Haney v. Sevier County Board of Education Brief for Appellants

    In the

Intteft ©uurt nf Appmlz
F o e  t h e  E ig h t h  C ie o u it  

No. 19404

L ela  M ae H a n e y , et al.,
Appellants,

C o u n t y  B oard of E du ca tio n  of S e v ie r  C o u n t y , et al.,

Appellees.

on a ppea l  fro m  t h e  u n it e d  st a t e s  d ist r ic t  court

FOR THE WESTERN DISTRICT of ARKANSAS

BRIEF FOR APPELLANTS

J o h n  W . W a l k e r

1820 West Thirteenth Street 
Little Rock, Arkansas 72202

N orman  J .  C h a c h k in  
220 Locust Street 
Philadelphia, Pennsylvania 19106

J a c k  Gr e e n b e r g

M ic h a e l  M e l t s n e r

F r a n k l in  W h it e

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

Issues Presented for Review................................. vi

Statement of the Case...................................... 1

1. The Pleadings  .... .................2

2 . The Evidence ................................... ...3

A. Creation of Sevier County District No. 1......3

B. The 1954 Property Transfers................... 9

C. Current Operations of the Districts..... ....10

3. The Judgement Below..............................14

ARGUMENT:

I. The Sevier County School District No. 1 Is A 
Gerrymandered All-Negro School District 
Deliberately created And Maintained In Violation 
Of The Fourteenth Amendment To The Constitution
Of The United States...................... ....... 16

II. The Court Erred In Finding That The Action Was
Not A Proper Class Action.............  25

III - This Court Should Require Consolidation Of The 
Lockesburg And Sevier County School Districts 
And Should Also Award Meaningful Attorneys'
Fees........     28

Conclusion.... ....................... ............ ........ .34
Certificate of Service.......................................35



IX

TABLE OF CASES

Page

Anderson v. Martin, 375 U.S. 399 (1964) . . . . . .  23

Bell v. School Board of The City of Richmond,
321 F .2d 494 (4th Cir. 1963) . ....................  32

Board of Public Instruction of Duval County,
Fla. v. Braxton, 326 F .2d 616 (5th Cir.
1 9 6 4 ) ............... .............................. 29

Brewer v. School Board of the City of Norfolk,
Va. , F . 2d (1968) . .................... .. 29

Brown v. Board of Education, 347 U.S. 483 (1954),
34 9 U.S. 2 94 (1955)..............................  18,21,30,31

Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961) ............. ....................... - 23

Bush v. Orleans Parish School Board, 308 F.2d
491 (5th Cir. 1962) . . . . . . . . . . . . . . .  25

Carr v. Montgomery County (Ala.) Board of Edu­
cation, 253 F.Supp. 306 (M.D. Ala. 1966) . . . . .  28

Cato v. Parham, No. PB-67-C-69 (E.D. Ark.)
decided July 25, 1968 ............................  32

Clark v. Board of Education of Little Rock School
District, 369 F.2d 661 (1966) ....................  18

Clemons v. Board of Education, 228 F.2d 853
(6th Cir. 1956) ...................... .. 18

Cooper v . Aaron, 358 U.S. 1 (1958)............... • 18

Dowell v. School Board of Oklahoma City Public 
Schools, 244 F.Supp. 971 (W.D. Okla. 1965) 
aff'd. 375 F .2d 158 (10th Cir. 1967), cert, 
den. 387 U.S. 931 (1967) . ........................  28



Ill

Page
Green v. County School Board of New Kent 

County, Va., 391 U.S. 430 ........... 31
Griffin v. County School Board of Prince 

Edward County, 377 U.S. 218 (1964). . . 28
Gomillion v. Lightfoot, 364 U.S. 339 (1960) . . 18
Goss v. Board of Education, 373 U.S. 683 (1963) . 23
Jackson v. Marvell School District, Nos. 

H-66-C-35, H-67-C-20 (E.D. Ark.) decided 
August 6, 1968 ................. 32

Kansas City v. Williams, 205 F.2d 47 
(8th Cir. 1953) ................... 25

Kelley v. Altheimer Public School District, 
378 F .2d 483 (8th Cir. 1967). . . . . . 18,29

Kelley v. Altheimer, No. PB-66-C-10 (E.D. Ark.) 
decided July 29, 1968 . ............. 32

Kemp v. Beasley, 389 F.2d 178 (1968). . . . . . 18
Louisiana v. United States, 380 U.S. 145 (1965) . 28
Lucas v. Forty-Fourth General Assembly, 377 

U.S. 713 (1964) ......... . . . . . . 24
Newman v. Piggie Park Enterprises, Inc., 

390 U.S. 400 (1968)........... 32,33
Norris v. Alabama, 249 U.S. 587 (1935). . . . . . 23
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) . . . 25
Reitman v. Mulkey, 387 U.S. 369 (1967). . . . . . 23,24
Robinson v. Florida, 378 U.S. 153 (1964). . . 23
Rolfe v . Lincoln County Board of Education,

F.Supp. (D. 1968) ......... . . . . . . 32



XV

Page
Smith v. Board of Education of Morillton School

District No. 32, 365 F.2d 770 (1966)............ 18

Smith v. Texas, 311 U.S. 128 (1940) . . . . . . . .  18

Stroud v. Fryar, 216 Ark. 250, 225 S.W.2d 23
(1949) ................................. 6

Taylor v. Board of Education of City School 
District of New Rochelle, 191 F.Supp. 181;
195 F.Supp. 231 (S.D.N.Y. 1961), aff'd.,
294 F .2d 36 (2nd Cir. 1961), cert. den. 368
U.S. 940 (1961) . . . . . . . . . . . . . . . . .  18

United States v. Board of Public Instruction of
Polk County, Fla., 395 F.2d 66 (1968)........... 29

Wheeler v. Durham City Board of Education, 346
F.2d 768 (4th Cir. 1965) . . . . . . . . . . . .  29

Whitus v. Georgia, 359 U.S. 545 (1967). . . . . . .  23

Wright v. Rockefeller, 376 U.S. 52 (1964) . . . . .  24
Zeigler v. Gibralter Life Ins. Co., 43 F.R.D.

169 (D.S.D. 1967) . . . . . . . . . . . . . . . .  26

STATUTES

Federal:

Civil Rights Act of 1964, Title II, 42 U.S.C.
§ 2000a et seq. . ............. ..



V

State:
Page

Ark. Stats Ann. § 80-50a (Repl. 1 9 6 0 ) .............  18

80-113 (Repl. 1960) . . . . . . .  6

80-213 (Repl. 1960) . . ......... 6

80-418 (Repl. 1960)   . 6

80-426 (Repl. 1960) . . . . . . .  4,6,7

80-427 (Repl. 1960) . . . . . . .  5,6

80-428 (Repl. 1960) . . . . . . .  5,6,7

80-429 (Repl. 1960) . . . . . . .  5,6,7

MISCELLANEOUS
Black, The Supreme Court, 1966 Term -- Foreword 

"State Action", Equal Protection and California's 
Proposition, 14, 81 Harv. L.Rev. 69 .............

Conant, James Bryant, The American High School
Today ( 1 9 5 9 ) . . . .  ..............................

Moore's Federal practice, Vol. 3A, Advisory
Committee's Notes to Rule 23.....................



Issue Presented For Review

Whether the Sevier County School District No. 1, (comprised 

of two non-contiguous parts, both virtually encircled by a white 

district), in which only Negroes reside and whose only school is 

attended and staffed solely by Negroes, was deliberately created 

and maintained by State officials as a district for Negroes.



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE

EIGHTH CIRCUIT 

NO. 19404 CIVIL

LELA MAE HANEY, et al.,

Plaintiff“Appellants,

vs.

COUNTY BOARD OF EDUCATION OF SEVIER COUNTY, et al.,

Defendant-Appellees.

BRIEF FOR APPELLANTS

Preliminary Statement

Appeal from the United States District Court for the Western

District of Arkansas, Honorable Paul X. Williams, District Judge. 

The opinion of the district court was rendered June 10, 1968, and 

is reported at 284 F. Supp. 916.

Statement of the Case

This is an appeal from a judgment dismissing the complaint

filed by Negro parents and taxpayers of the Sevier County School



District No. 1 —  all the teachers and students of which are Negro 

—  which complaint sought to effect the consolidation or merger of 

that district with the all-white Lockesburg School District surrounding 

it.

1. The Pleadings

October 2, 1967, appellants, Negro parents and children of
1/the rural all-Negro Sevier County School District No. 1, in south­

western Arkansas, filed a class action seeking to enjoin the 

continued maintenance of a racially segregated system of public 

education in the county. The complaint alleged that the boundaries 

of the various school districts in Sevier County were intentionally 

drawn so as to place, to the greatest extent possible, only Negroes

in No. 1; that No. I's boundaries were "highly irregular in shape";2/that it was "created" as a Negro district (8a); and that such conduct 

deprived appellants and other members of the class they represent of 

their rights to equal protection of the laws (10a). The complaint 

prayed that the appellees be enjoined from operating No. 1 as a 

separate school district and that it be merged with Lockesburg School 

District No. 16, the surrounding all-white district (Ibid).

The complaint named as defendants the County Board of Education 

of Sevier County, the County Supervisor of Education, the Sevier
2/

County School District No. 1 and the Lockesburg School District No. 16.

1/ Occasionally, hereinafter, referred to as "No. 1."

2/ "a" refers to pages in the appendix.

3/ Sevier County School District No. 1 and Lockesburg No. 16
are but two of several school districts in Sevier County.

- 2 -



October 30, 1967, defendants answered denying the essential 

allegations of the complaint (4a~10a). That same day, defendant 

Quinton White, County Supervisor of Education, moved to dismiss 

the complaint (11a). No action was taken upon this motion until 
the district court entered its final order (174a).

2. The Evidence

On April 18, 1.968, the matter was tried before the Honorable 

Paul x. Williams, United States District Judge. The testimony 
and exhibits disclosed the following:

Sevier County is a small, mostly rural county in Western 

Arkansas (147a). The only all-Negro district in the county is the 

Sevier County School District No. 1, comprised of two non-contiguous 

parts, each of which is surrounded on three sides by the all-white 

Lockesburg School District No. 16 (ibid). Both District No. 1 

and Lockesburg operate separate 12-grade schools located less than 

one mile apart on State Highway No. 24 within the boundaries of the 

town of Lockesburg (12a). No Negro students live in the Lockesburg 

district, nor attend its school (49a); all its teachers and other 

administrative and service personnel are white (52a-53a) . No white 

students live in District No. 1, nor attend its school (116 a)■ all 

its teachers, administrative and service personnel are Negro (52a- 

53a). Both schools are, therefore, entirely segregated by race.

A . Creation of Sevier County School District No. 1

Before the Initiated Act

Over the course of the county's history, there have been as 

many as seventy small independent school districts operating within

3



it (20a-21a, 145a-146a), but as time passed, various of these 

districts were abolished or consolidated. By 1946-47, for 

instance, there were but 23 school districts remaining in the 

county; in 1948-49, this figure had dropped to fourteen (20a, 24a). 

Four of these districts were relatively large, and maintain their 

identity today: DeQueen, Horatio, Lockesburg and Gillham (20a).

The remaining ten school districts were extremely small, each 

having less than one hundred students enumerated within the districts 
(24a, 13a-14a).

According to official records of the Arkansas State Department 

of Education, twelve of the fourteen districts operating in 1948-49 

were either all-Negro or all-white districts (based on the 1946-47 

school census) (13a-14a) . Negro children in the other two school 

districts were educated separately from white children (32a-33a,

137a) since at this time (prior to 1954) , racial segregation was 

the official educational policy within Sevier County and there was 

no pupil integration whatsoever (26a-27a).

The Initiated Act

At the .1.948 general election, the people of Arkansas approved 

an Initiated Measure relating to school district consolidation,

which has been codified as Ark. Stats. Ann. §§80-426 et seq. (Repl.
1/I960). This measure created within each county on June 1, 1949, a

4/ Ark. Stats. Ann. §80-426 (Repl. I960):
County school district covering former small school districts. 

—  On June 1, 1949, there is hereby created in each county a new 
school district which shall be composed of the territory of all 
school districts administered in the county which had less than 
350 enumerated on March 1, 1949, as reflected by the 1948 school 
enumeration. (continued on next page)

4



1/ It is the intent of this section to authorize, between the 
date of the adoption of this Act [December 21, 1948] and 
March 1, 1949, the reorganization or annexation of districts 
which would be dissolved by this Act, in accordance with 
existing law governing reorganizations or annexations.

The new district shall be known as the " . . .  County School 
District No. . . ." Such district shall have all the rights, 
responsibilities and privileges of other school districts and 
the Board of such dxstrict shall have all the duties, 
responsibilities and authority of other school boards except 
as provided herein. [Init. Meas. 1949, No. 1, §1]

Ark. Stats. Ann. §80-427 (Repl. 1960):

Special election for officers— County supervisor acts as 
superintendent. —  ...

The County School Supervisor shall be the superintendent of 
the new district. In addition to his duties as County School 
Supervisor, he shall perform the duties and assume the responsi­
bilities in the new district as entrusted to superintendents of 
other school districts. [Init. Meas. 1948, No. 1, §2]

Ark. Stats. Ann. §80-428 (Repl. I960):

Duty to provide educational facilities-— annexation to other 
districts.— It shall be the duty of the newly elected school 
board and the County Board of Education not only to provide an 
accredited elementary school for every child as close to his 
home as possible, but also to provide every child access to an 
accredited high school. To accomplish this purpose, each County 
Board of Education shall study the entire school program of its" 
county. If it is found that some or all portions of the new 
school district as created herein can be served more effectively 
and more efficiently by another district or districts, the County 
Board of Education with the consent of the Board of Directors 
of the school district to which such annexation is proposed, is 
hereby authorized and directed to make such annexation or 
annexations. Provided that if any territory shall be annexed to 
a district administered in another county, the question of 
annexation shall be submitted to the State Board of Education.
If in the judgment of the State Board of Education the proposed 
annexation should be made, it shall adopt a resolution making 
the annexation . . . .  [Init. Meas. 1948, No. 1 §3]

Ark. Stats. Ann. §80-429 (Repl. 1960):

Construction of act. -- . . . Except as otherwise provided in 
this act, all matters of reorganization and annexation of school 
districts undertaken under the provisions of this act shall be 
made in accordance with existing laws. [Init. Meas. 1948, No 1
§4]

5



new school district to be comprised of all existing school districts

having at that date fewer than 350 pupils enumerated according to

the 1948 school census. The new district was to be named the

-----------_ County School District No. _____, ", and the Supervisor
of Education of the particular county was designated as its

5/
Superintendent.

The Act stated that its purpose was

to authorize between the date of the 
adoption of this Act [December 21, 1948] 
and March 1, 1949, the reorganization or 
annexation of all districts which would 
be dissolved by [its terms] Ark. Stat.
Ann. §80-426 (Repl. I960).

v &Thus, County Boards could exempt some or all of such small districts 

from the operation of the act by annexing them to other districts 

prior to its effective date so as to create new districts havina
y

pupil enumerations of 350 or more. The initiated act, once 

effective, exhausted itself. There was no requirement that if a

5/ Ark. Stats. Ann. §§80-426,427 (Repl. 1960).

W  Each County Board of Education in Arkansas is an important
educational supervisory unit, approving budgets, boundary 
changes and pupil transfers for the school districts in the 
county. See Ark. Stats. Ann. §80-213 (Repl. 1960). On the 
other hand, the State Department of Education merely 
supervises the distribution of state aid, provides ratings of 
schools, and approves the financial responsibility of districts 
wishing to issue bonds. See Ark. Stats. Ann. §80-113 (Repl. 1960).

1/ Such annexations could take place prior to March 1 , 1949 only
upon the consent of the patrons of both districts. See Ark.
Stats. Ann. §§80—418, 420 (Repl. 1960). But the County Boards of 
Education were empowered after June 1, 1949 to annex territory of 
the new County District to another district without popular 
referendum, subject only to the approval of the receiving 
district's Board of Directors. Ark. Stats. Ann. §80-428 (Repl. 
1960). See, Stroud v. Fryar, 216 Ark. 250, 225 S.W. 2d 23 (1949).

6



district subsequently fell below an enumeration of 350 after
8/

March 1, 1949, it was to be added to the County District.

Annexations from Passage of Act to June 1, 1949

When the initiated act was passed, there were in Sevier County

ten districts which, having less than 350 (they each had less than

100) pupils, were potentially subject to the act. Five of those

districts had only white pupils, and five had only Neqroes (25a-
2/

26a). By March 1, 1949, the County Board had approved the

annexations (presumably initiated by petitions from district 
1 0/

residents) of three of the five white districts to other all-white

or predominantly white districts. On June 1, 1949, exercising its

newly acquired power to make annexations subject only to the consent
11/of the Board of Directors of the receiving district, the County 

Board directed the annexation of the two remaining white districts 

to all-white districts, and of two of the small Negro districts to

8/ Lockesburg's enumeration is now under 350 (12a).

9/ The five white districts were: Falls Chapel, Rock Hill,
Kellum, West Line and Paraloma No. 68. The Negro districts 
were: Paraloma No. 54, Graves Chapel, Silver Ridge, Oak Grove
and Gravel Hill (12a~14a).

10/ It is not clear on this record that any annexations resulted
from the submission of petitions to the County Board. While 
this was the only statutory method of annexation before March 1, 
1949 (see §§1, 4 of the initiated act, Ark. Stats. Ann §§80-426, 
429 (Repl. 1960), f.n. 4 supra), the record establishes only 
that the three white districts (Rock Hill, Kellum and paraloma 
No. 68) were annexed on or before June 1 (25a-26a). At most, 
only these three districts were annexed as a result of petitions. 
The County Board ordered the other four annexations pursuant to 
the power vested in it on June 1, 1949 to do so without petition 
(148a-155a), (see §3 of the initiated act, Ark. Stats. Ann.
§80-428 (Repl. 1960), f.n. 4 supra).

11/ See §3 of the initiated act, Ark. Stats. Ann. §80-428 (Repl.
1960), f.n. 4 supra.

7



an all-Negro district in Howard County. The three small all-Negro 

districts which remained, Silver Ridge, Oak Grove and Gravel Hill, 

were consolidated by force of the initiated act and became what is 

now known as the Sevier County School District No. 1 (25a~26a, 148a- 
155a).

Thus, four of the five white districts were annexed to other 

white districts in the county while the fifth, paraloma No. 68, was 

annexed to an all-white district in neighboring Howard County (25a); 

both Negro districts annexed were joined to all-Negro Tollett District 
No. 38 in Howard County (25a-26a).

The following table shows the precise disposition of each of the 

10 districts (25a-26a):

12/ 12/
District White Negro District Annexed To White Negro

Falls Chapel 38 0 Lockesburg 425 0

Rock Hill 38 0 Lockesburg 425 0

Kellum 31 0 Gillham 554 0
13/West Line 23 0 Horatio 584 40

Paraloma No. 68 17 0 Mineral Springs (all-wh i te; 25a,
(Howard County) 135a,163a-165a)

Paraloma No. 54 0 56 Tollett (Howard (all-Negro; 26a,
County) 135a, 163a-165a)

Graves Chapel 0 26 Tollett (Howard (all-Negro; 26a,
County) 135a, 163a-l65a)

Silver Ridge 0 88 )
) Became Sevier (all-Negro; 32a-

Oak Grove 0 39 ) County No. 1 33a, 41a, 46a-
) 47a, 93a)

Gravel Hill 0 22 )

12/ Based on 1.94fo-1947 enumeration (12a-14a) .
13/ Negro children in the Horatio School District were given

a segregated education outside the district (32a—33a, 137a).

- 8 -



G. P. Bolding, who was Sevier County Supervisor of Education 
at the time admitted that (26a):

. . . of the small school districts existing 
in 1946-47, all the white districts were 
annexed or consolidated with adjoining white 
school districts and all of the Negro school 
districts were annexed or consolidated with 
adjoining Negro districts except for the three 
Negro districts which were left to form the 
County School District . . .

Although Mr. Bolding admitted that segregation was the official 

policy prior to 1954 (27a), he denied that the County Board had a 

policy of maintaining all-Negro and all-white school districts (28a)
14/He testified that the County Board acted on petitions submitted by 

the patrons of the various school districts, without regard to race, 

that it approved as a matter of course whatever was suggested by the 

petition (27a); that the County Board never made any inquiry 

concerning the motives of those signing the petitions seeking annexation 

of the small districts (43a) even though those motives could have been 

racial (43a-44a); that separate Negro and white school districts were 
maintained by "the will of the people" (28a).

B . The 1954 Property Transfers 

In January 1954, a petition was circulated by the (white)

President of the Lockesburg School Board among Negroes who owned 

property which lay within the physical boundaries of Lockesburg 

School District No. 16 (31a~32a). The purpose of the petition was to 

have this property transferred to the Sevier County (Negro) School 

District No. 1, i.e., have the boundary line between the two districts

14/ Only three of the seven annexations were effected by the
filing of petitions (148a-155a) .

9



changed. The petition was recorded in the official County Board of 

Education records as concerning "Negro Property to be Transferred" 
(32a, 159a).

Bolding testified that the transfers were made because the

children of the Negroes who owned the land were already attending

No. 1's school; that there was "a working agreement, let them have

or enumerate the whites and let us have the Negroes" (32a); that

there was a further tripartite agreement between No. 1, Horatio

and DeQueen under which Negro students living in Horatio and DeQueen
15/

attended the all-Negro school operated by No. 1 (32a).

One of the property owners whose lands was listed on the 

petition testified at the trial as follows (92a-93a):

Q. Did you consent to have your property transferred 
from No. 16 to 1?

A. No, they just took it up there and put it over 
in No. 1, all the colored land.

Q. Do you have any idea why Mr. Goyne was interested 
in having the property transferred?

A. I did not understand you.
Q. Do you have any idea why Mr. Goyne was interested 

in having the property transferred.
A. He wanted to get all the white folks' land over in 

No. 16, that was his motive.
Q. Has the County District No. 1, to your knowledge, 

always been thought of as a Negro district in 
Sevier County?

A. Yes, sir.

C . Current Operations of the Districts 

The organization of Sevier County's school districts at the 

present time is shown by the map introduced at trial as plaintiffs' 

Exhibit No. 5 (reproduced at ,147a) . Sevier County School District 

No. 1 consists of two non-contiguous areas, highly irregular in shape,

15/ Negroes in Horatio and DeQueen continued to attend school
in No. 1 under that agreement until 1966 (34a, 127-128a).

10



each extending on the east to the Sevier-Howard County line, and 

each area being surrounded on its other three sides by the Lockesburg 

School District No. 16 (Ibid). Although the boundaries of all school 

districts in the county are irregular to some degree (123a), those of 

No. 1 are even more irregular than those of other districts’ (137a); 

in no other instance does a boundary line wander, as does No. I's, 
above and below a major highway (rather than lying entirely on one 

side or the other, or running down the middle of the road (136a)).

Pupil Enrollment

In 1966 there were 315 white, 0 Negro children enumerated within 

Lockesburg School District No. 16 and 0 white, 181 Negro children 

enumerated within Sevier County School District No. 1 (12a).

Lockesburg has an average of 24 pupils per teacher. Sevier's average 

is 10 (52a, 58a). The average daily attendance at the 12 grade schools 

maintained by each district was 315 at Lockesburg and 105 at Sevier 

(77a). No Negroes have ever attended school in the Lockesburg District 

(49a); only two white children (brothers) have ever attended Sevier 

County schools (110a, 116a). The Sevier County District "had not 

been designated as a white district, because it wasn't. . . it is now

the Negro school district in the county" (41a). it has historically 

been viewed as the Negro school district in Sevier County (41a, 47a, 

93a) .

Faculty

The faculties of the districts are totally segregated. Lockes­

burg employs 14 white teachers (52a-53a, 76a) and Sevier county has 

somewhat fewer teachers, all Negro (52a-53a, 72a). Sevier's teachers 
are paid somewhat more on the average (133a).

11



Transportation

Buses from the two districts travel down the same highways, 

each picking up only children of one race (63a). Some of the 

(Negro) students who receive bus transportation from the Sevier 

County district pass the (white) Lockesburg school on their way to 

class, and vice versa (60a). Buses from the same areas of the 

county still travel along the same roads to two different twelve- 

grade schools —  the buses and schools being divided on a district 

basis which is also a racial basis (61a). At the same time, there 

are empty seats on the buses of each district along at least one 
route (82a)„

Facilities and Curricula

Generally, the physical facilities of the two districts are 

approximately equivalent, and all of the present facilities could 

be utilized by a merged, unitary district (74a). However, Sevier 
County district has no gymnasium, while Lockesburg does (88a, 115a). 

Sevier County district's high school offers no foreign languages 

(113a-114a). Instead, Sevier, but not Lockesburg offers Agriculture 

and Home Economics (101a). Sevier's science laboratory is a multi­

subject lab and contains no individual experimental stations for 
students, merely a demonstrator desk for the teacher (114a). 

According to one of the plaintiffs, some Sevier County classes use 

homemade tables rather than desks (88a) , and the library has few 

up-to-date books or books with backs on them (86a-87a).

12



The principal of the Negro school denied this latter charge, 

asserting that " . . .  our report indicated that we have 2200 books 

and . . .  we have a library that is suitable to writing a Doctor's 
dissertation . . . . * '  (112a).

Ratings

The Lockesburg elementary and High schools are both rated "A" 

by the Arkansas State Department of Education (138a) while the 

Sevier County elementary school has an "A" rating but the High 
School a "c" rating (112a).

Economic Status

Sevier County School District No. 1 is the poorest school 

district in the county in terms of the total value of assessed
wproperty xn the district (69a). it can raise only 2/5 as much money 

annually for operating expenses of its twelve-grade school as can 

Lockesburg (71a). While the County District in some years has 

spent more money per pupil than Lockesburg (131a-132a), the 

differential in available income, which is not altered by the 

receipt of state aid (72a), could affect the quality of education 

offered, according to the present County Supervisor of Education. 

Lockesburg has a greater indebtedness than the County District; 

however, the tax rates in the two districts do not differ appreci­
ably (70a-71a).

16/ It is the third poorest district in the State of Arkansas.
See Plaintiffs' Exhibit No. 10, part of the original record 
before this Court, and 71a.

13



Community Control of School Policy

The Board of the County District trusts its own surmise of the 

feelings of the district's patrons more than the results of a secret 

ballot vote (103a) even though the Secretary of the Board testified 

it was not easy to know the feelings of the patrons (106a). Thus, 

the two districts originally agreed, in the face of another 

initiated measure (which did not pass), to put the question of 

consolidation to the voters. However, the County District failed to 

have the issue brought before its patrons for a vote (53a-54a) and 

never discussed the matter again, even after Lockesburg voted in 

favor of consolidation (75a-76a). Although the Secretary of the 

Board of the County District claimed that none of the plaintiffs had 

ever notified the Board of their dissatisfaction, a claim denied by 

one of the plaintiffs (82a), and that no one had ever requested 

consolidation or integration (103a-104a), he admitted that after the 

present lawsuit was filed, although the Board was then on notice of 

patrons' dissatisfaction, it made no attempts to deal with the 
situation (104a).

D. The Judgment Below

On June 10, 1968, the district court filed an opinion and entered 

an order dismissing the complaint (166a-183a).

The Class Action Issue

Although it had conducted no hearing on the matter, the court 
ruled that "this is not a class action" (174a):

That only one person actually appeared 
and testified as a plaintiff. . . [I]t is 
apparent that had a hearing been held, all 
named plaintiffs except Mrs. Haney would 
have had their names stricken [there were 
other named minor plaintiffs and their parents.]

14



It conceded, however, that Mrs. Haney was entitled to be heard

regardless of the fact "that no other patron of the district is
11/displeased" (Ibid).

The Merits

Assuming it to be the fundamental question, the court below

ruled that Sevier County School District No. 1 is not a segregated

school" and on that basis dismissed the complaint (180a-181a):

[I am un]willing to find that the 
school is inferior or segregated 
just because it has a Negro school 
board, a Negro faculty, all Negro 
pupils, and does not choose to 
consolidate with Lockesburg No. 16 
(179a). (Emphasis Added)

Most of the opinion is devoted to summarizing the testimony at the 

trial and to deciding whether Sevier No. 1 was a "segregated school." 

At various points, however, the court does make findings seemingly 
relevant to this appeal:

Sevier School District No. 1 was not 
created for the purpose of creating a 
segregated school. Under Initiated Act 
No. 1 of 1948 (Ark. Stats. Ann. §§80-426 
to -429, (Repl. I960)), this district 
was required to become Sevier School 
District No. 1 because it did not enumerate 
350 children of school age. Its purpose 
was the consolidation of smaller districts 
into larger districts and it accomplished 
that purpose.

It concluded: "There is no adequate proof to show any gerrymandering
to effect segregation"(178a).

On June 27, 1968, plaintiffs filed notice of appeal (184a).

U_/ We show later, pp. 25-27  ̂ that the district court seriously
erred on this question, both as to his findings of fact and 
conclusion of law.

15



ARGUMENT

I

The Sevier County School District No. 1 Is 
A Gerrymandered All-Negro School District 
pjliberately "created And Maintained In 
Violation Of The Fourteenth Amendment To The 
Constitution Of The United States

The district court's opinion reveals rather clearly that the 

court below never really understood the thrust of plaintiffs' case. 

Most of the opinion discusses whether the single 12-grade school 

operated by Sevier No. 1 is a "segregated school." (174a-182a);

and, incredibly, the court finds that the school is not segregated, 

while conceding that all of its pupils, teachers, and administrative 

personnel are Negroes. The school is plainly segregated. The real 

question, however, is not whether it is segregated, but whether the 

procedures by which this all-Negro district was created (and the 

resulting segregation made possible) were in violation of the 

Fourteenth Amendment.

Simply put, plaintiffs' argument is that race was improperly 

taken into account by state officials in eliminating, in 1949, the 

10 undersized districts and that the all-Negro Sevier district thus 
created was a consequence of those considerations. The court below 

dealt only fleetingly with that question. It ruled that:

...No. 1 was not created for the purpose of 
creating a segregated school. Under Initiated 
Act No. 1 of 1948 (Ark. Stats. Ann. §§80-426 
to 429, (Repl. 1960)), this district was 
required to become Sevier School District No. 1 
because it did not enumerate 350 children of 
school age. Its purpose was the consolidation 
of smaller districts into larger districts and 
it accomplished that purpose (177a-178a).

16



But that missed the point. The fact that the Initiated Act provided 

the impetus for eliminating small school districts in Sevier County 

is the beginning, not the end, of the inquiry. The pertinent 

question was how were they eliminated; were the annexations so

manipulated as to leave only all-Negro districts subject to the

automatic consolidation features of the act on June 1, 1949? To

this -- the critical issue in the case —  the district court devoted

one sentence: "There is no adequate proof in this case to show any

gerrymandering to effect segregation." (178a). There is no discussion

or evaluation of the wealth of materials and testimony presented by

the plaintiffs to show that racial considerations guided the

disposition of the smaller districts. Even more unsettling, however,

is the feeling that the district court might not have even meant what
the quoted sentence declares. Read in the context of the paragraph

in which it appears, that sentence might only indicate the district

court’s belief that the all-Negro district resulted not from

"gerrymandering," by which he appears to mean purposeful racial shifts

in boundary lines of a pre-existing district, but from its creation

as a "new" district. In sum, the district court might well have

thought "gerrymandering" and the "creation of an entirely new 
• ±§/district" mutually exclusive and on that basis ignored the gerry­

mandering argument.

In any event, and in spite of the shortcomings of the opinion 

below, we believe the record shows that Sevier No. 1 was created as 

an all-Negro district and that it has purposefully been maintained as

18/ They are not, of course, mutually exclusive. Unconstitutional
racial considerations can infect as well the determination of the 
boundaries of a new district as shifts in the lines of a 
pre-existing district.

17



1. Arkansas' policy of segregation at that 
time;

2. The actual pattern of annexations between 
the date of the Act and the creation of 
Sevier No. 1;

3. The 1954 property transfers and the crazy- 
quilt patchwork of Sevier1s boundary lines;

4. The general conception of Sevier No. 1 as 
the county's "Negro district."

such. Several factors taken together demand that conclusion;

First - Arkansas' Policy of Segregation

At the time of the passage of the Initiated Act, the annexations,

and the creation of the Sevier County School District No. 1,

segregation of the races in public education was the official policy
20/

of the state of Arkansas. At that time, and, indeed, until the 

early sixties, Negro children in Sevier County, no matter where they 

resided, went either to Negro schools maintained as such by their

19/ If state officials may not maintain within the same district 
separate schools for Negroes (Brown v. Board of Education, 347 
U.S. 483 (1954), 349 U .S . 294 (1955), it should go without saying 
that they may not achieve the same result by creating separate 
school districts for Negreos. Cf. Cooper v. Aaron, 358 U.S. 1,
17, where the Court said:

Thus, the prohibitions of the Fourteenth Amendment 
extend to all action of the State denying equal 
protection; whatever the agency of the State taking 
the action. . . or whatever the guise in which it is
taken. . .rBrown1 can neither be nullified openly. . . 
nor indirectly. . .through evasive schemes for 
segregation whether attempted "ingeniously or ingenuously" 
Smith v. Texas, 311 U.S. 128.

Gomillion v . Lightfoot, 364 U.S. 339 (1960) (purposeful removal 
of Negro voters from the boundaries of town of Tuskegee.) Cf. 
Clemons v . Board of Education, 228 F .2d 853 (6th Cir. 1956)1 
Taylor v. Board of Education of New Rochelle, 191 F. Supp. 181,
195 F.Supp. 231 (S.D. N.Y.), aff'd., 294 F.2d 36 (2d Cir.), cert, 
den. - 368 U.S. 940 (1961). In this circuit see Clark v . Board of 
Education of Little Rock School District, 369 F .2d 661 (1966), 
Kelley v . Altheimer Public School District, 378 F .2d 483 (1967) 
Kemp v. Beasley, 389, F .2d 178, 183 (1968). Smith v . Board of 
Education of Morillton School District No. 32, 365 F .2d 770 (T966)

Ark. Stats. Ann. §80-50a (Repl. 1960).
- 18 -

20/



predominantly white districts, or were bused to Negro schools in 

adjoining districts. Thus, Negro students living in Horatio and 

DeQueen were, until approximately, 1966, sent to No. I's Negro 

school (32a-34a; 126a-128a) without being asked which school they 

wished to attend (33a). So, too, Negroes living in the Lockesburg 

district, prior to the property transfers, sent their children to 

No. I's Negro school (32a). All this was expected, and, indeed, 
state law required it.

Second - The Pattern of Annexations

The 1948 enumeration showed ten districts, five white and five 

Negro, having less than 350 students and therefore eligible to be 

consolidated on June 1, 1949. As described at pp. 7-9, supra, seven 

(five white and two Negro) of the ten were annexed, leaving three (each 

all-Negro) districts which on that date became the present District 

No. 1. A careful examination of the pattern of annexations shows 

conclusively that race was taken into account and that Sevier No. 1 

was created as, and intended to be, an all-Negro district. On its 

face it would appear that this conclusion can hardly be denied. 

Segregation was then the official state policy and the county board 

was duty bound to separate the races. it made obvious sense to annex 

white districts to larger white districts and Negro districts to 

other Negro districts. It also made sense, if the consolidated 
district would have but one facility, to attempt to have only 

students of one race in that district. All these things, we believe, 

were considered by the county board and influenced the ultimate 

placement of each of the districts. Indeed, county officials would 

not have been complying with their obligations under state law had 

they ignored such considerations.

19



■The County Supervisor at the time, Mr. Bolding, readily 
admitted that (26a):

• • the white districts were annexed or
consolidated with adjoining white school 
districts and all of the Negro school districts 
were annexed or consolidated with adjoining 
Negro districts except for the three Negro 
districts which were left to form the County 
School District, that is the last three, Silver 
Ridge, Oak Grove and Gravel Hill.

A careful study of the county map, PX No. 5, reproduced at 147a,

shows that all seven districts, Negro and white, which were annexed

on or before June 1, adjoined larger districts which had majority

student bodies of the same race. Cf. pp. 7-9, supra. Thus, the

only districts not annexed were those districts which adjoined

larger districts having students of the opposite race. These were

the Negro districts of Silver Ridge, oak Grove and Gravel Hill, all
2]/of which adjoined white but not Negro districts (147a).

But there is more. Geographically confused, but racially 

consistent annexations were made. Consider, for example, the 

treatment of three small districts in the southeastern area of the 

county: Graves Chapel No. 60 (Negro), paraloma No. 68 (white), and 

Paraloma No. 54 (Negro). The Paraloma School District No. 54 (Negro) 

was annexed to the all-Negro Tollett School District No. 38 of Howard 

County; Paraloma No. 68, immediately to the north of No. 54, went to 

Mineral Springs School District No. 3 of Howard County, a white 

district; and Graves Chapel No. 60, immediately to the north of No. 68, 

went also to Tollett District No. 38 of Howard County. (See PX No. 5

11/ The map indicates the location of all the small school districts
except Gravel Hill. However, it was a constituent part of the 
present County District No. 1 and thus, obviously adjoined only 
another very small Negro district or a larger white district -- 
Lockesburg.

20



22/
147a).

There are other examples. Oak Grove and Falls Chapel were 

adjoining districts. Although PX 5 shows that Oak Grove (Negro) 

was somewhat closer to Lockesburg (white) than Falls Chapel, Falls 

Chapel but not Oak Grove was annexed to Lockesburg (29a-30a). Both 

Rock Hill (white) and Silver Ridge (Negro) are in the general area 

of the town of Lockesburg. However, Rock Hill but not Silver Ridge 

was annexed to Lockesburg (29a). Thus, Oak Grove, Silver Ridge and, 

Gravel Hill, the only districts of the ten which did not adjoin a 

district of legal size having children of the same race remained and 
were consolidated by the initiated Act.

Third " The 1954 Property Transfers and the Crazy-Quilt patchwork 
of No.11s Boundary Lines ~

A few months before the Supreme Court's decision in Brown, supra,

state officials made the separation complete by insuring that Negroes

in Lockesburg would thereafter be enumerated in No. 1. The President

of the Board of the white Lockesburg district circulated a petition

among Lockesburg's Negro residents which petition sought to have their

property transferred to Sevier No. 1 (31a-32a). The Negro residents

apparently signed it; their properties were transferred, and the

boundaries adjusted accordingly. (See the orders of the County Board
reproduced at 156a~-160a). Defendants admitted that the effect of
the transfers (No. 22, 16a):

were to separate the white and Negro landowners 
in such a fashion that all land owned by Negroes 
was within [No. 1] and all land owned by whites 
was within Lockesburg School District No. 16.

22/ The Tollett district overlapped the boundaries of Mineral
Springs and another white Howard County district. Finding that 
it was created and maintained in violation of the Constitution, 
the United States District Court for the Western District of 
Arkansas entered an order dissolving it in June 1966. See PX 18

-  21 -



Nothing could more clearly show that No. 1 was intended and 

maintained as the Negro district. Although the district judge ruled 

that there was no "adequate proof. . . to show any gerrymandering 

to effect segregation, (178a),"his opinion significantly makes no 

reference— at all to the property transfers. But what greater proof 

of gerrymandering could there be than the admission by state officials 

that they placed white property in one district and Negro property 
in another?

It is no surprise, therefore, that No. I's boundary lines are 

a crazy-quilt patchwork. They are more irregular than the boundaries 

of any other school district in the county (137a). There are two 

non-contiguous parts, each containing only Negro residents. Between 

the two halves and on all sides are white residents of the Lockesburg 

District. Most striking is the southern boundary of the upper 

portion of the district, where the line skips erratically above and 

below State Highway No. 24, taking in those houses where Negroes 

live but excluding from the County District those where whites live.

Fourth - Reputation in Community

Virtually all of the witnesses who testified at the trial, 

admitted that No. 1 has historically been viewed, since its creation 

in 1949, as the county's "Negro school district" (41a, 46a-47a, 93a).

The concurrence of all these factors required a finding that 

No. 1 was created and maintained, as a Negro district in violation 

of the Fourteenth Amendment. At the very least, however, they 

shifted to defendants the burden of coming forward with clear and 

convincing evidence that race played no part in the creation or 

maintenance of No. 1 as a Negro district. That burden was not met.

22/ continued
at 163a-165a. 22



To be sure Bolding, then County Supervisor, denied that race 

was taken into account and denied that county officials attempted to 

maintain all-white or all-Negro districts (27a). But mere denials 

of discrimination will not suffice to rebut plaintiffs' case. cf. 

^litus v. Georgia, 359 U.S. 545 (1967); Norris v. Alabama, 249 u.S.
587, 598 (1935). His other explanation-that the annexations were 

pursuant to petitions, that the Board never inquired into the motives 

of the petitioners, that the resulting segregation was due to the will 

of the people —  was disingenuous at best. For as px No. 6 shows 

only three of the seven annexations were initiated by petition (148a- 

155a); four were affirmatively devised and directed by the County 

Board itself, and those, too, fit the racial pattern (see pp. 7-9 
supra).

But even if all seven were pursuant to petitions, the indiscrimate 

approval by county officials of such petitions without investigation 

of the motives of the petitioners (43a-44a) would violate the 

Fourteenth Amendment, where, as here, the pattern of annexations 

proved racial. The Constitution, of course, does not prohibit 

private discrimination. But states may not facilitate the discrimina­

tory conduct of individuals or lend support to that end. Reitman v. 

Mulkey_, 387 U.S. 369 (1967); Robinson v. Florida, 378 U.S. 153 (1964); 

Anderson v. Martin, 375 U.S. 399 (1964); Goss v. Board of Education.
373 U.S. 683 (1963) ; see, Black, The Supreme Court, 1966 Term —  

Foreword: State Action," Equal Protection and California's

jLr-QP,os,ifcion 14-, 81 Harv. L. Rev. 69 (1967) . Cf. Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961).

23



Defendants also introduced testimonial evidence attempting

to establish (98a, 101a-104a, 143a), and the court below appears

to have found (173a), that the majority of No. l's Negro patrons
23/

did not want to consolidate with Lockesburg. But the constitutional

vice in creating a Negro district is not cured because some or most

of the Negro residents want the district retained. It is irrelevant,

under the Fourteenth Amendment, that a scheme which violates the

Constitution receives the support of a majority of the voters, or

their representatives. Lucas v. Forty-Fourth General Assembly, 377

U.S. 713, 736-737 (1964) :

Manifestly, the fact that an apportionment plan 
is adopted in popular referendum is insufficient 
to sustain its constitutionality or induce a court 
of equity to refuse to act. As stated by this 
Court in West Virginia State Board of Education v.
Barnette. . . 'One's' right to life, liberty, and 
property. . .and other fundamental rights may not 
be submitted to vote; they depend upon the outcome 
of no elections.' A citizen's constitutional rights 
can hardly be infringed simply because a majority of 
the people choose it to be.

See also, Wright v. Rockefeller, 376 U.S. 52, 62 (1964) (Douglas, 

Goldberg, JJ., dissenting); Reitman v. Mulkey, 387 U.S. 369 (1967).

In sum, the evidence taken together rationally permitted but 

one conclusion: that No. 1 was created and maintained as a school

district for Negroes. The district court plainly erred in failing 

so to find.

23/ What appears to be a finding is unsupported by the record, 
see discussion at p.26 infra.

24 -



II.

The ..Coux^_ErrJLn^i?iji_dirig, That The 
Action Was Not A Proper Class Action

As nearly as can be determined from the vague and ambiguous

language of the opinion (174a), the district court held that the

lawsuit could not properly be maintained as a class action on two

grounds: (1) only one plaintiff appeared at the trial; and (2)

no one else in the Sevier County School District No. 1 had any

complaints about the school system. (Ibid). Although we do not

believe this finding can affect the right of the named plaintiffs
24/

to have No. 1 dissolved, we think it appropriate to state why we 
believe the court erred.

As to the first ground, even if true it is irrelevant to the

issues under Rule 23, for "the determination depends in each [case]

on satisfaction of the terms of subdivision (a) and the relevant

provisions of subdivision (b)." Advisory Committee's Notes to Rule
25/

23, Moore's Federal practice Vol. 3A. (Supp. 1968). Nothing in the 

rule requires that all named plaintiffs attend the trial. Further­

more, the district judge was clearly wrong about the number of adult 

plaintiffs who appeared at the trial. Although only one plaintiff 

sat at the counsel table and testified, two other adult plaintiffs 

were in the courtroom during the trial (184a).

24/ The district court was apparently of the same view (174a).

25/ The action here satisfied all four prerequisites specified
by Rule 23(a). It also satisfied 23(b)(2)— because defendants 
had "acted and/or refused to act on grounds generally applicable 
to the class. . ." Class actions are appropriate in cases where 
racial discrimination is alleged. See Kansas City v. Williams,
205 F .2d 47 (8th Cir. 1953); Bush v . Orleans Parish School Board' 
308 F.2d 491 (5th Cir. 1962); Potts v. Flax, 313 F.2d 284 (5th Cir. 
1963) .

25



As to the second ground of decision, this in turn seems to 

be a conclusion improperly drawn from (a) the fact that only one 

plaintiff appeared at trial, which was untrue (see paragraph above) 

and (b) the stipulation that eleven of the 165 Negro patrons of 

the County District would have testified that they did not desire 

consolidation (143a). But these were but eleven of some 165 voters 

in the District (105a); they did not testify concerning their 

acceptance or rejection of racial segregation; they did not testify 

that they had no complaints about the school system; and finally, 

taking the value of their stipulated testimony at its worst for 

plaintiffs, the proper course would have been to exclude them from 
the class. F.R.C.P. 23(c)(3).

The district judge implicitly admitted his error when he 

stated: "No hearing was held. . .but it is evident that had such
a hearing been held, the names of all the plaintiffs except one 

would have been stricken." (Why they would have been stricken 

remains a mystery). The substitution of hypothesized assumptions 

for judicial hearings denies the right to be heard guaranteed by 
both the Constitution and Rule 23.

These errors were compounded by the failure of the district 

court to comply with F.R.C.P. 23(c)(1). This rule establishes a 

mandatory judicial determination of the propriety of proceeding in 

a class action. E_.g_. , Zeigler v. Gibralter Life Ins. Co., 43 F.R.D. 

169 (D.S.D. 1967). Its purpose is to provide an early ruling on the

26



procedural issue so that during subsequent stages of the case,

the maximum degree of flexibility may be preserved.

As soon as practicable after the commencement 
of an action brought as a class action, the 
court shall determine by order whether it is 
to be so maintained. An order under this 
subdivision may be altered or amended before 
the decision on the merits. [F.R.C.P. 23(c)(1)]

The ruling must come before the decision on the merits.

This allows the proponents of the class action to use whatever

other means are available to them if the court rules such an
action may not be maintained:

Subdivision(c)(1). In order to give class 
definition to the action, this provision 
requires the court to determine, as early 
in the proceedings as may be practicable, 
whether an action brought as a class action 
is to be so maintained. The determination 
depends in each case on satisfaction of the 
terms of subdivision (a) and the relevant 
provisions of subdivision (b).

. . . Although an action thus becomes a 
nonclass action, [following an adverse ruling] 
the court may still be receptive to inter­
ventions before the decision on the merits so 
that the litigation may cover as many interests 
as can be conveniently handled, . . . .

[Advisory Committee 1s Notes to Rule 23, Moore's 
Federal Practice, Vol. 3A (Supp. 1968)]

Here there was no opportunity to persuade the court to 

modify or amend its order, to intervene additional individual 

plaintiffs, or to offer evidence in support of plaintiffs1 claims.

It is imperative that this Court clarify and emphasize the 
obligation of district courts to hold hearings in class actions on 

the procedural issues, and to base their decisions on those issues 

upon grounds elaborated in the Rules of Civil Procedure.

27



Ill

This Court Should Require Consolidation Of
The Lackesburg and Sevier County School Districts
And Should Also Award Meaningful Attorneys 1 Fees

A

In the second Brown decision the Supreme Court directed that "in 
fashioning and effectuating the decrees, the courts will be 

guided by equitable principles." (349 U.S. at 300). Equity 

courts have broad power to mold their remedies and adapt 

relief to the circumstances and needs of particular cases.
Indeed they have:

"not merely the power but the duty to render a 
decree which will so far as possible eliminate 
the discriminatory effects of the past as well 
as bar like discrimination in the future."
Louisiana v. United States, 380 U.S. 145, 154 (1965).

Numerous decisions establish that the federal courts construe 

broadly their power and duties in the supervision of the dis­

establishment of state imposed segregation. So in Griffin v.

School Board of Prince Edward County, Va., 377 U.S. 218 (1964) 

the Supreme Court ordered a public school system which had been 

closed to avoid desegregation to be reopened. Carr v. Montgomery 

County (Ala.) Board of Education, 253 F.Supp. 306 (M.D. Ala. 1966), 

ordered twenty-one (21) small inadequate segregated schools to 

be closed over a two year period and the students reassigned to 
larger integrated schools. Dowell v. School Board of Oklahoma 

City, 244 F.Supp. 971 (W.D. Okla., 1965), aff'd 375 F.2d 158 

(10th Cir., 1967), cert, den. 387 U.S. 931 (1967), ordered the 

attendance areas of certain schools consolidated, with one school 

in each pair to become the junior high school and the other to

28



become the senior high school for the whole consolidated area,

The Fifth Circuit has held that a district court has power to 

enjoin "approving budgets, making funds available, approving 

employment contracts and construction programs ... designed to 

perpetuate, maintain or support a school system operated on a 

racially segregated basis." Board of Public Instruction of Duval 

Co., Fla, v. Braxton, 326 F.2d 616, 620 (5th Cir., 1964). The 

Fourth and Fifth Circuits and a panel of the Eighth Circuit have 

held that a school construction program is an appropriate matter 

for court consideration and, in appropriate cases, may be enjoined. 

Wheeler v. Durham City Board of Education, 346 F.2d 768 (4th Cir,,

1965) ,* Brewer v. School Board of the City of Norfolk, Va», ___F.2d

___(1968) ; United States v. Board of Public Instruction of Polk

County, Florida, 395p.2d66 (1968); Kelley v. Altheimer, 378 F.2d 
483 (8th Cir., 1967).

The only sensible way to eliminate this illegally created

Negro district is to require its consolidation with Lockesburg,

the white district which virtually encircles it. Their 12 grade

schools are but one-half mile apart (12a). The buses of each

system travel down the same roads (63a). Each school graduates

much less than the recommended minimum of 100 per high school 
2 6/

class. Both facilities could be used after merger (74a). Merger 

and the ultimate transformation of one into a high school, the 

other into an elementary will result in a more efficiently operated

_26__/ James Bryant Conant1 s , The American High School Today (1959) 
gives highest priority to the elimination of small high schools 
which graduate classes of less than one hundred.

29



system enabling better equipment and expanded course offerings.

The notion of consolidating these districts is not new. The 

matter has long been a source of discussion. Indeed the residents 

of Lockesburg voted to consolidate and the officials of No. 1 

have testified that they are not opposed (121a). Consolidation 

is both feasible (121a-122a) and efficient. It closely parallels 

what the situation would have been had race not been a factor in 

the formation and maintenance of these districts. Upon remand, 

therefore, the district court should be instructed to enter an 

order requiring that the districts be consolidated and the schools 

paired by the opening of the 1969-70 school year.

B
Neither this appeal nor the trial below should have been 

necessary. The mandate of Brown is all too clear. Negro citizens 

should not be required to assume the financial burdens of going 

into court to secure compliance with the decisions of this Circuit 

and those of the Supreme Court of the United States.

Negro citizens have acted as "private Attorney Generals" 

to enforce the Brown mandate that dual systerns be converted to 

unitary nonracial systems in much the same way that they have 

had to do so to enjoy their rights under Title II (Public 

Accommodations) of the Civi1 Rights Act of 1964, 42 U.S.C.

§§2G00a et seq.

27/ School Boards can more economically furnish one well-
equipped science laboratory, than two of mediocre quality. 
Similarly, where particular courses offerings depend on 
student demand more such courses might be offered after 
consolidation and pairing.

27/

30 _



As early as Brown II, and most recently in Green, the

Supreme Court reiterated that the burden is on the state and

indirectly the local boards to initiate, develop and implement
28/

plans disestablishing prior state-imposed segregation. In this 

case a Negro district has been maintained for some 14 years in 

flagrant violation of the Constitution. It should not have 

been necessary for Negro plaintiffs to bring legal action to 

obtain its dissolution. That burden should have been assumed 

by the State through its agent the County Board. Even after 

suit was filed plaintiffs attempted to induce a negotiated 

voluntary consolidation. Their attempts were ignored. Defendants

preferred instead to await the outcome of judicial proceedings
29/

(12 la). See 94a and PX 15, 16, 17. Now after extensive in­

vestigation and preparation, a full trial and this unnecessary 

appeal, fundamental fairness requires an award of counsel fees 

to plaintiffs. Only the threat of counsel fees, will prod

28/ Green v. County School Board of New Kent County, Va., 391
U.S. 430, 437 ~ '

Brown II was a call for the demantling of well- 
entrenched dual systems. . .

* * * *

[The] deliberate perpetuation of the unconstitutional 
dual system can only have compounded the harm of 
such a system . . . The burden on a school board is 
to come forth and with a plan that promises 
realistically to work, and promises realistically 
to work now. (438-439)

29/ These exhibits have not been reproduced in the appendix.
They consist of letters between the counsel for the parties.

31



unwilling state officials to assume, at long last, their 

constitutional obligations by initiating, without awaiting 

suit by Negroes, the requisite transitions to "unitary non- 
racial systems."

While we do not argue here that counsel fees need necessarily 

be allowed as a matter of course in school desegregation cases, 

as the Supreme Court has said must be done in Title II cases 

(Newman v. Piqgie Park Enterprises, Inc., 390U.S.400(1968)), 

we do strongly submit that counsel fees should be awarded where, 

as here, the constitutional obligation, albeit clear, was nonetheless 
ignored for fourteen years by state officials.

In this and other circuits, other courts have begun to 

recognize the inequities and are beginning to grant counsel fees 

with somewhat more frequency. See Cato v. Parham, No. PB-67-C-69 

(E.D. Ark.) decided July 25, 1968, where the court allowed a fee 

of $700 against the Dollarway school district on the ground that 

"whatever progress has been made in the direction of desegregation 

at Dollarway has followed judicial prodding"; the same court made 

a similar award in Kelley v. Altheimer, No. PB-66-C-10 (E.D. Ark.), 

decided July 29, 1968). See also, Jackson v. Marvell School 

Pistrict, Nos. H-66-C-35, H-67-C-2Q (E.D. Ark.), decided August

6, 1968; Rolfe v. Lincoln County Board of Education, ___ F.Supp.

_____ (D. 1968). Cf. Bell v. School Board, 321 F .2d 494, 500

(4th Cir. 1963). This Court should do no less.

32



Appellants' counsel have expended substantially more than 

100 lawyer hours and considerable secretarial expense in preparing 

the trial and appeal in this matter. An extensive trial brief 

was also filed with the district court. For this reason, we believe 

an award of $5,000 would be a fair and reasonable recovery. Only 

if meaningful attorneys' fees are awarded will there be "encourage 

[ment to] individuals injured by racial discrimination to seek 

judicial relief. . ." Newman v. Piggie park Enterprises, Inc., 
supra, 390 U.S. at 402.

33



CONCLUSION

WHEREFORE, for the foregoing reasons it is respectfully 

submitted that the judgment below should be reversed and the 

case remanded to the district court with instructions to enter 

an order (1) requiring the consolidation of the districts and 

the pairing of the two 12 grade schools no later than the opening 

of the 1969-70 school years; and (2) awarding $5,000 in counsel 
fees to plaintiffs.

Respectfully submitted,

JOHN W. WALKER
1820 West Thirteenth Street 
Little Rock, Arkansas 72202

NORMAN J. CHACHKIN 
220 Locust Street 
Philadelphia, Pennsylvania 19106

JACK GREENBERG
MICHAEL MELTSNER
FRANKLIN E „ WHITE 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

3 4-



Certificate of Service

I hereby certify that on this, the 1st day of October 1968, 

the foregoing Brief for Appellants was served by United States 

mail, postage prepaid, on counsel for appellees as follows:

John B. Hainon, Esquire Boyd Tackett, Esquire
DeQueen, Arkansas Texarkana, Arkansas

Attorney for Appellants