Correspondence from Lani Guinier to Elaine B. Goldsmith (Clerk) Re: Butts III v. City of New York

    No. 18536

IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

BOARD OF MANAGERS OF THE ARKANSAS TRAINING SCHOOL 
FOR BOYS AT WRIGHTSVILLE, ET AL., APPELLANTS

v.

MRS. NONA MAE GEORGE, APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

JOHN DOAR,
Assistant Attorney General,

ROBERT D. SMITH, JR.,
United States Attorney.

DAVID L. NORMAN,
FRANKLIN E. WHITE,

Attorneys.
Department of Justice. 
Washington. D. C. 20530



INDEX

Page
Points and Authorities........................  I
Argument:

Because a Characterization of These
Training Schools as "Penal", Would Not
Obviate the Duty of the State to
Desegregate in compliance with Fourteenth
Amendment, the District Court Properly
Denied the Motion to Dismiss . „ ............. 2

Conclusion.............................................  9
Certificate of Service

TABLE OF CASES
Bailey v. Patterson. 369 U.S. 31 (1962).............. 2
Bolden v. Pegelow, 329 F. 2d 95 (C.A. 4, 196*0. . . .  6,7
Brown v. Board of Education. 347 U.S. 483 (1954). . . 2,8
Dawson v. Mayor and City Council of Baltimore. 220 
F - 2d 386 (C.A. 4) affirmed 350 U.S. 877 (1955). . . 2

Edwards v. Sard, 250 F. Supp. 977 (D.D.C. 1966) . . .  6
Ferguson v. Buchanan. 10 R.R.L.R. 795 (S.D. Fla.
19g5) - ............................................... ..

Fulwood v. Clemmer. 295 F. 2d 171 (C.A. D.C. 1961). . 5
Hampton v. City of Jacksonville. 304 F. 2d 320 
(C.A. 5, 1962) cert. den. Ghiotto v. Hampton.
371 U.S. 911 . . . . T T  . --- ---- 3

H-arris v. Settle. 322 F. 2d 908 (C.A. 8, 1963). . . .  8
Jefferson v. Heinze. 201 F. Supp. 606 (N.D. Calif. 7,8

Johnson v. Virginia. 373 U.S. 61, 62 (1963) 2



Page

Lee v . Tahash. 352 F. 2d 970 (C.A. 8 , 1965). . . 8
Nichols v. McGee. 169 F. Su d d . 721 (N.D. Calif.
T533T. . T T T ...................................7,8

Simkins v. Moses H. Cone Memorial Hospital. 323 
"F. 2d 959 (C.A. 4, 1963) cert, den. 376 U.S. 938. 3
Singleton v. Board of Commissioners of State 
Institutions, 356 F. 2d 771 (C.A. 5. 1966). . . .  7

Turner v. Memphis. 369 U.S. 350, 353 (1962). . . .  3
United States ex rel. Morris v. WENR, 209 F. 2d 
105 (C.A. 7, 1953)'. . . . . . . ~ T T ............. 8

Washington v. Lee. C.A. No. 2350-N decided
December 12, 1966 (three-judge court - M.D. Ala.). 4,9

Watson v. City of Memphis. 373 U.S. 526 (1963) . . 3

STATUTES
Ark. stat. Ann. §45-203 (1965 Supp.).............

45- 204 (1965 Supp.)............
46- 305 .........................
46-306 .........................
46-307 .........................
46-308 .........................
46-310 .........................
46-311 .........................
46-318 .........................
46-321 ......................
46-330 .........................
46-332 .........................
46-334 .........................
46-335 .........................
46-340 .........................
46-901 .........................
46-907 ............

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IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BOARD OF MANAGERS OF THE ARKANSAS TRAINING SCHOOL 
FOR BOYS AT WRIGHTSVILLE, ET AL., APPELLANTS

v .

MRS. NONA MAE GEORGE, APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS

1/BRIEF FOR THE UNITED STATES AS AMICUS CURIAE-

2/
POINTS

Because a characterization of these training 
schools as penal would not obviate the duty of the

1/ By order of this Court dated December 29, 1966, 
the United States was granted leave to file this brief.
2/ Because appellant's brief contains an adequate 
statement of the case, we have omitted repeating it here 
See Rule 11(b) of the Rules of this Court. And because 
we assert but one argument, we do not repeat here the 
authorities set forth in the table of cases of the index



2

State to desegregate in compliance with the Fourteenth 
Amendment, the district court properly denied the 
motion to dismiss.

ARGUMENT
1. The character of these training schools -- 

be they "penal", "educational" or hybrid -- is not 
determinative of whether the state may maintain separate

3/institutions for the races. "[I]t is no longer open to 
question that a state may not constitutionally require

Vsegregation of public facilities." Johnson v. Virginia, 
373 U.S. 61, 62 (1963) (courtrooms); Brown v. Board of 
Education, 347 U.S. 9-83 (1954); Dawson v. Mayor and

3/ The Arkansas statutes lend support to the view 
that these training schools are more "educational" than 
"penal" in character, although such a choice need not 
be made (they are probably more accurately character­
ized as "hybrid"). The relevant statutes are discussed 
in an Appendix to this Brief.
4/ Because this principle is so clear it was not necessary 
to convene a three-judge panel in this case. To be sure the 
essential question went to the validity of state statutes 
requiring segregation in publicly-owned facilities, in 
particular, prisons. (The commitment on the basis of race 
which appellee sought to enjoin was required by Ark. Stat.
Anno. §§46-306 and 46-330). Although the Supreme Court has 
not spoken directly to the issue of prisons, nonetheless, its 
prior decisions taken in toto make frivolous a claim that a 
statute requiring segregation in any public facility -- albeit 
a prison -- was not unconstitutional. That question was no 
longer open. Under those circumstances a three-judge court was 
not required. See Bailey v. Patterson, 369 U.S 31 (1962).



3
City Council of Btltimore, 220 F. 2d 386 (C.A. 9), 
affirmed 350 U.S. 877 (1955) (beaches and bath houses); 
Watson v. City of Memphis, 373 U.S. 526 (1963) (parks); 
Turner v. Memphis, 369 U.S. 350, 353 (1962); Hampton v. 
City of Jacksonville, 309 F. 2d 320 (C.A. 5, 1962) 
cert, den. Ghiotto v. Hampton, 371 U.S. 911 (golf 
courses); Simkins v. Moses Cone Hospital, 323 F. 2d 
959 (C.A. 9, 1963), cert, den., 376 U.S. 938. Thus, 
even if these training schools be deemed penal in 
nature the state may not -- "except upon the most con­
vincing and impressive demonstration ... that 
[continued separation of the races] is manifestly com­
pelled by constitutionally cognizable circumstances"

5/Watson v. City of Memphis, supra at 533 -- require that

5/ In Watson the City of Memphis argued that the dis­
trict court properly permitted it to draw up a plan under 
which complete desegregation of its parks and playgrounds 
would not be required until 1971 because "gradual desegre­
gation on a facility-by-facility basis [was] necessary to 
prevent interracial disturbances, violence, riots, and 
community confusion and turmoil." The Supreme Court stated 
that the claims of the city to further delay ...

cannot be upheld except upon the most convincing 
and impressive demonstration ... that such delay 

is manifestly compelled by constitutionally cog­
nizable circumstances .... In short, the city 
must sustain an extremely heavy burden of proof 
(373 U.S. 526, 533).

(continued on following page)



- k -
inmates be segregated on the basis of race. Washington 
v. Lee, C A. No. 2350-N decided December 12, 1966 (M.D.
Ala.); Ferguson v. Buchanan, 10 R.R.L.R. 795 (S.D. Fla. 1965). 
In the Washington case, Negro inmates sought declaratory 
and injunctive relief against "[Alabama statutes] requiring 
segregation by race in state, county and city penal 
facilities." They alleged that such statutes "[were] 
unconstitutional as violative of the Equal Protection Clause 
of the Fourteenth Amendment ...." (slip opinion p. 1). 
Defendants there made essentially the same argument as is 
asserted here: "that the practice of racial segregation 
in penal facilities is a matter of routine prison security 
and discipline and is, therefore, not within the scope 
of permissible inquiry by the courts.” (Id. at p. 5).
The court rejected that argument stating (Id. at 5-6):

5/ (continued from preceding page)
The Court found that:

neither the asserted fears of violence and tur­
moil nor the asserted inability to preserve the 
peace was demonstrated at the trial to be any­
thing more than personal speculations or vague 
disquietude of city officials (id. at 536)

and ruled that
the city has completely failed to demonstrate any 
compelling or convincing reason requiring further 
delay in implementing the constitutional proscrip­

tion of segregation of publicly owned or operated 
...facilities (id. at 539).



5

Since Brown v. Board of Education, 347 
U.S. 453 (1954), and the numerous cases 
implementing that decision, it is unmis­
takably clear that racial discrimination 
by governmental authorities in the use of 
public facilities cannot be tolerated. . . .

Although it is true that "[ljawful 
incarceration brings about the necessary 
withdrawal or limitation of many privileges 
and rights, a retraction justified by the 
considerations underlying our penal system,” 
it is well established that prisoners do not 
lose all their constitutional rights and that 
the Due Process and Equal Protection Glauses 
of the Fourteenth Amendment follow them into 
prison and protect them there from unconstitu­
tional action on the part of prison authori­
ties carried out under color of state law.
Cooper v. Pate, 378 U.S. 546 (1965); Cochran 
v. Kansas. 316 U.S. 255 (1942); Sewell v. 
Pegelow, 291 F. 2d 196 (4th Cir. 19&1); Pierce 
v. LaVallee, 293 F. 2d 233 (2d Cir. 1961), and 
Fulwood v. Clemmer, 295 F. 2d 171 (D.C. Cir.
1961). In this regard, this Court can conceive 
of no consideration of prison security or 
discipline which will sustain the constitu­
tionality of state statutes that on their face 
require complete and permanent segregation of 
the races in all the Alabama penal facilities.
. . . Such statutes and practices must be 
declared unconstitutional in light of the 
clear principles controlling. (Emphasis added.)

In Fergusont the court enjoined the Sheriff and Board
of County Commissioners of Dade County, Florida, from
maintaining segregation in the jails of the county.



6

See also Edwards v. Sard, 250 F. Supp. 977 (D.D.G.)
6/

196^7.
The Courts of Appeal for the Fourth and Fifth

Circuits have manifested a similar view. In Bolden
v. Pegelow, 329 F. 2d 95 (C.A. 4, 1964), an inmate of
the District of Columbia Jail sued to desegregate the
prison barbershop facilities. The district court found
that the barbershops were in fact segregated but denied
relief saying (218 F. Supp. 152, 155 (E.D. Va.)):

[plrison officials are vested with wide dis­
cretion in safeguarding prisoners committed 
to their custody. Superintendent Pegelow 
and the other prison officials of Lorton 
are of the opinion the rules and regula­
tions now in effect for the use of the 
prisoners' barbershop are necessary for the 
safekeeping of the inmates, and this court 
will not interfere with that decision.

The Court of Appeals for the Fourth Circuit reversed,
holding that having found segregation to be practiced

6/ In Edwards, Negro inmates of the District of 
Columbia Jail sued to enjoin alleged discriminatory 
dormitory assignments. The court stated that "plain­
tiffs. . . will prevail. . . if they convince the 
Court that a policy of racial discrimination has been 
followed in making dormitory assignments at Lorton 
(250 F. Supp. 977, 979), but concluded that plaintiffs 
had failed to show that such a policy was being followed. 
(Id. at 982.)



7

J _ /
the district court was obliged to grant injunctive relief.
See also Singleton v. Board of Commissioners of State
Institutions, 356 F. 2d 771 (G.A. 5, 1966), where the
court--with respect to similar Florida reform schools--
stated (Id. at 772):

Twelve years ago, in Brown v. Board of 
Education of Topeka, 1954, 347 U.S. 9-83,
74 S. Gt. 686, 98 L. Ed. 873, the Supreme 
Court effectively forclosed the question 
of whether a state may maintain racially 
segregated schools. The principle extends 
to all institutions controlled or operated 
by the state.
While there are two district court decisions 

(by the same judge) to the effect that prison segrega­
tion is unassailable under the Fourteenth Amendment, 
these cases seem plainly wrong. See Nichols v. McGee,
169 F. Supp. 721 (N.D. Calif. 1959); Jefferson v.

U  The Court of Appeals said (329 F. 2d 95, 96):
Under the findings of the District Court 

the injunction prayed should be granted. In 
a series of decisions since Brown v. Board 
of Education, 347 U.S. 483, 74 S. Ct. 686,
98 L. Ed. 873 (1954), the unconstitutionality 
of racial classifications under various circum­
stances has been adjudicated. "[I]t is no 
longer open to question that a State may not 
constitutionally require segregation of public 
facilities." Johnson v. Virginia, 373 U.S. 61, 
62, 83 S. Ct. 1053, 1054, 10 L. Ed. 2d 195 
(1963). "The sufficiency of Negro facilities 
is beside the point; it is the segregation by 
race that is unconstitutional." Watson v. 
Memphis. 373 U.S. 526, 583, 83 S. Ct. 1314, 
1321, 10 L. Ed. 2d 529 (1963).



8

VHeinze, 201 F. Supp. 606 (N.D. Calif. 1962;.
To be sure, in Harris v. Settle, 322 F. 2d 908 

(C.A. 8 , 1963), this Court did refuse to intercede in 
an apparent racial dispute within a federal prison.
But that decision involved only a claim of an isolated 
case of unequal punishment motivated by the race of the 
prisoner punished--r.ot a claim that the prison was 
operated on a segregated basis. This Court's refusal 
to second-guess the warden on a matter of prison dis­
cipline was in accord with the traditional approach 
of federal courts with respect to such matters, but 
should have no bearing on whether a federal court
should enjoin the maintenance of a segregated prison

_£/system.

8 / In Nichols, the district court ruled that the 
maintenance by prison officials of segregated cells, 
lineups, and dining rooms did not violate any consti­
tutional rights of a Negro prisoner who sought to 
enjoin such practices. That holding was essentially 
reaffirmed in Jefferson.

The other cases on which appellant relies are 
of little use. United States ex rel. Morris v. WENR, 
209 F. 2d 105 (C .A. 7~, 1953) was decided prior to 
Brown v. Board of Education, 347 U.S. 483 (1954).
Lee v. Tahash, 352 F. 2d 970 (C.A. 8 , 1965) did not 
involve claims of racial discrimination.
9 / Of course, if this Court accepts the District 
Court's view that these schools are "educational" 
institutions, the result would be the same--they must 
be desegregated.



9

2. Even if it be true, however, that, in certain
situations, prison officials might properly decide the
only way to maintain peace and order is to separate

10/
the races, there has not been a showing, nor could there 
be in advance of trial, that there is any such necessity 
here. Thus, for this independent reason, the Motion to 
Dismiss was properly denied.

CONCLUSION
For the foregoing reasons the decision of the 

district court should be affirmed.
Respectfully Submitted,
JOHN DOAR,

Assistant Attorney General
ROBERT D. SMITH, JR.,

United States Attorney
DAVID L. NORMAN,
FRANKLIN E. WHITE,

Attorneys.
Department of Justice. 
Washington. D. C. 20530.

10/ See the reference to the "tank" used by the 
City of Birmingham into which intoxicated persons are 
placed upon their initial incarceration and kept until 
they become sober (Footnote 6 to the opinion of the 
court in Washington v. Lee. supra).

We do not, by this argument mean to suggest that 
there conceivably might be circumstances under which de­
segregation of these training schools would not be re­
quired. On the contrary, we believe that these schools 
are not and could never be shown to be— analogous to the 
tank." See Appendix where the nature of these training schools are closely examined.



1

APPENDIX

The nature of the Arkansas 
training schools

The State laws denominate the schools at 
Wrightsville and Pine Bluff as training and educa­
tional institutions. §§46-305, 46-321, Ark. Stat. Ann. 

1/(1947). It has declared that these institutions "shall 
be entitled to all the rights and privileges of any 
other accredited educational institution [in the1 
state. . . ." and that they are ". . . not, and shall 
not be a part of the penal system of this State, nor
shall [theylbe construed as penal institution[s]

2/
§46-305, 46-321.

1/ Unless otherwise indicated all statutory cita­
tions will be to the 1947 Annotation.
2/ The boys must be allowed to wear ordinary clothes 

"§2+6.311, 46-335; they must be given "educational, moral, 
industrial, domestic and farm training" §46.310, 46-334. 
The courses of study taught must conform to the "minimum 
standards prescribed for the other public schools of the 
state and the students shall receive the same credit for 
completing the courses as is received by students in 
other public schools." §46.310; 46-334. The fact that a 
boy was committed to a training school can never be 
admitted in any court. §46.318; 46-340.



IX

This is not nomenclature alone. The institu­
tions house boys under 18 years of age who are adjudged 
either delinquent, dependent or neglected juveniles.3 / 
§46-306, 46-330. A child may be adjudged "delinquent" 
who is under 18 years of age and (§45-204 (1965 Supp.))

(a) Who does any act which, if done by
a person eighteen (18) years of age or older, 
would render such person subject to prosecu­
tion for a felony or a misdemeanor;

(b) Who has deserted his or her home with­
out good or sufficient cause or who habitually 
absents himself or herself from his or her 
home without the consent of his or her parent, 
step-parent, foster parent, guardian, or other 
lawful custodian;

(c) Who, being required by law to attend 
school, habitually absents himself or herself 
therefrom; or

(d) Who is habitually disobedient to the 
reasonable and lawful commands of his or her 
parent, step-parent, foster parent, guardian 
or other lawful custodian.

These categories carry overtones of inappropriate
social behavior. But a child under 18 years of age

3/ Apparently "dependent" juveniles are the same as 
"neglected” juveniles under the Arkansas Code. While 
section 46-306 uses the term "delinquent or neglected 
juvenile," section 46-307 speaks of "delinquent or 
dependent" and 45-203 (1965 Supp.) defines "dependent 
or neglected." There are then, two categories of 
juveniles who may be placed in these institutions; (1) 
those adjudged delinquent and (2) those found to be 
"dependent or neglected."



Ill

may also be sent to the training school if he is ad­
judged "dependent or neglected" (§45-203 (1965 Supp.)), 
and a dependent or neglected child is one --

(a) Whose parent neglects or refuses, 
when able to do so, to provide proper or 
necessary support and education required by 
law, or other care necessary for his or her 
well being;

(b) Who is abandoned or mistreated by 
his or her parent, step-parent, foster 
parent, guardian, or other lawful custodian;

(c) Whose occupation, environment or 
association is injurious to his or her welfare;

(d) Who is otherwise without proper care, 
custody or support; or

(e) Who by reason of the neglect of his 
or her parent to provide the proper or neces­
sary support, education, or care, is in the 
custody of a children's aid society or is 
being supported by the county or state, 
except that a child shall not be classed as
a "dependent child" or "neglected child" 
under this subsection solely because of the 
fact that he or she or his or her parent or 
both, receive assistance under the social 
welfare acts or otherwise receive support 
from public funds.

Thus there may be children in the training schools who 
are guilty of no inappropriate social behavior whatever. 
Moreover, of the children adjudged "delinquents", only 
the least intractable are sent to the training schools. 
The more hardened delinquents are sent to an Inter­
mediate Reformatory the state maintains for males 
between the ages of 14 and 25 convicted of felonies.



IV

§§*46-901, 96-907. Furthermore, any child under the age 
of 18 may be sent to the penitentiary initially if the 
trial judge deems this course expedient. §§96-308, 
96-332. And, the officials in charge of the training 
schools may return any child to the committing court 
with a recommendation for transfer to the "penitentiary, 
jail . . .  or other appropriate institution" to which the 
student might have been admitted in the first instance.



CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing 

Brief has been served this date by official United States 
mail in accordance with the rules of this Court to each 
of the attorneys for the appellants and the appellees as 
follows:

Attorneys for Appellants:
Honorable Bruce Bennett 
Attorney General 
Justice Building 
Little Rock, Arkansas
Honorable H. Clay Robinson 
Assistant Attorney General 
Justice Building 
Little Rock, Arkansas

Attorneys for Appellees:
John Walker, Esq.
1304 - B Wright Street 
Little Rock, Arkansas
Jack Greenberg, Esq. 
Sheila Rush, Esq.
10 Columbus Circle 
New York, New York

Attorney,
Department of Justice, 
Washington, D. C. 20530

Dated: January 30, 1967