Geier v. Blanton Brief for Plaintiffs-Intervenors, Appellants Richardson

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 77-1622 & 1624

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

RAYMOND RICHARDSON, JR., et al.,
Plaintiffs-Intervenors, 
Appellants,

vs.

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

Defendants-Appellees, 

UNIVERSITY OF TENNESSEE, et al.,
Defendants-Appellees.

BRIEF FOR PLAINTIFFS-INTERVENORS, APPELLANTS RICHARDSON, et al.

Plaintiff-Intervenor
Appellee,

AVON N. WILLIAMS, JR. 
MAURICE E. FRANKLIN 
RICHARD H. DINKINS

1414 Parkway Towers 
Nashville, Term. 37219

JACK GREENBERG 
JAMES M. NABRIT III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN

10 Columbus Circle 
New York, New York 10019

Attorneys For Plaintiffs-Intervenors, Appellants



I N D E X

Questions Presented .................................................. 1

Statement of the Case ...............................................  2

A. Prior Proceedings ..............   4

1. Initial Order Requiring Submission of
Desegregation Plan, 1968 .............................  4

2. Initial "Plan" and Its Implementation, 1969-1971 ....  6

3. Order Requiring Additional Plans For The
Desegregation of TSU, 1972 ........................... 6

4. Inplementation, 1972-1976 ............................  8

B. Trial Proceedings .........................................  10

1. Order Requiring Merger of TSU and UTN, 1977 .........  10

2. Subsequent Proceedings ...............................  11

Statement of Facts ................................................... 13

I. Nashville Desegregation Situation:

A. The System of Dual Public Higher Education In
Nashville Has Not Been Dismantled.................... 13

1. The Continuing Failure to Desegregat TSU and 
UTN Perpetuates the System of Dual Public
Higher Education in Nashville...................... 13

2. The Existence and Expansion of UTN Has
Inpeded Dismantling of the Dual System............  16

a. UTN Deprived TSU of the Opportunity To
Attract White Students Required For 
Desegregation.......      16

b. UIN Competed with TSU By Offering
Similar Programs ..............................  18

c. Competition Between TSU and UTN
Perpetuated The Dual System................... 19

B. The State's Approach To Dismantling The Dual 
System of Higher Education In Nashville Has
Not Worked and Contains No Prospect of Working......  21

Page



1. The Use of Joint, Cooperative and Exclusive 
Program Allocations In The Long Range Plan
Has Proven Ineffective ............................  21

a. Joint and Cooperative Programs ...............  22

b. Exclusive Programs ............................  23

c. Other Programs ................................  25

2. Defendants Have Evaded Orders To Develop
A Meaningful Desegregation Plan ..................  25

a. University of Tennessee....................... 25

b. State Board of Regents and Tennessee
Higher Education Commission ..................  27

C. The Only Reasonable Alternative To Accomplish 
Desegregation Is The Merger Of TSU and UTN 
Into A Single Institution Under A Single
Governing Board ......................................  28

1. Merger is the Most Effective Remedy..............  28

2. Defendants' Experts Agreed That Merger
Is The Best Long Range Solution................... 30

D. The Regents Plan and Postjudgment Events ............  32

II. Statewide Desegregation Situation:

A. The Statewide System of Public Higher Education
Is Still Substantially Segregated..................... 34

1. Segregation of Students ...........................  34

2. The Segregation of Faculties ...................... 38

3. The Segregation of Institutional Personnel .......  40

4. Segregation of Non-Institutional
Administrative Personnel ..........................  41

5. Salary Disparities ................................  42

6. Defendants' Future Plans to Desegregate
The System........................................  43

Summary of Argument .................................................. 49

li



ARGUMENT:
I Having Found An Extant Dual System of Public 

Higher Education In Tennessee, The District 
Court Had a Duty To Order Effective Remedies
To Dismantle The System Now................................  50

II Hie District Court Erred in Failing to 
Evaluate The Specific Goals And Policies
of Defendants' Statewide Desegregation Plan ..............  53

A. Hie Duty Of The Court ................................  55
B. Specific Defects In The Statewide P l a n ..............  59

1. Effective Desegregation of Student Bodies ........  59

2. Effective Desegregation of Faculties .............  60

3. Effective Desegregation of Administrators
Governing Bodies and Boards ....................... 61

III Hie District Court Erred In Failing to Evaluate 
The Specific Elements Of The TSU-UTN Nashville 
Merger Plan, And In Failing To Supervise
Implementation Of The P l a n ................................  62

A. Merger of TSU and UTN was a Proper And 
Necessary Equitable Remedy For The 
Egregious Constitutional Violations
Found By The District Court .......................... 63

B. Hie District Court Erred In Approving A 
Plan For The Desegregation of TSU and 
UTN That Does Not Immediately and Effec­
tively End The Dual System of Higher
Education in Nashville ...............................  63

1. The System of Governance of TSU-UTN
is Defective ......................................  64

2. With Regard to Both Administrative 
Staff and Faculty Insufficient 
Protections are Given to TSU
Personnel .........................................  66

3. The Plans for Program Consolidation
Are Inadequate ....................................  68

C. Hie District Court Erred in Failing to 
Consider Plaintiffs' Objections to 
Defendant Board of Regents' Plan of
Merger During the Pendency of the Appeals............  68

Page

iii
CONCLUSION 70



■ *x .

Table of Authorities

Cases:
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) .......  53,58,59,61,62

Alexander v. Holmes County Board of Education
396 U.S.19 (1969) ...........................................  51,52,55

Board of Education of the School District of the City of
Detroit v. Bradley, 475 F.2d 819 (6th Cir. 1972).................  69

Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976) ..................  57,63

Bradley v. School Board, 382 U.S.103 (1965) ............................ 60

Brown v. Board of Education, 347 U.S.483 (1954) ..................... 51,54

Brown v. Board of Education, 349 U.S.294, 75 S.Ct. 753,
99 L.Ed 1083 (1955) (Brown II) ....................................  69

Geier v. Blanton, 427 F.Supp. 644 (M.D. Tenn. 1977) ...............  Passim

Geier v. Dunn, 337 F.Supp. 573 (M.D. Tenn. 1972) ................... Passim

Green v. School Board of New Kent County, 391 U.S. 430
20 L.Ed 716, 88 S.Ct. 1689 (1968)......................... 52,54,55,64

Hazelwood School District v. United States,
___U.S.___52 L.Ed 2d 768 (1977) ...................................  60

International Brotherhood of Teamsters v. United States
___U.S.___, 52 L.Ed 2d 396 (1977) .................................  60

Kelly v. Metropolitan County Board of Education of
Nashville, 463 F.2d 732 (6th Cir. 1972) ........................... 69

Keyes v. School District No.l, 521 F.2d 465 (10th Cir. 1975) ..........  67

Keyes v. School District No.l, 413 U.S. 189 (973) ...................... 51

Lee v. Macon County Board of Education, 317 F.Supp. 103
(M.D. Ala. E.D. 1970) . „.....................................  56,57,62

Milliken v. Bradley, 53 L.Ed 2d at 756 .................................  63

Morgan v. Kerrigan, 509 F.2d 599 (1st Cir. 1975) ....................... 60

Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974) ....................... 60

Norris v. State Council of Higher Education, 327 F.Supp.
1368 (E.D. Va.), aff'd per curiam, 404 U.S.907 (1971) ............  51

Plaquemines Parish Commission Council v. United States,
416 F.2d 952 (5th Cir. 1969) ......................................  69

Page

IV



Rogers v. Paul, 382 U.S. 198 (1965) ............................ ........  60

Rolfe v. County Board of Ed., 391 F.2d 77 (6th Cir. 1968) .............  66

Sanders v. Ellington, 288 F.Supp. 937 (M.D. Tenn. 1968) ............ Passim

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 18, 28 L.Ed 2d 554, 91 S.Ct. 1267 (1971)........  54,58,60,63

United States v. Board of School Commissioners of 
the City of Indianapolis, Indiana, 503 F.2d
68 (7th Cir. 1974) ................................................  69

United States v. Choctaw County Board of Education,
417 F.2d 838 (5th Cir. 1969) ......................................  69

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) ......................................  60

United States v. Montgomery County Board of
Education, 395 U.S. 225 (1969) .................................  60,69

United States v. Swift & Co., 286 U.S. 106,
52 S.Ct. 460, 76 L.Ed 999 (1932) ..................................  69

Other Authorities:

National Board of Graduate Education, MINORITY GROUP 
PARTICIPATION IN GRADUATE, National Academy
of Science, June 1976 .............................................  56

42 Fed. Reg. 40,780, 40,784 (1977) .....................................  61

Page

v.



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

Nos. 77-1622 & 1624

RITA SANDERS GEIER, et al.,
Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor, 
Appellee,

RAYMOND RICHARDSON, JR., et al.,

Plaintiffs-Intervenors, 
Appellants,

vs.

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

Defendants-Appellees, 

UNIVERSITY OF TENNESSEE, et al.,
Defendants-Appellees,

BRIEF FOR PLAINTIFFS-INTERVENORS, APPELLANTS RICHARDSON, et al.

Questions Presented

In a civil rights action where officials of the State of Tennessee 

have refused to effectively dismantle a de jure segregated public higher 

education system in which black students are provided with unequal educa­

tional opportunity, and black faculty, administrators and staff are provided 

with unequal employment opportunity in spite of 9 years of litigation and 

court orders requiring conversion to a unitary system



1. Whether the lower court erred in declining to order meaningful 

state-wide desegregation of traditional white institutions to increase the 

access of black students to and the employment of black faculty, adminis­

trators and staff in the State's public higher education system?

2. Whether the lower court erred in ordering merger of the State's 

historic black institution with a nearby predominantly white institution, 

developed during the litigation, and ordering defendant Board of Regents to 

prepare and implement a plan of merger,

(a) without further evaluating and supervising the preparation 

and implementation of the specific elements of the plan in order to deter­

mine if its judgment is being enforced?

(b) declining to consider objections to the merger plan and its 

implementation and motion for further relief for the reason that it was 

without jurisdiction to enforce its judgment on merger pending appeal?

VStatement Of The Case

This class action to dismantle the State of Tennessee's dual system 

of public higher education was filed May 21, 1968 (R. 1, A. ). Original 

plaintiffs, black and white citizens of Tennessee, including students and

1/ References are to the Record on Appeal (hereinafter "R.", the separate 
Record on Appeal on UTN's stay motion (hereinafter "S.R.", the Joint 
Appendix (hereinafter "A."), and the Transcript of September-October 1977 
Proceedings filed at R.313 (hereinafter "T" with pages in Volumes II & III 
preceded in Roman numerals). Trial exhibits of plaintiffs-intervenors are 
referred to as "PIX"; the United States as "GX," and defendants as "DX."

The opinion and judgment of the court below is reported as Geier v. 
Blanton, 427 F.Supp. 644 (M.D. Term. 1977). Earlier decisions are reported 
as Sanders v. Ellington, 288 F.Supp. 937 (M.D. Term. 1968) and Geier v . 
Dunn, 337 F.Supp. 573 (M.D. Term. 1972). For the convenience of the Court, 
references to these decisions are made to pages of the reports.

- 2 -



faculty of Tennessee State University and the University of Tennessee, 

Nashville sought, to enjoin inter alia, (1) construction and expansion of 

the Nashville Center of the predominantly white University of Tennessee, 

Nashville (hereinafter "UTN") which would duplicate the role, and endanger 

the existence and development of nearby Tennessee State University (herein-
27

after "TSU"), the historic state-supported college for black persons;

(2) maintaining racially segregated institutions of higher education in

Nashville; and (3) provision of unequal education facilities. The United

States intervened on behalf of plaintiffs to enjoin the UTN Center facility,

and to require a plan to eliminate the state-wide dual system (R. 33, 34,

A. ,). Plaintiffs-intervenors Richardson, et al., black students, parents

and faculty, sought to intervene July 31, 1972 to intervene in order to

enjoin, inter alia, continued operation of the dual system; construction of

racially identifiable institutions; discrimination against black faculty,

administrators, and staff; and denial, limitation or restriction of access
3/

by black students (R. 86, A. ,)

Defendants are the various bodies and officals who control Tennessee 

public higher education in Tennessee, notably (a) the University of Tennes­

see (hereinafter "UT) with campuses at Knoxville, Chattanooga, Martin, 

Nashville, and Memphis (Medical Center); (b) the State Board of Regents of 

the State University and Community College System (hereinafter "Regents") 

of 6 universities —  Austin Peay, East Tennessee State, Memphis State, 

Middle Tennessee State, TSU and Tennessee Technological —  and 10 community

2 / TSU was then named Tennessee Agricultural and Industrial State 
University.

3 / Intervention was granted February 23, 1973 (R.103, A. ).

- 3 -



colleges; and (c) the Tennessee Higher Education Commission (hereinafter
i/"THEC") which coordinates and plans all higher education in the State.

It has been clear since 1968 that the dual system of higher education 

originally required by law has not been effectively disestablished; the 

issue over the last 9 years has been the requisites of meaningful desegrega­

tion. The history of the case demonstrates that the lower court has per­

mitted defendants broad discretion and the benefit of the doubt time and 

again, in the framing of relief, and that defendants have consistently 

failed to propose or implement effective desegregation unless required by 

specific court order. Now that the court has ordered the "drastic" but 

proper remedy of merger in Nashville, the court once again has declined 

to evaluate and supervise defendants' preparation and implementation of 

court-ordered desegregation plans. Plaintiffs-intervenors submit that the 

latest orders of the court, which "purposely decline to specify the details 

of the merger" between TSU and UTN, but leave it completely to the discre­

tion of defendant Regents, and which find it "unnecessary to evaluate the 

specific policies and goals" of defendants'statewide desegregation efforts, 

erroneously perpetuate the dual system and delay desegregation.

A. Prior Proceedings

1. Initial Order Requiring Submission of 
Desegregation Plan, 1968_____________

The lower court's initial opinion of August 23, 1968 (R. 53, A. ) 

concluded that "the dual system of education created originally by law has

4/ Defendants originally included, inter alia, the Governor of Tennessee; 
the Commissioner of Education; the State Board of Education and its Chair­
man; U.T, its President, Board and Trustees and Vice-Chairman; and TSU and 
its President. The Regents, established in 1972, was subsequently added as 
a necessary defendant (R. 84, A. ).

- 4 -



not been effectively dismantled," 228 F.Supp. at 940. The court found that 

(a) TSU was "[t]he sole institution for so-called higher learning operated 

by the State of Tennessee for Negroes" id. (b) The historic white institu­

tions did not formally abolish racial requirements for admission until 

1960, and were still "overwhelmingly" white while TSU was "in excess of 99 

percent black," id. (c) "[T]he fact remains that nothing has been done to 

dismantle effectively the dual system so graphically illustrated by the 

enrollment at [TSU]" and "there is no genuine progress toward desegregation 

and no genuine prospect of progress," 288 F.Supp. at 941.(d) On the exist-
Ving record, the court declared that, "I do not find that the proposed 

construction and operation of the University of Tennessee Nashville Center 

will necessarily perpetuate a dual system of higher education" (emphasis 

added), id. Nevertheless the court added, "[i]t may well be that under the 

provisions of what I shall say later in this opinion, this additional 

educational facility in the Nashville area may play a part in the further­
ing of a unitary system."

The lower court then ordered defendants to submit by April 1, 1969 a

comprehensive plan to desegregate Tennessee's higher educational institu-
6/

tions "with particular attention to [TSU]."

5/ There was "nothing in the record to indicate that the University of 
Tennessee has any intention to make the Nashville Center a degree-granting 
day institution,"_id., and the Center's "overwhelming emphasis" was on 
part-time evening programs.

6/ "The failure to make [TSU] a viable, desegregated institution in the 
near future is going to lead to its continued deterioration as an 
institution of higher learning. I think everybody recognized that. 
It is clearly apparent on the record that something must be done for 
that school and that the one thing that is absolutely essential is a 
substantial desegregation of that institution by whatever means can be 
devised by the best minds that the State of Tennessee can bring to it."

228 F.Supp. at 943.

- 5 -



2. Initial "Plan" And Its Implementation, 
1969-1971

On April 1, 1969, defendants filed a "plan" which announced broad 

principles to increase the number of black students at the historic white 

institutions, and the desegregation and upgrading of TSU through the use of 

joint program arrangements with UTN. (R.54, A. ). The district court 

decided December 23, 1969 that it could be neither approved nor rejected 

because "[t]he plan as submitted lacks specificity, in that there is no 

showing of funds to be expended, no statement of the number of students to 

be involved and, most importantly, no time schedules for either the imple­

mentation of the projects or the achievement of any goals," (R. 62, A. ). 

Defendants were directed to file a report by April 1, 1970 "showing pre­

cisely what has been done on each individual item set forth in the plan," 
including specific projected time schedules, id.

Defendant's April 1, 1970 report showed little progress (R.63,A. ).

A report submitted a year later, June 14, 1971 (R. 71, A. ), confirmed 

limited progress in recruitment of black students and no real progress in 

attracting black faculty by the white institutions. As to TSU, its under­

graduate enrollment remained 99.7 percent black, and only a single joint
1/program with UTN had begun.

3. Order Requiring Additional Plans For The 
Desegregation of TSU, 1972______________

On February 3, 1972, the court found "varying results" of desegrega­

tion at white institutions and a "degree of success . . .  in some respects 

disappointing," as to recruitment of black students and faculty (R.77,A. )

7/ Defendants subsequently admitted the joint engineering program was a 
failure and never effective in attracting white students to TSU,427 F.Supp. 
at 654.

- 6 -



337 F.Supp. at 576, the court nevertheless concluded that with the excep­

tion of TSU, defendants are proceeding to dismantle their dual system 

of higher education, taken as a statewide whole, at a constitutionally- 

permissible rate of speed" (original emphasis), 337 F.Supp. at 580, and 

that present programs should be permitted to continue. In contrast, the 

court found no progress being made to desegregate TSU which "remains in all 

practical respects, a black institution," and that "the phenomenon of a 

black Tennessee State, so long as it exists, negates both the contention 

that defendant have dismantled the dual system of public higher education 

in Tennessee, as ordered, by this Court, and the contention that they are, 

in any realistic sense, on their way toward doing so," 337 F.Supp. at 576. 

The court expressly found that "the approach heretofore adopted by the 

State had not worked and, indeed, appears to contain no prospect of 

working" and that "more radical remedies are required" to desegregate 

TSU. 337 F.Supp. at 581

The court then ordered that "defendants submit to the court by March 
15, 1972, a plan to be implemented at the beginning of the 1972 academic 

year, such plan to provide, as a minimum, for the substantial desegregation 

of the faculty at TSU and the allocation to the campus of TSU of programs

which will ensure, in the opinion of defendants, a substantial 'white
8/

presence' on the campus" (original emphasis), 337 F.Supp. at 581. 

Because "conpliance with the above order will not result ia the adequate 

desegregation of TSU", the court further ordered defendants to propose 

"additional methods," including specifically "merger or consolidation of

8 / The court specifically pointed out that the duplicative nursing 
program and the School of Social Work at UTN should be allocated to TSU. 
Only the latter was relocated to TSU.

- 7 -



Tennessee State and U.T.Nashville into a single institution" or curriculum 

consolidation, by August 1, 1972, 337 F.Supp. at 581-582.

4. Implementation, 1972-1976

Defendants filed an interim plan March 27, 1972 (R. 78, A. ) to 

which plaintiffs and plaintiff-intervenors objected, as not conplying with 

the court's order. The court reserved final consideration of the interim 

plan until submission of a report on additional desegregation methods(R.82, 

A. ). Defendants subsequently filed separate and conflicting reports,
V427 F.Supp. at 647, 656. The court did not, however, rule on the interim

plan or the various reports, apparently to assess the actual progress of
10/

defendants' efforts.
Two years later, on February 14, 1974, defendants filed a "Progress 

Report: Equal Opportunity in Tennessee's Colleges and Universities: Fall 

1973" (R. 129, A. ). The next day, the court found that "the progress

9/ THEC submitted a report for all defendants except UT (R. 85, A. ), 
that opted principally for various exclusive program allocations to TSU 
in order to increase the number of white students, and stated that while 
merger was unfeasible at the present time, merger might at some point 
conplete the desegregation progress. TSU separately reported that the 
March 27th interim plan was inadequate to desegregate TSU in light of 
ongoing expansion of facilities and curriculum at UTN, and proposed a 
merger under TSU, id.

Defendant UT separately responded that merger of TSU into the UT 
system would create social and political unrest while merger of UTN with 
TSU would lower the quality of programs at UTN, and opted for "cooperative- 
type programs" as the primary means for achieving desegregation.(R.87, 
A. )
10/ On plaintiffs-intervenors' motion, the court enjoined the construction 
of a canpus of Shelby State Community College in an overwhelmingly white 
residential area in suburban Memphis June 20, 1973 (R.116, A. ). The 
court found that "immediate construction of both the Mid-Town and the Penal 
Farm canpus [in predominantly black and white residential areas, respec­
tively] would be constitutionally inpermissible as tending to promote 
segregation in the State's public institutions of higher learning and would 
be violative of defendants' affirmative duty to dismantle the dual system," 
427 F.Supp. at 648

- 8 -



reported therein has been minimal, particularly at Tennessee State Univer­

sity in Nashville," and directed the filing of proposed interim plans for 

the coming school year, and long range plans for the dismantling of the 

still-existing dual system of higher education (R.130, A. ). Upon con-
11/

sideration of defendants' separate proposed interim plans, objections and

counter-proposals, the court ordered that graduate education programs being

offered by both TSU and UTN be exclusively allocated to TSU as "the minimum

constitutional requirement to be fulfilled immediately," and that other
12/

ways be considered to strengthen the plan.
On July 3, 1974, defendants filed a "Long Range Plan for Achieving 

Additional Desegregation of Public Education in Tennessee" (R. 173,A. ),

which proposed continuation of joint, cooperative and exclusive program 

arrangements for the desegregation of TSU, and goals and timetables for the 

desegregation of traditional White institutions. Plaintiffs-intervenors 

filed an alternative "Plan for the Dismantling of Tennessee's Dual System 

of Public Higher Education" July 31st (R. 172, A. ), providing for

absorption of UTN by TSU, goals and timetable for increasing the state-wide 

number of black students, teachers and administrators, and desegregation of

11/ THEC and the Board of Regents proposed, on behalf of all defendants 
except UT, that TSU be exclusively allocated one of three programs (under­
graduate engineering, undergraduate education or teacher education) for the 
Nashville area. THEC reported that it could not resolve differences with 
UT about the role of UT-N, 427 F.Supp. at 648-649, 656-657. UT rejected 
any exclusive allocation of programs to TSU, and proposed only the con­
tinuation of joint and cooperative programs.
12/ On May 17th, defendant University of Tennessee appealed from the April 
19th order on interim relief, and sought a stay. The court declined a stay 
July 2nd (R. 168, A. ), and the Court dismissed a motion for a stay 
pending appeal August 16th TR. 180,A. ). The appeal was then withdrawn.

- 9 -



the state-wide governance structure.

Again, the Court did not immediately consider the long range plans, 

although a series of progress reports indicated that marked segregation 

continued in Nashville, and that UTN had grown from a small extension 

program of UT to a separate degree-granting institutions with full campus 

status (R.204, S.R.1,A. , ) 427 F.Supp. at 652. The progress reports

also revealed small increases in numbers of black students and faculty at 

traditional white institutions, 427 F.Supp. at 650-651. Defendants moved 

for summary judgment on the basis of the reported gains. The motion was 

denied, and the court scheduled hearings on "the progress heretofore made 

towards eliminating the dual system and the prospects for the success of 

the plan now in effect as compared to the proposed results for any proposed 

plan" (R. 246, A. ).

B. Trial Proceedings

1. Order Requiring Merger of TSU and UTN, 1977 

After 20 days of trial in September and October 1976, the lower court 

issued its conprehensive opinion of January 31, 1977 (R. 258, A. ) and 

its judgment of February 28th (R. 264, A. ). As has been true since 

1968, the issue before the court was "whether the defendants have met their 

constitutional duty to dismantle the dual system of public higher education 

in Tennessee," 427 F.Supp. at 650. We discuss the court's findings and 

conclusions extensively, infra at pp.13 - 49; here we merely summarize

13/

13/ Original plaintiffs also filed a proposal that UTN and TSU be merged 
under UT (R. 186, A. ). The United States filed a response and objec­
tions to defendants' long range plan, essentially another plan, requiring 
the merger of TSU and UTN in 5 years with TSU emerging, as the dominant 
institution. (R. 184, A. ).

- 10 -



the court's key findings in the margin. As a result of the proceedings, 

the Regents was ordered to formulate and file a plan of merger and its 

implementation within 75 days, with " [j Jurisdiction of this case retained 

by the court for the enforcement of this judgment." The plan was filed May 

11th (S.R.9, A. ), and its provisions are discussed infra, at pp. 32 -

33.

2. Subsequent Proceedings
Thereafter, plaintiffs-intervenors submitted objections to various 

provisions of the merger plan and a motion for further relief (S.R.10, 12, 

A. , .), discussed infra, at pp.63 - 70. The district court declined

to exercise its jurisdiction because notices of appeal had been filed

(S.R.ll, A. ). A motion to reconsider was filed (R.279, A. ), and15/
denied July 22nd (S.R.15, A. ). It was explained that" [t]he court 

purposely declined to specify the details of the merger" (eirphasis added).

14/

14/ a) Since the predominantly white institutions were found to be con­
tinuing to make steady progress, the Court deemed "it unnecessary to 
evaluate the specific policies and goals contained in the Long Range Plan" 
(emphasis added) state-wide desegregation, 427 F.Supp. at 651.

b) The existence and expansion of predominantly white UTN, with its 
similar programs, alongside traditionally black TSU have fostered competi­
tion competiton for white students and thus have impeded dismantling of the 
dual system, 427 F.Supp. at 652.

c) The State's approach of utilizing joint, cooperative and exclusive 
program planning and allocation has not eliminated the competition between 
UTN and TSU nor segregated higher education in Nashville, and past failures 
leave little hope for future progress, 427 F.Supp. at 656.

d) At this time, the only reasonable alternative is the merger of TSU 
and UTN into a single institution under a single governing board, 427 
F.Supp. at 657, and merger under the Board of Regents, with UTN supporting 
TSU during a transition period of 3 years offers the best prospect for 
success, 427 F.Supp. at 660.

15/ The United States filed responses and objections to the merger plan 
which also argued that the court had jurisdiction over the merger plan to 
enforce its judgment (S.R.14, A. ).

- 11 -



"After determining that merger was the necessary remedy 
in this case, and ordering that it be done, the details 
were left to the educators of the Board of Regents. The 
plan susbmitted by the Board was timely filed and provides 
for the merger of the institutions by July 1, 1980. Con- 
quently, it does not violate the judgement. Absent a stay, 
the plan should be put into effect."

Thereafter, the lower court denied UT's motion to stay the judgement, 

(R.308, A. ). On October 3rd, the Court of Appeals also denied UT's 

motion for a stay, but ordered the appeals advanced and expedited.

Meanwhile, on June 28th the Regents gave notice to the parties "that 

the State Board of Regents will on July 1, 1977 commence implementation of 

the 'Plan' heretofore filed with the District Court" (R.293, at X "A", 

A. ). On June 29th, the Chancellor of the Regents requested that UTN 

and TSU appoint faculty members from the respective schools to be members 

of 6 implementation subcommittees by July 1st, pursuant to the provisions 

of the plan (R.293, at X "B", A. ). UT replied July 6th that "unless 

and until the Court has ordered us to comply with the plan and its imple­

mentation you have no authority over [UTN] and therefore no power or auth­

ority to order [UTN] to take any action toward implementation of the plan 

which [the Regents] has devised (R.293, at X "C", A. ). On July 7th, 

UT filed a "motion to correct clerical mistake in the record" which sought

to strike the filing May 31st of the Regents merger plan because the court
16/

was said to have lost its jurisdiction (S.R.13, A. ) The court's

order of July 22nd denied the motion as "clearly without merit."

"As to the motion by the defendant, the University 
of Tennessee, to correct clerical errors and pur­
portedly made under Rule 60(a), Fed. Rules of Civil

16/ In its response the Regents, inter alia, sought "the guidance and 
Hlrection of this Court as to that course of conduct to which this Court 
expects said Board to follow" (R.293, A. ).

- 12 -



Procedure, the clerical error alleged consists only 
of the fact that the Clerk marked "Filed" the plan 
which had been ordered by the court. This motion 
is clearly without merit."

(S.R.15,A. ). UT and UTN continue to refuse to participate in implemen­

tation of the merger. The appeals were timely filed (R.271,296,A ).

Statement of Facts

We treat the Nashville and statewide desegregation situations, parts 

I & II respectively, separately because, as the court put it, they are the 

"two prongs of the problem," 427 F.Supp. at 650.

I

Nashville Desegregation Situation

A. The System of Dual Public Higher Education In Nashville 
Has Not been Dismantled.

1. The Continuing Failure to Desegregate TSU and UTN
Perpetuates the System of Dual Public Higher Education 
In Nashville.

TSU was expressly created as an institution exclusively for the educa­

tion of black persons, pursuant to State law requiring racial segrega- 
17/

tion. Thus, Term. Code Ann. §49-3206 (1975) continues to define "[t]he 

function of the Tennessee State University shall be to train Negro students

17/ The Agricultural and Industrial State Normal School at Nashville was 
opened in 1912 for the education of black persons. It gained college 
status in 1922 and was designated as Tennessee Agricultural and Industrial 
State University in 1951. TSU was specifically recognized by the Tennessee 
legislature in 1911 as the State's response to the Morrill Act of 1890, 
which provided funds for the education of black persons. TSU received no 
portion of federal funds for agricultural research until about 1967, and 
received only 1.1% of Tennessee's Morrill Act funds in 1970 (PIX 46, May 
15,1970 Memorandum to Joint Commission of Legislature, A. ). TSU is 
allocated Morrill Act funds by the UT, the original White land grant insti­
tution. (contd.)

- 13 -



in agriculture, home economics, trades, and industry, and to prepare

teachers for the elementary and high schools for Negroes in the state." It

was "[t]he lone institution for so-called higher learning operated by the

State of Tennessee for Negroes," 288 F.Supp. at 940.

The district court found in 1968, and again in 1972, that "the dual

system of education created originally by law has not been effectively

dismantled" and, specifically, that "nothing has been done to dismantle

effectively the dual system so graphically illustrated by the enrollment at
18/

[TSU]," 288 F.Supp. at 940, 942.

In 1976, the lower court again found that "[t]oday, over 60 years

after State's establishment of TSU as an institution for Negroes and over

8 years after the Court's initial mandate to desegregate, TSU's student

population is still overwhelmingly black," and that " [desegregation at
19/

TSU, except for faculty, has been minimal," 427 F.Supp. at 652, 660.

In fall 1976, 92.5% of all students attending regular courses on the TSU

17/ contd.
Article II, Section 12 of the Tennessee Constitution of 1870 forbade 

schools to allow white and negro children to be received as scholars to­
gether in the same school," and §§ 11395 and 11396 of the Tennessee Code 
prohibited the attendance of blacks and whites in the "same school, academy, 
college or other place of learning" and made it unlawful for a teacher to 
allow such mixed attendance.

18/ In 1968, TSU "continued substantially all Negro with a Negro enroll­
ment in excess of 99 percent" (emphasis added), 288 F.Supp. at 940. TSU's 
faculty was predominantly black, and over 95% of all black faculty in State 
higher educational institutions. j_PIX3 at p.72, A. ). In 1972, the find­
ing was that "the student body of Tennessee State is shown as 99.7 percent 
black during the academic year 1970-1971 and its faculty as 81 percent 
black during that period." 337 F.Supp. at 576.

19/ Defendants' February 1976 Progress Report showed that TSU remained 85% 
black and only 12.2% white in fall 1975, and that 74% of the White students 
were actually taking courses in off-campus centers (which had over 80% 
white enrollment)(DX 11 at pp. 38,42,48, A.____,____ ,____ ).

- 14 -



campus were Black and 7.5% White (T.1382, A. ).

UTN, on the other hand, was established as an exclusively white exten­

sion center of UT Knoxville in Nashville in 1947, formally barred black

students until 1960, and did not actually admit black students until
20/

1965, see 288 F.Supp. at 940. UTN remains predominantly white. The court 

found that: "[U]p to this date, the pattern of student enrollment in Nash­

ville has been that white students have overwhelmingly enrolled at UTN, as 

part-time evening students, and that black students have overwhelmingly 

enrolled at TSU as daytime students. This pattern of enrollment does not 

appear to be coincidental but appears to be a vestige of the former state- 

imposed dual system of public higher education in the State of Tennessee," 

427 F.Supp. at 653.

The effect of the dual system has teen unequal educational opportun­

ity. In 1968, the court found that "the failure to make [TSU] a viable, 

desegregated institution in the near future is going to lead to its con­

tinued deterioration as an institution of higher learning," 288 F.Supp. at 

943. In 1976, the record demonstrates that, inter alia, the development 

of UTN has siphoned off students and funds for TSU, see, e.g., T.1452-1453,

II 767-768, A.____,____ ; the State has failed to provide TSU with adequate

funds to fulfill its role as a comprehensive land-grant institution, see, 

e.g., T. 1357-1358, 1450-1452, II 758-762, A.____,____ ,____ ; the State's

20/ "By way of contrast, since the filing of this suit, while UT-N has 
grown from a small extension program of the University of Tennessee at 
Knoxville to a degree-granting institution with full campus status (from 
1,788 students to 5,828 students), UT-N has remained predominantly white 
with 12.7 percent total black enrollment in the fall, 1975. Black faculty 
at UT-N did not advance in 1975; the percentage dropped from 4.3 percent in 
1974 to 4.1 percent in 1975 with the number of black faculty members
remaining at five." 427 F.Supp. at 652 (DX 11 at pp. 37,43, A.____, ____ ).
See also DX's 36,68, A.____,A____ .

- 15 -



plan projects no significant growth for TSU and projects greater growth for

UTN than for TSU, see, e.g., T.1500-1502, A.____; the State has failed to

provide TSU with necessary budgetary resources, see, e.g., T.643-644, II

712, A.____,____ ; no funds have been provided for desegregation aside from

scholarship aid for white students, see, e.g., T.1317-1318, 1364-1369, 

A.____,____ ; and salary disparities exist between TSU faculty and compar­

able faculty at other Regents institutions, see, e.g., T.1428, A.____,

T. Ill 231-232, 238-240, A.____,____ .

2. The Existence and Expansion of UTN Has Inpeded 
Dismantling of the Dual System._______________

The court found that "the existence and expansion of predominantly

white UTN alongside the traditionally black TSU have fostered competition

for white students and thus have impeded the dismantling of the dual
21/

system", 427 F.Supp. at 652.

a. UTN Deprived TSU of the Opportunity To Attract 
White Students Required for Desegregation

The lower court cites defendant THEC's report of July 31, 1972.

"The only successful large scale desegregation of 
formerly black institutions has come by attracting 
adult, largely part-time commuting students, mostly 
enrolling in evening classes. This is the type of 
students that U.T. Nashville has been developed to 
serve, and U.T. Nashville provides the biggest 
competition to Tennessee State in its efforts to 
attract white students."

(R.85 at p.2, A. ), quoted at, 427 F.Supp. at 652. Tennessee's master

21/ In 1968, the court had found that the construction and expansion of 
the UTN Center would not "necessarily" perpetuate the dual system on the 
basis of a record with nothing to indicate that UT had ary intention to 
make UTN a degree-granting institution, 288 F.Supp. at 941. The evidence 
in 1976 that UT had such a purpose was uncontradicted, see, e.g., T II 293, 
A.

- 16 -



plan for higher education, issued by THEC January 1973, acknowledged the
22/

same point that TSU and UTN compete for the same higher education market.

The district court relied on Dr. Elias Blake's, uncontradicted testimony 

that UTN siphons off the kind of white student traditional black institu­

tions, evolving naturally, have been able to attract, 427 F.Supp. at 653.

"If one takes the case of [several] institu­
tions [in] other border states, . . Bowie State 
College in Maryland, . . . Delaware State College 
in Dover, Delaware[,]. . . Lincoln University in 
Jefferson City, Missouri, the kinds of white 
students which first began to consistently to to 
these institutions were commuter part-time working 
students. In each of these three institutions the 
small number of white students that first begain 
to attend were those kinds of students"

(T.257-258,A. ). Historic Black institutions have successfully desegre­

gated only by first attracting working adult, part-time and evening white

students to their campuses in order to lay in order "the base for a con-
23/

tinuing process of dese[gre]gation". By expanding UTN from an extension 

program to a degree-granting institution during the course of the litiga­

tion, the State prevented TSU from tapping its natural market - principally 

white adult commuters - in the Nashville area and achieving "natural" 

desegregation.

22/ "If [TSU] is to prosper, it must attract more white students. The 
most likely source of such students is the commuter group from the 
Nashville area. Unless Tennessee State can draw additional commuting 
students or can recruit Tennessee whites by other means, enrollment is 
not likely to increase significantly." (PIX 3, at p.30, A. )

23/ See, e.g., T.366-367, 373-375, A.____.____  (Blake); T.515-516, A.____
(Godard). The record is also uncontradicted that this kind of "non- 
traditional" student constitutes the growth market for higher education 
to which institutions must have access in order to survive and expand, see,
e.g., T.1402-1403, A (Dr. Frederick S. Humphries); T. II 900-902, A____
(Dr. Alexander W. Astin); T.916-918, A____ (Dr. George W. Brown).

- 17 -



b. UTN Competed with TSU By Offering Similar Programs.

'The best evidence of the competitive nature of the Nashville situation

is found in the similar programs offered by both institutions," which

"have remained predominantly one-race at each institution" as late as fall

1976, 427 F.Supp. at 652.

RACIAL PREDOMINANCE IN COMMON PROGRAMS 
OFFERED BY TSU AND UTN

Program TSU Black/Enrollment UTN White/Enrollment
Nursing 70.9% 75.1%
Engineering— ■ 87.1% 90.9%
Undergraduate

Education 97.5% 79.7%
Arts and Science 
Business

97.6% 80.3%

Administration 98.1% 87.1%
Source: DX's 36, 61 & 68.

The historic pattern of student enrollment in Public institution in

Nashville has been that white students have "overwhelmingly" enrolled at

UTN, as part-time evening students, and black students at TSU as daytime

students.
RACIAL PREDOMINANCE IN UNDERGRADUATE

ENROLMENTS AT TSU AND UTN

TSU Black Enrollment/ UTN Non-Black Enrollment/
Nashville Black Nashville Non-Black

Year Enrollment Enrollment
1968 98.0% 97.4%
1970 97.5% 96.6%
1972 91.4% 90.2%
1974 88.7% 88.2%
1976 86.5% 90.5%

Source: Appendix B, Proposed Findings Of Fact of The United States.t

24/ The Court was "not convinced that [specialized undergraduate engineer­
ing at TSU and general engineering at UTN] are entirely different programs, 
427 F. Supp. at 652 n.18," on the basis of substantial evidence, see, 
e.g.,T.183-185, A. (Dr. Edward I. Isibor);T.1486-1490, A. (Dr. 
Humphries); T. II 98-100,124, A. , (Dr. John W. Prados).

- 18 -



(c) Competition Between TSU and UTN 
Perpetuated The Dual System.

The lower court reviewed the history of the development of UTN to the 

detriment of TSU with the "roughly parallel" situation in Memphis in which 

UT, however, was unsuccessful in developing a similar facility to the 
detriment of Memphis State University (hereinafter "MSU"),427 F.Supp. at 

653. MSU, unlike TSU, is a traditional white Regents institution.

1. "About the same time that the University Board of Trustees 

initiated its Nashville Center, it opened a comparable extension center in 

Memphis, where courses were offered during the evenings primarily for 

working adults," id. Thus, UT-Memphis Center was opened, as an extension 

center in the 1930's at the request of the local Chamber of Commerce (T. II 

924-925, A. ); UTN was opened as an extension center in 1947 in Nash­

ville, also at the request of the Chamber of Commerce, which was then
25/

all-white (T.III 32-35, A. , ).
2. "In the 1950's, MSU . . .began to offer evening programs at its

own campus, located four to five miles from the UT Center," 427 F.Supp. 

at 653 (T. II 929-932, A. ) In the 1950's, TSU began to offer evening 

programs at its campus, located three to four miles from the UTN Center 

(T. , A. ). MSU and UT Menphis Center offered similar courses and were

in competition for Memphis students, and MSU found itself handicapped in 

its ability to compete because a UT degree had greater prestige (T. II 

938-941, A. ). TSU as a segregated black institution could not at the 

time compete for white students served by UTN.

25/ Both Centers offered courses taught by a mostly part-time fadtilty 
which could be used for at most 9 or 12 hours of credit at an accredited 
institution, (T. II 926, A. ), and both were limited to whites.

- 19 -



3. "In the 1960's MSU established a center downtown close to the UT

Center and was able to thwart the granting of resident center status to UT,

which would have made the center more attractive to students," 427 F.Supp.
26/

at 653 (T. II 966-968, A. , PIX 43, A. ). In contrast, the UT 

Board of Trustees authorized UTN to offer up to 2 years of resident credit

in 1960, 3 years of resident credit in 1963 and 4 years in 1965 (DX 72,

A. ) over the protests of TSU. UT did not consider the effect of grant­

ing UTN resident status on TSU nor was arty study made to determine the

racial impact of the upgrading of UTN on TSU (T. II 257-258, 262, A. ,

).
4. In Memphis, concern was expressed about the duplicative of

programs offered at MSU and UT Memphis Center, which eventually resulted in 

the establishment of a Joint University Center (T. II 933-934, 938-941, 

946-960, A. , , ). The Joint Center was created by merger of the

UT Memphis Center and MSU evening programs under MSU' administrative 

control (T. 961-963, A., PIX 43, A. ). In Nashville, TSU protested the

further expansion of UTN (T. , A. ), and the instant lawsuit was

filed to enjoin UTN from constrution and expansion of a new UTN Center. 

TSU was never contacted by UT to develop a joint program on the Memphis 

joint center model (T. 247-250, 295, A. , ).

5. "It is clear from the above discussion that the growth of UT

in _ Memphis was cut off by MSU's efforts to attract a large part of the

26/ A resident center is "a minature campus where courses are offered for 
the most part by full-time faculty members[,] where there would be some 
administrative personnel, a library adequate to cover the books needed in 
the courses offered. . .[and] some student personnel services" (T.925, 
A. ). Like an extension center, the credits count toward a degree at an 
accredited institution, i.e., UT Knoxville.

- 20 -



evening students in Menphis," 427 F.Supp. at 653. In Nashville, LTIN's

growth continued unabated, see, e.g., DX's 73-77, A. ),

The conclusion was that "UT-N and TSU are in conpetition for students 

just as were MSU and the UT-Memphis Centers [and that] [w] ith TSU's black 

history and UT's prestige, this conpetition inevitably fosters dualism," 

427 F.Supp. at 653.

B. Hie State's Approach To Dismantling The Dual System
Of Public Higher Education In Nashville Has Not 
Worked And Contains No Prospect Of Working.

The lower court reiterated its prior finding that the State's desegre­

gation had not eliminated conpetition nor segregation in Nashville, and

that the consistent past failures left little hope for future progress, 427 
27/

F.Supp. at 656. The court made such an express finding for each joint, 

cooperative and exclusive program provided for in the defendants' 1974 Long 

Range Plan, and found that "the hope for future progress is furthermore 

dimmed by the historical inability of the defendants to agree among them­

selves as to the proper course of action," id.

1. The Use Of Joint, Cooperative And Exclusive 
Program Allocations In The Long Range Plan 
Has Proven Ineffective ______

Defendants have persisted in using an approach in their plans that 

"has not worked and, indeed, appears to contain no prospect of working."427 

F.Supp. at 654. The Nashville Area Part of the Long Range Plan designates

27/ See Appendix A hereto which, for the convenience of the Court, sets 
forth Appendix A of Proposed Findings Of Fact Of The United States and pp. 
23-71 of Proposed Findings Of Fact Of Plaintiffs-Intervenors. Both were 
lodged with the court February 1977, and provide accounts of defendants' 
desegregation efforts.

- 21 -



28/ 29/ 30/
certain joint, cooperative, and exclusive program arrangements for 

the desegregation of TSU and UTN (DX 10, Part III, pp. 2-3, A. ). The 

court, however, found that the elements of the Nashville Area Plan have not 
and will not work.

a. Joint and Cooperative Programs

"[T]he joint degree in general engineering between UTN and TSU, is 

admittedly a failure," 427 F.Supp. at 654. A single joint degree for 

general engineering offering at both school was approved by THEC beginning
31/

September 1971. Prior to this program in 1971, UTN had no engineering 

program (T.170-171, A. ). TSU's engineering department, on the other 

hand, has been in existence since 1951, has a national reputation and has 

been accredited since 1972 (T.170-172, A. ). UTN's unaccredited program 

was able to use TSU faculty for teaching and superior laboratory facilities 

for several classes (T.177, A. ). The TSU Dean of Engineering stated 

that he knew of no justification for a separate engineering program at UTN,

28/ "Joint Program Operation This means that the two institutions offer a 
program leading to a joint degree in whch some of the work must be done on 
each campus, and the faculty of both institutions are involved in the 
planning of the program and teaching course. When interinstitutional 
credit courses are involved, the costs and credit hours will be divided 
equally between the participating institutions."

29/ "Cooperative Program Operation. This means that the two institutions 
have agreed to facilitate student exchange of credits, exchange faculty, 
or in other ways cooperate in offering programs. Such cooperative programs 
do not require students to take work on both campuses, but they make it 
easier."

30/ "Exclusive Program Assignment. This means that one institution will 
have the exclusive responsibility of serving all of the students in the 
Nashville area who want to enroll in a public institution in Nashville."

31/ The UT Board of Trustees and UTN unsuccessfully sought a three degree 
option in which a student at UTN or TSU could elect a UTN, TSU or joint 
degree (DX 8,Att.2, 3,A. ).

- 22 -



which permitted white students to choose between similar courses at predom­

inantly white UTN and predominantly black TSU, other than race, and that 

the separate programs created and perpetuated racial segregation in engi­

neering in Davidson County (T.171, 175-176, A. ). The number of whites 

attracted to TSU, was "inconsequential" (T.179, A. )." in fall 1976, TSU 

had 466 engineering students, 394 black, 62 foreign-born and 10 white 

(T.174, A. ). The State admitted the program was a "failure" in 1976 

as a result of (a) the difference in the clientele, i.e., full-time day 

students at TSU and part-time working evening students at UTN, and (b) the

difference between TSU's semester academic calendar and UTN's quarter 
32/

system.

The second joint program, a joint masters in public administration, 

enrolled its first class at TSU for fall 1976. The court concluded that 

"[a]lthough this program is new and cannot therefore be evaluated fully to 

its impact, the Court must take notice of the problems encountered with the 

joint engineering program" 427 F.Supp. at 654. The Court found that "joint 

. . . programs have had no appreciable impact on the desegregation of TSU" 

and that it "must find that the prospects for the program [s'] success are 

not good," 427 F.Supp. at 655. The Long Range Plan does not identify any 

cooperative academic credit programs between TSU and UTN and "cooperative 

programs have no appreciable impact on the desegregation of TSU," id.

b. Exclusive Programs.

Such programs consist of two types, programs "exclusively" assigned

32/ The September 1976 report of the Ad Hoc Committee on the TSU/UTN 
Joint Engineering Program to the Monitoring Committee concluded that the 
program was never effective in "enhanc[ing] the white presence on the TSU 
campus" (DX 8 at p.2, A. ).

- 23 -



during the day to TSU with UTN able to offer the same program after 4:00 

p.m., and programs which can be offered at only one school. With respect 

to "exclusive" programs assigned on the basis of time offered, such as arts 

and sciences, undergraduate education, and engineering, these programs are 

overwhelmingly black at TSU and overwhelmingly white at UT-N, supra at 

p.18.(chart).
With respect to programs exclusively assigned to one institution,

the TSU agriculture and home economics program was 83.2% Black, in fall

1976, with enrollment in the largest department, home economics, 91%

black. Other degree programs exclusively allocated to TSU include business

education, 96.3% black, the allied health program, excluding nursing, 84.6%

black, and the criminal justice program, 95.0% black. The record is

uncontradicted that the programs exclusively assigned to TSU had little

likelihood of attracting white students, see, e.g., T. 249-240, 1356, II
33/

787, A. , , ).

The court concluded that "[t]he only truly successful exclusive 

program is the graduate teacher education program which was given exclu­

sively to TSU by Court Order on April 19, 1974, because an agreement to do 

so could not be reached among the parties," 427 F.Supp. at 655 (DX 11, p. 

46, A., DX 36, A. ). "Although the graduate teacher education program 

assigned to TSU by the Court Order has been the most successful program in 

terms of racial impact, the Long Range Plan [did] not contemplate any

33/ With respect to other exclusive program arrangements, the court
found that several related courses taught at UTN were so similar that the 
term "exclusive program" was not appropriate. Thus, the court was "not 
convinced" UTN's general engineering program was entirely different from 
the specialized engineering degrees exclusively assigned to TSU, 427 F.Supp. 
at 652, see supra at p.18, n.24.

- 24 -



proposal for similar allocations in the other areas [of substantial im­

pact]," 427 F.Supp. at 657.

c. Other Programs

Related to the graduate education program are the off-canpus centers 

which offer extension teacher education in numerous locations throughout 

the Nashville-Davidson County metropolitan area (DX 11, pp. 47-48, A. ). 

Enrollment data concerning the off-campus offerings revealed that over 80% 

of students were white in fall 1975, jh.; available Fall 1976 statistics 

show off campus graduate enrollment at TSU was 96.9% white. The Court 

specifically found that "two programs account for the majority of TSU's 

white enrollees: the exclusive graduate education program and the off-canpus 

centers program," 427 F.Supp. at 656.

The Long Range Plan provides that both TSU and UTN would continue 

to offer the associate of arts degree in nursing during the day as an 

"exception to evening offerings only" at UTO (DX 10, Part III, p.9, A. ). 

TSU's program is 70,9% black, while UTN's program is 75.1% white. The TSU 

black enrollment would be greater but for scholarships made available to 

white (but not black) nursing students, and changes in admission standards 

which had the effect of disproportionately screening out black applicants. 

(T. 90, II 627, 740-641, A. , , ).
The record is uncontradicted that TSU could absorb UTN's duplicative 

program, and that cessation of UTN's program would promote desegregation, 

see, e.g., T. 86, 96-97, A. ,

2. Defendants, Have Evaded Orders To Develop 
A Meaningful Desegregation Plan.___________

a. University of Tennessee

The "division" among and "inability of defendants to agree among

- 25 -



themselves as to the proper course of action" notably the UT's intransig-11/ . • • ,ence, were found to be "historic". ”[I]n the beginning the University of

Tennessee Board of Trustees was completely resentful of any attempt to

give any sort of status whatsoever to TSU " and, in " [t]heir responses

in Court . . . bespoke a disregard for ary authority of the Court, any

thought that the Court had any right to do ary thing about their little

domain, the University of Tennessee at Nashville" (T. 1219-1221, 3314,

A. , ). The court then reviewed the "destructive" division since the

1972 order that resulted in large part from the recalcitrant positions

taken by UT, 427 F.Supp. at 656. With respect to the Long Range Plan,

although "agreement" had been reached and a "spirit of greater cooperation

among the defendants was apparent," "the Court [took] notice that program

allocations have, for the most part, followed the wishes expressed by the
35/

University of Tennessee," 427 F.Supp. at 657. In the various implementa­

tion committees, UTN consistently objected to proposals that would provide
36/

desegregation and develop the strength of TSU.
The record also is clear that UTN was developed from a non-degree 

granting night school to a degree-granting campus with courses in the

34/ Thus, UT and UTN have been separately represented in the action, 
while remaining defendants have been collectively represented by the 

State Attorney General, 427 F.Supp. at 656.
35/ Thus, for example, the Long Range Plan does not exclusively assign to 
TSU the programs suggested by THEC, assigns to UTN the attractive Master of 
Business Administration program, permits white students to register at UTO 
and take courses at TSU through the various joint degree programs, and 
permits continuance of duplicative day-time associate degree nursing 
programs., see supra at pp.21-25.
36/ (PIX 9, letter from Humphries to Nicks dated May 8, 1975, at pp. 1-2, 
A. ); see also, T. 1483-1484.

- 26 -



afternoon and weekends in violation of UT's initial representations to the 

court that UTN would not be developed into a degree-granting day institu­

tion. (T. II 294, A. ). UTN's rate of growth has exceeded that at TSU 

in this period (T. 914,A. ), and UTN now has more registered students 

than TSU (DX 36, 60, A. , ). UTN refused to voluntarily undertake

effective measures to limit its growth; )T. 1358-1360, A. ); at trial a 

compromise agreement limiting UTN's growth was revealed not to be part 

of the Long Range Plan and to have been unilaterally abrogated by UTN 

(T.1843-1953, A. ). It was the finding of the court that "[f]or the 

Board of Trustees of UT to take over the merged institution would mean the 

elimination of TSU as an educational institution," 427 F.Supp. at 660; see, 

e.g., T. 308, A.
b. State Board of Regents and Tennessee 

Higher Education Commission

The Regents and THEC have taken positions in the action at odds with

the interests of TSU. Thus, the Regents and THEC have argued against

merger, while TSU since 1972 has taken the position that merger was pro- 
37/

per. In the Long Range Plan, the Regents and THEC agreed to "program allo­

cations [that] have, for the most part, followed the wishes expressed

by the University of Tennessee," 427 F.Supp. at 657, and never gave TSU the
38/

support given UTN by UT. Thus, TSU President Humphries was reprimand­

ed and advised not to publicly state his support for merger by members of

37/ TSU was expressly refused the right to separate representation of its 
position during the action (T. 1511-1515, A. ), and the court expressly 
took notice of the conflict in positions between the Regents, THEC, and 
TSU, see, e.g., T. 1520-1521, A.

38/ The bodies never conducted a study of or seriously considered the 
possibility of merger as a remedy under the 1972 Order or as part of the 
formulation of the Long Range Plan (T. 647, 730-734, A. , ).

- 27 -



the Regents board (T.1741, A. ); Chancellor Nicks Regents contemplated 

dismissing President Humphries because of his support for merger (T.1741- 

1747, A. ); and following the judgment, Regents and THEC attempted to 

fire President Humphries on pretextual grounds and have put him on proba­

tion, see, infra, at p.33.

The Regents, THEC and their predecessors are largely responsible for

the historic inequality of resources allocated to TSU. All of the experts

agreed on the failure to develop TSU to meet its potential as a land-grant

institution, and the need for remedial allocation of funds to TSU, see,

supra at pp.15-16. The two bodies have never sought such funds, and recently

declined to support special budgetary allocations to TSU for upgrading

of facilities or scholarships, id.

C. The Only Reasonable Alternative To Accomplish
Desegregation Is The Merger Of TSU and UTN Into A 
Single Institution Under A Single Governing Board

In light of the undismantled dual system in Nashville and ineffective­

ness of the State's approach the court expressly found, as it had 4 years 

earlier, that "more radical remedies are required," 427 F.Supp. at 657, 

quoting, 337 F.Supp. at 581.

1. Merger is the The Most Effective Remedy 

Plaintiff-Intervenors' Plan For the Dismantling of Tennessee's Dual

System of Public Higher Education proposed that TSU absorb UTN under the
39/

governance of the State Board of Regents. The United States also proposed

39/ Plaintiffs-intervenors' plan set forth (a) extensive areas of specific 
administrative, faculty and curriculum concern necessary to implementation 
of merger, (b) a proposal to appoint biracial panels of experts to make 
recommendations on the role and scope of the proposed comprehensive insti­
tution, steps required to maximize racial integration and type and level 
of final commitment need to establish TSU as a comprehensive Nashville 
university, (c) a proposal for submission of a specific long range plan for 
the creation of a comprehensive institution, and (d) proposed restrictions 
on competitive programs.

- 28 -



proposed that "the most appropriate way to achieve the merger of institu­

tions in the Nashville area would be to require the defendants to develop a 

plan which would establish TSU as the institution with primary responsib­

ility for serving the higher education needs, both day and night, of the
40/

metropolitan area (R. 172, p.20, A. ).

At trial, expert testimony supported merger as a superior alternative 

to the State's approach. First, "the fact that UTN and TSU were governed 

by different boards was a 'built-in conflict' with respect to the desegre­

gation of the Nashville area, "427 F.Supp. at 458; see, e.g., T. II 757- 

7589, A. ). (Berrian), T. 251, A. (Blake). Second, under the State's 

approach in Nashville conpetition would continue and one school would 

eventually emerge as the dominant institution in terms of size and pro­

grams; merger would be a more efficient remedy, see, e.g., T. 256, A.____

(Blake), T. 1361, A. (Humphries). As Dr. Berrian put it, "to assign 

programs in this way is to play the institutions off against each other and 

to avoid the issue [of] how do you desegregate Tennessee State University" 

(T. II 761, A. ). Third, merger would directly address the problem of 

desegregation and result in one highly desegregated institution, see, e.g., 

T.257),A. (Blake). Fourth, merger was a feasible alternative. Exanples 

of other mergers were presented; Dr. Blake cited an instance of a merger 

of two independent schools in Washington, D.C. (T.304-305, A. ); Dr. 

Humphreys explained the merger of evening programs of UT and MSU into 

the Joint Center under the administration of MSU, supra at p. ; the

40/ The United States suggested that such a plan be implemented over a 
period, not exceeding five years, because "steps must be taken to remedy 
the vestiges of past discriminatory actions, by strengthening TSU to the 
point that it will have adequate programs, facilities and funding to pro­
perly service the Nashville area (R. 184, at pp. 21-22, A. ).

- 29 -



absorption of a black college by the University of Chattanooga prior to its

takeover by UT was cited (T. II 226-230, A. ); and the widespread merger 

of black junior colleges into predominantly white institutions in Florida 

and other southern states was cited (T.1477-1479, A. ). Fifth, merger 

of UTN and TSU would serve educational and economic ends by permitting 

comprehensive and coordinated planning for the state to provide public 

higher educational programs for the Nashville area, some costsaving by 

elimination of duplicative program and administrative items, and more 

efficient use of facilities, see e.g., 427 F.Supp. at 658 (French).

2. Defendants' Experts Agreed That Merger 
Is The Best Long Range Solution_______

Defendant THEC's July 31, 1972 report stated that "a merger of Tennes­

see State and UT Nashville does not appear to be feasible at the present 

time [1972] , although this may be necessary at some time in the future to 

complete the desegregation process and to eliminate duplication and over­

lapping of programs (emphasis supplied)(R.86,A. ), 427 F.Supp. at

657. At the trial, Mr. Walter Armstrong, former THEC Chairman, testified 

that: "I think in the future a point will be reached where a merger might

be a solution. . . My estimate would probably be five to ten [years]"
41/

(T.749-750, A. ). All four of defendants expert consultants on 

the Long Range Plan agreed that merger was the best language solution, and 

one gave several compelling educational and economic reasons for merging 

UTN and TSU, see 427 F.Supp. at 657-658.

With respect to the failure of the Long Range Plan to propose merger,

41/ Mr. Armstrong then testified that merger would evolve naturally under 
the Long Range Plan. (T.750-751, A. ). Dr. Wayne Brown, THEC Executive 
Director agreed (T.1298, A. ).

- 30 -



the court found that:
"The record further shows that the Ad Hoc 

Committee, which developed the Long Range Plan, 
considered the merger of UY-N and TSU, but the 
Committee's members were unable to agree under 
which governing board the new institution should 
be placed. The Committee members therefore 
arrived at the "compromise" of continuing the 
existence of both UT-N and TSU and utilizing 
joint and cooperative programs as the "approach" 
for desegregating the Nashville area, which plan 
was the strongest plan that the three boards 
could agree upon."

427 F.Supp. at 659 (T. II 782-783, A. ), see, e.g., GX 9 at Deposition

of Johnella H. Martin, pp. 16-17. The Long Range Plan was a "consensus

plan" and "the only plan that consensus of the governing board membership

[of UT and the Board of Regents,] their heads and the commission could be

reached" (T.896-899,A. , GX 9, deposition of Dr. Wayne Brown at pp.23,40
42/

(A. )
The court then proceeded to make several findings as to the form of 

the merger. First, the court determined that there should be one governing 

board for the single Nashville institution. Second, the governing board 

should be defendant Board of Regents as sought by plaintiffs-intervenors

42/ Although the consultants recommended that as a first step in the 
formulation of the Long Range Plan there be an indepth study of the role 
and scope of the Nashville institutions, including the possibility of 
merger, no such study was ever conducted (T.623-624, 647 A. . )

The chief factual reason given by defendants for the Long Range Plan 
not proposing merger— that the approach of joint, cooperative and exclusive 
programs should be tried, that merger would create disruption, and that 
white flight would result if merger under TSU is effected— were all speci­
fically rejected by the lower court as unsupported by any evidence in 
the record, and speculative, 427 F.Supp. 659. On the other hand, all 
expert witnesses believed that merger was an acceptable approach for 
desegregating Nashville, and most believed that merger is the best long 
range solution and that eventually there will be one institution in Nash­
ville, id.

- 31 -



and the United States. Third, as to the other specifics of merger, the 

Court found that "merger under the Board of Regents, with UTN supporting 

TSU during the transition period, as suggested by the witness Dr. Albert H. 

Berrian, offers the best prospect for success," 427 F.Supp. at 660.

D. The Regents Plan and Postjudgment Events

The plan states three objectives, i.e., to merge TSU and UT-N; to 

establish a single institution for both day and evening students; and to 

accomplish the foregoing with "maximum participation of various constituen­

cies involved" and "minimum disruption of the educational process" (S.R.9,

A. ). In order to achieve these objectives, the plan sets forth certain
44/ 45/

directives and guidelines, establishes an implementation organization

43/

43/ The court rejected the proposal on plaintiffs-intervenors that imme­
diate merger should be directed because "such precipitate action might well 
result in needless disruption and possibly the temporary loss of some 
educational services to the Nashville area" and further found that "the 
merger should be completed within three (3) years from July 1, 1977, 427 
F.Supp. at 660. There was a conflict in the evidence in the record on the 
issue of whether an immediate merger was practicable.

44/ These are 17 basic principles to guide the committees and officials 
charged with developing and implementing merger, and include: hiring of 
faculty; purchase of materials in the pre-merger period; academic require­
ments; degree expectations and role in student affairs of former UT-N 
students; faculty policies, including job security for UT-N faculty and 
representation in the expanded USU's faculty senate; policies to be estab­
lished regarding administrators and other non-instructional staff; funding 
for the expanded TSU programs to be offered and physical facilities; 
post-merger study of the need to expand the role and scope of TSU.

45/ 13 implementation subcommittees, which will review the existing 
situation and formulate merger procedures in a specific area. The reports 
of the sub-committees will be reviewed by an Executive Review Committee 
composed of the TSU President, the UTN Chancellor of UTN, and the Associate 
Vice Chancellor for Academic Affairs of the Regents staff in his role as 
"Staff Director for the Implementation, as Chairman". The Executive Review 
Committee will in turn report to the Regents Chancellor of the Board of 
Regents. Following his review the reports will be submitted to the Board 
of Regents and to an Implementation Committee with general "authority to 
supervise the merger of TSU and UT-N." Reporting regularly to the Board of

(contd.)

- 32 -



sets a timetable, and describes an administrative structure for the
47/

merged institution.
48/

Defendants Regents and THEC have falsely charged TSU President 

Humphries with mismanagement and funding irregularities, and caused 

impoundment of $475,000 of TSU's 1977-78 budget. The stated reasons for 

this course of action are pretextural and have inter alia, hindered the 

merger ordered by the lower court, downgraded the integrity and reputation 

of TSU and President Humphries, subjected TSU and President Humphries to 

retaliation for supporting the merger remedy, and subjected TSU and Presi­

dent Humphries to racial discrimination (S. R. 15, A. ). Subsequent to

45/ contd.
Regents and the Monitoring Committee, the Implementation Committee will 
seek approval from the Regents for any changes in the plan. The Staff 
Director for the Implementation will carry out the directives of the 
Implementation Committee and the Chancellor. Finally, the plan for merger 
provides for a Bi-racial Advisory Committee.
46/ Each sub-committee is to undertake a review of the existing situation 
in its area of concern. For some sub—committees, this review will begin in 
the summer of 1977; for others, the review process will begin in the early 
part of 1978. The review will take from 4 to 6 months depending on the 
sub-committee. The next step is for each sub-committee to develop a plan 
for the implementation of the merger in its particular area, in 6 months 
for two sub-committees and 10 or 11 months for the others. A review 
process is then contemplated of 1 to 3 months with implementation of each 
area of the merger generally occurring in the summer and fall of 1979.

47/ Through narrative and organizational charts a general description is 
provided of the higher level administrative structure. The actual develop­
ment of an organizational plan for the expanded TSU is to be undertaken by 
the Regents Chancellor with the Regents staff and the merger implementation 
structure described in the second part of the plan for merger. No time­
tables for the development of this plan are provided. Additionally, the 
plan provides for the postponement of the selection of the President and 
other administrators of the expanded TSU until a time uncertain subsequent 
to the implementation or completion of the merger.

48/ There are no findings of fact on the post judgment events, which are 
taken from unrebutted assertions of plaintiffs-intervenors (S.R.10, A. ), 
as supplemented by the Affidavit of Sterling Adams, attached herto as 
Appendix B.



the filing of plaintiffs-intervenors' objections and motion for further 

relief, defendants encouraged President Humphries to resign, and the 

Regents considered (but deferred) President Humphries' discharge and put 

him on probation.

II.

Statewide Desegregation Situation

A. The Statewide System of Public Higher Education 
Is Still Substantially Segregated.

1. Segregation of Students

The district court concluded that there has been a "steady increase in
49/

black enrollment at the predominantly white institutions" However, the 

more refined analysis of the data underlying the district court's finding 

set forth below shows that Blacks are still isolated in a few institutions 

and that many of the traditionally white institutions are still substan­

tially segregated.

Percentages Of Blacks Enrolled In Traditionally 
White Institutions By System And By Institution 
(TSU Excluded)

Reqents Universities 1969 1970 1971 1972 1973 1974 1975

APSU 5.8 6.2 7.6 7.8 9.1 11.9 13.0
ETSU 1.6 1.8 2.2 2.2 2.7 2.0 1.9
MSU 10.2 10.7 12.1 12.6 11.0 13.9 14.8
MTSU 2.6 3.0 3.2 3.8 4.6 5.4 6.2
TTU 0.8 1.3 1.4 1.5 1.6 1.9 2.0

Total 5.4 5.9 6.7 6.5 6.8 8.4 8.9

49/ 427 F.Supp. at 650. The Court's diagram, derived from DXll, Progress 
Report of February 13, 1976, shows only cumulative year-by-year percentages 
of black students enrollment in all institutions, with and without TSU.

- 34 -



Community Colleges 1969 1970 1971 1972 1973 1974 1975

Chattanooga — — — — 12.6 20.8 17.8
Cleveland 3.4 10.7 8.9 7.1 6.5 5.5 4.8
Columbia 8.8 8.2 11.5 9.9 9.3 9.6 7.4
Dyersburg 5.1 13.3 17.1 16.3 16.7 10.9 14.3
Jackson 12.1 10.3 12.9 10.5 10.1 13.0 16.4
Motlow 6.2 5.9 6.2 5.9 5.6 5.7 5.1
Roane — — 3.4 4.8 3.1 2.6 2.9
Shelby — — — 60.4 62.6 59.3 66.3
Volunteer — — 10.9 7.6 5.4 4.4. 4.9
Walters — 3.1 4.0 5.4 4.6 3.2 2.4

Total 7.4 9.3 9.6 13.4 16.0 17.8 18.0

University of Tennessee

UTC 7.0 7.2 8.4 7.6 8.5 8.3 8.8
UTCHS 1.1 1.6 1.5 2.0 2.4 2.6 3.0
UTK 2.4 2.7 2.6 2.9 3.1 3.9 4.3
UIM 3.6 5.0 6.1 6.1 8.5 9.2 10.6
UTN 7.4 5.7 8.7 10.9 10.5 10.5 12.7

Total 3.2 3.6 4.1 4.5 5.1 5.7 6.4

Grand Total 4.6 5.2 5.8 6.7 7.1 8.8 9.7

Source: THEC TABLE I from DX 11, Progress Report of February 13, 1976,
set forth in Appendix C hereto.

Many traditionally white institutions have admitted negligible numbers 

of Blacks, e.q., ETSU, MTSU, TTU, Cleveland CC, Motlow CC. Roane CC, 

Volunteer CC, Walters CC, UTCHS, and UTK. Some institutions have made 

virtually no desegregation progress over the years, e.q., ETSU, TTU, 

Cleveland CC, UTCHS, and some have actually become more segregated, 

e.q., Columbia CC, Motlow CC, Roane CC, Volunteer CC, Walters CC. And 

there is a pattern of segregation of black students at Shelby CC. Some 

institutions, which might appear to have made progress since 1969 were 

enrolling in 1975 substantially smaller percentages of Blacks than were 

present in the population of the counties in which these institutions are

- 35 -



located.
These figures also show that within the three major segments of the

higher educational system, Blacks are concentrated most heavily in commun- 
51/

ity colleges and that the UT system had made the least desegregation 

progress. Community colleges do not grant baccalaureate degrees and are 

generally acknowledged to be inferior to senior institutions (R. 302, 

II 884,A. , ).

50/

Percentage Distribution of Black and White Freshmen 
in The Three Major Systems in 1975.

Total Students Non-Blacks Black
Regents Universities 36.3 35.1 42.1

(TSU - 5.0 (TSU - .93 (TSU - 24.9
Other - 31.3) Other - 34.2) Other - 17.2)

Community Colleges
35.8 34.4 42.6

UT 28.1 30.7 15.3

Source: THEC TABLE II from DX11 Progress Report of February 13,
1976, set forth in Appendix C hereto.

White students in public higher education are almost equally divided 

among the three systems and are twice as likely as Blacks to be found on UT 

campuses. The greatest number and percentage of black freshmen who entered 

public higher education in 1975 were enrolled in the community college 

system, with 62.3% of these community college students at the majority

50/ ASPU 13.0% 1975 black enrollment (17.0% 1970 county black population); 
MSU 14.8% (36.8%); MTSU 6.2% (12.0%); Columbia CC 7.4% (18.5%); Jackson CC 
16.4% (31.1%); Volunteer CC 4.9% (7.6%); Walters CC 2.4% (5.6%); UTC 8.8% 
(15.9%); UTN 12.7% (19.6%). Source: 1970 U.S. Census, see also GX 6.

51/ By order of June 20, 1973, the trial court enjoined defendants from 
constructing campuses of Shelby State Community College at two sites in 
Memphis. The Court found that the establishment of such campuses would 
perpetuate the dual nature of higher education in Tennessee, since they 
would tend to promote segregation by virtue of their locations. See supra 
at p.8, n.10.

- 36 -



black Shelby Community College. Of the postsecondary black students, more 

were enrolled at Shelby CC (26.5%) than at TSU (24.9%) and together they

accounted for 51.5% of the freshmen who entered in 1975. Thus, if this
. 5 2 /

pattern continues, as defendants project it will, Blacks will increasingly 

be concentrated in community colleges and, within that system, at Shelby 

CC (R. II 884-887, A. ).
NUMBERS AND PERCENTAGES OF BLACKS ENROLLED IN TRADITIONALLY WHITE 
GRADUATE INSTITUTION PROGRAMS IN FALL TERM, 1975 (TSU EXCLUDED)

Regents Law Health Professions Other
Universities No. % No. % No. %

APSU - - - - 23 4.0
ETSU - - - - 14 1.0
MSU 7 1.3 - - 802 16.3
MTSU - - - - 74 4.4
TTU - - - - 7 0.8

Total 7 1.3 920 9.3

University of
Tennessee

UTC - - - - 75 7.4
UTK 9 1.4 - - 295 4.6
UTM - - - - 34 8.5
UTN - - - - 47 8.5
UTCH - - 60 3.0 2 2.6

Total 9 1.4 60 3.0 453 5.4

Grand Total 16 1.3 60 3.0 453 8.4

Source: THEC TABLE III From DXll, Progress Report of February 13,
1976,, set forth in Appendix C to this Brief

The traditionally white graduate schools are still almost exclu­

sively white, particularly in the law and health professions, where Blacks 

constitute only 1.3% and 3.0% of their respective enrollments. Some insti- 

tions have virtually no Blacks enrolled in their graduate programs, e.g.,

52/ See infra, at p.47, n.68. According to 1970 Census data, approxi­
mately 20% of Tennessee's high school seniors and juniors were black. (R. 
Ill 258, A. ).

- 37 -



MSU Law School, ETSU other graduate programs, TTU other graduate pro­

grams, UTK Law School, UTCH other graduate programs.

2. The Segregation of Faculties.

The evidence in the record, which the trial court highlights in its 

decision, reveals that Blacks continue to occupy inferior and unequal 

positions in teaching and administrative capacities in traditionally White 

State institutions. As the district court noted, "efforts to increase 

Black faculty at these predominantly white institutions have been less 

productive . . . "  than efforts to increase black student enrollment. 

Defendants' Progress Report of February 13, 1976 (DX 11, A. ) as set 

forth in the district court's decision, and described as showing "small but 

steady" progress, shows only cumulative year-by-year statistics for all 

institutions, with and without TSU, 427 F.Supp. at 651. When these per­

centages are broken down by system and institution, however, it can 

readily be seen that many traditionally white institutions have made 

minimal progress over the years in desegregating.

53/

BLACK FACULTY AS A PERCENTAGE OF TOTAL (TSU EXCLUDED)*
Regents

Universities 1969 1971 1973 1974 1975
APSU - 1.4 2.3 1.2 1.2
ETSU - - 0.2 0.2 -
MSU 0.2 1.2 3.2 3.6 4.2
MTSU - 0.2 0.5 1.4 1.0
TTU - - - - 0.6

Total 0.1 0.6 1.5 1.8 1.9

53/ In 1976, Memphis State University Law School had only 11
dents out of 520 and only once was any recruitment of Black students from
TSU for the Law School undertaken. (R.198-210, 229-231, A.____,____ ) Cf.,
R.293-294,347-348,A.____,____ . in which Dr. Elias Blake discusses studies
indicating substantially greater increases of Blacks in law schools nation­
ally than increases shown in Tennessee.) In 1974, the University of 
Tennessee Medical School had only 12 black students out of 606. In 1976,
it was projected that there would be 8 Blacks out of 610. (R. 2425, A.____)
The UT Center for Health Sciences in 1974 had 11 black students out of 561; 
1975, they had 12 out of 591; in 1976, there were 11 black students out of 
582 (R.2425, A.____)

- 38 -



Community Colleqes 1969 1971 1973 1974 1975
Chattanooga - - 5.1 5.8 6.8
Cleveland - 1.5 1.3 1.2 1.3
Columbia - 3.5 5.5 6.0 8.3
Dyersburg - 4.0 3.7 4.2 6.7
Jackson 2.0 4.8 5.0 4.9 5.7
Motlow - - - - 2.0
Roane - - - 2.3 3.4
Shelby - - 21.1 18.7 23.1
Volunteer - 3.1 7.0 6.3 6.3
Walters - - - - 1.7

Total

University of 
Tennessee

0.6 2.6 4.6 5.6 7.4

UTC 2.4 3.5 4.0 3.8 3.7
UTCHS 0.2 0.6 1.6 2.2 2.2
UTK 0.7 0.8 1.8 2.4 2.7
UTM 0.5 0.8 1.5 1.6 1.7
UTN
Inst, of Agri-

“ 1.7 3.1 4.9 4.1

culture 5.9 4.6 5.1 5.1 5.0
Total 1.7 1.8 2.6 3.0 3.1

GRAND TOTAL 1.1 1.4 2.4 2.8 3.1

Source: THEC TABLE VII to 
forth in Appendix C

DX 11, 
hereto.

Progress Report February' 13,

♦Includes part-time and full-time faculty
In 1975 the teaching faculties in traditionally white institutions were

54/
96.9% white overall.

Additionally, when THEC Table VII to DX 11, Progress Report of Febru­

ary 13, 1976, set forth in Appendix C hereto, is further examined, it 

reveals the following: (1) In 1975, approximately 82% of all black faculty 

employed in Regents' institutions were segregated at TSU; (2) In 1975,

54/ In fact the faculty in some institutions was over 98% White in 1975, 
e.g., APSU (98.8%); ETSU (100%); MTSU (99%); TTU (99.4%); Cleveland CC 
(98.7%); Motlow CC (98%); Walters CC (98.3%); UTM (98.3%). THEC TABLE VII 
from Defendants' Progress Report of February 13, 1976, set forth in Appen­
dix C hereto. It should be noted that the Table does not break down faculty 
on a part-time or full-time basis, so it is unclear from this evidence 
whether proportionally more Blacks than Whites are employed part-time.

- 39 -



of all black faculty employed in community colleges were concentrated at 

Shelby State; (3) In 1969, 94.1% of the total faculties were white, and 

in 1975, that remained the case; (4) In the Regents institutions, propor­

tionately fewer Blacks are in teaching positions in 1975 than there were in
55/

1969; (5) UT, which employed 3,500 faculty members in 1975, had a 96.9% 

white faculty;(6) As is the case with respect to black student enrollment 

patterns, the figures show that the proportionally greatest amount of 

desegregation among the systems has occurred in the community colleges, 

where it is acknowledged that status afforded such faculties is lower than

at senior institutions. (R. 302-303, A____). In 1969, their faculties were

99.4% White, in 1975, they were overall 92.6% White. No such concomitant 

increase in black faculty in senior institutions is shown by the evidence.
3. The Segregation of Institutional Personnel.

With respect to desegregation of institutional administrative person­

nel, THEC Table IX from DX 11, Progress Report of February 13, 1976, and 

forth in Appendix C to this Brief, shows the following: (1) In 1969, of 

922 administrators employed in all Tennessee institutions of higher educa­

tion, TSU excluded, 906 were White or 98.3%. In 1975, of 1,506 administra­

tors employed at all Tennessee institutions of higher education, TSU ex­

cluded, 1,419 were white or 94.2%. (2) In the Regents system in 1969, of 

238 administrators, TSU excluded, none were black. In 1975, of 456 admin­

istrators, TSU excluded, 18 were black or 4%. (3) The Regents system in 

1975, TSU excluded, had 96% white administrative personnel; community

55/ In 1969 at 6 Regents universities, including TSU, there were 1,897 
faulty members of whom 231 were black. Between 1969 and 1975, 558 new 
positions were added to the system, but only 2 additional black faculty. 
So that in 1975, there were 2,490 faculty employed in the system and 233 
Blacks. (R.299-301, A. ____)

- 40 -



colieges had 89.2% white administrative personnel; and UT had 94.2% white 

administrative personnel. (4) The following institutions had white segre­

gated administrative personnel of over 98%: ETSU (98.7%); MTSU (98.9%; TTU 

(98.7%); Cleveland CC (100%); Columbia (100%); Roane CC (100%); Walters CC 

(100%); UTM (98.5%); UT Institute of Agriculture (100%).

In sum, many traditionally white institutions, as the foregoing 

analysis demonstrates, were almost exclusively white and segregated in 

their institutional administrative ranks as late as 1975.

4. Segregation of Non-Institutional Administrative Personnel.

With regard to non-institutional administrative personnel, by refer­

ence to THEC Table XI from DX 11, Progress Report of February 13, 1976, 

set forth in Appendix C hereto, the following salient points should be made: 

(1) The State Board of Regents is the least segregated body as compared 

with UT Central Administration and THEC staff. In 1975, the Regents was 

90.8% white; UT Central Administration was 98.7% white; the THEC staff was 

94.1% white; (2) Ihe State Board of Regents and the UT Central Adminis­

tration made more progress between 1974 and 1975 in desegregating than the 

THEC, which showed a decrease. However, overall, all of the above bodies 

were substantially segregated in 1975 (97.3% white), as they were in the

years prior. Out of a total of 188 administrators in all three bodies, in
56/

1975 only five were black.

56/ Those figures include all non-clerical and support staff, but do not 
show whether Blacks hold any prominent supervisory positions within the 
administrative ranks. The first black administrative staff member in THEC 
was hired in 1974. (Deposition of Walter P. Armstrong, Jr. at 7) At the 
time of trial it was established that this Black, who was the only Black 
on the THEC staff at the time, was the lowest paid person in his job
category. (R.940, 980-982, A.____,____ ) Other persons in his job category
earned salaries ranging from $10,000 to $18,000 per annum. The black 
staff member earned $8,000 per annum.(R.982, A.____) (contd)

- 41 -



Without desegregating the staff of administrative and governance

bodies, student and faculty desegregation efforts will be less effective,
57/

slower and perhaps ultimately thwarted. The district court, itself, 

properly noted in its decision that the racial composition of higher admin­

istrative positions and governing boards is substantially white and that 

more Blacks should be included in their ranks, 427 F.Supp. at 661.

5. Salary Disparities

There is uncontradicted evidence in the record shewing that signifi­

cant salary disparities attributable to race exist in the Tennessee system.
58/

The testimony of Mr. Mark Killingsworth establishes this clearly. The 

decision of the trial court does not comment on this evidence at all.

56/ contd.
The record also shows that Dr. Frederick Humphries, President of TSU, 

submitted the names of four eminently qualified Blacks for the directorship
of THEC in 1975, but none was hired. (R.1566-1569, A.____). In fact, none
was even interviewed in person. (R.1569, A.____) The present director of
THEC is white. (R.942,A.____).
57/ See R.1466-1470, A____; see also, R.1473-1474, 1716-1725, 2407-2408,
A.____ ,____ ,____ ,____ .
58/ R. 210-245,A____. Utilizing a multiple regression analysis technique,
a widely accepted and acknowledged procedure for isolating salary dispari­
ties attributable to race (R.III 215-222, A____,____ ), Mr. Killingsworth
found that at TSU, the predominantly black institution, there were no 
extant disparities between white and black faculty. However, at tradition­
ally white institutions, depending on the variables controlled for, there 
were significant disparities between salaries paid to Blacks and Whites, 
which disparities were attributable to race. E.g., at the University of 
Tennessee facilities there were salary disparities favoring Whites between 
$208 to $960. At Board of Regents institutions, excluding TSU, there were 
salary disparities favoring Whites between $655 to $737. (R.III 223-227,
A____) His study also established salary disparities favoring faculty
employed at institutions other than TSU. R.III 240,A___ ). He summarized
his findings thusly:

"[T]here is . . .  a salary differential which favors whites over 
blacks, or else faculty outside Tennessee State as opposed to faculty with­
in Tennessee State. There is I think one important exception to that which 
is that within Tennessee State itself there doesn't seem to be any strong 
evidence to suggest that there is a differential of black over white or the 
reverse within the school" (R.240, A.____ ).

- 42 -



6 . Defendants' Future Plans to Desegregate The System.

There was substantial evidence that the defendants' efforts in the

past to dismantle the dual system of higher education have been inept,
59/

non-comprehensive and non-systematized. Certainly the evidence of 

extant substantially segregated institutions in Tennessee ,supra, esta­

blishes that something is wrong with the manner in which defendants have
60/

gone about trying to desegregate.

58/ contd.
Despite the fact that there was substantial notice of the study to be 

made in this regard by plaintiffs-intervenors, and despite generous rulings 
of the trial court, allowing defendants to probe in depth the basis of Mr.
Killingsworth's findings and study methodology (R.III 309-313, A.____),
the defendants did not refute Mr. Killingsworth's conclusions.

59/ See, e.g., Testimony of William Thomas Hill, (R. 24-69,A____) in
which it is explained that a directory of minority group persons who 
might be interested in teaching was first compiled by Counsel for the 
Regents' Defendants in May, 1976, and that in compiling the directory, many 
major predominantly black institutions or institutions with large black
enrollments were not invited to submit names. (R.40-44, A.___). Mr. Hill
didn't know that Michigan State University had a black president, made no 
attempt to include Blacks with degrees lower than MA's in the directory, 
and didn't consult with any person with prior credentials in the area of
recruiting black personnel. (R.50-51,A____). Moreover, the directory was
geared toward 1976 graduates only. (R.56,A____).

Part of the reason for the very low numbers of Blacks projected by 
defendants for faculty and administrative positions in their Long Range 
Plan is due to the fact that defendants utilized the number of Blacks 
possessing doctoral degrees as the standard for projecting the availabil­
ity of Blacks for such jobs. However, in 1973, only 46% of the total 
faculty in Tennessee's public institutions held doctoral degrees. [P1X 3,
THEC Master Plan at 70-71,A____]. At individual institutions the following
% of faculty held doctoral degrees: Austin Peay - 51.8%; Memphis State - 
59.8%; Middle Tennessee - 56.2%. At community colleges, the figures were 
lower still, e.g., Dyersburg State - 7.4%; Cleveland State - 15.3% (GX 
No.7; Def's Answers to Pi's Interrogatory No.l)

60/ One insidious aspect of the traditionally white institutions' "steady 
progress" in recruiting black faculty and administrators alike is that they 
have been drawing numbers of black personnel away from TSU, thereby further 
weakening this already underfunded, understaffed institution. Dr. Elias 
Blake, for example, testified that in the Regents system there has been a 
net gain of but 3 black faculty in 6 years. This was attributable to the
significant decrease of black faculty at TSU (R.261-265,A____) This is at
a time when approximately 1,000 Blacks nationwide are yearly receiving 
Ph.D. degrees. (R. 260, A____).

- 43 -



The district court failed to evaluate "specific policies and goals con­

tained in the [defendants] Long Range Plan." The following discussion 

will point out the salient features of that Plan.
The defendants' Long Range Plan is not sufficiently detailed and 

61/
comprehensive. It is also clear in the record that under the defend 

ants' Long Range Plan establishment of desegregation goals is delegated to 

individual institutions, and standardless, non-judicially approved, modi­

fication of those goals downward, if not met by traditionally white insti-
62/

tutions, is permitted. (R.790, A____)
The defendants' Long Range Plan does not provide for any centralized 

body with enforcement powers to harmonize goals for black student admis­

sions and for the hiring of faculty and administrative personnel. Rather, 

this responsibility is vested in a Monitoring Committee, which has no real

power, as the district court itself acknowledged. (R.660,A____) Moreover,

the Monitoring Committee has no staff and a very nominal budget. (R. 773,

61/ Some of the defendants' own witnesses acknowledged this fact. See,
e.g., Testimony of Dr. James Godard (R.504-506, A____). Dr. Godard, who
was a member of an Advisory Committee to the formulators of the Plan, 
admitted that (a) percentage-wise, he did not know whether the goals set
forth in the Plan were appropriate (R.580-581,A___ ); that he was unaware
of the percentage of black children in the high school graduate population
of Tennessee (R.581,A____); that he was not satisfied that the selection of
the Monitoring Committee involved a bi-racial judgment (R.576,A____); that
he thought there should be a black presence on governing Boards in the
State (R.637,A____); and that he did not know the basis for projected
black faculty student goals. (R.577, 655,A____,____ .
62/ Plaintiffs-intervenor's Plan, (PIX 2 and 2a,A____,____ ), which also
was not critically reviewed by the district court, by way of contrast, set 
specific goals for desegregation of these facilities, subject to judicially 
reviewed modification,which can meaningfully serve as a benchmark against 
which to assess progress or the lack thereof. Moreover, the timeframes for 
substantial desegregation of the traditionally white instutions are much 
shorter.

- 44 -



A____). There is no state agency which has clear authority to require

compliance with determinations made by the Monitoring Committee on a

statewide basis. (R.1049; II 359,A____,____ ).
The desegregation goals set forth in the Progress Report of February

13, 1976, vary markedly by institution with regard to faculty, students,

and administrators, and are too low and distant, (R.269-271; 275-277;

278-279; II 754-757; III 86-88, A___ ,____ ,____ ,____ ), as a review of the
64/

tables set forth in Appendix C shows.
These tables show, for example, the following overall student dese­

gregation goals for certain traditionally white undergraduate institu­

tions: Regents Universities in 1980-1981: ETSU (96.75% white), TTU (96.39% 

white); Community Colleges: Motlow (96.00% white), Walters (95.75% white); 

University of Tennessee in 1980-1981: UTK (94.20% white).With respect to 

graduate education in traditionally white institutions, they show the 

following desegregation goals for selected institutions: Regents Univer­

sities in 1980-81: ETSU (97.35% white), TTU (97.36% white), MSU Law

63/

63/ Mr. Walter Armstrong, Chairman of the Ad Hoc Committee and a member 
of the Monitoring Committee, testified that the Committee set the goals 
included in the Defendants' Long Range Plan. Mr. Armstrong, as a member of
THEC, in 1971 voted for granting of campus status to UTO (R.807, A____), is
a member of a social club which has racially exclusionary membership poli­
cies (R.696,A____), and was President of the Memphis Board of Education
and inplemented in that regard desegregation plans which became the subject
of subsequent court orders. (R.699-705,A___ ) The members of the Ad Hoc
Committee are members of the Monitoring Committee (R.712,A____). The Moni­
toring Committee was instrumental in decisions to limit the scope of TSU
(R.756, A___ ); and in the setting of the low goals in the Long Range Plan
(R.738,A____ ), and has now been charged by the Court with responsibility
to serve the interests of Blacks in Tennessee with regard to desegregation.

64/ See Appendix C hereto, SBR Tables I-V, UT Tables I-III derived from 
DX 11, Progress Report $f February 13, 1976. Part of the reason for these 
discrepancies is that the defendants utilized different points of departure 
in defining their applicant pools. (R.III 245-264,A___ ).

- 45 -



School (94.68% white); University of Tennessee: UTK Graduate (95% white),

UTK Law (96.4% white),UT Memphis Medical Science (94.5% white), UT Memphis

Medicine (95.2% white) UT Memphis Dentistry (96.0% white).— ^

With respect to overall desegregation goals for 1980-81 for faculty,

the defendants project a goal of 95.1% white at all Regents institutions,

excluding TSU, and of 94.5% white in the UT system. Source; UT Table II,
66/

SBR Table XIII, set forth in Appendix C hereto.

As to desegregation goals for institutional administrators for the 

year 1980, the following is projected by the defendants for selected 

institutions: ETSU (97% white), MTSU (94.6% white), ITU (97% white),

Cleveland CC (96.5% white), Motlow CC (97.5% white), UT Martin (93.8% 

white), UY Institute of Agriculture (100% white). Source: UT Table III,

65/ In terms of achieving desegregation of student bodies in traditionally 
White institutions in line with percentages of Blacks in the Tennessee 
population, the UT graduate education goals for such basically make the 
in-point around the year 2,000. See, e.g., UT Table I, set forth in 
Appendix C hereto. As Dr. Elias Blake, expert witness for the 
United States Department of Justice, stated:

"In each one of those 10 years one is accumulating a large pool of 
black citizens who have no chance of competing in terms of 
professional, [or] political participation in this state with 
white citizens who are already in the system. So that this 
thing has a cumulative impact that continues to bedevil black 
citizens far beyond 1985. In 1985 these people will be in their 
thirties, the people who didn't get in in the fall of '75 and the 
fall of '76 and the fall of '77 and the fall of '78. . . [and] 
the plan acknowledges these people are not going to be in. So in 
the year 2,000 all of these people cannot possibly make the level 
of income, [and] cannot participate in the professional and 
economic life of the state, which is what higher education is all
about anyway." (R.276, A____)

See also, R.II 749-754.

66/ Here again, however, when the above cited sources are carefully 
reviewed, the patchwork nature of the defendants' desegregation goals 
becomes clear, e.g, for the year 1980 - ETSU (98.40% white); TTU (97.40% 
white); Jackson State CC (98.20% white); Walters State CC (97.90% white); 
UT Martin (97.1% white); UT Center for Health Sciences (95.9% white), etc.

- 46 -



SBR Table XII, set forth in Appendix C hereto.

The record establishes that the defendants' Long Range Plan contem­

plates perpetuation of the already marked trend of channeling more black

students into community colleges while minimally desegregating senior 68/
institutions. Yet, the defendants' Long Range Plan does not guarantee 

full transfer rights for Blacks in community colleges to senior institu­

tions, and thereby consigns them to separate and unequal educational

opportunities for the foreseeable future. (R.271-272, II 326,337-344,A.___ ,

)

67/

The Long Range Plan, moreover, makes no commitment to provide scholar­

ship aid to Blacks as an inducement to desegregate traditionally white 

institutions. (R.830,A____) However, expert testimony is unanimous con­

cerning the disproportionate economic deprivation of Blacks (R. 283-285, 

A____,-____ ) and the need for such aid. — '/  (R.352-353,II 861-863, 355-356,

67/ The DX 11, Progress Report of February 13, 1976, contains numerous 
tables purporting to show with respect to 1975 goals, that marry institu­
tions have even exceeded their goals. However, the 1975 goals for many 
institutions were so very low that to have exceeded them does not demon­
strate substantial actual progress in desegregating the system.

68/ It is contemplated with respect to student enrollments that in 1980 
community colleges overall will be 76.8% white, senior Regents institutions 
will be 88.09% white (TSU excluded); and UT institutions will be overall 
91.30% white. See Appendix C to this Brief, Tables OT-I, SBR III.

With respect to faculty projections for 1980 it is projected that 
community colleges will be overall 91.5% white, senior Regents institutions 
will be overall 96.52% white (TSU excluded) and UT will be 94.5% white. 
See Appendix C to this Brief, Tables UT-II, SBR XIII.

This is also the case in terms of institutional administrative ranks, 
e«q« r ty 1980-81 the desegregation goal for community colleges will be 
overall 88.5% white, senior Regents institutions will be overall 95.46% 
white (TSU excluded) and UT will be 92.20% white (Central Administration 
excluded). See Appendix C hereto, Tables UT III, SBR XIV.

69/ As if to highlight the inequity of this omission, the record shows 
that the State funded special scholarships for Whites, without regard to 
financial need, to induce them to attend TSU. Defendants' Witness, Dr.

contd.

- 47 -



A___,____ ,____ ). Without the availability of substantial financial aid

for black students, they simply will be unable to pursue their education.
70/

(R.352, 936-937, II 342-344,A___ ,____ ,____ ).

Finally, the Court did not require the defendants to report to it 

with respect to retention rates of black students in traditionally white 

institutions.— ^ And, although there is evidence in the record tending to 

show the adverse impact of present admissions policies in such institutions 

on black enrollment,— ^the Court did not review those specific policies 

or make findings in that area.See also R.815-817,273-277,11 78-79, 874-875, 
III 886-887, A____, ____ ,____ ,____ ).

69/ contd.
James Godard was unaware of this aspect of the Plan and when advised that 
such aid was not available on an equal basis to Blacks, condemned the De­
fendants' Plan as defective in this respect. (R.648,A ) See also
R.90-91, 109, 285, 938-939, 1121, 1317, 1369,11 368-369 A____,____ ,
__________ t __________ •

70/ It should also be noted here that the defendants' Long Range Plan 
makes no provision for aid to black faculty members to upgrade their 
qualifications. (R.831, A____)

71/ See, R. 106-108, A____, in which the UT Vice President for Academic
Affairs states that UT has not done any recent retention studies to ascer­
tain if there is any disparity, although he concedes that if there were a 
different retention rate betwee black and white students, this would 
mandate studying changes in institutional procedures.

72/ For example, in 1976 Memphis State Law School had 62 Blacks who com­
pleted their applications; 45 were below institutional requirements, 8 were 
accepted out of 17; and 6 were registered. Whereas 26% of white applicants 
who met admissions standards were admitted, less than 10% qualified Blacks
were accepted. (R.295-297, A____) See R.78, A____, in which the UT V.P.for
Academic Affairs admits that UT has not done any study of the racial impact
of its admissions policies and R.86-88,A____, in which it is conceded that
the UT Board has not determined the adequacy of each institution's minority 
recruitment plans.

A comparison of baccalaureate degrees awarded by majority white 4-year 
institutions to Blacks in 1974-75 with Black freshman enrollment in Fall 
1971 and of associate degrees awarded to Blacks in 1974-75 with Black

(contd.)

- 48 -



Summary of Argument 

I
Given the existence of a system of higher education in the State of 

Tennessee that was segregated by law, defendants were charged with the 

affirmative duty to dismantle it as quickly as possible. This requires 

the development and expeditious implementation of a state-wide plan of 

desegregation.

II

The district court must require the immediate adoption of a detailed 

and effective state-wide desegregation plan, and actively monitor its 

implementation to ensure the full integration of higher education at the 

earliest possible moment. The proposal put forward by defendant Regents 

does not adequately provide for integration of students and staff, or for 

the provision of educational services to the discriminated against minor­

ity class. The case should, therefore, be remanded with appropriate

72/ contd.
freshman enrollment in community colleges in 1973 provides clear evidence 
of the need for retention programs, especially at certain institutions: 
APSU 8.4% black freshmen 1971, (6.9% bachelors degrees awarded to Blacks 
1975), ETSU 3.1% (2.2%), MSU 13.0% (10.3%), UTC 9.7% (7.4), UTCHS 5.6% 
(3.7%), DTK 3.4% (2.3%), UTM 7.4% (7.3%), UTN 10.4% (5.8%).

Chattanooga CC 17.5% black freshmen 1973 (9.3% associate degrees 
awarded to Blacks 1975), Cleveland CC 6.7% (5.4%), Columbia CC 10.6% 
(12.2%), Dyersburg CC 19.0% (10.0%), Jackson CC 13.9% (10.2%), Motlow CC 
6.4% (2.2%), Roane CC 3.2% (2.4%), Shelby CC 69.3% (56.3%), Volunteer CC 
4.7% (6.5%), Walters CC 4.7% (2.0%).

Total Community Colleges 20.5% black freshmen 1973 (10.1% associate 
degree awarded Blacks 1975).

Source: THEC TABLE II, DEGREE CREDIT HEADCOURT ENROLLMENT OF BLACK STUDENTS 
IN TENNESSEE PUBLIC INSTITUTIONS: FRESHMEN 1969-75 FALL TERMS and THEC 
TABLE VI, PERCENTAGE OF TOTAL DEGREES AWARDED RECEIVED BY BLACK GRADUATES, 
1973-74 and 1974-75 set forth in Appendix C hereto.

- 49 -



instructions to evaluate the existing record and issue an order assuring 
desegregation.

Ill

With regard to Nashville, the district court properly ordered the 

merger of Tennessee State University and University of Tennessee-Nashville 

However, the actual plan proposed by the defendants for carrying out 

merger is constitutionally deficient on its face and as it is being imple­

mented. Control over merger is left with the white-dominated Board of 

Regents; adequate protection for black staff at TSU are not provided; 

and the present timetable leaves a dual system in place for too long a 

time. Finally, the court below erred in not reviewing, because of the 

pendency of this appeal, plaintiffs-intervenors objections to the imple­

mentation of the plan. Again, a remand with appropriate instructions 

should issue, although here the district court should hold further hear­
ings.

ARGUMENT

I.

Having Found An Extant Dual System Of Public 
Higher Education In Tennessee, The District 
Court Had A Duty To Order Effective Remedies 
To Dismantle The System Now.

In 1968, the district court stated that "[t]he history of public

educational opportunities for Negroes in Tennessee is not a pretty one,"

and documented beyond cavil the de jure nature of racial segregation in
73/

Tennessee public institutions of higher education. The court found
----------------------------  v

73/ 288 F.Supp. at 939

- 50 -



that the response of the State to Brown v. Board of Education was "slow 

and reluctant," and noted that it was not until 6 years after Brown that 

public universities in Tennessee formally abolished their racial require-
25/ments for admission. When the district court issued its 1968 ruling, 

Blacks were still clustered in the predominantly black institution, TSU, 

and the traditionally white institutions were almost totally segregated
25/

at all levels.
In light of this evidence, the Court made a realistic ruling, fully in

accord with established precedent, that
". . .[T]here is an affirmative duty inposed upon 
the State by the Fourteenth Amendment to the Con­
stitution of the United States to dismantle the 
dual system of higher^aducation which presently 
exists in Tennessee."— '

74/

74/ 347 U.S 483, (1954).
75/ 288 F.Supp. at 940. Dr. Brown, THEC Executive Director, conceded the
historical inequality in black faculty hiring and black student enrollment 
practices in Tennessee public institutions of higher education in proceed­
ings before the district court in 1976. (T.948, A.____)

76/ 288 F.Supp. at 940-943.
77/ Id. at 942. See, e.g., Keyes v. School District No.l, 413 U.S.189, 
200 (1973), in which the Supreme Court stated:

". . .[W]e have held that where plaintiffs prove that a current condi­
tion of segregated schooling exists within a school district where a 
dual system was compelled or authorized by statute at the time of our 
decision in Brown v. Board of Education. . .(Brown I), the State auto­
matically assumes an affirmative duty "to effectuate a transition to a 
racially non-discriminatory school system," Brown v. Board of Education.
. .(Brown II), see also Green v. County School Board, 391 U.S. 430, 
437-438 20 L.Ed 716, 88 S.Ct. 1689 (1968), that is, to eliminate their 
school system "all vestiges of state-imposed segregation." Swann v. 
Charlotte-Mecklenburg Board of Education,402 U.S.l, 15, 28 L.Ed 2d 554, 
91 S.Ct. 1267 (1971)."

See also, Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). 
It- is plain that this affirmative duty extends to dismantling dual systems 
of higher education. See,Norris v. State Council of Higher Education, 327 
F.Supp. 1368 (E.D. Va.), aff'd per curiam, 404 U.S. 907, (1971), and the 
cases cited therein.

- 51 -



In the years following the 1968 ruling, numerous desegregation plans 

were developed by defendants and numerous reports showing "progress" or the 

lack thereof were filed. The underlying constitutional violation, however, 

remained. Finally, in 1976, a month of hearings was held devoted to the 

question of what had been done and what should be done to effectuate the 

transition to a unitary system. The upshot of those proceedings was the 

1977 ruling by the district court which, inter alia, (a) approved for state­

wide desegregation purposes a Long Range Plan, prepared by the defendants, 

without reviewing its components and making any specific findings concern­

ing the propriety of its goals and timetables; and (b) ordered the merger 

of TSU and UTN without any scrutiny of the terms and conditions of the 

plan drawn by defendants.The infirmities in the district court's ruling 

as they relate to applicable legal precedent, and our substantive critique 

of the ruling will be set forth in Sections II and III, infra. At the 

outset however, it is important to set forth the broad governing principles 

utilized by the courts in assessing the adequacy of desegregation plans.

The Supreme Court has stated clearly and forcefully that " . . .  

[D]elays [in dismantling dual educational systems] are no longer toler­

able, for "the governing constitutional principles no longer bear the 

imprint of newly enunciated doctrine. . . .The burden on a school board 

today is to come forward with a plan that promises realistically to work

now." Green v. School Board of New Kent County, supra at 438-439; Alexander
78/

v. Holmes County Board of Education, supra. In the instant action,

78/ "Of course, the availability to the . . . [defendants] of other more 
promising courses of action may indicate a lack of good faith; and at the 
least it places a heavy burden upon the . . .defendants to explain . . . 
[their] preference for an apparently less effective method." Green v . 
School Board of New Kent County, supra at 439. Compare Geier v. Dunn, 
supra, 337 F.Supp. at 581, n.14.

- 52 -



the district court has repeatedly ordered defendants to come forth with dese-
79/

gregation plans, but, with one exception, left completely in defendants' 

hands the drawing of specific goals and policies, and steps required for 

implementation. The court simply permitted plans to go into effect without 

reviewing their adequacy or effectiveness until after the fact. The result 

has been, and, we submit, is likely to continue to be, delay upon delay, a 

condition that was "no longer tolerable" in 1968 and is inexcusable now.

Finally, with regard to systems of higher education, the Court of 

Appeals for the District of Columbia has held:"The problem of integrating 

higher education must be dealt with on a statewide rather than a school- 

by-school basis."Adams v . Richardson, 480 F.2d 1159, 1164 (D.C. Cir. 1973).

As a result of this ruling, the Department of Health, Education, and 

Welfare is requiring all states with segregated systems of higher education 

- with one exception - to submit detailed plans to desegregate state-wide. 

The one exception is Tennessee, because of the pendency of the present 

suit. Thus, it can only be through their litigation that the defendants 

may be required to conform with the above well-established legal principles.

II.

Hie District Court Erred In Failing 
To Evaluate The Specific Goals And 
Policies Of Defendants' Statewide 
Desegregation Plan

It is clear from the foregoing Statement of the Facts and from the 

Argument (Section I, supra) that the State of Tennessee has a de jure

79/ The court specifically ordered the exclusive allocation to TSU of the 
graduate education program in April 1974. It was, as the court put it, 
"[t]he only truly successful exclusive program" in defendants' Long Range 
Plan, 427 F.Supp. at 655.

- 53 -



segregated system of public higher education, which the district court 

correctly found violative of the principles enunciated in Brown v. Board of 

Education, supra. It is also clear from the foregoing that the district 

court was manifestly correct in finding that a mere abandonment of racial­

ly exclusionary policies by such institutions does not satisfy applicable 

judicial principles, and that the district court properly required the 

defendants to undertake steps to affirmatively dismantle the extant dual 

system of higher education. Such steps as the defendants have taken to 

dismantle the dual system have been substantially ineffectual: after 9

years of court-ordered desegregation, the dual system is still signifi- 
80/

cantly intact. And, the future plans of the defendants to dismantle the 

dual system provide for too little, too late, and contemplate perpetuation 

of a substantially racially segregated system for the forseeable future, 

and the creation of new segregated patterns in some institutions, particu­

larly at the community college level.

Despite this dramatic showing and its finding that statewide progress 

in dismantling the system "has been slow", the district court found it

"unnecessary to evaluate specific policies and goals contained in the
81/

[defendants'] Long Range Plan." The district court sought to justify 

its failure to comprehensively review the Long Range Plan, the evidence

80/ In Green v. School Board of New Kent County, supra, the Supreme Court 
pointed out that even independent of student assignments, "where it is 
possible to identify a 'white school' or a 'Negro school' simply by refer­
ence to the racial compos it ion of teachers and staff. . ., a prima facie 
case of violation of substantive constitutional rights under the Equal 
protection Clause is shown." Swann v. Charlotte-Mecklenburg Board of Educa­
tion, supra at 402 U.S. 18.

81/ 427 F.Supp. at 651

- 54 —



in the record, and plaintiffs-intervenors' plan, because the 

defendants' plan "appears to be a promising step forward, and under careful

supervision of the Monitoring Committee, should result in future progress."
83/

(emphasis added)

A. The Duty Of The Court

This ruling was erroneous in two specific respects. First, it is

clear, in light of decisions of the Supreme Court, of this Circuit, and of

other courts, that the district court in this case was under a duty to

carefully review all of the evidence b efore it, vague appearances and

expectations of progress notwithstanding. Second, it is obvious that the

district court erred in abdicating its duty to supervise the defendants'

progress by placing that responsibility on the defendants themselves, e.g.,

the defendants' Monitoring Committee.

Without evaluation of specific policies and goals contained in the

defendants' Long Range Plan, the district court could not state with any

assurance that the Plan provides for effective dismantling of the extant

dual system of hiqher education in Tennessee "immediately", as Alexander v.
84/

Holmes County Board of Education, supra requires. Indeed the court 

made no finding concerning whether the system could be dismantled more 

rapidly than the defendants projected. However, the days of "deliberate

82/

82/ PIX 2 and 2a, A. ,

83/ 427 F.Supp. at 661.

84/ In fact, even though Alexander, supra requires that plans sanctioned 
by district courts provide for "immediate" dismantling of segregated school 
systems, it cannot even be said here that the district court made a finding 
that the plan it sanctioned, without review, will assure desegregation "at 
the earliest practicable date" in accordance with the superseded arid less 
stringent standard enunciated in Green v. School Board of New Kent County, 
supra at 439. See also decisions cited in section I of the Argument, supra,

- 55 -



speed" in desegregation are over, as the Supreme Court has held, and
85/

effective plans must assure immediate desegregation.

For example, in Lee v. Macon County Board of Education, 317 F.Supp. 

103, 105 (M.D. Ala. E.D. 1970), a three judge court specifically rejected a 

plan submitted by the defendants to dismantle a dual school system because 

the court appropriately determined -
"that the plans advanced by the defendants 

when implemented would only partially abolish 
the dual attendance areas based upon race. . .
The plans were lacking in specificity as to when 
faculties and student bodies would be desegre­
gated so that the racial identifiability of the 
institutions involved would be eliminated. No 
justification for the continuance of the curri­
cula in the same geographical areas was advanced 
by the defendants in their proposed plans and they 
did not specify how future construction or the

85/ See decisions cited in section I of the Argument, supra at . The 
low faculty desegregation goals reflect both an unwillingness to launch 
sophisticated and aggressive recruitment programs and an unimaginative 
reliance on current national statistics on the scarcity of Blacks for 
teaching positions in non-traditional disciplines. Failing to acknowledge 
the relationship between a substantial increase in Black enrollment in 
doctoral programs and the enlargement of the pool of qualified Black 
academics, the defendants have assumed their responsibility for promoting
neither goal. (R.260,A____) The Long Range Plan contains no commitments
for specific state-funded efforts to increase minority participation in 
the state universities' doctoral programs as a specific technique for 
producing candidates for administrative and faculty positions.

"Universities are in a unique position... They are directly 
responsible for producing the pool of qualified persons 
from which new faculty will be chosen. Universities select 
those individuals who will be admitted to graduate study 
and, as a result of the admissions decision, who may ulti­
mately be employed. This special relationship between the 
availability of qualified minorities and the need for minor­
ity faculty compels universities to assume the primary role 
in implementing efforts to increase minority participation 
in graduate study."

National Board of Graduate Education, MINORITY GROUP PARTICIPATION IN 
GRADUATE EDUCATION, National Academy of Science, June 1976, page 128. 
See R. II at 754, A____.

- 56 -



expansion of facilities, or changes in programs 
or curricula would be used in the desegregation

Nowhere in the decision of the district court in this case is there a care­

ful review of any aspect of the defendants' statewide desegregation Plan.

In Bradley v. Milliken, 540 F.2d 229 (6th Cir. 1976), aff'd, 53 L.Ed 

745 (1977), this Court discussed at length the painstaking efforts of the 

district court to confront head-on the contentions of the parties, to make 

specific findings in support of relief ordered, to rationalize the differ­

ing approaches to remedy advanced by the parties, and then to set forth a 

unified court-ordered plan which seeks to address specific, identifiable 

aspects of the issues presented. In Bradley this Court had a record before 

it which admitted of review of the remedy. In this case, however, this 

Court must piece together from disparate portions of the record what 

the defendants have done and aim to do, as variously interpreted by 

their witnesses, and assess their Long Range Plan, in light of plaintiff- 

intervenors' critique of it, as supported by the record, and in light of 

our counterproposal. No cleancut forthright review of any findings of fact 

and order based thereon can be made because the district court itself has 

not made any findings with respect to the substantial evidence in the

86/ The Lee Court then went on to prescribe a detailed plan to achieve 
desegregation as soon as possible, including provisions (a) prohibiting 
specified types of expansion at traditionally white schools; (b) delineat­
ing attendance zones; (c) requiring interim faculty exchanges; (d) direct­
ing permanent and mandatory faculty reassignments to achieve a balance in 
each institution conparable to the overall Black population ratio in the 
state; and (e) mandating special student recruitment efforts of Blacks. 
There is, by way of contrast, literally nothing in the instant defendants' 
Long Range Plan which is mandatory. Rather, the District Court has left 
them to their own devices, and goals and timetables for desegregation can 
be juggled by individual institutions and the Monitoring Committee as 
they see fit, without prior judicial approval or review.

- 57 -



record, by way of justifying its wholesale sanctioning of the defendants'

Plan. This itself demonstrates why the district court's ruling here is 
87/

erroneous.
Moreover,if the decision of the district court on the statewide issue

is left undisturbed, a dual set of desegregation standards will be approved

— one for the traditionally black institution, TSU, and another for the

traditionally white institutions. For the district court has required

desegregaton of TSU's student body, faculty and administrators at a much

more rapid rate than it has required desegregation of the traditionally

White institutions. And, it has not assessed the impact of its order of
88/

merger of TSU and UTN on statewide desegregation goals as a whole.

"The process of desegregation must not place a 
greater burdon on black institutions or black students

87/ See also, Swann v. Charlotte-Mecklenburg Board of Education, supra, 
in which the Supreme Court stated: "The essence of equity jurisdiction has 
been the power of the Chancellor to do equity and to mold each decree to 
the necessities of the particular case." (emphasis added)
402 US at 15.

It is the precise failure of the district court to review the evidence 
to reconcile the competing claims of the parties, as established by the 
record, which constitutes the error in its ruling. For how can it be said 
that those claims have been reconciled when the district court specifically 
declined to evaluate them?
88/ As the District of Columbia Court of Appeals has noted:

The problem of integrating higher education must be 
dealt with on a statewide rather than a school-by-school 
basis. Perhaps the most serious problem in this area is 
the lack of statewide planning to provide more and better 
trained minority group doctors, lawyers, engineers and 
other professionals. A predicate for minority access to 
quality post graduate programs is a viable, coordinated 
state-wide higher education policy that takes into account 
the special problems of minority students and of Black 
colleges. As amicus points out, these Black institutions 
currently fulfill a crucial need and will continue to play 
an important role in Black higher education. (footnote 
references omitted)

Adams v. Richardson, 480 F.2d 1159, 1164-1165 (D.C. Cir. 1973).

- 58 -



opportunity to receive a quality public higher educa­
tion. The desegregation process should take into 
account the unequal status of the Black colleges and 
the real danger that desegregation will diminish higher 
education opportunities for Blacks."—

Given the lack of meaningfully articulated criteria for the desegre­

gation of traditionally white institutions, reviewed and ordered by the 

district court, as compared to the strictures for desegregation of TSU, in 

light of the merger order, it is fair to say that in a very real sense the 

ruling of the district court has set the stage for diminishment of educa­

tional opportunities for black Tennesseans.

B. Specific Defects In The Statewide Plan

Any appropriate ruling, in light of the evidence in this record, 

would have, at a minimum, addressed the following aspects of the case:

1. Effective Desegregation of Student Bodies

In this case, the district court expressly declined to review the 

goals and timetables set forth in the defendants' Long Range Plan as 

they compare to those set forth in plaintiffs-intervenor's Plan. In 

Bradley this Court clearly recognized and held that a meaningful desegrega­

tion plan should include firm goals and timetables, and educational com­

ponents, including institution of programs for (a) reading and communica­

tion skills; (b) in-service training; (c) testing; and (d) counselling in 

order to redress historical educational deprivation of Blacks. Here, the 

district court did not even make any findings with regard to the appro­

priate overall applicant pools which should be utilized in the setting of

89/ Adams v. Richardson, Second Supplemental Order dated April 1, 1977, by 
the United States District Court for the District of Columbia (unreported) 
at 4, set forth in Appendix D.

- 59 -



desegregation goals.

2. Effective Desegregation of Faculties

Speedy desegregation of faculties is a critical component of any mean­

ingful desegregation plan. See, e.g., Rogers v. Paul, 382 U.S.198 (1965). 

An otherwise adequate plan for desegregation of student bodies will be

rendered inadequate where a plan does not meaningfully address faculty
91/

desegregation. Id. at 382 U.S.200. Yet, here, too, the district 

court failed to review the evidence or the defendants' goals to determine 

their adequacy and propriety, while acknowledging that the evidence showed 

that desegregation efforts re teaching positions in traditionally white 

institutions had yielded minimal results, and that progress had been slower 

in this area than even in the area of student body desegregation.

The record amply shows that the faculty desegregation goals and 

timetables are inadequate. Surely, it was the district court's duty to 

meaningfully address the issue and to order relief that would in fact 

result in the integrating of faculties and assure non-discrimination in the 

hiring, retention and assignment. See, e.g. Morrow v. Crisler, 491 F.2d 
1053 (5th Cir. 1974).

90/

90/ See, supra at p.56 n.85 Cf., International Brotherhood of Teamsters v . 
United States, U.S. , 52 L.Ed. 2d 396 (1977); Hazelwood School Dis- 
trict v. United States,____U.S.___, 52, 53 L.Ed. 2d 768 (1977).

91/ See also, Swann v. Charlotte-Mecklenburg Board of Education, supra at 
402 U.S. 19, 28 L.Ed. 2d 568-569. United States v. Montgomery County Board 
of Education, 395 U.S. 225 (1969); Bradley v. School Board, 382 U.S. 103 
(1965) in which the United States Supreme Court expressly disapproved 
delays by lower courts in confronting questions of the appropriate measure 
of faculty desegregation; United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836, 883 (5th Cir. 1966); cf.; Keyes v. School District 
No. 1, 521 F.2d 465 (10th Cir. 1975); Morgan v. Kerriqan, 509 F.2d 599 (1st 
Cir. 1975).

- 60 -



3. Effective Desegregation of Administrators,
Governing Bodies and Boards._____________

The district court stated that it recognized . .that the repre­

sentation of blacks in the higher administrative positions in the State 

system and on the governing boards is minimal and should be increased." 427 

F.Supp. at 661. However, it rejected "arbitrary appointment" of Blacks as 

"an improper exercise of the judicial function."
First, plaintiffs-intervenors did not urge arbitrary appointments, but 

based on the evidence, minimum goals for the desegregation of these bodies 

with qualified Blacks. As it stands now, the defendants may utilize their 

own self-interested notions of what constitutes adequate desegregation of 

such positions. The importance of the need for integrating these positions 

cannot be overstated, for it is these administrators and governing boards

which make critical planning and implementation decisions for the insti-
92/

tutions of higher education in Tennessee.
In Adams v. Richardson, supra, in which the court ordered HEW to 

develop and enforce guidelines for the desegregation of institutions of 

higher education, those guidelines require state systems to "adopt the goal 

of increasing the numbers of Black persons appointed to systemwide and 

institutional governing boards and agencies so that these boards may be 

more representative of the racial population of the state or of the area 

served." 42 Fed. Reg. 40,780, 40,784 (1977). (While plaintiffs-intervenors

92/ This point is brought home forcefully in the testimony of Dr. Brown, 
Director of THEC, who is white. In seeking to find a qualified Black for 
his staff, he had little idea of how to proceed and wrote to the few 
beleaguered black State legislators to get suggestions. Had there been 
qualified Blacks on his staff, one can reasonably assume that they would 
have had direct contacts in the black community which could have been 
utilized for this purpose. (R. at 1295-1297).

- 61 -



do not necessarily endorse or approve of all of those guidelines, we do
93/

think it appropriate that they be considered in the instant context).

Second the district court failed to distinguish among the types 

of administrative positions for the desegregation of which plaintiffs- 

intervenors seek. It is well established that institutional administra­

tive staff must be deemed part of the faculty and desegregation with appro­

priate goals therefor ordered. See, e.g., Lee v. Macon County Board of 

Education, 453 F.2d 1104 (5th Cir. 1971).
Third, even if the district court found properly that it should not 

require a specific number of Blacks to be appointed to administrative ranks 

and governing boards, it would nevertheless have been appropriate for the 

court to articulate some standards by which the defendants could measure 

how much desegregation in these areas should be undertaken. But this was 

not done.

Ill

The District Court Erred In Failing to Evaluate 
The Specific Elements Of The TSU-UTN Nashville 
Merger Plan, And In Failing To Supervise 
Implementation Of The Plan

The lower court properly found that "[m]erger is a drastic remedy, 

but the State's actions have been egregious examples of constitutional

93/ The Adams v. Richardson, supra, decision should also be examined in 
this case because it mandates HEW to take a statewide approach to desegre­
gation of institutions of higher education, in light of the burdensome and 
ineffective nature of having different desegregation goals for each 
separate institution in a given state system. Id. at 1164-1165. In the 
instant case, the defendants have adopted differing desegregation goals by 
institution and have utilized those institutional goals to establish 
amalgated statewide goals. However, since individual institutional goals 
can be modified by the defendants as they see fit under their Long Range 
Plan, it is impossible to say that there is any firm statewide desegrega­
tion goal in place.

- 62 -



violations." However, it was error for the court then to "purposely 

decline[ ] to specify the details of the merger", to fail to evaluate 

and supervise the merger proposed by defendant Board of Regents.

A. Merger of TSU and UTN was A Proper And Necessary
Equitable Remedy For The Egregious Constitutional 
Violations Found By The District Court.__________
The continuing perpetuation of a dual public higher education system 

in Nashville has been an open and notorious constitutional violation that 

justifies the lower court's characterization as "blatant" and "egregious," 

427 F.Supp. at 660. The record also clearly justifies the remedy of 

merger. "Once invoked, 'the scope of a district court's equitable powers to 

remedy past wrongs is broad, for breadth and flexibility are inherent in 

equitable remedies,'" Milliken v. Bradley, supra, 53 L.Ed. 2d at 756, 

quoting, Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. 

at 15. Moreover, the lower court acted only after the State was put on 

notice at least since 1972 that "more radical remedies are required", 337 

F.Supp. at 581 and tried and failed to dismantle the dual system by other 

means, as set forth at length in the Statement of Facts.

B. The District Court Erred in Approving A Plan 
For The Desegration of TSU and UTN That Does 
Not Immediately and Effectively End The Dual 
System of Higher Education in Nashville.
As discussed in Part I, once a system of segregated higher education 

has been shown, it is the duty of the school officials to dismantle it 

immediately and without delay, and the duty of the district court to 

require a plan which will most effectively end the dual system as quickly 

as possible. In the Statement of the Case and Part I of the Statement of 

Facts above, we have set out the long history of delays and evasions on the 

part of defendant school officials in effectively dismantling the dual

- 63 -



system of higher education in Nashville. Indeed, during this period UTN was 

allowed to grow and develop and become a competing institution with TSU.

Thus, in effect, for a substantial portion of the period since a con­

stitutional violation was found, the dual system was not only not dis­

mantled but encouraged. This is in sharp contrast with the situation in 

Memphis, where atternpts to institute a branch of the University of Tennes­

see that would have been in competition with the white Memphis State 

University were beaten back, and the two institutions merged with effective 

control placed in the hands of Memphis State University. In this case, in 

contrast, as discussed below, both the plan developed by the Regents and 

its implementation are seriously deficient. The failure of the district 

court to review the actual implementation as requested by plaintiff- 

intervenors and to ensure that the dificiencies are corrected, must be 

remedied by this Court. Indeed, the "plan" is in fact only a proposal for 

eventual development of a plan in two years, not a clear and specific plan 

of action now.

1. The System of Governance of TSU-UTN is Defective

A basic principle in school desegregation cases, is that the burden of 

ending an unlawfully segregated system must not fall on black pupils and 

staff. Rather, remedies must be developed that will at least adequately 

share the burdens, and ensure that Blacks do not suffer further disadvan­

tages because they have taken steps to end and unconstitutional system of 

education. See, e.g, Green v. School Board of New Kent County, supra. The

plan for merger of TSU-UTN, both in terms and in implementation, violates
94/

these basic precepts.

94/ Indeed, the heavier burden of desegregation has always fallen on TSU, 
see supra at pp.58-59.

- 64 -



Although purportedly the ultimate goal of the plan developed by the 

Regents is to have TSU the dominant institution in Nashville, in fact, 

substantial control over the merger and the future of TSU is left in the 

hands of the white dominated Regents. For example, extraordinary decision­

making power is given to Regents Chancellor Nicks, rather than the TSU

administration, and the implementation organization contemplates a consoli-
95/

dation of two coequal institutions rather than a merger of UTN into TSU.

This organization scheme is contrary to the holding of the lower court that

"merger under the Board of Regents, with UT-N supporting TSU during the

transition period, as suggested by the witness Dr. Albert H. Berrian,

offers the best prospect for success," 427 F.Supp. at 660. Instead, TSU

has a mininal role, and defendant Chancellor has conplete discretion over

"expanded TSU," although he has indicated the intention to downgrade TSU

and its black administration, see supra, took positions opposing merger

and the legitimate interests of TSU at the trial, and is the former UTN

Chancellor. The record is replete with expert opinion that TSU not be

adversely affected by merger, and that TSU be in charge of any merger 
96/

under the Regents.

95/ Thus, Section 1 Guidelines give Chancellor Nicks express power of 
approval over, inter alia, appointments of new faculty (Guideline 11), 

library and equipment purchases (Guidelines 12-13), transfer of UTN facul­
ties (Guideline 15), and appropriation requests (Guideline 16). Under Part 
II of the Regents Plan, Chancellor Nicks has (a) power to appoint the 
majority of the Implementation Committee of the Boards and the Commission 
and the "Implementation Committee will exercise its authority through the 
Chancellor;" (b) the Associate Vice Chancellor for Academic Affairs of the 
Board of Regents staff is assigned the roles of Executiver Review Committee 
Chairman and Staff Director for the Implementation; (c) the Chancellor is 
to review the reports of the Executive Review Committee on reports from all 
of the implementation committees and submit the reports to the Implementa­
tion Committee and the Board; and (d) the Chancellor makes all appointments 
to the implementation subcommittees. (The subcommittees are required to 
have equal representation from both TSU and UTN).

96/ See, e.g., T. 315-321, A. (Blake), T. II 820-827, A. (Berrian).

- 65 -



That the implementation subcommittees include equal representation

from the two schools, contains the very "built-in conflict of interest"

that merger was intended to overcome. Again, the record is replete with

expert opinion that such governance conflict has hindered desegrega-
97/

tion of TSU and UTN. In other words, at all phases of the process,

the white institution the establishment of which was the basis of this law

suit and created the constitutional violation to begin with, will have a

major say in the actual governance of TSU in the future.
The effect of these proposals is to divest the administration and

staff of Tennessee State of significant portions of their power over

governance and control of the institution.

2. With Regard to Both Administrative Staff and 
Faculty Insufficient Protections are Given 
to TSU P e r s o n n e l ________________________

In accord with the basic principle that the burden of desegregation 

must not fall disproportionately upon Blacks, this Court, as well as the 

Supreme Court and other courts of appeals, have long held that particular­

ized protections must be established for black faculty and administrative 

staffs during the process of desegregation. See, e.g., Rolfe v. County 

Board of Ed., 391 F.2d 77 (6th Cir. 1968). The Regents' plan under which 

TSU-UTN will be merged does not provide adequate protections for black

faculty and administrative staff at TSU. UIN faculty are to have superior
98/

carry-over tenure rights to existing TSU faculty.

97/ See, e.g. , 427 F.Supp. at 657 (Blake).
98/ Thus, Implementation Guideline 5 provides only that TSU faculty and 
employees will "continue in employment at the expanded TSU" "under the per­
sonnel policies of the Board of Regents and TSU" and that [s]alaries . . . 
rank and tenure status will not be adversely affected during the merger 
process" (emphasis added). Implementation Guideline 7 provides that

(contd.)

- 66 -



Thus, on the face of the plan if, because of merger, there is a 

reduction in total faculty positions, it is likely that TSU faculty and 

administrative staff will be displaced. Given the small proportion of 

black faculty members throughout the entire system of higher education in 

Tennessee, and the fact that desegregation of staff has, as described in 

Section II of this brief, proceeded at the expense of black TSU faculty 

members, it was incumbent upon the district court to ensure that TSU exist­

ing faculty members have a preferred position with regard to any slots that 

may be eliminated as result of the merger. See also, Keyes v. School Dis­

trict No. 1, 521 F.2d 465, 484 (10th Cir. 1975).
With respect to retention of UTN administrators, Guideline 8 states 

that the Board may dismiss or reassign TSU administrators without any 

procedural protections and requirements or regard for the institutional 

integrity of TSU, subject only to the caveat that "the Board will not of

its own volition lessen the role of black administrators in its institu- 
99/

tions." The trial record is replete with expert testimony on the need for

any merger plan to provide retention guarantees for TSU faculty, adminis-
100/

trators and staff. Moreover, as set out in the Statement of Facts, 

attempts have already been made to displace President Fredrick Humphries,

98/ contd.
"[c]ontinued employment of full-time UTN faculty and staff as well as 
their salaries, will not be adversely affected during the merger process," 
and then proceeds to provide for transfer of "tenure status and equivalent 
rank at the expanded TSU." Thus, it appears that TSU faculty and staff may 
be discharged while UTN faculty are guaranteed "continued enployment".

The United Stated agrees that the difference between Guidelines 5 and 
7 is "a problem in drafting... [that] should be eliminated" (S.R. 14, at 
pp. 8-9, A).

99/ See also, S.R.14, A.____.
100/ See, e.g., T.322, 774-775, A. , (Blake); 427 F.Supp. at 658 
(Dr. Ann Pruitt).

- 67 -



The net result of both the faculty and the administrative staff 

prosisions in the Board of Regents plan, is that over a period of time TSU 

would change from being the only institution in the system of higher 

education in which Blacks have a predominate role, to one which simply 

becomes another white dominated institution. Thus, through more devious 

means, there will be accomplished exactly what the orders of the court 

below intended to prohibit, that is, a black institution will be super- 

ceded by a white institution in the Nashville area.

3. The Plans for Program Consolidation Are Inadequate

A central problem in the existence of TSU and UTN as competing insti­

tutions lies in the duplication of programs which white students who 

otherwise might attend TSU to UTN. An essential part of accomplishing a 

meaningful merger and ensuring that TSU will be the dominant institution in 

Nashville, is that all programs at UTN which duplicate TSU programs be

ended as quickly as possible. The Regents plan, however, does not provide
101/

for immediate practicable program consolidation, and UTN will continue 

setting academic requirements and awarding degrees through 1982. Thus, 

there will be a dual system of higher education in Nashville for at 
least another five years.

C. The District Court Erred in Failing to Consider
Plaintiffs' Objections to Defendant Board of Regents'
Plan of Merger During the Pendency of the Appeals.

The district court declined to grant.a hearing or otherwise consider 

the adequacy of the plan, holding that the filing of notices of appeal 

deprived it of any jurisdiction to enforce its judgment ordering merger.

v 101/ The trial record is clear that merger of TSU and UTN nursing programs 
can be immediately merged at TSU, see supra at p.25. The TSU engineering 
program also can be expanded immediately to include UTN students, see 
supra at pp. 22-23.

- 68 -



We maintain that the district court erred; absent a stay, the district 

court, during the pendency of an appeal, is required, to implement its 

judgment which, in a school desegregation case, entails the holding of 

additional hearings to test the constitutionality of defendants' plan. 

Thus, in Plaquemines Parish Commission Council v. United States, 416 F.2d 

952, 954 (5th Cir. 1969), the court held:

"The district court did not lose jurisdiction 
of the parties merely because an appeal was pending 
from the desegregation order. Appellants cite no 
school case authority to support their view that the 
district court lacks jurisdiction to promulgate addi­
tional orders to maintain the status quo and to insure 
the enforcement of its previous orders. Generally, a 
district court retains jurisdiction to enforce its 
prior orders, and this is particularly true with res­
pect to desegregation cases. United States v. Swift 
& Co., 286 U.S.106,...(1932); Brown v. Board of Educa­
tion, 349 U.S. 294, (1955)(Brown II); Green v. School,
Board of New Kent County, 391 U.S. 430,...(1968)." '

It is clear then that the district court has continuing power to adequate­

ly enforce its judgment during the pendency of appeal. Such enforcement 

is particularly appropriate here because the court has expressly retained 

jurisdiction, enforcement is sought by the parties and the record reveals 

a complex situation which, unless resolved expeditiously, may undermine the 

orderly achievement of a unitary system ordered by the district court. The 

alleged defects in the Regents merger plan,supra, are substantial and 

entitled to immediate consideration. Moreover, it is clear that unless the 

district court considers the plan, there will be no implementation of

102/ See also, Board of Education of the School District of the City of 
Detroit v. Bradley, 475 F.2d 819, 820 (6th Cir. 1972); Kelley v. Metro­
politan County Board of Education of Nashville, 463 F.2d 732, 745-746 (6th 
Cir. 1972); United States v. Board of School Commissioners of the City of 
Indianapolis, Indiana, 503 F.2d 68, 81 (7th Cir. 1974); cf. United States 
v. Choctaw County Board of Education, 417 F.2d 838, 844 (5th Cir. 1969).

- 69 -



merger because defendants UT and UTN have refused to comply with defendant 

Regents' request to appoint faculty members to several implementation 

sub-committees and have averred generally that "unless and until the Court 

has ordered us to comply with the plan and its implementation [the Regents] 

ha[s]. . .no power or authority to order [UTN] to take any action toward 

implementation of the plan which [the Regents] have devised" (R.293 at 

X"C",A____), see supra, at p.13.

CONCLUSION

For the reasons stated above, the judgment and orders of the district 

court on statewide relief and the TSU-UTN merger should be reversed and 

modified, respectively, and the case remanded for further proceedings as 

requested herein.

AVON N. WILLIAMS, JR.
MAURICE E. FRANKLIN 
RICHARD H. DINKINS 

1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
LYNN WALKER 
BILL LANN LEE 
JUANITA LOGAN CHRISTIAN 

10 Columbus Circle 
New York, New York 10019

Attorneys For Plaintiffs-Intervenors, 
Appellants.

- 70 -



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief For Plaintiffs- 

Intervenors, Appellants Richardson, et al., has been served upon the 

following counsel of record in this cause by first class mail, postage 

prepaid, as follows, this the 22nd day of November, 1977:

Hon. William J. Haynes, Jr. 
Assistant Attorney General 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Term. 37219

Robert Reinstein, Esq. 
Appellate Section 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20530

Nathaniel Douglas, Esq. 
Education Section 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20530

George E. Barrett, Esq.
9th Floor
Third National Bank Building 
Nashville, Tenn. 37219

William Willis, Esq.
Alfred H. Knight, Esq. 
Seventh and Union Street 
Nashville, Tenn. 37219

Hon. Hal Hardin 
United States Attorney 
United States Courthouse 
Nashville, Tenn. 37201

Joseph 0. Fuller, Esq. 
Fuller & Tunnell 
426 Shelby Street 
Kingsport, Tenn.' 37660

D. Bruce Shine, Esq. 
Ferguson & Shine 
700 Sullivan Street 
Kingsport, Tenn. 37660

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

Thomas Wardlaw Steele, Esq. 
Post Office Box 2757 
Nashville, Tenn. 37219

James E. Drinnon, Jr., Esq. 
Assistant General Counsel 
Administrative Building 
University of Tennessee 
Knoxville, Tenn. 37916

Lewis L. Laska, Esq.
1231 17th Avenue South 
Nashville, Tenn. 37212

^ ,
Attorney for Plaintiffs-Intervenors, 

Appellants.