Richardson v Blanton Brief Defendant-Appellee
Public Court Documents
December 27, 1977

37 pages
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Brief Collection, LDF Court Filings. Richardson v Blanton Brief Defendant-Appellee, 1977. 205a9d37-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b812b3ef-43e0-41eb-82d4-e6c88b800f80/richardson-v-blanton-brief-defendant-appellee. Accessed August 19, 2025.
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» 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 -ii- 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 -iii- 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. -2- 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 -3- 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; -4- 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, -5- 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. ). -6- 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. -7- 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 -8- 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). -9- 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. -10- 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. ). -11- 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. -13- 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. -14- 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) -16- 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, -17- 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 -18- 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). -19- 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. ) -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. 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 -21- 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. -22- 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, -23- 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. -24- 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 _25- 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 -26- 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. -27 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. -29- 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). -30- 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). -31- 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 -32- 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 -33- 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 -34-