Geier v. University of Tennessee, s. 77-1621
| Decision Date | 13 April 1979 |
| Docket Number | Nos. 77-1621,77-1623 and 77-1625,s. 77-1621 |
| Citation | 597 F.2d 1056 |
| Parties | Rita Sanders GEIER et al., Plaintiffs-Appellees, United States of America, Intervening Plaintiff-Appellee, Raymond Richardson, Jr., et al., Intervening Plaintiffs-Appellees, v. UNIVERSITY OF TENNESSEE et al., Defendants-Appellants, Tennessee Higher Education Commission, Defendant-Appellant, State Board of Regents, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas W. Steele, Gullett, Steele, Sanford & Robinson, Nashville, Tenn., for defendants-appellants in Nos. 77-1621 and 77-1625.
George E. Barrett, Barrett, Lenahan, Kniffen & Ray, Nashville, Tenn., for Geier.
Brian K. Landsberg, Robert J. Reinstein, Dept. of Justice, Washington, D. C., for the United States.
D. Bruce Shine, Ferguson & Shine, Kingsport, Tenn., Joseph O. Fuller, Fuller & Tunnell, Kingsport, Tenn., for State Board of Regents.
Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, New York City, for Richardson.
Alfred H. Knight, III, Willis & Knight, Nashville, Tenn., for defendants-appellants in No. 77-1623.
Before LIVELY and ENGEL, Circuit Judges, and PECK, Senior Circuit Judge.
The issues in this appeal relate to court-ordered desegregation of public institutions of higher education in Tennessee. The appellants are the University of Tennessee, its president and board of trustees (hereafter referred to collectively as UT Board) and the Tennessee Higher Education Commission (hereafter THEC), all defendants below. The appellees are the original plaintiffs, Rita Sanders Geier et al., the United States of America and Raymond Richardson, Jr. et al., intervening plaintiffs, and the State Board of Regents (hereafter SBR), a defendant below. This appeal is primarily
concerned with orders of the district court directing that two public institutions of higher education in Nashville, University of Tennessee at Nashville, (UT-N) and Tennessee State University (TSU) be merged into a single institution by July 1, 1980, under the governing authority of SBR.
Historically public higher education in Tennessee was segregated by law. The University of Tennessee was chartered in 1807 and was operated exclusively for white students from at least 1870 until 1960. 1 TSU was founded in 1912 for the express purpose of educating black students. It was the only public institution of higher education in Tennessee which accepted black students prior to 1960. Over a period of years a number of regional state colleges and universities were established, all for the education of white students. In 1947 the University of Tennessee established a "center" at Nashville for the purpose of providing evening instruction for part-time students who worked in state government, business and industry in Nashville. As part of the University of Tennessee system, it was established as an all-white institution. At the time this suit was filed UT-N was a two-year extension college which granted no degrees and taught no advanced courses. At that time TSU remained virtually all black. UT-N is located in downtown Nashville less than five miles from the campus of TSU.
Control of the public institutions of higher education in Tennessee has not been under a single governing body in the recent past. The University of Tennessee has always been governed by its own board. For many years TSU was governed by the State Board of Education. In 1972 the Tennessee Legislature created the State Board of Regents which is the governing authority for regional colleges and universities and the community colleges of Tennessee. Governance of TSU was transferred from the State Board of Education to the Board of Regents. TSU differs from all of the other institutions governed by SBR in that it is a land grant college. Further, all of the institutions under the Board of Regents except TSU and Memphis State are regional colleges or universities. TSU has traditionally drawn students from throughout the State and from outside Tennessee.
In 1967 the Legislature created the Tennessee Higher Education Commission. Although THEC has some authority over all public institutions of higher learning in Tennessee, insofar as this record is concerned, there is no evidence that prior to being made a party to this suit it ever used its authority in any way to facilitate desegregation in these institutions.
This litigation began in 1968 when the appellee Geier (nee Sanders) sought an injunction to prohibit the contemplated expansion of UT-N, to prevent the maintenance of unequal facilities at TSU and white institutions of higher learning and to prevent the maintenance of segregated institutions by action or inaction of the defendants. In addition to the parties to this appeal, the governor of Tennessee and various state officials were named defendants. The claims for relief were based on the assertion that it was unlawful for Tennessee to continue to operate a dual system of public higher education and that the proposed expansion of UT-N would solidify and perpetuate segregation in the public colleges and universities of Tennessee. The intervening complaint of the United States sought much broader relief. Asserting that the maintenance of one black university and a number of white universities by the State of Tennessee violated the Equal Protection Clause of the Fourteenth Amendment and that students at TSU received The defendants admitted in their answers that segregation had not been eliminated in the public institutions of higher education in Tennessee, but alleged that progress was being made. They specifically denied that the proposed expansion of UT-N would strengthen or perpetuate segregation.
inferior educational opportunities, the intervenor sought a court order requiring the State to dismantle the dual system and equalize educational opportunities at all public institutions of higher education throughout the State. The United States specifically sought an order that the defendants be required to submit a plan of desegregation and that expansion of UT-N be enjoined.
Following a hearing the district court issued an order on August 22, 1968 denying an injunction to prohibit expansion of UT-N and directing the defendants to prepare and submit to the court a plan for effective desegregation of public higher education in Tennessee. On August 23, 1968 the district court filed an opinion which is reported as Sanders v. Ellington, 288 F.Supp. 937 (M.D.Tenn.1968). Describing the history of public educational opportunities for Negroes in Tennessee as "not a pretty one," the court found that racial requirements for admission to Tennessee's public colleges and universities had been formally abolished and that all were operating under an "open-door policy." However, the court further found that "the dual system of education created originally by law has not been effectively dismantled." Id. at 940. In denying an injunction against expansion of UT-N the district court specifically found that there was nothing in the record to indicate that the University of Tennessee had any intention of making its Nashville center a degree-granting day institution. On this basis the court found that the proposed expansion of UT-N would not necessarily perpetuate a dual system of public higher education.
One of the primary arguments of the state defendants before the district court was that they had discharged their constitutional duty to desegregate higher education in Tennessee by removing all racial requirements for admission to the various institutions and adopting an "open-door" admissions policy. This argument relied primarily on the opinion of Chief Judge Frank M. Johnson, Jr. in the three-judge case of Alabama State Teachers Association v. Alabama Public School and College Authority (hereafter referred to as ASTA, 289 F.Supp. 784 (M.D.Ala.1968), Aff'd per curiam, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). In ASTA the court declined to enjoin construction of a four-year, degree-granting extension of Auburn University in Montgomery where the state operated the all-black Alabama State College. In ASTA the court noted the fundamental differences between compulsory free education at elementary and secondary levels and higher education which is elective and requires payments by students, and held that the "basic requirement" of the affirmative duty to dismantle a dual system of higher education is met when good faith is exercised in dealing with admissions, faculty and staff. 289 F.Supp. at 789-90.
In his opinion Judge Gray stated specifically that he was not basing his denial of an injunction against expansion of UT-N on the holding in ASTA. Citing holdings of the Supreme Court of the United States, particularly Green v. County School Board, 391 U.S. 430, 88 S.Ct. 168, 20 L.Ed.2d 716 (1968), Judge Gray found that the open admissions policy which the State of Tennessee had instituted did not discharge the affirmative duty imposed by the Fourteenth Amendment to dismantle a dual system of higher education in a situation where that policy had produced "no genuine progress toward desegregation and no genuine prospect of progress." 288 F.Supp. at 942. The court then ordered the state defendants to submit a plan "designed to effect such desegregation of the higher educational institutions of Tennessee, with particular attention to Tennessee A & I State University (the former name of TSU) as to indicate the dismantling of the dual system now existing." Id. The district court In obedience to the court's order the state defendants filed a plan on April 1, 1969 which was little more than a recommendation for a series of actions, described in very general terms. This plan treated the identifiably white institutions and TSU separately. It proposed that the white schools attempt to increase the...
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