Board of Commissioners of the City of Chattanooga v. Mapp Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit (Collins)

    In  T h e

SUPREME COURT OF THE UNITED STATES
O C T O B E R  T E R M , 1973

No.

T H E  BOARD OF CO M M ISSIO N ERS OF T H E  
C ITY  OF C H A T T A N O O G A , R O B E R T  K IRK  
W A LK ER, Mayor, CH A RLES “ P A T ” ROSE, and 
G EN E R O B ER TS, Commissioners, and W IL L IA M  
H. ZACHRY, City A uditor,

Petitioners,
vs.

JAM ES JO N A T H A N  M APP, et al„
Respondents.

PETITION FO R  A W R IT  OF C E R T IO R A R I TO THE  
UNITED STA TES C O U R T  OF APPEALS 

FOR T H E  S IX T H  C IR C U IT

EU G EN E N. CO LLIN S 
C ITY  A T T O R N E Y

400 Pioneer Bank Building 
Chattanooga, Tennessee 37402 

A ttorney for Petitioners

COURT INDEX PRESS, INC. —  809 Walnut Street, Cincinnati, Ohio 45202 —  (513) 241-1450



INDEX

Page
IN T R O D U C T O R Y  PRA YER ....................................... . 1

O PIN IO N S B E L O W .............................................................  2

JU R IS D IC T IO N  ......................................    2

Q U E ST IO N S PR ESEN TED  .............................................  2

S T A T E M E N T  OF T H E  CASE ....................................... 2

REASONS FO R  G R A N T IN G  T H E  W R I T .................  6

CO N C LU SIO N  ...............................................................   12

A PPEN D IX :

O pinion of the U nited  States D istrict C ourt for 
the Eastern D istrict of Tennessee, Southern 
Division ..........................................................................  14

O rder of the U nited  States D istrict C ourt for the 
Eastern D istrict of Tennessee, Southern 
Division ........................................................................... 25

O pinion of the U nited States C ourt of Appeals
for the Sixth C ircuit, O ctober 11, 1972 .................... 28

O pinion of the U nited  States C ourt of Appeals
for the Sixth C ircuit, en b a n c ,---- F .2 d ------
(April 30, 1973) 73



11.

TABLE OF AUTHORITIES

Cases: Page

Armstrong v. Manzo, 380 U.S. 545 (1965) ....................  9
Bradley v .M il l ik e n ,---- F .2 d ----- (6th Cir. 1973) . .  11,12
Bradley v. School Board of City of Richmond,

383 U.S. 103 (1965) ........................................................ 3
City of Kenosha v. Bruno, 37 L.Ed. (2d) 109, 41

L.W. 4819 (June 11, 1973) ........................................... 12
Federal Trade Commission v. Rubberoid Co., 343

U.S. 470 (1952) ..................................................................... 8
Goss v. Board of Education of City of Knoxville,

340 F. Supp. 711 (E.D. T enn . 1972) ..........................  H
Goss v. Board of Education of City of Knoxville,

6th C ircuit C ourt of Appeals en banc, (Nos.
72-1766, 1767) decided Ju ly  18, 1973 ......................... 12

Grannis v. Or dean, 234 U.S. 385 (1914) ....................  9
Mapp  v. Board of Education of City of Chattanooga,

---- F .2 d ----- (6th Cir. 1973) .............................................  6
Mapp v. Board of Education of City of Chattanooga,

373 F.2d 75 (6th Cir. 1967) ......................................  3
Mapp  v. Board of Education of City of Chattanooga,

319 F.2d 571 (6th Cir. 1963) ......................................  3
Mapp v. Board of Education of City of Chattanooga,

295 F.2d 617 (6th Cir. 1961) ......................................  3
Mullane v. Central Hanover B. T . Co., 339 U.S. 306

(1950) .................................................................................  9
Swann v. Charlotte-Mecklenlrurg Board of Educa­

tion, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. (2d) 554 . . 12 
Zenith Radio Corp. v. Hazeltine Research, 395 U.S.

100 (1969) ........................................................................  8, 9



111.

O ther A uthorities: Page

20 U.S.C. § 1655 ........................... ...................................... 12
42 U.S.C. § 1983 ........................... ...................................... 3
28 U.S.C. § 1343 (3) ..........................................................  3
28 U.S.C. § 1254(1) ...................................................... ■ • 2
R ule 19, Federal Rules of Civil P ro c e d u re ................ 11-12



In  T h e

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973

No.

T H E  BOARD OF CO M M ISSION ERS OF T H E  
C ITY  OF C H A T T A N O O G A , R O B E R T  K IRK 
W A LK ER, Mayor, CH ARLES “P A T ” ROSE, and 
G EN E R O B ER TS, Commissioners, and W IL L IA M  
H. ZACHRY, City A uditor,

Petitioners,

vs.

JAMES JONATHAN MAPP, et al„
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE  
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

T he petitioners, a m ajority of the Board of Commission­
ers of the City of Chattanooga, Tennessee, and the City 
A uditor, respectfully pray that a w rit of certiorari issue to 
review the judgm ent and opinion of the LTmted States 
C ourt of Appeals for the Sixth C ircuit entered in this 
proceeding on A pril 30, 1973.



2

OPINION BELOW

T he en banc, per curiam opinion of the C ourt of A p­
peals, no t yet reported, appears in the appendix at pp, 73- 
90. T h e  C ourt of Appeals affirmed the judgm ent of 
the U nited States District C ourt for the Eastern District 
of Tennessee. T he  District C ourt’s order and opinion 
were filed on February 4, 1972 and the opinion appears 
at 341 F. Supp. 193.

JURISDICTION

T he opinion and judgm ent of the C ourt of Appeals for 
the Sixth C ircuit were entered on A pril 30, 1973. No 
petition for rehearing of that opinion was filed and this 
petition for certiorari is filed w ithin ninety days of A pril 
30, 1973. T his C ourt’s jurisdiction is invoked under 28 
U.S.C. § 1254(1),

QUESTION PRESENTED

May a District C ourt legally order a city’s local govern­
m ent to appropriate funds to pay for the purchase, m ain­
tenance and operation of a school bus system to prom ote a 
board of education’s desegregation plan if the city was 
not a party defendant when such order of desegregation was 
entered and w ithout the city ever having been given an 
opportunity  to be heard?

STATEMENT OF THE CASE

T his suit was originally filed on A pril 6, 1960, by the 
respondents as a class action against the members of the 
Board of Education of the City of Chattanooga and its 
Superin tendent of Schools. T he respondents sought to 
enjoin those defendants from “operating a compulsory b i­



racial school system” in Chattanooga. T h e  respondents' 
com plaint was based on alleged violations of 42 U.S.C. 
§ 1983 and the Equal Protection Clause of the Fourteenth  
A m endm ent and jurisdiction of the D istrict C ourt was 
founded on 28 U.S.C. § 1343 (3) . A fter a rem and by the 
C ourt of Appeals, Mapp  v. Board of Education of the City 
of Chattanooga, 295 F.2d 617 (6th Cir. 1961), the District 
C ourt approved a gradual desegregation plan. T his plan 
was approved by the Sixth C ircuit, Mapp, supra, 319 F.2d 
571, 573 (1963) , where the C ourt found that “All parties 
appear to find this broad scheme of desegregation accepta­
b le .” Yet on M arch 29, 1965, the respondents filed a m o­
tion for fu rther relief seeking to enjoin the defendant 
School Board from m aking decisions on the basis of race. 
A lthough the respondents failed to sustain their allegations 
that the defendant Board of Education had made decisions 
on the basis of race, the District C ourt accelerated the plan 
so that all grades would be desegregated as of September, 
1966. T h e  respondents appealed to the Sixth C ircuit and 
that C ourt affirmed the District Court, w ith the exception 
of the faculty desegregation issue. Mapp, supra, 373 F.2d 
75 (1967) . (This C ourt’s decision in Bradley v. School 
Board of City of Richmond, 382 U.S. 103 (1965) had been 
decided while the case on appeal.) Neither  respondents 
nor the Board of Education sought certiorari from this 
C ourt w ith regard to any of the above decisions of the 
C ourt of Appeals.

Nonetheless, the respondents filed a m otion for further 
relief on Decem ber 31, 1968, and a m otion for immediate 
relief on Novem ber 14, 1969. An evidentiary hearing was 
held on these motions in A pril and May of 1971, and at 
the conclusion of such hearing the District Judge in an 
oral opinion ordered the defendant Board of Education 
to subm it another plan of desegregation. T he  defendant 
Board of Education was instructed that all of its decisions



4

w ith regard to the new plan should be made so that the 
plan would “maximize in tegration.” T he  plan was pre­
sented by the defendant Board of Education pursuant to 
such instructions and the respondents objected to all schools 
whose proposed student bodies fell outside of the racial 
balance of 30%-70%. (All other schools were designed to 
have at least 30% and no more than 70% of each race 
present in its student body.) After a hearing on the valid­
ity of the proposed plan, the D istrict Judge approved the 
plan against the respondents’ objections and ordered the 
plan im plem ented to the extent the Board could financially 
do so. T h e  D istrict Court's opinion, dated July  26, 1971, 
is reported at 329 F. Supp. 1374. T h e  N.A.A.C.P. first, 
and then the Board of Education, appealed the District 
C ourt’s decision.

T h e  Board of Education; through its members, by p ri­
vate act of the Tennessee legislature operates the Public 
School System w ithin the City of Chattanooga, Tennessee. 
T h e  City of Chattanooga is governed by a mayor and four 
commissioners, who form the Board of Commissioners for 
the City of Chattanooga. T he  Board of Education is an 
independent Board and the C ity’s Board of Commissioners 
by law do not and cannot control the Board of Education. 
I t  is the Board of Commissioners and they alone that have 
the power to levy taxes and appropriate moneys’.

In  Decem ber of 1971, a Chattanooga taxpayer filed an 
action in State court seeking to enjoin the Commissioners 
of the City of Chattanooga and its auditor from appro­
priating  city funds to the Board of Education for the p u r­
pose of bussing to prom ote a racial balance. (T he m em ­
bers of the Board of Education were not made parties to 
the State court suit.) In  addition to a separation of pow­
ers defense, the petitioners also defended on a num ber of 
grounds, two of which were the fact that this m atter was



previously before the U nited  States D istrict C ourt sitting 
at Chattanooga and that the Tennessee statute relied upon 
by the plaintiff was void under this C ourt’s decisions. N ot­
w ithstanding such defenses, the State court on January 
18, 1972, enjoined the City officials from spending any 
moneys to finance the transportation program  currently 
underway at the elem entary school level. On January  26, 
1973, the respondents filed a petition in the federal court 
proceeding to join as party defendants the State court p lain­
tiffs and defendants. T his was done on the same day and 
all new parties were served with process that afternoon. A 
show cause hearing was had on the validity of the State 
court order two days later, January  28, 1972. At the hear­
ing the City Attorney, representing the City officials, stated 
that the State court order was unconstitutional and did not 
oppose the District C ourt’s orally enjoining all State court 
parties from giving any effect to the State court injunction.

In  a w ritten order and opinion of February 4, 1972, 341 
F. Supp. 193, the D istrict C ourt formally enjoined all par­
ties from giving effect to the State court order and in addi­
tion ordered that the entire elem entary and jun ior high 
portions of the Board’s desegregation plan be fully im ple­
m ented no later than the Fall term  of school, 1972. On 
February 11, 1972, the Board of Commissioners filed a m o­
tion for new trial or rehearing, the thrust of which was 
w hether the Board of Commissioners could be required  
to pay for the im plem entation of the bussing program  
required  under the defendant Board’s new desegrega­
tion plan, which had only been partially im plem ented, 
w ithout having been made parties to the proceeding at 
the time the plan was ordered and approved, and w ithout 
having been given an opportunity  to be heard on the 
merits. A num ber of related questions were presented as 
to w hether the City Commission had any discretion w ith



6

regard to such a request for funds by the Board of Educa­
tion. T he  crux of the m otion for new trial or rehearing 
and the supporting brief was the validity of the District 
C ourt ordering that the City of Chattanooga be financially 
responsible for such plan w ithout having been made parties 
and w ithout the Board of Commissioners having been 
afforded an opportunity  to be heard on the merits of the 
desegregation order and plan. T he  D istrict C ourt on Feb­
ruary 25, 1972, w ithout a hearing, denied the m otion by 
stating that the matters were on appeal to the C ourt of 
Appeals, evidently because of the respondents’ appeal of 
August 1971 and the Board of Education’s appeal of Sep­
tem ber 1971 from the District C ourt’s approval of the 
desegregation plan. T h e  petitioners thereupon filed their 
appeal, presented and argued the legality of the District 
C ourt’s action in the factual circumstances outlined above. 
However, this issue was not dealt w ith by the per 
curiam majority bu t was discussed in the dissenting opinion 
of the C ourt of Appeals. Mapp  v. Board of Education of 
the City of Chattanooga,---- F .2 d ------(6th Cir. 1973) .

REASONS FO R  G R A N T IN G  T H E  W R IT

I. T h e  D istrict C ourt’s opinion conflicts w ith decisions 

of this Court.

A lthough the respondent N.A.A.C.P. has known from the 
beginning of this suit in 1960 that the Board of Education 
was an independent Board which did not have the power to 
levy taxes and was fiscally dependent upon the City of 
Chattanooga, as well as other governm ental sources, for 
funds to operate the school system, the respondents did 
not seek to add the City of Chattanooga, through its mayor 
and commissioners, as party-defendants in this case. T he



Board of Commissioners is the legislative body for the 
City of Chattanooga and they alone have the m unicipal 
power to levy taxes and appropriate moneys to the various 
governm ental functions w ith in  the City of Chattanooga. 
Respondents did not even seek to jo in  the City in May 
of 1971 when the respondents were presenting their own 
desegregation plan calling for the racial balance of the 
Chattanooga Public School System, a plan which would 
have required  massive bussing. T he  fiscal dependency 
of the Board of Education upon the City of Chattanooga 
was again made known during  the hearing and the Board’s 
fiscal position and its lack of buses were the bases of the 
D istrict C ourt’s approval of the partial im plem entation in 
September of 1971.

U pon this factual situation the District C ourt reluctantly 
ordered that the mayor, the other commissioners, and the 
city auditor be made party-defendants in this case along 
w ith the State court plaintiffs and their counsel. In addition 
to holding the State court order unconstitutional, the Dis­
trict C ourt ordered that the desegregation plan previously 
subm itted by the defendant Board of Education, and partia l­
ly im plem ented in the Fall of 1971, be fully im plem ented 
no later than the Fall of 1972. T h e  respondent N.A.A.C.P. 
had requested the D istrict C ourt in their petition to order 
the full im plem entation of the plan and to require  the 
City of Chattanooga to pay the costs of purchasing, m ain­
taining and operating the school bus system necessary to 
carry out the plan. T he  only logical conclusion which 
could be draw n from the District C ourt’s action was that 
the Board of Commissioners of the City of Chattanooga 
had been ordered by the D istrict C ourt to pay for such 
expense, since the Board of Education does not have the 
power to raise funds or to spend funds other than as 
allocated to it.



8

This being the case, the City A ttorney, on behalf of the 
Board of Commissioners, filed a m otion for a new trial or 
rehearing seeking clarification of this point. T he  th rust of 
the m otion and accompanying brief was that the Board of 
Commissioners could not be held liable for such expense, 
approxim ately $500,000 for the initial capital outlay, since 
the Commissioners were not party-defendants when the 
desegregation order was entered and did not have an 
opportunity  to be heard w ith regard to the necessity of 
or the design of the new desegregation plan. Nonetheless, 
the D istrict C ourt denied the m otion by merely stating 
that the case was on appeal to the C ourt of Appeals for the 
Sixth C ircuit and that relief could be had there. T h e  City 
of Chattanooga then filed its appeal, briefed and argued 
the issue, bu t such issue was not discussed by the A pril 
30, 1973, opinion of the C ourt of Appeals. T he logical 
effect of the D istrict C ourt’s order denying the motion 
and the silence of the C ourt of Appeals leaves the peti­
tioners w ithout guidance and facing possible contem pt 
charges.

Justice Jackson, in his dissenting opinion in Federal 
Trade Commission v. Rubberoid Company, 343 U.S. 470, 
494 (1952), spoke to the dilemm a facing petitioners:

T o  leave definition of the duties created by an order 
to a contem pt proceeding is for the courts to end 
where they, should begin. # * But in this case issues
that seem far from frivolous as to what is forbidden 
are reserved for determ ination when punishm ent for 
disobedience is sought.

T he holding of the D istrict C ourt that the City of Chat­
tanooga is fiscally responsible for the new transportation 
system in this factual situation is contrary to Zenith Radio 
Corp. v. Hazeltine Research, 395 U.S. 100, 110 (1969), 
w herein the C ourt stated that:



9

It is elementary that one is not bound by a judgment. 
in personam resulting from litigation in which he is 
not designated as a party or to which he has not been 
made a party by service of process.

Zenith involved a parent and wholly-owned subsidiary 
corporation. T h e  factual circumstances there are not as 
strong as the facts here, because the petitioners cannot and 
have not controlled the course of this litigation by the 
independent Board of Education, which has had its own 
counsel since the inception of this suit.

Petitioners requested the D istrict C ourt to give them 
an opportunity  to be heard on the issues relevant to them, 
that is, w hether or not the new desegregation plan was 
required  under the holdings of this C ourt and the C ourt 
of Appeals and, if so, what legislative discretion they re­
tained with regard to funding such plan. Petitioners have 
been denied their due process rights by being bound by 
a judgm ent in a case in which they have had no oppor­
tunity  to be heard. T his C ourt has repeatedly held that 
“T he fundam ental requisite of due process of law is the 
opportunity  to be heard .” Mullane v. Central Hanover 
B. T. Co., 339 U.S. 306, 314 (1950), citing Grannis v. 
Ordean, 234 U.S. 335, 394 (1914) . Moreover, this C ourt 
fu rther held in Armstrong v. Manzo, 380 U.S. 545, 552 
(1965) that the opportunity  to be heard

“* * * must be granted at a m eaningful time and 
in a m eaningful m anner. T he trial court could have 
fully accorded this righ t to the petitioner only by 
granting his m otion to set aside the decree and con­
sider the case anew. Only that would have wiped the 
slate clean. Only that would have restored the peti­
tioner to the position he would have occupied had 
due process of law been accorded to him  in the first 
place.”



10

Petitioners contend that they have neither been made 
party-defendants at the appropriate time nor given the 
opportunity  to be heard so as to be bound by the judg­
m ent of the D istrict Court. T he  D istrict C ourt’s actions 
with regard to petitioners have violated elem entary p rin ­
ciples of law and petitioner’s rights under the D ue Pro­
cess Clause of the U nited States Constitution.

2. T h is case presents significant questions which this 
C ourt should resolve.

I t is quite clear that school desegregation cases are 
reaching the m etropolitan areas in both the South and 
N orth. T here  are a num ber of cases pending in the courts 
that involve m etropolitan integration bu t such is still 
referred to as desegregation. Many m etropolitan areas 
have more than one local school board or governm ent 
involved. Many cases are similar to Chattanooga in 
that the local school board has neither the ability to 
raise nor spend money of its volition. W ith  the adoption 
of such plans, others beside the local school board are and 
will be requ ired  to provide financial support, especially 
m  cities similar to Chattanooga, where the system was 
based on a neighborhood school system and bussing was 
only used in suburban areas recently annexed, where the 
nearest schools are more distant than are the schools w ithin 
the older city.

Petitioners contend that city governments and other gov­
ernm ental institutions should be made party-defendants to 
desegregation proceedings brought for relief that could 
ultim ately require funding by such governm ental bodies. 
T o  provide complete relief w ithin the m eaning of Rule 
19 of the Federal Rules of Civil Procedure, the fiscally 
responsible governments m ust be made parties. Due 
Process requires an opportunity  to be heard on the necessi­
ty for a desegregation plan, and the fiscally responsible



I !

agency m ust have an opportunity  to present its view on 
any desegregation plan which it m ust finance.

Similar situations have occurred in the Sixth C ircuit at 
least twice. T h e  same attorney for the respondents herein 
also represents a class of Negroes in Knoxville, Tennessee. 
D uring the m iddle of a desegregation hearing in Knoxville, 
the plaintiffs there sought to add the Knoxville mayor and 
city council as party-defendants. T h e  D istrict Judge there 
granted such m otion bu t also granted a 45-day continuance 
in order to allow the new defendants an opportunity  to be 
prepared for trial. Goss v. Board of Education of City of 
Knoxville, 340 F. Supp. 711, 712-13 (E.D. T enn . 1972). 
Such right was never granted to petitioners here, perhaps 
due to the untim ely request of the respondents to add the 
City of Chattanooga as a party defendant.

Furtherm ore, w ith regard to the m etropolitan desegrega­
tion of D etroit, M ichigan, the District Judge in D etroit 
had ordered a m etropolitan desegregation plan w ithout 
giving the outlying school districts an opportunity  to be 
heard as such plan affected them. On appeal the Court 
of Appeals for the Sixth C ircuit affirmed in part bu t re­
m anded the case to the District C ourt in order to give such 
other local school districts, which had never been made a 
party to the desegregation case prior to the form ulation of 
the plan, an opportunity  to be heard w ith respect to a plan 
to be devised for the desegregation of the D etroit area. 
Bradley v. M ill ik e n ,---- F .2 d ------ , (6th Cir. 1973) .

T h e  C ourt of Appeals, en banc, relying upon Rule 19 
of the Federal Rules of Civil Procedure, stated:

W e hold that school districts which are to be affected 
by the decree of the District C ourt are “necessary par­
ties” under Rule 19. As a prerequisite to the im ple­
m entation of a plan in this case affecting any school 
district, the affected district first m ust be made a party



12

to this litigation and afforded an opportunity  to be 
heard.

# # *

On rem and, any party against whom relief is sought, 
including school districts which heretofore have in ter­
vened and school districts which hereafter may become 
parties to this litigation, shall be afforded an oppor­
tunity  to offer additional evidence, and to cross-ex­
am ine available witnesses who previously have test­
ified, on any issue raised by the pleadings, including 
am endm ents thereto, as may be revelant and admissi­
ble to such issues. T he  D istrict C ourt may consider 
any evidence now on file and such additional com­
petent evidence as may be introduced by any party.

Bradley v. Milliken, supra, pp. 68-69 of the Slip O pinion.

T h e  D istrict C ourt’s opinion, now affirmed in toto by 
the C ourt of Appeals, en banc, is contrary to the hold­
ing of this C ourt in City of Kenosha v. Bruno, 37 L.Ed. 
(2d) 109, 41 L.W . 4819 (June 11, 1973), which held 
that a civil rights action could not be m aintained for 
either equitable or monetary relief against a municipality.

In  Goss v. Board of Education of City of Knoxville, 
the Sixth C ircuit C ourt of Appeals, en banc, (Nos. 72-1766, 
1767) decided Ju ly  18, 1973, affirmed a D istrict C ourt 
opinion that Siuann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. (2d) 554, 
does not mandate forced bussing to accomplish a pre-deter- 
m ined racial mix.

T here  is no different rule for N orth  and South, Cf. 20 
U.S.C. § 1655, and this C ourt should vacate that portion 
of the District C ourt’s opinion with respect to the City 
of Chattanooga's being financially responsible for such full 
im plem entation of the plan so that the Board of Com­
missioners may have an opportunity  to be heard with



IB

regard to the necessity of and the details of a desegregation 
plan for which the City would be financially liable.

C O N C LU SIO N

For the reasons set forth above, a w rit of certiorari should 
issue to review the judgm ent and opinion of the Sixth C ir­
cuit.

Respectfully subm itted,

EU G EN E N. CO LLIN S 
City A ttorney 
400 Pioneer Bank Building 
Chattanooga, Tennessee 37402



14

A P P E N D I X
IN  T H E  U N IT E D  STA TES D IS T R IC T  C O U R T  

FO R  T H E  EA STER N  D IS T R IC T  OF TENN ESSEE 
S O U T H E R N  D IV ISIO N

Civil Action No. 3564

JAM ES JO N A T H A N  MAPP, E T  AL„
Plaintiff-Appellee, 

vs.

T H E  BOARD OF E D U C A T IO N  OF T H E  
C ITY  OF C H A T T A N O O G A , H A M IL T O N  

C O U N TY , TENN ESSEE, E T  AL.,
Defendants-Appellants.

O P IN IO N

(Filed February 4, 1972)

U pon July  26, 1971, this C ourt entered its opinion 
upon all matters then before the C ourt in this case. See 
Mapp v. Board of Education of the City of Chattanooga, 
Tennessee, 329 F.Supp. 1374. T he  order entered upon 
that opinion is now pending upon appeal. A t the time that 
order was entered the following matters were reserved 
for fu rther consideration by this Court: (1) matters
relating to the schedule for full im plem entation of that 
portion of the School Board plan relating to student assign­
ments in elem entary and jun io r high schools; (2) tentative 
approval only was given to the School Board plan for de­
segregation of the Chattanooga high schools other than 
Kirkm an Technical H igh School, which was found to 
be a unitary school and to which final approval was given. 
T here  accordingly rem ain to consider matters relating to



15

final approval of the plan for desegregation of the four 
general purpose high schools; and (3) matters relating 
to the plaintiffs’ claim for recovery of attorney fees from 
the defendant School Board,

Reports, affidavits, and briefs have now been filed regard­
ing the matters rem aining for decision as summarized 
above. U pon Decem ber 14, 1971, the plaintiff filed a 
m otion for fu rther relief which substantially reasserts the 
foregoing matters (See C ourt File #114) .

In  addition, a fu rther issue was injected into the case 
by recent motions filed by each party seeking to enjoin 
a state court judgm ent alleged to im pede or interfere 
w ith the desegregation plans heretofore approved in this 
case (See C ourt File #120 and #122) . T hereupon an order 
was entered, directing the jo inder of additional parties as 
parties defendant to this case and ordering that the said 
additional parties should appear and show cause why they 
should not be enjoined from the enforcem ent of or com­
pliance with a certain judgm ent entered in a state court 
and to which lawsuit they were each parties or counsel for 
parties.

T aking up first the matters just referred to, that is, the 
defendant’s m otion for instructions and the plaintiff’s mo­
tion seeking to enjoin compliance w ith or enforcem ent of 
an order entered in the state court, reference is made to 
this C ourt’s instructions and orders entered upon January  
25 and 26, 1972 (Court File #121 and #123). Pursuant 
to these instructions and orders of this Court, there have 
now been added as additional parties defendant to this 
lawsuit all parties to that certain state court proceeding 
en titled  “John E. Grannan, Jr. v. City of Chattanooga, 
Tennessee, et al.” #N-15967 in the C ircuit C ourt for H am ­
ilton County, Tennessee, including the plaintiff, John  E. 
G rannan, Jr., each of his counsel of record, and including 
the City of Chattanooga, its Mayor, each City Commis­



16

sioner, and the City A uditor. U pon January  28, 1972, a 
hearing was held w herein the original parties were present 
or represented by counsel and w herein each new party 
defendant was present in person and by counsel except 
Commissioner Rose, who had sought and obtained per­
mission to be excused bu t who was represented by counsel. 
T h e  City of Chattanooga was represented by corporate 
counsel. One of the attorney of record for the plaintiff 
G rannan in the state court proceedings, Ray Dodson, 
having disclaimed at the show cause hearing any interest 
in the state court judgm ent or proceedings, was dismissed 
as a party defendant to this case. T he  purpose of the 
hearing was to call upon the newly added parties defendant 
to show cause why a tem porary in junction should not issue 
enjoining and restraining them  from enforcem ent of or 
compliance w ith the order entered in  the aforesaid case 
of John E. Grannan, Jr. v. City of Chatanooga. U pon the 
basis of the pleadings and the record made upon that hear­
ing, the following matters appear undisputed.

U pon Decem ber 9, 1971, a lawsuit was filed in  the 
C ircuit C ourt for H am ilton County, Tennessee, in the 
aforesaid case of John E. Grannan, Jr. v. City of Chatta­
nooga, et al. U pon January  18, 1972, a final judgm ent was 
entered in that case purporting  to perm anently enjoin 
the City of Chattanooga and its officials from using public 
funds “for the purpose of transporting pupils in order to 
achieve a racial balance w ithin the Chattanooga Public 
School System.” According to that final judgm ent a trial 
was held in the state court upon January  14, 1972, just 
35 days after the filing of the original lawsuit. Reference 
is made to “E xhibit B ” to the plaintiff’s petition for a 
full and true copy of the state court final judgm ent. T he 
legal basis for the state court judgm ent, as cited on the face 
thereof, is (1) Section 49-2201 of the Tennessee Code 
A nnotated; (2) Section 1232 (a) of T itle  20 of the U nited



17

States Code, and (3) “sanity, reason, and the health and 
well being of the children.”

A t the time of the show cause hearing in this court the 
only counsel to speak in support of the validity of the 
state court order was counsel for the plaintiff therein. 
Counsel for the City of Chattanooga and for other city 
officials who were parties defendant in the state court 
proceedings, stated that he was of the opinion both prior 
to and after the entry of the state court order that the 
order was a wholly void and unconstitutional order. A l­
though specifically invited by this C ourt to do so, no other 
party or legal counsel present at the hearing, including 
the Mayor of the City of Chattanooga who is himself an 
attorney, spoke in support of the validity of the state court 
order. I t was fu rther represented at the show cause hear­
ing, however, that w ithin a m atter of days after entry of 
the state court judgm ent a public announcem ent was 
authorized and made on behalf of the City of Chattanooga 
and the other defendants in the state court proceedings 
that no appeal would be taken from the state court judg­
m ent and that the said defendants expected to fully com­
ply therewith.

U pon the basis of the foregoing undisputed record, it 
is perfectly clear that, the aforesaid state court judgm ent 
seeks to interfere w ith or impede the orders entered in 
this case and that the state court judgm ent is unconstitu­
tional upon its face in that it is in direct conflict w ith the 
unanim ous decisions of the U nited States Supreme Court 
w ritten by Chief Justice Burger in the cases of Swann v.
Gharlotte-Mecklinburg Board of Education, ---- U .S .------ ,
28 L.Ed. 2d 554, 91 S .C t .---- ; McDaniel v. Barresi,-----
U .S .---- , 28 L.Ed.2d 582, 91 S .C t.-----; and North Carolina
Board of Education v. S w a n n ,---- U.S. ——, 28 L.Ed.2d
586, 91 S .C t .---- , all of which were entered upon A pril
20, 1971. I t  should be noted in passing that these decisions



18

were entered m ore than six m onths prio r to the filing of 
the lawsuit in the state court.

A lthough these decisions are sometimes referred to by 
persons not knowledgeable in the law as “mere prece­
dents,’’ all persons w ith either knowledge of or respect for 
the law are fully aware that these unanim ous decisions of 
the U nited  States Supreme C ourt are the law of the land, 
b inding upon every person in the land, and every court 
in the land, including the state courts of H am ilton County, 
Tennessee and this Court. These matters are so clear as to 
render any contention to the contrary frivolous upon its 
face.

In  the decision of the U nited  States Supreme C ourt 
entered in the case of North Carolina Board of Education 
v. Swann, supra, the C ourt unanim ously held th a t a state 
statute having the identical purpose as the Tennessee stat­
ute red d ed  as the basis for the court order in Grannan 
v. City of Chattanooga was unconstitutional, saying;

“However, if a state imposed lim itation on a school 
au thority ’s discretion operates to im pede or obstruct 
the operation of a unitary  school system or impede 
the disestablishment of a dual school system, it must 
fall; state policy m ust give way when it operates to 
h inder vindication of federal constitutional guaran­
tees.”

No only does Section 1232 (a) of T itle  20, U nited 
States Code, cited in the state court judgm ent show on its 
face that it has no application to state and local officials 
in school desegregation cases, bu t the U nited  States Su­
prem e C ourt in a unanim ous opinion w ritten by Chief 
Justice Burger in the case of McDaniel v. Barresi, supra, 
clearly so state in regard to an almost identical statute in 
the Civil Rights Act of 1964, saying:



19

“N or is the Board’s plan barred by T itle  IV of the 
Civil Rights Act of 1964. T he  sections relied upon 
by the respondents [42 N.S.C. §§ 2000c (b ) , 2000c 
(6) ] are directed only at federal officials and are de­

signed simply to foreclose any in terpreta tion  of the 
Act as expanding the powers of federal officials to
enforce the Equal Protection Clause. S w a n n ,----
U.S. a t ---- , 28 L.Ed.2d at 567, 91 S .C t .-----. T itle
IV  clearly does not restrict state school authorities in 
the exercise of their discretionary powers to assign 
students w ithin their school systems.”

Finally, the contention that the use of public funds for 
student transportation is contrary to “sanity, reason, and 
health and well being of the ch ildren” is directly con­
trary to the decision of the U nited States Supreme Court 
in the case of Swann v. Charlotte-Mecklinburg Board of 
Education, supra, w herein the C ourt stated:

“Bus transportation has been an integral part of the 
public education system for years, and was perhaps 
the single most im portan t factor in the transition from 
the one-room school house to the consolidated school. 
Eighteen m illion of the N ation ’s public school chil­
dren, approxim ately 39%, were transported to their 
schools buy bus in 1969-1970 in all parts of the Coun­
try .”

T he City of Chattanooga has for years financed transpor­
tation of students, long prio r to this desegregation lawsuit. 
Likewise, H am ilton County, Tennessee schools have fu r­
nished transportation for children and is now doing so. 
I t is obvious that the only transportation of students ob­
jected to in the state court order is that transportation 
which may further the removal of racial discrim ination in 
the schools. W hen dual school systems were being op­
erated, no contention was then made that transportation



20

used to keep the races apart was contrary to “sanity, reason 
and health and well being of children.” Counsel for the 
defendant G rannan himself, the only counsel to make any 
contention in support of the state court order, adm itted 
that transportation of students to fu rther m unicipal an­
nexation is lawful and proper. T o  seek to argue that 
transportation of students in furtherance of a m unicipal 
annexation ordinance is lawful and valid bu t transporta­
tion of the same students in furtherance of the Equal 
Protection Clause of the U nited States C onstitution is 
unlaw ful needs only to be stated to dem onstrate its 
irrationality.

An order m ust accordingly enter enjoining all parties 
from either seeking to enforce or in any m anner comply­
ing w ith the judgm ent entered in  the case of John E. 
Grannan, Jr. v. City of Chattanooga, Tennessee, et al., 
#N-15967 in the C ircuit C ourt for H am ilton County, 
Tennessee, the said judgm ent being void and unconstitu­
tional on its face.

W ith  regard to the in junction to be entered herein, 
there remains only to consider the issue of the taxation of 
costs as to this phase of the lawsuit and w hether the legal 
expenses incurred by any party by reason of these pro­
ceedings should be taxed as a part of the costs and, if 
so, to whom. T o  advance contentions and to undertake 
proceedings which parties or their legal counsel know to 
be directly contrary to specific, clear, and controlling de­
cisions of the U nited States Supreme C ourt and which are 
designed to delay or im pede the proceedings or orders of 
this C ourt is an act of bad faith upon the part of those 
parties or their counsel who may so act, and, when estab­
lished in the record, will be grounds for awarding all 
costs in such proceedings against parties or their attorneys 
so found to have acted in bad faith, such costs to include



21

the legal expenses incurred on behalf of all parties not 
found to have acted in bad faith. T he  case will rem ain 
before this C ourt only for resolution of any issues regard­
ing costs. All other matters in regard to this phase of the 
lawsuit, if any, m ust be taken up  in the U nited States 
C ourt of Appeals where the case is now pending on appeal.

T u rn in g  to the matters heretofore reserved following 
entry of the C ourt’s opinion upon Ju ly  26, 1971, and as 
summarized at the beginning of this m em orandum , it ap­
pears th a t full im plem entation of the student assignment 
plans heretofore approved has not been accomplished as 
yet in certain elem entary and jun io r high schools. I t fu r­
ther appears that the delay in this regard has been oc­
casioned by the unavailability of funds “in the prom pt 
and orderly process of local governm ental affairs,” as 
directed by the Court, the delay in this regard having been 
occasioned in very substantial part by the uncertainties 
regarding various programs of federal aid to education. 
Accordingly, the provisions for full im plem entation of the 
plan for student desegregation as contained in paragraph 
4 of the order entered upon A ugust 5, 1971, will continue 
in effect w ith the fu rther provision that full im plem en­
tation will be accomplished not later than the fall term 
of school in 1972, subject, of course, to the rights of the 
parties to present in the appeal now pending any matters 
in regard thereto.

T entative approval only having heretofore been given 
to the School Board plan for desegregation of the C hatta­
nooga high schools other than Kirkm an Technical H igh 
School (to which final approval has been given) , fu rther 
consideration m ust be given to this phase of the plan. 
A t the time that the C ourt gave its tentative approval to 
the high school desegregation plan, the C ourt desired 
additional inform ation from the Board of Education as to



22

w hether three, ra ther than four, general purpose high 
schools would be feasible or desirable in Chattanooga. I t 
now appears, and in this both parties are in agreement, 
that three general purpose high schools rather than four 
is not feasible or desirable, at least for the present school 
year. H aving resolved this m atter to the satisfaction of 
the Court, the defendant Board of Education will ac­
cordingly subm it a fu rther report on or before June  15, 
1972, in which they either dem onstrate that any racial 
im balance rem aining in the four general purpose high 
schools is not the result of “present or past discrim inatory 
action on their p a rt” Swann v. Charlotte-Mecklinburg 
Board of Education, 28 L.Ed.2d 554 at 572, or otherwise, 
and to the extent that the Board is unable to dem onstrate 
that such racial imbalance which remains is not the result 
of past or present discrim inatory action, they should sub­
m it a fu rther plan for removal of all such rem aining racial 
discrim ination, the fu rther plan likewise to be subm itted 
on or before June 15, 1972.

T u rn in g  finally to the m otion for the allowance of 
attorney fees for all legal services perform ed on behalf of 
the plaintiffs since the filing of this lawsuit, the C ourt is 
of the opinion that the m otion should be denied. In  the 
absence of a showing of bad faith on the part of the 
defendants, the C ourt is of the opinion that the allowance 
of attorney fees would not be proper. T his lawsuit has 
been in an area where the law has been evolving, and the 
C ourt cannot say that the defendants have acted in bad 
faith in failing always to perceive or anticipate that de­
velopm ent of the law. For example, in all of its orders 
entered prior to the decision of the U nited  States Supreme 
C ourt in the case of Green v. School Board of New Kent 
County, 391 U.S. 430, 20 L.Ed.2d 716, 88 S. Ct. 1689 
(1968) , this C ourt was itself of the opinion that genuine



23

freedom of choice on the part of students in school at­
tendance was compliance with the Equal Protection Clause 
of the Constitution. W hile the Board has vigorously con­
tested the plaintiff’s contentions at every stage of this law­
suit, it fu rther appears to the C ourt that when factual and 
legal issues have been resolved, the Board has at all times 
com plied or attem pted to comply in good faith w ith the 
orders and directions of the Court. Accordingly, it has 
never been necessary for this C ourt to direct that ouside 
persons or agencies, such as the U nited States D epartm ent 
of Justice or the U nited States D epartm ent of H ealth, 
Education, and W elfare, enter into the lawsuit in aid of 
the developm ent of a lawful plan of desegregation or in 
aid of enforcement. As recently as in its opinion entered 
upon Ju ly  26, 1971, the C ourt had this to say:

"T h e  wisdom and appropriateness of this procedure 
(i.e., looking to the School Board for the develop­

m ent of a desegregation plan) is fu rther enhanced in 
this case by the apparent good faith efforts of the 
Chattanooga school authorities and the School Board 
to come forward with a plan that accords w ith the 
instructions of the C ourt and its order of May 19, 
1971, and with the appellate guidelines therein 
cited.”

U nder these circumstances the C ourt is of the opinion 
that an award should not be made taxing the defendant 
Board of Education w ith the plaintiff’s attorney fees.

In  conclusion, it appears appropriate for the C ourt to 
once again state in simple and basic terms the things it 
has and has not done in this case.

A cting pursuant to the Equal Protection Clause of the 
U nited States C onstitution and the unanim ous decision 
of the U nited States Supreme C ourt in the case of Swann 
v. Charlotte-Mecklmburg Board of Education, this C ourt



24

has ordered the removal of all vestiges of racial discrim­
ination in the Chattanooga City Schools where such dis­
crim ination was shown to have been created by past or 
present actions of the state or local governm ent. N othing 
more nor nothing less than this has been ordered. W here 
school zone lines were shown to have been deliberately 
draw n upon racial lines, either as a carryover from the 
days when a dual system of schools was operated for white 
and black children, or otherwise, the redraw ing of school 
zone lines was ordered. In  some instances this was done 
on the basis of pairing or grouping schools. W here trans­
portation of students was shown to be necessary in getting 
children to the school to which they were zoned, such 
transportation was approved. No child has ever been 
ordered by this C ourt to use school provided transporta­
tion. Each child has been ordered to attend the school 
to which he or she is zoned, a requirem ent that has been 
followed since the beginning of public education in this 
City and in this N ation. W hen persons attem pted to 
interfere w ith or prevent the removal of racial discrim in­
ation in the Chattanooga Public Schools by means of an 
illegal and unconstitutional state court order, enforcem ent 
of that order was enjoined.

An order will enter in accordance with this opinion.

/ s /  FRA N K  W. W ILSO N
U nited States D istrict Judge



25

IN  T H E  U N IT E D  STA TES D IS T R IC T  C O U R T  
FO R  T H E  EA STER N  D IS T R IC T  OF TEN N ESSEE 

S O U T H E R N  D IV ISIO N

Civil Action No. 3564

Plaintiff-Appellee,
vs.

T H E  BOARD OF E D U C A T IO N  OF T H E  
C ITY  OF C H A T T A N O O G A , H A M IL T O N  

C O U N TY , TENN ESSEE, E T  AL.,
Defendants-Appellants.

O R D ER

(Filed February 4, 1972)

T his is an action for removal of racial discrim ination 
in the public schools of Chattanooga, Tennessee. T he  case 
is presently before the C ourt upon matters reserved for 
fu rther consideration in the order entered herein  upon 
A ugust 5, 1971, upon the plaintiff’s m otion for fu rther 
relief, and upon a hearing held pursuant to an order 
entered January  26, 1972, joining additional parties to 
this lawsuit and requ iring  that they show cause wrhy they 
should not be enjoined from seeking enforcem ent of or 
m aking compliance with a state court judgm ent as seeking 
to im pede or interfere with the previous order of this 
C ourt requ iring  the removal of racial discrim ination in 
the Chattanooga Public Schools. This order is entered 
in accordance w ith the opinion of the C ourt filed this date.

I t  is accordingly O RD ERED ;



26

(1) T h a t Ray Dodson, having disclaimed any interest 
in this lawsuit, is hereby dismissed as a party defendant;

(2) T h a t each of the o ther parties defendant joined 
herein by order of this C ourt entered January  26, 1972, 
including John  E. G rannan, Jr., G lenn T . M cColpin, 
Floyd E. M organ, the City of Chattanooga, Tennessee, 
R obert K irk W alker, Mayor of the City of Chattanooga, 
Steve Conrad, Gene Roberts, John Franklin, and Pat Rose, 
Commissioners of the City of Chattanooga, and W illiam  
Zachary, City A uditor of the City of Chattanooga, and any 
other person or party acting for or on their behalf, be 
and hereby are enjoined from in any m anner seeking 
enforcem ent of or in any m anner complying w ith the judg­
m ent and order of the state court entered in the case of 
John E. Grannan, Jr. v. The City of Chattanooga, Ten­
nessee, et al., No. N -15967 in the C ircuit C ourt for H am il­
ton County, Tennessee, the said order being void and u n ­
constitutional on its face:

(3) T h a t paragraph (4) of the order entered in  this 
cause upon A ugust 5, 1971, will be modified to the ex­
tent of adding thereto that full im plem entation of the 
defendant School Board’s plan for student assignments in 
the elem entary and jun io r high schools will be accom­
plished not later than the fall term  of school 1972 unless 
otherwise stayed in the U nited States C ourt of Appeals;

(4) T h a t on or before June  15, 1972, the defendant 
Board of Education will either subm it a report in which 
they dem onstrate that any racial imbalance rem aining in 
the four general purpose high schools is not the result 
of present or past discrim inatory action on the part of 
the State of Tennessee or the Board of Education, or o ther­
wise, to the extent that the Board of Education is not 
able to so dem onstrate, subm it a fu rther plan for removal 
of all such rem aining racial discrim ination;



27

(5) T h a t the plaintiff’s m otion for the allowance of 
attorney fees for services perform ed by plaintiff’s counsel 
since the inception of this lawsuit be denied; and

(6) T h a t there be reserved for fu rther proceedings 
and action of the C ourt only the m atter of determ ining 
any issues w ith regard to taxation of costs, including 
attorney fees, in that phase of the lawsuit relating to the 
enjoining of a state court order as referred to in paragraph 
(2) of this order.

T his will be a final order in this cause and subject to 
appeal as such.

APPROVED FO R  EN TRY .

/ s /  FRA N K  W. W ILSO N
U nited States D istrict Judge



28

Nos. 71-2006, 71-2007, 72-1443 & 72-1444

U N IT E D  STA TES C O U R T  OF APPEALS 
FO R  T H E  S IX T H  C IR C U IT

J am es  J o n a th a n  M a p p , e t  a l .,
Pla in tiffs-A ppellan ts 
and Cross-Appellees,

v.
T h e  B oard o f  E d u ca tio n  o f  t h e  

C ity  o f  C h a t t a n o o g a , e t c ., 
e t  a l .,

Defendant-Appellee 
and Cross-Appellant.

A p p e a l  from U nited  
States D istrict Court 
for the Eastern Dis­
trict of Tennessee, 
Southern Division.

Decided and Filed O ctober 11, 1972

Before W e ic k  and E dw ards, C ircuit Judges, and O ’Su l ­
liv a n , Senior C ircuit Judge.

W e ic k , C ircuit Judge. In  their appeal in the m ain case 
the plaintiffs contend that the D istrict C ourt erred in ap­
proving an interim  high school plan which left the m ajority 
of black students in segregated schools; in approving a plan 
which left Ju n io r H igh Schools and Elem entary Schools 
racially identificable; in approving continued racial identi- 
fiability of schools on constitutionally impermissible 
grounds; and in imposing a disproportionate burden  on 
black students by ordering the closing of black schools and 
not white schools. T h e  plaintiffs pray, therefore, that the



29

case be rem anded w ith instructions to enter detailed find­
ings of fact w ith respect to these measures, and in the 
absence of com pelling justification tha t the plan be disap­
proved. T hey  also ask us for a declaratory judgm ent.

T h e  defendants contend that they were not in  default, 
and that over the years they have always complied with all 
orders entered by the D istrict Court, except the order from 
which both parties are now appealing. T hey  contend that 
the order was unjustified since they had not been in default; 
that the order goes too far in requ iring  pairing and cluster­
ing of schools, and in requ iring  the expenditure of large 
sums of money to purchase buses to provide transportation 
to achieve a quota or racial balance in each and every school 
in the school system.

T h e  Board of Commissioners of Chattanooga has ap­
pealed, contending that its due process rights have been 
violated by the order of the Court; that the Board of Com­
missioners is not bound by orders of the C ourt made prior 
to the time it was made a party to the litigation; and that it 
(Board of Commissioners) alone, and not the Board of 
Education, has the power and authority  under Tennessee 
law to appropriate funds and levy taxes.

I t  is obvious to us that none of the parties is satisfied 
w ith the desegregation order of the District C ourt and that 
the m ain appeal is only a piecemeal appeal. For the reasons 
hereinafter set forth, and in compliance w ith the request 
of the plaintiffs we rem and for fu rther consideration and 
direct the District C ourt to present a plan which will finally 
determ ine this apparently-indeterm inable litigation, which 
is now more than twelve years old. W e do not grant to 
plaintiffs declaratory relief which they request, as this is 
beyond our jurisdiction as an Appellate Court. Plaintiffs 
request for declaratory relief should be presented to the 
D istrict Court.



30

I

H IST O R Y  OF T H E  CASE

These appeals graphically illustrate developments in the 
law relating to school desegregation since Brown I  and 
Brown I I  which, even after Swann, and related cases, have 
perplexed and confused judges, lawyers and legal scholars.1

In  the present case the School Board has been subject at 
all times to the continuing jurisdiction and supervision of 
the D istrict C ourt since 1960, and the D istrict Judge since 
he took over the case has handled prom ptly all m atters sub­
m itted  to him.

T h e  Board has co-operated in all respects w ith the District 
C ourt and has com plied w ith all of its orders except those 
orders from which both  parties have appealed and which 
involve the expenditure of large sums of public funds for 
busing.

In  1962 the C ourt approved a plan for the gradual de­
segregation of the Chattanooga public schools, which plan 
undertook to desegregate all of the elem entary schools by 
1965, and the Ju n io r H igh Schools in 1966, all high schools 
in 1968, and Chattanooga Technical Institu te  in 1969. T h e  
C ourt found that the plan was “a prom pt and reasonable 
start toward desegregation and as accomplishing full de­
segregation w ith all deliberate speed.” U pon appeal, the 
judgm ent of the D istrict C ourt was affirmed except as to 
technical and vocational courses, and the case was rem anded 
for fu rther proceedings w ith respect to them. Mapp v. 
Board of Educ., 319 F.2d 571 (6th Cir. 1963) .

On M arch 29, 1965 the plaintiffs moved for fu rther relief 
seeking an acceleration of the plan for desegregation which

1 The Supreme Court, 1970 Term, 85 Harvard Law Review p. 74 
(1971); School Desegregation After Swarm, A Theory of Governmental 
Responsibility, Univ. of Chicago Law Review No. 2, Winter 1972.



31

the C ourt granted, requ iring  all grades to be desegregated 
by September, 1966. On appeal we affirmed, except as to 
faculty assignments. Mapp v. Board of Educ., 373 F.2d 75 
(6th Cir. 1967).

On M arch 29, 1967, the case was restored to the docket 
for fu rther consideration of the issue of faculty assign­
ments.2 N othing then occurred un til twenty-one months 
la ter when plaintiffs hied another m otion for fu rther relief.3 
A bout eleven m onths later plaintiffs hied a m otion for im ­
m ediate relief.

T he  Board answered the motions, stating that no de­
cisions based on race had been made by it since the begin­
ning of the academic year 1966-67, and further, since that 
time “no person has been excluded from any school because 
of race or color” , and that the Chattanooga School System 
is a un itary  system w ithin the m eaning of Alexander v. 
Holmes County Bd. of Educ., 396 U.S. 19 (1969) .4

In  an opinion dated February 19, 1970, the C ourt 
discussed the Supreme C ourt decisions and decisions of this 
C ourt intervening between the date of its approval of the 
plans for desegregation, and the present time, and in view 
of disputed factual issues it ordered an evidentiary hearing.

On May 19, 1971, the C ourt rendered an oral opinion 
from the bench, in which it found that the school system 
was not unitary and suggested that the Board read some 
of the more recent decisions of the Supreme C ourt and of 
this Court, and ordered it to hie another plan for desegre­
gation.

2 Faculty assignments are no longer an issue.
3 The motions for further relief were usually filed after rendition of 

new opinions by the Supreme Court.
4 The Board was of the view that prior to Sw ann, it had no right 

to assign children on the basis of race.



32

In  response thereto the Board filed such a plan containing 
provisions which it deemed necessary in order to comply 
w ith the order of the Court. T h e  C ourt approved the plan 
w ith certain modifications, and both  parties have appealed. 
Mapp v. Board of Educ., 329 F.Supp. 1374 (1971) . T he  
plan as approved by the C ourt will require  an initial capital 
outlay and operational expenditure of $468,126. 329 F. 
Supp. at 1386.

T h e  history was detailed here in order to dispel any 
inference or claim tha t only the Board is responsible for 
all the delay in this case. T he  District C ourt did not blame 
the Board. It was of the view that the plans which it had 
previously approved would elim inate all vestiges of racial 
discrim ination. I t was only upon consideration of recent 
Supreme C ourt cases and decisions of this C ourt that the 
D istrict C ourt concluded this had not been accomplished. 
T h e  C ourt said:

“In  the intervening ears very substantial progress has 
been made. Following appellate guidelines as they 
then existed, this C ourt believed upon each previous 
occasion it entered desegregation orders, first in 1962, 
then in 1965 and 1967, that all vestiges of the dual 
system of schools would be removed upon fulfillm ent 
of its orders and only a unitary  system rem ain. Ex­
perience and appellate redefinition of the concept of 
a un itary  school system have now m andated that fu r­
ther steps be taken to accomplish the full and final 
desegregation of the Chattanooga schools. As reflected 
by the undisputed evidence, a num ber of the C hatta­
nooga schools rem ain racially identifiable.” (329 Fed. 
Supp. at 1380) .

In  the areas of state action, in what m anner and to what 
extent a dual system m ust be dism antled so as to become a 
unitary system, still is unclear. See footnote 1.

In  our opinion, the fact that the Board obeyed the order



33

of the C ourt and filed a plan which it believed the C ourt 
required, and which the C ourt did adopt w ith modifica­
tions, did not estop it from appealing from the judgm ent 
approving such plan.

O n more than one occasion the C ourt has com mented 
on the good faith of the Board.

In  denying an application of counsel for plaintiff for a t­
torney’s fees, the C ourt said:

“T u rn in g  finally to the m otion for the allowance of a t­
torney fees for all legal services perform ed on behalf of 
the plaintiffs since the filing of this lawsuit, the C ourt 
is of the opinion that the m otion should be denied. 
In  the absence of a showing of bad faith on the part of 
defendants, the C ourt is of the opinion that the al­
lowance of attorney fees would not be proper. T his 
lawsuit has been in an area where the law has been 
evolving, and the C ourt cannot say that the defendants 
have acted in bad faith in failing always to perceive 
or anticipate that developm ent of the law. For ex­
ample, in all of its orders entered prior to the decision 
of the U nited  States Supreme C ourt in the case of 
Green v. School Board of New Kent County, 391 U.S. 
430, 20 L.Ed. 2d 716, 88 S.Ct. 1689 (1968), this C ourt 
was itself of the opinion that genuine freedom of 
choice on the part of students in school attendance 
was compliance w ith the Equal Protection Clause of 
the Constitution. W hile the Board has vigorously 
contested the plaintiff’s contentions at every stage of 
this lawsuit, it fu rther appears to the C ourt that when 
factual and legal issues have been resolved, the Board 
has at all time complied or attem pted to comply in 
good faith w ith the orders and directions of the C ourt.”



34

I I

FIX ED  R A C IA L BA LANCE A ND  Q U O TA S 
IN  EA C H  SC H O O L

Plaintiffs’ plan, which they contend the C ourt erred in 
not adopting, was prepared by its expert witness, Dr. M i­
chael Stollee. T h is plan, as stated in plaintiffs’ brief, pro­
vides:

“His [Dr. Stollee’s] plan proprosed the desegregation 
of elem entary schools by use of pairing, grouping and 
clustering (T r. 1583) resulting in d istribu tion  of no 
less than 30 or no more than 70 percent racial con­
centration of blacks or whites in every elementary 
school. His plan for ju n io r high projected desegrega­
tion by redirecting the elem entary feeder system, using 
the new groupings provided in his elem entary plan 
(T r. 1594) . T h e  distribu tion  again was projected 

w ithin the 70-30 range (T r. 1890) . H e proposed re­
zoning the four general purpose high schools to achieve 
a racial d istribution between 49.1% to 51.9% black 
(T r. 1601) . T ransporta tion  would be required  for 

some, though not all students under each phase of the 
plan (T r. 1645) . His plan provided for the transfers 
of faculty to remove racial identifiability (T r. 1609) 
and affirmative language for protection of teachers in 
the desegregation process (T r. 1614) . Construction 
policy in his plan provided that this school board 
would have an affirmative duty to place schools to 
fu rther integration (T r. 1620) .”

T his plan is “based upon an allowable 20% variation 
on either side of the total racial population w ith the result 
that all schools would have at least 30% of each race and 
not more than 70% of the other race. (T r. 1585) .” A p­
pellees’ brief, page 48.

T h e  plan which the C ourt approved achieves “a racial 
ratio of not less than 30% nor more than 70% of any race



35

in each elem entary school w ithin the system w ith bu t five 
exceptions . . 329 F.Supp. 1374, 1382. As to the five
exceptions, the C ourt found that the imbalance was not 
the result of past or present discrim ination. A similar 
racial balance was provided for the Ju n io r H igh Schools. 
Senior H igh Schools are still under consideration.

It is thus apparent that the plaintiffs’ plan requires a 
fixed racial quota or balance in each and every school in 
the system, while the plan adopted by the C ourt requires 
such ratio in all bu t five schools. Both plans certainly do 
provide for “maximized in tegration .”

W e do not read Swann and related cases as requiring  
a fixed racial balance or quota in each and every school in 
a city, irrespective of the residential patterns of the city. Yet 
that is exactly what both of these plans provide.

If there was any doubt about Swann not requ iring  such 
quotas, the doubt was dispelled in Chief Justice B urger’s 
opinion in Winston-Salem Forsyth County Bd. of Educ. v. 
Scott, 404 U.S. 1221 (1971), ru ling  on an application for 
a stay.

T h e  District C ourt was obviously impressed by the fact 
that in Swann the Supreme C ourt affirmed a judgm ent re­
qu iring  massive busing to an extent m uch greater than that 
in the present case. W e do not have before us the record 
in that case for purpose of m aking comparison, bu t we are 
certain that Swann involved a situation entirely different 
than the case at bar, because of the failure of the Board of 
Education in Swann to co-operate w ith the D istrict Court, 
and it was clearly in default. W e do not believe that the 
Supreme C ourt in Swann was telling D istrict Courts to 
adopt massive busing orders such as was involved there.

In  reality, in cases involving massive busing the school 
children of both races are being used in an effort to integrate 
the races in the entire school system. T his is a far cry from



36

Broiun I  and Brown II , and involves im pingem ent on the 
constitutional rights of the children who do not wish to be 
so used.

W e do not consider that Swann issued a general command 
that all U nited  States D istrict Judges im itate and enforce 
the colorful and dram atic orders of ju d g e  M cM illan. It 
merely perm itted  w hat he had ordered.

In  Goss v. Board of Education, 444 F.2d 632, 636 (6th 
Cir. 1971) we observed:

“T h e  D istrict C ourt opinions reflect in observable 
measure Judge M cM illan’s doubts as to the genuine­
ness of the school authorities’ concern for the constitu­
tional rights of both the black and w hite school chil­
dren of C harlotte and M ecklenburg Counties. T he  
broadness of their commands bespeak some m otivation 
of reprisal. . . . We, therefore, initially observe that 
while the Supreme C ourt found legally tolerable what 
may be referred to as the Mecklenburg rule, it by no 
means directed that its commands be obeyed every­
w here.”

In  the case at bar the D istrict Judge held, as set out here­
inabove, that the School Board has at all times acted in 
good faith and has at all times “complied or attem pted to 
comply w ith the orders and directions of the C ourt.”

W e do not believe that the Boards of Education can be 
faulted for the residential patterns of a city, or for the 
heavy concentration of black or w hite population in certain 
areas, or for the m obility of both  races. These are matters 
over which the school system has no control, neither does 
it have authority  to assume such control. I t has always 
been the practice in the Am erican educational system, 
un til recently, to locate schools near residences, and these 
schools have been known as neighborhood schools. N eigh­
borhood schools enabled parents of children to participate 
in the school’s operation, enabled the children to engage



37

in o ther activities and to associate w ith their friends and 
neighbors, and even to walk to and from school. Destruction 
of the neighborhood school system deprives both parents 
and their children of these advantages, and can even lower 
the quality of education. “School Desegregation After 
Swann,” Univ. of Chicago Law Review, Vol. 39 No. 2, 
W in ter 1972, at 444.

III

B U R D E N  OF PR O O F

O rdinarily where a dual system has been m aintained, 
the burden of proof rests upon the School Board to establish 
that present racial imbalances in a particular school are not 
the result of past discrim inatory actions of either the Board 
or even the state, although the cases are not very clear as 
to just how or in what m anner the Board can ever meet 
such a heavy burden. But in a case like ours, where the 
Board has complied with the desegregation orders of the 
Court, and the plaintiffs have filed motions for fu rther 
relief, it would seem to us to be only fair that plaintiffs 
should have the burden to prove that they are entitled  to 
such fu rther relief. T he  Board ought not to have the 
burden of disproving every contention which the plaintiffs 
may see fit to make in this case. In  our judgm ent the 
C ourt erred in placing on the defendants the burden  of 
proof in resisting plaintiffs’ motion for fu rther relief.

IV

M A X IM IZIN G  IN T E G R A T IO N

T he D istrict C ourt fu rther required  the Board to es­
tablish that it had taken affirmative action to “maximize 
in tegration” in all feasible ways as required  by Kelly and



38

Robinson. T h e  Supreme C ourt in Davis held that “school 
authorities should make every effort to achieve the greatest 
possible degree of actual desegregation taking into account 
the practicalities of the situation.” W e have not found 
where the Suprem e C ourt has used the words “maximize 
in tegration”. If maximize desegregation and maximize 
integration mean one and the same thing, then the use of 
these words w ould be proper. T h e  difficulty is that the 
D istrict C ourt may well have understood the words to 
require  integration of the races by fixed num bers or quotas 
in each public school in the system, regardless of where 
the pupils live, and regardless of their economic circum ­
stances. W e do not believe the law requires any such thing.

It should be pointed out that there is a m arked distinction 
between voluntary busing and induced or forced busing in 
the effect on the children involved and the ir parents. No 
one can have any objection to the school system furnishing 
transportation from the child’s residence to the school 
nearest thereto. I t is som ething entirely different when the 
child by reason of a C ourt order is assigned away from his 
neighborhood school and is required  to be transported to 
another school (w hether by his parents’ car o r by induced 
busing) some distance away from his home.

Brown I  speaks of the feeling-of-inferiority effect on chil­
dren as the result of discrim inatory state action where the 
children are not perm itted  to attend  certain public schools 
because of the color of the ir skin. T h is condition would 
seem to persist still if children of both  races are prohibited  
from attending schools nearest to their residences, merely 
because of the color of their skin, and are required  to be 
taken eleswhere to school.



39

V

P R A C T IC A L IT IE S

In considering desegregation plans the D istrict C ourt 
must take into account the practicalities of the proposals. 
These include the cost thereof, how such proposals may 
affect the rights of the children involved in the assign­
ments, induced busing, and the educational achievement of 
such proposals.

Boards of Education do not have unlim ited  funds to 
adopt any program  which they please. Funds can be raised 
by taxation and appropriation. In  the present case the 
Board of Education does not have the power to levy taxes 
or to appropriate funds to carry out its programs. Only 
the Board of Commissioners of the city has such power and 
authority. T h a t Board was not made a party to the case 
in the D istrict C ourt un til after the desegregation orders 
had been entered by the Court. W e would assume that 
the Board of Commissioners has already appropriated the 
funds for the 1972-73 school year. If so, we do not know 
how an expenditure of $500,000 for buses would affect 
operation of the schools. T he  District C ourt has not ordered 
the Board of Commissioners to appropriate funds to provide 
for the transportation of pupils, and we do not consider in 
this appeal the question w hether it has the power to enter 
any such order.

In  our judgm ent the mere fact that the D istrict Court 
at one time considered the Board of Education in com pli­
ance, did not preclude the C ourt from holding otherwise 
when considering the case in the light of more recent 
decisions.

U pon rem and, the C ourt no doubt will want to consider 
the recent article by David J. A rm or on “T h e  Evidence On 
Busing,” in The Public Interest, No. 28, Summer 1972,



40

page 90, which article contains some evaluations of the 
effects of busing on black pupils, In  Brown I  the Supreme 
C ourt considered articles by sociologists, and we would see 
no objection to the D istrict C ourt doing likewise.

In  our judgm ent a quota system can invidiously discrim­
inate in favor of one race against other races. Such a system 
can lower the quality of education and educational achieve­
m ent and polarize the races.

VI

T H E  D ISSEN T

W e do not understand the purpose of attaching as Ap- 
dendix “A ” Tennessee Statutes which are no longer in 
force because the Supreme C ourt of Tennessee held the 
same unconstitutional in 1956. Roy v. Brittain, 201 T enn . 
140, 257 S.W.2d 72. N or do we understand the purpose 
of the attachm ent of “A Brief C ritique of Dr. A rm or’s ‘T he  
Evidence on Busing.’ ”

T h e  complete history of the de ju re  system in the T e n ­
nessee public schools is well known and has been portrayed 
fully in previous decisions of this Court, which decisions are 
cited in the dissent.

Dr. A rm or’s article, as well as the critique, had best be 
considered in the first instance upon the rem and which we 
ordered.

T h e  decisions of individual Justices of the Supreme Court 
on applications for a stay under the provisions of § 803 of 
the Education A m endm ents of 1972, Pub.L . 92-318, ■§ 803 
(June 23, 1972) are not relevant here in view of our rem and 

of these appeals to the D istrict C ourt for fu rther considera­
tion.

T h e  Education Amendm ents are relevant, however, for 
consideration by the D istrict C ourt on the issue of practi­



41

cality because of provisions therein which operate to deprive 
the Board of Education of federal funds to carry out the 
busing order of the D istrict Court.

W hile wide and almost unprecedented authority  and dis­
cretion have been conferred on D istrict Courts in their 
consideration of school desegregation cases, by the very 
nature of things such authority  is no t unlim ited.

T here  seems to have grown up across the land an idea 
by most U nited States D istrict Judges that extensive busing 
m ust be ordered to obey the commands of Brown I  and II. 
T hey  tu rn  to Swann for their authority. Swann d id  not de­
cide anything of the kind. In  the case before us, as was true 
in other decisions, this C ourt had approved the conduct of 
various Boards of Education who made an honest effort to 
establish a unitary system. If now every order involving 
schools requires busing, the question may well be asked, 
“W hat next?’’

As we pointed out, the D istrict C ourt previously found 
compliance by the Board of Education w ith its desegregation 
order. I t was only upon the rendition  of new decisions by 
either the Supreme C ourt or this Court, that the District 
C ourt determ ined that such compliance had not achieved a 
unitary system. Such system cannot be achieved, according 
to the plaintiffs, un til there is a fixed racial quota in each 
and every school in the system, irrespective of where the 
children live. T h e ir  program  seems to be based on a head 
count, and requires busing, w ith little  or no regard for the 
wishes of the children or their parents, the cost and feasi­
bility of such programs, the effect on existing educational 
programs, educational achievement of the children, or their 
safety, or their constitutional rights.

Rem anded for fu rther consideration.



42

E dw ards, C ircuit Judge, dissenting. M uch as I  respect my 
two brothers who constitute the m ajority of this panel, I 
would be less than candid if I did not say that I believe their 
opinion in this case represents a repudia tion  of settled con­
stitu tional law in Swann v. Charlotte M ecklenburg Board 
of Education , 402 U.S. 1 (1971) ; Davis v. Board of Com­
missioners, 402 U.S. 33 (1971) and Brown v. Board of Edu­
cation I, 347 U.S. 483 (1954) ; Brown v. Board of Education 
II, 349 U.S. 294 (1955), to name only four of the most im ­
portan t and controlling Supreme C ourt precedents.

I t is in my view also completely inconsistent w ith opinions 
of this court in which the great m ajority of the members 
of this court have joined: Monroe v. Board of Commis­
sioners of City of Jackson, 427 F.2d 1005 (6th Cir. 1970) : 
Robinson v. Shelby County Board of Education, 442 F.2d 
255 (6th Cir. 1971) ; Davis v. School District of the City of 
Pontiac, 443 F.2d 573 (6th Cir. 1971) ; Oliver v. School 
District of the City of Kalamazoo, 448 F.2d 635 (6th Cir. 
(1971) ; Kelley v. Metropolitan County Board of Education,
-— - F .2 d ---- (6th Cir. 1972) (Decided May 30, 1972) ;
Northcross v. Board of Education of M emphis City Schools,
— - F .2 d ---- (6th Cir. 1972) (Decided A u g u s t------ , 1972) .
U nder all of these cases the facts in this case call for our 
affirmance of the District Ju d g e’s opinion and judgm ents. 
As I see it he has done nothing more than follow the clear 
m andate of the Supreme C ourt and this court in the cases 
cited above.

If there could be any doubt about the continued validity 
of the cases cited above, it would have to be due to quite 
recent changes in composition of the Supreme C ourt or to 
the adoption of <§ 803 of the Education A m endm ents of 
1972, Pub. L. 92-318, § 803 (June 23, 1972), by the U nited  
States Congress. I fell any such doubt has been completely 
dispelled by the actions of the Supreme C ourt this summer.



43

O n the § 803 issue an opinion of Mr. Justice Powell deny­
ing application for a stay in the Augusta, Georgia, desegre­
gation case is directly in point:

T h is reapplication is premised solely on the conten­
tion that a stay is required  under § 803 of the Education 
Am endm ents of 1972. T h a t section reads in pertinent 
part as follows:

“ in the case of any order on the part of any U nited 
States D istrict C ourt which requires the transfer or 
transportation of any student . . . for the purpose 
of achieving a balance among students with respect 
to race . . ., the effectiveness of such order shall 
be postponed un til all appeals . . . have been ex­
hausted . . . Education Am endm ents of 1972, 
Pub. L. 92-318, § 803 (June 23, 1972) (emphasis 
added.)

By its terms, the statute requires tha t the effectiveness 
of a district court order be postponed pending appeal 
only if the order requires the “transfer or transporta­
tion” of students “for the purpose of achieving a bal­
ance among students w ith respect to race.” I t does not 
pu rport to block all desegregation orders which require 
the transportation of students. If Congress had desired 
to stay all such orders it could have used clear and 
explicit language appropriate to that result.

In  '§ 802 (a ) , which precedes § 803, Congress pro­
hib ited  the use of federal funds to aid in any program  
for the transportation of students if the design of the 
program  is to “overcome racial im balance” or to “carry 
out a plan of desegregation.” Education Amendm ents 
of 1972, Pub. L .L92-318, ■§ 802 (a) (June 23, 1972) 
(emphasis added) . I t is clear from the juxtaposition 

and the language of these two sections that Congress 
intended to proscribe the use of federal funds for the 
transportation of students under any desegregation 
plan bu t lim ited the stay provisions of § 803 to desegre­
gation plans that seek to achieve racial balance.



;:44

In  light of this C ourt’s holding in Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), it could hardly be contended that Congress 

was unaware of the legal significance of its “racial bal­
ance” language. In  that case the school authorities 
argued tha t § 407 (a) of the Civil Rights Act of 1964, 
42 U. S. C. § 2000c-6, restricted the power of federal 
courts in prescribing a m ethod for correcting state- 
imposed segregation. T h e  C h ie f  J u st ic e ’s in terpreta­
tion of § 407 (a) , which applies only to orders “seeking 
to achieve a racial balance,” is controlling here:

“T h e  proviso in [§ 407 (a) ] is in terms designed to 
foreclose any in terpretation of the Act as expand­
ing the existing powers of federal courts to enforce 
the Equal Protection Clause. T here  is no sugges­
tion of an in tention to restrict those power or w ith­
draw from the courts the ir historic equitable 
rem edial powers. T he  legislative history of T itle  
IV indicates that Congress was concerned that the 
Act m ight be read as creating a righ t of action 
under the Fourteenth  A m endm ent in the situation 
of so-called ‘de facto segregation,’ where racial im ­
balance exists in the schools b u t w ith no showing 
that this was b rought about by discrim inatory 
action of state authorities.” 402 U. S., at 17-18 
(emphasis in original) .

*  *  *

For the purpose of acting on this application, I accept 
the holdings of the courts below that the order was en­
tered to accomplish desegregation of a school system 
in accordance with the m andate of Swann and not for 
the purpose of achieving a racial balance. T h e  stay 
application must, therefore, be denied.

Drummond  v. A c ree ,---- U.S. —— (1972) (Decided
Septem ber 1, 1972) .

Subsequent to Justice Powell’s denial of a stay, the same 
m otion was presented to Chief Justice Burger and on Sep­



45

tem ber 8, 1972, was denied by him . T here  is no legal or 
constitutional difference between the A ugusta case (Acree 
v. County Board of Education of Richmond County, 
Georgia, 458 F.2d 486 (1972)) and the one we deal with 
from Chattanooga.

Similar denials of stays have been entered in relation to 
similar § 803 applications by Mr. Justice R ehnquist on 
A ugust 22, 1972, in the case of O klahom a City, (See Board, 
of Education of Oklahoma City v. Dowell, 338 F. Supp., 
1256 (W.D. Okla. 1972)) and on A ugust 25, 1972, in the 
case of Nashville, Tennessee (See Kelley v. Metropolitan 
County Board of Education of Nashville, Tenn., 436 F.2d
856 (1970) , on rem a n d ,---- F. S u p p .------ (M.D. Tenn.
1 9 7 1 ) ,---- F .2 d ------ (6th Cir. 1972)).

A nother such denial of a § 803 stay was entered Sep­
tem ber 5, 1972, by Mr. Justice Douglas in Guinn  v. Kelly, 
Supt. of Schools of Clark County School District, Nevada, 
—  U .S .—  (1972).

See also Keyes v. Denver School District, 396 U.S. 1215 
(1969); Winston-Salem/Forsyth County Board of Educa­
tion v. Scott, et ah, 404 U.S. 1221 (1971); Guey H eung Lee 
v. Johnson, 404 U.S. 1215 (1972); Jefferson Parish School 
Board v. Dandridge, 404 U.S. 1219 (1971).

All of these denials of stay are fundam entally based upon 
the continued vitality of the four unanim ous Supreme C ourt 
opinions cited in the first paragraph of this dissenting 
opinion.

In  the last opinion in chambers cited above, Mr. Justice 
M arshall said:

T h e  devastating often irreparable, injury to those chil­
dren who experience segregation and isolation was 
noted 17 years ago in Brown v. Board of Education, 
347 U. S. 483 (1954) . T his C ourt has repeatedly 
made it clear beyond any possible doubt that, absent



46

some extraordinary circumstances, delay in achieving 
desegregation will not be tolerated. See, e. g., A lex­
ander v. Holmes County Board of Education, 396 U. S. 
19 (1969) ; Carter v. West Feliciana Parish School 
Board, 396 U. S. 226 (1969) ; Keyes v. School District 
No. 1, 396 U. S. 1215 (1969) (Br e n n a n , J., vacating 
stay) .

Jefferson Parish School Board v. Dandridge, supra at 
1220.

T here  are no “extraordinary circumstances” in the in ­
stant appeal.

T his is a classical school desegregation case concerning a 
city, Chattanooga, which historically has m aintained a dual 
school system segregated by race, and a state, Tennessee, 
which historically by law has sought to require its school 
boards to m aintain segregated school systems. (See A p­
pendix A.) T h e  D istrict C ourt order appealed from re ­
quires the appellant Board of Education of the City of 
Chattanooga to proceed w ith desegregation of its elem en­
tary and jun io r high school systems by the fall term  of 1972 
and to propose a plan for doing the same in relation to its 
high school system by June  15, 1972.

T hree  separate appeals have been perfected from the Dis­
trict Judge’s order. In  the m ain cases, 71-2006 and 71-2007, 
the Board of Education appeals and the plaintiffs appeal 
from the District Judge’s desegregation order addressed to 
the Chattanooga Board of Education. In  No. 72-1443, the 
Board of Commissioners of Chattanooga (the city council) 
appeals from the same order referred to above, bu t on the 
additional ground that it, by im plication, would require an 
expenditure of city funds on the part of the Board of Com­
missioners of Chattanooga, which has only recently been 
made an intervening defendant.



47

T h e  appeals in these cases are here on the merits, along 
w ith a m otion for stay of the D istrict Judge’s order pending 
appeal. T h e  positions of the principal appellants are as 
follows:

Plaintiffs’ appeal asserts that the delays in integrating the 
Chattanooga school system have been endless; that the order 
of the D istrict Judge now entered will not accomplish the 
desegregation contem plated by applicable Supreme C ourt 
cases; that there is no final order as yet for desegregation of 
the four high schools which are, according to plaintiffs, still 
clearly segregated, and that the order entered by the District 
Judge, by d in t of closing several black schools and requ iring  
the black children in the youngest grades to be bused to 
white schools, invidiously discriminates against them  in the 
rem edial measure chosen.

A ppellant School Board contends that the D istrict Judge’s 
order m isinterprets Chief Justice B urger’s opinion for the 
Supreme C ourt in Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1 (1971), by proposing a plan 
directed to achieve “a racial balance,” and further, im ­
properly requires transportation of school children.

T he  Board of Commissioners argues that the effect of its 
being made a party defendant is to make it vulnerable to 
contem pt proceedings if it fails to appropriate the necessary 
funds to finance the plan contem plated by the District 
Judge’s order. T he  Board of Commissioners points out that 
it had not been a party to the principal litigation un til very 
late in  the proceedings and had not had (although it re­
quested it) an opportunity  to litigate the issues. T h e  Board 
of Commissioners also puts forward the identical arguments 
as to the m erits of the case advanced by the Board of E du­
cation of the City of Chattanooga.

T h e  lengthy history of this litigation is a necessary 
predicate to discussion and decision of the stated issues.



48

Procedural H istory

Apr. 6, 1960 —T his com plaint was filed.

Nov. 13, 1961 — Mapp v. Board of Education of City of 
Chattanooga, 295 F.2d 617 (6th Cir. 
1961), affirmed a District C ourt order d i­
recting the Board to file a desegregation 
plan.

Apr. 20, 1962 — Mapp v. Board of Education of City of 
Chattanooga, 203 F. Supp. 943 (E.D. 
T enn . 1962) . D istrict C ourt orders 
Board to desegregate its schools w ithin a 
period of not more than eight years. 
C ourt retained jurisdiction. A ff’d, 319 F. 
2d 571 (6th Cir. 1962), except for provi­
sions relating to technical and vocational 
courses.

Nov. 26, 1963 — O rder entered desegregating Chattanooga 
Technical Institute.

Dec. 31, 1963 — F urther order desegregating all vocational 
and technical courses.

Mar. 29, 1965 -  Plaintiff moves for fu rther relief, seek­
ing acceleration of the plan for desegre­
gation, including desegregation of faculty 
and supervisory personnel.

Feb. 27, 1967 — Mapp v. Board of Education of City of 
Chattanooga, 373 F.2d 75 (6th Cir. 
1967). D istrict C ourt order accelerating 
desegregation affirmed, except w ith regard 
to faculty assignments for which fu rther 
proceedings were ordered.



49

Mar. 29, 1967 — Case restored to the docket for fu rther 
consideration of the issue of faculty assign­
ments.

Dec. 31, 1968 — Plaintiffs file m otion for fu rther relief, 
seeking tem porary injunctive relief, to be 
followed by perm anent injunction.

Nov. 14, 1969 — Plaintiffs file m otion for im m ediate relief.

Feb. 19, 1971 — Evidentiary hearing set for A pril 1, 1971, 
on foregoing plaintiffs’ motions filed.

Apr.-May 1971— H earings held on plaintiffs’ motions.

May 19, 1971 — O pinion issued from the bench. (1) 
School system was found to be unconstitu­
tional; (2) Desegregation plans ordered.

July  26, 1971 — M em orandum  and findings entered by 
D istrict Court. (Plan subm itted by Board 
approved concerning provisions for ele­
m entary and jun io r high schools. T en ta ­
tive approval for portion of Board plan 
respecting high schools.)

Aug. 5, 1971 — District C ourt files order directing im ple­
m entation of Board plan approved July  
26, 1971, where reasonably feasible by 
1971-72 school year. T im e was allowed 
for delayed im plem entation where staffing 
and transportation equipm ent had to be 
acquired.

In  the very first consideration of this case by this court,
Judges M iller, W eick and O ’Sullivan noted:



50

It was not controverted that the Board has pursued 
a policy of operating a biracial school system; that the 
system was established almost a century ago and has 
been continued by the members of the present Board. 
A lthough more than five years have elapsed since the 
Supreme C ourt held racial segregation in the public 
schools to be a violation of constitutional rights no 
plan for desegregation had been adopted by the Board 
u n til ordered by the Court.

T h e  Board contends tha t after the second Brown de­
cision it publicly announced its policy of compliance 
with the decision and engaged in extensive educational 
activities to elucidate said policy to the people of the 
com m unity in order to bring  about public acceptance 
of desegregation. I t claims that these activities con­
stituted the first step in its plan of im plem entation of 
said policy. I t asserts that it had not adopted any plan 
for desegregation because the people in the com m unity 
were not realy for it and would not accept it. Mapjj v. 
Board of Education of City of Chattanooga, 295 F.2d 
617,618 (6th Cir. 1961) . (Footnotes omitted.)

T his court upheld the D istrict Judge in rejecting a Board 
desegregation plan which was held to be “indefinite as to 
when desegregation would take place in all of the schools” 
and in requ iring  the Board to file an alternative plan to ac­
complish same.

This record clearly shows that the Board of Education’s 
progress in dism antling its dual school system has been 
m inim al from 1962 down to date. It also shows that if the 
Board of Education’s 1971 plan as far as elem entary schools 
and jun io r high schools is prom ptly and effectively carried 
out, a unitary school system as to these units will result.

Judge W ilson’s opinion accurately describes what this 
record contains concerning these comparisons as far as the 
elem entary schools and the ju n io r high schools are con­
cerned:



51

Elementary Schools
D uring  the school year 1970-71, the Chattanooga 

School System operated 33 elem entary schools. Of the 
ten form er black elem entary schools w ithin the system, 
four rem ained all black and a total of only 30 white 
students attended the other six. in  the 23 form er white 
elem entary schools there were 13.250 w hite children 
and 3,446 black children. Four form er w hite elem en­
tary schools (Cedar H ill, N orm al Park, Pineville, and 
R iverm ont) rem ained all white. Barger had only two 
black students and East Lake had only three black 
students. T w o form er w hite elem entary schools 
(Avondale and Glenwood) had changed to all black 

schools, having only three white students between 
them. T h e  rem ainder of the form er white elem entary 
schools had ratios of black students varying from a low 
of 4%  to a high of 64%.

T h e  School Board proposes the accomplishm ent of 
a unitary  system w ithin the elem entary schools by the 
closing of five elementary schools, by the pairing of 16 
elem entary schools, by the clustering of six elem entary 
schools, by the rezoning of three elem entary schools, 
leaving the attendance zones of only three elementary 
schools unchanged. T h e  overall result of the defen­
dants’ plan is to achieve a racial ratio of not less than 
30% nor more than 70% of any race in each elem en­
tary school w ith in  the system w ith bu t five exceptions 
(Barger—20% black and 80% white; C arpenter— 
86% black and 14% white; Long—16% black and 
84% white; R iverm ont—12% black and 88% white; 
and Sunnyside—15% black and 85% white) . Mapp  v. 
Board of Education of City of Chattanooga, Tenn., 
329 F. Supp. 1374, 1381-82 (E.D. T enn. 1971) .

Junior High Schools

D uring the school year 1970-71, the Chattanooga 
School System operated 12 jun io r high schools. Of the



52

four formerly black jun io r high schools w ithin the 
system, two rem ained all black and a total of only 
9 w hite students attended the other two. In  the eight 
formerly white jun io r high schools, there were 3,341 
wrhite students and 908 black students. O ne formerly 
w hite ju n io r high school (East Lake) had only one 
black student. T h e  rem ainder of the formerly w hite 
ju n io r high schools had ratios of black students varying 
from a low of 8% to a high of 70%.

T h e  School Board proposes the accomplishm ent of a 
untiary system w ithin the jun io r high schools by clos­
ing two ju n io r high schools and by rezoning the re­
m aining ten jun io r high schools, tying them into the 
restructed elem entary school system. T h e  overall re­
sult of the defendants’ plan is to achieve a racial ratio 
of not less than 30% nor more than 70% of any race 
in all b u t three jun io r high schools. Those three 
schools are Hardy, w ith 73% black and 27% white, 
Dalewood, w ith 29% black and 71% white, and Long, 
w ith 15% black and 85% white. Id, at 1383.

A fter noting a satisfactory Board of Education plan 
which desegregated the Technical H igh School, the District 
Judge described the continuing problem  of the other four 
racially segregated high schools:

W hile some variation in the curricula exists, the re­
m aining four high schools, City H igh School, B rainerd 
H igh School, H ow ard H igh School, and Riverside 
H igh School, each offer a similar general high school 
curriculum . A t the time when a dual school system 
was operated by the School Board, City H igh School 
and B rainerd H igh School were operated as white 
schools and H ow ard H igh School and Riverside H igh 
School were operated as black schools. A t that time 
the black high schools were zoned, b u t the w hite high 
schools were not. W hen the dual school system was 
abolished by order of the C ourt in 1962, the defen­
dants proposed and the C ourt approved a freedom of



53

choice plan with regard to the high schools. T he  
plan accomplished some desegregation of the former 
w hite high schools, w ith City having 141 black stu­
dents ou t of an enrollm ent of 1435 and B rainerd hav­
ing 184 black students ou t of an enrollm ent of 1344 
during  the 1970-71 school year. Horvever, both How­
ard, w ith an enrollm ent of 1313, and Riverside, with 
an enrollm ent of 1057, rem ained all black. Id. at 
1385.

N one of the facts which we have quoted from the Dis­
trict Judge’s opinion are disputed by the parties and the 
record amply supports them.

Plaintiffs’ Exhibit 3, the accuracy of which is undisputed, 
shows that as of the close of this record, 9,223 black students 
were attending previously all black schools, along w ith 48 
w hite students. Using 90% to indicate a predom inantly 
one-race school, we find the following situation confronting 
the D istrict Judge and this court:

Previously all black schools 
race (90% or more black) : 

Elem entary schools 
Ju n io r high schools 
Senior high schools

still predom inately one

10 out of 10 
4 out of 4 
2 out of 2

Previously all white schools still predom inantly one 
race (90% or more white) :

Elementary schools 12 out of 23
Jun io r high schools 2 out of 8
Senior high schools 1 out of 2

(These com putations exclude the Technical 
H igh School.)

From E xhibit 3 we also compute the following com­
parisons concerning the total school population of C hatta­
nooga’s schools:



54

1962-63
99.6% of black children attended schools in which 
100% of the students were black.

100% of white children attended schools in which 
99.7% of the students were white.

1970-71
72.8% of black children attended schools in which 
99.5%, of the students were black.

99.6%, of w hite children attended schools in which 
79.5% of the students were white.

T his record makes clear that in the sixteen years since 
Brown v. Board of Education, 349 U.S. 294 (1954) , and 
in the eleven years of litigation between 1960 and 1971, 
the results may be summarized as follows:

1) M inim al integration of some previously all white 
elem entary and jun io r high schools.

2) Complete failure to desegregate the previously all 
black elem entary and jun io r high schools.

3) Complete failure to desegregate the high schools.

I would test the District Judge’s order on this appeal 
against the C onstitutional m andate of “equal protection of 
the law.” T he  objective sought has been recently thus 
described by Chief Justice W arren Burger, w riting for a 
unanim ous U nited States Supreme Court:

T h e  objective today remains to elim inate from the 
public schools all vestiges of state-imposed segrega­
tion. Segregation was the evil struck down by Brown 
I  as contrary to the equal protection guarantees of the 
Constitution. T h a t was the violation sought to be cor­
rected by the rem edial measures of Brown II. T h a t 
was the basis for the holding in  Green tha t school



55

authorities are “clearly charged w ith the affirmative 
duty to take w hatever steps m ight be necessary to con­
vert to a unitary system in which racial discrim ination 
w ould be elim inated root and branch .” 391 U.S., at 
437-438.

If school authorities fail in  their affirmative obliga­
tions under these holdings, judicial authority  may be 
invoked. Once a right and a violation have been 
shown, the scope of a district court’s equitable powers 
to remedy past wrongs is broad, for breadth  and flex­
ibility are inherent in equitable remedies. Swann v. 
Board of Education, 402 U.S. 1, 15 (1971) .

T h is record dem onstrates beyond doubt that the C hatta­
nooga “school authorities [have] fail[ed] in their affirmative 
obligations” to elim inate racial discrim ination “root and 
branch.” I t mandates our prom pt affirmance of the order 
of the District Judge adopting the desegregation plan finally 
proposed by appellant Board of Education of Chattanooga 
as far as the elem entary and jun io r high schools are con­
cerned.

T h e  appellate issues stated in the principal cases (Nos. 
71-2006 and 71-2007) by defendant-appellant Board of 
Education of City of Chattanooga, although phrased as ten 
separate issues seems to me to be rephrasing of the issues 
this court dealt w ith recently in Kelley v. Metropolitan
Board of Education,-----F.2d - — (6th Cir. 1972) (Decided
May 30, 1972, Nos. 71-1778-79). In  Kelley this court said:

I I  T h e  R atio  and Residual Effect Issues

W here a school system has been deliberately con­
structed on a segregated basis by state action, a duty 
inheres in the School Board to do more than to estab­
lish rules fair on their face which simply serve to 
perpetuate the effects of such segregation. Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 
1, 26, 28 (1971).



56

T he record in this case supports the D istrict Judge’s 
findings that racial discrim ination in school construc­
tion, assignment of tem porary buildings, assignment of 
teachers, and assignment of students continued until 
the close of the record — if not beyond. T h e  record 
also discloses a background of racial discrim ination by 
means of state law which motivated much of the school 
segregation. (See A ppendix A)

T h e  fact that population shifts in the m etropolitan 
school district have helped to some degree to change 
the racial composition of some schools during  the 
course of litigation does not elim inate the duty of the 
school board to present a plan for a unitary school 
system.

Nor, of course, does it alter the duty of the District 
C ourt on default of the school board to require  pro­
duction of such a plan and order it into effect. Chief 
Justice B urger pu t the m atter thus in the Davis case:

“H aving once found a violation, the district 
judge or school authorities should make every 
effort to achieve the greatest possible degree of 
actual desegregation, taking into account the prac­
ticalities of the situation.” Davis v. School Com­
missioners of Mobile County, supra at 37.

Perhaps the prim ary thing that the Swann case de­
cided was tha t in  devising plans to term inate such resi­
dual effects, it is appropriate for the school system and 
the D istrict Judge to take note of the proportion of 
w hite and black students w ithin the area and to seek 
as practical a plan as may be for ending white schools 
and black schools and substituting therefor schools 
which are representative of the area in which the 
students live.

W e have noted that the D istrict Judge in Swann 
employed a flexible 71% white to 29% black popula­
tion ratio  as a guide in seeking a practical plan. T he  
Suprem e C ourt specifically approved his doing so. See



57

Swann v. Charlotte-Mecklenburg Board of Education, 
supra at 16, 23-24. T h e  D istrict Judge in this case 
clearly read and followed the Swann guideline. As to 
this issue, we find no error.

An earlier finding of “good faith” does nothing to 
excuse the defaults and failures shown by this record. 
“T h e  measure of any desegregation plan is its effec­
tiveness.” Davis v. School Commissioners of Mobile 
County, 402 U.S. 33, 37 (1971). See also Green v. 
County School Board, 391 U.S. 430, 439 (1968). Kel­
ley v. Metropolitan Board of Education, supra at 21-22 
(Slip opinion) . (Footnote omitted.)

In  the instant case, of course, as distinguished from the 
Kelley case, the flexible ratio  chosen as a guide to its plan 
(no race to be represented by less than 30% or more than 

70% of the student body) was one chosen by appellant 
Board of Education of Chattanooga, and the plan actually 
adopted by the District C ourt was one pu t forward by the 
appellant also. Since appellant, in  spite of proposing the 
plan, has never pu t it into effect and is now by this appeal 
continuing to resist ever having to do so, it can hardly rely 
upon the plan as curing its default.

As to this aspect of the case, the Board of Education’s 
failure to im plem ent its own plan simply makes more 
obvious its “default” in  the sense that term  is used in 
Swann v. Board of Education, 402 U.S. 1, 15-16 (1971). 
Finally, it is w orth noting that of the 49 schools operated 
during  the 1970-71 school year, 42 had a racial composition 
outside the flexible ratio suggested by the Board itself in 
its proposed desegregation plan.

W hat was said concerning the plaintiffs’ appeal in Kelley 
is likewise applicable to the appellate issues stated by plain­
tiff-appellants in this case:



58

IV Plaintiffs-Appellants’ Plan

O ur review of this record convinces us that the Dis­
trict Ju d g e’s choice of the H EW  plan as opposed to 
plaintiffs’ plan was well w ithin his judicial discretion. 
I t may not be ideal, bu t to us it seems clearly to be 
a plan for ending a dual school system based on race 
and substitu ting therefor a un itary  one. I t  promises 
to work and to work now. Green v. County School 
Board of Kent County, 391 U.S. 430 (1968) .

V Piaintiffs-Cross-Appellants’ D iscrim ination Claim

Plaintiffs-Cross-appellants claim that the grade 
school plan discriminates against Negro students in the 
lowest elem entary grades.

T h e  feature com plained of in this issue is the trans­
portation of black students in  grades 1-4 to outlying 
schools, paralleled by the cross-transportation of white 
students in grades 5-6.c,] In  this regard the H EW  
plan appears to follow the pattern  of the school plan 
approved in Swann. Swann v. Board of Education, 
supra at 10. T h e  Supreme C ourt made no reference 
to this feature, and neither in Swann nor in this case 
does the record seem to provide adequate rationale 
for it. W e do not believe, however, that we can ap­
propriately hold that the D istrict Judge abused his 
discretion in approving the H E W  plan which (like 
the plan in Sivann) incorporated this feature.

I t  may be tha t this is a tem porary expedient or it 
may be tha t there are practical reasons to justify it 
for longer duration. In  any event, any adverse effects 
of this aspect of the plan can, of course, likewise be 
brought to the D istrict Judge’s atten tion  when the case 
is back before him . Kelley v. Metropolitan Board of 
Education, supra at 25-26 (Slip opinion)

1 Plaintiffs-appellants’ invidious discrimination claim is far less specific 
in this case than in Kelley.



59

W hile the Kelley language quoted above disposes of the 
basic appellate issues brought here by both defendant-ap­
pellant and plaintiffs-appellants, a special com ment must 
be made concerning the status of the plan for desegregating 
the senior high schools. As to the Board of Education’s 
plan in this regard, the D istrict Judge plainly found it 
unsatisfactory other than as a tem porary expedient and 
ordered another plan to be presented by June  15, 1972 — 
a date which followed oral argum ent of this appeal. W hile 
I would affirm his order, lim ited as it is, I would emphasize 
that no approval is thereby im plied as to the Board of 
Education’s plan for the high schools in constitutional 
terms. I do not consider that any final order concerning a 
final desegregation plan for the high schools has as yet been 
presented to us.

I now tu rn  to the appeal by the Board of Commissioners 
of the City of Chattanooga in No. 72-1443. T o  the extent 
that the brief of the Board of Commissioners seeks to argue 
basically the same issues set forth in the appeal of the Board 
of Education, said issues are disposed of above. As to the 
Board of Commissioners’ contention that it has been denied 
due process, some additional facts need to be recited. This 
record shows that over six months after the basic order 
appealed from in this case had been entered on August 5, 
1971, the following events occurred:

Jan. 14, 1972 — C ircuit C ourt of H am ilton County, T enn.
entered an order enjoining the City of 
Chattanooga from expending funds for 
purchase of transportation equipm ent to 
be used to achieve “racial balance.” T he 
state court’s ru ling  followed a com plaint 
filed by a resident of Chattanooga. T he 
state court decided that expenditure of 
funds by the City for transportation “ to



60

achieve racial balance” contravened TC A  
49-2201, which provides:

“49-2201. Power of boards to provide 
transportation.—

* * #
“Provided, however, no board of ed­

ucation shall use or authorize the use 
of any school transportation facilities 
for the purpose of achieving a racial 
balance or racial imbalance in  any 
school by requ iring  the transportation 
of any student or pup il from  one school 
to another or from one school district 
established for his neighborhood to 
another.”

Jan. 24, 1972 — T he City of Chattanooga declared that it 
would not appeal the state court in junc­
tion and would consider it binding.

ja n . 25, 1972 ~  T he  U nited States D istrict C ourt ordered 
plaintiffs to jo in  as defendants in federal 
suit all parties in state court suit. T he  
D istrict C ourt also ordered the plaintiffs 
to petition the court for an order direct­
ing the defendants to show cause why 
they should not be enjoined from com­
plying w ith the state court injunction.

Jan. 26, 1972 — T he City of Chattanooga, the Mayor, the 
City Commissioners, the City A uditor, 
the state court plaintiff, G rannan, and 
counsel in  the state court suit were or­
dered joined as defendants in the District 
C ourt proceedings.

Jan. 28, 1972 — H earing on order to show cause why de-



61

fendants should not be enjoined from 
complying w ith the state court in junc­
tion.

Feb. 4, 1972 — District C ourt entered an order enjoining 
all parties from seeking either to enforce 
or to comply w ith the state court in junc­
tion in any m anner. F urther reports 
concerning plans for desegregation of the 
high schools ordered.

Feb. 11, 1972 —T he Board of Commissioners filed a mo­
tion for new trial or rehearing relating 
to show cause order of January  28, 1972. 
City in  same m otion sought rehearing re­
lating to their responsibility for appro­
priating funds for purchase of buses.

Feb, 25, 1972 — D istrict C ourt denies motions for new 
trial or rehearing.

I do not think that these proceedings pending appeal 
served to change or alter in any way the posture of the 
Board of Commissioners in relation to the basic desegrega­
tion order of the court. T h e  District Judge’s actions were 
plainly taken to defend the jurisdiction of the court. They 
were designed only to serve the purpose of freeing the 
Board of Commissioners from any possible legal restraint 
that the obviously unconstitutional order of the C ircuit 
C ourt of H am ilton County m ight have been thought to 
have imposed.

Chief Justice B urger’s opinion for a unanim ous Supreme 
C ourt in  Board of Education v. Swann, 402 U.S. 43 (1970), 
discussed and held constitutionally invalid a N orth  Caro­
lina antibusing statute like TC A  49-2201:



62

[T]he fiat p rohib ition  against assignment of students 
for the purpose of creating a racial balance m ust in ­
evitably conflict w ith the duty of school authorities to 
disestablish dual school systems. As we have held in 
Swann, the Constitution does not compel any particu­
lar degree of racial balance or mixing, bu t when past 
and continuing constitutional violations are found, 
some ratios are likely to be useful starting points in 
shaping a remedy. An absolute prohib ition  against 
use of such a device—even as a starting point—contra­
venes the im plicit com mand of Green v. County School 
Board, 391 U. S. 430 (1968), that all reasonable m eth­
ods be available to form ulate an effective remedy.

W e likewise conclude that an absolute prohibition  
against transportation of students assigned on the basis 
of race, “or for the purpose of creating a balance or 
ratio ,” will similarly ham per the ability of local au­
thorities to effectively rem edy constitutional violations. 
As noted in Swann, supra, at 29, bu t transportation 
has long been an integral part of all public educational 
systems, and it is unlikely that a truly effective remedy 
could be devised w ithout continued reliance upon it. 
Board of Education v. Swann, supra at 46.

I perceive no due process deprivation of any kind con­
cerning the proceedings pending appeal referred to above.
(See Kelley v. Metropolitan Board of E ducation ,---- F.2d
---- (6th Cir. 1972) (Slip opinion p. 24, 3 0 )) .

T h e  Board of Education of the City of Chattanooga was 
and is clearly the proper party defendant in  this school 
desegregation case. T he  obligations of the Board of Com­
missioners of the City of Chattanooga imposed by state 
law pertain ing to financing the schools and levying taxes 
were neither increased nor dim inished by the District 
Judge’s orders of January  26, 1972 and February 4, 1972. 
T h e  Board of Commissioners was intim ately aware of this 
litigation during  all its lengthy history. Its efforts to secure



63

a retrial of the fundam ental desegregation order were com­
pletely out of time and w ithout merit,

I refrain from extended com m ent upon Section V of my 
brothers’ opinion entitled  Practicalities. T o  me this sec­
tion seems to be reargum ent of decisions made by the Su­
prem e C ourt 17 years ago in Brown v. Topeka, supra, 
which have many times been reaffirmed and which this 
court has no power to overrule. T he  adverse effects of 
racially segregated dual school systems are not likely to be 
overcome w ithout opposition or w ithout inconvenience. 
N either “practicality” has ever deterred the U nited  States 
Supreme C ourt from ordering the dism antling of such a 
system by use of a desegregation plan “which promises real­
istically to work, and promises realistically to work now.” 
Green v. County School Board, 391 U.S. 430, 438-9 (1968) ; 
Alexander v. Board of Education, 396 U.S. 19 (1969) .

T h e  result of my brothers’ opinion, unless it is reversed 
en banc, will be to delay desegregation of the Chattanooga 
schools by at least another year. B ut m eantim e it will 
mislead many people to expect a change in constitutional 
law which this court has no power to accomplish.

Typical of the argum ents which seem to me to be ad­
dressed to overruling Brown v. Topeka, supra, is reference 
to the A rm or article “T he Evidence On Busing.” Because 
I consider it completely irrelevant to our curren t legal 
problems, I refrain from com ment beyond prin ting  Pro­
fessor Thom as F. Pettigrew and his co-authors’ answer to 
the A rm or article as A ppendix B to this opinion.

I would affirm the judgm ents of the District C ourt in 
these appeals.



64

APPENDIX A

C H A P T E R  37

SE G R E G A T IO N  OF RACES

SE C T IO N .

49-3701—49-3703. [U nconstitutional.]
49-3701—49-3703. [Unconstitutional.]

Compiler’s Note. U nder the decision of Roy v. B rittain  
(1956), 201 T enn . 140, 297 S. W. (2d) 72, the statutes 

providing for the compulsory separation of races in the 
field of public education are no longer in effect, and there­
fore these sections have been omitted. They read:

49-3701. Interracial schools prohibited.—It shall be u n ­
lawful for any school, academy, college, or other place of 
learning to allow white and colored persons to attend the 
same school, academy, college, or other place of learning. 
[Acts 1901, ch. 7, §1 ; Shan., § 6888a37; Code 1932, 
§ 11395.]

49-3702. Teaching of mixed classes prohibited.—It shall 
be unlaw ful for any teacher, professor, or educator in any 
college, academy, or school of learning to allow the white 
and colored races to attend the same school, or for any 
teacher or educator, or other person to instruct or teach 
both the white and colored races in the same class, school, 
or college building, or in any other place or places of 
learning, or allow or perm it the same to be done with their 
knowledge, consent, or procurem ent. [Acts 1901, ch. 7, 
§ 2; Shan., § 6888a38; Code, § 11396.]

49-3703. Penalty for violations.—Any persons violating 
any of the provisions of this chapter, shall be guilty of a



65

misdemeanor, and, upon conviction, shall be fined for each 
offense fifty dollars ($50.00) ; and im prisonm ent not less 
than thirty  (30) days nor more than six (6) months. [Acts 
1901, ch. 7, § 3; Shan., § 6888a39; mod. Code 1932, 
§ 11397.]

49-3704. [Unconstitutional.]

Com piler’s Note. T his section was held unconstitutional 
in Kelly v. Board of Education (1959) , 270 Fed. (2d) 209 
and is, therefore, omitted. It read:

49-3704. Separate schools authorized.—Boards of educa­
tion of counties, cities and special school districts in this 
state are authorized to provide separate schools for white 
and negro children whose parents, legal custodians or 
guardians voluntarily elect that such children attend school 
w ith members of their own race. [Acts 1957, ch. 11, § 1.]

CHAPTER 22-T R A N SP O R T A T IO N  OF 
SCHOOL CHILDREN

SEC T IO N .

49-2201. Power of boards to provide transportation — Use 
to achieve racial balance prohibited.

49-2210. Color and markings of buses.
49-2213. Speed limit.

49-2201. Power of boards to provide transportation—Use 
to achieve racial balance prohibited.—Boards of education 
may provide school transportation facilities for children 
who live over one and one-half (1 ]/>) miles by the nearest 
accessible route from the school to which they are as­
signed by the board of education and in which they are 
enrolled; provided, however, that the boards of education 
may, in their discretion, provide school transportation



66

facilities for children who live less than one and one-half 
(1 i/g) miles by the nearest accessible route from the school 
in which they are enrolled, bu t the county shall not be 
entitled  to receive state transportation funds for any stu­
dent, o ther than physically handicapped children, who 
live less than one and one-half (lyk) miles by the nearest 
accessible route from the school in which they are enrolled; 
provided, that nothing in this chapter shall be construed 
to prevent a board of education from transporting physi­
cally handicapped children, regardless of the distance they 
live from school, under rules and regulations adopted by 
the state board of education w ith the approval of the state 
commissioner of education; and provided further, that 
said boards shall have power to purchase school transpor­
tation equipm ent, employ school transportation personnel, 
and contract for transportation services w ith persons own­
ing equipm ent, and pay for same out of funds duly au thor­
ized in the budget approved by the quarterly  county court; 
provided further, that said boards in em ploying school 
transportation personnel and in contracting for transpor­
tation services w ith persons owning, equipm ent are hereby 
authorized to enter into contracts for such services for 
periods of time as long as, bu t not exceeding, four (4) 
years from the date of m aking such contracts, it being 
the purpose of this section to perm it a reasonable degree 
of em ploym ent security for such school transportation 
personnel.

Provided, however, no board of education shall use or 
authorize the use of any school transportation facilities for 
the purpose of achieving a racial balance or racial im ­
balance in  any school by requ iring  the transportation of 
any student or pupil from one school to another or from 
one school district established for his neighborhood to 
another. [Acts 1947, ch. 92, § 1; 1949, ch. 233, § 1; C. Supp.



67

1950, § 2495.1 (W illiams § 2495.2); Acts 1957, ch. 10, 
§ 1; 1957, ch. 400, § 1; 1970 (Adj. S .) , ch. 491, § 1.]

A m endm ent. T h e  1970 am endm ent added the last para­
graph to this section.

Effective Date. Acts 1970 (Adi. S.), ch. 491, ’§ 2. February 
27, 1970.

[Note that a statute similar to the proviso in the last 
paragraph of the statute above was held unconstitutional 
by the U nited States Supreme Court. North Carolina State 
Board of Education v. Swann, 402 U.S. 43 (1971) .]

A PPE N D IX  B

A BRIEF C R IT IQ U E  OF 
DR. A R M O R ’S “T H E  EV ID ENCE ON B U SIN G ”

M arshall Smith 
H arvard University

Clarence N orm and 
H arvard University

Elizabeth L. Useem 
Boston State College

Thom as F. Pettigrew 
H arvard University

Release Date to Mass Media: Monday, September 11,
1972.

Publication: T o  appear as part of rebuttal article in The
Public Interest, W in ter Issue, 1972-1973.

An Overview

T h e  article begins by establishing unrealistically high 
standards by which to judge the success of the racial de­
segregation of public schools. “Busing” works only if it 
leads in one school year to increased achievement, aspira­
tions, self-esteem, interracial tolerance, and life oppor­



68

tunities for black children. A nd “busing” m ust m eet these 
standards in all types of interracial schools; no m ention 
or m easurem ent is made of the distinction between merely 
desegregated and genuinely integrated schools.

T his “integration policy m odel,” as it is labeled, is not 
what social scientists who specialize in race relations have 
been w riting about over the past generation. Indeed, these 
criteria m ust surely represent the most rigid ever employed 
for the evaluation of a change program  in this history of 
public education in the U nited  States.

T o  load the gun further, the anti-busing paper next 
presents selected findings from selected studies as “the evi­
dence on busing.” T h e  bias here is two-fold. First, the few 
studies m entioned constitute an incom plete list and are 
selectively negative in results. U nm entioned are at least 
seven investigations from busing programs throughout the 
nation that meet the methodological criteria for inclusion 
and report positive achievem ent results for black students. 
These seven studies are widely known, not obscure, investi­
gations.

Second, only cursory descriptions are provided of the 
few investigations that are reviewed. M itigating circum ­
stances surrounding black responses to desegregation are 
not discussed. For example, we are not told that educa­
tional services for the transported black pupils were 
actually reduced w ith the onset of desegregation in three of 
the cited cities. In  addition, negative findings consistent 
w ith the paper’s antibusing thesis are emphasized, while 
positive findings from these same cities are either obscured 
or simply ignored. Newer studies from three of the cited 
cities showing more positive results are not discussed.

Positive findings are also obscured by the utilization of 
an unduly  severe standard. Black achievem ent gains m ust 
be statistically significantly greater than w hite gains for the



69

paper to regard “busing” a success. But such a standard 
ignores the possibility that both racial groups can make 
m eaningful educational advances in interracial schools. 
Indeed, this possibility actually occurs in three of the cities 
m entioned by Dr. Armor. Yet he does not inform  us of 
this dual success of desegregation; ra th e r “busing” is 
simply rated  a failure because the black children did not 
far outgain the im proving w hite children.

T h e  paper’s anti-busing conclusions rest prim arily, how­
ever not on the incom plete review of the available evidence 
b u t on the findings from one short-term study conducted 
by Dr. A rm or himself. T his investigation focused on a 
voluntary busing program  in m etropolitan Boston called 
M ETC O . Yet this study is one of the weakest reported  in 
the paper, for our reexam ination of its data finds that it is 
rife with methodological defects.

Tw o of the m ajor problem s concern deficiencies of the 
control group employed. T o  test the effects of “busing” 
and school desegregation, the control group m ust obviously 
consist exclusively of children who are neither “bused” nor 
attend desegregated schools. But our check of this critical 
and elem entary point reveals that this not the case. 
Among the 41 control students at the jun io r and senior 
high school levels, records on 39 were available; and they 
reveal that only 16 (41%) of these 39 actually attended 
segregated school in the tested year of 1968-1969. And 
most of the 23 desegregated children utilized buses and 
other forms of vehicular transportation to get to school.

Incredible as it sounds, then, Dr. A rm or compared chil­
dren who were bused to desegregated schools w ith other 
children many of whom were also bused to desegregated 
schools. N ot surprisingly, then, he found few differences 
between them. But this complete lack of controls renders 
his METCO research of no scientific interest in the study



70

of “busing” and school desegregation. A nd since this 
M E T C O  investigation furnished the chief “evidence” 
against “busing,” Dr. A rm or’s conclusions are severely 
challenged by this po int alone.

Serious, too, is an enorm ous non-response rate in the 
second test adm inistration, a problem  alluded to by Dr. 
A rm or only in a footnote. T h e  achievem ent results for 
jun ior and senior high students are rendered virtually 
meaningless by the participation of only 44%  of the eligible 
M ETC O  students and 20%  of the eligible “control” stu­
dents. For the elem entary students, only 51%  of the 
eligible M E T C O  students and 28%  of the eligible “con-' 
tro l” students took part in both of the achievem ent test 
sessions. Compare these percentages to the generally ac­
cepted survey standard of 70 to 80%o, and one can appre­
ciate the m agnitude of the selection bias introduced into 
the M E T C O  results by the widespread lack of partici­
pation in the research. Efforts to compensate for these 
high non-response rates through the use of cross-sectional 
samples that also suffer from extensive non-response are 
insufficient.

T here  are o ther problems in the M E T C O  study. Besides 
recording and clerical errors in the data, children were 
included who initially perform ed as well as the test scoring 
allowed and therefore could not possibly dem onstrate “ im­
provem ent” later. In  fact, these students comprise one- 
sixth of all the ju n io r high pupils tested for achievement 
gains. Moreover, the th ird  adm inistration of the attitude 
tests were different for the two groups. T h e  M ETC O  stu­
dents took the tests at school and the “control” students 
took them  at home w ith their parents as proctors. This 
faulty research design makes any conclusion about differ­
ences in racial attitudes between the two groups hazardous. 
These and other severe weaknesses of the M ETC O  re­



71

search, then, are so extensive as to render its findings of no 
im portance in any review of “ the evidence on busing.”

T h e  inadequate discussion of the M E T C O  study in 
the article makes it virtually impossible for even the dis­
cerning reader to evaluate it properly. W e uncovered its 
many errors only from unpublished earlier materials and 
from reanalyzing the data ourselves. A nd this discussion 
is inadequate in other ways. D ifferential statistical stan­
dards are employed, w ith less rigorous standards applied 
to findings congruent w ith the article’s anti-busing thesis. 
Differences between M E T C O  schools are not shown; and 
misleading claims of consistency w ith other research find­
ings are made.

From  this assortment of “evidence,” Dr. A rm or con­
cludes authoritatively that “busing” fails on four ou t of 
five counts. I t does not lead, he argues, to im proved 
achievement, grades, aspirations, and racial attitudes for 
black children; yet, despite these failures, he adm its that 
desegregated schools do seem somehow to lead more often 
to college enrollm ent for black students.

W e review each of these conclusions in detail in our 
full piece, and find that the picture is considerably more 
positive, as well as more complex, than that painted by 
Dr. Arm or. For example, when specified school conditions 
are attained, com petent research has repeatedly shown that 
desegregated, compared to segregated, schools improve the 
academic performance of black pupils. O ther research has 
dem onstrated that rigidly high and unrealistic aspirations 
actually deter learning; thus, a slight lowering of such 
aspirations by school desergregation can lead to better 
achievem ent and cannot be regarded as a failure of “bus­
ing.” A nd “m ilitancy” and “black consciousness and solid­
arity” are not negative characteristics, as the article asserts, 
and their alleged development in desegregated schools



72

should be regarded as a fu rther success, not a failure, of 
“busing.” Moreover, the evidence that desegregated educa­
tion sharply expands the life opportunities of black chil­
dren is more extensive than indicated in the article.

Consequently, Dr. A rm or’s sweeping policy decision 
against “m andatory busing” is neither substantiated nor 
w arranted. A part from the im pairm ents and incom plete­
ness of the cited “evidence,” the paper in a real sense is 
not about “busing,” much less “m andatory busing.” T hree  
of the cities discussed, including the prim ary discussion of 
Boston, had voluntary, not “m andatory,” “busing.” “Bus­
ing” was never cited as an independent variable, and many 
of the desegregation studies discussed involved some chil­
dren who were not “bused” to reach their interracial 
schools. Indeed, in Dr. A rm or’s own investigation of 
M ETC O , many of the M E T C O  children were not “bused” 
while many of the “controls” were.

Finally, objections must be raised to the basic assump­
tions about racial change that undergird  the entire article. 
T he  racial desegregation of the public schools is regarded 
as largely a technical m atter, a m atter for social scientists 
more than the courts to decide. T he  emphasis is placed 
solely upon the adaptive abilities of black children rather 
than on their constitutional rights, T he  whole national 
context of individual and institu tional racism, is conven­
iently ignored, with interracial contact under any condi­
tions assumed to be “in tegration.” W e are surprised such 
assumptions still prevail in social science in 1972; and we 
trust that readers will not judge the potential usefulness 
of com petent social research to public policy by this u n ­
fortunate example.



73

Nos. 71-2006, 71-2007, 72-1443 & 72-1444

U N IT E D  STA TES C O U R T  OF APPEALS 
FO R  T H E  S IX T H  C IR C U IT

J a m es  J o n a th a n  M a p p , e t  a l .,
Plaintiffs-Appellants 
and Cross-Appellees,

v.

T h e  B oard o f  E d u ca tio n  o f  T h e  
C ity  o f  C h a tta n o o g a , e t c ., e t  
a l .,

Defendant-Appellee 
and Cross-Appellant.

A p p e a l  from the 
U nited  States Dis­
trict C ourt for the 
Eastern D istrict of 
Tennessee, South­
ern Division.

Decided and Filed A pril 30, 1973.

Before: P h il l ip s , C h ie f Judge, W e ic k , E dwards, C e l e - 
brezze , P eck , M cC r e e , M il l e r , K e n t  and L iv ely , C irc u it  
Judges, and O ’Su lliv a n , Senior C ircuit Judge, in  banc.

P er  C u r ia m . T his is a school desegregation case in ­
volving the school system of Chattanooga, Tennessee.

T h e  present appeals are from the decisions of District 
Judge Frank W . W ilson reported in 329 F. Supp. 1374 
(E.D. T enn . 1971) and 341 F. Supp. 193 (E.D. T enn . 
1972) . Appeals have been perfected by the City Board 
of Education and by the City of Chattanooga and its Mayor. 
An appeal also has been perfected by the plaintiffs from



74

the decision reported  at 329 F. Supp. 1374 (E.D. T enn. 
1971).

T h e  appeals originally were heard by a panel of three 
judges of this court, whose decision was announced on 
O ctober 11, 1972. T h e  m ajority opinion of the panel re­
m anded the case to the D istrict C ourt for fu rther consider­
ation. T h e  dissenting opinion favored affirmance of the 
judgm ents of the D istrict Court. Thereafter, a m ajority 
of the judges of this court who are in regular active service 
ordered that the appeals be reheard by the court in banc. 
F e d . R. A p p . P. 35, Local R ule 3 (b) of this court provides 
that: “T h e  effect of the granting of a rehearing in banc 
shall be to vacate the previous opinion and judgm ent of this 
court, to stay the m andate and to restore the case on the 
docket as a pending appeal.”

T h e  comprehensive reported opinions of D istrict Judge 
W ilson contain a full statem ent of the issues and pertinent 
facts, and repetition  in this opinion is not required.

U pon consideration of the briefs of the parties, the oral 
argum ents before the court sitting in banc, and the entire 
record, we affirm the judgm ents of the D istrict C ourt for 
the reasons stated in the opinions of Judge W ilson. Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971) ; Davis v. Board of Commissioners, 402 U.S. 33 
(1971) ; North Carolina State Board of Education v. Swann, 

402 U.S. 43 (1971); Broiun v. Board of Education [II], 
349 U.S. 294 (1955) , Brown v. Board of Education [I], 
347 U.S. 483 (1954) ; Northcross v. Board of Education of 
Memphis City Schools, 466 F.2d 890 (6th Cir. 1972) ; 
Kelley v. Metropolitan Board of Education of Nashville & 
Davidson County, Tennessee, 463 F.2d 732 (6th C ir.), 
cert, denied 409 U.S. 1001 (1972) ; Davis v. School District 
of City of Pontiac, 443 F.2d 573 (6th C ir .) , cert, denied, 
404 U.S. 913 (1971).



75

T h e  Board of Education has filed a supplem ental record 
in this court containing statistics said to reflect changes 
which have occurred after the decisions of the District 
Court. W e decline to consider these statistics in the present 
appeal. A ppropriate relief requ ired  by changed condi­
tions is a m atter for presentation to and consideration by 
the District Court. W e reemphasize the holding of this 
court in Kelley v. Metropolitan Board of Education of 
Nashville and Davidson County, supra: “Like most decrees 
in equity, an injunctive decree in a school desegregation 
case is always subject to modification on the basis of 
changed circumstances.” 463 F.2d at 745-46.

Affirmed. Since both parties appealed, no costs are taxed.

M il l e r , C ircuit Judge, concurring in the result.

I concur in the result reached by the C ourt in these ap­
peals.

As I read the opinion of the Supreme C ourt in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), where vestiges of state-imposed segregation still 

exist, the district courts have broad powers to fashion rem e­
dies that will assure a unitary school system.

A careful review of the record in this case indicates to 
me that the district judge was not only clearly justified 
in holding that vestiges of state-imposed segregation still 
existed in the Chattanooga system, bu t that he did not 
abuse his discretion in fashioning remedies w ithin the p re­
cepts of the Swann decision. Since for these reasons I con­
cur in the result, I do not feel com m itted to all of the 
language, reasons and conclusions set forth in the per 
curiam  opinion of this C ourt or in the two opinions of 
Judge W ilson under review reported at 329 F.Supp. 1374 
(E.D. T enn ., 1971) and 341 F.Supp. 193 (E.D. Tenn., 
1972).



76

W e ic k , C ircuit Judge, a n d  O ’Su l l iv a n , Senior C ircuit 
Judge, dissenting.

As members of the original panel who wrote the majority 
opinion from which the en banc hearing was ordered, we 
respectfully dissent.

Following the en banc hearing, the District C ourt’s op in­
ion was affirmed, per curiam, w ithout, in our opinion, 
adequate discussion of the assignment of errors or the m erits 
of substantial and im portant issues raised on appeal by 
the School Board and the Board of Commissioners of the 
City of Chattanooga. T he  Commissioners were the taxing 
authority; however, the Board of Commissioners was not 
made a party initially, b u t has since been made a party 
to the judgm ent w ithout affording it an opportunity  to 
question the m erits of the case.

No consideration was given to the supplem ental record 
certified to this C ourt by the D istrict C ourt indicating 
substantial changes in conditions affecting the school sys­
tem, brought about by m obility of bo th  w hite and black 
families, which changes in our judgm ent im pel a rem and for 
consideration before we place our stamp of approval on the 
D istrict C ourt’s opinions.

W e consider it right to say prelim inarily  that, in our 
view, no decision of the U nited  States Supreme C ourt has 
held that in all events and without reference to the good 
faith and good conduct of the involved school or other state 
or municipal authorities, there m ust always be bussing to 
bring about a m ix of the races. Goss v. The Bd. of Educ. of
the City of Knoxville, T e n n ---- F .2 d ------(6th Cir., No.
72-1766-1767, decided Mar. 29 1973) .

In  the case before us, the District Judge found that the 
Chattanooga School Board was guilty of no bad faith and 
tha t up  to February 4, 1972, the Board had, in fact, estab­
lished a unitary school system “w ithin which no person is



77

to be effectively excluded from any school because of race or 
color.” T h is  was the com m and of Alexander v. Holmes 
County Board of Educ., 396 U.S. 19, 20 (1969) .

T he  District Judge’s opinion dealing w ith the C hatta­
nooga Board’s good faith (not reported) had this to say:

“T his lawsuit has been in an area where the law 
has been evolving, and the C ourt cannot say that the 
defendants have acted in bad faith in failing always to 
perceive or anticipate that development of the law. For 
example, in all of its orders entered p rio r to the de­
cision of the U nited  States Supreme C ourt in  the case 
of Green v. School Bd. of New Kent County, 391 
U.S. 430 . . . (1968), this C ourt was itself of the opin­
ion that genuine freedom of choice on the part of 
students in school attendance was compliance w ith the 
Equal Protection Clause of the Constitution. W hile 
the Board has vigorously contested the plaintiff’s con­
tentions at every stage of this lawsuit, it fu rther ap­
pears to the C ourt that when factual and legal issues 
have been resolved, the Board has at all times com­
plied or attem pted to comply in good faith w ith the 
orders and directions of the C ourt.” (Emphasis added) .

T here  seems now to have developed a view that since 
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1 (1971) , nothing other than bussing will satisfy the
original command of Brown I  and Brown II. T his is not 
so. In  the Swann decision the D istrict C ourt found that 
the school authorities there involved had flouted the Brown 
commands. His opinion cannot be read as other than a 
finding that the school authorities wTere deliberately m ain­
taining die jure segregation. T h e  opposite is true in C hatta­
nooga. Swann did no more than affirm the District Judge’s 
finding of deliberate creation or perpetuation of de jure 
segregation.

W e do not read Swann as holding that the Constitution 
requires that, black or white, a school child m ust now be



78

denied the righ t to attend the school of his choice — de­
sirable because of its nearness to his place of residence, or 
for any other circumstance prom pting such choice — solely 
because of the color of his skin. In  our view such a holding 
w ould collide w ith the commands of Brown I  and Brown II, 
347 U.S. 483 (1954) and 349 U.S. 294 (1955).

Can obedience to Brown I  and Brown II  be accomplished 
only by im position of an A ttainder upon so many whose 
only contribution to the wrongs sought to be alleviated 
by Brown derives from the circumstance of their birth? 
W hat will be the dimensions of such selective attainting 
of some, b u t not others, among the groups that make up 
our total society?

W e have set ou t above that the D istrict Judge believed 
that in Chattanooga the schools had been desegregated 
and that a unitary system had been established. W e have 
affirmed such holding. Mapp v. Board of Educ. of City of 
Chattanooga, 373 F.2d 75 (1967).

T h e  D istrict Judge then w ent on to say;

“T his lawsuit has been in an area where the law 
has been evolving and the C ourt cannot say that the 
defendants have acted in bad faith in failing always to 
perceive or anticipate that developm ent of the law.

M ust every School Board now be expected, clairvoyantly, 
to guess what new judicial device may be considered by 
a D istrict Judge to be a better way of serving desegrega­
tion, and make fresh adjustm ents if such device is found 
permissible by some appellate court? Across the nation, 
especially in the cities, rapid  population shifts have brought 
about new concentrations of racial groups. M ust the courts 
be ready to move in w ith fresh commands and new rerou t­
ing of buses? T h e  chaos that can be the result is forecast by 
Chief Justice B urger’s language in Swann.



79

“It does not follow that the com m unities served by 
such systems will rem ain dem ographically stable, for 
in a growing, mobile society, few will do so. N either 
school authorities nor district courts are constitutional­
ly required  to make year-by-year adjustm ents of the 
racial composition of student bodies once the affirma­
tive duty to desegregate has been accomplished and 
racial discrim ination through official action is elim i­
nated from the system. T his does not mean that 
federal courts are w ithout power to deal w ith fu ture 
problems; but in the absence of a showing that either 
the school authorities or some other agency of the 
State has deliberately attempted to fix or alter demo­
graphic patterns to affect the racial composition of the 
schools, fu rther intervention by a district court should 
not be necessary.” (Emphasis added.) (402 U.S. at 31, 
32.)

W e m ust therefore consider the issues raised on appeal.

I

THE QUOTA SYSTEM

T h e  District C ourt misconstrued recent decisions of the 
Supreme C ourt as requ iring  racial quotas in the public 
schools. I t  ordered “a racial ratio  of not less than 30% 
nor more than 70% of any race in each elem entary school 
w ithin the system with bu t five exceptions . . . .” 329 F. 
Supp. 1374, 1382. T he  five schools excepted therefrom  
were found not to be im balanced on account of past or 
present discrim ination. Similar quotas wore ordered for 
Ju n io r H igh Schools. Senior H igh Schools are still under 
consideration.

In  our opinion, the decision in Swann v. Charlotte-Meck- 
lenburg Board of Educ., 402 U.S. 1 (1971) , on which the 
District C ourt relied, does not mandate the adoption of



80

quotas in each and every school in the system regardless of 
where the children reside.

Mr. Chief Justice Burger, who wrote the opinion for 
the C ourt said:

“If we were to read the holding of the D istrict Court 
to require, as a m atter of substantive constitutional 
right, any particu lar degree of racial balance or m ix­
ing, that approach would be disapproved and we would 
be obliged to reverse. T h e  constitutional com mand 
to desegregate schools does not mean that every school 
in every com m unity m ust always reflect the racial com­
position of the school system as a whole.” (402 U.S 
at 24).

In  Winston-Salem/Forsyth Bel. of Ednc. v. Scott, 404 
U.S. 1221 (1971) , in an O pinion in Chambers, Chief Jus­
tice Burger, after quoting the above language from Swann, 
stated:

“N othing could be plainer, or so I had thought, 
then Swann’s disapproval of the 71%-29% racial com­
position found in the Swann case as the controlling 
factor in the assignment of pupils, simply because that 
was the racial composition of the whole school system.” 
(404 U.S. at 1228) .

Chief Justice Burger fu rther said:

“ The present status of the findings is not clear to 
me, bu t the D istrict C ourt on reconsideration follow­
ing the rem and seems to have thought that it was com­
pelled to achieve a fixed racial balance reflecting the 
composition of the total county system. T he  explicit 
language of the C ourt’s opinion in Swann suggests 
a possible confusion on this point. I do not attem pt 
to construe that language, b u t simply to recite it ver­
batim : ‘T he  constitutional command to desegregate 
schools does not mean that every school in every com­
m unity m ust always reflect the racial composition of



81

the school system as a whole.’ 402 U.S. at 24.” (404 
U.S. at 1230-1231).

In  Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th 
Cir. 1966), affirming 244 F.Supp. 572 (S.D. Ohio, 1965), 
cert, denied, 389 U.S. 847, we stated:

“ Moreover, our refusal to restrict the school board 
with a m athematically certain form ula for the vin­
dication of individual constitutional rights is not an 
innovation. T h e  righ t to a trial by an im partial, fair­
ly selected jury, is well established in our law and it 
has been protected against the same sort of disguised 
racial discrim ination that has been attem pted in the 
school desegregation cases. Eubanks v. State of Louisi­
ana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) ; 
Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 
85 L.Ed. 84 (1940) ; N orris v. State of Alabama, 294 
U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) ; Ex parte 
State of V irginia, 100 U.S. 339, 25 L.Ed. 676 (1879) ; 
Strauder v. State of W est V irginia, 100 U.S. 303, 25 
L.Ed. 664 (1879).

However, it is equally clear that a defendant in a 
crim inal case is not constitutionally entitled  to de­
m and a proportionate num ber of his race on the jury 
which is to try him  nor on the venire or ju ry  roll 
from which petit jurors are to be chosen. Swain v. 
State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 
13 L.Ed.2d 759 (1965) ; Akins v. State of Texas, 325 
U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). 
W hile the two situations may not be completely an­
alogous, the potential dangers to a crim inal defendant, 
forced to face a racially im balanced jury, are at least 
as great as the intangible, often speculative injuries 
threatening a student in a racially im balanced school.” 
(369 F.2d at 61-62).

T h e  trouble is that the quota system, which in our



82

judgm ent is alien to a free country, has been extended to 
other fields and with discrim inatory and disastrous results.1

W e see no occasion for the D istrict Judge to rely on the 
drastic order of Judge M cM illan considered in Swann, 
supra, or that of Judge M erhige, reversed in Bradley,2

T h e  D istrict C ourt was obviously influenced by the fact 
that the Supreme C ourt in Swann affirmed a very broad 
order of D istrict Judge M cM illan. T his appears from a 
colloquy between the C ourt and counsel for the Board, 
at the evidentiary hearing, as follows:3

“T H E  C O U R T : W ell, what is your question
about what they did? Did they or did they not ap­
prove all of the procedures that had been followed in 
the M ecklenburg case?

M R. W IT T : T hey placed great —

T H E  C O U R T : Well, just answer my question,
did they or did they not approve every single pro­
cedure followed in the M ecklenburg case.

M R. W IT T : Yes.

T H E  C O U R T : So is there any question about
what they did?

M R. W IT T : Yes.” (T r. 1693-19-20)

But the Supreme C ourt in Swann pointed out the back­
ground of defiance by that Board which occasioned the 
broad order:

“As the volum inous record in this case shows, the 
predicate for the D istrict C ourt’s use of the 71% -

1 Ross, “W hy Quotas W on’t W ork,” H eader’s Digest, Feb. 1973, page 
51: “C urren t effort to atone for past discrim ination  against m inori­
ties is creating  new  victim s by reverse  discrim ination. Can two 
w rongs m ake a r ig h t?”

2 Bradley v. School Board, of Richmond, 462 F. 2d 1058 (4th Cir 
1972), cert, granted, Jan . 15, 1973, 41 U.S.L. W eek 3391.

3 See 83 H arvard  Law  Review  81, 82.



83

29% ratio was twofold: first, its express finding, ap­
proved by the C ourt of Appeals and not challenged 
here, that a dual school system had been m aintained 
by the school authorities at least un til 1969; second, 
its finding, also approved by the C ourt of Appeals, that 
the school board had totally defaulted in its acknowl­
edged duty to come forward with an acceptable plan 
of its own, notwithstanding the patient efforts of the 
District Judge, who, on at least three occasions, urged 
the board to submit plans.” (Emphasis added.) (Foot­
notes omitted) (402 U.S. at 24) .

In  our case, p rior to the entry of the orders from which 
these appeals had been taken, no child was excluded from 
any school on account of color or race. T h e  District Court 
found that the Board has acted in good faith and has at 
all times “complied or attem pted to comply w ith the or­
ders and directions of the C ourt.” T he  Board was not 
in default. T his distinguishes Swann.

T h e  quota system results in the violation of the constitu­
tional rights of innocent black children and w hite ch il­
dren in order to redress past violations of the constitu­
tional rights of the plaintiffs. Both black and w hite chil­
dren, w ithout their consent or that of their parents, are 
forced by judicial fiat to be transported away from their 
homes and neighborhood schools to other strange places 
and schools, solely because of the color of their skin. These 
innocent children have com m itted no offense to justify such 
treatm ent.4 Plaintiffs seem to recognize this fact because 
one of the assignments of error in their appeal was their 
claim that the D istrict C ourt erred in ordering the closing 
of black schools w ithout ordering a sufficient num ber of 
white schools closed. Plaintiffs’ brief states:

4 Many black people oppose forced bussing of their children. At 
the National Black Political Convention, held in Gary, Indiana (March, 
1972), mandatory bussing and school integration were condemned 
as racist and as preserving a black minority structure.



84

“T hus, black youngsters will be required  to leave 
their neighborhoods to go to other schools for all 
grades or for grades 1-3 in num bers disproportionate 
to the num bers of blacks.” (Plaintiff-Appellants’ brief, 
P . 30) .

T here  is no provision in the Constitution which can be 
read as saying that the races m ust be m ixed in each and 
every school in the system, and no provision requ iring  that 
w hite children be bussed away from their neighborhood 
schools in the suburbs, to schools in the inner city, or 
that black children m ust be bussed away from their neigh­
borhood schools to schools in the suburbs, in order to 
achieve a racial m ixture or quota.

T h e  Board can hardly be faulted for housing patterns 
of a com m unity or for the concentration of blacks in the 
inner city, as these conditions exist in other cities th rough­
out the country, regardless of the type of school system in 
operation, i.e., w hether de jure or de facto.

In  his book, “Negroes In  Cities," Dr. Karl Taeuber states 
that residential segregation exists “regardless of the char­
acter of local laws and policies and regardless of o ther forms 
of discrim ination.” H e said substantially the same thing 
in his article, “Residential Segregation,” in the August, 
1965 issue of Scientific American.

In  Bradley v. School Board of City of Richmond, 462 
F.2d 1058 at 1066, (4th Cir. 1972), cert, granted, Jan. 
15, 1973, 41 U.S.L.W eek 3391, the C ourt said:

“ [T]he root causes of the concentration of blacks in 
the inner city are simply not known

And

“W hatever the basic causes, it has not been school 
assignments and school assignments cannot reverse that 
trend .”



85

I t  is, of course, popular to blame the Boards of Edu­
cation for everything, b u t it is unfair to require  the edu­
cational system to dism antle this condition for which it 
was in no wise responsible.

I I

U N IT A R Y  SC H O O L SYSTEM

U nlike the D istrict Court, we have experienced difficul­
ty in understanding not only what constitutes a unitary 
school system, bu t also what steps the C onstitution requires 
m ust now be taken to elim inate a de jure system and to 
b ring  about a unitary system. O ther Judges, legal scholars 
and writers have had sim ilar difficulty.5 W e suggested in 
Northcross that the Supreme C ourt had not defined a u n i­
tary school system. Northcross v. Board of Educ. of M em ­
phis, Term. City Schools, 420 F.2d 546 (6th Cir. 1969). 
W e were corrected in a concurring opinion w ritten by Chief 
Justice Burger, w herein he said:

“T h e  suggestion that the C ourt has not defined a 
unitary school system is not supportable. In  Alexan­
der v. Holmes County Bd. of Educ., 396 U.S. 19 (1969), 
we stated, albeit perhaps too cryptically, that a un i­
tary system was one ‘w ithin which no person is to be 
effectively excluded from any school because of race 
or color.’ ” Northcross v. Bd. of Educ. of Memphis, 
Term., 397 U.S. 232 at 236-7 (1970) . (Emphasis add­
ed) .

U nder this definition the School Board already had 
achieved a unitary system long before the entry of the 
orders from which the appeals were taken. W hile this did 
not establish racial quotas, or a m ixture in all of the

5 85 Harvard Law Review 3, 74, 76, 81, 83.



86

schools as desired by plaintiffs, no pupil was excluded from  
any school on account of his color or race. This is all that 
Brown I  and Brown I I  ever contem plated.6 7 These de­
cisions, in our judgm ent, did not envision the use of school 
children to b ring  about an integration of the races.

I l l

MAXIMIZING INTEGRATION

T h e  D istrict C ourt required  the Board to establish that 
it had taken affirmative action to “maximize integration 
in all feasible ways as requ ired  by Kelley1 and Robinson.8 
T h e  Supreme C ourt in Davis v. Board of School Comm’rs 
of M obile County, 402 U.S. 33 (1971), held that “school 
authorities should make every effort to achieve the great­
est possible degree of actual desegregation, taking into ac­
count the practicalities of the situation. (402 U.S. at 37). 
We have not found where the Supreme C ourt has ever 
requ ired  School Boards to “maximize in tegration” . T h e  
difficulty is tha t the D istrict C ourt may well have understood 
the words to require  integration of the races by fixed num ­
bers or quotas in each public school in the system, re ­
gardless of where the pupils live, and regardless of their 
economic circumstances. T h is can be accomplished only by 
extensive and expensive bussing and by violation of the 
constitutional rights of both  races.

If it is desirable to integrate the races, why not start 
w ith adults, ra ther than to pick on defenseless school 
children? Of course, it would take an Act of Congress to

6 Brown I, 347 U.S. 483 (1954); Brown II, 349 U.S. 294 (1955).
7 Kelley  v. Metropolitan County_ Bd. of Educ. of Nashville & David­

son County, 436 F.2d 856 (6th Cir. 1970).
a Robinson v. Shelby County Bd. of Educ., 442 F.2d 255 (6th Cir. 

1971).



f

compel adults to integrate. W e doubt that Congress could 
ever be persuaded to pass such legislation, and if it were 
so persuaded, such law would clearly be unconstitutional, in 
violation of the First A m endm ent which guarantees free­
dom of association. N.A.A.C.P. v. Alabama, 357 U.S. 449 
(1958).

In  that case the C ourt denied enforcem ent of a state 
contem pt citation against the petitioner, which citation 
was issued when petitioner refused to disclose its Alabama 
m em bership list. T he  adverse effect on the m em bership 
of disclosure of the roster of N.A.A.C.P. was, of course, some­
what speculative. Yet the C ourt held that the im portance 
of the right of association was so great as to require pro­
tection, stating:

“ . . . [Sjtate action which may have the effect of 
curtailing the freedom to associate is subject to the 
closest scrutiny.” (357 U.S., at 460-461) .

T his principle was reaffirmed in Bates v. City of L ittle  
Rock, 361 U.S. 516 (1960) . T he  language in the concur­
rence of Mr. Justice Black and Mr. Justice Douglas, is 
instructive.

“ . . . [W]e believe, as we indicated in United States 
v. Rum ely, 345 U.S. 41, 48, at 56 (concurring opin­
ion) , that First A m endm ent rights are beyond abridg­
m ent either by legislation that directly restrains their 
exercise or by suppression or im pairm ent through ha­
rassment, hum iliation, or exposure by government. 
O ne of those rights, freedom of assembly, includes of 
course freedom of association; and it is entitled  to no 
less protection than any other First A m endm ent right 
as N . A. A. C. P. v. Alabama, 357 U.S. 449, at 460, 
and De Jonge v. Oregon, 299 U.S. 353, at 363, hold. 
These are principles applicable to all people under our 
C onstitution irrespective of their race, color, politics, 
or religion.” (Emphasis added) 361 U.S. at 528.

87



88

“A ll people” includes children.

It should be pointed out that there is a m arked differ­
ence between voluntary bussing and induced or forced 
bussing in the effect on the children involved and their 
parents. No one can have any objection to the school 
system’s furnishing voluntary transportation from the child’s 
residence to the school nearest thereto. I t is som ething 
entirely different when the child, solely because of the 
color of his skin, is assigned away from his neighborhood 
school, by a court order, and is required  to be transported 
to another school (w hether by his parents’ car or by in ­
duced bussing) some distance away from his home,

Brown I  speaks of the feeling-of-inferiority effect on chil­
dren as the result of discrim inatory state action where the 
children are not perm itted  to attend  certain public schools 
because of the color of their skin. T h is  condition would 
seem to persist still if children of both races are prohibited  
by court order from attending schools nearest to their 
residences, merely because of the color of their skin, and 
are required  to be taken elsewhere to school.

IV

B U R D E N  OF PR O O F

W here a dual system has been m aintained, the courts 
have placed the burden  of proof upon the School Board 
to establish that present racial imbalances in a particular 
school are not the result of past discrim inatory actions, al­
though the cases are not very clear as to just how or in 
what m anner the Board can ever m eet such a heavy burden. 
But in a case like ours, where the Board has always com­
plied w ith the desegregation orders of the Court, and the 
plaintiffs have filed motions for fu rther relief whenever 
new decisions have been announced expanding the rights



89

of plaintiffs in school desegregation cases, it would seem 
to us to be only fair that plaintiffs should have the burden  
to prove that they are entitled  to such fu rther relief. T he  
Board ought not to have the burden  of disproving every 
contention which the plaintiffs may see fit to make in this 
case. In  our judgm ent the C ourt erred in  placing on the 
defendants the burden  of proof in resisting plaintiffs’ mo­
tion for fu rther relief.

V

PRACTICALITIES

In  considering desegregation plans the D istrict C ourt 
m ust take into account the practicalities of the proposals. 
These include the cost thereof, how such proposals may 
affect the rights of the children involved in the assignments, 
induced bussing, and the educational achievement of such 
proposals.

Boards of Education do not have unlim ited  funds to 
adopt any program  which they please. Funds can be raised 
by taxation and appropriation. In  the present case the 
Board of Education does not have the power to levy taxes 
or to appropriate funds to carry out its programs. Only 
the Board of Commissioners of the City has such power and 
authority. T h a t Board was not made a party to the case 
in the District C ourt un til after the desegregation orders 
had been entered by the Court. W e would assume that 
the Board of Commissioners has already appropriated the 
funds for the 1972-73 school year. If so, we do not know 
how an expenditure of $500,000 for buses would affect 
operation of the schools. 1  he District C ourt has not or­
dered the Board of Commissioners to appropriate funds to 
provide for transportation of pupils, and we do not con­
sider in this appeal the question w hether it has the power



90

to enter any such order. T h e  Board of Commissioners is 
entitled, on rem and, to a hearing on all issues of the case 
before any order is entered against it.

W e w ould not affirm the D istrict C ourt’s opinions, bu t 
w ould rem and for an evidentiary hearing to consider the 
changed circumstances and to proceed not inconsistent with 
this opinion.

T h e  D istrict C ourt also should consider T itle  V III of 
the Education Am endm ents of 1972, and its prohibition  
against the use of funds appropriated  by Congress for 
bussing.

In  our judgm ent a quota system can discrim inate invidi­
ously in favor of one race against o ther races. Such a 
system can lower the quality of education and educational 
achievement, and instead of bringing harm ony and good will 
between the races can polarize them.