Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Second Brief of Appellant/Cross-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ROBERT KELLEY, et al.,
Plaintiffs, j

)v- )
METROPOLITAN COUNTY BOARD OF j
EDUCATION OF NASHVILLE AND )
DAVIDSON COUNTY, TENNESSEE, )et al., )

)Defendants, )
Third Party Plaintiffs, )
Appellees and Cross- )Appellants )

v* )
STATE OF TENNESSEE; LAMAR j
ALEXANDER, GOVERNOR OF THE )
STATE OF TENNESSEE; ROBERT )
L. McELRATH, COMMISSIONER - )OF EDUCATION; and STATE )
BOARD OF EDUCATION, )

)Third Party Defendants, )
Appellants and Cross- )Appellees. )

Nos. 85-5837/38

SECOND BRIEF OF APPELLANTS/CROSS-APPELLEES

W. J. MICHAEL CODY 
Attorney General & Reporter
STEPHEN NUNN
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 (615) 741-7404

O F F IC E  OF THE

At t o r n e y  G e n e r a l  o f  T e n n e s s e e
450 JAMES ROBERTSDN PARKWAY 

NASHVILLE, TENNESSEE 37219



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES i i

INTRODUCTORY STATEMENT 1

ISSUES PRESENTED FOR REVIEW...................... 1a

ARGUMENT:
I. WHETHER THE DISTRICT COURT WAS 

CORRECT IN HOLDING THAT THE 
ELEVENTH AMENDMENT BARS ANY 
AWARD OF MONETARY RELIEF TO 
THIRD-PARTY PLAINTIFFS PRIOR 
TO THE DATE OF THIRD-PARTY 
COMPLAINT WAS FILED................. 2

II. THE STATE TAKES EXCEPTION 
TO THIRD-PARTY PLAINTIFFS’
RELIANCE ON FACTUAL ALLEGA­
TIONS AS TO WHICH NO FINDINGS 
WERE ENTERED BY THE DISTRICT
COURT...............................  5

CONCLUSION.......................................  9

CERTIFICATE OF SERVICE..........................  9

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TABLE OF AUTHORITIES

CASES CITED PAGE(S)

Brinkman v. Gilligan,
No. C-3-75-304 (S.D. Ohio 1985 )..................... 2,3
Edelman v. Jordan,
415 U.S. 651, 94 S.Ct. 1347,
39 L. Ed . 2d 662 ( 1974)............................... 3
Evans v. Buchanan,
447 F.Supp. 982 (D. Del. 1978),
affd 582 F . 2d 750 ................................... 6
Ford Motor Co. v. Department of Treasury,
323 U.S. 459, 65 S.Ct. 347,
89 L.Ed. 389 ( 1945 )................................. 4
Green v. Mansour,
54 U.S.L.W. 4011 ( 1985 )............................. 3
Liddell v. State of Missouri,
731 F. 2d 1294 (8th Cir. 1984)....................... 7
Little Rock School District 
v. Pulaski County School District,
778 F. 2d 404 (8th Cir. 1 9 8 5).......................  7

OTHER AUTHORITIES
T.C.A. § 49-3-309 ...................................  5
617 F.Supp. 1147.................................... 2



INTRODUCTORY STATEMENT

In this cross-appeal, the State, Third-Party Defen­
dant in this cause, has by stipulation assumed the role of 
appellant. The State's brief as appellant has been pre­
viously filed. The Metropolitan County Board of Education of 
Nashville and Davidson County, Third-Party Plaintiff, has 
filed a brief setting forth its response to the State's brief 
as appellant and, simultaneously, briefing its own cross­
appeal from a portion of the trial court's order.

With the instant brief, the State submits to the 
Court both its position as cross appellee [Section I] and its 
rebuttal as appellant herein [Section II].

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UNITED STATES COURT OP APPEALS
FOR THE SIXTH CIRCUIT

ROBERT W.

(This statement should be placed immediately preceding 
the statement of issues contained in the brief of the party.)

K E L L E Y , 

P l a i n t i f f s

e t a 1

M E T R O P O L I T A N  COUNTY BOARD 
OF N A S H V I L L E  AND D A V I D S O N  
T E N N E S S E E ,  e t  a l

OF E D U C A T I O N  
COUNTY.  I

D e f e n d a n t s ,  T h i r d - P a r t y  
P l a i n t i f f s ,  A p p e l l e e s  and 
C r o s s - A p p e l l a n t s

5 TA TE OF TE N IVIES
G0 Ve r n o r o f S t a
McE LRA TH , Comm
B OA RD OF RE GENT

Th l r d Pa r t y De
Pursuant to 6th

r)

NOS:  8 5 - 5 8 3 7 ,  8 5 - 5 8 3 8

E, LAMAR A L E X A ND E R  
o f  T e n n e s s e e ,  ROBERT1'

Cr ° Z i s "d iS & Io st /r e a6 6 r &o r TXt e  a f f il ia t io n s  
AND F INANCIAL INTEREST

D e f e n d a n t s ,
Cir. R. 25, _______ THIRD-PARTY DEFENDANTS

makes the following disclosure:
(name of party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? NO

If the answer is YES, list below the identity of the parent corporation or affiliate 
and the relationship between it and the named party:

n/a

Is there a publicly owned corporation, not a party to the appeal, that has a 
financial interest in the outcome? NO____

Lf the answer is YES, list the identity of such corporation and the nature of the 
financial interest:

n/a

aJ
f Counsel)

A s s i s t a n t  A t t o r n e y  G e n e r a l  
6CA-1 STATE  OF T E N N E S S E E  
2/85

(Signature o



ISSUES PRESENTED FOR REVIEW

I. Whether the District Court was correct in holding 
that the Eleventh Amendment bars any award of monetary relief 
to Third-Party Plaintiffs prior to the date the Third-Party 
Complaint was filed.

II. The State takes exception to Third-Party Plain­
tiffs' reliance on factual allegations as to which no findings 
were entered by the District Court.

I

-1a-



ARGUMENT

I. The District Court Was Correct in Holding that 
the Eleventh Amendment Bars Any Award of Monetary Relief bo 
Third Party-Plaintiffs Prior to the Date the Third-Party 
Complaint was Filed.

Third-party plaintiffs (Metro) have appealed the 
District Court's ruling that the Eleventh Amendment prohibits 
a retroactive award of desegregation-related costs prior to 
March 16, 1981 - the date Metro filed its Third-Party 
complaint against the State. The State wishes to take this 
opportunity to assert formally its position, as appellee, that 
this element of the District Court's ruling, at 617 F.Supp. 
1147, was correct. As grounds for its position, the State 
would rely upon, and incorporate by reference, all of the 
arguments and authorities set forth in Sections I and II of 
its brief as appellant herein.

Third-Party Plaintiffs appear to acknowledge, at 
page 38 of their brief, that desegregation cases which have 
awarded wholesale retroactive monetary relief against states 
contained scant Eleventh Amendment analysis, if any. They, 
do however, cite Brinkman v. Gilligan, No. C-3-75-304
(S.D. Ohio 1985)[addendum A to State's Brief as appellant],

>

turning to Brinkman for the proposition that the Court there 
"specifically ordered that Ohio authorities in the Dayton 
School District were to share jointly and severally the cost

- 2 -



of the desegregation plan implemented years earlier," before 
any adjudication of state liability was entered. Third 
Party Plaintiffs Brief, p. 38.

The first point to note in response to this reading 
of Brinkman is that, as the District Court noted, the state 
defendants were there being held as successors in office of 
earlier state officials named when the suit was initially 
filed. Successors in office of state officials are subject 
to § 1983 claims for injunctive relief brought against their 
predecessors. Brinkman v. Gilligan, supra, page 2, n.2. But 
the instant Tennessee officials cannot be held liable for 
injunctive relief applicable against their predecessors 
(assuming any would have been available if timely sought) 
because those predecessors were never named.

Secondly, if indeed the District Court is awarding 
relief prior to the date of the initial valid injunction, it 
would appear to be in error under the Supreme Court's reason­
ing in Green v. Mansour, 54 U.S.L.W. 4011 (1985), and 
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 
662 (1974). See State's Brief as Appellant, pp. 19-22.

Finally, it should be noted that the Ohio state offi­
cials in Bri nkma n were not, in fact, invoking the Eleventh 
Amendment. Rather, the District Court was simply discussing 
the issue sua sponte. Brinkman, supra, at page 8.

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Metro's argument on the Eleventh Amendment issue (pp. 
30-39 of its brief) reduces to the proposition that, essen­
tially on policy grounds, there should be an exception made to 
the Amendment's bar for desegregation cases. Metro is in 
effect asking this Court to make new law, on a scale com­
parable to that of Ex Parte Young itself.

The Eleventh Amendment's explicit limitation on 
federal court jurisdiction is one of "compelling force," Ford 
Motor Co. v. Department of Treasury, 323 U.S. 459, 467, 65 
S.Ct. 347, 352, 89 L.Ed. 389 (1945); and the Court should 
exercise great care before embarking on such a course.

Racial segregation is a reprehensible social evil 
and has been recognized as such by the federal courts and by 
the courts of Tennessee. Noxious as it is, however, damages 
resulting from racial segregation are not different from 
other types of damages which may arise through unconstitu­
tional conduct by states. See Justice Marshall, dissenting, 
in his Green footnote, 54 U.S.L.W. at 4016. No convincing 
rationale appears why the Eleventh Amendment could be 
vitiated in the context of desegregation, yet maintained in 
welfare benefits cases, prisoners' civil rights cases, or 
any other § 1983 cause of action. Therefore, to adopt 
Metro's approach extends the fiction of Young so far that 
the Amendment's purpose would be destroyed.

-4-



II. The State Takes Exception to Third-Party 
Plaintiffs' Reliance on Factual Allegations As to Which No 
Findings Were Entered by the District Court.

In rebuttal to the brief filed by Third-Party 
Plaintiffs, the State has relatively little to add to its pre­
vious brief in terms of arguments or citations to authority.
The State does, however, take exception to certain portions of 
Metro's brief where allegations of fact are made and relied 
on, although the District Court entered no findings thereon.

The most significant instance of this is Metro's 
repeated criticism of revisions in the state transportation 
reimbursement formula. See Third-Party Plaintiffs' brief at 
pp. 7, 28. This is a reference to T.C.A. § 49-3-309. The 
district court entered no findings regarding this statutory 
formula. There was evidence presented that, far from penaliz­
ing Metro because of its desegregation burden, the formula in 
fact accorded it especially favored status. See State's 
Memorandum in Support of Motion for Summary Judgment, filed 
December 19, 1984, pages 32-34, and Affidavit of Dr. Joel 
Shore, Exhibit 10 thereto. The State objects to Metro's 
presentation of this statute on appeal.

The State also takes strong exception to Metro's 
representations concerning the State's non-participation in the 
design of the current desegregation plan, at page 29 of its

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brief. The State has explained this position in its Response 
to Metro's Motion for Partial Summary Judgment, filed February 
12, 1985, at pp. 7-8. The District Court entered no findings 
on this point, and it is therefore not properly before this 
Court for review.

Likewise, the District Court entered no findings on: 
the allegation that, in the 1950's, the then-Governor spon­
sored segregationist legislation; any speech made by former 
Governor Winfield Dunn; or Governor Alexander's proposed school 
voucher plan. The District Court certainly makes no finding 
that the state "conspired to thwart" Metro's desegregation ef­
fort, as alleged at page 26, n.28 of Third-Party Plaintiffs' 
Brief.

The State takes exception to Metro's suggestion 
that it cited Evans v. Buchanan, 447 F.Supp. 982 (D. Del. 
1978) , affd 582 F.2d 750, in a misleading or erroneous way. 
Evans does award some state support to the county, but it is 
a very modest amount and is awarded only for a relatively 
brief transitional period. 447 F.Supp. at 1038-39. The 
Court notes that it is "mindful of the State's objection to 
continually paying for open-ended ancillary relief." Id. 
at 1038. Again, however, no significant discussion of the 
Eleventh Amendment is presented.

- 6 -



The State denies Metro's assertion, at page 17 
of its brief, that the State has admittedly never acted affir­
matively to remove vestiges of state imposed segregation in 
Nashville. See State's Response to Metro's Request for Ad­
mission #2 [Addendum A hereto]. The very funding which 
Third Party Plaintiffs and the District Court, in their 
misapplication of the Penick test, criticize, can well be 
viewed as an effort to assist in Metro's school desegregation. 
See also Affidavits attached as Exhibits 1-10 to Memorandum in 
Support of State Defendants' Motion for Summary Judgment filed 
December 19, 1984. As discussed in Sections IV and VI of its
brief as appellant, the State contends that it has fully met 
its affirmative duty in the context of the Nashvi1le-Davidson 
County school desegregation situation.

Finally, the State wishes to direct the Court's 
attention to the Eighth Circuit's recent decision in Little 
Rock School District v. Pulaski County School District, 778 
F.2d 404 (8th Cir. 1985). The opinion requires the State of 
Arkansas to participate in funding the desegregation remedy. 
However, the Court of Appeals, while frequently referring to 
its earlier opinion in Liddell v. State of Missouri, 731 F.2d 
1294 (8th Cir. 1984), never cites that case for the proposi­
tion advanced by Metro that pre-Brown constitutional and sta­
tutory provisions mandating segregation, standing alone,

-7-



support state liability in desegregation cases. Instead, the 
Court recites a series of findings ranging from President 
Eisenhower's having to send federal troops to Little Rock in 
1957 to misconduct by the Arkansas real estate commission in 
disciplining a black realtor. No comparable findings have ever 
been made regarding conduct by the State of Tennessee, nor 
could they be. Like so many of the other cases relied on by 
Metro, this latest ruling does not address Eleventh Amendment 
issues.

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CONCLUSION

For the reasons above stated, and for the reasons 
stated in the State's previously filed brief in this cause, 
the District Court's order of August 14, 1985, granting 
Third-Party Plaintiff's Motion for Summary Judgment, should 
be reversed; and that portion of the District Court's order 
denying relief prior to the date the Third-Party Complaint was 
filed, should be affirmed.

STEPHEN NUNN
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219-5025 
(615) 741-7404

CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the 

foregoing has been forwarded by first class U.S. mail, post­
age prepaid, to Mr. Avon Williams, Attorney at Law, 203 2nd 
Avenue North, Nashville, TN 37201, Mr. Theodore M. Shaw, NAACP 
Legal Defense Fund, 99 Hudson Street, 16th Floor, New York,
NY 10013, and to William R. Willis, Jr. and Marian P.
Harrison, WILLIS & KNIGHT, 215 2nd Avenue North, Nashville, TN 
37201, on this the /fa day of April, 1986.

STEPHEN_NUNN
Assistant Attorney General

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ADDENDUM A



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT W. KELLEY, et al., )
)Plaintiff, )
)v. )
)METROPOLITAN COUNTY BOARD OF )

EDUCATION OF NASHVILLE & 
DAVIDSON COUNTY, TENNESSEE, 
et. al.,

Defendants and 
Third-Party Plaintiffs,

v.

STATE OF TENNESSEE;
LAMAR ALEXANDER, Governor 
of the State of Tennessee; ROBERT L. MCELRATH, 
Commissioner of Education and
STATE BOARD OF EDUCATION, 

Third-Party Defendants.

)
))
)
)
)
)) NOS. 2094, 2956 ) JUDGE THOMAS A. WISEMAN, JR. 
)
)
)
)
)
)
)
)
)

DEFENDANT'S RESPONSE TO REQUEST FOR ADMISSIONS

Come now the Third-Party Defendants and respond as 
follows to Defendants' Requests for Admissions.

Request 1. Either before Brown vs. Board of 
Education or afterwards the State of Tennessee has never 
appropriated or spend a single state tax dollar for desegre­
gation in the public elementary, junior high, or high school 
grades in Tennessee.

1



Response. Defendants object in that this request 
pertains to the entire State of Tennessee rather than to 
Metropolitan Nashville Davidson County and that therefore 
the information sought is not reasonably calculated to lead 
to the discovery of admissible evidence.

Request 2. Either before Brown vs. Board of 
Education or afterwards the State of Tennessee has never 
appropriated or spend a single state tax dollar for desegre­
gation in the Nashville or Davidson County public elemen­
tary, junior high, or high school grades.

Response. Denied. The Tennessee General Assembly 
has appropriated many thousands of dollars for Nashville or 
Davidson County for transportation, capital outlay, and 
operation of local schools. Although these dollars have not 
been earmarked for desegregation as such many of these 
dollars have been expended by Nashville or Davidson County 
schools for the purposes of desegregation.

Request 3. All expenditures by the State defen­
dants relating to desegregation in public, elementary, 
junior high, or high school grades, have been made through 
federal funds.

Response. Defendants object in that this request 
pertains to the entire State of Tennessee rather than to

2



Metropolitan Nashville Davidson County and that therefore 
the information sought is not reasonably calculated to lead 
to the discovery of admissible evidence.

Request 4. From 1955 to date, the state defendants 
have been fully aware of the racial makeup of elementary and 
secondary schools in Nashville and Davidson County, both 
with respect to faculty and student desegregation.

Response. Admitted.

Request 5. Before Brown v. Board of Education and 
continuing until the late 1960's, the state defendants 
classified elementary and secondary schools as white/negro 
and obtained reports from local school systems requiring the 
categorization of schools by white/negro.

Response. Admitted except that defendants deny 
that such categorization continued until the late 1960's. 
Defendants submit that such categorization continued only 
until the early 1960's.

Request 6. Since Swann v. Charlotte Mecklenburg in 
1971, and othe decisions in the late 1960's and 1970's 
ordering bussing in school systems, the State Board of 
Education has publicly opposed forced bussing for desegrega­
tion purposes.

3



Response. Defendants admit that in 1971 and 1982 
the State Board of Education adopted resolutions to this 
effect. Defendants deny any implication to this request 
that said opposition was a continuing proposition.

Request 7. If a local school system violates 
requirements contained in the State Board of Education's 
"Rules, Regulations and Minimum Standards," sanctions may be 
imposed. These sanctions include the withholding of state 
funding.

Response. It is admitted that the sanction of 
withholding of State funding may be imposed if a local 
school system violates requirements contained in the State 
Board of Education's "Rules, Regulations and Minimum 
Standards" but it is denied, as implied in this request, 
that other sanctions are available to the State Board of 
Education.

Request 8. The State's transportation reimburse­
ment formula takes into account only numbers of students 
transported at the State's eligibility limits and the size 
of the school district. It has never taken into account 
either the actual per capita cost of transportation or the 
time or distance buses travel in a given district.

Response. Admitted.

4



Request 9. Several attempts have been made in the 
legislature since 1955 to pass laws prohibiting school 
systems subject to court orders from being penalized finan­
cially or otherwise (under state programs or formulas) from 
the effects of the courts' orders, but all such efforts have 
failed.

Response. Defendants object to this request on the 
grounds that it does not appear reasonably calculated to 
lead to the discovery of admissible evidence since unsuc­
cessful legislative proposals are entirely irrelevant and 
immaterial to any question of liability of the defendants.

Request 10. State defendants have never taken into 
account local schools systems undergoing desegregation in 
their state funding formulas.

Response. Denied. The State Department of 
Education has taken into account local school systems 
undergoing desegregation in its state funding formula. 
Shortly after the court order of 1972, the state authorized 
a seventh and eighth grade located on one campus to be 
paired with a ninth grade on a separate campus as one junior 
high school. This enabled the school to be funded as a 
junior high school which, prior to 1977, was funded at a
higher level than an elementary school. See the attachments 
hereto.

5



Request 11. Prior to Brown v. Board of Education,
had a local school system or any employee thereof sought to 
integrate its public schools, that system or the individuals 
requiring integration would have been subject to state pro­
secution.

Response. Denied in that defendants can not admit 
that individuals "would" have been subject to prosecution.

Request 12. After Brown v. Board of Education, the 
expressed State policy regarding integration and desegrega­
tion was to tell the local school systems that it was their 
problem.

Response. Denied.

Request 13. With the exception of desegregation 
and bussing for desegregation purposes, the State regulates 
every area of local school administration.

Response. Denied. The state legislature has
vested the authority to local Boards of Education to operate 
the schools. The State Board of Education regulates only in 
a broad sense of setting standards and only in certain 
areas.

Request 14. In reference to page one of the 
Xeroxed materials provided the Board by the state defendants

6



in response to the first request for production of documents 
(letter of October 24, 1966 from Warf to Taylor), the only 
positive action in local school districts referred to in the 
last paragraph in that letter relates to monitoring necessi­
tated by the receipt of federal funds.

Response. Defendants object to this request in 
that it seeks interpretation of a letter, the signatory of 
which is no longer Commissioner of Education or a defendant 
in this cause. Defendants submit the document speaks for 
itself.

Request 15. All documents to which the Metro­
politan Board of Education was directed in the State's 
responses to the Board of Education's request for production 
(two requests) came from the files of the state defendants 
and the state defendants had knowledge of their contents.

Response. It is admitted that all documents to 
which the Metropolitan Board of Education was directed in 
the State's responses to the Board of Education's request 
for production (two requests) came from the files of the 
state defendants. It is denied that the state defendants 
had knowledge of the contents of these files. These defen­
dants are persons who have been in office for only a brief 
portion of the time during which the referenced documents 
were generated and the individual defendants have not had

7



occasion to search these files and obtain knowledge of their 
contents.

Request 16. The Tennessee State Department of 
Education has statewide responsibility in assisting local 
school systems effecting an orderly and constructive tran­
sition in the process of achieving school desegregation and 
equal educational opportunities.

Response. Defendants object in that this request 
pertains to the entire State of Tennessee rather than to 
Metropolitan Nashville Davidson County and that therefore 
the information sought is not reasonably calculated to lead 
to the discovery of admissible evidence.

Request 17. The attached documents are com­
pilations made by or used by the State Board of Education, 
and describe the wide variety of legislation that is pro­
posed or passed by the State relating to education.
(Exhibit A).

Response. Denied. The attached documents were 
neither made by nor used by the State Board of Education.

Request 18. The Tennessee State Legislature has 
the ability and constitutional authority to pass statutes 
regulating every aspect of local education. Accordingly, it 
could, if it so chose, pass statutes requiring and funding

8



desegregation, supporting racial integration or the elimina­
tion of one race schools.

Response. Admitted, but the constitutionality of 
any such statutes would be subject to judicial review.

Request 19. Prior to Brown v. Board of Education, 
segregation in education was a state matter and desegrega­
tion or integration was punishable and condemned by state, 
not local law.

Response. Defendants object to this request in 
that to accurately respond they would be required to review 
local ordinances for hundreds of entities for a period of at 
least the late 1800's to the mid-1950's such a requirement 
is manifestly unduly burdensome and unjust.

Request 20. The statutes specified in the state 
defendant's answer to interrogatory two (first set of 
interrogatories) (that is, sections 49-1770, (1976) and
49-2170 (1975)) are the only statutory enactments that have 
been passed which the state defendants claim were designed 
to promote integration in public education.

Response. Admitted.

Request 21. The actions described by the state 
defendants in answer to interrogatory two (first interroga­

9



tories to the state defendants), are the only instances 
wherein the state contends that it acted affirmatively to 
promote or aid desegregation.

Response. Defendants object to this request in 
that it is not limited to the educational context in the 
grades K-12 and it therefore is not reasonably calculated to 
lead to the discovery of admissible evidence in that it 
seeks information not relevant to the pending action. The 
issue of desegregation occurred in other areas in addition 
to education.

Request 22. Prior to Brown v. Board of Education 
and for some time afterwards, the state maintained two 
separate structures for the administration of negro public 
education and white public education. The negro public ele­
mentary and secondary schools came under the separate divi­
sion of negro education, its predecessors and successors.

Response. It is admitted that prior to Brown v. 
Board of Education the state maintained two separate struc­
tures for the administration of negro public education and 
white public education and that the negro public elementary 
and secondary schools came under the separate division of 
negro edcuation, its predecessors and successors. It is 
denied that this system continued for some time after Brown 
v. Board of Education and it is explicitly averred that

10



after 1954-1955 the State Department of Education no longer 
maintained a division of negro education.

Request 23. After Brown v. Board of Education, 
until the passage of the Civil Rights Act of 1964 and the 
concomitant restrictions on the use of federal funds, the 
state defendants maintained a hands-off policy in regard to 
elementary and secondary school desegregation, with the 
exception of the continued maintenance and further promulga­
tion of pro-segregationist statutes.

Response. Denied in that no "pro-segregationist 
statutes" were maintained or promulgated by defendants after 
Brown v. Board of Education. Defendants submit that any 
state statute which could be construed as calling for segre­
gation of the public schools of Tennessee have been declared 
unconstitutional by the federal courts and were therefore 
void and cannot be considered to have been maintained or 
further promulgated by defendants. Defendants further deny 
that they maintained a "hands-off" policy in regards to 
desegregation of elementary and secondary schools in that 
the Department of Education did provide some information to 
local education agencies during that time period.

Request 24. None of the state defendants have ever 
suggested or supported legislation, regulations, or policies 
designed to foster and support the elimination of one race

11



schools in this state's public elementary and secondary 
schools.

Response. Defendants object to this request on the 
grounds that the information sought does not appear reason­
ably calculated to lead to the discovery of admissible evi­
dence. See also response to request number 9.

Respectfully submitted,
W.J. MICHAEL CODY
Attorney General and Reporter

R. Stephen D6ughty //
Deputy Attorney General' \/ 
450 James Robertson Parkway 
Nashville, Tennessee 37219 (615) 741-6440

SbepTfen 'Nunn 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 (615) 741-1730

12



CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the
foregoing Defendant's Response To Request For Admissions has 
been forwarded by first class U.S. mail, postage prepaid, to 
William R. Willis, Jr. and Marian F. Harrison, 215 2nd 
Avenue North, Nashville, Tennessee 37201 and Avon N. 
Williams, Jr., 203 2nd Avenue North, Nashville, Tennessee 
37201, this A a y of October, 1984.

13