Kelly v. Board of Education of City of Nashville, Civ. A. No. 2094.

• Decision Date: 18 February 1958
• Docket Number: Civ. A. No. 2094.
• Citation: 159 F. Supp. 272
• Parties: Robert W. KELLY et al., Plaintiffs, v. BOARD OF EDUCATION OF CITY OF NASHVILLE et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

159 F. Supp. 272

Robert W. KELLY et al., Plaintiffs, v. BOARD OF EDUCATION OF CITY OF NASHVILLE et al., Defendants.

Civ. A. No. 2094.

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

February 18, 1958.

Thurgood Marshall, New York City, Z. Alexander Looby and Avon Williams, Nashville, Tenn., for plaintiff.

Edwin F. Hunt and Reber Boult, Nashville, Tenn., for defendant School Board.

Thomas P. Gore and Sims Crownover, Nashville, Tenn., for School Preference Committee, amici curiæ.

George McCanless, Atty. Gen., State of Tennessee, Allison B. Humphreys, Sol. Gen., State of Tennessee, amici curiæ.

WILLIAM E. MILLER, District Judge.

The complaint was filed September 23, 1955, as a class action, by Negro children eligible to attend the public schools of Nashville, Tennessee, by their parents as next friends, to have declared their rights to attend the public schools without discrimination on account of race and for an injunction restraining such discrimination. Named as defendants were the members of the Board of Education and the Superintendent of Schools of the city, in addition to principals of particular public schools. Additional parties were added by amendment to the complaint but without changing the nature of the cause of action or of the relief sought.

By their answer to the complaint the defendants conceded, in view of the decisions of the Supreme Court, the unenforceability of the school segregation laws of Tennessee and acknowledged their eventual obligation to operate the schools of the City of Nashville in compliance with the constitutional principles therein declared. However, the position was taken that the defendants should be allowed time to solve various administrative problems and that the transition to a racially non-discriminatory system should not be accomplished immediately but on a gradual basis.

Pursuant to the prayer of the complaint, a three-judge District Court was convened and upon a hearing at the March 1956 term, that Court granted the defendants' motion for a continuance of the case to the October 1956 term. In granting the continuance the Court specifically noted that the Board of Education at an early date had announced that it would comply with the ruling of the Supreme Court in integrating the public schools of Nashville, that it had proceeded promptly to take steps toward that end, and that it was acting in good faith and with appropriate dispatch in awaiting the taking of the school census and giving careful consideration to all factors involved, so as to arrive at a workable plan of integration, "which appears to be a reasonable start toward full compliance with the May 17, 1954 ruling of the Supreme Court". In view of the defendants' concession that Tennessee's school segregation laws were invalid, the three-judge court was dissolved and the case remanded to a single judge court. 1 Race Rel.L.Rep. 519 (1956), 139 F.Supp. 578.

At the October 1956 term the Board of Education submitted a plan of desegregation, providing for the elimination of compulsory segregation in the first grade beginning with the 1957-1958 school year, for a voluntary right of transfer on the basis of the racial composition of the school attended, and directing its Instruction Committee to make further studies and to recommend by December 31, 1957, "the time of and the number of grades to be included in the next step to be taken in the further abolishing of compulsory segregation". After a full hearing upon the plan the Court on January 21, 1957, by a memorandum opinion, approved the plan in part as constituting a prompt and reasonable start toward complete desegregation but directed the Board to submit not later than December 31, 1957, "a report setting forth a complete plan to abolish segregation in all of the remaining grades of the city school system, including a time schedule therefor". 2 Race Rel.L.Rep. 21 (1957).

On January 9, 1957, the Governor of Tennessee appeared before a joint session of the General Assembly to propose five bills permitting local authorities to act with respect to questions of racial integration in the public schools. On January 25, 1957, the bills were finally approved by the General Assembly and, as enacted, included: (1) legislation authorizing the establishment of separate schools for pupils whose parents or guardians voluntarily elect that they attend schools only with members of their own race, generally referred to as the School Preference Law, (2) a Pupil Assignment Act to provide for the assignment of pupils to public schools by county or city boards of education, (3) an amendment to the present law authorizing the transfer of pupils between school systems, (4) authorization for the joint operation of school facilities, and (5) an amendatory bill dealing with transportation of pupils. Pub.Acts 1957, cc. 9-13. 2 Race Rel.L.Rep. 215 (1957).

Shortly before the beginning of the 1957-1958 school year, the Board of Education, acting in response to a petition which had been filed with it by a citizens committee, filed a motion with the Court requesting permission to file a supplemental answer and counterclaim to ascertain its authority under and the validity of the School Preference Law, Chapter 11 of the Public Acts of 1957, authorizing Boards of Education of cities and counties to provide separate schools for white and Negro children whose parents, legal custodians or guardians voluntarily elect that such children attend school with members of their own race. On September 6, 1957, after a hearing, the Court held that the School Preference Law was on its face antagonistic to the principles declared by the Supreme Court in the two Brown cases and, therefore, unconstitutional. 2 Race Rel.L.Rep. 970 (1957). Accordingly, an order was entered denying the motion for leave to file the supplemental answer and counterclaim.

The Board of Education on December 6, 1957, filed its report, setting forth what is described as "a complete plan to abolish segregation in all grades of the City School System", in compliance with the prior order of the Court requiring it to submit such a plan not later than December 31, 1957. The plaintiffs have filed objections to the plan, principally upon the ground that it does not comply with constitutional requirements, and one question presently before the Court is whether the plan should be approved.

Before discussing that question, however, it is necessary to consider a motion of the defendants, filed on January 20, 1958, to dismiss the action, such motion, the objections to the School Board's plan for desegregation, and all related questions having been heard by the Court on January 28, 1958. The issues have been fully briefed and orally argued by the parties to the action, and in addition the Court has had the benefit of elaborate briefs submitted as amicus curiae by attorneys for the School Preference Committee, a local group sponsoring and supporting the proposed plan, and on behalf of the Attorney General of the State as amicus curiae.

The motion to dismiss the action is based upon the provisions of the Pupil Assignment Act, referred to above, Chapter 13 of the Tennessee Public Acts of 1957. It is argued on behalf of the Board of Education that the Act provides the plaintiffs with an adequate administrative remedy to obtain admission or transfer to particular schools and that they should be required to exhaust such remedy before resorting to a court for relief, particularly before resorting to a Federal Court for an injunction. In support of this argument, it is insisted that this Court has already declared the rights of the plaintiffs and others similarly situated to attend the public schools of Nashville without discrimination on account of race and that it is, therefore, not necessary for the Court longer to retain jurisdiction since the only remaining problem is the assignment of individual students to particular schools, a matter now governed by the Pupil Assignment Act. To support its contention as to the validity of the Pupil Assignment Act, the Board of Education relies upon Carson v. Board of Education of McDowell County, 4 Cir., 227 F.2d 789, and Carson v. Warlick, 4 Cir., 238 F.2d 724, certiorari denied 353 U.S. 910, 77 S.Ct. 665, 1 L.Ed. 664, in which the Fourth Circuit Court of Appeals held that the North Carolina Pupil Enrollment Act Laws 1955, c. 366, was not unconstitutional on its face, and that Negro children denied admission to schools would first be required to exhaust the administrative remedies provided for by the Act before being entitled to declaratory or injunctive relief in a Federal Court with respect to their right to attend school. The standards provided for in the North Carolina Act required that the enrollment be made "so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, and general welfare of such pupils". The Act further provided for application to and prompt hearing by the Board in the case of any child whose admission to any public school within the county or city had been denied, with right of appeal from an adverse ruling to the courts.

However, notwithstanding the apparent scope and generality of the rulings of the Fourth Circuit in the two cases just cited, the Court is unable to reach the conclusion on the facts of the instant case that the action should be dismissed and the plaintiffs remitted to a so-called administrative remedy, with the implied invitation to return to the Federal Court if that remedy is exhausted without obtaining satisfactory results. This is true because the Court is of the opinion that the administrative remedy under the Act in question would not be an adequate remedy. In this connection, it must be recalled that the relief sought by the complaint is not merely to obtain assignment to particular schools but in addition to have a system...