, negates both
the contention that defendants have dismantled the dual
system of public higher education in Tennessee, as ordered
by this Court, and the contention that they are, in any
realistic sense, on their way toward doing so," 337 F. Supp.
at 576. TSU's "Negro enrollment in excess of 99 per cent"
in 1968 was still as high as 92.5% black for on campus students

10/
in fall 1976; UTN, in constrast, remains predominantly

V

9/ THEC appellant brief, p. 14 et seq.; UT appellants brief, 
p. '21 et_ seq. Although the THEC and UT briefs intersperse 
discussions of continuing segregation and the legal duty to 
desegregate, plaintiffs-intervenors separately discuss the two 
issues for the sake of analytical clarity.
IQ/ The lower court found that; Defendants' "Febrary 1976 
Progress Report reveals that the enrollment at TSU in fall, 
1975, was about 85% percent black and about 12.2 percent white. 
However, the proportion of whites on the main campus had not

7



white. Moreover, the lower court's opinion is replete with 
underlying findings of fact that defendants have taken actions 
since 1960 to maintain the dual system and obstruct desegre­
gation, notably maintaining a duplicative academic program 

U /
at UTN and permitting UTN to siphon off white students who

12/
could be expected to attend TSU, i.e. "the existence and

10/ (Continued)changed since the previous year and remained at about 7 percent, 
leading to the conclusion that a great number of the white 
students enrolled at TSU were actually taking courses in off- 
campus centers since over 80 percent of the students in these 
centers were white," 427 F. Supp. at 652, 660. In fact, 74% 
of TSU's white students were taking courses in the off-campus 
centers, see DX 11 at pp. 38, 42, 48. In fall 1976, the white 
presence on the TSU campus remained 7% (T. 1382, A. ), and 
95% of TSU's off-campus students were white (DX 36, A. ), 
see 427 F. Supp. at 656. It is thus misleading for defendants 
to insist that TSU is over 12% white, UT appellants brief, p. 7, 
THEC appellant brief, p. 9.
11/ The lower court expressly found that UTN's program 
duplicated TSU's, 427 F. Supp. 652. "The best evidence of 
the competitive nature of the Nashville situation is found in 
the similar programs offered by both institutions," which 
"have remained predominantly one-race at each institution," 
id. See also Richardson brief, p. 18; government's brief, 
pp. 21-24.

That TSU has 73 degree-granting programs while UTN has 
only 9, UT appellants brief, p. 9, is a distinction without a 
difference, which results from TSU's practice of specifying 
major areas and UTN's practice of offering one degree for large 
numbers of areas, compare, DX 41 (TSU catalogue), with.
PIX 11 (UTN catalogue). The lower court rejected this con­
tention, without comment.
12/ The lower court specifically found that "even if the 
average student profile at UTN shows that those students are 
older [than TSU students] and are employed, these are the 
kind of students that THEC and Dr. Elias Blake, witness for 
the United States, say that TSU must attract if it is to 
prosper," 427 F. Supp. at 653. The record fully supports the

8



expansion of predominantly white UTN alongside the 
traditionally black TSU have fostered competition for white stu­
dents and thus have impeded the dismantling of the dual system," 
427 F. Supp. at 652-657, Richardson brief, pp. 13-28, govern­
ment's brief, pp. 5-28.

Thus, defendants UT and THEC's present claim that this 
is a case of de_ facto segregation CLn order to invoke Washington 
v. Davis and Milliken I)has no basis in the record, and, 
indeed, can only be maintained by ignoring express findings of 
fact and the underlying record. The district court found, in 
the higher education context, classic indicia of de_ jure 
school segregation - state-imposed statutory segregation 
consistently maintained by the actions of State officials.
The Nashville situation, indeed, is more aggravated in light 
of defendants1 recalcitrance to effect court-ordered desegre­
gation over the course of 9 years. The time is long past to 
inject a challenge to the underlying finding of statewide

12/ (Continued)
court, see Richardson brief, pp. 16-17; government's brief, 
pp. 23-25. Moreover, UTN students are increasingly younger and 
full-time (PXX 15, A. ) and UTN offers a substantial number 
of courses, principally undergraduate courses, that begin in 
mid-afternoon (GX 8, A. ). UT's claim that TSU "with the 
exception of one (1) nursing course, operates exclusively as a 
late-evening and nighttime school primarily for working adults," 
UT appellants brief, p. 9, is therefore insufficient to meet 
the clearly erroneous test. Moreover, the UTN daytime nursing 
course in question (75.1% white) competes directly with a TSU 
daytime program (70.9% black), 427 F. Supp. at 655, n. 27; see 
Richardson brief, p. 25.

9



seeviolation, which subsequent evidence only fortifies,
Bradley v. Milliken, 540 F.2d 229, 239 (6th Cir. 1976), aff*d,
__U.S. , 53 L.Ed. 2d 745 (1977) (' [w] e find [Washington v.
Davisl to be inapplicable here because it is the law of the 
case that unlawful de_ jure segregation . . .  exists ") .
B. The Continuing Constitutional Violation

UT and THEC contend that Washington v. Davis, supra, 
somehow voids the legal significance of the State's manifest 
and consistent perpetuation of Tennessee's statutory system

w
of de_ iure segregated higher education. It was in Keyes
v. School District No. 1, 413 U.S. 189, 208 that the Supreme 
Court ruled that "the differentiating factor between de_ jure 
segregation and so-called de_ facto segregation . . .  is 
purpose or intent to segregate" (original emphasis), of which 
Washington v. Davis, supra, 426 U.S. at 240-244 is an elabora­
tion beyond the school segregation area, see also Arlington
Heights v. Metropolitan Housing Corp.. __U.S.__, 50 L.Ed. 2d
450, 464-466 (1976). Keyes, involving the Denver, Colorado 
public schools, was "not a case, however, where a statutory

13/

13/ The basic de_ jure statewide systemic segregation finding has 
remained unchanged. The court did revise its 1968 ruling 
that UTN's expansion would not necessarily perpetuate the dual 
system based on additional evidence, 427 F. Supp. at 652. See 
infra at pp. 18-20.
14/ See, e.g., UT appellants brief, pp. 20, 29-30, THEC 
appellant brief, p. 14. We discuss Milliken v. Bradley, infra, 
at part A.3.

10



dual system has ever existed," supra, 413 U.S. at 201;
compare NAACP v. Lansing Board of Education, 559 F.2d 
1042, 1045 (6th Cir. 1977), cert, denied, 46 U.S.L.W. 3886 
(December 12, 1977). Such cases, like the instant action, 
are governed as to per se unconstitutionality by Brown v .
Board of Education, 347 U.S. 483 (1954). This was precisely 
the question in United States v. Texas Education Agency 
(Austin ISP), 5th cir. No. 73-3301, decided November 21,
1977, on remand from, 429 U.S. 990 (1977), in which the 
Fifth Circuit ruled that "because Washington v. Davis is 
concerned with the evidentiary showing necessary to establish 
an equal protection violation in those situations where there 
has been no law specifically requiring segregation, that 
decision is inapplicable 'where a statutory dual system has ever 
existed,' Keyes v. School District No. 1, . . . "  slip 
opinion at 4 (referring to Texas segregation law for black 
students). This Court had earlier recognized in NAACP v .
Lansing Board of Education, supra, 559 F.2d at 1045, the 
same principle that " [w]here a dual educational system was 
authorized by state law at the time of Brown I, . . .  [t]he 
State automatically assumes an affirmative duty 'to 
effectuate a transition to a racially non-discriminatory 
school system,' Brown v. Board of Education, 349 U.S.

11



294 . . . (1955) (Brown II) , by eliminating 'all vestiges
of state-imposed segregation,' Swann v. Board of Education, 
402 U.S. [1,] 15 . . . [(1971)];" compare Keyes v. School 
District No. 1, supra, 413 U.S. at 200. There is thus no 
merit for THEC's and UT1s attack on the lower court's 
conclusion that "the establishment by State statute was a 
blatant constitutional violation," 427 F. Supp. 660, whose 
vestiges have not been remedied.

In addition, district court's findings on the 
expansion of UTN to the detriment of TSU, the duplication 
of courses, the competition for white students and other 
State actions since 1960 demonstrate continuing de_ jure 
segregation on several other grounds: First, that State 
officials unlawfully impeded desegregation is unlawful 
regardless of intent to discriminate, Wright v. Council of 
City of Emporia, 407 U.S. 451 (1972); United States v. Scot­
land Neck Board of Education, 407 U.S. 484 (1972); Norwood 
v. Harrison, 413 U.S. .455, 467 (1973); Bishop v. Starkville 
Academy, N.D. Miss. No. EC 74-97-K, decided December 28,
1977 (3-judge court) (distinguishing Norwood v. Harrison 
from Washington v. Davis) .

"The mandate of Brown II was to desegregate 
schools, and we have said that ' [t]he measure 
of any desegregation plan is its effective­
ness. ' Davis v. School Commissioners of Mobile 
County, 402 U.S. 33, 37 . . . Thus, we have 
focused upon the effect— not the purpose or

12



motivation— of a school board's action in 
determining whether it is a permissible method 
of dismantling a dual system. The existence 
of a permissible purpose cannot sustain an 
action that has an impermissible effect."

Wright v. Council of City of Emporia, supra, 407 U.S. at 462;
Oliver v. Michigan State Board of Education, 508 F.2d 178,
183 (6th Cir. 1974). Second, the focus of Washington v .
Davis, supra, 426 U.S. at 283-284, on intent, in any event,
does not apply to either actions under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, or this action
which is brought, inter alia, to enforce Title VI of the

15/Civil Rights Act, 42 U.S.C. § 2000d, see Lau v. Nichols, 414 
U.S. 563, 566-569 (1974). Third, "school authorities have 
carried out a systematic program of segregation affecting 
a substantial portion of students, schools, teachers, and 
facilities within the school system" which would establish 
requisite intent even without prior legal segregation,
Keyes v. School District No. 1. supra, 413 U.S. at 201;
NAACP v. Lansing Board of Education, supra, 559 F.2d at 
1042, 1049-1057; united States v. Texas Education Agency 
(Austin ISP). supra (portion of opinion on Chicano students).

We now proceed to address several subsidiary 
liability contentions.

1. THEC claims that the lower court "did not find,
however, that any 'vestiges' of prior de jure segregation
15/ See, e.g., complaints of plaintiffs-intervenors 
Richardson and the united States (R. 33, 34, 86, A. __, __, _

see,

13



had been carried forward by present discriminatory State 
action" and that the "'vestiges' of legalized segregation 
referred to consist of the persistence of private racial 
attitudes expressed in student choices," p. 15. The district 
court obviously did find vestiges of prior legal segregation, 
and just as obviously, the vestiges of legal segregation 
were the product of State action and institutional in 
character. Moreover, the State cannot excuse responsibility 
for the substantial segregation-enforcing acts of its 
officials merely by invoking "private racial attitudes;" 
it is defendants who created and maintain the dual system. 
Government simply may not support unlawful racial segregation, 
Cooper v. Aaron, 358 U.S. 1 (1958),

2. Defendants make the related argument that the 
existence of a single black school, TSU, in the Tennessee

17/education system is not probative of a persisting dual system.
" [Wjhere it is possible to identify a 'white school' or a 
'Negro school' simply by reference to the racial composition 
of teachers and staff . . . , a prima facie case of violation 
of substantive constitutional rights under the Equal Pro-

16/ We address, infra, at pp. 2 8-31 the claim that higher 
education systems differ significantly from elementary and 
second schools because of the "voluntary" nature of school 
attendance.
17/ THEC appellant brief, p. 40; UT appellants brief, pp.
19-21.

14



tection Clause is shown," Swann v. Charlotte-Mecklenburg
18/

hoard of 'Education, supra. 402 U.S. at 18. TSU, of
course, is not just any one-race school: it was historically 
" [t]he lone institution for so-called higher learning operated 
by the State of Tennessee for Negroes," 288 F. Supp. at 940, 
nor is the evidence of perpetuation based on statistic alone 
but State action to maintain TSU's segregated status. The 
record is conclusive that the maintenance of TSU as a black 
institution was discriminatory.

3. UT argues that " [t]here is a patent inconsistency 
in the District Court's finding and holding that the previously 
existing dual system has been effectively dismantled in the 
statewide system of predominantly white institutions . . . , 
while, at the same time finding and holding that the dual
system had not been dismantled as it relates to the Nashville

19/
area involving TSU and UTN," p. 16. The simple answer is
that the district court has never found that Tennessee has

18/ "Where the school authority's proposed plan for conversion 
from a dual to a unitary system contemplates the continued 
existence of some schools that are all or predominately of one 
race, they have the burden of showing that such school assign­
ments are genuinely nondiscriminatory. The court should 
scrutinize such schools, and the burden upon the- school 
authorities will be to satisfy the court that their racial 
composition is not the result of present or past discriminatory 
action on their part." Id. at 26; Bradley v. Milliken, supra, 
540 F.2d at 237-238.
19/ THEC does not argue that the dual statewide system has been 
converted to a unitary system, only that it is "satisfactorily 
desegregating," THEC brief at 40.

15



dismantled its statewide system or achieved conversion to a 
statewide unitary system, Pasadena city Board of Education
v. Spangler. 427 U.S. 424 (1976). As Chief Judge Phillips put 
it in Bradley v. Milliken, supra, 540 F.2d at 239, " [t]his is 
not a Spangler situation; 11 see also, Northcross v. Board of

207Education of Memphis, 397 U.S. 232 (1970). While
the statewide and Nashville issues were the "two prongs of the
problem," the district court specifically found that " [i]n
Tennessee, the sole black institution, TSU, is the heart of
the dual system" and that the "'phenomenon of a black Tennessee
State, so long as it exists, negates . . .  the contention that
defendants have dismantled the dual system of public higher

21/education in Tennessee,r" 427 F. Supp. at 650.

20/ At most the lower court only found that "the white insti­
tutions are making steady progress toward desegregation," 427 
F. Supp. 644 (emphasis added), and, as plaintiffs-intervenors 
Richardson et al. assert in their appeal, the State's desegre­
gation efforts statewide are inadequate, Richardson brief, 
pp. 34-48, and that the lower court erred in failing to order 
greater statewide desegregation, Richardson brief, pp. 53-62.

21/ Nor is the lower court's decision inconsistent with the 
statewide desegregation approach of Adams v. Richardson, 480 
F .2d 1159, (D.C. Cir. 1973), UT appellants brief, pp. 35-36;
THEC appellant brief, p. 46 , for the reasons set forth in
427 F. Supp. at 650 n. 14. As we discuss infra, at p. 40, the Dept.
of Health, Education and Welfare has developed higher education
criteria, pursuant to Adams, which expressly sanction the
merger ordered as a remedial device for black public higher
education institutions.

16



C. UT*s Liability
UT, in particular, contends that, "the court's judgment

and order is the equivalent of an inrerdistrict remedy -without
2 2/an interdistrict violation or interdistrict effect" Re­

lying on Milliken v. Bradley, 418 U.S. 717 (1974), ut 

characterizes itself as "an innosent party" and claims that 
"the Court has never found that racially discriminatory acts 
of the University of Tennessee defendants have been a sub­
stantial cause of segregation, past or present, at TSU," 
p. 23. The lower court of course stated the specific finding 
that:

"The Court now finds that the existence and 
expansion of predominantly white UTN alongside 
the traditionally black TSU have fostered com­
petition for white students and thus have 
impeded the- dismantling of the dual system. "

22/427 F. Supp. at 652. The district court then detailed how 
" [w] ith TSU's blac.k history and UT's prestige, this competition 
inevitably fosters dualism," 427 F.Supp. at 653. We need not * 2

22/ UT appellants brief, pp. 21-30; THEC appellant brief, pp. 53-58.
2 3/ The unsupported statement that, " [t]he establishment of 
UTN in 1971 post dated the past mistakes and inequities found to 
exist and was wholly unconnected therewith," ut appellants brief, 
p. 32, if, clearly wrong. Since 1967, TSU has been the black 
public h igher educational institution in Nashville while UTN 
has been the white institution in Nashville, and the lower court 
so fouud, 427 F. Supp. at 652.

17



reiterate the extensive underlying facts supporting the 
lower court's finding as to UT, Richardson brief, pp. 16-21, 
goverru Lent's brief, pp. 18-28, which under the relevant 
caselav set forth at, supra, part A.2 establish beyond 
peradventure UT1s liability. Nor can UT even argue that 
it and the State Board of Regents have geographically 
distinct jurisdictions.

Th ; reliance of UT and THEC on Milliken I is misplaced 
for the same reason that this and other courts have upheld 
interdistrict remedies in which several governmental entities 
were involved in the underlying constitutional violation, 
Newburg area council, Inc, v. Board of Education of Jefferson 
County, 510 F.2d 1358 (6th cir. 1974), cert, denied, 421 
U.S. 931 (1975); Evans v. Buchanan, 393 F. Supp. 428 
(D. Del.’ (3-judge court), sum, aff'd. 423 U.S. 963 (1975); 
416 F. Sipp. 328 (D. Del. 1976) (3-judge court), aff'd,
555 F.2d 373 (3rd cir.), cert, denied, 46 U.S.L.W. 3220 
(1977); Hills v. Gautreaux, 425 U.S. 284 (1976).

UT also makes several subsidiary claims. First, UT,
UT appellmts brief, pp. 27-28, cites the court's initial 
1968 finding on the then-existing record that "I do not find 
that the proposed construction and operation of the 
University of Tennessee Nashville Center will necessarily 
perpetuate a dual system of higher education," 288 F. Supp.

18



at 941 (original emphasis) because there was "nothing in the 
record that the University of Tennessee has any intention 
to make the Nashville Center a degree-granting day institu­
tion, " and the center’s "overwhelming emphasis" was on part- 
time evening programs, id. By 1977, there was sufficient evi­
dence so that defendants' representations about the limited

24/
role of UTN were found out. The district court, therefore, 
revised its finding and ruled that " [t]he Court now finds 
that the existence and expansion of predominantly white UTN" 
fostered competition for students and impeded dismantling 
the dual system, 427 F. Supp. at 652 (emphasis added).

24/ An example is the following testimony of UT President 
Edward j. Boling that UT had decided as early as 1965 to make 
UTN a degree-granting institution.

Q. "Now, getting back to UT/N, I notice that in 
Exhibit 70 —  we were on Exhibit 75 —  and you indicated that 
you asked the —  the board decided in 1968 to expand and to 
undertake degree offerings in business administration and 
general engineering because they thought there was a need 
here in Nashville; is that right?

A. "That is really what the people came about mostly 
in 1965. At that time we still hadn't done it and we felt 
there was a need.

Q. "You were all taking time to try to develop that?
A. "We had been developing it and people had been working 

up the courses and coming to Knoxville for a degree. It still 
had not been built in the way that people down here thought it~ 
should be built in terms of having the curriculum set the way 
they wanted it.

Q. "And then, of course, you knew the lawsuit was filed 
at that time, didn't you?

A. "It was filed somewhere in that period.
Q. "Didn't you know it was filed in '67?
A. "I don't know what the date was.

(cont *d)

19



Second, UT makes the novel claim that merely because
UTN and TSU have different governing boards, it is shielded 
from liability, pp. 24-26. This is surely an argument that 
falls of its own weight in light of the record of UT's lia­
bility, Newburg Area Council, Inc, v. Board of Education of 
Jefferson County, supra; Evans v. Buchanan, supra; Hills v . 
Gautreaux, supra. Nor can UT argue against the lower court's 
finding that the dual system of public higher education in 
Tennessee is a system, see, e .g., 427 F. Supp. at 650, as 
clearly erroneous. Obviously the Tennessee public higher 
education system operates as a common system funded by the 
State legislature, with a master plan (PIX 3, A. ) and 
with THEC coordinating the planning, financing and programs

24/ (Continued)
Q. "Well, of course, this exhibit is dated, this board 

meeting was held in October 1968. Didn't you know that the 
Court had entered an order in this case on August 21, 1968, in 
which it had denied —  which it predicated its order allowing 
UT/N to —  the Nashville center to build a building here on 
the theory that there is nothing in the record to indicate that 
the University of Tennessee has any intention to make the 
Nashville center a degree-granting day institution?

A. "Our program was intended all along to let people work 
toward degrees. That was the basis for starting it in 1965.

THE COURT: "Well, my opinion speaks for itself. At that
time there was no indication in the record they intended to 
have a degree-granting day institution. That is what I said."
(T.II 293-294) (emphasis added). Thus, UT, at the very least, 
is disingenuous when it declares that the 1968 order is the 
lower court's only finding as to UT and that "[t]he District 
Court has never, in any subsequent decision, finding, order of 
judgment, found or held to the contrary," UT appellants' brief,
p . 28.

20



2 5/of education institution.—
In short, Washington v. Davis and Milliken v.

Bradley I simply do not undermine what was never seriously 
disputed before in this long litigation, i.e., the lower 
court's finding that the failure to dismantle public 
higher education system is a constitutional violation, 
nor permit defendants UT and THEC to escape their legal 
obligations. It is the existence of this continuing 
Fourteenth Amendment violation that gives rise to the State's 
affirmative duty to desegregate.

II.
THE STATE HAS AN AFFIRMATIVE DUTY TO 
DISMANTLE THE DUAL SYSTEM.___________

A. The Constitutional Standard
Since Brown II, the Supreme Court has clearly stated

that once there is a violation, "the burden of State 2

2 5/ THEC concedes that UT and UTN are part of the dual 
system, and argues only that segregation at UTN does not 
contribute to segregation at TSU, THEC brief, pp. 57-58.
This of course flies in the face of the clear record that 
UTN's existence and expansion were inextricably a part of the 
dual system in Nashville and Tennessee generally.

21



officials is . . . 'to eliminate from the public schools 
all vestiges of state-imposed segregation '" Milliken v. 
Bradley II, supra, 53 L.Ed. 2d at 762, and to do so at the 
"immediately" and "at the earliest practicable date," 
Alexander v. Holmes County Board of Education, 396 U.S.
19, 20 (1970).

"The objective today remains 
to eliminate from the public schools 
all vestiges of state-imposed segre­
gation. Segregation was the evil 
struck down by Brown I as contrary 
to the equal protection guarantees 
of the Constitution. That was the 
violation sought to be corrected 
by the remedial measures of Brown II.
That was the basis for the holding 
in Green that school authorities are 
"clearly charged with the affirmative 
duty to take whatever steps might be 
necessary to convert to a unitary 
system in which racial discrimination 
would be eliminated root and branch."
391 US, at 437-438 .

"If school authorities fail in 
their affirmative obligations under 
these holdings, judicial authority 
may be invoked. Once a right and 
a violation have been shown, the 
scope of a district court's equitable 
powers to remedy past wrongs is broad, 
for breadth and flexibility are in-- 
herent in equitable remedies."

22



Swann v. Charlotte-Mecklenburg Board of Education, supra,
402 U.S. at 15; compare Milliken v. Bradley II, supra.
There is simply no doubt that an affirmative duty exists

2 6/
to effectively and promptly desegregate a dual school system.
And there is no doubt that in performing its duty, a court 
must meet "the 'root and branch requirements of Green v.
County School Board, 391, U.S. 430, 437-38 . . . (1968),
and the call-out desegregation requirements of Keyes v.
School District, 413 U.S. 189, 214 . . . (1973)," Bradley
v. Milliken, supra, 540 F.2d at 238.

Thus, every court which has been faced with a constitu­
tional violation in higher education has acknowledged the 
affirmative duty imposed by the Constitution to dismantle 
the dual system as did the lower court, see, e,g., Alabama 
State Teachers Association v. Alabama Public School and 
College Authority, 289 F.Supp. 784, 789 (M.D. Ala. 1968);
Norris v. State Council of Higher Education, 327 F.Supp.
1368, 1373 (E.D. Va. 1971); Hunnicutt v. Burge, 356 F. Supp.
1227, 1230 (M.D. Ga. 1973); Lee v. Macon County Board of 
Education, 453 F.2d 524, 527 (5th Cir. 1971); see also 
Adams v„ Richardson, 480 F.2d 1159 (D.C. Cir. 1973); Adams 
v. Califano, 430 F. Supp* 118 (D.D.C. 1977) (Adams cases 
construe Title VI of the Civil Rights Act of 1964 42 U.S.C.

26/ The rule in civil rights controversies generally is that "the 
court has not merely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future," Louisiana v. United States, 380 U.S. 145, 154 (1965), 
Albemarle Paper Co, v. Moody, 422 U.S. 405, 418 (1975); Hills 
v. Gautreaux, supra, 425 U.S. at 297; see also Milliken v.

23



§ 2000d to require affirmative duty to desegregation).

B . THEC And UT Misconstrue The Standard
Defendant THEC and UT make several contentions which 

take issue with the lower court's acceptance of this con­
stitutional standard.

1. UT and THEC reiterate the contention that a "good 
faith" "open door policy" is the sum total of defendants' 
duty to desegregate, i.e ., "a State satisfies its constitu­
tional duty to desegregate higher education by permitting 
the free choice system of enrollment to operate free of 
State-imposed racial discrimination," THEC brief, p. 16, 
and that caselaw "limit[s] the constitutional goal in higher 
education to the removal of compulsory segregation," UT 
brief, p. 18, which the district court clearly rejected in 
1968 (288 F.Supp. at 942) and in 1972, (337 F. Supp. at 577- 
581), see 427 F. Supp. at 646.

Little that THEC and UT raise now was not dealt with 
in the lower court's 1972 opinion at considerable length: 
in particular, Alabama State Teachers Association v. Alabama 
Public School and College Authority, 289 F. Supp. 784 (M..D.
Ala. 1968), sum, aff'd , 393 U.S. 400 (1969), upon which THEC and 
UT rely principally, and Norris v. State Council of Higher

26/ continued 
Bradley II, supra.

24



Education, 327 F. Supp. 1368 (E.D. Va. 1971) sum, aff 'd
sub. nom. Board of Visitors of the College of William & Mary
in Virginia. 404 U.S. 907 (1971)-, which defendants go to some

2 7/
pains to distinguish, were correctly and exhaustively analyzed.

27/ 337 F.Supp. at 577-580. In ASTA, the court refused
to enjoin the construction of a white institution near 
traditionally black Alabama State College; in Norris. the 
the court enjoined the construction of a white junior college 
near predominantly black Virginia State College. The court’s 
analysis was: First, ASTA "does not stand for the proposi­
tion that a state is under no affirmative duty to dismantle 
a dual system of higher education in those cases where such 
a system is a vestige of d e jure segregation," 337 F. Supp. 
at 578; compare, ASTA 289 F. Supp. at 789, with. Norris,
327 F. Supp. at 1373. Second, "the ASTA court was consis­
tent with the Norris line of reasoning . . . the Asta court 
merely refused to enjoin certain construction, on the basis 
of the facts before it." 337 F. Supp. at 579. Third, certain 
kinds of relief used in elementary and secondary school cases 
may not work in the college context.

"[Wjhat works in one system will 
not work in another. Yet this is 
so as a practical matter, and not as 
a result of either of there being 
less of a duty owed by a state to 
dismantle a dual system of higher 
education or of a lack of power 
. . . on the part of a federal 
court to remedy such a situation.
The limiting factor, from the court's 
point of view, is 'what will work?'"

337 F. Supp. at 580. Fourth, the ASTA court acted as a court 
of equity and balanced competing interests; the approach 
taken by both ASTA and Norris is consistent with Swann v. 
Charlotte-Mecklenburg Board of Education, supra,

25



The lower court's ruling was that:
"From a consideration of both 

ASTA and Norris, read in the light 
of the whole line of desegregation 
cases culminating in Swann, this 
court is of the opinion that the 
present state of the law is as 
follows: (1) There is an affirma­
tive duty on a state to dismantle its 
dual system of education, when such 
system is a vestige of de jure segre­
gation; (2) "The means of eliminating 
discrimination in public schools neces­
sarily differ from its elimination in 
colleges but [(3)] the state's duty 
is as exacting" Norris, 327 F.Supp. 
at 1373; (4) a federal district court,
in order to ensure that such duty is 
performed,is to proceed as a traditional 
court of equity; (5) accordingly, in 
framing relief, the court must balance 
the interests involved and take into 
account the administrative feasibility 
of the proposed relief, and, in fash­
ioning the remedy, the scope of the 
relief must be fitted to the scope of 
the violation; and (6) in cases involving 
higher education, the interests of the 
state in setting its own educational 
policy are to be given especially great 
weight."

2 8/
337 F. Supp. 580, On the basis of these factors, the court 
concluded that "when the basic (and preferred) approach of 
an open door policy fails to be effective, the interests 
of the State in completely setting its own educational 
policy must give way to the interests of the public and 
the dictates of the Constitution," id. Although the district 
court ordered defendants to consider, 'inter alia, "merger 
or consolidation of Tennessee State and U.T. Nashville into 
a single institutiont" 337 F.Supp. at 581-582, the court
of course did not then exercise its discretion to order

23/ Compare Milliken v. Bradley II, supra, 53 L.Ed. 2d 
755-756.

26



merger, but waited another 4 years. It then became clear, 
as the court found, that "the defendants 1 approach to eliminat­
ing the effects of State-imposed segregation in the Nashville 
area institution has not worked and that it offers no real 
hope for further progress in that direction," 427 F. Supp. 
at 657. Only then was merger ordered.

2. THEC, but not UT, makes the argument that
the "plain language" of Green v. County School Board, supra,

29/ 50/
391 U.S. at 438-439, somehow does not mean what it says,
that "freedom of choice" plans, like all other desegregation
plans must be measured against the duty to dismantle the
dual system, i .e [t]he burden on a school board today is to
come forward with a plan that promises realistically to work
now. "

"In Green v. County School Board 
. . ., the issue was whether the school
board's adoption of a "freedom of choice" 
plan constituted adequate compliance with 
the mandate of Brown v. Board of Education,
349 US 294 (Brown II). We did not hold 
that a freedom-of-choice plan is of itself 
unconstitutional. Rather, we decided that 
any plan is "unacceptable" where it "fails 
to provide meaningful assurance of prompt 
and effective disestablishment of a dual 
system. . . . "  391 US, at 438 . . . .  In 
Monroe v. Board of Commissioners, 391 US 
450 . . ., we applied the same principle in
rejecting a "free transfer" plan adopted by 
the school board as a method of desegrega­
tion :

29/ See also Monroe v. Board of Commissioners, 391 U.S. 450 
(1968).
30/ THEC appellants brief, p. 24 et seq.

27



"We do not hold that ’free transfer’ 
can have no place in a desegregation 
plan. But like 'freedom of choice,' 
if it cannot be shown that such a 
plan will further rather than delay 
conversion to a unitary, nonracial, 
nondiscriminatory school system, it 
must be held unacceptable." Id., at 
459 . . . "

Wright v. Council of City of Emporia, supra, 407 U.S. at 
460. Nothing does or can distinguish the application of 
the affirmative duty obligation of school officials recog­
nized in Milliken II, Swann and Green to higher education.

31/No a priori "practices-oriented" rule applies for gauging 
the effectiveness of desegregation: "any plan is 'unaccept­
able' where it 'fails to provide meaningful assurance of 
prompt and effective disestablishment of a dual system,'" 
Wright v. Council of City of Emporia, supra, 407 U.S0 at 
460, or as the lower court put it, ”[t]he limiting 
factor from the court's point of view is 'what will work?'" 
337 F.Supp. at 580.

3. Lastly, THEC and UT argue that "systems of higher
education are non-compulsory, and are intended to provide
students with a variety of dissimilar institutions from 

32 /which to choose" and that the difference between secondary 
and higher education [is] the difference between compulsion

31/ THEC appellant brief atpp. 33 et seg. 
32/ THEC appellant brief, p. 18.

28



and choice." First, the distinction is a red herring. The 
affirmative duty to eliminate segregation derives from the 
nature of the Constitutional violation, i.e., the existence 
of a dual system not from any a_ priori difference between 
compulsive and free choice systems of education. As the 
lower court put it, while 1,1 [t]he means of eliminating dis­
crimination in public schools necessarily differ from its 
elimination in colleges, . . .  the state's duty is as
exacting,'" 337 F. Supp. at 578, guoting Norris

-----  347
v. State Council, supra, 327 F. Supp. at 1373. Second.
the distinction obviously proves too much. The affirmative 
duty to desegregate elementary and secondary schools is 
neither diminished nor increased by a legislative with­
drawal of compulsory education statutes. Nor presumably 
would defendants drop their arguments against affirmative 
duty in public higher education, if Tennessee were to enact 
compulsory collegiate education. Thirdf it is not public 
elementary and secondary education which is "compulsory," but 
elementary and secondary education. Thus, in school desegre­
gation cases, loss of white students through exercise of "free

33/

33/ UT appellants brief, p. 41. Of course, UT subsequently 
argues that "exclusive program allocation" and "geographical 
limitations or restrictions upon enrollment for commuter 
students11 are permissible alternatives to merger as long as 
these alternatives (which of course run counter to a "free 
choice system") apply only to State Board of Regents institu­
tions, UT appellants brief at pp. 55-60.
34/ In Brown I, the Supreme Court rejected, without comment, 
a distinction between the free choice character of graduate 
education and the compulsive character of elementary and 
secondary education as requiring a different result for the 
students in Sweat v. Painter, 339 U.S. 629 (1950) and McLaurin

29



choice," i.e.. ,lwhite flight," simply has no legal signifi­
cance for purposes of desegregation. As this court put it 
in Bradley v. Milliken, supra, 540 F.2d at 238, " [a]pprehen- 
sion of white flight, however, cannot be used to deny basic 
relief from de jure segregation" and that '"while this 
development may be cause for deep concern [school authorities], 
it cannot, as the Court of Appeals recognized, be accepted as a 
reason for achieving anything less than complete uprooting 
of a dual public school system'" quoting, United States v .
Scotland Neck Board of Education, supra, 407 U.S. at 491.

Lastly, the characterization of public higher education 
as "free choice systems" is merely a disguised attempt to set 
aside clear finding of facts, as the THEC appellant makes 
clear: "The State has no legal responsibility for assigning 
college students and no direct control over patterns of 
student enrollment," p. 28. Of course, the court did con­
clude that defendants created and have consistently perpetuated 
and maintained a dual system of education in violation of the 
14th Amendment. The underlying findings are not clearly erroneous, 
and are not drained of legal significance merely by invocation 
of "free choice system." This is especially true in a case in 
which merger of the black school and the white school would, 
as we show in the next section, directly address the very evil,

34/ continued
v. Oklahoma State Regents. 339 U.S. 637 (1950), and the school 
children in Brown, see, e.g.. Briggs v. Elliott. 98 F. Supp.
529 (E.D.S.C. 1951). Again, it was " [s]eparate educational 
facilities [which] are inherently unequal," not any compulsion- 
choice distinction, that gave rise to the affirmative duty to 
desegregate.

30



i.e. , the "existence and expansion of predominantly white 
UT-N alongside the traditionally black TSU," that has "impeded 
the dismantling of the dual system," 427 F. Supp. at 652.

III.
THE LOWER COURT PROPERLY EXERCISED ITS EQUITABLE 
DISCRETION IN ORDERING THE MERGER OF TSU AND UTN.

A. The Equitable Standard
Whether "the District Court abused its discretion in

15/ordering merger as the remedy" must be judged under the
three-part standard recently reiterated by the Supreme Court
in affirming this Court's ruling in Milliken v. Bradley II,

U.S. , 53 L .Ed.2d 745, 755-756 (1977), aff'g, 540
26/

F.2d 229, 238 (6th Cir. 1976).
"In the first place, like other equitable 
remedies, the nature of the desegregation 
remedy is to be determined by the nature 
and scope of the constitutional violation.
Swann v. Charlotte-Mecklenburg Board of 
Education, supra, at 16 ... The remedy must 
therefore be related to 'the condition 
alleged to offend the Constitution. ...'
Milliken I, supra, at 738. ... Second, the 
decree must indeed be remedial in nature, 
that is, it must be designed as nearly as

35/ UT appellants' brief, p. 38.
36/ The court prefaced its statement of the standard with 
the observation that:

"This Court has not previously addressed 
directly the question whether federal courts 
can order remedial education programs as part 
of a school desegregation decree. However, the 
general principles governing our resolution of 
this issue are well settled by the prior deci­
sions of this Court. In the first case concerning

31



possible 'to restore the victims of discrim­
inatory conduct to the position they would 
have occupied in the absence of such conduct.'
Id. at 746. ... Third, the federal courts in
devising a remedy must take into account the 
interests of state and local authorities in 
managing their own affairs, consistent with 
the Constitution. In Brown II the Court 
squarely held that ' [s]chool authorities 
have the primary responsibility for elucidating, 
assessing, and solving these probems. ...'
349 U.S., at 299. ... (Emphasis supplied.)
If, however, 'school authorities fail in their 
affirmative obligations ... judicial authority 
may be invoked.' Swann, supra, at 15. ...
Once invoked, 'the scope of a district court's 
equitable powers to remedy past wrongs is broad, 
for breadth and flexibility are inherent in 
equitable remedies.' Ibid."

Compare Swann v. Charlotte-Mecklenburg School Board, supra, 

402 U.S. 15-16. The district court's 1972 statement of 
governing legal standards, set forth supra at p. 26, is thus 

confirmed. Moreover, as we further show, merger was proper 
in the record in this case and well within the "breadth and 

flexibility ... inherent in equitable remedies."

36/ Continued
federal courts' remedial powers in eliminating 
de jure school segregation, the Court laid down 
the basic rules which governs to this day: 'In
fashioning and effectuating the [desegregation] 
decrees, the courts will be guided by equitable 
principles.' Brown v. Board of Education, 349 
US 294, 300 ... (Brown II)."

53 L.Ed.2d at 755.

32



The lower court fully stated the findings of fact 
that require the conclusion that the State's approach to 

dismantling the dual system in Nashville has not worked and 

contains no prospect of working, and that the only reason­

able alternative to accomplish desegregation is merger of 

TSU and UTN into a single institution under a single govern­
ing board, 427 F. Supp. at 654-660, and plaintiffs-intervenors 

Richardson, e_t a_l. and the government have shown at length 

the substantial basis in the record for these findings, 

Richardson brief, pp. 21-32, government's brief, pp. 12-18, 
28-32. Summarized, these findings are: The use of joint,

cooperative and exclusive program allocations in the 1974 

Long Range Plan and as implemented proved completely ineffec­
tive in overcoming the dual system. None of the programs 

formulated by defendants worked; the only program with any 

success was the graduate teacher education program ordered 
by the court to be exclusively allocated to TSU (and then its 

off-campus character did not result in substantial segregation 

of the TSU campus). Moreover, defendants evaded the court's

B . Merger Is An Appropriate Remedy In This Case
iv

37/ The findings of fact on the nature of the constitutional 
violation were summarized supra at pp. 3-4.

33



orders to develop a meaningful desegregation plan; the

division and inability of the defendants to pull together 

was found "destructive." At the trial all expert testimony 
supported merger as a superior alternative to the State's 

program allocation approach, and even defendants' experts 

agreed that merger is the best long range solution. In 
addition, the former THEC Chairman and head of the Long Range 

Plan monitoring committee testified that, "I think in the 

future a point will be reached where a merger might be a 

solution. ... My estimate would probably be five to ten 
[years]" (T. 749-750, A. ). Merger was not studied nor 

proposed by the Long Range Plan primarily because of the 

inability of defendants— principally UT, THEC and the State 

Board of Regents— to agree. The court also found that one 
governing board for the merged institution, and that "merger 
under the Board of Regents, with UTN supporting TSU during 
the transition period ... offers the best prospect for success," 
427 F. Supp. at 560.

Lastly, the history of this case demonstrates that merger 

was not ordered precipitously, and that the lower court gave 

defendants many years to do what had to be done. (Indeed, 

the district court deferred too long to the perogatives of 

defendant State educational officials in designing a Nashville

34



desegregation plan.) It was only when the manifest refusal 

of defendants to act was clear beyond any doubt that the 

court reluctantly ordered what it had ordered defendants 

specifically to consider doing voluntarily 4 years earlier. 
The lower court very frankly recognized that the "radical" 

and "extreme" nature of merger was called for by the "egre­
gious Constitutional violation.

Clearly, the court met the equitable standard of 

Milliken v. Bradley II, Swann and the 1972 opinion. First, 

the remedy of merger was not merely related to the condition 

that was in violation of the Constitution, it directly 

redressed the expansion of white UTN alongside black TSU 
which was one of the central hallmarks of the Tennessee dual 
public higher education system, and which "impeded the dis­

mantling of the dual system." Second, the merger remedy is 

surely the one remedy that most nearly as possible restores
the victims of discrimination to their rightful place. The

38/
natural desegregation of TSU that the existence and expan­

sion of UTN prevented from occurring is exactly what merger 
will accomplish. Moreover, the court-ordered merger of TSU 

and UTN will accomplish the kind of solution comparable

38/ 427 F. Supp. at 652-653, Richardson brief, pp. 16-21,
government's brief, pp. 18-28.

35



in which Memphis State University and UT's Memphis Center
39/

eventually merged. Third, there is no doubt that the
State had a full opportunity to overcome the constitutional

violation, and failed completely to act effectively.

C . THEC And UT's Objections To Merger Do Not
Demonstrate An Abuse Of Equitable Discretion.

As against the extensive factual findings which make

merger appropriate under the equitable standard applicable
to school desegregation remedies, defendants THEC and UT

seek to show abuse of discretion principally by raising a
hue and cry about the "unprecedented" nature of "forced 

40/
merger." Neither of those contentions has merit.

The merger remedy is not unprecedented. The district 

court expressly analyzed the analogous merger in Memphis 

between Memphis State University and UT Memphis Center and 
found that: "UT-N and TSU are in competition for students

just as were MSU and the UT-Memphis Center. With TSU's 
black history and UT's prestige, this competition inevitably

situation in Memphis (without the racial segregation aspect)

39/ 427 F. Supp. at 653; Richardson brief, pp. 19-21;
government's brief, pp. 25-26 (includes discussion of 
Chattanooga merger).

40/ See, e .g., THEC appellant brief, pp. 14, 49.

36



fosters dualism," 427 F. Supp. at 653. Nor has merger 

of higher education institutions for purposes of desegrega­

tion been unprecedented, see Bradley v. Board of Public 

Instruction, 10 Race Rel. L. Rep. 117 (M.D. Fla. 1965), nor 
the related remedy of enjoining construction of a rival insti­

tution (as originally sought in 1968 in the instant case), 

see Norris v. State Council of Higher Education, supra; 

see also, Lee v. Macon County Board of Education, supra. 

Indeed, the court should take judicial notice that merger 

of higher education institutions is not even unusual: sta­
tistics demonstrate that between 1968 and 1976, i.e ., during

the course of this lawsuit, there have been 86 cases of
42/

merger involving 209 institutions. UT makes the claim

that the decision of the D.C. Circuit in Adams v. Richardson,
supra, and the acceptance by the Department of Health,

43/
Education and Welfare are somehow contrary to merger.

However, the D.C. Circuit expressly stated that under Title 
VI a good state-wide plan must give special attention to 

enhancing black institutions, 427 F. Supp. at 650, n. 14,

41/

4 1/ For substantial support in the record for the lower 
court's finding, see supra at p. 36, n. 39.

42/ Government's brief, p. 61, n. 140.

43/ UT appellants' brief, pp. 52-53.

37



quoting, 480 F.2d at 1164-1165, which obviously the merger

would accomplish. Moreover, the acceptance by HEW of cer­

tain plans in June 1974 was vacated by the district court, 
see Adams v. Califano, supra, 430 F. Supp. at 119-120 (" [T]he 

Court finds that such plans did not meet important desegre­

gation requirements and have failed to achieve significant
44/

progress toward higher education desegregation"). Adams

v. Califano. 430 F. Supp. at 120, again emphasized that 

'"[t]he desegregation process should take into account the 

unequal status of the Black colleges and the real danger 

that desegregation will diminish higher education opportun­
ities for Blacks.'" Pursuant to the court's order HEW has 
now drafted Amended Criteria Specifying Ingredients of

Acceptable Plans to Desegregate State Systems of Public Higher 
45/

Education. These criteria state, inter alia, that there

is an affirmative duty to take effective steps to eliminate 

de jure segregation (citing Green, supra; Norris v. State Council 
of Higher Education, supra; Lee v. Macon County Board of 
Education, supra. and the court's 1972 decision in the

44/ The slip opinion of this decision is also set forth as 
Appendix D to the Richardson brief.

45/ 42 Federal Register 40780 (August 11, 1977).

38



instant case), and that traditionally black .colleges have

a unique role. Indeed, in listing the elements of a plan

for disestablishment of the structure of the dual system,

the criteria expressly sanction "merging institutions or

branches thereof, particularly where institutions or campuses
46/

have the same or overlapping service areas" (emphasis added).

46/ "To achieve the disestablishment of the structure of 
the dual system, each plan shall:

ic Jc ic

"C. Commit the state to take specific steps to elim­
inate educationally unnecessary program duplication among 
traditionally black and traditionally white institutions in 
the same service area. The plan shall identify existing 
degree programs, major fields of study, and course duplica­
tion (other than core curricula) among institutions having 
identical or overlapping service areas and indicate specif­
ically with respect to each area what steps the state will 
take to eliminate such duplication. The elimination of such 
program duplication shall be carried out consistent with the 
objective of strengthening the traditionally black colleges.

"D. Commit the state to give priority consideration to 
placing any new undergraduate, graduate, or professional 
degree programs, courses of study, etc., which may be proposed, 
at traditionally black institutions, consistent with their 
missions.

*  * *  *

"H. Commit the state and all its involved agencies and 
subdivisions to specific measures for achievement of the 
above objectives. Such measures may include but are not lim­
ited to establishing cooperative programs consistent with 
institutional missions; reassigning specified programs, course 
offerings, resources and/or services among institutions; 
realigning the land grant academic programs so that research, 
experiment and other educational services are redistributed on 
a nonracial basis; and merging institutions or branches thereof, 
particularly where institutions or campuses have the same or

39



While the HEW criteria establish only minimal standards, 

whose adequacy is being challenged in the Adams v. Califano 

litigation, we submit that they fully support the lower 
court's exercise of equitable discretion as within commonly 
accepted remedies for curing discrimination in higher educa­

tion.
Nor is the concept novel in school desegregation law 

generally in which "the obligation of every school district 

is to terminate dual school systems at once and to operate 

now and hereafter only unitary schools," Alexander v. Holmes 

County Board of Education, 396 U.S. 19, 20 (1970), which as 

a practical matter results in plans "to merge faculties and 
staff, transportation, services, athletics and other extra­

curricular activities," Singleton v. Jackson Municipal

46/ Continued
overlapping service areas. The measures taken pursuant to 
this section should be consistent with the objective of 
strengthening the traditionally black colleges."
(42 Federal Register at 40782-40783 (original emphasis 
deleted, emphasis added).)
47/ On December 27, 1977, plaintiffs in the Adams case 
filed a Motion for Order Requiring Improvement of Higher 
Education Desegregation Criteria that the criteria were 
otherwise inadequate. Some of counsel for plaintiffs-inter- 
venors Richardson, e_t a_l. are also counsel for plaintiffs in 
Adams, and will keep the court apprised of subsequent devel­
opments on this motion and the Adams litigation generally.

40



Separate School District, 419 F.2d 1211, 1217 (5th Cir. 1970) 

(en banc). Thus, courts as a matter of course have ordered

the pairing or clustering of schools, realignment of school 

assignment zones and relocation of portable school rooms as 
methods for eliminating segregated schools, see, e.g.,

Cisnercs v. Corpus Christi Independent School District, 467 

F.2d 142, 153-154 (5th Cir. 1972). This and other circuits 

have ordered interdistrict remedies where, as here, 

there was a violation by several school districts, see, e.g., 
Newburg Area Council, Inc, v. Board of Education, supra;
Evans v. Buchanan, supra. Furthermore, in Wright v. Council 
of City cf Emporia, supra, and United States v. Scotland 

Neck City Board of Education, supra, the Supreme Court for­
bade the establishment of separate or "splinter" school systems 

which would impede desegregation— a mirror-image of the relief 

ordered in the instant case.

Merger or consolidation types of remedies are common in 
other civil rights areas. For example, segregated local 
unions have been ordered merged, see, e.g., Local 189, United 

Paper Makers and Workers v. United States, 416 F.2d 980 (5th 

Cir. 1969); Hicks v. Crown Zellerbach Corp., 310 F. Supp. 536 

(E.D. La. 1970); United States v. International Longshoremen's 

Assoc. , 319 F. Supp. 737 (D. Md. 1970), cf_. East Texas Motor

41



Freight v. Rodriguez, ___ U.S. ____ , 52 L.Ed.2d 453, 453

(1977) ("merger of the city and line-drivers collective bar­

gaining units"). Another example is the merger of political 
entities in voting rights cases, see, e.g ., White v.

Regester, 412 U.S. 755 (1973); Gomillion v. Lightfoot, 364 

U.S. 339 (1960); United Jewish Organization of Williamsburgh

v. Carey, ____  U.S. ____ , 51 L.Ed.2d 229 (1977); Kirksey
v. Board of Supervisors of Hinds County, 554 F.2d 139 (5th 

Cir.), cert, denied, ____  U.S. ____ , 46 U.S.L.W. 3357 (1977).
The rhetorical claim that a "forced merger" is a per se

abuse of equitable discretion because of its interference in

the political process has no more merit under the record in

this case than defendant school boards' claims of "forced
busing" in Swann v. Chariotte-Mecklenburg Board of Educa-
tion or "bizarre" educational components in Bradley v, Milliken,
supra, 540 F .2d at 236, aff'd, 53 L.Ed.2d 745. Nor is UT's
belated effort to present alternatives to merger which do not

48/
meet the peculiar problem of TSU and UTN enough. in short,
the history of the litigation and record amply demonstrate 

that "[t]he District Court has ... properly enforced the 
guarantees of the Fourteenth Amendment consistent with [the

48/ UT appellants' brief, pp. 54, et seg.

42



Supreme Court's] prior holdings, and in a manner that does 
not jeopardize the integrity of the structure or function 

of state and local government," Milliken v. Bradley II, 

supra, 53 L.Ed.2d at 763.

43



CONCLUSION

*

For the reasons stated above, the district court's

Nashville merger order should be affirmed.*
Respectfully submitted,Ak:mL  r

AVON N. WILLIAMS, JR. 
MAURICE E. FRANKLIN 
RICHARD H. DINKINS

1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Plaintiffs- 
Intervenors, Appellees 
Richardson, et al. in 
Nos. 77-1621, 1623, 1625

* Plaintiffs-intervenors Richardson, et al. have cross- 
appealed the lower court's further orders on implementation 
of the Nashville merger and statewide desegregation efforts 
outside Nashville, see Nos. 77-1622 and 1624.

44



CERTIFICATE OF SERVICE

*
r-

«

*

I hereby certify that copies of the foregoing Brief 

For Plaintiffs-Intervenors, Richardson, et al., in Nos.

77-1621, 1623 and 1625 has been served upon the following 

counsel of record in this cause by first class mail, postage

prepaid, as follows, this the 11th day of January, 1978:

Hon. William J. Haynes, Jr. 
Assistant Attorney General 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tenn. 37219
Robert Reinstein, Esq. 
Appellate Section 
Civil Rights Division 
Department of Justice 
Washington, D. C. 20530

Nathaniel Douglas, Esq. 
Education Section 
Civil Rights Division 
Department of Justice 
Washington, D. C. 20530

Joseph O. Fuller, Esq. 
Fuller & Tunnell 
426 Shelby Street 
Kingsport, Tenn. 37660
D. Bruce Shine, Esq. 
Ferguson & Shine 
700 Sullivan Street 
Kingsport, Tenn. 37660
Beauchamp Brogan, Esq.
The University of Tennessee 
Suite 810, Andy Holt Tower 
Knoxville, Tenn. 37916
Thomas Wardlaw Steele, Esq. 
Post Office Box 2757 
Nashville, Tenn. 37219

George E. Barrett, Esq.
9th Floor
Third National Bank Building 
Nashville, Tenn. 37219

William Willis, Esq.
Alfred H. Knight, Esq. 
Seventh and Union Street 
Nashville, Tenn. 37219

Hon. Hal Hardin 
United States Attorney 
United States Courthouse 
Nashville, Tenn. 37201

James E. Drinnon, Jr., Esq. 
Assistant General Counsel 
Administrative Building 
University of Tennessee 
Knoxville, Tenn. 37916

Lewis L. Laska, Esq.
1231 17th Avenue South 
Nashville, Tenn. 37212

/______ i_______________________________
Attorney for Plaintiffs-Intervenors,
Appellees Richardson, et al., in Nos. 77-1621, 1623 and 1625