Memorandum Opinion in Burleson v. Jefferson County Board of Election Commissioners

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| IN THE IRIITEDSSTATES DISTRICT COL 

FASTELN DISTRICT OF ARKANSAS Flog. 25 197; | 
PING BLUFF DIVISION | 

| . Wo oH. MOCLTLIA , CLERK | 

WILLIAM BURLESON, Father of Billy Wayue, SEE J eh | 

Jimmy, and John Burleson, et al. 
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COUNTY. T 0.0D 01 2 jr 1EC of T TON iN Ct SK 11S SS IL ONERS 

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OF JEFFERSON COUNTY, et al. ) 

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RRA ML BHUE , iJR.et al. 

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| : Intexvenors 

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Memorandum Opinion 

ds This cause, which has been txied to the Court, presents the   
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auestion of whether white inhabitants of a geogra nhically isolated 

I portion of an Arkansas public school district faced with an obliga- 
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-ion to integrate its schools may validly employ the Arkansas school 
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and election laws so as to secede Irom the parent distrigt and es- 

y autonomous digtuict of their own. The case seems £O-bE 
La 1 1c Fe [9] y 

oA Lion Q 2
 

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i cae of Fiyst impression.” 
  

While the suit is an independent action, it is an oulg: rowth 

} of the protracted ‘desegregation litigation involving the schools 

oF Dollarway School Di strict No. 2, Jefferson County, Arkansas. 

{ Cato v. Parham, EB Ark., PB fl 58, The portion of the Dis- Je
d 

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trict involved is kn own as the Ha rdin Area. The Area is located 

some miles west of he District proper along U. S. Highway 270 

which rung from Y..ae Bluff to Sheridan, Arkansas. The Area 1s 

} separated from the District proper by a portion of the Whitehall   L 
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School Discrict of Jefferson County. e 

The population of the Area is almost exclusively white. nl 

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the fall of 1969 270 students residing in Shes Area were in 

  
i Ihe Dol 1arvay case was eoemhced in 1959 under the style Dove Ve 

Parham, E.D. Ark., LR-3380. In 1967 the style of the case was C 

.. chanced to Cato v. Parham, and it was docketed in the Pine Bluff 

: . . gi . + 1 AE eT J) kN i A mi. - g - 1 

Division of the Eastern District Or Arkonshs. The litigfion nas 

produced a nunber of opinions by this Court and: by the Court of 

Appeals fox this Circuit. 
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Court enjoined the use of .the freedom of choi.ce method ofas signing 

        

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attendance in the schools of the District, and only five of those 

stedents we hep<ots 

Tn 1968 and 1669 this Court issued a number of decrees having 

for their purpose the < 93 minal Lon of rhe dual school system that 

the District.had. operated histor fealty and the establishment of a. 

unitary integrate d public-school system as required by ruling decl- 

gions of the Supreme Lourt of the Und zed States. Specifically, the 

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students to schools and disapproved cortain residential zoning 

plans submitted by the District's Board of Directors. Cato Ve Pare 

ham, E.D. Ark., 293 F.Supp. 1375, aff'd 5: Cie. 403 ¥, 2d 12; Cato 

vo Parhan; B.D. dk, 297 F.Supp. 403; Cato v. Parham, E.D. Ark., 

302 F.Supp. 129, appeal pending 

Aa of tha present time the ‘student bodies of the junior and 

senior high grades of the District's schools have been essentially 

raticn of the elementaiy erades is less com” 

plete; and full staff and facuity desesregalion has not. been 

achieved. 

bout 55 pe Srey of the students being Negroes. The 

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report also reflects that 1,737 students Were enrolled in the 

elementary grades Or in special education classes at the elementary 

Is grade level. i on al : 

According to the. report, 272 white students were enrolled in 

the formerly all Write elementary schools, and 194 Negroes were 
Ne S 

- enrolled in those schogls. The enrollment dn the Fores ly all 

Ye gro elanantesy school was nine white i A 762 Negro 

After. the Court had entered its latest decrees in the Dolla 

ay case in Mareh and July, respectively, oi last year resiaents 

oy f= - }- AI, 
of the Hard 

  

    
  

   



  

throughout the District calling for an election on the question of 

whether the Area should be permitted to withdraw from the D 

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proper and be constituted as an independent school district to be 

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known as the Hardin Distx ACh. 
VELL 
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The efforts of the Coon tt ce were successful, and the Jefferso 

County Election Commission called an election to be held on Septem- 
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ber 11, 1969. On September 8 white parents and students residing 

in both the Area and the District proper commenced this action 

against the Election Commission seeking to enjoin the holding of | 

0     i Area from the Dis shriek would frustrate the decrees of this Court 10   
| the Dollarway case and would deprive the minor visit) ffs of thelx 

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| alleged ight to attend racially integrated schools. 
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| the Court declined to enjoin the holding of the election. The 
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election was held, and the secession measure carried by a small 

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majority. It would not haye carried if a numba x of Regro voters ye- 

gicing in the District proper had not cast their votes in fe Avo of 

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secession. 

After the election was held, the complaint was amended so as     LL 

| to name as defendants, the members of the Jefferson County Board of 

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/ the election by setting up the ib district and naming a temporary 
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a distribution oF rien and fiepaitin of the original district 

and an allo-ation of revenues bétween the two districts. 

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the functicns above Aste. [A hearing was held on plaintiff's 

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motion for a preliminary injuncdaon, and the tmotion was granted on 

| 2.Whites Carnaber Negx oes Tglightly 3 in the overa 11 District as 

‘now constituted. Negroes outnumber whites in the District pro 

tf the Hardin Area leaves the District, the Negroes residing 3x 

District proper COR conceivably gain control of the School 

and consequently of the schools.   

| the election. 1 was alleged in substance that the secession of thg 

Education, the agency chaxged with the responsibility of implementir 

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board of directors for it. Setting up the new district would involve 

Plaintiffs sought both a preliminary and a permanent injunction 

against the County Board of Edu ation restraining it from performing 

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did bring in the District and the plaintiffs 

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Court finds that all interested factions are now before it. 

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Sentero. 23. When it became evident that the election would not 

be contested, an order was entered dismissing the complaint as 

against the election commission 

At the AR on the motion for a preliminary injunction iz] 

became apparent to. the Court that neither chav proponsats ofthe | 

secession, now the Dollarway 2ongd. nor the Negro community in the 

District would be adequately represented by the County Board of. 

Education which, not improperly, assumed : position of complets 
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neutrality. aebr linn iy, the Court directed counsel for the plain- 

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tiffs to bring the District into the case and also to bring in knot 

proponents of the secession and the Negro plaintiffs in Cato 

Parham as representatives of the Negro community. 

Proponents of the secession did not wait to be joined as defen- 

dants; they filed an intervention in their own behalf. Plaintiiis 

in Cato, and the 

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The position of Rai intervenors is that the pEOpOAss 3 Secossion 

tended to, and will not, Irustrate the decrees of this 

Court. that it will not denrive plaintiffs of an federally protect 
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rights, and that it 1s perfectly legal and proper. Poth the Dise 

trict and The Beg1o representatives, 1ike the County Board, have —
 

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taken a neutral stand s that the real controversy here is between 

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the plaintiffs and the intervenois. 

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The case was [tried on the|merits on Janivary 7 of the currer 

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year, and this memorandum incorporates the Cc opurt's findings of 

fact and conclusions of law. At the commencement cf the rial it 

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was agreed that the Court might consider certain facts appearing 

in the record in the Cato Capt might also consider the cvidencd 

AEA ANITA 
FA EO A SNE e— 

vf Arkansas school law. : 

G9 question could be rai ged ss to whether the District is not 

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4. pa . i 1 - Fd - x _~ ty Jd ~ ~ 7a TY 2 £4 NE 

obligated under the Court's decrees to resist Sa vm di.smembe rm 
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That question nas not been raised, and the Court's view oft: 

case renders Lt unnecessary for the Court to ralse the quesStis 

on its own motion. 

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EE a eat a FN I TE EAR NARI SCE Ae SI TE OTE, sma BE ACY A CPT WL ITSO “Yn 

Ty is no question that the secession de . appropriate as ‘oo natiey 

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introduced at the hear ing on hic motion for 

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Yhe Court's jurisdiction 1.8 predicated 
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303 Y and (4) and upon 42 T8.0bees §199 While 211 of tha 

plaintiffs are white people J they, $ihe 4 ‘Negroes, have a right to 

attend and to have their children attend a public school system 

that is free from xacial discrimination as ordered by this Court 

and in the Court's-estimation they have standing to attack the 

proposed secession in this action 

if the secession would frustrate Or 

implementation of the Court's decrees. 

As stated, the Hardin Area is 

The Digtyic 

and to secu 

serious ly 

physically 

re injunctive 

intexrfe 

Se eparated 

revith the: 

from the 

  

District propex. t proper and all of ics schools are 

located. on the northern outskixts of the City of Pine Bluff. 

U.S. Highway 65 mun ths -ough the Dis- 

+om north to south. 

are cast of the highway. 

The schools of the District now 

School, Dollarway Junior 

Pinecrest Elementary School, and Tow nsend Pz 

Hardin Area Students, including elementary 

not have private transportation are carried 
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Led : 

4zy on busses owned by the District. The b 

HET Ee A AH Sach WEP ETA 2 a andes a PS RE 

and certain ‘railroad tracks 

tial housing 

COnNsils 

EP TANTEI i on AE IAP LR 30S 

Dollaxrway High 

Sets Dis: 
riot proper ¥ Residen in * 

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trict proper is segregated; most white reside ts live west of the 

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highway and the tracks, and most of the Negro residents live east 
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of the highway; some'live between the highway and the tracks which 

High School, Dollaxway Elementary School, 

ark Elementary School. 

gr students, 

+o and from & 

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15S e 

ar AT A RAs EAA SEIT POW FC TILL, ITD 

coBanll ca 

who do 

ach 

pi ck the eligren, 
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SThose thiee “¢chools are. 211 on the same campus which is Jocated 

on the west: side of the highway. 
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6lihat is now Townsend Park Elementary School was formerly: two scho 

designed fox the education of Negro students at all grade levels. 

Tt is located east of the highway and the tracks and is near Arkan 

Gan ALN. GR. College, a prego pinar.tly Negro institut] Lon i Pox the 

sake of completeness it may be mentioned that Pinecryest Llenentary 

School was designed originally as a white ¢lemencary school. «It is 

located a few Lions west of the Dl! way School complex. 

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| up around seven o'clock inn the morning and relurn them 

4 . So E im hs ae re J a : ro ; G ; en 
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l homes between rou "aud four~thirty o'clock in the afternoon. 

[ ~~ PN - Ra 93 “i < a TR I ni I -— ry " oy ~ 
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Prior to April 1948 the Hardin Area was and had been for many 

years an independent school districk. AEs school plant consisted 

{ wt Py J -~ 5 - AE Bo) : "" | y Ag" - py aT - - 1 -n 

of two school buildings, one morc modern than the other, and a 

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teacherage. It offered instruction in sts own schools to students 

2% - 3 « « ~y p 2 . ¢~} ~ it « {=%4 PELE ol a, - o - 4 rr A = I on v “en - Aa 

sn Grades 1-9; hHighuschool students resiaing Ln the Arca were sent 

to high schools in ofther districts on a raluten basis. As of that 

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time the nollarway District did not have a hat school, and Dollar 

way students in Grades 9-12 attended school at the Pine Bluff High 

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School, which was a school superior to high schools operated in 

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Lt In 1947 ox 1948 the more modern of the school buildings owned 

by the Hardin District was destioyecd by fire and was not rebuilt. 

At that time the Districb.wasg probably under some pressure to MELEE   
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4 I HEIR Gb 1 Le larger distwict; in any event, the Hardin Board of Directors 

decided to merge rather than to rebuild the destroyed school. Since 

| Dollarway had an arrangement with Pine BI] uf -
     = for the education of 

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ts high school students, the Hardin people decided to mexge into 

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the Dollarway District rather than into the adjacent Whitehall Dis- 

trict or some other contiguous disticicts     
| The merger was effected without reservation in April 1948, and 

the Hardin Area has been jn the Dollaxway District ever since. . From 

{51848 10 about: 1964 ox 1965 the Dollarway District utilized the xe» 

maining donno building in the Area as an elecmentaly rat 
How 

ever, that building or its fact lites come 30 need of substantial 

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.  repalrs or renovations which the Dietrich was unwilling or unabl     
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A SIS ASUS TTA Sr An RE rn AO IE TENA RTE Hp 8 Err OE Lr APES rE
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AA TCA A at A NE SO RIT RAD mg 

Tht the Henan Election of 1948 the peop 1% of ansn s ecdopted | 

riated Act No. 1 of that year, Ark.Stats., §30-427 et s¢qg., 

Sif ig to eliminate school districts having fewer than 350 

; Le cych districts WeIcC civen a iimited time to consolie 

| “date; affected districts that did not consolidate were abolished 

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dd and merged into a county -wide district. gee Haney ve. Board of 

Education of Sevier County, Ark., 8° Cir., £10 Fe. 2d G20.   
 



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to make, and the school was closed. 

  

x . ince that action was taken, certain residents of the Area 
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have been dissati isfied with their connection with Dollarway, the 

dissatisfaction being principally directed at the bussing of the 
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youngex children to and from school. That com plaint and others 

have ni nat hin to ‘do with race or with school desegregation. 

Substantially priox to the issuance of the Coltnils 1969 decrees 

there was sentiment in the Area favoring the reestablishment of 

the old Hardin District. In 1968 Area residents undertook to re= 

establish that District by petition to the County Bo Hg of Educa=’ 

gion: they were advised that they could not achieve their objective 

by that method, and that an election would have to be held.   
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fd ac 

| The Court finds from uncontradict nd evidence that the secession 

/ cof the Area would inflict severe damage upon thie District financially. 

According to the testiaony the Distvict's loss oF tox and other 

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. +! revenues based in large measure on the District's enumeration and 
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pupils in average daily attendance might run as high as $100,000 

per year. If the Bissriet has to bear that loss it is. doubtful 

1   at best that it can provide any kind of quality education for its 

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students, or that it can operate ils schools for nine months terms, 

or that it can maintain its present accreditation. in addition, 

it will find it most difficult to employ and vetain in Sanloyaant 

| competent personnel, particularly people who are willing to work 

and. teach in an integrated school system. 
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The Court further finds that the secession, if permitted, will   ” . . . “ : 3 . . - = > . . ine 38 Mg . x ne 

substantially increase tne racial imbalance in the District's student 
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bodies. As has been pointed out 270 students from the Maxdip Area 
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02 . ) 7 1 ~ oa #3 % PO - —y 1 Fw. er Le 

oUntil this case was tried, the Court had mever had any very. deiinit 

| information about the history of the Hardin Area and had had limited 

information about the school facilities, past or present, in the Age 

9%C ie not clear that the 1968 plar. to secede was formulated befor 

the Court's decree rendered in March 1968. That decree outlawed 

freedom of choice at Dollarway and in so doing sounded the death 

knell for segregated schools in the Distriel. 

    
 



  

Sn e 2 A] , FY ~ gr ay I's 
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appear to have been in tn Digtricl’'s schoo last fall, and £00 

ki. 

{ +} RES TU TY whe JS 2 ~1 oe ed I IE : Yai a i be 

DL ITNOSE WeTE iLL tinea, CC 1s aNlaence tO Chie erect hat Cn $ 

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A ney | o ~ 7 1 1 - * Ey - o y 1° i vy 73 PF NYY XTY 3 ~ OCI ~Y t= 1 1+ PRE . oy 

Wied oS POp lar <1S LO 1 J18 2000-11. may DE gssumed Lhial, Ne 3 Nl Yea i 

there will be at least 265 white studer 1ts residing in the Area who 

would normally attend fhe D lstrictls «chools Joa TEitheose 265 white 

students are taken out of .the District's total enrollment, the re- 

e = pe bl : ; Ca el n Fo 1 rR 3 ! Rr 5 . na - 

sult will be, according to the Court's alculation, that 57 percent 

of the District's students will be black and only 43 percent white 

| as opposed to the present 55-45 pescent racial distribution. 

Cons ides -ing together the financial impact of the secession and 

fthe. siiahen racial imbalance ves sulting therefrom, LC ls fairly 

E inferable that there will be some exodus irom the District’ s schools 

ews} pfwhite students now residing in the District, and it is possible 

Ee | that the entire system will become in effect an all black system 
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“with only a token Eastbay of white students in attendance. 

Although the Cou is not dire 0 tly concerned in this action 

with what the Hardin residents can or will do about the education 

of their children if the secession is sermi ti , lt seems oleax 

from the evidence that they will have a great deal of difficulty 

financially if they txy to operate & school system of their own. 
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While a new Hardin District would have the remaining school build- 

ing and the teacherage, the school building stands in need of sub 

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stantial repair, including a new x00L, a Nev ceiling and new wiring. 

There is no evidence as to how much those repairs would cost. There 

is evidence to the effect that the new district would nd: be able 

to borrow enough money to hulld a pow bullding. In the division 

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| of assets detween the parent ne. and the new one, Hardin 

could be allotted some of the porte ble classrtooms owned by the 

s _s ged A 5, Te or a ny a Sn IF I RE v 

Voigt rick, bur af a8 doubtful whether, as a maltcy OX Arkansas law, 

le =o a permanent school bul 
' the new district could rake Lil lding 

jocated outside its Condes 08 «     . 

| In point of fact the Court has not gained the impression that 

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0,
 Se, ACSI, 35K. oe jo Sh wt as i wy . GE : FRE RR, SR ayy : 

Badin YeS1iQCHLS plan Co Cry EO opexats a twelve erxaace Syste. 

vl ye -~ | JE gH ~ ry OO - - - ay . ~ TN Sy es ~~ oN ry — dey rN ~ NS ~ 4 ~ 

their ‘plan seems to be to try Co opera te an elementary school anc 
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perhaps a junior high school and ‘to send the students in the upper 

grades Lo some other: district and pay tuition fox them. 

Much of the evidence at the trial was directed at the motive 

of the proponents of secession. Plaintiffs undertook ©o DYOVE that 

the basic motivation was a desire to avoid an integrated school 

| situation; the intaresnors undertook to show that integration was 

nat a facing in the equation. 

While the Court is satisfied that a desixe to escape the -impacp 

of the Court's decree as net the sole motive for $d olivouin tion 

of the election ppl plone and was nok the sole factor taken into     
Jardin residents wno voted for ¢ secession, the Court 

consideration by 1 

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is also convinced and finds that the belief or hope of the Area re-   a 

sidents that by seceding irom Dollars ray they could keep their 

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children out of Pref ns schools or at least would.be able to 
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send them to districts having a smaller Negro population than 

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Dollaxway was a powerful selling point for the measure in the Area. 

k Having stated the facts in some deta il, it mow becomes necessary 

| for the Court to def’ne with precision the issue that is before it. 

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i fs have pitched their ca; 

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i Jess of the motives of the proponents of secession that step, +E 

  
se on the proposition that regard- 

taken, will frustrate the Court's decrees -or will impede the Dis- 

eric in carryi ng hut its oblig atl ons. Plaintiffs have not raised 

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and the Court does not reach the broad question of whether ox in 

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what circumstances an Arkansas school district can ever be divided 

or reconstructed geographically where such action would have a 

. significant effect on the racial make-up of some or all of ‘the 

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schools located within the origina al district. 

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Tt may well be that there is no constitutional objecticn to & 

    
district that is not involved in desegregation LiLigation xecon” 

structing itself an such a manner that one ox more pares will no 

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YA C 3 111] Arar i al T “rn ~ FEIN, TIES Sd ver} - Vo ~ Ph ip le NYT a x ll ga a 

have a substantial Neg 10 pop dilation and thus vill have no TN egerar 

  

tion problem. 

But that is not the situation that wists at-Dollarway. While 

the District has made progress toward establishing a unitary, in- 

tegrated school system, 54 is far from its journey 's end, and the 

Doliarway school case is still very much alive. : 

Ti He Re, W000 A vir ” oy C3 a a. neal JAS. GRR Yoh 7% np i Ph 4-3 oo nol "Tn 

we Hardin Area was in the District when tne litigation startled, 

and it has annie there ever since. Its jnclusion in the Districeh 

has been assumed by the school officials in formulating their vai 

| ous desegregation plans and has been taken into consideration by 

the Court in eva aluating those plans and formulating its dec: ees. 

Integration of the District including the Area and its students 18 

one thing; integration of the District without the Area may be 

something else...’ 

The Area residents do not want to move cut of the Distzict; 
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they want to move ‘the Distxict and its problems away from themselves 

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| The Court does not \think that they can be permitted to avoid the 

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i supposed benefits ot escape the supposed burdens of the Dollarway 

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| litigation so easily, or that in the existing circumstances a 

! majority of the Ais of the Area can ‘deprive other residents 

of their present right to attend fully integrated schools at. 

Dollaxway. 

No resident of the Area is required to remain there. No resis   
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| dent of the Area is required to send his children to the District's 

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schools. "Bul &t this time the residents of the Area as a class 

cannot be permitted while remaining where they are to use the 

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Srate's laws and procedures LO gape the Area out of the District. 

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TY i To 4 es 1 - 1. bu YC? 1 111 Di od ed ol <4 “iS or 

That is not to say that the 20. d 1 in District can nevel 

at any time or under any circumstances be reestablished. When 

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the integration problem at Doll arway has been settled finally, when 

this litigation is at rest, if that.day ever comes, LU may tur 

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bout thar there d= no federal objection to Lhe #£ ca's withdrawing 

from the District and going its way in peace if, indecd, the res: 

dents still want to sccede. 
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This Court, as a count of equity, has an inherent and continu- 

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ing power to vacate Or modify its injunctive decrees upon a proper 

land sufficient showing. See United States v. Swift. & Co. , 286 U.S. 

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106: Tobin v. Little Rock Packing Co. 8. Cir., 202 7.28 234, afii rms 
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ing Tobin v. Little Rock Packing Co., E.D. Ark. 104 P.Supp. 527. 

And at a proper time residents of the Area will be free to txy to 
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‘make such a showing. All that the Court holds is that as of this 

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time and in the existing circumstances the proposed secession cannot 

be permitted and will be enjoined. 

A decree in accordance with the foregoing will be entered: All 
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parties will bear their own costs. a 

Dated this 2a day of January. 1970. 

& ¢ 

gee States District Judge 

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| ; er] 7] [||56ee0c03-c0ec-4204-9dcb-915c16c1d6e4||]