Geier v. Alexander

Citation801 F.2d 799
Decision Date05 September 1986
Docket NumberNo. 84-6055,84-6055
Parties42 Empl. Prac. Dec. P 36,760, 55 USLW 2160, 35 Ed. Law Rep. 51 Rita Sanders GEIER, et al., Plaintiffs-Appellees, United States of America, Plaintiff-Intervenor-Appellant, Raymond A. Richardson, Jr., et al., Plaintiffs-Intervenors-Appellees, H. Coleman McGinnis, et al., Plaintiffs-Intervenors-Appellees, v. Lamar ALEXANDER, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Michael A. Carvin (argued), U.S. Dept. of Justice, Washington, D.C., Joe B. Brown, U.S. Atty., Nashville, Tenn., Miriam Eisenstein, (Lead), George Schneider, Nathaniel Douglas, Lavern M. Younger, General Litigation Section, Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., Walter W. Barnett, Appellate Section, for U.S., plaintiff-intervenor-appellant.

W.J. Michael Cody (argued), Atty. Gen. of Tennessee, Nashville, Tennessee, R. Stephen Doughty & Richard Colber, for State defendant.

George E. Barrett, Barrett and Ray, Nashville, Tenn., for Rita S. Geier.

Avon N. Williams, Jr., Richard Dinkins, Nashville, Tenn., Joel Berger, (Lead) argued, Legal Defense Fund, Theodore M. Shaw, Julius LeVonne Chambers, New York City, for Raymond Richardson, et al.

John Norris, Hollins, Wagster and Yarbrough, Nashville, Tenn., for H. Coleman McGinnis, et al.

Julian W. Blackshear, Jr., Robert Smith, Petway and Blackshear, Nashville, Tenn., for amicus curiae TSU Nat. Alumni Ass'n.

Beauchamp Brogan, University of Tennessee, James W. Drinnon, Jr., Assistant General Counsel, Administrative Building, Knoxville, Tenn., for defendants-appellees.

Lewis Laska, Associate Professor, School of Business, Tennessee State University, Nashville, Tenn., pro se.

Robert Greene, Lead Counsel, Nashville, Tenn., for Tennessee State Nat. Alumni

Before LIVELY, Chief Judge, MILBURN, Circuit Judge, and PECK, Senior Circuit Judge.

LIVELY, Chief Judge.

The United States, an intervenor in an action seeking desegregation of public institutions of higher learning in Tennessee, appeals from a consent decree containing affirmative action provisions. The original plaintiffs, intervening individual plaintiffs, and their successors and the State of Tennessee defendants signed the consent decree and agreed to its entry. Of the parties remaining in the case after more than 15 years of litigation, only the United States objected to the consent decree. In approving the consent decree the district court found that there was a compelling interest in eliminating the residual effects of de jure segregation in Tennessee's higher education system, that less drastic remedial orders had failed to achieve this result, and that the order was designed to achieve the goal of "a system of higher education in Tennessee tax supported colleges and universities in which race is irrelevant, in which equal protection and equal application of the laws is a reality." Geier v. Alexander, 593 F.Supp. 1263, 1267 (M.D.Tenn.1984).

I.

This action began with a complaint by several individuals seeking to enjoin the University of Tennessee from constructing a new facility to expand its program at a non-degree granting "center" in Nashville. The reasoning of the plaintiffs was that any expansion of the University of Tennessee in Nashville (UT-N) would affect the efforts of Tennessee A & I State University, a predominantly black institution, to desegregate its student body and faculty. The United States intervened in the action as a plaintiff pursuant to Title IX of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000h-2 (1982). The intervening complaint of the United States went beyond the request for an injunction and requested the court to "order the State defendants to present a plan calculated to produce meaningful desegregation of the public universities of Tennessee." Sanders v. Ellington, 288 F.Supp. 937, 939 (M.D.Tenn.1968).

The district court found that six years elapsed after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), before racial requirements for admission to Tennessee's public universities and colleges were abolished. Although all institutions were following a policy of open-door admissions by 1968, the district court found that "the dual system of education created originally by law has not been effectively dismantled." Id. at 940. Upon concluding that the University of Tennessee had no intention of converting its Nashville center into a degree-granting institution, the district court denied the original plaintiffs' request for an injunction. However, relying principally on Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the district court stated it was "convinced that there is an affirmative duty imposed upon the State by the Fourteenth Amendment to the Constitution of the United States to dismantle the dual system of higher education which presently exists in Tennessee." Id. at 942. In accordance with this conclusion the district court ordered the defendants (all of whom are state officials, agencies or institutions) to submit a plan "designed to effect such desegregation of the higher educational institutions in Tennessee, with particular attention to Tennessee A & I State University, as to indicate the dismantling of the dual system now existing." Id. The defendants did not appeal.

The defendants submitted a plan to the court which relied primarily on the efforts of individual predominantly white institutions to expand and intensify efforts to recruit black students and faculty. The plan called for Tennessee State University (TSU), the former Tennessee A & I State University, to seek to recruit white students and faculty and to develop and publicize academic programs that would attract white as well as black students from the Nashville area. The individual plaintiffs and the United States filed objections to the plan and after a hearing the district court found that the plan lacked specificity. Instead of disapproving the plan, the district court directed the defendants to file a report showing what had been done to implement each individual component of the plan.

The defendants filed a report which showed some progress in attracting black students to the formerly all-white institutions, but little improvement in the number of black faculty at those schools and virtually no progress in desegregating TSU. The individual plaintiffs filed a motion for further relief, contending that the plan and report failed to offer a scheme for dismantling the dual system of public higher education as ordered by the court. While this motion was under consideration a new report showed that TSU remained 99.7% black and that its entering class in the fall of 1970 was 99.9% black. The district court found that so long as TSU remained overwhelmingly black it could not be found that the Tennessee defendants had dismantled the dual system or that they were "in any realistic sense, on their way toward doing so." Geier v. Dunn, 337 F.Supp. 573 (M.D.Tenn.1972).

The district court found that an "open door policy, coupled with good faith recruiting efforts, ... is sufficient as a basic requirement " in cases involving the desegregation of institutions of higher learning. Id. at 580 (italics in original). However, when this basic requirement fails to accomplish the goal of eliminating identifiably "white" and "black" institutions, something more is required. In determining what the court should require of the defendants to comply with their affirmative duty to dismantle the dual system, the district judge stated that he would rely on traditional equitable principles, balancing the various interests involved, considering the workability of any proposed remedy and tailoring the "gravity" of the relief required to the "gravity" of the situation to be remedied. The defendants were directed to present a plan to the court by March 15, 1972 that would provide for substantial desegregation of the TSU faculty and for allocation of programs to TSU to ensure a substantial white presence on the TSU campus. Id. at 581.

The defendants submitted several plans and amendments in ensuing years, and the district court ordered that some courses and fields of study be offered exclusively in the Nashville area at TSU. Contrary to the district court's earlier expectations the University of Tennessee did convert UT-N into a degree-granting institution and this exacerbated TSU's problems in attracting white students. All plaintiffs, including the United States, proposed a merger of TSU and UT-N with TSU as the surviving institution. The district court held a month-long evidentiary hearing on this proposal in 1976. After considering voluminous records and a great deal of testimony the district court found steady, but slow progress in attracting black students and faculty to the former white institutions, but, as before, little or no progress in converting TSU from a one-race university. The court concluded that the plans used over the eight years that this litigation had been in progress had not worked and showed no prospect of working. In light of this conclusion the district court ordered the merger of TSU and UT-N into a single institution under the Board of Regents, a body that governed all regional state institutions of higher learning in Tennessee as well as TSU. The district court chose this "drastic remedy" because "the State's actions have been egregious examples of constitutional violations." Geier v. Blanton, 427 F.Supp. 644, 660 (M.D.Tenn.1977).

This court affirmed the district court, Geier v. University of Tennessee, 597 F.2d 1056 (1979), and the Supreme Court denied certiorari, 444 U.S. 886, 100 S.Ct. 180, 62 L.Ed.2d 117 (1979). In affirming, this court agreed with the district court's original conclusion that the Green v. County School Board pronouncement of an affirmative duty to remove all vestiges of state-imposed segregation applies to public...

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