Goss v. Knoxville, TN Board of Education Supplemental Brief for Appellants on Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NOS. 72-1766, -1767

JOSEPHINE GOSS, et al.,
Plaintiffs-Appellants,

vs.
THE BOARD OF EDUCATION OF THE 

CITY OF KNOXVILLE, TENNESSEE, et al.,
Defendants-Appellees.

SUPPLEMENTAL BRIEF FOR APPELLANTS 
ON REHEARING EN BANC

CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915 

AVON N. WILLIAMS, JR.
1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219 
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J . CHACHKIN 
SYLVIA DREW 
JOHN BUTLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NOS. 72-1766, -1767

JOSEPHINE GOSS, et al.,
Plaintiffs-Appellants,

vs.
THE BOARD OF EDUCATION OF THE 

CITY OF KNOXVILLE, TENNESSEE, et al.,
Defendants-Appellees.

SUPPLEMENTAL BRIEF FOR APPELLANTS 
ON REHEARING EN BANC

Pursuant to this Court's Order of May 22, 1973 entered 
in connection with the grant of rehearing en banc in this cause, 
appellants submit this Supplemental Brief for two purposes:
(1) to summarize in brief fashion for the benefit of the full

1/Court the contentions advanced at oral argument before the panel,
1/ We do not mean to intimate any agreement with the view of Judge 
_ Weick that we will be denied any right because oral argument on 
this rehearing will be dispensed with by Order of the Court. Rule 
2, F.R.A.P., specifically authorizes suspension of provisions of 
other rules, including Rules 34 and 35, in particular cases in the 
discretion of the Court. Indeed, acting pursuant to this authority, 
the Fifth Circuit has eliminated oral arguments in virtually all 
school desegregation appeals, and while appellants would certainly 
not be happy with such a rule in this Circuit, it has not yet been

(cont'd)



and (2) to suggest legal issues of Circuit-wide importance which 
remain unsettled because of conflicts among panels of this Court, 
and whose explicit resolution eii banc will both materially advance 
constitutional compliance throughout the Circuit and also help 
eliminate repetitive appeals to this Court in pending school 
desegregation cases.

I
There are three issues in this case: the pupil assign­

ment plan approved by the district court, the black school closing 
approved by the district court, and the question whether attorneys' 
fees should have been awarded by the district court to plaintiffs- 
appellants— and should be awarded by this Court for this appeal. 
While the primary issue concerns pupil assignments, all issues 
should be considered and ruled upon by the Court.

Regarding pupil assignments, the ultimate question is 
whether the district judge will be told he must require pupil 
transportation (busing) to desegregate the Knoxville schools.
School board and plaintiffs' expert witnesses alike agreed that 
any substantial desegregation in Knoxville— or at the least any 
substantially greater desegregation than presently exists— requires 
busing.

Busing is as feasible in Knoxville, technologically,
1/ (cont'd) challenged in the Fifth Circuit. Oral argument al­
most always provides an opportunity for counsel to assist in 
clearing up confusion in the minds of the reviewing judges, and 
for this reason we should be more than happy to appear at an 
argument should the Court desire one. But we recognize this to 
be within the province of the Court for determination.

-2



as it was in Charlotte, Mobile, Nashville, or Norfolk and Lynch­
burg (to mention districts with terrain presenting special problems).
The direction in which ridges run through Knoxville is little 
different from the problem faced in Charlotte, whose streets ran 
in such a fashion as to isolate the black residential areas from 
other parts of the city.

The School Board's defenses based upon residential 
segregation are in error legally and factually: legally, because
(see Brief for Appellants, pp. 14-16, 26-29) they are defenses 
only if the Deal approach is useful in this context, which it 
is not (see id. at 26-27); factually, because the overwhelming 
weight of the evidence here shows that the School Board's actions 
contributed signficantly to residential segregation, and that 
the Board has consistently chosen attendance devices which lock 
in residential segregation.

Likewise, the School Board's "fiscal" defense is in 
error legally and factually: legally, because desegregation is
a constitutional imperative; factually, because the evidence 
fails to demonstrate that desegregation is beyond the means of 
the school system (see Petition for Rehearing En Banc, pp. 10-11).

The history of this case demonstrates very clearly that 
general remands from this Court will not get this school system 
desegregated. This Court told the district judge in 1971 that 
Swann eliminated reliance upon Deal tests to sustain imbalance

-3-



on the basis that a "neighborhood school" assignment pattern 
was used, at least in school systems like Knoxville with a past 
history of de_ jure segregation, which were under an affirmative 
obligation to desegregate. Yet the district judge made new legal 
errors, and ultimately approved continued operation of a segregated 
school system on "neighborhood school" grounds (see Brief for 
Appellants, pp. 27-29, 34-36).

The judgment below should be reversed and this matter 
remanded with the following explicit instructions to the district 
court:

1. Busing must be used as part of an acceptable 
desegregation plan for Knoxville, since it is the only 
method of achieving desegregation of the schools. Kelley 
v. Metropolitan County Bd. of Educ., 463 F.2d 732 (6th 
Cir. 1972); Northcross v. Board of Educ. of Memphis, 466 
F.2d 890 (6th Cir. 1972); Monroe v. County Bd. of Educ. 
of Madison County, 439 F.2d 804 (6th Cir. 1971).

2. The proper constitutional goal, and the goal of 
the plaintiffs and the Court, is not racial balancing but 
proper consideration of the system-wide ratios as measures 
of the effectiveness of any plan. Swann v. Charlotte- 
Mecklenburq Bd. of Educ., 402 U.S. 1 (1971); Davis v.
Board of School Comm'rs of Mobile, 402 U.S. 33 (1971);
Kelley, supra; Northcross, supra.

- 4 -



3. The affirmative obligation to desegregate means 
that to the extent feasible, desegregation must be maxi­
mized and system-wide in scope. Swann, supra? Robinson
v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 1971) 
(per McCree, J-); Kelley, supra.

4. To these ends, the district court may not approve 
a plan which is less effective than that proposed at the 
last hearing by Dr. Stolee. Adams v. School Dist. No. 5, 
444 F.2d 99, 101-02 (4th Cir. 1971).

5. Proceedings on remand should be expedited and 
definitive time schedules established to the end that 
complete desegregation may be effectuated with the 1973-74 
school year. Northcross, supra.

Such explicit instructions will hopefully insure that 
constitutional compliance is at least reached with respect to 
pupil assignment in the Knoxville public schools. This Court 
should also issue directions to the district court respecting 
the two other matters involved in this appeal: the closing of
Cansler Elementary School and the award of attorneys' fees.

As we urged in our original brief on the merits 
(pp. 37-39, 60) , the Court should direct that the Cansler 
Elementary School be reopened for regular instructional purposes 
as a fully desegregated facility for the 1973-74 school year 
unless the School Board demonstrates a compelling justification

5-



for closing this completely suitable black facility. As Judge
McCree stated in his dissent in Robinson v. Shelby County Board 
of Education, 467 F.2d 1187, 1200 (6th Cir. 1972), "any purposeful 
imposition of a disproportionate share of the desegregation 
burden upon black students is impermissible, unless there are 
compelling circumstances justifying that imposition."

With respect to the matter of counsel fees, appellants 
rest upon the discussion in our opening brief and reply brief 
regarding Section 718 of the Education Amendments of 1972, except to 
add that a petition to review the decision of the Fourth Circuit 
attached to the Reply Brief as Appendix A is presently pending 
before the Supreme Court of the United States, No. 72-1322. 
Additionally, we call to the Court's attention, in connection with 
the argument at pages 40-51 of our opening brief supporting the 
award of counsel fees based upon the "conferral of benefits" and 
"private attorney general" theories, the recent decision of the 
Supreme Court in Hall v. Cole, 41 U.S.L.W. 4658 (May 14, 1973).
This Court should award appellants attorneys fees for this appeal 
and direct the award of fees by the District Court for the prior 
proceedings.

-6-



II
The school desegregation case opinions of this Court in

Mr

the last several years have been marked by significant conflicts 
among panels on important legal principles. The result has 
been not only that the degree of school desegregation in a given 
district depends upon the vagaries of panel selection, but also 
that the district courts of this Circuit have been left in 
complete confusion about the law. Each new panel ruling inevi­
tably results in an attempt to compensate by district judges.
For example, the Chattanooga School Board claimed that after an 
initial ruling in its case based upon Kelley v. Metropolitan 
County Bd. of Educ., 436 F.2d 856 (6th Cir. 1970) and Robinson 
(1971), supra, "[t]he District Court appeared to shift emphasis 
on the basis of Goss v. Board of Education of City of Knoxville 
[1971] ..." Brief for Defendant-Appellee and Cross-Appellant
in Nos. 71-2006, -2007, p. 15.

Only explicit resolution of the conflicts on various 
issues which have marked the recent opinions of this Court can 
give the district judges the guidance they need. The per curiam 
en banc affirmance in Mapp v. Board of Education of Chattanooga, 
No. 71-2006 (6th Cir., April 30, 1973), for example, fails to 
assist district courts by elucidating Circuit policy or any of 
the issues raised by any party —  and leaves the parties them-

-7-



selves no recourse except to seek Supreme Court review in 
order to obtain a decision on their contentions.

We would respectfully suggest that considerations of 
judicial administration (new appeals are less likely if district 
courts and litigants are made aware of Circuit policy) as well 
as the duty of this Court under Brown and Alexander to ensure 
constitutional compliance, support explicit declarations of 
policy in the en banc opinion to be written in this case on 
the following subjects:
1. Consideration of System-Wide Ratio

Several panels of this Court, particularly in this 
case and in Mapp, have advanced the notion that reference to 
the system-wide ratio of black and white students amounts to 
applying a fixed racial quota, which the Supreme Court indicated 
in Swann would be disapproved. The effect of this approach 
can only be to suggest to district judges that they must examine 
proposed desegregation plans virtually without any reference to 
racial statistics.

On the other hand, in the 1971 decision in this case, 
Judge O'Sullivan wrote for himself, Judge Weick and Judge Miller 
that "a busing plan to accomplish a fixed or approximate racial 
balance [was] now clearly approved by Swann. 11 In this Court's 
1972 Kelley decision, this Court approved the district judge's 
action testing the desegregation plans before it by the Board's

-8-



own policy declaration that the proper ratio for integrated
schools in Nashville was between 15 and 35% black. And similarly, 
in the 1972 Northcross decision, Judge Celebreeze's opinion 
juxtaposes the system-wide black to white student ratio against 
a tabulation of the number of virtually one-race schools in 
measuring whether or not the vestiges of the dual school system 
had been eliminated.

We believe the Court en banc must strongly endorse the 
approach of the 1972 Kelley and Northcross decisions as a circuit­
wide measure of the effectiveness of desegregation plans by 
stating that district courts are expected to use the system-wide 
ratio as a guidepost in evaluating the effectiveness of desegre­
gation proposals, and that (subject to considerations of practi­
cability) , acceptable pupil assignment plans will normally 
produce individual school ratios clustered within a reasonably 
narrow range on either side of the system-wide ratio.
2. The District Court's Responsibility to Maximize Integration

Panel opinions have suggested that requiring school boards 
and district courts to maximize integration is equivalent to 
establishing the fixed racial quota condemned by Swann. To some 
extent this issue merges with the first, but it is of considerable 
independent practical significance. Some district courts, for 
example, have expressed the view that if a school board's plan 
achieves what it considers to be the bare constitutional minimum,

-9



it has no obligation to examine alternative courses of action 
open to the school district which would achieve a greater 
degree of desegregation.

We believe that such a passive position conflicts with 
applicable precedent. In this Court's 1971 decision in 
Robinson v. Shelby County Board of Education, Judge McCree stated 
that it was not sufficient to adopt a plan which does not do as 
much to disestablish segregation as an alternative proposal which 
is feasible and pedagogically sound. The same principle was 
applied by this Court's 1972 Monroe decision in remanding the 
case for reconsideration in light of Swann, Davis and Robinson.
We believe that Judge McCree's statement in the 1971 Robinson 
case reflects the only viable interpretation of the Swann language 
that school boards and district courts should attempt to achieve 
the greatest possible degree of actual desegregation consistent 
with the practicalities, and that it should be adopted as 
circuit-wide policy.
3. Busing

Despite appellate approval of and implementation of busing 
plans to achieve desegregation in Nashville, Pontiac and Memphis, 
for example, some panels of this Court have written that to 
require pupil transportation from "neighborhood" schools in order 
to desegregate them when walk-in plans are not effective violates 
constitutional rights of students —  particularly white students.

-10-



That approach is flatly contradictory to Swarm; and similar
contentions were rejected by, among others, this Court's 1972 
Kelley and Northcross decisions and the 1971 ruling in Monroe 
v. Madison County. We suggest that the Circuit establish the 
principle, as a guide for district judges, that effective and 
constitutionally acceptable desegregation plans must utilize 
pupil transportation whenever schools cannot be desegregated to 
an extent substantially in accord with the system-wide ratio by 
assignments based upon pupils walking to school —  subject, of 
course, to the Swann limitations of feasibility and educational 
soundness.
4. Burden of Proof

It has been suggested that school boards do not have, the 
burden of justifying any significant departures from the system- 
wide ratio which result from their proposed plans of desegrega­
tion, at least where they have never openly violated previous 
Court orders such as freedom-of-choice decrees. This is apparently 
responsive to school boards' arguments that they are not "in 
default" under Swann■ That contention represents a complete 
misreading of the Supreme Court decision. There, the concept of 
default was relevant only to Judge McMillan's action in appointing 
his own expert to devise a plan after the Board had refused to 
submit one. Nothing in Swann suggests that measuring desegregation 
plans by their effectiveness in producing actual pupil integration

-11-



is dependent upon a similar complete abdication of responsibility 
by school boards. This Court's 1972 Kelley and Northcross 
decisions, again among others, explicitly placed the burden of 
justification where it belongs —  on the school boards. This 
Court should follow those decisions as a matter of circuit-wide 
principle.
5. The Necessity for System-Wide Relief

A desegregation plan which affects, insofar as feasible, 
all of the schools in a district is the implicit requirement of 
Swann1s authorization for considering the system-wide ratio. Cf. 
Cisneros v. Corpus Christi Independent School Dist., 467 F.2d 142 
(5th Cir. 1972). Recent decisions by this Court have endorsed 
the principle of system-wide relief, as in the 1972 Kelley case 
where Judge Edwards rejected a claim that schools which change 
from white to black during the course of the litigation need not 
be desegregated. This Court should adopt as circuit-wide policy 
the principle of system-wide relief subject only to the feasibility 
considerations of Swann.

CONCLUSION
Appellants are grateful for the willingness of the entire 

Court to reconsider the ruling in this matter; we respectfully 
urge the Court not only to grant the relief we have prayed for 
in our briefs, implemented through the sort of instructions to

-12-



2/
the district court outlined above, but also to utilize the 
opportunity presented to establish once and for all the prin­
ciples of such decisions as the 1972 Kelley and Northcross rulings 
as the policies of the Sixth Circuit with regard to school 
desegregation.

2/ We recognize the natural reluctance of an appellate court
to interfere in the slightest degree with the district courts' 

free hand in reaching decisions. Yet the circumstances of this 
case and the obligation of Courts of Appeals, as well as district 
courts, to effectuate compliance with the commands of Brown and 
Swann, require specific direction to the lower court. Thus, the 
Supreme Court in 1971 required immediate issuance of this Court's 
mandate, Goss v. Board of Educ., 403 U.S. 956. A remand with 
specific instructions is but a moderate step to ensure constitu­
tional compliance. Compare Stell v. Board of Public Educ., 387 
F.2d 486 (5th Cir. 1967) .

Respectfully submitted

CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915 

AVON N. WILLIAMS, JR.
1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219 
JACK GREENBERG 
JAMES M. NAERIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHN BUTLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

-13-



CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of June, 1973, 

I served two copies of the foregoing Supplemental Brief for 

Appellants on Rehearing En Banc upon counsel for the appellees 

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

class postage prepaid, addressed to each as follows:

Sam F. Fowler, Jr., Esq.
1412 Hamilton National Bank Building 
Knoxville, Tennessee 37902
W. P. Boone Dougherty, Esq.
1200 Hamilton National Bank Building 
Knoxville, Tennessee 37902