Kelley v. METROPOLITAN CTY. BD. OF ED. OF NASHVILLE, TENN.

• Decision Date: 18 December 1970
• Docket Number: No. 20741.,20741.
• Citation: 436 F.2d 856
• Parties: Robert W. KELLEY et al. and Henry C. Maxwell, Jr., et al., Plaintiffs-Appellants, v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

436 F.2d 856 (1970)

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

No. 20741.

United States Court of Appeals, Sixth Circuit.

December 18, 1970.

Avon N. Williams, Jr., Nashville, Tenn., for plaintiffs-appellants; Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Sylvia Drew, New York City, Counsel of Record.

Robert E. Kendrick, Deputy Metropolitan Atty., Nashville, Tenn., for defendants-appellees.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

This is an appeal from an order of the United States District Court for the Middle District of Tennessee, entered August 25, 1970. This order has the effect of staying all pupil desegregation proceedings in these long-pending cases until the decision of the school cases currently under consideration by the United States Supreme Court. Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (4th Cir. 1970), cert. granted, 399 U.S. 926, 90 S.Ct. 2247, 26 L.Ed. 2d 791 (1970); Charlotte-Mecklenburg Board of Education v. Swann, 431 F.2d 138 (4th Cir. 1970), cert. granted, 400 U. S. 862, 91 S.Ct. 101, 27 L.Ed.2d 102 (1970); Moore v. Charlotte-Mecklenburg Board of Education, 312 F.Supp. 503 (W. N.C.1970), prob. juris. noted, 400 U.S. 803, 91 S.Ct. 11, 27 L.Ed.2d 34 (1970); North Carolina State Board of Education v. Swann, 312 F.Supp. 503 (W.N.C. 1970), prob. juris. noted, 400 U.S. 804, 91 S.Ct. 11, 27 L.Ed.2d 34 (1970); McDaniel v. Barresi, 226 Ga. 456, 175 S.E. 2d 649 (1970), cert. granted, 400 U.S. 804, 91 S.Ct. 10, 27 L.Ed.2d 35 (1970); Davis v. Mobile County Board of School Commissioners, 420 F.2d 883 (5th Cir. 1970), cert. granted, 400 U.S. 804, 91 S.Ct. 11, 27 L.Ed.2d 43 (1970).

We are profoundly aware of the potential impact of the decisions anticipated in the cases cited above. But we believe the Supreme Court has plainly told us not to suspend efforts to disestablish racially separate school systems and to eliminate racial segregation "root and branch"¹ while awaiting decision on the ultimate question of to what degree such efforts must include racial balance in school districts.

In April of 1968 in a unanimous opinion the Supreme Court stated that the time to end dual school systems was "now."

"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,\' Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256; `the context in which we must interpret and apply this language of Brown II, Brown v. Board of Education of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 to plans for desegregation has been significantly altered.\' Goss v. Board of Education of City of Knoxville, Tenn., 373 U.S. 683, 689, 83 S. Ct. 1405, 1409, 10 L.Ed.2d 632. See Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288. 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.

"The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. 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." Green v. County School Board of Kent County, 391 U.S. 430, 438-439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).

In October of 1969, again unanimously, and this time by brief per curiam, the Court declared:

"Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools. Griffin v. County School Board, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256 (1964); Green v. County School Board of New Kent County, 391 U.S. 430, 438-439, 442, 88 S.Ct. 1689, 1694-1695, 1696, 20 L.Ed.2d 716 (1968). Accordingly,

It is hereby adjudged, ordered, and decreed:

"1. The Court of Appeals\' order of August 28, 1969, is vacated, and the case is remanded to that court to issue its decree and order, effective immediately, declaring that each of the school districts here involved may no longer operate a dual school system based on race or color, and directing that they begin immediately to operate as unitary school systems within which no person is to be effectively excluded from any school because of race or color." Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

In still another brief and unanimous per curiam, the Supreme Court said on December 13, 1969:

"(2) By way of interim relief, and pending this Court\'s disposition of the petition for certiorari, the judgment of the Court of Appeals is vacated insofar as it deferred desegregation of schools until the school year 1970-1971.

"(3) By way of interim relief pending further order of this Court, the respondent school boards are directed to take no steps which are inconsistent with, or which will tend to prejudice or delay, a schedule to implement on or before February 1, 1970, desegregation plans submitted by the Department of Health, Education & Welfare for student assignment simultaneous with the other steps ordered by the Court of Appeals." Carter v. West Feliciana Parish School Board, 396 U. S. 226, 228, 90 S.Ct. 467, 469, 24 L.Ed. 2d 382 (1969).

Much more recently the Supreme Court has twice refused to delay the integration proceedings in the principal case now under the consideration of that court. Swann v. Charlotte-Mecklenburg Board of Education, 399 U.S. 926, 90 S. Ct. 2247, 26 L.Ed.2d 791 (1970), and the unpublished Order by the Chief Justice, dated August 25, 1970, denying on behalf of the Court the Application for Stay of an Order of the United States District Court for the Western District of North Carolina, dated August 7, 1970. See also Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1969) (granting temporary injunctive relief); Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L. Ed.2d 477 (1970).

Over and above these commands for action upon desegregation plans, it should be noted that what has actually been suspended in our instant case is not a broad federal court order for desegregation of Nashville & Davidson County Schools — in practical effect it is all proceedings and hearings concerning the formulation of such an order.

Further, the instant case is growing hoary with age. It is actually a consolidation of two cases. The first case, Kelley v. Board of Education of the City of Nashville, Civ. A. No. 2094, was filed in September of 1955; and the second case, Maxwell v. County Board of Education of Davidson County, Civ. A. No. 2956, was filed in September of 1960. A whole generation of school children has gone through the complete school system of Metropolitan Nashville in the intervening years under circumstances now determined to have been violative of their constitutional rights. A second generation of school children is now attending school under similar circumstances — and the remedy is not in sight.

The entire history of the school desegregation problem from Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), to date can be traced in this case in the lengthy proceedings in the District Court, in this Court, and in the United States Supreme Court.²

This case finally came close to decision in a careful opinion filed by the District Judge on July 16, 1970 and in the judgment entered by him on August 13, 1970, requiring the Nashville Board of Education to submit a desegregation plan for the court's consideration and approval, all pursuant to the decisions of the United States Supreme Court previously referred to in this opinion. Brown v. Board of Education, supra; Alexander v. Holmes County Board of Education, supra; Green v. County School Board of Kent County, supra, and Carter v. West Feliciana Parish School Board, supra.

It would be well for those in authority in Nashville and Davidson County to read the able opinion of Judge Miller, which we now revitalize by our present order. The emphasis in the quotation which follows is that of this court:

"It is the Court's view that in the area of school zoning, school boards will fulfill their affirmative duty to establish a unitary school system only if attendance zone lines are drawn in such way as to maximize pupil integration. In drawing such lines, the defendant school board may properly consider in the total equation such factors as capacities and locations of schools, physical boundaries, transportation problems, and cost; however, none of these considerations can supersede the importance of the primary goal of maximizing integration.

"In looking to the facts of this case, the Court finds that many of the elementary and secondary school zone lines in the Nashville and Davidson County...