Goss v. Knoxville, TN Board of Education Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NO. 20834

JOSEPHINE GOSS, et al.,
Plaintiffs-Appellants,

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

BRIEF FOR APPELLANTS

CARL A. COWAN 
2212 Vine Avenue 
Knoxville, Tennessee 37915
AVON N. WILLIAMS, JR.
404 James Robertson Parkway 
Nashville, Tennessee 37219
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
SYLVIA DREW 
10 Columbus Circle 
New York, New York 10019



TABLE OF CONTENTS
Page

Table of Authorities
C a s e s ........................................ ii
Other Authorities ...........................  v

Issues Presented for Review ........................... vi
Statement .............................................  1
ARGUMENT

The District Court Incorrectly Limited
The Issues And The Proof To Matters
Arising After June 7, 1967   15
Knoxville Has Not Complied With The 
Constitutional Mandate To Eliminate 
Its Dual School S y s t e m ...................... 19

C o n c l u s i o n .............................................38
Certificate of Service ..............................  39

i



Table of Authorities

Cases Page

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969)..................................  1,3,4,16,17,18,

20, 34
Allen v. Board of Public Instruction of Broward 

County, No. 30032 (5th Cir., August 
13, 1 9 7 0 ) ..................................  36

Berry v. School Dist. of Benton Harbor, Civ. No.
9 (W.D. Mich., February 17, 1970)
(oral opinion) ............................ 26-27

Boykins v. Fairfield Bd. of Educ., 421 F.2d
1330 (5th Cir. 1970) .....................  17

Bradley v. Milliken, No. 20794 (6th Cir.,
October 13, 1 9 7 0 ) .......................... 25

Bradley v. School Bd. of City of Richmond, Civ.
No. 3353 (E.D. Va., June 22, 1970) . . . .  34

Brewer v. School Bd. of City of Norfolk, No.
14,544 (4th Cir., June 22, 1970),
cert, denied, 38 U.S.L.W. 3522 (June
29, 1 9 7 0 ) ..................................  29

Brown v. Board of Educ., 347 U.S. 483 (1954);
349 U.S. 294 (1955)........................ 18, 19,22,23,33

Carter v. West Feliciana Parish School Bd., 396
U.S. 226 (1969); 396 U.S. 290 (1970) . . . 17,20,34

Clark v. Board of Educ. of Little Rock, 426 F.2d
1035 (8th Cir. 1970) (en b a n c ) ...............27-28

Crawford v. Board of Educ. of Los Angeles, No.
822-854 (Super. Ct. Cal., February 11,
1 9 7 0 ) ....................................... 29

Davis v. School Dist. of City of Pontiac, 309 F.
Supp. 734 (E.D. Mich. 1 9 7 0 ) ................. 26,37

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th 
Cir. 1966), cert, denied, 389 U.S. 847 
(1967) ..................................... 3,24-25,26

Deal v. Cincinnati Bd. of Educ., 419 F.2d 1387
(6th Cir. 1 9 6 9 ) ...........................  20,26

li



Table of Authorities (Cases)— continued Page

Desist v. United States, 394 U.S. 244 (1969) . . . .  18
Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) . . . .  29
Dowell v. School Bd. of Oklahoma City, 244 F.

Supp. 971 (W.D. Okla. 1965), aff'd 
375 F .2d 158 (10th Cir.), cert.
denied, 389 U.S. 847 (1967)...............  33-34

Goss v. Board of Educ. of Knoxville, 373 U.S.
683 (1963) ................................  2,5,22,23

Goss v. Board of Educ. of Knoxville, 301 F.2d
164 (6th Cir. 1 9 6 2 ) ........................ 2,19-20

Goss v. Board of Educ. of Knoxville, 305 F.2d
253 (6th Cir. 1 9 6 2 ) ........................ 2

Goss v. Board of Educ. of Knoxville, 406 F.2d
1183 (6th Cir. 1969) ...................... 3,24

Goss v. Board of Educ. of Knoxville, 186 F. Supp.
559 (E.D. Tenn. 1960) ...................... 2

Goss v. Board of Educ. of Knoxville, 270 F. Supp.
903 (E.D. Tenn. 1967) .....................  2,3,23,24

Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968) ............................  17,19,22,23,33

Griffin v. County School Bd. of Prince Edward
County, 377 U.S. 218 (1964)...............  33

Hall v. St. Helena Parish School Bd., 424 F.2d
320 (5th Cir. 1 9 7 0 ) ........................  17

Haney v. County Bd. of Educ. of Sevier County, 429
F . 2d 364 (8th Cir. 1970) .................  33

Harvest v. Board of Public Instruction of Manatee 
County, No. 29425 (5th Cir., June 26,
1 9 7 0 ) ....................................... 37

Johnson v. New Jersey, 384 U.S. 719 ( 1 9 6 6 ) ......... 18
Kelley v. Metropolitan County Bd. of Educ. of

Nashville, Civ. No. 2094 (M.D. Tenn.,
July 16, 1970) ............................  26

Kemp v. Beasley, 423 F.2d 851 (8th Cir. 1970) . . . .  36,37

iii



Linkletter v. Walker, 381 U.S. 618 (1965)...........18
Louisiana v. United States, 380 U.S. 145 (1965) . . .  33
Monroe v. Board of Comm'rs of Jackson, 427 F.2d

1005 (6th Cir. 1970)   23,25,28, 36,37
Nesbit v. Statesville City Bd. of Educ., 418 F.2d

1040 (4th Cir. 1969) .....................  37
Northcross v. Board of Educ. of Memphis, 302 F.2d 

818 (6th Cir.), cert, denied, 370 U.S.
944 (1962) ................................  23

Northcross v. Board of Educ. of Memphis, 397 U.S.
232 (1970) ................................  20, 34

Page v. St. Louis S. Ry. Co., 349 F.2d 820 (5th
Cir. 1965) ................................  17

Raney v. Board of Educ. of Gould, 391 U.S. 443
(1968) ..................................... 17-18

Table of Authorities (Cases)— continued Page

Singleton v. Jackson Municipal Separate School
Dist., 419 F.2d 1211 (5th Cir. 1969) . . .  37

Sloan v. Tenth School Dist. of Wilson County, No.
20122 (6th Cir., November 13, 1970) . . . .  18,28,30,33

Southern Ry. Co. v. Clift, 260 U.S. 316 (1922) . . .  16
Spangler v, Pasadena City Bd. of Educ., 311 F.

Supp. 501 (C.D. Cal. 1970) ...............  29
Stovall v. Denno, 388 U.S. 293 (1967)...............  18
Swann v. Charlotte-Mecklenburg Bd. of Educ., No.

281, O.T. 1970 (U.S. Supreme Court) . . . .  37
Tillman v. Board of Public Instruction of Volusia

County, 430 F.2d 309 (5th Cir. 1970) . . .  37
Turner v. Goolsby, 225 F. Supp. 724 (S.D. Ga. 1965) . 34
United States v. Board of Educ. of Baldwin County,

423 F . 2d 1013 (5th Cir. 1 9 7 0 ) .............  17
United States v. Board of Educ., Independent School 

Dist. No. 1, Tulsa, 429 F.2d 1253 (10th 
Cir. 1970) ................................  28

IV



Table of Authorities (Cases)— continued Page

United States v. Board of Trustees of Crosby 
Independent School Dist., 424 F.2d 
625 (5th Cir. 1 9 7 0 ) ........................ 36-37

United States v. Greenwood Municipal Separate School 
Dist., 406 F .2d 1086 (5th Cir.), cert, 
denied, 395 U.S. 907 (1969)...............  36

United States v. Greenwood Municipal Separate School
Dist., 422 F.2d 1250 (5th Cir. 1970) . . .  17

United States v. Jefferson County Bd. of Educ., 372 
F.2d 836 (1966), aff'd on rehearing en 
banc, 380 F.2d 385 (5th Cir.), cert, 
denied sub nom. Caddo Parish School Bd. 
v. United States, 389 U.S. 840 (1967) . . .  34

Valley v. Rapides Parish School Bd., No. 30099 (5th
Cir., August 25, 1970) ...................  28

Youngblood v. Board of Public Instruction of Bay
County, 430 F.2d 625 (5th Cir. 1970) . . .  32

Other Authorities

Abrams, Forbidden Neighbors (1955) .................  31
Black's Law Dictionary (4th rev. ed. 1968) ......... 16
McEntire, Residence and Race (1960).................  31
Office of Civil Rights, U.S. Department of Health, 

Education and Welfare, Directory of 
Public Elementary and Secondary Schools 
in Selected Districts, Fall 1968 (OCR-
101-70) (1970)............................... 10

Taeuber and Taeuber, Negroes in Cities (1969,
Atheneum e d . ) ............................... 30

United States Comm'n on Civil Rights, Housing (1961). 31
United States Comm'n on Civil Rights, The 50

States Report (1961)   31
United States Comm'n on Civil Rights, Racial

Isolation in the Public Schools (1967) . .8,31
Weaver, The Negro Ghetto (1948)   31

v



Issues Presented for Review

1. Whether either res judicata or "law of the 
case" properly applies to school desegregation actions?

2. Whether the district court's order falls 
short of requiring the Knoxville School Board to correct 
the constitutional violations observed by the court?

3. Whether the district court should have required 
the Board of Education of Knoxville to take comprehensive, 
affirmative steps to convert the public schools of Knoxville 
into a unitary school system without racially identifiable 
schools?

vi



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 20834

JOSEPHINE GOSS, et al.,

vs.
Plaintiffs-Appellants,

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

BRIEF FOR APPELLANTS

Statement

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

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

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



2_/
margin.

2 / This action was commenced December 11, 1959 (A.3) to desegregate 
the public schools of Knoxville, Tennessee. It is the successor to 
another brought for the same purpose on January 7, 1957 and subse­
quently dismissed without prejudice (14,425 A.61a, 63a). August 26, 
1960, the district court approved a plan submitted by the board, 
which proposed to eliminate mandatory racially separate school facili­
ties at the rate of one grade per year, by devising, for each school 
serving an affected grade, a single attendance zone. Children 
residing in that zone were to be assigned to the school within the 
zone subject to a right of transfer out if they so desired and if 
they met the criteria; one of the grounds for transfer was that a 
student of one race would otherwise be required to attend a school 
which had in the past served only students of the other race 
("minority-to-majority transfer"). Goss v. Board of Education,
186 F. Supp. 559 (E.D. Tenn. I960) .

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

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

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

-2-



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

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

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

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

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

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

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

3



after its last ruling in 1967, appellants believe not only 
that such ruling was error, but that Knoxville's compliance 
with constitutional standards or lack thereof can only be 
measured in light of its entire history; accordingly, we summarize 
briefly the course of desegregation in Knoxville since the in­
ception of this suit. (We are frank to affirm that in our view, 
the evidence shows decisively that Knoxville has never acted to 
dismantle its dual school system, with the predictable result 
that all of the dasBic indicia of a dual structure are yet 
apparent.)

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

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

4



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

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

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

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

5



remained subject to transfers which could be granted for a variety 
4_/

of reasons. In 1964-65, the rezoning (and the transfers) were 
extended to all grades. 270 F.Supp. at 908.

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

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

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

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

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

6



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

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

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

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

7



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

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

_6/
contained an expanding Negro population. This pattern has

5_/

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

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

United States Comm'n 6n Civil Rights, Racial Isolation in the 
Public Schools 65 (1967).

8



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

In 1963, a substantial area of Knox County was added to 
the Knoxville school district by annexation. (The new junior 
and senior high schools are all located in the annexed area.)
Holston High School in the far eastern part of the city came
under the jurisdiction of the Knoxville School Board. The
Board left the attendance zones at Holston and Austin-East virtually
unchanged (A. 418) rather than "break up attendance patterns

7_/
that have existed" (18,165 A. 269a) . The board spent a considerable
sum to renovate Austin with knowledge of its historic identity
as a Negro school and cognizant also that it had taken no steps
(such as changing the boundary between Holston and Austin) to
change that identity (18,165 A.256a). Today the board permits
white county tuition students to overcrowd the white Holston
High School despite underutilization of the black Austin-East

_ 8/complex (A. 419) .
When revision of zones has been occasioned by new con­

struction, the board has continued to maintain the status quo

7_/ In 1963-64 Holston was all-white (A. 418) and Austin all-black 
(15,432 A.105a); in 1969-70 Holston enrolled 1249 white and 40 
Negro students while Austin-East enrolled 10 white and 739 black students (A. 176-79) .
8_/ "In view of the foregoing direction, during its annual revision 
of zone lines, the Board may wish to pay considerable attention to 
the 1,000 capacity Holston High where attendance has increased from 
1,093 in 1967 to 1,289 in 1969." Memorandum Opinion of district court (A. 314) .

9



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

Nor did the reexamination of zones in western Knoxville
alter the character of Rule and Beardsley Junior High Schools _
one white and the other black, located next door to one anotherT"^
The Beardsley grade structure is still unique, both in this

10/
system and in this state . The Beardsley Junior High zone is
virtually coterminate with the black residential area (A. 385)
but the zones were not redrawn nor the schools paired as
recommended by the University of Tennessee Title IV Center 11//12/(A. 398.) .

f~226a)1 1967 Dr* Bedelle could not explain this phenomenon (18,165

Directoiyof Public Elementary and Secondary Schools in Selected 
Districts, Fall 1968 (OCR-101-70, Office of Civil Rights, 5.S? 
Department of Health, Education and Welfare) 1379-1410 (1970)

atated that the administrative organization of the 
s w°uld be better if Rule and Beardsley were paired (A. 387-89) The district court ordered the lines redrawn (A. 314)

.J*1® Ce }̂ter also recommended (and the board has rejected) pairinq
aSd a^d L°n®dala schools/ each built for children of one raceand located but two blocks apart (A. 398-99; see n .6 supra), or
drawing the zones for these two schools differently so that community 

400?03TrnS WSre n0t determinative of the schools' enrollments
10



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

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

11



13/ 14/ 15/1962-63 1966-67 1969-70
School W B W B W B

16/
739Austin 0 710 1 432 10

Beardsley 0 672 6 471 4 357

Cansler 0 361 0 221 12 206

Eastport 0 592 1 437 0 442

Green 0 677 21 421 5 276

Maynard 0 491 2 452 7 375

Mountain View 0 357 0 325 0 303

Sam Hill 0 488 0 498 4 347

Vine 0 776 1 619 5 628
These schools were all-white in 1962-63 and remained all-white 

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

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

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

13/ 15,432 A.105a.
14/ 18,165 A.42a-47a.
15/ A.138-49.
16/ Austin-East complex.

13



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

14



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

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

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

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

12



ARGUMENT

I

The District Court Incorrectly- 
Limited The Issues And The Proof 
To Matters Arising After June 7,

1967

On January 30, 1970, defendants moved to dismiss 
plaintiffs' Motion for Immediate Relief on the ground that 
the motion failed to state a claim upon which relief could be 
granted (A. 32-33). The gravamen of the motion to dismiss was 
that "plaintiffs do not allege any new matters since the last 
evidentiary hearing in the case on May 11, 1967, and that all 
matters raised in these pleadings are res judicata" (A. 280). 
The district court ruled that the Alexander motion did allege 
certain discriminatory actions by defendants after June 7, 1967 
and consequently declined to dismiss it. The court did at 
least implicitly accept, however, the applicability of res 
judicata as a plea in bar against examination of events occur­
ring prior to June 7, 1967, and so limited the issues and

17/proof to be offered at the 1970 hearing (A. 281-82).

17/ Plaintiffs' Motion for reconsideration or the issuance of 
a certificate pursuant to 28 U.S.C. §1292(b) for an inter­

locutory appeal (A. 283-86) was denied (A. 287-89).

-15-



Appellants respectfully submit that the district
court misapplied res judicata 18/

The purpose of the res judicata doctrine is to promote 
finality and to prevent multiplicity of litigation. Black's 
Law Dictionary (4th rev. ed., 1968) defines it as the "[r]ule 
that final judgment or decree on merits by court of competent 
jurisdiction is conclusive of rights of parties or their 
privies in all later suits on points and matters determined in 
former suit" (p. 1470) (emphasis supplied). The doctrine thus 
does not apply in the instant case, which is not a separate 
suit. If there is any claim, it is based upon the "law of the 
case."

The distinction is more than a semantic one:
The prior ruling may have been followed as 
the law of the case, but there is a differ­
ence between such adherence and res 
judicata; one directs discretion, the other 
supersedes it and compels judgment.

Southern Ry. Co. v. Clift, 260 U.S. 316, 319 (1922).

18/ Appellants do not contest the power of the district court
to regulate the trial so as to avoid repetition of testimony 

elicited at previous hearings. The Alexander motion did not 
seek to do this, nor would appellants be litigating the issue 
here were this the only effect of the district court's ruling.
The testimony and evidence at prior hearings are available for 
reference by either party; indeed, one can hardly discuss 
intelligibly any facet of the Knoxville school system without 
referring to such matters.

On the other hand, the district court's res judicata analy­
sis results in a kind of compartmentalization and isolation of 
this litigation and the legal principles affecting it. Compli­
ance with the law as interpreted by the district court in 1967 
acquits the school system of continuing responsibility for its 
pre-1967 acts. Despite changes or clarification of constitutional 
principles affecting school desegregation, in the district court's 
view newly enunciated principles do not apply to pre-1967 events. 
We deal with the merits of that view in the text, infra, and 
merely wish to point out here our concern with this feature of 
the doctrine as applied below, rather than its possible utili­
zation to expedite the hearing and avoid duplication of proof.

-16-



It has been well established that "where a point 
is properly preserved for review, a different result is
compelled where, subsequent !>' the t i \ st deet->»>*»>, t Uni «-= i = 
an intervening change in the law by authoritative declaration
of the authoritative court." Page v. St, Louis S. Ry. Co.,

19/349 F .2d 820, 821 (5th Cir. 1965).—

These principles are particularly suited to school 
desegregation litigation, where the object is not merely to
resolve a controversy between the parties but also to uphold

20/the public interest in constitutional compliance. The
Supreme Court has emphasized the continuing nature of school 
desegregation controversies, Raney v. Board of Educ. of Gould,

19/ A similar rule has been applied by the Fifth Circuit to
school desegregation cases appealed prior to Green, Alexander 

or Carter:
The district court's approval of the 
school board's plan cannot stand in the 
face of supervening changes in the law.
Thorpe v. Housing Authority of the City of 
Durham, 1969, 393 U.S. 268 . . . Bell v.
Maryland, 1964, 378 U.S. 226 . . . .  The 
record demonstrates that this plan does 
not comply with Green v. New Kent County;
Alexander v. Holmes County Board of 
Education . . . .

Hall v. St. Helena Parish School Bd., 424 F.2d 320, 322-23 (5th 
Cir. 1970); accord, United States v. Board of Educ. of Baldwin 
County, 423 F.2d 1013 (5th Cir. 1970); Boykins v. Fairfield Bd. 
of Educ., 421 F.2d 1330 (5th Cir. 1970); United States v. 
Greenwood Municipal Separate School Dist., 422 F.2d 1250 (5th 
Cir. 1970).
20/ It is the district court's overly technical view of this 

litigation, not plaintiffs' attempts to fully and fairly 
ventilate the issues, which has so fragmented this case. See, 
for example, the court's frequent references to what matters were 
specifically pleaded (e .g ,, A. 297) even where there can be no 
question that the court and counsel were in no way misled or 
taken by surprise.

-17-



proceedings, Brown v. Board of Educ., 349 U.S. 294 (1955). It
is hardly consistent with this approach to freeze in a situation
of constitutional violation simply because it was not earlier

21/, 22/perceived to be such a violation.

391 U.S. 443 (1968), as well as the equitable nature of the

Finally, we think a disposition in favor of continuing
review of the entire case by the district judge is evident from
this Court's comment in Sloan v. Tenth School Dist. of Wilson
County, No. 20122 (6th Cir., November 13, 1970)(slip opinion, p. 4)

In Goss v. Board of Education, 406 F.2d 1183 
(6th Cir. 1969) we indicated our belief that 
Knoxville, Tennessee had made "quite substan­
tial progress," 406 F.2d at 1189, yet "i[n] 
the time ahead, . . . Knoxville Board of Edu­
cation may wish to consider some pairing of 
existing schools and some alteration of its 
plans for future construction . . . .  We 
must, therefore, direct the District Judge to 
keep this case open upon his docket."

21/ Indeed, plaintiffs' Motion for Immediate Relief was directed 
toward bringing the Knoxville system into compliance with 

the recent Supreme Court decision in Alexander, supra.
22/ These proceedings are not at all like criminal proceedings.

The status of continuing constitutional violation, the 
equitable nature of the proceedings -- a petition to modify an 
injunctive decree is always timely so long as the order is in 
force —  as well as the lack of an analogous reliance interest 
of the State dispel any notion of prospective application only. 
Cf. Linkletter v. Walker, 381 U.S. 618 (1965); Johnson v. New 
Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 
(1967); Desist v. United States, 394 U.S. 244 (1969).

-18-



II

Knoxville Has Not Complied With 
The Constitutional Mandate To 
Eliminate Its Dual School System

In 1954-55, the Supreme Court declared racial segre­
gation in the public schools unconstitutional. Brown v. Board 
of Educ., 347 U.S. 483 (1954); 349 U.S. 294 (1955). "School 
boards such as the [appellees] then operating state-compelled 
dual systems were [thereby] clearly charged with the affirmative 
duty to take whatever steps might be necessary to convert to 
a unitary system in which racial discrimination would be elimi­
nated root and branch." Green v. County School Bd. of New Kent 
County, 391 U.S. 430, 438-39 (1968).

Knoxville has never met its legal obligation. It 
has never taken any deliberate action to promote the desegrega­
tion of its schools. Viewing its acts in the light most favor­
able to it, the school district has practiced the kind of 
facially neutral passivity which amounts to neglect of constitu­
tional duty.

Knoxville's approach to desegregation is essentially
unchanged from what it was a decade ago, when this Court reproved

The position of the board that it would 
continue to operate [a segregated system] 
until compelled by law to do otherwise, 
does not commend itself to the Court, for 
the acceptance of a plan that provides for 
a minimum degree of desegregation.

Goss v. Board of Educ. of Knoxville, 301 F.2d 164, 167 (6th

-19-



Cir. 1962). That attitude is clearly no longer sufficient under 
the commands of immediacy of Alexander v. Holmes County Bd. of
Educ., 396 U.S. 19 (1969); Carter v. West Feliciana Parish 
School Bd., 396 U.S. 226 (1969); 396 U.S. 290 (1967); and 
Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970).
Yet the district court failed to grant effective relief.

Even if this case is to be decided on the district 
court's own terms, the decision below must be reversed. For 
the lower court has taken a remarkably narrow view of the proof, 
and the contradictions in its thinking are apparent from the 
opinion.

The district judge states; "Fundamental to the legal 
questions raised by the recited facts is the constitutionality 
of neighborhood schools" (A. 312). The court responds to its 
rhetorical statement of the issue by declaring, in reliance 
upon Deal v. Cincinnati Bd. of Educ., 419 F.2d 1387 (6th Cir. 
1969), that neighborhood schools "are constitutionally sound" 
in the abstract (ibid.). However, the court adds, "[a]pproval 
of neighborhood zones is specious when informal transfers occur" 
(A. 317).

This latter principle is but stated, not applied.
For the evidence is compelling that the Board permits variances 
from its zoning plan which not only prevent desegregation but 
also vitiate its claim of neutrality. The district court found, 
for example, that the Board's failure to adjust the Rule-Beardsley 
zone lines or grade structures (A. 517-18) to relieve overcrowding

-20-



at Rule belied its fancied aherence to the neighborhood school 
concept (A. 313-14). The court ordered alteration of the lines 
for next year but fa.iled to see any connection between the 
district's unwillingness to desegregate Rule and Beardsley 
(an unwillingness which led it to disregard the neighborhood 
school concept) and the fact that there is so little desegrega­
tion throughout the Knoxville school system today. The court 
perceived the same reluctance to adjust zone lines for capacity 
at HoIston High (A. 314, 508) but merely suggested the Board 
look into the matter rather than ordering relief.

The district court apparently treated these examples 
as isolated occurrences, discerning no pattern of disregarding 
"neighborhood schools" when integration would otherwise have 
been the result. But how can these be distinguished from Sam 
Hill and Lonsdale, where "neighborhood school" zones result —  

coincidentally? —  in a black school and a white school? Or 
from similar "neighborhood school" zone boundaries between West 
View and Cansler, or Vine and Park Junior High schools (A. 514)? 
It is hardly an answer to these facts (even were it a correct 
expression of the law, see below) to say that "the Board has 
[no] affirmative duty to change the zones to increase racial 
mixing . . . ." (A. 313). For it should have been apparent to
the district court that the Knoxville School Board has been able, 
through manipulation of zone line and grade structure, of 
capacity and placement of portable classrooms, to maintain white 
and black school neighborhoods.

-21-



How can the effect upon the school system of these 
practices be isolated from the inordinately slow process of 
faculty desegregation in Knoxville, where not every school yet 
has any minority race teachers? How discount the "irregularities" 
of the transfer system which still permitted —  seven years 
after the Supreme Court's decision —  white students to transfer 
out of black schools serving the residential zones in which 
they lived (A. 412-14)?

As the Suprane Court observed in this case in 1963,
"the context in which we must interpret and apply this language
to plans for desegregation has been significantly altered."

23/373 U.S. at 689. Just as the "deliberate speed" language

23/ The Court there referred to the "deliberate speed" language 
of Brown II, supra, but the general applicability of the 

comment is revealed by the fate of the Court's dictum in the 
1963 Goss case:

Likewise, we would have a different case 
here if the transfer provisions were un­
restricted, allowing transfers to or from 
any school regardless of the race of the 
majority therein.

[373 U.S. at 689]. Compare Green v. County School Bd. of New
Kent County, supra, 391 U.S. at 438-39, 441-42, where the Court
quotes the Goss "changing context" language and then states:

The New Kent School Board's "freedom-of- 
choice" plan cannot be accepted as a suf­
ficient step to "effectuate a transition" 
to a unitary system. . . .  In other words, 
the school system remains a dual system.
Rather than further the dismantling of the 
dual system, the plan operated simply to 
burden children and their parents with a 
responsibility which Brown II placed squarely 
on the School Board. The Board must be 
required to formulate a new plan and, in 
light of other courses which appear open to 
the Board, such as zoning, fashion steps 
which promise realistically to convert 
promptly to a system without a "white" school 
and a "Negro" school, but just schools.

-22-



of Brown II carried with it an expectation of steady, regular 
progress toward desegregation which Goss recognized had not
been realized, and just as the Goss free choice dictum was 
proved in Green to have been dependent upon the achievement 
of actual desegregation, so the situation confronting this
Court in this case in 1970 is markedly different from that

24/whxch faced the Court in 1968-69. The context has changed
in which this language from the 1962 Northcross case is to be 
applied:

Minimal requirements for non-racial 
schools are geographic zoning, according 
to the capacity and facilities of the 
buildings, and admission to the school 
according to residence as a matter of right.

Northcross v. Board of Educ. of Memphis, 302 F .2d 818, 823 (6th
Cir.), cert, denied, 370 U.S. 944 (1962).

In the first place, this appeal presents strikingly
different factual findings than had been made by the district
court in 1967. There, for example, the transfer provisions had
been held to have little effect and the board to have strictly

25/administered the zones it drew up in 1960-64. Goss v.

24/ On the last appeal, the matter had been tried and briefs in 
this Court filed prior to the decision in Green, supra.

25/ The district court ruled that the zones had been approved 
by this Court and the Supreme Court of the United States,

270 F. Supp. at 913. This was a mistaken belief. The Supreme 
Court expressly eschewed ruling upon anything but the minority- 
to-majority transfer, 373 U.S. at 685, and this Court did not 
have the zones as drawn and implemented before it until the 1967 
appeal. See note 2 above. And see, Monroe v. Board of Comm'rs 
of Jackson, 427 F.2d 1005, 1009 (6th Cir. 1970).

-23-



Board of Educ., 270 F. Supp. 903 (E.D. Tenn. 1967). This
Court responded with these words:

. . . the fact that there are in Knoxville 
some schools which are attended exclusively 
or predominantly by Negroes does not by 
itself establish that the defendant Board of 
Education is violating the constitutional 
rights of the school children of Knoxville. 
Deal v. Cincinnati Bd. of Education, 369 
F.2d 55 (6th Cir. 1966), cert, denied, 389 
U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); 
Mapp v. Bd. of Education, 373 F.2d 75, 78 
(6th Cir. 1967). Neither does the fact that 
the faculties of some of the schools are 
exclusively Negro prove, by itself, violation 
of Brown.

406 F.2d at 1186.

In contrast, the district court found in 1970 that 
(1) there were irregularities in the administration of the 
transfer system which perverted the district's "neighborhood" 
zoning plan by permitting racial transfers; (2) the district 
had in at least one instance failed to act in accordance with 
its "neighborhood" plan, to adjust zones to the capacity of 
the school, with the result that racial separation was maintained; 
and (3) the district had not met judicial standards in the 
desegregation of its faculty. Additionally, as we suggest 
above, each of these findings is really exemplary rather than 
inclusive of the Board's actions which have preserved racial 
segregation in the Knoxville public schools.

Furthermore, this Court's 1967 decision followed 
from its application to Knoxville, in the context sketched 
above, of the ruling in Deal v. Cincinnati Bd. of Educ., supra, 
that "there is no constitutional duty on the part of the school

-24-



board to bus Negro or white children out of their neighborhoods
or to transfer classes for the sole purpose of alleviating
racial imbalance which it did not cause . . . 369 F.2d at
61 (emphasis supplied). Again, the present appeal is factually
distinguishable since the evidence demonstrates (as the court
below found) the responsibility which the appellee Board of
Education bears for the racial composition of the student bodies

, 26/and staffs at the various schools.

26/ Recently there have also been indications that Deal is more 
limited to its peculiar facts than had been supposed. In 

Bradley v. Milliken, No. 20794 (6th Cir., October 13, 1970), 
the Chief Judge, writing for a unanimous panel of this Court, 
described Deal as follows:

In Deal this Court held that the school 
board of a long-established unitary 
nonracial school system had no constitutional 
obligation to bus white and Negro children 
away from districts of their residences in 
order that racial complexion be balanced in 
each of the many public schools in the City.

[Slip opinion, pp. 12-13 (emphasis supplied)]. Similarly, in 
Monroe v. Board of Comm'rs of Jackson, supra, 427 F.2d at 1009, 
this Court recognized the result-oriented standard of Green and 
rejected arguments strikingly similar to the district court's:

The District Court, in examining the record 
before it, has apparently determined that 
revision of the attendance zones is necessary 
to insure the Board's compliance with its 
affirmative duty to disestablish segregation 
with a plan which "promises realistically to 
work now." There is nothing in the record, 
including the failure of the prior reviewing 
courts to disturb the zoning, which would 
justify disturbing the district court's deter­
mination. Nor does the absence of a finding 
that the present zones were racially gerry­
mandered or that the Board acted in bad faith 
preclude the District Court from ordering this 
remedial relief. Green v. County School Board, 
supra, at 439; Jackson v. Marvell School District 
No. 22, 416 F.2d 380, 385 (8th Cir. 1969); Henry 
v . Clarksdale Municipal Separate School District, 
409 F .2d 682, 684 (5th Cir.), cert. denied,
396 U.S. 940 (1969) [emphasis supplied].

-25-



On these facts, it can hardly be contended that 
Knoxville has desegregated its state-imposed dual system of

The most recent appointee to this Court, sitting by designa­
tion as a district judge in the companion case to this one 
before the Supreme Court in 1963, said:

In Deal v. Cincinnati Board of Education,
419 F .2d 1387 (6th Cir. 1969), the Sixth 
Circuit stated its adherence to a principle 
similar to that set forth in Briggs v.
Elliott, supra, to the effect that there is 
no affirmative duty to integrate. See 419 
F.2d at 1390. The Sixth Circuit's position 
in Deal, however, seems to have been under­
mined by the opinion of the Supreme Court in 
Northcross v. Board of Education of Memphis, 
Tennessee, City Schools, 397 U.S. 232 (1970), 
a more recent case also arising in the Sixth 
Circuit. After granting a writ of certiorari, 
the Supreme Court in Northcross declared that 
the Court of Appeals erred in holding inapplic­
able the rule of Alexander v. Holmes County 
Board of Education, supra. In view of the 
fact that Alexander and its predecessor, Green, 
clearly stand for the proposition that a school 
board has an affirmative duty to integrate, 
there is strong reason to infer that the Court 
of Appeals for the Sixth Circuit would not now 
express the view that there exists no consti­
tutional duty on the part of school authorities 
to integrate schools.

Kelley v. Metropolitan County Bd. of Educ. of Nashville, Civ. 
No. 2094 (M.D. Tenn., July 16, 1970)(slip opinion at pp. 4-5). 
Other district courts in this Circuit have entertained doubts 
about the limited reach of Deal. E .g ., Davis v. School Dist. 
of City of Pontiac, 309 F. Supp. 734, 744 (E.D. Mich. 1970) 
(emphasis supplied):

Based on the above findings, it is the 
opinion of this Court that the Pontiac School 
Board cannot use the neighborhood school con­
cept as a disguise for the furtherance or 
perpetuation of racial discrimination when 
they participated in the segregated policy.
(See Deal v. Cincinnati Board of Education 
[6 Cir. 1969] 419 F.2d 1387).

Cf. Berry v. School Dist. of Benton Harbor, Civ. No. 9 (W.D. 
Mich., February 17, 1970)(oral opinion, pp. 18-19):

-26-



schools. The statistics belie any such claim; more black 
children attend segregated black schools in Knoxville today 
than did in 1959. The district court reocgnized that the 
schools remain racially identifiable (A. 312). This results 
from the Board's failure to act decisively to bring about the 
elimination of the old segregated patterns of attendance.

The adoption of geographic zoning by Knoxville merely 
begins, not ends, this Court's inquiry. As the Eighth Circuit 
has said,

. . . it is not enough that a scheme for 
the correction of state sanctioned school 
segregation is non-discriminatory on its 
face and in theory. It must also prove 
effective. . . .  We believe that geographic 
attendance zones, just as the Arkansas pupil 
placement statutes, "freedom of choice" or 
any other means of pupil assignment must be 
tested by this same standard. In certain 
instances, geographic zoning may be a 
satisfactory means of desegregation. In 
others, it alone may be deficient. Always, 
however, it must be implemented so as to 
promote desegregation rather than 
reinforce segregation.

Clark v. Board of Educ. of Little Rock, 426 F.2d 1035, 1042

Gentlemen, those findings of fact, I 
am satisfied, are supported by the cred­
ible evidence in this case. If this were 
a case of first impression, this Court 
would reach a conclusion contrary to that 
reached by the Court of Appeals in Deal.
. . . And so, any judgment that is submitted
by either side, or as reached by counsel 
working together, may embody in it a certi­
ficate . . . under the provisions of Title 
28 U.S. Code Section 1292(b). . . .  It may 
very well be that, based upon the findings 
made in this case, that the Sixth Circuit 
Court of Appeals, if it accepts this case 
on that basis, will make provision for 
relief beyond that which might now be 
permitted under the Deal and Goss decisions.

-27-



(8th Cir. 1970) (en banc). This Court articulated the same 
principle in Monroe v. Board of Comm'rs of Jackson, supra and 
in Sloan v. Tenth School Dist. of Wilson County, supra.

This school district has sought to hide behind the
neighborhood school theory. But this is not the issue, as
other Courts have recently emphasized. Valley v. Rapides Parish
School Bd., No. 30099 (5th Cir., August 25, 1970)(slip opinion, 

27/p. 3); United States v. Board of Educ., Independent School
Dist. No. 1, Tulsa, 429 F.2d 1253, 1259 (10th Cir. 1970);^§/

27/ The end result is that neighborhood zoning
in Alexandria, Louisiana, leaves the 
majority of the city's Negro students in a 
virtually segregated school system. The 
fact that the plan complies with the 
requirements for a neighborhood system as 
enunciated by this court in Ellis v. Board 
of Public Instruction of Orange County, 
Florida, 5 Cir. 1970, 423 F.2d 203, does 
not make the system constitutionally palat­
able unless the plan actually works to achieve 
integration. Green v. County School Bd. of 
New Kent County, supra; United States v. 
Indianola Municipal Separate School District,
5 Cir., 1969, 410 F.2d 626.

28/ As conceived and as historically and
currently administered, the Tulsa neighbor­
hood school policy has constituted a system 
of state-imposed and state-preserved 
segregation, a continuing legacy of subtle 
yet effective discrimination.
The attendance zones as originally formu­
lated were superimposed upon racially 
defined neighborhood and were, therefore, 
discriminatory from their inception. . . . 
Similarly, the pattern of new school 
construction has preserved, rather than 
disestablished, the racial homogeny of the 
Tulsa attendance zones.

-28-



Brewer v. School Bd. of City of Norfolk, No. 14,544 (4th Cir.,
June 22, 1970)(concurring opinion of Sobeloff and Winter, JJ., 
pp. 1-2), cert, denied, 38 U.S.L.W. 3522 (June 29, 1970) 
accord, Spangler v. Pasadena City Bd. of Educ., 311 F. Supp.
501 (C.D. Cal. 1970); Crawford v. Board of Educ. of Los Angeles,
No. 822-854 (Super. Ct. Cal., February 11, 1970); cf. Dove v.

30/Parham, 282 F.2d 256, 258 (8th Cir. 1960).— ‘

29/ The District Court should not tolerate
any new scheme or "principle," however 
characterized, that is erected upon and 
has the effect of preserving the dual 
system. This applies to the "neighborhood 
school" concept, a shibboleth decisively 
rejected by this court in Swann (Judge 
Bryan dissenting), as an impediment to the 
performance of the duty to desegregate.
The purely contiguous zoning plan advanced 
by the Board in that case was rejected by 
five of the six judges who participated.
A new plan for Norfolk that is no more than 
an overlay of existing residential patterns 
likewise will not suffice.

30/ In summary it is our view that the obligation
of a school district to disestablish a system 
of imposed segregation, as the correcting of 
a constitutional violation, cannot be said to 
have been met by a process of applying place­
ment standards, educational theories or other 
criteria, which produce the result of leaving 
the previous racial situation existing, just 
as before. . . .  If placement standards, 
educational theories, or other criteria used 
have the effect in application of preserving 
a created status of constitutional violation, 
then they fail to constitute a sufficient 
remedy for dealing with the constitutional wrong.
Whatever may be the right of these things to 
dominate student location in a school system where 
the general status of constitutional violation 
does not exist, they do not have a supremacy to 
leave standing a situation of such violation, no 
matter what educational justification they may 
provide, or with what subjective good faith 
they may have been employed.

-29-



As this Court and other Circuits have held, it is
no answer to say that attendance zones or new construction were 
devised according to the "neutral" standard of 'where the 
pupils are' "regardless of whether such planning reinforced 
and extended residential racial segregation." Sloan, supra, 
slip opinion at pp. 5-6. The language of Sloan suggests that 
another portion of the Deal ruling, that evidence of discrim­
ination affecting housing patterns is irrelevant, may no longer 
be compelling.

From the inception of this case, the existence of 
racial discrimination affecting the availability of housing 
to Negroes in Knoxville has been admitted (14,425 A. 167a; A. 
424). The residential choices of black people are limited, 
with few exceptions, to areas of the inner city in Knoxville 
because of racial discrimination and economic discrimination 
(A. 424-26). New housing developments are located near existing 
or planned school facilities (A. 424) which, to the extent such 
developments are segregated, results in segregated schools. 
Location of schools in such areas encourages residential
relocation and further segregation in both housing and schools

31/(A. 423-24). See Sloan, supra, slip opinion at pp. 3, 5-6).

31/ According to one of the most thorough studies of housing 
patterns in the United States, residential segregation in 

Knoxville increased between 1940 and 1960. Taeuber and 
Taeuber, Negroes in Cities 41 (1969, Atheneum ed.).

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Many of the urban renewal and federally financed
housing projects in Knoxville have been designed and operated 
as "Negro" projects, and schools which have been located in 
proximity to these projects are identifiably Negro schools 
(18,165 A. 172-74a, 222-23a). See generally, United States 
Comm'n on Civil Rights, The 50 States Report 591 (1961); United 
States Comm'n on Civil Rights, Racial Isolation in the Public 
Schools 23-24, 34-38 (1967). The Civil Rights Commission has 
pointed out the degree to which federal housing policies have 
in the past contributed to the development of residential seg­
regation. For example, the FHA Underwriting Manual of 1938 
provided:

If a neighborhood is to retain stability, 
it is necessary that properties shall 
continue to be occupied by the same social 
and racial groups.

See United States Comm'n on Civil Rights, Racial Isolation in 
the Public Schools 22-24, 254-59 (1967); United States Comm'n 
on Civil Rights, Housing (1961); Abrams, Forbidden Neighbors 
(1955); McEntire, Residence and Race (1960); Weaver, The Negro 
Ghetto (1948), for examples of governmental policies fostering 
segregation.

The lack of any viable support for appellees' 
neighborhood school claims was further evidenced by their total 
inability to show that they did not grant transfers which 
promoted segregation. Once again, the district court perceived 
that the Board had in fact manipulated the operation of the 
school system in a fashion which perpetuated and increased

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segregation, but the remedy fashioned by the court utterly 
fails to vindicate plaintiffs' constitutional rights. The 
command to keep better records in the future implicitly 
sanctions the very past practices which, the district court 
recognized, made the claimed neighborhood zones "specious" (A. 
317). The practical effect of the order is to sanction the 
very irregularities which are one objectionable feature of 
the transfer policy. If record keeping is the only requirement, 
then the informal transfers of the past will surely be preserved

32/

32/ The Board's actions, or (more accurately) failures to act 
regarding Rule-Beardsley, Holston-Austin-E ist, Vine-Park, 

West View-Cansler, Green-Huff, etc., are similar to processes 
the Fifth Circuit found operative in Bay County, Florida:

The Board's zone for Rosenwald is not 
based on the school's full capacity, 
but rather duplicates the limited 
enrollment of the school under free 
choice. . . . The effect is to 
restrict the geographic area which 
the school serves, with the result 
that the school remains predominantly 
black.

Despite the circumstances which suggest 
that a plan could be devised which 
would eliminate vestiges of discrimin­
ation in Bay County, the Board adopted 
a student assignment plan that to a 
great extent perpetuates "the comfort­
able security of the old, established 
discriminatory pattern." Monroe v.
Board of Commissioners, 1968, 391 U.S.
450, at 459, 88 S.Ct. 1700, 20 L.ed.2d 
733.

Youngblood v. Board of Public Instruction of Bay County. 430
F .2d 625, 627-28 (5th Cir. 1970).

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albeit recorded as "grade requirement" transfers (since the
33/students already attend these schools). The district court's

order does nothing to overcome the effects of past transfers 
for the purpose of segregating, although the Supreme Court has 
held :

. . . the court has not merely the power
but the duty to render a decree which 
will so far as possible eliminate the 
discriminatory effects of the past as well 
as bar like discrimination in the future.

Louisiana v. United States, 380 U.S. 145, 154 (1965), cited in
Green v. County School Bd. of New Kent County, supra, 391 U.S.
at 438 n.4.

The district courts have considerable latitude in 
framing a remedy to meet the constitutional imperative of
Louisiana v. United States, as this Court has so recently

34/reaffirmed in Sloan, supra. The court below could have

33/ Thus, just as "brother-sister" and "grade requirement1'
transfers permitted continuation after 1963 of the "minority- 

to-majority" policies outlawed by the Supreme Court, and the 
informalities of appellees' administration have allowed evasion 
of their attendance zones and feeder patterns, so the court's 
order will do nothing to stop transfers for the purpose of 
segregation except perhaps to facilitate an evidentiary record 
on the subject in future years.
34/ A district court is not, for example, limited to state law 

in devising a remedy. Haney v. County Bd. of Educ. of 
Sevier County, 429 F.2d 364, 366 (8th Cir. 1970). Brown v.
Board of Educ., 349 U.S. 294 (1955) invested the district courts 
with broad powers to grant relief from racial discrimination 
in the public schools, and they were to be guided by equitable 
principles in "fashioning and effectuating" decrees. Id. at 
299-300. Pursuant to this grant of power, federal courts in 
school desegregation cases have ordered reopened a public 
school system which had been closed to avoid desegregation, 
Griffin v. County School Bd. of Prince Edward County, 377 U.S.
218 (1964); paired attendance areas for high schools, Dowell v. 
School Bd. of Oklahoma City, 244 F. Supp. 971 (W.D. Okla. 1965),

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eliminated "grade requirement" and "brother-sister" transfers 
so that the "informal transfers" of the past were not continued 
in the future; it could have proscribed all but "majority-to- 
minority" transfers; it could have required that curricular 
offerings at all schools be made substantially the same, where 
possible, to minimize the disguises which requests for racial 
transfer might assume. It could have set meaningful goals or 
timetables for faculty desegregation consistent with Alexander, 
Carter or Northcross. It did none of these things, however.

What is required is a comprehensive remedy reaching 
all aspects of the school system's operation. "[T]he only 
adequate redress for a previously overt system-wide policy of 
segregation directed against Negroes as a collective entity 
is a system-wide policy of integration." United States v. 
Jefferson County Bd. of Educ., 372 F.2d 836 (1966), aff1d on 
rehearing en banc, 380 F.2d 385 (5th Cir.), cert, denied sub 
nom. Caddo Parish School Bd. v. United States, 389 U.S. 840 
(1967).

Appellants presented the expert testimony of Dr. John 
Croghan, of the University of Miami, whose credentials appear 
in the record (A. 493-98). Dr. Croghan expressed the opinion,

aff’d 375 F.2d 158 (10th Cir.), cert, denied, 389 U.S. 847 
(1967); placed a school system in receivership to carry out a 
desegregation order, Turner v. Goolsby, 225 F. Supp. 724 (S.D.
Ga. 1965); and enjoined $25 million worth of school construction, 
Bradley v. School Bd. of City of Richmond, Civ. No. 3353 (E.D. 
Va., June 22, 1970), among other actions indicating the breadth 
of remedial power available.

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based upon his professional judgment, that the Knoxville public 
schools had not been effectively desegregated (A. 503). Dr. 
Croghan listed some of the school district decisions and 
policies which he thought contributed to the lack of effective 
desegregation (A. 504-35) (nearly all of which have been men­
tioned herein) and also made these recommendations regarding 
remedy: (1) a strong commitment to real desegregation ought
to be made. He was unaware of any school board statements or 
policies to this effect (A. 629); the patchwork remedial order 
of the district court also fails to engage the system in such 
a venture. (2) Preparation of accurate pupil locator maps 
showing the grade level, residence and race of every Knoxville 
student is essential to determine and evaluage possible means 
of desegregating the Knoxville schools (A. 537-38). Dr 
Croghan was frankly incredulous that the school system did 
not have this information when it made zone line adjustments 
or planned new construction (A. 501) since he considered it 
an essential tool for such determinations. (3) Faculty and 
staff desegregation should be immediately implemented (x 16, 17, 
A. 533-35, 538). (4) All transfers except "majority-to-minority
transfers should be eliminated (A. 538-39). (5) The curricular
offerings at the secondary level should be as nearly the same 
at each school as possible (A. 539).

These suggestions were offered for the assistance 
of the district court and the school district, but they were 
largely ignored. Dr. Croghan did not purport to suggest a 
specific plan for reorganization of pupil attendance because

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the locator map is essential to preparation of such a plan.
He did observe, however, that a complete plan of desegregation 
for Knoxville could, in his opinion, be drawn and implemented 
(A. 540).

If appellants' contentions are correct, then this 
case must be returned to the district court for submission, 
approval and implementation of a plan to completely desegre­
gate the Knoxville public schools. We think it also evident 
that guidance from this Court would materially assist the 
court below in carrying out that process.

The district court's inquiry should be as broad as 
the scope of its equitable authority. All means of desegre­
gation, singly or in combination, ought to be explored, 
including inter alia the redrawing of zones and feeder patterns 
to affirmatively promote desegregation (A. 400-02, 504-09), e.g., 
United States v. Greenwood Municipal Separate School Dist.,
406 F.2d 1086 (5th Cir.), cert, denied, 395 U.S. 907 (1969); 
Monroe v. Board of Comm'rs of Jackson, supra, the use of 
pairing, clustering, grouping or other grade restructuring 
(A. 398-404), e.g., Allen v. Board of Public Instruction of 
Broward County, No. 30032 (5th Cir., August 13, 1970); Kemp v.
Beasley, 423 F.2d 851 (8th Cir. 1970), reorganization of the

35/district's transportation system , e.g., United States v.

35/ Six thousand students are presently transported, mostly
to white schools, pursuant to the annexation agreement (A. 

393-94).

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Board of Trustees of Crosby Independent School Dist., 424 F.2d
625 (5th Cir. 1970); Kemp v. Beasley, supra; Monroe, supra.

It is very late in the day to claim that these 
methods ought not to be considered because they might be 
"disruptive" (A. 369, 406, 470, 486, 488). Since Singleton v. 
Jackson Municipal Separate School Dist., 419 F .2d 1211 (5th 
Cir. 1969), the Fifth Circuit has consistently required racial 
balance among the faculties of the public schools by the fall 
of 1970. Its orders have been carried out in scores of school 
districts without incident, as have similar decrees of the 
Fourth Circuit since Nesbit v. Statesville City Bd. of Educ., 
418 F.2d 1040 (4th Cir. 1969). Complete student desegregation 
has been effectuated in many systems —  again without untoward 
result. E.g., Tillman v. Board of Public Instruction of 
Volusia County, 430 F.2d 309 (5th Cir. 1970); Harvest v. Board 
of Public Instruction of Manatee County, No. 29425 (5th Cir., 
June 26, 1970); Swann v. Charlotte-Mecklenburg Bd. of Educ.,
No. 281, O.T. 1970 (U.S. Supreme Court). The district court 
ought to be instructed, therefore, to proceed toward implemen­
tation of a unitary school system as expeditiously as possible.

The question is no longer where the first 
move must be made in order to accomplish 
equality within our society; the question 
has become and, possibly has always been, 
who has the power and duty to make those 
moves so as to advance the accomplishment 
of that equality.

Davis v. School Dist. of City of Pontiac, 309 F. Supp. 734,
742 (E.D. Mich. 1970).

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The Knoxville school district, with the supervision
and assistance of the district court, must proceed at once 
to devise and implement an organizational scheme which 
eliminates all of its racially identifiable schools and 
extirpates all vestiges of racial discrimination from the 
public schools of Knoxville.

CONCLUSION

WHEREFORE, for the foregoing reasons, the judgment 
of the district court should be reversed and the case remanded 
with directions.

v___•

Respectfully submitted,

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

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

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

Attorneys for Appellants

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Certificate of Service

I hereby certify that I served two (2). copies of 
the foregoing Brief for Appellants upon counsel for the 
defendants-appellees, Hon. S. Frank Fowler, by depositing 
same in the United States mail, air mail postage prepaid, 
addressed to him at the Hamilton Bank Building, Knoxville, 
Tennessee 37902, this 25th day of November, 1970.

t

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