Full opinion text
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, 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, 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. 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). 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). 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. 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. 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, 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. 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). 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. 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. 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. 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 burden upon black children. The Court of Appeals for the Sixth Circuit affirmed on all grounds, focusing on the discretion lodged with the district court and on the fact that some of the claims raised on appeal had not been adequately raised first in the district court. III. SUMMARY OF ACTIONS TAKEN BY THE COURT AND THE PARTIES SINCE THE 1971 COURT ORDER Although little action having a significant impact on the school system was taken by this Court between the 1971 order and 1979, the parties filed myriad motions, reports, and letters, many of which were not acted upon during the eight-year period. A recounting of pleadings and other communications filed with the Court during these years will help to put the progress of and problems with school desegregation in this county into better perspective. The first report by defendants was filed with this Court on October 19, 1971, and described the first month of operation under the plan. Two days later, plaintiffs moved to join as parties defendant the Metropolitan Government, the Metropolitan Mayor, and the members of the Metropolitan Council since they controlled the purse strings from which money for increased transportation must come. Defendants’ second report to the Court was filed on March 17,1972, which proposed the attendance zone and other plans for a new comprehensive high school in the Joel-ton-Whites Creek area, which would be close to .the proposed inner loop in the northeastern part of the county and which the Court in the 1971 order had indicated it would approve when plans were finalized. Additionally, the report proposed capital improvements for schools whose student composition was at least 15 percent black. No action was ever taken on the proposals included in this report. Three months later, the defendant Board of Education filed a petition, seeking changes in the plan in regard to elementary and junior high school zones and the approval of the use of an annex for an overcrowded school in the southeastern portion of the county unaffected by the Court’s busing order. Plaintiffs responded by generally objecting to the proposed changes and requesting changes in the plan as adopted, in that it called for the closure of certain inner city black schools and clustering patterns that required more cross-busing of black children than whites. A hearing was held pursuant to the motions filed and, by order and memorandum, issued August 17, 1972, and August 19, 1972, respectively, the Court granted plaintiffs’ motion to add the additional parties defendant, approved the requested changes in the elementary school zones, but denied the defendants’ proposed changes in three junior high schools that would have resulted in lessened degrees of desegregation in those schools. The Court also ordered that the Board purchase additional buses, report to the Court regarding costs of transportation, and close all schools not later than 4 p. m. each day. Further, the Court issued a temporary restraining order against the newly added defendants (council members and mayor) from interfering with the Court’s order to desegregate. No action was taken by this Court on plaintiffs’ concerns about the alleged disparate transportation burden on black children. With the third district judge sitting on this case since its inception, the Court held a hearing on the Board’s report submitted pursuant to the Court’s last order and, by order of August 31, 1972, approved that report and dissolved the injunction against the newly added defendants. Shortly thereafter, the defendant Board sought modification of the August 17, 1972, order prohibiting school closure not later than 4 p. m., which this Court granted on September 11,1972. The final action taken by this Court prior to pretrial matters and the subsequent hearings in the summer of 1979 involved an action brought by three newly added black City Council defendants as third party plaintiffs against the United States, HEW, and federal officials, as third party defendants. The third party plaintiffs sought to enjoin the third party defendants from continuing to withhold federal funds that would be used for transportation expenses which would be incurred in implementing the Court’s desegregation order. After holding that the Court had jurisdiction over the third-party defendants except for the United States, see Kelley v. Metropolitan County Bd. of Educ., 372 F.Supp. 528 (M.D.Tenn.1973), the Court held that the acts of the third party defendants in refusing to release funds for busing for desegregation purposes pursuant to a recently promulgated policy was illegal. The Court further enjoined the third party defendants from enforcing such an illegal and unconstitutional transportation policy and to act within their discretion upon requests for funds. See Kelley v. Metropolitan County Bd. of Educ., 372 F.Supp. 540 (M.D.Tenn.1973). Several matters were pending before this Court at the time it addressed the third party issues. They were not dealt with by the Court at that time nor has this Court taken any action on them since that time. As discussed supra, no action was ever taken in regard to the report filed by the defendant Board on March 17, 1972, in which the Board sought approval for construction of Whites Creek Comprehensive High School. Since that time, the Whites Creek School has been constructed. The current zones for the school are incorporated into a petition filed by the Board on July 24, 1978, discussed infra. Also pending at the time of this Court’s last order was the Petition for Approval of the Long Range Building Program, filed on May 30, 1973. This proposal outlining twenty-six building projects has essentially merged into more recent pleadings that describe future plans in greater detail. The day after the Petition for Approval of the Long Range Plan was filed, defendant Board filed a petition for approval of portables for use in kindergartens. See Exhibit 55. At the time of the 1971 court order, this county had not extensively instituted the systemwide, nonmandatory kindergarten program presently in existence. As discussed above, the 1971 order had specifically prohibited the use of portables for any purpose other than to achieve integration. The Court left the Board’s request for portables unanswered, and the Board utilized portables at kindergarten locations beginning in the school year 1973-74. Over two years elapsed before either party officially filed further pleadings in this case, although counsel for the Board corresponded by letter to the Court during this period of time. The next official pleading was defendants’ motion to amend their previously filed Petition for Approval of the Long Range Building Plan and for further relief, filed October 14, 1976, wherein the defendants specifically described new plans for the proposed Goodlettsville-Madison High School and asked the Court’s approval to implement these plans. The first pleadings filed by plaintiffs since 1972 were the answer to defendants’ proposed long range plan and a Petition for Contempt and for Further Relief, both filed on December 27, 1976. Plaintiffs therein moved that defendants be held in contempt for their plan to construct the Goodlettsville-Madison High School, the expansion of Hillsboro, Overton, Hillwood, Glencliff, Stratford, and Maplewood High Schools into comprehensive high schools, the construction of Whites Creek Comprehensive High School, the establishment of the Cole Elementary School annex, and, finally, the proposed closure of Pearl High School, the only traditionally black high school located in the inner city. Plaintiffs also sought alterations in the Court’s 1971 order, stressing, as they had before and after the 1971 order, the disparate busing burden placed on black children. According to the plan and the Board’s implementation of it in the last nine years, black children are bused out of the inner city to schools in predominantly white neighborhoods for grades one through four, whereas white children are bused into the inner city to attend formerly predominantly black schools in grades four and five. Plaintiffs further requested that the 1971 order be modified to include a requirement that defendants recruit, employ, and assign black personnel commensurate with the ratio of the black students in the school system. Finally, plaintiffs asked the Court to change the 1971 order to incorporate a plan to upgrade Pearl High School and other inner city schools. In plaintiffs’ petition for contempt and further relief, they additionally asked the Court to award attorneys’ fees. They had previously requested attorneys’ fees in motions dated February 8, 1974, and April 11, 1975, as well as in a motion,'filed October 16, 1975, to dispose of the pending motions for attorneys’ fees. The next formal pleading was filed in this Court by defendant Board nearly two years later. In its Petition for Approval of School Attendance Zones for 1978-79, filed on July 24, 1978, and amended on August 18, 1978, the Board asked that the Court accept new zoning plans, grade structures, and feeder patterns. Plaintiffs responded to defendants’ request, but no action was taken by this Court. The final pleading filed in this case prior to the 1979 pretrial matters was plaintiffs’ amendment to the October 14, 1976, Petition for Contempt and for Further Relief, filed on August 28, 1978. Basically, the amended petition reiterates the concerns stated in plaintiffs’ earlier petition although in addition it responded to defendants’ July 24, 1978, petition. IV. THE 1979 COURT ORDER In the spring of 1979, this Court held a pretrial conference to distill the remaining issues, some of which had obviously laid dormant for years, and to organize the progression of the case. In an effort to simplify the future presentation of the case, the Court divided the pending matters into four phases, which would be heard seriatim: (1) Historical recapitulation of school desegregation in this county since 1971, and consideration of the Board’s Long Range Plan, including requests for construction projects; (2) Matters relating to the racial composition of staff and faculty; (3) Plaintiffs’ petitions for contempt; and (4) Plaintiffs’ petitions for attorneys’ fees. Hearings on Phase I were held in June and July of 1979, at the conclusion of which the Court ordered that the defendant Board devise and submit to the Court a new plan for desegregation that would involve the entire metropolitan county rather than exempt the outer reaches as the 1971 order had done. Kelley v. Metropolitan County Bd. of Educ., 479 F.Supp. 120 (M.D.Tenn.1979). Because of the short time involved before the beginning of the school year 1979-80, however, the Court approved the zones already in effect for 1979-80, and allowed the Board an additional year before implementation of a countywide plan. Because the Vocational Education Act, T.C.A. §§ 49-2709 et seq., mandated that each school system provide children with an opportunity to attend a comprehensive high school, those children zoned to a noncomprehensive high school in this county had been allowed to transfer automatically to a comprehensive high school. At the 1979 hearings, it became apparent that white children zoned to Pearl High School in the inner city had used this opportunity to defeat the desegregation efforts at that school, leaving Pearl 96.6 percent black in the school year 1978-79. The Court, therefore, enjoined the Board from further implementation of the automatic transfer policy, ordered it to review all transfer requests, and gránt such transfers only for bona fide program reasons. Such an injunction was issued orally from the bench on July 2, 1979, before the conclusion of the hearings. On August 7, 1979, subsequent to the issuance of that injunction and the already concluded hearings, plaintiffs filed a petition for contempt, charging that the Board had not complied with the July 2 order. Hearings were held during August of 1979 on plaintiffs’ motion for contempt. The Court found that the procedure used by the Board in approving subject-matter transfers had “a negative impact upon the desegregation efforts of the School Board” and violated the spirit of the Court’s 1971 order as well as the July 2, 1979, order. 479 F.Supp. at 129. The Court, therefore, specifically defined the procedure by which requests for subject-matter transfers should be considered. Id. at 124-30. Pursuant to defendants’ motion filed after the hearings, the Court permitted the Board to grant any transfer requests of any senior who asked to transfer from a school to which he was zoned to the high school he attended as a junior in the previous year. Id. at 131-32. V. DEVELOPMENTS SINCE THE AUGUST 1979 COURT ORDER In response to the August 27, 1979, Court order, the defendant Board began meeting on October 29, 1979, to develop a countywide desegregation plan. In compliance with the Court’s suggestion that the Board encourage and consider community input, the Board established a citizens’ advisory panel whose members sat with the Board in its deliberations on the plan. Each of the nine Board members, three of whom were black, chose one citizen representative. Five public hearings were held in November of 1979, at which time suggestions from citizens were sought in an effort to develop criteria upon which to base a plan. After the public hearings, the Board and Citizens’ Advisory Panel met five times in December of 1979, to develop criteria for the plan. During these December meetings, the Board voted to retain three outside consultants who had expertise in the area of school desegregation. A planning team was formed, composed of the three consultants, the Assistant Superintendent for Facilities and Services, the Director of Zoning for the school system, eight principals currently employed by the school system, and two administrative employees of the Board’s central office. Input was also received from other experts in the field who had either worked with school systems under desegregation orders or who had academic expertise in this area. The planning team worked through February 4, 1980, consulting regularly with the Board. The Board met to develop a plan, using the previously established criteria, thirteen times during January and February of 1980, spending over 65 hours on its formulation. Two of these meetings were devoted to public hearings to obtain further community input. See Exhibit 177. In the early morning hours of February 5, 1980, the Board adopted a plan, after spending close to one hundred hours of preparation and deliberation. See Exhibit 178. The plan, thus developed and approved, was submitted to the Court on February 11, 1980. In its regular February 12, 1980, meeting, however, the Board voted to amend the plan. Such amendment was filed with the Court on February 14, 1980, by way of affidavit of counsel for defendant Board. Plaintiffs filed their objections to the Board’s proposed plan on February 29,1980. A diverse group of plaintiff-intervenors, representing schools slated for closure under the Board plan, requested and were granted permission to intervene and filed the rudiments of an alternative plan on February 29, 1980. The intervenors’ plan was modified and refined during the course of the hearings and submitted with greater detail in their proposed plan on April 14, 1980. Hearings in this case recommenced on March 3, 1980, and were held for sixteen days in March, nine days in April, and ended with closing arguments on May 1, 1980. During these hearings, testimony was received regarding the plans submitted by both the defendant Board and the intervenors. Before the hearings started, while they were in progress, and even thereafter, the Court received several hundred letters from parents, interested citizens, and community groups, all of which were made a part of the official record in this case. A comparable number of letters was received by the defendant Board. The compendium of such letters to the Board was introduced into the record as Collective Exhibit 170. Amicus curiae briefs were filed by the Metropolitan Nashville Education Association, the League of Women Voters, and the American Education Legal Defense Fund. The three black members of the Board filed a dissent to the plan proposed by the Board and also testified at the hearings. Another white Board member also filed a separate, written dissent from the plan. During the course of the hearings, the plaintiffs were offered the opportunity to file an alternative plan. This offer was first declined but later accepted by the plaintiffs. The additional time requested in which to develop such a plan, however, appeared to preclude a resolution of the case by the beginning of the school year 1980-81 and, therefore, no such plan was presented. The plaintiffs did, through their expert witness, Dr. Hugh Scott, offer specific objections, recommendations, and suggestions to the Court. During the pendency of the hearings and thereafter, the Court read all communications from the public and studied in detail the plans proposed by the defendant Board and the intervenors, the objections filed by the plaintiffs, and the concerns and suggestions presented in the amicus briefs. The plans and objections thereto will be described below. VI. PROPOSED DESEGREGATION PLAN SUBMITTED BY DEFENDANT SCHOOL BOARD Several basic principles, developed initially by the Board as criteria to be used in formulating the plan, see note 31 supra, are woven into the plan as finally adopted and submitted to the Court although rigid adherence to these goals was apparently not always possible. The Board determined that a four-tiered grade structure was the most conducive to integration efforts and that such grade structures would, when feasible, consist of grades 1-4, 5-6, 7-8, and 9-12. The Board adjusted the previous range of percentage of black students per school from 15-35 percent, as adopted by the Court in 1971, to an optimum of 32 percent black with a range of 20 percent in either direction, thus allowing a given school to have only 12’percent black or as much as 52 percent black. The Board focused on the concern of lengthy bus rides by setting a limit of 80 minutes for the longest one-way bus ride and 30 minutes for first and second graders unless a longer ride is necessary to reach the nearest school. A. Senior High School Plan The Board plan provides for the retention of the eight existing comprehensive high schools to serve grades 9-12, and the immediate closure of only two of the nine traditional high schools. Joelton High School, in the northwest portion of the county previously unaffected by the Court order, and Bellevue High School, in the southwestern corner of the county, also outside of the Court order, are slated to be closed as high schools but retained as junior highs. The Board proposes to maintain Hume Fogg High School, located in downtown Nashville, as an open-zoned, vocational-educational school for grades 10-12. West End Junior High School would be converted into an open-zoned, magnet school for the academically gifted and would serve grades 7-8 the first year, with one grade per year being added thereafter. In addition to Hume Fogg, only two schools will be limited to grades 10-12. The Board recommends a gradual phasing out of Pearl High School, discussed infra. Because of the building capacity of DuPont High School, it is not possible to accommodate ninth graders there using the present zone. With these exceptions, all other comprehensive and traditional high schools would serve grades 9-12. The Board proposed two alternative plans regarding the two existing inner city high schools. The primary plan calls for the construction of a new inner city, comprehensive high school in a contiguous zone around the present Cohn and Pearl High Schools but somewhat smaller than the existing zones for the two schools. In the meantime, the Board suggests that those students who have been attending Pearl, Cohn, and Hillwood, a comprehensive high school located in a white neighborhood southwest of the inner city to which students from the inner city have been bused, remain at those schools. Those children who, under the old plan, would have entered either Pearl or Cohn beginning in the ninth grade would be zoned to Cohn, resulting in a gradual phasing out of Pearl. Since no students outside of the inner city would be zoned to Pearl during the three-year phasing out period, it would be overwhelmingly black. In fact, the Board projects that Pearl’s student population would be 92 percent black in the year 1980-81. Cohn, on the other hand, would be within the 12-52 percent range approved by the Board. In contrast, Antioch, located in the southeastern part of the county in a predominantly white neighborhood and slated to receive some students formerly zoned to Pearl, would have a projected black attendance of only 5 percent. Once Pearl is phased out, however, black students in the noncontiguous, former Pearl zone would be zoned to Antioch, raising the percentage to 18 beginning in the 1983-84 school year. The Board outlined an alternative plan encompassing the inner city high schools in the event the Court did not accept the above-described plan. This alternative plan entailed the closure of both Pearl and Cohn as regular high schools and the rezoning of students now zoned to Pearl and Cohn (except for those students in the present Pearl zone who would attend Antioch) to Hill-wood and Hillsboro, both comprehensive high schools located in predominantly white neighborhoods. The second and final proposal for high school construction involves a new Goodlettsville-Madison-Trinity Hills Comprehensive High School, the plan for which the Board has essentially been seeking approval from the Court since 1972. The present Goodlettsville and Madison High Schools would be closed but retained as junior high schools. Students from northwest Nashville living southwest of Maplewood High School would be bused to the GoodlettsvilleMadison High School, giving it a racial ratio within the approved range. Additionally, Stratford Comprehensive High School, whose zone would be contiguous to the zone for the proposed new school, would be within the approved range without pairing with a non-contiguous neighborhood. In contrast, Maplewood and Whites Creek Comprehensive High Schools, also contiguous to the proposed zone for Goodlettsville-Madison, would have a racial ratio of 54 and 58 percent black, respectively, both slightly above the approved range. The original Board plan contemplated the closure of East High School, located in what is called East Nashville north of the Cumberland River. The Board on February 12, 1980, however, amended the plan to study the feasibility of leaving East open beyond 1983 and revising the previously adopted zone for the new Goodlettsville-Madison Comprehensive High School. It is projected that East would have a student population consisting of 55 percent black students, a ratio slightly over the approved range. With the exception of East, Maplewood, Whites Creek High Schools, and Antioch for the interim period, all other comprehensive and traditional high schools in the county would have racial ratios within the approved range. During the period of construction of the new Goodlettsville-Madison High School, the Board suggested that inner city students be bused to both Goodlettsville and Madison, giving each of these schools a 12 percent black population. In the event that the Court disapproved of the construction of the Goodlettsville-Madison High School, the Board adopted an alternative plan that would convert Goodlettsville High School to a junior high school, serving grades 7-9 from the present Goodlettsville and Maple-wood zones and altering the Maplewood grade structure from its present 9-12 tier to a 10-12 school. Under this plan, both Maplewood and Goodlettsville would have racial ratios within the approved range. The same noncontiguous zone as established for the primary interim plan would be assigned to Madison, making it 12 percent black. B. Junior High School Plan With the exception of DuPont Junior High School, the Board proposed that all junior high schools house grades seven and eight. Because DuPont Senior High cannot accommodate grades 9-12, the Board suggested that DuPont Junior High serve grades 7-9, including the middlé portion of the area otherwise zoned to Donelson that consists of children who would be bused to DuPont for ninth grade. As previously discussed, Bellevue and Joel ton Senior High Schools would be retained only as junior highs. The Board plan included five noncontiguous zones from which children living in the inner city and in northeast Nashville would be bused to integrate Bellevue, Donelson, Apollo, Goodlettsville, and Neely’s Bend Junior High Schools, all of which are suburban, predominantly white schools. In addition, the predominantly white suburban children in the Antioch zone in the southeastern portion of the county would be zoned to Cameron Junior High School, located in the inner city. By expanding and annexing the nearby Johnson Elementary School, previously closed by the Board, Cameron would become one of two middle schools serving grades 5-8. The fifth and sixth graders would be bused into the Cameron Complex from the same zone as the seventh and eighth graders. The second middle school serving grades 5-8 would be the Donelson Complex, located in the eastern part of the county. It would be comprised of the present Donelson Junior High School and the nearby Donelson Elementary School and would receive the same children from the northeastern part of the inner city in all four grades. C. Elementary Schools As discussed above, the Board developed a two-tiered elementary structure of schools housing grades 1-4 and 5 — 6. There are, however, many variations in this formula in the final plan due primarily to transportation distances and degrees of natural neighborhood integration surrounding existing elementary schools. Three schools in East Nashville north of the Cumberland River are scheduled to serve grades 1-6 from the integrated neighborhoods surrounding them. In addition, a fourth school would be retained as a 1-6 school. The Board’s criterion that no student should be bused for more than 80 minutes except to the nearest school precluded the Board from attempting to integrate Harpeth Valley Elementary School, located in the suburban, predominantly white southwestern portion of the county. The Board had initially assigned these 42 children to an inner city school but later altered that assignment due to the travel distance involved. Harpeth Valley would thus remain overwhelmingly white. Similarly, the Board’s criterion precluding busing for first and second graders for more than 30 minutes except to the nearest school affected inner city children who normally would have been bused to one of three 1-4 centers in the eastern part of the county. The Board, therefore, proposed to give these children a choice between attending Buena Vista, located on the edge of a zone contiguous to theirs, or one of the three schools to the east. They would then attend Jackson, Hermitage, or Dodson Elementary School in the Donelson cluster for grades three and four and the Donelson Complex for middle school in grades five through eight. The thirty minute limit on busing for young children also motivated the Board to reconsider the pairing of those children in East Nashville, just north of the Cumberland River, with the three elementary schools in the Neely’s Bend area to the northeast. These inner city children near Caldwell Elementary School would have to travel more than thirty minutes to attend the Neely’s Bend area schools and vice versa. The Board, therefore, devised a meeting place for these children at Baxter School, located to the northeast of the inner city. Travel distances for the inner city and the more suburban children would be comparable. After attending Baxter, the inner city children would then be bused to one of three 3-6 centers in the Neely’s Bend area. The Neely’s Bend children would be bused to Baxter for grades one and two but would return to their neighborhood schools for grades 3-6. The Board developed eleven clusters in which the children would not have to be bused to schools in noncontiguous zones. By drawing zoning lines to take into account the racial makeup of populations within the clusters and pairing schools within the clusters, the Board provided these children the opportunity to stay within their cluster for their entire elementary educational experience. Two clusters out of the eleven, however, are unique. The fifth and sixth graders from the northernmost portion of the Crieve Hall cluster, a somewhat triangular zone in the south central part of the county, are zoned to Binkley School, a 5-6 center in the contiguous cluster to the southeast, rather than to Crieve Hall, located in their cluster slightly to the southwest of Binkley. Several clusters form irregular triangles emanating from the center of the county with broadening bases at the county lines. For the most part, the schools toward the inner city are 5-6 centers and the more suburban schools are designated as 1 — 4 centers. This pattern is reflected in five of the seven clusters forming irregular triangles. In three of the elementary clusters the schools are located or zone lines drawn so that the pattern described above is inapplicable. Because of the lack of neighborhood integration, the Board determined that six clusters had to be paired with six other noncontiguous clusters and thus busing across other zones would be necessary. Inner city children surrounding Cameron Junior High in an irregular triangular zone cut out from the Napier cluster would be paired with an irregular circular zone in the far southeastern part of the county. These inner city children would be bused out to the suburban schools for grades 1-4, whereas the suburban children would be bused in to Cameron for grades 5-8. Similarly, inner city children in the north Nashville Wharton zone would be bused to suburban schools in the southwestern part of the county for grades 1-4, and the suburban children would be bused to Wharton for fifth and sixth grades. The same pattern applied in the zone for children in northeast Nashville around Haynes School who would be zoned to one of three 1-4 centers in the northeastern part of the county, and the fifth and sixth grade children in the Amqui zone who would, in turn, be bused into the city to Haynes. Again, the pattern repeated itself for those -children in the zone north of but contiguous ha the Haynes zone. They would be bused' -riorth to Union Hill or Goodlettsville for graces 1-4, and the suburban children bused in to Brick Church for fifth and sixth grades. Predictably, the children in grades 1-4 in the inner City zone around Buena Vista would be zoned to either McGavock or Hickman to the east and the more suburban children bused in to Buena Vista for grades five and six. The two pairings of the noncontiguous zones in the suburban Neely’s Bend area with inner city Caldwell, and the inner city North Nashville zone with the Donelson zone have already been discussed. Only one pairing deviated from the pattern of busing inner city children to more suburban schools in grades 1-4 and suburban children into the city for grades five and six. In the zone north of the Cumberland River containing Shwab, Joy, and GraMar, children would remain in that cluster, attending Joy for grades one and two and either Gra-Mar or Shwab for grades 3-6, whereas the children in the zone slightly to the northeast attend Bellshire for grades 3-6 but are bused in toward the city to attend Joy for grades one and two. Although the Board has adopted a plan to convert West End Junior High to a junior and senior high magnet, with the alternative plan for Pearl to be converted into a magnet, the Board has not chosen which, if any, elementary schools would become magnets. The planners, however, have recommended that five elementary schools be made magnets, feeding into the secondary magnet. This recommendation includes Stateland, located in the Donelson cluster in the eastern part of the county and formerly used as an annex for Dodson School; Dan Mills, located in the Inglewood cluster to the northeast of the inner city; Burton, located in the Stokes cluster in the southern suburban area of the county; Parmer, also in the Stokes cluster toward the southwestern part of the county; and Ford Greene, in the inner city in the Head cluster. Under the Board’s plan, nine elementary schools would be closed for all purposes. Three of these schools are in the inner city whereas the other five are located in more suburban areas to the southwest and southeast of the inner city. The Board projected that in 1980, under its proposed plan, 87 percent of all elementary school students would attend schools within the approved racial ratio range of 12 to 52 percent black. With the exception of DuPont and Harpeth Valley Elementary Schools, all of the twelve elementary schools whose racial ratios fall outside the approved range are located north of the Cumberland River. In these ten schools, the percentage of blacks is projected to exceed 52 percent. This deviation can be explained by the fact that the black population is most concentrated north of the river where blacks make up 40 percent of the population whereas throughout the county blacks comprise only 32 percent. The largest percentage of blacks attending elementary schools would, however, only be 63 percent, which is projected for three elementary schools. VII. PLAINTIFFS’ OBJECTIONS TO THE BOARD PLAN As noted above, plaintiffs did not propose a plan as such. However, very specific objections were made and specific recommendations were offered through plaintiffs’ pleadings and witnesses. A. Disparate Burden Plaintiffs’ major complaint to the 1971 plan and to that of the Board now under consideration is the disparate burden each places upon young black children. Both plans are premised upon the “busing out” of black children in grades 1-4, and the “busing in” of white children in grades 5-6. Plaintiffs insist that such a premise places all of the burden of the desegregative effort upon the young black child while permitting the young white child to attend a neighborhood school. They postulate that the early primary grades are the most formative years of a child’s educational experience. Continuity is extremely important during these years. The ability of a kindergarten teacher to discuss a child’s problems and progress with a first grade teacher, and the first grade teacher with the second, is important educationally to both white and black children, but even more so to the child from a socioeconomically deprived background in which parental support may not be as present. Plaintiffs point out that under the proposed plan, as well as under the 1971 order, the inner city black child never goes to the same school for first grade as he does for kindergarten. Another claimed damaging impact on young black children in the plan is that, in most instances, the black children are taken from a familiar, friendly, supportive environment into what can often be a hostile and unfamiliar environment. This is asserted to be particularly harmful to black children from an underprivileged socioeconomic status. Once again, it is also harmful to white children, but not as severe in higher socioeconomic families. A third problem cited by plaintiffs with the transportation of young black children away from their familiar environment in the early grades is the inability to have parental contact and input. Parents of lower socioeconomic status are much less likely to have linkage with the teacher, particularly when the assigned school is in a distant suburb inaccessible by public transportation. B. Educational Unsoundness of the Four-Tiered Structure Under the proposed Board plan.as well as under the present 1971 order, most children will go to at least four schools during their K-12 school experience and almost all black children will go to five schools. Not only plaintiffs’ experts, but also all those who testified for intervenors as well as the Board, assert that a three-tiered structure is far more educationally sound. In its admission of this principle, the Board acknowledged that its use of a four-tiered structure plus kindergarten was chosen to facilitate the achievement of desired racial ratios. C. Closure of Inner City Schools The Board plan proposes to close five more elementary schools in or on the edge of predominantly black areas. In addition, under the various alternatives of the plan, Pearl High School is contemplated for either closure or conversion to a magnet school. Pearl is the only remaining historically black high school. Plaintiffs argue persuasively for the retention of Pearl because of its historic contribution to the black community of Nashville, the contribution of its graduates to the nation, its value as a source of ethnic pride and symbol of black achievement, and the fact that it is a sound structure, aesthetically attractive, and functional. The building was designed by black architects, constructed by black contractors, and has graduated black persons who have gone on to great achievements in the region and the nation. Such role models are of significant importance to young black children seeking to break out of the bonds of poverty and overcome the unfortunately still-present effects of our shameful two-hundred-year history of discrimination against the black citizens of this land. Substantial proof from many prominent black leaders was offered in support of these contentions. D. The Rightness of Whiteness or “Osmosis” Effect The Board plan and the 1971 plan are both premised upon a goal that the percentage of black students in each school represent the percentage of blacks in the county. This is justified upon the philosophy that each public school should be a microcosm of the community it serves and that it is necessary to use such a percentage mix in order to have enough blacks “to spread around,” thereby achieving racial balance in all schools, and upon the now questioned sociological studies that attempted to demonstrate an educational osmosis effect on a black child from being in a majority white school setting. Plaintiffs insist: (1) the microcosm effect is practically impossible; (2) the “spreading around” effect is inherently disparately burdensome to blacks; and (3) the osmosis theory is invidiously racist and based upon assumed black inferiority. Plaintiffs assert that to contend that a black child can receive a quality education only in a white majority classroom is blatantly racist and paternalistic. In addition, because the earlier sociological studies that may have indicated an osmosis effect have been subjected to such serious methodological question, and because more recent studies have indicated the incorrectness of the earlier conclusions, they should be disregarded. This point of departure demonstrates the evolution of desegregation philosophy that has occurred among educators, sociologists, black parents, and plaintiffs in this litigation as well as in similar litigation across the country. Historically, black plaintiffs felt the necessity to be in a majority white school in order to be assured of equal distribution of educational funding. The assertion and recognition of the right to equal protection of the laws has rendered this reason irrelevant in today’s climate. A dramatic role reversal has taken place. In this case, we have a white majority of the school board, acting on the advice of a white desegregation expert, recommending to the Court more busing to achieve more racial balance. Equally contrary to earlier posture, the black plaintiffs urge upon the Court less busing, more neighborhood characteristics to the assignment plan, and the permissibility of majority black schools. Based upon these and other criticisms of the Board plan, the plaintiffs recommend specific features which any revisions should incorporate: 1. An intervention program that addresses the needs of students who are deficient in the basic skills, especially when such students are bused to schools not in their immediate neighborhood; 2. A program at all schools that provides relevant educational experiences geared to helping students acquire an understanding of the life and culture of black Americans; 3. Programs and services that address the needs of students, black and white, who are achieving below the national norms in the basic skill areas; 4. A mechanism that insures that black students do indeed gain equitable access to the specialized programs offered in the comprehensive high schools; 5. A commitment to the maintenance of Pearl High School; 6. The concept that either whites or blacks can constitute the minority racial group; 7. The maintenance of the kindergarten and the primary grades as an integral educational unit; 8. A busing formula that does not shift black students in disproportionate numbers to white students; 9. A commitment not to dislocate black students disproportionately in the kindergarten and early grades; 10. An improved systemwide ratio of black teachers and black administrators; 11. A policy that permits a greater number of black teachers to be assigned to predominantly black schools. VIII. THE INTERVENORS’ PLAN The plan submitted by the intervenors was hurriedly prepared and therefore understandably lacks refinement in some of its details. It consists of a three-tiered structure within six geographical clusters of elementary, middle schools, and high schools. The elementary schools are neighborhood in character and admittedly do not make maximum utilization of buildings, nor have the neighborhood lines been drawn with a view to maximize integration possibilities within the neighborhood concept. The range of black-white student population ratios for elementary schools within the various clusters are: E Cluster — from 100 percent white at Union Hill to 99 percent black at Kings Lane Q Cluster — from 94.4 percent white at Stratton to 82.7 percent black at Glenn U Cluster — from 99.4 percent white at Stanford to 88.8 percent black at Caldwell I Cluster — from 97.2 percent white at Berry to 86.7 percent black at Napier T Cluster — from 98.7 percent white at Crieve Hall to 98.3 percent black at Ford Greene Y Cluster — from 98 percent white at Harpeth Valley to 99.2 percent black at McKissack (Exhibit 227). The elementary student assignment plan did not consider kindergarten, or special education students, or building requirements. (Exhibit 179). The middle schools within each cluster join a number of the elementary schools to feed each middle school. No noncontiguous zones are utilized to achieve greater degrees of integration. The ranges of black-white student populations are: E Cluster — from 97.4 percent white at Goodlettsville to 70.8 percent black at Ewing Park Q Cluster — from 94.4 percent white at Neely’s Bend to 56.7 percent white at Highland Heights U Cluster — from 99.1 percent white at Two Rivers to 64.2 percent black at Meigs I Cluster — from 94.6 percent white at Apollo to 80 percent black at Cameron T Cluster — from 91.7 percent white at McMurray to 95.6 percent black at Wharton Y Cluster — from 95.7 percent white at Bellevue to 42.7 percent black at West End (Exhibit 227). The high school plan envisions retention of the existing comprehensive high schools, but also would retain Pearl, Cohn, Bellevue, Joelton, Antioch, East, DuPont, Madison, and Goodlettsville as “traditional” high schools. An option would be offered to each student within each cluster of either a comprehensive or traditional secondary education. The plan contains a number of voluntary components designed to foster community support and also to facilitate integration. Failure to achieve or maintain at least a 10 percent racial minority presence (black or white) within a reasonable time after use of magnet programs and zone readjustments would result in closure of the school. If a school fell below 50 percent utilization it would be closed. Application for transfer from a “traditional” to a comprehensive high school which would have a negative impact on integration would be first subjected to a course offering at the “traditional” school to attempt to prevent the transfer. The intervenors’ plan emphasizes the use of public transportation facilities as both a money-saving device and as a method for establishing natural linkages among students, parents, and the receiving schools. The point is well made that access to a school by public transportation tends to foster parent participation in school activities and in the education of their children, facilitate the participation of children in after-school extracurricular activities, and encourage intercommunity relationships. As noted in the discussion of the Board’s plan, noncontiguous zoning between communities, between which there is no public transportation and little other commonality, has many inherent problems and disadvantages. Close coordination between the Board and the Metropolitan Transit Authority is urged in establishing new routes and future school construction. The high school plan departs from a consistent feeder pattern for the middle schools. For example, some children who went to middle school at John T. Moore in the “T” cluster will go to high school in the “Y” cluster. Some who went to West End in the “Y” cluster will go to high school in the “T” cluster. Litton middle schoolers will be split between the “Q” and “U” clusters. (Exhibits 225 and 226). The intervenors urge the Court to defer adoption of any plan until 1981-82 in order to implement their suggestion. Although the voluntary components of the plan offer attractive alternatives designed to foster community support for the school system, the plan is defective in a number of respects. First, it emanates largely from a parochial desire to maintain high schools in established communities such as Pearl, Cohn, Bellevue, and Joelton in contradiction to the Board’s established policy (and state mandate) of a system of comprehensive high schools. There is a growing debate among professional educators as to the wisdom and educational value of comprehensive high schools. This Court need not enter or take sides in the debate except to the extent that the decision may facilitate or deter efforts to achieve a unitary system. Otherwise, it is an educational decision. It is impossible to justify maintenance of Pearl, Cohn, and Bellevue in the southwest quarter of the county alongside the three comprehensive high schools (Hillwood, Overton, and Hillsboro) that have been built in the same quadrant. At the anticipated enrollment for 1983, these three new comprehensive high schools could accommodate all students in the southwestern quadrant, leaving the Pearl, Cohn, and Bellevue buildings available for other uses, and still have 1156 empty seats. Under the same 1983 projections, the new Whites Creek Comprehensive High School can absorb all Joelton students and still have 372 empty seats. (Exhibit 155). Such underutilization seems economically unjustifiable and there is no basis upon which the Court could mandate it. More importantly, the intervenors’ plan substantially resegregates most of the proposed “traditional” high schools. Initially, Madison would be 97.8 percent white, DuPont would be 98.8 percent white, Antioch would be 96.2 percent white, Bellevue would be 97.1 percent white, and Pearl would be 92.7 percent black. Some of the currently integrated comprehensive high schools would revert to identifiably black or white schools: Overton would become 96.2 percent white, Hillsboro would become 95.9 percent white, and McGavock would become 96.4 percent white. Intervenors would rely on the voluntary components and magnet aspects of their plan to bring these schools to a minimum 10 percent of either race as a minority in such schools. However, the prospect of such an eventuality is unduly optimistic at best. IX. THE COURT’S RESPONSIBILITY A. A “Unitary” System Once a finding has been made that a racially discriminatory dual school system has been maintained, it is the responsibility of the School Board, under supervision of the Court, to achieve a “unitary” school system. Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Perhaps intentionally, no precise definition of what constitutes a “unitary” system has been laid down. In Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19, 21 (1969) (per curiam), the Supreme Court mandated a system “within which no person is to be effectively excluded from any school because of race or color.” This definition was reiterated in the concurring opinion of Chief Justice Burger in Northcross v. Board of Educ., 397 U.S. 232, 237, 90 S.Ct. 891, 893, 25 L.Ed.2d 246, 250-51 (1970) (per curiam). Pursuant to this Court’s direction to seek public input to the proposed plan, the Board invited definitions of “unitary school system” at its public hearings. Some of these bear repeating: By the nature of the title an Unitary School System implies oneness of opportunity for all children, oneness of administration, oneness of financial support, oneness of educational philosophy, oneness with Metropolitan Government, and oneness geographically centered at and emanating from the heart of the inner-city. Councilman William E. Higgins A Unitary School System is that system which is designed and functions to the extent that equal resources and access to quality education are available to all parts and groups of a given community- Rev. Amos Jones, North Nashville Community Council & Social Action A unitary school system is one offering each student equal access to the facilities, materials and staff to provide the opportunity to meet his/her educational needs. This uniformity of opportunity must also extend to parent, family and citizen involvement in the educational system. Tom Phillips, Dodson School PTA Exhibit 2 to plaintiffs’ proposed plan, filed Feb. 11, 1980. Brown v. Board of Educ. (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), broke down the barriers excluding black children from attending schools with white children. Green v. County School Bd., supra, described the ultimate goal to be a u