Kelley v. Metropolitan County Board of Education, Tenn.

• Decision Date: 23 February 1973
• Docket Number: 2956.,Civ. No. 2094
• Citation: 372 F. Supp. 528
• Parties: Robert W. KELLEY et al. and Henry C. Maxwell et al. v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al. v. Elliot L. RICHARDSON, Secretary, United States Department of Health, Education, and Welfare, et al.
• Court: U.S. District Court — Middle District of Tennessee

372 F. Supp. 528

Robert W. KELLEY et al. and Henry C. Maxwell et al. v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al. v. Elliot L. RICHARDSON, Secretary, United States Department of Health, Education, and Welfare, et al.

Civ. Nos. 2094, 2956.

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

February 23, 1973.

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Gilbert S. Merritt, Jr., and Alfred H. Knight III, Nashville, Tenn., for third-party plaintiffs.

James H. Harris III, Nashville, Tenn., for Metropolitan County Board of Education.

Charles H. Anderson, U. S. Atty., Nashville, Tenn., Irving Jaffe, Acting Asst. Atty. Gen., Harland F. Leathers, and Peter J. P. Brickfield, Dept. of Justice, Washington, D. C., for the third-party defendants.

MEMORANDUM AND ORDER

FRANK GRAY, Jr., Chief Judge.

This is a third party action, brought pursuant to Rule 14 of the Federal Rules of Civil Procedure, which arose out of the case of Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, a case whose history spans some eighteen years and represents the struggle to desegregate the Nashville public schools. In order to place the instant cause in the proper perspective, it is necessary to recite some of the more recent developments in the desegregation case and show its relationship to the third party complaint. Thereafter, the jurisdictional issues now before the Court will be discussed.

I. BACKGROUND

On July 15, 1971, this District Court, per Honorable L. Clure Morton, ordered the implementation of a desegregation plan, submitted by the Department of Health, Education, and Welfare and designed to bring about the desegregation of the Nashville schools. In affirming Judge Morton's decision, the United States Court of Appeals for the Sixth Circuit characterized the plan as ". . . the first comprehensive and potentially effective desegregation order ever entered in this litigation." Kelley v. Metropolitan County Board of Education, 463 F.2d 732, 734 (1972). The plan thus implemented by the Court's Judgment provided for some increase in the amount of students to be bused, the Court having found that the facts of the case and the Supreme Court's decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), necessitated the use of busing as a tool to achieve desegregation of the Nashville public schools.

Due to the politicalization of busing as an issue on both the local and national level, there was a strong public reaction to the busing provisions of the plan, and attitudes hardened and polarized in the Nashville community. This hardening of attitudes found its focus in governmental bodies, including the Mayor's office, the City Council, and the Board of Education. Soon after the school system began to operate under the plan, to operate as a unitary system, problems developed and, not surprisingly, the crux of the problems was busing. Hardships arose because the number of buses on hand was apparently inadequate to allow for good scheduling practices, and both the Metropolitan Government and the federal government refused to provide funds with which to purchase the needed buses. As a result, the scheduling of buses created hazards endangering the welfare and safety of certain of the students.

The school board's response to this situation was to petition the district court to relieve the hardships by permitting resegregation of the system, thus freeing enough buses for better scheduling. The Court's response was to order the Board of Education to acquire thirty more buses. In its Memorandum, entered August 19, 1972, the Court found that

"the basic thrust and end result of the defendant's actions has been to perpetuate and endorse a busing schedule so unreasonable and harsh that not only has the principal goal of a unitary system been obscured by public reaction and indignity, but also that the health, safety, and security of the children involved have been compromised by their exposure to risks and dangers." At p. 9.

At the same time, the District Court joined the Mayor and the members of the City Council as parties defendant, finding that they had acted in such a way as to "impede the effective implementation of the ordered plan." Id., at p. 8.

II. THE THIRD PARTY ACTION

Shortly after having been joined as defendants in the desegregation case, three members of the City Council, Mansfield Douglas, Troy Jones, and Morris Haddox, instituted the present action, asserting that the third party defendants shared in the responsibility for impeding the implementation of the desegregation plan. The defendants are: Elliot L. Richardson, Secretary of HEW; Sydney T. Marland, Jr., Assistant Secretary of HEW; Dr. Herman R. Goldberg, Associate Commissioner, Equal Educational Opportunity, Office of Education, Department of HEW; and the United States of America.

The third party complaint alleges that the defendants are charged with the responsibility of administering the Emergency School Aid Act of 1972 (Title VII of Public Law 92-318), the appropriations under the paragraph headed "Emergency School Assistance" in the Office of Education Appropriations Act of 1971 (Public Law 91-380), and other federal laws relating to financial assistance for the implementation of court-ordered desegregation plans. It is further alleged that in the summer of 1971 the defendants adopted a policy of refusing to provide funds for transportation expenses (i. e., buses) to implement court-ordered desegregation plans although, before such adoption, funds had been available and had been disbursed for transportation expenses. The third party plaintiffs charge that the aforesaid policy was an unconstitutional exercise of power by the defendants and, in effect, constituted an imposition by federal officials of an unconstitutional condition on the expenditure of funds.

After this suit was commenced, the plaintiffs sought to take certain discovery depositions, but the Government took the position that discovery depositions could not be taken until the jurisdictional issues raised by the defendants' Answer were resolved. The parties then agreed to submit the jurisdictional issues to the Court and sought a hearing thereon. The matter was set for hearing, and the Government filed the following motions: a motion for judgment on the pleadings or, in the alternative, for summary judgment and motion for a protective order under Rule 26. A hearing was had on January 4, 1973, at which the Court granted the motion for a protective order, pending a decision on the jurisdictional issues, and heard arguments on the question of jurisdiction.

Prior to the hearing, the plaintiffs filed a "Motion to Amend Third Party Complaint," and, without objection, the Court granted the motion at the hearing. The effect of the amendment is two-fold. First, it is added that the third party plaintiffs bring this action not only as members of the City Council, but also as taxpayers and parents of children attending the Nashville public schools. The second effect is to elaborate on the factual matter contained in the original complaint by alleging that: the defendants issued regulations¹ governing the Emergency School Assistance Program and that these regulations authorized federal assistance to local school systems in order to fund transportation expense and the purchase of buses pursuant to court-ordered desegregation plans; that substantial grants had been made pursuant to said regulations prior to July 28, 1971; that Dr. Elbert Brooks, Director of Schools, met with Defendant Goldberg on July 28, 1971, and was advised that federal funds would be available for transportation expenses in connection with the District Court's desegregation order; that Nashville subsequently did make application for $3,714,400 to cover transportation expenses; that Dr. Brooks and other school officials then were told orally by federal officials and employees that the policy of providing such funds for transportation had been reversed and that no funds would be available for such purposes;² that Nashville's request for transportation funds was refused; and that, as a result of the change in policy, unspent funds appropriated for the Emergency School Assistance Program were returned to the federal treasury at the end of fiscal year 1971-72.

In essence, then, the present action charges that the named federal officers, like the local school board and government officials, committed acts and/or followed policies that resulted in the erection of a substantial obstruction to the effective implementation of the District Court's plan for desegregation of the Nashville schools and, therefore, to the long overdue termination of the duality which characterized the public education in this metropolitan area. As a consequence thereof, the federal defendants are charged with violating the Due Process Clause of the Fifth Amendment. The remedy sought herein is a court order compelling the defendants to cease withholding funds solely because those funds are to be used to defray transportation expenses under a court-ordered desegregation plan. Put another way, the third party plaintiffs seek to have the defendants fulfill their affirmative duty under the cited federal statutes to assist the local school board in implementing the desegregation plan, rather than obstructing it.

III. THE JURISDICTIONAL ISSUES

Having described the action at bar, it remains for the Court to decide whether it has jurisdiction to hear and determine the issues raised by the third party complaint. More particularly, the Court must decide the following issues at this juncture: (1) Whether the present lack of available funding for the Emergency School Assistance Program (ESAP) renders the action moot; (2) whether the third party plaintiffs have standing to maintain this action; (3) whether the third party...