Metropolitan County Board of Education v. Kelley Brief in Opposition

    No. 82-702

In the

&upr?m? (Enurt of %  States
O ctober T erm , 1982

M etropolitan County B oard of E dccation of 
N ashville and D avidson County , T ennessee, et al.,

Petitioners,
— v.—

R obert W . K elley, et al.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

J ack G reenberg 
J ames M. Nabrit, 111 
T heodore M. S haw  
B ill  L ann L ee*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

A von N. W illiam s, Jr.
R ichard H. D in k in s

203 Second Avenue, North 
Nashville, Tenn. 37201 
(615) 244-3988

Attorneys for Respondents.

* Counsel of Record



INDEX

Table of Cases ........................... i
Statement ................................  1

Prior Proceedings ..................  3
Post-1971 Proceedings ..............  6
The Decision Below .................. 16

Reasons to Deny the Writ .................. 21
Conclusion ...............................  34

Table of Cases
Adams v. United States, 620 F.2d 1277 

(8th Cir.)/ cert, denied, 449 U.S. 826 ( 1980) ..................... 30
Berenyi v. Information Director, 385

U.S 630 ( 1 967) ...................... 22
Blau v. Lehman, 368 U.S. 403

( 1962) .............................. 22
Brown v. Board of Education, 349 U.S.

294 ( 1 955) .......................... 23
Columbus Board of Education v. Penick,

443 U.S. 449 (1979), affirming,
583 F.2d 878 (6th Cir. 1978) .. 23,24,25

Davis v. School Comm'rs of Mobile
County, 402 U.S. 33 ( 1976) .......... 25

Dayton Board of Education v. Brinkman,
443 U.S. 526 (1979), affirming,
583 F. 2d 243 (6th Cir. 1978) .......  24

Page

l



Page

Flax v. Potts, 464 F.2d 865 (5th
Cir. 1972), cert. denied, 409
U.S. 1007 ( 1 972) .................... 30

Goss v. Board of Education, 373 U.S.
683 ( 1 963) .......................... 2,3

Graver Mfg. Co. v. Linde Co., 336
U.S. 271 ( 1979) ..................... 22

Green v. County School Board, 391 U.S.
430 ( 1 968) ........................ 24,29

Haycraft v. Board of Education, 585
F.2d 803 (6th Cir. 1979), cert. 
denied, 443 U.S. 915 ( 1979) ........  30

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,

F. 2d (6th Cir. 1 982) ........  2

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
492 F. Supp. 167 (M.D. Tenn.
1980) ............................... 2

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
479 F. Supp. 120 (M.D. Tenn.
1979) ..............................  2,12

li



Page

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
372 F. Sup. 540 (M.D. Tenn.
1973 ................................  2

Kelley v. Metropolitan County Board 
of Education of Nashville and Davidson County, Tennessee,
372 F. Supp. 528 (M.D. Tenn.
1973) ............................... 2

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
463 F.2d 732 (6th Cir.), cert.
denied, 409 U.S. 1001 (1972) ....  2,4,6

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
436 F. 2d 856 (6th Cir. 1 970) .......  2,4

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
317 F. Supp. 980 (M.D. Tenn.
1970) ...............................  2

Kelley v. Metropolitan County Board 
of Education of Nashville and 
Davidson County, Tennessee,
293 F. Supp. 485 (M.D. Tenn.
1968) ...............................  2

Kelley v. Board of Educationof City of
Nashville, 270 F.2d 209 (6th Cir.), 
cert, denied, 361 U.S. 924 
( 1959) ..............................  2,3

in



Page

Kelley v. Board of Education of
Nashville, 8 Race Rel. L. Rpte.
651 (M.D. Tenn. 1958) ..............  2

Kelley v. Board of Education of City of 
Nashville, 159 F. Supp. 272 (M.D.
Tenn. 1958) ......................... 2

Kelley v. Board of Education of City of 
Nashville, 139 F. Supp. 578 (M.D.
Tenn. 1 956) ......................... 2

Keyes v. School District No. 1, 412
U.S. 1 89 ( 1973) ..................... 25

Keyes v. School District No. 1, 521
F.2d 465 (10th Cir. 1975), cert. denied, 423 U.S 1066 ( 1976) ........  30

Lee v. Macon County Board of Education,
616 F. 2d 805 (5th Cir. 1980) .......  30

Liddell v. Board of Education of City 
of St. Louis, 667 F.2d 643 (8th 
Cir. 1981) .......................... 28

Maxwell v. County Board of Education of 
Davidson County, 301 F.2d 828 
(6th Cir. 1962) ..................... 2

Metropolitan County Board of Education 
v. Kelley, 453 U.S. 1306, 50 
U.S.L.W. 3198 ( 1981 ) .................  16

Milliken v. Bradley, 433 U.S. 267
( 1977) ..............................  18

Monroe v. Board of Comm'rs, 391 U.S.
450 ( 1968) .......................... 33

IV



Page

Pasadena City Board of Education v.
Spangler, 427 U.S. 424 (1976) ___ 21,23

Rodgers v. Lodge, U.S. ,50
U.S.L.W. 5041 ( 1982) ...............  22

Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S 1
(1971) ..............  5,17,18,24,27,28,

29,32
Wright v. Council of City of Emporia,

407 U.S. 451 ( 1 972) ................  24

v



No. 82-702
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1982

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

Petitioners,v.
ROBERT W. KELLEY, et al.

On Petition For A Writ Of Certiorari 
To The United States Court of Appeals 

For The Sixth Circuit

BRIEF IN OPPOSITION

Respondents Robert W. Kelley, et al. , 
oppose the petition for certiorari.

Statement
This school desegregation action was 

originally filed in 1955, and has been the



2

subject of numerous judicial opinions.— a 
brief history of the litigation follows.

jy The published opinions include: 
Kelley v. Metropolitan County Board of 
Education of Nashville and Davidson County, 
Tennessee , F • 2d ( 6 th Cir. 1962)
(A - 1); 511 F. Supp. 1363 (M.D. Tenn.
1981) (A-128); 492 F. Supp. 167 (M.D. Tenn. 
1 980 ) (A-6 2) ; 4 79 F. Supp. 120 (M.D. 
Tenn. 1979) (A-38); 372 F. Supp. 540 (M.D.
Tenn. 1973); 372 F. Supp. 528 (M.D. Tenn.
1973); 463 F.2d 732 (6th Cir.), cert.
denied, 409 U.S. 1001 (1972); 436 F.2d 856 
(6th Cir. 1970); 317 F. Supp. 980 (M.D.Tenn. 1970); 293 F. Supp. 485 (M.D. Tenn.
1968); Goss v. Board of Education, 373 U.S. 
683 ( 1963) (consolidated cases); Maxwell v . 
County Board of Education of Davidson 
County, 301 F.2d 828 ( 6th Cir. 1 962); 203
F. Supp. 768 (M.D. Tenn. 1960); Kelley v.
Board of Education of City of Nashville, 
270 F.2d 209 (6th Cir.), cert, denied, 361 
U.S. 924 ( 1959); 8 Race Rel. L. Rptr. 651(M.D. Tenn. 1958); 159 F. Supp. 272 (M.D.
Tenn. 1958); 139 F. Supp. 578 (M.D. Tenn.1956).

The extensive history of the litiga­
tion is summarized in the opinions of the 
court of appeals, A-1 - A-5 (1982 opinion); 
A-186 - A-195 (1972 opinion), and the dis­
trict court. A-64 - A-79 (1980 opinion); 
A-40 - A-45 (1979 opinion).



3

Prior Proceedings
"Tennessee's history of de jure 

segregation is well-established" (A-2). In 
1955, when litigation aimed at desegregat­
ing the Nashville public schools began, 
racial segregation was constitutionally and 
statutorily mandated (A-2 - A-3). The
school board's initial grade-a-year deseg­
regation efforts resulted in de minimis 
desegregation because of transfer provi­
sions which permitted parents to transfer a 
student to a school attended by pupils of 
the same race. 270 F.2d 209 , 2 1 5 ( 6th
Cir. 1959). This Court eventually held 
that such transfer provisions "promote 
discrimination and are therefore invalid." 
Goss v . Board of Education of Knoxville, 
373 U.S. 683, 688 (1963).—^ Substantial

2/ In 1963, the Nashville and Davidson 
County school systems were consolidated,



4

segregation, however, continued as a result 
of the school board's attendance zone, 
portable classroom, teacher assignment and 
school construction policies, which the 
lower courts found to have been designed 
and implemented to maintain segregation. 
A-190 - A-195; 436 F. 2d 856, 859-61 (6th
Cir. 1970); 317 F. Supp. 980, 989-92 (M.D. 
Tenn. 1970). "It therefore is clear that 
when the first 'comprehensive and potential­
ly effective desergation order' was entered 
in this case in 1971, the existing racial 
separation in the Nashville schools had 
resulted from de jure segregation." A-3 
(1982 opinion), quoting, 463 F.2d 732, 734

2/ continued
and the Nashville case was consolidated 
with a parallel desegregation action filed 
in 1960 against the Davidson County schools.



5

(6th Cir), cert. denied, 409 U.S. 1001
(1972).

The 1971 desegregation plan approved 
by the district court provided for desegre­
gation of Nashville and central Davidson 
County public schools, but left white 
schools on the periphery of the county 
segregated. Memorandum Opinion of 'June 28, 
1971. A range of 15%± the district­
wide percentage of black students, then 
25%, was adopted as a "starting point"-/ 
for student assignment by agreement of all 
the parties. Desegregation of elementary 
grades was accomplished by pairing and 
closing schools, and assignment of pupils, 
and desegregation of secondary grades by 
school closings and student assignment. 
The district court also took efforts to

V  Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 25 (1971).



6

prevent resegregation by enjoining use of 
portable classrooms to maintain segrega­
tion, expansion of schools exempt from 
desegregation requirements and all new 
school construction without prior court 
approval. Id.

However, only schools located in 
predominantly black neighborhoods were 
closed, a disproportionate burden of busing 
was imposed on black students at all levels 
and only black students in grades 1-4 were 
bused. Fully 1/3 of the county's white 
schools, located on the outskirts of the 
county, were exempt from the plan. Id• 
Nevertheless, the 1971 remedial order was 
affirmed over plaintiffs' objections. 463 
F . 2d 732 ( 6th Cir. 1 972).
Post-1971 Proceedings

A year after the 1971 plan went into 
effect, the district court found that "the



7

integration plan was deficiently imple­
mented" by the board and "the defendant 
school board ha[d] not make a good faith 
effort to comply with the court ordered 
integration plan" and "ha[d] endeavored to 
accomplish indirectly what it [could] not 
permissibly accomplish directly--the 
frustration of th[e district] court's plan 
to establish a racially integrated school 
system" by failing to "obtain sufficient 
buses to implement the court ordered 
integration plan." Order of August 17, 
1972. The court thereupon ordered the 
school board to purchase sufficient buses 
to alleviate the hardships its practices 
had caused, and denied the board's motion 
to resegregate several junior high schools. 
The district court, however, failed to act 
on plaintiffs' request for more extensive 
desegregation and to eliminate the dispro­



8

portionate impact of school closings and 
transportation burden on black students.

Thereafter, from 1973-1978, the school 
board sought permission from the district 
court to engage in an extensive series of 
actions involving school construction, 
expansion of facilities, portable class­
rooms, the use of annexes and attendance 
zones. All these actions were opposed by 
plaintiffs as segregative and violative of 
the 1971 order. The district court de­
clined to act. Notwithstanding the lack of 
court approval, all the proposals were 
implemented by the board. See A-40 - A-42.

It was not until 1979 that the dis­
trict court held any hearings on the 
the board's 1973-1978 actions. The 
uncontradicted record, principally the 
testimony of school officials, established 
the board's widespread violation of the



9

1971 desegregation plan: The board had
mounted an extensive construction program 
in predominantly white areas at a time the 
system was contracting, black innercity 
schools were underenrolled, and underutil­
ized schools in black areas were being 
, , 4/closed. a ring of comprehensive high 

schools had been built exclusively in white 
suburban areas while high schools in black 
inner city areas were closed or threatened 
with closing.—^ Schools in white areas 
exempt from desegregation were expanded 
through the use of portable classrooms,

V  E^g. , 1979 Tr. 133-36, 961-62, 964, 
27-32.

, Vol. II, pp. 896-98, 
1027-33; Vol. Ill, pp.

The board reported to the court that 
one of the reasons for its construction 
program was to accommodate "the reluctance 
of the white community to participate in 
the Court's plan." May 30, 1973 Petition,p. 2.

1979 Tr., Vol. II, pp. 876-77,



10

6/additions, and annexes.- School closing 
and construction policies resulted in impos­
ing a greater burden of transportation on

7/black students.- No efforts were made
to relieve segregation of black students or

8/disproportionate transportation burden.— 
No efforts were made to relieve overcrowd­
ing in white schools by assigning white 
students to underutilized schools in black

6/ E_1c[. , 1979 Tr., Vol. I, pp. 162-65,
170-72, 200A-205; Vol. II, pp. 899-901,
930-31, 970-74.

16 of the 22 white suburban schools 
left segregated were expanded with the use 
of portable classrooms in the 1973-74 
school year. At the 1979 hearings, the 
district court observed that "the estab­
lishment of ... annexes [at schools ex­
empted from desegregation] bears the 
patent stamp of subterfuge." Tr. of 'June 
26, 1979, Hearing, Vol. I, p. 200A.
7/ E.g., 1979 Tr. Vol. I, pp. 174-77,
Vol. II, pp. 741-43, 752, 873-78.
8/ E_̂ £. , 1979 Tr., Vol. I, p. 129, Vol.
II, pp. 853, 890-94, 1027-33.



9/neighborhoods.—
After hearing this proof, the district 

court found that:
1 . The perimeter line drawn by 

the Court in 1971, by which no require­
ment of either transportation or 
attempts at racial balance, was 
mandated outside the perimeter, has 
encouraged white flight to the suburbs, 
and to those school zones unaffected 
by the 1971 order. The combined 
effort of the order and the flight 
therefrom, either to suburban public 
schools or to private schools, has 
been:

a) that inner city schools have
become progressively resegregated;

b) that the projected ideal
ratio of 15 percent to 35 percent

9/ Board officials admitted that one of 
the reasons white students were not bused 
to inner city schools was deference to 
white hostility to desegregation. Tr. of 
'June 26, 1979, Hearing, Vol. II at pp. 901, 
932-36, 1038. As the district court put 
it, the board had deliberately decided to 
"accommodate white flight in the suburban 
areas" and "to follow the white flight" by 
its construction program instead of assign­
ing students to existing schools." Tr. of 
'June 26, 1 979, Hearing, Vol. Ill, at pp. 
28-29.



12

black population in each school has 
become increasingly more difficult to 
meet;

c) that the school facilities
outside the Court-ordered perimeter 
have become increasingly inadequate to 
accommodate the growing student 
bodies.

2. The resegregation, resulting,
at least in part, from the nonetheless 
good faith efforts of the School Board 
in the implementation of the Court's 
order, amounts to a de jure segrega­
tion.

A-44 - A-45, 479 F. Supp. 120, 122-23.— '/

10/ Resegregative actions were initiated 
by the board up to the eve of trial. The 
court found that in 1978-79 the board ini­
tiated transfer option for students as­
signed to Pearl High School, a predomi­
nantly black school located in a black 
Nashville neighborhood, which was "utilized 
extensively by white students assigned to 
Pearl to escape such assignment. ... 
The effect of this policy upon the already- 
established trend toward resegregation at 
Pearl was disastrous." Id̂ . at 124. The 
bord was directed to take immediate action 
because of "the urgency of the situation," 
but another transfer policy for Pearl was subsequently found to have "a negative 
impact upon the desegregation efforts of 
the School Board" in school year 1979-80. 
Id. 129.



13

The school board was ordered to and 
did file a proposed desegregation plan in 
February 1980, and further hearings were 
held. The board's plan provided for: (a)
use of a range based on the 32% present 
black systemwide student enrollment as a 
starting point for student assignment; (b) 
continued placement of schools with grades 
1-4 in white suburban areas and schools 
with grades 5-6 in inner city areas, re­
quiring continued disproportionate burden 
of busing of younger black children; (c) 
assignment of most black junior high stu­
dents to suburban junior high schools in 
white areas; and (d) retention and augmen­
tation of its comprehensive high school, 
system. See A-86 - A-95.— ^

1 1 / Plaintiffs opposed the board's 
proposal because of the disproportionate 
burden of busing imposed on black students,



14

The district court rejected the 
proposal because "the plan submitted by the 
Board disparately onerates young black 
children with the burden of achieving 
desegregation." A-113. However, the court 
questioned the lack of "realistic promise 
of achievement" of further desegregation in 
light of white flight and the "social, 
educational and economic costs of student 
transportation" A-114. Rejecting the use 
of any racial range reflective of district­
wide enrollment as a starting point for 
student assignment, the court directed the 
board to file another plan which would 
provide for K-4 neighborhood schools, 
middle schools with a minimum presence of

11/ continued
discriminatory closing of schools in black 
areas, and failure to provide remedial and 
other programs for black students left in 
segregated schools.



15

15% either race (thus permitting 85% black 
schools and 85% white schools), a high 
school plan, including an inner city 
comprehensive school, the use of magnet 
schools, and remedial and other programs 
for black students. A-116 - A-127.

The board's 1981 plan provided for: 
(a) 47 of 75 K-4 schools more than 90%
single race with 14 schools more than 75% 
black; (b) 24 middle schools with 7
projected to be majority black and assign­
ment of black students to schools in 
outlying white areas but no assignment of 
sutdents from outlying areas to schools in 
black areas; and (c) remedial, multicul­
tural and other programs. Exhibits 267-71. 
Plaintiffs' desegregative alternative pro-



16

, • .  o  12/posal was rejected,—  and the board's 
1981 plan was adopted. A. 128.

Plaintiffs appealed. On August 19, 
1981, the 1981 plan was stayed by the Sixth 
Circuit and the appeal expedited. A-155. 
The board's motion to vacate the stay was 
subsequently denied by Justice Stevens as 
Circuit Justice, Metropolitan County Board 
of Education v. Kelle y , 453 U.S 1306
(1981), A-157, and then by the full Court. 
50 U.S.L.W. 3198 (1981).
The Decision Below

On July 27, 1982, the Sixth Circuit
issued its opinion which affirmed in part 
and reversed in part the judgment of the

12/ Under plaintiffs' alternative pro­
posal, only 10 of the 75 K-4 schools were 
over 90% white and none over 90% black, and 
only 2 of the 24 middle schools were 
majority black. Exhibits 283-84.



district court, and remanded for further 
proceedings. A - 1, A-22. First , the
Court affirmed the finding of the board's 
continuing liability, i.e. , that "despite 
the 1971 plan's potential, the record 
establishes and the District Court found 
that desegregation in the Nashville schools 
had never been achieved." A-3.

[The Court's] determination that 
desegregation has never been achieved 
in the Nashville-Davidson County 
school system is amply supported by 
the record, and that finding, there­
fore, is affirmed. Thus the School 
Baord remains under its duty "to 
eliminate from the public schools all 
vestiges of state-imposed segregation. 
Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1, 15 (1971).

A-5.
Second, the "educational components" 

of the board's 1981 plan, including the 
remedial, Afro-American studies and other 
programs and a junior high school magnet 
program, were affirmed on the basis of



Milliken v. Bradley, 433 U.S. 267 (1977)
(Milliken II). A-5 - A-6.

Third, the court of appeals affirmed
all aspects of the middle and high school
plan, except the use of the 15% either race
minimal presence standard on the basis of
Swann v ._Charlotte-Mecklenburg Board of

13/Education, 402 U.S. 1 (1971).—  The court
directed the use of a racial range based 
on districtwide enrollment as a "starting 
point." A-9, A-10.

13/ The Sixth Circuit stated that:
The District Judge selected the 

admittedly arbitrary 15% either race 
figure because "it seem[ed] to repre­
sent a reasonable attempt to provide 
intercultural and interracial contact 
as a foundation for social harmony." 
492 F. Supp. at 193. This selection, 
and such other errors as we find in 
the District Court's opinions and 
orders, originate with his apparent 
conclusion that the unanimous opinion 
of the Supreme Court in Swann has 
somehow been overruled or eroded. But



19

Fourth, the Court reversed the automa­
tic exclusion of grades K-4, from a deseg­
regation plan, and instructed the district 
court to include such students in a pupil 
assignment program "except where inclusion 
would 'risk the health of the children or 
significantly impinge on the educational

13/ continued
the disposition of cases originating 
in this and other circuits does not 
support any such conclusion. In fact, 
Swann was strongly reaffirmed by the 
Supreme Court's approval of this 
court's opinion in Penick v. Columbus Board of Education, 583 F. 2d 787 (6th 
C i r . 1 9 7 8 ), af f _̂ d , 443 U.S. 449
81 979). The Swann opinion is the law 
of the land. And this Court, the 
District Court for the Middle District 
of Tennessee, and the School Board of 
Nashville and Davidson County are 
required by our constitutional 
form of government to follow its 
standards. In accordance with those 
standards, the District Judge will be 
required on remand of this case to 
determine the currently prevailing 
racial population of the school 
system concerned and to employ that 
ratio as a "useful starting point in 
shaping a remedy to correct past 
constitutional violations."

A-9.



process 1 within the meaning of Swann. " 
A-19.

Fifth/ the Court affirmed the denial 
of plaintiffs' claims that the 1981 plan 
itself placed a disproportionate transpor­
tation burden on black middle school 
students and that Pearl High School should 
be expanded into a comprehensive high 
school. A.-21. The district court also 
was ordered to consider long delayed 
faculty assignment, contempt and attorneys' 
fees issues. A-22. Last, the Court 
concluded that "[t]he delays in this case 
suggest that absolute priority be accorded 
to this litigation until a unitary system 
has been achieved." Id.

'Judge Celebrezze concurred in the 
court's decision to affirm in part, but 
dissented from reversal of the student

- 20 -

assignment plan. A-26



21

On remand, the district court has yet 
to order a new student assignment plan.

REASONS TO DENY THE WRIT
1. Petitioner school board argues 

that Pasadena City Board of Education v. 
Spangler, 427 U.S. 424 (1976), absolved the 
board of any constitutional duty to deseg­
regate once the 1971 plan was put into 
effect. Pet. 9-10. That contention is 
supported by neither Spangler nor any other 
authority, and can only be maintained by 
wholly ignoring specific factual findings 
of the board's own wrongdoing. The dis­
trict Court found that the board's initial 
implementation efforts were "deficient," 
"not made [in] good faith" and intended to 
"frustrat[e]" the plan. See, pp. 6-7, supra. 
The courts below found that widespread 
resegregation subsequently occurred, and 
that "[t]he resegregation resulting at



22

least in part from the nonetheless good 
faith efforts of the School Board in the 
implementation of the Court's order, 
amounts to a de jure segregation." See, p. 
12, supra. Findings that the board "vio­
lated the spirit of the 1971 order and 
emasculated desegregation efforts," A-5, 
were concurred in by both courts below, are
not clearly erroneous and are entitled to

1 4/substantial deference.—  "it is beyond 
dispute that Nashville has never achieved 
unitary status, in part because of the 
Board's implementation of the 1971 plan" 
A-11 n.5.

14/ Rodgers v. Lodge, ___U.S. ___ , 5 0
U.S.L.W. 5041, 5044 (1982); Graver Mfg. Co. 
v. Linde Co., 336 U.S. 271, 275 (1979);
Berenyi v. Information Director, 385 U.S. 
630, 635 (1967); Blau v. Lehamn, 368 U.S.
403 ( 1 962); cf. , Columbus Board of Educa­
tion v. Penick, 443 U.S. 339, 468 (Burger, 
C.J., concurring).



23

In Spangler, on the other hand, a 
student assignment desegregation plan had 
been fully complied with, prior unconstitu­
tional assignment practics cured and racial 
concentrations resulted solely from inter­
vening demographic changes. Not only were 
no such findings made here: precisely 
contrary findings were made that the 
original constitutional violation was 
compounded by specific acts of the board 
which resegrgated the school system. See 
Columbus Board of Education v. Penick, 443 
U.S. 449, 454-63 (1979).

The appropriate authority is cases in 
which a school district's default of 
its affirmative obligation to "effectuate a 
transition to a racially nondiscriminatory 
school system," Brown v. Board of Education,
349 U.S. 294, 301 (1955), required exercise 
of judicial authority. Columbus Board of



24

Education v. Penick, 443 U.S. 449, 458-59
(1 979 ), affirming, 583 F.2d 878 (6 th
Cir. 1978); Dayton Board of Education v. 
Brinkman, 443 U.S. 526, 538 (1979), affirm­
ing , 583 F.2d 243 (6th Cir. 1978); Swann v. 
Chariotte-Mecklenburg Board of Education, 
402 U.S. 1, 15-16 (1971); Green v. County
School Board, 391 U.S. 430 (1968). The
familiar rule in school desegregation 
litigation is that: "In default by the
school authorities of their obligation to 
proffer acceptable remedies, a district 
court has broad power to fashion a remedy 
that will assure a unitary school system," 
Swann, supra, 402 U.S. at 16, and that the

15/ The board erroneously ignored that 
" [ejach instance of a failure or refusal to 
fulfill [its] affirmative duty continues 
the violation of the Fourteenth Amendment," Penick, supra, 443 U.S. at 458; Wright v. 
Council of City of Emporia, 407 U.S. 451, 
460 (1972), that good faith alone is no bar 
to relief. Id.; Green, supra, 391 U.S 438-41. --



25

obligation of a court is to "make a every 
effort to achieve the greatest degree 
of actual desegregation, taking into 
account the practicalities of the situa­
tion." Davis v. School Comm'rs of Mobile 
County, 402 U.S. 33, 37 (1971).

2. Nor is any substantial federal 
question or conflict among the circuits 
presented by the decision of the court

15/ continued
The board's suggestion that resegreg- 

tion occurred solely because of interim 
demographic changes and residential segrega­
tion is contrary to specific factfindings, 
see pp. 11-12, supra, and unsupported by 
the record. The only evidence presented by 
the board was a statistical comparison of 
student enrollment from 1967-70 and 1971— 
79, which did not take into account the 
board's implementation actions or any other 
factor. Tr. of March 3, 1980, Hearing,
Vol. VII, pp. 6280-6320. Such proof cannot 
pretend to meet the requirements of 
Penick, supra, 443 U.S at 465 n.13; Keyes 
v. School District No. 1, 413 U.S. 189,
202-03 (1973). In any event, school
officials noted that demographic change was 
underway prior to the 1971 plan. Tr. of 
June 26, 1 979, Hearing, Vol. II, p. 729.



26

of appeals that a 15% either race minimum 
presence standard for secondary schools did 
not promote desegregation. Pet. 11. The 
court below was correct that the minimum 
presence standard was unnecessarily segre-

u  • ±6/gative, unprecedented, "admittedly ar­
bitrary," and adopted for reasons other 
than curing unconstitutional segregation, 
i.e ., "'a reasonable attempt to provide 
intercultural and interracial contact as a 
foundation for social harmony.'" See, 
p. 20 n.13, supra. The court was plainly 
correct in its commonsense direction to the 
district court to use a range based on 
districtwide racial proportion as a "'use­
ful starting point in shaping a remedy to 
correct past constitutional violations,'"

16/ Under plaintiffs' alternative pro­
posal, which was based on the board's 1981 
plan, greater levels of desegregation were 
achieved. See p. 16 n.12, supra.



27

A-9, quoting, Swann, supra, 402 U.S. at
25.

The Sixth Circuit did no more than
carefully and conscientiously reiterate
at length the dictates of Swann, A-7 -
A-10, for the guidance of the district 

1 7/court. Such guidance was appropriate
because unitary status had not been ac-

17/ The court stated that Swann recognized 
"that there is no constitutional right to 
any 'particular degree of racial balance,'" 
but also that "'in a system with a history 
of segregation the need for remedial cri­
teria of sufficient specificity to assure a 
school authority's compliance with its 
constitutional duty warrants a presumption 
against schools that are substantially dis­
proportionate in their racial composition.'" 
A-10.

The court below emphasized that:
An essential element of the plan 

on remand thus will include "reassign­
ing students to achieve the greatest 
possible number of desegregated 
schools." See Liddell v. Board of 
Education of City of St. Louis, 667



28

hieved after 27 years of litigation, the 
district court in fact had adopted an 
erroneous standard, and the district court 
operated under the mistaken notion that 
Swann was not binding. As the court put 
it, its directives were "made necessary by 
our view that 'a plan that at this late 
date fails to provide meaningful assurance 
of prompt and effective disestablishment of 
a dual system is ... intolerable'" A-11

17/ continued
F. 2d 643 ( 8th Cir. 1981). We reempha­
size that we are not requiring any 
precise degree of racial mixing, but 
we are requiring the District Court to 
use all reasonable methods of pupil 
assignment to achieve the maximum 
amount of integration possible.

A-11 n.5. The lower court thus did not
require imposition of a "fixed racial 
quota." Pet. 12. Nor is there any con­
flict with Liddell, Pet. 13, which was 
specifically cited for the guidance of the 
district court.



29

n • 5, quoting, Green supra, 391 U.S. at
438.

The decision of the court of appeals 
to give the district court specific guid­
ance was made on the basis of its substan­
tial experience with the litigation gained 
over the course of hearing five appeals.— ^ 
See PP* 1-2 n. 1, supra. The decision was 
entirely proper and no review is necessary. 
Moreover, no claim could be made that use 
of a Swann student assignment range is 
inappropriate in Nashville: the school
board agreed both in 1971 and in 1980 that 
such a standard was appropriate and filed 
plans which used comparable ranges. See 
pp. 5, 13, supra.

3. Nor is it necessary for the Court 
to review the lower court's equitable in-

J_8/ Chief Judge Edwards, author of the 
opinion below, has authored the last 
three appellate decisions.



30

struction to the district court that
children in lower grades should be included
in a desegregation plan "except where
inclusion would 'risk the health of the-
children or significantly impinge on the
educational process' within the meaning of
Swann." A-19. That instruction comports
in every way with Swann, supra, 402 U.S. at
29-31, and i^s consistent with all lower 

. 1 9/court authority.—  This is not a case 
in which circumstances exist which make

19/ E.g . , Adams v. United States, 620 F.2d 
1277 (8th Cir.), cert, denied, 449 U.S. 826 
(1980); Lee v. Macon County Board of Educa­
tion, 616 F. 2d 805 (5th Cir. 1 980); Hay- 
craft v. Board of Education, 585 F.2d 803, 
805 ( 6th Cir.), cert. denied, 443 U.S.
915 (1979); Keyes v. School District No.
1, 521 F .2d 465 (10th Cir. 1975), cert,
denied, 423 U.S. 1066 (1976); Flax v .
Potts, 464 F.2d 865 (5th Cir.), cert. 
denied, 409 U.S. 1007 (1972).

The lower court's extensive discussion 
of the relevant precedent, A-17 - A-19 n.9, 
clearly demonstrates that no conflict 
exists.



31

the busing of students in lower grades 
inappropriate or in which prior practices 
need be changed: every black student in
grades 1-4 residing in central Davidson 
County has been bused to schools in white 
suburban areas since 1971. See pp. 5-6, 
supra.

4. Last, the school board argues 
that the court of appeals somehow "ignored 
the standards of review articulated by this 
Court for review of a desegregation de­
cree." Pet. 15. The court below, however, 
plainly stated that "the District Court's 
approval of the Board's plan was [both] 
legal error" and "an abuse of discretion," 
A-20 n.11, and accompanying text, because 
the district court's remedial rulings bore 
no relationship to undisputed findings of 
continuing constitutional violation, were 
not intended to cure unconstitutional



32

segregation and were inconsistent with this 
Court's basic jurisprudence in school 
desegregation cases. As the lower court 
put it, this case "offers no new legal 
issues and can and must be decided on the 
basis of final decisions of the United 
States Supreme Court." A-2. Plainly, 
the directions of the court below to apply 
the teachings of Swann and other authority 
on remand cannot be characterized as 
pressing the limits of an appellate court's 
powers.

The board erroneously sugges-ts that the 
failure of the 1971 plan to include "educa­
tional components" was a serious equitable 
defect which the court of appeals ignored. 
Pet. 17-19. The Sixth Circuit, of course,
af f i rmed the 1981 plan's "educational, „20/components."—

20/ Moreover, the record does not support 
any claim that student transportation



33

20/ continued
remedies have had adverse consequences on 
the achievement of black students. The 
entire record below on this issue consists 
of testimony by plaintiffs' educational 
consultant that one-way busing of black 
students in grades 1-4 to outlying white 
schools was bad educational policy that 
had adverse impact on the education of 
black students. Suppl. Record 184, pp. 
10-13, 40-41, 59-65, 131-33, 317-18. The 
remedy proposed was that busing of students 
in grades 1-4 involve proportional numbers 
of black and white students so that some 
black lower grade students would be able to 
attend schools in their neighborhoods, and 
that the board devise programs for students 
bused to schools outside their neighbor­
hoods that addressed the need to provide a 
supportive learning environment and con­
tinuity of instruction. Ij3. Moreover, 
recent dispositive social science evidence cited by the court of appeals in its 
appendix, A — 11 - A-26, documents that 
desegregation raises the achievement levels 
of black students.

The board's related claim that plain­
tiffs' request for "educational components" 
and equitable distribution of the burdens 
of desegregation compromised their request 
for more effective desegregtion, Pet. 5, is 
incorrect. Milliken v. Bradley, supra 
(remedial programs); Monroe v. Board of 
Comm'rs, 391 U.S 450, 458 (1968) (a school 
board may not desegregate in a "deliber­
ately discriminatory manner"). After full 
briefing below, neither the majority nor 
dissent gave the claim any credence.



34

CONCLUSION
The petition for a writ of certiorari 

should be denied.

Respectfully submitted,

’JACK GREENBERG 
TJAMES M. NABRIT, III 
THEODORE M. SHAW 
BILL LANN LEE*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

AVON N. WILLIAMS, 'JR.
RICHARD H. DINKINS

203 Second Avenue, North 
Nashville, Tenn. 37201 
(615) 244-3988

♦Counsel of Record 
Attorneys for Respondents



MEILEN PRESS INC. —  N. Y. C. 219