Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Brief for Plaintiffs as Appellees and Cross-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NOS. 71-1778 and 71-1779

ROBERT W. KELLEY, et al.,
HENRY C. MAXWELL, JR., et al.,

Plaintiffs-Appellees-Cross Appellants,
vs.

METROPOLITAN COUNTY BOARD OF EDUCATION OF 
NASHVILLE and DAVIDSON COUNTY, TENNESSEE, et al.,

Defendants-AppeHants-Cross Appellees.

BRIEF FOR PLAINTIFFS AS 
APPELLEES and CROSS-APPELLANTS

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

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

10 Columbus CircleNew York, New York 10019
Attorneys for Plaintiffs- 
Appellees-Cross Appellants



INDEX

Issues Presented for Review ........................  ]_
Statement ...........................................  3
Argument
I The Provisions of Rule 23, F.R.C.P.,

Have Been Complied With And The District
Court Acted Within Its Jurisdiction In
Decreeing Desegregation Of The NashvillePublic Schools ...............................  10

II The Record Demonstrates That The Predomi­
nantly Black Schools Which Had Been All- 
White In 1955 Or 1960 Were Segregated 
Schools In 1970 As The Result Of StateAction ........................................ 15

III Neither Previous Findings Of Good Faith 
Nor The Untested Allegations Of The Board's 
Post-Judgment Report Warrant Reversal Of
The District Court's Order ....................  18

IV This Case Should Be Remanded To The District
Court With Directions To Make Specific 
Findings And Cpnclusions Justifying Adoption Of A Plan Which Is Less Effective Than 
Alternatives In The Record And Which Dispro­
portionately Burdens Black Students ...........  24

Conclusion......................................  29

TABLE OF CASES

Adams v. School Dist. No. 5, Orangeburg, 444 F.2d 99,(4th Cir. 1971), aff'g Green v. School Bd. of
Roanoke, 316 F. Supp. 6 (W.D. Va. 1970) ...........  28Alexander v. Holmes County Bd. of Educ.,396 U.S. 19 (1969) ................................  5

Bell v. West Point Municipal Separate School Dist.446 F. 2d 1362 (5th Cir. 1971) .....................  27
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970).*.!!! 23 Bradley v. School Bd. of Richmond, 325 F. Supp. 828(E.D. Va. 1971)....................................  23
Brice v. Landis, 314 F. Supp. 974 (N.D. Cal!*1969)!!!! 27 Brunson v. Board of Trustees, 429 F.2d 820(4th Cir. 1970)   13

1



Carr v. Montgomery County Bd. of Educ., 429 F.2d 382(5th Cir. 1970) .......................................  28
Chambers v. Iredell County Bd. of Educ., 423 F.2d 613(4th Cir. 1970)........................................  28
Clark v. Board of Educ. of Little Rock, 442 F.2d 493(8th Cir. 1971) .......................................  2
Davis v. Board of School Comm'rs of Mobile County,402 U.S. 33 (1971) ....................................  7n# 18
Davis v. School Dist. of Pontiac, 443 F.2d 573(6th Cir. 1971) ......................................  26
Felder v. Harnett County Bd. of Educ., 409 F.2d 1070(4th Cir. 1970) .......................................  28
Gordon v. Jefferson Davis Parish School Bd.,

446 F. 2d 266 (5th Cir. 1971)...........................  28
Goss v. Board of Educ. of Knoxville, 373 U.S. 683(1963) ................................................  4
Goss v. Board of Educ. of Knoxville, 444 F.2d 632(6th Cir. 1970).......................................  H
Green v. County School Bd. of New Kent County, 391

U.S. 430 (1968).......................................  4, 18,25
Hall v. St. Helena Parish School Bd., 417 F.2d 801

(5th Cir.), cert, denied, 396 U.S. 904 (1969).........  19
Haney v. County Bd. of Educ., 410 F.2d 920(8th Cir. 1969)   13
Haney v. County Bd. of Educ., 492 F.2d 364(8th Cir. 1970)   27
Kelley v. Metropolitan County Bd. of Educ.,
436 F. 2d 856 (6th Cir. 1970) ..........................  5

Kelley v. Metropolitan County Bd. of Educ.,
317 F. Supp. 980 (M.D. Tenn. 1970)......................  5n

Knight v. Auciello, ___ F.2d ___, No. 71-1108
(1st Cir., January 17, 1972)...........................  2

Lee v. Macon County Bd. of Educ., 448 F.2d 746(5th Cir. 1971)   27
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970),aff'd 402 U.S. 935 (1971) ..............................  23
McDaniel v. Barresi, 402 U.S. 39 (1971)..................  7n
Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450(1968) ................................................  4
Monroe v. Board of Comm'rs of Jackson, No. 71-1359(6th Cir., January 17, 1972) ..........................  26
Nesbit v. Statesville City Bd. of Educ., 418 F.2d1040 (4th Cir. 1970) ..................................  2
Norris v. State Council of Higher Educ., 327 F. Supp.

1368 (E.D. Va.), aff'd ___ U.S. ___ (1971).............  23

ii



North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43
(1971) ................................................  23

Northcross v. Board of Educ. of Memphis, Civ. No.
3931 (W.D. Tenn., Dec. 10, 1971) ......................  17

Pate v. Dade County School Bd., 434 F.2d 1151 (5th
Cir. 1970) ............................................  20

Robinson v. Shelby County Bd. of Educ., 429 F.2d 11
(6th Cir. 1970) .......................................  21

Robinson v. Shelby County Bd. of Educ., 442 F.2d 255
(6th Cir. 1971) .......................................  26

Sloan v. Tenth School Dist. of Wilson County,
433 F. 2d 587 (6th Cir. 1970) ..........................  19, 22

Smith v. St. Tammany Parish School Bd., 302 F. Supp.106 (E.D. La. 1969) ...................................  28
Spangler v. Pasadena City Bd. of Educ., 311 F. Supp.

501 (C.D. Cal. 1970) ..................................  28
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 (1971)..........................................  2,5,7n, ll
18,19,20,2Swann v. Charlotte-Mecklenburg Bd. of Educ.,

328 F. Supp. 1346 (W.D.N.C. 1971)......................  27
United States v. Greenwood Municipal Separate School 
Dist., 406 F.2d 1086 (5th Cir.), cert, denied, 395 
&.S. 907 (1969) .......................................  13

Other Authority:
Hearings on Equal Educational Opportunity Before the 

Select Committee on Equal Educational Opportunity 
of the United States Senate, 92d Cong., 1st Sess.
(1971) ...............................................  22

i i i

"V



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NOS. 71-1778 and 71-1779

ROBERT W. KELLEY, et al.,
HENRY C. MAXWELL, JR., et al..

Piainti ffs-Appellees-Cross 
Appellants,

vs.

METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE and DAVIDSON COUNTY, TENNESSEE, et al.,
De fendants-Appellants-Cross Appellees.

BRIEF FOR PLAINTIFFS AS 
APPELLEES and CROSS-APPELLANTS

Issues Presented for Review

On the Appeal in No. 71-1779

Defendants-Appellants describe the issues they raise on 
r appeal as follows:

1. Whether the trial court had jurisdiction to hear 
and determine the controversy under the Declaratory 
Judgment Act in the absence of compliance with Rule 23 
of the Rules of Civil Procedure. The trial court 
answered the question "Yes," defendant says the answer should be "No."



2. Whether there are any residual effects of a dual 
school system when a school, while operating under a 
court approved plan of integration, has changed from
a white school to a mixed school, to a solid black 
school, and whether, under these circumstances, the 
court is justified in businq white students to the now 
black school in order to obtain a racial balance. The 
trial court answered the question "Yes," defendant says the answer should be "No."

3. Whether the remedy prescribed by the court is 
justified in view of the prior finding of good faith on 
the part of the school board. The trial court answered 
the question "Yes," defendant says the answer should be "No. "

4. Whether the failure of the trial court to require 
the school board to submit a second plan after the 
decision of the Swann case was error, in view of the 
fact that under prior orders the board was required to 
file its plan in August of 1970. The trial court 
answered the question "No," defendant says the answer should be "Yes."

In the circumstances of this case, defendants have raised 
no significant legal issues except whether Nashville schools 
are to be desegregated. In fact, the Board's appeal in this 
case is completely frivolous, and this is an appropriate case 
for the award to plaintiffs of double costs and reasonable 
counsel fees pursuant to F.R.A.P. 38. C_f. Nesbit v. Statesville 
City Board of Educ., 418 F.2d 1040, 1043 (4th Cir. 1969);
Clark v. Board of Educ. of Little Rock, 449 F.2d 493, 499
(8th Cir. 1971); compare Knight v. Auciello, ___ F.2d ___, No.
71-1108 (1st Cir., Jan. 17, 1972) (slip op. at p. 3) (see 
Appendix A).

We shall make no attempt to reframe the questions presented 
so as to more accurately reflect the issues —  or non-issues —  
which the Board seeks to raise. In the interest of brevity, 
we defer that discussion to the Argument.

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B. On Cross-Appeal (No. 71-1778)

Plaintiffs’ cross-appeal from the decree of the United 
States District Court for the Middle District of Tennessee 
raises the following questions:

1. Whether the district court erred in selecting the HEW plan in preference to the plan proposed by plaintiffs' 
team of expert witnesses, which would have achieved
a greater degree of integration and reduced the number 
of racially identifiable schools remaining under the HEW plan?

2. Whether the HEW plan should have been rejected 
because it places the burden of desegregation dispropor­tionately upon the black children?

Statement

This is a school desegregation action proceeding under
the present style as the result of the consolidation, in 1963,
of separate suits instituted to desegregate the public schools

1/of Nashville and Davidson County, Tennessee (see A. 89-92). 
(The city and county school systems were merged that year.)

The two suits were brought as class actions pursuant to 
the (then-applicable) provisions of F.R.Civ.P. 23(a)(3) (A. 61,
82). The defendants admitted the averments of the two Com­
plaints concerning the class nature of the suits (A. 62,83)

The three-volume Appendix herein will be cited as "A. ."
Citations given as "S.A. ___" refer to the Supplemental Appendix
filed herewith, which contains (a) pursuant to agreement of 
counsel, portions of the 1970 trial transcript to which plain­
tiffs wish to direct the Court's attention but which could not 
be identified at the time their cross-designation was prepared, 
and (b) plaintiffs' response to the Report reprinted in the 
Addendum to the Board's Brief at pp. A-l to A-8.

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and in fact treated the suits as representative litigation 
(A. 85-87 at 87, 221). The district court overruled that 
portion of a Motion to Dismiss dealing with plaintiffs' right 
to bring a class action (A. 83) and specifically held the 
suits were proper class actions (A. 62, 63, 68, 81, 84-85, 88- 
89). These rulings were held fully applicable to the consoli­
dated litigation (A. 92).

In fact, no question whatsoever was raised concerning the 
propriety of continuing this class litigation until —  following 
entry on July 15, 1971 of the major judgment which is the 
subject of these appeals —  the Board filed a motion (which it 
did not bother to include in its Appendix) to set aside the 
judgment on the ground that the district court lacked juris- 
dication to enter that judgment because the court had failed 
to comply with Rule 23, as amended in 1966.

We shall not extensively detail the previous history of 
this litigation. One of the predecessor actions was before 
the Supreme Court in 1963 as a companion to Goss v. Board of 
Educ. of Knoxville. 373 U.S. 683, on the issue of minority-to- 
majority transfers.

Following Green v. County School Bd. of New Kent County.
391 U.S. 430 (1968) and Monroe v. Board of Comrn'rs of Jackson. 
391 U.S. 450 (1968), plaintiffs intervened new class repre­
sentatives and sought, by way of further relief (A. 92-129), 
specific relief respecting Cameron High School (A. 106-14,
116-19, 121-22) and also the complete desegregation of the

-4-



school system (A. 98-105, 115, 119-21, 122-26). December 3, 
1968, the district court granted relief in part regarding 
Cameron High School and deferred consideration of the remainder 
of plaintiffs' prayer for further relief (A. 48-49; see A. 131 
f 5) .

On November 5, 1969, following the decision in 
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969), 
plaintiffs filed a Motion for Immediate Relief (A. 129-37)
again seeking the desegregation of the school system. Hearings 
were held in February, 1970 (A. 24) (see A. 222-314, S.A. 1-77)
and on July 16, 1970, the district court ruled that affirmative

2/steps to integrate the schools had not been taken; the court's 
order of August 13, 1970 required the Board to submit a plan 
to convert the public schools of Nashville and Davidson County 
to a unitary school system. However, following the Supreme 
Court's grant of certiorari in Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 399 U.S. 926 (1970), the district court stayed 
its own order except as to faculty desegregation. An appeal 
followed and this Court reversed the order granting the stay. 
Kelley v. Metropolitan County Bd. of Educ., 436 F.2d 856 (6th 
Cir. 1970).

The Board had previously filed a plan on August 19, 1970 
pursuant to the district court's August 13, 1970 order (prior

— The op:

-5-



to its stay) (A. 52). That plan was corrected on September 10, 
1970 (A. 54) and amended February 26, 1971 following issuance 
of this Court's mandate (A. 55). Although the plan announced 
the Board's recognition that in Nashville, where approximately 
25% of the students are black, the "ideal student ratio of an 
integrated school [i]s one which is 15% to 35% black" (see A.658), 
plaintiffs had objected to the sufficiency of the actual proposed 
plan (A. 137-40) and hearings on the plan began in March, 1971.

Initially, the Board took the position that its plan, 
as amended, represented nothing more than a recital of the 
steps it was prepared to take on the basis of the knowledge 
it had accummulated up to August, 1970, and that a "further 
study" to include computer location of the residence of all 
students was necessary before a comprehensive plan could be 
prepared (A. 341, 344-45, 443-44). Plaintiffs pointed out 
that this was similar to the "pupil locator map" which they had 
been seeking since 1968 as necessary to evaluate the Board's 
proposals (A. 25, 123, 131—32). The hearings were recessed 
for nearly a month and the Board was ordered to file such a 
map (A. 2 9) .

After the hearings resumed, the plaintiffs' expert 
witnesses testified in support of the alternative plans of 
desegregation which plaintiffs had previously filed (A. 145-61).
As the district court correctly found, plaintiffs' expert 
witnesses proceeded from the same assumptions as the Board: 
that appropriately integrated schools within a unitary Nashville-

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Davidson County school system should contain between 15 and 35
2/per cent black students. Plaintiffs' experts then applied to

the Nashville-Davidson system all of the educationally sound
and accepted methods of pupil assignment which have been
employed in desegregation plans, such as sectoring, pairing,
clustering, rezoning, grade restructuring, etc., to develop a
plan of pupil assignment under which 91 of 100 elementary schools4/
would have between 15% and 35% black students (A. 184).

These results would be achieved by assigning only 5,000 
more children, than under the plan subsequently approved by 
the district court, to schools so as to make them eligible for 
bus transportation by the Board (A. 186). However, under the 
court-approved plan, only 74 of 96 elementary schools would 
have enrollments between 16% and 41% black (and of these, 59% 
of all black elementary students would attend schools between 
35% and 41% black) while 22 schools (as opposed to 9 schools 
under plaintiffs' plans) would have less than 11% black students 
(A. 185).

2/ Thus,the starting point in the preparation of plans is 
far less constraining than the simple racial ratio of the 
system. Cf. Swann v. Charlotte-Mecklenburq Bd. of Educ., 402 
U.S. 1, 24 (1971). of course, there is no constitutional 
objection to the Board's deciding to integrate each school by 
assigning to it the exact racial ratios. McDaniel v. Barresi,
402 U.S. 39, 42 (1971); Swann, supra, 402 U.S. at 16.
4/ Plaintiffs' plan was not developed by any inflexible 
adherence to a fixed racial ratio; rather, adjustments were 
made to achieve "the greatest possible degree of actual desegre­
gation, taking into account the practicalities of the situation." 
Davis v. Board of School Comm'rs of Mobile County, 402 U.S. 33,
37 (1971) (emphasis supplied) (E.g., A. 536).

-7-



Following presentation of plaintiffs' proposed plans and 
the Board's rebuttal testimony, the district court again 
recessed the hearings, for more than a month, and directed 
the Board to request the assistance of the Office of Education, 
Department of Health, Education and Welfare, in the preparation 
of a desegregation plan for the school system (A. 57-58). A
team of educational experts designated by HEW prepared a plan 
of desegregation for the school system which was subsequently 
filed with the court, and the leader of the HEW team testified 
when hearings resumed as a witness called by the court (A. 660- 
724) .

Plaintiffs filed objections to the plan prepared by HEW 
(A. 176-82) and both parties presented rebuttal testimony to 
the HEW plan (A. 725-84).

On June 28, 1971, the district court filed its memorandum
opinion approving the HEW plan with certain amendments (A. 182-
211). The court recognized the failure of the HEW plan to
achieve as much desegregation as the plaintiffs' plan and, also,
that plaintiffs' plan would desegregate an additional 13
elementary schools while increasing the transportation burden
to the school system by only 5,000 students. Without specific
findings, the court concluded simply

"that costs and other problems incident to trans­
portation make this feature of plaintiffs' plan 
impractical and not feasible. The cost of the 
transportation of students and the unnecessary 
disruption of the students are proper considera­
tions. The court finds that distance and trans­
portation difficulties make the integration of 
these schools highly impracticable" (A. 190).

-8-



In order to ameliorate the situation somewhat, and in light 
of the Board’s past practice of constructing schools, making 
additions to schools, or locating portables so as to reinforce 
the patterns of segregation and racially identifiable schools 
within the system, the court enjoined any expansion or location 
of additional portable buildings at schools enrolling less than 
15% black students (A. 201).

An order in accordance with the opinion was entered July 
15, 1971 (A. 59) and was followed by a barrage of motions from 
the Board: a Motion for New Trial, a Motion to Set Aside Judg­
ment, a Motion to Amend Findings and Make Additional Findings, 
a Motion to Alter or Amend Judgment, and another Motion for New 
Trial (A. 59). All of these motions were denied in whole or 
in part; and, in particular, by memorandum and order filed 
July 21, 1971 (A. 212-16), the district court rejected the
Board's contentions with regard to lack of jurisdiction for 
failure to comply with the provisions of Rule 23. August 9, 
1971, the Board filed notice of appeal (A. 217-18) from all of 
the district court's orders, including those which denied the 
Board's motion to reopen the litigation as to the correctness 
of Judge Miller's 1970 opinion. On August 12, 1971, plaintiffs 
cross appealed from the district court orders.

-9-



Argument
I

The Provisions of Rule 23, F.R.C.P., Have 
Been Complied With And The District Court 
Acted Within Its Jurisdiction In Decreeing 
Desegregation Of The Nashville Public Schools.

The Board's first argument is an attempt to find some 
means of invalidating all of the orders below and thus to 
abruptly halt the steps toward converting the previously 
segregated public schools of Nashville and Davidson County 
into a unitary school system which have been taken only 
pursuant to court order. The Board's argument overlooks the 
plain meaning of the Supreme Court's order adopting amendments 
to the Federal Rules of Civil Procedure on February 28, 1966 
and seriously misconceives the nature of the Rules themselves.

Most of the Board's brief on this subject deals not with 
the issue it poses, namely: whether the district court should 
be required to make new findings with respect to the propriety 
of this class action after the filing of plaintiffs' motions 
for further and immediate relief. Instead, the Board argues 
the merits of an issue not before the Court: whether represen­
tation of the class by the present named plaintiffs is adequate 
vel non to protect the interests of the class of school children 
attending defendants' school system, or whether notice to the 
class pursuant to the present provisions of Rule 23(c) is 
appropriate. There is no reason for this Court to reach any 
of these questions in the rather abstract setting in which the

- 10 -



Board has presented them.

There can be no question, nor do we understand the Board 
to contest the fact, that the provisions of Rule 23 applicable 
to this litigation at the time its individual predecessor suits 
were commenced in 1955 and 1960, were complied with by the 
district court, including findings with respect to the appro­
priateness of class actions and the adequacy of representation 
(A. 62, 63, 68, 81, 84-85, 88-89). The Board's predecessors 
admitted the allegations of the complaints concerning the 
class nature of the litigation and referred to the matters 
as class suits (A. 62, 83-87, 221). The Board's present 
argument hinges entirely on its assertion that the filing of 
a Motion for Further Relief in 1968 or the filing of a Motion 
for Immediate Relief in 1969, on behalf of the plaintiffs 
and seeking still the elimination of an unlawful dual school 
system in Nashville and Davidson County, somehow commenced 
new litigation which required the district court to redetermine 
the propriety of the class action in accordance with the present 
provisions of Rule 23 (including the giving of notice to all 
members of the class).

An analogous argument, to the effect that the doctrine of 
res judicata applied to school desegregation cases so as to 
bar motions for further relief consistent with the developing 
law as enunciated by the Supreme Court, was recently rejected 
by this Court in Goss v. Board of Educ. of Knoxville, 444 F.2d 
632 (6th Cir. 1971).

-11-



The Board argues that the decree below should be reversed 
for the reason that the district court was without jurisdiction 
to hear and determine the controversy because of its alleged 
failure to comply with Rule 23. Assuming arguendo that there 
was any such failure, the appropriate remedy would hardly be 
reversal, particularly in light of the fact that the Board 
never raised this issue in the district court prior to the 
entry of the decree complained of. We submit that under the 
circumstances, the district court was entirely correct in 
declining to set aside its judgment.

This matter was first raised in a post-judgment motion 
without prior notice to the court that defendants had any 
problem concerning the class nature of this suit. At the most, 
if the district court is required to make findings in accordance 
with Rule 23, the cause should be remanded with instructions 
to the lower court to make the necessary rulings. It may well 
be that the lower court will sustain the propriety of this 
action under the new rules and thus the issues on appeal, should 
the Board desire to appeal, will be significantly different.

When this matter was called to the attention of the 
district judge, he ruled that this cause was not one in which 
it was "feasible" to apply the newly amended provisions of 
Rule 23 (A. 215). The court's ruling was well within the
discretion permitted under the order of the Supreme Court of 
February 28, 1966 adopting amendments to the Federal Rules,
which is set out in the district court's Memorandum (A. 215).

- 12 -



It is for the trial court to determine whether application of 
the new rules is feasible and practical, and that ruling should 
be set aside only for serious abuse of discretion. It is 
manifestly evident that no abuse of discretion took place in 
this case.

Arguments similar to those made by the Board concerning 
the different interests of elementary and high school students 
in the desegregation process have been made by districts 
brought into court by the United States, who seek disclosure 
of the identities of complaining parties by the Attorney 
General. The Fifth Circuit has frowned upon that sort of 
procedural skirmishing in language which we deem appropriate 
to the dilatory contentions made by the Board here:

... disclosure of the names of the complainants 
and the exact language of their complaints is 
unnecessary because the school board knows, has 
known since 1954, what Negro parents mean when 
they allege generally that their children are 
being denied equal protection of the laws. They 
mean that all-Negro schools yet exist, that 
faculties have not been integrated, and that 
other characteristics of the dual system remain.

United States v. Greenwood Municipal Separate School Dist., 406
F.2d 1086, 1090 (5th Cir.), cert, denied, 395 U.S. 907 (1969).

To the extent that the Board suggests that black parents 
are constitutionally entitled to segregated schools even though 
white parents are not (Brief at p. 18) that proposition has 
been rejected by other Courts of Appeals. See Haney v. County 
Board of Educ, of Sevier County, 410 F.2d 920 (8th Cir. 1969); 
Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir. 1970).



Finally, all of the Board's argument is beside the point. 
There is nothing in the Rule or the Judicial Code of the 
United States to suggest, in any way, that the procedural 
defect pre-supposed by the Board is jurisdictional. Further­
more, the individual named plaintiffs would be entitled to 
exactly the same relief as has been awarded and as the Consti­
tution requires —  even if this suit had not been brought as 
a class action. The rights guaranteed by the Fourteenth Amend­
ment are personal and immediate and encompass conversion of dual 
school systems. As Judge Miller emphasized almost 15 years 
ago,

"the relief sought by the complaint is not merely to obtain assignment [of named indi­
vidual representative plaintiffs] to 
particular schools but in addition to have a 
system of compulsory segregation declared 
unconstitutional and an injunction granted 
restraining the board of education and other 
school authorities from continuing the practice and custom of maintaining and 
operating the schools of the city upon a 
racially discriminatory basis" (A. 68).

The Board's contentions as to Rule 23 are completely 
without merit and should be rejected.

-14-



II

The Record Demonstrates That The Predominantly 
Black Schools Which Had Been All-White in 1955 
or 1960 Were Segregated Schools In 1970 As The 
Result of State Action.

In its second argument, the Board suggests that the district 
court went too far in requiring the desegregation of schools 
which had once been white but which, at the time of the 
commencement (pursuant to court order) of effective steps 
toward desegregation, were attended solely or predominantly 
by black students. The Board's argument is summarized in its 
Brief by the following assertion:

The dual school system formerly in effect in 
Tennessee was abolished by court order at the 
time of the entry of the first order of desegre­
gation . . . .  (Brief p. 24)

The Board thus disclaims any and all responsibility for the 
racial composition of its schools subsequent to the orders 
providing for grade-a-year desegregation in the predecessor 
actions to this case. Such a position is completely untenable.

The Board had ample opportunity to introduce evidence in 
the district court to support its position, but it did not.
The record overwhelmingly supports a finding that until the 
entry of Judge Miller's order in 1970 (if not until the 
present), the Board, through a variety of techniques, has 
maintained and aggravated the pattern of segregation in the 
Nashville school system. For example, some of the schools to

-15-



which the Board refers in its second argument are among those 
which Judge Miller identified in 1970 as demonstrative of the 
Board's failure to take affirmative action to desegregate, such 
as Inglewood and Clemons.

The Board historically assigned faculty members to schools 
in accordance with the predominant racial composition of their 
student bodies. This practice was carried on as a few schools 
changed in racial composition, thus completing the identifi­
cation of the schools in transition and often accelerating 
the change. For example, among the 12 schools referred to by 
the Board, Fehr had 8 black and 5 white teachers in 1969-70,
Jones 12 black and 3 white teachers, and North High School 37 
black and 17 white teachers. The witnesses at the hearings 
agreed that schools were still racially identifiable based on 
their faculty assignments (S.A. 15-16, 33-35, 67-69 [Dr. Bedelle, 
the Board's expert witness], 70-72) and that principals were 
still assigned on the basis of race (S.A. 45, 70-71). Addi­
tionally, the district court found (317 F. Supp. at 992), 
based on considerable testimony and evidence, that the construc­
tion policies of the Board in the period following entry of 
the initial orders in this lawsuit aggravated population changes 
and assisted in the conversion of some schools from white to 
black by providing a ready access for a mobile white population 
(S.A. 12-14, 19-22, 37-44, 61-64, 73-77). Most new schools 
were racially identifiable and most zone lines for these and 
other schools followed racial residential demarcation lines 
(S.A. 2-3, 7-11, 17-18, 56-60, 65). The Board worked

-16-



cooperatively with the Nashville Public Housing Agency, whose 
projects facilitated the increasing concentration of blacks 
in non—suburban areas of Nashville and the Planning Commission, 
which supplied the Board with information on proposed school 
sites, including racial composition (S.A. 27-28, 30-32, 46-55). 
The Board also located portable classrooms and made zone 
changes which resulted in segregation (S.A. 4-6, 23-26, 29).

In Swann v. Charlotte-Mecklenburg Board of Educ.. 402 U.S. 
1, 26 (1971), the Supreme Court said:

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 assignments are genuinely nondiscrimina- 
tory. The court should scrutinize such schools, 
and the burden upon the school authorities will 
be to satisfy the court that their racial com­
position is not the result of present or past 
discriminatory action on their part.

The Nashville Board never attempted to meet its heavy burden. 
Certainly its bald statement that "state action is not the 
cause of the present composition of these 12 schools" is hardly 
a substitute for the introduction of evidence sufficient to 
overcome the strong support in the record for the finding that 
the school board materially assisted in the maintenance of 
these schools as identifiably black educational units at the 
time of the 1970 decision. Cf. Northcross v. Board of Educ. 
of Memphis. Civil No. 3931 (W.D. Tenn., Dec. 10, 1971).

This Court should emphatically reject the notion that once- 
white schools which become predominantly black while recalci­
trant boards of education dragged out the desegregation process

-17-



are thereby rendered immune from inclusion in an effective

desegregation plan. Cf. Swann, supra, 402 U.S. at 20-21.

Ill
Neither Previous Findings of Good Faith 
Nor The Untested Allegations Of The Board's Post-Judgment Report Warrant Reversal 
Of The District Court's Order.

The Board's third and fourth arguments are a curious 
amalgam of unsupportable legal thesis and unverified allega­
tion. Neither requires more than a brief rebuttal.

The Board claims it should not have been ordered to 
effectively desegregate its schools by using pupil transporta­
tion because of prior findings of good faith. Whatever the 
reference, the Board's own witness testified that no good 
faith effort to desegregate had been made (A. 638); its 
Chairman admitted that the schools were not yet completely 
desegregated (S.A. 36); and the Board's witnesses and those 
of plaintiffs agreed that busing would be required as a part 
of any effective desegregation plan for Nashville (E.g., A. 506 
07) .

The Supreme Court has made it abundantly clear that the 
test of any desegregation plan is its effectiveness, Green v. 
County School Bd. of New Kent County, 391 U.S. 430, 439 (1968); 
Davis v. Board of School Comm'rs of Mobile County, 402 U.S.
33, 37 (1971), and prior good faith or lack thereof on the part
of any school board is clearly irrelevant to that determination

-18-



"The good faith of a school board in acting to desegregate 
its schools is a necessary concomitant to the achievement of 
a unitary school system, but it is not itself the yardstick 
of effectiveness." Hall v. St. Helena Parish School Bd., 417 
F. 2d 801, 807 (5th Cir.), cert. denied, 396 U.S. 904 (1969).
Accord, Sloan v. Tenth School Dist. of Wilson County, 433 F.2d 
587, 590 (6th Cir. 1970) .

Equally unavailing is the Board's strained argument 
that the district judge was obligated, after the decision in 
Swann v. Charlotte-Necklenburg Bd. of Educ., supra, "to give 
the school board a second chance." (Brief, p. 25). The 
Board's consistent failure throughout the course of this 
litigation to submit a constitutionally effective desegregation 
plan is the result of its own conscious choice, and not any 
restrictions imposed upon it by the district court. For 
example, after submission of the initial plan the Board chose 
to devote additional resources which were made available to it 
to a further study rather than to designing a more effective 
plan (A. 345). Following Swann, the Board did propose amend­
ments to its plan, which were submitted, considered by the 
district court and incorporated into the HEW plan (A. 768-78, 
896-900). The district court has never deprived the Board of 
an opportunity to submit a desegregation plan which it 
considers preferable to the HEW or plaintiffs' plans; in fact, 
the court expressly encourages such action:

-19-



On the last day of the hearings the defendants 
presented an amendment to its August, 1970 plan. 
This amendment provided that McGavock would be 
a comprehensive high school serving an area 
where several junior high schools are located. 
Although this amendment applies only to a small 
sector of the secondary school system, it reflected 
the beginning of an awareness by the defendants 
of their affirmative constitutional responsibility. 
The defendants indicate a desire to make similar 
proposals in the future, which desire the Court 
wishes to encourage. If the Board wished to 
establish a unitary school system, it had avail­
able to it the superior resources and assistance to do so.
The realistic and effective approach of the 
defendants to the McGavock School area was incor­
porated as an amendment to the HEW plan, despite 
the fact that it requires more transportation, 
over longer distances, than that required by the original HEW plan. The Court feels that where 
administrative goals can be satisfied without 
hampering the constitutional objectives to be 
accomplished, such goals should control.

(A. 191) (emphasis supplied). Compare Pate v. Dade County
School Bd., 434 F.2d 1151, 1158 (5th Cir. 1970) ("modifications 
submitted by the board ... which achieve the same or a higher 
degree of desegregation as" the court-ordered plan). Despite 
the complaints in their Brief to the effect that they were 
denied the opportunity to design their own desegregation plan 
according with the principles enunciated in Swann, the Board 
has, since the entry of the judgment appealed from, made no 
proposals whatsoever to the district court.

As to the hardships imposed upon the students and upon 
the school system by the district court's order, we respectfully 
suggest that the matters referred to in the Superintendent's 
Report reprinted as an Addendum to the Board's Brief, are not

- 20 -



properly before this Court. They should be subjected to the 
scrutiny of the district court, which has not had the oppor­
tunity to weigh their accuracy or consider whether the plan 
now in effect should be amended in whole or in part if they 
are true. Compare Robinson v. Shelby County Bd. of Educ.,
429 F.2d 11 (6th Cir. 1970).

The Report intimates, for example, that some students 
are travelling 1̂  hours one way to school because of 
assignments made pursuant to the district court's order.
Suffice it to say that neither the HEW plan nor plaintiffs' 
plans contemplated pupil transportation of such length —  
although the Board's amendment concerning McGavock High School 
necessitated additional and longer transportation routes (see 
the excerpt from the district court's opinion quoted next 
above). The Superintendent's Report fails to identify the 
schools to which students who have long bus rides are assigned, 
just as it fails to comply with the most rudimentary features 
of standard reporting decrees because it does not provide a 
listing of the student body and faculty racial breakdowns for 
each school in the system this year.

The allegations of the Report have yet to be subjected 
to examination or contradiction before the district court. 
Plaintiffs have objected to the report's insufficiencies (S.A. 
82-85) and we anticipate that the district court will proceed 
to a hearing thereon in the near future.

-21-



Decrees in school desegregation cases, like other equitable
causes, are always subject to modification in light of changed 
circumstances. Cf. Sloan v. Tenth School Dist. of Wilson 
County. 433 F.2d 587, 589-90 (6th Cir. 1970). If the diffi­
culties supposedly encountered by the Board in its implementa­
tion of the desegregation plan contained in the district 
court's order compel any action, it is surely appropriate 
modification of the decree by the lower court, rather than 
reversal by this Court on the basis of untested protestations 
of administrative burden. The Board is aware of this. Testi­
fying before the Select Committee on Equal Educational 
Opportunity of the united States Senate on October 6, 1971 
(and repeating almost verbatim the assertions in the Report), 
Superintendent Brooks stated:

. . .Unless immediate and substantial assistance
can be obtained to alleviate our transportation 
problems, our school board will have no choice 
but to ask the Federal court to modify the 
existing court plan for integration.

Hearings on Equal Educational Opportunity before the Select 
Committee on Equal Educational Opportunity, 92nd Cong., 1st 
sess., pt. 18, at 9016 (1971).

Finally, insofar as the Report indicates that more 
effective implementation of the plan could be achieved if the 
Board were able to make use of funds allocated to it by the 
Metropolitan County Council of Nashville-Davidson County

- 22 -



without restrictions which prohibit the purchase of additional 
buses, plaintiffs have endeavored, once again, to fulfill the 
Board's affirmative responsibilities by raising before the 
district court the propriety of such restrictions by another 
agency of State government which directly interfere with the 
desegregation process (S.A. 78-81). See North Carolina State 
Bd. of Educ. v. Swann, 402 U.S. 43 (1971); Lee v. Nyguist,
318 F. Supp. 710 (W.D.N.Y. 1970), aff'd 402 U.S. 935 (1971); 
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970); Norris v. 
State Council of Higher Educ., 327 F. Supp. 1368 (E.D. Va.),
aff'd ___ U.S. ___ (1971); Bradley v. School Bd. of Richmond,
325 F. Supp. 828, 846-47 (E.D. Va. 1971).

In summary, the Board has presented no adequate grounds 
for reversal of the district court's order. Rather, insofar 
as the Board's appeal is concerned, the judgment below should 
be summarily affirmed and plaintiffs awarded double costs and 
counsel fees pursuant to Rule 38, F.R.A.P.

- 23 -



IV

This Case Should Be Remanded To The District 
Court With Directions To Make Specific Findings 
And Conclusions Justifying Adoption Of A Plan 
Which Is Less Effective Than Alternatives In 
The Record And Which Disproportionately Burdens Black Students.

Plaintiffs agree with the district court's conclusion (A. 
188-89) that the school board's plan even as amended, was a 
mere token effort which did not meet constitutional standards 
and, therefore, was properly rejected by the court. Indeed, 
the testimony of the Board's witnesses furnished ample support 
for this conclusion (A. 336-340, 344, 346, 443-44). However, 
plaintiffs saw no reason to bring in HEW at the time the district 
court took that action, and plaintiffs still see no justification 
for adoption of the HEW plan.

Plaintiffs' expert witnesses described in detail the methods 
which they recommended for the desegregation of the Nashville 
school system (A. 528-58, 581-617). These techniques were the 
same as those utilized by the HEW team (A. 687), but plaintiffs' 
plans were significantly more effective and would have inte­
grated a greater number of schools than the HEW plan, as Dr.
Hall (the HEW team leader) admitted (A. 661-65).

The district court recognized the fact that 13 additional 
schools would remain racially identifiable under the HEW plans 
as opposed to the plaintiffs' plans, but approved the HEW plans 
on two grounds:

-24-



The first is that actual assignment of students, i.e., the locations from which 
they come is left to the school board.
The historical reluctance by the school 
board to solve this problem instills a lack 
of confidence in their implementation of 
this aspect without close supervision. The 
second objection is that some schools in 
the outer reaches of the county are included. 
The court finds that costs and other pro­
blems incident to transportation make this 
feature of plaintiffs' plan impractical and 
not feasible (A. 189-90).

As the Court's first "objection, this overlooks the fact 
that plaintiffs' plans were prepared and filed prior to the 
time when the pupil locator map was available (A.28-9);it was 
that map which permitted the HEW team to make specific assign­
ments. Furthermore, the court is certainly not without the 
power to enforce a decree requiring the school authorities -- 
who bear the primary responsibility for implementing a unitary 
system (Green, supra; Swann, supra) -- to prepare assignments 
under the most effective desegregation plan.

As to the second "objection," no specific findings of fact 
concerning the district court's preference for this "apparently 
less effective plan," Green v. County School Bd. of New Kent 
County, 391 U.S. 430 (1968), were made. While the lower court
does point out that plaintiffs' plan would transport a gross 
total of 5,000 more students than the HEW plan, there is no 
comparison or findings with regard to the distance or time these 
additional students would have to be transported in order to 
completely desegregate the school system.

-25-



In Robinson v. Shelby County Bd. of Educ.. 442 F.2d 255
(6th Cir. 1971), this Court defined the lower court's obliga­
tion as requiring it to implement that alternative plan of 
desegregation presented to it which is practical and which 
achieves the greatest desegregation. See also Davis v. School 
Dist. of Pontiac. 443 F.2d 573 (6th Cir. 1971). The subsequent 
decision in Monroe v. Board of Comm'rs of Jackson, No. 71-1359 
(6th Cir., Jan. 7, 1972) makes it clear that district courts 
approving less effective alternatives must, at the least, 
make findings of fact which demonstrate why the holdings in 
Robinson and Davis ought not to apply (slip op. at p. 4 ).
The district court's conclusory statements would hardly seem 
to meet this standard, particularly in light of the testimony 
that the HEW team never attempted to determine how much 
additional transportation would be required if it were to 
design a plan which would totally desegregate the Nashville 
school system (A. 665). Accordingly, the matter is appropriate 
for remand to the district court with directions to make 
specific findings of fact supporting the lower court's preference 
for a plan which leaves over one—third of the secondary schools 
and some 22 elementary schools racially identifiable (ibid.).

Such a remand would serve the additional purpose of 
permitting the district court to make specific findings and 
conclusions on the issue whether the HEW plan unnecessarily 
and unfairly burdens Nashville black students in a dispropor­
tionate manner.

-26-



Plaintiffs' objections to the HEW plan (A. 176-81) 
specifically complained that the plan discriminated against 
black students by (a) closing a disproportionate number of 
black schools, (b) desegregating all of the black schools but 
not all of the white schools and (c) requiring in every 
instance of clustering, that the formerly black schools 
house grades 5 and 6, with the result that no young white 
children in the clustered schools are transported while all 
younger black students in the clustered schools must be bused. 
These objections were supported by testimony at the trial 
(A. 560-61, 690-99, 725-30) and Dr. Hall, the head of the 
HEW team, even suggested that some of the clusters be rearranged 
so that the black schools serve grades 1 and 2 in order to 
dispel any notion of discrimination against black students 
(A. 696). Nevertheless, the district court did not address 
this ground of plaintiffs' objections in its opinion nor 
make any findings whatsoever on this issue.

Numerous courts have held desegregation plans unconsti­
tutional when they unfairly discriminate against black students 
either by forcing them to bear a disproportionate share of the 
required transportation or by closing a disproportionate 
number of formerly black schools, e.q., Brice v. Landis, 314
F. Supp. 974, 978 (N.D. Cal. 1969); Swann v. Charlotte-Mecklen­
burg Bd. of Educ., 328 F. Supp. 1346 (W.D. N.C. 1971); Lee 
v. Macon County Bd. of Educ., 448 F.2d 746 (5th Cir. 1971);
Haney v. County Bd. of Educ., 429 F.2d 364, 371-72 (8th Cir. 
1970); Bell v. West Point Municipal Separate School Dist.,

-27-



446 F.2d 1362 (5th Cir. 1971); Adams v. School Dist. No. 5, 
Orangeburg, 444 F.2d 99 (4th Cir. 1971), aff1g Green v. School 
Bd. of Roanoke, 316 F. Supp. 6 (W.D. Va. 1970); Smith v. St.
Tammany Parish School Bd., 302 F. Supp. 106, 108 (E.D. La.
1969); see also Gordon v. Jefferson Davis Parish School Bd.,
446 F.2d 266 (5th Cir. 1971); Felder v. Harnett County Bd. of 
Educ., 409 F.2d 1070, 1074 (4th Cir. 1969); Spangler v. Pasadena 
City Bd. of Educ., 311 F. Supp. 501, 524 (C.D. Cal. 1970).

The cases which have approved black school closings 
have done so on the ground that the deteriorated physical 
condition of the buildings required their closing, and thus 
that black students bore no special burdens of desegregation 
thereby. E.g., Carr v. Montgomery County Bd. of Educ., 429 
F.2d 382 (5th Cir. 1970); Chambers v. Iredell County Bd. of 
Educ., 423 F.2d 613 (4th Cir. 1970). There is nothing in this 
record which indicates that all of the black schools closed 
under the HEW plan are inferior to white schools left open, 
or that all of the clustered black schools are only —  or 
even particularly —  suited for use as fifth and sixth grade 
schools.

In light of the uncontested facts, we submit that it 
would be appropriate for this Court to direct the district 
court on remand to make specific findings of fact and conclu­
sions of law concerning the justification for closing black 
schools under the HEW plan, see Gordon v. Jefferson Parish 
School Bd., 446 F.2d 266 (5th Cir. 1971), and to make modifi-

-28-



cations to the court-approved plan for the 1972-73 school 
year which more equitably distribute the burdens of desegre­
gation upon black and white students alike.

CONCLUSION
WHEREFORE, plaintiffs respectfully pray that the judgment 

below be affirmed on the Board's appeal, but that the cause 
be remanded to the district court for further findings of 
fact and conclusions of law regarding the lower court's selec­
tion of the HEW plan and the issue of disproportionate burden 
upon black students under that plan, with directions that 
the plan be modified for the 1972-73 school year at least as 
to clustered schools to more equitably distribute that burden; 
and that plaintiffs be awarded double costs and attorney's 
fees pursuant to Rule 38, F.R.A.P. on the Board's appeal.

Respectfully submitted,

•— / b'''
AVON N. WILLIAMS, JR.

Suite 1414, Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG
JAMES M. NABRIT, III
NORMAN J. CHACHKINSYLVIA DREW

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees-Cross Appellants

-29-



United States Court of Appeals
For the First Circuit'

No. 71 1108
OWKN S. KNIGHT, kt al..

I 'LAI X T I F  F S . AI’PKI.I.A X T S,

V.

H O c e n  A l l  I K I . L n .  kt al..
DKEENDAN i s . \1>I'E1.HEE>.

A P P E A L  KHi>M T H E  t W I T K i i  STATE." D IS T R IC T  C O U R T 

E " R  T H E  D ISTR IC T  OK M A S S A C H C S E T T S

b e f o r e  A edrk h . ( hit j  .hulot . 
M c L n t e e , ( ii ('iiit Juthfe, an d  

W vza.v sk i . Senior distr ict  Judqe*

M irhir l  Dandxon,  with  whom Jack  ( . rn n h .rg ,  Sylvia Drew, a n d  Herald L  
A ins* n bn ii m Were on brief,  for a ppe l lan ts .

Appellees sn lm ii t ted  on tin- o r ig ina l  rt-eord.

dan nary 17. 1972

I’er < cream Hie single question in this case is whether 
the district court erred in not awarding plaintiffs counsel 
tees, in addition to damages, for unlawful racial discrimi­
nation b\ using a knowingly false pretext in refusing to 
lease an apartment. 42 U.S.C. § 1982. By the time the case 
had reached trial and plaintiffs had proved their case thev 
already had found another, satisfactory apartment, and 
hence disclaimed injunctive relief. The court awarded $500 
by way of general damages, but refused to tax counsel fees 
as costs. Plaintiffs appeal.
•S ittin g  by designation

' A 1(V F <



0
K N IG H T  ALCIELLO

I ossibly broad questions of policy could be presented in 
a ease ot this character—whether, for example, color dis­
crimination with relation to housing, section 1982, is to be 
treated differently from violations of the more general sec­
tions 1981 and 1983. and how broad an interpretation is to 
be given to section 1988. There also may be questions of 
whether a suit is being prosecuted for the benefit of the 
individual plaintiff, or whether it may be thought that 
particular coun.-el are moiv concerned with a court decision 
than with their specific client (.'/. Springfield School Com-
tnitho v. Ha,7,-.s /n/e. ] ('ir.. ll'bo. F.2d 261. 2b a. We
will not deal with these questions, beyond making the fob 
lowing observations.

The violation of an important public policy may involve 
little by waj ot actual damages, so far as a single individual 
is concerned, or little in comparison with the cost of vindi­
cation. as the case at bar illustrates. If a defendant may 
feel that the cost of litigation, and. particularly, that the 
financial circumstances of an injured party may mean that 
the chance.- of suit being brought, or continued in the face 
of opposition, will be small, there will be little brake upon 
deliberate wrongdoing. In such instances public policy 
may suggest an award of costs that will remove the burden 
from the shoulders of the plaintiff seeking to vindicate the 
public right. We regard this as such a case.* See. in gen­
eral. Newman v. Pig pie Park Entry prises, 1968. 390 U.S. 
400; Lee v. Southern Homes Sites Corp., 5 Cir., 1971. 444
F. 2d 143. 147. The judgment denying counsel fees is 
reversed.

7Q* Wltlj compare cases like Capern v. Buntoon, 1 Cir., 1968, 39T F  2d 
where I l f  ^  1 8 ' WherP 8uh*tan tia l dam ages were aw arded, and
em u,! defe,ldan t* w,e; e n.o t shown t0 be engaged in a  general course of im proper 
f u m  , e n l t l Wn Th" d the oaM a t ha r Po*«ibly un til the law b£om ee
fac t in I n  d th ‘" :trea ' d l9 ,n c t <,ourt9 he advised to make findings offac t in all civil rights cases as to the desirab ility  of counsel fees. *



OPINION OF THE COURT. 3

As to the amount of the fee. it might be thought appro­
priate to compare with the schedule set in the Criminal 
Justice Act. 18 I'.S.C. § 3006A(d). without the maximum 
limitation, but we leave such matters to the district court. 
Costs in this court will be taxed to include appellants’ 
counsel's fees. Counsel ma> submit statement. Remanded 
for further proceedings consistent herewith.

A dm  Office, U. 9. C o u rts  —  T h a y e r-D e a rm *  C om pany L eg a l P r in te r* B orton