Goss v. Board of Education, City of Knoxville, Tennessee

• Decision Date: 10 February 1969
• Docket Number: No. 18165.,18165.
• Parties: Josephine GOSS et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, CITY OF KNOXVILLE, TENNESSEE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

406 F.2d 1183 (1969)

Josephine GOSS et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION, CITY OF KNOXVILLE, TENNESSEE, Defendant-Appellee.

No. 18165.

United States Court of Appeals Sixth Circuit.

February 10, 1969.

Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Michael J. Henry, New York City, Carl A. Cowan, Knoxville, Tenn., Z. Alexander Looby, Nashville, Tenn., on brief, for appellants.

Sam F. Fowler, Jr., Knoxville, Tenn., S. Frank Fowler, Knoxville, Tenn., on brief; Fowler, Rowntree, Fowler & Robertson, Knoxville, Tenn., of counsel, for appellees.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge.

O'SULLIVAN, Circuit Judge.

The District Court decision which we review, Goss v. Bd. of Education, 270 F. Supp. 903 (E.D.Tenn.1967), is the latest District Court consideration of the progress of desegregation of the schools of Knoxville, Tennessee. This lawsuit was started in 1959 when the school board of Knoxville was first ordered to desegregate its schools in obedience to Brown v. Bd. of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The plan first approved by the United States District Court for the Eastern District of Tennessee, Judge Robert L. Taylor, presiding, is set out in Goss v. Bd. of Education, 186 F.Supp. 559 (E.D.Tenn. 1960). Plaintiffs appealed to this Court from that decision and we modified and affirmed, Goss v. Bd. of Education, 301 F.2d 164 (6th Cir. 1962). The United States Supreme Court reversed us in Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963), because of its view that a transfer provision of the Knoxville plan, approved by us, would likely promote racial discrimination. The Supreme Court's mandate was implemented by this Court's order, 319 F.2d 857 (6th Cir. 1963), and in Goss v. Board of Education, 305 F.2d 523 (6th Cir. 1962), we approved with some modification a plan relating to the use of named high schools providing vocational and technical courses. A more detailed history of the relevant litigation is set out at length in Judge Taylor's opinion in the case now before us, 270 F. Supp. at 904-912.

After our remand in 1963 — 319 F.2d 857 — and consequent further litigation, a plan to conform to the various orders of the District Court, this Court, and the Supreme Court, was submitted on August 6, 1965, as follows:

"1. Effective with the beginning of the school year in September, 1964, all racially discriminatory practices in all grades, programs and facilities of the Knoxville Public School System shall be eliminated and abolished. Without limiting the generality and effectiveness of the foregoing, all teachers, principals and other school personnel shall be employed by defendants and assigned or re-assigned to schools on the basis of educational need and other academic considerations, and without regard to race or color of the persons to be assigned, and without regard to the race or color of the children attending the particular school or class within a school to which the person is to be assigned. No transfer or retransfer of a teacher, principal or other school personnel may be granted or required for considerations based upon race and color and no assignment or reassignment of such teacher, principal or other school personnel may be made for considerations based upon race or color.

All tenure and seniority rights are to be observed and the defendants will not utilize or attempt to utilize the provisions of the State Teacher Tenure Law or any other law, custom or regulation conferring discretion upon them in the employment and discharge of teachers or the abolition of teaching positions in such manner as to discriminate either directly or indirectly on account of race or color in the employment, discharge, reemployment, assignment, or re-assignment of teachers, principals, or other school personnel in the Knoxville City School System.

2. Each student will be assigned to the school designated for the district in which he or she legally resides, subject to variations due to overcrowding and other transfers for cause, and the Superintendent may permit continued enrollment of students in their present schools until completion of the grade requirements for said school, provided this is consistent with sound school administrative policy.

3. A plan of school districting based upon the location and capacity (size) of school buildings and the latest enrollment studies will be followed subject to modifications from time to time as required.

4. Upon written application, students may be permitted to transfer to schools outside their assigned attendance zones only in exceptional cases for objective administrative reasons and no transfers shall be granted, denied or required because of race or color. All applications of students for transfer to schools outside their assigned attendance zones shall be considered and approved by the Superintendent of Schools pursuant to recommendation of the Director of the Department of Child Personnel after due investigation and consideration of the Department of Child Personnel.

5. Students may request transfer to or enrollment in any vocational or technical facility sponsored by the Knoxville City Board of Education and will be accepted subject to requirements respecting aptitude, ability, pretraining, physical condition, age, and other considerations including adequacy of facilities.

6. The Board of Education recognizes the continuation of jurisdiction of the United States District Court for the Eastern District of Tennessee, Northern Division, at Knoxville of this Board and the matters involved in this plan, until termination of said jurisdiction by express direction of said court."

Plaintiffs objected to several aspects of this plan and pretrial hearings were held and orders entered defining the issues for a planned hearing. A trial was scheduled for May 11, 1967 to consider plaintiffs' objections to the plan and on May 8, 1967 plaintiffs, in a pleading entitled Motion for Further Relief, gathered many objections to and attacks upon the school system of Knoxville. Judge Taylor's comprehensive opinion came down June 7, 1967. Presented to us upon plaintiffs' appeal are the following statements of questions involved:

I.

Whether the Knoxville School System is completely desegregated in spite of the fact that the Negro schools under dual operation remain identifiable as Negro schools and are attended almost exclusively by Negro students?

II.

Whether the Knoxville School System should have been ordered to pair identifiable Negro schools which could be paired, locate new construction to help eliminate identifiable Negro schools, and take other affirmative action to disestablish segregation?

Preliminarily answering question I, it will be sufficient to say that the fact that there are in Knoxville some schools which are attended exclusively or predominantly by Negroes does not by itself establish that the defendant Board of Education is violating the constitutional rights of the school children of Knoxville. Deal v. Cincinnati Bd. of Education, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); Mapp v. Bd. of Education, 373 F.2d 75, 78 (6th Cir. 1967). Neither does the fact that the faculties of some of the schools are exclusively Negro prove, by itself, violation of Brown. We think it helpful, also, to at once mention that of the total school population of Knoxville, only 15% are Negro children.

Aside from the general assertion that integration of the Knoxville schools is not moving with sufficient speed, plaintiffs make the following specific charges:

1. a so-called grade requirement transfer plan increases segregation.

2. a so-called brother-sister transfer plan increases segregation.

3. use should be made of the pairing of schools — the Princeton plan — to accomplish greater desegregation.

4. a building program under consideration — the building of some three additional and larger high schools — will perpetuate segregation or at least slow down desegregation.

Plaintiff's proofs consisted of statistical data and other information, principally gathered from answers to interrogatories submitted to defendants,¹ and the testimony of an expert, one Dr. Morris Osburn, who, while advising that he had never participated in the administration of school affairs or served on a school board, was currently acting as director of the Western Kentucky Human Relations Center for Education at Western Kentucky University in Bowling Green, Kentucky,² and had held that position since February, 1966. The trial of this case started May 11, 1967. In preparation for his testimony and findings he spent 24 to 30 hours in Knoxville — looking at its schools for 3½ to 4 hours one afternoon and spending an undefined amount of time examining the material obtained by plaintiffs' counsel through interrogatories and other means. Other than the above, he had no "personal familiarity with the school superintendent or staff, the school board, the teachers, the pupils, the community leaders or anything like that."

From his study, Dr. Osburn concluded that the school zone lines, drawn under a unitary neighborhood plan (where the lines are drawn to have children attend schools as close to their homes as geography and school capacity permit) did, in some cases, lead to perpetuation of segregation. He stated, relative to data before him, that in his opinion, "the effect is that segregation will be perpetuated * * * possibly a higher degree than is now being experienced." He found no evidence that Knoxville school authorities had drawn or allowed to remain any school zone lines with a purpose of fostering, tolerating or increasing segregation. He found no gerrymandering. Except for the specifics, which we discuss below, the direction of the professor's testimony was that the Knoxville school authorities should take affirmative steps...