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Supreme Court Refuses To Consider Nashville School-Desegregation Case

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Washington--The U.S. Supreme Court last week declined to review a federal appeals-court ruling that requires the public schools in Nashville and suburban Davidson County to expand the use of mandatory student busing for desegregation.

Civil-rights advocates called the Court's decision not to hear the case, Metropolitan County Board v. Kelly, a major victory and predicted that the action would blunt the Reagan Administration's efforts to seek the dismantling of existing mandatory pupil-transportation plans.

Many of those advocates were here attending the annual meeting of the Leadership Conference on Civil Rights. When word of the decision was announced during one of the conference's general sessions, the audience applauded enthusiasticly.

Last November, the Justice Department filed a friend-of-the-court brief in the case, urging the Court to allow the schools to stop busing young pupils because, the agency said, such transportation had caused educational, social, and economic disruption in the community.

The department also argued against the use of strict racial quotas to determine the enrollments of middle and high schools in the 70,000-student district.

"The Court sent a signal to the Justice Department, telling it, 'Listen, stop bothering us with this stuff,"' said Gary Orfield, a professor of political science at the University of Chicago and a noted school-desegregation researcher. He added that the Court was also sending a signal to the lower federal courts "that it is not prepared to recommend that fundamental changes be made in school desegregation."

(In a related development, Mr. Orfield last week released the second part of a study, prepared for a Congressional committee, on the status of school desegregation nationwide. See related story on page 10.)

"I think that it's important to note that the Justice Department pushed hard for this review, that the Court had a lot of time to make its decision, and that it still refused to move," added William Taylor, director of the Center for National Policy Review, a private organization that monitors school desegregation. "I think this should send a message to all people that the law is still the law and that it is still significant."

The Administration, however, expressed a different view following the Court's refusal to hear the case.

The decision "in no way indicates that the legal issue of mandatory busing is closed," said William Bradford Reynolds, the assistant attorney general for civil rights, in a prepared statement.

Although the Administration had hoped that the Court would accept the case, he said, "It is not at all unusual for [the Court] to leave development of this area of law to lower federal courts."

"It is there that we will concentrate our efforts," Mr. Reynolds continued. "We continue to believe that it is far better to desegregate dual public-school systems through the use of transfer programs that depend on non-mandatory measures. Where such plans produce comparable desegregation, we think that the federal courts will find them preferable."

He added that the Administration "will not hesitate again to ask the Supreme Court to rule on this question."

Board Challenges Decision

The Nashville-Davidson County case came to the Court in an appeal by the region's school board. The board was challenging an August 1981 decision by the U.S. Court of Appeals The Nashville-Davidson County case came to the Court in an appeal by the region's school board. The board was challenging an August 1981 decision by the U.S. Court of Appeals for the Sixth Circuit that rejected an amended school-desegregation plan for the district that had been approved earlier that year by U.S. District Judge Thomas A. Wiseman Jr.

Since 1971, the Nashville schools and those in surrounding Davidson County have operated under a desegregation order requiring busing and approximate racial balance. About one-third of the district's schools were not included in the plan because they were located in distant, semirural areas.

In court proceedings that began in 1978, both the black plaintiffs and the school board agreed that changes in the plan were necessary because black children had unfairly borne the brunt of the transportation order, because black parents had found it difficult to participate in their children's schools, and because demographic changes necessitated the redrawing of attendance boundary lines.

Judge Agrees

Judge Wiseman agreed on the need both to bring the outlying county schools into the desegregation plan and to add black studies and remedial classes to the district's curriculum.

However, he also ruled that 1st through 4th graders could be exempted from the busing plan, basing his decision largely on testimony that the transportation of those children had helped enhance "white flight'' from the district.

Moreover, Judge Wiseman's ruling would have permitted 85 percent of each secondary-school's student population to be made up of one race. This year, the district's total enrollment is approximately 70 percent white and 30 percent black.

Ruling Appealed

The naacp Legal Defense and Educational Fund, which represented the plaintiffs in the case, appealed Judge Wiseman's ruling to the Sixth Circuit. Although the court upheld the educational components of the revised desegregation plan, it rejected the pupil-transportation portion, relying heavily on the Supreme Court's 1971 decision in Swann v. Charlotte-Mecklenburg Board of Education.

The court ruled that the return of 1st through 4th graders to neighborhood schools ran counter to the Swann decision, which held that the benefits of attending neighborhood schools "cannot outweigh the constitutional requirement to desegregate the schools."

The court also rejected the plan's more lenient racial quotas, noting that the Swann decision required that enrollment in individual schools be approximately proportional to that of the district as a whole.

The Justice Department's brief filed with the Supreme Court argued that the appeals court erred in its interpretation of Swann.

"Swann does not foreclose the district court from considering educational, social, and economic costs in fashioning relief, nor does it require that the district court use a systemwide racial quota in the manner prescribed by the court of appeals," the department said.

The court did not elaborate reasons for its refusal to review the case, noting only that Associate Justice Thurgood Marshall--the Court's only black member and a former director of the naacp Legal Defense and Educational Fund--did not participate in the decision.

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