Kelley v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON CTY., TENN., Civ. A. No. 2094

• Decision Date: 16 July 1970
• Docket Number: Civ. A. No. 2094,2956.
• Citation: 317 F. Supp. 980
• Parties: Robert W. KELLEY et al., and Henry C. Maxwell, Jr., et al., Plaintiffs, v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

317 F. Supp. 980

Robert W. KELLEY et al., and Henry C. Maxwell, Jr., et al., Plaintiffs, v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants.

Civ. A. Nos. 2094, 2956.

United States District Court, M. D. Tennessee, Nashville Division.

July 16, 1970.

COPYRIGHT MATERIAL OMITTED

Avon N. Williams, Jr., Nashville, Tenn., for plaintiffs.

Robert E. Kendricks, Deputy Director of Law, and Ruthie L. Taylor, Asst. Metropolitan Atty., Metropolitan Government of Nashville and Davidson County, Nashville, Tenn., for defendants.

OPINION.

WILLIAM E. MILLER, Circuit Judge (sitting as District Judge by designation).

The issues now before the Court arise out of the continuing public school desegregation action which has been retained on the docket of this court since it was filed in September of 1955. The action is in the nature of a consolidated class action.¹ By way of a "Motion for Immediate Relief," plaintiffs commenced the present proceedings on November 6, 1969, seeking the issuance of "a temporary restraining order enjoining the defendants School Board from proceeding further with any and all new construction or expansion or closure of any schools in the Metropolitan School System pending submission of and hearing on a new desegregation plan to achieve immediately a unitary school system." Pending the determination of all issues raised by plaintiffs' Motion for Immediate Relief, the Court has enjoined defendant School Board from purchasing new school sites, building new school structures, or expanding present school facilities.

In approaching the problems of this case it cannot be doubted that the courts, though ill-equipped to make pronouncements on educational policy, are charged with the duty to consider where necessary "problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems relating to segregated schools." The Court also has the duty to "consider the adequacy of any plans the defendants school officials may propose to meet these problems and to effectuate a transition to a racially non-discriminatory school system." Brown v. Board of Education, 349 U.S. 294, 300-301, 75 S.Ct. 753, 756, 99 L. Ed. 1083 (1955).

In order appropriately to frame the issues presented in this case and to derive the guiding principles for resolution of these issues, it is necessary to look to the pertinent case law in the area. At the outset, it should be stated that the Court is aware of the uncertainty among the various circuits as to the status of the law in this area since the Supreme Court rendered its decision in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). It would appear, however, that the basic meaning of Alexander is clear and that the disagreement among the circuits arising only as to the application of the ruling in that case.

In its brief per curiam opinion in Alexander the Supreme Court stated that "a standard of allowing `all deliberate speed' for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual schools at once and to operate now and hereafter only unitary schools." 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (emphasis added). Though it caused some commotion, Alexander represents no new direction in the law, but is rather a strongly worded reiteration of the rules for desegregation announced in the case of Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). See Alexander, supra. In Green, the Supreme Court stated:

A plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. The time for mere `deliberate speed' has run out * * *. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.

* * * Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system `at the earliest practicable date,' then the plan may be said to provide effective relief. Id. at 438-439, 88 S.Ct. at 1694-1695.

Green further states that school boards such as defendant are:

* * * clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Id. at 437-438, 88 S.Ct. at 1694 (emphasis added).

In concluding its opinion in Green, the Court stated that:

The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a `white' school and a `Negro' school but just schools. Id. at 442, 88 S.Ct. at 1696.

A reading of Green and Alexander shows the lack of vitality of the oftquoted language in Briggs v. Elliott, 132 F.Supp. 776 (S.D.S.C.1955), to the effect that while the Constitution forbade segregation, it did not require integration. See Hawthorne v. County School Board, 413 F.2d 53 (4th Cir. 1969); and Swann v. Charlotte-Mecklenburg Board of Education, 306 F.Supp. 1291 (W.D. N.C.1969).² In Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969), the Sixth Circuit Court of Appeals stated its adherence to a principle similar to that set forth in Briggs v. Elliott, supra, to the effect that there is no affirmative duty to integrate. See 419 F.2d at 1390. The Sixth Circuit's position in Deal, however, seems to have been undermined by the opinion of the Supreme Court in Northcross v. Board of Education of Memphis, Tennessee, City Schools, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970), a more recent case also arising in the Sixth Circuit. After granting a writ of certiorari, the Supreme Court in Northcross declared that the Court of Appeals erred in holding inapplicable the rule of Alexander v. Holmes County Board of Education, supra. In view of the fact that Alexander and its predecessor, Green clearly stand for the proposition that a school board has an affirmative duty to integrate, there is strong reason to infer that the Court of Appeals for the Sixth Circuit would not now express the view that there exists no constitutional duty on the part of school authorities to integrate schools. Rather, it is the clear message of Alexander and Green that school boards everywhere are charged with the affirmative duty to establish a unitary school system at the "earliest practicable date." Northcross v. Board of Education of the Memphis, Tennessee, City Schools, supra at 235, 90 S.Ct. 891. The "ultimate inquiry" in cases such as the present one is whether or not the school board is fulfilling this duty to take affirmative steps to find realistic measures that will transform a dual school system into a unitary desegregated system. See, e. g., Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682 (5th Cir. 1969); Board of Public Instruction of Duval County, Florida v. Braxton, 402 F.2d 900 (5th Cir. 1968).

Having recognized the established principle that school boards do have an affirmative duty, constitutionally imposed, to abolish dual school systems "at once," it is incumbent upon the Court, before deciding on the above stated issue, to define the scope of that duty. While the general principles of law seem clear, defining the scope of the duty presents some difficulty since many of the practical problems to be encountered in forging workable educational policies patterned on the general pronouncements of Alexander and Green have yet to be presented to the Supreme Court. That the lack of practical guidelines in this area has been recognized by the Supreme Court is evidenced by the following language of Chief Justice Burger in his concurrence in Northcross v. Board of Education of Memphis, Tennessee, City Schools, supra, at 237, 90 S.Ct. at 893:

"* * * We ought to resolve some of the basic practical problems when they are appropriately presented including whether, as a constitutional matter, any particular racial balance must be achieved in the schools; to what extent school districts or zones may or must be altered as a constitutional matter; and to what extent transportation may or must be provided to achieve the ends sought by prior holdings of the Court. Other related issues may emerge."

Therefore, in view of the lack of definitive authority in this area, the Court must turn to the practical rules for desegregation now being developed by courts in this and other circuits. An analysis of case law indicates diversity and change of opinion among and within courts trying to determine how school boards may meet the requirements of the Constitution in formulating educational plans. Out of this diversity of opinion, however, the Court will endeavor to isolate and develop those statements of judicial policy which are most appropriate to the issues presented in the instant case and most compatible with the principles of Alexander and Green.

The basic issue presented for decision may be stated simply as follows: Is defendant School Board properly fulfilling its affirmative duty to take all necessary steps to facilitate the immediate conversion of the Metropolitan Nashville and Davidson County public schools to a unitary school system in which racial discrimination will be totally eliminated? To arrive at a determination of this issue, the Court must consider several preliminary questions. First, is defendant properly performing...