Kelley v. BOARD OF EDUC. OF CITY OF NASHVILLE, ETC., 13748

• Citation: 270 F.2d 209
• Decision Date: 17 June 1959
• Docket Number: No. 13748,13749.,13748
• Parties: Robert W. KELLEY et al., Appellants and Cross-Appellees, v. BOARD OF EDUCATION OF The CITY OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE, et al., Appellees and Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

270 F.2d 209 (1959)

Robert W. KELLEY et al., Appellants and Cross-Appellees, v. BOARD OF EDUCATION OF The CITY OF NASHVILLE, DAVIDSON COUNTY, TENNESSEE, et al., Appellees and Cross-Appellants.

Nos. 13748, 13749.

United States Court of Appeals Sixth Circuit.

June 17, 1959.

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Z. Alexander Looby and Avon N. Williams, Jr., Nashville, Tenn. (Thurgood Marshall, New York City, on the brief), for appellants and cross-appellees.

Edwin F. Hunt and Reber Boult, Nashville, Tenn. (Howard, Davis, Boult & Hunt, Fred Elledge, Jr., U. S. Atty., Nashville, Tenn., George McCanless, Atty. Gen. of Tenn., on the brief), for appellees and cross-appellants.

Gerald B. Tjoflat, Cincinnati, Ohio, amicus curiae.

Before ALLEN and McALLISTER, Circuit Judges, and CHOATE, District Judge.

McALLISTER, Circuit Judge.

This is an appeal from the judgment of the district court approving a plan of the Board of Education of the City of Nashville, Tennessee, providing for desegregation of the public schools of that city, commencing with the first grade, and proceeding by the desegregation of one additional grade a year until all grades in all public schools have been finally desegregated.

The background of the case is pertinent: The entry of the judgment approving the above plan of desegregating the first grade and compliance therewith by the Board of Education and the school authorities gave rise to violence on the part of criminal elements opposed to desegregation, who wrecked a city school by bombing, and destroyed a synagogue by the same means. Unlawful crowds of disorderly persons caused great trouble and turbulence until the district court restrained one Kasper and others, by injunction, from acts of violence, intimidation, coercion, and incitement. In granting the injunction, the district court declared that the action of the Board of Education in putting into effect the order and judgment of the court "precipitated a situation in the City of Nashville which very nearly approached for some several hours' time — if not for several days' time — a reign of terror, certainly a reign of terror among those parents having children in the public schools, particularly in the first grade schools. * * * If it had not been for the decisive way that the City authorities went about discharging their duties, the reign of terror which overwhelmed the City would have been much worse than it actually was." It was the Board of Education of the City of Nashville that, when the trouble started, immediately pressed for the injunction against the acts of violence and coercion; and it was the police of the City of Nashville that curbed the acts of intimidation and enforced public order. It is to be remarked that none of the illegal acts, riotous conduct, or inflammatory propaganda hampered either the district judge or the Board of Education in carrying out their duties, firmly and swiftly, in the face of terroristic threats and disorder that characterize such unlawful groups in every part of the country where riots, arising from any cause, have, in the past, occurred.

Plaintiff-appellants are Negro children who attend public schools in Nashville, Tennessee, and their parents. On September 23, 1955, on behalf of themselves and others in like position, they filed their complaint in the district court against defendant-appellees, the Board of Education of the City of Nashville, and its members, the Superintendent of Schools for Nashville, and several public school principals. In their complaint, appellants asked for a judgment declaring that the laws of Tennessee, requiring segregation of white and Negro children in the schools, were unconstitutional; and they prayed for an injunction restraining appellees from refusing to admit such Negro children to specified schools, solely because of their race. The complaint was subsequently amended to add, as party plaintiffs, two white children (and their parents) who had been denied admission to schools theretofore operated on a segregated basis for Negroes.

To this complaint, appellees filed answer, admitting that they had denied appellant school children admission to the public schools closest to their homes, to which they had applied, solely on the basis of race; but appellees conceded that the segregation laws of Tennessee must, necessarily, yield to the principles declared by the Supreme Court in the so-called School Segregation Cases. Appellees, accordingly, set forth that they intended in good faith to implement the decisions of the Supreme Court; that an Instruction Committee had been appointed by the Board of Education for the purpose of studying the situation; that two comprehensive surveys had been carried out, and two progress reports filed; and that appellees needed more time to formulate a plan for desegregation in the public schools.

Because of the nature of the relief sought in the complaint, asking that the laws of Tennessee requiring school segregation be declared unconstitutional, the case came on for hearing before a three-judge court.

On the hearing before the three-judge court, it appeared that the Board of Education of the City of Nashville had proceeded to investigate and take action after the decision of the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, which had enunciated the principles that should govern the district courts in formulating decrees to implement its ruling that racial segregation in public schools is unconstitutional. Immediately after the determination in the above case, the Board of Education began an extensive study to determine the methods to be followed in the school system of the City of Nashville to effectuate the constitutional principles declared by the Supreme Court. These studies included investigation of the programs of other cities in the matter of desegregation, an analysis and review of pertinent books and periodicals, attendance by its representatives at work shops and other group meetings, and the exchange of views between its members and others invited to meet with its Committee.

From one of several opinions filed by the district court during the course of these proceedings on different aspects of the case, it appeared that, from the outset, the Board of Education frankly and openly recognized its obligation to maintain the school system upon a racial nondiscriminatory basis, and that it had endeavored, by its careful investigation and study of the question, to find a solution which would accomplish the transition as soon as reasonably practicable consistent with the public interest and the efficient operation of the schools. As the court remarked: "The problem confronting the Board of Education was not one which was concerned with a single school but with an entire school system which had been maintained for practically a hundred years — always on a segregated basis, and having an aggregate school population of 27,000 students, of whom 10,000 were Negro students. In this situation the Board concluded that it would need more time to formulate a workable plan of integration."

Such was the aspect of the case before the three-judge court on the complaint for a judgment to declare the Tennessee laws requiring segregation of school children to be in violation of the Federal Constitution. In view, however, of appellees' concessions that the above mentioned Tennessee segregation laws were unconstitutional, and in recognition of their request for further time to formulate a plan of desegregation, a continuance was granted, and, after remanding the case to the district court, an order was entered dissolving the three-judge court.

At the October, 1956, term of the district court, the case was called. Apparently there had been widespread discussion about new laws that might be adopted by the state legislature, and, accordingly, appellees moved for a postponement on the assumption that the 1957 Tennessee legislature might enact statutes relevant to the case. The district court, however, denied such motion for a postponement.

On November 13, 1956, appellees submitted to the district court a plan embodying the following provisions: abolition of compulsory segregation in Grade One of the elementary schools beginning September, 1957; the establishment of a zoning system for Grade One, based on residence, and without reference to race; the establishment of a transfer system allowing the transfer of white and Negro students who would otherwise be required to attend schools previously serving only members of the other race, and allowing the transfer of any student from a school where the majority of the students were of a different race; fixing December 31, 1957, as the date for a further recommendation by the Board of Education's Instruction Committee as to the time and number of grades to be included in the next step to abolish segregation.

After a hearing, the district court held that the plan presented by appellees was inadequate, inasmuch as it did not submit a complete plan to abolish segregation in the public schools; and the Board of Education was, therefore, required to present, by December 31, 1957, a report setting forth a plan to abolish segregation in the remaining grades of the city school system, including a time schedule. The district court retained jurisdiction of the case and withheld the issuance of the injunction prayed for in the complaint, pending the filing of the new plan.

On January 9, 1957, the Governor of Tennessee appeared before a joint session of the General Assembly to propose five bills permitting local authorities to act with respect to questions of racial integration in the public schools.

On January 25, 1957, the bills proposed by the Governor were finally approved by the General Assembly, and, as enacted, included: (1) legislation authorizing the establishment of separate schools for pupils whose parents or guardians voluntarily elected that they attend schools...