University of Tennessee v. Geier Brief in Opposition

    In the

dnurt of IIjjo States
Octobee T eem, 1978

No. 79-10

University of T ennessee, et a l,
Petitioners,

v.

R ita Sandebs Geiee, et al.

No. 7?-55

Tennessee H igher Education Commission,
Petitioner,

v.
R ita Sanders Geiee, et al.

on petitions for writs of certiorari to the
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Jack Greenberg
James M. Nabrit, III
Charles Stephen Ralston
B ill  L ann  L ee 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019

A von N. W illiams, Jr.
R ichard H. D inkins

Suite 1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

Attorneys for
Raymond Richardson, Jr., et al.



INDEX

Page

Questions Presented .........................................  2

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

A. District Court Proceedings .............  2

B. Court of Appeals Decision ..............  6

Argument ......................    8

Conclusion ..........................................   13

TABLE OF AUTHORITIES
Cases

Alabama State Teachers Assoc, v. Alabama 
Public School and College Authority,
289 F.Supp. 784 (M.D. Ala. 1968),
a f f 'd  per curiam, 393 U.S. 400 (1969).. 10

Blau v. Lehman, 368 U.S. 403 (1962) ............ 9

Columbus Board of Education v. Penick,
___  U.S.___ , 47 USLW 4924 (July 2,
1979), affirming, 583 F.2d 787
(6th Cir. 1978) .......................................  9

Dayton Board of Education v. Brinkman,
___ U.S.____ , 47 USLW 4944 (July 2,
1979), affirming, 583 F.2d 243
(6th Cir. 1978) . ...................................... 10

Geier v. Blanton, 427 F.Supp. 644
(M.D. Tenn. 1977) ...................................  4

Geier v. Dunn, 337 F.Supp. 573
(M.D. Tenn. 1972) ...................................  4

Green v. County School Board, 391 
U.S. 430 (1968) ................... 9



X1

Page

Milliken v. Bradley, 433 U.S. 267 (1977) .. 11

Norris v. State Council of Higher
Education for Virginia, 327 F.Supp.
1318 (E.D. Va.), a f f 'd  per curiam
sub nom Board of Visitors of the
College of William & Mary in
Virginia v. Norris, 404 U.S. 907
(1971) ......................................      10

Sanders v. Ellington, 288 F.Supp. 937
(M.D. Tenn. 1968) .......................................  4

United States v. Johnston, 268 U.S. 220
(1925) ...........................................................  8

Wright v. Council of City of Emporia,
407 U.S. 451 (1972) .....................................  9

Statutes and Other Authorities:

Revised Criteria Specifying Ingredients 
of Acceptable Plans to Desegregate 
State Systems of Public Higher 
Education, 43 Fed. Reg. 6658
(February 15, 1978) ..............................  12

Tenn. Code Ann. §49-3206 (1977) .................. 3



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1978

No. 79-10

UNIVERSITY OF TENNESSEE, et a l . ,  

Petitioners,

RITA SANDERS GEIER, et a l. ,

No. 79-55

TENNESSEE HIGHER EDUCATION COMMISSION, 

Petitioner, 

v.

RITA SANDERS GEIER, et a l. ,

ON PETITIONS FOR WRITS OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Raymond Richardson, Jr. , et a l . , p la in t i f fs -  
intervenors below, respectfully request that the 
petitions for writs of certiorari to review the 

opinion of the Sixth Circuit be denied.



2

QUESTIONS PRESENTED

1. Whether the courts below properly found 

that the St ate of Tennessee' s maintenance of Ten­

nessee St ate University as a predominantly black 

college in Nashville and the State's competitive 

development of the Un iv e r s i t y  o f Tennessee at 

Nashville as a predominantly white public college 

perpetuated an unconstitutional state created dual 

system of public higher education?

2. Whether the remedial order of the courts 

be low requiring the merger of Tennessee State Uni­

versity and the University of Tennessee at Nash­

v i l l e  a fter a decade of trying to eliminate state 

imposed segregation by other means was an abuse 

of equitable discretion?

STATEMENT OF THE CASE 

A. District Court Proceedings

Th is act ion was f i led  in 1968 by p la in tiffs  

Rita Geier, et a l . ,  black students, parents, fac­
ulty and citizens to desegregate the public higher 

education system in the St ate of Tennessee. Subse­
quent l y , the United States and Raymond Richardson, 

Jr. , et al. , additional black students, parents, 
facu lty  and c i t  izen s , intervened on behalf o f



3

p la in tif fs . Defendants include the Governor of 
the State of Tennes see and the principal State 

instrumentalities responsible for the operation 

of public higher education, v i z ., the University 

of Tennessee, the Tennessee Higher Education Com­

mission and the State Board of Regents. The 

principal issue has been the remedy required to 

eliminate the formerly statutorily required dual 

system perpetuated by the continued maintenance 

in the c ity  of Nashville, the State cap ita l, of 

Tennessee State University (TSU) as the State's 

h istoric public col lege for black persons, and 

the competitive development of formerly a l l  white 

Univers ity  of Tennes see at Nashville (UT-N) as a 

predominantly white institution alongside pre­
dominantly black TSU.

A ll Tennessee public colleges were formally 

rac ia lly  segregated pursuant to State constitu­

tional provision and law until at least 1960. Pet. 

App. 103a. TSU was established in 1912 and main­
tained as the exclusive public in s t itu t ion  of 

higher education for black persons.—̂  The Uni-

\J To this day, Tennessee law provides that: 
"The function of the Tennessee State University 
at Nashville shall be to train negro students in 
agriculture, home economics, trades and industry, 
and to prepare teachers for the elementary and 
high schools for negroes in the state." Tenn. 
Code Ann. §49-3206 (1977).



v e r s i ty  o f Tennessee, on the other hand, was 
founded and maintained as a college solely for 

white persons. UT-N was established in 1947 as a 

non-degree granting night extension school in 

Nashville solely for white students who were pro­

h ib ited  from attending nearby TSU. Pet. App. 

103a-104a. In 1968, when the action was filed , 

TSU had an a l l  black facu lty  and student body 
while UT-N remained essentially a l l  white. Pet. 

App. 4a-5a.

Over the course of eleven years of l i t iga t ion  

the d is tr ic t  court repeatedly found that "the dual 

system of education created originally by law has 

not been e f f e c t i v e l y  dismantled." Sanders v. 

Ellington, 288 F.Supp. 937, 940 (M.D. Tenn. 1968), 

Pet. App. 4a-5a; Geier v. Dunn, 337 F.Supp. 373, 

576 (M.D.Tenn. 1972), Pet. App. 19a; Geier v. 

Blanton, 427 F.Supp. 644, 651-657 (M.D.Tenn.1977), 

Pet. App. 52a-66a. The d is tr ic t  court in i t ia l ly  

declined to preliminarily enjoin the expansion of 

UT-N. (then a small non-degree granting night 

school) in 1968 because "[t jhere is nothing in the 

record to indicate that the University of Tennes­

see has any intention to make the Nashville Center 

a [competitive) degree-granting day institution," 

Pet. App. 7a. However, defendants were repeatedly 

ordered to develop a workable and e ffect ive  plan 

o f desegregation fo r  the e lim ination  of TSU' s

-  4 -



5

status as an identifiable black institution, Pet. 

App. 9a-12a, 29a-32a, 41a-66a, 105a-114a. These 
orders went unheeded, and the State expanded UT-N 

into a degree-granting predominantly white in s t i­
tution with classes beginning in the late a fter­

noon, while TSU stagnated and remained overwhelm­

ingly black. Id . Finally, in 1977, the d istr ict 

court concluded that, " [t ]h e  Court now finds that 

the existence and expans ion of predominantly white 

UT-N alongside the traditionally black TSU have 

fostered competion for white students and thus 

have impeded the dismantling of the dual system", 

Pet. App. 54a. The court made specific findings 

that the two schools were competitive institutions 

offering duplicative courses, that UT-N's unres­

trained growth prevented TSU from attracting white 

students, and that the State' s various jo int, co­

operative and exclusive programs between the two 

schools had fa iled to result in substantial de­

segregation of the dual system in Nashville. Pet. 

App. 54a-66a, 105a-114a.

On the basis of 20 days o f t r i a l  (and the 

unanimous opinion of a l l  the expert witnesses for 

the parties ), the court concluded that "at this 

time the only reasonable alternative is the merger 

of TSU and UT-N into a single institution," and 

ordered merger no later than July 1980 under the 

State Board of Regents, the defendant governing



6

board of TSU. Pet. App. 67a, 114a.—̂  The State 

Board of Regents f i l e d  a plan o f merger which 

provides "a comprehensive framework for imple­

mentation of merger," including joint TSU-UT-N 

implementation committees and subcommittees, time— 

tables, and fu l1 implementation of merger in July- 

August 1979. Pet. App. 116a-117a. The plan, 

which expressly provides that UT-N's continuing 

education and evening programs are to continue at 

its  downtown campus as part of TSU, was accepted 

by the d istr ict court. Pet. App. 117a.

B. Court of Appeals Decision

Two of the State defendants, the University 

of Tennessee and the Tennessee Higher Education 

Commission, appealed. On April 13, 1979, a major­

ity  of the court of appeals, Judges Lively and 

Peck, affirmed in a lengthy and comprehensive

2/ Merger was sought by a l l  the parties plain­
t i f f  and TSU. Pet. App. 64a, 110a, 112a. Merger 
was opposed by defendants University of Tennessee 
and Tennessee Higher Educat ion Commission, a l­
though in 1972 the Commission had reported that 
"a merger of Tennessee State and U.T Nashville 
does not appear to be fea s ib le  at the present 
time, although this may be necessary at some time 
in the future to complete the desegregation pro­
cess and to eliminate duplication and overlapping 
of programs." Pet. App. 66a, 110a.



opinion. Pet. App. 102a. Judge Engel concurred 

in the affirmance of the finding of a clear under­

lying constitutional violation arising from the 

State's failure to dismantle the dual system in 

Nashville, but dissented on the particular remedy 

ordered. Pet. App. 132a-134a. Judge Engel would 

have vacated the judgment and remanded for further 

proceedings specifica lly  for "the entry of appro­

priate injunctive r e l i e f  to confine UT-N to those 

courses and activ it ies  which were offered prior to 

the exp ansi on in 1969" or " [ s ]hould UT-N not be 

satisfied with this, there remains available to i t  

the opportunity to enter into [a voluntary merger] 

agreement with TSU such as that which is now in 

e ffec t  in Memphis between UT and Memphis State 

University." Pet. App. 142a-143a.
3/On July 1, 1979 TSU and UT-N were merged.—

Petitions for certiorari have been f i led  by 

defendants University of Tennessee (No. 79-10) and 
Tennessee Higher Education Commission (No. 79-55). 

Ne ither defendant Governor nor defendant State 

Board of Regents have sought review.

3/ On June 18, 1979 the fu ll  Court denied appli­
cations for a stay of the merger f i led  by peti­
tioners University and Higher Education Commis­
sion. Motions to stay the merger previously had 
been considered and denied twice by the d istr ict 
court and twice by the court of appeals.



8

ARGUMENT

1. The petitions request the Court to re­

view evidence and discuss specific facts, see, 

United States v. Johnston, 268U.S.220, 227(1925). 

Petitioner 's  argument with the courts below is 

that "the mere existence of a predominantly black 

institution of higher education" is insufficient 

proof of discrimination. UT Pet. 17, THEC Pet. 

19. The court of appeals, however, specifica lly  

rejected this characterization of the factual re­

cord: "This is not an accurate statement of the

d istr ic t  court's holding . . .  It was the failure 

of the defendants to dismantle a statewide dual 

system, the 'heart' of which was an all-black TSU, 

which was found to be a continuing constitutional 

v io la tion ." Pet. App. 118a, see also, 133a-134a. 

The related factual claim that the University of 

Tennessee played no role in the maintenance of 

Tennessee State University  as a predominantly 

black institution, UT Pet. 27, THEC Pet. 22, was 

also specifica lly  rejected by the court of appeals 

because " [ t]he d istr ict court found that acts of 

the UT Board in expanding the program and size of 

UT-N impede desegregation of TSU and thus the dis­

mantling of Tennessee's dual system of public 

higher education." Pet. App. 128a.



9

These factual contentions which two courts 

be low have rejected are neither meritorious nor 

appropriate for certiorari. See, e .g . , Blau v. 

Lehman, 368 U.S. 403 (1962). With respect to 

v io la t io n ,  a l l  four judges who considered the 

merits below found facts supporting a finding of 

constitutional violation. Two courts below found 

that the factual record required a merger remedy; 

the lone dissenter would have required either a 

more drastic remedy, i . e , stripping UT-N o f a ll 
its  post-1968 expansion programs and activ it ies , 

or the same remedy, i . e . , providing UT-N with the 
opportunity to voluntarily transfer its programs 

to TSU. Pet. App. 142a-143a.

2. The le g a l  standards applied by the 

courts below are neither novel nor remarkable. 

The actions of St ate de fendants in expanding UT-N 
as a white alternative to TSU in the Nashville 

area, and the ineffective e fforts  taken to elim i­

nate the prior dual system imposed by law were 

measured against the affirmative duty of the State 

to provide for e f f e c t i v e  desegregat ion and to 

desist from impeding the desegregation process. 

Green v. County School Board, 391 U.S. 430 (1968); 
Wright v. Council of City of Emporia, 407 U.S. 

451, 460 (1972). These basic principles of school 
de segregation law were just reaffirmed in Columbus



10

Board of Education v. Penick, ___ U.S. , 47 USLW

4924, 4926-4927 (July 2, 1979), affirming, 583

F .2d 787 (6th Cir. 1978), and Dayton Board of

Education v. Brinkman, ___  U.S. , 47 USLW 4944,
4947 (July 2, 1979), affirming, 583 F.2d 243 (6th 

Cir. 1978).

Nor is there any authority for the claim that 

the sum total of the State's obligation to dis­

mantle a dual system in the f ie ld  of public higher 

education is merely to drop formal racial bars to 
admission. UT Pet. 21, THEC Pet. 12. Indeed, i t  

has long been recognized that the affirmative duty 

to desegregate is as exacting in public higher 

education, but that the means of eliminating dis­

crimination are necessarily different when dealing 

with d i f fe ren t  leve ls  o f education. Norris v. 

State Counci1 o f Higher Education for Virginia, 

327 F.Supp. 1318 (E.D. Va.), a f f 'd  per curiam sub 
nom Board of Visitors of the College of William & 

Mary in Virginia v, Norris, 404 U.S. 907 (1971); 

Alabama State Teachers Assoc. v. Alabama Public 

School and College A u thority , 289 F.Supp. 784 
(M.D. Ala. 1968), a f f 'd  per curiam, 393 U.S. 400 

(1969). Compare Pet. App. 118a-123a. That the 

long settled principle of the affirmative duty to 

dismantle a dual system of public education is 
applied in this case to higher education does not 

in i t s e l f  raise substantial questions. Id.



11

Certainly, the clear factual record in this 
case of purposeful state act ion that inevitably 

impeded the process of desegregation, in which a l1 

four judge s be low concurred, does not press the 

limits of any doctrine of l i a b i l i t y .

3. The remedy of merger was ordered by the 

d is tr ic t  court only after nearly a decade of l i t i ­

gation and repeated submission of unworkable dese­
gregation plans by defendants. There was no abuse 

of equitable discretion under the facts in this 

case. Milliken v. Bradley, 433 U.S. 267, 280-282

(1 9 7 7 ) . Nor is the merger remedy unique or unpre-

4/ The court of appeals held that:

"The scope of the d is tr ic t  court's equitable 
power is broad enough to encompass a merger 
order under the facts of th is case. The 
court 's  experience taught that the only 
meaningful resu lts  were obtained when i t  
ordered the graduat e program in educat ion 
transferred exclusively to TSU. A merger of 
the two institutions w il l  involve the dis­
tr ic t  court in their day-to-day a ffa irs  to a 
much less pervasive degree than any attempt 
by i t  to divide and allocate a ll the various 
programs to one school or the other. Merger 
also intrudes less into the freedom of stu­
dents to attend a co llege  o f  the ir  choice 
than any plan which might require compulsory 
assignments to bring about a dismantling of 
the dual system. The acknowledged d i f fe r ­
ences between higher education and education 
at the primary and secondary levels appear to

(contd. )



12

cedented. As both the d is tr ic t  court and court of 

appeals found, the competition between preexisting 

Memphis State University, a predominantly white 
sister school of TSU, and an expanding University 

of Tennessee fa c i l i t y  in another Tennessee c ity, 

Memphis, was resolved by merger of the two in s t i­

tutions under Memphis State. Pet. App. 56a-58a, 
126a, see also 142a-143a.—̂

There simply is  no warrant to unravel a 
remedy that has provided Nashville, Tennessee for 

the f ir s t  time with equal educational opportunity 
in public higher education.

4/ (cont'd)
make such frequently used remedies as assign­
ment and transportation of students to a par­
ticular institution unworkable as well as un­
desirable. "

Pet. App. 125a-126a.

5/ Guidelines o f the U.S. Department of Health, 
Education and Welfare promulgated pursuant to 
T it le  VI of the C iv il Rights Act of 1964, 42 U.S.C 
§2000d, specifica lly  approve "merging institutions 
or branches thereof, particularly where institu­
tions or campuses have the same or overlapping 
service areas" as a desegregation device in public 
higher education. Revised Criteria Specifying 
Ingredients o f Acceptable Plans to Desegregate 
State Systems of Public Higher Education, 43 Fed. 
Reg. 6658, 6661 (February 15, 1978).



13 -

CONCLUSION

The petitions for writs of certiorari f i led  

by the University of Tennessee and the Tennessee 

Higher Educat ion Commission should be denied.

Respectfully submitted.

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

Suite 1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, I I I  
CHARLES STEPHEN RALSTON 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Raymond 
Richardson, Jr. et a l .