Kelley v. Metropolitan Cty. Bd. of Ed., 2094

• Decision Date: 20 May 1980
• Docket Number: No. 2094,2956.,2094
• Parties: Robert W. KELLEY, Individually and representative of the class v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al. Henry C. MAXWELL, Jr., Individually and representative of the class v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al.
• Court: U.S. District Court — Middle District of Tennessee

492 F. Supp. 167

Robert W. KELLEY, Individually and representative of the class v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al.

Henry C. MAXWELL, Jr., Individually and representative of the class v. METROPOLITAN COUNTY BOARD OF EDUCATION OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, et al.

Nos. 2094, 2956.

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

May 20, 1980.

Avon N. Williams, Jr., Richard H. Dinkins, Nashville, Tenn., Plaintiffs Intervenors, Carrol D. Kilgore, William E. Higgins, Nashville, Tenn., for plaintiff.

William R. Willis, Jr., Marian F. Harrison, Nashville, Tenn., for defendants.

MEMORANDUM OPINION

WISEMAN, District Judge.

The present posture of this case and this Court's action thereon require a recitation of the tortuous twenty-five-year history of desegregation efforts in Metropolitan Nashville.

I. HISTORY OF NASHVILLE-DAVIDSON COUNTY DESEGREGATION PRIOR TO 1971

On September 23, 1955, plaintiff Robert W. Kelley filed this class action lawsuit to enforce Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), decided the previous year, and to enjoin the defendant Board of Education of the City of Nashville from continuing to operate a segregated school system. A three-judge court was convened in this district,¹ but, upon defendants' concession that the law was unenforceable under Brown, the three-judge court was dissolved for lack of jurisdiction and the case remanded to a single district judge of this Court. Kelley v. Board of Educ., 139 F.Supp. 578 (M.D.Tenn. 1956).

After a hearing on the proposed plan for desegregation submitted by the defendant Board, the Court, on January 21, 1957, approved the plan insofar as it provided for desegregation for grade one in the year 1957-58, but ordered the Board to develop a plan to eliminate segregation in the remaining grades. Kelley v. Board of Educ., 2 Race Rel.L.Rep. 21 (M.D.Tenn.1957). On February 18, 1958, this Court rejected as unconstitutional the Board's proposed plan, essentially modeled after the Parental Preference Law, T.C.A. § 49-3704,² passed in January of 1957, and previously held unconstitutional by this Court in Kelley v. Board of Educ., 2 Race Rel.L.Rep. 970 (M.D.Tenn. 1957). The proposed plan proscribed mandatory integration or segregation in any grade but permitted parents to choose between sending their children to a one-race or integrated school. The Court allowed the defendant Board two months to file another plan for desegregation of all grades.³ See Kelly (sic) v. Board of Educ., 159 F.Supp. 272 (M.D.Tenn.1958). On June 19, 1958, this Court approved the proposed Board plan that provided for elimination of compulsory segregation in grade two as of the academic year 1958-59 and in one additional grade a year thereafter. See Kelley v. Board of Educ., 3 Race Rel.L.Rep. 651 (M.D.Tenn.1958), aff'd, 270 F.2d 209 (6th Cir.), cert. denied, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240 (1959).⁴

At the time Kelley v. Board of Education was filed, Davidson County, surrounding Nashville, and the City of Nashville maintained separate school systems. Because the Kelley order had no effect upon the county school system, which continued to operate as a segregated system, plaintiff Henry C. Maxwell, Jr., filed a class action complaint on September 19, 1960, which paralleled the complaint previously filed by plaintiff Kelley against the Board of Education of the City of Nashville. On November 23, 1960, this Court approved a gradual desegregation plan submitted by defendant County Board of Education but modified the proposed one-grade-a-year component to require that immediate desegregation take place in grades one through four with an additional grade each year in the future. By so ordering, the Court placed the county school system on the same grade-a-year basis as the city school system. See Maxwell v. County Bd. of Educ., 203 F.Supp. 768 (M.D.Tenn.1960), aff'd, 301 F.2d 828 (6th Cir. 1962), aff'd in part, rev'd in part, sub nom. Goss v. County Board of Educ. of Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).⁵

On September 10, 1963, after the City of Nashville and Davidson County merged into a metropolitan government, the Kelley and Maxwell cases were consolidated by consent order and the Board of Education for Metropolitan Nashville-Davidson County was substituted as defendant.⁶ The case has remained in the same posture since 1963, with the primary defendant being the Metropolitan County Board of Education of Nashville and Davidson County. No significant action was taken by this Court in regard to school desegregation until over six years later.⁷

Upon plaintiffs' motion for injunctive relief, this Court, on November 6, 1969, issued a temporary restraining order, enjoining defendant Board from purchasing new school sites, building new school facilities, or expanding existing school facilities, until a hearing on the motion. After such hearing, the Court, on July 16, 1970,⁸ enjoined the Board from school construction not commenced as of the date of the restraining order, and ordered that the Board devise a comprehensive plan for a unitary school system that included, inter alia, rezoning and school construction to maximize school integration. Kelley v. Metropolitan County Bd. of Educ., 317 F.Supp. 980 (M.D.Tenn.1970). The defendant submitted a plan as ordered, but, on August 25, 1970, the Court effectively stayed its order until resolution by the United States Supreme Court of school desegregation cases then pending before it.⁹ On December 18, 1970, however, the Court of Appeals for the Sixth Circuit vacated the stay and reinstated this Court's order. Kelley v. Metropolitan County Bd. of Educ., 436 F.2d 856 (6th Cir. 1970).

II. THE 1971 COURT ORDER

Pursuant to the remand order of the Court of Appeals, this Court held hearings on the Board's proposed revised plan in the spring of 1971. At such hearings, a plan was submitted by the Board, a plan by the plaintiffs, including alternate plans for the elementary schools, and two alternate plans submitted by the Department of Health, Education, and Welfare HEW, acting as consultant to the Court. The Court rejected defendants' proposal, calling it a "mere tinkering with attendance zones," and "only a token effort." Kelley v. Metropolitan County Bd. of Educ., Nos. 2094, 2956, at 6 (M.D.Tenn. June 28, 1971).¹⁰

The Court similarly rejected both of plaintiffs' proposals because they allowed the school board to determine the actual assignment of pupils and implementation of the plan. In light of the Board's past actions and apparently half-hearted efforts to devise a unitary school system that would encourage integration, the Court was naturally reluctant to delegate to the Board the responsibility for specific implementation. Additionally, the Court rejected the elementary school plans proposed by plaintiffs because they included some schools in the periphery of the county. The Court at that time found that the distances involved and the attendant busing costs were so great that it was not feasible to include the outer reaches of the county in a comprehensive busing plan.¹¹

The Court did adopt the element in both plaintiffs' and defendants' plans that instituted an "ideal student racial ratio" in the range of 15 to 35 percent black in each school. After rejecting both plaintiffs' and defendants' plans, the Court viewed the HEW plan, as amended after evidence adduced at the hearings, which incorporated geographic zone changes, clustering, contiguous and noncontiguous pairings, and grade restructuring, as the "only realistic plan remaining." Id. at 8. Perhaps most significant in terms of its total impact on the school system, the Court, in an effort to insure a racially unitary school system, ordered that over 13,000 more students be transported in the 1971-72 school year than had been bused in the previous year. Id. at 4-5.¹² Under the pupil assignment plan as submitted by HEW and adopted by the Court, no school would have a majority of black students.

To discourage future resegregation, the Court made specific orders designed to maximize the potential for an integrated system. Included in the Court's order was a directive for the Board to implement a majority-to-minority transfer policy. The Court also approved the proposed construction of what was later built as the Whites Creek Comprehensive High School because of its proximity to the proposed inner city expressway loop, located approximately half-way between predominantly black and white residential populations. The Court enjoined the construction of the proposed Goodlettsville Comprehensive High School because it would be located in an all-white community and not in proximity to the line of demarcation between the two populations. The Court similarly denied the Board permission to enlarge Hillsboro High School, located in a white community, into a comprehensive high school, enjoined the use of portable classrooms for any purpose other than integration, and, finally, although exempting the predominantly white schools in the outer county from the effect of busing, enjoined the Board from renovating or enlarging by either construction or use of portables any schools that serve less than 15 percent black students after implementation of the plan.

Both parties appealed the 1971 decision of this Court.¹³ The defendants appealed on the bases of the Court's asserted failure to comply with Rule 23 of the Federal Rules of Civil Procedure, the invalidity of the Court's requirement of a fixed racial ratio, and the alleged adverse effects on the health and safety of the children resulting from implementation of the plan. Plaintiffs cross-appealed, claiming that their proposed plan should have been approved by the Court because it would have achieved a greater degree of integration and because the HEW plan, as accepted, placed a disproportionate...