New York, N.Y., June 24, 1958-- …

    THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-2316 EA

BRENDA SHERPELL, et al. ,
Plaintiffs-Appellees, 

v .
HUMNOKE SCHOOL DISTRICT, et al.,

Defendants/Appellants.

On Appeal from The United States 
District Court, Eastern District of Arkansas 

Western Diviston

BRIEF FOR APPELLEES

JOHN W. WALKER 
LAZAR M. PALNICK

JOHN W. WALKER, P.A.
1723 Broadway Street 
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
C. LANI GUINIER 
THEODORE M. SHAW 

99 Hudson Street 
16th Floor
New York, New York 10027 
(212) 219-1900

ATTORNEYS FOR APPELLEES



REQUEST FOR ORAL ARGUMENT

This case presents issues involving voting rights 
claims and issues reviewable under school desegregation law. 
The applicable law in each of these areas is substantial. 
Accordingly appellees submit that allocation of thirty 
minutes per party for oral argument would advance the 
exposition of the relevant case law as applied to the facts
of this case.



TABLE OF CONTENTS

Page
Table of Contents ................................  i
Table of Authorities .............................  ii
Statement of the Issues ..........................  v
Statement of the Case ............................  1
Summary of the Argument ..........................  17
Argument ..........................................  18

I. The district court has not entered
a final order or judgment .............  18

II. If this Court finds that it has
appellate jurisdiction, it should
affirm the district court's holding
that the Humnoke School district's
election system has been maintained
for the discriminatory purpose of
limiting blacks' opportunity to
participate effectively in the
political process and elect school
board members of their choice .......  18

III. In the alternative, the district
court's findings are sufficient to 
establish intentional discrimina­
tory maintenance of the at-large 
election system in violation of
section 2 of the Voting Rights Act .... 34

IV. The district court's subsidiary
findings also support a finding of 
a violation of the results standard 
of section 2 of the Voting Rights
Act ..................................... 36

V. The district court properly
exercised its jurisdiction to find 
that the appellant School District 
is denying appellees the equal
protection of the law ................. 39

Conclusion ........................................  47
Certificate of Service ...........................  49

l



TABLE OF AUTHORITIES
Cases Pag e

Anderson v. City of Bessemer, N.C., 470
U.S. ___, 84 L.Ed.2d 518 (1985) ............  passim

Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252 ( 1977) .........................  19,45

Bradley v. School Board of City of Richmond,
382 U.S. 103 ( 1 965) .........................  44

Brown v. Board of School Commissioners of
Mobile County, Ala., 706 F.2d 1103 (11th
Cir. 1982), aff'd 464 U.S. 1005 (1983) ....  19

Brown v. Board of Education, 347 U.S. 438
(1954) .......................................  39,43,45

Buskey v. Oliver, 565 F. Supp. 1473 (M.D.
Ala., 1 983)   35

City of Rome v. United States, 472 F.Supp. 221 
(D.D.C. 1979), aff'd, City of Rome v.
United States, 441 U.S. 156 (1980)   26

Dayton Board of Education v. Brinkman, 443
U.S. 528 (1979) ...........................  45

Escambia County, Fla. v. McMillan, 466 U.S. 48
(1984) .......................................  34

Griffin v. City of Omaha, 40 FEP Cases 385
(8th Cir. March 4 , 1 986) .....................  24

Green v. School Board of New Kent County,
391 U.S. 430 ( 1 968 ) ......................... 40

Hunter v. Underwood, U.S. , 85 L.Ed.2d
222 ( 1985) ..................................  23

I.S. Joseph Co., Inc. v. J. Lauritzen A/S,
751 F. 2d 265 (8th Cir. 1 984 ) ...............  34

Jones v. Hutto, U.S. , 88 L.Ed.2d 251
( 1 985)   18

Kemp v. Beasley, 389 F.2d 178 (8th Cir.
1968)   44

- ii -



Page
Kirksey v. Board of Supervisors, 554 F.2d 

139 (5th Cir.) (en banc) cert, denied
434 U.S. 968 ( 1 977) ......................... 37

McGill v. Gadsden County Commission, et al.,
535 F .2d 277 (5th Cir. 1976) reh. en banc
den. 540 F.2d 1085 ( 1976) ..................  19

McMillan v. Escambia County, Fla., 748 F.2d
1 037 ( 5th Cir. 1984) ........................ 35,39

Milliken v. Bradley, 418 U.S. 717 (1974) .......  43
Milliken v. Bradley, 433 U.S. 267 (1977)........  43
N.A.A.C.P. by Campbell v. Gadsden County 

School Board, 691 F.2d 978 (11th
Cir. 1982) ..................................  19,21

Perkins v. City of West Helena, Ark., 675 
F. 2d 201 (8th Cir. 1982), aff'd 459
U.S. 801 ( 1 982) .............................  passim

Raney v. Board of Education, 391 U.S. 443
(1968) ....................................... 41

Rogers v. Lodge, 458 U.S. 61 3 ( 1982) ............ passim
Rogers v. Paul, 382 U.S. 198 (1965) ............. 44
Singleton v. Jackson Municipal Separate 

School District, 419 F.2d 1211 (5th
Cir. 1970) ..................................  46

Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971) ...............  18,43

Swint v. Pullman Standard, 456 U.S. 273
( 1 982 ) ....................................... 41 ,47

Taylor v.Board of Eduction, 288 F.2d 600
(2d Cir. 1961 ) .............................. 18

United States v. Dallas County Commission,
739 F. 2d 1 529 (1 1th Cir. 1984) ............. 37

United States v. Marengo County Commission,
731 F .2d 1546 (11th Cir. 1984), cert.
den. 105 S.Ct. 375 .........................  38

- i ii -



Page

United States v. Uvalde Consolidated Independent
School District, 625 F.2d 547 (5th Cir.
1980) ........................................  19

Washington v. Davis, 426 U.S. 229 (1976) .......  19
Whitcomb v. Chavis, 403 U.S. 124 (1971) ......... 22
White v. Regester, 412 U.S. 755 ( 1 973 ) .......... 24,26,38
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973)(en banc), aff1d sub nom East 
CarrolT-Parish School Board v. Marshall,
424 U.S. 636 ( 1 976) ......................... 26,38

STATUTES AND LEGISLATIVE HISTORY
Federal Rules of Civil Procedure, Rule 52 ......  passim
Voting Rights Act of 1965, 42 U.S.C. § 1973,

as amended 1982, section 2 .................  passim
S. Rep. No. 97-417, 97th Cong., 2d Sess.

(1982) .......................................  35,37,38



STATEMENT OF THE ISSUES

Whether the district court's Memorandum Opinion and 
Order of September 30, 1985 is a final, appealable 
order.

Jones v. Hutto, ___ U.S. ___, 85 L.Ed.2d 222
(1985)

Taylor v. Board of Education, 288 F.2d 600 (2d 
Cir. 1961)

28 U.S.C. § 1291 
28 U.S.C. § 1 292(a)(1 )

Whether the district court's finding that the at-large 
election system was maintained with discriminatory 
intent is clearly erroneous.

Rule 52, Federal Rules of Civil Procedure 
Anderson v. City of Bessemer City, N.C., 470

U.S. ___, 84 L.Ed.2d 51 8 ( 1985)
Rogers v. Lodge, 458 U.S. 613 (1982)
Perkins v. City of West Helena, Ark.,

675 F.2d 201 (8th Cir. 1982)

Whether the district court correctly applied the 
totality of the circumstances test to determine that 
the electoral system was maintained with discrimina­
tory intent in violation of the Constitution.

v



Arlington Heights v. Metropolitan Housing 
Corp., 429 U.S. 252 (1977)

Rogers v. Lodge, 458 U.S. 613 (1982)
Perkins v. City of West Helena, Ark.,

675 F.2d 201 (8th Cir. 1982)

4. Whether the district court's findings also support a 
finding of intentional discrimination in violation of 
section 2 of the Voting Rights Act.

42 U.S.C. § 1973, as amended 1982, section 2 
S. Rep. No. 97-417, 97th Cong., 2d Sess.
McMillan v. Escambia County, Fla., 748 

F.2d 1037 (11th Cir. 1984)

5. Whether the district court's findings alternatively 
support a finding of discriminatory results in 
violation of section 2 of the Voting Rights Act.

42 U.S.C. § 1973, as amended 1982, section 2 
S. Rep. No. 97-417, 97th Cong., 2d Sess.
United States v. Marengo County Commission,

731 F.2d 546 (11th Cir. 1984)
McMillan v. Escambia County, 748 F.2d 1037 

(11th Cir. 1984)

vi



6. Whether the district court's findings that the 
District's policies discriminate against black 
students in violation of the Fourteenth Amendment to 
the Constitution, particularly with regard to student 
discipline and faculty employment, are clearly 
erroneous.

Anderson v. City of Bessemer City, N.C.,
470 U.S. ___, 84 L .Ed.2d 518 (1985)

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

Swann v. Charlotte-Mecklenburg Bd. of Education, 
402 U.S. 1 (1971)

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

- V l l



STATEMENT OF THE CASE

1. Introduction

This is a civil rights action charging the appellants
with the racially discriminatory operation of the Humnoke
School District and challenging the method of election of
the all-white school board. Appellants' opening statement
regarding the procedural posture of the case, at pages 1 and

1
2 of their brief, is essentially accurate.

The Humnoke School District (the "District") covers an
area of approximately sixty square miles, including the
nearly all-black town of Allport and the predominantly white
town of Humnoke. Blacks comprise approximately 45% of the

2
total District population (A4-5) and approximately 40% of 
the student body. (A5). The District has never had any 
black school board members (A10) and there have been no 
black administrators at least since pro forma integration in 
the late 1960's. (Tr. 1:18-19).

In the complaint as amended to conform to the proof pre­
sented at trial, plaintiffs assert their voting rights 
claims on their own behalf as registered voters in the 
District. (See, e.g., "Registered Voters List", defendants' 
exhibit 2 at the Jan. 2, 1986 remedy hearing).
Citations consisting of "A" and a page number refer to the 
addendum to appellants' brief, where the district court 
opinion is reproduced. Citations beginning "Tr." refer to 
the transcript by volume and page numbers. "Pi." refers to 
Plaintiffs' exhibits, and "Def." to Defendants' exhibits. 
"App. Br." refers to Appellants' brief.



2 Historical Background
The district court found that the appellants "have a 

history of racial discrimination..." (A—11) traceable to the 
maintenance of a de jure segregated school system prior to 
being ordered to desegregate in 1968 . (Tr. 7:5). The 
district court, in the present action, found that prior to 
1968 n[t]he accommodations provided by the district to the 
black [Allport] school were less than equal to the accom­
modations afforded the white [Humnoke] school." (A3). The 
court found that there was a "lower teacher-pupil ratio at 
the all-white school than the all-black school" (A3, and 
n.1), that the District provided "deteriorated and muti­
lated" instructional materials to the all-black school and 
that the District failed to provide black students the 
chance to attend high school while it provided that oppor­
tunity to white students. (A4). A District patron who 
attended the Allport school in the 1950's testified that he 
had to travel seventeen miles to Stuttgart, Arkansas in 
order to attend high school because blacks were barred from 
attending the Humnoke school. (Tr. 1:23).

Conditions at the Allport school were so intolerable 
that in late 1967, seven of the nine black teachers there 
wrote a letter of complaint to the school board seeking

2



certain basic improvements. The teachers advised the
board that failure to address these issues could precipitate
their mass resignation. The district court described the
school board's response: "The all-white school board while
ignoring the remedial demands of the black teachers,
construed the letter as a positive and absolute resignation,
accepted the black teachers' resignations without conducting 

4
a hearing ." (A4).

This action by the board left the entire District with 
only two black teachers. When the District closed the 
Allport school, it brought the students and those two 
teachers to Humnoke, and gave the black teachers all-black

3

3 The teachers indicated that health conditions, such as 
sewage disposal and walkways, were substandard. They also 
stated that teaching staff and supplies were inadequate, and 
that the Allport school was not receiving needed federal 
aid. (The teachers' letter is reproduced in the District 
Court's opinion at A4, n.2)

4 T.E. Patterson of the Arkansas Teachers' Association, 
testified that he had explained to the board, on the 
teachers' behalf, that the group had been seeking to improve 
conditions at their school, and had requested the school 
board to reinstate the teachers. The board refused his 
request (Tr. 8:26, 34-35, 48-49, Pi. C-4) despite the 
documented support for the teachers by the members of the 
Allport PTA. (Pi. C-2 and C-3).

When the teachers tried to present their case at a 
board meeting, the then superintendent of the District 
became so hostile that he had to be restrained from at­
tacking the teacher's spokesperson, appellee Joe Bryant.
(Tr. 1:32-33). At trial, the school board president 
verified this incident, and also admitted that enforcing the 
teachers' "resignations" was convenient to the District's 
desegregation plan. (Tr. 7:4, 7).

3



classes. (A4). These classes remained segregated until the 
teachers retired in the early 1970's. (Tr. 6:27-8 and Pi. 
19). A former student offered unrebutted testimony that 
where black and white students were in the same class, they 
were forced to sit in segregated rows. (Tr. 1:243, 247)

3. Racial Discrimination in Faculty and Staff Employment 
Policies

The district court found that the District had sub­
jected appellees to intentional race discrimination by their 
racial allocation of faculty. The court also found that the 
District had "failed to establish a racially balanced 
faculty to insure equality of opportunity." (A 11). The 
court found that since pro forma integration until the 
filing of this suit, the District, which has a black student 
enrollment of 40%, has never employed more than four black
teachers, it has no black administrators and only two other

5
black staff people. (Id.).

5 Unrebutted testimony in the record shows that prior to 
trial, but after the filing of this action, appellant Weaver 
solicited a black District resident, Vera Raynor, to work as 
a teacher's aide. Ms. Raynor has no training or qualifi­
cations beyond a high school diploma and, in fact, had never 
applied for such employment with the District. (Tr. 
6:269-272, 281-282). The record also shows that the 
District made three unsolicited offers of employment to one 
of the named plaintiffs in this action in the year preceding 
trial, which Mr. Bryant, a well-established farmer, de­
clined. (Tr. 1:97-99).

Furthermore the superintendent testified that the 
District never hired a black substitute teacher, (Tr.

4



The court found that only one of those black teachers
taught regular courses, while all other black teachers at
Humnoke have taught special education. (I_d.). in fact, the
record shows that the District has hired only blacks to

6
teach special education. (Tr. 1:73, 4:27). Furthermore, 
the unrebutted testimony of a Humnoke special education 
teacher demonstrates that these black teachers have no input 
into the selection of special education instructional 
materials. These materials were selected by white teachers 
who do not teach special education classes. (Tr. 6:41-42).

7:136-137) even though one of the appellees, Brenda 
Sherpell, was a fully qualified former Humnoke teacher, 
awaiting rehire by the District. Ms. Sherpell has filed a 
race discrimination charge in federal court and with the 
EEOC (PI. 18) based on the District's failure to rehire her 
for one of the several openings they have had since she com­
municated to them her desire to return from her leave of 
absence. (Tr. 2:14).
There was undisputed testimony that the clear majority of 
special education students has been black. (Tr. 5:228, 
6:38). It appears from the record that placement of 
students in special education is largely determined by white 
teachers. As a special education teacher described the 
process, the initial referral comes from a child's regular 
course teacher (all but one of whom are white). (Tr.
5:213). A regular course teacher testified that she 
exercised her discretion to hold a student back a year 
rather than refer him for special education, although she 
did not rely on and could not provide any objective stan­
dards for holding a student back. (Tr. 6:191, 209). A 
black former Humnoke student who had been scheduled for 
special education there, testified that she transferred out 
of the District to avoid that stigma, completed a regular 
education, and went on to college. (Tr. 7:101-103).

5



The district court further found that the appellants 
"have failed to develop objective, nondiscriminatory 
criteria in the hiring, retention, promotion and dismissal 
of faculty and staff in the Humnoke School District." (A11). 
The court found that the District has no formal application 
process and that "notices of vacancies are implemented by 
word of mouth or on the recommendations of friends and 
family ties." (A6). The superintendent of schools 
admitted at trial that the District does not keep any 
applicant flow data. (Tr. 3:181). The court also found 
that the District has selectively avoided predominantly 
black institutions in its college recruitment program. (A6).

The record on which the district Court relied also 
supports the finding that the District lacks any objective, 
written promotion criteria. (Tr. 3:195). The school 
superintendent conceded that five District employees had 
received promotions, and all of them had been coaches moving 
up to the position of principal. (Tr. 3:167). Blacks have 
been effectively barred from this promotional pool because, 
as the record shows, the District has never employed a black 
coach. (Tr. 1:19). Specifically, the district court found 
that "black male applicants have sought coaching positions 
in the District, but were not hired because the Board and

6



administrators were reluctant to have a male figure super 
vising girls. However, the District employed a white male 
to fill the vacancy." (A5, and Tr. 1:73, 3:186).

The court further found that the District employs 
uncertified whites in several key positions. (A5, and Pi. 
23). The record upon which the court based this finding 
shows that Charles Eads was hired as a principal although, 
at the time, it would take him at least five years to 
achieve certification. (Tr. 6:61). He is still nine credit 
hours short of certification. (Tr. 5:113). Edsel Weaver 
was hired and served for three years as superintendent of 
schools before he received certification. (Tr. 3:138).
Coach Joseph Couch also holds the title of counselor, but 
lacks proper certification. (Tr. 1:171). Weston Woods has 
been acting as the elementary school principal, but has no 
administrator's certificate or any plans to obtain one.
(Tr. 6:248). The District has never hired an uncertified 
black teacher. (Tr. 4:17).

4. Maintenance of a Racial Atmosphere
The district court found that the appellants had 

subjected the appellees to a "racially discriminatory 
environment through the use of racial slurs and stereo­
types." (All). The court found that faculty and adminis­
tration have used the terms "nigger", "blue-gum" and "coon".

7



(A4). The record shows that Charles Eads admitted to having
used such terms regularly in his former position as coach,
although he claims to have been "joking". (Tr. 1:161,
5:148). He even conceded that he has been "lax" about his
language since becoming principal. (Tr. 1:167). He called
black students racially derogatory names as recently as
October, 1984, (Def. 6), and as principal Eads' used the
term "nigger" in front of both black and white students.
(Tr. 1:206). The unrebutted testimony of both principal
Eads and District students established that other District

7
personnel have regularly used racial slurs.

The school board president, Leroy Isbell, admitted in 
uncontroverted testimony that he had received a complaint 
about staff use of racial slurs although he did not remember 
when this happened. (Tr. 7:11). Yet the record shows that 
the school board did not in any way address this problem 
until after the initiation of this suit, following the 
deposition of Charles Eads, when the board issued a private 
letter of reprimand to Eads, without any public censure.
(Tr. 5:153, 6:75).

7 This includes Roy Noblett, a former coach, and Don Henley, a 
former principal. (Tr. 1:174-175, 208, 255). Mr. Hollis, 
the agriculture teacher, has used the terms "boy" and 
"nigger" in front of his class to refer to black students. 
(Tr. 2:130).

8



the removal of basketball hoops on the Humnoke school campus
"to keep blacks out of the Humnoke community after normal
school hours" and that black patrons have been denied the
same "opportunity and privileges" that whites have to use

8
school facilities after school hours and on weekends.
(A4) .

The court further found that the racial atmosphere in 
the Humnoke schools has created an "inferiority complex on 
the part of black students" which has impeded their ability 
to "learn and strive for excellence". (A4, and Tr. 
1:274-280, 2:187-188, 194-195).

5. Subjective Enforcement of the Disciplinary Policy 
In 1982, the Humnoke School District adopted a new 

disciplinary policy, labelled "Assertive Discipline". 
Teachers are to put students on notice of school rules and 
the penalties for breaking them. Appellants intend that 
students will then feel more responsible for abiding by 
those rules, so classrooms will remain more orderly.

The court also found that the school board had directed

A white District patron, whose property abuts the Humnoke 
schoolyard, testified that only whites make use of the 
school facilities for non-school related activities. (Tr. 
1:113). Two black patrons testified without contradiction 
that the District had discontinued school-based social 
events upon desegregation due to administrators' fears of 
black and white children mixing. (Tr. 1:75-76, 2:28).

9



Appellants describe the system as providing positive 
reinforcements for appropriate behavior as well as in­
cremental negative reinforcements, including corporal 
punishment, for rule infractions. (App. Br. at 7-8).

The district court found, however, that the subjective
elements of the policy provided a "protective cover" for
those teachers and administrators who might administer
discipline in a racially biased fashion. The court found
that black students are punished for certain behavior for
which similarly situated white students are not. (A8). The
court found that each teacher enjoys virtually unrestrained
discretion in setting her or his own two classroom rules in
addition to the uniform school-wide rules. Students with
several teachers throughout the day thus face such variation
in disciplinary rules that the goals of notice and order are

9
seriously undermined. (A8 and Tr. 1:281-284).

Statistical evidence in the record further demonstrates 
that the subjective and discretionary nature of the policy 
has allowed teachers to impose a disproportionate amount of 
discipline and punishment on black children in the formative 
years of kindergarten, first and second grades. The

9 The court also pointed out the fact that the District rule 
that prohibit "cruel teasing", "rude jestures" [sic] and 
"putdowns", or "caus[ing] unusual circumstances to occur" 
will be interpreted and enforced by the wholly subjective 
criteria of each individual teacher. (A8). The principal 
testified that racial epithets are not punished under these 
or any other District rules. (Tr. 6:71).

10



appellants' own expert conceded that the excessive punish­
ment of black children in those grades is statistically 
significant. (Tr. 4:209). In particular, Black students in 
1st and 2nd grade are subjected to more corporal punishment 
than white students. (Tr. 5:13, 15, and Def. 1-A, Table 3) 
In fact, the kindergarten teacher admitted that it was only 
black students who were paddled in her class. (Tr. 5:194, 
and Def. 12). Finally, while the numbers may not always 
exceed the precise level of "statistical significance", 
there is evidence in the record tending to show that blacks 
receive disproportionately more discipline and fewer rewards 
than whites throughout the rest of their school careers as 
well. (Tr. 3:57, 61-62, 4:142-143, 172).

6. At-Large Election Procedure
The five-member Humnoke school board has always been 

all white. (Tr. 1:18-19). It is elected by a staggered 
term, at-large system in which all eligible District voters 
vote annually for a single board member who serves for five 
years. There are no zone or ward residency requirements; a 
candidate may reside anywhere in the district. The can­
didate receiving the highest number of votes of all the 
votes cast is the winner. (A9).



The district court found that this election system has 
been "maintained for the discriminatory purpose and with the 
intent of limiting the opportunity of blacks to participate 
effectively in the political process, and in the election of 
board members of their choice as well as to prevent black 
candidates from being elected to the board." (A10). The 
court made a number of subsidiary factual findings to 
support its primary finding. (_Id.). A summary of those 
subsidiary findings follows:

a) Although blacks comprise 45% of the
total District population, no black has ever 
been elected to the school board because of 
racially polarized voting. The court found a 
white District patron's testimony per­
suasive when he reported that recently a 
white board member who had not intended to 
run for reelection changed his mind when he 
saw that a black man was running, and told 
the patron that he would run (reluctantly) 
because he did not "want no niggers on the 
school board". (A10 and Tr. 1:140). The 
record on which the court relied also 
contains undisputed testimony that there have 
been at least two unsuccessful black candi­
dates for the school board. (Tr. 1:75).

12



has been unresponsive to the black community
in that "blacks are not welcomed at school
board meetings and are urged to communicate
with a designated board member on a one- 

1 0
to-one basis." (A10). The court credited 
the testimony of appellees Brenda Sherpell 
(Tr. 2:20), Joe Bryant (Tr. 1-35-36) and 
Katharine Raynor (Tr. 1:271-272) who had all 
been told that they could not get on the 
school board's agenda. The court found 
that the board (and its administrators)
"have consistently put the interest of white 
patrons in the school district on a priority 
status." (A10). The court found it "sig­
nificant" that white administrators and 
faculty have not been sanctioned by the 
board for their use of racial epithets.
(A 10). The record shows that the school 
board president had been informed of the

b) The court found that the school board

For example, in 1968, the members of the Allport PTA 
attempted to petition the board for the reinstatement of 
their teachers (supra, p. 3), to no avail. Futhermore, the 
court found that District board members and administrators 
used a black man (appellee Joe Bryant, Jr.'s father) who was 
economically beholden to whites, as their conduit to appease 
the black constituency. (A5). Joe Bryant, Jr. testified 
that this is still the regular practice. (Tr. 1:34-36).

13



problem (Tr. 7:11), but that the school 
board did not address it until after the 
start of the current action, and then only 
issued a private letter of reprimand to the 
principal. (Tr. 5:153, 6:75).

c) The District has no black adminis­
trators. Several of the District's white 
administrators and faculty have been serving 
without certification, but the District has 
never hired an uncertified black person.
(A10 and supra, p. 7). The District 
retained two out of nine black teachers upon 
pro forma integration, but assigned them to 
all-black classes. The PTA was abolished at 
that time. (A10). The school superintendent 
claimed at trial that he thought that 
individualized parent-teacher conferences 
were an adequate replacement for that 
organized body of District patrons. (Tr. 
3:128).

d) The existence of the two geographi­
cally and racially distinct communities of 
Humnoke and Allport and the "deep-rooted 
racial discrimination over the years" make 
it impossible for prospective black

14



candidates to campaign effectively in 
all-white Humnoke. (A10). The Court 
found the that blacks do not have the same 
opportunities to make after-hours use of 
school facilities and that basketball 
hoops were removed from the Humnoke school 
to keep blacks out of Humnoke. (A10 and 
Tr. 1:106-108, 113).

e) Black District patrons "bear the
effect of past discrimination in educa­
tional achievements, income and low 
socio-economic status". (A10). For 
example, the record contains unrebutted 
testimony that the clear majority of 
special education students has been black 
(Tr. 5:228, 6:38), that they are generally 
poor (Tr. 5:246) and that there is a stigma 
attached to placement in special education. 
(Tr. 5:240). There was further unrebutted 
testimony that the District provides no 
college counseling even for its outstanding 
black students (Tr. 1:205) and that it does 
not pursue scholarships for its top black 
athletes. (Tr. 1:261).

15



7. District Court Order
In its opinion and order issued on September 30, 1985, 

the district court ordered the Humnoke School District to 
establish a bi-racial committee of District patrons. This 
committee was to provide input into rectifying the viola­
tions of the appellees' civil rights perpetrated by the 
appellants, particularly with regard to the racial allo­
cation of faculty, the subjective elements of the dis­
ciplinary policy and the maintenance of a racially dis­
criminatory atmosphere.

Based on its findings regarding the District's inten­
tional maintenance of discriminatory at-large election 
procedure, the court determined that this election procedure 
should be enjoined. The court has not yet issued such an 
injunction, however. At a hearing on January 2, 1986 the 
court continued to receive submissions from the parties on 
how best to resolve that situation. The Humnoke School
District presently retains the same staggered term at-large

1 1
election system.

Because the district court has not yet enjoined the holding 
of at-large elections, the District in fact held an election 
under that system as recently as March, 1986. See "Certi­
fied Copy of School Election", and "Affidavit of Myrtle 
Finch", annexed as Exhibit A to Appellees' Motion to Dismiss 
the Appeal, filed this date.

16



SUMMARY OF THE ARGUMENT
This Court should affirm the district court's opinion 

which found that the Humnoke School District operates in a 
racially discriminatory fashion and that its at-large 
election mechanism unconstitutionally dilutes black voting 
strength. The court's findings of intentional discrimi­
nation are factual findings, to be sustained under Rule 52 
unless "clearly erroneous". Anderson v. City of Bessemer
City, N.C., 470 U.S. ___, 84 L.Ed.2d, 518 (1985). Based on
the evidence in the record, and appellants' failure to 
demonstrate clear error, the district court's findings 
should be affirmed.

Furthermore, the district court applied the correct 
legal standards to determine that both the election system 
and the school board's policies are unconstitutional. The 
court's subsidiary findings on the election issue meet the 
standard for finding unconstitutional vote dilution based on 
the totality of the circumstances as established by the 
Supreme Court in Rogers v. Lodge, 458 U.S. 613 (1982) and 
this Court in Perkins v. City of West Helena, Ark., 675 
F.2d 201 (8th Cir. 1982). These findings also support 
finding a violation of section 2 of the Voting Rights Act 
(42 U.S.C. § 1973, as amended 1982, section 2) under either 
its intent or results standard.

17



The district court's findings regarding the school- 
based policies show that the District has failed to fulfill 
its affirmative obligation to eliminate all vestiges of 
racial discrimination. Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1 (1977).

I. THE DISTRICT COURT HAS NOT ENTERED A FINAL
ORDER OR JUDGMENT

Appellees submit that this Court lacks appellate 
jurisdiction for the reasons set forth in the Motion to 
Dismiss Appeal and supporting Memorandum which accompany
this brief; Jones v. Hutto, ___ U.S. ___, 88 L.Ed.2d 251
(1985). Taylor v. Board of Education, 288 F.2d 600 (2d 
Cir. 1961).

II. IF THIS COURT FINDS THAT IT HAS APPELLATE
JURISDICTION, IT SHOULD AFFIRM THE DISTRICT 
COURT'S HOLDING THAT THE HUMNOKE SCHOOL 
DISTRICT'S ELECTION SYSTEM HAS BEEN MAIN­
TAINED FOR THE DISCRIMINATORY PURPOSE OF 
LIMITING BLACKS' OPPORTUNITY TO PARTICIPATE 
EFFECTIVELY IN THE POLITICAL PROCESS AND 
ELECT SCHOOL BOARD MEMBERS OF THEIR CHOICE
A. The District Court applied the correct

standard to determine that the District's 
electoral system has been maintained with 
discriminatory intent in violation of the 
constitution

School districts are political subdivisions whose 
electoral schemes are subject to scrutiny under both the 
Constitution and the Voting Rights Act (42 U.S.C. § 1973, as

18



1 2
Independent School District, 625 F.2d 547 (5th Cir. 1980).
A finding of discriminatory intent in the maintenance by a 
school district of an at-large election system is to be made 
based on the "totality of the relevant facts." Rogers v. 
Lodge, 458 U.S. 613, 618 (1982), citing Washington v. Davis, 
426 U.S. 229, 242 (1976). Discriminatory intent may be 
proven by direct evidence, or may be inferred from available 
circumstantial evidence. Arlington Heights v. Metropolitan 
Housing Corp., 429 U.S. 252, 266 (1977). Discriminatory 
intent need only be a, not necessarily the sole, motivating 
factor to prove a constitutional violation. _ld. at 265.
This Court has recognized that "no set of factors ... is 
dispositive of the question of intent" in determining

amended, 1982). United States v. Uvalde Consolidated

Appellants note that the Board of Election Commissioners is 
not a party to this case. (App. Br. 15). It is clear that 
school boards alone have been considered the proper party 
defendant in cases challenging the school board election 
system, even where that system is statutorily mandated. 
McGill v. Gadsden County School Board,. 535 F.2d 277, 279 
(5th Cir. 1976); N.A.A.C.P. by Campbell v. Gadsden Cty. Sch. 
Bd., 691 F.2d 978 (11th Cir. 1982); see also Brown v. Bd. of 
Sch. Commissioners of Mobile County, Ala., 706 F.2d"il03, 
1104 (11 Cir. 1982) .
Appellants further suggest, again without supporting 
authority, that appellees lacked standing to bring this case 
because none of them were candidates or proposed candidates 
for the school board. (App. Br. at 15). There is no such 
standing requirement for challenging electoral practices. 
McGill, 535 F.2d at 279. Appellees assert their voting 
claims as registered voters in the District. See supra 
p. 1 .

19



whether an at-large election system is maintained in 
violation of the constitution. Perkins v. City of West 
Helena, Ark., 675 F.2d 201, 209 (8th Cir. 1982).

In the present case, the district court found that the
1 3

election procedure was unconstitutionally maintained based 
on an explicit examination of the "totality of the evidence, 
direct and circumstantial...." (A10). The evidentiary 
factors on which the court relied for its ultimate finding 
of discriminatory intent have been recognized as probative 
by both the Supreme Court in Rogers and this Court in 
Perkins.

First, the district court looked to the discriminatory 
impact of the operation of the system in that no blacks had 
ever been elected because of racially polarized voting.
(A 10). This Court has explained the probative value of such 
a finding: " [w]hile the Constitution does not guarantee
every racial group elected representation in proportion to 
its members ..., significant deviation from proportionate 
representation is indicative of discriminatory intent."

1 3 Appellants attempt to demonstrate that the district court's 
opinion is inadequate by stressing the lack of evidence of 
discriminatory animus in the original adoption of Humnoke's 
election system. The finding in this case, however, regards 
the maintenance of the system. The Supreme Court has 
recognized that an election scheme may be neutral in origin, 
but can be maintained for invidious purposes. Rogers v. 
Lodge, 458 U.S. at 622. Therefore, proof of discriminatory 
creation of a system is not essential to proving discrimi­
natory maintenance.

20



Perkins, supra, 675 F.2d at 212 (citations omitted); 
see also Rogers, supra, 458 U.S. at 623-624 ("the fact 
that [no blacks] have ever been elected is important 
evidence of purposeful exclusion." (citation omitted)).

The district court went on to review the elected body's 
lack of responsiveness to the black community. (A10). 
Appellants attempt to trivalize this finding as a discussion 
of "virtually every type of activity conducted by the 
district, except election matters." (App. Br. at 16). It 
is well established, however, that evidence both of blacks' 
access to the elected body and the body's record of ef­
fectuating policies that respond to the needs of the black 
community, is important in establishing the purposeful, 
discriminatory maintenance of an election system. Rogers, 
supra, 458 U.S. at 625-626; Perkins, supra, 675 F.2d 
at 210; N.A.A.C.P by Campbell v, Gadsden County School 
Board, supra, 691 F.2d at 983.

The court also examined the history of racial dis­
crimination in the Humnoke School District and its con­
tinuing impact on the socio-economic and educational status 
of blacks. (A10). This Court has recognized that these 
factors impede blacks' present opportunity to participate in 
the political process. Perkins, supra, 675 F.2d at 211.
The Supreme Court has specifically pointed to the effects of 
educational discrimination on political participation.

21



Rogers, supra, 458 U.S. at 624-625 (depressed socio­
economic status as a result of discrimination is, in itself, 
probative) .

The district court further found that this historical 
discrimination coupled with the District's extremely 
racially segregated geographic situation makes it impossible 
for blacks to campaign effectively among white voters.
(A 10). In Perkins, a similar finding was used to show that 
blacks lacked access to the political process. 675 F.2d at 
209-210.

The court also enumerated the mechanics of the Dis­
trict's electoral system, including the staggered term 
feature and the lack of any zone or ward residency require­
ment. (A9). This Court has recognized that staggered term 
requirements in at-large systems increase the likelihood of 
"head-to-head" races thereby frustrating the minority 
group's possibilities for single-shot voting. Such "me­
chanical" characteristics are a primary factor in finding that 
the voting scheme in question was being maintained with 
discriminatory intent. Perkins, supra, 675 F.2d at 211-212. 
The Supreme Court, meanwhile, has held lack of a zone 
residency requirement to be among the factors that "enhance 
the tendency of multimember districts to minimize the voting 
strength of racial minorities." Rogers, supra, 458 U.S. at 
627 (citing Whitcomb v. Chavis, 403 U.S. 124, 143-144

22



(1971).)* The Court recognized that this feature allows all 
candidates to come from the "lily-white" neighborhoods 
within the at-large areas. Id.

The district court, therefore, used the correct 
standard to determine that the District's electoral system 
has been maintained with a discriminatory intent because it 
assessed the "totality of the circumstances" with the 
guidance of probative factors identified by the U.S. Supreme 
Court (in Rogers) and this Court (in Perkins) .

B . The District Court's finding that the
at-large election system was maintained with 
a discriminatory intent is not clearly 
erroneous
1. The applicability of Rule 52

The appellants contend that the district court's 
subsidiary findings, as well as its ultimate finding that 
the school district's at-large election system was main­
tained with a discriminatory intent, were mistaken. Findings 
regarding discriminatory intent are factual findings, 
subject to the Rule 52 "clearly erroneous" standard.
Anderson v. City of Bessemer City, N.C., 470 U.S. ___, 84
L.Ed.2d 518 (1985). In fact, the Supreme Court has spe­
cifically asserted that a district court finding that an 
at-large election system was being maintained for uncon­
stitutional purposes is to be reviewed under the clearly 
erroneous rule. Hunter v. Underwood, ___ U.S. , 85

23



L.Ed.2d 222, 229 (1985); Rogers, supra, at 622. In White v. 
Regester, the Supreme Court recognized that the district 
court occupied "its own special vantage point" from which to 
make an "intensely local appraisal" of the existence of a 
racially discriminatory election system. 412 U.S. 755, 
769-770 (1973).

Although appellants claim the district court's factual 
findings are incorrect (see, e.g. App. Br. at 17-20, and all 
of point IV of their argument, at 29-31), nowhere do they 
mention that these findings cannot be overturned unless 
clearly erroneous. Moreover, many of the findings they 
dispute were based on the trial court's determination of the 
relative credibility of witnesses (see especially App. Br. 
at 17-18 and 19). The Supreme Court has made it plain that 
"Rule 52 demands even greater deference to the trial court's 
findings" when "findings are based on determinations 
regarding the credibility of witnesses...." Anderson v.
City of Bessemer, supra, 84 L.Ed.2d at 529. In Griffin v . 
City of Omaha, 40 FEP Cases 385 (8th Cir. March 4, 1986), 
this Court interpreted Anderson to avoid on appeal dupli­
cating the function of the trial court. While recognizing 
that factual findings, even those involving credibility 
determinations, are not completely insulated from appellate 
review, the Court in Griffin held that the burden is on

24



appellants to demonstrate clear error in the district 
court's factual findings, after construing those findings in 
the light most favorable to appellees. T̂d. at 389.

Appellants fail to discharge this burden. Indeed, the 
appellants make no effort even to introduce the Rule 52 
standard or explain how it bears on the challenged findings, 
much less offer any authority to support their position.

2. The District Court's findings are not clearly 
erroneous
a) Discriminatory impact of the election system

It is clear from the record that the Humnoke School 
Board has always been all-white. (Tr. 1:18-19, 7:9). The 
population figures on which the district court relied showed 
that blacks comprise approximately 45% of the District's 
population. This Court has found blacks were "significantly 
underrepresented" where they comprised 40% of the population 
and had been able to elect only three black aldermen to the 
city council since 1917. Perkins, supra, 675 F.2d at 213. 
Discriminatory impact based on underrepresentation is even 
more apparent in the Humnoke School District where no 
blacks have ever been elected.

It is also undisputed that there have recently been at 
least two black candidates for the school board (Tr. 1:75, 
App. Br. at 3). The court attributed their unsuccessful

25



14
candidacies to racially polarized voting. (A10). Indeed,
the atmosphere is so polarized that one white incumbent
candidate only decided to run for re-election in order to
oppose a black candidate, because he did not "want no

15
niggers on the school board."

Because there is only a single polling place in Humnoke, it 
is impossible to apply statistical analyses, such as 
bivariate ecological regression analysis or extreme case 
analysis, that are traditionally used to demonstrate 
polarized voting. Where the data necessary to make such 
analyses was unavailable in Rome, Ga., the trial court still 
found racial bloc voting based on inferences from a number 
of circumstantial factors, including testimony regarding the 
racial atmosphere in the city and results of previous 
elections. City of Rome v . United States, 472 F. Supp. 221, 
226-27 (D.D.CTI 1979). The Supreme Court held that this 
finding was not erroneous. City of Rome v. United States, 
441 U.S. 156, 183 (1980).
The district court in this case also made an appropriate 
inference of fact in finding racially polarized voting 
based on the available evidence, including evidence that no 
blacks have ever been elected and evidence of a racial 
atmosphere. That finding is borne out by the results of the 
most recent at-large school board election in March, 1986. 
(See exhibit A annexed to Appellees' Motion to Dismiss the 
Appeal). In a head to head contest between a black and 
white candidate, the black candidate received 36 out of 247 
votes cast, which is roughly consistent with defendants' 
estimate of the proportion of black registered voters in the 
District. At the Jan. 2 remedy hearing before the district 
court, the defendants claimed that blacks comprised approxi­
mately 19% of the registered voters.
Moreover, courts have found racial vote dilution even in the 
absence of finding racially polarized, or bloc, voting.
White v. Regester, supra; Zimmer v.McKeithen, 485 F.2d 1297 
(5th Cir. 1973)en banc), aff'd sub nom East Carroll Parish 
School Board v. Marshall, 424 U.S. 636 (1976).
The board member denied having made this statement (App. Br. 
at 17). However it is the trial court's job to determine 
credibility, and the court found the white patron who 
reported witnessing this statement to be an extremely 
credible witness. "... [W]hen a trial judge's finding is

26



b) The School Board's lack of respon­
siveness to the black community

The district court found a complete lack of respon­
siveness by the District to the needs and interests of the 
black community. This finding is amply supported by the 
record and is not clearly erroneous.

The district court found that blacks had been dis­
couraged from attending school board meetings, and that 
school board policies did not address blacks' needs, which 
were put on a low-priority status. (A10). Appellants 
devote an entire point of their argument to the first of 
these components of this subsidiary finding. (App. Br. at 
29-31). They assume that the court based this finding 
entirely on the testimony of a single witness, appellee Joe 
Bryant. Even if this is true, it is a credibility deter­
mination subject to a strict clearly erroneous test.
Anderson v. Bessemer, supra, 84 L.Ed.2d at 529. The truth, 
however, is that at least two other witnesses, appellees 
Brenda Sherpell (Tr. 2:20) and Katherine Raynor (Tr.
1:271-272) testified that they had sought an audience with 
the school board, but were told that agendas were set well 
in advance.

based on his decision to credit the testimony of one of two 
or more witnesses ..., that finding, if not internally 
inconsistent, can virtually never be clear error." Ander­
son, supra, 84 L.Ed.2d at 529-30.

27



The appellants further contend that "no black patrons 
of the school district testified that they had been intimi­
dated or harassed as a result of attending a Humnoke School 
Board meeting or attempting to do so." (App. Br. at 31). 
Appellants blatantly ignore Joe Bryant's testimony (Tr. 
1:32-33), essentially corroborated by the school board 
president (Tr. 7:7), that the then school board president 
had to be physically restrained from attacking Mr. Bryant at 
a school board meeting. (See supra, page 3, note 4).

The district court found that the Humnoke School Board 
has, as in Perkins, "in the past ... been unresponsive to 
the needs and concerns of black citizens, and ... such
unresponsiveness continues today." 675 F.2d at 211 (em-

16
phasis in original). The Perkins court found the unre­
sponsiveness of the city council to be partly proven by the 
fact that the city schools had not been desegregated until 
1970. _Id* at 210. Similarly, in the instant case, the 
schools remained segregated until 1968 (Pi. C-5), and 
desegregation was not voluntarily undertaken. (Tr. 7:5).
See also, Rogers v. Lodge, supra, 458 U.S. at 626 (unrespon­
siveness "forced blacks to take legal action to obtain 
school ... desegregation.").

^  The finding that blacks are not welcomed at school board 
meetings reflects, moreover, an even more egregious situa­
tion than that found by the trial court in Perkins, where 
"the city council conducts open meetings accessible to 
blacks to voice their grievances." 675 F.2d at 210.

28



Just prior to desegregation the School Board had 
completely failed to respond to a letter listing the 
legitimate grievances of black teachers teaching at the all 
black school. (Pi. A-1-A-5, reprinted at A.4, n.2). 
Furthermore, it callously and calculatedly construed their 
letter of complaint as simply a letter of resignation. The 
teachers, who had only intended to use the specter of mass 
resignation to emphasize their complaints, were then forced 
to seek reinstatement. (Pi. C-4, Tr. 8:26, 35 -35, 48-49). 
The school board refused to reinstate them (Pi. B-1) as it 
found this a convenient way to eliminate excess teachers in 
preparation for the consolidation of the black with the 
white school, by the school board president's own admission. 
(Tr. 7:4). Even within the pro forma integrated school, a 
segregated situation was allowed to persist until the early 
1970's, according to unrebutted testimony in the record.
(Tr. 1:243, 247, 6:27-8). Furthermore, as of the time of
trial, there were only two black high school teachers, no 
black elementary school teachers, and no black adminis­
trators. (PI. 29 at 5-7).

Just as the Rogers and Perkins courts found the dearth 
of black public administrators, commissioners and employees 
to be probative of unresponsiveness (458 U.S. at 626, 675 
F.2d at 210), the district court in this case relied on the 
complete absence of blacks in any administrative positions

29



in the District. (Tr. 1:18-19). The District has also 
never employed more than four black teachers at any one time 
(_id.) and no more than one of them has taught a regular, 
substantive course subject (i.e. other than special edu­
cation). (Tr. 4:21). Moreover, the District applies 
different criteria to the hiring of whites than blacks since 
the District regularly employs whites in positions for which 
they are not certified, while it has never hired an un­
certified black. (PI. 23).

The district court found the school board's unrespon­
siveness further demonstrated by its tolerance of a racially 
discriminatory atmosphere perpetuated by the use of racial 
slurs. The court found that both faculty and administrators 
have used such terms as "nigger", "blue gum" and "coon."
This finding is based in part on the fact that Charles Eads, 
the principal, conceded that he had used such language both 
in his previous position as coach, and in his current 
administrative post. (Tr. 1:161-167, 5:148). One student 
testified that she had heard him say "nigger" in front of 
students within the year before the trial. (Tr. 1:206). At 
least three other faculty members were identified as having 
used such language. (Tr. 1:174-175, 208, 255, 2:130).

Contrary to appellants' assertion that school board 
members "either had no knowledge of the use of any such 
slurs or that they vigorously disagreed with the propriety

30



thereof and reprimanded the offender" (App. Br. at 18), the 
school board president himself testified that he had, 
indeed, received a complaint about racial slurs but took no 
action on it. (Tr. 7:11). The record shows that the school 
board did nothing about the situation until after the 
commencement of this action, when they issued a letter of 
reprimand to Charles Eads. (Tr. 5:153, 6:75, Def. 6). This 
letter did nothing more than express disfavor and warn Eads 
about possible future consequences if the conduct continued; 
as the district court recognized, he was not actually "sanc­
tioned" (A10).

Finally, just as provision of inferior services helped 
to show the lack of responsiveness to blacks in Perkins v. 
West Helena, supra, 675 F.2d at 210, the district court 
here found that blacks have inferior opportunities to 
utilize the school building and grounds after school hours. 
(A10). The court cited the testimony of a white District 
patron who had been told by a school board member that 
basketball hoops were being removed from the Humnoke 
playground to keep blacks out of the town of Humnoke. (Tr. 
1:106-108). That patron, who has a clear view of the 
Humnoke school yard which abuts his property, also testified 
that he has seen only whites use the school facilities for 
non-school related activities. (Tr. 1:113).

31



c) History of racial discrimination

The court found that the District has a history of 
racial discrimination. (supra at 26-28). The district court 
found that this past discrimination manifests itself in the 
present in depressed socioeconomic status of blacks. (A10). 
Compare, Perkins v. West Helena, supra, 675 F.2d at 211. 
Unrebutted testimony in the record shows that the clear 
majority of special education students has been black (Tr. 
5:228, 6:38), that they generally come from poor families 
(Tr. 5:246) and that there is a social stigma attached to 
placement in special education. (Tr. 5:240). The District 
further hinders the socioeconomic and educational advance­
ment of even academically outstanding black students by 
providing them no guidance in applying for college, ac­
cording to unrebutted testimony. (Tr. 1:205). While /
basketball appears to be the school's predominant extra­
curricular activity (Pi. 29), the District does not pursue 
scholarships for its top black athletes. (Tr. 1:261).

d) Blacks' inability to campaign effectively 
among white voters

The district court cited the history of "deep-rooted 
racial discrimination" in the sharply geographically 
segregated school district in support of this finding. It 
is undisputed that nearly all blacks within the District

32



live in one community known as Allport, and nearly all 
whites live in a completely separate community known as 
Humnoke. (App. Br. at 3). In addition to the evidence of 
racial discrimination previously discussed, racial tension 
was so clear during the course of the trial that the court 
found it necessary to warn participants and spectators 
against threats and harassment. (Tr. 6:17).

e) The ultimate finding of discriminatory 
intent in the maintenance of the elec­
toral system is not clearly erroneous

A finding of discriminatory intent in maintaining an 
electoral system must be based on an analysis of the 
totality of the circumstances. Rogers v. Lodge, supra, 458 
U.S. at 618. This Court has, in the past, required no 
particular formula or set of components as essential to the 
establishment of such a finding. Perkins v. West Helena, 
supra, 675 F.2d at 209. In this case, the district court 
weighed all of the foregoing evidence, together with other 
evidence in the record and the facts regarding the "mecha­
nics" of the electoral system, and did find discriminatory 
intent in the maintenance of Humnoke's at-large election 
procedure. (A10). This is a factual finding subject to the 
Rule 52 clearly erroneous standard. Great deference should 
be given to the trial court's determination. Appellants 
seek to discredit testimony credited by the trial court and

33



present alternative interpretations of the evidence.
However, Rule 52 "does not entitle a reviewing court to 
reverse the finding of the trier of fact simply because it 
is convinced that it would have decided the case differ­
ently." Anderson, supra, 84 L.Ed.2d at 528.

III. IN THE ALTERNATIVE, THE DISTRICT COURT'S
FINDINGS ARE SUFFICIENT TO ESTABLISH INTEN­
TIONAL, DISCRIMINATORY MAINTENANCE OF THE 
AT-LARGE ELECTION SYSTEM IN VIOLATION OF 
SECTION 2 OF THE VOTING RIGHTS ACT

Section 2 of the Voting Rights Act of 1965, as amended
in 1982 (42 U.S.C. § 1973, hereinafter, section 2) prohibits
the use of "any voting standard, practice or procedure ...
which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or 

1 7
color.... "

A violation is established if, "based on the totality 
of the circumstances," members of a racial minority "have 
less opportunity than other members to participate in the 
political process and to elect representatives of their 
choice." 42 U.S.C. § 1973, section 2(b). The legislative

This Court is not constrained to consider the issues as 
framed by the court below, but "can affirm a judgment on any 
grounds fairly supported by the record." I.S. Joseph Co., 
Inc, v. J. Lauritzen A/S, 751 F.2d 265 (8th Cir. 1984).
This Court may prefer, therefore, to avoid reaching the 
constitutional question by affirming on the statutory ground 
instead. Escambia County, Fla. v. McMillan, 466 U.S. 48 
(1984).

34



history to the amendment makes it clear that while "plain­
tiffs need not prove a discriminatory purpose in the 
adoption or maintenance of the challenged system", a 
violation of the section may indeed be established by a 
showing of such intent. S. Rep. No. 97-417, 97th Cong., 2d 
Sess. p. 27 (hereafter S. Rep.). Consistent with the 
standard for establishing purposeful discrimination in 
violation of the Constitution, "[pjlaintiff may establish 
discriminatory intent for purposes of this section, through 
direct or indirect circumstantial evidence...." _î . at 
n .10 8; Buskey v. Oliver, 565 F. Supp. 1 473, 1481 (M.D. Ala. 
1983).

Consequently, the district court's findings of fact 
establishing a discriminatory purpose in the maintenance of 
Humnoke's at-large electoral system are germane to a section 
2 analysis. In fact, the Eleventh Circuit has held that 
its earlier finding of discriminatory intent in violation of 
the Constitution was sufficient, without further examination 
or analysis, to support finding an intentional section 2 
violation:

This showing of intent is sufficient to constitute 
a violation of section 2 just as we found that it 
was sufficient to constitute a violation of the 
fourteenth amendment.

McMillan v. Escambia County, Fla., 748 F.2d 1037, 1046 
(11th Cir. 1984).

35



The district court in this case undertook a thorough 
examination of individual factors which have been recognized 
as probative of intentional discrimination in the main­
tenance of at-large election schemes. Supra, at pp. 25-34. 
Upon weighing the "totality of the circumstances", the court 
did find that Humnoke's election system had been maintained 
"with the intent of limiting the opportunity of blacks to 
participate effectively in the political process and [to 
elect] board members of their choice...." (A10). These 
findings are not clearly erroneous. Supra at pp. 23-25.
The district court's findings are therefore sufficient to 
show an intentional violation of section 2 of the Voting 
Rights Act.

IV. THE DISTRICT COURT'S SUBSIDIARY FINDINGS ALSO
SUPPORT A FINDING OF A VIOLATION OF THE RESULTS 
STANDARD OF SECTION 2 OF THE VOTING RIGHTS ACT
Without reaching the issue of discriminatory intent,

the district court's findings are, furthermore, sufficient
to support a finding that the Humnoke at-large election
system results in the kind of unequal electoral opportunity
prohibited by section 2 of the Voting Rights Act. The
legislative history to the amendment suggests seven "typical
factors" and two "additional factors" to guide courts in
determining whether the results test in section 2 has been

36



violated. S. Rep. at 28-29. This list of factors, however, 
was not intended to be used "as a mechanical "point­
counting" device." Congress emphasized that

The failure of plaintiff to establish any factor, 
is not rebuttal evidence of non-dilution. Rather, 
the provision requires the court's overall 
judgment, based on a totality of the circum­
stances and guided by those relevant factors in 
the particular case, of whether the voting 
strength of minority voters is ... "minimized or 
cancelled out."

Id. at 29 n.118 (emphasis added). Furthermore, the 
Committee recognized that there may be other unenumerated 
factors that also indicate unequal electoral opportunity.
Id. at 29.

In the present case, the district court made findings 
that correlate with a number of the factors identified in 
the legislative history. The court found that blacks in 
Humnoke "bear the effect of past discrimination in 
educational achievements, income and low socioeconomic 
status." (A10). This element presumptively diminishes 
electoral opportunity, because "[i]nequality of access is an 
inference which flows from the existence of economic and 
educational inequalities." United States v. Dallas County 
Commission, 739 F.2d 1529, 1537 (11th Cir. 1984), quoting 
Kirksey v. Bd. of Supervisors, 554 F.2d 139, 145 (5th 
Cir.) (en banc) cert. denied 434 U.S. 968 (1977).

37



The court also found that no blacks had ever been
elected to the Humnoke school board, despite the fact that 
at least two blacks had run, and that this was a result of 
racially polarized voting. (A10). Both of these factors 
are among the primary factors identified in the Senate 
report. S. Rep. at 29. A final primary factor, regarding 
the nature of voting procedures which could operate to 
discriminate against the minority group, is met by the 
district court's recognition of the staggered term feature 
and the lack of ward residency requirements. (A9). As 
previously noted, the former element increases the chance of 
"head to head" contests (see White v. Regester, supra, 412 
U.S. at 765 (1973), and the latter allows all can­
didates to come from all-white neighborhoods. (See Zimmer 
v. McKeithen, supra, 485 F.2d at 1305.).

The district court also found one of the additional 
factors, that of the of unresponsiveness of elected of­
ficials. Supra at 27-31.

The district court did not find three of the primary 
factors listed in the senate report. This is not fatal to 
finding a violation of the section 2 results test, since the 
test is really of the aggregate circumstances. United 
States v. Marengo County Commission, 731 F.2d 1546, 1574 
(11th Cir. 1984). In McMillan, the "district court did not

38



find three of the "typical factors", yet "[t]he lack of 
these factors, ... [did] not lead [the appellate] court 
to hold for the defendants." 748 F.2d at 1045.

Taken together, the findings of the district court show 
that the result of Humnoke's at-large election system is to 
deny blacks equal electoral opportunity. This Court should 
find therefore that the at large election system violates 
section 2 of the Voting Rights Act.

V. THE DISTRICT COURT PROPERLY EXERCISED ITS
JURISDICTION TO FIND THAT THE APPELLANT SCHOOL 
DISTRICT IS DENYING APPELLEES THE EQUAL PROTEC­
TION OF THE LAW

The Humnoke school district, once mandatorily segre­
gated by race, remains infected by racial discrimination. 
Racially discriminatory conduct found by the district court 
to affect students, faculty, administrators and the racial 
composition of the school board itself, violates the 
principles of equal protection of the law established in 
Brown v. Board of Education, 347 U.S. 438 (1954). The 
different and discriminatory treatment visited upon black 
students perpetuates the worst aspects of the dual system. 
The district court concluded that "[i]t is plain from this 
record that defendants, 31 years after the Supreme Court 
handed down Brown v. Board of Education, and 17 years 
following the closing of the all-black school, have not only

39



failed to achieve a nondiscrirainatory school system, but 
have failed to recognize the 'positive' duty imposed upon 
them to do so." (A6).

Brown II was a call for the dismantling of well- 
entrenched dual systems tempered by an awareness 
that complex and multifaceted problems would 
arise which would require time and flexibility 
for a successful resolution. School boards ... 
operating state-compelled dual systems were 
nevertheless clearly charged with the af­
firmative duty to take whatever steps might be 
necessary to convert to a unitary system in 
which racial discrimination would be eliminated 
root and branch.

Green v. School Board of New Kent County, 391 U.S. 430 at 
43738 (1968).

Although the Humnoke school district is nominally 
desegregated-i.e., black and white students attend the same 
schools — racial discrimination has not been eliminated 
"root and branch." Race determines which students are 
disciplined and how discipline is applied; the likelihood 
of teacher assignment to special education classes; employ­
ment opportunities for black teachers, administrators and 
staff; the assignment of black teachers outside of core 
curricula subjects; the availability of school district 
facilities and the school district's degree of respon­
siveness to its patrons. It is precisely the spectre of 
such continued problems which has vindicated the Supreme 
Court's wisdom in recognizing that rather than dismissing 
school desegregation cases "... Brown II contemplated that

40



the better course would be to retain jurisdiction until it 
is clear that disestablishment has been achieved." Raney v . 
Board of Education, 391 U.S. 443 at 449 (1968). Whatever 
steps may previously have been taken to dismantle the dual 
school system, apparently the task has not been completed or 
the school district has engaged in new violations. In any 
event, where discriminatory conduct such as that found by 
the district court exists, the court can and must exercise 
its remedial jurisdiction.

A. The District Court's Findings on the
Discriminatory Application of the Asser­
tive Discipline Policy Justify and Require 
Judicial Intervention

The Humnoke school district maintains that the as­
sertive discipline policy is constitutionally sound and 
complies with state law. The school district asserts that 
its officials should "have inherent authority to maintain 
order and, therefore, have great latitude and discretion in 
formulating regulations and standards of conduct." (App.
Br. at 21). The school district cannot overcome the 
district court's finding that "black students are dis­
ciplined for certain behavior while similarly situated white 
students are not." (A8). This finding is entitled to 
deference under the principles of Swint v. Pullman Standard, 
456 U.S. 273 (1982), and Anderson v. City of Bessemer City, 
N. C ., supra. The finding cannot be overturned unless it is

41



clearly erroneous. Appellants proffer an alternative view 
of the facts. But "where there are two permissible views of 
the evidence," the factfinder's choice between them cannot 
be overturned. Anderson, supra, 84 L.Ed.2d at 528.

Failing to meet the clearly erroneous standard, the 
school district relies upon miscellaneous arguments, e,g., 
that [t]he court did not find racial discrimination in 
discipline against "any specified member of the minority 
community." (App. Br. at 26.) After hearing the evidence 
and examining the record, the district court concluded that 
the assertive discipline policy discriminated against "black 
students." (A8). This finding necessarily includes and 
subsumes the finding that black individuals were victims 
of racially discriminatory conduct.

The discriminatory application of the assertive 
discipline policy has consequences beyond disparate treat­
ment of individual students. Expert testimony established 
that application of the policy eroded the self-esteem of 
black students, promoted anti-social behavior and could be 
reflected in a drop in school performance. (Tr. 2:187-88). 
Dr. Bryles, plaintiffs' expert, testified that in the 
context of a "prejudicial environment," black children may 
be aware of the "lesser power status of their parents" as 
early as the age of four or five. I£. This is the context 
in which the Humnoke School District implemented its

42



discriminatory assertive discipline policy. Like enforced 
segregation, this form of discriminatory treatment of black 
children "generates a feeling of inferiority as to their 
status in the community that may affect their hearts and 
minds in a way unlikely ever to be undone." Brown v. Bd. of 
Ed,, supra, 347 U.S. at 494.

While it is true that courts are normally loathe to 
intercede in the affairs of local authorities, Milliken v. 
Bradley, 418 U.S. 717 at 741-41 (1974), it is equally 
well-established that if "school authorities fail in their 
affirmative obligation ... judicial authority may be 
invoked." Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1 at 15 (1971); Milliken v. Bradley, 433

18
U.S. 267 at 281 (1977). Once invoked, "the scope of a 
district court's equitable powers to remedy past wrongs is 
broad for breadth and flexibility are inherent in equitable 
remedies." Swann, supra. Thus, having found that "assertive

In contravention of Rule 8(i) of the Rules of this Court, 
Appellants rely heavily on James M. Thweatt, et al. v. 
Carlisle School District, et al., No. LR-C-80-812. That 
opinion is unreported and is one in which the district court 
dismissed the complaint. Even if the school district were 
entitled to rely on Thweatt, that reliance would be mis­
placed. Thweatt would be inapplicable to a case such as the 
one at bar where the district court has not only made 
findings of present systemic discrimination, but has also 
ruled that the formerly de jure Humnoke School District has 
never recognized its "positive duty" to achieve a nondis- 
criminatory school system. (A6).
Where a school district has failed to meet its affirmative 
obligation, judicial authority may be invoked.

43



discipline currently affords a protective cover for [ra­
cially discriminatory] unconstitutional conduct," (A8), the 
district court could have ordered the school district to 
abandon the entire policy. Instead, it simply requires the 
school district "to revise their assertive discipline 
procedure to the end that all subjective criteria be 
removed, and that uniform and objective guidelines be
established to eliminate the opportunity to administer

19
discipline on an uneven-handed basis." Id.

The district court's findings and order regarding the 
assertive discipline policy are supported by the record and 
should be affirmed.

B . The District Court Properly Ordered the
Humnoke School District to Remedy Faculty 
Discrimination

The district court's findings establish that the school 
district discriminated in the hiring and allocation of black 
faculty. (A5-6). Plaintiffs/appellees school children 
have standing to attack these practices. Rogers v. Paul,
382 U.S. 198 (1965); Bradley v. School Board of City of 
Richmond, 382 U.S. 103 ( 1 965); Kemp v . Beasley, 389 F.2d 178 
(8th Cir. 1968). The school district apparently does not

In view of the district court's findings regarding black 
participation in the affairs of the school district, the 
provision of a bi-racial committee which would have "input 
in the revision of the assertive discipline procedure" is 
appropriate and similarly modest.

44



argue that it has not discriminated against black faculty. 
Instead, it asserts that the district court wrongfully 
required the racial ratio of the faculty to reflect the 
percentage of black students in the school district.

A careful reading of the district court opinion reveals 
that it has imposed no such requirement. The district court 
merely requires the school district to (1) establish a 
bi-racial committee within 30 days of the opinion and order; 
(2) with the input of the bi-racial committee establish 
subjective nondiscriminatory standards for recruitment, 
hiring, promotion, dismissal, and salary schedule of the

20

The school district does assert that "the district has been 
desegregated since the late 1960's" and that "this is not a 
situation in which desegregation is initially occurring." It 
further asserts that the firing of black school teachers at 
that time is irrelevant since they "did not object to the 
manner in which their resignations occurred for a period of 
over 16 years." (App. Br. at 28-29.) The historical 
treatment of black teachers is evidence relevant to the 
establishment of racially discriminatory intent and supports 
the record of racially discriminatory treatment. Arlington 
Heights v. Metropolitan Housing Corp., supra.
In any event, the school district assidiously ignores the 
district court's finding that "[i]t is plain from this 
record that defendants, 31 years after [Brown] and 17 years 
following the closing of the all-black school, have not only 
failed to achieve a nondiscriminatory school system, but 
have failed to recognize the 'positive' duty imposed on them 
to do so." (A6). In this light, the school district's 
transgressions are not measured by its intent, for the 
measure of the post-Brown conduct of a school board under an 
unsatisfied duty to liquidate the remnants of a dual school 
system, is the effectiveness, not the purpose, of the 
actions in decreasing or increasing desegregation caused by 
that system. Dayton Board of Education v. Brinkman, 443 
U.S. 528, 538 (1979).

45



faculty and staff persons; and (3) devise a plan to achieve
21

racial balance of faculty. Although the district court does 
note that the black students comprise 40% of the district's 
enrollment, it does not impose a 40% black faculty ratio. 
While courts have utilized a standard of availability in the 
workforce in employment litigation and while Singleton v. 
Jackson Municipal Separate School District, 419 F.2d 1211 
(5th Cir. 1970) requires distribution of faculty and staff 
so that schools are not racially identifiable, an appeal 
from the district court's order below on the grounds that 
the school district brings to this court does not lie 
because:

(1) the district court's order does not 
require hiring faculty to reflect racial- 
percentages of the student population; 
and

(2) the plan requiring racial balance of 
is not before this Court.

Plaintiffs-appellees submit that accordingly the district 
court's orders are not appealable. The same is true with 
respect to the order as it relates to the assertive dis­
cipline revision. An order to submit a plan is not ap­
pealable under 42 U.S.C. § 1291 or 1292(a)(1). See Memo­
randum in Support of Appellees' Motion to Dismiss Appeal.
It may be appropriate in this case, based on this record 
which reflects numerous problems stemming from the 
disproportionately white faculty's apparent inability to 
treat black students fairly (e .g . , subjecting black students 
to racial epithets), to require faculty racial ratios to 
approximate the district-wide percentages of students by 
race. In any event, consideration of this issue is prema­
ture .

46



The district court's findings and orders regarding 
faculty should be affirmed.

C . The District Court's Finding That Black 
Patrons Are Discouraged From Participat­
ing In School Board Meetings Should Be 
Affirmed

The district court credited testimony that black 
patrons of the Humnoke School District are discouraged from 
attending or participating in school board meetings and 
cannot effectively seek redress for their grievances. On 
factual issues such as this, unless there is no possible 
reading of the record which will support its findings, 
deference should be given the district court, which heard 
the evidence, observed the witnesses, and judged their 
demeanor and credibility. See, Swint v. Pullman Standard, 
supra; Anderson v. Bessemer City, N.C., supra. On the 
record below, the district court's findings are not clearly 
erroneous and must be affirmed.

CONCLUSION
For the reasons set forth herein, and to avoid piece­

meal litigation, based on the arguments advanced in Ap­
pellees' Motion to Dismiss Appeal and supporting Memorandum, 
this Court should decline to review the district court's 
opinion and order of September 30, 1985. If in spite of the

47



absence of a final, appealable order, this Court never­
theless determines it has appellate jurisdiction, it should 
affirm the opinion below.

Respectfully submitted,

JOHN W. WALKER.
LAZAR M. PALNICK

JOHN W. WALKER, P.A.
1723 Broadway Street 
Little Rock, Arkansas 72206 
(501) 374-3758

JULIUS L. CHAMBERS 
C. LANI GUINIER 
THEODORE M. SHAW 

99 Hudson Street 
16th Floor
New York, New York 10027 
(212) 219-1900

ATTORNEYS FOR APPELLEES*

* The assistance in the preparation of this brief of
Mitra Behroozi, a third year law student at New York 
University School of Law, was invaluable.

48



CERTIFICATE OF SERVICE

I, C. Lani Guinier, do hereby certify that on April 18, 
1986, I mailed two copies of the foregoing Brief for 
Appellees to

G. Ross Smith, Esq.
1690 Union National Plaza 
Little Rock, AR 72201
Dan Bufford, Esq.
One Spring Street 
Little Rock, AR 72201

C. L a m  Guinier