Kelley v. The Altheimer, Arkansas Public School District No. 22 Brief for Appellants

    llnxtth States (tort uf Kppmlz
F oe. the E ighth Circuit 

No. 18528 
Civil

Moses K elley, on behalf of himself and his minor children, 
Moses Kelley, Jr., et al.,

Appellants,
-v.-

The A ltheimeb, A rkansas P ublic S chool D istrict N o. 
22, a public body corporate, and T he J. E. Stowers 
Construction Company,

Appellees.

A P P E A L  FR O M  T H E  U N IT E D  STATES D IST R IC T  COURT FO R  T H E  
EA ST E R N  D ISTR IC T OF A RK A N SA S, P IN E  B L U F F  D IV ISIO N

BRIEF FOR APPELLANTS

J ack Greenberg
J ames M. N abrit, III
Michael Meltsner

10 Columbus Circle
New York, New York 10019

J ohn W. W alker
1304-B Wright Avenue 
Little Rock, Arkansas

D elector Tiller
2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Appellants



I N D E X

Statement of the Case .................................................. 1
I, The Altheimer School System and The Plan of 

Desegregation .......................................... ............  3
II. The Testimony of Dr. Myron Lieberman, Plain­

tiff’s Educational Expert .....................................  6

A. The Planning of the Replacement Construc­
tion .....................................................  7

B. The Inefficiency of the Dual School Structure 8

C. Perpetuation of Racial Segregation .............. 11

III. The Testimony of James D. Walker, Superinten­
dent of Schools .............................   12
A. The Past and Present Operation of the

Altheimer School System ....................   12
B. The Prospective Operation of the Plan of De­

segregation .............................................    14

Statement of Points to be Argued .............................. 17

A rgument

I. A School Board Has An Affirmative Duty to 
Disestablish Segregation .....................................  20
A. A School Board Has An Affirmative Duty to 

Completely Re-organize a Segregated Dual 
School System into a Unitary Integrated 
School System ................    20

PAGE



11

B. A School Board is Responsible for the Con­
tinued Coercive Effects of the Tradition of 
Segregation Which Its Previous Actions Es­
tablished, and May Not Adopt Procedures 
Which Perpetuate a Segregated Public School 
System or Which Counteract the Desegrega­

PAGE

tion Process .....................................................  24
II. The “Freedom of Choice” Plan Approved By the 

District Court is Fundamentally Inadequate to 
Disestablish Segregation .....................................  26
A. The District Court Erred in Holding that

“Freedom of Choice” Plans are Valid Regard­
less of the Circumstances in Which They Op­
erate and Regardless of Whether They Dis­
establish Segregation ..................................... 26

B. The District Court Erred in Ignoring Over­
whelming Evidence that the Replacement Con­
struction Would Perpetuate Segregation, and 
that the “Freedom of Choice” Plan Had No 
Reasonable Probability of Disestablishing 
Segregation in the System ............................ 30

III. The District Court Misconstrued the Power and 
Duties of a Federal Court of Equity in Super­
vising Desegregation and Granting Relief to Ac­
complish that End ................................................ 33

Conclusion ...................................................................  39



\
 

X

111

Table oe Cases

p a g e

Board of Public Instruction of Duval Co., Fla. v.
Braxton, 326 F.2d 616 (5th Cir., 1964) .................  37

Bowles v. Skaggs, 151 F.2d 817 (6th Cir. 1946) ......  35
Bradley v. School Board of the City of Richmond, 382

U.S. 103 (1965) ......................................................... 31
Brown v. Board of Education of Topeka, 347 U.S. 483 

(1954); 349. U.S. 294 (1955) ................. 20, 22,Tt735, 38

\ /  Carr v. Montgomery County Board of Education, 253
F. Supp. 306 (M.D. Ala., 1966) ................................ 36

Cooper v. Aaron, 358 U.S. 1 (1958) ............................23, 27

Dove v. Parham, 282 F.2d 256 (8th Cir., 1960) ....23,25,27,
28, 32, 38

Dowell v. School Board of Oklahoma City, 244 F. Supp.
91 (W.D. Okla., 1965) ............................................ . 37

' /  Goss v. Board of Education of the City of Knoxville,
. 373 U.S. 683 (1963) ................................................. 25, 27

• Griffin v. School Board of Prince Edward County, Va.,
377 U.S. 218 (1964) ...................................25,27,28,36

Kemp v. Beasley, 352 F.2cl 14 (8th Cir., 1965) ....24, 26, 27,
29, 32, 33, 37, 38

Kier v. County School Board of Augusta Co., Va., 249 
F. Supp. 239 (W.D. Va., 1966) ............... ................ 31

Jifeo Feist, Inc. v. Young, 138 F.2d 972 (7th Cir. 1944) 35

Northcross v. Board of Education of the City of 
Memphis, 333 F.2d 661 (6th Cir., 1964)

^  Rogers v. Paul, 382 U.S. 198 (1965) .23,27



IV

Schine Chain Theatres v. United States, 334 U.S. 110
(1948) .........................................................................  36

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F.2d 865 (5th Cir., 1966) ........................  24

Smith v. Board of Education of Morrilton School Dis­
trict, No. 18,243 (8th Cir., 1966) .-..25, 26, 28, 30, 31, 32, 37

United States v. Bausch & Lomb Optical Co., 321 U.S.
707 (1943) .................................................................. 36

United States v. National Lead Co., 332 U.S. 319
(1947) ......................................................................... 36

United States v. Standard Oil Co., 221 U.S. 1 (1910) .... 36

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir., 1965) .............      37

PAGE



Inttefc States (Emtrt a! Appeals
F or the E ighth Circuit 

No. 18528 
Civil

Moses Kelley, on behalf of himself and his minor children, 
Moses Kelley, Jr., et al.,

Appellants,
-v.-

The A ltheimer, A rkansas P ublic S chool D istrict N o. 
22, a public body corporate, and T he J. E. S towers 
Construction Company,

Appellees.

A P P E A L  PR O M  T H E  U N IT E D  STATES D ISTR IC T  COURT FO R T H E  
EA STER N  D ISTR IC T OP A RK ANSAS, P IN E  B L U F F  D IV ISIO N

BRIEF FO R APPELLANTS

Statem ent o f the  Case

This case originally involved a suit by Negro plaintiffs 
against the Altheimer, Arkansas Public School District 
No. 22 and the J. E. Stowers Construction Company1 to 
enjoin them “from continuing plans to construct, and from 
constructing, separate public elementary schools for white 
and Negro elementary students” and “from continuing the 
policy, practice, custom and usage of assigning pupils, fac­
ulty and administrative staff on a racially discriminatory 1

1 Mr. Stowers had the contract for school construction which was 
originally in issue. Apart from performing’ that contract, he had no other 
direct interest in this lawsuit.



basis and from otherwise continuing any policy or practice 
of racial discrimination in the operation of the Altheimer 
School system” (R. 3).

In the complaint filed on February 15, 1966, plaintiffs 
alleged that the school district had historically operated a 
racially segregated system of public schools for Negro and 
white pupils, that in 1965 it began a plan of desegregation 
using the “freedom of choice” approach, but that it was 
now about to have defendant J. E. Stowers Construction 
Company construct new replacement facilities which would 
perpetuate racial segregation (R. 4-5). Plaintiffs also 
alleged that the “freedom of choice” plan of desegregation 
now in use by defendant school district is incapable of 
desegregating the district (R. 6) and sought a preliminary 
and permanent injunction enjoining inter alia (a) “defend­
ant Altheimer School District No. 22 and defendant J. E. 
Stowers Construction Company from proceeding further 
toward construction of separate elementary school facil­
ities for Negro pupils and for white pupils” ; (b) “de­
fendant Altheimer School District No. 22 from approving 
budgets, making funds available, approving employment 
contracts and construction programs, and other policies, 
curricula and programs designed to perpetuate, maintain 
or support a racially discriminatory school system” ; (c) 
“defendant Altheimer School District No. 22 from con­
tinuing its present ‘freedom of choice’ pupil desegregation 
policy; and from any and all other policies or practices 
established on the basis of the race or color of either the 
teachers or pupils in defendant district” (R. 7-8).

Defendant Altheimer, Arkansas School District No. 22 
in its answer admitted that prior to the 1965-1966 school 
year it operated a racially segregated school system, but 
alleged that its plan for desegregation using the “freedom 
of choice” method had been approved by the Department



3

of Health, Education, and Welfare, and sought dismissal 
of the case on the ground that plaintiffs had failed to state 
a claim upon which relief could be granted (R. 12-13). De­
fendant J. E. Stowers Construction Company also sought 
dismissal of the case in a separate answer (R. 14-15).

The District Court denied the requested relief in an opin­
ion dated June 3, 1966 (R. 227-248) and entered an order 
dismissing the complaint (R. 249). In the course of that 
opinion, the court concluded that plaintiffs’ basic attack 
was not on the new construction per se, but on the “free­
dom of choice” plan of desegregation itself. However, 
the court dismissed the case on the basis that “free­
dom of choice” plans had been upheld by appellate courts, 
and that the United States Department of Health, Educa­
tion, and Welfare now had primary responsibility for su­
pervising school desegregation (R. 227-248).

Since the time of the filing of the suit, the new con­
struction of which plaintiffs complained has taken place, 
as the construction contract provided for completion by 
August 15, 1966 (R. 194). However, plaintiffs continue 
their basic attack on the adequacy of steps taken by the 
board to achieve the Constitutionally required desegrega­
tion of the school district.

I.
T he A ltheim er School System  and  T he P lan  o f 

D esegr egation.

The school district includes the town of Altheimer to­
gether with a substantial rural area of Jefferson County 
in the vicinity of the town (R. 227). It is a school district 
of small population, having a total enrollment of 1,408 
students in 1965-66, of whom 741 are elementary students 
and 667 are junior and senior high school students (R. 
28-29).



4

Prior to the commencement of the 1965-66 school year 
the district had maintained racially segregated schools 
(R. 228). Negro students were instructed in a complex of 
buildings known as the Martin School, and white students 
were taught in a complex of buildings known as the 
Altheimer School. The sites of the two building complexes 
are within six city blocks of each other (R. 179, 228). 
Each site contains an elementary school consisting of the 
first six grades and a combination junior-senior high 
school consisting of grades 7-12 (R. 230). About midway 
between the two sites there is another school building 
in which vocational agriculture is taught (R. 228). About 
two-thirds of the students at each school site arrive at 
the school by school bus from outlying areas (R. 28-29, 
179-180).

Also prior to the 1965-66 school year, the administrative 
staff of the district was entirely white, except for the 
principal of the Negro Martin School complex (R. 228). 
The faculty was completely segregated, with white students 
taught only by white teachers, and Negro students taught 
only by Negro teachers (R. 228).

In response to the enactment of Title VI of the Civil 
Rights Act of 1964 and the promulgation of guidelines 
by the United States Department of Health, Education, 
and Welfare implementing Title VI, the Altheimer School 
District submitted a voluntary plan of desegregation to 
the United States Commissioner of Education in April, 
1965, which, after amendment, was finally approved and 
went into operation in September, 1965 (R. 229). The 
method adopted for student desegregation was a “free­
dom of choice” plan, under which students may express 
choices for assignments to particular schools, the assign­
ments to be honored as a matter of course unless this 
would result in the overcrowding of a particular school.



5

In the event of overcrowding or a failure to exercise 
choice, a student is supposed to be assigned to the school 
nearest his home where space is available. The plan con­
templated that freedom of choice would be afforded each 
year after September, 1965 for all grades (R. 164, 230).

During the 1965-66 school year, two Negro elementary 
students and four Negro high school students requested 
assignment to the traditionally white Altheimer site. No 
white students requested assignment to the traditionally 
Negro Martin site. All six requests of the Negro students 
were granted (R. 29, 231). Thus, six of the 1,001 Negro 
students (or % of 1%) in the Altheimer school system 
were in a desegregated school situation during the last 
school year (R. 28-29). Apart from the three white teach­
ers who have been assigned to the all-Negro Martin School, 
the faculty of the school system remained segregated ac­
cording to the race of the students which predominated 
in each school complex (R. 231). No Negro teachers were 
assigned to teach white students (R. 28-29).

After submitting its voluntary plan for desegregation to 
the United States Office of Education in April 1965, the 
Altheimer school board adopted a plan to construct two 
new elementary classroom buildings containing a total of 
sixteen (16) classrooms and related facilities to be located 
on the traditionally Negro Martin site, and a single ele­
mentary classroom building containing six (6) classrooms 
and related facilities to be located on the traditionally white 
Altheimer site (R. 229). The number of new classrooms at 
each site is roughly in proportion to the distribution of 
Negro and white elementary students in the system (543 
Negro and 198 white) and to the present enrollments at 
each site (541 Negroes at the Martin site and 2 Negroes 
and 198 whites at the Altheimer site) (R. 28-29). The 
board contracted with the J. E. Stowers Construction



6

Company on February 10, 1966 to undertake this construc­
tion (R. 215), after having obtained approval of a bond 
issue to finance the construction (R. 229). Five days later, 
plaintiffs filed suit to enjoin this construction (R. 1).

II.

T he Testim ony o f D r. M yron L ieberm an, P lain tiff’s 
E ducational E xpert.

Plaintiffs obtained the services of an educational expert, 
Dr. Myron Lieberman, to analyze the planning for and the 
educational soundness of the then proposed new construc­
tion. Dr. Lieberman is Director of Education Research and 
Development, and Professor of Education, at Rhode Island 
College in Providence, Rhode Island.2 Dr. Lieberman made 
a substantial field investigation of the Altheimer school 
system, and surveyed the planning and impact of the con­
struction proposal. He examined physical facilities at both 
school complexes and interviewed the Superintendent of 
Schools, James D. Walker, the principals of the two school 
complexes, and a number of teachers and other adminis­
trators in the school system. He was able to obtain rele­
vant data from the school administration to allow him to 
analyze the operation of the system (R. 40-42).

2 He has a Bachelor’s degree in law and social scienee from the Uni­
versity of Minnesota and Master’s and Ph.D. degrees in education from 
the University of Illinois. In his graduate study, he concentrated in the 
area of the “social foundation of education,” which involves analysis of 
the influence of factors such as race, religion, tax structure, and other 
cultural and social factors on the social institution of public education. 
He taught in this area for 12 years. His present position requires him 
to work with public agencies, private foundations, and various experts in 
public planning fields. He has co-authored four books on school personnel 
administration and other aspects of public school planning (R 37-40).



7

A. T he Planning o f the Replacem ent Construction

Dr. Lieberman discovered that the plans for these new 
buildings were “a carryover from a plan that the Board 
had considered some years [previously]” at a time when 
“the unwavering policy of the Board had been to operate 
its schools in a racially segregated manner” (R. 53-54). He 
concluded that since school construction plans must logi­
cally reflect such an overall basic policy of a board, the q L 0 
construction plans “would almost inevitably be changed if 
the Board had abandoned that policy” (R. 54). (This find­
ing was confirmed by the testimony of Fred Martin, Prin­
cipal of the Martin school complex, who stated that the 
replacement facilities in controversy were planned as part 
of a 10-year building program in 1957, at a time when no 
thought was given by the school system administration 
to other than segregated dual operation (R. 109-111).)

In his interviews with school officials, Dr. Lieberman 
found that there were no educational reasons underlying 
the Board’s decision to build sixteen new elementary class­
rooms at one site and six new elementary classrooms at 
the other site, rather than putting all of the new class­
rooms at one complex, or eleven at each complex or some 
other alternative. The Superintendent simply referred 
to traditions in the community (R. 54) and the Board 
never considered the alternative of a single elementary 
facility at one complex and a single secondary facility at 
the other complex (R. 56). Dr. Lieberman noted that this 
was distinctly not in accord with standards of professional 
educational administration practice, since it is an obliga­
tion of school administrators to analyze the costs and the 
advantages of various alternative possibilities of school 
construction (R. 56-57).

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8

There was also no community involvement in the plan­
ning of the new construction by the school board.3

B. T he Inefficiency o f the Dual School S tructure

As part of his analysis of the possible bases for the 
school board’s program of replacement construction, Dr. 
Lieberman considered the overall educational efficiency 
and desirability of the present dual structure of the 
Altheimer school system with two small school complexes.4

A crucial reason for the desirability of larger high 
schools is to provide adequate teachers for specialized sub­
jects. When the total enrollment of the school falls below 
a certain number, the small percentage of the student 
body who are apt to elect any one of a number of special­
ized academic subjects will probably be so small that the 
school system will not feel that the expense of providing 
a teacher for that subject is justified. Thus, if there were 
two schools in which only ten students in each elect a 
particular subject, the school board might not provide a 
teacher for that subject in either school and therefore all 
20 of those students would be deprived of the opportunity 
of taking that subject; however, if all 20 of those students 
were in the same school and elected that subject, the school

3 Dr. Lieberman referred to several authorities on educational planning 
procedures, in particular the National Council for School Construction, 
and noted that these authorities called for thorough community involve­
ment in the planning of new school construction in order to ascertain com­
munity needs. (R. 52-53). Neither had a  professional ed'ucafion~alconsultant 
on the planning of facilities been utilized (R. 53). His general conclusion 
was that planning for the new school construction was not in accord with 
sound professional practice in the field of education (R. 54-55).

4 He based his analysis particularly on what he considered ‘‘the most 
important study of secondary education that has been made in this coun­
try,” Dr. James Bryant Conant’s Study of the American High School 
(R. 44-45). He pointed out that in this work, Dr. Conant gives top 
priority in educational planning to the elimination of small high schools 
for various reasons (R. 47).



9

board would then feel justified in undertaking the expense 
of a teacher for that subject (R. 47).

Li<r'

This type of analysis was applied by Dr. Lieberman 
to other aspects of school operations at both the elemen­
tary and high school levels. For instance, the Altheimer - n & 
school system is operating two libraries for grades one . y l '  c 
through 12 six blocks apart. If each library is to be ade- ^  
quate and the facilities are to be equal, the school system L" 
must buy duplicate copies of every book, and every time 
duplicate copies of the same book are purchased where 
one would be sufficient, this means there will be less money 
to buy other different books that would be useful to students 
(R. 45-46).

Dr. Lieberman noted that there is also the matter of 
specialization of training among personnel. For instance, 
it is most desirable for elementary students to have spe­
cially trained elementary librarians and secondary students 
to have specially trained secondary librarians. However, fl' A
if there are two libraries, each of which covers grades 1 
through 12, and only one librarian at each one, then they 
will either have to have an elementary librarian and the v 
secondary pupils will suffer because the librarian is in­
adequate for them, or vice versa. This would not be the 
case if one school were an entirely elementary school and 
the other school an entirely secondary school (R. 46).

Even where a school system does undertake to dupli­
cate course offerings and services in each of two small 
schools, Dr. Lieberman continued, it still cannot avoid 
necessary resulting inefficiencies. For instance, schools 
today perform a wide-range of functions in addition to 
purely academic instruction, such as vocational guidance, 
which require specialized personnel. If this special ser­
vice or special type of course is offered at a small school,

A



10

it is not feasible for a specially trained teacher or other 
such special service personnel to spend all his time doing 
what he is a specialist in because there are too few pupils 
to require his full-time services, and to that extent his 
specialized training is wasted. The existence of such a 
situation also makes it more difficult to attract such spe­
cialized personnel, whose services are often difficult to ob­
tain in the first place (R. 50).

Dr. Lieberman pointed out that the capital outlay for 
equipment as well as the salary of specialized instructors 
adds up to such a large figure in terms of the few enrolled 
as to make many educational programs prohibitively ex- 

f (  pensive in schools where the graduating classes have less 
p UL* fg than one hundred (R. 47-48). Educational experts gen­

erally assume that a school district which is capable of 
eliminating small schools will do so. Dr. Lieberman con­
cluded that it did not make sense that a district such as 
Altheimer would maintain “two high schools, which even 
combined, were less than the number needed to operate a 
high school efficiently from an educational standpoint” 
(R. 48). In reaching his conclusions, Dr. Lieberman said 
that he had considered situations in which the construc­
tion of separate facilities might be justified, such as the 
children in the school district being so far apart that it 
is not feasible to transport them to a central school, but 
that none of these were applicable to the Altheimer case 
(R. 50-51).

An additional element of the inefficiency which arises 
from the operation of a dual school structure is the con­
tinuing problem of maintaining equality of educational 
opportunities between the two school systems. There are 
many continuing difficult specific decisions to make, such 
as how many books or how many teachers or what facili-

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11

ties, etc., should be placed in one school or the other (R. 
55-56).

C. P erpetuation o f Racial Segregation

Dr. Lieberman concluded that there was no educational ^  
or financial justification for the perpetuation of a com- f i  
pletely dual set of schools in the Altheimer school system 
by the replacement construction. The operation of such a 
dual system makes a sound educational program of “such 
esorbitant cost that the school system is never going to 
pay it and can’t pay it” (R. 49-50). He also said: “I 
regard this as a major dis-service to the white students 
as well as to the Negro students” (R. 48).

Dr. Lieberman pointed out that by building two school 
complexes both of which run from grades one through 
twelve the school board has perpetuated an element which 
will divide the district for the indefinite future (R. 55).

He concluded that “race is a factor because there’s a 
complete absence of any other educational or financial or 
professional justification for doing it” (R. 57). He em­
phasized that this was not simply a matter of differences 
between himself and the Altheimer School Board over ed­
ucational practices, biff rather a complete absence of any 
justification for the dual construction according to any 
educational theory or practice based on his professional 
knowledge (R. 57-581.

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12

III.

T he Testim ony o f Jam es D. W alker, S uperin tenden t 
o f Schools.

A. T he Past and Present Operation o f the 
A ltheim er School System

F ^

In the course of his testimony, the superintendent in­
dicated that for the year ending 1965 the per pupil cost 
in the white Altheimer High School was approximately 
$390.00, while in the Negro Martin High School it was 
$192.00; and in the white Altheimer Elementary School 
the per pupil cost was approximately $265.00, while in 
the Negro Martin Elementary School it was approximately 
$165.00 (R. 201-202). Some of this disparity was due to 
the capital inefficiencies arising from the fact that the 
white schools are substantially smaller than the Negro 
schools (R. 219). The disparity in per pupil cost also 
reflects in part the past tradition of the school system of 
paying Negro teachers in the Negro schools somewhat less 
for equivalent work than white teachers in the white schools 
(R. 131-132,137). For instance, a number of Negro teachers 
ranging in experience up to several years were compen­
sated at the rate of four thousand dollars annually, while 
the minimum, rate for a white teacher of no experience 
was four thousand three hundred dollars (R. 131-132).

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The white Altheimer School complex is accredited by 
the North Central Association (N.C.A.), which is the 
highest rating of schools in its section of the nation, while 
the Negro Martin School complex is not so accredited. 
The Martin School has an A rating from the State of 
Arkansas, which is considered not as desirable as ac­
creditation by the North Central Association (R. 129-130). 
Nevertheless, the Negro Martin High School is on the



13

whole newer and more modern in facilities than the white 
Altheimer High School (R. 111). When questioned as to 
why then the North Central Association has denied N.C.A. 
rating to the Martin School while it has granted same to 
the Altheimer School, the Superintendent stated that it 
took a great amount of work over several years in sub­
mitting applications and having inspections, etc., in order 
to secure N.C.A. accreditation and that this simply had 
not been done for the Martin School complex (R. 141-142).
The Superintendent indicated however, that there was a 
substantial basis for the discrepancy in ratings of the two 
school complexes over-all when elementary as well as high ^ ̂  m1' j) ifuj 
school facilities are taken into account. He stated that he £ §->p 
hoped to achieve the objective of substantially equal facili­
ties as soon as possible (R. 218).

< ^ hf e e -

Of

The Altheimer School District has recently received a 
substantial amount of Federal funds under the Public 
Law 89-10 program of aid to culturally deprived students. 
In order to secure its grant-in-aid, the district certified 
that it had approximately eight hundred (800) students 
in the culturally deprived category, of whom approxi­
mately seven hundred (700) were Negroes and only one 
hundred (100) were white (R. 145-147). In spite of the 
fact that one of the deficiencies of the Negro Martin 
School in North Central Association rating is the library, 
the school district is undertaking to build a new library at 
the Altheimer School, which serves almost exclusively 
white students (R. 147-152). Refurbishment of the library 
at the Negro Martin School is scheduled for the fiscal 
year following the building of the new library at the white 
Altheimer School (R. 191). The school district has also 
hired some additional staff with the new Public Law 89-10 
funds, and continued the practice of assigning Negro staff 
members so hired to the Negro school and white staff mem­
bers to the predominantly white school (R. 122-123).

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14

B. T he Prospective Operation o f the  Plan 
o f Desegregation

When questioned as to how the Altheimer Board pro­
posed to eliminate the dual school system as they had 
agreed to do by accepting Federal funds under Title VI, 
the Superintendent said that the plan was to use “freedom 
of choice” in all grades (R. 162). However, he conceded 
that the Board was relying primarily on the Negro pupils 
to desegregate the system for them, and indicated that 
the Board had not given any thought to the problem of 
how to change the system into an integrated one if Negro 
pupils for any reason did not exercise choices which 
achieved that result (R. 163). The Superintendent did not 
expect a substantial amount of desegregation to take place: 
he said “I would predict there will be several Negro chil­
dren who will elect to go to the formerly all white school” 
(emphasis supplied) when asked whether he anticipated 
any substantial increase in the number of Negro pupils 
choosing to go to the traditionally white school (R. 174). 
He admitted that there was no reason, based on his experi­
ence, and conversations with other school superintendents,

. to assume that any white students would choose to go to 
-tile traditionally Negro school under the freedom of choice 
plan (R. 182).

The Superintendent admitted that the construction plans 
for elementary replacement facilities at the two school 
complexes which were in issue in the case were rooted in 
the traditional operation of the school system: Although 
the supporting facilities such as a cafeterias, gymnasiums, 
and auditoriums at both sites are equivalent and would 
support equal-sized facilities, he said that the reason for 
building a sixteen-classroom facility at the Negro Martin 
site and a six-classroom one at the white Altheimer site 
was “traditionally there have been more students in Martin

A . C oyr-,0 o r x

- - c_i'/ /  A ^ v £ v ’S'1’ A



Elementary School than have been in the other school” 
(R. 181-182). (There are 541 Negro elementary students at 
the Martin site, and 198 white plus 2 Negro elementary 
students at the Altheimer site (R. 28-29).) When asked if 
all the pupils in the school district were white, would the 
construction plans have been any different, the Superin­
tendent replied “All the pupils are not white” (R. 181). 
When asked how the plan of building a smaller school at 
the traditionally white Altheimer site would facilitate the 
movement of Negroes from the larger Martin School into 
an integrated situation, assuming that whites will not 
choose to go to the traditionally Negro Martin School, 
the Superintendent stated simply: “I think the new guide­
lines will do the facilitating that needs to be done” (R. 182). 
He denied deliberately trying to create overcrowding at 
the Altheimer site. However, he was unable to explain how 
with approximately two hundred white elementary pupils 
in the district and a replacement facility being constructed 
of just about that capacity (assuming that whites will not 
choose to go to the traditionally Negro school), there could 
be any substantial desegregation without overcrowding (R. 
183).

In discussing the relation of teacher desegregation to 
the operation of a “freedom of choice” plan, the Superin­
tendent admitted that if substantially all the teachers in 
a particular school are of one race, the community tends 
to identify that school as intended for that particular race 
(R. 176-177), that past assignments in the system had been 
on a racially segregated basis, and that reassignment to 
the same position therefore perpetuates that segregation 
(R. 170). Nevertheless, he stated that the teacher deseg­
regation plan for 1966-1967 called only for the assignment

fkcu \j)£s
J f i ' U

f t C A M t f h



16

of one more white teacher to teach vocational agriculture 
in the Negro school (E. 168). He said that as the super­
intendent of schools, he has the authority to reassign 
teachers, but even though the predominantly white school 
would remain identified as a white school unless he as­
signed some Negro teachers there, he was not going to 
“reassign teachers just to be reassigning them” (E. 175).



17

Statement o f Points to be Argued

I.
A School Board Has An Affirmative Duty to 

establish Segregation.

A. A School Board Has A n  Affirm ative D uty to 
Com pletely Re-organize a Segregated Dual 
School System  into a Unitary Integrated School 
System--

Dis-

§ftf] £

Brown v. Board of Education of Topeka, 347 U.S.
483 (1954); 349 U.S. 294 (1955);

Cooper v. Aaron, 358 U.S. 1 (1958);
Rogers v. Paul, 382 U.S. 198 (1965);
Dove v. Parham, 282 F.2d 256 (8th Cir., 1960); 
Kemp v. Beasley, 352 F.2d 14 (8th Cir., 1965); 
Singleton v. Jackson Municipal Separate School 

District, 355 F.2d 865 (5th Cir., 1966).

B. A  School Board is Responsible fo r  the C ontinued  
Coercive Effects o f the Tradition o f  Segregation  
W hich Its Previous Actions Established, and May 
Not A dopt Procedures W hich Perpetuate a Segre­
gated Public School System  or W hich Counteract 
the Desegregation Process

Goss v. Board of Education of the City of Knox­
ville, 373 U.S. 683 (1963);

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

Dove v. Parham, supra;
Smith v. Board of Education of Morrilton School 

District, No. 18.243 (8th Cir., 1966).

l ire-



18

II.

The “Freedom of Choice” Plan Approved By the 
District Court is Fundamentally Inadequate to D ises­
tablish Segregation.

A. T he District Court Erred in  H olding that “Freedom  
o f Choice” Plans are Valid Regardless o f the  
Circumstances in  W hich T hey Operate and Regard­
less o f W hether T hey Disestablish Segregation

Kemp v. Beasley, supra;
Brown v. Board of Education, supra;
Cooper v. Aaron, supra;
Rogers v. Paul, supra;
Goss v. Board of Education, supra;
Griffin v. School Board, supra;
Dove v. Parham, supra;
Smith v. Morrilton School District, supra.

B. The District Court Erred in  Ignoring Over­
w helm ing Evidence that the R eplacem ent Construe- j 
tion  W ould Perpetuate Segregation, and that the 
“Freedom  o f Choice” Plan Had No Reasonable 
Probability o f Disestablishing Segregation in  the  
System  .......   ____ __— -----____

Bradley v. School Board of the City of Richmond,
382 U.S. 103 (1965);

Kier v. County School Board of August Co., Va.,
249 F. Supp. 239 (W.D. Va., 1966);

Smith v. Morrilton School District, supra;
Dove v. Parham, supra;
Kemp v. Beasley, supra.



19

III.

The D istric t C ourt M isconstrued th e  Pow er and  
D uties o f a Federal C ourt o f E quity  in  Supervising D e­
segregation and G ranting  R elief to A ccom plish T hat 
End.

Brown v. Board of Education, supra;
Bowles v. Skaggs, 151 F.2d 817 (6th Cir. 1946);
Leo Feist, Inc. v. Young, 138 F.2d 972 (7th Cir. 

1944);
Schine Chain Theatres v. United States, 334 

U.S. 110, petition denied, 334 U.S. 809 (1948);
United States v. Bausch ds Lomb Optical Co., 

321 U.S. 707 (1943);
United States v. National Lead Co., 332 U.S. 

319 (1947);
United States v. Standard Oil Co., 221 U.S. 1 

(1910);
Griffin v. School Board, supra;
Board of Public Instruction of Duval Co., Fla. 

v. Braxton, 326 F.2d 616 (5th Cir., 1964);
Wheeler v. Durham City Board of Education, 

346 F.2d 768 (4th Cir., 1965);
Carr v. Montgomery County Board of Educa­

tion, 253 F. Supp. 306 (M.D. Ala., 1966);
Dowell v. School Board of Oklahoma City, 244 

F. Supp 91 (W.D. Okla., 1965);
Smith v. Morrilton School District, supra;
Northcross v. Board of Education of the City 

of Memphis, 333 F.2d 661 (6th Cir., 1964);
Dove v. Parham, supra;
Kemp v. Beasley, supra;



20

ARGUMENT

I .

A School Boai’d Has An Affirm ative D uty to  Dis­
estab lish  Segregation.

A. A School Board Has A n  A ffirm ative D uty to 
Com pletely Re-organise a Segregated Dual 
School System  Into  a Unitary Integrated School 
System

The Supreme Court stated the rationale for outlawing of 
segregation in public education in the original Brown de­
cision as follows:

Segregation of white and colored children in public 
schools has a detrimental effect upon the colored chil­
dren. The impact is greater when it has the sanction 
of law; for the policy of separating the races is usually 
interpreted as denoting the inferiority of the negro 
group. 347 U.S. at 494.

# * *

To separate them from others of similar age and 
qualifications solely because of their race generates a 
feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way unlikely ever to be undone. 347 U.S. at 494.

Thus the conclusion that the equality of all tangible factors 
in the dual school systems is an illusory equality because 
of the social contexts in which the systems operate, and 
that segregated schools are “inherently unequal.” Brown 
v. Board of Education of Topeka, 347 U.S. 483 (1954).



21

There are several important premises in Brown which 
are crucial to the working out of later problems arising in 
implementing the decision. The Court recognized the vastly 
differing positions of whites and Negroes generally in the 
social and political structures of communities in which 
segregation was practiced, for otherwise the conclusion (d7 
that “equal” school systems were inherently unequal would ' gf> p''<’ 
not have made sense. By stating that the policy of segrega- crS ^ /y y.
tion denoted inferiority, the Court recognized that the in­
stitutions of power in these communities were exclusively 
controlled by whites, who generally believed that Negroes 
wTere inferior and who acted on the basis of that belief in 
their conduct of public policy. By this analysis, the Court 
also recognized that the tradition and practice of segrega­
tion was coercive to the Negro group: if Negroes and 
whites had Teen regarded as being equally powerful, the 
system of segregation might otherwise have been assumed 
to be voluntary on the part of all concerned. Finally, the 
Court recognized that the system of segregation had very 
deep effects on all of the individuals involved and there­
fore constituted a very durable tradition. It noted ex­
plicitly that segregation had the effect of causing many 
Negroes to believe that they were in fact inferior and that 
the system of segregation was proper, and that these 
beliefs would last for a lifetime. But the converse was 
also implicit, that many whites in the segregated system 
must have come to believe that they were superior to 
Negroes as a class and, therefore, that segregation was 
proper, and that these beliefs were deeply held and were 
acted upon by such persons in positions of power.

The original Brown decision presupposed a major re­
organization of the educational systems of the affected com-



22

munities, the extent of which is suggested by the fact 
that the Court took an additional year to consider the 
problem of relief. In the second Brown decision, 349 TJ.S. 
294 (1955), the Court pointed out that “to effectuate this 
interest may call for elimination of a variety of obstacles 
in making the transition to school systems operated in 
accordance with the constitutional principles set forth in 
our May 17, 1954 decision.” 349 U.S. at 300.

The Court indicated the nature of the obstacles to be 
overcome in the second Brown decision by its direction 
to the courts supervising the re-organization of the school 
systems to “consider problems related to administration, 
arising from the physical condition of the school plant, 
the school transportation system, personnel, revision of 
school districts and attendance areas into compact units 
to achieve a system of determining admission to the public 
schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the 
foregoing problems.” 349 U.S. at 300-301. This direction, 
combined with the injunction that desegregation was to 
be achieved “with all deliberate speed,” revealing an 
expectation that completion of the process would take 
some time, provides as clear an indication as possible 
that a thorough and complete re-organization of the segre­
gated school systems was envisioned. That the expecta­
tion of time being required to carry out the decision was 
related to the extensiveness of the re-organization of the 
school systems envisioned, rather than to the hostility to 
the changes which might be anticipated, was indicated 
by the Court’s statement that “it should go without saying 
that the vitality of these constitutional principles cannot



23

be allowed to yield simply because of disagreement with 
them.” 1 349 U.S. at 300.

Recently, in Rogers v. Paul, 382 U.8 . 198 (1965), the 
Supreme Court re-affirmed the completeness of the re­
organization of the segregated school systems suggested 
by the enumeration of factors in the second Brown deci­
sion, by holding that students in a segregated system 
had clear standing to challenge the racial allocation of 
faculty personnel. The Court also clearly indicated that 
the provision of transfers for Negro students who so 
desired to schools with more extensive curricula from 
which they had been excluded, was something substan­
tially less than it envisioned as an adequate general plan 
of desegregation, since it ordered the provision of such 
transfers “pending” desegregation according to a general 
plan.

This Court has construed Broivn as imposing an affirma­
tive obligation on school boards in previously segregated 
systems to disestablish segregation and provide integrated 
school systems. In Dove v. Parham, 282 F.2d 256 (8th 
Cir., 1960), it said:

Placement standards and educational doctrines are 
entitled to their proper play, but that play, as we

1 The Supreme Court subsequently made a clear statement in Cooper V. 
Aaron, 358 U.S. 1 (1958), that the Brown decisions imposed an affirma­
tive obligation on school officials of segregated dual school systems to dis­
establish segregation:

State authorities were thus duty bound to devote every effort toward 
initiating desegregation and bringing about the elimination of racial 
discrimination in the public school system. 358 U.S. at 7.

Although Cooper itself was a case of clear and direct defiance by state 
officials, the Court looked forward to a time when attempts to perpetuate 
segregation in public education might become more subtle, when it said 
that the constitutional rights involved “can neither be nullified openly 
and directly by state legislators or state executive or judicial officers, nor 
nullified indirectly by them through evasive schemes for segregation 
whether attempted ‘ingeniously or ingenuously.’ ” 358 U.S. at 17.



24

have emphasized, is subordinate to the duty to move 
forward, by whatever means necessary, to correct the 
existing constitutional violation with “all deliberate 
speed.” 282 F.2d at 261.

In Kemp v. Beasley, 352 F.2d 14 (8th Cir., 1965), this 
Court rejected the well-known Briggs v. Elliott dictum 
(construing’ the school desegregation decisions restric- 
tively) that the Constitution does not require “integra­
tion” but merely forbids “discrimination” :2

The dictum in Briggs has not been followed or adopted 
by this Circuit and it is logically inconsistent with 
Brown and subsequent decisional law on this subject. 
352 F,2d at 21.

B. A School Board is Responsible fo r  the C ontinued  
Coercive Effects o f  the Tradition o f Segregation  
W hich Its Previous Actions Established, and May 
Not A dopt Procedures W hich Perpetuate a Segre­
gated Public School System  or W hich Counteract 
the  Desegregation Process

The Supreme Court has recognized the continued coer­
cive potency of the tradition of segregation in the com­
munities in which it had existed as a compulsory legal 
requirement, in several cases which prohibit school offi­
cials from establishing procedures which permit private

2 The Fifth Circuit, in its most recent general decision on school desegre­
gation, Singleton v. Jackson Municipal Separate School District, 355 F.2d 
865 (5th Cir., 1966), agrees:

The Constitution forbids unconstitutional state action in the form of 
segregated facilities, including segregated public schools. School au­
thorities, therefore, are under the constitutional compulsion of furnish­
ing a single, integrated school system. . . .

This has been the law since Brown v. Board of Education . . . 
Misunderstanding of this principle is perhaps due to the popularity 
of an over-simplified dictum that the constitution “does not require 
integration.” 355 F.2d at 869



25

individuals to perpetuate the segregated school system. 
Goss v. Board of Education of the City of Knoxville, 373 
U.S. 683 (1963).3 In Griffin v. School Board of Prince 
Edward County, Va., 377 U.S. 218 (1964), the Court found 
the closing down of the public schools to permit private 
individuals to continue a segregated school system to be 
inconsistent with a school board’s affirmative duty to over­
come the effects of the tradition of segregation.

This Court has affirmed the extensiveness of the respon­
sibility of school officials for the coercive effects of the 
tradition of segregation which their previous actions helped 
establish, in a series of cases in which policies on their 
face non-discriminatory were nevertheless invalidated be­
cause of a context of a community tradition of segrega­
tion in which they were held to operate to perpetuate 
that tradition. In Dove v. Parham, supra, this Court pro­
scribed the application of what would otherwise have 
been regarded as an educationally valid system of place­
ment standards by a school system in a plan of desegre­
gation, which resulted in the school system remaining as 
effectively segregated as before.4 In Smith v. Board of

3 In (?oss, the Court struck down a “minority to majority” transfer 
plan, under which students initially assigned by a unitary geographic zone 
plan, were permitted to transfer out of their assigned school if their race 
was in the minority at that school back to their former segregated school, 
on the ground that their race would there be in the majority. The Court 
noted that “it is readily apparent that the transfer system proposed lends 
itself to perpetuation of segregation” since “the effect of the racial trans­
fer plan was (to permit a child (or his parents) to choose segregation 
outside of his zone but not to choose integration outside of his zone.’ ” 
373 U.S. at 686-687.

4 This Court said:
If  placement standards, educational theories, or other criteria used 
have the effect in application of preserving a created status of con­
stitutional violation, then they fail to constitute a sufficient remedy 
for dealing with the constitutional wrong.

Whatever may be the right of these things to dominate student 
location in a school system where the general status of constitutional 
violation does not exist, . . .  in the remedying of the constitutional



26

Education of Morrilton School District, No. 18,243 (8th 
Cir., 1966) this Court explicitly reaffirmed the basic prin­
ciple of the Dove case and applied a comprehensive view 
of causation, where the adoption of a plan of desegrega­
tion had resulted in the closing of a Negro school and 
the board had dismissed the entire all-Negro faculty.* 6 It 
held that the dismissals were a consequence of segregation 
and were therefore racially motivated.

II.
T he “ F reedom  o f Choice”  P lan  A pproved By the  

D istric t C ourt is Fundam entally  Inadequate  to  D ises­
tab lish  Segregation.

A. The District Court Erred in  H olding that “Freedom  
o f Choice” Plans are Valid Regardless o f the  
Circumstances in  W hich They Operate and Regard­
less o f W h e th er  They Disestablish Segregation

This Court accepted the validity of the concept of “free­
dom of choice” plans of desegregation in Kemp v. Beasley,

wrong-, all this has a right to serve only in subordinancy or adjunc- 
tiveness to the task of getting rid of the imposed segregation situation. 
282 F.2d at 259.

6 This Court said:
We recognize the force of the Board’s position that the discharge 

of the Sullivan staff upon the school’s closing was only consistent with 
the action taken by the Board in connection with eleven other school 
consolidations, and consequent closings, in the past. . . .

But on this record these dismissals do not stand alone. This Board 
maintained a segregated school system . . . The employment and as­
signment of teachers during this period were based on race. . . . 
The use of the freedom-of-choice plan, associated with the fact of a 
new high school plant, produced a result which the superintendent 
must have anticipated . . . All this reveals that the Sullivan teachers 
did indeed owe their dismissals in a very real sense to improper racial 
considerations. No. 18,243 at pp. 13-14.

*  *  *

Under circumstances such as these, the application of the policy (al­
though that policy is nondiscriminatory on its face and is based upon 
otherwise rational considerations) becomes impermissible. No. 18,243 
at p. 16.



supra, but at the same time recognized that such plans could 
be inconsistent with decisions of the Supreme Court and 
this Court as outlined above. The “freedom” in a “freedom 
of choice” plan may be just as illusory for Negroes as was 
the “equality” in the “separate but equal” doctrine struck 
down by the Supreme Court in the original Brown decision. 
To hold otherwise is to dispute the fundamental premise of 
Brown that segregation had very deep and long term effects 
on both whites and Negroes who grew up in the system, and 
that the tradition of segregation was coercive to Negroes. 
We need only recall that it is individuals who were brought 
up in that system who are now required to exercise the 
choices as parents in a “freedom of choice” plan to change 
the system—and Negroes who were brought up to believe 
that they were not supposed to step out of “their place” 
and put themselves in positions of equality with whites, and 
whites who were brought up to believe that it was improper 
for Negroes to be in any situation of equality with them, just 
might not exercise choices in such a way as to bring about 
desegregation.

We submit that a “freedom of choice” plan may be in­
consistent with the affirmative duty of a school board to 
completely re-organize the school system from a dual segre­
gated system into the unitary integrated system which 
would have existed but for the establishment of the practice 
of segregation, Brown v. Board of Education, supra, Cooper 
v. Aaron, supra, Rogers v. Paul, supra, Dove v. Parham, 
supra, Kemp v. Beasley, supra. A “freedom of choice” plan 
may be inconsistent with the prohibition on school boards 
from establishing procedures which permit private indi­
viduals to perpetuate a substantially segregated school 
system whether by direct physical or_economic coercion or 
by~suff£Ie'"indirect hostility which may nevertheles be effec­
tive in so doing, Cross v. BoarJ of Education, supra, Griffin



28

v. School Board, supra. A “freedom of choice” plan may be 
inconsistent with the principle that policies which may be 
valid outside the context of a community tradition of segre­
gation may nevertheless be invalid within that context if 
their effect is to perpetuate segregation, and that school 
boards are responsible for the coercive effects of the tradi­
tion of segregation which they established, such as par­
ticular schools continuing to be identified as “Negro” schools 
or “white” schools in the minds of the community, Dove v. 
Parham, supra, Smith v. Morrilton School District, supra. 
Most important, a “freedom of choice” plan may be incon­
sistent with Brown because it does not or cannot actually 
work to desegregate the system.

The district court in its decision determined that “the 
basic complaint of plaintiffs goes not so much to the con­
struction and location of the new buildings but rather to 
the whole concept of freedom of choice as a means of 
bringing segregation to an end” (R. 232). The court said 
that it understood that plaintiffs’ argument that freedom 
of choice could not bring unlawful segregation to an end 
was based on two premises: “(1) That white students will 
not request assignments to Negro schools. (2) That the 
general run of Negro students wfill not apply for assign­
ments to formerly all white schools because of fear of vio­
lence or economic reprisals” (R. 235-236). The court agreed 
with the first premise, but said that the second premise 
“may or may not have some basis in fact, and may or may 
not have some validity from a purely sociological stand­
point. The Court does not think it necessarily valid from 
a legal and constitutional viewpoint” (R. 236). The court 
then held:
,, " '''MFifee-^doors of the formerly all white schools are 

freely opened to Negro students so that they can go 
there when and if they choose, and if they are per­



mitted to go back to their original schools if dissatisfied 
with the transferee schools, it would seem to the Court 
that the Constitutional requirement of the 14th Amend­
ment has been met. Cf. Briggs v. Elliot, supra. If a 
person is given freedom of action, the Court does not 
know that he is being subjected to discrimination in 
the Constitutional sense merely because he may be 
afraid or reluctant to exercise his right of choice 
(R. 236-237).

The court also adopted the Briggs v. Elliott view that it 
is going further than the Constitution requires to order 
the elimination of dual school facilities (R. 234). [The 
court also stated that it knew that in some other Arkansas 
districts substantial numbers of Negro students had re­
quested assignments to formerly all white schools (R. 237).]

We submit that this view that “freedom of choice” 
plans are inherently valid regardless of the circumstances 
in which they operate and regardless of whether they dis­
establish segregation of the school system is fundamentally 
inconsistent with the limited approval given by this Circuit 
to the “freedom of choice” concept in Kemp v. Beasley, 
supra, in which the Briggs v. Elliott view was explicitly 
rejected. It is, moreover, fundamentally inconsistent with 
the general Supreme Court and Eighth Circuit jurispru­
dence on school desegregation outlined above. It is also 
obvious error to hold, as did the district court (R. 237), 
that because “freedom of choice” plans may have produced 
some desegregation in some districts other than the one 
involved in this case, such a plan is therefore necessarily 
it(*ceuialilc-ni--tlns..dis.li.'.i{;j, w1 iqt.j.1 b e d shows, inter alia, 
that virtually no desegregation has taken place] (R. 28-29, 

'...  ..  , ... .., _̂»—***"*



B. T he District Court Erred in  Ignoring Over­
w helm ing Evidence that the R eplacem ent Construc­
tion W ould Perpetuate Segregation, and that the  
“Freedom  o f Choice” Plan Had No Reasonable 
Probability o f Disestablishing Segregation in  the 
System

The district court erred fundamentally, in ignoring the 
relevance of the new replacement construction of the 
nearby dual school plants to the issue of the “freedom” 
in the “freedom of choice” plan. The nature of the con- 
structi<m—that new dual elementary schools were built 
practically next door to each other on the traditional segre- 
gated sites, that their capacities were of almost exactly the 
respective numbers of whites who traditionally attended 
the white site and of Negroes who traditionally attended 
the Negro site, and that there was no rational educational 
purpose apparent behind such dual construction (E. 28-29, 
228-229)—was not susceptible to any other interpretation
by the community 'than..'fEat the school board would con- ,
UHUtJ LU iMihlam a dual segregated school system, with v
one school'.thfendeiMbT^wffifes” and the other school in­
tended for Negroes. This was just as unambiguous an act 
as re-writing the word “white” over the door of the 
Altheimer School and the word “Negro” over the door of 
the Martin School—and is just as coercive to the Negroes 
who have traditionally been informed by the segregated 
system that they were not wrnnted in “white” institutions, 
and to whites who have been informed that it was not 
proper for them to be in “Negro” institutions. The school 
board is clearly responsible for the community tradition of 
segregated schools which it established which causes the 
replacement construction as planned to be regarded as the 
perpetuation of segregated schools. Smith v. Morrilton 
School District, supra. The replacement construction here 
has precisely the same effect on the “freedom” in a “free­
dom of choice” plan as does the maintenance of all-white



31

and all-Negro faculties at various schools in a system. Cf. 
Bradley v. School Board of the City of Richmond, 382 U.S. 
103 (1965); Kier v. County School Board of Augusta Co,, 
Va,, 249 F. Supp. 239 (W.D. Va., 1966) at 246. The differ­
ence is that the coercive effect of the permanent construc­
tion is not solvable within the framework of a “freedom of 
choice” plan as is the faculty problem by compulsorily in­
tegrating the faculty.

The court also erred in its finding that the replacement 
construction plan was not contaminated by a desire or ef­
fect to perpetuate segregation (R. 246) under the stan­
dards set forth by this Court in Smith v. Morrilton School 
District, supra. The undisputed testimony by the Superin­
tendent, James D. Walker, the Principal of the Martin 
School, Fred Martin, and plaintiffs’ educational expert, 
Dr. Myron Lieberman, established that planning for the re­
placement construction was done at a time when the school ' 
system was completely segregated and had no plans to alter 
the practice (R. 53-54, 109-111, 181-182). The Superin­
tendent admitted that the plans were directly based on 
the “traditions” of the community and directly related to 
the number of students who had attended each school under 
segregated operation, and that the planning was affected 
by the fact that some students were white and some were 
Negro (R. 181-182). Dr. Lieberman testified that there 
were no educational policy reasons which were ascer­
tainable for the extraordinary plan of building two very 
small school plants so close together, that having two such 
small units rather than one larger one was positively in­
jurious to all the students, and that the only possible rea­
son for this strange plan was to perpetuate a dual segre­
gated school system (R. 48-50, 55-58). The district court 
said it “is not concerned here with whether it is wise or 
economical for the District to maintain the two sites or to



32

construct elementary classroom buildings on both sites” 
(R. 246), but the court ignored the fact that actions may 
be so unwise and so uneconomical according to any rational 
standard as to indicate that there is some other factor be­
sides mere ignorance or incompetence at work in the situa­
tion. See Smith v. Morrilton, supra. We believe the record 
demonstrates that the court also erred in finding the good 
faith intent of the school board to achieve desegregation 
under a “freedom of choice” plan, which is critical to the 
adequacy of such a plan (R. 246).

The court also erred in ignoring the fact that there is no 
reasonable probability that the plan will produce substantial 
desegregation as required under Dove v. Parham and Kemp 
v. Beasley, supra. The Superintendent testified that he 
expected only a few Negro pupils to elect to go to the for­
merly all-white school, that he expected no white pupils to 
elect to go to the still all-Negro school, and that he and 
the school board had given no thought to how to achieve 
desegregation of the system if the “freedom of choice” 
plan did not work (R. 163, 174, 182). More importantly, he 
was unable to explain how substantial desegregation could 
possibly take place within the confines of the school system 
as newly constructed even if large numbers of Negroes did 
undertake the burden of desegregation, for if the white 
pupils continued to elect to go to the predominantly white 
school this would exhaust almost the entire capacity of 
that school (R. 182-183). His statement that “the new 
guidelines will do the facilitating that needs to be done” 
suggests a mere pro forma reliance upon H.E.W. ap­
proval of the “freedom of choice” plan in the abstract rather 
than an actual intention to achieve substantial desegrega­
tion. It additionally overlooks the problem that in a school 
system with only two school sites which are for all prac­
tical purposes right next to each other, and in which most



33

of the students live at some distance from either site, the 
H.E.W. requirement that overcrowding be solved by assign­
ment to the school closest to the pupil’s home is perfectly 
compatible .witllrfhe, continued assignment of all whites to 
thê . white, site .and substantially all Negroes to the Negro 
site. Under Kemp v. Beasley, supra, the availability of suf­
ficient facilities to allow substantial desegregation by'the 
exercise of choices, and of a workable and factually non- 
racial system of assignment in the absence of exercise of 
choices by pupils or in the case of overcrowding, are critical 
factors in the adequacy of a “freedom of choice” plan of 
desegregation. As the matter now stands there is no space 
for Negro pupils to attend the “white” complex if they wish 
to do so. The boards’ reconstruction plan has insured that 
unless this Court acts, significant desegregation will be 
literally impossible for generations.

III.

T he D istric t C ourt M isconstrued th e  Pow er and 
D uties o f a F ederal C ourt o f E quity  in  Supervising D e­
segregation and  G ranting  R elief to A ccom plish T hat 
End.

Overwhelming evidence showed that the present plan of 
desegregation of the Altheimer School District is the one 
least calculated to produce any desegregation at all. Be­
cause of the very simple configuration of this small dis­
trict, it is rather apparent that the district has a clear-cut 
choice between a system composed of one reasonably-sized 
integrated elementary school and one reasonably-sized inte­
grated high school, or a system composed of two inefficiently- 
small segregated combination elementary and high schools. 
The perpetuation of segregation as well as the educa­
tional inefficiency and undesirability of the dual schools



34

(R. 44-56, 63-65) provides a clearly reasonable basis for 
an order consolidating the schools, and providing thaLone 
site, shall be used for an elementary school and the other 
site for a secondary school. While it might have" beeii 
somewhat easier to carry out such an order if appellants 

: ; original request for an injunction against the replace­
ment construction had been granted, nevertheless the new 
buildings as constructed are adaptable to changed usages 
(R. 196) and there is substantial additional land available 
at both sites (R. 198). Whatever additional cost might be 
involved in alteration can be balanced against the continued 
extra operating cost of the inefficient dual system. Fur­
thermore, the school board should not be allowed to defeat 
Constitutional rights of another generation of Negro chil­
dren on the basis that it might cost something additional 
to vindicate those rights after it had previously sought 
to defeat them.

In the course of its opinion, the district court said: “It 
must be remembered that when two school sites rather than 
one were established, the maintenance of dual school sys­
tems was generally if not universally considered to be 
constitutional, and there is nothing in the Constitution 
which says that the District must now abandon one of its 
sites” (R. 245). We submit that this statement by its 
absolute form indicates a too narrow view of the power 
and duties of a federal court of equity in supervising the 
desegregation process and granting the relief required by 
the Constitution. It is to be recalled that the enumeration 
of administrative problems of re-organizing dual school 
systems into unitary ones which the district courts were 
directed to consider in the second Broivn decision specifi­
cally included physical facilities and attendance areas. 
This direction was intended to recognize not only that the 
configuration of physical facilities in a school system might



prevent complete desegregation in the short run, but also 
that substantial alteration of the configuration of physical 
facilities might be necessary to achieve eventual complete 
desegregation in the long run. It hardly needs to be added 
that twelve years after the original Brown decision is the 
“long run” and not the “short run”—it is exactly one whole 
generation of public school students later. In this regard, 
the district court’s approval of the “freedom of choice” 
plan on the ground that it is an acceptable “transitional” 
device even though “unconstitutional discrimination exists” 
(R, 235) completely misses the point that the time at which 
replacement construction is due clearly marks the end of 
the “transitional period.” The Supreme Court explicitly 
held that cognizable “transitional” problems referred to 
administrative problems such as building capacity, and not 
to minimizing the rate of desegregation simply because of 
community hostility. Brown v. Board of Education, supra.

The Supreme Court, in the second Brown decision, di­
rected that “in fashioning and effectuating the decrees, the 
courts will be guided by equitable principles.” 349 U.S. at 
300. The general equity principle is that equity suffers no 
right to be without a remedy or, alternatively, that in 
equity jurisprudence there is no wrong without a remedy. 
Leo Feist, Inc. v. Young, 138 F.2d 972 (7th Cir., 1944). 
Because of this inherent general power and duty of a court 
of equity to remedy a wrong, equity courts have broad pow­
er to mold their remedies and adapt relief to the circum­
stances and needs of particular cases. Bowles v. Skaggs, 
151 F.2d 817 (6th Cir., 1946). The inherent power and duty 
of federal courts of equity to effectively remedy wrongs is 
graphically demonstrated by the construction according to 
classical equity jurisprudence given by those courts to 
their jurisdiction under 15 U.S.C. §4 to restrain violations 
of the Sherman Antitrust Act. The test of the propriety



36

of measures adopted by the court is whether the required 
remedial action reasonably tends to dissipate the effects 
of the condemned actions and to prevent their continuance. 
United States v. Bausch <£ Lomb Optical Co., 321 U.S. 707 
(1943); United States v. National Lead Co., 332 U.S. 319 
(1947). Where a corporation has acquired unlawful 
monopoly power which would continue to operate as long 
as the corporation retained its present form, effectuation 
of the Antitrust Act has been held even to require the com­
plete dissolution of the corporation. United States v. 
Standard Oil Co., 221 U.S. 1 (1910); Schine Chain Theatres 
v. United States, 334 U.S. 110 (1948).

Numerous decisions have indicated that the federal courts 
construe their power and duties in the supervision of Con­
stitutionally required school desegregation to require as 
effective relief as in the antitrust area. While the initial 
discretion in proposing a plan of desegregation remains 
with the school board which administers the system, a fed­
eral court of equity obligated to provide effective relief 
for a Constitutional wrong cannot fail to order such relief 
simply because the school board is unwilling to propose 
any plan which will effectively desegregate the system. 
The courts were directed in the second Brown decision to 
consider the “adequacy” of all components of a proposed 
desegregation plan, the implication of which is that if a 
plan proposed by a school board is completely inadequate, 
the court must itself determine and order an adequate plan. 
In Griffin v. School Board of Prince Edward County, Va., 
supra, the Supreme Court ordered a public school system 
which had been closed to avoid desegregation to be re­
opened. In Carr v. Montgomery County (Ala.) Board of 
Education, 253 F. Supp. 306 (M.D. Ala., 1966), the court 
ordered twenty-one (21) small inadequate segregated 
schools to be closed over a two-year period and the stu-



37

dents reassigned to larger integrated schools. In Dowell 
v. School Board of Oklahoma City, 244 F. Supp. 971 (W.D. 
Okla., 1965), the court ordered the attendance areas of 
pairs of six-year junior-senior high schools in adjacent 
neighborhoods consolidated, with one school in each pair 
to become the junior high school and the other to 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, ap­
proving 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 (5th Cir., 1964) at 620. The Fourth Circuit has hehi 
that a school construction program might be so directed 
as to perpetuate segregation, and is therefore an appropri­
ate matter for court consideration in spite of the possible 
complexities involved. Wheeler v. Durham City Board of 
Education, 346 F. 2d 768 (4th Cir., 1965). (It is to be noted 
that such complexities are usually considerably less than 
those involved in an anti-trust suit against a substantial 
corporation.) And compare the manner in which this Court 
fashioned relief in Smith v. Morrilton School District, 
supra.

The district court very clearly indicated in its opinion 
that it now regarded the United States Department of 
Health, Education, and Welfare as having primary respon­
sibility for supervising school desegregation (E. 238-245). 
This is completely at odds with the general principle that 
the vindication of Constitutional rights cannot depend upon 
Executive action (or inaction) and with the specific hold­
ing of this Court in Kemp v. Beasley, supra. Furthermore, 
while H.E.W. Guidelines may be entitled to substantial 
weight as general propositions of school desegregation



38

law, and as minimum standards for court-ordered desegre­
gation plans because of problems which would otherwise 
result, H.E.W. administrative approval of a particular de­
segregation plan in a particular school district is entitled 
to much less weight because it cannot be assumed that the 
Department is able to ascertain all of the relevant facts 
about the context of an individual school district’s desegre­
gation plan in the way that a local court hearing is able 
to do. Kemp v. Beasley, supra. Finally, appellants com­
plained of a violation of their Constitutional rights; not 
such statutory rights as they may have under Title VI 
of the Civil Rights Act. The district court may not 
abdicate its responsibility to construe the actions of the 
board in terms of the Constitutional standards of the Four­
teenth Amendment.

In this regard, the district court fundamentally miscon­
strued the role of burden of proof in school desegregation 
cases (R. 246). The burden of proof is not on plaintiffs to 
demonstrate that a school system which has been undis- 
putedly segregated for generations is still segregated, but 
on the school board to demonstrate that its proposed plan 
will achieve desegregation of the system. Brown v. Board of 
Education, supra; Dove v. Parham, supra; Northcross v. 
Board of Education of the City of Memphis, 333 F.2d 661 
(6th Cir., 1964).

The district court recognized the reasonableness of the 
consolidation proposal when it said, “Certainly, Dr. Lieber- 
man’s proposed solution to the problem would be a consti­
tutionally permissible one, but it is not the only solution 
which the Constitution permits” (R. 246). We submit that 
on the facts of this case it is “the only solution which the 
Constitution permits.”



39

CONCLUSION

Appellants respectfully pray that this Court exercise its 
power as a court of equity to vindicate the Constitutional 
right to a desegregated school system, by entering an order 
of consolidation, or if it determines that further fact-finding 
is required, to reverse and remand to the district court 
with instructions to the school board to come forward and 
show why a consolidation order should not be entered and 
to propose an alternative zoning or other assignment plan 
which will actually achieve desegregation.

Respectfully submitted,

J ack Gbeenbebg
J ames M. N abbit, III
Michael Meltsneb

10 Columbus Circle 
New York, New York 10019

J ohn W. W alkee
1304-B Wright Avenue 
Little Rock, Arkansas

D electob Tillee
2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Appellants



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