Cooper v. Aaron Brief for the Petitioners

    BRIEF ON MERITS
No. 1

IN THE
SUPREME COURT OF THE UNITED STATES

August Special Term, 1958

W i l l i a m  G . C o o p e r , et a l ....................... .. Petitioners

v.
J o h n  A a r o n , et a l ............................ Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONERS

R ic h a r d  C . B u t l e r  
Boyle Building 
Little Rock, Arkansas 

A. F . H o u se  and 
J o h n  H . H a l e y  

814 West Markham Street 
Little Rock, Arkansas 

Attorneys for Petitioners

PARAGON PRINTING CO ., LITTLE ROCK



INDEX

Page

Opinion Below ______________________________________________  1

Jurisdiction _______________________ ___________ __________ i—— 1

Questions Presented - ----------------------------------------- ---------------------  2

Constitutional Amendment Involved _____ _______ _____ ______ 2

Statement __________________________._________ ________________ 3

Summary of Argument _____________________________    7

Argument:

I. The Decision of the District Court is in the 
Public Interest and is in Accord with the Spirit of 
the Second Brown Decision ___   10

II. Effect of Opposition by Community and by
State Government _________ __________________________ 19

III. Responsibility for Enforcement ______________________  27

IV. This District is Entitled to Relief _______  36

Conclusion _____________________________________________________ 38

Appendix ____   39



INDEX—(Continued)

CITATIONS

Page
Cases:

Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark.), aff’d
243 F. 2d 361 (C.C.A. 8th) -------------------------------------------  3

Allen v. County School Board of Prince Edward County,
Virginia, 249 F. 2d 462 (C.C.A. 4th) ------------------------- 25

Brewer v. Hoxie School District, 238 F. 2d 91 (C.C.A. 8th) —  34
Brown v. Board of Education, 347 U.S. 483; 349 U.S. 294 ------10-19
Cumming v. Board of Education, 175 U.S. 528 ------------------  15
Faubus v. United States, 254 F. 2d 797 (C.C.A. 8th) ------------  35
Giles v. Harris, 189 U.S. 475 -------------------------------------------  33
Hoxie School District v. Brewer, 137 F. Supp. 364

(E. D. Ark.) ---------------------------------------- :■---------------------  14
Jackson v. Rawdon, 235 F. 2d 93 (C.C.A. 5th) ---------------------  21
Kasper v. Brittain, 245 F. 2d 92 (C.C.A. 6th) ---------------------  34
Orleans Parish School Board v. Bush, 242 F. 2d 156

(C.C.A. 5th) __________________________________________  23
School Board of City of Charlottesville, Va. v. Allen,

240 F. 2d 59 (C.C.A. 4th) ----------------------------------------  23
Screws v. United States, 325 U.S. 91 ----------------------------------  32
Thomason v. Cooper, 254 F. 2d 808 (C.C.A. 8th) __________  35
United States v. Williams, 341 U.S. 70 ---------------------------- 32

Miscellaneous:
Amendment 44 to the Constitution of Arkansas __________  16
Arkansas Statutes Annotated 80-1519-1524; 80-1535; 80-539,

6-801 (1947 & Supp. 1957) __________________________  16
Blaustein & Ferguson, Desegregation and the Law _______18,32
Journal of Public Law, Emory University School of Law,

Vol. 3, No. 1 __________________________________________13,42
Negro Citizens in the Supreme Court of the United States,

52 Harvard Law Review 832 (1939) __________________  32
Sumner, Folkways ------- — ______________ __________________ 13,42



BRIEF ON MERITS
No. 1

IN THE
SUPREME COURT OF THE UNITED STATES

August Special Term, 1958

W il l i a m  G. C o o p e r , et oX ......................... PetitioneTs
v.

J o h n  A a r o n , et a l .................................... Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINION BELOW

The opinion of the Court o f Appeals is as yet un- 
reported. It and the District Court opinion are ab­
stracted in the appendix to Respondents’ brief filed 
prior to the August 28 hearing.

JURISDICTION

The judgment of the Court of Appeals was en­
tered August 18, 1958. On August 28, 1958, by order 
of this Court, the Petitioners were given leave to file 
petition for a Writ of Certiorari not later than Sep­
tember 8, 1958. The petition was filed September 8, 
1958. The jurisdiction of this Court rests on 28 U.S C 
§ 1254(1).



2

QUESTIONS PRESENTED

The District Court found that the school board’s 
plan of desegregation has resulted in severe impair­
ment of the educational program and an overall in­
tolerable situation because of overt resistence and op­
position by the state government, students, parents, 
organized groups, and segments of the community. 
The questions presented are:

(1) Whether a court of equity may postpone 
the enforcement of the respondents’ constitutional 
rights if the continued enforcement thereof will result 
in an intolerable situation and great disruption of the 
educational process to the detriment of the public in­
terest, the schools, and the students including the re­
spondents.

(2) Whether a school district has a duty and 
obligation, by invoking extraordinary legal processes 
and otherwise, to quell violence, disorder and organized 
resistance to desegregation.

CONSTITUTIONAL AMENDMENT INVOLVED.

Amendment 14 to the Constitution of the United 
States, Section 1, provides:

“ All persons born or naturalized in the 
United States, and subject to the jurisdiction 
thereof, are citizens of the United States and 
of the state wherein they reside. No state shall 
make or enforce any law which shall abridge 
the privileges or immunities of citizens of the 
United States; nor shall any state deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the 
laws.”



3

STATEMENT

Little Rock School District, hereinafter referred 
to as “ the District” , after the first Brown de­
cision and b e f o r e  the s e c o n d  Brown de­
cision, evolved a tentative Plan of Integration. The 
good faith of the District has never been chal­
lenged. The Plan contemplated integration in the 
senior high schools of the District during the 1957- 
1958 term, later in the junior high schools, and still 
later in the grade schools. It was assumed that the 
plan would require a period of about seven years.

The NAACP was not satisfied with the Plan or 
the time schedule and caused a suit to be filed con­
tending that complete integration should be required 
overnight. The District Court and the Circuit Court 
of Appeals for the Eighth Circuit approved the seven 
year plan. See Aaron v. Cooper, 143 F. Supp. 855 
(E.D. A rk .) ; 243 F. (2d) 361 (C.C.A. 8th).

The District commenced functioning under the 
Plan in September, 1957, and it operated during the 
1957-1958 term with disastrous results. With an 
experience which t a u g h t  the futility of imme­
diate operation of the plan without sacrificing 
those values uppermost in the minds of educa­
tors, the District filed a Petition asking that the 
District Court, in the exercise of its discretion, 
postpone operation under the Plan for a period 
of two and one-half years. On undisputed testimony 
as to what had happened, the District Court concluded 
that the education of all pupils was being harmed and 
in the public interest an interruption in operations 
should be permitted.



4

Among the express findings of the District 
Court, as contained in its Memorandum Opinion, are 
the following:

“ There were many incidents within the 
school consisting of slugging, pushing, tripping, 
catcalls, and abusive language.

“ There was tension among the students 
and teachers which resulted in the lowering of 
the standards of education.

“ Teachers were physically exhausted and 
frustrated.

“ On forty-three occasions there were 
threats that the school building would be de­
stroyed by dynamite. Each threat necessitated 
the searching of the premises.

“ School property was destroyed by acts of 
vandalism and school funds were expended for 
replacements which necessitated reducing ex­
penditures for necessary maintenance.

“200 pupils were suspended and two were 
expelled.

“ Extra-curricular school activities were 
diminished.

“ Troops moved around and within the 
school building distracting the pupils from 
their school work.

“ There was ‘chaos, bedlam and turmoil’ 
from the beginning.

“ Newspaper articles and circulars have 
been published and distributed condemning the 
principle of integration, abusing the school of­
ficials, and telling the residents of the district 
that integration could be avoided.

“ School officials were threatened with 
violence.



5

“ A serious financial burden has been cast 
on the District in coping with the problems en­
countered.

“ The State of Arkansas, instead of bring­
ing its laws into conformity with the rule of 
Brown v. Board of Education, has adopted a 
constitutional amendment and enacted several 
statutes which destroy in various ways the pro­
cess of integration.

“ Education has suffered and will contin­
ue to suffer.

“ The Police Department of Little Rock is 
unable to furnish adequate protection.

“ Federal troops will be required again 
next year.

“ The situation is intolerable.”
Although not mentioned by the District Judge, 

the record reveals other conditions which added to the 
intolerability of the situation:

Mobs formed and overtly interfered with opera­
tions under the Plan. Some were arrested by the City 
Police but later discharged.

Vicious circulars were distributed condemning 
the District Court, the Supreme Court of the United 
States and the school officials who recognized the su­
premacy of Federal Law.

Masters of rhetoric were imported who told the 
residents of the District that the Governor of Arkansas 
could legally prevent integration and suggested that 
the shedding of blood was permissible in order to main­
tain segregation.

Many of those who formed into mobs were identi­
fiable, but none has been punished by the District 
Court or any Federal law enforcement agency.



6

Some of the Negro pupils who were abused made 
reports to the United States District Attorney. The 
Attorney General of the United States made a public 
statement to the effect that no one who had interfered 
with operations under the Plan would be prosecuted.

A columnist writing for one of the local papers 
constantly supports the doctrine that the Fourteenth 
Amendment was not legally adopted and that the de­
cision of this Court in Brown V. Board of Education 
is not the law of the land.

Vulgar cards, critical of the school officials, were 
given by adults to school children for distribution 
within the school building.

Pupils who became involved in disciplinary in­
vestigations are being guided by adults.

The Federal Bureau of Investigation made a full 
and comprehensive report of the Little Rock situation, 
and although the school officials discussed with the 
F.B.I. several times the matter of using the report to 
arrive at a decision as to feasibility of the use of in­
junctive measure, the report was not made available to 
them, nor was the report utilized by the Department 
of Justice since it dropped plans to prosecute agitators.

The legislative, executive, and judicial depart­
ments of the state government opposed the desegre­
gation of Little Rock schools by enacting laws, calling 
out troops, making statements villifying Federal law 
and Federal courts, and failing to aid enforcement 
through judicial processes.

On the basis of its findings, the District Court 
held that the request for a postponement was made in 
good faith and was manifestly justifiable; that severe



7

impairment of the educational program and of the 
welfare of the students and the community would re­
sult were the postponement not granted; that the in­
herent powers of equity and the spirit of the second 
Brown decision dictated that the school district be al­
lowed to operate its schools on a segregated basis for 
a time without being considered in contempt of court.

The Circuit Court of Appeals for the Eighth Cir­
cuit agreed with the findings of the District Court that 
the evidence is appalling but that great additional ex­
pense, disruption of normal educational procedures, 
tension and nervous collapse of the school personnel, 
turmoil, bedlam, and chaos, are not a legal basis for 
suspension of the plan since this would be an accession 
to the demands of insurrectionists.

SUMMARY OF ARGUMENT

The argument of petitioners is reflected by the 
questions presented. First, where a school board has 
made a prompt start toward desegregation and has 
continued throughout to exercise good faith, severe 
impairment of the educational system both present 
and prospective because of desegregation entitles the 
school district to a postponement regardless of the 
source and motivation of the destructive forces. The 
second Brown decision was so construed by the District 
Court.

There are thousands of school districts in the 
South that have not made a step toward desegregation. 
In their repose these districts are conducting educa­
tional programs without harrassment of any sort al­
beit constitutional rights declared by the Brown de­
cisions are being delayed. Thus it would be the 
height of irony if the Little Rock School District, hav­
ing made the start in good faith, were denied this post­



8

ponement at the expense of the entire educational pro­
gram at the high school level. The attorneys for the 
respondents have, at every stage, tacitly conceded the 
existence of the situation as found by the District 
Court, but have ignored and skirted the equities of the 
school district and of the thousands of students, parents 
and teachers. Moreover, it is the judgment of the 
District Court and the school board that the respond­
ents’ best interests would be served by enrolling them 
on a segregated basis, and no one is in a better posi­
tion to determine this.

The Solicitor General, in his argument before this 
Court on August 28,1958, stated that a court of equity 
does not ask people to do things that are beyond their 
power. He agreed that the school board has had a 
difficult time of it. He further stated that in his 
opinion the Broivn decision does not extend to destruc­
tion of institutions in order to grant private rights. 
Apparently the position of the Government is that if 
the school board had done everything possible and still 
the merits of the case called for a stay, then the grant­
ing of it would be reasonable; but that the school board 
could have done more and that the situation is difficult 
but not impossible. This would seem to be a substitu­
tion of judgment for that of the school board and the 
District Court.

The Circuit Court of Appeals and this Court 
should not substitute its judgment for that of the 
District C o u r t  unless it is obviously without 
foundation in fact. Here the school board determined 
and the District Court found that maintenance o f edu­
cational standards was impossible under the circum­
stances. There was ample evidence in support of this 
determination, and the District Court further found



9

that the school board and personnel had done all they 
could to prevent total disruption of the schools.

It is to be questioned whether a court has the 
practical power to deal with opposition such as is here 
encountered. But if it does, certainly the method 
should not be that of placing the school board in the 
undeserved position of being the sole bastion of 
Federal authority until it destroys itself. It may 
be that mass violent opposition can be dealt with 
through the District Court with the assistance of 
the Department of Justice and the respondents, 
but until unlawful force, v i o l e n c e  and official 
state resistance subside through passage of time or as 
a result of the exercise of the powers of the judicial 
processes, the school district must be allowed its re­
quested postponement.

Finally, the respondents and the Solicitor General 
have argued, and the Circuit Court of Appeals has 
suggested, that the school board was obligated to pur­
sue the forces of violence arrayed in the community. 
This the school board cannot do, and this should not 
be expected of it. The school board is dedicated only 
to furtherance of the educational program and adher­
ence to law and order. It is under compulsion of court 
order to desegregate, but it is not and should not be a 
militant combatant of segregationist forces. Rather, 
this should be an obligation of the respondents and the 
Department of Justice, neither of whom has acted.



10

ARGUMENT

I

The decision of the District Court is in the public in­
terest and is in accord with the spirit of the second 
Brown decision.

The District Court found that continuation of de­
segregation in the immediate future would place the 
District in an intolerable situation. It found that the 
educational program was being, and would continue 
to be, greatly impaired and endangered to the detri­
ment of the public. It further found that the District 
had done all it could toward alleviating the situation. 
Findings of fact by lower tribunals are not lightly dis­
turbed. Especially should these findings of fact, based 
as they are upon overwhelming evidence, be unassail­
able in the light of the Brown decision. The determi­
nation of the reasonableness of the time and manner 
in which a school district implements the prescriptions 
of the Brown decision rests in the sound discretion of 
the local District Judge. Virgil Blossom, Superinten­
dent of the District, gave his interpretation of “ all de­
liberate speed” couching it in terms of the history of 
the Negro in this country and the present considera­
tions of maintenance of educational standards and the 
public interest (R .295-299):

Q. Did the term used by the United States Supreme 
Court, “ deliberate speed” , gain your attention 
and did you try to determine what was meant by 
it?

A. Yes, sir, very materially, to this extent, Mr. 
Butler. The Negro as a race came to this coun­
try in 1619. They came in chains, as slaves. 
They stayed in that, and, as far as I could study



it, you would class that as the first period in 
the history of the United States, and they stayed 
from 1619 until 1865_, which is nearly two and 
three-quarters centuries, and that is one period 
in their march for civil rights of their develop­
ment. The second period began in 1865 and 
they stayed in this second period until 1896 
when we had Plessy V. Ferguson. That is 31 
years. Now, in this period they had their free­
dom. They did not have economic or political or 
any other type of position to any extent. Then 
coming out of that period into what I would 
call the third one, from 1896 until 1954, and I 
would just label that separate but equal. Now, 
they stayed in that 58 years, and when you look 
at the problems and the complexities in this 
thing and recognize that many places separate 
but equal is no way near a reality. Many 
places in the Southland they still do not ap­
proach separate but equal, but in Little Rock, 
Arkansas, they did. I am not arguing the sep­
arate but equal philosophy. I am trying to 
state what history tells us in terms of a two and 
a half year request for delay, and that is the 
third period, and when we account for the fact 
that there are three periods, one taking nearly 
three centuries, another 31 years and another 
58 years, and recognizing that there is one group 
that says we are going to have it all now and 
another that says we are never going to have 
it, you put the horns of the dilemma in proper 
perspective with the School Board right in the 
middle, and it is a difficult thing; and then you 
come to May 17, 1954, and we look at it today, 
June 4th, 1958, and you compare that period 
of time as compared to either one of the pre­
vious three periods I have outlined, and you 
wonder how fast, in terms of history, anyone 
can expect a change in cultural patterns, and 
you have to ask yourself, well, this district 
which was actually separate but equal, and 
could so be defended prior to May 17, which



12

has nothing to do with this, except in terms of 
the two and a half year delay. In view of what 
we know has happened this year, it just magni­
fies and intensifies the problem, and in terms 
of that period of time that I have outlined it is 
a very small segment compared to either one 
of the previous three periods and, at the same 
time, when we look at the slowness with which 
local laws are being moved out of the way by 
courts, and state courts in this instance, if you 
please, the problem is certainly magnified, and 
I would not be smart enough to say that two 
and a half years, or three and a half, or two, 
is a long enough period of time.

But when you look at it in terms of the 
time required to change cultural patterns, the 
slowness with which local laws are moved out 
of the way, and recognize that the fact that the 
Court spelled out in its “ all deliberate speed” 
philosophy, certain logical legal reasons for 
delay, one of which is “ local laws” . It tells me 
that the Court anticipated the fact but they made 
a mistake. They anticipated that local and state 
governments would voluntarily fall in line and 
move those laws out of the way, but to me the 
Supreme Court was in error in their judgment. 
Southern states have not done that. Instead of 
moving them out of the way, daily they are 
creating more, which adds to this dilemma, and 
until that has happened, it seems to me that his­
tory spells out exactly what the Supreme Court 
meant by “ all deliberate speed” , and it spells out 
to me a varied studied judicial approach that 
each place is different and it may be different 
this year than last year or it may even be next, 
but they recognize it, and public interest is an­
other thing, and I am sure that they have no 
idea of down-grading anybody’s educational 
program. Now all of that was considered very 
deliberately and judiciously in terms of asking 
for two and a half years, and when you look



13

at the size of the problem involved and look at 
what history seems to tell us, then two and a 
half years looks like a very short time to me.

In the second Brown opinion (349 U.S. 294), with 
respect to the spheres in which school districts and the 
District Courts should operate, this was said:

“ Full implementation of these constitu­
tional principles may require solution of varied 
local school problems. School authorities have 
the primary responsibility for elucidating, as­
sessing, and solving these problems; courts will 
have to consider whether the action of school 
authorities constitutes good faith implementa­
tion of the governing constitutional principles.”

The mores of the people in the realm of law en­
forcement are powerful. In the Appendix we have 
quoted from “ Folkways”  by William Graham Sumner 
and articles by Ruppert Vance, Wiley H. Davis and 
W. E. Gauerke and Mozell Hill which appeared in the 
Journal of Public Law, Emory University Law School, 
Vol. 3, No. 1, Spring, 1954, Edition.

As a rule laws follow the crystallization of the 
mores. In that pattern law enforcement is easy, as 
public sentiment approves enforcement. When laws 
are in advance of the mores, then in order to have ef­
fective enforcement there must be (a) an ability to 
understand the purpose of the law, a well developed 
sense of self-discipline, and a willingness to cancel an 
existing attitude for societal benefits; or (b) the gov­
ernment which creates the new law which is not in step 
with the mores must, by an application of compulsive 
power, be able to force the people to accept its principle 
regardless of their attitudes. If both conditions for 
enforcement are lacking, the results are bound to be



14

turmoil, recalcitrance, and a rapidly developing dis­
respect for all law.

The mores are different in different places, the 
variation being due to the environments under which 
they develop. The Brown decision is more or less 
apace with the mores in some of the northern states. 
In the southern states it was far out in front, and its 
rule has provoked wide-spread and intense hostility to 
the members of the Negro race, the Supreme Court 
of the United States, the Federal Government, and all 
school officials who believe it is their duty to carry out 
its mandate. Judge Reeves who presided in Hoxie 
School District V. Brewer, 137 F. Supp. 364 (E.D. 
Ark.), was aware of the actuality of the problems 
springing from the mores. He said:

“ Judges should not be unmindful of the 
customs, mores and sentiments that may have 
existed among people and in communities over 
a long period of years and that a sudden over­
turning or reversal of such habits and customs 
by an apparent outside force or authority would 
at first blush be provocative. Under such cir­
cumstances logic, and not emotion, should dom­
inate and prompt action. If the change is 
proper and just, then all should submit without 
delay. If it be deemed unjust and improper, 
then orderly processes should be observed to 
reestablish the custom.”

It seems to us that the language in Brown shows 
an awareness of the probable development of difficul­
ties and insistence that the remedy of enforcement was 
to be kept flexible so as not to place the District Courts 
in the position of ordering what they could not enforce. 
Reference is made to the “ varied local school prob­
lems” . When a school district grapples with one of 
the problems, the courts will have to determine whether



15

it is acting in good faith. In most instances good 
faith can be determined by answering the question as 
to whether the problem is real or imaginary. It is 
said that “ once a start has been made”  additional time 
may be requested to carry out the ruling in an “ ef­
fective” manner. Here a start was made. Due to 
conditions beyond the control of the District, its efforts 
effectively to integrate have been thwarted. What is 
the meaning of the word “ effective”  as used in the 
opinion? Is effectiveness to be tested only by the 
speed with which Negro pupils are enrolled in inte­
grated schools or does the word connote a transition 
which will give to the Negro pupils their constitutional 
rights with as much speed as is reasonably compatible 
with the preservation of the existing standards of 
public education.

In the case of Gumming v. Board of Education, 
175 U.S. 528, 544-545, Justice Harlan denied an in­
junction because “ the result would only be to take 
from white children educational privileges enjoyed by 
them, without giving colored children additional op­
portunities for the education furnished in h i g h  
schools.” In the Little Rock situation, the negro stu­
dents’ high school education will not be interrupted 
and in fact they will be spared the predictable mental 
torment and physical danger that would accompany 
attendance at Central High School at the present time. 
On the other hand, Judge Lemley’s decision is not 
reinstated, the school board for the reasons reflected 
in the findings of the district court will be unable to 
operate Central High School on an integrated basis 
under conditions as they now exist in Little Rock. 
Perhaps the matter of greatest importance will be the 
irreparable harm done to the education of 2,000 stu­



16

dents at Central High School and more than 21,000 
students throughout the Little Rock School District.

It is said that the courts may consider problems 
relating to “ administration . . . arising from the . . . 
revision of local laws . . . which may be necessary in 
solving the foregoing problems.” The revision there 
contemplated was one which would conform local laws 
to the rule of Brown. Here the revision has gone in 
reverse of what was intended. Amendment 44 to the 
Constitution of Arkansas was adopted in 1957. It 
commands the General Assembly to oppose by every 
c o n s t i t u t i o n a l  method the “ unconstitutional 
d e c i s i o n  of Brown v. Board of Education.'” 
As ludicrous as its language may appear to this Court 
from a legal standpoint, it illustrates the spirit in 
which the suggestion to revise has been accepted. The 
following statutes have been enacted or adopted by 
the people to impede the process of integration:

The Pupil Assignment Law, Sections 80- 
1519 to 80-1524, Arkansas Statutes (1947).

No compulsory attendance, non-segregated 
schools, Section 80-1535, ib.

Employment of legal counsel to resist in­
tegration, Section 80-539, ib.

Sovereignty Commission, Section 6-801, ib.
At its special session commencing August 26, 

1958, the Arkansas legislature passed a raft of bills 
which allow the governor to close schools integrated 
by court order where there is some opposition; allow 
transfer of students from integrated schools to segre­
gated schools as a matter of right; allow attendance at 
segregated classes if desired and as a matter of right; 
permit retaliation against school boards by means of



17

recall; and so forth. The governor has not yet signed 
the bills.

The heart beat of the educational system is found 
in the area of administration and the opponents of 
integration, realizing this, aim at the disruption of 
the administrative department. Administration is 
concerned with teacher qualifications, finances, pro­
tection of school property, discipline, pupil responsive­
ness, scholastic opportunities, etc., etc. I f  a timely re­
vision of local laws was by this Court considered an 
important factor, surely the twisted revision which 
has occurred in Arkansas was a factor to be considered 
by the District Court in determining whether the plan 
first adopted was workable and, if  not, whether a rea­
sonable modification was appropriate.

Unable to predict what problems would arise, this 
Court said the rule of equity should be applied in in­
tegration suits. From the opinion:

“ In fashioning and effectuating the de­
crees, the courts will be guided by equitable 
principles. Traditionally, equity has been char­
acterized by a practical flexibility in shaping 
its remedies and by a facility for adjusting and 
reconciling public and private needs. These 
cases call for the exercise of these traditional 
attributes of equity power. At stake is the 
personal interest of the plaintiffs in admission 
to public schools as soon as practicable on a 
nondiscriminatory basis. To effectuate this in­
terest may call for elimination of a variety of 
obstacles in making the transition to school 
systems operated in accordance with the con­
stitutional principles set forth in our May 17, 
1954, decision. Courts of equity may properly 
take into account the public interest in the 
elimination of such obstacles in a systematic 
and effective manner (emphasis supplied).



18

Having said that the principles of equity are to 
control and that “ practicable flexibility” in the ad­
justing and reconciling of public and private needs 
is one of the traditional functions of equity, we as­
sume this Court meant that those tests should be 
applied not only at the start of integration but 
throughout its entire course and until the supervisory 
jurisdiction of the particular court is ended with a 
completely integrated school system. To argue that 
because a start is made the District is frozen to the 
original schedule which, due to the development of 
unanticipated conditions, is found to be no longer 
practical is to do violence to any reasonable concept 
of flexibility.

The phrase “with all deliberate speed” repels any 
idea of precipitancy in total disregard of the con­
sequences. The following is taken from “ Desegrega­
tion and the Law” , a book written by Albert P. Blau- 
stein and Clarence Clyde Ferguson, Jr. (1957), mem­
bers of the faculty of Rutgers University Law School:

“ No words in the school segregation cases 
have created more confusion or caused more 
comment than the simple phrase, ‘with all de­
liberate speed’ . Yet, vague as these words 
may appear, they were not tossed carelessly 
into the 1955 opinion just to improve literary 
style or sentence structure. On the contrary, 
as Justice Minton told the press shortly before 
his retirement, these words were the result of 
Jong and careful consideration’ . Embodied in 
the phrase ‘with all deliberate speed’ is a defi­
nite rule of law. But it is a peculiar rule of 
law in that it is designed to permit so much 
flexibility in its application. It is a rule which 
causes decisions to vary from court to court 
and from case to case. And it was for pre­
cisely this reason that it was employed in



19

Brown v. Board of Education. 'With all delib­
erate speed’ was utilized as a term of art, em­
powering the lower courts to adjust the impact 
of the decision in light of local governmental 
conditions” (pp. 218-219) (emphasis supplied).

Here the District Court was acting within the 
area of permissive discretion when the impact of the 
Brown decision was adjusted in the light of local 
governmental conditions.

II

EFFECT OF OPPOSITION BY COMMUNITY AND BY 
STATE GOVERNMENT

It is the position of the District that where the 
educational program is imperiled and greatly im­
paired because of the current operation of a plan of 
desegregation, then in the public interest it is en­
titled to suspend for a time the operation of schools 
on an integrated basis. The nexus of the District’s 
case is the practical impossibility of continued opera­
tion on a desegregated basis. The motives and actions 
of third parties are not material to the question of 
whether or not the Little Rock school system should 
be effectively destroyed by court order.

To illustrate, let us suppose that a drayman is 
ordered by a court to proceed from town A to town 
B. In transit he must pass over a bridge spanning 
a chasm. The bridge is destroyed before he can 
traverse it. The bizarre position of the Circuit Court 
of Appeals and the Respondents is that if  the bridge 
is destroyed by accident or somesuch probably the 
drayman should be allowed to halt his journey until 
reconstruction of the bridge; but if the bridge is 
maliciously destroyed by a third party in order to 
frustrate the orders of the Court, then the drayman



20

must be forced to plod on his journey and over the 
brink of the chasm to his fate.

The Solicitor General has made substantially the 
same argument as that of the Respondents, leavened, 
however, by the concession that institutions may not 
be destroyed in order to enforce private rights. In 
fact the District comes within the scope of the latter 
premise, and the District Court so found. The re­
mainder of the brief of the Solicitor General is di­
rected to responsibility for enforcement and to an 
effort to go behind the findings of the District Court 
and argue the facts. To traverse these questions of 
fact would unnecessarily lengthen the brief but two 
misstatements should be corrected. On page 15 of 
the Solicitor General’s brief it is stated that the 
active instigators are limited in number. To the con­
trary, they are legion; they represent the great mass 
of the people and the state government as well. And 
on page 17 it is stated that only twenty-five students 
were interfering with the plan. In fact more than 
two hundred students were suspended and many more 
were not apprehended.

The equities of the public, the students, and 
the District have been hastily dismissed by the 
Circuit Court of Appeals and the Respondents. But 
this is the foremost consideration for to do other­
wise in this situation would be to establish a policy 
of consigning the handful of southern school districts 
conforming to law and order to the role of martyrdom 
on the public altar.

The several cases discarding public opposition as 
a ground for postponement have no relevance to this 
situation for only a threat existed, not devastating



21

results. It is the results and consequences that en­
title the District to relief.

The District Court, in its opinion, said:
“ The opposition to integration in Little 

Rock is more than a mental attitude.”
In that terse finding the rule of Jackson v. Raw- 

don, 235 F. 2d 93 (C.C.A. 5th), and its followers 
is set apart and catalogued as one which has applica­
tion only in the preliminary stages of a judicially en­
forced integration. Nathaniel Jackson and others 
filed suit against a Texas school district in 1955. At 
the hearing the school officials offered only alibis 
which showed conclusively that there were no adminis­
trative problems confronting them. The following 
excerpts are taken from the opinion:

“ * * * plaintiffs’ claims by developing that 
there were no administrative difficulties which 
had to be overcome in order to admit the plain­
tiffs to the Mansfield High School but only, as 
clearly shown by the testimony of R. L. H uff­
man, the superintendent, a difficulty arising 
out of the local climate of opinion, requiring 
the board, in its opinion, to discriminate against 
plaintiffs by denying them access to the only 
high school in Mansfield, while permitting 
white children to attend it. * * *
“ We think it clear that, upon the plainest 
principles governing cases of this kind, the de­
cision appealed from was wrong in refusing to 
declare the constitutional rights of plaintiffs 
to have the school board, acting promptly, and 
completely uninfluenced by private and public 
opinion as to the desirability of desegregation 
in the community, proceed with deliberate 
speed consistent with administration to abolish 
segregation in Mansfield’s only high school and



22

to put into effect desegregation there” (pp.
94-96).

The District was never dominated by private or 
public opinion. It received criticism from both avid in- 
tegrationists and segregationists from the beginning, 
but it steadily went forward. There has been 
only one pause, and that was justifiable in the think­
ing of any rational human. When the Governor of 
Arkansas unexpectedly surrounded C e n t r a l  High 
School with troops in order to prevent the entry of 
Negro pupils, the situation was bristling with danger 
and solely to prevent injury to the Negro pupils the 
District caused a notice to the published in a local 
paper requesting them not to attend on the opening 
day. That decision was made late in the night. The 
next day the District, by petition, reported its action 
to District Judge Davies, in Arkansas on temporary as­
signment, and asked whether the notice should be 
rescinded. The District Court ordered that it be 
rescinded, and it was rescinded. A little later, 
when mobs were milling about the school premises, 
tension had almost reached the breaking point and a 
race riot was in the making, the District asked for 
a “ temporary” postponement until calmness could be 
restored, pointing out in its petition that it was im­
possible to teach in an environment of such turmoil. 
Judge Davies labeled the petition and the proof 
as being “ anemic” , and that utterance did much to 
increase the difficulties of the District. The District 
continued its efforts to operate an integrated school, 
and at last it concluded that conditions were such 
that it should again ask the Court to decide whether 
operations under the Plan should be continued, and 
it then filed the petition which is here under consider­
ation. This District has never declined to go forward. 
It has submitted its proof to a Federal Court, and



23

that Court, in the exercise of its discretion, has said 
that under existing conditions the District should not 
be required to proceed.

In School Board of City of Charlottesville, Va. v 
Allen, 240 F. 2d 59 (C.C.A. 4th), the trial court 
found:

“ They have given no evidence of any will­
ingness to comply with the ruling o f the Su­
preme Court at any time” (p.61).

This is taken from the opinion of the appellate 
court:

“ It had been two years since the first de­
cision of the Supreme Court in Brown v. Board 
of Education and, despite repeated demands 
upon them, the boards of education had taken 
no steps towards removing the requirement of 
segregation in the schools which the Supreme 
Court had held violative of the constitutional 
rights of the plaintiffs. This was not ‘delib­
erate speed’ in complying with the law as laid 
down by the Supreme Court but was clear 
manisfestation of an attitude of intransigence, 
which justified the issuance of the injunctions 
to dispel the misapprehension of school author­
ities as to their obligations under the law and 
to bring about their prompt compliance with 
constitutional requirements as interpreted by 
the Supreme Court”  (p.64) (emphasis sup­
plied).

In Orleans Parish School Board v. Bush 242 F. 
2d 156 (C.C.A. 5th), the situation was the same. 
The School District had made no start and it was 
ordered to do so. From the opinion:

“ It is evident from the tone and content of 
the trial court’s order and the willing acqui­
escence in the delay by the aggrieved pupils that 
a good faith acceptance by the school board of



24

the underlying principle of equality of educa­
tion for all children with no classification by 
race might well warrant the allowance by the 
trial court of time for such reasonable steps in 
the process of desegregation as appears to be 
helpful in avoiding unseemly confusion and tur­
moil. Nevertheless whether there is such ac­
ceptance by the Board or not, the duty of the 
court is plain. The vindication of rights guar­
anteed by the Constitution can not be condi­
tioned upon the absence of practical difficul­
ties”  (p.166).

That language was used in 1957, two years after 
the second Brown decision, with respect to a district 
that had not even formulated a plan of integration. 
The last sentence in the quotation is the thesis of re­
spondents. As an abstract declaration of law, it can­
not be challenged. As a working rule to be applied 
in all situations in the absence of power on the part of 
the Federal Government to vindicate federal rights 
and in the presence of forces which, if injected, will 
destroy public education for both white and Negro 
pupils, it can only be classed as obiter.

As stated in Brown—

“ Courts of equity may properly take into 
account the public interest in the elimination of 
such obstacles in a systematic and effective 
manner.”

If the public interest is important and if it is 
demonstrated that a too rapid enforcement of private 
rights is harmful to the public interest, the ultimate 
decision must come out of a balancing of the equities 
between the two. In such situations there is little 
helpfulness in a legal abstraction.



25

In Allen V. County School Board of Prince Ed­
ward County, Va., 249 F. 2d 462, (C.C.A. 4th), the 
school district was still stalling as late as November, 
1957. The District Judge had declined to order it to 
proceed and gave the following reasons :

(a ) Opposition to the order;
(b) racial tension in the community; and
(c) the possible closing of schools under a Vir­

ginia statute.

Apparently no testimony was offered. Like the school 
officials in Jackson, the District Judge did not think 
the community was ready. Evidently the only racial 
tension in existence was of the pro and con type which 
develops in all southern localities when integration is 
discussed.

In short, the Virginia situation was identical to 
that of Jackson. There had been no start and the only 
reason for the delay was that the populace did not 
like the idea. The Court said:

“ * * * Furthermore, it would not be neces­
sary for the requirement as to segregation to be 
removed at once with respect to all grades in 
the schools, if a reasonable start were made to 
that end with ‘deliberate speed’ considering the 
problems of proper administration. See order 
in the Arlington case, approved by this court, 
240 F. 2d at page 61, also Aaron v. Cooper (8 
Cir.) 243 F. 2d 361.

“ The fact that the schools might be closed 
if  the order were enforced is no reason for not 
enforcing it. A person may not be denied en­
forcement of rights to which he is entitled un­
der the Constitution of the United States be­
cause of action taken or threatened in defiance 
of such rights”  (p.465).



26

In the foregoing cases only a “ mental attitude” 
was involved. There were no overt acts of interfer­
ence which crippled operations. The law draws a dis­
tinction in many fields between a mental attitude and 
an act. The first may be licit while the second may 
be illicit. Here the District is not confronted with what 
people of the community think about integration. It 
is confronted with such realities as: Destroy­
ing school property; planting disobedience in the 
minds of the pupils; making the lives of the school 
officials and teachers miserable; plunging the District 
into expenses it cannot afford; spreading panic by 
bomb threats; depriving pupils, Negro and white, of 
an opportunity to obtain a normal education, etc., etc.

In the cases discussed above, the courts could 
never have envisioned the turmoil, chaos and confusion 
which agitators have thrust into the schools operated 
by the District, and no court intends its opinion to be 
stretched in meaning so as to furnish a guide for 
factual situations unknown and unknowable at the 
time it was rendered.

If there were nothing in this record other than 
proof of a mental attitude, the position of the District 
would be untenable under the decisions above men­
tioned. If, on the other hand, there are illegal and 
overt acts of interference which cannot be halted by 
the District or some law enforcing agency, then the 
schedule first adopted should be modified.

Respondents say a constitutional right cannot be 
denied even to “ promote the public peace by prevent­
ing race conflicts.”  From that it does not necessarily 
follow that a constitutional right, the enjoyment of 
which is conditioned by the decision creating it, can­
not reasonably be postponed in order to protect the



public interest, It is stated in Brown that in the 
elimination of obstacles in the transition from segre­
gated to integrated schools the courts shall “ take into 
account the public interest.”  The public interest re­
ferred to is that mass of rights belonging to whites and 
Negroes which are rooted in public education.

Of course, no constitutional right should be im­
paired on the basis of what some partisan says may 
happen in the future. That, however, is not the situa­
tion before this Court. Here we are dealing with a 
constitutional right and the existence of conditions 
which enter into a decision as to whether it is en­
forceable in the manner and according to the original 
time schedule.

ill

RESPONSIBILITY FOR ENFORCEMENT

The argument that the District should be denied 
relief because it did not affirmatively enforce the 
public peace and quell insurrection is probably as 
unrealistic as that involving the drayman and the 
bridge.

This is no mere instance of a handful of dis­
gruntled extremists in the community. The matter is 
rather one of massive resistance to and defiance of 
a constitutional principle running counter to the 
mores of the people. Under the leadership of popular 
office holders the people of the state are launched on 
a steady course o f absolute nonrecognition of the 
validity of the Broivn decisions, usually on the premise 
that they are unconstititional. The people have been 
told repeatedly by high officials, nationally syndicated 
columnists and others that the Brown decisions are 
not “ the law of the land” .



28

The District’s attempted desegregation met with 
total opposition by the state government. As Mr. 
Blossom stated (R .2 73 ):

“ My opinion as to that, sir, would be that 
we have had total opposition from the State 
in that the executive branch of state government 
placed the troops around the school; the legis­
lative branch of the government passed the 
segregation acts, the judicial branch of the 
government has not aided in any enforcement. 
Now that may be a lay interpretation, but in 
our system of government that embraces all 
three branches of it, and instead of aid we have 
opposition.”

And the Court may take judicial notice that two 
weeks ago the Arkansas legislature voted almost 
unanimously for the drastic anti-integration legisla­
tion proposed by the governor and the attorney gen­
eral.

At no time have the people of Little Rock 
or the school board expressed a feeling that 
integration of schools is desirable. The converse 
is true. But initially most people felt a re­
sponsibility as citizens to comply with orders of fed­
eral courts if that day came. When the District 
announced its plan of limited integration over a period 
of time most appeared satisfied that this was the best 
solution to a difficult problem.

Because of the statements made by our state’s 
leadership, because of the failure of the Department of 
Justice to prosecute members of mobs and others 
hampering the federal courts, because several school 
districts retracted desegregation plans with impunity, 
because school districts refusing to formulate deseg­
regation plans are still unintegrated despite months



29

and years of litigation, the people of Little Rock have 
changed their opinion. Now, in view of the above, 
the people believe that the District’s plan was 
wholly unnecessary in light of the other means of 
resistence, legal and otherwise.

The District has exercised good faith with the 
courts and will continue to do so but its task is not 
one of preserving the peace. It did not pursue a plan 
of desegregation through choice, and it should not 
now be placed in the position of being duty bound to 
quell defiance. It is not the function of a school 
district to act as a buffer in a contest between state 
and federal authority, and certainly not to act as the 
bulwark of federal authority in such a contest.

This Court, in giving a new interpretation to the 
Fourteenth Amendment, has pronounced a rule of law 
which is well in advance of the mores of the people 
of this region and violent opposition to its principle has 
erupted.

The purpose behind the filing of the Petition is to 
ascertain whether a non-combatant school district 
must submit to interference such as is revealed here 
in the absence of any effective protection from the 
Federal Government. If no protection is to be ex­
pected in two and one-half years, it will be wise to 
suspend operations for that period. If, in the nature 
of things, there will never be any protection, operations 
should be suspended until such time as the people, by 
the processes of time, are taught to respect Federal 
Court decisions and to be willing, on patriotic grounds, 
to subdue the passions which now control their think­
ing.

Instead of facing the problem, the Respondents 
would gulp the rights which are said to be theirs



30

with no concern whatever as to whether their course 
will end in frustration and a further wasting away 
of respect for national law. The District Court could 
see far beyond the horizon of the negro students. There 
are visible rights other than those of immediacy in 
integration. The public interest is involved, and it 
was thought best to adjust and balance rather than 
apply the over simplified syllogism that this Court 
having said the Negro pupils are entitled to some 
rights, it therefore follows that any retardation in 
granting those rights, regardless of the reason, is un­
reasonable.

There is no questioning of constitutional rights 
in a short delay. Those rights are recognized. In a 
temporary postponement of the time for the exercise 
of those rights, based on sound reason, there is no 
intimation of a lowering of status. A reasonable 
postponement is in the nature of an adjustment wisely 
required for the better protection of the very rights 
which are asserted. That is the rationale of the 
District Court’s decision. As a rule, education is far 
removed from the controversial areas of government. 
No one would think of a school district as being 
equipped to enforce a law which is objectionable to 
those who supply the funds with which the District 
is operated, and yet that seems to be one of the basic 
ideas of appellant. The petitioners quite candidly 
told the District Court they did not look upon such 
enforcement as being a duty and they felt it would 
be improper for the District, which is tax supported 
and whose revenues are limited, to expend its funds 
in perpetual litigation and prosecutions. Surely there 
is no federal law which could possibly impose upon 
a local school district any kind of a mandate which 
would force it to use its revenues, not for educational



31

purposes, but for compeling obedience on the part of 
others to federal laws.

Mobs formed preventing entry of the Negro 
pupils and screaming insults upon the Police Depart­
ment, school officials and the Federal Court. Arrests 
were made by the police, but the offenders were dis­
charged by the judge who presided over the Municipal 
Court. There was not a single prosecution by the 
Federal Government. There was not a single citation 
for contempt, although many of the participants were 
identifiable. A  spokesman for the Department of 
Justice, in an effort to impress upon the Governor of 
Arkansas the importance of maintaining law and or­
der through State action, explained the difficulties of 
Federal enforcement. Thereupon the Governor re­
vealed through the press the existing weakness in 
Federal enforcement and this, as intended, gave im­
petus to the deliberate flouting of the federal law. 
The FBI made an investigation and it is to be assumed 
that it identified the ring leaders. The local papers 
contained pictures of Negro pupils going into the 
office of the United States District Attorney to make 
complaints. Nothing happened. Then came a front 
page announcement in jumbo type that the Attorney 
General of the United States would not prosecute any 
of those who had taken part in the unlawful demon­
strations.

We are not in the least critical of the Department 
of Justice. As a matter of fact, we believe its staff 
has shown a high degree of competence and zeal in 
the Hoxie case and in the action to restrain the use of 
Arkansas National Guard in preventing Negro pupils 
from entering Central High School. The brutal fact 
is that the Department of Justice has only few and 
inadequate legal implements it can use in punishing



32

those who directly or indirectly defy the Federal Court 
order of integration. This fact having become ob­
vious, the agitators are emboldened and they go to 
further extremities in placing their individual ideas 
of law above any disagreeable judicial decision.

The problem of enforcement is forcefully pointed 
out in the book, “ Desegregation and the Law” , by Al­
bert P. Blaustein and Clarence Clyde Ferguson, Jr. 
(1957) , members of the faculty of Rutgers University 
Law School. It is there pointed out that severe doubts 
exist as to the constitutionality of Sections 241 and 
242 of Title 18, United States Code. United States v. 
Williams, 341 U.S. 70; Screivs v. United States, 325 
U.S. 91. And it is further pointed out that the con­
tempt power is limited by the requirement of certainty 
when dealing with broad desegregation orders and 
by its inherent inadequacy in coping with community 
disrespect for federal law.

In an article entitled “ Negro Citizens in the Su­
preme Court of the United States” , 52 Harvard Law 
Review (1939), at page 832, this is found:

“ It is impossible in reviewing these de­
cisions to avoid the conclusion that the Su­
preme Court, until recently at least, has been 
no great friend to the black man. There are 
those who believe that it could have done no 
more with a nonrational problem packed with 
sectional dynamite. Legislation running coun­
ter to emotions rising to a religious pitch is 
likely to require bayonets rather than equity 
decrees to enforce it. The Court is not well 
equipped to deal with a conspiracy by a whole 
state; and, when Congress has for so long been 
reluctant to interfere, it is not surprising that 
the Court should refrain from interfering with 
state policy.”



33

The author cites Giles v. Harris, 189 U.S. 475. 
In the opinion Mr. Justice Holmes had this to say:

“ The other difficulty is of a different sort, 
and strikingly reinforces the argument that 
equity cannot undertake now, any more than 
it has in the past, to enforce political rights, 
and also the suggestion the state constitutions 
were not left unmentioned in Sec. 1979 by ac­
cident. In determining whether a court of 
equity can take jurisdiction, one of the first 
questions is what it can do to enforce any order 
that it may make. This is alleged to be the 
conspiracy of a State, although the State is not 
and could not be made a party to the bill. Hans 
v. Louisiana, 134 U.S. 1. The Circuit Court 
has no constitutional power to control its action 
by any direct means. And if we leave the 
State out of consideration, the court has as 
little practical power to deal with the people 
of the State in a body. The bill imports that 
the great mass of the white population intends 
to keep the black from voting. To meet such 
an intent something more than ordering the 
plaintiff’s name to be inscribed upon the lists 
of 1902 will be needed. If the conspiracy and 
the intent exist, a name on a piece of paper will 
not defeat them. Unless we are prepared to 
supervise the voting in that State by officers 
of the court, it seems to us that all that the 
plaintiff could get from equity would be an 
empty form. Apart from damages to the in­
dividual, relief from a great political wrong, 
if  done, as alleged, by the people of a State 
and the State itself, must be given by them or 
by the legislative and political department of 
the government of the United States (emphasis 
supplied).

Counsel for appellants asked witnesses for the 
District why they did not institute proceedings against 
those who interfered with the operations of Central



High School as was done in Kasper v. Brittain 38, 
245 F. 2d 92 (C.C.A. 6th), and Brewer v. Hoxie School 
District, 238 F. 2d 91 (C.C.A. 8th). The reasons are 
obvious. In the Kasper case, only Kasper himself was 
involved. He fomented the strife. The school of­
ficials asked for a restraining order. It was entered 
and ignored. Kasper was then adjudged to be in 
contempt and brought before the court with an order 
of attachment. From that point on it was the pre­
siding judge and not the school officials who placed 
Kasper in the federal penitentiary.

In the Hoxie case (137 F. Supp. 364), there were 
only four defendants, to-wit, Brewer, Guthridge, 
Johnson and Copeland. The results of the agitation 
they had created involved the personal safety of the 
school officials and many others. The officials, aided 
by the Attorney General of the United States, sought 
an order of injunction. The latter had come in as 
amicus curiae. He filed an exhaustive brief in the 
Court of Appeals, and we are sure he was mainly 
responsible for the results of the litigation.

It seems inconsistent to us that counsel employed 
by NAACP contend that a school district sustained 
by tax funds should assume the burden of prosecuting 
those who interfere with the District’s efforts to com­
ply with the terms of the Plan. NAACP is an organ­
ization created for the very purpose of establishing and 
then enforcing constitutional rights of Negro pupils. 
It has a most capable legal staff and adequate funds. 
The idea of transferring to the School Board the bur­
den of prosecuting violators of the Court order is as 
strange as the idea of requiring a defendant who has 
been cast in damages to issue the process that will 
consume his assets in order that the plaintiff’s judg­
ment may be satisfied.



35

It is true that in Thomason v. Cooper, 254 F. 2d 
808 (E.D. A rk), the District applied to the District 
Court for an injunction against the use of a State 
court order which would have compelled it to violate 
the District Court’s order. That, however, was no 
indication of a willingness to assume the role of public 
prosecutor. As stated by Judge Sanborn, the District 
was between the “ upper and the nether millstone” .

The District officials respect their oaths to sup­
port the Constitution of the United States and they 
have done so to the best of their ability. Now they 
have concluded that a sincere effort on their part is not 
enough. They have practiced no strategy of evasion. 
They have made no move without asking approval 
of the Federal Court. Their attitude from the start 
has been one in which law and order along with their 
primary function of maintaining a public school sys­
tem have priority.

In Faubus v. United States, 254 F. 2d 797 
(C.C.A. 8th), the Federal Government had the power 
to act, and it exercised such power with swiftness in 
putting a stop to an unlawful defiance of a Federal 
Court order. A school district, however, which func­
tions only in the field of education, is not as formidable 
an adversary as the United States of America.

Respondents quote from the Faubus case as fol­
lows:

“ * * * A rule which would permit an 
official whose duty it was to enforce the law, to 
disregard the very law which it was his duty 
to enforce, in order to pacify a mob or suppress 
an insurrection, would deprive all citizens of 
any security in the enjoyment of their lives, 
liberty, or property (p.33).



36

To enforce the law of the land is obviously a duty 
of a law enforcing agency, but one of the vital ques­
tions here is whether any such duty rests on a school 
district. If it be said that the duty rests on the 
school district, then we ask how can it possibly en­
force the federal law and where is it to obtain funds 
to be used for the purpose?

IV

THE DISTRICT IS ENTITLED TO RELIEF

The District has requested and received from the 
District Court a stay of desegregation for two and 
one-half years. Its request was granted for com­
pelling reasons of public interest and preservation of 
the educational system. The Circuit Court of Appeals 
reversed although admitting the predicament of the 
District.

The District Court found that the situation was 
intolerable but this term cannot begin to describe the 
loss to the community and the nation that results from 
impairment and even breakdown in the educational 
process. This Court should not revisit chaos and 
bedlam upon the District, but rather should uphold Dis­
trict Judge Lemley in his determination of the local 
situation.

Where a school board has made a prompt start 
toward desegregation and has continued throughout 
to exercise good faith, severe impairment of the edu­
cational system both present and prospective because 
of desegregation entitles the school district to a post­
ponement regardless of the source and motivation of 
the destructive forces. The second Brown decision 
was so construed by the District Court.



37

If the Brown rule is not sufficiently flexible to 
allow time for the subsidence of forces such as are 
arrayed here against it, then it may be seriously 
doubted whether courts are able to effectively cope 
with “ state action”  such as this, and perhaps this 
Court should so hold. Certainly the legislative and polit­
ical departments of the United States government have 
displayed little willingness to assist in the implementa­
tion of the Brown decisions, although the matter would 
seem to rest more appropriately in those departments 
where obstruction by the governor and legislature and 
mass opposition by the people of a state is concerned.

We are not saying that all of the havoc created 
by the militant conflicting forces arrayed against 
each other as a result of the Brown decisions can be 
dispelled within the next two and one-half years, but 
we are saying that a reasonable period of calm is 
the only hope of producing solutions to the distressing 
problems which this School Board and the people of 
this community must solve. This School Board pleads 
for that opportunity. The ruling of the District 
Court can and should be upheld within the frame­
work of the pronouncements of this Court in the 
Brown decisions.



38

CONCLUSION

For the reasons stated it is respectfully submitted 
that the judgment of the Circuit Court of Appeals 
should be reversed.

R ic h a r d  C. B u t l e r  
Boyle Building 
Little Rock, Arkansas

A . F . H o u se  and  
J o h n  H . H a l e y

314 West Markham Street 
Little Rock, Arkansas

Attorneys for Petitioners



APPENDIX
FOLKWAYS by WILLIAM GRAHAM SUMNER

In our southern states, before the civil war, 
whites and blacks had formed habits of action and 
feeling toward each other. They lived in peace and 
concord, and each one grew up in the ways which were 
traditional and customary. The civil war abolished 
legal rights and left the two races to learn how to 
live together under other relations than before. The 
white have never been converted from the old mores. 
Those who still survive look back with regret and 
affection to the old social usages and customary senti­
ments and feelings. The two races have not yet made 
new mores. Vain attempts have been made to con­
trol the new order by legislation. The only result is 
the proof that legislation cannot make mores. We 
see also that mores do not form under social con­
vulsion and discord. It is only just now that the new 
society seems to be taking shape. There is a trend 
in the mores now as they begin to form under the new 
state of things. It is not at all what the humani­
tarians hoped and expected. The two races are separ­
ating more than ever before. The strongest point in 
the new code seems to be that any white man is boy­
cotted and despised if he “ associates with negroes” . 
Some are anxious to interfere and try to control. 
They take their stand on ethical views of what is 
going on. It is evidently impossible for any one to 
interfere. We are like spectators at a great natural 
convulsion. The results will be such as the facts and 
forces call for. We cannot foresee them. They do 
not depend on ethical views any more than the volcanic 
eruption on Martinique contained an ethical element. 
All the faiths, hopes, energies, and sacrifices of both



40

whites and black are components in the new construc­
tion of folkways by which the two races will learn how 
to live together. As we go along with the construc­
tive process it is very plain that what once was, or 
what any one thinks ought to be, but slightly affects 
what, at the moment, is. The mores which once were 
are a memory. Those which any one thinks ought to 
be are a dream. The only thing with which we can 
deal are those which are.

The abolition of slavery in the northern states 
had been brought about by changes in conditions and 
interests. Emancipation in the South was produced 
by outside force against the mores of the whites there. 
The consequence has been forty years of economic, 
social, and political discord. In this case free in­
stitutions and mores in which free individual initiative 
is a leading element allow efforts towards social read­
justment out of which a solution of the difficulties will 
come. New mores will be developed which will cover 
the situation with customs, habits, mutual concessions, 
and cooperation of interests, and these will produce a 
social philosophy consistent with the facts. The pro­
cess is long, painful, and discouraging, but it contains 
its own guarantees.

We often meet with references to Abraham Lin­
coln and Alexander II as political heroes who set free 
millions of slaves or serfs “ by a stroke of the pen” . 
Such references are only flights of rhetoric. They en­
tirely miss the apprehension of what it is to set men 
free, or to tear out of a society mores of long growth 
and wide reach. Circumstances may be such that a 
change which is imperative can be accomplished in no 
other way, but then the period of disorder and con­
fusion is unavoidable. The stoke of the pen never does 
anything but order that this period shall begin.



41

All these cases go to show that changes which run 
with the mores are easily brought about, but that 
changes which are opposed to the mores require long 
and patient effort, if they are possible at all.

I f we admit that it is possible and right for some 
to undertake to mold the mores of others, of set pur­
pose, we see that the limits within which any such 
effort can succeed are very narrow, and the methods 
by which it can operate are strictly defined. The 
favorite methods of our time are legislation and 
preaching. These methods fail because they do not 
affect ritual, and because they always aim at great 
results in a short time. Above all, we can judge of 
the amount of serious attention which is due to plans 
for “ reorganizing society” , to get rid of alleged errors 
and inconveniences in it. We might as well plan 
to reorganize our globe by redistributing the elements 
in it.

Strictly speaking, there is no administration of 
the mores, or it is left to voluntary organs acting 
by moral suasion. The state administration fails 
if it tries to deal with the mores, because it goes 
out of its province.

Great crises come when great new forces are at 
work changing fundamental conditions, while power­
ful institutions and traditions still hold old systems 
intact. The fifteenth century was such a period. It 
is in such crises that great men find their opportun­
ity. The man and the age react on each other. The 
measures of policy which are adopted and upon which 
energy is expended become components in the evolu­
tion. The evolution, although it has the character 
of a nature process, always must issue by and through 
men whose passions, follies, and wills are a part of



42

it but are also always dominated by it. The interaction 
defies our analysis, but it does not discourage our 
reason and conscience from their play on the situation, 
if we are content to know that their function must 
be humble.

JOURNAL OF PUBLIC LAW 
EMORY UNIVERSITY LAW SCHOOL

Volume 8 Spring 1954
Number 1

A u t h o r  R u p e r t  V a n c e

What of those important officers of administra­
tion, the members of local school boards? What al­
ternative have they? Obviously their alternatives are 
limited: they cannot resign when they are sued, en­
joined, or jailed for the community’s noncompliance 
with the law. But as citizens they can refuse service 
on school boards. Since there is political capital to be 
gained in these areas, such refusal to serve may well 
be selective— exercising negative selection on the more 
moderate business men and administrators, and bring­
ing forward those types who realize the political re­
wards to be reaped through the revival o f the “ Negro 
baiting”  tactics of the recent past.

A u t h o r  W y l i e  H . D a v is

Georgia is the only state which has immediately 
reacted to the school decisions with loud rumblings 
of threatened violence. Governor Talmadge and his 
cohorts, including some of his potential assignees



43

office, have pledged employment of the state militia 
if necessary as a last resort to keep the Negroes out 
of the white schools. Those who respect the law even 
when they are appalled with it will hope that such 
threats turn out to be a bluff. If armed resistance 
to specific court decrees, by state troops or vigilantes, 
should materialize, it might very well thwart the 
judicial process acting alone. Its occurrence could 
lead to a shocking denouement, since such defiance of 
the federal judiciary could not be ignored by President 
Eisenhower and his administration.

Evasion or definance of the law on a large scale 
would be a distressing blow to the education of whites 
and Negroes alike in the South, accompanied prob­
ably by a retrogression in every other phase of race 
relations. The general calmness that has followed 
the school segregation cases, albeit with plenty of 
argumentative discussion among the rank and file 
and a little political football, is an encouraging sign. 
The churches too may wield a powerful influence in 
the eventual adjustment of the problem. There are 
already definite indications that many Southern 
churchmen and law leaders do not relish being momen­
tarily outdistanced by a secular body on the educa­
tion route to human brotherhood. They may exper­
ience an increasingly strong moral and spiritual com­
pulsion to do some catching up (emphasis supplied).

One authority regards our separate schools as the 
“ essential nub of race relations” . Any satisfactory 
solution to the problems of interracial relations, it 
is contended, must be predicated on that assumption. 
The readjustment required, states sociologist Howard 
Odum, constitutes the most crucial domestic problem 
in the United States in 1954.



44

The decision undoubtedly marks the opening of 
a “ new era”  in race relations in the South. The 
period of quiet watching and waiting is over. School 
officials need no longer operate in “ a twilight zone” 
of uncertainty, now that the Court has spoken. Any 
new era must take cognizance of the Negro popula­
tion as a “ caste”  apart and the provisions now existent 
for separate educational systems. These two factors 
have created problems of administration of the public 
schools which are unique in the land, if not the world.

A last obstacle worth considering is the readiness 
of some to accept or to tolerate evasion of the Court’s 
decision. This fact raises a most serious question. It 
appears that the well-housed and the respected will 
continue to spearhead the movement of malevolence. 
It is they who speak in voices strident and raucous. 
What they say, consequently, has a special unpalatabil- 
ity because they are among the “ respected”  members 
of society. In some quarters, the appealers to “ mob 
spirit”  have the support of important blocs. Under 
the guise of the “ Men of This”  or the “ Women of 
That” , the superpatriots will arrogate to themselves 
the responsibility for “ preserving the Constitution” 
and “ our sacred American way of life” . That it is 
difficult to explain their failure to reject spurious 
reasoning, to repudiate policies clearly designed to 
hurt their fellow man, does not trouble the advocates 
of law evasion. Most frightening of the prospects is 
that inadvertently new life may be injected into the 
discredited Ku Klux Klan. Costly and lengthly litiga­
tion may be supplanted by the weapons of intimida­
tion and violence. As one writer had observed, it 
appears that the only thing which could “ revive this 
floundering aggregation of bed-sheeted heroes would 
be a Supreme Court order abolishing segregation in 
the public schools.”



45

A u t h o r  W . E . Ga u e r k e

Open defiance, or “popular nullification” , of the 
decision is generally conceded to be the least likely al­
ternative to the decision chosen by the Southern states. 
There will be, however, counter measures of delay and 
more delay, of attempts to expand the “ separate but 
equal”  concept, of establishment of “ free private”  
schools, of rezoning in city areas. For only the zealots 
see in court decisions the opportunity to integrate the 
dual school system within the immediate future. Even 
though the Southern states will have to abide by the 
Court’s decision and acclimate themselves to the law, 
they will do it neither willingly, completely, nor at 
once (emphasis supplied).

To resolve the dilemma of legislative and con­
stitutional mandates, federal and state, which are in 
conflict with each other and, seemingly, with demo­
cratic and religious assumptions about freedoms and 
autonomy, is the formidable job before at least seven­
teen of the state governments. The problem for each 
will be how to best live with inevitable change.

A u t h o r  M o z e l l  H il l

It is unfortunate that in a few deep South states 
the political climate in the immediate future will 
not be conductive to sane thinking and calmness. In 
a few of these states, political figures have already 
gone a long way toward amending the legal and 
political structures of the states so that communities 
will find it virtually impossible to comply with the 
Court’s decision. There is little doubt that these 
political figures will be “ successful” in their efforts 
and by these tactics they will hamper and even delay 
the desegregation process in a number of Southern 
communities for many years.



» - "  . . ' A ' ' ■ ... v

< 4 .■ . ' - - . ' A  a -  a a .a  * a  %  * ^  ' :  %

: . . .  • 1 . 1. ■■ ■ ~ V ' ..  ‘ A  a / A j

Wtflm 1

■ ’

A m

V ' A A k -A •

Wti
A - A .  % A A A # A * i

' . A  a  a ;v  a

A A a «•  . . ... ............................................ ... IA-- .A A. A? a /A..-,- al ■ ‘A1
8 & .

a  /• ‘V

m
. :,.rA - .

. .
• : a  ■ '' ■ a  a ■'■■■ v ,  «*» 1

A . - 5/ : - . -  ^  . *'  ^  ' i , k ;
'

.A . A-> l>:

,.V,\.-AA? j:. . ' , - A

A/ V: ' A A . W '  - A;a -a , : -  A : ;
. L  ■' ,.s " :  > , . . , .  *A .. ' M s l,:..-AA.: A-/ ;:AA..':x A A. A - ' • A-

vm&m, i f  a -

<>• „ . A - ' \ . A:. . . .  ' V . "•• V.„/, r-v A •' 0, • ■- '
a- • . ‘ »  -a 'A-:v>; ■ v.-a ,a M*-. r'-.A,: ; . ava >'a\-aa ,a;> .

.  ,  A '  ■ » ‘  ’ • A  A . ‘ . ;  . -• A

-. '
1 ■ ' ■ ’

“ * * '  A l t  A : A A !

^  , - f  K■ '  A

P ^  v .  ^  ^  s  K r x% v * >  vJ>  '  y c a  /  _"*■ s  ><' « ^

AiAv v _T -' . < '' ,; ;. A.^ A ' ;, - £
p a ®

■Aj. v  ;■ , ■ ;. > .'.... ■ '- - .'.. '■ ■ - An
; ■. ■■• ■ ■ ■ , r ; -' - 1

i ; - ,

:|a ‘v Va ;,
A 1 V  v A  V-: V U - -A  f  , v. , ; - r  ' , ,A .  ,. , s 1 J A ' -  ;  r  : '  . ' A ^ A .A 'A  V >%, % X  ’  V . ' F

'.'■. -a : '-  y  -> - A ' ■ • '  ' V , - 'A  '  v  '  „ ^  S' ^  ’ a  ^
. ,. A  . - , . a .-. /  * A  . . . . . .  r \ . -A  ■ -

A  • ‘ ■-.. A  ' ' A  a, '••■ ■ • v A:S ® A- '■ aa v>^.,a m

^  A*̂  , A
■ te v.'
•■• /'.' / ,: • V

m
i - h

a-.:, a , A  A-.. A. - - V>a;. *- y-‘ - >- JZ- - a m  a-'

w m

Of*
jfip

Aa’- aA

.'A- ::.A 5 -A A . ■'>■■■; .... /  'aA . # A A ? ;  aA a a AA

■

•'" ■. ;. ; • ' vav a'a :i. a<

‘A-A'A’A ?! a AAA* < ! : A - • ,

' i • AA?;'W'2
m t