Richardson v. Blanton, s. 77-1622
| Decision Date | 13 April 1979 |
| Docket Number | 77-1624,Nos. 77-1622,s. 77-1622 |
| Citation | 597 F.2d 1078 |
| Parties | Raymond RICHARDSON, Jr., et al., Intervening Plaintiffs-Appellants, United States of America, Intervening Plaintiff-Appellee, v. Ray BLANTON, Governor of the State of Tennessee, et al., Defendants-Appellees, University of Tennessee, et al., Defendants-Appellees, Tennessee Higher Education Commission, Defendant-Appellee, State Board of Regents, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Avon N. Williams, Jr., Nashville, Tenn., Jack Greenberg, New York City, for intervening plaintiffs-appellants.
Thomas W. Steele, Gullett, Steele, Sanford & Robinson, Nashville, Tenn., for University of Tennessee.
D. Bruce Shine, Ferguson and Shine, Kingsport, Tenn., Joseph O. Fuller, Fuller & Tunnell, Kingsport, Tenn., for State Board of Regents.
Brian K. Landsberg, Robert J. Reinstein, Dept. of Justice, Washington, D. C., for United States.
Alfred H. Knight, III, Willis & Knight, Nashville, Tenn., for Tennessee Higher Education Commission.
Brooks McLemore, Jr., Atty. Gen. of Tennessee, Nashville, Tenn., for Blanton.
Before LIVELY and ENGEL, Circuit Judges, and PECK, Senior Circuit Judge.
These consolidated appeals are from a judgment and order in litigation seeking desegregation of public higher education in Tennessee. The background and a description of the litigation may be found in this court's opinion in Geier v. University of Tennessee, 597 F.2d 1056, (1979). The plaintiffs-appellants Richardson et al. appeal from that portion of the district court's final judgment which approved the "long range plan" of the defendants insofar as it deals with desegregation of public institutions of higher education in Tennessee outside the metropolitan Nashville area. The same parties appeal from an order entered by the district court on July 22, 1977 in which the court denied motions to conduct hearings on objections to a plan for merger of two Nashville institutions, Tennessee State University (TSU) and the Nashville branch of the University of Tennessee (UT-N).
The order of July 22, 1977 is affirmed. As we pointed out in Geier v. University of Tennessee, supra, the district court held that the Nashville merger plan did not violate its judgment ordering the formulation of a plan. This conclusion has not been shown to be erroneous. Though the appeals in this case and in Geier v. University of Tennessee were expedited, because of the congestion of our docket and the necessity to grant priority to many other appeals, 1 nearly two years have passed since the judgment was entered in this case. During that time the formulation and implementation of the plan of merger for TSU and UT-N have gone forward. Any objections to the merger plan may be presented to the district court following issuance of the mandates in this case and in Geier v. University of Tennessee.
Further, we do not consider the issue which the appellants have attempted to raise with respect to an alleged effort to oust the president of TSU. This matter was raised by an affidavit of a non-party filed after entry of the judgment and notices of appeal and is not part of the record before us. The district court retained jurisdiction for the purpose of enforcing its previous orders in this case, and any claims that the defendants are failing to carry out those orders in good faith should be presented to the district court in the first instance.
In Geier v. University of Tennessee we held that the district court did not exceed its equitable power or abuse its discretion in ordering the merger of TSU and UT-N. In this appeal we are primarily concerned with the validity of the provisions for statewide desegregation contained in the long range plan. The appellants contend that the district court committed reversible error in failing to evaluate the specific goals and policies of the statewide features of the long range plan. They also argue that the plan dooms statewide desegregation by leaving its implementation in the hands of the defendants. In a supplemental brief and at oral argument the appellants urged the court to bring the U.S. Department of Health, Education and Welfare (HEW) into this case. It is not specified exactly to what extent HEW would be involved, except that its revised guidelines are urged upon us as creating minimum criteria for desegregation of public higher education.
The district court found that the long range plan, as it applied statewide outside Nashville, "appears to be a promising step forward and, under the careful supervision of the Monitoring Committee, should result in further progress." Geier v. Blanton, 427 F.Supp. 644, 661 (M.D.Tenn.1977). The appellants argue that it is not necessary that we hold this finding clearly erroneous in order to reverse the judgment of the district court. They contend that if the district court had subjected the long range plan to a more "refined analysis" it would have concluded that much of the progress in desegregation claimed by the defendants was illusory and that the constitutional duty to dismantle the dual system of public higher education in Tennessee would not be achieved in a reasonable time under the long range plan. More specifically the appellants contend that "revised criteria" published by HEW should be applied in Tennessee. Though the revised criteria were not issued until a year after the judgment was entered in this case, they were published in the Federal Register (43 Fed.Reg. 6658) on February 15, 1978 and we take judicial notice of their contents.
The long range plan, filed in July 1974, was prepared by a committee of representatives from the Board of Trustees of the University of Tennessee (UT Board), the Board of Regents, State University and Community College System of Tennessee (SBR) and the Tennessee Higher Education Commission (THEC). The committee was assisted by a bi-racial consultant panel of experts in education administration. It is stated in the introduction to the plan that the statewide goals "are statements of what ought to happen to bring about a fully desegregated system of public higher education in a situation where students will remain free to choose the institution they will attend, or even if they will choose to go to college at all." The introduction emphasizes that the goals are more than mere projections of past trends; the additional element is "evaluations of the impact of various actions which defendants can take to affect enrollment, and faculty employment to see if they are achievable . . ."
The plan sets out separate goals of black student enrollment to be attained by 1975 and 1980 for the community colleges, the universities under control of SBR and the University of Tennessee. The goals for the SBR universities are stated both with TSU included and excluded. These goals were summarized in a chart which also showed actual black enrollments for 1969 and 1973. The chart is reproduced here:
ACTUAL AND PROJECTED DEGREE CREDIT HEADCOUNT ENROLLMENT OF
BLACK STUDENTS IN TENNESSEE'S PUBLIC COLLEGES AND
UNIVERSITIES FOR SELECTED YEARS, 1969-80.
NOTE--Some parts of this form are wider than one screen. To view
material that exceeds the width of this screen, use the right arrow
key. To return to the original screen, use the left arrow key.
----------ACTUAL-------------- ---------PROJECTED------------
1969 1973 1975 1980
------------------- ------------------ -------------------- -------------------
Black % of Black % of Black % of Black % of
Enrollment Total Enrollment Total Enrollment Total Enrollment Total
---------- ------- ---------- ------ ---------- -------- ---------- -------
Community 398 7.44 2,387 16.0 3,515 19.1 5,744 23.2
Colleges
---------
Regents
Universities
------------
Excluding 2,354 5.44 3,446 6.8 4,286 8.0 5,534 9.6
TSU
Including 6,853 14.34 7,581 13.8 8,597 14.8 9,614 15.4
TSU
Total Regents
System
-------------
Excluding 2,752 6.03 5,833 8.08 7,801 10.9 11,278 13.7
TSU
Including 7,251 13.99 9,968 14.2 12,112 15.8 15,358 17.6
TSU
University of 1,117 3.2 2,200 5.1 3,151 6.7 4,975 9.2
Tenn
-------------
Total Excluding 3,869 4.62 8,033 7.1 10,952 9.2 16,253 11.9
TSU
---------------
Grand Total 8,368 9.47 12,168 10.74 15,263 12.4 20,333 14.4
-----------
If the goals are achieved the gap between black student enrollment and the black population of college age will be reduced from 5 per cent in 1973 to between 1.2 and 2.7 per cent in 1980. In the community colleges and the regents system, including TSU, the percentage of black students will exceed the proportion of the population who are black and of college age.
In preparing the plan the committee did not set a single goal, applicable to all institutions. The committee recognized that many of the institutions draw large numbers of students from nearby counties and that the black population of Tennessee is not evenly distributed throughout the State. The distribution of the black population of Tennessee was considered along with the "drawing area" of each school. It was felt that statewide desegregation would be achieved if each institution enrolled black students in approximate proportion to the black population of its service area.
The long range plan set statewide goals for black faculty and staff of 5 per cent by 1975 and 8.2 per cent by 1980. The...
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