Goss v. Knoxville, TN Board of Education Brief for Appellants with Suggestion for En Banc Hearing

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al.#
Plaintiffs-Appellants,

vs.
THE BOARD OF EDUCATION OF THE CITY OF KNOXVILLE, TENNESSEE, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS 
with Suggestion for En Banc Hearing

CARL A. COWAN
2212 Vine Avenue 
Knoxville, Tennessee 37915

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

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN SYLVIA DREW 
JOHN BUTLER10 Columbus CircleNew York, New York 10019
Attorneys for Appellants



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al.,

Plaintiffs-AppeHants,
vs.

THE BOARD OF EDUCATION OF THE CITY 
OF KNOXVILLE, TENNESSEE, et al.,

„ Defendants-Appellees.

SUGGESTION FOR EN BANC HEARING

Appellants, by their undersigned counsel, and pursuant 
to Rule 35, F.R.A.P. and Rule 3, Sixth Circuit Rules, 
respectfully suggest that this matter would be appropriately 
heard by the Court en banc for the following reasons:

1. Pursuant to the normal practice of this Court, these 
appeals will be assigned to a panel consisting of Circuit 
Judges Weick and Miller, and Senior Circuit Judge O'Sullivan. 
See Goss v. Board of Educ.. 444 F.2d 632 (6th Cir. 1971).

2. A majority of that panel also formed the majority of 
the panel which decided Mapp v. Board of Educ. of Chattanooga.
Nos. 71—2006, —2007, 72—1443, -1444, on October 11, 1972.



3. Most of the issues in the instant appeals are identical 
to issues raised in the Mapp case; the plaintiffs' expert 
witness was the same individual in both cases and in each 
plaintiffs contend that a plan utilizing pupil transportation 
must be adopted in order to bring about Constitutional compliance.

4. Plaintiffs in Mapp have sought a Rehearing En Banc
of the panel's October 11, 1972 decision therein, and it would 
be appropriate to grant same in that case, act favorably upon 
this Suggestion, and set the matters down for argument before 
the entire Court at one time.

5. The decisions of the various panels of this Court in 
school desegregation cases are in serious conflict (see opinion 
of Edwards, J., dissenting in Mapp, supra). Resolution of 
these conflicts by the Court en banc will materially assist 
litigants and district judges in this Circuit.

WHEREFORE, appellants respectfully suggest the appropriate­
ness of a hearing en_ banc on these appeals.

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Pkwy.
Nashville, Tennessee 37219
CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915

JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHN BUTLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

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TABLE OF CONTENTS

Issues Presented for Review ....................  1
Statement

Introduction ..............................  2
School Segregation in Knoxville 1971-72 . . 3
Desegregation Efforts Since 1960 ..........  5
Residential Segregation in Knoxville . . . .  14
Proposals for Further Desegregation . . . .  16

Page

Financing Desegregation ..................  21
The District Court's Ruling ..............  23

ARGUMENT
The District Court's Finding That Knoxville 
Has A Unitary School System Is Contrary To 
Swann, Other Controlling Decisions Of The 
Supreme Court, This Court's 1971 Remand In 
This Case And Other Decisions Of This Court;
It Is Based Upon Faulty Factual Premises And 
The Application Of Erroneous Legal Standards 26
The District Court Erred In Approving The 
School Board's Proposal To Close A Black 
Elementary School Without A Showing That 
Discontinuation Was Required For Non-Racial 
R e a s o n s .................................. 37
The District Court Should Have Awarded 
Attorneys' Fees And Litigation Expenses To 
The Plaintiffs

A. An Award Is Required Under
Traditional Equitable Principles . . 40

B. An Award Is Required By §718,
P.L. 9 2 - 3 1 8 ...................... 52

Conclusion.................................... 60
[Appendices A & B]

L



Page
CASES:
Adams v. School District No. 5, Orangeburg,

444 F.2d 99 (4th Cir. 1971), aff'g Green 
v. School Bd. of Roanoke, 316 F. Supp. 6
(W.D. Va. 1970)...................................  38

Armstrong Paint & Varnish Works v. Nu-Enamel
Corp., 305 U.S. 315 (1938)........................ 58

Bell v. West Point Municipal Separate School
Dist., 446 F. 2d 1362 (5th Cir. 1971)..............  38

Bradley v. School Bd. of Richmond, 325 F. Supp.
828 (E.D. Va. 1971)..............................  36

Bradley v. School Bd. of Richmond, 53 F.R.D. 28
(E.D. Va. 1971)..................................  50, 51

Brewer v. School Bd. of Norfolk, 456 F.2d 943
(4th Cir.), cert.denied, 406 U.S. 905 (1972)......  35Brice v. Landis, 314 F. Supp. 974 (N.D. Calif.1969) . ...........................................  38

Brown v. Board of Educ. of Bessemer, 464 F.2d382 (5th Cir. 1972)..............................  35
Carpenter v. Wabash Ry. Co., 309 U.S. 23 (1940)..... 53Carr v. Montgomery County Bd. of Educ., 429F. 2d 382 (5th Cir. 1970)..........................  38
Chambers v. Iredell County Bd. of Educ., 423

F. 2d 613 (4th Cir. 1970)..........................  38
Citizens to Preserve Overton Park v. Volpe,401 U.S. 402 (1971)..............................  54n
Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir.

1971)...........................................  40n, 58Clark v. American Marine Corp., 304 F. Supp.603 (E.D. La. 1969)..............................  45
Cleveland v. Second National Bank & Trust Co.,

149 F.2d 466 (6th Cir.), cert, denied 326U.S. 777 (1945)........ ...................... 43
Crawford v. Board of Educ. of Los Angeles,

No. 822-854 (Super. Ct. Cal., Jan. 11, 1970)... 41,47,50
Davis v. School Comm'rs of Mobile County, 402

U.S. 33, 91 S. Ct. 1289, 28 L .Ed.2d 577 (1971)___ 23,26Deal v. Cincinnati Board of Educ., 406 F.2d
1183 (6th Cir. 1969)..............................  27nDeal v. Cincinnati Board of Educ., 369 F.2d 
55 (6th Cir. 1966), cert, denied 389 U.S.
847 (1967).......................................  26,27

Dobbins v. Local 212, IBEW, 292 F. Supp. 413(S .D. Ohio 1968).................................  45
Dolgow v. Anderson, 43 F.R.D. 472 (E.D. N.Y.1968).............................................  49
Drummond v. Acree, No. A-250 (September 1,

1972) (Mr. Justice Powell, Circuit Justice) 58-59



Page
Eisen v. Carlisle & Jacquelin, 391 F.2d 555(2d Cir. 1968).....................................  49
Gilbert v. Hoisting & Portable Engineers,

237 Ore. 139, 390 P.2d 320 (1964)..................  49n
Glover v. Housing Auth. of Bessemer, 444 F.2d

158 (5th Cir. 1971)................................  54n
Gordon v. Jefferson Davis Parish School Bd.,

446 F. 2d 266 (5th Cir. 1971).......................  39
Goss v. Board of Educ., 444 F.2d 632 (6th Cir.), 

immediate relief denied with instructions to
issue mandate, 403 U.S. 956 (1971)............  2,27,29

Green v. County School Bd., 391 U.S. 430 (1968)...... 45n
Greene v. McElroy, 360 U.S. 474 (1959)...............  57n
Greene v. United States, 376 U.S. 194 (1964)......  56n,57n
Hall v. Beals, 396 U.S. 45 (1969)....................  54
Hall v. St. Helena Parish School Bd., 424 F.2d

320 (5th Cir. 1970)................................ 54n
Hamm v. City of Rock Hill, 379 U.S. 306 (1964).......  54
Hammond v. Housing Auth. & Urban Renewal Agency,

328 F. Supp. 586 (D. Ore. 1971)..................  45,49Haney v. County Bd. of Educ., 429 F.2d 364
(8th Cir. 1:970)........................... ......... 38

Henry v. Clarksdale Municipal Separate School
Dist., 433 F. 2d 387 (5th Cir. 1970)................  34

Hill v. Franklin County Board of Educ., 390
F. 2d 583 (6th Cir. 1968)..........................  47

Johnson v. United States, 434 F.2d 340 (8th Cir.1970)..............................................  54n
Jones v. Mayer, 392 U.S. 409 (1968)........ 43,45n,46,48
Kelley v. Metropolitan County Bd. of Educ.,
463 F. 2d 732 (6th Cir. 1972)..................  4n,35,39

Lea v. Cone Mills Corp., 438 F.2d 86
(4th Cir. 1971).........   45,58

Lee v. Macon County Bd. of Educ., 448 F.2d 746
(5th Cir. 1971)....................................  38

Lee v. Southern Home Sites Corp., 444 F.2d 143
(5th Cir. 1971)....................................  58

Lee v. Southern Home Sites Corp., 429 F.2d 290(5th Cir. 1970)....................................  46
Louisiana v. United States, 380 U.S. 145 (1965)......  45n
Mapp v. Board of Educ. of Chattanooga, Nos.

71-2006, -2007, 72-1443, -1444 (6th Cir.,
October 11, 1972)..................................  36n

Miller v. Amusement Enterprises, Inc., 426
F. 2d 534 (5th Cir. 1970).........................  47,48

Mills v. Electric Auto-Lite Co., 396 U.S. 375
(1970)..........................................  42n,47

Monroe v. Bd. of Comm'rs of Jackson, 244 F. Supp.3 53 (W.D. Tenn. 1965).........................
ii i

47



Page
Nesbit v. Statesville City Board of Educ.,

418 F.2d 1040 (4th Cir.1969) (en banc)(per curiam).......................................  41
Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407,

1 Race Rel. L. Survey 185 (S.D. Ohio 1968).........  46n
Newman v. Piggie Park Enterprises,

390 U.S. 400 (1968)...............  44,47,48,51,57,58,59Northcross v. Board of Educ., No. 72-1630
(6th Cir., Aug. 29, 1972)........................ 4n,28

Parham v. Southwestern Bell Tel. Co.,
433 F. 2d 421 (8th Cir. 1970)..................  44-45, 51Pina v. Homsi, 1 Race Rel. L. Survey 18
(D. Mass. 1969)....................................  46n

Robinson v. Shelby County Bd. of Educ., No.
71-1966 (6th Cir., September 21, 1972) ............  39Rolax v. Atlantic Coast Line R.R., 186 F.2d 473(4th Cir. 1951)....................................  49n

Rolfe v. County Board of Educ. of Lincoln 
County, 282 F. Supp. 194 (E.D. Tenn. 1966), 
aff'd 391 F. 2d 77 (6th Cir. 1968)..................  47

Shelley v. Kraemer, 334 U.S. 1 (1948)................  16Siegel v. William E. Bookhultz & Sons, Inc.,
419 F. 2d 720 (D.C. Cir. 1969)......................  44n

Smith v. St. Tammany Parish School Board,
302 F. Supp. 106 (E.D. La. 1969)...................  38

Sparrow v. Gill, 304 F. Supp. 86 (M.D. N.C. 1969).... lOn
Sprague v. Ticonic National Bank, 307 U.S. 161

(1939).....................................  43-44,47,58nSullivan v. Little Hunting Park, Inc., 396U.S. 299 (1969)....................................  47
Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1 (1971)...............................  passim
Swann v. Charlotte-Mecklenburg Bd. of Educ.,328 F. Supp. 1346 (W.D. N.C. 1971).................  38
Terry v. Elmwood Cemetery, 307 F. Supp. 369

(N.D. Ala. 1969)..................................  46n
Thorpe v. Housing Auth. of Durham, 393 U.S. 268

(1969)........................................  53,54,56Tracy v. Robbins, 40 F.R.D. 108 (D.S.C. 1966)........  47
United States v. Board of Educ. of Baldwin
County, 423 F.2d 1013 (5th Cir. 1970)..............  54n

United States v. Greenwood Municipal Separate
School Dist., 460 F.2d 1205 (5th Cir. 1972)........  35

United States v. Schooner Peggy, 5 U.S. (1
Cranch) 103 (1801)...............................  53,56nUnited States v. Scotland Neck City Be], of
Educ., 407 U.S. 484 (1972).........................  26

IV



Page
Vandenbark v. Owens-Illinois Glass Co./

311 U.S. 538 (1941)..............................  53-54
Vaughan v. Atkinson, 369 U.S. 527 (1962)........... 44n,47
Wall v. Stanly County Board of Educ., 378

F.2d 275 (4th Cir. 1967)...........................  47
Wright v. Council of the City of Emporia,

407 U.S. 451 (1972)................................  26
Ziffrin v. United States, 318 U.S. 73 (1943).........  54

STATUTES ;
42 U.S.C. § 1982 .........................  43,44,45,47,48n
42 U.S.C. § 1983 .........................  43,44,45,47,4842 U.S.C. § 2000a-3 (b) ..............................  47
42 U.S.C. § 2000e-l............................... . [ 56n
42 U.S.C. § 2000e-16.............................. 56n

OTHER AUTHORITIES:
117 Cong. Record, S5483-92 (daily ed., April 22,
1971) and S5534-39 (daily ed., April 23, 1971).....  55117 Cong. Record, S5484, S5490 (daily ed.,April 22, 1971)....................................  59

117 Cong. Record, S5485 (daily ed., April 22, 1971)... 59n 
117 Cong. Record, S5537 (daily ed., April 23, 1971)... 59
United States Code, Congressional and AdministrativeNews, 1972, at 2406 ...............................  55
United States Comm'n on Civil Rights, Racial
Isolation in the Public Schools 65 (1967).......... 5n

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Nos. 72-1766, -1767

JOSEPHINE GOSS, et al..
Plaintiffs-Appellants,

vs.
THE BOARD OF EDUCATION OF THE CITY 
OF KNOXVILLE, TENNESSEE, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS

Issues Presented for Review

1. Whether the district court erred in holding that, with 
the implementation of amendments to its desegregation plan 
proposed by the Board of Education, Knoxville was operating a 
unitary school system in conformity with Constitutional require­
ments and with Swann v. Charlotte-Mecklenburq Bd. of Educ.,
402 U.S. 1 (1971).

2. Whether the district court erred in approving the 
amendments to its desegregation plan proposed by the Knoxville 
Board because such amendments unfairly burden black students 
by closing black schools.



3. Whether the district court erred in denying plain­
tiffs' motion for an award of attorneys' fees.

Statement
Introduction

These appeals are taken from the district court orders of 
April 6, 1972 (denying plaintiffs' requests for further 
desegregation of the Knoxville public school system, approving
the school board's proposed modifications to its plan, and

1/declaring the school system to be "unitary") (A. 1672) and 
May 22, 1972 (denying the motion to alter and amend a May 1,
1972 district court order denying an award of attorneys' fees 
in favor of plaintiffs) (A. 1674). The district court proceed­
ings followed this Court's 1971 remand in light of Swann, supra, 
and companion decisions by the United States Supreme Court 
Goss v. Board of Educ., 444 F.2d 632 (6th Cir.j, immediate 
relief denied with instructions to issue mandate. 403 U.S. 956 
(1971).

In general, the contentions of the parties on the present 
appeal are the same as those raised in 1971— and concern 
whether or not Knoxville has, since the institution of this 
lawsuit, taken adequate steps to dismantle its state-mandated 
dual school system. Since that question was not resolved by

—^ Citations in the form "A. " are to the reproduced
Appendix on this appeal. Citations to the Appendices on
previous appeals will be designated "20,834 A. __, " "14,425
A. ___," etc. Citations to exhibits introduced during the
1971-72 hearings following this Court's remand are given as 
" X

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this Court in 1971 (in order to permit the district court to
evaluate its own ruling in light of the intervening decision
in Swann), and also to furnish the Court with information
relating to the background of this suit, we reprint as Appendix 

_  2/ A to this Brief, the Statement from our 1970 Brief, No. 20834.

Following this Court's remand, the Knoxville Board of 
Education adopted certain amendments to its desegregation plan 
(X 27, A. 1532); plaintiffs in the trial court opposed the 
closing of black schools as part of the board's plan and 
objected to the sufficiency thereof. After lengthy hearings, 
at which plaintiffs' expert witness proposed an alternative 
desegregation plan for Knoxville (X 19-22, A. 1526), and during 
which the City of Knoxville, its Mayor and City Council were 
joined as additional parties defendant (A. 1516), the district 
court ruled that the amendments to the board's plan were 
adequate and that the board was operating a unitary school 
system (A. 1653).

School Segregation in Knoxville 1971-72

The Knoxville City school system is relatively small, 
both in terms of total enrollment and of the percentage of 
black students. In 1971-72, the system enrolled 34,876 students;

2 /— The detailed procedural history of this litigation appears 
at n.2 therein.

-3-



of that number, 5,767 or 16.5% were black (X 8, A. 1518)-.- 
However, of 64 schools in the Knoxville system, seven were 
more than 90% black (ibid.; Table I infra). Sixteen schools 
had all-white enrollments in 1971-72 and twelve others were 
more than 99% white (with only 31 black students in attendance 
among all twelve schools) (ibid.).

The seven black schools were initially constructed to 
serve black students only (A. 854) and all except Cansler and 
Maynard are located in the East Knoxville area. Together they 
enroll more than 51% of Knoxville's black student 
population, but only 32 white students attend these schools 
(see Table I infra). 13,772 or 49% of all white students in
the system attend the twenty-eight 99% or 100% white schools,

1/along with only 30 black pupils (X 83, A. 1644). More than 
82% of all white students in Knoxville attend schools more 
than 90% white (ibid.).

Table I
1971-72 Enrollments of Virtually All-Black Schools
School Black Students White Students

Austin-East 693 4
Cansler 231 4

2/ The Memphis and Nashville school systems, each of which was 
recently the subject of opinions of this Court, enrolled 145,581 
students (53.6% black) and 94,170 students (24.6% black), 
respectively. See Northcross v. Board of Educ., No. 72-1630 
(6th Cir., August 29, 1972); Kelley v. Metropolitan County Bd. of Educ.. 463 F.2d 732 (6th Cir. 1972).
4/ Thus, 51 of Knoxville's 64 schools are attended by 90% or 
more students of one race, and serve 21,497 students —  61% of the entire school system's enrollment.

-4-



Eastport 442 3
Green 411 1
Maynard 288 10
Sam Hill 280 8
Vine 619 2

The reduction in the number of virtually all-black schools
since 1969-70 (see Appendix A, p. 13) results from (i) the
closing of Mountain View Elementary in 1970 in connection with
the relocation of the black population it served (c_f. A. 372-98),
and (ii) elimination of one of the more obvious segregatory
devices from the system (see Appendix A, p. 10) by pairing
Rule and Beardsley junior high schools, as directed by the

5/district court in 1970.

Other one-race schools in Knoxville have remained essen­
tially unchanged since the commencement of this lawsuit.

Well, there are a number of schools that 
have remained predominantly black; there 
are a number of schools that have remained predominantly white . . . .

(A. 620) (Board Vice-Chairman Howard).

Desegregation Efforts Since 1960

The Board of Education takes the position that its 
affirmative constitutional obligation to desegregate was

IT  In its 1971-72 amendments, the Board finally proposed the 
pairing of Sam Hill and Lonsdale Elementary Schools as well 
(X 27, A. 1532), a measure proposed years ago by the Tennessee 
Title IV (HEW) Center. See United States Comm'n on Civil Rights, 
Racial Isolation in the Public Schools 65 (1967); Appendix A, at 10, n.12.

-5-



satisfied by its elimination of dual, overlapping attendance 
zones and the substitution therefor of "neighborhood school" 
zones. Current segregation is, in the Board's view, attributable 
to independent residential segregation and is unrelated to the 
dual system. Plaintiffs contended —  and we believe the evidence 
shows —  that the present public school segregation is highly 
related to official discrimination, including continuing dis­
crimination by the School Board, and that the Board has never 
undertaken the effective desegregation measures which the 
Constitution requires of it. The conflict is exemplified by 
the following testimony of Dr. Bedelle, the Assistant Superin­
tendent and chief Board witness:

Q. You also indicated that school enrollments do 
follow housing projects on direct examination.
You don't wish to change that now, do you?
A. Our school enrollment reflects practically 
in every case the residential pattern that is in proximity to the school.
Q. And if the residential pattern is segregated 
the school is segregated too, isn't it?
A. if that residential pattern is predominantly 
black or white the school will reflect that, yes.
Q. And if that was the situation when desegrega­
tion began, then the neighborhood school patterns 
are insufficient to integrate the school, aren't they?
A. For the purpose of mixing all schools that is true.

(A. 127 ) .

6/The dual zones were eliminated in 1964-65 and since 
single attendance areas were established for each school, there

17 See Appendix A, n. 2 .
-6-



have been no substantial changes in most of the zones (A. 103; 
see also, A. 89; Appendix A, at 5). Dr. Bedelle compared the 
present zones with the dual areas operative prior to 1960 
(X 38-40) and found remarkable similarities, particularly inso­
far as the black schools are concerned: the Cansler, Maynard,
Sam Hill, Green and Eastport zones encompass virtually the same

Vareas of Knoxville as the old "dual" zones (A. 92-100). Many
8/

of pre-annexation Knoxville's white school zones also remain 
substantially unchanged: Fair Garden, Park Lowry, Fort Sanders, 
Sequoyah, Perkins, West Hills, Claxton, McCallie, Brownlow, 
Oakwood, Lincoln Park, McCampbell, Belle Morris, Flenniken 
(incorporating the former Lockett zone). South Knoxville, and 
Giffen (A. 100-02). Indeed, Dr. Bedelle testified, the school 
board never redrew the zones in a manner which would achieve 
substantia] desegregation because this would result in displacing 
large numbers of students from the schools they formerly attended 
(A. 161).

The prior explicit segregation policy of the board has 
significantly influenced the residential segregation to which 
the board now attributes continued school segregation in Knox­
ville. Maintenance of the dual system caused the board to 
locate schools in areas of racial concentration, but closer

I T  Because residential patterns in Khoxville have always 
been very highly segregated, the areas of actual overlapping zones were minimized.
8/ In 1963, a substantial portion of Knox County was annexed.

-7-



together than would otherwise have been necessary (A. 104).
The result is that the "neighborhood" zones for such schools 
today are uniracial. Dr. Bedelle previously testified that the 
school system's policy of building schools in racially concen­
trated population centers (18,165 A. 233, 241) caused racially 
discrete communities to develop near schools designated for 
children of each race (20,834 A. 411; 18,165 A. 227).

This relationship between school location and housing
patterns has been noted by the Supreme Court, Swann, supra,
402 U.S. at 20-21, and by scholars. Dr. Karl Taeuber, a noted
demographer, testified below that

There is a reciprocal relationship between the 
school attendance zone and neighborhood resi­
dential patterns such that segregation in one tends to reinforce segregation in the other.

(A. 774 ). Dr, Taeuber stated that in his opinion, the actions
of Knoxville school authorities have contributed significantly

9/to residential segregation in the city (A. 818).

The school construction policies of the board since 1960 
have exacerbated racial segregation within the school system.
The Director of the Metropolitan Planning Commission, which has

2/ Similarly,Rodney Lawler,Executive Director of the Knoxville Housing Authority, testified that if students were assigned to 
"neighborhood" school zones, the location of schools near 
segregated housing projects (as Knoxville's were prior to 1965 and as they remain today, A. 376, 380; X 16) would reinforce 
the segregation of each institution (A. 375). The plaintiffs’ 
educational expert. Dr. Stolee, also discussed the influence 
of Knoxville board actions upon the development of residential segregation within the City (A. 1317-19).

-8-



assisted the city and county school authorities in selecting 
school sites, testified that his agency had never been asked 
to plan for a biracial school population except for the new 
Green school presently under construction in East Knoxville 
(A. 1042). None of the schools in use which were constructed 
after this suit was filed is attended by less than 90% pupils 
of one race.

Dr. Bedelle stated that the major determinants of the
board's site selection policy are the availability of land and

10/the residential concentrations of pupils (A. 166-67 ) . The 
board has never, with the exception of the new Green Elementary 
school, affirmatively selected sites for the purpose of 
desegregation (see 18,165 A. 224). The result is that new 
schools have been constructed near the outer fringes of Knox­
ville in spite of the considerable underutilization of classroom 
space in central city schools. (There are between 1200 and

11/1500 empty spaces in these schools.) (X 54, A. 1557; A. 182).

— / In his 1970 testimony, Dr. Bedelle gave a long list of 
factors justifying the location of the new Bearden and Central 
High Schools; projected racial composition was not one of them (20,834 A. 356-59).
11/ Dr. Bedelle subsequently attempted to qualify his testimony by stating that the capacity figures provided in answers to 
interrogatories had been prepared from outdated information 
and were incorrect; that the number of available spaces should 
be reduced by some 1200-1300 because some of the empty class­
rooms are being utilized for such things as a PTA office or 
clothing center (A. 532-33, 536, 542). However, Dr. Bedelle admitted that this space could be utilized and would be if it 
was the only seating available for students (A. 581). in fact, 
X 54 (A. 1557) understates the available chair space because 
it lists only vacant classrooms (A. 572). Austin-East, for 
example, is 203 students under its rated capacity, X 54 shows 
all classrooms in use (a . 577). Dr. Bedelle testified that the

-9-



The effects of the board's construction policies resulting 
in continued segregation were magnified by Knoxville's trans­
portation practices and the assignment of Knox County children 
attending Knoxville schools (most of whom are white). Pursuant 
to the annexation agreement with Knox County in 1963 (X 10), 
students residing within the area added to the city in that
year are furnished bus transportation to schools by the Knoxville 

12/
board. Approximately 6100 Knoxville students utilize school 
buses under the agreement (A. 669; A. 41); no other pupil 
transportation is provided by the school board except for a

12/shuttle bus between the Austin and East facilities (A. 42). 
Although schools in the annexed area are heavily crowded, how­
ever (A. 184, 576), the students who receive transportation 
anyway are not assigned to the underutilized central city schools

11/ cont'd
board has not attempted to utilize the available space in central 
city schools rather than expanding the capacity of suburban facilities, even though this would have resulted in greater 
desegregation, because pupil transportation "alienates" parents (A. 229). See text infra.
12/ The Knoxville board is empowered to furnish transportation 
to any or all of its students but under Tennessee law, partial 
State reimbursement for transportation services is payable only 
to county boards of education (A. 677). Cf. Sparrow v. Gill,
304 F. Supp. 86 (M.D. N.C. 1969). Twelve Tennessee city school 
districts have transportation agreements with their respective 
county boards pursuant to which they receive proportional reim­
bursement from the State (A. 678-79). In 1970-71 Knox County 
received State reimbursement payments totalling $313,000, or 
approximately 39% of its operating cost ($32.48 annually per 
pupil) for transporting some 25,000 students —  including those in the area annexed to Knoxville (A. 670-71).
13/ Prior to the direction of the district court during the 
trial below, and despite the holding of the Supreme court in 
Swann, 402 U.S. at 26-27, the board did not even provide free 
transportation to students exercising majority-to-minority transfers (A. 82).

-10-



(A. 189). Instead, the school system purchases portable build­
ings at a cost of between $10,000 and $12,000 to expand the 
capacity of the predominantly white suburban schools (A. 171,
236, 189) despite the fact that desegregation is admittedly

14/retarded by this practice (A. 192). In addition, some 2800 
Knox County resident pupils attend Knoxville schools (A. 6), 
most of them white, but they (like the annexed area students) 
are not assigned so as to desegregate the school system (X 41; 
A. 187-89).

Not only did Knoxville never affirmatively redraw its 
zone lines to achieve desegregation, nor employ construction 
and site selection toward that goal, nor assign students it 
was transporting anyway in order to integrate its facilities, 
but the administration of its transfer policies over the years 
has been so loose as to undercut even the minor increases in 
desegregation which might have been anticipated had the atten­
dance area boundaries been enforced. in 1970 the district 
court wrote that

. . . it appears that there is some irregularity
in the administration of [the transfer] policy 
. . . . In light of the former history of this 
suit the Board has committed a grave omission in 
failing to either enforce its transfer policy or 
to maintain records to show that enforcement.
Failure to provide the requested information is 
difficult to excuse. Approval of neighborhood 
zones is specious when informal transfers occur

(?0,834 A. 317-18). Yet again this year the board's own bi- 
racial committee strongly condemned the school authorities'

±2/ In analogous fashion in the past —  but after the board came 
under judicial decree to desegregate —  black students were 
contained in predominantly black schools by the construction of additions or expansion of their capacities while adjacent, nearby white facilities were underutilized (A. 858-62).

-11-



administration of transfer policies, charging in particular 
that the failure of pairing Austin and East High Schools to 
bring about meaningful and lasting desegregation resulted at 
least in part from lax transfer policy enforcement (A. 1123; 
accord, A. 80-81 [Bedelle: board processed 2000-3000 transfer 
requests a year and there is some reason to believe vocational
transfers were abused]; A. 494 [Trotter, the board's educational 
expert: the pairing of Austin and East had the inevitable 
impact of increasing segregation]):

This Committee is in agreement that this entire 
problem has been aggravated and compounded by 
the questionable actions the Administration and 
the School Board has taken on zone transfers in past years. This transfer situation seems to 
involve not only the black and white ratio in 
schools but athletes and personal favor. It 
has been unfair and unwise. Unless the School 
Board members can establish a reasonable trans­
fer policy and abide by it, no plan will work; 
and they will continue to lose community support.

(A. 1124).

The most flagrant example of transfer program abuse 
concerns the decline of white enrollment at the paired Austin- 
East High School after 1968. Although this was the subject 
of considerable inquiry in the 1970 hearings (see the comments 
of the district quoted above, 20,834 A. 317-18), Dr. Bedelle 
had still made no effort to determine whether all of the white 
students within the Austin-East zone had been properly trans­
ferred; he admitted that the majority of such pupils had 
obtained vocational transfers to Fulton (A. 602-04) and recog­
nized the likelihood that vocational transfers had been abused 
(A. H0-8J), Dr. Bedelle subsequently produced transfer records

-12-



and forms for some of the white students in the Austin-East
zone (X 82, A. 1567-1643) which showed that transfers had
been granted for such things as "emotional difficulty" (A. 1238-

11/39) or on explicitly racial grounds (A. 1326).

Finally, the board's attempts to desegregate its faculty
and administrative staff have been long delayed and ineffective.
Although the board has at last adopted a policy of reassigning
faculty members so as to establish in each school a faculty
whose racial composition approximates that of the system as a
whole (X 12, A. 1522; X 27, A. 1532), this was not effectuated
for the 1971-72 school year, during which several traditionally
black facilities maintained disproportionately black faculties
(A- 31-33; X 11, A. 1521). There has been virtually no change
on the principals-administrative staff level (X 11, A. 1521),
and both Dr. Bedelle and Dr. Stolee agreed that black schools
in Knoxville remain racially identifiable by virtue of having

16/black principals (A. 146 [Bedelle], A. 1300-02 [Stolee]).
There is only one black on the central administrative staff, 
as Director of Federal Programs (A. 594). The system has done 
very little to prepare faculty members for desegregation (A. 1501).

see n. infra.
16/ The only black principal assigned to a white school was a 
first-year principal assigned to Belle House for one year prior 
to its being closed (A. 229). Knoxville assigns principals 
based upon their making application for vacancies, but never specifically told its black principals that it would be willing 
to assign them to traditionally white schools (A. 225-27).
Dr. Bedelle also testified that some blacks refused appointments 
at predominantly white schools (A. 37) but this was apparently not made a condition of their employment.

-13-



Residential Segregation in Knoxville

Consistent with the school board's thesis that it bears 
no responsibility for either the residential segregation or 
the school segregation in Knoxville, the defendants attempted 
to establish that neither is the product of racial discrimina­
tion. The board's witness on this subject, Dr. Champion, drew 
his conclusions from secondary sources without any empirical 
data at all (A. 274) and it is not unfair to say that his testi­
mony was thoroughly discredited. Plaintiffs introduced very 
substantial evidence to demonstrate that residential segregation 
in Knoxville results from both official and private racial 
discrimination.

As the district court found (A. 1657), blacks are rigidly 
segregated in the city, generally into three areas (A. 345).
The witnesses all acknowledged the segregatory effect upon 
residential development of school location under the dual 
system (A. 104; 20,834 A. 411; 18,165 A. 227 [Bedelle]; A. 818 
[Taeuber]; A. 376, 380 [Lawler]; A. 1317-19 [Stolee]; cf. A. 
1211-12 [Sharpe]). They also recognized the important role 
played in Knoxville by the location of segregated public 
housing projects: Dr. Bedelle commented that most of the pre­
dominantly black schools are very much affected by their location 
near housing projects (A. 18-19, 107-12) which remain substan­
tially segregated today (A. 114). See also, A. 791-93 (Taeuber);
A. 375 (Lawler). The expansion of the black population into 
East Knoxville was facilitated by public urban renewal and

-14-



highway programs. Plaintiffs’ witness Rabin noted, for example, 
that Interstate Highway 40, which generally parallels the 
Southern Railroad right of way, was planned with a sufficient 
deviation from the railroad route in East Knoxville as to 
enclose all census tracts which in 1960 had any substantial 
concentration of blacks (A. 337). Dr. Bedelle agreed that 
urban renewal and public housing together account for eastward 
movement of the black population from the Green-Mountain View 
area near the center of the city (A. 106). Housing Authority 
Director Lawler described how public housing in East Knoxville 
was erected as a resource to receive blacks being relocated 
from the Mountain View Urban Renewal area (A. 372, 383-85), in 
which the replacement housing will probably be occupied by 
whites (A. 390).

Private racial discrimination in the housing market is 
well entrenched and also contributes Markedly to the existing 
segregated residential patterns. Lawler thought "blockbusting" 
tactics which accompanied the relocation of Mountain View Urban 
Renewal Area residents contributed to the resegregation of 
blacks in East Knoxville (A. 398) and that such practices

17/were continuing even at the time of the hearing (A. 396-97).

At the time of the hearing, the United States Department 
of Justice was reported to be investigating the occurrence 
of blockbusting practices in conjunction with public housing 
and urban renewal projects in East Knoxville (A. 400). Examples of continued discrimination were revealed by the testimony of 
Dr. Robert H. Kirk, a black University of Tennessee professor, 
and Mrs. Paul Underwood that when they expressed interest in 
West Knoxville properties, realtors informed them that the 
owners would not permit sales to blacks (A. 980-81; A. 1005-06).

-1 5-



The President of the Knoxville Board of Realtors testified 
that at least prior to 1968, the residential mobility of 
Knoxville blacks was restricted (A. 1205), and that many sub­
divisions in the city were and are all white because of the 
use of restrictive covenants (A. 1196, 1200). Until recently, 
the Knoxville Board's Code of Ethics, like that of the National
Association of Real Estate Boards, contained a provision

18/cautioning brokers from introducing "inharmonious" uses into 
neighborhoods; while operative, the Code prevented blacks from 
purchasing homes in white sections of the city (A. 1198-99).
The manager of a savings and loan association stated that prior 
to Shelley v. Kraemer (1948), virtually all areas of Knoxville 
except Mechanicsville and portions of East Knoxville other 
than Mountain View were covered by racially restrictive covenants 
which prevented blacks from obtaining mortgage loans to 
purchase in white areas (A. 1139-40, 1145).

Proposals for Further Desegregation
In August, 1971, the school board adopted amendments to 

its desegregation plan (X 27, A. 1532). The board proposed 
to balance its school faculties so as to eliminate racial 
identifiability, to further restrict transfers, to appoint a 
biracial committee and to guarantee election of minority 
cheerleaders. The amendments concerning student assignments
I q /— • Cf. A. 941-47 (testimony of Martin Sloan concerning FHA's replacement of explicit racial guidelines with provision against "inharmonious user groups").

-16-



included: the pairing of Sam Hill and Lonsdale elementary schools;
the pairing of Rule and Beardsley Junior High schools, the closing 
of the Cansler Elementary school and division of its students 
(black) between adjacent predominantly white Beaumont and West 
View elementary schools; the closing of the Moses Elementary 
school (predominantly white) and assignment of its students to 
Maynard (black); the eventual closing of Robert Huff elementary 
school upon completion of the new Sara Green school in East 
Knoxville; the pairing of vocational programs at Austin-East 
and Fulton High schools; and a minor zone change between Austin- 
East and Holston High schools. The board did not make projections 
of the anticipated racial distribution of pupils expected 
from the changes.

Attached to the board's submission as an exhibit were
a series of recommendations for desegregation, including
additional attendance boundary changes, which the board did
not propose to adopt (A. 1535-43). At the trial it developed
that these recommendations formed part of a report to the board
from a University of Tennessee professor, Dr. Charles Trotter,
whom it had commissioned to develop a desegregation plan for
Knoxville "to get the best mix of children, and without any

19/
busing as part of the plan" (A. 407). He carried out his
instructions, but the board did not fully adopt his recommendations

— '' Compare A. 153 5-43 with A. 1549-56.
-17-



(A • 459) . lie was unable, however, to compare the desegregation 
which would be achieved under his plan and that adopted by the 
board (ibid.).

Dr. Trotter did say that while his recommendations would 
eliminate some all-black schools, it would maintain schools 
whose racial compositions are substantially disproportionate 
to the total ratio in Knoxville even though experience and the 
educational literature indicate that such schools are unstable; 
he did not consider whether the results he projected at any 
particular school or schools would be likely to lead to 
resegregation (A. 462, 474). He described the changes in racial 
composition which would result from his recommendations at 
several schools as "not very substantial" (A. 479). Indeed, 
his plan would increase the percentage of black students at 
Eastport Elementary school, already more than 90% black (A. 480). 
These results flowed from the limitations placed upon him by 
the board: he agreed that it was very difficult to achieve
any substantial desegregation merely by peripheral tinkering 
with the zone lines (A. 481).

Plaintiffs’ expert witness, Dr. Michael Stolee, analyzed 
Dr. Trotter's plan as follows: It would affect only twenty-one
of Knoxville's 64 schools (A. 1333), it would eliminate one 
all-black elementary school (Sam Hill) by pairing but establish 
two schools in its stead which remain substantially disproportionate

-18-



to the system-wide ratio (A. 1334-35); achieve similar results 
by pairing Rule and Beardsley without involving other junior 
and senior high schools in substantial desegregation efforts 
(A. 1336); and in general, it would make only minor changes in 
racial composition at other affected schools (A. 1340; X 84,
A. 1646).

The board's amendments would achieve even less desegre­
gation than Dr. Trotter had proposed (A. 452). Vice-Chairman 
Howard testified that the board had decided not to utilize 
transportation of pupils as a technique for desegregation 
because of fiscal problems and because in its judgment, the 
majority of the community did not favor busing for desegregation 
(A. 610). The bi-racial committee recommended that busing b.̂ 
kept to a minimum and restricted to secondary schools (A. 1100) 
but its Chairman was astounded to learn that over 6,000 students 
in the system are already transported to school at public 
expense (A. 1120-21).

Plaintiffs' expert educational witness, Dr. Michael 
Stolee, presented an alternative desegregation plan to maximize 
integration by using the techniques of pairing, zoning, grade 
restructuring, and pupil transportation (X 19-22). At the 
elementary level, its typical approach was to cluster one

-19-



predominantly black elementary school with several predominantly 
white schools and restructure the grades (A. 1346-53). The 
clusters, contiguous and non-contiguous, are based upon the 
existing school zones established by the Knoxville school 
authorities (A. 1364). At the junior high school level, the 
plan utilized some grade restructuring and both contiguous and 
non-contiguous zones drawn by combining existing elementary 
school attendance areas (A. 1366-71). With little exception, 
the junior high school zones would operate like a feeder 
pattern, assigning children who attended the same elementary 
schools to the same junior high schools (A. 1372). The basic 
technique for senior high school desegregation is noncontiguous 
zoning (A. 1373-76).

Dr. Stolee further proposed specific faculty desegregation 
policies (X 85, A. 1647) and reporting provisions (X 86, A. 1650; 
A. 1383).

Dr. Stolee made a general and flexible assumption that 
in Knoxville, with a total black student population of 16.5%, 
truly desegregated schools would range between 10%-30% black (A. 
1296), but under the plan he devised in light of the practical 
limitations in Knoxville, individual schools were projected to 
range from 8.6% black to 39.1% black (A. 1526-31). Dr. Bedelle 
agreed that Stolee's plan did not propose an absolute or fixed 
percentage (A. 1492).

-20-



Financing Desegregation
Dr. Stolee projected, on the basis of his experience that 

only 75% of those students eligible for free transportation
actually take advantage of it (A. 1357), that 5,104 pupils

20/
would require transportation under his plan (A. 1408),
although some of these students might already be receiving it/
pursuant to the annexation agreement. Estimating a per pupil

21/
cost of $36 annually, he placed the expense of implementing
his plan at less than $200,000 —  about 1% of the board's

22/
$23,000,000 budget for 1971-72 (A. 58).

Considerable evidence was introduced concerning the 
financial condition of the school system and the City of 
Knoxville, which furnishes approximately 10% of the board's 
annual budget (A. 513). The retiring Mayor of the city stated, 
for example, that Knoxville is presently taxing at its limit 
under Tennessee law (A. 503-04) and has never had sufficient 
funds to carry out its program needs (A. 529). However, he

Dr. Stolee attempted to avoid long, cross-town busing in 
grouping schools in contiguous or noncontiguous clusters under 
his plan.
21/—  Knox County's annual per pupil transportation expense is 
$32.48 (A. 671) and pupil transportation costs in Knoxville 
are estimated to be a little higher (A. 678).
— ^The school board's 1971-72 budget contained no allocation 
for school desegregation (A. 56).

-21-



said that he would not recommend postponing constitutional 
compliance until the city's revenue problems were worked out 
because, in his opinion, that day would never come (A. 530).

Although anticipated revenues of the school system for 
1971-72 were expected to drop by $200,000 (A. 1169), the 
Assistant Superintendent for Business Affairs testified that 
a surplus of $250,000 was projected for fiscal 1973. Both 
the school board (A. 1187) and the city (A. 749) can reallocate 
funds within their budgets. And while the City Charter limits 
the regular tax rate to $2.85, it may be raised in order to 
cover an operating deficit incurred during the previous fiscal 
year (A. 750). Although the Charter also prohibits the 
intentional creation of a deficit as a means of circumventing 
the tax rate limitation, when a retroactive teachers' salary 
rise was negotiated by the Board of Education, the City Council 
and Mayor gave the board express advance promise that additional 
funds would be appropriated by the council in the following 
fiscal year to cover the operating deficit which resulted (A. 1180) 
As a result of the repayment of short-term notes sold to finance 
the retroactive payments, the City may enjoy a surplus of 
$1,500,000 in fiscal 1973 (A. 752).

Theotis Robinson, one of the original plaintiffs in this

-22-



23/
lawsuit, and now a Knoxville City Councilman, testified 
that it was his belief that if additional funds were required 
to carry out a desegregation order, City Council could furnish 
the money to the school board (A. 748).

The District Court's Ruling
In a lengthy opinion, the district court endorsed virtually

everything about the Knoxville school system, and concluded that
Knoxville is in compliance with Swann.
Accordingly, Knoxville is operating a 
unitary school system consistent with 
constitutional requirements. [A. 1671)

The opinion is reported at 340F.Supp. 711 (A. 1653-71).

The opinion contains a lengthy discussion of the geography 
and topography of Knoxville designed to support the district 
court's conclusion that the city "is substantially more complex 
than that found in Davis v. School Comm1rs of Mobile County,
402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971) . . . ." (A.
1656). It then documents the intense residential segregation 
in the city (A. 1656-58) and summarizes changes in pupil 
enrollments since this lawsuit was commenced (A. 1658-59), 
classifying schools as "integrated" so long as they are not 
"all one race," whether or not there is any substantial 
2 3/Neither Robinson nor his wife, also one of the original 
plaintiffs in this action, ever got to attend an integrated 
school in Knoxville (A. 744-45).

-23-



integration. The court then turns to the board's "neighborhood 
school" zones and terms them "reasonable" (A. 1659-61).' Sum­
marizing the board’s 1972 proposals (A. 1661-62), it approves 
the board's reasons for failing to adopt the additional 
recommendations of Dr. Trotter (A. 1662-63).

The district court completely dismisses Dr. Stolee's 
plan and testimony because of various supposed defects: Dr.
Stolee did not use the pupil locator map in drawing his plan 
(A. 1663); Dr. Stolee "grossly understated" the actual amount
of busing under his plan (A. 1666); Dr. Stolee has a "manifest 
interest" in school desegregation cases (ibid.) ; his plan 
would not permit bused students to participate in extra­
curricular activities, did not consider capacity, would require 
modification of city-county agreements and might result in a 
loss of certain State funds (A. 1666). We deal with the 
district court's findings in the Argument, infra.

The court holds faculties, including principalships, 
adequately desegregated (A. 1667), rules there is no credible 
evidence that the transfer policies have promoted segregation 
(ibid.), and sanctions Knoxville's school construction policies 
because the board lacks the money to operate a transportation 
system (A. 1668) .

A busing plan is impossible because of lack of funds

-24-



(A. 1669), finds the Court. Turning to conclusions of law,
the court characterizes plaintiffs' requests for relief as 
demands for racial balance, which it finds barred by Swann 
(A. 1670). "We do not interpret Swann as invalidating the 
neighborhood pupil assignment system." (ibid.). Because 
"Knoxville school children are assigned to schools on the 
basis of their residence and without regard for their race," 
the district court finds no constitutional violation (A. 1671)

April 6, 1972, the court entered its Order denying the
relief sought by plaintiffs and declaring Knoxville to be a 
unitary school system (A. 1672); May 1, 1972 an Order was 
entered denying plaintiffs' request for an award of counsel 
fees (A. 1673) and May 22, 1972, the court denied a motion 
for new trial and/or to alter or amend the May 1 judgment.
(A. 1674). These appeals followed.

-2 5-



ARGUMENT

I
THE DISTRICT COURT’S FINDING THAT KNOXVILLE HAS A 
UNITARY SCHOOL SYSTEM IS CONTRARY TO SWANN, OTHER 
CONTROLLING DECISIONS OF THE SUPREME COURT, THIS 
COURT'S 1971 REMAND IN THIS CASE AND OTHER DECISIONS 
OF THIS COURT; IT IS BASED UPON FAULTY FACTUAL PREM­
ISES AND THE APPLICATION OF ERRONEOUS LEGAL STANDARDS

The Supreme Court's most recent school desegregation
opinions, Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) and United States v. Scotland Neck City Bd. of
Educ., 407 U.S. 484 (1972), concerned a different issue than
that before the Court in this case, but they are worthy of
note because the Court again summarized the standard by which
school board actions in desegregation cases are to be reviewed

. . . The mandate of Brown II was to 
desegregate schools, and we have said 
that "[t]he measure of any desegregation 
plan is its effectiveness." Davis v.
School Commissioners of Mobile County,
402 U.S. 33, 37. Thus, we have focused 
upon the effect— not the purpose or 
motivation— of a school board's action 
in determining whether it is a permissible 
method of dismantling a dual system.

Wright, supra, 407 U.S. at 462.

The import of Davis and Swann had not been overlooked 
by this Court. Whereas in considering this case in 1969, this 
Court rejected the test of effectiveness, citing Deal v. 
Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert.

-26-



24/
denied, 389 U.S. 847 (1967), last year this Court recognized
that Swann and Davis undercut such an analysis:

Swann, 1971, forbids the use of our 
decisions in Deal v. Cincinnati Bd. of 
Educ., 369 F.2d 55 (6th Cir. 1966), cert, 
denied 389 U.S. 847, 88 S.Ct. 39, 19 L.
Ed.2d 114 and Deal v. Cincinnati Bd. of 
Ed., 419 F.2d 1387, cert, denied because 
of late filing, 402 U.S. 962, 91 S.Ct.
1630, 28 L.Ed.2d 128, to justify a plan of 
desegregation in a state which employed de 
jure segregation until the Brown decision.

Goss v. Board of Educ., 444 F.2d 632, 639 (6th Cir. 1971).
The district court apparently understood this language only
in its most literal sense, for while the court was exceedingly
careful never to cite Deal in its opinion, 340 F. Supp. 711
(A. 1653), its approach and method of analyzing this case
remains wedded to Deal. As it has done for years whenever
there are proceedings in this case before it, the district court
ritualistically intones the words "Knoxville is a unitary system"
without regard to any realistic appraisal of either how the
law has changed, or how the school system has really not changed
very much at all since Brown.

The district court's errors are so abundant that it is 
difficult to know where to begin. Perhaps the most striking

^/in 1969 this Court said:
. . . the fact that there are in Knoxville
some schools which are attended exclusively 
or predominantly by Negroes does not by 
itself establish that the defendant Board of 
Education is violating the constitutional rights 
of the school children of Knoxville. Deal . . . .

406 F.2d 1183, 1186 (6th Cir. 1969).
-27-



omission from the district court's opinion is its failure to
confront the fact that more than three-fifths of Knoxville's
students attend virtually all-one-race schools, i.e., schools

25/
which are 90% or more black or white. The closest the
district court comes to measuring the effectiveness of the 
Knoxville desegregation plans is its finding (A. 1659) that 
in 1970-71 and 1971-72 all of Knoxville's black students were 
attending "integrated" schools (see X 9, A. 1520). That this 
can hardly be considered a valid measure of desegregation is 
revealed by the inclusion of Green Elementary (411 black, 1 
white) as an "integrated" school (X 83, A. 1644).

In Northcross v. Board of Educ., No. 72-1630 (6th Cir.,
August 29, 1972)(slip op. at p. 4), this Court affirmed a
district court holding that Memphis' "neighborhood school" zone
plan had not resulted in a unitary system:

It is the defendant School Board's contention 
that notwithstanding the fact that some 79% 
of its schools have an essentially monolithic 
racial structure it has satisfactorily cured 
the violation of law involved in its past de 
jure segregation and has, in fact, established 
a unitary system. We cannot accept this 
contention.

Likewise, in Knoxville, 79% of the school facilities have this

li^In view of the fact that Knoxville's overall student popu­
lation is only 16.5% black, perhaps the 90% figure is inappropriate 
In 1971-72, 58% of all Knoxville students attended schools 
enrolling 95% or more of one race; 48% attended schools 97% or 
more uniracial (X 83, A. 1644).

-28-



essentially monolithic racial structure —  but the district
court held the system was unitary.

The district court was obviously aware of the weakness
of its analysis; if the amount of integration in the public
schools of Knoxville was sufficient, that would be the end of
the matter since "[t]he constitutional command to desegregate
schools does not mean that every school in every community must
always reflect the racial composition of the school system as
a whole," Swann, 402 U.S. at 24. But the district court went on
(A. 1659-61) to hold that the minimal desegregation in Knoxville
was justifiable on the basis of "the previously approved
neighborhood pupil assignment system" (A. 1661) because the
"zone lines for [the neighborhood] schools are reasonably drawn
and the racial composition of each school corresponds to the

27/
composition of its zone" (A. 1660). In so doing, the district
court again ignored this Court's interpretation of Swann when
this matter was last decided:

. . . While the existence of some all black 
or all white schools is not struck down as 
per se intolerable, school authorities will 
have to justify their continuance by something 
more than the accident or circumstance of 
neighborhood.

Goss v. Board of Educ., supra, 444 F.2d at 638.

Equally significant, the district court's finding
27/ .—  This is precisely the standard enunciated in Pea 1 which 
may be applicable to school systems as to which no past history 
of discrimination is shown.

-29-



that "the racial composition of the schools corresponds to 
the residential patterns within each school zone" (A. 1661) 
is one of many which are clearly erroneous on this record; to 
the extent that the judgment below is dependent upon such 
findings (it is difficult to tell), it is unsupportable.

The district court's general finding, quoted above, is 
inconsistent with its own summary of the Austin-East situation

The pupil locator map discloses that 291 
more white children attending City schools 
live in the Austin-East Senior High School 
zone than attend schools within the zone.
. . . Vocational transfers, however, do not
account for all the shortage. There are 
indications that the balance can be found at 
Holston High. No evidence was introduced 
to show whether school registration procedures 
include a determination that the registrant 
resides within the appropriate attendance 
zone. It is possible that transfer procedures 
can be circumvented. The evidence is clearly 
insufficient to explain the situation.

(A. 1661). In its subsequent discussion 
of transfer policies, the district court 
itself, stating: [t]here is no credible 
Board's transfer policy is being used to

of the administration 
again contradicted 
evidence that the 
promote segregation."

(A. 1667) .

Precisely the opposite was demonstrated at trial. The 
most compelling evidence of abuse is the board's own X 82 
(A. 1567-1643) dealing with Austin-East zone transfers by
white students. The district court found nothing untoward:

-30-



The Board introduced copies for the transfer 
requests from Austin-East for the past three 
school years. Dr. Stolee testified that 
these requests demonstrated that the transfer 
system had been used to promote segregation.
These requests do not indicate the applicant's 
race, and the bulk of them are checked 
"disapproved." It is not understood how Dr.
Stolee could reach his conclusion from this 
exhibit.

(A. 1667-68). Here is what the exhibit shows: The forms
are all from white students (see master listing at A. 1567-70) 
There are transfer requests from 51 students —  some having 
repeatedly sought transfers —  in the Austin-East zone. Not 
all of the students listed as having transferred at A. 1567-70 
are represented in the transfer requests? their forms may have 
been lost.

Of the 51 students, 20 of their latest requests were 
approved and 29 were denied; the other two students had sub­
mitted forms unnecessarily after changing their addresses 
and moving into another zone. Only six of the twenty-nine 
white students whose requests to transfer out of Austin-East 
were denied remained at the school: LaVerne Cox, Mary Green,
Miriam Kenimer, Larry Patty, Alan Rogers, Eursal Payne. 8 
whites whose transfer forms are marked "disapproved" are shown 
on the master listing as having obtained transfers and 
subsequently been graduated from Fulton, Holston or Rule.
Among these, incredibly enough, is one Brenda Keeling (A. 1597 
98); in the winter of 1967 Miss Keeling's request to transfer

-31-



from East to Rule
Because of the colored. They are a 
colored boy that is causing trouble 
in a way which I don't improve of; 
causing talk [A. 1598]

was denied. In the spring of 1968 another 
request to transfer, this time from East to Fulton because of 
the "racial situation" (A. 1597) was disapproved. Yet the 
school system reports (A. 1567) that Miss Keeling was a 
Holston graduate! Another example is Miss Becky Suffridge 
(A. 1634), who sought a transfer because she was "socially 
deprived." Although it was denied, she is listed (A. 1567) 
as a Fulton graduate.

Some of the approvals are equally interesting. Two were 
granted because of racial complaints (Larry and Vicki Pickens, 
A. 1617-20). Five other transfer requests were granted despite 
previous disapprovals of the same or similar transfer pleas.
For example, Eddie Parton first sought transfer in early 1968 
on the ground that it was inconvenient for him to attend East 
(A. 1612); his request was denied. In late spring, 1968, he 
again sought to change schools because of "emotional difficulty 
in adjusting to a specific school situation" (A. 1611) (a 
phrase which appears with annoying regularity on many transfer 
forms). That was denied, and in August, 1968 he filed another 
request to transfer to Fulton because he "wants to learn a

-32-



trade" (A. 1610). This request was also denied, but a school 
official wrote on the form, the words "What Trade?" Finally, 
on September 4, 1968 Parton got the message, requested transfer 
so as to take "machine shop," which was not offered at Austin, 
and was granted his transfer (A. 1609). James Dockery was 
denied a vocational transfer in the summer of 1967, appealed 
to the school board and lost (A. 1588); yet the following 
winter he was granted a vocational transfer (A. 1587).

We have gone into this matter in some detail not simply 
because transfers from Austin-East have been a bone of contention 
in this case ever since the schools were paired, but also 
because it is a good demonstration of the district court's 
facility for ignoring the evidence when convenient. For 
example, the court condemns Dr. Stolee's failure to prepare his 
plan from the pupil locator map and computer print-outs 
prepared by the board ("Dr. Stolee's failure to use this data 
substantially reduces the weight of his testimony" [A. 1663]).
Yet the district court itself found that the locator map was 
3000-4000 pupils below actual enrollment in this 34,000 pupil 
system (A. 1655) and the Court seems to forget that Dr. Trotter, 
who developed the Board's plan, also did not use the pupil 
locator map because he regarded it as inaccurate (A. 413-14). 
Given such discrepancies, it is evident that this Court will 
be unable to decide this matter on the lower court's findings.

-33-



If the district court's fact finding is suspect, its
legal conclusions are also flawed and in conflict with governing 
law. The school board did not even consider a transportation 
plan, or noncontiguous zoning or pairing, because it would 
cost money to establish a bus system and because they felt 
the community was opposed to it (A. 610, 618). Not only Swann 
and Davis, but this Court's opinion in this case last year 
require "[cjonsideration of pairing of school zones, contiguous 
or non-contiguous," 444 F.2d at 638. Yet the district court 
did not require such, because it held, (a) on the basis of a 
convoluted geography lesson, that Knoxville is distinguishable 
from Mobile (A. 1656), and (b) a plan utilizing pupil transpor­
tation would place an extreme fiscal burden on the school system. 
As to the former conclusion, this is clearly insufficient 
justification for continued segregation. Under the dual school 
system, black students from all over the city travelled to 
Austin, for example, apparently without undue hardship.

Barriers which did not prevent enforced 
segregation in the past will not be held 
to prevent conversion to a full unitary 
system.

Henry v. Clarksdale Municipal Separate School Dist., 433 F.2d 
387, 394 (5th Cir. 1970). As to the financial plight of the 
school board and city, not only is the evidence conflicting 
(see pp. 21-23 supra) but the projected cost of busing, even 
accepting the district court's statement that "Dr. Stolee

-34-



grossly understated the actual amount of bussing [sic]
and the distances involved in his plan" (A. 1666) and using 
Dr. Bedelle's highest estimate (A. 1669), is well within allowable 
levels of expenditure as a percentage of the total school 
budget approved in Swann. See Brewer v. School Bd. of Norfolk,
456 F.2d 943, 947 n.6 (4th Cir.), cert, denied, 406 U.S. 905 
(1972); United States v. Greenwood Municipal Separate School 
Dist., 460 F.2d 1205 (5th Cir. 1972); Brown v. Board of Educ. 
of Bessemer, 464 F.2d 382 (5th Cir. 1972). Any attempt to 
distinguish Swann because Knoxville does not at present furnish 
transportation except pursuant to the annexation agreement 
(A. 1669) must also fail? the Charlotte school system was 
required by the district court's desegregation order to enlarge 
it3 transportation system by adding far more new vehicles and 
personnel than will be required in Knoxville.

The district court's dissatisfaction with the Stolee plan 
as a "workable alternative to the Board's plan" (A. 1666) is 
certainly no ground for approving a scheme which uses no 
technique except minor zone alterations and two contiguous 
pairings. At the least, the court should have instructed the 
school board to submit another plan. Knoxville has no immunity 
from being required to use "any of the tools of modern life 
in carrying out [the] constitutional mandate." Kelley v. 
Metropolitan County Bd. of Educ., 463 F.2d 732, 746-47 (6th

-35-



28/Cir. 1972).

The district court also accepted Dr. Bedelle's contention 
that effective desegregation, through busing, in Knoxville 
would curtail student participation in extracurricular activ­
ities (A. 1666). Swann recognizes that the process of desegre­
gation will resul t in some awkwardness and inconvenience, 402 
U.S. at 28; the Supreme Court clearly limits those circumstances 
which will excuse failure to desegregate to plans under which 
"the time or distance of travel is so great as to either risk 
the health of the children or significantly impinge upon the 
educational process." 402 U.S. at 30-31. Defendants did not 
attack specific pairings or groupings on this basis, however, 
but opposed any and all pupil transportation (except that 
required by the annexation agreement). Furthermore, it is well 
within defendants' power to avoid some of these practical 
problems as, for example, by scheduling extra “late" bus runs 
for students participating in extracurricular activities, as 
many school systems have done. Cf. Bradley v. School Bd. of 
Richmond, 325 F. Supp. 828, 847 (E.D. Va. 1971).
28/The decision of the district court below cannot be upheld 
on the basis of this Court's recent decision in Mapp v. Board 
of Educ. of Chattanooga, Nos. 71-2006, -2007, 72-1443, -1444 
(6th Cir., October 11, 1972). While the panel majority in that 
case did not indicate that substantial desegregation must be 
achieved on remand through the use of busing, if necessary, it 
did recognize, unlike the court below, that more had to be done. 
"In our judgment the mere fact that the District Court at one 
time considered the Board of Education in compliance, did not 
preclude the Court from holding otherwise when considering the 
case in light of more recent decisions" (slip op. at p. 11).

-36-



II

The District Court Erred In 
Approving The School Board's 
Proposal To Close A Black 
Elementary School Without A 
Showing That Discontinuation 
Was Required For Non-Racial Reasons

The district court approved, and permitted implementation 
of, modifications to the school board's desegregation plan 
including the discontinuation of the Cansler Elementary school, 
a formerly black school, for regular instructional purposes.
The court did so without any showing by the board that there 
were justifiable, non-racial reasons for this step. Indeed, 
the evidence in the record suggests the opposite. Cansler 
is a relatively new facility (A. 203), but the author of the 
board's plan, Dr. Trotter, made no comparison of its age or 
adequacy with adjacent, but predominantly white schools (such 
as West View or Beaumont, to which Cansler pupils are sent) 
when he decided to recommend its closing (A. 478). It is also 
significant that in questioning Dr. Stolee about his plan, 
which would retain Cansler (and also a white school, Moses, 
which Trotter also proposed to shut down), the school board 
attorney sought justification for retaining Moses only (A. 1421)

Twice as many black schools as white schools have already 
been closed since this litigation commenced (X 8, A. 1518), 
and in light of the board's reliance upon community opinion

-37-



as a justification for the kind of desegregation measures 
it takes (A. 618), it is evident that Cansler was closed rather 
than having had white student assigned to attend it.

Numerous courts have held desegregation plans unconstitu­
tional when they unfairly discriminate against black students 
either by forcing them to bear a disproportionate share of the 
required transportation or by closing a disproportionate number 
of formerly black schools. E.g., Brice v. Landis, 314 F. Supp. 
974, 978 (N.D. Cal. 1969); Swann v. Chariotte-Mecklenburq Bd. 
of Educ., 328 F. Supp. 1346 (W.D.N.C. 1971); Lee v. Macon County 
Bd. of Educ., 448 F.2d 746 (5th Cir. 1971); Haney v. County Bd. 
of Educ., 429 F.2d 364, 371-72 (8th Cir. 1970); Bell v. West 
Point Municipal Separate School Dist., 446 F.2d 1362 (5th Cir. 
1971); Adams v. School Dist. No. 5, Orangeburg, 444 F.2d 99 
(4th Cir. 1971), aff1q Green v. School Bd. of Roanoke, 316 F. 
Supp. 6 (W.D. Va. 1970); Smith v. St. Tammany Parish School Bd.,
302 F. Supp. 106, 108 (E.D. La. 1969).

The cases which have approved black school closings have 
done so on the ground that the deteriorated physical condition 
of the buildings required their closing, and thus that black 
students bore no special burdens of desegregation thereby. E.g., 
Carr v. Montgomery County Bd. of Educ., 429 F.2d 382 (5th Cir. 
1970); Chambers v. Iredell County Bd. of Educ., 423 F.2d 613

-38-



(4th Cir. 1970). But evidence must be adduced and district 
courts must make specific findings of fact and conclusions of 
law justifying such closings, e.g., Gordon v. Jefferson Parish 
School Bd., 446 F.2d 266 (5th Cir. 1971).

Because the school board made no showing, and the district 
court made no findings on the subject, we submit that the court 
erred in permitting the closing of Cansler for regular instruc­
tional programs. Additionally, we urge the Court to require 
a compelling justification to be shown before the lower court 
is authorized to permit such a step. See Kelley v. Metropolitan 
County Bd. of Educ., supra, 453 F.2d at 751 (McCree, J., concurring) 
Robinson v. Shelby County Bd. of Educ., No. 71-1966 (6th Cir., 
September 21, 1972) (McCree, J., dissenting).

-39-



Ill
The District Court Should Have Awarded 
Attorneys' Fees And Litigation Expenses 

To The Plaintiffs

A. An Award Is Required Under Traditional Equitable Principles 
The district court summarily denied plaintiffs' motion 

for an award of attorneys' fees and taxation of costs and 
expenses, even though it is absolutely clear that any desegre­
gation which has occurred in Knoxville has resulted from plaintiffs' 
vigorous prosecution of this suit (see Appendix A, n. 2).

«Plaintiffs in this action are but nominal petitioners on 
behalf of all students. They could not be and should not be

29/
expected to finance these proceedings from their own resources.
The investigation, research and presentation of expert and fact 
witnesses require the expenditure of tremendous amounts of time

29/The Court should not be misled, by the fact that plaintiffs' 
attorneys are assisted in this case by salaried attorneys of a 
non-profit organization (the NAACP Legal Defense and Educational 
Fund, Inc.) into believing either that unlimited funds are avail­
able to support this lawsuit or that a counsel fee award is 
inappropriate in these circumstances. As to the former, it 
suffices to say that the Legal Defense Fund is a non-profit 
corporation supported mainly by public contributions. It is 
involved in a wide variety of litigation, including more than 
one hundred fifty school desegregation cases, at enormous cost. 
Last year, the Legal Defense Fund operated at a $250,000 deficit. 
Most important, the fact that local counsel are assisted (almost 
entirely only at the appellate level) by Legal Defense Fund attor­
neys furnishes no basis for declining to award counsel fees. Such 
an argument has been expressly rejected. See Clark v. American 
Marine Corp., 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd 437 
F.2d 959 (5th Cir. 1971).

-40



by capable counsel, aside from the actual trial hearings. To 
undertake to pay the reasonable value of the services rendered 
to date by experienced and diligent counsel is only within the 
financial ability of the rich.

These proceedings are equitable in nature and were made 
necessary by the board to compel it to perform the duties 
especially imposed upon it by law. Without the undertaking of 
this cause by counsel and without the allowance by this Court 
of reasonable compensation to them, plaintiffs and others of the 
class for whose benefit the proceeding was filed would be at 
the mercy of the defendant school board.

The board had at its command able and experienced lawyers 
compensated from public funds. Additionally, it used and made 
available to its counsel the abilities, education and skill of 
its staff— among the very persons enjoined by law to render 
and perform the duties imposed by law sought to be enforced by 
plaintiffs.

In these circumstances, the Court in Crawford v. Board of 
Education of Los Angeles, No. 822-854 (Super. Ct. Cal., Jan. 11, 
1970), awarded a substantial attorneys' fee as well as "[p]eti- 
tioners' and counsels' costs and disbursements herein." (Slip 
op. at p. 64). See also, Nesbit v. Statesville City Board of 
Educ., 418 F.2d 1040, 1043 (4th Cir. 1969) (en banc) (per curiam).

The right of counsel to reasonable compensation should not 
be restricted or inhibited by a doctrine which limits the compen­
sation to causes which result in monetary recovery and excludes 
cases of public importance which are not pecuniary. The pro­

- 4 1 -



tection and preservation of the inalienable constitutional 
rights of any class of citizens, the enforcement of the duties 
of government owed to its citizens by law, is at least as 
valuable (if not more so) than the recovery by litigation of 
money. Rights, particularly the inalienable constitutional 
rights, are a species of property. In a nation of laws, the 
reaffirmance, enforcement and preservation of the most sacred 
and invaluable rights— the rights to life, liberty and the 
pursuit of happiness, to be a human being, to receive the same 
equal protection of our laws— is one of the highest callings of 
counsel. When such tasks are undertaken on behalf of those 
otherwise unable to do so— the disadvantaged— justice requires 
that counsel receive reasonable compensation.

To the extent that a large proportion of the students 
of Knoxville are afforded substantial benefits through this 
action by causing the school board to perform the duties 
specially imposed upon it by law, it raises the standard of the
fiduciary relationship of the board to all of its students30/
and so serves important considerations of public policy.

While cases from the ordinary commercial practice are 
helpful in the analysis of the standards, scope and coverage of

Cf. Mills v. Electric Auto-Lite Company, 396 U.S. 375, 396 
(1970):

[R]egardless of the relief granted, private 
stockholders' actions of this sort "involve 
corporate therapeutics," and furnish a bene­
fit to all shareholders by providing an 
important means of enforcement of the proxy 
statute.

-42-



awards of attorneys' fees as well as costs and disbursements 
of the prevailing party, the courts have further amplified the 
basis for the right of plaintiffs in civil rights actions to be 
awarded their costs and reasonable attorneys' fees. Plaintiffs 
respectfully submit that civil rights cases under Sections 1983 
and 1982, 42 U.S.C. fe.g., Jones v. Mayer, 392 U.S. 409 (1968)] 
and the various other Civil Rights Acts provide the kind of 
"extraordinary circumstances" which would allow an equity court 
to allocate full costs and amplify the award of attorneys' fees.

In Cleveland v. Second National Bank & Trust Co.. 149 F.2d
466 (6th Cir.), cert, denied. 326 U.S. 777 (1945), this Court said:

There is no room for doubt that an equity court, 
may, under extraordinary circumstances impose 
upon the defeated plaintiff in an equity case, 
the entire cost of defense, notwithstanding 
statutory limitations upon costs to be taxed at 
law.

Id. at 469. (emphasis supplied). The Court followed the
decision of the Supreme Court in Sprague v. Ticonic National
Bank, 307 U.S. 161 (1939), where the Court held that in equity
cases the lower courts could allow counsel fees and other
expenses entailed by litigation not included in the ordinary
taxable costs recognized by statute. Speaking for the Court,
Mr. Justice Frankfurter said:

Allowance of such costs in appropriate situations 
is a part of the historic equity jurisdiction of the federal courts. The "suits in equity" of 
which these courts were given "cognizance" ever 
since the First Judiciary Act, 1 Stat. 73, con­
stituted that body of remedies, procedures and 
practices which theretofore had been evolved in 
the English Court of Chancery, subject, of course, 
to modifications by Congress, e.g., Michaelson 
v. United States, 266 U.S. 42, 45 S. Ct., 69 L.
Ed. 162, 35 A.L.R. 451. The sources bearing on

-4 3-



eighteenth-century English Practice— reports 
and manuals— uniformly support the power not 
only to give fixed allowance for the various 
steps in a suit, what are known as costs "be­
tween party and party," but also as much of 
the entire expenses of the litigation of one 
of the parties as fair justice to the other 
party will permit, technically known as costs 
"as between solicitor and client" ...
Plainly the foundation for the historic prac­
tice of granting reimbursement for the cost of 
litigation other than the conventional taxable costs is part of the original authority of the 
Chancellor to do equity in a particular situa­tion.

31/
Id. at 164-65, 166. (emphasis supplied).

The Supreme Court in Newman v. Piggie Park Enterprises,
390 U.S. 400 (1968), enunciated the equity principle which 
should govern civil rights litigation. Although that case arose 
out of a violation of Title II of the Civil Rights Act of 1964, 
it expresses the purpose and justification for such awards 
since Title II, like 42 U.S.C. §1983 and §1982, is legislation 
implementing the Thirteenth and Fourteenth Amendments, designed 
to effectuate the same commitment to black Americans.

The Court advanced the concept that a plaintiff in a class 
action of this type obtains an injunction not for himself alone 
but as a "private attorney general." That statement of purpose 
has since been adopted by many other courts in other areas of 
civil rights litigation. In Parham v. Southwestern Bell Tel,

3T7---------------__/ There is support for treating such awards in non-civil rights 
cases as a form of damages, compensatory or exemplary. Vaughan 
v. Atkinson, 369 U.S. 527, 530-31 (1962); Siegel v. William E.
Bookhultz & Sons, Inc., 419 F.2d 720 (D.C. Cir. 1969) (Robinson, 
J.), especially pp. 723-24 and n. 22-25.

-44-



Co., 433 F.2d 421 (8th Cir. 1970), the court held that a class
action plaintiff in an employment discrimination case was
entitled to reasonable attorneys' fees in the district court
and on appeal even though no injunction was issued and he
received no personal relief or award of back pay.

We believe Parham's lawsuit acted as a catalyst which prompted the appellee to 
take action implementing its own fair 
employment policies and seeking compliance 
with the requirements of Title VII. In 
this sense, Parham performed a valuable 
public service.

Id. at 429-30. See also, Clark v. American Marine Corp., 304 
F. Supp. 603, 611 (E.D. La. 1969); Dobbins v. Local 212, IBEW,
292 F. Supp. 413 (S.D. Ohio 1968); Lea v. Cone Mills Corp., 438 
F.2d 86 (4th Cir. 1971); Hammond v. Housing Auth. & Urban Renewal 
Agency, 328 F. Supp. 586 (D. Ore. 1971).

While 42 U.S.C. §1983 does not expressly authorize the 
granting of attorneys' fees to successful plaintiffs, analysis 
of a related provision— 42 U.S.C. §1982— readily demonstrates 
that the allowance of attorneys' fees to successful plaintiffs
invoking the provisions of the Civil Rights Acts is a proper means

3 2 /of "fashioning an effective equitable remedy for their enforce­
ment.

The penal provisions which originally accompanied 42 U.S.C. 
§1982 have been separated or eliminated so that today it is

—  Jones v. Mayer, 392 U.S. 409, 414 n.13 (1968); see also,
Louisiana v. United States, 380 U.S. 145 (1965); Green v. County
School Board of Hew Kent County, 391 U.S. 430 (1968).

-45-



"enforceable only by private parties acting on their own initia­
tive." Jones v. Mayer, supra, 392 U.S. at 417. However, as the 
Supreme Court noted in Jones, "ft]he fact that 42 U.S.C. Section 
1982 is couched in declaratory terms and provides no explicit 
method of enforcement does not, of course, prevent a federal 
court from fashioning an effective equitable remedy. " Id_. at 
414, n. 13.

In a recent Fifth Circuit case, the court said:
In the area of civil rights, many cases have 
either allowed or implicitly recognized the 
discretionary power of a district judge to 
award attorneys1 fees in a proper case in 
the absence of express statutory provision,
[citations omitted] and especially so when 
one considers that much of the elimination of 
unlawful racial discrimination necessarily 
devolves upon private litigants and their 
attorneys, cf. Newman v. Piggie Park Enter­
prises , Inc., 390 U.S. 400, 402 (1968), and the general problems of representation in 
civil rights cases. See Sanders v. Russell,
5th Cir. 1968, 401 F.2d 241.

Lee v. Southern Home Sites Corp., 429 F.2d 290, 295 (5th Cir.-JT7
1970).

— 7 District courts granting injunctive relief in suits under §1982 have awarded attorneys' fees. In Terry v. Elmwood Cemetery, 
307 F. Supp. 369 (N.D. Ala. 1969), suit was brought to compel a cemetery to sell a burial plot to a black mother for the grave 
of her son who was killed in action in Viet Nam. The cemetery 
refused to sell the plot solely because of the race of the 
deceased. Chief Judge Lynne carefully analyzed the Jones deci­
sion and the lower court cases which followed it and held that 
the refusal to sell was a violation of §1982. In the final 
judgment, attorneys' fees in the amount of $2500 were awarded. 
Terry v. Elmwood Cemetery, Civ. No. 69-490 (N.D. Ala., Jan. 29, 
1970). Accord, Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407,
1 Race Rel. L. Survey 185 (S.D. Ohio, 1968, 1969); Pina v.
Homsi, 1 Race Rel. L. Survey 18 (D. Mass. 1969).

- 46-



These cases under §1982 follow the well established principle
that federal courts have equitable power to award counsel fees 
in appropriate cases even in the absence of statutory authoriza­
tion. See Mills v. Electric Auto Lite Co.. supra; Sprague v. 
Ticonic National Bank, supra; Vaughan v. Atkinson, supra; Newman 
v. Piggie Park Enterprises, Inc., supra. And as the Supreme 
Court has said, "ft]he existence of a statutory right implies 
the existence of all necessary and appropriate remedies."
Sullivan v. Little Hunting Park, Inc., 396 U.S. 299, 239 (1969).

The reasoning of the courts applies with full force and 
effect to the companion statute, §1983, under which this suit 
was brought. Like the non-civil rights cases cited 
above, courts have held that under §1983, nominal or exemplary 
damages may be awarded. Tracy v. Robbins, 40 F.R.D. 108 (D.S.C. 
1966). Actual damages, too, can be awarded. Wall v. Stanly 
County Board of Educ., 378 F.2d 275 (4th Cir. 1967). Some of 
the reported cases awarding counsel fees, in addition to Crawford. 
supra, are Hill v. Franklin County Board of Educ., 390 F.2d 583 
(6th Cir. 1968); Rolfe v. County Board of Education of Lincoln 
County. 282 F. Supp. 194 (E.D. Tenn. 1966), af f'd 391 F.2d 77 
(6th Cir. 1968); and Monroe v. Board of Comm'rs of Jackson, 244 
F. Supp. 353, 366 (W.D. Tenn. 1965).

In Miller v. Amusement Enterprises, Inc., 426 F.2d 534 
(5th Cir. 1970), the Court reversed a district court which had 
denied attorneys' fees to a successful plaintiff in a Title II 
suit. To be sure, Miller involved a statute containing an express 
provision for attorneys' fees. See 42 U.S.C. §2000a-3(b) (fees

-47-



may be granted in the "discretion” of the district court).
But the Fifth Circuit's reasoning applies equally to Section 1983:

Congress did not intend that vindication of 
statutorily guaranteed rights would depend on 
the rare likelihood of economic resources in 
the private party (or class members) or the 
availability of legal assistance from charity—  
individual, collective or organized. An enact­
ment aimed at legislatively enhancing human 
rights and the dignity of man through equality 
of treatment would hardly be served by compel­
ling victims to seek out charitable help.

34/Miller, supra, 426 F.2d at 539.
Plaintiffs brought this action not only for themselves 

but as a class action on behalf of all Negroes similarly situated, 
to obtain a broad injunction against racial discrimination in 
the defendant school system. Thus, plaintiffs acted as a "pri­
vate attorney general" in vindicating the rights of the class 
and in furthering the public policy of the nation of eliminating 
racial discrimination in schools. Cf. Newman v. Piggie Park 
Enterprises, supra; Jones v. Mayer, supra. "The Rule 23 class

I V  James Wilson, who introduced the bill containing what is 
now §1982 into the House of Representatives, expressed in great 
detail the legislative intention as he responded to a motion 
to recommit and to "strike out all parts of the bill which are 
penal and authorize criminal proceedings and in lieu thereof to 
give injured citizens a civil action in the United States Courts 
..." Cong. Globe, 39th Cong., 1st Sess., quoted in Jones v. Mayer, 
supra, 392 U.S. at 431-32. Between the two, Mr. Wilson said, 
"ft]here is no difference in the principle involved ... There 
is a difference in regard to the expense of protection. There 
is also a difference as to the effectiveness of the two modes 
... This bill proposes that the humblest citizen shall have full and ample protection at the cost of the Government, whose duty 
it is to protect him. The Amendment of the gentleman recognizes 
the principle involved, but it says that the citizen despoiled 
of his rights ... must press his own way through the courts and 
pay the costs attendant thereon. This may do for the rich, but 
to the poor, who need protection, it is mockery ..." Cong. Globe, supra, at 1295.

- 48-



action 'as a way of redressing group wrongs is a semi-public 
remedy administered by the lawyer in private practice'— a cross 
between administrative action and private litigation." Dolgow 
v. Anderson, 43 F.R.D. 472, 481 (E.D. N.Y. 1968).

If this class action had not been brought, the rights of 
the individual black pupils may not have been vindicated, because 
their claims might be too small to justify individual litigation 
or too small in terms of the cost of seeking relief. Cf. Eisen 
v. Carlisle & Jacquelin, 391 F.2d 555, 560 (2d Cir. 1968);
Dolgow v. Anderson, supra. And since individual suits might not 
have been brought, without great individual expense, the Four­
teenth Amendment, outlawing defendants' conduct, would have gone 
unenforced. Ibid. Thus, plaintiffs' class action performs an
important public function in making meaningful the statutory

11/prohibition of racial discrimination. Cf. Hammond v. Housing 
Auth. & Urban Renewal Agency, supra.

Awarding counsel fees to encourage "public" litigation by private parties is an accepted device. For example, in Oregon, 
union members who succeed in suing union officers guilty of 
wrongdoing are entitled to counsel fees both at the trial level 
and on appeal, because they are protecting an interest of the general public:

If those who wish to preserve the internal democracy 
of the union are required to pay out of their own 
pockets the cost of employing counsel, they are not apt to take legal action to correct the abuse ....
The allowance of attorneys' fees both in the trial 
court and on appeal will tend to encourage union 
members to bring into court their complaints of 
union mismanagement and thus the public interest as 
well as the interest of the union will be served.

Gilbert v. Hoisting & Portable Engineers, 237 Ore. 139, 390 
P.2d 320 (1964). See also, Rolax v. Atlantic Coast Line R.R.. 
186 F.2d 473 (4th Cir. 1951).

-49-



Plaintiffs respectfully submit that the history of equity 
courts calls for an equalization of the parties in all respects. 
The crushing burden of the costs of these cases on private 
Parties is exemplified by the resources available to the defen­
dants— the sovereign of all citizens to whom these private 
parties pay taxes and from whom they should receive in full 
measure "at once" the constitutional rights. Counsel were 
retained by the school board (see Crawford, supra) to mount a 
vigorous defense of the action. Of great importance is the full 
staff of the board, from its research department, draftsmen, 
attendance officers and supporting staff to its educational 
experts constantly available and utilized in the litigation to 
defend the action and oppose and delay the granting of plaintiffs 
rights. As of the date of this brief, the school board is still 
asking the court to permit the continued, indefinite segregation 
of approximately 2,500 black children in schools which the 
defendants built for the purpose of maintaining that very viola­
tion of constitutional rights. All of these forces are arrayed 
against plaintiffs by the very persons "enjoined by law to render 
and perform the duties imposed by law sought to be enforced by 
plaintiffs." Crawford v. Board of Education of Los Angeles. 
supra.

The most recent, and exhaustive, survey of the law regarding 
the award of counsel fees in school desegregation cases is 
Bradley v. School Board of Richmond, 53 F.R.D. 28 (E.D. Va. 1971)

-50-



We believe that an award of substantial attorneys' fees 
in favor of plaintiffs is justified on either of the two alter­
native grounds set out in Bradley: the wilful actions of the
school district which have delayed desegregation in Knoxville 
or the "private attorney general" concept enunciated in Newman 
and Parham:

The private lawyer in such a case most accurately may be described as a "private 
attorney general." Whatever the conduct of 
defendants may have been, it is intolerably 
anomalous that counsel entrusted with 
guarantying the effectuation of a public 
policy of nondiscrimination as to a large 
proportion of citizens should be compelled 
to look to himself or to private individuals 
for the resources needed to make his proof.
The fulfillment of constitutional guaranties, 
when to do so profoundly alters a key social 
institution and causes reverberations of 
untraceable extent throughout the community, is not a private matter. Indeed it may be 
argued that it is a task which might better 
be undertaken in some framework other than 
the adversary system. Courts adapt, however, 
but in doing so they must recognize the new 
legal vehicles they create and ensure that justice is accomplished fully as effectively 
as under the old ones. The tools are avail­
able. Under the Civil Rights Act courts are 
required fully to remedy an established wrong,
Griffin v. County School Board of Prince Edward 
County. 377 U.S. 218, 232-34 (1964), and the 
payment of fees and expenses in class actions 
like this one is a necessary ingredient of such a remedy.
This rule is consistent with the Court's 

power and serves an evident public policy to 
encourage the just and efficient disposition 
of cases concerning school desegregation.

Bradley, supra.
This Court should award attorneys' fees on this appeal and 

direct a similar award by the district court for proceedings 
below.

_51_



B. An Award Is Required By §718, P.L. 92-318
On July 1, 1972, the Education Amendments of 1972, P.L.

92-318, became effective. Section 718 of that Act provides:
Upon the entry of a final order by a court 
of the United States against a local educa­
tional agency, a State (or any agency thereof), 
or the United States (or any agency thereof), 
for failure to comply with any provision of 
this title or for discrimination on the basis 
of race, color, or national origin in violation 
of Title VI of the Civil Rights Act of 1964, 
or the Fourteenth Amendment to the Constitution 
of the United States as they pertain to elem­
entary and secondary education, the court, in 
its discretion, upon a finding that the 
proceedings were necessary to bring about 
compliance, may allow the prevailing party, 
other than the United States, a reasonable 
attorney's fee as part of the costs.

We believe that §718 must be applied to claims for counsel fees
at the appellate, as well as the trial, level; and that it
enacts the "private attorney-general" standard applicable in
cases brought under Titles II and VII of the Civil Rights Act
of 1964 and Title VIII of the Fair Housing Act of 1968 (see 

36/
§A supra).

This matter is before the Court on direct appeal from the 
district court's failure to award fees prior to the effective 
date of the act, and thus it is clearly controlled by "the 
general rule . . . that an appellate court must apply the law

1̂ -Arhe detailed legislative history of the act is set out in 
Appendix B to this Brief.

-52



in effect at the time it renders its decision." Thorpe v. 
Housing Auth. of Durham, 393 U.S. 268, 281 (1969). That is
where an issue is before an appellate court concerning the 
propriety of a lower court's decision, and there has been an 
intervening modification of the substantive rule of law 
relating to the issue, that modification is to govern whether 
"the change was constitutional, statutory, or judicial." 393 
U.S. at 282.

This rule has been applied in cases where the change in
law modifies the substantive rights of the parties so as to
either create or destroy rights of recovery. Thus, in the
leading case in the area, United States v. Schooner Peggy, 5
U.S. (1 Cranch) 103 (1801), the question was who was entitled
to possession of a French merchant vessel seized as a prize. At
the time of seizure and the decision of the lower court the law
was in favor of the captor of the vessel. While a writ of
error was pending in the Supreme Court, however, a treaty was
entered into which established the contrary result. The Court
held, in language quoted in Thorpe:

[I]f subsequent to the judgment and before 
the decision of the appellate court, a law 
intervenes and positively changes the rule 
which governs, the law must be obeyed. . . .
If the law be constitutional . . .  I know of 
no court which can contest its obligation.

5 U.S. (1 Cranch) at 110. Accord, Carpenter v. Wabash Ry. Co,,
309 U.S. 23 (1940); Vandenbark v. Owens-Illinois Glass Co.,

-63



311 U.S. 538 (1941); Ziffrin v. United States, 318 U.S. 73
78 (1943); Hall v. Beals, 396 U.S. 45, 48 (1969)("we review
the judgment below in light of the Colorado statute as it now

12/stands, not as it once did").
Thorpe further establishes that a stated intent by Congress

that §718 apply to pending cases is not necessary. In Thorpe,
no such intent was expressed in the administrative regulation
involved, and the Court in no way intimated that such an

38/
expression was required. Indeed, its description of its
holding as "the general rule," strongly indicates that the 
contrary is required; that is, if a new statute is not to apply 
to pending cases it must affirmatively appear that such was the 
intent of Congress. And it is clear that that is the rule in 
the case of legislation that alters the law as to the criminality 
of conduct. Thus, in Hamm v. City of Rock Hill, 379 U.S. 306 
(1964), the Court held that the passage of Title II of the Civil 
Rights Act of 1964 made non-criminal acts that were trespass 
under state law, in the absence of an expression of Congressional 
intent to the contrary.

-12/And see, United States v. Board of Educ. of Baldwin County,
423 F.2d 1013, 1014 (5th Cir. 1970); Hall v. St. Helena Parish 
School Bd., 424 F.2d 320, 322 (5th Cir. 1970); Citizens to 
Preserve Overton Park v. Volpe, 401 U.S. 402, 418-20 (1971); 
Johnson v. United States, 434 F.2d 340, 343 (8th Cir. 1970); 
Glover v. Housing Auth. of Bessemer, 444 F.2d 158 (5th Cir. 1971)
3R/see Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S 
at 418-20, where the Court accepts petitioners' contention that a 
new regulation applies to pending cases even in the absence of 
any intention of a retrospective effect.

54-



Turning to the legislative history of §718, the conclusion 
is inescapable that not only is there no evidence of Congres­
sional intent that it not apply to pending cases, but that the 
contrary inference must be drawn. Neither the text of §718 nor 
the explanatory note of the conference committee report (U.S. 
Code, Cong. & Adm. News, 1972 at 2406) contains any language 
dealing with the question. As noted in Appendix B, the section 
was debated only in the Senate in April, 1971; similarly, in 
that debate, there was no discussion at all of §718's application 
to pending cases, let alone any discussion indicating an inten­
tion that it not be so applied. 117 Cong. Rec. S5483-92 (daily 
ed., April 22, 1971) and S5534-39 (daily ed., April 23, 1971).

Indeed, the only indication as to Congress' intent in 
this matter arises from the fact that §11, the original 
attorneys' fee provision as reported to the Senate as part of 
S. 1557, did expressly provide that it would apply only to 
"services rendered" after the date of enactment of the Act 
(see Appendix B, n.l). Section 11 was rejected by the Senate, 
however, and what is now §718 was enacted two days later with 
the language of limitation deleted. It is clear from this that 
the Senate was aware of the applicability question and chose 
not to include language demonstrating an intent that §718 
should not apply with regard to legal services performed prior

55



»

3 9/
to the act's passage. Thus, the only possible inference
that may be drawn from the legislative history is that the
provision was meant to govern in all non-final attorneys' fee

40/
cases in accordance with the general rule stated in Thorpe.

■12/ln contrast, see Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§2000e-l, 2000e-16, where Congress made it clear as 
to the prospective effective dates of a statute. Section 2(c)(1) 
and (3) of the Education Amendments of 1972 merely specifies 
that the Act shall be effective as of June 30, 1972 or July 1,
1972, the end of the fiscal year, rather than on the date the 
President signed the bill. It in no way speaks to the application 
of the act's provisions to litigation pending on that effective 
date.
40/We recognize, of course, that Thorpe indicates that there are 
certain exceptions to the rule. None of these exceptions are 
applicable in these cases, however. First, the Schooner Peggy 
case states: ". . . in mere private cases between individuals,
a court will and ought to struggle hard against a construction 
which will, by a retrospective operation, affect the rights of 
parties. . . . "  5 U.S. (1 Cranch) at 110, quoted at 393 U.S.
268, 282. This case, of course, is not "private," but on the 
contrary is, in the language of Chief Justice Marshall, one of 
the "great national concerns," and therefore

[Tjhe court must decide according to existing 
laws, and if it be necessary to set aside a 
judgment, rightful when rendered, but which 
cannot be affirmed but in violation of law, 
the judgment must be set aside. [Ibid.]

Indeed, the present case is precisely the same as Thorpe; that 
is, it is between individuals and governmental agencies, and 
its purpose is to vindicate important constitutional rights. 
Therefore, "the general rule is particularly applicable here."
393 U.S. at 282. i

The second class of exceptions to the general rule mentioned 
in Thorpe is where it is necessary to prevent "manifest injustice. 
(If anything, in this case, the application of §718 will serve 
the cause of justice by reimbursing the private black plaintiffs | 
for taking on the task of correcting deprivations of constitu­
tional rights to the benefit of all society). In Thorpe the 
Court referred specifically to Greerev. United States, 376 U.S.
149 (1964), which was relied upon by the North Carolina Supreme 
Court in holding that the administrative regulation did not

(cont'd)
- 56 ~



§718 applies to this case and there can be no question 
but that it imposes the same standard with regard to the award 
of attorneys' fees as do §204(b) of Title II and §706(k) of 
Title VII of the Civil Rights Act of 1964, and §812 (c) of Title 
VIII of the Fair Housing Act of 1968. That is, the standard is 
that established by the Supreme Court in Newman v. Pigqie Park 
Enterprises, 390 U.S. 400 (1968).

In Newman the Court held that Title II mandated the award 
of attorneys' fees to a prevailing plaintiff "unless special 
circumstances would render such an award unjust." 390 U.S at 
402. Thus, ordinarily a fee must be awarded, and the burden is 
on the losing defendant to show why one should not be. The 
reason is that plaintiffs seeking desegregation of public accom­
modations cannot recover damages, and:

If he obtains an injunction, he does so not 
himself alone but also as a "private 

attorney general," vindicating a policy that 
Congress considered of the highest priority.

40/ (cont'd) ~~
apply to the eviction of Mrs. Thorpe (271 N.C. 468, 157 S.E.2d 
147 (1967)). Greene, as explained in Thorpe, is clearly not 
applicable to this case. There, the Supreme Court had handed 
down, in a prior case (Greene v. McElroy. 360 U.S. 474 (1959)), 
an order finally disposing of the substantive issue. in 1959 
Greene filed a claim for damages with the government, and when 
it was denied, filed suit. The government argued that the right 
to recover should be governed by a 1960 regulation that set up 
a new bar to his recovery. The Supreme Court rejected this 
argument, holding that this would indeed be the retroactive 
overruling of a case finally disposed of, and hence not permis- 
sible. This case, of course, does not present such a situation 
as •*■*' involves an appeal from a lower court order in a case 
which has not as yet been finally disposed of. In a school

(cont’d)
57-



Ibid. Otherwise, private parties would be discouraged from 
advancing the public interest by going to court. Therefore, 
the Court specifically rejected any requirement that the 
defendants acted in bad faith or were obdurate or obstinate. 
Subsequently, lower courts have applied the same standard in 
cases arising under the attorneys' fee provision of Title VII. 
See, e.g., Clark v. American Marine Corp., 320 F. Supp. 709 
(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1971); Lea v.
Cone Mills Corp.. 438 F.2d 86 (4th Cir. 1971); and see, Lee v. 
Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

We submit that §718 enacts the Newman standard for school 
desegregation cases for the following reasons: (1) the relevant
language, with two exceptions that will be discussed below, of 
§718 is the same as that of Title II, Title VII and Title VIII. 
Thus, this case is governed by the general rule that legislative 
use of language previously construed by the courts implies an 
adoption of that judicial construction unless a contrary inten­
tion overwhelmingly appears. E.q., Armstrong Paint & Varnish
Works v. Nu-Enamel Corp., 305 U.S. 315, 332 (1938); cf. Drummond 
40/ (cont'd)
desegregation case that has been finally terminated, whether 
attorneys' fees may still be obtained could be decided by refer­
ence to the ordinary rules as to the time limitations as to when 
costs must be applied for. For a discussion of when it is 
appropriate to seek attorneys' fees, see Sprague v. Ticonic Nat'l 
Bank, 307 U.S. 161 (1939).

58"



v. Acree, No. A-250 (September 1, 1972)(Mr. Justice Powell,
Circuit Justice). (2) It is absolutely clear from the legislative
history that Congress intended that §718 mean exactly the same 
as Titles II, VII and VIII. Thus, Senator Cook, who introduced 
the provision and was its main sponsor, on no fewer than three 
occasions so stated, and even read into the record the texts 
of those sections to underscore his point. 117 Cong. Record,
S5484, 5490 (daily ed., April 22, 1971), 117 Cong. Record, S5537 
(daily ed., April 23, 1971). (3) Finally, it is clear that §718
fulfills the same purpose as do the counsel fee provisions in 
the earlier acts. Just as in Newman, plaintiffs act as "private

41/
attorneys general" to vindicate and advance broad public policy.
41/As noted above, there are two differences of significance 
in the text of §718 as compared to the earlier statutes. First, 
it refers to the entry of a "final order" as the time at which 
attorneys' fees and costs may be taxed. It is clear that this 
does not mean the final termination of the litigation, but upon 
the entry of a realistic, appealable order and the expiration of 
appeal time or the exhaustion of appeals (see the remarks of 
Sen. Cook at 117 Cong. Rec., S5490 (daily ed., April 22, 1971). 
Second, and more significant, is the language that an award may 
be made "upon a finding that the proceedings were necessary to 
bring about compliance" [with the Fourteenth Amendment]. A 
considerable portion of the debate in the Senate deals with this 
language, and it is clear that it is intended to protect against 
two abuses —  the champertous filing of unnecessary lawsuits 
simply to get a fee when a school board is in fact going to comply 
with the law, and the unnecessary protraction of litigation to 
trial and judgment when a school board has made a bona fide and 
adequate offer of settlement. See 117 Cong. Record, S5485 (daily 
ed., April 22, 1971)(colloquy between Senators Javits and Cook); 
id. at S 5490-91. Thus, the language was in no way intended to 
modify the substantive rule of Newman; i.e., if a plaintiff does 
prevail and a court enters an order requiring compliance with 
the Constitution, he must be awarded attorneys' fees except in 
unusual circumstances. Thus, if plaintiffs prevail in this Court 
they will be entitled to an award.

59-



CONCLUSION

For the foregoing reasons, appellants pray that the judg- 
merts of the district court be reversed and the cause remanded 
with directions to:

(1) Require the school board forthwith to 
formulate a plan for the complete 
desegregation of the school system 
using transportation where required, 
which may be based upon the plan 
proposed by Dr. Stolee or developed 
independently by the board, but which 
shall achieve substantially the same 
degree of desegregation as the Stolee 
plan;

(2) Establish an expedited schedule for 
submission of such plan or plans and 
for hearings thereon, to the end that 
the necessary transportation facilities 
may be acquired and a fully unitary 
school system implemented in Knoxville 
not later than the 1973-74 school year;

(3) Require that such a plan shall provide 
for the reopening of the Cansler 
Elementary School for regular instruc­
tional purposes, as a fully desegregated 
facility;

(4) Award plaintiffs reasonable attorneys' 
fees, and costs and expenses of litigation 
for the 1971-72 hearings and for any 
further proceedings upon remand;

(5) Retain jurisdiction of this cause and 
require the board to file periodic reports.

Appellants further pray that this Court award them costs and
reasonable attorneys' fees for this appeal; and for such

-6*-



other and further relief as to the Court may appear just 
and proper.

Respectfully submitted,

A A
CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915

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

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
JOHN BUTLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

- 6 1-



IN THE UNITED STATES COURT OF APPEALS

JOSEPHINE GOSS,

vs.

FOR THE SIXTH CIRCUIT 
NO. 20834

et al.,
Plaintiffs-Appellants,

THE BOARD OF EDUCATION OF THE 
CITY OF KNOXVILLE, TENNESSEE, 
et al., Defendants-Appellees.

BRIEF FOR APPELLANTS

Statement

This appeal is taken from the district court's denial
_1/(A.12-16, 28-29) after a hearing, of a Motion for Immediate 

Relief consistent with Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969). The procedural history of this 
litigation, now more than a decade old, is set out in the

1 / Citations in the form A.__  are to the printed Appendix
on this appeal. Citations to the Appendices on previous
appeals will be designated "18,165 A. _____ ," "14,425
A. __ _ ," etc.. .Citations to exhibits are given as "X ____ .



2_/
margin.

2_/ This action was commenced December 11, 1959 (A. 3) to desegregate
the public schools of Knoxville, Tennessee. It is the successor to 
anotter brought for the same purpose on January 7, 1957 and subse­
quently dismissed without prejudice (14,425 A.61a, 63a) . August 26, 
1960, the district court approved a plan submitted by the board, 
which proposed to eliminate mandatory racially separate school facili­
ties at the rate of one grade per year, by devising, for each school 
serving an affected grade, a single attendance zone. Children residing in that zone were to be assigned to the school within the 
zone subject to a right of transfer out if they so desired and if 
they met the criteria; one of the grounds for transfer was that a 
student of one race would otherwise be required to attend a school 
which had in the past served only students of the other race 
("minority-to-majority transfer"). Goss v. Board of Education,
186 F. Supp. 559 (E.D. Tenn. 1960).

This Court, considering the plan as formulated but not yet implemented, upheld it but ordered acceleration beyond one grade a 
year. Goss v. Board of Education, 301 F .2d 164 (6th Cir. 1962). On 
certiorari, the Supreme Court reversed, holding that the transfer 
provision was an impermissible racial classification "of which racial 
segregation is the inevitable consequence." Goss v. Board of Education, 
373 U.S. 683, 689 (1963). The Court further stated: "The only
question with which we are here concerned relates solely to the trans­
fer provisions, and we are not called upon either to discuss or to 
pass on the other provisions of the desegregation plans." ^d. at 685.

In the interim, the Board had submitted to the district court a 
"supplemental plan" concerning the vocational-technical courses at 
Fulton High School, in accordance with the district court’s reserva­
tions on that subject in its first opinion. 186 F.Supp. at 567. The district court approved the supplemental plan in an unreported 
opinion (14,759 A. 82a-86a) and this Court affirmed in part and 
remanded in part, Goss v. Board of Educ., 305 F .2d 523 (6th Cir. 1962) .

On remand, the board submitted an amended plan which proposed 
the desegregation of grades 1-6 for the 1963-64 school year. With 
exceptions mainly related to the availability of specialized instruc­
tion, the district court approved the plan. 15,432 A. 112a-117a. 
Plaintiffs again appealed, and on February 28, 1964, this Court 
remanded the action to the district court upon tike representation 
of the board's attorney that all grades would be desegregated during the 1964-65 school year and "all racially discriminatory practices" eliminated. See Goss v. Board of Educ., 270 F. Supp.
903, 908 (E.D. Tenn. 1967).

-2-



Although the district court limited the proof*which could be
offered at the 1970 hearing herein to matters which occurred

(Cont1 d)
Thereafter, several amended plans were filed and negotiations 

conducted in an effort to resolve differences between the parties. 
These ultimately proved unsuccessful, and a hearing was held in 1967 on plaintiffs' Motion for Further Relief filed May 8, 1967. On June 
6, 1967, the district court rejected all of plaintiffs' contentions. 
The court held that neither the "grade requirement" nor "brother- 
sister" transfers perpetuated past segregation, and that plaintiffs could not challenge the effect of the board's zoning:

These lines were in the plans that were approved by 
this Court and were reviewed by the Sixth Circuit 
on at least two appeals and presumably were either not attacked or were impliedly approved by the 
Supreme Court of the United States when it con­
sidered and remanded the case to the Court of 
Appeals by holding that the transfer plan involving 
the minority-majority rule was unconstitutional.
This day is late for making a claim that the zones 
are unconstitutional because they promote segre­gation .

270 F. Supp. at 913. The district court applied the ruling in Deal 
v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847 (1967) that "there is no constitutional duty 
on the part of the school board to bus Negro or white children out 
of their neighborhoods or to transfer classes for the sole purpose 
of alleviating racial imbalance which it did not cause" to the 
Knoxville situation. [emphasis supplied] This Court affirmed,
406 F.2d 1183 (6th Cir. 1969), holding that the district judge had 
properly applied Deal (406 F.2d at 1189) and rejecting the view of 
plaintiffs' expert witness "that the Knoxville school authorities 
should take affirmative steps to bring about a better mixing of the 
Negro and white students." (406 F.2d at 1186-87). "We are not sure 
that we clearly understand the precise intendment of the phrase 'a 
unitary system in which racial discrimination would be eliminated,' 
but express our belief that Knoxville has a unitary system designed to eliminate racial discrimination." (406 F.2d at 1191).

Following the Supreme Court's decision in Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969), plaintiffs filed a 
Motion for Immediate Rdief alleging that the Knoxville public schools were still not operated as a unitary school system. The district 
court subsequently entered an order (A.280-82) limiting the proof to events occurring subsequent to June 7, 1967.

After an extensive hearing, the court below found (1) that 
in the "areas served by Rule and Beardsley [junior high school] the



after its last ruling in 1467, appellants believe not only 
that such ruling was error, but that Knoxville's compliance 
with constitutional standards or lack thereof can only be 
measured in light of its entire history; accordingly, we summarize 
briefly the course of desegregation in Knoxville since the in­
ception of this suit. (We are frank to affirm that in our view, 
the evidence shows decisively that Knoxville has never acted to 
dismantle its dual school system, with the predictable result 
that all of the ckfex:- indicia of a dual structure are yet 
apparent.)

In 1959, Knoxville operated a completely dual biracial 
school system "planned and operated in conformity with the 
principle of segregation" (14,425 A. 30a)[Answer to Complaint]. 
Although the system maintained formal dual overlapping zones in 
accordance with its policy of segregation, it had also so lo­
cated schools as to serve racial population concentrations in 
residentially segregated areas (18,165 A.233a, 241a). Racially 
discrete communities developed near schools designated for children 
of each race (A.411; 18,165 A.227a) .

2 / C on t' d
Board has not acted in accord with its stated policy of drawing zone 
lines to conform to the edacity of existing school structures" and 
directed the Board to "revise the zones in this area for the 1970 
school term to eliminate overcrowding at Rule and to utilize existing 
capacity at Beardsley" (A. 313-14); (2) that "the Board has committed
a grave omission in failing to either enforce its transfer policy or 
to maintain records to show that enforcement" since "it appears that there is some irregularity in the administration of that 
policy" (A. 316); and (3) that "the Court is constrained to find 
that the Board should accelerate the integration of faculties."
(A. 321). However, the district court adopted as its basic position 
the thesis that "the contention that the Board has an affirmative 
duty to change the zones to increase racial mixing is not well 
founded," and held that "the defendant School Board is operating a unitary school system as defined by the Supreme Court in the case 
of Alexander, supra........ (A. 327).

4



The 1960 district court order required elimination of the 
formal dual zones under a grade-a-year approach and the substi­
tution of a single, contiguous zone around each school (A. 300). 
Because of the pre-existing racial patterns (themselves influenced, 
as noted above, by school site location decisions), however, the 
new zones were in many instances very similar to the old zones 
under the dual system (18,165 A.93a-112a). The zones, which have 
been but slightly altered since 1960, still follow customary 
community racial residential patterns (A. 385, 400-02; 18,165
A.207a) .

Initial assignments were based on a child's residence within
one of these zones, subject, however, to transfer provisions which
permitted students to avoid attending the school of their residence
zone if that school formerly served children of another race.

_3/
270 F.Supp. at 904. In 1963-64, all elementary grades came within 
this plan for the first time. Also that year, the explicit 
"minority-to-majority" transfer was discontinued following the 
Supreme Court’s decision holding it unconstitutional, Goss v.
Board of Education, 373 U.S. 683 (1963), but zone assignments

3 / In many school districts, transfers are an uncommon practice 
but in Knoxville, they had been used for years as an everyday 
administrative tool. Overcrowding caused by population shifts, 
for example, had historically been handled not by adjusting or 
redrafting zone lines fcompare, e.g., A. 348] but by granting 
transfers (14,425 A.303a). One instance illustrating the 
widespread use of transfers was given by Dr. Bedelle: most of
the students affected by expansion of the Galbraith zone already 
attended the school under various provisions of the transfer regulations (A. 346-47).

5



remained subject to transfers which could be granted for a variety 
4_/of reasons. In 1964-65, the rezoning (and the transfers) were 

extended to all grades. 270 F.Supp. at 908.
As the district court has noted (A. 316-17), the school system 

has simply neglected to maintain records adequate to evaluate the 
effects of these transfer options. It is not apparent, for example, 
how many students enrolled at schools outside their residence 
zones between 1960 and 1963 (18,165 A.198a), or how many stayed 
at such schools thereafter under "grade requirement" or "brother- 
sister" transfers (ibid). Nor could Dr. Bedelle, the Assistant 
Superintendent for Personnel and Development, reveal how many 
transfers were granted to or from each individual school zone 
in the 1969-70 school year (A. 506). What little is kncwn led the 
district court to declare (A. 316-17): "it appears that there
is some irregularity in the administration of that policy. . . .

4 / (1) "Grade requirement" transfers, permitting studentspreviously enrolled outside their residence zone to remain in such school outside their zone until they completed all grades 
offered at the school.

(2) "Brother-sister" transfers afforded to siblings of 
children enrolled in schools outside their zones.

(3i) Transfers to take courses not available at the school 
of residence.

(4) Transfers to relieve overcrowding and other administrative 
transfers.
See A . 55,316.

6



Approval of neighborhood zones is specious when informal transfers 
occur."

The transfer system permits racially motivated transfers, even 
though ostensibly granted on other grounds (18,165 A. 199a); when 
Austin and East were first combined, 71 white students transferred 
from East to Fulton instead of taking their vocational courses 
at Austin (18,165 A.220a, 221a). Similarly, in 1969-70, the 
Austin-East complex had only ten whites enrolled (A. 295) although 
one of its feeder junior high schools enrolled nearly 300 white 
students (A. 296). Dr. Bedelle generally ascribed the variance 
to transfers (A. 412-14) although he could not trace those white 
East High School students who "disappeared" between 1967 and 1970 
(A. 571-72).

Another major area in which the decisions and actions of 
appellee Board of Education have resulted in continuing school 
segregation is school site location policy. The board has never 
affirmatively selected sites for the purpose of furthering de­
segregation of the school system (18,165 A.224a). In fact, 
racial composition has hardly been considered; in describing the 
reasons for locating and constructing the recently completed 
Bearden and Central High Schools, Dr. Bedelle failed to mention 
projected racial composition at all (A. 356-59).

Schools have been located in the vicinity of the racially 
identified facilities which they are to replace or supplement 
(A. 438). Thus, the new Northwest Junior High, as well as 
Bearden and Central, are located on the outer edge of the city 
although sites closer to the central city would likely have

7



meant desegregated schools (ibid.). The school district knew
in 1967 that the sites selected for the three schools "could"
intensify segregation in the system (18,165 A. 248a) .

Knoxville has implemented its construction program with the
effect of maintaining racially separate schools. No school
constructed since this litigation was started has a minority
race enrollment greater than 3% (A. 101-24, 138-48). As far
back as 1956, desegregation of the system was delayed explicitly
for the purpose of completing construction programs (14,425 A.330a)
which increased capacity at racially identifiable schools and

_ 6/contained an expanding Negro population. This pattern has

5 / in 1969-70, the enrollments of these schools were as follows: 
Northwest —  997 white, 2 Negro: Bearden —  1013 white, 22 Negro; 
Central —  1689 white, 7 Negro (A. 146-47). The location of these 
facilities in white areas (A. 439) is even less defensible since 
the white students residing near the schools are entitled, pursuant 
to the terms of a 1963 annexation agreement, to free transportation 
when assigned to a school more than 1^ mile from their residence
(ibid.) Dr. Bedelle's explanation is classic circular reasoning; 
the schools were not built closer to the black community because 
"the youn^ters that are attending these schools are not located 
in that area ." (A. 528) .
6 / For example, the United States Civil Rights Commission noted 
in 1966:

The Sam Hill Elementary School in Knoxville, is 
another example of the effects of decisions re­
garding school size. The school was built in 1952 to serve a small Negro area. In 1958, 
in order to contain an expanding Negro population, 
it was enlarged to a capacity of about 400. Yet two blocks away was the all-white Lonsdale Elementary 
School, which in 1960 was underenrolled by over 
100 pupils. In 1965 Sam Hill remained all-Negro, and Lonsdale was 98 percent white. [Footnote omitted]

United States Comm'n bn Civil Rights, Racial Isolation in the 
Public Schools 65 (1967).



continued to be reflected in decisions concerning adjustment 
of zone lines after new schools are constructed or territory 
annexed, and placement of portable facilities.

In 1963, a substantial area of Knox County was added to 
the Knoxville school district by annexation. (The new junior 
and senior high schools are all located in the annexed area.)
Hoiston High School in the far eastern part of the city came 
under the jurisdiction of the Knoxville School Board. The 
Board left the attendance zones at Holston and Austin-East virtually 
unchanged (A. 418) rather than "break up attendance patterns 
that have existed" (18,165 A.269a)~ The board spent a considerable 
sum to renovate Austin with knowledge of its historic identity 
as a Negro school and cognizant also that it had taken no steps 
(such as changing the boundary between Holston and Austin) to 
change that identity (18,165 A.256a). Today the board permits 
white county tuition students to overcrowd the white Holston
High School despite underutilization of the black Austin-East8 /complex (A. 419).

When revision of zones has been occasioned by new con­
struction, the board has continued to maintain the status quo

TT5 4^5 a 9^ 6? HOlS^ o WaS all"white (A- 418) and Austin all-black (15,432 A.105a); in 1969-70 Holston enrolled 1249 white and 40
Negro students while Austin-East enrolled 10 white and 739 black students (A. 176-79). Diacx
8 / "In view of the foregoing direction, during its annual revision 
.. Z?nn i ines' the Board maY wish to pay considerable attention to
1 093'in i S r f o ’T  ?89St°niSfi?h»Where attendanc® has increased from court (A. 314) 1,289 ln 196 • Memorandum Opinion of district

9



of racially identifiable schools (A. 488). For example, the 
completion of Northwest Junior High and Bearden High resulted in 
revision of secondary zone structures in the general West 
Knoxville area. The irregularly shaped West High School zone 
established in 1968 (A. 440; cf. X7) excludes a nearby black 
residential area which is entirely zoned into Rule High. The 
school district enlarged the West facility at the same time 
Bearden High was constructed (A. 442-43) with the result that, 
particularly as the zones were drawn, none of the black students 
m  the Rule area are assigned to the heavily white Bearden or
West High Schools.

Nor did the reexamination of zones in western Knoxville 
alter the character of Rule and Beardsley Junior High Schools —  
one white and the other black, located next door to one another? 
The Beardsley grade structure is still unique, both in this 
system and in this state?" The Beardsley Junior High zone is 
virtually coterminate with the black residential area (A. 385) 
but the zones were not redrawn nor the schools paired as
recommendecMjy^the University of Tennessee Title IV Center 
(A. 398.)?" '

h :22e lh 1967 Dr' Bedelle could not explain this phenomenon (18,165

Department of Health, Education and Welfare) 1379-1410<1970*!

Mhoo?s w o ^ b S  better i ^ R u l ^ a n d ' ? , ? ? ' ' "  ^anization of the 
The district court ordered the U n e s ^ e d r a ' w ? , ^ ! ^ ^  <A’ 387‘89)

10



Almost all of Knoxville's portable classrooms are located 
at white schools (X18, A.516) despite the availability of excess 
capacity at black schools (A. 391-92) . The location of these 
portable classrooms obviates any need to adjust zone lines between 
white and black schools to avoid overcrowding of the permanent 
facilities at the schools. For example, the Board operated 
the Negro Green Elanentary School at half capacity while using 
portable classrooms to contain overcrowding at the predominantly 
white Huff Elementary School three miles away (A. 430).

The attitude of this school system toward desegregation is 
most graphically revealed by its perpetuation of racially identi­
fiable faculties. No teachers have ever been transferrred to 
desegregate a school's faculty (A. 467); in 1969-70 twenty-one 
schools had no Negro teachers (A. 187-94) and two Negro schools
(Sam Hill and Mountain View) had no white teachers (ibid.), 
despite Dr. Bedelle's view that faculty desegregation requires 
"substantial" numbers of minority teachers at each school (A. 461). 
Significant is the district's selection of faculties at newly opened 
schools: Bearden High had no black teachers (A. 192), Central
but one (along with 70 white teachers) (A. 193), and Northwest 
Junior High only two (ibid.). Conversely, faculty racial pre­
dominance continued to mirror student body population, and thus 
to perpetuate racial identifiability: Lonsdale had one Negro
and 17 white teachers, Sam Hill 16 Negro and no white teachers; 
Beardsley, 20 black and four white instructors. Rule oniblack 
and 58 white teachers (A. 187-94).

11



Similarly, assignments of principals have conformed to 
established patterns with no attempts to eliminate racially 
identifiable schools. A black principal was not assigned to a 
formerly white school until after it had become majority black 
(A. 472); when black schools were closed (18,165 A.169a), their 
former principals did not get assigned to vacancies at white 
schools (A. 473). In 1969-70, no Negro was the principal of 
a predominantly white student body school. Three whites were 
assigned as principal at predominantly-black schools (A. 187-94); 
all of these schools, however, had originally been white schools 
(see A. 472-74).

The school district's explanation for these results was 
that it never transferred teachers or principals without their 
consent (A. 467) and they considered whether a teacher could 
"understand" a particular neighborhood in making assignments (A. 470)

The results of these policies can be summarized as follows: 
During the 1969-70 school year, ten years after the initiation 
of this lawsuit, the Knoxville school system consisted of 47 
elementary, 9 junior high, and 9 high schools (A. 168-77) .
Although black students constitute only 16% of the Knoxville 
school population (A. 177), 83% of all black students attended 
majority-black schools (A. 309, 520).

The following table illustrates the changing racial 
composition of black schools since this suit was commenced:

12



13/ 14/ 15/1962-6 3 1966-6 7 1969-70
School W B W B W B 16/

Austin 0 710 1 432 10 739
Beardsley 0 672 6 471 4 357
Cansler 0 361 0 221 12 206
Eastport 0 592 1 437 0 442
Green 0 677 21 421 5 276
Maynard 0 491 2 452 7 375
Mountain View 0 357 0 325 0 303
Sam Hill 0 488 0 498 4 347
Vine 0 776 1 619 5 628

These schools were all-white in 1962-63 and remained all-white 
in 1969-70: Claxton, Giffin, Lockett, Oakwood, Perkins, South
Knoxville and West View. All-White schools in 1962-63 which 
presently enroll ten or fewer black students are McCampbell,
Sequoyah and South. Schools which had ten or fewer black students 
in 1962-63 and 1969-70 are Brownlow, Flenniken and McCallie (15,432 
A. 105a, A. 138-39).

Faculties reflected student body racial proportions (Compare 
A.138-48 with A.188-95). Twenty schools still have no faculty 
desegregation (A. 471).

The district court denied all systemwide relief except "to 
find that the Board should accelerate the integration of faculties"

13/
14/
15/
16/

15,432 A.105a. 
18,165 A . 42a-47a.
A.138-49.
Austin-East complex.

13



(A.321) • The Court also directed the Board "to revise the zones 
in this area for the 1970 school term to eliminate overcrowding 
at Rule and to utilize existing capacity at Beardsley" (A. 314) 
and "to keep adequate records to show enforcement of its transfer 
plan" (A. 317). In all other respects, the Court denied plaintiffs
relief.



APPENDIX B

LEGISLATIVE HISTORY OF § 718

The provision for attorneys' fees in school desegregation 
cases was first introduced in the Senate as § 11 of the Emergency 
School Aid and Quality Integrated Education Act of 1971, s. 1557. 
The bill was reported to the Senate floor in April of 1971, and 
§ 11 was described in the report of the Senate Committee on 
Labor and Public Welfare. Sen. Rep. No. 92-61, 92d Cong., 1st 
Sess. The report, while not setting out the precise text of 
§ 11, describes it fully. its provisions were substantially 
the same as those of § 718 as it finally passed, with two 
important exceptions.

First, payment of attorneys' fees in school cases was to 
be made by the United States from a special fund established by 
the Act. Second, the section provided that "reasonable counsel 
fees, and costs not otherwise reimbursed for services rendered, 
and costs incurred, after the date of enactment of the Act" were■ Y7
to be awarded to a prevailing plaintiff. it should be noted

- The description of § 11 in the Senate report is as follows:
This section states that upon the entry of a 

final order by a court of the united States against 
a local educational agency, a State (or any agency 
thereof), or the Department of Health, Education, 
and Welfare, for failure to comply with any provision of the Act or of title i of the Elementary and 
Secondary Education Act of 1965, or for discrimination on the basis of race, color, or national origin in 
violation of title VI of the Civil Rights Act of 1964 
or of the Fourteenth Article of amendment to the 
Constitution of the united States as they pertain to



that the quoted language was omitted from § 718.

On April 21, 1971 Senator Dominick of Colorado introduced 
an amendment to delete § 11 in its entirety from the bill. The 
basis for the deletion was that it was not proper that the United 
States should bear the costs of attorneys' fees but rather that 
such costs should be imposed on the school boards responsible 
for the maintenance of unconstitutionally segregated school 
systems. Senator Dominick's amendment passed. 117 Cong. Rec.
S.5324-31 (daily ed. April 21, 1971).

On the next day, Senator Cook of Kentucky, who was also 
opposed to § 11, introduced a new amendment identical to the 
present § 718 and after two days of debate that amendment was 
passed. 117 Cong. Rec. S.5483-92 (daily ed. April 22, 1971) 
and S.5534-39 (daily ed. April 23, 1971). The section as 
passed became § 16 of S.1557, and S.1557 as a whole was passed 
on April 26, 1971 without any further debate of the attorneys' 
fees provision. 117 Cong. Rec. S.5742-47 (daily ed. April 26,

l /  cont'd
elementary and secondary education, such court shall, 
upon a finding that the proceedings were necessary to 
bring about compliance, award, from funds reserved 
pursuant to section 3(b)(3), reasonable counsel fees, 
and costs not otherwise reimbursed for services 
rendered, and costs incurred, after the date of enact­
ment of the Act to the party obtaining such order.
In any case in which a party asserts a right to be 
awarded fees and costs under section 11, the United 
States shall be a party with respect to the appropri­
ateness of such award and the reasonableness of counsel 
fees. The Commissioner is directed to transfer all 
funds reserved pursuant to section 3(b)(3) to the 
Administration Office of the United States Courts for 
the purpose of making payments of fees awarded pursuant to section 11.

Senate Report No. 92-61, 92d Cong., 1st Sess., pp. 55-56.
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1971).

Subsequently, on August 6, 1971, the Senate passed a re­
lated statute, S.659, the Education Amendments of 1971. See,
U.S. Code Congressional and Administrative News, 1971, vol. 6

2/p. 2333. Both Senate bills were then sent to the House. On 
November 5, 1971, the House, in considering a parallel measure, 
H.R.7248, amended S.659. The House struck everything after the 
enactment clause of the Senate bill and substituted a new text 
based substantially on the House bill and in effect combining 
provisions of S.1557 and S.659. Ibid. In so amending the Senate 
bill the House omitted the attorneys' fees provision (Id., at 
2406) without debate.

The amended Senate bill was then returned to the Senate 
with request for a conference, which request was referred to 
the Senate Committee on Labor and Public Welfare. However, the 
Committee, instead of acceding to the request for a conference, 
reported S.659 back to the Senate floor with amendments to the 
House substitute. Those amendments re-included the counsel fee 
provision of S.1557 in exactly the same form as it had originally 
passed the Senate in April. Id. at 2333 and 2406. On March 1, 
1972, the Senate passed S.659 as reported to it by the Committee, 
and this amended bill was then sent to conference. The Senate-

2/ Sen. Rep. No. 92-604, 92d Cong., 2nd Sess., Report of the 
Senate Committee on Labor and Public Welfare on the Message of the House on S.659.
2/ Conference Report No. 798, 92d Cong., 2nd Sess.

-3-



House conference made further amendments and reported the bill 
to both houses with the continued inclusion of the attorneys' 
fees provision exactly as passed by the Senate, jrd. at 2406.
The provision was now § 718 of the Education Amendments of 1972. 
The conference bill was passed with no further debate on § 718 
by the Senate on May 24, 1972 and by the House on June 8, 1972 
(I<3. at 2200) , and was signed into law by the President on June 
23.

Thus, the only debate concerning § 718 occurred in connec­
tion with its original passage by the Senate in April of 1971. 
As noted above, there was no debate in the House concerning 
its deletion when the House amended S.659 and there was no 
further debate in the Senate or the House with regard to the 
passage of the conference bill.

F

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