Nashville I-40 Steering Committee v. Ellington Brief for Plaintiffs-Appellants

    ■1
( S  '/O

IN THE
UNITED STATES COURT OF APPEALS 

/ FOR THE SIXTH CIRCUIT
NO. 18,288

NASHVILLE 1-40 STEERING COMMITTEE,
AN UNINCORPORATED ASSOCIATION,
AND ITS INDIVIDUAL MEMBERS, 
et al.,

Plaintiffs-Appellants,
-v. -

BUFORD ELLINGTON, GOVERNOR,
STATE OF TENNESSEE, et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Tennessee, Nashville Division

BRIEF FOR PLAINTIFFS-APPELLANTS

• / ''/ \
AVON N. WILLIAMS, JR.

327 Charlotte Avenue 
Nashville, Tennessee 37201

JACK ’GREENBERG 
JAMES M. NABRIT, III 
MICHAEL DAVIDSON 
CHARLES II. JONES, JR.

10 Columbus Circle 
New York, New York 10018

for Pi .intiffs-AppellantsAttorneys



TABLE OF CONTENTS

Page
Statement Of Questions Involved.......... .............. 1
Statement Of The Case................................... 2i •„» . '
Specification Of Er3:or . „ .............. '............. 15
Argument................ .............. ■................15

Did State Officials Deprive Plaintiffs- 
Appellants Of Their Rights Under The 
Federal Highway. Act of 1956 By Failing 
To Consider The Economic Effects Of The 
Planned Location Of Interstate-40 In 
North Nashville? The District Court 
Did Not Answer The Question. Plaintiffs- 
Appellants Contend The Answer Should Be 
“yes."......................................... 15
Will The Construction Of The Highway 
As Presently Planned Deprive Pla.intiffs- 
Appellants Of Their Rights To Due 
Process And The Equal Protection Of 
The Law? The District Court Answered 
"No." Plaintif fs-App'ellants Contend 
The Answer Should Be "Yes.".................. 19

III. Is Plaintiffs-Appellants Claim That
State Officials Failed To Comply With 
The Requirements Of The Federal Highway 
Act Regarding Public Hearings A Claim 
Upon Which Relief Can Be Granted?
The District Court Answered "No."
Plaintiffs-Appellants Contend That It
Should Be Answered "Yes." . . . . . .  ..........  24

Relief.............................: .................. 2 7

Table Of Cases
Baker- v. Carr, 36 9 U.S. 186........ ..........■ l
Burton v. Wilmington Parking Authority,

365 U.S. 7 1 5 .................. ..
Deal v.’ Cinc.inna.tti Board of Education,

369 F.2d 55 (6th Cir. 1966)................
Glicker v. Michigan Liquor Control Commission, 

160 F.2d 96 (6th Cir.' 1947)................
Hobson v. Hanson, 269 F.Supp. 401

(D.C. Cir. 1957) ........ .. . . .
Hoffman v. Stevens, 177 F.Supp. 893

(M.D. Pa. 1959) ........ .............. . .

21,22

21,22

23

21

21

24,25



ii

' Table Of Cases Page
(Cont'd. )

Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) . . . .  21,22
Linnecke v. Department of Highways, 76 Nev. 26, 

348 P.2d 2 35.............. .............. .. •i • . . 24,25,27
Monroe v. Pape, 365 U.S. 167.................. . . 20,22

• ! iMullane v. Central Hanover Bank and Trust Co., 
339 U.S. 306.................... ..

Patton v.-Mississippi, 322 U.S. 463 . . . . . . . . . . 23
Piekarski v. Smith, 38 Ch. Del. 402,

147 A.2d 176 (1958) . ................... .. . . . . 24,25
Road Review League v. Boyd, 270 F.Supp. 650,

• (S.D.N.Y. 1967).................... .. . . . 15,16,19,25
Scenic Hudson Preservation Conference v.

Federal Power Commission, 354 F.2d 608 (2nd 
Cir. 1965)................................... . . . . 16

Schroeder v. City of New York, 371 U.S. 208 . . . . . . 27
Screws v. United States, 325 U.S. 91.......... . . . . 20
Smith v. Holiday Inns of America, 336 F.2d 630,

(6th Cir. 1964)................ ..................  6,22
United States v. Beaty, 283 F.2d 653 (6th Cir. 1961). . 17
Walker v. City of Hutchinson, 352 U.S. 112............  27

Statutes And Regulations 
49 U.S .C. 1651 (a) ............ . . . .  15
49 U.S.C. 1653. ................. .............. . . . .  16
■23 C.F.R.' 1.6(c)................ . .. ...........%

. . . 15,16
23 U.S.C. 128 ................................. . . 15,16,25
23 U.S.C. 138 ................................. . . . .  16
United States Department of Transportation,

Policy and Procedure Memorandum 20-8.. . . . . . . . .  18



/

I t

\ !

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 18,288

NASHVILLE 1-40 STEERING COMMITTEE, 
AN UNINCORPORATED ASSOCIATION, 
AND ITS INDIVIDUAL MEMBERS, 
et al.,

Plaintiffs-Appellants,
-v. -

BUFORD ELLINGTON, GOVERNOR, 
STATE 01' TENNESSEE, et al.,

Defendants-Appellees.

BRIEF FOR PLAINTIFFS-APPELLANTS

Statement Of Questions Involved
1. Did state officials deprive plaintiffs-appellants of 

their rights under the Federal Highway Act, 23 U.S.C. § 101 et 
seq., "by failing to consider the economic effects of the planned 
location of Interstate-40 in North Nashville?

• , The district court did not answer the question.
• Plaintiffs-appellants contend the answer whould be

t

"yes."
2. Will the construction of the highway as presently' 

planned deprive plaintiffs-appellants of their rights to due 
process and the equal protection of the laws as secured by the 
Fourteenth Amendment to the United States Constitution?

The district court answered "no."
Plaintiffs-appellants contend the answer should be "yes.1



3. Is plaintiffs-appellants claim that state officials 
failed to comply with the requirements of the Federal Highway 
Act regarding public hearings a claim upon which relief can be 
granted?

j The district court answered "no."
Plaintiffs-appellants contend that it should be 

answered "yes."

Statement Of The Case
This is an appeal from the United States District Court/ ' ■ '

for the Middle District of Tennessee.'s denial of plaintiffs- 
appellants1 motion for a preliminary injunction enjoining 
officials of the State of Tennessee from constructing a section 
of Interstate Highway 1-40, along its planned route, in a part 
of the City of Nashville known as'North Nashville. (Tr. 535).

Appellants are an association of thirty Negro and white 
businessmen, teachers, ministers, civil and professional 
leaders, and residents of North Nashville who brought this 
action as individuals, in the name of their association, and 
on behalf of the community they represent. . The named plaintiffs- 
appellants include faculty and staff members of four universities 
and colleges -- Fisk University, Meharry Medical College,
Scarritt College and Vanderbilt University. They are seeking 
to enjoin the construction of the disputed sectionkof the high- 
way on several grounds: (1) State officials failed to comply
with the requirements of the Federal Highway Act, Title 23,
United States Code § 101 et. seq., and rules and regulations of 
the United States Department of Transportation, by failing to 
conduct an adequate public hearing and failing to consider the 
economic‘effects of the highway; (2) State officials acted 
arbitrarily and deprived appellants.' of their right to due

2



process of lav; as protected by the Fourteenth Amendment to the 
United States Constitution by choosing a route which will 
irreparably harm Negro businesses, institutions, and persons and 
failing to consider alternative routes which would avoid such 
irreparable damage; . (3) State officials deprived appellants' 
of their right to the equal protection of the laws as secured 
by the Fourteenth Amendment to the United States Constitution 

. by considering and minimizing the adverse effect of the routing 
of highways on white businesses, institutions, and persons, 
while failing and refusing to consider the adverse effects on 
Negro businesses, institutions, and persons.

The complaint was filed on October 26, 1967. On that day,
the district court denied appellants' motion for a temporary

\ -
restraining order ex parte. The court, however, set ah immediate 
hearing of appellants' motion for a preliminary injunction.... An 
evidentiary hearing was held on October 30, 31, and November 1, 
1967. Upon the conclusion of the testimony, the district court 
found that irregularities were shown regarding the conduct of 
the public hearing required by the Federal Highway Act, Ti-tle 
28, U.S.C. 128 (Tr. 533). The court further found that "the 
proposed route will have an adverse effect on the business life 
and educational'institutions of the North Nashville community," 
and that "the consideration given to the total impact of the 
link of 1-40 on the North Nashville community was inadequate." 
(Tr. 534). The district court denied injunctive relief, however, 
holding that "the questions of insufficiency of notice, in­
adequacy of the hearing and of the transcript thereof are 
•questions addressing themselves to the Bureau of Public Roads 
of the Department of Transportation," and that it was necessary 
to prove "a deliberate purpose to discriminate" in order to 
show a denial of due process or equal protection of the law.
(Tr. 533-34).

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Appellants' filed a notice of appeal on November 2, 1967, 
and a motion for an injunction pending appeal. This Court 
granted appellants' motion on November 13, 1967 and enjoined 
state officials from letting any construction contracts for the 
route in question pending this appeal. The appeal has been 
advanced on the calendar, and oral argument has been set for 
December 8, 1967.

1-40 is. a federally aided highway, the federal share of 
acquisition and construction being ninety (90) percent. 23 
U.S.C. § 120. The primary responsibility for selecting routes 
of federally aided highways, however, lies with the states and 
their highway departments, the Secretary of Transportation, 
having the power to approve or disapprove programs of proposed 
projects submitted by state highway departments. 23 U.S.C.
§§ 103, 105. Accordingly, the Tennessee State Highway Depart­
ment selected the route of 1-40, after which the route was 
approved, by federal officials for the purpose of providing 
federal funds.

1-40 is the main highway from Memphis to Nashville, and 
from Nashville to Chattanooga. The only part of 1-40 which is 
the subject of this litigation is the final segment of the 
Memphis leg, approximately 3 miles in length. This segment 
v/ill connect the main length of 1-40 with the "inner loop", 
tne hub or the interstate system in Nashville. As planned, the 
Memphis leg, instead of continuing to follow the Charlotte Pihe 
(or Charlotte Avenue) as it had done for many miles, suddenly 
deparrs rrom Charlotte Avenue near 40th Avenue, enters North
Nashville, crosses Jefferson Street a about 28th Avenue North
turns
con



loop. (See Pit. Exh. No. 4). It is this final segment of the 
Memphis leg of 1-40 which causes the incalculable damage which 
appellants alleged and proved, below. The purpose of this action 
is to compel defendant state officials to find an alternativeI f  i
means'of connecting the Memphis leg of 1-40 with the inner loop.

The area of North Nashville between 11th and 40th Avenue
North and between Charlotte Avenue and the Cumberland River is 

i
predominantly Negro. It is the center -of Negro owned businesses 
in the City of Nashville and is the'location of three major 
Negro colleges and universities, Tennessee A.& I. State Univer­
sity, Fish University and Meharry Medical College. As held
I / . .b^ the district court, "The proposed route will have an adverse 

effect on the businesr; life and educational institutions of the 
North Nashville community." (Tr. 534).

The Highway 1s.Impact on Negro Businesses

i

There are 234 Negro owned businesses in North Nashville, 
representing between 80 to 90% of all the Negro businesses in 
Nashville (Tr. 250). These businesses have capital assets of 
about $4,680,000 and an annual gross volume of business averaging 
$11,700,000. (Tr. 251). Most of these businesses are located 
along Jefferson Street (Tr. 33; see also Pit. Exh. No. 8, p. 9, 
fig. 1). The planned route of the highway is just north of 
Jefferson Street, and will take 30 to 70 feet of the back por­
tion .of the commercial properties on Jefferson Street. (Tr. 254). 
Additionally, the Metropolitan Government of the City of
Nashville and Davidson County is 
Street and take 20 feet of the f

planning to widen Jefferson
rent portion of the commercial

properLy on uefrersc" stree~. (Tr. 2b— - see also rlt. E"'h No 
"1/ _ - •5, p. 28). The impact of this highway program is therefore to

V *6 l—1 r+ . Exh. No. 5, aMa j or Route_Pl an" re 1
Doper tmant of Higl \r 3

Nashvi 1le and Davi.dsvJnway proor era with 1,ocr—*1

study entitled “A Reevaluation of the 1930 
sets joint plans of the State of Tennessee 
and the Metropolitan Government of 
County, coordinating the interstate high- 
street improvements.



i

eliminate the Negro businesses on the north side of Jefferson 
Street (Tr. 33). Those businesses which will remain on the 
south ;side of Jefferson Street will be virtually isolated from 
the northern portion of their market area by the barrier 
created by the highway (Tr. 33), as most of the north-south 
streets in the area will be closed (Tr. 256).

Many of the Negro businessmen in the area who will be 
effected by the highway have already been adversely effected 
by previous governmental action, having been relocated on 
Jefferson Street after being dislocated by an urban renewal 
project known as the Capitol Hill Redevelopment Project. (See 
Smith v. Holiday Inns of America* 336 F.2d 630 (6th Cir. 1964)). 
No Negro businesses were rebuilt in the Capitol Hill urban 
renewal area, although 80-90% of.the businesses in the area had 
been Negro owned (Tr. 250). These businessmen will now be 
forced to relocate again. The difficulties they will face are 
practically insurmountable. Other than Jefferson Street and a 
few locations which are spot-zoned, there are no areas of North 
Nashville zoned for commercial uses (Tr. 248). Consequently, 
these businesses will be forced to leave the North Nashville 
area. Even if they were able to locate outside the North 
Nashville area, they would be removed from the market on which • 
they depend. (Tr. 249). Furthermore, Negro businesses have 
been designed to serve needs of Negro communities which are not
met by white businesses. Most 
themselves away from the North 
Negro businessmen seeking new 
racial discrimination in their 
property, and obtain financing 
planned route will therefore b 
Negro owned business in the Ci 
dieted testirenv in the distri

would not be able to re-establish 
Nashville community. Moreover, 
locations face the problem of 
efforts to lease or purchase 
. (Tr. 256). The result of the 
e the elimination of most of the
-- - - q  -r  V  m nr V  -y - 2 .0  • T* f l  0  p_ Q  01“L f i  '£  S. —

ct court also showed that th<

6



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natural beneficiaries of this result will be white owned 
businesses on Clarksville Highway and Buchanan Street. (Tr. 34).

The Highway's Impact on Negro
Educational Institutions ■

Negro educational institutions, as well as Negro businesses, 
will be adversely effected by the planned route of 1-40. The 
largest of these institutions is Tennessee A. &'I. State 
University, until recently an entirely Negro school, and now 
partly integrated. During the current school year, 4753 of the 
4793 students enrolled at Tennessee A. & I. are Negro (Tr. 202-
OS) . The University has capital assets of approximately
\ j$25,000,000 (Tr. 202), and is planning to begin an additional
' '$3,000,000 worth of construction in the next few weeks (Tr. 203).

nTennessee A. & I. is located on Centennial Boulevard, the western 
extension of Jefferson Street, between 28th and 39th Avenues 
North. The highway is planned to pass between Tennessee A. &
I., on the one hand, and Fisk University and Meharry Medical 
College, on the other. It will create a barrier separating 
Tennessee A. & I. from Fisk University and Meharry Medical
College, severely limiting the easy communication back and

/forth which is necessary if these institutions are to interact.
Fisk University, one of the nations leading Negro liberal 

arts schools, has a student population of 1178. It has capital 
assets of approximately $9,750,000 and an endowment of over 
$10,000,000. Fisk is also located on Jefferson Street, between 
14th and 21st Avenues. (Pit. Exh. No. 28). Meharry Medical. 
College, which has graduated most of the Negro doctors and
dentists in the United States (Tr. 222) is located on 18th 
Avenue, North, one block south of Jefferson Street. 18th Avenuej 
forms the eastern boundary of Meharry and a western boundary of 
Fisk for two blocks. The college has 350 students, of whom

n



80-90% are Negro. The value of its capital plant, including 
Hubbard Hospital which it operates, exceeds $20,000,000 (Tr. 222- 
23). During the last year Hubbard Hospital provided services 
for 40,000 out-patient visits, and 16,000 emergency visits 
(Tr. 224); approximately 97% of its patients were Negro (Tr. 226)
; 1-40 will seriously impede the interaction between Fisk
i •

and Meharry, the operation of Hubbard Hospital, the interaction
between Meharry and a neighborhood medical center to be con-! I
structed with federal funds, and the general involvement of these 
two important institutions in the North Nashville community. 
Although the highway itself will not physically- separate Fisk 
and Meharry, or Meharry from the planned neighborhood medical 
center, these results will be caused by the proposed new arterial 
system which is part and parcel of the highway plan. ' As 
appellants' expert witness testified below, it is impossible 
to consider the effects of the highway without also considering 
the arterial system designed to complement it. (Tr. 31; see 
also Pit. Exh. No. 5, A Reevaluation of the 1980 Major Route 
Plan.) In North Nashville, the effects of 1-40 will be com­
pounded by the closing of most of the north-south streets in 
the area and the creation of a large number of dead-end streets. 

One of the results of closing most of the north-south
streets in North Nashville will be' a vast increase in traffic, 
along 18th Avenue, North, the street which forms the boundary 
between Meharry and part of Fisk. As planned, the only north- 
south streets in. the area will ha along 8th, 18th, and 26th 
Avenues, North. The evidence, undisputed by the state, shows 
that the marked increase in traffic along 18th Avenue will 
constitute a serious safety hazard for'Fisk and Meharry studeni
reauci :wo i n; cir
effect both, institutions and particularly Hubbard Hospital, by

8



increasing noise levels. (Pit. Exh. No. 26, particularly that
part of the collective exhibit entitled Traffic Effects of the
Proposed 1-40 on Fish University.) The increase in traffic on
18th Avenue will also seriously impede movement between Meharry
and the neighborhood health center which is to be located on
16th Avenue, North, and Jackson. (Tr. 224). It will seriously
jeopardize the health of the 16,000 patients who annually depend
!
on rapid access to the emergency facilities at Hubbard Hospital.
1 i(See Tr. 31, 36-37). Additionally, the traffic problems 
created by the highway will make tine area less attractive as a 
residential area for faculty members (Tr. 239). Beyond their 
effect on businesses and Negro colleges and universities, the 
highway and its associated arterials will create barriers which 
will impede school desegregation by producing enclosures around 
existing schools (Tr. 37). The highway will directly destroy 
about one-third of the park facilities serving the Negro 
community of North Nashville (Tr. 37). Finally, the highway 
will seriously impede the access of residents of the North 
Nashville area to the churches which serve them (Tr. 234).

There is no evidence in the record that the State con­
sidered these adverse effects in planning the road. State 
officials were unable to state the factors that led to the 
routing of the road through North Nashville. The Commissioner 
of Highways at the time the road was planned testified only 
that he relied on the studies of his retained highway engineer­
ing consultants, the advise of e'ngineers of the Federal Bureau 
of Roads and the State Highway Department (Tr. 92). None of 
the surveys of the hiohway engineering consultants were produced
nor were any records of the advi se give'n by state and federal
engineers were produced The stat0 hi_cvf.rev locatio n e n g i n e e r
wno apparen tly  was irumsciiauely responsi.o le  j_or u is p lanning or

9



the North Nashville segment of 1-40, was unable to indicate
on what reasons he based his recommendation to route the/ • •I *highway as it is now planned. His answers were merely un­
revealing generalities. When asked about his consideration of 
•the impact of the highway on Negro businesses in North Nashville 
his only statement was that "the location as finally selected 
was the most sound location from all standards that had been 
imposed." . (Tr. 386). Asked, further about the impact of the
highway on Negro educational institutions, he stated again
jgenerally that "all of our studies pointed to the fact that it 
was the most sound thing that we, could do towards making the 
improvement through the city." (Tr. 388). The state engineer 
did testify that he believed that there were studies in print 
(Tr. 389) but none were produced.

An Alternate Route
Not only v/ere no reasons shown for locating the highway

as now planned, but the evidence disclosed that a different
and alternate route was surveyed and recommended by the same
consulting engineers, Clarke and Rapuano, upon whose advice the
Commissioner of Highways relied. (Sec Pit. Exh. Nos. 31', 34-
36). The alternate route,, would not have caused the extensive
damage which will result from the present route, particularly
the destruction of the Negro business section on Jefferson • (* * - i
Street, but was discarded. (Tr. 489). The State gave no 
reason for its rejection, and in fact, the state highway 
location engineer denied its existence (Tr. 373) although the
evicience clear. :ea tnat , to T«73 <; f U11V rr. i 1 i2.1  u_i_ 1 1  c ._

34)(See Pit. Exh. No,
The alternate route was extensively- surveyed in 1955 by 

Clarke and Rapuano, who at that time were retained by the City 
and County Planning Commissions of Nashville and Davidson County



The plans and reports evidence considerable detail and recite 
the criteria relevant to the selection of the routes proposed. 
Particularly, the Clarhe and Rapuano reports indicate that
! Iconsideration was given to existing neighborhoods and land use. 
(See Pit. Exhs. Nos. 35 and 36). The route recommended by 
Clarhe and Rapuano avoided the damage to the Negro business
center in Jefferson Street, following Charlotte Avenue instead.
i !• !These routes were reviewed by federal, state, and local offi­
cials in 1955 (Pit. Exh. No. 34), apparently in preparation for 
the Federal Highway Act passed the following year. (Tr. 371).iI /
Subsequently, Clarhe and Rapuano were retained by the State.
i . 1No/t only did the state highway locations engineer deny hnowledge

' i
of the Clarhe and Rapuano alternative, but he denied hnowledge 
of the services Clarhe and Rapuano had performed for Nashville 
and Davidson County in spite of the fact that he had participated 
in evaluating their proposals. (Pit. Exh. No. 34). Although 
the Metropolitan Planning Commission (formerly the City and 
County Planning Commissions) participated in planning the 
interstate system, its records are devoid of any references to 
a reconsideration of the route recommended by Clarhe and 
Rapuano. In fact, from July 1955 to September 1956 there is 
no reference to the highway at all. (Tr. 486). The next 
recorded minutes of planning meetings relating to the highway 
include no references to the early Clarhe and Rapuano plan, 
which was apparently disregarded in the interim. (Pit. Exh. . 
Nos. 37 and 38). At the hearing, the State gave no reason for 
rejecting Clarhe and Rapuano’s original route. •

Businesses,
_■!__ ■ f--- re Com.m.v nr r.r es ,

Not only did the State fail to explain both the reason
for routing une highway as now planned and Lne reason tor

- ll - i
l



rejecting the original route proposed by Clarke and Rapua.no, 
but the State also failed to explain the consideration given to 
the impact of the highway and- its related arterial system on 
white communities, businesses, and institutions. A major inter­
section had'originally been planned that would have adversely 
effected the white-owned Melrose Shopping Center but was sub­
sequently changed to allow for two sepeirate connections (Tr.. 2 7
I
and' 38). The south leg of the outer loop, 1-440, carefully 
follows the line of a railroad while passing by white communities 
until it 'crosses Charlotte Street and enters the Negro community 
The effect of this is to minimize displacement in the white 
community while causing extreme displacement in the Negro 
community (Tr. 38). Additionally, the highway was rerouted 
after deciding not to take a white school which had been in its 
path, (Pit. Exh. No. 13; Tr. 48), whereas no consideration has 
been given to the effects of the highway on Negro schools in 
North Nashville. Finally, extensive parking studies of the 
white University Center were undertaken by consultants retained 
by the State Highway Department, but no studies of the nearby 
Negro university area were similarly undertaken. (See Pit.
Exh. No. 7). Plans have been formulated to remove all through 
traffic from the vicinity of the white University Center (Pit.

jExh. No. 5, pp. 11-12), whereas the highway will cause an 
intensification of traffic in the Negro university area. The 
record is clear that state officials limited their concern 
about the impact of the highway'to situations affecting whites, 
while not considering the highway's impact on the Negro communit 
in North Nashville.

12



The Failure to Conduct an Adequate Public Hearing
•'The only public hearing conducted by state officials was 

held ten years ago, on May 15, 1957. Plaintiffs-appellants 
proyed that there was inadequate notice of the meeting, that 
the consideration of the economic effects of the highway was• 
inadequate, and that an inadequate transcript of the hearing 
was prepared for forwarding to federal officials. The district 
court held - that these irregularities were shown, but that they 
were questions addressed to the United States Department of 
Transportation, and not to the court.

The only notices of the meeting were 7 notices placed at
/Post Offices, only one of which was m  North. Nashville, and 

none of which was in a post office serving the Negro community 
of North Nashville (Def. Exh. No. 1). The notice stated that 
a public hearing would be conducted on May 14, 1957, when, in 
fact, the hearing was held on May 15, 1957. Although the 
regulation requires that the hearing be hold at a reasonably 
convenient time so that interested citizens might attend (Def. 
Exh. No. 2), it was held in the morning during working hours. 
The notice gave no indication that the highway would be routed 
through North Nashville, but indicated only that the entire 
interstate system would be considered.

The hearing was never brought .to the attention of the
lpress. Three reporters who covered the highway story at the 

time, end wrote stories of meetings and developments concerning 
the highway, testified that they did not know of any such
meeting. "(Tr. 12 8, 137 , 143) . The newspaper with the largest
c i r c u ]. a t i o n i n Nash'72 3_ lo “The Nashville Tennessean", carried
numbers of arti cles about t fL S highway, but none reporting the
hearing. (See z.r 1 l . pvV; „ rp o C/i 9-2 5).

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The transcript of the hearing indicates that the State 
Commissioner of Highways, a consulting engineer employed by 
the State, a state highway engineer, and the Director of Plans 
and Research of the City-County Planning Commission were 
present. (Pit. Exh. No. 1). The only non-official person 
indicated by the transcript', was a representative of the 
Chamber of Commerce which at the time was closed to Negroes.
The record does not show that any representative of the Negro
areas' affected was present or notified to be present.
.* |The only consideration given to the economic effects of 
the location of the highway was the consulting engineer's 
assertion that cities need highways so that people can enter 
and leave them. His evidence was a survey taken in New York 
showing that highways and public improvements help increase 
land values from 10 to 1000% (Pit. Exh. No. 1, p. 2). In other 
words, the only consideration given to economic effect was 
whether Nashville should take part in the interstate highway 
program.. The Director of Plans and Research for the City and

i

County Planning Commission further stated that the conclusion 
regarding economic effect was "without reference to any specific 
segment...that may_be subject to further study...." (Pit. Exh. 
No. 1, p. 3).

Two days_following'the hearing, an official of the State 
Department of Highways certified that the "Department has

- • - ■ t

considered the economic effects of the location of said project 
and that it is of the opinion that said project is properly 
located and should be constructed as located." (Pit. Exh. No. 1,
attachment).

- 1A _



Specification Of Error
The district court erred by failing to properly apply the 

law to undisputed facts and denying plaintiffs-appellants motion 
for a preliminary injunction.

■ ARGUMENT

Did State Officials Deprive Plaintiffs-Appellants 
Of Their Rights Under The Federal Highway Act of 1956 
By Failing to Consider the'Economic Effects of the ■
Planned Location of Interstate-40 in North Nashville? •

The District Court Did Not Answer The Question.
Plaintiffs-Appellants Contend The Answer Should Be 
"Yes."

The location of highways isn't simply a matter of engineer- 
ing. Road Review League v. Boyd, 270 F.Supp. 650 (S.D.N.Y. 1967). 
The Federal Highway Act itself requires that consideration be 
given to the "economic effects" of the location of highways.
23 U.S.C. § 128. The Department of Transportation Act declares 
a national policy extending beyond engineering and fiscal-con­
siderations. '

. /
"The Congress hereby declares that the general 
welfare, the economic growth and stability of 

■ the Nation and its security require the develop- 
I ment of national policies and programs conducive 
j to the provision of fast, safe, efficient, and 

convenient transportatiori at the lowest cost 
consistent therewith and with other national. 
objectives, including the efficient utilization 
and conservation of the Nation's resources."
49 U.S.C. § 165 1(a) (Emphasis added).

The breadth of these considerations are recognized by regulations
of the Department of Transportation.

"The conservation ar 
re s o u rc a s ,  the  advar 
social values, and i 
land uti11cation, as 
and potential hiqhw=

a development of natural-Q-f.: l.

criteria, are r.o oo considered 
hi or/-ay s to be at tea to a Feet 
23 C.IhR. § 1.6(c) (Emphasis c

i r'C o * * ̂ e ~c "o e it v. v"' e '■
V . . V1 .

is clear - - mere no su p or :c

- 15 -



II

that the•location of highways, and indeed all ocher public 
projects, cire only matters of engineering and financing.

Congress has specified some of the national objectives 
which must be considered. Particularly, Congress has required 
that highway planners consider and minimize harm to natural 
resources and beauty. 23 U.S.C. § 138 and 49 U.S.C. § 165 1(b) 
(2). /as stated further in 49 U.S.C. § 1653:

i
" [T]he Secretary shall not- approve any 
program or project which requires the use 
of any land from a public park, recreation 

r , area, wildlife and waterfowl refuge, or
j historic site unless (1) there is no feasible

and prudent alternative to the use of such 
* / land, and (2) such program includes all possible
' planning to' minimize harm to such park, recreation

area, wildlife and waterfowl refuge from such 
use."

Significantly, federal lav;, after recognizing the interest to 
be protected, establishes as the methods of protection (a) the 
consideration of alternatives and (b) planning to minimize harm. 
See Road Review League v. Boyd, 270 F.Supp. 650 (S.D.N.Y. 1967); 
Scenic Hud son JP reservation Con f erence v_._ _Fe deral Power Commission. 
354 F.2d 608 (2nd Cir. 1965).

In this controversy which involves peoiele and their 
neighborhoods, businesses and institutions, appellants have a 
right to no less protection than that afforded wildlife and 
waterfowl. The Federal Highway Act imposes an obligation on 
state officials to consider the economic effects of the location 
of their proposed highways, 23 U.S.C.'§ 128, and federal regu­
lations require that "the advancement of economic and social 
values, and the promotion of desirable land utilization" be 
considered. 23 C.F.R. § 1.6(c). The record clearly shows' that 
state officials failed to satisfy these requirements. The
finding of the district court is unequivocal: "The proof shows
that the consideraticn. given to the total ievoact of the link

15



of 1-40 on the North Nashville community was inadequate." (Tr. 
534) .

After making this significant finding, the district court 
failed to consider plaintiffs-appellants statutory claim. It 
ruled only on plaintiffs-appellants constitutional claim, hold­
ing that proof of a deliberate purpose to discriminate was

jiieces'sary to establish a denial of due process as equal pro­
tection of the lav/ (Tr. 534) . Plaintif fs-appellants contend 
that it is an error to require a showing of a deliberate purpose 
■ to discriminate; our argument against that requirement appears 
below in response to Question No. 2. Here, plaintiffs-appellants 
argue that the distrier court's failure to apply federal statu- 
tory law to undisputed facts, and even to its own finding of 
fact, is sufficient ground for reversing its denial of plaintif fs- 
■appellants motion for a preliminary injunction. As this Court 
has held previously in reversing a denial of a motion for a 
preliminary injunction:

"'It is generally held that the trial court 
abuses its discretion when it fails or re­
fuses properly to apply the law to conceded 
or undisputed facts'. 1 Union Tool Co. v.
Wilson, 259 U.S. 107, 112.... Misapplication 
of the lav/ to the facts is in itself an abuse 
of discretion." United States v. Beaty, 288 
F.2d 653 (6th Cir. *196.1) .

The district court's finding that the consideration given 
to the impact of the North Nashville segment of 1-40 was in­
adequate is clearly supported by the evidence. The only 
indication that state officials even considered the question * 
of economic effect appears in the transcript of the alleged 
public hearing in 1957. (Pit. Exh. No. 1). The consideration 
given was merely an acknowledge:? ert that highways are good for 
cities. No specific segment was discussed, but rather the

- 17 -
i



Atincludes five separately designated interstate highways.
that7 the only evidence presented.was the summary of a report /
that highway work and public improvement increased land values 
in New York City. (Pit. Exh. No. 1, p. 2). Two days following 
the hearing, an official of the State Department of Highways 
certified that, he read the transcript, that the Department 
considered the economic effects of the location of the project, 
and that in its opinion the "project is properly located and
should be constructed as located." (Pit. Exh. No. 1,•attachment)/ .

One of the purposes of the public hearing is to provide 
citizens with an opportunity to present facts and arguments to 
state officials concerning the economic effect of the proposed 
location. The regulations of the Department of Transportation 
require'that the district engineer of the Bureau of Roads 
review the certification and be "satisfied that the State has 
considered the economic effects of the proposed location in the 
light of the matters presented at the hearing." United States 
Department of Transportation, Policy and Procedure Memorandum 
20-8(3) (h) (Def. Exh. No. 2) . The lack of adequate notice to 
the community concerning the public hearing, the inadequate 
consideration of the public hearing of the economic effect of 
the highway, and the hasty certification following the public 
hearing that the subject had been considered are all evidence* . I
that state officials acted arbitrarily.

The State had ample opportunity to present evidence to show 
that it had considered the economic.effects of the highway, 
following the hearing, if it in fact did. The Commissioner of

‘:e was designated testified, as didl i. — it
m e  sra
wa s e a s •>
•no scudres

highway location engineer. The evidence, if it existed 
■ access rare vo tne Suave. Even so, m e  Suave vrco.v.ceo 

: reports showing that it had considered the economic

- 1.to



/

effects of the highway, subsequent to the May 15, 1957 hearing.
In Road Review League v. Boycl, 270 F.Supp. 650 (S.D.N.Y.

3.367) , the court considered the claim that the Federal Highway
Administrator acted arbitrarily by not giving proper weight to
the impact cf a federally aided highway on natural resources

%
and natural beauty. The court held that the plaintiffs —  a
non-profit association concerning itself with community problems,
i ii ia town, wildlife sanctuaries, and individuals —  had standing 
to protect rights under the Federal Highway Act. Id. at 661.
It denied relief only upon reviewing the administrative record

j

and concluding that the Administrator had considered all thes /i i - > tcompeting factors, including cost and conservation, and had not
■ r ?\acted arbitrarily. Id. at 663.

In the case at bar, the evidence shows that the factors 
relevant to plaintiffs-appellants interests were not considered. 
In fact, state officials failed to show what factors, if any,

. were considered. The only conclusion to be drawn from the 
record is that state officials acted arbitrarily and contrary 
to the requirements of the Federal Highway Act.

II
Will The Construction Of The Highway As 

Presently Planned Deprive Plaintiffs-AppelD.an'ts 
Of Their Rights To Due Process And The Equal 
Protection Of The Law?

The District Court Answered_ "No."
Plaintiffs-Appellants Contend The Answer Should 

Be "Yes."
Although the district court found that Negro businesses

WO'a Id erselv, in fact "oravely " effected, 1oy the i—40'■
re; •; ? * rn at Negro educati0'' *» •! . ■] pc tituitions wo\i Id 1 i V e, 0
be ad\rerselv effected, it he Id that there can be no denial of

i Cue . C L. LJt.
purges : d  c i s  c r i m i n a l (Tr. 53-1). Plair.tif fs-appallants

__ 1 O



thiscontend that this conclusion of lav/ is erroneous, and that
error is an additional ground for reversing the district court's
denial of plaintiffs-appellants' motion for a preliminary in­i'
junction.

Conviction under federal civil rights acts imposing
criminal penalties requires a shov/ing of a specific intent to

jdex^rive a victim of his constitutional rights. In Screv/s v. 
United States, 32 5 U.S. 91 (1954), the statute in question,'
18 U.S.C. § 57, imposed penalties for acts committed "wilfully." 
The Supreme Court construed "wilfully" to require a showing 
of a purpose to deprive the victim of his constitutional rights.l
Even so, the 'purpose need not be expressed; it may at times

1be reasonably inferred from all circumstances attendant on the 
act." Id. at 106. The statute under which plaintiffs-appellants 
seek relief, 42 U.S.C. § 1983 (R.S. 1979), is a civil and not • 
a criminal statute and cannot be construed-to require proof 
of purpose. As the Supreme Court held in Monroe v. Pape,
365 U.S. 167 (1961), a case in which the plaintiff sought com­
pensatory damages for a deprivation of- his rights of due process 
of law:

"The word 'wilfully1 does not appear in 
§ 1979. Moreover, § 1979 provides a civil 
remedy, while in the Screws Case we dealt with 
a criminal law challenged on the ground of 
vagueness. Section 1979 should be read against 
the background of tort liability that makes a 
man responsible for the natural .consequences of 
his actions." Id. at 187.

»Just as no shov/ing of purpose is necessary- to establish a 
deprivation of the right to due process of law, neither is it
necessary to shew a denial of. the equal protection of the- laws.

|rij The Sucre: j| ae Court. in. holdi ng there 5 t h"d jurisdiction under
|i 2 8 U.S.C. 1343 (3) to reviev■ 1 e g i s la ti vo carper ti onmen t in

- 20 -

i



Tennessee stated:
"...it has been open to the courts to 
determine, if as the particular facts 
they must, that a-discrimination 
reflects no policy, but-simply arbitrary 
and capricious action." Baker v, Carr,
369 U.S. 186, 226 (1962).

Summing up the evolution of the purpose test, the Fifth Circuit 
has held that "no specific intent to deprive a plaintiff of
i
his civil rights need be alleged... [and] it is at least doubt-
1 | ■ .ful that an allegation of an- intentional and purposeful dis­
crimination is necessary to sustain civil rights jurisdiction,
even where founded on a denial of eaual protection." Hornsby v.

2/Allen, 326 F.2d 605 (5th Cir. 1964). Whether the cause be
arbitrariness or deliberateness, the result of unequal treat-
\ •' '

ment is constitutionally prohibited, as "it is of no consola­
tion to an individual denied the equal protection of the laws 
that it was done in good faith." Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 725 (1961).

Appellants respectfully submit that the opinion of this 
Court in dicker v. Michigan Liquor Control. Commission, 160 F.2d 
96 (6th Cir. 1947), preceding as it did the Supreme Court's

2/ And, as stated only recently in Hobson v. Hanson, 269 F. 
Supp. 401, 447 (D.C. Cir. 1967):

I ‘ '
"Orthodox equal protection doctrine can be 
encapsulated in a single rule: government 
action which without justification■imposes 
unequal burdens or awards unequal benefits 
is unconstitutional. The complaint that" 
analytically no violation of equal protection 
vests unless that inequalities stem from a 
deliberately'discriminatory plan is simply 
false. Whatever the lav; was once, it is a 
testament to our maturing concept of equality 
that with the help of Supreme Court decisions 
in the last decade, we now firmly recognize
tna ■ O U S i l u Vcan k 
rich' 
of a.

clS Cl i S 3.S ~CI? G U. 3 cl T.c! U : i l c .

and the public inheres 
11ful scheme."

TO
ClS "

. V  ct C G

pervs :si*-0

- 21 -



opinions in Monroe v. Pape, 365 U.S. 167 (1961), Burton v.
Wilmington Perking 'Authority, 365 U.S. 715 (1961) , Baker v.

I
Carr, 369 U.S. 186 (1962), and this Court's own opinion in
Smith v. Holici.£iy Inns of Americci, 336 F.2d 630 (6th Cir. 1964) , 
cam no longer he said to .require that a deliberate purpose to 
discriminate be proved.

Any other result would effectively insulate state highway 
officials from judicial review. The planning process for
federally aided highways involves federal and local as well as
i •state officials. The purpose of one man's actions alone is
difficult to assess; the purpose*of tens of planners, engineers, 
and administrators would be generally impossible to determine. 
The minutes of the planning meetings, which are in evidence for 
example-, reveal little, if any, indication of the purposes under­
lying the decisions made. (See Pit. Exit. Nos. 34, 37 and 38). 
They record decisions only, without explanation.

Moreover, plaintiffs-appellants1 due process claim is not 
based on the bad purpose of state officials but rather on their 
absence of purpose. Decision making without reason is arbi- 
trariness and constitutionally prohibited. Hornsby v. Allen,
326 F.2d 605 (5th Cir. 1964).'

Plaintiffs-appellants' claim is based on the failure of
state officials to consider the impact of the highway on the

** INorth Nashville community, the. arbitrary rejection ..of an alter­
native which would not adversely effect Negro businesses and 
institutions, and the failure to consider other alternatives.

earner cost or veernrcal teasierII
planned through North Nashville.

given no ranson , in terms of
ty, f1or locating the road cl 3

There as no way of detormi.nine;
to \.7nav ractors , 

i record, the choiv
omcrars gave wargnu. ( 

;orvh Nashville'route is arbi■

22



a denial of due process. ■ -
Plaintiffs-appellants1 equal protection claim, likewise,

does not depend on a showing of a purpose to discriminate.
Proof that the highway imposes a greater burden on Negro
businesses, institutions, and persons than on white businesses,

%
institutions, and persons, and that consideration was given to 
white, interests but not to Negro interests, is sufficient to
i II 'establish a denial of equal protection, especially in the 
absence of a clear showing by state officials of a non-arbitrary 
non-racial reason for such differences. Compare Patton v.
i

Mississippi, 332 U.S. 463, 466 (1947).i’ i
In fact, however, there is substantial evidence in the

' // ]record to support a finding that state officials had a dis­
criminatory purpose. The State Highway Department retained 
consultants to conduct an extensive study of parking facilities 
in the white University Center comprising Vanderbilt, Peabody, 
and Scarritt, as part of its planning of its interstate and 
major arterial system, but undertook no such similar study in 
the nearby Negro university area (Pit. Exh. No. 7). Moreover, 
one of the stated objectives of planning in the white University 
Center area is "removing all through traffic from the vicinity
from Vanderbilt Hospital and University, and Peabody and 
Scarritt Colleges." (Pit. Exh. No. 5, p. 11-3.2). The undisputed
evidence shows, however, that traffi 
fied in the nearby Negro university 
was conducted of the white downtown

c problems will be intenso,- 
area. Similarly, a study 
business area but no study

3/ Sec Deal v. Cincinna 
Cir . 19Go )T~in 'vdTi ch"-fhi
struction site close to

card _of_Education, 369 F .2d 55' (6th 
rt remanded for an explanation of 
and selection of a school con- 

i s ti n g s ch oo 1.

23



of the Negro business center on Jefferson Street was undertaken. 
On the outer loop the highway is aligned with an existing rail­
road right of way thereby minimizing the displacement of white 
persons and businesses, but it departs from this alignment as 
it.enters the Negro neighborhood of North Nashville. (Tr. 38). 
Further proof of differential treatment is the rearrangement 
of a traffic intersection which would have adversely effected 
a white owned shopping center (Tr. 27 and 38). No similar con­
sideration was given to the protection of Negro businesses, 
institutions, and persons. The proper inference to be drawn 
from those unexplained disparities is that state officials acted 
with a discriminatory purpose in routing the highway.

Ill
Is Plaintiffs--Appellants Claim That State 

Officials Failed To Comply- With The Requirements 
Of The Federal Highway Act Regarding Public 
Hearings A Claim Upon Which Relief Can Be Granted?

.a The District Court Answered "No."
Plaintiffs-Appellants Contend That It Should Be 

Answered "Yes."
Plaintiffs-appellants alleged and proved that state offi­

cials failed to give adequate notice of the public hearing- 
required by 23 U.S.C, § -128. failed to conduct an adequate 
hearing, and failed to prepare and submit to the Secretory an• lx
adequate transcript of the hearing. The district court denied 
relief, however, holding that these questions address themselves 
to the Bureau of Public Roads of the Department of Transportstior 
(Tr. 533)?

In so holding the court relied on three cases: Hoffman v.
S te v en s ,  177 F.Supp.

C\"~)

C-i.D. Pa. 1

2d 173 (1958)

• O £ } p  c -^ .' o r e '1'5  ̂y t t_ -r h

O £ rlio hto'to • o , / O I\ r1. v . A O , 0-- C) P . 2 C. £ O J_ wO U ) .

it-. L.. c;1

0 J.



unconstitutional ancl to enjoin a threatened taking on that- 
ground, and oil the additional ground that failure to provide 
a hearing as required by 23 U.S.C. § 128 amounted to a denial 
of procedural due process. Although the court's language on 
the right to a hearing is quite broad, the facts of the ca.se
indicate that it is■of minimal significance. At issue v/as
|the conversion of a section of a state highv/ay to a limited 
access highv/ay. Only one property v/as involved. No public 
issue v/as raised. Clearly, there is no requirement that the 
state conduct a hearing for each property ov/ner. 1-40 affects 
an entire community, and a public hearing is necessary to 
protect its interests. The purpose of 23 U.S.C. § 128 is to 
protect communities like the North Nashville community. In 
'the Linnecke case, the court held that as a matter, of fact, 
adequate notice v/as provided. In fact, a week prior to the 
hearing, 30,000 copies of a booklet containing a map and 
describing the several routes which were proposed, were dis­
tributed. 348 P.2d at 237. Moreover, the court found that 
the economic effects of the location of the highway were con­
sidered at length. Id. at 238. Likewise, in the Piekarski 
case, the court held that the state in fact complied with 
federal requirements, the only issue being whether a private
citizen could preside 
Therefore, only in the 
to conduct a hearing, 
interest v/as involved.

To the extent tha

at the. public hearing. 147 A.2d a 
Hoffman case was there an actual 
and in that case no ascertainable

t these cases stand for the propos
ants have no standing to claim, in 
denial of their right to a public

t 182 .
failure 

pubIdc

ition

nr me
these ccases 
2 70 F .S u v j .

conflict wi th
fo r> at v W  * »  ~ • j t L'O-



I

There, the court held that the plaintiffs had standing to assert 
a claim that the Administrator failed to comply with the 
Federal Highway Act and regulations issued pursuant to it.

The injury caused by the failure to conduct an adequate 
hearing is clear. The public hearing serves several purposes.
It is a way of letting the public know what it must do to protect
!its own interests. It is a way of informing state officials 
; !what they should consider before submitting their proposals to 
the federal government. Finally, through the medium of the 
transcript it is a means of providing information to the 
federal government so that federal officials can determine
whether state officials have considered the full impact of their

\

proposals. Without adequate public hearings, the public is 
left without guidance, state officials are more likely to
submit proposals which disregard impact on the community, 
and federal officials are unable to fully and objectively 
measure the extent to which state officials have complied with 
the requirements of the Federal Highway Act. . .

Once federal approval has been given, no number of sub­
sequent informational meetings can compensate for the opportunity 
which was lost. Positions harden; state officials assume the 
position of explaining accomplished facts. Informational meet­
ings, furthermore, do not serve the purpose that public hearings 
serve of being conduits to federal officials.

The district court.noted that a reproduction of a map of 
the proposed route appeared in the Nashville Tennessean, and
inaicarca tna c m e  rarm or wnicn. pla pellants complain

co:
c.j.G nor p: 
their obi:

. L- j tn nicnwcw cep;.
.o v res u i r_ c • 3: / .3 5 s

:er  pu.0 i.1 c H e a r in g s , V.'mcn CO:

_ 9 ;

ry
• ^  • ' r  K , . - j

'O''



explored and at which highwaymen and public could communicate 
with one another.

Given the importance at the hearing, adequate-notice is 
essential. Admittedly, personal notice is not required. Never­
theless, notice should be provided in a form reasonably cal­
culated to reach the persons concerned. Schroeder v ._City of
New York, 371 U.S. 203; Walker v. City of Hutchinson, 352 U.S. 
112; Mullane v. Centra]. Hanover Dank and Trust Co., 339 U.S.
306.

flie notice provided in Linneeke v. Department of 'Highways, 
348 P.2d 235 (Nevada, I960) illustrates what can be done.
Notices were published in newspapers, radio and; television 
coverage solicited, and flyers describing the road (accompanied 
by maps) distributed. Compared to the cost of a major highway 
and the.damages which may be caused by failure to hear the 
public, the cost of such publicity is negligible.

RELIEF
Plaintiffs-appellants request the court to reverse the 

order of the district court denying the motion for a preliminary 
injunction.

Respectfully submitted,

.Avon N. Williams, Jr.
327' Charlotte Avenue 
Nashville, Tennessee 37201

Jack Greenberg 
James M. Nabrit, III 
Michael Davidson 
Charles H. Jones, Jr.

10 Columbus Circle 
New York, New York.10013

Attorneys for Plainti i. s — s-pp e 11 a n us

- 2 7



CERTIFICATE OF SERVICE
I hereby certify that I have served copies of the fore­

going Brief for Plaintiffs- AppeHants upon Defendants-Appellees
i i

by mailing a coĵ y of same to their attorneys, The Honorable 
Milton P. Rice, Deputy Attorney General, Supreme Court Building,
Nashville, Tennessee 37219 and The Honorable Neill S. Brown,
; / .
Director of Lav/, Metropolitan Court House, Nashville, Tennessee 
37201, via United States mail, air mail, postage prepaid, 
this 2.6 day of November,. 1967.

i I.\ i'

- / 4i l J yr—
Attorney for Plaintiffs-Appellants

28