Goss v. BOARD OF EDUCATION OF CITY OF KNOXVILLE, TENN.

• Decision Date: 30 June 1971
• Docket Number: No. 20834.,20834.
• Citation: 444 F.2d 632
• Parties: Josephine GOSS et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF KNOXVILLE, TENNESSEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

444 F.2d 632 (1971)

Josephine GOSS et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF KNOXVILLE, TENNESSEE, et al., Defendants-Appellees.

No. 20834.

United States Court of Appeals, Sixth Circuit.

June 22, 1971.

Motion Denied June 30, 1971.

Norman J. Chachkin, New York City, for plaintiffs-appellants; Carl A. Cowan, Knoxville, Tenn., Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Sylvia Drew, New York City, on brief.

Sam F. Fowler, Jr., Knoxville, Tenn., for defendants-appellees.

Before WEICK and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

Motion Denied June 30, 1971. See 91 S.Ct. 2293.

O'SULLIVAN, Senior Circuit Judge.

This case has to do with desegregation of the public schools of Knoxville, Tennessee. The United States District Court in Knoxville, the United States Court of Appeals for the Sixth Circuit and, to a lesser degree, the Supreme Court of the United States have, since 1957, been attempting to come up with a plan for the Knoxville schools that will be obedient to the decision of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Such endeavor has produced the following opinions and decisions: Goss v. Board of Education, 186 F.Supp. 559 (E.D.Tenn. 1960); Goss v. Board of Education, 301 F.2d 164 (6th Cir. 1962); Goss v. Board of Education, 373 U.S. 683, 688, 689, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963); Goss v. Board of Education, 305 F.2d 523 (6th Cir. 1962); Goss v. Board of Education, 270 F.Supp. 903 (E.D.Tenn. 1967); Goss v. Board of Education, 406 F.2d 1183 (6th Cir. 1969); Goss v. Board of Education, 320 F.Supp. 549 (E.D. Tenn.1970).

No effort was made to obtain Supreme Court review of the last of our above decisions. Without such effort, and on November 17, 1969, plaintiffs filed a pleading entitled Motion for Immediate Relief, which asked that "defendant be required to convert to a unitary school system at once and without any further delay." This notwithstanding that our last unappealed decision had held that Knoxville had already converted its schools into a "unitary school system." The District Court, however, entertained the motion. Extensive proofs were taken and another plenary opinion entered by District Judge Robert Taylor on July 1, 1970 — Goss v. Board of Education, 320 F.Supp. 549 (E.D.Tenn.1970). It is this decision which is the subject of the appeal now before us.

Except for some commands as to improvement in faculty desegregation, some revision of the boundaries of some zones, some improvement in the school record keeping, and correction in enforcement of its transfer policy, Judge Taylor's opinion and order denied the relief sought by plaintiffs' Motion for Immediate Relief. During the reception of proofs, an interim order was entered on April 3, 1970, limiting consideration to matters that had arisen since June 7, 1967. That was the date of the District Court order which had been affirmed by this Court in its unappealed decision, announced February 10, 1969. It was the District Judge's view that his decision of June 7, 1967, Goss v. Board of Education, 270 F.Supp. 903, so approved by us on February 10, 1969, Goss v. Board of Education, 406 F.2d 1183, was res judicata, or at least the law of the case, as to all matters adjudicated by the 1967 decision.

In Goss v. Board of Education, 270 F.Supp. 903 (E.D.Tenn.1967), District Judge Taylor had held as follows:

"Since the Knoxville School System is desegregated under the plan which has been in operation since the school year 1963-64 and since the preponderance of the evidence shows that the plan is not being operated to deprive Negro students of their constitutional rights and that Negro school teachers are not being discriminated against because of their race, it is, therefore ORDERED that the various objections to the plan be, and same hereby are, denied * * *." 270 F.Supp. at 918.

In our affirmance of Judge Taylor — Goss v. Board of Education, 406 F.2d 1183 (1969) — we said:

"We are not sure that we clearly understand the precise intendment of the phrase `a unitary system in which racial discrimination would be eliminated,\' but express our belief that Knoxville has a unitary system designed to eliminate racial discrimination." 406 F.2d at 1191.

Traditional precedents do indeed suggest that those decisions should be considered as having established the law of the case, and that the conduct of Knoxville up to June 7, 1967, as its effort to comply with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) should not now be judicially revisited. In Judge Taylor's 1967 decision he said:

"This case having been in this Court since 1959 and the Court being of the opinion as outlined above that the Board and school authorities are moving skillfully and with expedition toward the full integration of the Knoxville School System, that there is no further need for the schools to operate under Court supervision, it is further ordered that the case be stricken from the docket." 270 F.Supp. at 918.

However, in requiring that the case be kept open on Judge Taylor's docket, we said:

"In the time ahead, and consistent with its need and duty to serve without discrimination its entire school population, the Knoxville Board of Education may wish to consider some pairing of existing schools and some alterations of its plans for future construction. We make no commands in this regard." 406 F.2d at 1191.

We believe, however, that Knoxville must now conform the direction of its schools to whatever new action is enjoined upon it by the relevant 1971 decisions of the United States Supreme Court.

We turn, then, to the cases of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, and its companions, all announced on April 20, 1971. Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577; North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586; McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582; and Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L. Ed.2d 590. Since announcement of these decisions, and relying on them, appellants have filed in this and other appeals before us, what they have denominated Motion of Plaintiff-Appellants to Expedite Determination of Appeals. By this motion, they ask that we command the District Court to order the Knoxville School Board to forthwith proceed as follows:

1) Direct defendants to file a plan within two weeks for the 1971-72 school year that completely dismantles the remaining vestiges of segregation within the system;

2) Direct, without fixing any specific ratios, that such plan, with respect to student assignments, move toward the establishment of a racial balance substantially the same in each school of the system, and in this endeavor to employ any desegregation technique necessary, including busing;

3) Direct that such plan, with respect to faculty desegregation, establish in each school a racial balance of principals, teachers, teacher-aids and other staff working directly with children which substantially reflects the racial composition of each such class of faculty within the entire system; this to be accomplished not later than the commencement of the 1971-72 school year;

4) Allow plaintiffs time to object to any plan proposed by defendants and to file an alternative plan;

5) Directing that the District Judge appoint an educational expert to assist him in arriving at a plan that will meet constitutional standards;

6) Authorize plaintiffs to retain an educational expert to assist them in preparing a plan to be submitted to the District Court, the cost of such employment and use of such expert to be borne by the defendant school district;

7) Direct defendants to co-operate with both experts by providing office space at the headquarters of the Superintendent of Schools with full access to all information, plans or studies concerning the system the experts deem necessary, by paying all fees and expenses of the experts, and by providing stenographic assistance, use of office machines, computers, draftsmen, telephone service, and such other professional and technical assistance as may be required;

8) Schedule a prompt hearing on the sufficiency of the submitted plans and take such necessary action as to assure implementation of a unitary system by the commencement of the 1971-72 school year;

9) Enjoin any new construction, expansion or abandonment of school facilities until completion of the hearing and thereafter require submission of any such plans to the District Court with notice to the plaintiffs;

10) Direct defendants to file various semi-annual reports with the District Court concerning the racial composition of the school faculties, and if in any year the overall ratio of black to white educators in the various schools does not approximate the ratio of black to white educators in the system, the district shall actively recruit black educators in filling any vacancies; information concerning busing; a description of plans for future school construction, expansion or abandonment, and a map of attendance zones, if such is the method of student assignment approved;

11) Allow plaintiffs their costs, including attorney fees.

Expanding and supplementing the foregoing which we have attempted to reduce in size, is an Appendix A, which sets out in greater detail what the school board must do to accomplish faculty desegregation. Also attached is an Appendix B, entitled "Report" which would have the District Court require semi-annual reports to be filed by the school authorities, giving extensive and detailed reports of the progress of their obedience to the directions of Appendix A.

We are not advised from what material plaintiffs constructed the elaborate rules and directions set out. It is apparent,...