Geier v. Alexander, 5077.

• Decision Date: 25 September 1984
• Docket Number: No. 5077.,5077.
• Parties: Rita Sanders GEIER, et al., Plaintiffs, United States of America, Raymond Richardson, Jr., et al., H. Coleman McGinnis, et al., Plaintiffs-Intervenors, v. Lamar ALEXANDER, et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

593 F. Supp. 1263

Rita Sanders GEIER, et al., Plaintiffs, United States of America, Raymond Richardson, Jr., et al., H. Coleman McGinnis, et al., Plaintiffs-Intervenors, v. Lamar ALEXANDER, et al., Defendants.

No. 5077.

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

Stipulation of Settlement August 31, 1984.

Decided September 25, 1984.

Aleta Arthur, John L. Norris, Hollins, Wagster & Yarbrough, Nashville, Tenn., for plaintiff-intervenors (Class Representative of plaintiff class) H. Coleman McGinnis, John Arthur, Ethel Robertson, Harry Fuchs, Lyle McLevain, Darlene Marsh, Martin Deschenes, Delores Pierce and Millicent Yeargin.

Lewis Laska, J.D., Ph.D. Associate Professor, School of Business, Tennessee State University, Nashville, Tenn., for amicus curiae.

Michael J. Passino, George E. Barrett, Barrett & Ray, P.C., Nashville, Tenn., for plaintiffs.

Avon N. Williams, Jr., Richard H. Dinkins, Nashville, Tenn., Jack Greenberg, Joel Berger, Theodore M. Shaw, William Lann Lee, New York City, and Julius LeVonne Chambers, Charlotte, N.C., for Raymond Richardson, et al.

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

Michael Terry, Deputy Atty. Gen., Stephen Doughty, Richard L. Colbert, Asst. Attys. Gen., Nashville, Tenn., Beauchamp Brogan, University of Tennessee, Knoxville, Tenn., James W. Drinnon, Jr., Asst. General Counsel, University of Tennessee, Knoxville, Tenn., for defendants, including Brown, Nicks and Humphries.

Joe B. Brown, U.S. Atty., James C. Thomason, Asst. U.S. Atty., Nashville, Tenn., Nathaniel Douglas, Levern M. Younger, Gen. Litigation Section, Civil Rights Div., U.S. Dept of Justice, Washington, D.C., for plaintiff-intervenor U.S.A.

WISEMAN, Chief Judge.

MEMORANDUM AND ORDER

Before the Court is the Stipulation of Settlement proposed in this case by the original plaintiffs, RITA SANDERS GEIER, et al., plaintiff intervenors, RAYMOND RICHARDSON, JR., et al., plaintiff intervenors, H. COLEMAN McGINNIS, et al., and defendants represented by the Attorney General of the State. The Attorney General has announced to the Court that he has obtained the concurrence in the proposed Stipulation of Settlement of the Governor, the Comptroller of the Treasury, the State Board of Regents, the University of Tennessee Board of Trust, and the Tennessee Higher Education Commission. The Settlement has been approved by counsel representing the NAACP Legal Defense Fund.

Absent from the proposed Settlement are the signatures of attorneys for the Civil Rights Division, United States Department of Justice. The Department filed objections to the Settlement. After oral argument on these objections heard August 13, 1984, the Court directed the parties to meet to consider the objections of the Department, and attempt to resolve these differences. On August 31, 1984, the Court was advised that agreement could not be reached with the Department, but all other parties submitted a slightly revised order bearing the signatures of all counsel except the United States Attorney General.

The Department submitted to the Court its proposed alternative to the order of the remaining parties. The Court has examined the proposed alternative very carefully and compared it to the proposed settlement of the other parties.

No party denies that greater progress can and must be made toward eliminating the dual system of higher education in Tennessee. The major difference between the Department of Justice's position and that of the remaining parties lies in whether numerical goals and objectives should be established, and in disagreement over some of the remedial methods chosen.

One of the remedial measures proposed is designed to increase the number of black professionals in Tennessee, and the number of blacks in the professional schools. For five years, beginning in 1985, 75 black sophomore students will be selected for a professional career track to include counseling, guidance and early admission if minimum admission standards are met. The Justice Department objects to this program, insisting that it is beyond the remedial power of the Court. It argues that there must be a showing that the students selected for the program are victims of the racial discrimination challenged in this case. It would expand the holding of the Memphis Firefighters case to school desegregation cases and require "victim specificity." See Firefighters Local Union No. 1784 v. Stotts, ___ U.S. ___, ___ and n. 9, 104 S.Ct. 2576, 2587 and n. 9, 81 L.Ed.2d 483 (1984). See also University of California Regents v. Bakke, 438 U.S. 265, 307-09, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (1978).

This Court is conscious of its role in the governmental scheme. Neither in this case, nor in any other, does this Court intend to invade the legislative prerogative nor engage in social engineering. The proposed measures do neither. They are part of a comprehensive remedial plan addressing a recognized but perverse problem. While this Court is not convinced that "victim specificity" is the standard applicable in cases involving public education, it concludes that, even if applicable, the standard is not as narrowly circumscribed in the context of public education as compared to its application in employment cases under Title VII. Public education represents a basic foundation of our society. Accordingly, the Court must consider a much broader range of factors in evaluating the (1) presence and effect of racial discrimination in a state's university system and (2) the appropriate methods by which to eradicate its influence. Further, the standard of victim specificity is not as exacting when considering the effects of past and present racial discrimination as it impacts on persons attending or who will attend public colleges and universities as compared to the employees at a particular work location. This Court need not trace a precise nexus between a specific black child and particular acts of racial discrimination to conclude that the individual has suffered the effects of racial discrimination. Rather, it is sufficient for this Court to base its remedial order on a finding that members of the defined group have suffered the effects of specific acts of discrimination. Bakke, 438 U.S. at 307-08, 98 S.Ct. at 2757; United Jewish Organizations v. Carey, 430 U.S. 144, 167-68, 97 S.Ct. 996, 1010-11, 51 L.Ed.2d 229 (1977).

This Court rejects the position of the Justice Department that an evidentiary record must be compiled to prove that the black youth of Tennessee are victims of discrimination and that remedial programs will benefit them specifically and exclusively. As Justice Burger noted in Milliken v. Bradley, 433 U.S. 267, 287, 97 S.Ct. 2749, 2760, 53 L.Ed.2d 745 (1977) (Milliken II), a court may consider both educational and cultural forces present in society in reaching the conclusion that a certain group of children have been isolated from society and subjected to disparate and discriminatory treatment. In dealing with the broad and paramount issue of public education, this Court takes judicial notice of the long history of social, economic and political oppression of blacks in Tennessee — a history marked by years of slavery followed by years of Jim-Crow laws. It is the past and present state of Tennessee's universities that the Court identifies as the specific instance of racial discrimination; its effects are pervasive throughout the black community, affecting practically all black men, women, and children in the state.

A classification that aids persons identified as members of a victim group is permissible provided there has been some judicial, administrative or legislative finding of constitutional or statutory violations. Bakke 438 U.S. at 307, 98 S.Ct. at 2757. At an earlier stage of this case, Judge Gray found an unconstitutional de jure segregation in Tennessee higher education. Sanders v. Ellington, 288 F.Supp. 937, 942 (M.D.Tenn.1968). This proposed decree not only recognizes the existence of residual effects, it recognizes that previous remedial measures have not succeeded in removing such effects. Such a finding creates a compelling interest in vindicating the legal rights of the victims, even if it requires the extension of certain preferences formulated to aid the individuals overcome the effects of the past unlawful acts. Id. This Court is empowered, if not compelled, to implement a remedy formulated to reverse the effects of such treatment. Geier v. University of Tennessee, 597 F.2d 1056, 1065 (6th Cir.1979). This Court is convinced that its order today is tailored to redress the nature and extent of violations against specific victims of racial discrimination. Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544, 47 L.Ed.2d 792 (1976); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971); Louisiana v. United States, 380 U.S. 145, 156, 85 S.Ct. 817, 823, 13 L.Ed.2d 709 (1965).

The decree further sets out a five-year interim objective of at least 50 percent white faculty and administration at TSU, and a 1993 objective of 50 percent white full-time undergraduates. The Department objects to both of these as being unconstitutional "quotas."

The heart of the problem is traditionally black TSU. This has been recognized by this Court in previous decrees. See Sanders v. Ellington, 288 F.Supp. 937, 943 (M.D.Tenn.1968); Geier v. Dunn, 337 F.Supp. 573, 580, 581 (M.D.Tenn.1972); Geier v. Blanton, 427 F.Supp. 644, 661 (M.D.Tenn.1977). To paraphrase the Supreme Court in the landmark language of Swann v. Charlotte-Mecklenburg, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), it is still possible to identify TSU as a black school by reference to its student body, the racial composition of its teachers and staff, the quality of its school buildings and equipment, and the schedules of its athletic teams. Where...