Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, TN Reply Brief of Defendants/Appellees/Cross-Appellants

    IN THE

United States  Court of  A ppeals
FOR THE EIGHTH CIRCUIT

No. 18,731
FANNIE MAE ROBINSON, CURTIS LEE ROBINSON, 
JERRY ROBINSON, SHIRLEY ROBINSON, TERRY 
ROBINSON, and BRENDA ROBINSON, Minors, by their 
mother and next friend, MRS. ALLEAN ROBINSON; 
GLENN ALVIN KING, a Minor, by his mother and next 
friend, MRS. BOBBY JEAN DOCKERY; LUTHER 
TALLEY, a Minor, by his mother and next friend, MRS. 
GRACE TALLEY; KATHY MARIE KING and HERTIS 
JR. KING, Minors, by their mother and next friend, MRS. 
MAE DEL WINCHER; SHEILA DENNIS, a Minor, by 

her mother and next friend, MRS. EDNA DENNIS, 
Appellants,

vs.
THE WILLISVILLE SCHOOL DISTRICT, a public body 
corporate; and TRAVIS HARDAWAY, Superintendent 

of the Willisville School District,
Appellees,

On A ppeal from  D ecision of the United States D istrict 
C ourt for the W estern D istrict of A rkansas, 

T exarkana  D ivision

APPELLEES’ BRIEF

Charles L. H oney 
P. O. Box 739 
Prescott, Arkansas 

Attorney for Appellees

E. L . M rhdbnhill, Iso ., 926 Cherry Street. Kansas City, Mo, 64106, HArrison 1-3030



TABLE OF CONTENTS

Statement ....... .................. ...... .............................. -......... 2
Statement of Points to Be Argued ...................... .........- 5
Argument—

I. The Failure of the District Court to Order the
Admission of Negro Students Residing in the 
Willisville School District to the Willisville 
School Denies the Negro Students the Equal Pro­
tection of the Laws ......................... ........... -...... . 6

II. The Oak Grove School District Is Not a Proper
Party to This Action, and the Court Below Erred 
by Ordering the Oak Grove District to Accept 
Willisville’s Negro Students ..............................  7

III. The District Court Erred by Ordering the School 
Board to Submit a Plan of Desegregation ........... 10

Conclusion ............................................................ ............. 12

Table of Cases
Bradley v. School Board of City of Richmond, 345 F. 2d 

310 (4 Cir., 1965) ........................... ...............................  11
Briggs v. Elliott, 132 F. Supp. 776 (1955) .....................  11
Evers v. Jackson Municipal Separate School District,

328 F. 2d 408 (5th Cir., 1964) ........ .......................... 11
Stell v. S'avannah-Chatham County Board of Education,

333 F. 2d 55 (5th Cir., 1964) ............ ........ ...............  11
Yarbrough v. Hulbert-West Memphis School District,

243 F. Supp. 65 (1965) .............................................. ! 11



IN THE

United Stat es  Court  o f  A p p e a l s
FOR THE EIGHTH CIRCUIT

No. 18 .731

FANNIE MAE ROBINSON, CURTIS LEE ROBINSON, 
JERRY ROBINSON, SHIRLEY ROBINSON. TERRY 
ROBINSON, and BRENDA ROBINSON, Minors, by their 
mother and next friend, MRS. ALLEAN ROBINSON; 
GLENN ALVIN KING, a Minor, by his mother and next 
friend, MRS. BOBBY JEAN DOCKERY; LUTHER 
TALLEY, a Minor, by his mother and next friend, MRS. 
GRACE TALLEY; KATHY MARIE KING and HERTIS 
JR. KING, Minors, by their mother and next friend. MRS. 
MAE DEL WINCHER; SHEILA DENNIS, a Minor, by 

her mother and next friend, MRS. EDNA DENNIS, 
Appellants,

vs.
THE WILLISVILLE SCHOOL DISTRICT, a public body 
corporate; and TRAVIS HARDAWAY, Superintendent 

of the Willisville School District,
Appellees.

O n A ppeal from  D ecision of the United States1 D istrict 
Court for the W estern D istrict of A rkansas. 

T exarkana D ivision

APPELLEES’ BRIEF



2

STATEMENT

This is an action by Negro students residing in the 
Willisville School District, Arkansas, seeking admission to 
the Willisville Public School. The Court below entered an 
order that they be accepted temporarily in the Oak Grove 
Public School, an all-Negro school in a district adjacent to 
the Willisville School District. The Negro students have 
appealed that decision to this court.

Until the present school year, 1966-67, the Willisville 
School District operated its one school, the Willisville Pub­
lic School, as a segregated school for whites only. The 60 
to 70 Negro students residing in the Willisville School Dis­
trict attended a Negro school in the Oak Grove School Dis­
trict, which lies adjacent to the Willisville School District. 
All of the Negro families living in the Willisville School 
District paid their property taxes in the Oak Grove School 
District so that they actually supported the Oak Grove 
Public School. At the start of the 1966-67 school year, 
Freedom of Choice forms were sent to all of the children 
residing in the Willisville School District, in compliance 
with the guidelines of the United States Office of Educa­
tion. Approximately 30 Negro pupils responded and regis­
tered for attendance at the Willisville Public School. As 
a result, approximately 30 Negro pupils and 85 white pupils 
were enrolled in the Willisville Public School in the begin­
ning of the current school term.



3

Appellants and others similarly situated chose to con­
tinue to attend the all-Negro Oak Grove Public School 
and said Oak Grove Public School agreed to accept them, 
for enrollment. However, less than one week prior to the 
beginning of the current school term, Clifford Bradford, 
Superintendent of the Oak Grove School District, advised 
Appellee, Travis Hardaway, Superintendent of the Willis- 
ville School District, that the Oak Grove School District 
would accept only Senior students and would not accept 
Appellants herein. This was the result of a telephone con­
versation which Mr. Bradford had with the Office of Educa­
tion in Washington.

At that late date, it was too late for Appellees to ac­
cept any more students for enrollment in the Willisville 
School District. In a school system geared to serve 115 
students, the addition of another 30 to 40 students would 
have required additional teachers, additional transportation 
facilities (at the beginning of the 1966-67 school term, Ap­
pellee school district owned two 48-passenger school buses 
each of which was at that time carrying approximately 
60 passengers), additional school furniture and additional 
books and equipment. On the other hand, the Oak Grove 
School District had adequate transportation facilities, ade­
quate space, adequate teachers and adequate school furni­
ture, books, and equipment. The 30 to 40 students involved 
wanted to attend the Oak Grove School and the Oak Grove 
School District wanted to accept them but the Office of 
Education would not permit it. And as a result of the de­
cision made by the Office of Education, the Oak Grove 
School District sent school buses into the Willisville School



4

District, passing by the homes of Appellants in this action, 
for the purpose of picking up two seniors.1

On October 17, 1966, Appellants brought this action 
to obtain immediate admission in the Willisville Public 
School. The Willisville School District’s answer on No­
vember 7, 1966, admitted its refusal to accept the students 
because of the impossibility of the situation. In a third 
party complaint filed on the same date, the Willisville 
School District prayed that the Oak Grove School District 
be made a party to the action below and be ordered to accept 
the students temporarily for the remainder of the current 
school term so that the Willisville School District might 
take adequate preparation to accept Appellants. After a 
hearing, the District Court granted Appellee’s prayer and 
ordered the Oak Grove School District to accept 30 to 40 
of the Willisville School District Negro students.

The District Court also ordered the Willisville School 
District to submit a plan of desegregation. The Court gave 
the Oak Grove School District 20 days in which to file 
an Answer and then gave the Willisville School District 30 
days after the filing of such answer by the Oak Grove 
School District, to submit a plan of desegregation. On De­
cember 28, 1966, Appellants herein filed a Notice of Appeal 
to this Court.

1. The following colloquy between Mr. Charles Honey and 
Mr. Clifford Bradford, Superintendent of the Oak Grove District 
verifies this:

Mr. Honey: So, consequently, we’re in a situation where the
Oak Grove School System is sending a bus into the Willisville 
School District and picking up how many seniors, Mr. Bradford?

Mr. Bradford: Two.



5

STATEMENT OF POINTS TO BE ARGUED

I

The Failure of the District Court to Order the Admis­
sion of Negro Students Residing in the Willisville School 
District to the Willisville School Denies the Negro 

Students the Equal Protection of the Laws.

II

The Oak Grove School District Is Not a Proper Party 
to This Action, and the Court Below Erred by Ordering 
the Oak Grove School District to Accept Willisville’s 

Negro Students.

III

The District Court Erred by Ordering the School Board 
to Submit a Plan of Desegregation.

Briggs v. Elliott, 132 F. Supp. 776 (1955).
Bradley v. School Board of City of Richmond, 345

F. 2d 310 (4 Cir., 1965).
Stell v. Savannah-Chatham County Board of Edu­

cation, 333 F. 2d 55 (5 Cir., 1964).
Evers v. Jackson Municipal Separate School Dis­

trict, 328 F. 2d 408 (5th Cir., 1964).
Yarbrough v. Hulbert-West Memphis School Dis­

trict, 243 F. Supp. 65 (1965).



6

ARGUMENT

I

The Failure of the District Court to Order the Admis­
sion of Negro Students Residing in the Willisville School 
District to the Willisville School Denies the Negro 

Students the Equal Protection of the Laws.

All the student-plaintiffs in this action reside in the 
Willisville School District. There is not now nor has 
there ever been any question of their being qualified or 
legally entitled to attend the Willisville School.

These students were not denied admission to the 
Willisville School because of their race. They were de­
nied solely because of the impossibility of the situation. 
The Willisville School Board and school officials believed 
that these students had been accepted by and would enter 
the Oak Grove Public School. When they learned that 
the Office of Education would not permit this arrange­
ment, it was too late to hire additional teachers and pro­
vide the additional transportation facilities, books, school 
furniture, etc., necessary to increase the enrollment of the 
school by approximately 25%. The District Court, in his 
discretion, placed the student-plaintiffs in the Oak Grove 
Public School as a temporary measure only after he real­
ized the impossibility of placing those students in the 
Willisville Public School until the proper arrangements 
were made.

This was in the best interests of the students involved. 
The law cannot nor should not presume to require that 
which is impossible. To have done so in this instance



7

would have worked a serious hardship on the Negro 
student-plaintiffs in this action.

Nothing in this arrangement denies the Negro stu­
dents the equal protection of the laws. In this case, the 
Willisville School District is attempting to change from 
an assignment system that assigns students to schools 
solely on the basis of race, to a system whereby students 
are assigned to schools purely on the basis of their own 
free choice. If this is done, within the tolerance of time 
that has been called a reasonable “transition period” in 
many decisions, then the plaintiffs are entitled to nothing 
more under the Constitution.

II
The Oak Grove School District Is Not a Proper Party 
to This Action, and the Court Below Erred by Ordering 
the Oak Grove School District to Accept Willisville’s 

Negro Students.

Rule 19 (a) provides in part that a person shall be 
joined “ if in his absence complete relief cannot be ac­
corded among those already parties”

The District Court, in his discretion, obviously found 
that the student-plaintiffs in this action could not be af­
forded complete relief unless the Oak Grove School Dis­
trict was made a party to the action. It would certainly 
have been very little relief to have forced the student- 
plaintiffs into an already overcrowded school which lacked 
sufficient space, a sufficient teaching staff, sufficient 
transportation facilities, and sufficient books and school



8

furniture to accomodate them, at a time when the school 
term had already been in process for several weeks and 
the student-plaintiffs were actually in need of remedial 
assistance to catch up. On the other hand, the Oak Grove 
School had sufficient space, sufficient transportation fa­
cilities, sufficient books and furniture, and an adequate 
teaching staff which could give them the remedial atten­
tion that was needed.2

Appellants’ brief states “The action of the district 
court in ordering Oak Grove to accept thirty of Willis- 
ville’s Negro students after HEW and Oak Grove agreed 
that only two seniors would be accepted is also an unwar­
ranted interference with the Congressional plan of school 
desegregation established by the Civil Rights Act of 1964” , 
and thereby implies that the making of the Oak Grove 
School District a party to this action was against the will 
of the Oak Grove School District. This is not the case. 
The Oak Grove School District had in fact agreed to ac­
cept those students which chose to attend the Oak Grove 
Public School and was then forbidden by the Department

2. The following statements by Mr. Bradford, Superintendent 
of the Oak Grove School, tend to show the capacity of the Oak 
Grove School:

The Court: How many can you take care of?
Mr. Bradford: Last year we had an enrollment of five hun­

dred and forty-two. We took care of those.
The Court: In other words, with the, some two hundred

seventy-five to eighty students that you have then today, you 
are not overcrowded?

Mr. Bradford: No, we’re not. (R, 34)



9

of Health, Education, and Welfare to execute its agree­
ment with the Willisville School District.3

3. The Court: What reason does the Oak Grove give for
refusing to take these students this year?

Mr. Honey: I have no first hand knowledge of that, but it’s
my understanding, and I assume, that it was after a conference 
with the Office of Education. Is that right, Mr. Bradford?

Mr. Bradford: Equal Educational Opportunities in Washing­
ton. The office of Equal Educational Opportunities in Washington.

Mr. Honey: Under the auspices of what office?
Mr. Bradford: The office, the department of Health, Educa­

tion and Welfare.
Mr. Honey: I see. In the Office of Education, is that right?
Mr. Bradford: Yes, sir.
Mr. Honey: So it was the branch, the Equal Opportunities

Branch, of the Office of Education, suggested, I believe, to Mr. 
Bradford—and I’m not trying to speak for him, because 1 have no 
first hand knowledge—but I believe they suggested to you that you 
could pick up the seniors, is that correct, and could not get the 
others?

Mr. Bradford: Right. (R. 19, 20)
The Court: . . . Now when were you advised by the Office of

Equal Opportunities of the Department of H.E.W. that you could 
not carry out the arrangement that you had with the Willisville 
District heretobefore?

Mr. Bradford: There are several occasions on which I con­
tacted a Mr. Richard Baldo, and on several occasions he’s told me 
that I could not. Mow this was from the middle of July until my 
last contact with him which was about a week before the—on this 
particular incident, was about a week before I understand the suit 
was filed.

The Court: Well, I believe this suit was instituted October
the 17th. You started the school before that, didn’t you?

Mr. Bradford: Yes, we did. I stated that about—from about
the middle of July until about a week before this suit was instituted 
that I had been in constant contact with Mr. Baldo trying to get 
those particular students. And he, in turn, told me that their 
purpose would be defeated if I took anything other than the seniors. 
So, under those circumstances, I felt—and the Board of the Oak 
Grove School District felt—that we could not get those students 
unless we were told by Washington or some authority in the area 
to get them.

The Court: You’re taking four seniors or five?
Mr. Bradford: Four seniors from the Willisville School Dis­

trict.



10

There is nothing in the Civil Rights Act of 1964 which 
authorizes the Department of Health, Education, and Wel­
fare to interfere with a complete freedom of choice desegre­
gation plan, which was the basis of the arrangement be­
tween the Willisville School District and the Oak Grove 
School District.

Ill
The District Court Erred by Ordering the School Board 

to Submit a Plan of Desegregation.

It is Appellants’ contention that “any ‘choice’ between 
two school districts, one of which being a Negro school 
district that is not the district in which Appellants reside, 
is an unconstitutional choice,” because “such a choice is no 
more than a device to encourage Negro students to con­
tinue to attend segregated schools.”

This reflects Appellants’ misconception of the basic 
obligation placed on local school authorities by the 14th 
Amendment. The courts have repeatedly held that the

The Court: And five from Cale?
Mr. Bradford: Yes, sir.
The Court: Under the circumstances, are you here to object

to the complaint that your district be brought into this matter as 
a third party?

Mr. Bradford: I am here because I received correspondence
to be here. (R. 29, 30)

Mr. Bradford: It is my understanding that these children do
reside in the Willisville School District, and as I have stated, I have 
pleaded for them, and upon being told “no” . And this is all that 
I can say concerning the matter.

The Court: But you were being told “ no” by the federal
government—

Mr. Bradford: That’s correct.
The Court: — as a basis of your continuing to receive fed­

eral funds.
Mr. Bradford: Yes.



11

Constitution does not require integration. It merely forbids 
discrimination. It does not forbid such segregation as oc­
curs as the result of voluntary action. Briggs v. Elliott, 132 
F. Supp. 776 (1955); Bradley v. School Board of City of 
Richmond, 345 F. 2d 310 (4 Cir., 1965); Stell v. Savannah- 
Chatham County Board of Education, 333 F. 2d 55 (5 Cir., 
1964).

See also Evers v. Jackson Municipal Separate School 
District, 328 F. 2d 408 (5 Cir., 1964), and cases cited therein.

Many of the Negro students who reside in the Willis- 
ville School District wish to continue their education in 
the Oak Grove School. This is understandable in view of 
the fact that Oak Grove is a larger school, has a smaller 
pupil-teacher ratio, and a wider selection of subjects and 
a more extensive curriculum. This is evidenced by the fact 
that approximately one-half of the Negro students residing 
in the Willisville School District elected to return to the 
Oak Grove School for the 1966-67 term. It will be much 
more fair to permit the Negro students who reside in the 
Willisville School District to have a freedom of choice than 
to restrict them to a school which is in fact inferior than 
the school which they have been attending. Such a freedom 
of choice plan has been devised and has the approval of 
both the Willisville School Board and the Oak Grove School 
Board.

In Yarbrough v. Hulbert-West Mem,phis School District, 
243 Fed. Supp. 65 (1965), Judge Young said: “ . . . the basic 
responsibility and authority for operating the schools in a 
constitutional manner rest upon the school boards and 
school authorities rather than the courts. The question is



12

not what the court would do if it were operating the schools, 
but whether the defendants are proceeding in a permissible 
manner from a constitutional standpoint.”

This duty to proceed in a constitutional manner is dis­
charged when the freedom of choice principle is made fairly 
available to all of the students in the district.

CONCLUSION

WHEREFORE, Appellees pray that the Interlocutory 
Order and judgment below be affirmed and the District 
Court be directed to proceed with its hearing on the de­
segregation plan.

Respectfully submitted,

Charles L. H oney 
P. O. Box 739 
Prescott, Arkansas 

Attorney for Appellees