Arkansas State Board of Education v. Little Rock School District Joshua Respondents' Brief in Opposition to Certiorari

    No. 87-2085

1st t h e

(Emtrl af tfjp lUttli'ii
October Term, 1988

A rkansas State B oard oe E ducation, et al.,

v.
Petitioners,

L ittle B ock School District, et al.

OK p e t it io n  for  w r it  of certiorari to t h e  u n it e d  states

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

JOSHUA RESPONDENTS’ BRIEF IN 
OPPOSITION TO CERTIORARI

J ohn W. W alker 
L azar M. P alnick 

1723 Broadway 
Little Bock, Arkansas 72206 
(501) 374-3758

W iley A. Branton, Sr.
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

J ulius L. Chambers 
J ames M. Nabrit, H I  
Norman J . Chachkin*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Respondents 
J oshua, et al.

^Counsel of Becord



Table of Contents

Table of Authorities .............
REASONS FOR DENYING THE WRIT . . .

I. There Is No Conflict Among 
The Circuits That Warrants 
Review By This Court . . .

II. The State Did Not Raise
Below Its Argument That A 
Federal Court May Not Require 
Monetary Contribution By 
State Authorities To A 
Desegregation Remedy Without 
First Finding That Local 
School Districts Are Unable 
To Pay The Costs Of The 
Remedy ...................

III. The Court Of Appeals'
Clarification of Its 1985 
Ruling Did Not Improperly 
Expand The Scope Of The 
Remedy Nor Incorrectly 
Disregard The Findings Of 
The District Court . . . .

Conclusion



Table of Authorities

Page
Cases:

Aaron v. Cooper, 156 F. Supp. 220 
(E.D. Ark. 1957), aff'd sub nom.
Faubus v. United States, 254 F.2d
797 (8th Cir. 1 9 5 8 ) ........... 6n

Brown v. Board of Education, 349
U.S. 294 (1955) ...............  3n, 7

Brown v. Board of Education, 347
U.S. 483 (1954) ...............  3n, 7

Columbus Board of Education v.
Penick, 663 F.2d 24 (6th Cir.
1981), cert, denied, 455 U.S.
1018 (1982)   13

Delta Airlines, Inc. v. August,
450 U.S. 346 ( 1 9 8 1 ) ........... 11

Kelley v. Board of Education of 
Nashville, 3 Race Rel. L. Rep.
15 (M.D. Tenn. 1 9 5 7 ) ........... 4a

Kelley v. Metropolitan County Board 
of Education, 836 F.2d 986 (6th 
Cir. 1987), cert, denied, 56 
U.S.L.W. 3864 (U.S. June 20,
1988) ..........................passim

Kelley v. Metropolitan County Board 
of Education, 615 F. Supp. 1139 
(M.D. Tenn. 1985), rev'd, 836 
F .2d 986 (6th Cir. 1987), cert, 
denied, 56 U.S.L.W. 3864 (U.S.
June 20, 1 9 8 8 ) .................  3

- ii -



Table of Authorities (continued)

Cases (continued)

Little Rock School District v. 
Pulaski County Special School 
District, 839 F .2d 1296 (8th 
Cir. 1988), pet. for cert, 
filed, 57 U.S.L.W. 3007 (U.S.
June 20, 1 9 8 8 ) ............. 7n

Little Rock School District v. 
Pulaski County Special School 
District, 778 F .2d 404 (8th 
Cir. 1985), cert, denied,
___ U.S. ___, 106 S. Ct. 2926
(1986).....................  6n,

Little Rock School District v. 
Pulaski County Special School 
District, 659 F. Supp. 363 
(E.D. Ark. 1987), aff'd in 
part and rev'd in part, 839 
F .2d 1296 (8th Cir. 1988), 
pet. for cert, filed, 57 U.S.
L.W. 3007 (U.S. June 20, 1988)

Little Rock School District v. 
Pulaski County Special School 
District, 597 F. Supp. 1220 
(E.D. Ark. 1984), aff'd in part 
and rev'd in part, 778 F.2d 
404 (8th Cir. 1985), cert.
denied, ___ U.S. ___, 106 S.
Ct. 2926 (1986) ...............

Page

16, 18

11-12

17n

6n



Table of Authorities (continued)

Page
Cases (continued):

Little Rock School District v.
Pulaski County Special School 
District, 584 F. Supp. 328 
(E.D. Ark. 1984), aff'd 778 
F .2d 404 (8th Cir. 1985),
cert, denied, ___ U.S. ___,
106 S. Ct. 2926 (1986)........  6n

Maxwell v. Board of Education of 
Davidson County, 5 Race Rel.
L. Rep. 1040 (M.D. Tenn. 1960) 4n

Milliken v. Bradley, 433 U.S.
267 (1977).....................  2n, 18

Pullman-Standard v. Swint, 456
U.S. 273 (1982) ...............  17

Reed v. Rhodes, 662 F.2d 1219 
(6th Cir. 1981), cert, denied,
455 U.S. 1018 (1982)........... 13

Roy v. Brittain, 201 Tenn. 140,
297 S . W. 2d 72 (1956)........... 3n

United States v. Arkansas, 791
F .2d 1573 (8th Cir. 1986) . . . 5n, 7

United States v. Texas Education 
Agency, 790 F.2d 1262 (5th Cir.
1986), cert, denied, ___ U.S.
___, 107 S. Ct. 874 (1987) . . .  5n

United States v. United States 
Gypsum Company, 333 U.S. 364 
(1948).......................... 17

I V



Table of Authorities (continued)

Page
Cases (continued)

Youakim v. Miller, 425 U.S. 231
(1976)...................  11

Court Rules:

Sup. Ct. Rule 1 7 .................. 15

8th Cir. Rule 16(d)   lOn

v



In the
SUPREME COURT OF THE UNITED STATES 

October Term, 1988
No. 87-2085

ARKANSAS STATE BOARD OF EDUCATION, et al..

Petitioners. 
v.

LITTLE ROCK SCHOOL DISTRICT, et al..

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the 

Eighth Circuit

JOSHUA RESPONDENTS' BRIEF 
IN OPPOSITION TO CERTIORARI

REASONS FOR DENYING THE WRIT 

I
There Is No Conflict Among The
Circuits That Warrants Review By 

This Court

Petitioners suggest that this Court 
should grant review of the decision below 
because there is a significant conflict 

among the Courts of Appeals with respect



to the application of the Eleventh Amendment 

in school desegregation actions. According 
to Petitioners, the Sixth Circuit in Kelley 
v. Metropolitan County Board of Education. 
836 F.2d 986 (6th Cir. 1987), cert, denied. 

56 U.S.L.W. 3864 (U.S. June 20, 1988) ,

held, contrary to the court below, that 

the Eleventh Amendment bars a federal court 

from requiring state agencies that committed 
Fourteenth Amendment violations to 
participate in remedying the effects of 
those violations —  including by helping 

to fund appropriate remedial and 

compensatory educational programs for the 
victims of unlawful segregation. ̂

In Kelley f many years after a 
desegregation remedy was implemented, the 

school district filed a third-party

-*-This Court specifically approved 
such remedies in Milliken y. Bradley. 433 
U.S. 267 (1977).

2



complaint against state authorities (who 
had not previously been joined as parties 
in the lawsuit), seeking reimbursement of 
its prior remedial expenditures and 
contribution toward the continuing costs 
of the remedy. Although the district court 

granted the prospective relief, 615 F. 
Supp. 1139 (M.D. Tenn. 1985), the Sixth

Circuit reversed. It noted that shortly 
after this Court's decisions in Brown I2 

and II, 3 Tennessee statutes requiring school 
segregation were declared invalid by the 

State's Supreme Court;4 that Tennessee 
state educational authorities were not 
thereafter made parties to the desegregation

2Brown v. Board of Education. 347 
U.S. 483 (1954).

3Brown v. Board of Education. 349 
U.S. 294 (1955).

4See 836 F.2d at 994, citing Roy v. 
Brittain. 2 01 Tenn. 14 0, 297S.W.2d72 (1956).

3



lawsuits against Nashville5 and Davidson 
County6 which were eventually consolidated 

in the Kelley action; that no post-Brown 
violations contributing to the perpetuation 
of school segregation were proved against 
state authorities and no relief was granted 

against them at earlier stages of the Kelley 
litigation; and that the district court's 

judgment on the third-party complaint was 
not based upon any post-Brown segregative 
conduct of state officials. See 836 F. 
Supp. at 989-90, 993-94. Under these 

circumstances, the Sixth Circuit held, the 
Eleventh Amendment barred the district

5Kellev v. Board of Education of 
Nashville. Civ. No. 2094 (M.D. Tenn.); see 
i d . . 3 Race Rel. L. Rep. 15, 17 
(M.D. Tenn. 1957)(school board invites 
Attorney General of State to appear as 
amicus curiae).

6Maxwell v. County Board of Education 
of Davidson County. Civ. No. 2956 (M.D. 
Tenn.); see id.. 5 Race Rel. L. Rep. 1040, 
1041 (M.D. Tenn. 1960)(no state officials 
named as defendants in case).

4



court's entry of an Order requiring fiscal 

contribution from the State to the local 
school district.7

This case is distinguishable from 
Kelley on two grounds. First, the Arkansas 
State Board of Education was joined as a 
party when this lawsuit was commenced in
1982.8 All of the relief ordered against

7The same result has been reached, 
although not explicitly on Eleventh 
Amendment grounds, by the Eighth Circuit 
and the Fifth Circuit. See United States
L  Arkansas. 791 F.2d 1573 (8th Cir.
1986)(order requiring state contribution 
to cost of desegregation plan reversed 
where hearings on state liability never 
held and findings on state liability never 
made); United States v. Texas Education 
Agency. 790 F.2d 1262, 1264 (5th Cir.
1986), cert, denied. ___  U.S. ___ , 107 S.
Ct. 874 (1987)(school board effort to
obtain contribution from state authorities 
toward cost of desegregation remedy 
properly denied where remedy order "seems 
to indicate unmistakably that the only 
culpable party was the [local district]").

o°The scope of state involvement in, 
and responsibility for, school segregation 
in Pulaski County was not fully litigated

(continued...)
5



the State Board by the district court in

1984.9 by the en banc Court of Appeals in
1985.10 and by the Court of Appeals in the 
decision below, of which Petitioners seek

8 (.•.continued)

prior to the filing of this case. The 
relief previously granted against state 
officials in proceedings ancillary to a 
school desegregation action involving the 
Little Rock School District, e.q. , Aaron 
v. Cooper. 156 F. Supp. 220 (E.D. Ark.
1957) , aff1d sub nom. Faubus v. United 
States. 254 F. 2d 797 (8th Cir. 1958), was 
limited and prohibitory in nature; it was 
based upon direct state interference with 
the execution of the federal district 
court's remedial orders. The findings of 
the courts below, however, delineate the 
long-maintained deliberate efforts of state 
authorities to thwart constitutionally 
mandated desegregation after Brown. See 
cases cited infra nn.9 & 10.

9Little Rock School District v, 
Pulaski County Special School District. 
597 F. Supp. 1220 (E.D. Ark. 1984); see
also id. . 584 F. Supp. 328 (E.D. Ark. 1984).

10Little Rock School District v. 
Pulaski County Special School District. 
778 F . 2d 404 (8th Cir. 1985), cert.
denied. ____  U.S. ____ , 106 S. Ct. 2926
(1986) .

6



review,11 is grounded upon a record 

demonstrating —  and findings of —  
intentionally discriminatory conduct by 
state officials which exacerbated and 

perpetuated unlawful school segregation in 
violation of the Fourteenth Amendment, 
long after the Brown decisions. In the 

absence of such findings, it is clear that 
the court below would not have required 

the monetary contribution toward a 
comprehensive remedy which Petitioners now 
attack. See United States v. Arkansas. 
supra note 7.

Second, this litigation involves a 
claim by plaintiff-intervenors Joshua, et 

al. , black schoolchildren and their parents, 
that complete relief to eliminate the

11Little Rock School District v. 
Pulaski County Special School District. 
839 F . 2d 1296 (8th Cir. 1988), pet, for
cert,__filed, 57 U.S.L.W. 3007 (U.S. June
20, 1988).

7



remaining vestiges of the dual school system
within and among the three school districts

in Pulaski County, Arkansas can be achieved
only with the participation and resources
of state, as well as local authorities.

The courts below sustained this claim

several years ago, and this Court declined

to disturb their determinations. See supra
notes 9 & 10. Thus, this case could not
be more different from Kelley, where the

Court of Appeals for the Sixth Circuit said:
It bears emphasis that we are 
not here called upon to adjudicate 
the rights of plaintiffs suing 
to obtain the equal educational 
opportunities promised them in 
Brown . . . .

836 F .2d at 989.

There is no conflict between the ruling 

below and the Sixth Circuit's decision in 

Kelley, and the instant Petition should be 
denied.

8



II
The State Did Not Raise Below 
Its Argument That A Federal Court 
May Not Require Monetary 
Contribution By State Authorities 
To A Desegregation Remedy Without 
First Finding That Local School 
Districts Are Unable To Pay The 

Costs of the Remedy

Petitioners argue that this Court 
should determine the question whether a 

federal court may order any remedy involving 
financial contribution by state agencies 
to the costs of a desegregation plan without 

first making a finding that the local 
jurisdiction is otherwise unable to 
implement the remedy.12 This, Petitioners 

claim, is the approach taken by the Sixth 
Circuit in Kelley.

12Petitioners' statement of the 
Questions Presented includes this issue as 
part of their formulation of the Eleventh 
Amendment question (Petition, at i) but 
Petitioners treat it as a separate 
argument in support of granting the Writ 
(see id. at 10-12).

9



Petitioners did not raise this claim 

in the Court of Appeals.13 It is therefore

13-rhere is only one off-hand reference 
to the issue in the State Board of 
Education's Petition for Rehearing and 
Suggestion for Rehearing En Banc:

This expansion of the 1985 remedy 
levied against the State Board 
is substantial and comes without 
any findings of fact to establish 
that these programs are needed, 
or if needed, that the LRSD is 
unable to fund them from its own 
resources.

Id. at 5. The Certificate of Counsel 
required by 8th Cir. Rule 16(d), however, 
did not identify the issue as one requiring 
decision:

(2) I express a belief, based on 
a r e a s o n e d  and s t u d i e d  
professional judgment, that this 
appeal raises the following 
questions of exceptional 
importance:

(a) Whether the extensive 
remedies now sought to be imposed 
upon the State Board of Education 
exceed the scope of its 
c o n s t i t u t i o n a l  v i o l ations 
contrary to the Supreme Court's 
ruling in Swann v. Charlotte- 
Mecklenburg Board of Education.
402 U.S. 1, 16 (1971).

10
(continued...)



not properly presented for review in the 
present Petition. E.g.. Delta Airlines. 
Inc, v. August. 450 U.S. 346, 362 (1981);

see, e.g., Youakim v. Miller. 425 U.S. 
231, 234 (1976).

Moreover, Petitioners failed to raise 
the question when they sought review of 
the en banc Court of Appeals' 1985 decision 

which instructed (without determining that 
the local school system could not afford 
the remedy), that the "additional cost of 

[compensatory and remedial] programs [in 
the Little Rock district] shall be paid 
for by the State of Arkansas," 778 F.2d at

13(...continued)

(b) Whether the order for 
extensive additional funding by 
the State Board of Education 
violates the Eleventh Amendment 
to the United States Constitution 
under Milliken v. Bradley. 433 
U.S. 267 (1977).

Petition for Rehearing and Suggestion for 
Rehearing En Banc, at iii.

11



435; Supplemental Appendix to Petition for 
Writ of Certiorari, at 114.14 They have 
accordingly waived their right to seek 
review on the issue at this time.15

Even if that were not the case, there 

is no inconsistency between the holding 
below and the approach of the Sixth Circuit 
in Kelley. Nothing in the Kelley opinion 

suggests that the Sixth Circuit would 
disapprove an order that required state 

authorities, who themselves had violated 

the Fourteenth Amendment, to participate 
in the implementation of an adequate remedy, 

through financial contribution or otherwise. 

The Sixth Circuit approved such orders in

14 S ee Petition for Writ of 
Certiorari, No. 85-1547.

15See also Petition, at 15 (" . . .
the State Board . . . believed it was
completely satisfying its constitutional 
obligations by stipulating to and funding 
the implementation of various magnet 
schools and other remedies reguired of it 
by the 1985 opinion11) (emphasis supplied) .

12



Columbus Board of Education v. Penick. 663 
F .2d 24 (6th Cir. 1981), cert, denied. 455 

U.S. 1018 (1982); Reed v. Rhodes. 662 F.2d 
1219 (6th Cir. 1981) , cert, denied. 455 
U.S. 1018 (1982).

The discussion in the Kelley opinion 
about the local school district's ability 
to implement a court-ordered desegregation 
remedy without fiscal assistance from state 
authorities appears immediately after the 

court's language emphasizing that the 
plaintiff black schoolchildren in Kelley 
made no claims against the State. See 836 
F.2d at 989-90. In that context, the 

discussion in Kelley implies that the Sixth 
Circuit would require monetary contribution 

by state authorities, even in the absence 

of findings of state liability such as 

were made here, if the local district could 
not adequately fund a program of relief 

which was constitutionally required in order

13



to vindicate the rights of the minority 
pupils.

In view of the extensive constitu­
tional violations which the courts below 
found to have been committed by Petitioners, 

their claim to immunity from orders 
requiring them to participate, along with 

local school systems, in redressing the 
continuing effects of those violations is 
plainly insubstantial and does not merit 
plenary review by this Court.

Ill

T h e  C o u r t  Of A p p e a l s '  
Clarification Of Its 1985 Ruling 
Did Not Improperly Expand The 
Scope Of The Remedy Nor 
Incorrectly Disregard The 
Findings Of The District Court

In a final attempt to contrive a 

justification for granting review of the 

decision below, Petitioners assert that 
the panel's opinion improperly "expanded"

14



the scope of the State Board's remedial 
obligations beyond that imposed by the 

earlier en banc opinion in 1985 and failed 
to give appropriate "deference" to the 

district court's conclusions concerning 
the appropriate scope of the remedy required 
by that earlier opinion. These

representations are completely without 

foundation; in any event, they hardly 
represent the type of important, recurring 

question that demands the time and attention 
of this Court. See Sup. Ct. Rule 17.

The decision below marked no departure 
from the earlier holding of the en banc 
court. The panel merely clarified the 

intended meaning of the phrase "all- or 

nearly all-black" used in the 1985 en banc 
decision, which had been construed too 

narrowly and literally by the district

15



court on remand from that ruling. See 839 
F . 2d at 1307; Pet. App. at A-25.16

Petitioners pressed their interpre­
tation by seeking rehearing of the panel's 
ruling by the en banc Court of Appeals, 

but it was denied without dissent (Pet. 
App. at A-l) . It is thus reasonable to 
conclude that the judges who joined the 

majority opinion for the en banc court in 

1985 accept the interpretation adopted and 
clarified by the panel.

S i m i l a r l y ,  w h a t  Pe t i t i o n e r s  
characterize as the district court's 
"finding" ("that this is not an appropriate 

case for State funding of compensatory and 

remedial education programs" (Pet. at

_16Similarly, the panel opinion 
clarified the intentions of the en banc 
court in establishing remedial guidelines 
for student assignment in Pulaski County. 
839 F.2d at 1304-05; Pet. App. at A-19 to 
A-20.

16



18) ) ,17 to which the court below ostensibly- 
failed to give appropriate deference, rested 
entirely upon the very misconstruction of 
the en banc court1s opinion that the 

decision below corrected. Under these 
circumstances, there was no violation of 

the "clearly erroneous" rule18 because the 
trial court's statement is not a factual 
finding, and even if it were, it was 
obviously the product of a mistake of law. 

Pullman-Standard v. Swint. 456 U.S. 273, 
287 (1982); United States v. United States 
Gypsum Company. 333 U.S. 364, 394 (1948).

17The district court said (Petition 
at 18, quoting 659 F. Supp. at 366):

Since there are no all-black 
schools in the LRSD student 
assignment plan, the conditions 
are not present which would 
trigger state financing of 
compensatory education as is 
obvious from the above language 
[from the 1985 en banc opinion,
778 F.2d at 435].

18See Petition at 19 n.5.

17



Conclusion

In Milliken v. Bradley. 433 U.S. 267,
287-88 (1977), this Court recognized that:

Children who have been [as a result 
of a constitutional violation] 
educationally and culturally set apart 
from the larger community will 
inevitably acquire habits of speech, 
conduct, and attitudes reflecting 
their cultural isolation. . . . Pupil 
assignment alone does not automatically 
remedy the impact of previous, unlawful 
educational isolation; the consequences 
linger and can be dealt with only by 
independent measures. In short, speech 
habits acquired in a segregated system 
do not vanish simply by moving the 
child to a desegregated school. The 
root condition . . . must be treated
directly by special training at the 
hands of teachers prepared for that 
task.

The clarification of the 1985 en banc 

opinion made by the panel below, and its 

remedial instructions to the district court, 

are faithful to that principle. See 839 

F . 2d at 1308. There is no basis for review

18



by this Court, and respondents respectfully 
pray that the writ be denied.

Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN*

99 Hudson Street,
16th floor
New York, NY 10013
(212) 219-1900

JOHN W. WALKER
LAZAR M. PALNICK 

1723 Broadway 
Little Rock, AR 72206 
(501) 374-3758

WILEY A. BRANTON, SR. 
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Attorneys for Respondents 
JOSHUA et al.

(*Counsel of Record)

19



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