Mapp v. Board of Education of City of Chattanooga

• Decision Date: 30 April 1973
• Docket Number: No. 71-2006,72-1443 and 72-1444.,71-2007,71-2006
• Parties: James Jonathan MAPP et al., Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, etc., et al., Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

477 F.2d 851 (1973)

James Jonathan MAPP et al., Plaintiffs-Appellants and Cross-Appellees, v. The BOARD OF EDUCATION OF the CITY OF CHATTANOOGA, etc., et al., Defendant-Appellee and Cross-Appellant.

Nos. 71-2006, 71-2007, 72-1443 and 72-1444.

United States Court of Appeals, Sixth Circuit.

April 30, 1973.

Avon N. Williams, Jr., Nashville, Tenn., for appellant Mapp in No. 71-2006; Raymond B. Witt, Jr., Chattanooga, Tenn., for appellant Bd. of Ed. in Nos. 71-2007 and 72-1444; Eugene Collins, Chattanooga, Tenn., for appellant City of Chattanooga in No. 72-1443 (Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Sylvia Drew, New York City, W. Frank Brown, III, Witt, Gaither, Abernathy & Wilson, Chattanooga, Tenn., on briefs).

Avon N. Williams, Jr., Nashville, Tenn., for appellee Mapp in Nos. 71-2007, 72-1443 and 72-1444; Raymond B. Witt, Jr., Chattanooga, Tenn., for appellee Bd. of Ed. in No. 71-2006; Eugene Collins, Chattanooga, Tenn., for appellee City of Chattanooga in No. 71-2006 (John Henniss, W. Frank Brown, III, Ellis K. Meacham, Chattanooga, Tenn., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Sylvia Drew, New York City, on briefs).

Before PHILLIPS, Chief Judge, WEICK, EDWARDS, CELEBREZZE, PECK, McCREE, MILLER, KENT and LIVELY, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge, in banc.

PER CURIAM.

This is a school desegregation case involving the school system of Chattanooga, Tennessee.

The present appeals are from the decisions of District Judge Frank W. Wilson reported in 329 F.Supp. 1374 (E.D. Tenn.1971) and 341 F.Supp. 193 (E.D. Tenn.1972). Appeals have been perfected by the City Board of Education and by the City of Chattanooga and its Mayor. An appeal also has been perfected by the plaintiffs from the decision reported at 329 F.Supp. 1374 (E.D.Tenn. 1971).

The appeals originally were heard by a panel of three judges of this court, whose decision was announced on October 11, 1972. The majority opinion of the panel remanded the case to the District Court for further consideration. The dissenting opinion favored affirmance of the judgments of the District Court. Thereafter, a majority of the judges of this court who are in regular active service ordered that the appeals be reheard by the court in banc. Fed.R. App.P. 35, Local Rule 3(b) of this court provides that: "The effect of the granting of a rehearing in banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal."

The comprehensive reported opinions of District Judge Wilson contained a full statement of the issues and pertinent facts, and repetition in this opinion is not required.

Upon consideration of the briefs of the parties, the oral arguments before the court sitting in banc, and the entire record, we affirm the judgments of the District Court for the reasons stated in the opinions of Judge Wilson. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 2d 554 (1971); Davis v. Board of Commissioners, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); Brown v. Board of Education II, 349 U.S. 294, 75 S.Ct. 753, 99 L. Ed. 1083 (1955), Brown v. Board of Education I, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890 (6th Cir. 1972); Kelley v. Metropolitan Board of Education of Nashville & Davidson County, Tennessee, 463 F.2d 732 (6th Cir.), cert. denied 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972); Davis v. School District of City of Pontiac, 443 F.2d 573 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971).

The Board of Education has filed a supplemental record in this court containing statistics said to reflect changes which have occurred after the decisions of the District Court. We decline to consider these statistics in the present appeal. Appropriate relief required by changed conditions is a matter for presentation to and consideration by the District Court. We reemphasize the holding of this court in Kelley v. Metropolitan Board of Education of Nashville and Davidson County, supra: "Like most decrees in equity, an injunctive decree in a school desegregation case is always subject to modification on the basis of changed circumstances." 463 F.2d at 745-746.

Affirmed. Since both parties appealed, no costs are taxed.

WILLIAM E. MILLER, Circuit Judge (concurring in the result).

I concur in the result reached by the Court in these appeals.

As I read the opinion of the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), where vestiges of state-imposed segregation still exist, the district courts have broad powers to fashion remedies that will assure a unitary school system.

A careful review of the record in this case indicates to me that the district judge was not only clearly justified in holding that vestiges of state-imposed segregation still existed in the Chattanooga system, but that he did not abuse his discretion in fashioning remedies within the precepts of the Swann decision. Since for these reasons I concur in the result, I do not feel committed to all of the language, reasons and conclusions set forth in the per curiam opinion of this Court or in the two opinions of Judge Wilson under review reported at 329 F.Supp. 1374 (E.D.Tenn., 1971) and 341 F.Supp. 193 (E.D.Tenn., 1972).

WEICK, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge (dissenting).

As members of the original panel who wrote the majority opinion from which the en banc hearing was ordered, we respectfully dissent.

Following the en banc hearing, the District Court's opinion was affirmed, per curiam, without, in our opinion, adequate discussion of the assignment of errors or the merits of substantial and important issues raised on appeal by the School Board and the Board of Commissioners of the City of Chattanooga. The Commissioners were the taxing authority; however, the Board of Commissioners was not made a party initially, but has since been made a party to the judgment without affording it an opportunity to question the merits of the case.

No consideration was given to the supplemental record certified to this Court by the District Court indicating substantial changes in conditions affecting the school system, brought about by mobility of both white and black families, which changes in our judgment impel a remand for consideration before we place our stamp of approval on the District Court's opinions.

We consider it right to say preliminarily that in our view no decision of the United States Supreme Court has held that in all events and without reference to the good faith and good conduct of the involved school or other state or municipal authorities, there must always be bussing to bring about a mix of the races. Goss v. The Bd. of Educ. of the City of Knoxville, Tenn. (6th Cir., No. 72-1766-1767, decided Mar. 29, 1973).

In the case before us, the District Judge found that the Chattanooga School Board was guilty of no bad faith and that up to February 4, 1972, the Board had, in fact, established a unitary school system "within which no person is to be effectively excluded from any school because of race or color." This was the command of Alexander v. Holmes County Board of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

The District Judge's opinion dealing with the Chattanooga Board's good faith (not reported) had this to say:

"This lawsuit has been in an area where the law has been evolving, and the Court cannot say that the defendants have acted in bad faith in failing always to perceive or anticipate that development of the law. For example, in all of its orders entered prior to the decision of the United States Supreme Court in the case of Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), this Court was itself of the opinion that genuine freedom of choice on the part of students in school attendance was compliance with the Equal Protection Clause of the Constitution. While the Board has vigorously contested the plaintiff\'s contentions at every stage of this lawsuit, it further appears to the Court that when factual and legal issues have been resolved, the Board has at all times complied or attempted to comply in good faith with the orders and directions of the Court." (Emphasis added).

There seems now to have developed a view that since Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), nothing other than bussing will satisfy the original command of Brown I and Brown II. This is not so. In the Swann decision the District Court found that the school authorities there involved had flouted the Brown commands. His opinion cannot be read as other than a finding that the school authorities were deliberately maintaining de jure segregation. The opposite is true in Chattanooga. Swann did no more than affirm the District Judge's finding of deliberate creation or perpetuation of de jure segregation.

We do not read Swann as holding that the Constitution requires that, black or white, a school child must now be denied the right to attend the school of his choice—desirable because of its nearness to his place of residence, or for any other circumstance prompting such choice— solely because of the color of his skin. In our view such a holding would collide with the commands of Brown I and Brown II, 347 U.S. 483, 74 S.Ct. 686 (1954) and 349 U.S. 294, 75 S.Ct. 753 (1955).

Can obedience to Brown I and Brown II be accomplished only by imposition of an Attainder upon so many whose only contribution to the wrongs sought to be alleviated by Brown derives from the circumstance of their birth ? What will be the dimensions of such selective attainting of...