Richardson v Blanton Brief Defendant-Appellee

    »

V IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RAYMOND RICHARDSON, JR., et al., ) 
Plaintiff-Intervenors )
Appellants, )

)
v. )

)
RAY BLANTON, Governor )
State of Tennessee, et al., )

)Defendants-Appellees. )

No. 77-1621

BRIEF FOR DEFENDANT-APPELLEE RAY BLANTON, 
GOVERNOR, STATE OF TENNESSEE 

IN CASE NO. 77-1621

WILLIAM J. HAYNES, JR. 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219

OF COUNSEL:
BROOKS MCLEMORE 
ATTORNEY GENERAL

O F F I C E  O F  T H E

At t o r n e y  G e n e r a l  o f  T e n n e s s e e
N A S H V I L L E ,  T E N N E S S E E  3 7 2 1 9



TABLE OF CONTENTS

PRELIMINARY STATEMENT . 
ISSUE PRESENTED . . . . 
STATEMENT OF THE CASE . 
STATEMENT OF FACTS

A. The State's Long Range P l a n .................8
1. Student Enrollment....................... 12
2. Black Faculty and Administrators......... 15
3. Governance Structure..................... 20

BRIEF AND ARGUMENT
A. THE SCOPE OF THE STATE'S AFFIRMATIVE 

DUTY TO DESEGREGATE ITS COLLEGES AND 
UNIVERSITIES IS'LIMITED BY THE 
VOLUNTARY NATURE OF THE HIGHER
EDUCATION SYSTEM............................ 21

B. TENNESSEE'S SYSTEMS OF HIGHER EDUCATION 
ARE PROCEEDING TO DESEGREGATE AT A 
CONSTITUTIONALLY PERMISSIBLE RATE AND 
NO FURTHER JUDICIAL RELIEF ON THE 
STATEWIDE EFFORTS IS NECESSARY AT
THIS T I M E ............ *..................... 24
1. The Tennessee institutions, viewed

as a whole, are making consistent 
and steady statistical progress in 
their desegregation efforts and such 
progress,•standing alone, is 
constitutionally sufficient ............  25

2. The policies and procedures of the 
governing agencies and their 
institutions evince affirmative 
efforts to desegregate their colleges
and universities........................ 30

CONCLUSION................................................ 32



TABLE OF CASES
Pages

1. Adams v. Richardson, 480 F.2d 1159
(D.C. Cir. 1972).......................... 24

2. Alabama State Teachers Association v. Alabama
Public School and College Authority, 289 F.
Supp.784(M.D. Ala. 1968) affirmed, 393 U.S.
400 (1969)................................ 30

3. Brown v. Board of Education, 347 U.S.
483 (1954)................................ 21

4. Calage v. University of Tennessee, 544
F.2d 297 (6th Cir., 1976).................. 26

5. Dayton Board of Education v. Brinkman,
__ U.S. __, 97 S.Ct. 2766 (1977)..........  27, 30

6. Florida ex rel. Hawkins v. Board of Control,
350 U.S. 413 (1956)........................ 22

7. Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn.
(1972)......................................  23, 25, 30

8. Goss v. Board of Education of City of
Knoxville, 482 F.2d 1044 (6th Cir. 1973)
cert, denied, 414 U.S. 1171 (1974)...........  31

9. Greene v. School Board of New Kent Co.,
391 U.S. 430 (1968)........................  21

10. Keyes v. Lenoir Rhyne College, 552 F.2d 579
(4th Cir. 1977)............................  26

11. Milliken v. Bradley, __ U.S. __ 97 S.Ct. 2749
(1977)....................................  21

12. Northcross v. Board of Education of Memphis
City Schools, 489 F.2d 15 (6th Cir.
1973) cert, denied, 416 U.S. 962 (1974).,. . 31

13. Norris v. State Counsel of Higher Education,
327 F.Supp. 1368 (E.D. Va. 1971)........... 30

14. Sanders v. Ellington, 288 F.Supp. 937
(M.D. Tenn. 1968)..........................  21, 25, 30

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Pages

15. Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971).................... 21, 29, 30

16. Virginia v. Norris, 404 U.S. 907 (1971)............ 30
17. Washington v. Davis, 426 U.S. 229 (1976)............ 26

STATUTES CITED

1. Tennessee Code Annotated, § 49-3236 ................ 5

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PRELIMINARY STATEMENT

Ray Blanton, Governor of Tennessee files this 
• reply brief in the appeal of the plaintiff-intervenor- 

appellant Raymond Richardson et al v. Ray Blanton, et 
al, defendant-appellee, Case No. 77-1621 and responds 
to the questions presented by that appeal. The 
appellant Richardson raises basically two issues in 
his appeal. The first issue attacks District Court’s 
judgment in its declination to order further judicial 
relief on the State’s statewide efforts in the 
desegregation of its higher education systems. The 
second issue attacks that portion of the District 
Court’s judgment on the implementation of the merger of 
Tennessee State University and the University of 
Tennessee at Nashville as a single institution. The 
appellant Blanton's brief will discuss at length the 
statewide progress issue but will defer to the 
appellee State Board of Regents’ brief on the merger 
implementation issue in appellant Richardson's appeal.

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ISSUE PRESENTED

Whether the District Court erred in declining 
to order additional relief for desegregation of 
Tennessee's statewide system of higher education 
where the State agencies ceased the practice of de 
■jure racial segregation in its higher education in 
i960 and has formulated and had implemented plans 
for continuing desegregation of its higher education 
system x̂ ith a monitoring mechanism therefor and whose 
plans and efforts have produced steady statistical 
progress in the increasing numbers of black students, 
faculty and administrators in the state higher education 
systems.

STATEMENT OF THE CASE

This is an appeal from the final judgment of 
the Honorable Frank Gray, Jr., Chief Judge, United States 
District Court, Middle District of Tennessee, Nashville

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Division entered February 28, 1977 that merely retained 
jurisdiction, without further relief, over the Tennessee 
officials continuing efforts to desegregate their public 
higher education systems, but directed that Tennessee 
State University and the University of Tennessee at 
Nashville shall be merged into a single institution by 
no later than July 1, 1980 under the auspices and authority 
of the appellee State Board of Regents. (J.A. ).

The original complaint was filed on May 21, 1968 
and initially involved appellee Geier's (then Sanders) and 
others application for injunctive relief to prohibit 
construction of a center for the University of Tennessee 
in Nashville in order to avoid a racially dual system of 
higher education in light of Tennessee A & I State University, 
a predominantly black State institution in Nashville. 
(Complaint p. 4,6; J.A. ). The original defendants were 
the Governor, State Board of Education and its Commissioner 
and Chairman, the Tennessee Higher Education Commission and 
its Chancery, the University of Tennessee and its Presidents;

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the Board of Trustees of the University of Tennessee and 
its Vice Chairman; Tennessee A & I State University,its 
President and President Elect and an Interim Committee 
for Tennessee A & I University. The United States in 
1968 and later appellant Richardson in 1973 were permitted 
to intervene as plaintiffs. (J.A. ). In 1972, the
Tennessee legislature created the State Board of Regents 
for the State University and Community College system of 
Tennessee (SBR). Tenn. Code Ann. § 49-3236. The SBR 
assumed statutory responsibilities for all universities 
and community college including TSU and was substituted 
as a defendant and the State Board of Education was 
dropped as a party defendant. (J.A. ).

This case has evolved to present a myriad of 
complex issues of racial desegregation of the entire 
Tennessee public higher education system and beyond the 
original issue of the racial desegregation of now 
Tennessee State University (TSU). Two prior decisions 
of the District Court have been reported. Geier v. Dunn, 
337 F. Supp. 573 (M.D. Tenn. 1972); Sanders v. Ellington,

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288 F. Supp. 937 (M.D. Term. 1968). The District Court had also
( entered several interlocutory orders, the most significant

of which were the order of June 20, 1973 that enjoined 
the proposed construction of Shelby State Community 
College at its designated location upon the grounds that 
the construction there would perpetuate the dual system 
in Shelby County and the order of April 19, 1974 that 
transferred the graduate teacher education program to 
TSU from now the University of Tennessee at Nashville 
(UTN) as a method of satisfying the minimum constitutional 
requirements for desegregation of two Nashville institutions, 
TSU and UTN.

; The procedural history of this case reflects that
the state defendants have filed several plans and progress 
reports on the desegregation of Tennessee's system of 
public higher education. However, in August, 1974, the 
State defendants below filed a statewide "Long Range Plan"
(LRP) to desegregate Tennessee's public higher education 
that remains the basic framework for the State efforts.
(J.A. ).

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The action came for a hearing on September 20, 
1976, for the purpose of determining whether the 
defendants' actions including their implementation of 
the LRP and/or the plans filed on behalf of the original 
plaintiffs, plaintiff-intervenors, presented an effective 
means by which the Tennessee public system of higher 
education can be effectively desegregated. The trial 
in this cause lasted 20 days. A total of 32 witnesses 
were called by the parties. The trial exhibits numbered 
179 and in addition thereto, the voluminous answers to 
interrogatories and discovery depositions were admitted 
into evidence.

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STATEMENT OF THE FACTS

A . The State's Long Range Plan.

The evidence presented by the State defendants 
at the September, 1976 hearing focused upon their collective 
implementation of the State's LRP and the desegregation 
efforts of the governing boards and their institutions.
As noted, the State defendants had theretofore presented 
several plans, but in August, 1974, all the defendants 
filed the LRP that was jointly submitted and endorsed by 
the Tennessee Higher Education Commission (THEC), the State 
Board of Regents for the State University and Community 
College System of Tennessee (SBR) and the University of 
Tennessee Board of Trustees (UT). (Def. Exh. 10). The 
LRP included the unanimous resolutions of these respective 
boards adopting and approving of the State's long range 
plan; separate appendices of the SBR and UT Board; and the

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report of the consultant panel* employed by the three boards 
to assist in the formulation of the LRP. (Def. Exh. 10.).

The LRP was divided into two major parts, i.e. the 
statewide plan and the Nashville area plan. Insofar as the 
statewide portion of the LRP is concerned, the LRP provided 
a number of strategies to be employed in desegregating the 
State's higher education system by both of the governing 
boards, SBR and UT. Numerical goals were set for the numbers 
of black students and faculty who would be enrolled or employed 
at the various institutions. (Def. Exh. 11, App. B, Table 4). 
The SBR adopted an affirmative action policy for itself and 
directed each of its institutions within the system to do so. 
(Id. at p. 5). The SBR committed itself to the recruitment

1. The panel members were: James M. Godard, Special Con­
sultant, Institute for Higher Educational Opportunity, 
Southern Regional Education Board, Atlanta,Georgia; 
Robert W. French, Assistant to the President, University 
of Alabama at Birmingham, Birmingham, Alabama; Dr. Anne 
Pruitt, Case-Western Reserve University, Shaker Heights, 
Ohio; and Prince Jackson, President, Savannah College, 
Savannah, Georgia; Dr.Pruitt and President Jackson 
are black persons. Dr. Godard has written a manual for 
State public higher education desegregation planning 
that is utilized by the United States and by its expert 
witnesses. See Defendants' Exh. 19 and 20; U.S. Answers 
to UT Interrogatories, Attachments 0 and P; U.S. Coll. 
Exh. 9, Deposition of Dr. Stephen Wright, Exh. 2 n.l 
June 26, 1974). Dr. Joseph Cosand, an expert witness 
for the United States testified by deposition of Dr. 
Godard's highly respected reputation in desegregation 
of public higher education. (U.S. Coll, Exh. 9, 
Deposition of Dr. Cosand, p. 78).

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of minority faculty and to the review of all applicants 
for faculty positions at the universities and colleges in 
the State Board of Regents system. In addition, the State 
Board of Regents adopted a grant-in-aid policy in order to 
upgrade the black faculty at Tennessee State University and its 
other institutions. (Def. Exh. 10, App. B, pp. 7-8; Exhs.

43, 44).
Another element of the long-range plan was the 

establishment of a monitoring committee composed of 
representatives from THEC, SBR andUT that was to supervise 
and recommend to the Boards any necessary adjustments in the 
implementation of the LRP (Def. Exh. 10, p. 3). The 
Monitoring Committee a bi-racial group was established in 1975 
and has conducted public meetings and public hearings on the 
implementation of the State's long-range plan. (Tr. 678-683), 
686-690) (Def. Coll. Exh. 12).

The LRP provided that the defendants, through its 
Monitoring Committee, would inform the Court on a yearly 
basis of the State's progress in its desegregation efforts.

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This statement was honored by the filing of the progress 
report on February 13, 1976. (Def. Exh. 11, J.A.
The Progress Report is considered by the defendants to be, 
in some respects, a modification and refinement of the 
State's long-range plan. (Tr. 683-684). The SBR approved 
and adopted the Progress Report. (Def. Exh. 47).

The Progress Report describes and further defines 
the duties of the Monitoring Committee including its 
responsibility to receive quarterly reports from institutions 
and boards with an emphasis upon the time tables for the 
attainment of numerical goals for students, faculty and 
administrators and to conduct public hearings to discuss any 
problems and lack of progress in achieving all desegregation 
goals. (Def. Exh. 12). The expert testimony of James Godard 
was that the monitoring committee was a "model" that he 
suggested other states engaged in desegregation emulate. (Tr. 
489-490, J.A. ).

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1. STUDENT ENROLLMENT
The Progress Report also contains a compilation of 

the statistical representation of blacks in students enroll­
ments and at all levels of enrollment at the various insti­
tutions in the SBR and UT systems and among the faculty and 
administration. (Def. Exh. 11, pp. 133-165). The statistical 
results of the total black student enrollment as a percentage 
of total student enrollment in both SBR and UT system is 

shown as follows:
1969 1970 1971 1972 1973 1974 1975

Without TSU 4.6 5.2 5.8 6.7 7.1 8.8 9.7
With TSU 9.5 9.6 9.8 10.3 10.7 11.7 12.6
(Def. Exh. 11, p. 134, J.A. ).

In terms of black freshmen in both systems, the statistical
progress is likewise substantial.

1969 1970 1971 1972 1973 1974 1975
Without TSU 5.6 7.0 7.0 8.7 10.5 11.9 14.8
With TSU N/A N/A 12.0 12.8 14.3 15.8 16.9
(Def. Exh. 11, p. 135, J.A. ).



The Report further points out with regard to the latter 
figures that if only first-time freshmen are considered 
that the percentage of black students is 18.3% that exceeds 
the percentage of black in Tennessee's population. (Def.
Exh. 11, p. 7, J.A. ). Elias Blake, expert for the
United States terms the black student increase at historically 
white institutions substantial. (Tr. 338) .

The Progress Report further reflects that the SBR 
and its institutions and UT institution have adopted numerical 
goals for students. The methodology for these numerical 
goals at SBR institutions are set forth in the Progress 
Report (Def. Exh. 11, p. 16-17), J.A." ). SBR student goals
differed from UT student goals in that SBR used as a numerical 
standard, the racial composition of the entire population 
of an institution's service area whereas UT utilized only racial 
composition of the college age population in the institutions 
service area. The difference in the usages of population 
figures arises because the SBR system unlike the UT system
includes community colleges that serve older students. (Tr.
2. The proof does show that TSU and Shelby State Community 

College account for a large number of black students, but 
recent years show a decline in the percentage of blacks 

enrolled at those two institutions (Def. Exh. 11, p. 7). 
Appellant's view of community colleges was not shared by 
all of the experts. See Deposition of Dr. Joseph Cosand, 
p. 13, 14 U.S. Coll. Exh. 9. Dr. Cosand was an expert for 
the United States and has had extensive experience with 
community colleges.

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1768, 1827, J.A . ). For example, in 1975, more than
307c of SBR student enrollment was in the age group of 25 to
60. (Def. Exh. 34). Moreover, inasmuch as several years
are necessary to meet the numerical goals, it is necessary
to consider the racial composition of persons not yet of
college age. Thus, the reasons for the use of total
population standard by the SBR institutions. Finally,
it is important to note here that it is the SBR, through
its staff that sets the numerical goal for SBR institutions

3
in consultation with each campus. (Tr. 1825-1826). Each SBR 
institution also has set goals for enrollment for graduate 
and professional schools. (Def. Exh. 11, p. 146).

In efforts to attain these goals, the SBR institutions 
have adopted a number of methods. The SBR institutions have 
undertaken recruitment trips to high schools with significant 
black enrollment; have conducted recruitment programs for 
minorities? and have contacted local communities for assistance 
in recruiting black students. (Def. Exh. 109). SBR have
special education and remedial programs designed for all
3~] The appellee Blanton submits that appellant's brief at p. 44 

is erroneous in stating that these goals are set by individual 
institutions and are without standards.

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students who enter the university or community college (Def. Exh. 
58). Although- SBR institutions do utilize standardized testing, 
such tests are not determinative of admissions but rather as 
used primarily for counseling purposes. (Def. Exh. 97). In 
the SBR professional school, Memphis State University Law 
School^ MSU in conjunction with the University of Tennessee 
Law School has undertaken to conduct a special performance 
institute for blacks as well as other prospective students who 
do not score well on standardized pre-law tests. (Vol. 1, Tr. 
200-202, Def. Exh. 12, Monitoring Committee Meeting 9/13/76, 
pp. 23-29).

Faculty and Administrators
The LRP and Progress Report emphasize and acknowledge 

the necessity of additional black faculty. The statistical 
proof on the State's institutions employment of black faculty4 5 
to 1975 was as follows:

4. Appellant Richardson's notation in his brief at p. 48, no. 72 
that only 10% of qualified blacks accepted as opposed to 26% 
of qualified white application is factually and arithmatically 
incorrect. The number of qualified black applicants was 17 and 
of that number 8 were accepted and 6 actually registered so that 
47% of the qualified black applicants were accepted —  not 
"less than 10%" as suggested in appellant's brief.

5. Appellant Richardson's brief at p. 43, n. 60 is incorrect in 
stating that there was only an increase of three (3) black faculty 
in the SBR "system". Defendant's Exhibit 11 at p. 140 clearly 
shows an increase of 50 black faculty at SBR universities and 
colleges.



1969 1971 1973 1974 1975

Without TSU 1.1 1.4 2.4 2.8 3.1
With TSU 5.9 5.3 5.7 5.7 5.9
(Def. Exh. 11, p. 140, J.P.

Each SBR institution has goals for faculty (Def. Exh. 11, 
pp. 156-157). The SBR has also gathered availability data 
on minority faculty and has a directory of minority faculty 
candidates(Def. Exhs. 1 and 85). The proof further showed 
that Tennessee institutions did not pay the salaries to 
compete in the minority faculty market. (Def. Exh. 12,
Monitoring Committee, April 12, 1976 meeting, pp. 4-7 ;
j. A. ) Elias Blake, expert for the United States testified
that there is intense compettion for blacks with doctoral
degrees. (Tr. 260). The SBR has a policy to give minority
faculty preference in post graduate work and has expended
funds to assert its present black faculty at various institutions
to attain the Ph.D. on terminal degree. (Def. Exh. 44, 84).
SBR institutions are utilizing a variety of recruitment methods 
to attract black faculty^(Def. Exh. 54).
~6, Contrary to Appellant's Richardson’s Brief at p.43 n. 59 SBR 

does not limit itself to blacks with Ph.D.'s but rather 
Defendants' Exh. 1 and 85, on their face show that the 
SBR includes blacks with masters degrees as qualified 
for faculty and/or administrative employment at SBR institutions 
The directory of minority candidates were from schools listed as 
having the largest minority enrollment and was hastily gathered 
for use because faculty hiring is done in May (Tr. 40-41, 52-53)

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In 1969 there were no black administrators in any 
university or community colleges in the SBR system with 
the exception of TSU (Def. Exh. 11, p. 142). The statistical 
proof shows that in 1975, thirty-five (35) black persons 
served as administrators in the various universities and 
community colleges in the SBR system, again without TSU.
In the universities alone, excluding TSU, this resulted in 
a 4 percent representation of blacks; in the community colleges 
it represents 10.8 percent representation of blacks. In the 
UT system in 1969 there were 16 black persons who were 
adminis trators and in 1975 there were a total of 52. This 
represents a percentage increase from'2.5 percent to 5.8 
percent. Moreover, for the combined total of both system, 
the percentages show, with the exception of TSU, a steady 
increase of black administrators from 1.7 percent to 5.8 
percent of the total. The most recent statistics, 1974-1975 
showed that the number of black administrators increased 227,

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on a statewide basis, TSU excluded, as compared to only a 1L 
increase in all administrators on a statewide basis. (Def.
Exh. 11, p. 12 J.A. ).

It is necessary to consider at this point certain 
evidence presented by plaintiff-intervenors, that consisted 
of the results of a series of statistical analyses of faculty 
salaries. These results appeared to show racial discrimination 
in faculty salaries, particularly in regard to black faculty 
at TSU. It is noteworthy, however, that the salary differentials 
did appear to be in favor of white faculty, in every instance, 
the differential was lesser in every instance where an adjust­
ment was made for rank, which is a key detriment of any 
faculty member's salary. (Vol. 3, Tr. 228, 238). The proof 
further shows that Mr. Killingsworth who undertook the 
statistical analyses in question, utilized statistical models 
which failed to take into account several factors including 
field of study in his analysis of SBR faculty salaries. (Vol.
3, Tr. 227, 279, 282). These factors included the faculty 
member's time in rank and his or her performance as determined

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by peer and other evaluations. (Vol. 3, Tr. 276-277).
Mr. Killingsworth acknowledged on cross-examination 
specific instances of black faculty receiving higher pay 
than whites of similar rank and experience in the same year 
(1975) as his analysis (Tr. 288-292). Mr. Killingsworth 
was also unable to provide the Court or these defe ndants 
within a reasonable time those statistical models utilized 
in his analysis for arithmetic verification. (Vol. 3,
Tr. 390-391).

With regard to TSU the testimony was that the SBR 
defines the broad salaries ranges for faculty by rank. An 
individual SBR institution is accordingly free to set the 
salary of an individual faculty member within the confines 
of the board-imposed range. President Humphries testified 
that a great portion of appropriated funds for TSU are 
expended on other institutional priorities, thus, TSU is 
limited in its flexibility to meaningfully raise faculty 
salaries and make them comparable to the other institutions 
but progress is being made. (Tr. 1751-1752).

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GOVERNING BOARDS

The proof below was that each of the two governing 
boards, SBR and UT and the THEC has black membership.
The Governor is the appointing authority for each agency. 
THEC has one black member among its nine member body.
(Vol. 1 Tr.679) SBR has two black members among its 
eleven appointed members. (Def. Exh. 11, p. 26) UT had two 
black members among 18 appointed members. (Def. Ex. 11, p. 
36). The appellee Blanton has appointed blacks to the 
governing agencies and consults with elected black leaders 
on his appointments. (Def. Exh. 59 J. A. )

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BRIEF AND ARGUMENT

A. THE SCOPE OF THE STATE'S AFFIRMATIVE DUTY TO DESEGREGATE 
ITS COLLEGES AND UNIVERSITIES IS LIMITED BY THE VOLUNTARY 
NATURE OF THE HIGHER EDUCATION SYSTEM.

At the threshold of discussion on the constitutional 
adequacy of the State's efforts to desegregate its colleges 
and universities it is necessary to point out that it is law 
of this case as well as the prevailing constitutional principle 
that the State agencies are under an affirmative duty to 
eliminate, to the extent of their powers and influence, the 
vestiges of de /jure racial segregation in its educational
institutions. Milliken v. Bradley, __ U.S. __ 97 S.Ct. 2749
(1977). Swann v. Charlotte Mecklenburg Board of Education, 4C2 
U.S. 1 (1971). Greene v. School Board of New Kent County, 391 
U.S. 430 (1968); Brown v. Board of Education, 347 U.S. 483 (1954); 
Sanders v. Ellingtm, 288 F. Supp. 937 (M.D. Tenn. 1968). 
Accordingly, appellee Blanton has no quarrels with appellant 
Richardson's wooden citations to the holdings of the United 
States Supreme Courts and this court on that principle. The

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Supreme Court has recognized that the scope of a district court's 
power in school desegregation costs is dictated by the practicalities 
of the situation presented. Specifically, the Supreme Court 
has recognized that desegregation decrees in colleges and 
universities are pecularly different from elementary and 
secondary education. In Florida ex rel. Hawkins v. Board 
of Control, 350 U.S. 413 (1956), the Court observed the 
application of Brown I to a professional school.

In doing so, we did not imply that decrees 
involving graduate study present the problems 
of public elementary and secondary schools.
State of Florida ex rel. Hawkins v. Board of 
Control, supra at 413.

It is likewise the law of this case that the nature of 
colleges and universities, wherein participants, particularly 
students, can and do exercise a bundle of options, presents a 
set of distinctive circumstances over which the District Court 
can exercise limited control.

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Thus, regarding the disestablishment of a 
dual system of higher education, a court 
cannot -- at least in the usual situation 
-- order the transfer of faculty from one in­
stitution to another, order the transfer of students 
from one institution to another, 
or actually set the curricula at various such 
institutions. Over and above the question 
of such a court's actual power to do so, 
such relief would not be administratively 
feasible, because there would be no way to 
ensure that it actually worked: no court
can "order" a student to confine himself 
to one college or university instead of 
another, for, unlike the situation in a 
system of elementary or secondary education, 
such persons are free to leave and go else­
where as they wish. The lesson is that, when 
it comes to the disestablishment of a dual system 
of higher education, a federal court cannot do 
what it might do in the realm of lower and 
secondary education: what works in one system 
will not work in another. Yet this is so as 
a practical matter, and not as a result 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 -- at least in a juris­
dictional sense -- 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?" Geier y, Dunn, 337 F. Supp. 573, 579 
(M.D. Tenn. 1972). (Emphasis by the Court.

In higher education, the student exercises the choice as to which
college or universities to attend; which course of study to pursue
whether to proceed to graduate or professional school; or whether
to continue higher education at all. The State, of course,
can, to a limited degree, influence the exercise of a student's
choice, but given these variables and individual choices,

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the state educators' constitutional duty and the discharge 
thereof must be defined and evaluated in light of these

considerations.
An evaluation of State efforts in this case can be 

undertaken by reference to statistical analysis and/or upon 
analysis of the agencies' policies, practices and procedures. 
Under either analysis or a combined analysis, the State s efforts 
on the statewide desegregation are more than constitutionally 
sufficient and no additional affirmative relief by the District 
Court on the statewide issue was warranted.

B. TENNESSEE'S SYSTEM OF HIGHER EDUCATION IS PROCEEDING TO 
DESEGREGATE AT A CONSTITUTIONALLY PERMISSIBLE RATE AND 
NO FURTHER JUDICIAL INTERVENTION IS NECESSARY AT THIS 
TIME.
' As noted by the District Court and as presented here 

by the appellant Richardson, in higher education systems, the 
desegregation process and progress must be reviewed on a state­
wide basis with certain exceptions. In Adams v. Richardson, 480 
F.2d 1159 (D.C. Cir. 1972) that is relied upon by the appellant
Richardson, the Court stated:

. . the problem of integrating higher 
education must be dealt with on a state­
wide rather than on a school-by-school 
basis." Adams, supra, at 1164.

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It is within this framework that the Court should revsw
the sufficiency of the State officials' efforts.

The District Court in its first opinion made findings
as to the statewide enrollment of black students at formerly
exclusively white institutions Sanders v. Ellington, supra
at 940. In its second opinion the Court again noted that the
statistics showed that the statewide efforts aside from
TSU were proceeding at a constitutionally permissible rate.
Geier v. Dunn, supra at 580. Neither the original plaintiff
nor the United States appealed from that finding as neither
now appeals the District Court's judgment of February 28,
1977. In the memorandum opinion, the District Court again
reviewed the statistical proof on black student and faculty
participation (J.A. ). The factual bases for these
findings as reflected in the memorandum and as otherwise
appearing in the proof are as follows.

1. The Tennessee institutions, viewed as a whole, 
are making consistent and steady statistical 
progress in their desegregation efforts and such 
progress standing alone is constitutionally 
sufficient.
Black student enrollment in state colleges and 

universities has evolved from negligible enrollments to the

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point where black enrollment, as first time freshmen, exceeds 
the percentage of blacks in Tennessee's population. As the 
District Court correctly noted, the formerly, exclusively white 
colleges and universities have made consistent steady progress 
in black student enrollment as reflected by the 1976 Progress 
Report on percentages of blacks in total enrollment. (Def. Exh.
11, p. 134, J.A. ). The Progress Report also reveals that when 
first time freshmen as a group are considered, black freshmen 
in that group represent 18.3 percent of the total, the latter 
percentage is in excess of the percentage of blacks in Tennessee s 
population. (Def. Exh. 11, p. 6, J.A. ). The percentage of
black faculty7 and administrators have increased notwithstanding 
evidence of competition in the marketplace. These statistical 
increases are hardly the earmarks of r'acially segregative and 
exclusionary practices in violation of the Equal Protection Clause. 
Washington v. Davis, 426 U.S. 229 (1976). Moreover, if a statewide 
review, which according to appellant Richardson is the appropriate 
method, is made, then the evidence of progress on a statewide basis

7. The testimony relative to faculty salaries did not make any
comparison in the SBR system between discipline or department. 
Accordingly, even under Title VII standards the proof is in­
sufficient. See Keys v. Lenoir-Rhyne College, 552 F.2d 579, 580 
(4th Cir. 1977); Calage v. University of Tennessee, 544 F.2d. 297, 
300 (6th Cir. 1976

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does not support the need for any fu.tth.er scrutiny of 
individual institutions nor for any judicial remedy, at 
this time, on the statewide issue. Judicial remedies 
of system wide proportion are inappropriate unless the 
evidence presented shows systemic constitutional violations.
Dayton Board of Education v. Brinkman, __ U.S. __, 97 S.Ct.
2766 (1977). The District Court's judgment requires the 
Monitoring Committee to continue to call to task any institution 
that does not make steady progress and retains jurisdiction to
enforce its judgment. If steady progress were to come to a halt 
the District Court could then further scrutinize individual 
institutions and/or policies to identify any problems or obstacles 
to continued desegregation.

Appellant Richardson's complaint on his appeal of 
the statewide plan ^  that the District Court committed
reversible error in failing to evaluate the constitutional 
validity of the goals of each of the 21 colleges and 
universities in the Tennessee higher education systems. It 
is further appellant Richardson's insistence that each 
institution at each major level of student enrollment, i.e.

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undergraduate, graduate, professional as a matter of sub­
stantial constitutional law, mist have a numerical balance 
in its student composition reflective of the percentages 
of blacks in the age group of 18-24 and further that the 
State's methodologies for numerical goals are constitutionally 
defective.

Appellee Blanton's responses to these assignments 
of error are as follows: First, given the consistent progress
in desegregation reflected by the statistical proof, there 
was no predicate for further constitutional inquiry by the 
district court. Beyond these statistics, discussed supra, 
the affirmative acts of the educational agencies and institution 
reveal good faith efforts within the bounds of the obvious 
limitations imposed by the nature of the higher education 
processes, i.e. voluntary student choices to achieve desegre­
gation at every level. Second, in light of the District Court's 
specific findings of statistical progress and the additional 
evidence of the appellants policies and practices, there is

-28"



likewise no predicate for additional judicial relief, e.g. numerical 
goals and/or enrollments for black students. The concept 
of numerical "norms" for student enrollment has been approved 
only in those contexts where education officials "totally 
defaulted" in their acknowledged duty to come forth with 
an acceptable plan of its own for desegregation. Swann v .
Charlotte Mechlenburg Board of Education, 402 U.S. 1, 24 (1971) 
(emphasis added). It was because of the school board’s "total 
failure" that the Court in Swann approved the very limited 
use made of mathematical ratios. Moreover, in Swann the Court 
observed with respect to the use of a numerical norm in the 
context of students enrollments in elementary and secondary 
school systems.

If we were to read the holding of the district 
court to require, as a matter of substantive 
constitutional right, any particular degree of 
racial balance or mixing, that approach would 
be disapproved and we would be obliged to reverse.
The constitutional command to desegregate 
schools does not mean that every school in every 
community must always reflect the racial composi­
tion of the school system as a whole. Swann, 
supra at 24.

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A fortiori judicially set goals would be inappropriate here 
because of the absence of compulsory attendance. Thus, the 
appellant Richardson's argument insofar as it attempts to 
set up as constitutionally required, a judicially approved 
numerical goal for each institution in both systems, it is with­
out merit and is contrary to constitutional principles as applied 
to the facts of this case. Dayton Board of Education v. Brinkman 
supra, and Swann v. Charlotte-Mecklenburg Board of Education, supra.

2. The policies and procedures of the governing 
agencies and their institutions evince affirmative 
efforts to desegregate their colleges and 
universities.
Pursuant to the District Court's directives^ in 

Geier v. Dunn, and Sanders v. Ellington, the State officials 
have developed statewide plans and have undertaken all efforts 
to discharge their duty to desegregate all of the state's 
universities and colleges. These efforts directed at increasing 
students, faculty, administrators and governing board members are 8

8. For an apparent conflict on the scope of the State's duty 
in higher education, see Norris v. State Council of Higher 
Education, 327 F.Supp. 1368 (E.D. Va. 1971) (three judge ct.) 
aff'd sub nom Board of Visitors of the College of William 
and Mary in Virginia v. Norris, 404 U.S. 907 (1971) and 
Alabama State Teacher's Assn, v. Alabama Public School and 
College Authority, 289 F.Supp. 784 (M.D. Ala. 1968) aff'd 
393 U.S. 400 (1969).

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discussed supra at pp-l4} and include, recruiting of 
students and faculty, remedial and special education programs, 
impact studies and consultation with black elected officials 
on appointments to governing boards. Public hearings are held 
on the State efforts and every institution that fails to meet 
desegregation goals is required to make an accounting for the 
lack of progress at a public hearing. The appellee Blanton 
submits that these facts show affirmative acts and are evidence 
of the State's commitment to continued desegregation of its 
higher education system. As the District Court below found, 
the State officials' efforts have not been "so slow and devoid 
of good faith effort as to show that it constitutes, at this 
time, a violation of constitutional violations." (Memorandum 
p. 36, J.A. ). The appellants in this appeal have presented
no facts to demonstrate that the District Court's finding is 
clearly erroneous and accordingly, the finding of the district 
court should be affirmed. Northcross v. Board of Education of 
Memphis City Schools, 489 F.2d 15 (6th Cir. 1973) cert. denied, 
416 U.S. 962 (1974); Goss v. Board of Education of City of 
Knoxville, 482 F.2d 1044 (6th Cir. 1973) cert. denied, 414 U.S. 
1171 (1974).

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CONCLUSION

WHEREFORE, for the above stated reasons the appellee 
Blanton prays that the Court will affirm that portion of the 
District Court judgment that merely retains jurisdiction and 
that directs the Monitoring Committee set up under the 
Long Range Plan to oversee the continued desegregation 
of the predominantly white institutions of higher education, 
calling to task any institution which does not make steady 
progress.

>'!'/! / \ >
V '/!/ l ' ! J C & h i :  ---------
William J. Haynes^Jr. 11 
Assistant Attorney General 
State of Tennessee 
450 James Robertson Pkwy. 
Nashville,Tennessee 37219 
(615) 741-2672

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CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the 
foregoing Brief for Defendant-Appellee, Ray Blanton, Governor, 
State of Tennessee, has been forwarded this the day of
-r , 19_Ti_ to the following counsel of record

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
George E. Barrett, Esq. 
Ninth Floor
Third National Bank Bldg. 
Nashville, TN 37219
William Willis, Esq. 
Alfred H. Knight, Esq. 
Seventh and Union Street 
Nashville, TN 37219
Avon Williams, Jr., Esq. 
1414 Parkway Towers 
Nashville, TN 37219
Jack Greenberg, Esq.
10 Columbus Circle
New York, New York 10019

Beauchamp Brogan, Esq. 
University of Tennessee 
Suite 810, Andy Holt Tower 
Knoxville, TN 37916

Thomas W. Steele, Esq. 
P. 0. Box 2757 
Nashville, TN 37219

James E. Drinnon, Jr., Esq. 
Assistant General Counsel 
Administrative Building 
University of Tennessee 
Knoxville, TN 37916
Lewis L. Laska, Esq.
1231 17th Ave. South 
Nashville, TN 37212
Hon. Hal Hardin 
United States Attorney 
United States Courthouse 
Nashville, TN 37201
Joseph 0. Fuller, Esq.
426 Shelby Street 
Kingsport, TN 37660

D. Bruce Shine, Esq. 
700 E. Sullivan Street 
Kingsport, TN 37660

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r

f: ■ n
V / V A - ' . V .

l
WILLIAM J. HAYNES,. JR. 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
Phone: (615) 741-2672

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