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

    UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

IN THE

No. 18,528. 
Civil.

MOSES K ELLEY, On Behalf of Himself and His Minor Children 
Moses Kelley, Jr., et al.,

Appellants,
vs.

THE ALTHEIM ER, ARKANSAS PUBLIC SCHOOL DISTRICT NO. 22, 
a Public Body Corporate, and THE J. E. STOWERS 

CONSTRUCTION COMPANY,
Appellees.

BRIEF FOR APPELLEES.

E. HARLEY COX, JR.,
Simmons National Building,

Pine Bluff, Arkansas 71601, 
HERSCHEL H. FRIDAY and 
ROBERT V. LIGHT,

1100 Boyle Building,
Little Rock, Arkansas 72201, 

Attorneys for Appellees.

St . L ouis L aw  P rinting  Co., I nc., 411-15 N. E ighth  St., 63101. C Entral 1-4477.



INDEX.

Page

Statement ......................................................................  1
Statement of points to be argued ............................... 7
Argument ......................................................................  9

Introduction ..............................................................  9
I. The constitutional duty of appellees is to end 

discrimination based on race, but this does not 
include an affirmative duty to mix the races . . IQ

II. Appellees’ freedom of choice plan is a constitu­
tionally permissible procedure for achieving a
non-discriminatory school system ....................  20

III. The District Court correctly dismissed the com­
plaint because the proof failed to demonstrate 
the violation of appellants’ constitutional rights 25

Conclusion ...................................................................... 26

Cases Cited.
Avery v. Wichita Independent School District, 241 F.

2d 230 (5 Cir. 1957) ............................................... 7,12
Bell v. School City of Gary, 324 F. 2d 209 (7 Cir.

1963), cert. den. 377 U. S. 924 ..............................  13
Borders v. Rippy, 247 F. 2d 268 (5 Cir., 1957) ......... 7,12
Bradley v. School Board of City of Richmond, 317 F.

2d 429 (4 Cir., 1965) .......................... 7,8,12,15,20,23
Briggs v. Elliott, 132 F. Supp. 776 (1955) . . .  .7,11,12,19 
Brown v. Board of Education, 347 U. S. 483 and 349 

U. S. 298 ......................................7,8,9,11,15,16,18,19
Calhoun v. Latimer, 377 IT. S. 263 ...........................8,21
Clark v. The Board of Education of the Little Rock 

School District (8 Cir., No. 18,368, decided Decem­
ber 15, 1966) ................................................. 7,8,20,23,24



11

Davis v. Board of School Commissioners, 364 F. 2d
896 (5 Cir., 1966) .....................................................7,13

Deal v. Cincinnati Board of Education, 369 F. 2d 55
(6 Cir., 1966) ................................................. 7,8,13,24

Dermott Special School District v. John W. Gardner 
and Harold Howe, II, United States District Court,
E. D. (Ark.), No. PB 66 C 9 4 ..................................  19

Downs v. Board of Education of Kansas City, 336 F.
2d 988 (10 Cir., 1964) ..............................................7,13

Goss v. Board of Education of Knoxville, 373 IT. S.
683 ..............................................................................8,21

Jeffers v. Whitley, 309 F. 2d 621 (4 Cir., 1962) . . . .  7
Kemp v. Beasley, 352 F. 2d 14 (8 Cir., 1965) ............  7, 8
Rogers v. Paul, 232 F. Supp. 833 (1964) ....................8,22
Smith v. Board of Education of Morrilton School Dis­

trict No. 32, 365 F. 2d 770 (8 Cir. 1966) .............. 8,21
Springfield School Committee v. Barksdale, 348 F. 2d

261 (1 Cir., 1965) .................................................... 7
Swann v. Charlotte-Mecklenburg Board of Education,

369 F. 2d 29 (4 Cir., 1966) ......................................... 7,12
United States v. Jefferson County Board of Educa­

tion (5 Cir., No. 23,345, decided December 29,
1966) ................................................................. 7,9,13,16

Statutes Cited.
42 U. S. C. A. 2000c-6 (a)
42 U. S. C. A. 2000c-(c)

Miscellaneous.
253 F. 2d, In Memoriam Honorable John Johnston 

Parker, p. 17 .............................................................7, 20

7.16
7.16



IN THE

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

No. 18,528. 
Civil.

MOSES K ELLEY, On Behalf of Himself and His Minor Children, 
Moses Kelley, Jr., et al.,

Appellants,
vs.

THE ALTHEIMER, ARKANSAS PUBLIC SCHOOL DISTRICT NO. 22, 
a Public Body Corporate, and THE J. E. STOWERS 

CONSTRUCTION COMPANY,
Appellees.

BRIEF FOR APPELLEES.

STATEMENT.

That portion of appellants’ Statement ending with the 
fourth line on page 6 is substantially accurate. However, 
the remark on page 3 that the district court viewed the 
Department of H. E. W. to now have primary responsi-



— 2 —

bility for supervising school desegregation might prompt 
the inference that the court somehow evaded its responsi­
bility in this matter. Such is not the case. The opinion of 
the district judge carefully points out that the function 
of the courts in these cases is to test the conduct of the 
defendants against the requirements of the 14th Amend­
ment to the Constitution (R 233). On the other hand, the 
objectives being pursued by the executive agency are 
much broader and “ may well go beyond what the Consti­
tution requires” (R 234).

In discharging its judicial obligation the district court 
reviewed in detail the portions of appellees’ desegregation 
program and administrative activities challenged by ap­
pellants, and found them to be constitutionally permissible. 
Quite properly, it did not undertake to substitute its judg­
ment for that of the local school authorities (as is done by 
the Department of H. E. W. in the promulgation and en­
forcement of its guidelines) by selecting which of the 
constitutionally permissible alternatives would be pursued.

The balance of appellants’ Statement is a partisan sum­
mary of the testimony of two witnesses. We will attempt 
to correct the major misimpressions it conveys.

The “ substantial field investigation” made by Dr. Lie- 
berman in the appellant school district consisted of a 
visit made to the district on a single day during which he 
observed the physical plant and talked with some of the 
school personnel (R 40-41). Appellees attempt to bolster 
his asserted conclusion that the construction plans of 
the Board must be racially motivated because they were 
in the process of formulation as early as 1957 when the 
district was being operated on a segregated basis. They 
do this by saying that the principal of the Martin School 
testified that the construction in question was planned in 
1957 “ when no thought was given by the school system 
administration to other than segregated dual operation.”



3

The principal’s testimony was that the administration 
projected its planning for new construction 10 years 
ahead, continually added projects as time passed (R. 109), 
and that in 1957 the district had not formulated a de­
segregation plan (R. 110). This Negro principal also tes­
tified that he participated in this planning (R. 109), and 
that perpetuating desegregation (segregation) was not 
discussed (R. 111).

The assertion that there was no community involve­
ment in the planning of the new construction is refuted 
by the record. It was discussed in P. T. A. meetings in 
both schools, literature concerning it was sent home with 
each school child, there was substantial newspaper pub­
licity concerning the proposed construction, and a bond 
issue to finance the project was approved by the patrons 
in the annual school election (R. 34, 223). Further, the 
Superintendent was unaware of any opposition to the 
proposed construction program until this suit was filed 
(R. 222).

The balance of the summary of Dr. Lieberman’s testi­
mony consists of his opinions and conclusions to the 
effect that it would be better from an educational view­
point to utilize the school plant differently which use, in­
cidentally, would involve the complete integration of all 
students at the same grade levels in one or the other of 
the school plants without regard to the preferences of 
the students or their parents. On this testimony the dis­
trict court found that Dr. Lieberman’s views offered “ a 
constitutionally permissible” alternative, “ but it is not 
the only solution which the Constitution permits” (R. 
246). The court also found that the Board was not moti­
vated by a desire to perpetuate segregation in its con­
struction planning, and that, in fact, the construction 
would not tend to have that effect (R. 246).

Thus, the court left it to the local school authorities 
to choose between Dr. Lieberman’s opinions and the



Superintendent’s professional judgment that the proposed 
construction would permit better utilization of existing 
support facilities (R. 33), would permit better utilization 
of land already owned by the District [there is insufficient 
space on either of the school sites for all three of the 
proposed buildings (R. 197)], and would avoid exceeding 
eighteen teaching stations which he and other educators 
considered to be the desirable maximum for an elementary 
school (R. 180-1).

Certainly it is common knowledge that in this area of 
expertise, like most others, there are as many varying 
opinions as there are experts called upon to express them. 
As the Superintendent testified (R. 144):

A. I do not know what other educators subscribe 
to. I do know that in the field of education is like 
a lot of other professions, there is no unanimity of 
opinion as to what’s good and what’s bad.

In summarizing Superintendent Walker’s testimony, 
appellants state at page 12 of their brief that he related 
certain comparative per pupil expenditure figures. Ac­
tually, he did not so testify. The figures were simply 
announced to the court by appellants’ attorney (John W. 
Walker) and presumably were taken from an audit con­
ducted by a C. P. A. (R. 200-201). Superintendent Walker 
did testify, however, that the audit did not accurately 
reflect the actual comparative per pupil expenditures be­
tween the schools (R. 219).

Certain differences between the two school complexes 
are mentioned. A fair reading of the record in this con­
text will demonstrate that each of the schools enjoy some 
advantages over the other—they simply are not identical. 
The district court so found (R. 248):

“ Actually, apart from formal accreditation there is 
no marked difference between the two school systems. ’ ’

—  4 —



There was much inquiry at trial, purportedly for the 
purpose of showing the disposition of the appellees to dis­
criminate against the Negro students, about alleged misuse 
of funds received by the District under Public Law 89-10. 
The court said (R. 247):

“ The Court does not find that there was any real 
misuse of the funds and does not find that there was 
any intent to discriminate against under privileged 
Negro children.”

The record reflects that about 80% of these funds were 
allocated to the Martin School (R. 193), and appellants’ 
counsel contended that 87% of the eligible students were 
Negroes (R. 203).

Other pertinent facts developed in the testimony include 
agreement between Dr. Lieberman (R. 97) and Superin­
tendent Walker (R. 143) that a satisfactory pupil-teacher 
ratio was maintained at both school complexes. The Dis­
trict elected to desegregate all twelve grades during the 
first year although the H. E. W. guidelines permitted 
three years to reach this goal (R. 230). During the first 
year of desegregation a substantial step in the difficult area 
of faculty desegregation was taken resulting in the assign­
ment of three white teachers to the Martin schools (R. 28). 
It is noted that this would substantially comply with the 
faculty desegregation requirements of the much more 
rigorous H. E. W. giudelines for the current school 
year.

The first named plaintiff, Moses Kelley, was called as a 
witness on behalf of appellants for the apparent purpose 
of showing that he was not afforded an opportunity to 
make a free choice of school assignment for his children 
and that there had been coercion on intimidation in con­
nection with the exercise of the choices. When it appeared 
that his testimony would not support such a claim, it was



6

abandoned. Appellants have even elected to omit his tes­
timony from the printed Record.* 1

Appellants stipulated that they received “ personal and 
direct notice by letter from the School District brought 
to you by your child or children that you would express a 
choice of the school to be attended by your child or chil­
dren during the 1965-1966 school year without restriction 
on the basis of race, color or previous school attendance” 
(R. 18).

The Record supports no inference but that the desegre­
gation plan was administered fairly and with an even 
hand, and that there was a free and unfettered choice of 
school assignment made on behalf of each child in the 
District. There is no evidence to the contrary.

x Kelley testified th a t he moved into the appellee D istrict from  the 
W abbaseka School D istrict during 1965 and th a t while he didn’t  receive 
a slip (choice form ) w hen he took his children to  register, he knew  he 
was entitled  to make a choice. The following is h is testim ony a t page 
177 of th e  T ranscrip t:

Q. All right, you cam e into the d is tric t a fter May of 1965? A. I 
guess so, I’m not sure.

Q. Now, did you know th a t you could send your child to e ither 
th e------ A. Yes, I knowed.

Q. Did you ask anybody about how to go about doing th a t?  A. No,
I didn’t.

Q. Now, did you ta lk  to  the P rincipal about it?  A. I didn’t  th ink 
to ask him, because I figured i t  wouldn’t  do any good.

The clerical oversight th a t resulted  in  assignm ent of th e  Kelley chil­
dren w ithout execution of a choice form is more coherently  explained in 
the response to In terrogatory  No. 5 (R. 31-2). They were, however, as­
signed to  the school to which they  w ere presented  for registration .

On the coercion or intim idation point, Kelley testified under exam ina­
tion by h is own a tto rney  (T ranscrip t p. 179):

Q. Do you know of anybody who has failed to  send th e ir child to  
a w hite school because of the fact they felt they m ight be pu t off 
som ebody’s land? A. No, they haven’t  said anything if they had.



STATEMENT OF POINTS TO BE ARGUED.

I.

The Constitutional Duty of Appellees Is to End Dis­
crimination Based on Race, But This Does Not Include an 
Affirmative Duty to Mix the Races.

Avery v. Wichita Independent School District, 241 
F. 2d 230 (5 Cir., 1957);

Borders v. Rippy, 247 F. 2d 268 (5 Cir., 1957);
Bradley v. School Board of City of Richmond, 317 

F. 2d 429 (4 Cir., 1965);
Briggs v. Elliott, 132 F. Supp. 776 (1955);
Brown v. Board of Education, 347 U. S. 483 and 349 

IT. S. 298;
Clark v. The Board of Education of the Little Rock 

School District (8 Cir., No. 18,368, decided De­
cember 15, 1966);

Davis v. Board of School Commissioners, 364 F. 2d 
896 (5 Cir., 1966);

Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6 Cir., 1966);

Downs v. Board of Education of Kansas City, 336 F. 
2d 988 (10 Cir., 1964);

Jeffers v. Whitley, 309 F. 2d 621 (4 Cir., 1962);
Kemp v. Beasley, 352 F. 2d 14 (8 Cir., 1965);
Springfield School Committee v. Barksdale, 348 F. 2d 

261 (1 Cir., 1965);
Swann v. Charlotte-Mecklenburg Board of Education, 

369 F. 2d 29 (4 Cir., 1966);
United States v. Jefferson County Board of Educa­

tion (5 Cir., No. 23,345, decided December 29, 
1966);

42 U. S. C. A. 2000c-6 (a);
42 U. S. C. A. 2000c-(c);
253 F. 2d, In Memoriam Honorable John Johnston 

Parker, p. 17.

—  7 —



II.

Appellees’ Freedom of Choice Plan Is a Constitutionally 
Permissible Procedure for Achieving a Non-Discriminatory 
School System.

Bradley v. School Board of City of Richmond, 317 
F. 2d 429 (4 Cir., 1965);

Brown v. Board of Education, 347 U. S. 483 and 349 
U. S. 298;

Calhoun v. Latimer, 377 U. S. 263;
Clark v. The Board of Education of the Little Rock 

School District (8 Cir., No. 18,368, decided De­
cember 15, 1966);

Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6 Cir., 1966);

Goss v. Board of Education of Knoxville, 373 U. S.
683;

Kemp v. Beasley, 352 F. 2d 14 (8 Cir., 1965);
Rogers v. Paul, 232 F. Supp. 833 (1964);
Smith v. Board of Education of Morrilton School Dis­

trict No. 32, 365 F. 2d 770 (8 Cir., 1966).

III.

The District Court Correctly Dismissed the Complaint 
Because the Proof Failed to Demonstrate the Violation of 
Appellants’ Constitutional Rights.

— 8 —



9

ARGUMENT.

Introduction.

The issue pursued most vigorously by appellants in the 
early stages of this litigation pertained to the proposed 
construction of school facilities. While the district court 
apparently had some reservations about the scope of its 
jurisdiction to interfere with the details of a school con­
struction program (R. 245), it nevertheless heard the 
proof on that issue and found against appellants on the 
facts. It found that the Board was not racially motivated 
in connection with its construction plans, and that the 
proposed construction would not have the effect of per­
petuating segregation (R. 246).

Appellants did not seek a timely review of that deci­
sion, the construction is now completed, and the construc­
tion issue is moot.

The appellants now use this appeal as a vehicle to chal­
lenge the appellees’ freedom of choice desegregation plan 
as constitutionally inadequate. It is not claimed that it 
was unfairly drawn. Indeed, it was drawn by the United 
States Department of Health, Education and Welfare. It 
is not claimed that it was unfairly administered. There 
is no evidence of coercion or intimidation in connection 
with the exercise of the choices of school assignment.

The claim is that the plan is not producing enough 
mixing of the races. The argument advanced by appel­
lants, that the Constitution commands integration of the 
races in the public schools, has been rejected by every 
authoritative court to which it has been addressed in the 
last decade, including this one, until United States of 
America et al. v. Jefferson County Board of Education 
et al. (5 Cir., No. 23345), was decided by a two judge



10

majority on December 29, 1966. We will demonstrate the 
lack of support in either precedent or logic for that de­
cision.

I.
The constitutional duty of appellees is to end discrim­

ination based on race, but this does not include an affirma­
tive duty to mix the races.

Appellants make the familiar argument that the Brown 
decisions impose on the public school authorities the “ af­
firmative duty to disestablish segregation” . The context 
in which they use the phrase is that the duty is to in­
tegrate, or purposely mix, students of different races. 
Brown did not so hold. In Brown v. Board of Education, 
349 U. S. 298, the Court characterized its holding in the 
decision rendered a year earlier (347 IT. S. 483) in this 
language:

“ The opinions of that date, declaring the funda­
mental principle that racial discrimination in public 
education is unconstitutional, are incorporated herein 
by reference.”

Thus it is discriminatory classification by a State agency 
based on race that is condemned. There is no suggestion 
of a duty to affirmatively mix the races. This is con­
firmed by the direction given by the Supreme Court to 
the lower courts in remanding the cases. It directed at 
349 IT. S. 301 that decrees be entered requiring the school 
authorities

“ * * * to admit to public schools on a racially 
nondiscriminatory basis with all deliberate speed 
the parties to these cases.”

It did not direct that they be admitted to schools which, 
by design or manipulation of assignments, contained stu­
dents of another race.

The Court had before it in Brown the express question 
of whether its constitutional holding required a decree



11 —

fixing geographical zoning as the sole lawful method of 
affording Negro students the rights the Court had con­
cluded they possessed. In Brown I the Court expressly 
called for further argument and briefing on the question, 
in light of its decision therein announced:

“ (a) would a decree necessarily follow providing 
that, within the limits set by normal geographic 
school districting, Negro children should forthwith 
be admitted to schools of their choice, * *

Of course, in Brown II it did not adopt the rigid view 
that the Constitution required school assignment solely 
on a geographical basis. It left to the local school au­
thorities, subject to the superintendence of the district 
courts, the flexibility of fashioning the methods by which 
the transition would be made from imposed segregation 
to a “ racially nondiscriminatory” (it did not say “ inte­
grated” or “ racially mixed” ) procedure for school as­
signment.

The first careful analysis of the Supreme Court’s intent 
in the Brown decisions was made by Judge Parker in 
Briggs v. Elliott, 132 F. Supp. 776:

“ It has not decided that the states must mix per­
sons of different races in the schools or must require 
them to attend schools or must deprive them of the 
right of choosing the schools they attend. # * * if the 
schools which it maintains are open to children of 
all races, no violation of the Constitution is involved 
even though the children of different races volun­
tarily attend different schools, as they attend different 
churches. * * * It (the Constitution) does not forbid 
such segregation as occurs as the result of voluntary 
action. ’ ’

This view has been adopted by the Court of Appeals 
of every circuit where there has been significant litiga­
tion spawned by Brown. In Springfield School Committee 
v. Barksdale, 348 F. 2d 261 (1 Cir., 1965), the First Cir­



12

cuit Court said, referring to the opinion of the district 
judge it was reversing:

“ Certain statements in the opinion, notably that 
‘there must he no segregated schools,’ suggest an 
absolute right in the plaintiffs to have what the 
court found to be ‘tantamount to segregation’ re­
moved at all costs. We can accept no such consti­
tutional right.”

The Fourth Circuit has repeatedly embraced the Briggs 
principle. See Jeffers v. Whitley, 309 F. 2d 621, 627 (4 
Cir., 1962) and Bradley v. School Board of City of Rich­
mond, 317 F. 2d 429, 438 (4 Cir., 1963), reversed on other 
grounds, 382 U. S. 103. As recently as Swann v. Char- 
lotte-Mecklenburg Board of Education, 369 F. 2d 29 (4 
Cir., 1966) the Fourth Circuit Court, sitting en banc, said: 

“ Whatever the Board may do in response to its 
own initiative or that of the community, we have 
held that there is no constitutional requirement that 
it act with the conscious purpose' of achieving the 
maximum mixture of races in the school population.”

The Fifth Circuit said in Avery v. Wichita Independent 
School District, 241 F. 2d 230 (5 Cir., 1957):

“ The Constitution as construed in the School Seg­
regation Cases, Brown v. Board of Education (cita­
tion), and Bolling v. Sharpe (citation), forbids any 
state action requiring segregation of children in pub­
lic schools solely on account of race; it does not, how­
ever, require actual integration of the races. As was 
well said in Briggs v. Elliott, * *

The Court then proceeds to quote Judge Parker’s lan 
guage from that decision. Again in Borders v. Rippy, 
247 F. 2d 268 (5 Cir., 1957) that Court said:

“ The equal protection and due process clauses of 
the Fourteenth Amendment do not affirmatively com­
mand integration, but they do forbid any state action



13 —

requiring segregation on account of their race or 
color of children in the public schools.”

That Court repeatedly embraced this view until Davis v. 
Board of School Commissioners of Mobile County, 364 F. 
2d 896 (5 Cir., 1966), when it expressed doubt as to its 
validity, and United States v. Jefferson County Board of 
Education, supra, where two judges overruled what they 
and their colleagues had held to be the settled law in 
that circuit for a decade.

The Sixth Circuit’s view was expressed as recently as 
December 6, 1966 in Deal v. Cincinnati Board of Educa­
tion, 369 F. 2d 55 (6 Cir., 1966), when it rejected the 
argument that school authorities had an affirmative duty 
to overcome racial imbalance in this language:

“ We hold that there is no constitutional duty on 
the part of the Board to bus Negro or white children 
out of their neighborhoods or to transfer classes for 
the sole purpose of alleviating racial imbalance that 
it did not cause, nor is there a like duty to select 
new school sites solely in furtherance of such pur­
pose.”

The Seventh Circuit’s view was expressed in Bell v. 
School City of Gary, 324 F. 2d 209 (7 Cir., 1963), cert, 
den. 377 U. S. 924, where the court said:

“ Plaintiffs are unable to point to any court decision 
which has laid down the principle which justifies 
their claim that there is an affirmative duty on the 
Gary School System to recast or realign school dis­
tricts or areas for the purpose of mixing or blending 
Negroes and whites in a particular school.”

The views of the Tenth Circuit are announced in Downs 
v. Board of Education of Kansas City, 336 F. 2d 988 (10
Cir., 1964), cert. den. 380 U. S. 914, where it is said:

“ Appellants also contend that even though the 
Board may not he pursuing a policy of intentional



14 —

segregation, there is still segregation in fact in the 
school system and under the principles of Brown v. 
Board of Education, supra, the Board has a positive 
and affirmative duty to eliminate segregation in fact 
as well as segregation by intention. While there seems 
to he authority to support that contention, the better 
rule is that although the Fourteenth Amendment pro­
hibits segregation, it does not command integration 
of the races in the public schools and Negro children 
have no constitutional right to have white children 
attend school with them.”

While this Court mentioned Judge Parker’s language 
in Briggs critically in Kemp v. Beasley, 352 F. 2d 14 (8 
Cir., 1965), the reference was in the nature of limitation 
rather than rejection, and Judge Gibson went on to say: 

‘ ‘ This well-known dictum may be applicable in some 
logical areas where geographic zones permit of them­
selves without discrimination a segregated school 
system, but must be equally inapplicable if applied 
to school systems where the geographic or attendance 
zones are bi-racially populated. Any school system 
admittedly practicing segregation by the use of dual 
attendance zones based upon race is discriminatory 
and certainly does not comport with the requirements 
of Brown.”

Thus it was the admitted existence of racially drawn dual 
attendance zones that made the principle inapplicable in 
Kemp. In the case at bar there are no attendance zones 
and all students are afforded free choice to attend either 
school in the District without regard to their race.

Judge Gibson, writing for the Court in Clark v. The 
Board of Education of the Little Rock School District
(8 Cir., No. 18,368), makes it clear that the position of 
this Circuit, like that of the First, Fourth, Sixth, Seventh 
and Tenth, is that the Constitution does not command 
integration of the races:



‘1 Though the Board has a positive duty to initiate 
a plan of desegregation, the constitutionality of that 
plan does not necessarily depend upon favorable sta­
tistics indicating positive integration of the races. 
The Constitution prohibits segregation of the races, 
the operation of a school system with dual attendance 
zones based upon race, and assignment of students on 
the basis of race to particular schools. If all of the 
students are, in fact, given a free and unhindered 
choice of schools, which is honored by the school 
board, it cannot be said that the state is segregating 
the races, operating a school with dual attendance 
areas or considering race in the assignment of stu­
dents to their classrooms. We find no unlawful dis­
crimination in the giving of students a free choice 
of schools. The system is not subject to constitutional 
objections simply because large segments of whites 
and Negroes choose to continue attending their fa­
miliar schools. It is true that statistics on actual 
integration may tend to prove that an otherwise con­
stitutional system is not being constitutionally oper­
ated. However, these statistics certainly do not con­
clusively prove the unconstitutionality of the system 
itself. ’ ’

The holdings heretofore mentioned to the effect that 
there is no affirmative duty to mix the races in the public 
schools have been so nearly unanimous, and have been 
applied to so large a segment of the nation’s public 
schools, that it is reasonable to assume the Supreme Court 
would have given some indication of its disapproval if 
that were the case. It has had ample opportunity to do 
so in cases where certiorari was denied, and it could 
easily have done so in its recent decisions in this field in­
cluding Bradley, supra. The only reasonable inference is 
that the fundamental principles were adequately expressed 
in Brown, and that the lower courts have correctly ap­

— 15 —



16

plied them when the claim has been advanced that in­
tegration is constitutionally required. It is to be noted 
that the Supreme Court has not hesitated to review other 
questions concerning the proper application of Brown 
when it has disagreed with the conclusions of the lower 
courts.

Finally, it is significant to note that the Congress, in 
the adoption of the Civil Eights Act of 1964, excluded 
as an area of federal concern racial imbalance in the pub­
lic schools. It expressly withheld from the Attorney Gen­
eral authority to bring suit to require transportation of 
students to achieve racial balance in the public schools 
(42 U. S. C. A. 2000c-6(a), and provided that “desegrega­
tion” in the subchapter dealing with public education 
“* * * shall not mean the assignment of students to public 
schools in order to overcome racial imbalance” (42 
U. S. C. A. 2000c(c).

It is clear from the legislative history that it was the 
intent of Congress to adopt as national policy the prohi­
bition against discrimination declared by the Supreme 
Court in Brown. However, it did not regard Brown to 
require affirmative mixing of the races and therefore in­
cluded a consistent limitation in the Act.

Against this background of judicial and legislative 
treatment of the scope of the Fourteenth Amendment’s 
prohibition announced in Brown, United States v. Jeffer­
son County Board of Education, was published on Decem­
ber 29, 1966. That case holds that the Constitution com­
mands integration of the races. At page 73 of the slip 
opinion it is said:

“ Moreover, freedom of choice, as now administered, 
necessarily promotes desegregation. The only relief 
approaching adequacy is the conversion of the still­
functioning dual system to a unitary, non-racial sys­
tem—lock, stock, and barrel.



— 17 —

In this process be ‘integration’ according to the 
1955 Briggs court, so be it. In 1966 this remedy is 
the relief commanded by Brown, the Constitution, the 
Past, the Present, and the wavy fore-image of the 
Future.”

Thus two judges of the Fifth Circuit have joined issue 
with the long line of decisions of the Courts of Appeals, 
including their own, on this point. The dissenting judge 
observes:

“ In sum, there is no law to require one of these 
public schools to integrate or force mix these races 
in public schools.

* * * * *  * *
“ The majority opinion simply does not reflect the 

well considered and firmly stated composite decision 
of this Circuit; and in that view, is not an accurate 
or proper statement of the law in this case as it now 
exists in the Fifth Circuit.”

It is the understanding of counsel that, as suggested by 
the dissent, application for rehearing before the Court 
en banc is now pending.

Counsel for appellees had difficulty obtaining a copy of 
this opinion and has had only a brief opportunity to study 
it. However some of its features are sufficiently out of 
step with current jurisprudence in the field, as well as 
the traditional concepts of the distribution of powers and 
duties among the three branches of the government, to 
warrant comment after only a cursory reading. The un­
derlying thesis of the opinion is that Negro students 
have a right to attend racially “ balanced” schools (p. 
98). As the instrument to accomplish this, the Court desig­
nates the United States Commissioner of Education and 
the other administrative employees of the Department of 
H. E. W. to be its representative to help the district



•— 18

courts supervise the details of operating local school dis­
tricts. At page 97 it states:

“ And district courts should invite HEW to assist 
by giving advice on raising the levels of the plans 
and by helping to coordinate a school’s promises with 
the school’s performance.”

The district courts are also directed to use the Department 
of H. E. W. as something of a special master or assistant 
judge to pass on whether school districts are measuring 
up to constitutional requirements in their operations.

“ District courts may call upon HEW for assist­
ance in determining whether a school board’s per­
formance measures up to its obligation to desegre­
gate” (page 115).

As would be expected in so sweeping a departure from 
carefully molded precedent, the opinion implies a serious 
doubt as to the validity of the American concept of neigh­
borhood schools, but leaves it to the Supreme Court to 
so hold.

“ The neighborhood school system is rooted deeply 
in American culture. Whether its continued use is 
constitutional when it leads to grossly imbalanced 
schools is a question some day to be answered by 
the Supreme Court, but that question is not present 
in any of the cases before this Court” (pp. 76-7).

The ultimate solution reached by the court, in light 
of its own pronouncements, is a standard decree based 
on the administrative “ Guidelines” of the Department 
of H. E. W. to be entered in the cases then before it, and 
also to be entered by the district courts in the Fifth 
Circuit in school desegregation cases now pending or yet 
to be filed. Compare this to the direction in Brown II 
that the trial courts are best able to perform the neces­
sary judicial appraisal in these cases “ (b)ecause of their



19

proximity to local conditions” and because of the desir­
ability of affording the “ practical flexibility” of equity 
in resolving the varied and difficult problems that the 
Court knew were inevitable.

It does not appear in the opinion whether proof was 
adduced in the trial courts on the validity of the Guide­
lines—whether they were educationally feasible, unduly 
burdensome administratively, or unreasonably expensive 
in implementation. Suits are pending in several federal 
district courts challenging the Guidelines on these grounds, 
as well as asserting that they are not consistent with the 
intent of Congress in the 1964 Civil Bights Act because 
they are designed and administered so as to achieve a 
racial balance in the public schools in direct violation 
of the prohibition of that Act. In the case at bar the 
district judge observed that (B, 234):

“ * * * the Commissioner is clearly going further 
than the Constitution requires since a reading of the 
new guidelines discloses that the aim of the Office 
of Education is fully integrate public school student 
bodies and faculties and to eliminate dual school 
facilities.”

However, the record on this appeal does not afford the 
basis for a comprehensive examination of the validity 
of the guidelines because of the absence of both the neces­
sary proof and parties. The issue will in all probability 
reach this Court in due course in a suit challenging the 
validity of the guidelines on the grounds heretofore men­
tioned, among others, styled Dermott Special School Dis­
trict v. John W. Gardner and Harold Howe, II, United 
States District Court, E. D. (Ark.), No. PB 66 C 94.

The majority opinion of the Fifth Circuit Court rejects 
the language from Briggs as “ dictum” and “ a cliche”, 
and holds that it is inconsistent with the Supreme Court’s 
decision in Brown. It is interesting to note that Briggs



20 —

was written by Chief Judge John Johnston Parker, that 
giant in American jurisprudence, only six weeks after 
Brown II. It was thus a contemporary analysis of the 
scope of Brown. Another distinguished jurist who was in 
a remarkably favorable position to possess an accurate 
contemporary under standing of Brown was Judge Simon 
E. Sobeloff who, as Solicitor General of the United States, 
presented the Government’s views to the Supreme Court 
in Brown II pertaining to the form and scope of the relief 
to be granted (98 L. Ed. 1099). Judge Sobeloff was later 
to quote the Briggs “ dictum” in a memorial service fol­
lowing Judge Parker’s death in 1958 and to say of it:

“ It is fair to say that Judge Parker’s statement, 
quoted above, had a profound and salutary effect 
upon political as well as judicial decisions in the 
post-1954 period. Judge Parker’s steadying and guid­
ing influence was of inestimable value in a period when 
others were disposed to rash declarations and actions.”

253 F. 2d, In Memoriam Honorable John Johnston Parker, 
p. 17.

II.

Appellees’ freedom of choice plan is a constitutionally 
permissible procedure for achieving a non-discriminatory 
school system.

Appellants argue that “ freedom of choice” is not a 
permissible procedure for the desegregation of a school 
district if, in its operation, it does not produce substan­
tial mixing of the races. As noted in Part I., there is no 
constitutional right to require that the races be mixed.

The freedom of choice procedure has received substan­
tially universal approval as a desegregation procedure. 
In Bradley v. School Board of City of Richmond, 345 F.
2d 310 (4 Cir., 1965), the court approved the freedom of



— 21 —

choice procedure as an appropriate device to discharge 
the Board’s obligation announced by Brown, saying:

“ A state or a school district offends no constitu­
tional requirement when it grants to all students uni­
formly an unrestricted freedom of choice as to schools 
attended, so that each pupil, in effect, assigns himself 
to the school he wishes to attend.”

That court understandably drew support for its conclu­
sion from the language of the Supreme Court in Goss v. 
Board of Education of Knoxville, 373 U. S. 683, and from 
that Court’s remand of Calhoun v. Latimer, 377 U. S. 
263. The implied approval of the Supreme Court of the 
freedom of choice approach is clear in these decisions.

This Court in Kemp v. Beasley, supra, said:
“ We, therefore, find that the ‘freedom of choice’ 

plan is a permissible method at this stage.”
In Smith v. Board of Education of Morrilton Sch. Dist.

No. 32, 365 F. 2d 770 (8 Cir., 1966), Judge Blackmun, 
writing for the Court said:

“ 3. The constitutional adequacy of the plan of de­
segregation (almost obvious on its face, apart from 
the delay in inception, for it calls for full desegrega­
tion in two successive yearly steps, as compared with 
HEW’s three-year maximum) was not passed upon 
by the district court and is not an issue brought to 
us for decision by either side. We merely note that 
full integration, although certainly long delayed in 
Morrilton, was to be effected in a period of less than 
two years. And we gave at least some general ap­
proval to the freedom-of-choice method in Kemp v. 
Beasley, 352 F. 2d 14, 21 (8 Cir., 1965).”

And most recently in Clark v. The Board of Education of 
the Little Rock School District, supra, Judge Gibson said: 

“ If all of the students are, in fact, given a free and 
unhindered choice of schools, which is honored by the



— 22 —

school board, it cannot be said that the state is segre­
gating the races, operating a school with dnal attend­
ance areas or considering race in the assignment of 
students to their classrooms. We find no unlawful 
discrimination in the giving of students a free choice 
of schools.” (Emphasis supplied.)

It therefore seems settled that the freedom of choice pro­
cedure, fairly administered, is a constitutionally permis­
sible method of school assignment.

The argument, that any desegregation procedure that 
does not produce substantial race mixing is impermissible, 
has been frequently made. Appellants argue that fears, 
economic circumstances and traditions will limit the exer­
cise of choices in a freedom of choice plan with the result 
that mixing of the races will not be extensive. There is 
no record support in the case at bar pertaining to fears 
engendered by intimidation or coercion. However, to the 
extent that traditions are reflected in the individual 
preferences of many Negroes it is a legitimate considera­
tion in this context. The desire to attend school with 
members of another race is not universally held, either 
among Negroes or whites. In one school district after 
another only a small minority of the Negro students 
avail themselves of the opportunity to attend with white 
students although they are given a free and unfettered 
choice in the matter. It is such a situation that prompted 
Judge Miller to remark in Rogers v. Paul, 232 F. Supp. 
833, 838 (1964):

“ It seems clear that the great- majority of pupils, 
white and Negro, do not desire to attend an integrated 
school. ’ ’

In the case at bar only six Negro students chose to at­
tend the previously all white schools, although every stu­
dent in the District had a right to do so.

Counsel who prosecute these cases against school boards 
are also aware of the vast number of Negroes who prefer



— 23

voluntarily to attend schools with children of their own 
race. In Bradley, supra, they attacked a freedom of 
choice assignment plan because of the substantial number 
of Negroes who, when given such a choice, elected to 
attend schools with other Negroes. The Court sum­
marized their position at page 315:

“ * * * plaintiffs insist that there are a sufficient 
number of Negro parents who wish their children to 
attend schools populated entirely, or predominantly, 
by Negroes to result in the continuance of some 
schools attended only by Negroes. To that extent, 
they say that, under any freedom of choice system, 
the state ‘permits’ segregation if it does not deprive 
Negro parents of a right of choice.”

This absurd contention was, of course, rejected by the 
Court, of Appeals for the Fourth Circuit, sitting en banc. 
However, recognition by all concerned that the desire to 
attend school with whites is not universal among Negroes 
is what gives validity to the proposition recognized by 
this Court as recently as Clark that the constitutionality 
of a desegregation plan is not measured by the amount 
of race mixing it produces. As Judge Gibson said there:

“ The system is not subject to constitutional ob­
jections simply because large segments of whites and 
Negroes choose to continue attending their familiar 
schools. It is true that statistics on actual integra­
tion may tend to prove that an otherwise constitu­
tional system is not being constitutionally operated. 
However, these statistics certainly do not conclusively 
prove the unconstitutionality of the system itself.”

It is also said in Clark:
“ Though the Board has a positive duty to initiate 

a plan of desegregation, the constitutionality of that 
plan does not necessarily depend upon favorable sta­
tistics indicating positive integration of the races.”



— 24

The Sixth Circuit expressed the same view in Deal, supra, 
decided only nine days before Clark:

“ This is in accord with our holding that bare sta­
tistical imbalance alone is not forbidden. There 
must also be present a quantum of official discrimina­
tion in order to invoke the protection of the Four­
teenth Amendment.”

Appellants argue that the construction of school facili­
ties in this District so that each school complex has a 
capacity that approximately equal the number of stu­
dents presently in attendance there tends to perpetuate de­
segregation. They say that if a substantial number of 
Negro students chose the Altheimer School complex they 
could be turned away for lack of available space. This 
argument simply ignores the applicable provision of the 
Guidelines promulgated by H. E. W. and adopted by this 
District as its desegregation plan. The provision dealing 
with overcrowding of a particular facility as a result of 
exercise of choices is:

“ §181.49 Assignment According to Choice
No choice may be denied in assigning students to 

schools for any reason other than overcrowding. In 
cases where overcrowding would result at one or more 
schools from the choices made, preference must be 
given on the basis of the proximity of schools to the 
homes of students without regard to race, color, or 
national origin. No preference may be given to stu­
dents for prior attendance at a school if such prefer­
ence would deny other students their free choice of 
schools under the plan.”

Thus it is clear that if a sufficient number of Negro stu­
dents chose to attend the Altheimer School complex to 
overcrowd that facility, the students in the overcrowded 
classes or grades would all be assigned on the basis of the 
proximity of their homes to the two schools involved and



— 25 —

this might well result in the assignment of some white 
students to the Martin Schools. In any event the assign­
ments would be made on a basis entirely free of any con­
sideration of race.

III.

The District Court correctly dismissed the complaint be­
cause the proof failed to demonstrate the violation of ap­
pellants’ constitutional rights.

The bulk of appellants’ argument under this Point per­
tains to the form of relief they claim should be afforded 
if they had proved a violation of their rights secured by 
the Fourteenth Amendment to the Constitution. As we 
have demonstrated, the desegregation procedure adopted 
by appellees fully comports with the Constitution and it 
would therefore be an undue extension of this brief to dis­
cuss the extent to which a federal court properly should 
intrude into the details of management of the public 
schools when discrimination is demonstrated.

We fully concur with appellants that the H. E. W. Guide­
lines are in no way binding on the courts. Every court to 
which the question has been presented has so held. We 
also concur that H. E. W. approval, or disapproval, of the 
desegregation procedures of a particular school district 
has little probative value on the questions to which the 
courts direct their attention in these cases. The H. E. W. 
action is governed by administrative regulations promul­
gated by some yet unidentified employees of that executive 
department, while the courts in these cases are guided by 
the Constitution.

Finally, we concur with appellants that the courts can­
not abdicate their duty to test the conduct of school au­
thorities against the standards of the Fourteenth Amend­
ment to the Constitution. The district court here did not



— 26 —

abdicate that duty. It performed it. In so doing it cor­
rectly held that no violation of appellants’ constitutional 
rights had been demonstrated.

CONCLUSION.

Appellees respectfully submit that the Judgment of the 
district court is correct and should be affirmed.

Respectfully submitted,
E. HARLEY COX, JR.,

Simmons National Building, 
Pine Bluff, Arkansas 71601, 

HERSCHEL H. FRIDAY and 
ROBERT Y. LIGHT,

1100 Boyle Building,
Little Rock, Arkansas,

Attorneys for Appellees.
February 6, 1967.



98