Yarbrough v. The Hubert-West Memphis School District No. 4 Brief for Plaintiffs-Appellants

    NO. 71-1524

DELOIS YARBROUGH, et al..
Appellants,

v.
THE HULBERT-WEST MEMPHIS SCHOOL 
DISTRICT NO. 4, et al..

Appellees.

NO. 71-1510

DELOIS YARBROUGH, et al..
Appellees,

v.
THE HULBERT-WEST MEMPHIS SCHOOL 
DISTRICT NO. 4, et al..

Appellants.

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

GEORGE HOWARD, JR.
329*5 Main Street
Pine Bluff, Arkansas 71601

Attorneys for Plaintiffs- 
Appe Hants



INDEX

PRELIMINARY STATEMENT................
ISSUES PRESENTED FOR REVIEW..........
STATEMENT....................
ARGUMENT

THE DISTRICT COURT'S REQUIREMENT 
THAT A THIRTY PER CENT MINORITY 
ENROLLMENT BE MAINTAINED IN EACH 
SCHOOL IS ILL CONCEIVED AND FAILS 
TO CREATE A UNITARY SCHOOL SYSTEM 
IN WEST MEMPHIS ................

CONCLUSION........

TABLE OF CASES
Clark v. Board of Educ. of Little Rock-

426 F.2d 1035 (8th Cir. 1970) ...............
Clark v. Board of Educ. of Little Rock, No. 71-1409 

(8th Cir., Sept. 10, 1971)...................
Davis v. Board of School Commr's of Mobile 

402 U.S. 33 (1971).................. [
Davis v. School District of Pontiac, 309 F.*Supp! 

734 (E.D. Mich. 1970), aff'd 443 F.2d 573 
(6th Cir.), cert, denied, ___ U.S. (1971)..

Green v. County School Board of New Kent Countv 
391 U.S. 430 (1968)..................... ..

Kemp v. Beasley, 423 F.2d 851 (8th Cir. 1970)..... .
Swann v. Charlotte-Mecklenburg Board of Educ 402 U.S. 1 (1971)..................

Whitley v. Wilson City Board of Educ., 427 F 2d 179 
(4th Cir. 1970)....................... *......

Yarbrough v. Hulbert-West Memphis School District
380 F. 2d 962 (8th Cir. 1967)...............

Yarbrough v. Hulbert-West Memphis School District, 
243 F. Supp. 65 (E.D. Ark. 1965)........... [.

15
16

13,14n

13

11,12
15

3,4,12,
16

9

2
2n, 13



IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 71-1524
DELOIS YARBROUGH, et al.,

Appellants,
v.

THE HULBERT-WEST MEMPHIS SCHOOL 
DISTRICT NO. 4, et al.,

Appellees.

NO. 71-1510
DELOIS YARBROUGH, et al..

Appellees,
v.

THE HULBERT-WEST MEMPHIS SCHOOL 
DISTRICT NO. 4, et al..

Appellants.

BRIEF FOR PLAINTIFFS-APPELLANTS

PRELIMINARY STATEMENT
This is an appeal from an order of the United States 

District Court for the Eastern District of Arkansas, Hon. 
Garnett Thomas Eisele, united States District Judge.



ISSUES PRESENTED FOR REVIEW

I* Aether the district court's establishment of minimum 
ratio requirements was proper.

2. Whether the plan approved by the district court 
fails to establish a unitary school system in West Memphis 
because it permits substantially disproportionate student 
racial enrollments characteristic of the traditional racial 
identity of the schools.

STATEMENT

This^school desegregation case was commenced January 28,
1965 (2a), and was last before this Court in 1967, Yarbrough 
— — Hiilbert-West Memphis School District. 380 F.2d 962 (8th 
Cxr. 1967), at which time this Court declined to disapprove 
the school district's freedom-of-choice plan but directed 
greater faculty desegregation.

November 12, 1970, new plaintiffs, members of the class 
on whose behalf the action had originally been brought, sought 
leave to intervene (5a-6a) alleging that faculty segregation 
was continuing and that defendants had not undertaken affirma­
tively to dismantle their dual school system (7a-9a). Defendants 
did not oppose intervention but suggested proceedings be 
stayed pending decision of the United States Supreme Court in

— Citations are to the Appendix herein.
—/ T*le Previous district court opinion is reported at 243F. Supp. 65 (E.D. Ark. 1965).

-2-



Swann v._Charlotte-Mecklenburg Board of Educ.. 402 U.S. 1
(1971) (lOa-lla), and on December 10 the district court 
granted leave to intervene (12a).

Statistical information for the 1970-71 school year 
requested by the district court and counsel for the plaintiffs 
showed (15a) three all-black schools in the system and two 
additional schools over 99% black. Four schools had no Negro 
faculty members (16a-17a); two schools had two or fewer 
white teachers and four other schools had between one and four 
black teachers each (ibid.). The district had closed one
formerly all-black school at the beginning of the 1970-71 school 
year (18a).

Pursuant to the suggestion of the district court at an 
unrecorded pretrial conference and by letter to counsel, the 
school district filed a proposed plan of desegregation to 
replace freedom of choice on or about February 12, 1971 (75a- 
78a). This plan proposed to pair West Memphis and Wonder 
Senior High Schools commencing March 6, 1971 (teaching all 
students in grades 11 and 12 at the West Memphis school and 
all students in grade 10 at the Wonder site); to reassign on 
that date all black junior high school students living outside 
the West Memphis city limits, who were previously transported 
to Wonder Junior High School, to the East and West Junior 
High Schools— but not to reassign any white students to Wonder 
Junior High; and to implement on that date majority-to-minority 
transfer rights for junior high and elementary school students

-3-



(with no guarantee of free transportation for students 
exercising transfer rights).

Plaintiffs objected to the selection of West Memphis 
Senior High School to house the upper grades, to the sufficiency 
of the elementary and junior high school desegregation plans, 
and to the sufficiency of defendants' proposed faculty reassign­
ments (79a-80a). Following a further pretrial conference, 
the district court required submission of a new and comprehen­
sive desegregation plan but approved the board's senior high 
school and faculty desegregation proposals on an interim basis 
for the second semester of the 1970-71 school year (85a-86a).

On April 2, 1971, the school district filed a tentative 
"plan of desegregation" for 1971-72 which would have maintained 
the pairing of the senior high schools, "gerrymandered,"
"wherever feasible and workable," elementary and junior high 
school "geographic attendance zones [otherwise] drawn so as 
to assign students to the school closest to their homes, 
to increase integration," and assigned at least 25% minority 
race faculty members to each school in the system (87a-88a). 
Plaintiffs' subsequent objections noted, inter alia, the 
district's failure to project enrollments or delineate zone 
lines under its plan (89a-90a).

On May 21, 1971, the district court ordered the district 
to file another plan for the 1971-72 school year, designed to 
meet the requirements of Swann, supra. The district's final 
proposal included the following: (1) pair the high schools as

-4-



in 1970-71; (2) zone junior high schools so that each would
47%, 50% and 53% black students, respectively; (3) 

zone elementary schools so that two schools would enroll 23% 
and 27% white students, respectively, and four schools would 
enroll between 65% and 71% white students; (4) assign 
faculty substantially in accord with the system-wide ratio 
(93a-103a). Plaintiffs objected to the district's plan and 
proposed a restructuring of grade levels in the West Memphis 
school system so as to close Wedlock Elementary as an identi- 
fiably black school and increase the proportion of blacks 
attending the traditionally white schools in the system (104a- 
107a). The matter was tried to the court on July 6, 1971 
(108a-298a).

1*he contentions of the parties at the trial were relatively 
simple and straightforward. Plaintiffs' expert witness. Dr. 
Michael j. Stolee, whose qualifications are set out in the 
testimony (227a-229a), discussed his reservations as an educator 
and desegregation expert about the school district's elementary 
school plan (233a). These were basically that most schools 
would remain racially identifiable, with traditionally white 
schools enrolling disproportionately low percentages of black 
students and Wonder and Wedlock schools (both formerly black 
schools) enrolling disproportionately low percentages of white 
students. Dr. Stolee expressed particular concern about the 
chances that the Wedlock School would actually enroll the 101 
whites who were to be assigned to it; these white children 
had previously been transported by the district into West

-5-



Memphis to attend white schools (268a-269a; 287a).
Stolee offered an alternative plan involving the 

closing of the predominantly black Wedlock school. The white 
students whom the school district would assign to Wedlock 
would instead be assigned to Wonder; the black students who 
formerly attended Wedlock would be distributed among the 
traditionally white elementary schools in West Memphis (252a). 
In order to utilize the capacity of each school without over­
crowding, Dr. Stolee's plan proposed a grade reorganization, 
moving from a 6-3-3 organization to a 5-3-2-2 structure (251a) 
He testified that in his opinion the plan was educationally 
sound and feasible for the West Memphis school district (271a) 
and he pointed out that an increasing number of American 
school systems are currently adopting middle school, grades 6-8 
programs— the essence of his proposed grade reorganization 
(234a-235a).

Defendants called the Superintendent who justified their 
plan on the grounds that it provided for the minimum necessary 
departure from the principles of neighborhood school zoning 
while still representing increased sesegregation, that the 
school district did not favor the middle school concept but 
believed sixth grade students should remain in elementary 
schools, that implementation of grade restructuring and more 
transportation would be disruptive, that execution of Dr. 
Stolee's plan would require up to five additional buses which 
the school district neither had nor could afford to purchase, 
and that the Wedlock School was in satisfactory condition, was

-6-



a source of community pride, and ought not to be closed (137a- 
145a, 150a-151a, 156a). The only other witness for the 
defendants was the principal of Wedlock for some twenty years, 
who supported the Superintendent's desire not to close the 
facility (222a).

Dr. Stolee estimated the chances of effectuating successful 
desegregation to be greater if Wedlock were closed (233a) 
and also testified that isolated, rural schools in homogeneously 
low-income areas such as Wedlock (202a) do not and cannot 
offer an education comparable to that available in the West 
Memphis city schools (240a-241a). (The district did not 
propose to assign any city children to Wedlock.) Finally, Dr. 
Stolee said that he understood the feelings of some of the 
black community around the Wedlock School but that their 
emotional ties to the school and desire for its retention was 
secondary to the need for desegregation, in his opinion (284a).

The district court followed neither the approach taken 
by the defendants nor that suggested by the plaintiffs.
Instead, while rejecting the district's proposal as formulated 
because it would maintain schools with enrollments substantially 
disproportionate to the system-wide enrollment (307a), the 
district court modified the plan to impose a minimum 30% 
minority-race enrollment requirement at each school and indicated 
it would approve the plan as modified (310a).

The school district filed revised attendance zones which 
projected at least 30% black students in the formerly white

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schools and at least 30% white students in the formerly black 
schools (316a-317a) and the district court approved the plan 
(318a). Subsequently, after the 1971-72 school year had 
begun but before the filing of a report by the school district, 
a group of proposed intervenors brought to the attention of 
the district court and counsel the fact that the white student 
enrollment at Wonder Elementary School was considerably below 
30% (322-323a). The district court by letter directed the 
school district to modify its plan (by transferring students 
from schools in which their race is in the majority to other 
schools in which their race would be in the minority, or 
otherwise) so as to maintain the 30% minimum minority enroll­
ment (331a-333a), and denied a stay of its order which had 
been sought by the school district (324a-330a). The district 
thereupon proposed modifications of its plan for implementation 
on October 11, 1971 to achieve enrollment shifts (334a-339a)? 
the district court approved the modifications on the day that 
they were filed (340a-341a).

The report prepared by the district as of October 27, 1971 
shows (342a—343a) that as of this time each elementary school 
had at least a 30% minority enrollment. However, the three 
formerly black elementary schools enroll 63%, 67% and 70% 
black students, respectively, while three formerly white ele­
mentary schools enroll 57%, 61% and 62% white students, 
respectively? the entire system is now 53% black, 47% white 
(335a).

-8-



ARGUMENT

THE DISTRICT COURT'S REQUIREMENT THAT A 
THIRTY PER CENT MINORITY ENROLLMENT BE 
MAINTAINED IN EACH SCHOOL IS ILL CON­
CEIVED AND FAILS TO CREATE A UNITARY 
SCHOOL SYSTEM IN WEST MEMPHIS.

It should not be taken as any indication of rough-hewn 
justice that all of the parties to this litigation are dis­
satisfied with the district court's resolution of the contro­
versy. Plaintiffs have appealed because the district court's 
order sanctions— indeed contemplates— assignment of students 
to the West Memphis public schools in a manner which preserves 
the racial identity of those schools. The defendants have 
cross appealed the decree which requires them to readjust 
boundary lines and make midyear reassignments of students in 
order to maintain an artificial racial composition in its 
schools (325a). And a group of parents whose children have 
been made the subject of that reassignment process (compare 
Whitley v. Wilson City Board of Educ., 427 F.2d 179 (4th Cir. 
1970)) have intervened seeking provision of transportation 
for West Memphis city students reassigned to comply with the 
order and maintenance of stable, integrated school populations 
(323a). This case may be a rarity among school desegregation 
cases in this Circuit: one in which the plaintiffs and the 
defendants agree that the lower court's decree is in error.
The real issue on this appeal is what must replace that decree.

-9-



Plaintiffs argue that if this Court agrees that the lower 
court's decree is defective because it maintains a pattern 
of racially identifiable schools, a fortiori the Constitutional 
mandate will not be satisfied by implementing the defendants' 
original proposal; we would expect defendants to argue the 
contrary.

In fairness to the district court, we should state that 
its opinion and its later correspondence reveal substantial 
doubt on the part of the court about the efficacy of the plan 
approved by its order. See the court's trial comments (294a). 
The opinion recognizes the problem with defendants' plan to 
be the projected enrollments of 23% and 21% white students 
at Wedlock and Wonder, traditionally black elementary schools 
(307a). While the court states that it is imposing a higher 
minority race enrollment requirement as a modification of 
defendants' plan in an attempt to insure a workability which 
the court doubts would be achieved by the district's plan 
without modification (311a), the lower court goes out of its 
way to invite the school district to adopt and submit a dif- 
f^^snt plan which would "dramatically reduc[e] the imbalance" 
inherent in even the modified plan and avoid the midyear 
reassignments which the district court clearly foresaw as 
a distinct possibility under its order (310a-311a).

Subsequently, when modification of the plan during the 
course of the present school year was made necessary because 
the projected enrollments at several schools failed to materia­

-10-



lize, the court again reminded the parties that it would 
have welcomed submission of a different plan by the defendants, 
although it felt barred from considering a new plan at the 
time because the matter had been appealed (333a). And in 
approving the board's modifications, the district court said 
that "[t]he problem that has developed was clearly foreseeable 
back in June and July, and was in fact foreseen and discussed 
at the earlier hearing" (341a).

Yet the district court somehow felt obligated to approve
a plan based upon defendants' alleged concepts of neighborhood
zoning and a 6-3-3 grade structure while recognizing that
even as modified in accordance with its order, the plan would
bring about "minimum" desegregation (310a):

Before even considering any other plan, it is 
incumbent upon the Court to examine the pro­
posal of the school board. if that plan [even 
barely] meets constitutional requirements, the 
Court should look no further. It is for the 
school board, not the Court, to establish 
educational policy. And it is not for the 
Court to pick and choose among various plans 
where each meets constitutional requirements (307a).

This passive attitude is startling, and we submit, led the 
court into accepting a plan which its instincts correctly 
told it would not work. There was ample authority to support 
the district court's obligation to select a plan which did 
away with the pattern of racially identifiable schools in West 
Memphis, and which achieved more than "minimum" desegregation. 
In Green v. County School Board of New Kent County. 391 u.S.
430, 439 (1968), the Supreme Court said:

-11-



The obligation of the district courts, as it 
always has been, is to assess the effectiveness 
of a proposed plan in achieving desegregation 
... in light of the circumstances present and 
the options available in each instance. it is 
incumbent upon the school board to establish 
that its proposed plan promises meaningful and 
immediate progress toward disestablishing state- 
imposed segregation. it is incumbent upon the 
district court to weigh that claim in light of 
the facts at hand and in light of any alternatives 
whi_ch may be shown as feasible and more promising
in their effectiveness--- Of course, where other,
more promising courses of action are open to the 
board, that may indicate a lack of good faith; 
and at the least it places a heavy burden upon 
the board to explain its preference for an 
apparently less effective method.

Whatever doubts there may have been, whatever ambiguities may 
have resided in the Green language, the directive of Swann 
v. Charlotte-Mecklenburg Board of Educ.. 402 U.S. 1, 26 (1971) 
is clear; the court must select that plan among the alterna­
tives presented to it which achieves the greatest amount of 
desegregation. But the district court here deferred to the 
defendants' expressed desire to maintain what it characterized 
as a modified neighborhood school plan (309a). As the Supreme 
Court has suggested, such deference is ill-placed when desegre­
gation is not thereby maximized:

As we have held, "neighborhood school zoning," 
whether based strictly on home-to-school distance 
or on "unified geographic zones" is not the only 
constitutionally permissible remedy; nor is it 
P^r se adequate to meet the remedial responsibili­
ties of local boards. Having once found a viola­
tion, the district judge or school authorities 
should make every effort to achieve the greatest 
possible degree of actual desegregation, taking 
into account the practicalities of the situation.
A district court may and should consider the use 
°f all available techniques including restructuring 
°f attendance zones and both contiguous and non—

-12-



contiguous attendance zones. See Swann, supra, 
at 22-31. The measure of any desegregation plan 
is its effectiveness.

Davis v. Board of School Commr's of Mobile. 402 U.S. 33, 37 
(1971). (emphasis supplied in part).

Furthermore, this is a school system in which there ought 
to be a strong presumption against a "neighborhood school" 
zoning plan which achieves anything less than maximum desegre­
gation. School site location and school construction establish 
school "neighborhoods" for the purposes of assignment of students. 
In West Memphis, where a strict biracial school system was 
enforced until the 1965-66 school year without exception,
Yarbrough v. Hulbert-West Memphis School District. 243 F. Supp.
65 (E.D. Ark. 1965), most of the schools presently operating 
were constructed after 1954 in racially homogeneous "neighbor­
hoods" and designed to serve students of the predominant 
race residing in such "neighborhoods" (169a-175a). The Super­
intendent admitted that white schools were planned and built 
in white communities and black schools were planned and built 
in black communities (176a). Under such circumstances, a 
"neighborhood" plan is almost necessarily foredoomed to failure.
Cf. Davis v. School District of Pontiac. 309 F. Supp. 734 
(E.D. Mich. 1970), aff'd 443 F.2d 573 (6th Cir.), cert, denied 
___ U.S. ___ (1971) .

The prospects for success of any such plan are also dimmed 
by the deliberate location of public housing projects designed 
for predominant occupancy by one race adjacent to schools 
serving students of that race (178a-181a). And the district's

-13-



claims for its "neighborhood school system" are vitiated by 
its consistent disregard of "neighborhood zone lines" in the 
past in order to achieve segregation. As recently as 1970-71, 
white students outside the city limits who were living closer 
to the Wedlock school than any other district facility were 
transported at school district expense to white schools inside 
West Memphis.

The solution adopted by the district court erroneously 
attempts to maintain a "neighborhood school" system that never 
was; it does not meet constitutional standards because it 
sets up artificial ratios which result in racially identifiable 
schools.

The October 27, 1971 attendance figures submitted by the
3/

defendants show that the three formerly black elementary schools.
Wonder, Jackson and Wedlock, have black enrollments signifi-

1/cantly greater than those of other schools in the system. On
1 / This Court may consider the actual effects of defendants' 
modified plan, as implemented, in measuring its constitutional 
sufficiency. See Davis v. Board of School Commr's of Mobile.
402 U.S. 33, 37 (1971). The lower court's opinion, in fact, 
indicates that the court anticipated reconsidering this matter 
if the plan as implemented did not achieve the expected desegre­
gation (309a). However, the district court has now taken the 
position (332a-333a) that it cannot change its order while the 
case is on appeal. Plaintiffs, who were put to a Hobson's 
choice of accepting what they considered to be an insufficient 
order in the hope that the district court would change its 
order in the fall, or appealing that insufficient order and 
divesting the district court, in its view, of jurisdiction to 
change its order, are thus enduring a non-unitary and unconsti­
tutionally constituted school system because of litigation 
delays— even though there is reason to suspect that the district 
court may have concluded that the plan now in effect fails to 
meet constitutional standards. Plaintiffs attempted to persuade 
the district court of its power to act (see Appendix A) but as 
yet to no avail.
4/ Under defendants' plan, Jackson Elementary was projected to 
be majority-white (317a), but because the school district under-

-14-



the other hand, the formerly white Weaver and Richland elemen­
tary schools enroll 62% and 61% white students, respectively. 
The other formerly white schools are 49%, 53% and 57% white 
(344a). we submit that this plan, and these results, do not 
shake loose the racial identities which the defendants have 
over the years affixed to the schools. Those schools which 
remained all-black during operation under freedom of choice 
will have a distinctively and consistently higher black 
enrollment than other schools in the system. Similarly, many 
of the traditionally white schools remain sharply distinguish­
able because of their relatively lower black enrollments.

We intend no disagreement with this Court's statement in 
Kemp v. Beasley, 423 F.2d 851, 857 (8th Cir. 1970) that "[w]e 
certainly can conceive of a fully desegregated system where 
percentages do vary from school to school and where even one 
school might have a black majority and another a white majority 
but still, when all factors are fairly and unemotionally 
considered, the system is 'unitized' within the Supreme Court's 
Alexander requirement." That is not this case, or this plan, 
which deliberately sets out to achieve minimal desegregation 
in a fashion which maintains the pattern of higher black enroll­
ments at traditionally black schools and vice versa, and thus 
preserves constitutionally invalid patterns of school assign­
ment. See Clark v. Board of Educ. of Little Rock. 426 F.2d 1035 
(8th Cir. 1970).

4/ cont'd
estimated movement into one of the black housing projects 
adjacent to the school (328a), it continues a heavily black school.

-15-



The question of remedy is more difficult. Obviously, at 
the time of the hearing before the district court, the Stolee 
plan promised to achieve greater desegregation and should 
properly have been ordered implemented under the Swann standard. 
However, Dr. Stolee's proposal was designed for immediate 
implementation at little cost (271a) and it had the weakness 
of leaving Wonder Elementary School only 35% white (253a).
Dr. Stolee himself expressed concern that Wonder, which would 
be the only school with such a low proportion of white students 
assigned to it, might not hold its enrollment (269a) but the 
Superintendent (in defending the district's plan which would 
have resulted in even smaller white minorities at Wedlock and 
Wonder) predicted no white withdrawal at all (162a, 293a). 
Inasmuch as the report filed by the school district shows a 
considerable disinclination on the part of white students to 
attend disproportionately black schools in West Memphis, it 
could hardly be said at this juncture that even the Stolee 
plan, without further modification, would bring about a com­
pletely unitary school system.

Dr. Stolee recognized, for example, that a formerly 
black school with nearly 50% white or black students assigned 
to it would be more likely to remain stable (287a). And in 
a school system as small as West Memphis, there is no warrant 
for even a single school substantially disproportionate in 
racial composition. While a total desegregation plan might 
require acquisition of additional transportation facilities

-16-



(see 188a-196a), state aid would increase proportionately
(185a) and transportation within the city of West Memphis 
would alleviate burdens presently caused by the operation of 
the desegregation plan (273a). This Court has approved 
plans which require the purchase of transportation capability, 
Clark v.— Board of Educ. of Little Rock. No. 71-1409 (8th cir., 
September 10, 1971) (en banc), and there is no reason why 
such a requirement ought not be imposed here. On remand, 
the district court should be directed, therefore, to require 
the submission and implementation, upon approval, of a plan 
which completely desegregates the public schools of West Memphis 
and eliminates their continuing racial identifiability root 
and branch, through the use of whatever techniques are required 

including the transportation of West Memphis city students 
in order to achieve desegregation.

WHEREFORE, appellants respectfully pray that the judgment 
be reversed and the cause remanded to the district court for 
the submission and implementation of a constitutional plan to 
achieve a fully unitary school system in the public schools 
of the Hulbert-West Memphis School District.

CONCLUSION

NORMAN J. CHACHKIN
10 Columbus Circle
New York, New York 10019

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J

GEORGE HOWARD, JR.
329*5 Main Street
Pine Bluff, Arkansas 71601

Attorneys for Plaintiffs- 
Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of November, 1971, 
I served two copies of the Brief for Plaintiffs-Appellants in 
this matter upon G. Ross Smith, Esq., 1100 Boyle Building, 
Little Rock, Arkansas 72201, attorney for defendants, and John 
I* Purtle, Esq., 300 Spring Building, Little Rock, Arkansas 
72201, attorney for intervenors, via united States Mail, first 
class, postage prepaid.

-18-



October 21, 1971

Hon. c;. Thomas Uisele 
Unite' 1 states District Judqe 
Pont O tfi.oe 3o:z 3604 "
Little Hock, Arkansas 72203
Dear Judge Eisele*

*C: No. J-65-C-3, Xirbroueh v. Huihorfc-ve-ttep7u» -chooi

to of p o n t i f f

"*»* ru.pph.t3 school n l ^ S ^ L ^ r  ?.lnn fiiftd *  « »

rodif 1 l'r< 1?3ithrvhr M s e ^ t  o T h  °?j? ^ lrna to *ho Plan as 
the court is correct the t tho ri”^ 1*1 ? lnn* think b titutea a new plan h ^oc.if.ication hardly con-
chance to root the r.^tio r J ^ J * Cr "2 adrrini3trative court's order. reqi.arcrents set down in the

tire f v O r ^ c ^ x V t ^ ^ o ^ c c o ^ i d c r ^  appropril,t* approach to de5e^ r p t<on Jhlch entire plan and the
respect, vo vould r e - ^ t f u l W M 1 represents, m  this 
-pressed in this * * , ” * * * *cross appeal tcrc *■'... • • s. a. tho epocri and
rncadity or change in its entirftv Z ? t l 0 ?  of thie court to 
tlon in a school district if ♦•vie plna of ^Heeretjn- 
plan is not working as cant, ~ « ? % C?Urt conclude» that the

tinuing oblication to^inaure^h thiS court*s con-
rights of the Nearo fc the constitutional
only to further orders‘ ^forced extends not
court's jurisdiction h»f !i y protective of the
stitute new nndftffective^lan^f^^fK the court to sub­
working, even if theyare on^^rvf0? those vh*ch are not X t-.Choct^v Countv 5<ie IMited rtates
Cir. 1969T: Khi'I~ t ro t3̂ ftt1.rVl» 417 F.2d sTa (5th
for exmrple, isplerrentatio^ 2?W 0n?*r requiring, semester of the current- rj.~v.JLo ̂ fective with the second 
proposed J ' ^ , , r r r' °f
»ppenl and oros3 ,.PPeilPvli1l,cK°haCer>S : r k rrlL r t ^ .

f if P C M o n C  - A "



Hon. G. Thomas Eisele 2- October 21, 1971

,Voui d ^  nothing to  prevent tin* p a rtie s  fron *rcmiiicr
3 L E  h ^ T » "  I ^ H n  ?* > * % •  ' " r * « r

% p r * f 1f P - g| - - ' ^ a s ja | * f 39 p - 2 ° " i i 9?6iS ac i ; r ,T 5 ^ l 7 !Cl.^ u  25a i6r.m Oxr. 1971). '*

? af ure o f  th i® case in p a rtic u la r  suggest the
c h a S  thoan inea3 ° e tha c o u r t ‘ s View th at i t ^ L y  not 
o f  the S S e ? i  "  P f oe»tx y  *n e f fe c t  curing the pendency

raci illv 1 y’ f°r ««• *•»•* "■ -.<•*»<»«
•vste* h  in  ttu  V m t h ^ p h ia  s c .o a l
the nlan mi ayreoa at i.nc present tliun th *t
tne plan si.ixuu no longer ue continued in e f f e c t  because
—  s not working, taea the only effect: of waiting forI7i .... i . . .the appeal will be to fnvfcl»im4 4- -----_ _ «

• f

uni+ -»*•«» __------ u,:iJy realisation of a
in vioT->tion°o ,**VLs,:c:n in tha w*st Jwohia iiehooi district3S6 U l ? ^ r--Xr.J‘oi»^.Coianvy Hoard of fic.uc 
the court L ' t  ’- .Jt Vcuic ^ c ^ra^rooVraVeTol5

r * er ail,Ce * * *  P^txes are di*~ eatinn -i ii:, Z ? paragraph 2 of defendants* *m>li-
29, 1971. y filed in fch;l<* c‘'«ao on or about September

For these reasons, we respectfully su'-'v— t th-*r *•’«« court vacate it:: crier c£ ju ... . » L  « . . * Jne30 1^71 , ' * "■ — d *̂ t® on.or or ouly

t s n s i s : ™  ^  thB ™«
tion J L Cl°3Xnqf VH «-»»*•«* to bring to the court*o attoa-

!L_?_iACr̂ “g iron: ranainos v. board of>.̂...—l truetion of F illnbornnch r^*»*v r*A "Vv> V S W "
(M.D. Fla. , M-y 11, ' l^TTnrrSor----- l~ f 554

and^«^7?9re9at:i0n Pl9n Wil1 be successful addJ5 rf>3°vrC^ tion vhere « few whites are
rfna?«t?r>5OIT er4ly bK'ck scho° l8 vhich otherwise reraain intacti in a plan vhich anticipate*
retention of ioentifiably black schools will 
t?7l* Partial desegregation results in white 
flight, resort to private schools, and other 
maneuvering* vhich frustrate the course of 
justice. Successful desegregation must extend 
throughout the school system and. be done in



Hon. G. Thoras risele -3 October 21/ 1971

such n v,-!y tint the. tactics which impede court orders rendered futile."

Very truly your3.
I

Horvnn J. Chschkin Attorney for Plaintiffs
HJCinu
CC G. Ross Smith, Ei-q. 

Johsi P u r tie , Eaq. 
George Howard, £*<7.