463 F.2d 732 (6th Cir. 1972), 71-1778, Kelley v. Metropolitan County Bd. of Ed. of Nashville and Davidson County, Tenn.

Docket Nº:71-1778, 71-1779.
Citation:463 F.2d 732
Party Name:Robert W. KELLEY et al., Henry C. Maxwell, Jr., et al., Plaintiffs-Appellees-Cross-Appellants, v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, C. R. Dorrier, Chairman, et al., Defendants-Appellants-Cross-Appellees.
Case Date:May 30, 1972
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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463 F.2d 732 (6th Cir. 1972)

Robert W. KELLEY et al., Henry C. Maxwell, Jr., et al., Plaintiffs-Appellees-Cross-Appellants,

v.

METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, C. R. Dorrier, Chairman, et al., Defendants-Appellants-Cross-Appellees.

Nos. 71-1778, 71-1779.

United States Court of Appeals, Sixth Circuit.

May 30, 1972

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Avon N. Williams, Jr., Nashville, Tenn. (Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Sylvia Drew, New York City, on the brief), for plaintiffs as appellees and cross-appellants.

Dick L. Lansden, Nashville, Tenn. (Harlan Dodson, Jr., Hamilton Gayden, Jr., Nashville, Tenn., on the brief), for defendants as appellants and cross-appellees.

K. William O'Connor, Civil Rights Div., Washington, D. C., for United States, amicus curiae.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

In this case we do not write on a clean slate. What follows describes an incredibly lengthy record and settled law pertaining to segregated schools. We start with this latter, as recited in the United States Constitution and in three historic, unanimous decisions of the United States Supreme Court--the last dated 1971.

"[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." U.S.Const. Amend. XIV, § 1.

We conclude that in the field of public education the doctrine of "separate

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but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

[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, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256; "the context in which we must interpret and apply this language [of Brown II] to plans for desegregation has been significantly altered." Goss v. Board of Education, 373 U.S. 683, 689, 83 S.Ct. 1405, 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. Green v. County School Board of Kent County, 391 U.S. 430, 438-439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

After 17 years of continuous litigation the Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, appeals from a final order of the United States District Court for the Middle District of Tennessee requiring the School Board to take the necessary steps to end the racially separated school systems which it had previously been found to be operating. This order was a direct result of an order of this court approving the District Court's findings of violations of equal protection and vacating a stay of proceedings. In it we had noted:

[T]he 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. Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 436 F.2d 856, 858 (6th Cir. 1970).

The order of the District Judge is the first comprehensive and potentially effective desegregation order ever entered in this litigation. The District Judge tells us that now the remedy is at least in sight.

THE APPELLATE ISSUES

On appeal defendants contend 1) that the District Court had no jurisdiction to hear and determine this case because of failure to comply with Rule 23 of the Federal Rules of Civil Procedure and because of changes in the status of the original party plaintiffs since the commencement of these suits; 2) that the

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District Court's order is invalid because it requires integration of schools according to a fixed racial ratio, in violation of the rules set out in Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 23, 24, 91 S.Ct. 1267, 28 L.Ed.2d 554 and 3) that the plan ordered into effect should be reconsidered because of what the defendant School Board claims to be adverse effects on the health and safety of school children involved.

Plaintiffs as cross-appellants claim 1) that the District Court erred in adopting the Department of Health, Education and Welfare plan when the plan proposed by plaintiffs would have achieved a greater degree of integration; and 2) that the HEW plan should have been rejected because it places the burden of desegregation disproportionately upon Negro children.

HISTORY OF THE NASHVILLE-DAVIDSON COUNTY CASE

The history of school desegregation from Brown v. Board of Education, supra, to date can be traced in this case in the proceedings in the District Court, in this Court, and in the United States Supreme Court: Kelley v. Board of Education of City of Nashville, 139 F.Supp. 578 (M.D.Tenn.1956) (Dissolution of three-judge court); Kelly v. Board of Education of City of Nashville, 159 F.Supp. 272 (M.D.Tenn.1958) (Disapproval of integration plan and grant to Board of additional time to file a new plan); Kelley v. Board of Education of City of Nashville, 8 R.R.L.R. 651 (M.D.Tenn.1958) (Approval of 12-year plan); Kelley v. Board of Education of City of Nashville, 270 F.2d 209 (6th Cir. 1959) (Upholding District Court order); Kelley v. Board of Education of City of Nashville, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959) (Denial of certiorari); Maxwell v. County Board of Education of Davidson County, 203 F.Supp. 768 (M.D.Tenn.1960); Maxwell v. County Board of Education of Davidson County, 301 F.2d 828 (6th Cir. 1962), reversed in part and remanded sub nom. Goss v. Board of Education of Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, 293 F.Supp. 485 (M.D.Tenn.1968) (Further proceedings in a consolidation of Maxwell, supra, and Kelly, supra); Kelley v. Metropolitan County Board of Education, 317 F.Supp. 980 (M.D.Tenn.1970); Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 436 F.2d 856 (6th Cir. 1970) (Memorandum opinion of the U.S. District Court (M.D.Tenn.) (filed June 28, 1971); Judgment (filed July 15, 1971)).

This case began in 1955 on the heels of the United States Supreme Court's decision in Brown v. Board of Education, supra, holding that "separate educational facilities are inherently unequal," supra, 347 U.S. at 495, 74 S.Ct. at 692. Plaintiffs in a class action sought invalidation of the Tennessee school laws, T.C.A. § 49-3701 et seq., which in specific terms required segregation of school pupils by race. (See Appendix A) In 1956 a three-judge federal court which had been convened to pass on the constitutionality of the state statute was dissolved when the defendant Board of Education conceded the unconstitutionality of the state statute by which it had previously been governed. Kelley v. Board of Education of City of Nashville, 139 F.Supp. 578 (M.D. Tenn.1956). The case was then remanded to the United States District Court for the Middle District of Tennessee. The District Judge determined that the case was an appropriate class action under Rule 23 of the Federal Rules of Civil Procedure (Record, Min. Book 19 at 683). He ordered the defendant School Board to prepare and present a plan for desegregation of the Nashville schools.

Before judgment was entered, the State of Tennessee in January 1957 adopted a Parental Preference Law, T.C.A. § 49-3704, Pub.Acts 1957, cc. 9-13, 2 Race Rel.L.Rep. 215 (1957). (See Appendix A) This statute provided for separate white, black, and mixed schools, with attendance to be determined by

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parental preference. The District Court in September of 1957 held this statute to be unconstitutional on its face. 2 Race Rel.L.Rep. 970 (1957).

The defendant School Board thereupon (and nonetheless) presented a parental preference plan for white, black, and mixed schools substantially the same as that called for by the unconstitutional state law.

In February of 1958 the District Court held the School Board plan to be unconstitutional.

Later in the same year a grade-a-year desegregation plan was submitted by defendant School Board, approved by the...

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