Kelley v. The Altheimer, Arkansas Public School District No. 22 Record on Appeal

    R E C O R D

Intiwi States (Court of Appralo
F or t h e  E ig h t h  C ir c u it  

No. 18528 
C iv il

M oses K e l l e y , on b e h a l f  o f  h im s e lf  a n d  h is  m in o r  c h ild re n ,
Moses Kelley, Jr., et al.,

Appellants,
- V -  t

T h e  A l t h e im e r , A rk a n sa s  P u blic  S ch o o l  D is t r ic t  N o. 22, 
a public body corporate, and T h e  J. E. S tow ers 

C o n st r u c t io n  C o m pa n y ,
Appellees.

A P P E A L  ERO M  D E C IS IO N  O F T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R T H E  E A S T E R N  D IS T R IC T  OF A R K A N SA S, P IN E  B L U F F  D IV IS IO N

J ack  G reen b er g
J am es  M. N a b b it , III
M ic h a e l  M e l t s n e r

10 Columbus Circle
New York, New York 10019

J o h n  AY. W a lk er
1304-B Wright Avenue 
Little Rock, Arkansas

D electo r  T il l e r
2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Appellants



INDEX

PAGE

Relevant Docket Entries ...............................................  1

Complaint (Piled Feb. 15, 1966) ....................................  3

Motion for Preliminary Injunction ..............................  9

Motion to Intervene as Plaintiffs ............. ..................... 10

Answer of Altheimer School District No. 22 ...........  12

Separate Answer of J. E. Stowers Construction Com­
pany ..............................................................................  14

Plaintiffs’ Answers to Interrogatories by Defendant 
Altheimer School District No. 22................................  16

Preliminary Pre-Trial O rder.........................................  19

Defendant Altheimer School District No. 22’s Response 
to Plaintiffs’ Request for Admissions .....................  22

Defendant Altheimer School District No. 22’s Response 
to Plaintiffs’ Interrogatories ...............    27

Deposition of Dr. Myron Lieberman......................   36

Plaintiffs’ Educational Expert Witness (April 
30, 1966)

Stipulation ...............................................................  36
Direct Examination ................................................. 37
Cross Examination .................................................  67
Redirect Examination .........      99
Reporter’s Certification ........................................   103



PAGE
Transcript of Hearing (March 31, 1966) ......... ........ 104

Testimony of Fred Martin, Jr., Principal of the 
Martin Schools .......................................    105

Testimony of James D. Walker, Superintendent 
of Schools ........     118

Reporter’s Certification ..........................  226

Memorandum Opinion of J. Smith Henley, D.J. (June 
3, 1966) ..........    227

Judgment (June 3, 1966) ...............................................  249

ii



I s  THE

United States Siateirt (to rt
E a s t e r s  D ist r ic t  of A rk a n sa s  

P i s e  B l u e r  D iv is io n  

Civil Action No. PB-66-C-10

M oses K e l l e y , on behalf of himself and his minor children, 
Moses Kelley, Jr., et al.,

Plaintiffs,

T h e  A l t h e im e r , A rk a n sa s  P u b l ic  S ch o o l  D ist r ic t  No. 22, 
a public body corporate, and T h e  J. E. S tow ers 

C o n str u c tio n  C o m pa n y ,
Defendants.

Relevant D ocket Entries

2-15-1966—Complaint filed.
2- 17-1966—Motion for Preliminary Injunction filed.
3- 4—1966—Answer filed by Altheimer School District.
3- 4-1966—Interrogatories by Defendant Altheimer Public 

School District filed, directed to all plaintiffs.
3- 5-1966—Separate Answer of J. E. Stowers Construction 

Company filed.
3- 5-1966—Statement in Opposition to Motion for Prelim­

inary Injunction filed by Stowers Const. Co.
3- 7-1966—Memorandum in Support of Motion for Prelim­

inary Injunction filed.
3- 8-1966—Letter Preliminary Pre-Trial Order filed.



2

Relevant Docket Entries

3-10-1966—Requests for Admissions filed by plaintiffs.
3-10-1966—Interrogatories filed by plaintiffs, directed to 

School District.
3-10-1966—Anwers to Interrogatories filed by plaintiffs.
3-22-1966—Response to Interrogatories Propounded to de­

fendant Altheimer School District filed.
3-22-1966—Response to Request for Admissions filed by 

Altheimer School District.
3-31-1966—Court Trial begun at 10:00 a.m., before Hen­

ley, J. All testimony and arguments completed 
at 6:20 p.m. Permission granted to plaintiffs’ 
counsel to intervene for other persons. Case 
submitted.

5- 3-1966—Motion to Intervene filed.
5- 25-1966—Deposition of Dr. Myron Lieberman filed.
6- 3-1966—Memorandum Opinion by Henley, J. filed.
6- 3-1966—Judgment filed dismissing complaint.
7- 5-1966—Notice of Appeal filed by plaintiffs. Copies to

counsel for defendants by clerk.



3

Complaint

(Filed Feb. 15, 1966)

I
The jurisdiction of this Court is invoked pursuant to 

Title 28 U.S.C. §1343 (3) (4), this being a suit in equity 
authorized by law, Title 42 U.S.C. §1983, to be commenced 
by any citizen of the United States or other person thereof 
to redress the deprivation under color of law of rights, 
privileges and immunities secured by the Constitution and 
laws of the United States. The rights, privileges and im­
munities herein sought to be redressed are those secured 
by the Due Process and Equal Protection clauses of the 
Constitution of the United States.

II
This is a proceeding for a preliminary and a permanent 

injunction enjoining defendant Altheimer, Arkansas Public 
School District No. 22 and defendant J. E. Stowers Con­
struction Company from continuing plans to construct, 
and from constructing, separate public elementary schools 
for white and Negro elementary students. This is also 
a proceeding for a temporary and permanent injunction 
enjoining defendant Altheimer School District from con­
tinuing the policy, practice, custom and usage of assigning 
pupils, faculty and administrative staff on a racially dis­
criminatory basis and from otherwise continuing any 
policy or practice of racial discrimination in the opera­
tion of the Altheimer school system.

III
The plaintiffs in this case are Negro citizens of the 

United States and of the State of Arkansas who reside



4

in Altheimer, Arkansas. Adult plaintiffs are property- 
owners and taxpayers in the community of Altheimer, Ar­
kansas. Adult plaintiffs bring this action on behalf of 
themselves, the minor plaintiffs whose names are set out 
below who attend and are eligible to attend public schools 
in defendant school district, and on behalf of all other 
persons similarly situated.

The plaintiffs are: (1) adult Moses Kelley and his
minor children, Moses Kelley, Jr.—Age 10, grade 4; Katie 
Bell Kelley—Age 9, grade 3; and Lillian Kelley who will 
be age 5 when she enters grade 1 in September, 1966;
(2) adult Cardell Hannah and his minor grand child, 
Sheila B. Hannah, age 9, grade 4; (3) adult Climmie Rig­
gins and his minor children, Lois Jean Riggins—age 10, 
grade 4; Deborah Ann Riggins—age 9, grade 3, Howard 
Edward Riggins—age 6, grade 1; (4) adult Theodore 
Wyatt and his charge, James Etta Austin—age 12, grade 6; 
and (5) adult Floyd Thomas.

IV

Defendant Altheimer School District No. 22 is a public 
body corporate which owns, operates and otherwise main­
tains that Altheimer Public School System. James Walker 
is Superintendent of School of defendant school district.

Defendant J. E. Stowers Construction Company is a 
privately owned building construction company which was 
organized, is operating under, and is subject to, the 
laws of the State of Arkansas.

V
Defendant School District has historically operated a 

racially segregated system of public schools for Negro

Complaint



5

and white pupils in every respect including pupil and 
teacher assignments. Historically and presently, the schools 
operated by defendant school district for Negro pupils 
have been substantially inferior in all respects to the 
schools operated by defendant school district for white 
pupils.

VI
In 1965, defendant began a program of pupil desegrega­

tion using the “freedom of choice” approach. Under this 
plan, a few Negro pupils now attend the formerly all-white 
schools. The other approximately nine hundred Negro 
pupils in the district attend the all-Negro Martin Ele­
mentary and high school. Said Martin school has neither 
white pupils staff.

Complaint

VII
Although defendant Altheimer School District No. 22 

has committed itself to the Department of Health, Educa­
tion and Welfare to ending racial segregation, defendants 
district has planned and is about to have defendant J. E. 
Stowers Construction Company construct new school facil­
ities which will perpetuate racial segregation. Specifically, 
defendant Altheimer School District No. 22 plans to replace 
the present inadequate and inferior Negro elementary 
school with a new, air-conditioned “Negro” school to be 
located on the site of the present predominantly Negro 
elementary school.

VIII
Plaintiffs allege on information and belief that the de­

fendant Altheimer School District No. 22 has entered



6

into a contract for the construction of the two elementary 
schools with the defendant J. E. Stowers Construction 
Company located at 501 North University Street in Little 
Rock, Arkansas. Pursuant to the terms of said contract, 
defendant school district will construct two schools to 
replace the Martin (all-Negro) and Altheimer (predomi­
nantly white) schools. The buildings will consist of a total 
of twenty-four classrooms, two offices and restroom facil­
ities and will be located within six blocks of each other. 
Defendant J. E. Stowers Construction Company has con­
tracted to construct said facilities at a total cost of $257,331 
and has committed itself to complete said facilities by the 
beginning of the 1966-67 school term.

IX

Plaintiffs further allege on information and belief that 
the defendant school district’s plans for teacher desegre­
gation are too vague, too indefinite and too uncertain to 
afford minor plaintiffs the relief of teacher desegregation 
to which they are now entitled under relevant case law.

X
Plaintiffs allege on information and belief that the “free­

dom of choice” pupil assignment system now in use by 
defendant district is incapable of desegregating defendant 
district; and is also incapable of affording plaintiffs and 
other members of plaintiffs class the relief to which they 
are now entitled. Minor plaintiffs and members of their 
class have been denied and are being deprived of rights 
secured to them by the Fourteenth Amendment to the 
United States Constitution solely because of their race 
or color. Plaintiffs have no plain, adequate or complete

Complaint



7

remedy at law to redress these wrongs and this suit for 
injunctive relief is the only means of securing adequate 
relief. Plaintiffs stand to suffer irreparable injury from 
defendants unless defendants are enjoined by this Court 
from continuing the practices herein complained about.

Wherefore, plaintiffs respectfully pray that this court 
advance this cause on the docket, order a speedy hearing 
of the cause according to law and equity and, after such 
hearing, enter a preliminary and permanent injunction 
enjoining:

(1) defendant Altheimer School District No. 22 and 
defendant J. E. Stowers Construction Company from pro­
ceeding further toward construction of separate elementary 
school facilities for Negro pupils and for white pupils;

(2) defendant Altheimer School District No. 22 from 
disbursing any funds or other property to defendant J. E. 
Stowers Construction Company for the purpose of school 
construction so long as defendant school district persists 
with it’s present construction plans;

(3) defendant Altheimer School District No. 22 from 
approving budgets, making funds available, approving em­
ployment contracts and construction programs, and other 
policies, curricula and programs designed to perpetuate, 
maintain or support a racially discriminatory school sys­
tem;

(4) defendant Altheimer School District 22 from paying 
Negro teachers lower salaries than the salaries paid to 
white teachers;

(5) defendant Altheimer School District No. 22 from 
continuing its present “freedom of choice” pupil desegrega­

Complaint



8

tion policy; and from any and all other policies or prac­
tices established on the basis of the race or color of either 
the teachers or pupils in defendant district.

Plaintiffs further pray that this Court allow them their 
costs herein, reasonable attorney’s fees and such other, 
additional or alternative, relief as may appear to the Court 
to be equitable and just.

Complaint



9

(Filed Feb. 17, 1966)

Plaintiffs in the above styled cause move the Court for a 
preliminary injunction enjoining defendant Altheimer Pub- 
lice School District No. 22 and defendant J. E. Stowers 
Construction Company from proceeding- further toward 
construction of separate school facilities for white and 
Negro pupils in Altheimer, Arkansas.

Wherefore, upon the complaint filed in this cause on 
February 16, 1966, plaintiffs move this court for a prelimi­
nary injunction as prayed for in said Complaint and on 
the grounds therein set forth.

Motion for a Preliminary Injunction



10

(Filed May 3, 1966)

Pursuant to an oral motion by undersigned counsel at 
the trial of this cause come now the parties whose names 
are set out below and respectfully move the court to permit 
them to intervene in the above styled action. For cause, 
the parties praying to intervene show the court that they 
are Neg*ro parents and their children who reside in the 
Altheimer School District; That minor intervenors attend 
and are eligible to attend the Altheimer Public Schools; 
that the complaints made by plaintiffs in this cause are 
identical with the complaints of the intervenors; and that 
the relief prayed for herein as set forth in plaintiff’s com­
plaint is also identical.

The intervenors in this cause are as follows:
Earlie Armstrong, on behalf of himself and his minor 
children Deborah Ann Armstrong, Rickey Armstrong, 
and Jackie Lynn Armstrong; Allen Freeman, on behalf 
of himself and his minor children Allen Freeman, Jr., 
and Melvin Freeman; Joe Armstrong, on behalf of 
himself and his minor children Branda Armstrong and 
Darlene Bishop;

Columbus Manning, on behalf of himself and his minor 
child Dargame Bingham; Mrs. Jewell Dillard, on behalf 
of herself and her minor children Jereline Dillard and 
Sandra Kay Dillard; Roosevelt Reams, on behalf of 
himself and his minor children Roosevelt Reams, Jr., 
Eddie Lee Reams, Andrew Lee Reams, Amelia Reams, 
and Beatrice Reams ;
John H. Russell, on behalf of himself and his minor 
child Harold Russell; Arlee Jones, on behalf of him­
self and his minor children Ernest Lee Jones and

Motion to Intervene as Plaintiffs



11

Vernita Jones; Mrs. Naomi Jynes, on behalf of herself 
and her minor children Charles Akins, Alphonso Phil- 
mon, Rosa M. Philmon, and Johnny L. Jynes; Amos 
Jones, on behalf of himself and his minor child James 
Hudson;
George Britter, on behalf of himself and his minor chil­
dren Ruble Lee Britter, Joyce Lee Britter, George Brit­
ter, Jr., and Caloyn Ann Britter; Mrs. Marie Colemon, 
on behalf of herself and her minor children Shirley 
Colemon, Ella Colemon, Lula Colemon, and Lawrence 
Colemon; C. Daniel, on behalf of himself and his minor 
children M. Daniel, C. Daniel, Jr., Robert Lee Daniel, 
and H. Daniel;
Mrs. Mary Crater, on her behalf and her minor child 
Josephine Crater; Miss Betty Davis on her behalf and 
her minor children Stanly Davis and Reginald Davis; 
and Thomas Price on behalf of himself and his minor 
children Charles Price, Eurania Price, and Juanita 
Price.

WHEREFORE, intervenors respectfully pray that this court 
permit them to adopt and adapt the original complaint in 
this cause as their own and for such relief as is prayed for 
therein.

Motion to Intervene as Plaintiffs



12

(Filed March 4, 1966)

Comes the defendant, Altheimer, Arkansas, School Dis­
trict No. 22, and for its separate answer to the complaint 
of the plaintiffs herein states:

1. That it admits the allegations set forth in Paragraph 
IV of the plaintiffs’ complaint and it admits that portion 
of Paragraph V of the complaint which alleges that the 
defendant School District has, prior to the school year be­
ginning in September of 1965, operated a racially segre­
gated system of public schools for Negro and white pupils 
and so much of Paragraph VI as alleges that the defendant 
School District adopted a policy of desegregation of the 
schools of the District using the “freedom of choice” method 
and the plan for doing so has been approved by the Depart­
ment of Health, Education and Welfare pursuant to the 
authority and responsibility vested in that Department by 
the Civil Rights Act of 1964 (42 U. S. C. Sec. 1971 et seq.).

2. Further answering, the defendant School District 
states that prior to the commencement of this suit by the 
plaintiffs it entered into a contract with J. E. Stowers Con­
struction Company for the construction of two new ele­
mentary school buildings for a total contract price of Two 
Hundred Fifty-seven Thousand Three Hundred Thirty-one 
Dollars ($257,331.00). Public notice of the intention and 
plans for the construction of these buildings has been given 
throughout the School District for many months and were 
specifically outlined as the basis for an increased millage 
levy and bond issue which was submitted for approval by 
the patrons of the District on September 28, 1965, at the 
annual school election. Until the filing of this suit, no notice

Answer of Altheimer School District No. 22



13

was given to the defendant School District of any objection 
on the part of any patron or pupil in the District to the 
proposed construction, and by reason of the failure of these 
plaintiffs to act upon notice and knowledge available to 
them so as to prevent the District from becoming obligated, 
as it now is, for the construction of these buildings, they are 
now estopped to raise objection thereto.

3. Except to the extent hereinabove specifically admitted, 
the defendant School District denies each and every mate­
rial allegation set forth and contained in the complaint of 
the plaintiffs.

4. The defendant School District asserts that the plain­
tiffs have failed to state a claim against this defendant 
upon which the relief sought in Parts 1, 2 and 5 of the 
prayer to the said complaint could be granted.

Wherefore, the defendant, Altheimer, Arkansas, School 
District No. 22, prays:

1. That it be dismissed from this action with its costs 
with all other legal and proper relief; and,

2, That so much of the plaintiffs’ complaint as seeks the 
relief sought in Parts 1, 2 and 5 of the prayer thereto be 
dismissed for failing to state a claim against this defend­
ant upon which relief can be granted.

Answer of Altheimer School District No. 22



14

Separate Answer o f the  
J. E. Stowers Construction Company

(Filed March 5, 1966)

For its separate answer to the Complaint, The J. E. 
Stowers Construction Company states:

1.

That the jurisdictional allegations of paragraph I and 
II of the Complaint require no answer, hut to the extent 
that they imply that plaintiffs have been denied any con­
stitutional rights by this defendant, they are denied.

2.

This defendant has no knowledge of the identity, citizen­
ship, or capacity to represent others, of the plaintiffs, and 
therefore the allegations of paragraph III are denied.

3.
The allegations of paragraph IV of the Complaint are 

admitted except that the correct trade style of this defend­
ant is J. E. Stowers, General Contractor.

4.
This defendant has no knowledge of the matters alleged 

in paragraphs V, VI, IX and X of the Complaint, and 
therefore denies those allegations.

5.
It is admitted that this defendant entered into a con­

tract with the School District for the construction of two 
elementary classroom buildings, and that construction of



15

Separate Answer of the 
J. B. Stowers Construction Company

these buildings is now in progress. All other allegations 
of paragraph YII and VIII of the Complaint are denied.

W h e r e f o r e , this defendant prays t h a t  the cause of action 
be dismissed as to it, that it have judgment for its costs 
herein expended, and for such other or different relief as to 
the Court may appear just.



16

(Filed March 10, 1966)

Come the plaintiffs and for their Answers to the Inter­
rogatories served on them March 3, 1966, state:

1. State in what specific respects any school operated by 
the defendant School District was “substantially in­
ferior” to other schools operated by the District.

Answer: Historically the Negro elementary school sys­
tem located in Altheimer, Arkansas, has been sub­
stantially inferior to the white elementary school 
located in Altheimer, Arkansas as follows:

(a) New school buses would be used to transport 
white children, and the old buses that had been 
used to transport white children would then be 
used to transport Negro children.

(b) Prior to 1955, the Negro children had no hot 
lunch program at all, and when it was inau­
gurated in 1955 the old equipment that had 
been used for the benefit of the white children, 
who had had a hot lunch program for years was 
installed in Negro schools for the benefit of 
Negro children; while new equipment was in­
stalled in the white school.

(c) Because of the consolidation of all Negro wing 
schools by 1955, the Negro teachers had an ex­
cessive pupil load (Here we are referring to the 
entire student body because there was not a 
sharp division between elementary and high 
schools in that the principals were respnsible 
for both the elementary and the high school)

Plaintiffs’ Answers to Interrogatories by Defendant
Altheimer School District No. 22



17

i.e., sometimes 19, 20, and never more than 21 
Negro teachers to pupils with an enrollment of 
1000 and with average daily attendance 890 to 
900 during peak seasons; while 8 to 10 white 
teachers taught pupils with a total enrollment 
of around 375 with average daily attendance of 
approximately 300.

(d) Prior to 1955 the Negro school had no rating 
at all during which time the white school was 
rated between “C” to “A”. At the present time, 
according to our best information Negro school 
has an “A” rating and the white school has a 
“NCA” rating.

2. State in what specific particulars the construction of 
new elementary school classrooms by the defendant 
School District will perpetuate racial segregation.

Answer: The construction of new elementary school
classrooms by the defendant School District will not 
within itself perpetuate racial segregation.

3. State in what specifics the defendant School District’s 
plans for teacher desegregation should be modified to 
comply with the relevant Case Law.

Answer: Plaintiffs do not have sufficient information to 
say that defendant has any plan for desegregation of 
teachers and cannot therefore say how the plan should 
be modified. However, plaintiffs state on information 
and belief that the present faculty and staff is segre­
gated, and that defendant has no plans for reassign­
ing teachers in such manner as to insure that white

Plaintiffs’ Answers to Interrogatories by Defendant
Altheimer School District No. 22



18

and Negro teachers will teach at each school in the 
district during the school year 1966-67.

4. State whether or not any minor children of school age 
residing within the District and in your care or cus­
tody have been denied the access to any school in the 
District.

Answer: Plaintiffs have insufficient knowledge or infor­
mation to respond to interrogatory No. 4.

5. If you are the parent or guardian of minor children 
of school age, state whether or not you were given 
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 children during the 1965-66 school 
year without restriction on the basis of race, color or 
previous school attendance.

Answer: Plaintiff’s counsel are prepared to stipulate 
that plaintiff’s received notice.

6. If you are the parent or guardian of a school age 
child within the District, state whether or not you 
were given the opportunity to express a choice of the 
school to be attended by your child in the District in 
writing or otherwise, and if so, whether or not you 
exercised the option granted to you so to do.

Statement: Plaintiff’s counsel have not had an opportu­
nity to canvass all of the plaintiffs in this regard but 
shall do so as soon as time permits and will forward 
their answer promptly.

Plaintiffs’ Answers to Interrogatories by Defendant
Altheimer School District No. 22



19

Prelim inary Pre-Trial Order

(Filed Mar. 8, 1966)

Gentlemen:

This suit in equity is now partially at issue and this 
letter will serve the purpose of at least a preliminary pre­
trial order; your prompt attention hereto will be appre­
ciated.

1. The J. E. Stowers Construction Co. has not yet filed 
any pleading in the case, but I assume that in general it 
will take the same position as does the defendant school 
district, that is to say, that the construction company will 
deny that plaintiffs are entitled to any relief as far as the 
construction of the two elementary schools are concerned. 
Now, I notice that the Marshal’s return on the summons 
issued for the construction company reflects that service 
was had on J. E. Stowers who is described as the “owner” 
of the construction company. If the construction company 
is not a corporation, the suit should probably be against 
Mr. Stowers doing business as The J. E. Stowers Con­
struction Co. I do not know that this is too important, 
but I  am mentioning it.

2. On February 17 plaintiffs moved for a preliminary 
injunction but have not sought to obtain a hearing on that 
motion. On March 4 the school district filed its answer to 
the complaint. Assuming without suggesting that plaintiffs 
might be entitled to a preliminary injunction, I doubt that 
they would be inclined to furnish the substantial security 
which might be required as a condition to such an injunc­
tion. I think that the practical way to approach the problem 
is to hold a rather speedy trial on the merits, and I am



20

Preliminary Pre-Trial Order

wondering if counsel can be ready by the week of March 28, 
1966. Please advise me in that connection.

3. The ease has a three-fold aspect: (a) Plaintiffs seek 
to enjoin the construction of the two school buildings 
referred to in the pleadings, (b) Plaintiffs attack the dis­
trict’s “freedom of choice” plan of desegregation, (c) Plain­
tiffs seek to bring an end to alleged racial discrimination 
as to staff and faculty and to alleged discriminatory salary 
schedules.

As to the buildings and as to the “freedom of choice” 
plan, the defendants say that the complaint fails to state 
a claim upon which relief can be granted. Without in­
timating any viewT as to whether or to what extent, if any, 
this Court has jurisdiction to enjoin public school con­
struction on the theory which plaintiffs seem to advance, 
the Court will consider the question on the merits, and will 
consider that the district denies that the challenged con­
struction was designed to perpetuate racial segregation 
and denies that it will perpetuate invidious racial dis­
crimination.

As to the freedom of choice plan, counsel on both sides 
are aware that such plans have been approved by this 
Court, by other federal courts in Arkansas, and by the 
Court of Appeals for this Circuit. If the district’s plan 
has been approved by the Office of Education, as the dis­
trict says that it has, the Court doubts that it would be 
disposed to depart from its previous rulings.

4. Counsel for the district is now directed to file forth­
with a copy of its plan. The parties should be able to 
stipulate as to whether the plan has been approved by the 
Office of Education. If there is any dispute about that, 
the district should be prepared to make proof.



21

Preliminary Pre-Trial Order

5. Counsel on both sides are directed to endeavor to 
stipulate as to salary differentials, if any, between white 
teachers and Negro teachers.

6. The Court observes that the district has propounded 
interrogatories to adult plaintiffs. Answers will be due 
about March 20, but it may be that plaintiffs can expedite 
the answers. Any other discovery should be initiated and 
prosecuted with diligence to completion.

Please acknowledge receipt of this letter; any comments 
you may have to make hereon at this time will be welcome.

Very truly yours,

J. S m it h  H e n l e y ,
J. Smith Henley,

United States District Judge.



22

(Filed Mar 22, 1966)

Now comes the defendant, The Altheimer, Arkansas 
Public School District No. 22 of Jefferson Comity, and in 
Answer to the plaintiffs’ request for admissions heretofore 
on the 10th day of March, 1966, served in the above styled 
cause states:

Request No. 1. The Court has jurisdiction over the 
subject matter in controversy under Title 28 U.S.C. 
§1343 (3) (4) and Title 42 U.S.C. §1983.

Response: This defendant admits the truth of request 
for admission numbered 1.

Request No. 2. Plaintiffs are entitled to prosecute 
this action on behalf of themselves and other members 
of their class.

Response: The defendant admits that all of the plain­
tiffs are proper parties plaintiff with the exception of 
the plaintiff, Floyd Thomas, who is not a resident of 
the defendant school district. This defendant admits 
that the plaintiffs are proper parties to bring’ this 
action on behalf of themselves and other members of 
their class with the exception noted.

Request No. 3. Presently, the schools attended solely 
by Negro pupils are rated (A) or below by the State 
Department of Education.

Response: This defendant admits that the schools at­
tended solely by Negro pupils and operated by it are 
rated “A” by the State Department of Education.

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Request for Admissions



Request No. 4. Presently, the schools attended pre­
dominantly by white pupils are rated by the North 
Central Association of Schools and Colleges.

Response: This defendant admits that the High School 
attended predominantly by white pupils is rated by the 
North Central Association of Secondary Schools and 
Colleges, but this Association does not rate elementary 
schools. Altheimer High School was accredited by the 
North Central Association of Secondary Schools and 
Colleges in 1964. Martin High School is in the second 
year of an accreditation study, and this defendant 
believes and expects that it will be accredited by this 
Association when the new school buildings which are 
in dispute in this action are completed.
Request No. 5. North Central Association rating of 
a school indicates superior facilities, programs, equip­
ment, etc. to those of schools rated (A) or below by 
the Arkansas State Department of Education.
Response: This defendant admits that as a general 
rule accreditation of a high school by the North Cen­
tral Association of Secondary Schools and Colleges 
indicates the school possesses facilities, programs, 
equipment, faculties, etc. which are superior to those 
of schools rated “A” or below by the Arkansas State 
Department of Education. However, this defendant 
believes that there are numerous schools in the State 
of Arkansas which have been accredited by this Asso­
ciation which possess facilities, programs, equipment, 
faculty and other school attributes of a quality gener­
ally lower than that possessed by the Martin High 
School.

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Request for Admissions



24

Request No. 6. Requiring or permitting pupils to at­
tend the present all Negro school means that pupils 
assigned thereto will he deprived of equal protection 
of the laws.
Response: This defendant denies request for admis­
sion numbered 6.
Request No. 7. Taking into account the current en­
rollment in the predominantly white schools, the pres­
ent school facilities now being used primarily by white 
pupils are inadequate to accommodate several hundred 
additional Negro pupils.
Response: This defendant admits that the predomi­
nantly white schools operated by this District are in­
adequate to accommodate several hundred additional 
students of any race.
Request No. 8. Taking into account the present school 
facilities, and removing the factor of race, “freedom 
of choice” is an administratively impractical approach 
to making school assignments in defendant district. 
Response: In response to request for admission num­
bered 8, this defendant admits that “freedom of choice” 
is not in some circumstances an ideal administrative 
approach to school assignments, but it is not “im­
practical”.
Request No. 9. Defendant district plans the proposed 
new facilities as replacements for the present elemen­
tary school facilities.
Response: In response to request for admission num­
bered 9, this defendant admits that to some extent the 
proposed new buildings are to replace the existing ele­
mentary school rooms, but they are also to provide

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Request for Admissions



25

additional space for additional programs planned by 
the District and to accommodate increases in enroll­
ment.
Request No. 10. The replacement facility for the Mar­
tin (Negro) School will consist of approximately 
eighteen (18) classrooms.
Response: This defendant denies request for admis­
sion numbered 10 and states that the new construction 
at the Martin School site will consist of sixteen class­
rooms.
Request No. 11. The replacement facility for the 
Altheimer (predominantly white) School will consist 
of six (6) classrooms.
Response: This defendant denies request for admis­
sion numbered 11, but states that the new construction 
at the Altheimer School site will consist of eight class­
rooms and related facilities.
Request No. 12. Under defendant’s “freedom of 
choice” desegregation plan, less than twenty-five (25) 
Negro pupils of approximately nine hundred (900) in 
defendant district chose to attend the formerly all- 
white schools.
Response: This defendant admits request for admis­
sion numbered 12.
Request No. 13. Defendant district has not formulated 
specific plans to reassign teachers on a basis which will 
insure, during the 1966-67 school term, integrated fa­
cilities at all the schools operated by the district.
Response: To the extent that request for admission 
numbered 13 implies that the defendant School Dis­
trict has purposefully formulated specific plans to re-

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Request for Admissions



26

assign teachers on the basis of their race so as to be 
teaching in schools which may consist predominantly 
of students of another race on a broad scale the re­
quest for admission is admitted. As indicated in the 
response of this defendant to the interrogatories pro­
pounded to it, plans have been made for the use of 
white teachers in the predominantly Negro schools 
and Negro teachers in predominantly white classes.
Request No. 14. Defendant district has a dual salary 
schedule whereby Negro teachers are paid, on the aver­
age, lower salaries than white teachers.
Response: This defendant does not feel that it can 
honestly respond to request for admission numbered 
14 for the reason that average salaries do not provide 
a suitable guide or standard in determining whether 
disparities in salaries between teachers exist solely on 
the basis of the race of the teacher. To the extent that 
the request for admission numbered 14 would im p ly  
that there is a disparity in salaries paid to Negro 
teachers solely because of their race, it is denied. There 
are numerous Negro teachers whose salaries exceed 
those of numerous white teachers, and, in turn, there 
are numerous white teachers whose salaries exceed 
those of numerous Negro teachers. In each instance, 
the disparities in salaries between and within each 
race are based upon the qualifications of the Negro 
teachers without regard to their race.

T h e  A l t h e im e b , A rkansas  P u b l ic  S chool

D ist r ic t  N o . 22 of J effe r so n  C o u n ty

B y  / s /  J am es B. W a lk er  
Superintendent

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Request for Admissions



27

(Filed Mar. 22, 1966)
Comes the defendant, The Altheimer, Arkansas Public 

School District No. 22 of Jefferson County, by its Super­
intendent, James B. Walker, who, having been duly sworn, 
in response to the interrogatories served upon this defen­
dant in the above styled cause makes the following answers 
and responses thereto:

Interrogatory No. 1. State whether the defendants 
have entered into contract whereby defendant J. E. 
Stowers, doing business as the J. E. Stowers Con­
struction Company, will construct two elementary 
schools for defendant district. Also, attach a copy 
of such contract to your response to this interrogatory 
along with a copy, blueprint or other document which 
sets forth the details of the planned school construc­
tion.

Answer: This defendant has contracted with the de­
fendant, J. E. Stowers doing business as The J. E. 
Stowers Construction Company, for the construction 
of two school buildings for the defendant District. 
A copy of the blueprints reflecting the size, style and 
type of construction of these buildings is attached 
with the copy of these answers which will be served 
upon Mr. John W. Walker, as one of the plaintiffs’ 
attorneys. Because of the size and expense of duplica­
tion, this defendant desires to avoid further repetition 
of service of this document.
Interrogatory No. 2. State for each school—sepa­
rated into high school and elementary school divisions 
—now operated by defendant district the following:

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



28

a. the number of pupils by race
b. the number of teachers by race
c. the pupil-teacher ratio
d. the average daily attendance
e. the number of pupils who are “bussed” to and 

from school
f. the per capita expenditure on each pupil
g. the number of overcrowded classrooms
Answer: The response of this defendant to Inter­
rogatory No. 2 is submitted in tabular form as follows:

M aktix  S chools

Elementary High School
a. Negro 541 Negro 454
b. Negro 19 White 1 Negro 18 White 2
c. 1 to 27 1 to 25
d. 492 411
e. 335 305
f. The average per pupil expenditure at all schools 

operated by the defendant District is $240.00 per 
pupil based upon average daily attendance. The 
District does not attempt to maintain accurate 
records of average expenditures divided by schools.

g. 5 2
This overcrowding is based upon average daily 
attendance at the end of the six months of the 
1965-1966 school year and uses a classroom total 
of 35 as the maximum acceptable student load per 
classroom.

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



29

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories

A l t h e im e r  S chools

Elementary High School
a. Negro 2 White 198 Negro 4 White 209
b. White 8 White 12
c. 1 to 25 1 to 18
d. 184 210
e. 120 140
f. The average per pupil expenditure at all schools 

operated by the defendant District is $240.00 per 
pupil based upon average daily attendance. The 
District does not attempt to maintain accurate 
records of average expenditures divided by schools.

g. 4 6
This overcrowding is based upon average daily 
attendance at the end of the six months of the 
1965-1966 school year and uses a classroom total 
of 35 as the maximum acceptable student load per 
classroom.

Interrogatory No. 3. Set out for each high school a 
listing of the available course offerings.
Answer: The following courses of instruction are 
open to students of both schools in the grades indi­
cated :
Seventh Grade
English, Arithmetic, Science, Geography, Physical 
Education, Reading Clinic or Remedial English.
Eighth Grade
English, Arithmetic, Science, History, Physical Edu­
cation, Reading Clinic or Remedial English.



30

Ninth Grade
English-Literature, Algebra 1, Civics-Arkansas His­
tory, Home Economics, Vocational Agriculture, Physi­
cal Education, Reading Clinic or Remedial English.
Tenth Grade
English-Literature, Geometry, General Math, Biology, 
Home Economics, Vocational Agriculture, Reading 
Clinic or Remedial English, Physical Education.
Eleventh Grade
English-Literature, Algebra 2, Business Math, Chem­
istry, Home Economics, American History, Vocational 
Agriculture, Physical Education, Reading Clinic or 
Remedial English.
Twelfth Grade
English-Literature, Senior Math, Bookkeeping, Short­
hand, Office Practice, Problems of Democracy, Reading 
Clinic or Remedial English, Physical Education.

Physiology is offered primarily as an Eleventh Grade 
subject to students at Martin School but is not available 
at Altheimer High School. Martin schools have three years 
of General Science while Altheimer has only two years of 
General Science and offers two years of Biology instead 
of the one year of Biology offered at the Martin schools. 
Physical Geography is offered at Martin schools but is not 
offered in Altheimer school. French is available as an 
elective in the Altheimer school but not in the Martin 
school. Four years of Home Economics and Vocational 
Agriculture are offered to students of Martin school and 
only three years of these subjects are available to students 
at Altheimer school.

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



31

Interrogatory No. 4. Set out for each high school the 
available extracurricular activities.
Answer: The following extracurricular activities are 
available at Martin schools:
Inter-school Basketball, Baseball, Track, Tumbling, 
Intra-school Volleyball, Softball, Table Tennis, Horse­
shoes, Shuffleboard, Badminton, Kiekball, Touch Foot­
ball and Basketball.
The following clubs are active at Martin School:
Future Farmers of America, Future Homemakers of 
America, The Student Council, National Honor So­
ciety, Library Club, Science Club, Math Club, Choir, 
Camera Club, Commercial Club, School Newspaper, 
“M” Club (for athletes), 4-H.
The following extracurricular activities are available 
at Altheimer High School:
Future Farmers of America, Future Homemakers of 
America, Library Club, French Club, Student Council, 
Annual Staff, School Newspaper, Inter-school Basket­
ball and Baseball, Intra-school athletics similar to those 
at Martin School except that there is no equipment 
for tumbling at Altheimer School.
Interrogatory No. 5. Set forth the number of parents 
and/or pupils who failed to exercise any choice what­
ever, on forms provided by the district prior to the 
beginning of the 1965-66 school term.
Answer: Every student in school or known to be a 
prospective student for the 1965 fall term was pro-

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



32

vided a School Choice Form for their parents and 
they were instructed that it was necessary for their 
parents to execute this on behalf of their child and 
return it to the school during the spring pre-registra­
tion in 1965. Every student then in school or known 
to be a prospective student for the 1965 fall term had 
such a School Choice Form executed for him or her. 
There are some students who have transferred into 
the District since that time for whom no School Choice 
Forms were executed. Their exact number is not 
known and could not be obtained without great ex­
pense and difficulty. Among these are the minor chil­
dren of the plaintiff, Moses Kelley, who were enrolled 
on August 30, 1965, at the school to which they 
presented themselves and indicated was their choice 
for attendance.
Interrogatory No. 6. State the criteria by which 
pupils who failed to make a school choice on forms 
provided by the district were assigned.
Answer: It was the uniform policy of the District 
and all school principals were so instructed that no 
child would be enrolled for whom a School Choice 
Form had not been prepared. It now appears to the 
District that a small number of pupils were registered 
in one or more of the schools of the District when 
they presented themselves at a particular school for 
enrollment.

Interrogatory No. 7. State how the district’s school 
construction program will eliminate the pre-existing 
dual school structure.

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



33

Ansiver: The present construction program of the 
District is not intended, one way or the other, to have 
any bearing on the racial constituency of the schools 
involved. The construction of the buildings indicated 
is solely motivated by the District’s desire to provide 
the necessary classrooms to meet increased program 
and pupil loads and to utilize, as fully as possible, the 
necessary supporting facilities which are presently 
available such as cafeterias, offices and gymnasiums.
Interrogatory No. 8. Set out in detail the district’s 
plans for faculty desegregation next fall if those plans 
are different from the plan submitted to the United 
States Office of Education in 1965. Also, attach a copy 
of such desegregation plan to your response to this 
interrogatory.
Answer: No formal amendments have been made to 
the plan for desegregation of the schools operated 
by this District as previously submitted to the Depart­
ment of Health, Education and Welfare. However, 
in addition to continuing the desegregated programs 
referred to in the plan of the District as heretofore 
filed, the District now plans to fully integrate its pro­
gram of Vocational Agriculture and two instructors, 
one a Negro and the other white, will each teach mixed 
classes in that subject at a common location.
Interrogatory No. 9. State whether the district has 
applied for and received school funds under Title 1 
of Public Law 89-10. If so, attach a copy of such plan 
to your response to this interrogatory.
Answer: The District has applied for and has received 
school funds under Title 1 of Public Law 89-10. and

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



34

a copy of the plan for utilization of such funds and a 
request therefor is hereto attached.
[Attachment omitted]

Interrogatory No. 10. Set out copies of the notice 
given, the dates of same, the mode of publication, and 
the plans presented to the public prior to the bond 
election held on September 28, 1965. If copies of the 
information herein sought are unavailable, set out 
fully in narrative form the requested information.
Answer: The plan to construct elementary school 
additions to both the Martin school plant and the 
Altheimer school plant was discussed in P.T.A. Meet­
ings in both schools on at least one occasion prior to 
the school election on September 28, 1965. During 
the month of September, 1965, a mimeographed notice 
was sent with each school child to the parents urging 
them to vote in the school election. The required 
legal notices of the election, indicating the increased 
millage sought and the general purposes therefor, 
were published in the Pine Bluff Commercial as re­
quired by law and copies of the same together with 
the proof of publication thereof are hereto attached. 
There was wide discussion and general knowledge of 
the plan prior to the school election on September 28, 
1965. The Pine Bluff Commercial, which is the news­
paper having general circulation in this area, carried 
stories of the plans for construction of these two 
elementary school buildings in the July 22nd edition 
on the front page, in the September 26, 1965, edition 
in a story beginning on page 1 and continued on

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



35

page 2, in a story on page 3 of that paper on Sep­
tember 27, in a story on September 29 on the front 
page indicating the results of the school election and 
referring to an additional article on page 29 of that 
edition in which details of the school plans were set 
forth. In addition, on page 15 of the October 29th 
edition of the Pine Bluff Commercial an article in­
dicating the sale of bonds by the District was men­
tioned referring to the school construction and on 
February 11, 1966, in an article appearing on page 6 
there was a story indicating that contracts had been 
award to the lowest bidder for the construction of the 
two buildings in question.
[Attachment omitted]

T h e  A l t h e im e r , A rkansas P ublic S chool

D istrict No. 22 oe J efferson  County

By , / s /  J ames B. W alker 
Superintendent

Defendant Altheimer School District No. 22’s
Response to Plaintiffs’ Interrogatories



36

A ppearan ces  :

Hon. J o h n  W alker ,
1304 B Wright Avenue,
Little Bock, Arkansas
H on . H erschel H. F riday, of 
S m it h , W illia m s , F riday & B ow en ,
Boyle Building,
Little Rock, Arkansas
H o n . E. H arley C ox, of 
C olem an , B amsay, Gantt & Cox,
Simmons National Bank Building,
Pine Bluff, Arkansas

The deposition of the witness in the entitled and num­
bered cause, was taken before me, Jacqueline J. LaBat, 
Notary Public, in and for Pulaski County, Arkansas, in 
the building of the Altheimer High School, Altheimer, 
Arkansas, beginning at the hour of 10:50 a.m., Saturday, 
April 30, 1966, on behalf of the plaintiffs in the styled 
cause, in accordance with the Federal Rules of Civil pro­
cedure.

T h e r e u po n , th e  fo llow ing  p ro ceed in g s  w ere  h ad , to -w it : 

S t i p u l a t i o n

It is stipulated and agreed by and between counsel for the 
respective parties that the deposition of the witness may 
be taken at this time and place, by agreement of counsel; 
that all formalities as to the taking of said deposition is 
waived, including presentation, reading and subscription 
by the witness, notice of filing, etc., that all objections as

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



37

to relevancy, materiality and competency are expressly 
reserved and may be raised if and when said deposition, 
or any part thereof, is offered at the trial of the cause, 
and pursuant to the authority of the Court to introduce the 
testimony of additional witness on behalf of the plaintiffs 
which would be considered in connection with other evi­
dence submitted at the trial of the issues in this cause in 
the presence of the Court.

Further stipulation that the defendants reserve the right 
to introduce rebuttal evidence at a later time, and it is 
further stipulated that the plaintiffs may give testimony 
subject to any later objections.

Deposition of the Witness, Dr. Myron Lieberman,
Tahen at Instance of Plaintiffs

Dr. M yrow L iebermaw , called as a witness, after being 
duly sworn first by the undersigned Notary Public, in an­
swer to questions propounded, made the following state­
ments, to-wit:

Direct Examination by Mr. Walker:

Q. Would you state your name, your address and your 
occupation, please ? A. My name is Dr. Myron Lieberman. 
My address is 271 Doyle Avenue, Providence, Rhode Is­
land, 02906. My occupation is Director of Education Re­
search and Development at Rhode Island College and Pro­
fessor of Education at Rhode Island College in Providence, 
Rhode Island.

Q. Dr. Lieberman, where did you do your educational 
work? A. Are you speaking of my preparation?

Q. Yes, sir. A. I have a Bachelor’s degree in law and 
social science from the University of Minnesota and a 
Master’s and Ph.D. degree from the University of Illinois.



Q. Would you tell us what your major field of studies 
was at the University of Illinois? A. Well, my major 
field of study at the University of Illinois was education. 
My doctor was in field of philosophy and in the field of ed­
ucation. Most of my work was in that aspect of education, 
which is now called the Social Foundation of Education, 
which as the subject matter is an analysis and with factors 
like race and religion and the tax structure and other cul­
tural and social factors that affect public education.

Q. Would you tell us what educational programs were 
included in your field of study, like courses and the like? 
A. Well, the courses that were included were courses en­
titled Social Foundation, courses relating to theories of 
instruction, courses dealing with the role of pressure 
groups that affect-—that affect education, courses relating 
to personnel, and structure of education, courses relating 
to the tax structure and its affect on schools. In other 
words, by and large the course structure dealt with the 
major factors in shape and forms of public education.

Q. Have you ever taught in your field of study? A. Yes, 
I have been teaching in this area which, as I  say, included, 
for example, in fact race and religion and education, and 
in education since receiving my doctoral degree at the 
University of Illinois. As a matter of fact, I was teaching 
in this area even while I was working for my doctoral de­
gree, so the past twelve years this has been one of the 
major—my major, or professional, areas.

Q. Now, would you describe the responsibilities that you 
have at Rhode Island College? A. Well, of course, I do 
have—I do have some teaching responsibilities. My posi­
tion as Director of Educational Research and Development 
requires me to work with the faculty of the entire college

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



39

in the preparation and submission of research and develop­
ment proposals affecting the college. For example, if a 
faculty member wishes the college to hold an NDEA insti­
tute or if he wishes to conduct a research program which 
requires assistance either from public, city or private foun­
dations, then he would come to me and I would help him 
locate sources of donations and I would help him draft the 
proposal. I might help him find experts in this field who 
would work with him on it. In other words, this is a staff 
position which is designed to help other people in the col­
lege pursue research and development interests.

Q. I see. Would you name some of the professional or­
ganizations in your field in which you hold membership! 
A. Well, I belong—I’m a life member of the National Ed­
ucational Association. I belong to the state—the State 
Educational Association, the American Educational Re­
search Association, the Philosophy of Education Society, 
and the American Association, Association of Colleges for 
teacher education, American Association and the American 
Association for the Advancement of Science. These are 
some of the major professional associations, organizations, 
to which I belong.

Q. Have you ever written articles for any professional 
organization in your field of study! A. Well, I ’ve writ­
ten—Yes, I ’ve written about, I would guess—-Oh, I don’t 
know, well over fifty articles on various aspects of educa­
tion. They’re not all—not all of them are of course in­
volved race relations or kinds of problems that we’re deal­
ing with here. Some of them do. I ’ve also authored two 
books. I am the coauthor of another which is coming out 
in July on School Personnel Administration, and then have 
attributed to, or co-author of three other books, all of

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



40

which have some bearing upon the subject matter of this 
proceedings.

Q. Have you ever served in an editorial position for the 
journal of any of those organizations? A. Well, I was at 
one time editorial consultant for the Nation Magazine. 
This is not a professional magazine. I t’s a magazine for 
general cultural and intellectual interests, although I was 
the education consultant. I ’ve also served as a special edi­
tor of an issue of some professional journals. For exam­
ple, education. I ’m currently serving as the editor of a 
special issue of the Phi Delta Kappan which is the honorary 
fraternity in the field of education.

Q. I see. Now, Dr. Lieberman, are you familiar with 
the contract between the Altheimer School District and the 
J. E. Stowers Construction Company? A. Well, I would 
say that I ’m familiar with it. It would mean would I un­
derstand to be the main—main objective, the main purpose 
of the contract.

Q. I see. And are you familiar with the proposed build­
ing plans of the Altheimer School District? A. Well, as 
I—as I understand the main element, and I couldn’t—For 
example, there are many details concerning this construc­
tion plan that I am not familiar with, but as I understand 
the heart of the construction proposal, it is to construct 
sixteen elementary classrooms in what is now called the 
Martin School Complex, or the Martin—Martin Schools, and 
eight elementary school—there are eight classrooms in the 
Altheimer plans.

Q. I  see. Are you familiar with—Have you had an op­
portunity to view the facilities of both complexes? A. 
Yes. I visited—I spent—I spent a day, I believe it was 
Friday, April 1st, and visited both complexes and talked

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



41

to Superintendent Walker and to Mr. Martin and to a 
number of other teachers and administrators in the school 
district.

(At this time there is a discussion between counsel and 
the deposition is resumed.)

Q. Dr. Lieberman, I show you a copy of the per capita 
cost for each pupil in the Altheimer schools as certified by 
the Altheimer School District certified public accountant 
and ask you whether you are familiar with that. A. Yes, 
I  am. I have seen this—this statement.

Q. I  also show you, Dr. Lieberman, a copy of the data 
concerning the cost of local school districts, plaintiff’s ex­
hibit one, which sets out teachers’ salaries for the school 
district and ask you if you are familiar with it. A. Yes, I 
have seen this.

Q. I also show you plaintiff’s exhibit four which is a dis­
tribution of expenditure and per pupil cost of the Altheimer 
School District for the fiscal year ending June 30, 1965, 
and ask you if you are familiar with it. A. Yes, I  have— 
I have looked at this statement.

Q. Now, Dr. Lieberman, would you tell us what your 
understanding of the facilities of the Altheimer District 
are, generally speaking? A. Well, basically, as I under­
stand the system as it operates now, there is a—there are 
two—two school complexes, each are from grades one 
through twelve. One of these is labeled the Altheimer 
Complex, or Altheimer Schools, and the other complex is 
Martin Schools. Each complex runs from grades one 
through twelve. The Martin schools enroll negro pupils, 
the Altheimer schools enroll approximately four hundred 
white pupils and six or seven negro pupils.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



42

Q. I see. Are you familiar with the physical facilities of 
the two school complexes? A. Well, I visited—yes, I—I 
visited, I spent one day in visiting and discussing the 
physical facilities. Of course, I spent more time in some 
than I did in others and I am more familiar with some 
aspects and facilities than I am of others, but I developed— 
what I would regard as a fairly clear picture of the physical 
setup of the school districts.

Q. All right. Have you had an opportunity to study 
the exhibits in front of you and make any conclusions about 
the comparitive adequacies of the two school complexes? 
A. Well, it—it is obvious, from an analysis, not only of 
the—the figures that are included in these exhibits, but 
from an analysis of the system itself, that there is an 
appalling discrepancy of any equality in the per pupil 
cost per white and negro pupils in the school system. It is 
true, for instance, that there are certain elements in these 
figures that cannot be assessed precisely down to the last 
penny, but these particular points where it is impossible 
to fix a precise amount do not in any way, shape or manner 
invalidate the conclusion that the school district, that there 
is as I said earlier, a really appalling differential in the 
expenditures for negro than there is for white pupils.

Q. Now, Dr. Lieberman, would you look at the exhibits— 
A. Yes.

Q. —and be more specific? A. Well, take, for instance, 
the situation at the secondary school level. Now, the—the 
average, the teacher-pupil ratio in the secondary school 
levels, as I recall, is twenty five to one, at the Martin school, 
and eighteen to one at the Altheimer secondary school, 
and this is—in other words, the teachers at the Altheimer 
school—teachers at the Martin school, secondary school,

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



43

carried what amounted to a 33% heavier per pupil load 
on the average than they did at the Altheimer school.

Now, teachers’ salaries generally run to anywhere from 
sixty to eighty percent of the total cost of operating the 
school system as they do with the figures here which seem 
to be in that range, so obviously if the school system is 
spending, if the system is spending a great deal more for 
teachers for one group of pupils than for another, this is 
of course a very important inequality.

In addition to the fact, and of course I  want to emphasize 
I am only telling about one aspect of the figures, and in 
addition to the fact there is this very heavy differential in 
the teacher-pupil ratio. The teachers in the Martin Com­
plex are, with very few exceptions, paid less than the 
teachers in the Altheimer Complex. When you add that, 
when you add to the difference in class teacher-pupil ratio 
the difference in the salaries that are paid and then you add 
the fact that the physical facilities in Altheimer complex 
on the whole are superior to those in the—in the Martin 
complex, you can then understand that even though there 
may be some controversy over details, there is a—there is 
an enormous difference. I believe the—I would estimate 
that, and I think the figures bear this out, that the school 
system is spending a certain secondary level twice as much 
for instructional cost for white pupil than it is for negro 
pupil.

Q. All right. Are there any other things that—any other 
items set forth here in the documents before you which 
cause you to conclude that negro pupils, or pupils at the 
Martin school, are not being given equal treatment as the 
pupils at the—with pupils at the Altheimer school? A. 
Well, the things that I examined and studied, I would say

Deposition of the Witness, Dr. Myron Liebermcm,
Taken at Instance of Plaintiffs



44

it would be difficult to find one aspect—Well, let me change 
that. They are, on the whole, I would say, that the students 
at the Martin school are attending school under a serious 
disadvantage. The things that I mention, like teacher-pupil 
ratio and the physical facilities are important, but to go 
on, for example, the gymnasium facilities seem to be far 
superior at the Altheimer school than they are at the 
Martin school. There’s a much better auditorium. There 
are much better facilities for the spectators, it is a bigger 
installation, the library facilities. There’s a serious dis­
crepancy—serious in equality in the library facilities. For 
example, when I visited the library at the Martin—Martin 
school the library was very crowded. There is no separate 
study area. The study area was completely in the same 
area that is surrounded by books.

Now, most experts in school libraries advocate that there 
be a study area that is separated—separate from the 
library reading area. Now, there is such an area available 
at the Altheimer complex next to the library, but at the 
Martin schools this is not available. So that these are— 
these are some of the items that would lead me to—I mean 
lead me to the. conclusion that there is really a specific in­
equality of educational opportunity in the two complexes.

Q. Do you have an opinion as to the educational signifi­
cance of the type of teacher per pupil expenditures in the 
two schools'? A. Well, few—yes. For instance, just take 
a matter of necessity for improving construction in the field 
of English instruction. Now, there are—May I refer here 
to—

Q. Certainly. A. If I may refer here, for example, to 
what is probably the most important study of secondary 
education that has been made in this country. The study of

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



45

the American High School, by Dr. James Bryant Conant, 
and then a discussion of English instruction. He says for 
the best instructions themes all should be corrected by the 
regular teacher who in turn shall discuss them with the 
students. Obviously, an adequate instruction in English 
composition requires the teachers not be overloaded.

Well now, if you have one teacher who is, let’s say, 
dealing with twenty five or thirty students and you have 
another teacher who is dealing with fifteen or twenty, this 
is a tremendous overload in dealing with the students as 
an individual. One teacher had many more themes to 
read, she would have many more pupils to talk to and as 
a result of this, she would have less time for each individual 
pupil. Now, again, I ’m only referring to this as an example 
to run through the entire instruction on the program. If 
there is a serious discrepancy as there is here in the aver­
age, in the teacher-pupil ratio, that means that each teacher 
to the extent that this is true, has less time to devote to 
the individual student to discuss with him what his diffi­
culties are and help him as an individual. There is no 
doubt that this runs all the way through the educational 
program.

Q. Do you have an opinion as to whether white pupils 
in the—in Altheimer are getting good education for the 
investments that the school is giving? A. Well, I—I very 
definitely feel that the white pupils in the Altheimer 
School System are being drastically shortchanged in the 
education that is being offered to them. Let me illustrate 
this.

Again, it’s only one illustration of many that could be 
provided. Here the school system is operating two libraries

Deposition of the Witness, Dr. Myron Lieberman,
Tahen at Instance of Plaintiffs



46

one through twelve grades five blocks apart. Now, what 
books are going to go in each library? Are you going—The 
system either has to buy duplicate copies of the same book 
if it would just provide the books that are needed. Every 
time you buy duplicate copies of a book where one will do 
this means that you have less money to buy additional 
books that would be useful to students who might need the 
additional book.

Take the matter of personnel. It would be very helpful, 
for example, if the elementary student had an elementary 
librarian. It would be very helpful if secondary students 
had a librarian who was a specialist in the needs of the 
secondary pupils. Now, most schools of education, for 
example, provide courses in children’s literature. One rea­
son being that this is—this is a field that is in itself. On 
the other hand, if you have two libraries each of which 
covers grades one through twelve, you have a librarian at 
each one, what then is the situation? If the librarian there 
is an elementary librarian then the secondary pupils suffer 
because the librarian isn’t adequate for that purpose. If 
the librarian is a secondary for the secondary program the 
elementary children suffer because it could have been a 
librarian who is a specialist in children’s literature.

Now, as you look at the range of subjects that are offered 
and the range of extra-curricular activities, first of all 
there is a very considerable amount of duplication in both 
the subjects and in the activities. Then there are some sub­
jects and facilities that are offered at one complex but not 
at the other. For example, just to cite this in terms of 
some of the extra-curricular activities, as I understand from 
the board’s interrogatories that were answered by the

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



47

board, there is no—there is no National Honor Society at 
the Altheimer complex.

Q. Did yon say the Altheimer complex? A. That’s right.
Q. You mean the Martin complex? A. Well, we can 

check the interrogatories. On page three of the interroga­
tories it says “the following clubs are active at the Martin 
school”, in the second line, that is National Honor Society. 
Now, I don’t see any National Honor Society in the 
Altheimer school. Now—

Q. Go ahead. A. Any—Again, it is just an illustration 
that any—any high school, any school board would want to 
otter this kind of thing and make it available for its stu­
dents so let me—let me emphasize it in this way: In the 
Study of the American High School” Dr. Conant made 
the following comment: For example, on page thirty seven 
this is headed: “Elimination of the small high school top 
priority.” And he goes on to say on page thirty seven “I 
am convinced small high schools can be statisfactory only 
that are—absorb its expense” and he goes on to explain 
why this is the case to provide adequate teachers for spe­
cialized subjects. It is extremely expensive to maintain an 
interest in academic subjects among a small number, it 
is not always easy. While academic programs are not 
likely to be offered when the academically ones in a school 
are so few in number, the situation in regards to non- 
academic elective programs in a small high school is even 
•worse.

The capital outlay for equipment as well as the salary 
of the special vocational instructors adds up to such a 
large figure in terms of the few enrolled as to make the 
educational programs prohibitively expensive in schools

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



48

when the graduating classes have less than one hundred.” 
Then he goes on to say that “I should like to record this 
in italics, 1 should like to record at this point my conviction 
that in many states the number would—one problem is the 
elimination of the small high school by district reorganiza­
tion.”

Now, in other words, he is assuming in writing that no 
school district that was capable in itself of eliminating a 
small high school would not do so. It never occurred to him 
in writing this that you would maintain two high schools— 
two high schools, which even combined, were less than the 
number needed to operate a high school efficiently from an 
educational standpoint, even if you combined them. I be­
lieve that the—the combined numbers would probably bring 
the—it would be just at the margin of the minimum number 
that you need, and I think it would be less than the mini­
mum that you need to operate a secondary school efficiently 
but in this particular case the school board presented with 
an opportunity to at least reduce this almost incredible 
duplication, yet made a voting decision to continue the 
duplication in the perpetuation of not one but two small 
high schools. Now, I regard this as a major disservice to 
the white students as well as to the negro students. Every 
time you duplicate you—you reduce whatever you might 
have done with the money that you spent for the duplication.

Now, as I say in this particular book and Dr. Conant 
points out that his conclusions concerning small high 
schools are supported by recommendations of a number of 
other professional agencies such as the Committee of the 
American Association of School Administrators.

I think it’s important to see the relationship of this to 
the building program of the school board. In order to

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



49

evaluate ■ the adequacies of the school board’s building pro­
gram one must take into account what other facilities are 
available and what you see can be made of them.

Now, here, for instance, the school board could have made 
a decision to eliminate the inequalities between two groups 
of secondary pupils and two groups of elementary pupils. 
They could have gotten rid of two extremely small ineffi­
cient high schools, but it chose not to do that. Now, I tried, 
and I think, if I may say this, in coming down here, my at­
titude toward the school board’s decision, and the actions 
were as follows: I wanted to see if there was any educa­
tional or financial or other justification for the school 
boards’ actions. Even though it might have been a justifica­
tion that I  did not agree with. In other words, I did not 
want to be in a position of saying—and I would not be in the 
position of saying that the school board’s policies here or 
its program was not a good one, merely because I did not 
agree with it as long as I could find some reasonable basis 
for the school board’s decision. Then I would not—I would 
not be here now saying what I’m—doing.

Q. Dr. Lieberman, now, you say you have been looking to 
find some reasonable basis? A. Yes. Some educational or 
financial or other basis for the decision.

Q. Now, have you found any educational justification or 
financial justification for the proposed elementary school 
building? A. I find absolutely none. I think that from a 
standpoint of sound school administration the deliberate 
decision to perpetuate two school systems, two school com­
plexes, each running grades one through twelve, neither of 
which are even combined, do not really have the numbers 
in some cases to run a good program, but when separated 
make a sound educational program of exorbitant—such ex-

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



50

orbitant cost that the school system is never going to pay 
it and can’t pay it, I find no educational or financial or other 
justification for this whatsoever,

Q, Have you studied the duplication of the facilities that 
must necessarily result from the building program? A. 
Well, you have a—I mention this at the high school level. 
When I ’ve used the library as simply one illustration. Of 
course, every time you duplicate a classroom where you 
don’t need it you’re taking away money that could be used 
for something else.

I think it’s very important to see that a school today per­
forms a wide range of functions not only academic func­
tions, that is certain vocations, all the objectives, that is 
guidance objectives that help, objectives that is social ob­
jectives and to carry these out efficiently requires special­
ized personnel. And in many cases these personnel are 
scarce and it’s hard to get them.

Now, if you duplicate all of these, first of all you make 
it impossible to serve the students in both complexes. 
Secondly, because it’s not feasible for a teacher or any 
special service personnel to spend a little time doing the 
thing that he’s a specialist in because there are too few 
pupils that are to justify his doing it and he has to spend 
a certain amount of time doing something for which he’s 
not trained to do. And this is something that pervades the 
entire school district operation at the present time.

Q. Now, under what circumstances, in your opinion, 
would a kind of school construction program that the dis­
trict is embarked upon be reasonable and acceptable? A. 
Well, you could have—you could have just, for example, 
construction of separate facilities under certain circum­
stances. If one school—if the children in the community

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



are so far apart that it is not feasible to transport them to 
a central school or you may have pupils with certain edu­
cational needs. They may be crippled or they may be blind 
or they may have some handicap such that it is justifiable 
to spend a great deal more on some pupils than others, but 
of course neither of those reasons applies in the present 
case. The majority of the pupils both white and negro are 
boxed in from a standpoint of educational field, although 
I have not seen any test data or achievement data on the 
pupils. I have no reason to think that the situation here 
would be different than it is from many. I mean in virtually 
all the communities that have substantial number of negro 
students. And their educational needs tend to be greater 
than those of the white students because they, for various 
cultural reasons, they tend to fall behind quicker. Their 
parents make less money so they have fewer books at home 
and they have fewer facilities. They don’t have the separ­
ate facilities to study at home as often the white pupils do, 
and for a variety of reasons they come to school with more 
handicaps than the average white student has, so that from 
a standpoint of educational need if the money were to be 
expended it would be—it ought to be expended at a far more 
per negro child than per white child; instead of that, why, 
of course, you have a very appalling reversal of that policy.

Q. All right. Now, are there facilities which ordinarily 
would be placed or considered in the planning of school 
facilities which are omitted from the—either of the two 
proposed facilities here? A. Well, in talking with Super­
intendent Walker I asked him whether there was an ele­
mentary school library that was planned in the Altheimer 
elementary facility and he informed me that there wasn’t. 
Now, this is, of course, a good illustration of the need that 
one could have. I  could certainly, if there was one elemen-

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



52

tary complex, it would be possible to have an elementary 
library that would service all the pupils. I want to say a 
word, however, about the entire procedure in the planning 
of the school facilities.

Now, I have here, for example, a number of the leading 
correlated statements on the planning of school facilities. 
For instance, the one here that I have in mind is put out 
by the National Council for School Construction. Now, this 
council is limited to persons who spend full time in the 
area of the school house construction. I t’s really a national 
organization of experts in this field. And let me just quote 
briefly what they say about the planning procedures. One 
of the things they say, on page four is that supervisors and 
teachers concerned with particular parts of each new school 
have each—of each new facilities should be able to discuss 
the school systems with the chief planner and architect, the 
applications of the particular parts of the educational speci­
fications to build and design. They should have an oppor­
tunity to review preliminary and final plans and to com­
ment upon what they believe to be good, and if a bad feature 
is concerned members of the professional and non-profes­
sional staff should be encouraged and guided on visits to 
other schools to prepare them for and make specifications 
in planning matters that will affect the designed areas that 
they or their representatives will later utilize. Now—

Q. Well, let me ask you just one thing. A. Yes?
Q. Is there any support or is it your opinion that ordi­

narily in planning school construction there is community 
involvement? A. Well, as I say, not only in addition to 
the recommended procedure, and that runs through the 
other statements and textbooks that I have here on school 
construction. They are all in agreement that the sound pro-

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



53

cedures call for thorough community, as well as, profes­
sional involvement.

Now, certainly on the basis of my discussions with the 
superintendents and the other administrator staff that I 
talked to and those teachers that I talked to, this did not 
happen in the development of the board’s plan here. As a 
matter of fact, one of the things that disturb me a great deal 
was the fact that the teachers and some of the administra­
tive staff in the Altheimer, in the Martin complex were not 
even familiar, not even visited physically the inside, and 
many of the facilities at the Altheimer complex. Did not, 
in other words, from this school system, far from encourag­
ing the visits outside the school system, apparently would 
not even—did not even encourage the visits of the schools 
in the whole system five blocks away.

Q. Did you find that in your conversations with the su­
perintendent and the other persons whom you have dis­
cussed this matter with, that there had in fact been a plan­
ner, an educational consultant in on the planning of the 
facilities? A. I recall discussing this matter with the su­
perintendent and my—my recollection is that he informed 
me that there was none.

Q. There were no plans? A. Now, he also—my recollec­
tion of our discussion, my discussion with him was that to 
some extent the plans for these two buildings were a carry­
over from a plan that the board had considered some years 
briefly. Now, the superintendent did not categorically state 
to me that the plan, the detailed plan of operation, was one 
that the board approved, but he did state that the board had 
previously planned to eliminate the two elementary struc­
tures and to replace them with new buildings. Now, of 
course, a plan—Let me back up just a minute. The board 
has—the board, in issuing its statements of compliance

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



54

with the guide lines issued by the United States Office of 
Education, last year stated, as I recall, that the unwavering 
policy of the board had been to operate its schools in a 
racially segregated manner up until 1965. Now, obviously, 
a school construction plan that had been drawn up while 
that was the official policy of the board would almost— 
would inevitably be changed if the board had abandoned 
that policy.

Now, I asked the superintendent why did the school sys­
tem decide, or the board, decide to build sixteen classrooms 
in one and eight in another. Why not put all the elementary 
schools in one complex or why not twelve and twelve or 
why not some other basis for building and he offered no— 
no educational justification that I could see. He referred to 
traditions in the community. Now, this is another very 
important thing in school planning, and good school plan­
ning considers various alternatives. Their costs, their ad­
vantages and their disadvantages, and even in—encourages 
staff discussion and community discussion.

Now, as I  say, based upon my discussions, not only with 
the superintendent, but the other people here, but it seemed 
clear to me that that was not done in this situation. Let me 
refer here on this—on the procedure here. For example, here’s 
one of the reading texts in the manner of school construc­
tion entitled “From School Program to School Planning,” 
and the authors are four authorities from Ohio State, Jack- 
son, Michigan, and Michigan Department of Public Instruc­
tion, and the Professor of Architecture at Harvard Uni­
versity. Now, they, in discussing procedures for building 
schools, say this “While the details vary, many boards of 
education make a hurried decision to build, employ an archi­
tect and have him prepare drawings and specifications with-

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



55

out benefit of adequate study of the educational program. 
They then approve his quickly developed plans and proceed 
with the construction, and if the building that is educa­
tionally satisfactory results it is by chance.” Too frequently 
a building is constructed which is satisfactory for educa­
tional program of a general age, but which is never neither 
adequate for today’s program nor readily adaptable to 
changes in the future. The presentation of this superficial 
planning is inadequate educational opportunities for the 
communities’ children for the next half century or more.”

Now, I regret to say that this appears to me to be very 
accurate description of what has happened in this school 
district except that I don’t know that it’s going to happen— 
to handicap the children for half a century, but I do think it 
is clear that by building two school complexes both of which 
run grades one through twelve the school board has intro­
duced, or has perpetuated, an element which is going to 
divide the school district in the indefinite future.

If there were one central complex and a pupil in a par­
ticular grade had to go to that complex there would be no 
problem and no controversy over equality of educational 
opportunities. They’d all be sharing the same facilities and 
the same teachers and be subject to the same arrangements.

Now, the board has not done this. It has gone ahead and 
perpetuated two separate complexes, both running from 
grades one through twelve. I think that as a practical mat­
ter that what this is going to do is going to divide it and 
it’s going to divide it even apart from race. Even leaving 
apart any racial consideration the administrative staff is 
going to have many difficult decisions to make, how many 
books or how many teachers or what facilities or what this 
or what are you going to have at one school rather than

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



56

the other, and I don’t see the slightest point or advantage 
or anything else to be gained from this. And I personally 
see permanent devisive disadvantages to this procedure.

(At this time there is a recess and the deposition 
is then resumed).

Mr. Cox: Mrs. LaBat, I want to put into the rec­
ord, by stipulation, Dr. Lieberman’s vita as of Jan­
uary 1, 1966. I missed part of your statement, but I 
understand that you have introduced the document 
that you’ve just handed me as a stipulated item.

Mr. Walker: Yes.
(Thereupon, Exhibit 1, Plaintiff’s exhibit, is 

hereby appended to the original transcript and 
made a part of the record).

Q. (Mr. Walker continuing) Now, Dr. Lieberman, do you 
have any further comment or opinion about the procedure 
used by the board in beginning its school construction pro­
gram or plan? A. Well, the fund—One of the comments 
which I ’m not sure I made before, we recessed. In my dis­
cussion with the superintendent I asked him whether the 
board had ever considered the single elementary facility 
of the complex and the single secondary complex at the 
other. He informed me that the board had never—never 
considered this. Now, I think that again, regardless of 
whatever you might say, political or community difficulties, 
the board members have—may have that; when a person 
becomes a board member of course he accepts certain obli­
gations that go with that. In this particular case I would 
assume that one of the obligations would be to inform the

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



57

community of the costs and the advantages and the dis­
advantages of the various alternatives of school construc­
tion, and again based on the information given me by the 
superintendent I conclude that that wasn’t done in this case.

Q. Dr. Lieberman, do you have an opinion as to whether 
there were any factors relating to the actual construction 
program that suggested race as a factor? A. I think every­
thing that I’ve suggested—Race is a factor because there’s 
a complete absence of any other educational or financial or 
professional justification for doing it. I—As I mentioned 
earlier, if there were a justification even for one that I did 
not agree with, that would be one thing, but I don’t see any 
factor underlining the construction of the schools on the 
basis of the board’s operating, except a racial factor. Even 
some of the things that Superintendent Walker suggested 
to me. For example, he said that the reason that the ele­
mentary school was being built at Martin complex was the 
need to utilize the gymnasium there and the cafeteria and 
some of the other individual buildings. Well, of course, 
those buildings would be utilized in any case, even if that 
area were, let’s say, an elementary area and the present 
Altheimer complex were secondary areas. As a matter of 
fact, there would have been no problem at the Martin com­
plex in feeding all the elementary students at the cafeteria.

On the basis of utilizing the existent facilities the—there 
are a vast number of two rooms in the cafeteria now that 
are not being used at the Martin—the Martin cafeteria, and 
the buildings are moving—as I understand it, they’re gonna 
be moved, so that in any case the capital amount that they 
represent is an insignificant factor compared to the dupli­
cation in the maintenance and operation that’s going to 
come with running two systems in grades one through

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



58

twelve. So, as I say, based on my discussion and analysis I 
found no educational or financial justification for this plan.

Q. Now, Dr. Lieberman, I show you here a rough sketch 
of the Altheimer High School complex and the Martin High 
School complex. A. Is this supposed to be a scale?

Q. No, just a rough sketch showing the facilities. I ’d like 
to have this introduced as exhibit, plaintiff’s, and I ask you, 
Dr. Lieberman, if you recognize this sketch. A. Yes. That’s 
a rough sketch of the two school complexes.

Q. Now, I ask you if you will point out the New Hope 
Church. A. The New Hope Church is approximately a 
block from the Martin complex.

Q. Now, would you tell us what you know about educa­
tional programs in the New Hope Church? A. Well, the—

Q. First of all, what is the New Hope Church, to the 
best of your knowledge? A. Oh, it—Well, to the best of 
my knowledge, the New Hope Church is a church which is 
attended by negroes, which is located about a block from 
the Martin complex. Now, the—in the constructing a new 
elementary school at the Martin complex the board’s plan 
called for the physical removal as the new buildings goes 
through the buildings that were currently being used, to 
house the third—to third grade classes at the Martin com­
plex and these to the third grade classes were assigned to 
the New Hope Church during the period of construction, 
and I went over to see the classes being conducted at the 
church. Now, over there these two classes are sitting in 
the church pews. They are facing each other. They do not 
have desks to work on. The teachers are working back 
to back and in the aisle of the church, and they’re separated 
only by a part of a blackboard and the children are, of

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



59

course, both classes are within hearing distance since 
they’re really just on opposite sides of the church.

Now, this, along with the fact that the children do not 
even have, for example, desks, to work on and the other 
handicaps, they of course do not have the other facilities 
that normally associate with the—with an ordinary class­
room. Now, this was one of the last things that I looked 
at before leaving, but I did go back to the Altheimer com­
plex before I left and it seemed to me that from an educa­
tional point of view that it would have been very feasible 
and far better if those children, if they, for example, had 
been located in the cafeteria of the Altheimer school. They 
could have studied there until the first lunch period, then 
they could have had lunch or gym and then if they had 
lunch first they could have had gym during the two lunch 
periods there and they would have been—they would have 
had desks to work on and they would have been near other 
pupils and the other school facilities.

Now, the fact that the board, despite the fact that the 
space was available and located them in the church, that 
is such a severe educational disadvantage and for such ex­
tended periods of time. Again, it seemed to me to be com­
pletely unnecessary from any educational standpoint.

Q. Well, you have stated previously, Dr. Lieberman, that 
the board’s personnel policies were discriminatory in that 
the teachers in the Martin school had heavier loads despite 
their lower salaries. Do you know of any other factors 
which would bear on the board’s personnel policies! A. 
Well, the board operates a teacherage for white teachers 
that the superintendent informed me that no negro teach­
ers have, so that in addition to the salary discrepancy and 
the load discrepancy the school system is of course ab-

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



60

sorbing some of the cost for the white teacher, and it 
doesn’t do this with the negro teachers, with the exception, 
I believe, of Mr. Martin.

As I understood the arrangements of the teachers pay, 
for the white teachers, the teachers pay for the utility and 
the other monthly charges, but did not pay any rents. 
Now, in view of the facts that there are more—negro teach­
ers in the system than the white teachers, I would assume 
that there would be negro teachers who the system would 
finally need, to its advantage, to offer the same advantages 
in recruiting the teachers, some of whom would come with 
the same advantages, but again, this wasn’t the case.

Now, another thing that relates to the personnel pol­
icies, it is my understanding that salary discrepancies be­
tween the white teachers and the negro teachers was de­
pendent on the grounds that the board negotiates with 
teachers as individuals, and that negro teachers, as individ­
uals, were willing to work for less, and this is why they 
were getting less. In other words, that the salary discrep­
ancy was not due to the fact they were negroes, they were 
due to the fact that it just happened to be negroes who 
would work for less money.

Now, I think it’s safe to say that every major profes­
sional organization that deals with school personnel pol­
icies unequivocally condemns a policy of individual nego­
tiation of teachers and in paying teachers according to 
the policies that the board, that the superintendent or the 
board, has indicated. In other words, this is the kind of 
thing that we charge as favoritism and bias and prejudiced 
and other things, and I don’t know of any school personnel 
administrator or any organization of school personnel ad­
ministrators who advocates this policy, and I know all the

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



61

major organizations like the American Association of 
School Administrators and National Education Association 
and other organizations, professional organizations un­
equivocally condemn the practice of individual negotiations 
with teachers and you’ve got some with the same, or even 
more training and experience, and that will work for less 
to do so.

Then there are other evidences of discrimination in per­
sonnel policy. On referring to the date that I examined 
them, for example, the principal at the Martin complex 
received less than the principal at the Altheimer complex, 
although he was responsible for more students and he 
had longer tenure system and the—in the sense of a bigger 
administrator job. But—Well, these were some of the 
things that led to the conclusion of racial discrimination 
on personnel policy.

Q. Would you have an opinion, Dr. Lieberman, about 
the policy of the district with regard to bus transporta­
tion?. A. Well, based on the evidence that was submitted 
to me and the conversation that I had, the bases picked 
up both elementary and secondary students and they deliv­
ered the students to one or the other, but not both of the 
school complexes.

Now, this seemed to me to be extremely inefficient and 
undesirable from an educational standpoint. First, in gen­
eral, it’s not considered desirable to mix elementary and 
secondary pupils in the same bus if you can help it. I realize 
there are situations where this is almost required, but there 
are reasons of disciplining, for example, and because sec­
ondary pupils are capable of riding distances without being 
so tired out that they don’t suffer educationally, as a result.

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



I t’s generally considered desirable to try to separate the 
elementary and secondary pupils in buses.

In this situation, however, as I say, based on the evidence 
that I was able to secure in the system, these buses pick up 
and ride elementary and secondary students in the same 
bus and deliver them on to the Altheimer school, and with 
the exception of one or two, why, a very small number of 
negroes that attend that school, then they pick up negro 
elementary and secondary pupils and take them over to the 
other school. I would think it would be much more efficient 
economically and much sounder educationally if the bus 
system picked up all the elementary school pupils and take 
them to that complex and the other bus that handled the 
secondary grade schools and take them to the other complex.

In any case I do want to make one more point here. I 
think that there are other arrangements besides those that 
I suggested that might be feasible. My point, in other 
words, is I don’t think that the—I certainly am not in a 
position of arguing that anything I have suggested here 
as to what might be the only way that the system could be 
administered. My only—The main point, I mean the con­
clusion that I ’ve come to, however, is that the particular 
basis for the school board’s construction and operation in 
these matters has no educational or financial or professional 
justification.

Q. Would you say that in your opinion busing of the 
students has a relationship to the school construction pro­
gram at all? A. Well, of course, yes, it does in a sense. 
Well, here of course your—There’s a question of things like 
distance, for example, that are important. But here you 
have one central—you have one central facility and in most 
of the students busing and transportation costs of course

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



63

are an important element in the overall school cost, so if 
you want a transportation system that avoids as much 
duplication as necessary, but to have buses that go down 
the same routes and then have one that drops them oft 
five blocks away from another when they could pick up all 
the students on the route and drop them at a single place, 
it seems to me they have no educational justification. At 
least none was presented to me that would make this 
feasible.

Q. All right. Do you have an opinion, Dr. Lieberman, 
about the mixing of elementary and secondary school pu­
pils in schools, generally? A. Well, this is not—-this is 
again a very undesirable one and it should be avoided. 
For example, in the library, I was in the Martin library 
and you have elementary students. There are students in 
all these grade ranges crowded in one room and in addi­
tion to the fact that you can’t—that this limits the number 
of books that are appropriate for each of these levels, and 
in addition to the fact that you can’t get up the specialized 
personnel because one group is going to suffer and the 
school system is not going to put in two librarians in each 
one of these libraries. You have kinds of discipline and 
tension and actually the furniture and the way the shelves 
are set up and the fact that the elementary pupils are 
going to be more at home in a certain kind of environment 
and facility and the mixing of the elementary student and 
the secondary student and the buses as well as the library 
and its other facility is something that doesn’t—doesn’t 
sound educational.

Q. Dr. Lieberman, would you assume that the school dis­
trict has made—taken steps to comply with the 1964 Civil 
Rights Act and would you further assume that the school

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



64

district has taken the legal position that it is unnecessary 
to defend its decision to build the two schools in question! 
Would you say, taking this set of facts, that this is a sound 
position from an educational point of view! A. Well, no, 
no, it as I  understand the school board’s position, that it is 
going to comply with the Civil Rights Act and therefore 
both of these schools would be run on a non-discriminatory 
basis. At least, that is my understanding of their position.

However, I think that is a very serious fallacy for a 
number of reasons. One is, as I mentioned earlier, that 
the school board’s decision has created a situation that 
without educational justification is bound to make this a 
controversy over segregation in this community for gen­
erations, if not for decades, if not generations. But the 
more important thing is this: You might as well—why not 
have the school board build three schools and give pupils 
their choice! Why not build four school complexes! In 
other words, this is not the kind of choice that a school 
board presents to a community in the first place. You 
don’t—You don’t present the community with a—with a 
choice of two school complexes neither one of them which 
in themselves should not exist, if the plan were done on a
sound educational basis. And certainly if you were to_
In other words, what I ’m saying is that although the 
board’s position, as I understand it, is that it will comply 
despite its statement in response to the 1965—its unwaver­
ing policy had been one of racial segregation. The actual 
decision to build these two schools in the manner that has 
been set out, the sixteen classrooms and in one complex 
and eight elementary is not the educational decision that 
on my—according to my analysis could only be—has only

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



65

been done on the grounds that it will permit the continua­
tion of segregation.

It is obvious that if they have one elementary, for in­
stance, and one secondary, the board could completely 
comply with the Civil Rights Act of 1964 without any— 
unless there was some discrimination within these com­
plexes. But, no, that’s my conclusion on this.

Q. Now, I want to ask you one or two other questions 
about this, Dr. Lieberman. A. All right.

Q. Would you tell us to what extent you are familiar 
with the state of Arkansas? A. Well, Mrs. Lieberman 
went to school in Arkansas. She graduated from high school 
in Arkansas, and she is a graduate of the University of 
Arkansas and I have visited the state a number of times. 
As a matter of fact, my wife’s sister teaches in a school 
which is not far from here and many times that I have 
visited Arkansas since I am in the field of education I have 
talked to people about the educational situation in the 
state. I  would say in the past ten or twelve years that 
I ’ve been in the state, oh, I ’d say on the average of once 
a year, sometimes more. Sometimes my family and I have 
stayed here, and since my in-laws, at least one of them 
has taught—as a matter of fact, she teaches in a school 
which is in the same league as the Altheimer School Dis­
trict, so I feel that I have some familiarity with the con­
ditions in the state generally in the school system in the 
state.

I might add also that I have taught for three years at 
the University of Oklahoma which is a neighboring state, 
and since I ’ve served as consultant, or as an expert witness, 
in cases of Mississippi and in Alabama, I think that I have

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plain-tiffs



66

a fairly good—at least I’ve had a fairly good opportunity 
to understand what conditions are like in the state.

Q. Under what arrangements are you visiting the Alt- 
heimer schools and appear here as an expert witness? A. 
Well, I  was called by the defense counsel and I was informed 
that suit had been tiled, the basis for the attempt to be made 
to enjoin the construction of two elementary schools on the 
grounds that they were designed to perpetuate segregation, 
and I took the position that I would be willing to come down 
and make an investigation and testify if I came to that con­
clusion, but if there were any educational or other profes­
sional justifications, even though it was one that I disagreed 
with, and I would not support the position of the plaintiffs 
in this matter. Before coming down I was to be paid $100.00 
a day, which is exactly half of the usual fee that I  charge 
for an out of town engagement. My minimum out of town 
fee is $200.00 a day.

Q. Have you received other fees for consultation work! 
A. Oh, yes.

Q. Recently? A. For example, I will be one week in 
Pennsylvania, University of Pennsylvania in June, third 
week in June. I get $1,000.00 for that, for one week, the 
same for one week at the University of Indiana in August, 
I get paid $1,000.00 for one week. I  have—I will be in Des 
Moines later this month and I receive $200.00 for any one 
day there and I will be in Michigan in December, and as I 
say, this, from a financial standpoint, this is a losing propo­
sition as far as I ’m concerned.

Q. All right.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs

Mr. Walker: No more questions.



67

Cross Examination by Mr. Cox:
Q. Dr. Lieberman, you listed rather comprehensive per­

sonal data on the exhibit which is a biographical summary 
that is used by stipulation. It doesn’t reflect, for example, 
any of your associations with organizations, some of which 
you have mentioned in your testimony? A. That is right.

Q. Are you a contributor and a present member of the 
National Association for the Advancement of Colored Peo­
ple? A. No, Pm not.

Q. Have you been in the past? A. Well, I was a member 
of the N.A.A.C.P. in 1950’s when I was at the University of 
Oklahoma, in 1953 to 1956.

Q. Of what religious persuasion are you, Dr. Lieberman? 
A. I ’m not any.

Q. Would you classify yourself as an agnostic or atheist? 
A. I—

Mr. Walker: Of course, we no doubt object to this.
A. I wouldn’t—I would classify—

Q. You would classify yourself as having no religious 
preference of any kind? A. Of having no—Mrs. Lieber­
man and I, we met in a church, where we met each other. 
We are not—We met in an Unitarian church that we were 
attending at the University of Oklahoma but I am not now 
affiliated with any religious affiliation.

Q. The question that I asked you was what religious per­
suasion you were and I believe your original answer was 
that you had no religious persuasion and now I’m asking 
you— A. From a denominational standpoint? Yes, sir.

Q. All right, sir. Now, in an effort to clarify your an­
swer— A. Right.

Q. —I am about to ask you if you harbor any religious

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



68

beliefs that do not happen to coincide with an existing de­
nomination, to the best of your knowledge? A. Will you 
rephrase that a little bit? I don’t mean to be evasive but 
I ’m not clear about it.

Q. You have indicated— A. Could you give me an ex­
ample ?

Q. You have indicated that you are not presently affili­
ated with any religious denomination. A. That’s right.

Q. I ’m asking you if you do have some religious beliefs 
but if they are not beliefs that correspond with any of the 
known denominations that you’re familiar with? A. To 
answer that—yes.

Q. The answer— A. I ’m sure anybody who has a re­
ligious belief of any kind, since a religious belief—since 
not all denominations have the same religious belief— 
you see—you see a person who has some, who will un­
doubtedly have a belief, and may not be held by any other 
denomination.

Q. I ’m not certain if we are— A. I ’m not either, if I 
understood your—what you mean. Could you give me an 
example ?

Q. Do you believe that there is a G-od that created the 
universe and—

Mr. Walker: Before you answer—
Q. —and it is responsible for the welfare—

Mr. Walker: —Let me note my strenuous objec­
tions to this on the basis that it is completely irrele­
vant and has absolutely no bearing at all on the 
subject of Dr. Lieberman’s qualifications as an expert 
witness.

A. To answer your question, no.

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



69

Q. You do not believe in the existence of this creative 
power by whatever name? A. I do not believe in the 
hypothetical God as yon have described.

Q. All right, doctor. Dr. Lieberman, you have listed in 
the vita which has been introduced by stipulation a number 
of your writings, the reviews of your writings, your short 
articles, and I would assume quotations of writings in which 
you have participated. A. Uh-hunh.

Q. Is this list meant to be exhaustive or is this list ex­
emplary? A. I t’s not exhaustive but it’s more than exem­
plary. There are some—there are some articles that are not 
on there.

Q. It’s comprehensive, at least? A. It’s fairly compre­
hensive. I think it includes every major item that I have 
written with the exception of the last one which will be 
written in the—

Q. To your knowledge have you ever been quoted in the 
Daily Worker, for example?

Mr. Walker: Objection.

A. No. To my knowledge I have not. I have been critical 
of the Daily Worker.

Q. Could you name which of those writings were critical 
of the Daily Worker? A. I think in The Future of Public 
Education there is a writeup. I think you will find a number 
of references listed, certainly in the books that I have writ­
ten, Education as a Profession, and The Future of Public 
Education, they are what I devise as a very substantial 
criticism of this.

Q. Dr. Lieberman, now, the object of the questions to 
which I have just asked you are to establish any predilec­
tions that you may have in this area. A. I understand.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



70

Q. Forgive me if I have detected some which you don’t 
harbor in your earlier testimony. Now, you have made the 
commentary that on the basis of information available to 
you that teachers— A. Mind if I go back just one second? 
You may note on the vita that I have been, and I did men­
tion this, I have been invited at Indiana University and I 
have also been invited to speak at the National Catholic 
Education Association and some other organizations which 
are not noted for being especially hospitable. I think per­
sons of inclinations—that are contrary—

Q. Dr. Lieberman, you made the comment in your direct 
testimony that teachers in the Martin complex were paid 
less than the teachers in the Altheimer complex, is that cor­
rect? A. With, I believe—with few exceptions. With few 
exceptions.

Q. From what source did you derive this information? 
A. I derived it from a look at the—

(Thereupon, there is a discussion off the record 
and the deposition is resumed).

A. I am not sure of the—the specification that I  say this 
from. I  know that it was—I have requested certain informa­
tion concerning salaries. I couldn’t base it—

Q. Who provided you with the information that you re­
quested? A. Mr. Walker.

Q. I beg your pardon? A. Mr. Walker.
Q. You are referring now to Mr. John Walker— A. 

That’s right.
Q. —who is the attorney, and not Mr. James Walker, who 

is the superintendent? A. That’s right.
Q. You have no personal knowledge of whether the in­

formation you received is a matter of evidence in this case 
or not, is that right? A. On which particular point?

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



71

Q. On the matter of teachers’ salaries at the Martin 
School complex and the Altheimer School complex—

Mr. Walker: I don’t want this all in the record.
Mr. Cox: Take it down, please, ma’am. I  do want 

it in the record.
Mr. Walker: He was not at the trial, so as far as 

his own knowledge, but as to matters in the record 
he could have known though. I mean—

Mr. Cox: I am asking the question. I will expect 
that the witness supply the best answer to which he 
is capable.

A. I do not have a complete record of it so I am not com­
pletely sure. I don’t know everything that went on and 
what did not, of the hearing.

Q. (Mr. Cox continuing) In other words, a portion of 
the facts upon which your conclusions have been based are 
based upon information supplied to you by Mr. Walker, 
counsel for the plaintiffs? A. Well, we’d have to be spe­
cific about that.

Q. I ’m asking you specifically now about the teachers’ 
salaries. A. Well, as I say, I ’m not sure from whom my 
original source of that information was.

Q. Do you recall the document or other writing from 
which you obtained it? A. No, I don’t.

Q. So that generic and very general categorical state­
ment made by you is based upon facts which you cannot 
at this moment identify? A. That is correct.

Q. Dr. Lieberman, do you know whether or not Mr. James 
Walker, the superintendent of the schools, was directed by 
the Court, or by anyone else, to provide you with any in-

Deposition of the Witness, Dr. 'Myron Lieberman,
Taken at Instance of Plaintiffs



72

formation regarding the operation of the Altheimer school ? 
A. I know that he provided me with the information. I 
didn’t—my—I believe that my impression was that it was 
done by your action, but in any case it never became an 
issue since he provided me with the information.

Q. Can you state, from personal knowledge, whether the 
information or commentaries from Mr. Walker were meant 
to be exhaustive on the subject matter covered? A. I 
think you’d have to ask him that question.

Q. As far as you’re personally concerned you do not 
know? Is that your answer? A. Well, as far as I ’m con­
cerned, if I, for example, if I  asked him whether the board 
would consider it single elementary or whether it con­
sidered it alternative arrangement, and if he said no, then 
at that point I would take his word for it, and it would be 
the very last word on the subject. If he had more informa­
tion and he didn’t provide, that is something that I had no 
knowledge about it.

Q. Now, you’ve made the comment that you were in­
formed that there had been no professional personnel con­
sulted prior to the adoption of the plan for the present 
construction, which is an issue in the case now. Did you 
discuss this with Mr. Walker, the superintendent at length? 
A. Yeah. I asked him—My report is that I  asked him 
whether an expert in school planning had been employed 
by the board and as my recollection is, the answer was no.

Q. You read from the writing, I believe it was the com­
pilation made by the professional school construction peo­
ple— A. National Council for School and Health Con­
struction.

Q. —which indicated that many boards faced with the 
need for expanding facilities consult with the local architect

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



73

and embark upon building programs which at times are not 
calculated to serve future educational requirements of the 
communities, or words to that effect. Am I correct? A. 
That is correct.

Q. Now, the reference to many boards indicates that the 
board of the Altheimer School District is not the only 
one that does not do this, is that correct? A. That’s cor­
rect.

Q. And your testimony here is not intended to imply that 
out of thousands of school districts in the United States 
that the Altheimer School District is the only one that fol­
lows this program? A. There are many school boards in 
the United States that do many things which are unwise 
from an educational standpoint.

Q. Among them being constructing schools without—? 
A. That’s right.

Q. —hiring professionals such as yourself? A. With­
out involving the professional, not as myself. Without in­
volving their own professional staff to the utmost, without 
informing the communities of the various alternatives and 
the costs and advantages and disadvantages. Now, if you’re 
asking the question whether some school boards do this, 
the answer is yes, but if you’re asking whether it is educa­
tional and desirable or sound, then the answer is no.

Q. I asked you if it was correct that many boards do this. 
A. I don’t know how many. More than one does.

Q. That was the statement in the “Expert Teachers”, or 
the “Work of Expert Teachers”, on which you read, I  un­
derstand, of many boards? A. Well, we have a statement 
here. There is no point to argue over the statement. It 
says “while the details vary, many boards of education 
made a hurried decision to build, employ an architect and

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



74

have him prepare drawings and specifications without 
benefit of adequate study of the educational program. They 
then approve his quickly developed plans and proceed with 
the construction. If a building that is educationally satis­
factory results—”.

Q. I do not want to interrupt you, Dr. Lieberman, but 
this is identical to what you previously read, is it not? A. 
That is right.

Q. It would then speak for itself? A. That’s right.
Q. Dr. Lieberman, taking into account the physical facili­

ties existing in the Altheimer School District how would 
you divide the grades in an unitary operation of the 
schools? A. Well, the understanding that I would have— 
certainly a careful survey made and from an analysis, so 
that any answer that I  would give you now would be sub­
ject to further study. My point in coming, and my position, 
has never been that I would prescribe what the school 
system should do. It would be to take into account whether 
there was an educational justification to what they had 
done.

Now, if you’re asking me on the basis of the information 
that I have available how I think the grades should be 
divided it would seem to me from the reports, I  would put 
all the elementary grades in the Altheimer complex and all 
the secondary grades, I mean the Martin complex, and the 
secondary grades in the Altheimer complex. Although 
whether the grade division would be one through six and 
seven through twelve or something else, then I wouldn’t 
be able to say at this point.

Q. Would you acknowledge that to do so would require 
considerable changing of the physical facilities as they now 
exist? A. No. I’m not—wouldn’t acknowledge that.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



Q. Do you know or do you not know? A. My—Well, it 
isn’t a matter of knowledge. My present belief on the basis 
of the evidence is that it would have been a more efficient 
and less expensive way of solving the problem of school 
construction in this community.

Q. But you’re not prepared to be specific as to how this 
could be done? A. No. I did not come here to draw up 
a detailed plan of the Altheimer School System, and what 
grades should be placed here and what grades should be 
placed there.

Q. Dr. Lieberman, you have testified that you have ap­
peared at least in two other litigated matters involving 
school districts? A. Yes.

Q. One in Alabama and one in Mississippi? A. And one 
in New York.

Q. One in New York? A. That is right.
Q. Are these—You remember.— A. I beg your pardon. 

They did not appear in court. In New York I worked for 
the school system which was under an—a court order.

Q. What was the nature of the court order? Was it 
dealing with racial schools? A. Yes, it was. Uh-hunh.

Q. In other words, your appearance here and in the 
other areas where you have appeared— A. Yeah.

Q. —in litigated matters has been as an expert witness 
on behalf of minority groups, is that correct? A. That is 
correct. No, it has been on behalf of the plaintiffs in most 
cases.

Q. In each case were they negroes? A. Well, I was hired 
by the school board, not by negro plaintiffs in New York. 
The school board hired me. Now, in the cases in Alabama 
and Mississippi the defendant paid my expenses but I ap­
peared on the side of the plaintiffs.

Deposition of the Witness, Dr. Myron Liebermcm,
Taken at Instance of Plaintiffs



76

Q. And in both of those cases the plaintiffs were negroes, 
is that correct? A. Yes.

Q. All right, sir. Would you say, that as a matter of gen­
eral practice, that where a school can accomplish the same 
objective for less money, this would be indicative of a good 
sound business management of the school system? A. Yes.

Q. If they can obtain the same services for less money 
that this would be in keeping with—? A. This is my— 
This is the basis to my criticism of what the school board 
has done. This is not what it is doing in this situation.

Q. All right. And you have made the statement that all 
professional teaching organizations condemn the hiring of 
teachers without regard to some stated objective and 
standards. Am I correct interpreting what you’re—? A. 
No, you’re not. What I am saying is that I know no pro­
fessional organization that recommends and supports in­
dividual bargaining and individual teachers as a basis for 
compensation. Now, there are some differences in positions 
that they take concerning how the salary schedules should 
be conducted or even—For example, that there is a merit 
system that you operate. My idea is not that they prescribe 
the particular system but that to my knowledge no—no 
professional organization that I know supports the proce­
dure that I  understand that has been followed by this 
board.

Q. Now, can you state from personal knowledge whether 
the positions taken by these professional groups are that 
this doesn’t result in effective educational opportunity or 
that it results in economic opportunity, diminished eco­
nomic opportunity, for these—from these professionals? 
A. Well, their position is—I don’t of course have the exact 
statements in front of me, but their position has been that

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



77

when people are employed on the basis of individual bar­
gaining that this is not good from a personnel standpoint, 
neither from the standpoint of the students, the board or 
the school. For one thing, it is very often to favoritism 
and bias, and of course, this is not good.

If the basis is on the individual bargaining instead of 
the contribution that the individual makes, then you leave 
yourself open to a situation to penalize somebody who con­
tributes more, not less, than somebody who contributes 
less. And if there is no objective standard to individual 
bargaining, there is a question of whether you’re able to 
attract people who would come if they were clear about the 
basis of compensation, but who don’t want to get involved 
in the individual bargaining. They may be good people 
but their position may be such that they feel they would 
rather go to a system where there is a schedule that they 
can recognize.

Q. Are you aware of any objective tests by which the 
actual performance of a teacher in terms of transferring 
knowledge and the desire to learn pupils can be measured? 
A. There is an effort to do this. There is some controversy 
over how accurate and how successful—

Q. There are none commonly accepted by any profes­
sional organizations, are there, doctor? A. I think that is 
right.

Q. So actually when you say that you would want to take 
into account the productivity of a person, in this case a 
teacher— A. Yes?

Q. —you are telling me that you think that their objec­
tive standard that should be followed, but the principal one, 
and that is the results he obtains with the children are 
not susceptible to any objective standard, isn’t that what

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



78

you just said? A. Well, let us be clear about one thing. 
I do not think that the basis for compensation should be 
what the children learn. This would be disastrous. Any 
more than that if a patient, for example, if you were 
asked to take a case where they were, let us say, not a 
good chance—If you win it but you would be judged on 
the basis of what—whether your client won, whether you 
would tend to receive a case, or a doctor would receive 
difficult cases, if he was to be judged on the basis of 
whether the patient would die or not, and the teacher, if 
he was to be judged on the basis of how much a pupil 
would learn, would tend to avoid the students who most 
needed all help, so as a professional matter I don’t think 
the profession tends to ask for compensation on the basis 
of, you might say, the services as received. I think the 
basis is the services rendered. If you put in a certain 
amount of time for a client, even if that client loses the 
case, you are entitled to compensation, but from—even if 
a doctor works hard to save a patient who is seriously ill, 
he deserves compensation. If a teacher works hard with a 
pupil who, for one reason or another, is very difficult to 
teach, that teacher deserves every compensation just as 
much as the teacher who has the opportunity to work with 
students who are very knowledgeable and learn a great 
deal, so that I don’t think, at all see, that the professions 
in general, or teaching in particular, should operate on 
the basis of the impact of professional persons’ services so 
inclined.

Q. Would you not agree, Dr. Lieberman, that for any 
professional group that you have mentioned, if they have 
all of the criteria that you normally would use to bring 
objective results and if they, say, had experience in their

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



79

professional fields, and they have their training required 
to give them substantial results, and if they consistently 
did not get results, whether that would be a doctor or a 
lawyer or a teacher, they are inept, are they not? A. Not 
necessarily, no. Whether you get results or not depends 
on other things beside your contacts.

Q. You would agree— A. If a lawyer, and you of course 
as a lawyer-—as some lawyers do, and they always avoided 
the unconquerable cases or the cases that are hard to win 
because of knowing if they had accepted them people 
would think they were poor lawyers this would be very 
undesirable. As a matter of policy, if a doctor always 
avoided tough cases because people thought he was a poor 
doctor this would be very undesirable.

My point is that the basis of the professional compensa­
tion must take into account other things and besides what 
happened to the client’s case and other things besides pro­
fessional confidence if he can and whether the patient lives 
or whether you win the case or whether the student learns.

All right. Let me for the moment accede that this is— 
this is not a question. Do you not even consider it a factor 
in determining a person’s compensation, professional com­
petence— A. You mean if I think it is a factor or should 
be a factor!

Q. I’m asking you is it a factor that should be taken 
into account in determining his profession competence? 
A. It should be taken into consideration the competence 
to the extent that you could isolate the factors or results 
that are due to professional competence and not to other 
matters. No. Now, this of course, in the field of educa­
tion, is in most situations extremely difficult, if not im­
possible, to do. I don’t know, for example, that in the

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



80

Altheimer School .District that a very careful analysis 
has been made of the contributions of each individual 
teacher to see whether, or how much, the pupils have 
learned due to the teacher’s contribution or how much to 
the deprivation and his background and the other factors 
in the overcrowded areas and lack of books. You see, if 
that kind of careful analysis will be made and you would 
attempt to isolate these factors, even if you were able to 
do this, of course, it would be a further question of how 
much difference in productivity that you can isolate and 
say the teacher is responsible for it, how to translate that 
into a salary differential, but I at this point have no—• 
I have no knowledge either that the system is doing this 
carefully or is devoting any resources to it, and even if it 
were I—I of course would be doubtful that this system 
would be more successful in isolating the pupil performance 
that is due to the teacher. I’d say it would be very doubt­
ful. It would be more successful in doing this in the school 
districts that have far greater resources and trained per­
sonnel and still be unsuccessful in others.

Q. Dr. Lieberman, it is difficult for me to really get a 
very substantial response from all of the discussion that 
you have given in response to my question, but am I to 
infer from you that you do not feel that a teacher’s atti­
tude or demonstrated relationship with her pupils is a 
factor which should be considered? A. Oh, no. I agree 
that it should be considered.

Q. Thank you, sir. Now— A. I know that I am only 
waiving the question. As to what extent is it given ade­
quate consideration and how accurately is it isolated from 
the other factors that affect the performance, and merely

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



81

say that it should be considered, does not to me answer 
very many questions concerning compensation of teachers.

Q. You would say that without regard to that facet, or 
factor, that teacher salaries should be fixed by other ob­
jective standards? A. Uh—-yes.

Q. So that the attitude and their competency in ap­
proaching the problem with energy and enthusiasm would 
really not have any bearing upon their earning power? A. 
No, I think you can have a combination of these two, for 
instance.

Q. I see. A. You can have teachers paid so much ac­
cording to a set schedule and you have a certain amount of 
money paid out to the extent that you are willing and want 
to isolate those factors which are due to any of the teach­
er’s contribution.

Q. Do you recognize that these individual differences ex­
ist in teaching?

Mr. Cox: Thank you, sir.

Cross Examination by Mr. Friday.
Q. Doctor, let me ask you just two or three questions. 

I don’t want to linger at this point, but it seems to me 
that you were making the point that salary alone, or any 
other one factor alone, is not a sufficient basis to judge the 
quality of the classroom program. Now, those are my lay­
man’s words, not yours. Would that be a fair statement? 
Would you subscribe to that? A. The teachers’ salaries?

Q. Alone. A. Alone?
Q. Yes. A. Yes, I would.
Q. In order for you to form an opinion and stress it 

as to the quality of the educational program at any par-

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



82

ticular school you’d have to know then just what the sal­
aries are? A. That is correct.

Q. Do you feel that you have obtained enough informa­
tion as to the Martin school or as to the Altheimer school 
to give your professional opinion on the quality of the 
educational program of either school? A. In some re­
spects, yes.

Q. Well, now, doctor'— A. For example, you could, say, 
adjudge the curriculum on the basis of the board’s state­
ment as to what courses are offered and on that basis you 
can judge how comprehensive the curriculum is.

Q. Certainly. A. That is one illustration.
Q. Well— A. You can take, for example, the number 

of books in the library, how comprehensive is the library. 
Now, there are many other factors that would take fur­
ther investigation, so—

Q. Well, for you to give your professional opinion you’d 
have to make more of an investigation than you’ve already 
made, isn’t that what you’re saying, doctor? A. No, it’s 
not what I’m saying.

Q. What are you saying? A. I’m saying that on the 
basis of the information that I have it is obvious that the 
board is limiting the services and facilities that are avail­
able to students because of the duplication of the schools 
and facilities, and that in looking at the curriculum, for 
example, and looking at the library and some of the other 
services and facilities, it is obvious that these are inade­
quate on the basis of common accepted professional stand­
ards, and even where they are adequate they are as ade­
quate only at prohibitive costs because they are duplicated, 
and they therefore cut into other aspects of the programs,

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



83

and services, which could be made adequate if certain 
particular ones were not duplicated.

Q. Well, let me go back, doctor, and you say—Just tell 
me now whether or not, whether you can or not, you have 
been here one time before this trip! A, That’s right.

Q. Just tell me now, do you feel that you made enough 
of an investigation of whatever factors— A. Uh-hunh.

Q. —that have been available to you now so far— A. 
Eight.

Q. —based on your professional expert cases, so to speak, 
to compress an opinion as to the Altheimer equality of 
the educational program at each school! A. Yes.

Q. All right. You have not observed the teachers! A. 
No.

Q. You’ve looked at no testing practices or testing re­
sults! A. That is correct.

Q. You do not know any of the achievement levels of 
pupils! A. That is correct.

Q. Are there any other factors that you can think of 
that you ought to consider that you have not considered, 
doctor, in order to give an opinion that you’d like to give 
as to these cases !A. Well, I would, for example, think 
that the factors you mentioned are factors that—there are 
more of these factors that you know about, the more ade­
quate your judgment is. I don’t think there is so much a 
line to draw and you say everything above this is adequate 
and everything below it isn’t. I think there are degrees of 
adequacies.

Q. Yes, sir. A. And I made a judgment about certain 
of those parts, or comprehensive necessities of the cur­
riculum, and the library facilities and on the level of 
whether they are duplicating teachers, which means you

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



84

are not able to hire other, or better teachers, I am quite 
certain that with more time and more analysis that I 
would be able to make an even more adequate evaluation.

Q. Certainly. A. I do feel the evaluation I have made 
is adequate for some purposes.

Q. If the objectionable features of the salary practices, 
doctor, were corrected, would this satisfy at least that 
factor? It would, wouldn’t it? A. Well—

Q. Let’s suppose they set up a formula whereby in the 
future they took teachers on the basis of degrees and in­
itial employment. A. Uh-hunh.

Q. On the basis of degrees and experience would this be 
an acceptable change and correct some of it, or all, of the 
objections that you found in the practices as they were 
related to you and upon which you made your statement? 
This is something you can change and correct it? That’s 
what I’m merely saying. A. Uh—

Q. Well, if you were to pay teachers on the basis of 
preparation and experience and then it would eliminate 
the objections that you have? A. Yes, they would elim­
inate that particular objection. Yes.

Q. All right, sir. Are you familiar, doctor, with the 
standards of the North Central Association, am I correct? 
It is North Central Association—? A. Of Colleges. And— 

Q. You’re familiar with their standards in rating schools 
such as Altheimer, are you not? A. In a general wmy.

Q. Well, are you familiar— A. I don’t know the speci­
fications of how many books you must have in a library.

Q. Well— A. Or how many emergency teachers they 
must have. I know the functions of the accrediting agency 
in general and how they operate it.

Q. If a school meets the standards of the accrediting 
agency, wdiich here is North Central— A. Right.

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



85

Q. —do you think that this is a fair test of whether that 
school’s facilities and educational programs are adequate? 
A. No, I don’t.

Q. You do not? A. No.
Q. Well, do you think it means anything? A. It means 

that in general it is more adequate than in those schools 
which are not accredited.

Q. This is a pretty accepted practice of accreditation in 
the profession as such, is it not, doctor? A. Yes, it’s—it 
is widely accepted. There are reasonable accredited organ­
izations.

Q. Well, let me ask this: Whether it would meet your 
standards, doctor, or not, you would state that it would 
meet a good many experts—it would meet the standards 
of a good many experts in the field, would it not? There 
is bound to be some disagreement but it would satisfy a 
lot of them, wouldn’t it, doctor? A. Well, I would put it 
this way: That there are many schools accredited by the 
North Central Association which are very poor as schools. 
Now, in general, these tend to be better than schools which 
are not accredited. I don’t think you can take accredita­
tion as an automatic assurance that that school is ade­
quate, and even if you could, of course it wouldn’t—I’m 
not—it wouldn’t really be relevant to the point of what­
ever level of adequacy that is. It would not be a much 
more adequate school than certain—

Q. Well, would you say that a school board that followed 
practices which would lead to accreditation by the North 
Central Association— A. Uh-hunh.

Q. —would be acting within permissible limits, at least 
arbitrarily? Let’s put it that way.

Mr. Walker: Objection here. Objection here.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



Mr. Friday: That’s all right. You can note his 
objections and he can rule them out, but I would like 
for you to answer, doctor.

A. I  would want to refresh my memory myself on the 
standards before I gave a categorical answer on that.

Q. You don’t feel you’re in a position to answer it? A. 
No, sir, I don’t.

Q. All right. If, for example, doctor, and I know you 
just picked this out as one example, it turned out that the 
Altheimer School did have the National Honor Society, 
that would eliminate the objection that you made by mak­
ing that particular example? Now, I’m not being picayunish. 
A. That’s right. If there is misinformation—

Q. Yes? A. —I would be delighted to correct it.
Q. Certainly. Certainly. A. Incidentally, may I ask 

here, was I incorrect in saying it wasn’t listed on the—?
Q. The superintendent advises me that it was inadver­

tently left off and it is here. A. I inadvertently chose this.
Q. I make no point of it. A. Okay.
Q. Except sometimes before we make conclusions it may 

or may not tell a whole story. A. Well, if there are others 
that were inadvertently left off I think they ought to be 
put in.

Q. But that’s an important one. I think it’s a good thing 
that it’s here, don’t you agree to that? A. Yeah, I think 
it is.

Q. All right. A. I mean, of course, it academically is 
the most basic thing.

Q. Now, you spoke, doctor, if I understood you, about 
the desirability in coming up with a proper construction 
program and in taking into consideration the community.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



87

I believe—I guess you mean what the community thinks 
about it. I think your words were “community involve­
ment”, is that correct? A. That is correct.

Q. Do you think that the thinking of the community 
about a particular problem is a decisive factor or just 
one factor, or how do you classify it? Do you need it 
every time? This is what I ’m really asking. A. You need 
it on some matters and not on others. Now, in school con­
struction this is an important investment by the commu­
nity.

Q. Uh-hunh. There should be the widest possible dis­
semination of information and alternatives and operations 
and advantages and disadvantages.

Q. Well, let’s assume, just assume, for purposes of my 
questioning, doctor:—■ A. All right.

Q. —that the community involvement— A. Uh-hunh.
Q. —existed fully in this situation and that the commu­

nity wishes, as appropriately expressed to the school board, 
were that they wanted the. schools constructed just like 
they were constructed— A. Uh-hunh.

Q. —being constructed? A. Right.
Q. Do you think that a school board then should prop­

erly take this into consideration in making a decision as 
to where to construct the school? A. It should take it into 
consideration but it should not, I think, for example, that 
it is—it is not appropriate for it, for example, for the 
federal government or the state to subsidize any official 
school district so that a school board, even though it has 
local approval, to operate in any efficient way, I don’t think 
that local approval means automatic—the school auto­
matically should go ahead. I would not—

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



88

Q. Well—Pardon me. A. —for example, want, as a 
federal tax payer, to see the money that I spend that is- 
coming, say, in the Altheimer District spent in an ineffi­
cient way, to give you one—Or if I were a state tax payer 
in the state of Arkansas. Well, Mr. Friday, I am saying 
that I think the community, the extent to which it is able 
and takes a stand, is a factor to be taken into account, but 
I wouldn’t want to give the impression that a school board, 
even assuming that it is actually notified by the commu­
nity of the community approval, justifies school board 
action any more, Mr. Friday, than a person were accused 
of a crime and a community was aroused at a lawyer for 
defending an unpopular person. I don’t think it would be 
wrong for the lawyer to defend that person despite over­
whelming community opinion to the contrary.

Q. Well, doctor, I of course agree with you that there 
are no absolutely rights and absolutely wrongs and abso­
lute considerations. A. Uh-hunh.

Q. But the only point I was trying to make and you 
made the point that community ought to be taken into 
consideration and I took this to mean community judgment 
which will be an informed judgment? A. Yes, sir.

Q. All right. And if a school board ascertained and took 
the community judgment into consideration it would be 
acting properly in your opinion? That’s what I ’m saying. 
A. Yes, and that’s a very good one.

Q. Well, I see. They would be acting properly even 
though this might prompt, or lead, to action that dis­
agrees with the opinions you’d expressed on whether the 
buildings ought to be built, isn’t that correct now, the 
school board would still be acting properly? A. Not neces­
sarily. I think that we might—My point is this: That

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



there are some things a school board should not do, even 
if every person in the community urges the board to do it. 
I  think even if every person in the Altheimer community 
urged the board to follow a policy of racial segregation the 
board would not be justified in doing this.

Q. Well, I—I’ve learned that. I know this. A. I’m sure 
you do. I’m only explaining my opinion to the extent of 
when a school board is obligated to follow community 
wishes.

Q. Well, doctor— A. There’s no absolute relationship.
Q. Well, let’s question it in the context of which I under­

stood you raised the points. Let’s don’t talk segregation 
as such. Let’s talk school construction. A. Okay.

Q. Now, let’s assume that this school board took the 
community judgment, opinion or feelings, however you 
would characterize it, into consideration. A. Uh-hnnh.

Q. And this community judgment, as they ascertained it, 
was that they build two buildings. Don’t you think then 
that they’d be proceeding properly, at least insofar as 
their consideration, and—you raised the concern in build­
ing two buildings. I think that’s all I ’m really asking. A. 
With those limitations, yes, it would be.

Q. All right. Now, a good way to get knowledge of a 
community is to live in it for years, isn’t it, doctor? A. 
I know people—That’s one way, yes.

Q. That is one way? A. Provided you are prepared 
with the proper know how to do it. I know people who 
have lived in communities for generations and do not 
know their communities, do not know how to assess com­
munities’ opinion. I don’t think physical proximity is the 
end of—

Q. Well, certainly it isn’t the only thing, and there may

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



90

be exceptions, but certainly there is one way to get ac­
quainted with a community is to live there for twenty or 
thirty years? You’re saying yes? A. Yes.

Q. All right. A. Well, wait a minute. What I’m say­
ing is that to be physically present in a community is no 
automatic assurance of knowing what the community as a 
whole wants.

Q. Well, you really do not know, of your own knowledge, 
to the extent that this school board ascertained and took 
into consideration community judgment on this school con­
struction subject, do you, doctor? A. Well, I know that 
the superintendent, on my recollection of my discussions 
with him, never presented, nor did the board present its 
earliest operations and their advantages and disadvan­
tages to the community, that there was no plan or anything 
of that sort to inform the community of the aspects of the 
plan.

Q. Well, if they had gotten over to the community what 
was going on and gotten their knowledge by whatever 
method, then you’d have to give a different—reach a dif­
ferent conclusion as to the significance of this particular 
factor, wouldn’t you, doctor? You’re basing it on what the 
superintendent told you? If the facts were otherwise, we’d 
come out with a different answer? That’s what I’m really 
saying on it. A. Yes, sir.

Q. All right. He answered yes. Doctor, I ’m not clear on 
your definition, and this is where we break down in com­
munication sometime, as to an expert in school planning. 
I believe those were the words you used. Who do you con­
sider an expert to school planning? A. Well, the National 
Council on Schoolhouse Construction.

Q. What is the National Council? Is this made up of

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



91

some individuals who are— A. This is made up of people 
that are architects, people who are, let’s say, in charge of 
constructions for large school systems, people in consulting 
firms who work the school boards consistently on school 
system, and school construction people who are full time.

Q. Certainly. A. And the manner and scopes of many 
professional people in school construction.

Q. Certainly architects fall in that category? Some of 
them do fall in that category? A. Yes.

Q. All right. Would you expect an architect who had 
extensive experience in designing and supervising school 
construction in the state of Arkansas with the usual semi­
nar attendance and so forth, would qualify, could qualify? 
I ’ll ask it that way since we are dealing— A. Certainly.

Q. Do you know Mr. Reid of Pine Bluff, an architect? 
A. No, I  do not.

Q. You have any reason to know whether he would or 
would not qualify as such an expert in school planning? 
A. No, I do not.

Q. Let’s assume he did qualify and assume the board con­
sulted with him. Then wouldn’t we have to say the board 
did consult an expert in school planning? Your answer is 
yes? A. Yes.

Q. All right. Doctor, I did not understand entirely now 
the exchange between you and Mr. Walker about the Civil 
Rights Act, and I am going to ask you some questions that 
may or may not fairly represent what you were stating. 
A. That’s all right.

Q. Were you, or were you not, purporting to say that the 
only way you could comply, and I don’t want to put it in 
too strong a way, the only way or proper way, that you 
could comply with the Civil Rights Act here was to build

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



92

one or have one elementary school complex? Is that what 
you were telling us? A. No, I said that would have been 
a way of doing* it.

Q. Well, insofar as the Civil Rights Act is concerned, 
couldn’t you be in compliance, if you don’t know, say so, 
by having two complexes? A. I honestly don’t think so 
under these circumstances that prevail in this area.

Q. You are aware— A. It is theoretically possible that 
you could operate two complexes in a non-discriminatory 
basis.

Q. It is possible? A. It is theoretically possible, but 
practically I  do not believe that situation exists, or is a— 
as a practical matter that there is an reasonable likelihood 
that the two complexes in this system would be—

Q. Well, maybe it’s because we don’t understand again 
the usage of particular words as such, as discrimination and 
what not, doctor. A. Uh-hunh.

Q. You’re not telling me that physical facilities could 
ever be detached, or in compliance with the Civil Rights 
Act, not as such—Now, let’s get into it this way, not as 
such—Let’s leave out having starting with physical facili­
ties. You wouldn’t reach any conclusion one way or the 
other about compliance of the Civil Rights Act as you under­
stand it, could you, doctor? A. Well, you certainly could.

Q. Just on the physical facilities? A. On the physical 
facilities for one that was attended by a children of one 
race was far superior to the physical facilities attended by 
the other. That would justify some. Maybe I don’t under­
stand your question.

Q. No, that’s all right. Maybe that was a fair inference 
from my question. But that isn’t what I meant. Well, 
let’s assume equal facilities right here, equal by your 
standards. A. Equal facilities?

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



93

Q. Yes. Four by four rooms, library with two hundred 
books, same volumes, let’s assume with me a little bit. 
A. Yes. Yes.

Q. Same set of facilities five blocks away. Looking at 
these two facilities you couldn’t form any judgment, could 
you, doctor! A. Yes, you could.

Q. About what would be in compliance? A. Yes.
Q. Just the facilities? A. Yes, because the Civil Eights 

Act and the regulations laid down by the president state 
that the physical facilities should not be constructed—• 
should not be located, for example, in a way that per­
petuate segregation, even if you have two buildings which 
were exactly identical in buildings, and yet they could 
even be situated in such a way that they would be maximum 
segregation, and the law, as I understand it, would be a 
violation of the Civil Rights Act.

Q. Well, we’re still not communicating. Now, let me 
take you one step further. Let’s assume we have equal 
facilities and then I move in a teaching staff and pupils, 
in each of these groups they have facilities and integra­
tion on the exact ratio of school population as to race. 
Now, where are we with the physical—Would this situa­
tion comply, in your opinion, as you understand it? Now, 
you and I are not debating law, but you were giving me 
a statement. Now, make any—you may assume. Where 
are we now? That the staff is integrated in exactly the 
same proportion the students are integrated, in the same 
proportion. Is that the—Well, either of the same or an 
acceptable proportion, by even your standards, whatever 
this would be. I gave what I thought might be ideal in 
the exact ratio of population. I will say half and half. 
If I had that situation, you understand, just to make the

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



94

point, if I am making a point. Where are we now? A. I ’m 
not sure where we are.

Q. Well, don’t you think you would comply there pretty 
clearly, doctor, with the Civil Eights Act as far as any 
discriminations! A. No.

Q. Really not? A. No.
Q. You’ve got pretty high standards on the Civil Rights 

Act then. You think it’s got to be one grouping in a build­
ing then? A. No.

Q. Why wouldn’t you reply to my example? A. You 
might have the proportion of students, for example, could 
be exactly the same. But maybe the distances, that they 
have to go to school, would be very different. In other 
words, to get that proportion you may have had very 
unequal requirements as far as getting to school.

Q. Well, let’s go back. Are you saying you don’t have 
to have integration to comply with Civil Rights Act? Is 
that what you’re saying? A. I ’m saying to comply with 
the Civil Rights Act you have to build and operate your 
schools on a non-raeial basis. That where you—the size 
of schools and where you locate them and how you hire 
teachers and all this sort of thing, must be done without 
reference to race. That’s my understanding of the mean­
ing of the Civil Rights Act.

Q. Well, you don’t—- A. The practical meaning.
Q. All right. You don’t think this school district could 

do that with these two groupings of buildings? A. As a 
practical matter I do not.

Q. What do you mean a “practical matter?” Now, what 
all are you taking into consideration when you say, doc­
tor, “as a practical matter?” A. As a practical matter 
I think that the building of these two schools is going to

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



95

encourage the white community to feel that it can have 
its school and that the Martin school is for the negro 
community, and that as a practical matter I  don’t think 
that the school board and the staff and the way the schools 
are operated is likely to overcome the pressure that’s 
going to come about that way, since there is no educa­
tional reason, in my opinion, to build two separate schools. 
And then if you’ve got them you then have a permanent 
invitation to the whites and negroes in the Altheimer Dis­
trict to fight over integration in the community. This is 
what the basis of the information and the analysis I have 
made as what happens.

Q. Well, I think you’ve gotten me back into the com­
munity involvement and the considerations I keep being 
instructed I am not supposed to consider. Doctor, are 
you prepared to say right now that what this school dis­
trict ought to do in order to promote the best, promote 
the educational program of this district, based on a known 
background and these feelings in the community involve­
ment, that you talk about, is to immediately integrate all 
elementary school grades at one complex and all secondary 
in another complex? Is that what you’re telling us? A. 
What I am saying is that what the school board has done 
appears to be to have been done on a racial basis.

Q. Well, you’re not saying— A. What the school board 
—I am not prescribing. I am saying on the basis of 
the information I have it would seem to me to be a very 
attractive and obvious alternative to make one center 
an elementary and the other one a secondary center. But 
I ’m not prepared to say that that’s the only way, that 
the school board could comply with the Civil Rights Act

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



96

or could have given the community the education that is 
the best educational return on the dollar.

Q. You’re familiar with the freedom of choice approach, 
or method, of desegregation, doctor? A. That’s right.

Q. Do you feel this is an acceptable method to accom­
plish desegregation? A. I t’s acceptable with the United 
States Office of Education.

Q. Is it acceptable to you, doctor? A. I don’t desire 
it or prefer it.

Q. Well, are you prepared to say, and you are an 
expert, doctor, that in order to accomplish desegregation 
in your professional field— A. Yes.

Q. •—that a freedom of choice method is an acceptable 
method to accomplish this? If you’re not, all right. Are 
you prepared to say? A. I would say under some cir­
cumstances it could.

Q. Could it be an acceptable method in Altheimer, 
Arkansas? A. To me?

Q. Well, I have to ask you. A. The answer is no be­
cause I don’t think this school system, this school district, 
is big enough to support separate schools on any educa­
tional or financial basis.

Q. Well, doctor— A. Therefore, in order to create the 
freedom of choice, you’ve had to do something which 
seems to me to be educational and financially unsound.

Q. Well, what do you think is the best method to ac­
complish desegregation? A. I think the best method to 
accomplish it here would be also the best method of getting 
the best educational return on the dollar, would be to 
consolidate the elementary facilities and consolidate the 
secondary ones.

Deposition of the Witness, Dr, Myron Lieberman,
Taken at Instance of Plaintiffs



97

Q. Well, we’re—maybe we’re talking about standards. 
We’re not—you are not—under any standards. We under­
stand that. A. No.

Q. Doctor, is a one to twenty five pupil ratio an ac­
ceptable teacher-pupil ratio—an acceptable teacher-pupil 
ratio! Nothing wrong with it there? A. In most situa­
tions, no.

Q. Or in any situations that is not too many pupils, is 
it, doctor? A. Well, there are certain kinds of classes 
where, for example, children of special needs—have special 
needs. But I ’d say for an ordinary—an ordinary high 
school twenty five in a class is not too many.

Q. Students-—Assuming everything else is equal, the 
same quality of teaching and so forth, the students are 
not penalized on a one-twenty five pupil ratio, are they? 
A. Not penalized, but they are penalized in relation to—

Q. No, I’m not asking you that. Well, when you say 
they are penalized, by what standard? A. By your stan­
dard.

Q. If you are going to set up a school operation do it 
any way you want to, put all the elementary here and the 
secondary here, if we proceed on the basis of teachers 
to accomodate one to twenty five, this is certainly accept­
able from an educational standpoint, isn’t it? A. Mr. 
Friday, not if the twenty five are taking subjects that 
they should not be taking.

Q. Doctor,—Leave all this out.

Mr. Walker: Let Dr. Lieberman finish his state­
ment.

Mr. Friday: My apologies. You go ahead, doctor.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



98

A. If you have one to twenty five, but those twenty five 
students are enrolled in a course that they wouldn’t, or 
shouldn’t be taking because their educational needs are 
different, for instance, then I would say they are being 
penalized. I think if you are isolating, as I say, com­
pletely from every other consideration, one and twenty 
five is not an unusually high teacher-pupil ratio.

Q. Well, doctor, I did not mean to be isolating them. 
I just wanted to know if I am setting up a school system 
and I put twenty five students in a classroom by anybody’s 
educational standards this is not too many pupils, is it! 
A. It depends on the class and who’s in it. You can’t 
judge teacher-pupil ratio apart from what the students 
are taking and why.

Q. Well, let’s take English. Take a good teacher teach­
ing English to twenty five pupils, is not too many, is it! 
A. Too many for what?

Q. Too many for an acceptable school system operation. 
Now, doctor, you had me with you. Now, come on—you 
—if you are going to set up one and break— A. It is 
acceptable, yes. That would be acceptable.

Q. Well, certainly it would if you are doing professional 
planning? A. Well, if you had special education it would 
not.

Q. I understand, doctor, but you got dollars to spend— 
and I say you have been criticizing this school district— 
Certainly, if you have considered dollars to spend and 
you set it upon a basis of one-twenty five, that’s all right 
now, isn’t it? A. I ’m sorry. I can’t agree with you.

Q. Do you know any school system that is operated on 
a basis with a lower required teacher-pupil ratio any­
where? Why, that’s too broad, is that correct? Do you

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs



99

know anything about it in Arkansas! A. I don’t know 
what the teacher-pupil ratio is.

Q. All right. Do you know the teacher-pupil ratio from 
a standpoint of a maximum of the various accrediting 
services! Let’s put it that way. A. Well, they vary.

Q. Well, any of them. Can you tell the—below one to 
twenty five that you know of! A. Well, I don’t know, I 
will put it that way. I think that they would all accept 
twenty five to one. That is an acceptable teacher-pupil 
ratio for most high school classes.

Q. Fine. Can you think of anything else I can ask you 
that I would make any progress on! A. Yes, as a matter 
of fact—

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs

Mr. Friday: Thank you, doctor. I have enjoyed 
visiting with you.

Redirect Examination by Mr. Walker:
Q. Doctor, are there circumstances where the teacher- 

pupil ratio would have no relationship to the actual learn­
ing or capacity of the teacher! Well, let me change the 
question. Is there any situation, in your opinion, where 
one to twenty five teacher-pupil ratio might be more harm­
ful to the pupils in that class than a one to eighteen 
teacher-pupil ratio! A. Well, yes. That was the point 
that I was trying to make at the end of Mr. Friday’s— 
that you could conceivably have a lower teacher-pupil 
ratio and this very often happens, that the ratio is lower, 
but that the educational results are worse than where 
the teacher-pupil ratio where there are more pupils per 
teacher, because the pupils in the class that has a rela­
tively low enrollment are pupils who should be taking



100

some other subject than when you have a low enrollment, 
as you do, for example, at Altheimer. You force many 
pupils to take courses and subjects that are not really 
the most appropriate ones for them. Say if you just 
isolate classes from all these other factors, then as I said, 
it is quite often that twenty five to one is an acceptable 
•—acceptable ratio.

Q. All right, doctor. What is your—What is the regional 
accreditation association in your region? A. It is the New 
England Association of Secondary Schools and Colleges.

Q. And would it be accurate for—Would you have an 
opinion as to whether or not the standards of the New 
England Association are different from these standards of 
the North Central Association! A. Yes, they are. There’s 
—There are six regional accrediated associations, Mr. 
Walker, and their effectiveness and standards, their stan­
dards, vary a great deal. In some there are only paper 
honors and in some they mean more than others.

Q. I see. Do you have a professional opinion as to which 
of the professional accreditable associations have lower 
standards for accrediting high schools? A. Well, I think 
that generally speaking, I think that the New England one 
and the Southern one and the ones on the west coast are 
the—I think, for example, also that the North Central As­
sociation is generally regarded as one of the better regional 
accredited associations.

Q. Would you have a professional opinion as to whether 
the North Central Association, however, has historically 
maintained to all accreditation standards for negro schools 
and for white schools? A. I don’t believe that they have, 
but as far as that particular association is concerned, I 
really don’t have definite knowledge on that point.

Deposition of the Witness, Dr. Myron Lieberman,
Taken at Instance of Plaintiffs



101

Q. You don’t? Now, you have been— A. I think some 
of the regional associations did, but I ’m not prepared to 
say categorically that the North Central Association was 
one of them.

Q. Do you know whether the Martin school and the 
Altheimer school is rated by the North Central Association? 
A. It is.

Q. On the same level as the Altheimer school? A. Oh, 
it is my understanding that it is not on the same level as 
the Altheimer school.

Q. All right, doctor. I want to pose a hypothetical ques­
tion to you. Assume that you have a school system in 
which the teachers in that system in one—assume that you 
have two school systems in one community, one historically 
set up for negroes and operated for negroes, and the other 
set up for and operated for whites. The teachers in the 
white system have historically been paid more, have been 
provided for supplemental benefits like [a] teacherage, 
where the teacher-pupil ratio is much lower than in the 
negro school where the per pupil cost of educating white 
pupils is much as two times greater than per pupil cost 
of educating negro pupils, would you have an opinion, 
Dr. Lieberman, as to the comparative equality of those two 
school systems? A. Well—

Q. And would you have an opinion as to the particular 
or comparative educational opportunities afforded by those 
two school systems? A. Well, there wmuld be no question 
that the Negro pupils would be operating under a severe 
disadvantage in that case.

Q. All right. Now, one final question. You have before 
you, have you not, matters that are marked as exhibit. 
You see on plaintiffs’ exhibit one, plaintiff’s exhibit two 
and the like? A. Yes, sir.

Deposition of the Witness, Dr. Myron Liebermcm,
Talien at Instance of Plaintiffs



102

Q. All right. Now, to the best of your knowledge and 
belief, are those matters, items, which have been here to 
be introduced into the record in this case? A. Uh—yes.

Q. At this time I would like to have introduced into the 
record— A. Which items are you referring to?

Q. All of them. A. Well—the interrogatories have been 
introduced in the record.

Q. Well, everything before you really has been in the 
record. A. I  believe the interrogatories have been intro­
duced in the record.

Q. I show you schedule 23 from the auditor’s report for 
the Altheimer District and ask you if you see marked on 
the margin the notation “Plaintiff’s exhibit four?” A. 
Yes.

Q. Do you see that other copy before you? A. Yes.
Q. Do you see an identified mark on the teachers’ salary 

data? A. That is right. Un-hunh. And this is plaintiffs’ 
exhibit A-one.

Q. All right. So that all of the information that you 
have before you and all of the information that has been 
provided you by counsel has to the best of your knowledge 
been introduced in the record? A. That is correct.

Mr. Walker: No more questions.
Mr. Friday: We have nothing else, doctor.
(Thereupon, the deposition of Dr. Myron Lieber- 

man was concluded at 1:45 p.m.)

Deposition of the Witness, Dr. Myron Lieherman,
Taken at Instance of Plaintiffs

P l a in t iff 's E x. 1 , appended to original deposition, Page 
102; Vita of Dr. Myron Lieberman as of January 1, 1966.



103

S tate of A rkansas,
County  of P ulask i,

I, Jacqueline J. LaBat, a Notary Public within and for 
the County of Pulaski, State of Arkansas, duly commis­
sioned and acting, hereby certify that the above and fore­
going deposition of Dr. M yron L ieberman , was taken 
before me at the time and place and in the action men­
tioned in the caption hereof, the said D r . M yron L ieber­
m an , being first duly sworn by me that the testimony he 
should give in said cause should be the truth, the whole 
truth, and nothing but the truth; that his statements were 
taken down in Stenograph and thereafter transcribed by 
me, the above and foregoing pages, numbered three through 
one hundred one, constituting a true, perfect, and complete 
transcription of my stenographic notes.

In T estimony  W hereof, I have hereunto set my hand 
and affixed my official seal, this 18th day of May 1966.

/s /  J acqueline J. LaBat 
(Mrs.) Jacqueline J. LaBat, 

Notary Public 
304 Court House 
Little Rock, Arkansas

Deposition of the Witness, Dr. Myron Lieberman,
Talien at Instance of Plaintiffs

My commission expires: 
January 11, 1968



104

Transcript o f Hearing

B e it  rem em bered , that the above entitled and numbered 
cause came on to be heard before Honorable J. Smith 
Henley, United States District Judge, at Little Rock, Ar­
kansas on March 31, 1966, wherein the following proceed­
ings were had, to wit:
A ppea ra n ces:

For Plaintiffs:
H on . J ohn  W . W alker,
Attorney at Law,
1304 B Wright Avenue,
Little Rock, Arkansas, and 
H on . D elector T iller ,
Attorney at Law,
Little Rock, Arkansas.

For Defendants:
H on . E. H arley Cox, J r.,
Attorney at Law,
Pine Bluff, Arkansas,
H on . H erschel H . F riday,
Attorney at Law,
Little Rock, Arkansas, and 
H on. W m. C. B ridgeport,
Attorney at Law,
Pine Bluff, Arkansas.

P roceedings

The Court: Gentlemen, we have this morning 1966 
case C-10—Pine Bluff, Kelley and others Plaintiffs against 
The Altheimer School District No. 22, and the J. E. Stower 
Construction Co.



105

Gentlemen, at an earlier stage of this proceeding I 
looked through this file in some detail and thus am familiar 
with it in a general way, but I think it would be helpful 
if counsel would make brief opening statements and tell 
the Court precisely what is at issue and what it is they 
want the Court to do.

Mr. Walker, for the Plaintiffs.
(Note: Opening statements by counsel.)
The Court: Mr. Walker, who wfill be your first witness?
Mr. Walker: I think the principal of the Negro school, 

Mr. Fred Martin.
The Court: Come around, sir, and face the Clerk and 

be sworn.

Fred Martin—for Plaintiffs—Direct

M b. F eed Ma rtin , ca lled  as a  w itn ess  by  an d  on b eh a lf 
of th e  P la in tif f s , being  d u ly  sw orn, w as exam ined  an d  
tes tified  as fo llo w s:

Direct Examination by Mr. Tiller:
Q. State your name, address and occupation? A. Fred 

Martin, Jr., Post Office Drawer M, Altheimer, Arkansas, 
Principal Martin Elementary and High School.

Q. The Elementary and High School? A. That’s right. 
Q. How much experience have you had as a teacher, 

Mr. Martin? A. As a teacher, total years?
Q. Total years? A. Seventeen.
Q. Seventeen years; has all of that seventeen years 

been at Altheimer? A. That’s right, with the exception 
of the two years that I was in the Army.

Q. How long have you been principal at the two schools? 
A. Since 1955.



106

Q. Of course, when you first became principal it was 
not Martin School then, was it? A. No.

Q. What was the name of it then? A. Altheimer Train­
ing School.

Q. Altheimer Training School; and when was the name 
changed? A. In May of 1961.

Q. Who was it named for? A. Fred Martin.
Q. Yours truly? A. How is that?
Q. You said Fred Martin and I said Yours truly—your­

self? A. That’s right.
*  # ^ #

[In the first part of his testimony, Mr. Martin described 
the physical facilities and the curriculum, the teacher as­
signment and compensation system, the nature of the 
new construction plans, and the plans for use of the federal 
“89-10” funds at the all-Negro school of which he is 
principal.]

Q. Now, Mr. Martin, one thing, do you have a master’s 
degree? A. Yes, I have a Master’s degree.

Q. What is that in? A. In education and administra­
tion.

Q. Where did you get that? A. University of Arkansas, 
1957.

Q. Will you tell the Court whether you think it is sound 
administrative practice to have elementary and senior high 
school pupils share the same library? A. No, I would 
say it would not be the best for the best educational prac­
tices.

Q. Would you say that it is a sound educational practice 
for elementary pupils and for senior high school pupils 
to be located in buildings which are adjacent and together,

Fred Martin—for Plaintiffs—Direct



107

which have different classes together? I will put the 
question in a different way. Is it sound educational prac­
tice for elementary and senior high school pupils to go to 
school in the same building, located on the same— A. In 
the same building?

Q. Same building, yes. A. Does this question come back, 
you say, not on the same campus but in the same building ?

Q. Same building and on the same campus? A. With 
respect to the first part, within the same building I would 
not think it would be sound educational practice.

Q. We will get to the second part; you do have some 
of that, don’t you? A. What is that?

Q. You do have some elementary pupils attending classes 
in the same building as senior high school pupils? A. 
That’s right.

Q. Go ahead. A. With respect to the second part of 
the question, I do not see where it would be not educa­
tionally sound to have them on the same campus.

Q. With the playground the same? A. No.
Q. With the elementary pupils playing on one side? 

A. That’s right.
Q. I want to get one or two other things from you. I 

understand that your basketball team won the State Negro 
Boys Basketball Championship, is that right? A. That’s 
right.

Q. Now. isn’t it customary for the Negro high school 
state champion to play in a national tournament? A. Yes, 
it is.

Q. Were your boys permitted to play in that tournament 
this year? A. No.

Q. By whom were they denied permission to play in 
that tournament? A. They were denied permission to 
play in that tournament by the Arkansas State Athletic

Fred Martin—for Plaintiffs—Direct



108

Association by stating that it would not send its repre­
sentatives to the national tournament.

Q. Is that the Negro association or the white! A. The 
Negro association, the Arkansas State Athletic Associa­
tion, the ASAA; the Arkansas Athletic Association is the 
white association, the triple A.

Q. Did the Board have anything to do with that decision! 
A. No.

Q. They did not! A. The Board!
Q. Yes, your Board, Directors! A. No, definitely not.
Q. They did not! A. The Superintendent and Board 

members congratulated them.
Q. One final thing, Mr. Martin. Last fall when the 

freedom of choice plan first went into operation did a 
number of pupils come to you and say they wanted to 
make choice to go to the white school! A. Did any pupils 
come—

Q. Did anybody come to you and ask you about that! 
A. Only one person came to me to ask me concerning that.

Q. What did you tell them! A. I told them that was 
a choice to be made by he and his wife; that I had been 
instructed as principal of the school that I  could not in­
fluence or encourage or otherwise advise anyone to make 
a choice to any school, and that was his responsibility and 
his alone, and I would not attempt to advise him.

Q. Let me go back to May; your choices were really 
made in May, weren’t they, or in June! A. In May.

Q. Now, isn’t it true that a substantial number of pupils 
really did fill out those forms when they were given to 
them! A. No, not that I know of; as a matter of fact, 
I have in evidence here where I personally had handed 
them out and checked them out by roster, and as they 
came back in I personally checked them.

Fred Martin—for Plaintiffs—Direct



109

Q. May I see that! A. Yes. In addition there were 
students absent and those that were absent were marked 
absent; and you might notice there is an M in front of 
their names. Those that didn’t come to school in time to 
get the forms we mailed them out; and those that did 
not come back in voluntarily I went out and got them 
personally to be sure that everybody who was in school 
last year received a form and an opportunity to make a 
choice.

Q. They did, to the best of your knowledge that’s true? 
A. Yes.

Q. Now, with regard to the school construction plans of 
the District, when you were in school did you take any 
courses that dealt with the matter of site selection or ad­
vised where the school should be? A. Possibly.

Q. You don’t recall? A. I can’t recall taking a specific 
course; I ’m sure possibly in the—

Q. Did you participate in the decision to build the re­
placement facilities which are in controversy here? A. 
By participating, what do you mean?

Q. Did the School Board consult with you with regard 
to where the new schools should be placed? A. The Board 
through the Superintendent, yes.

Q. What was it that they sought from you, what informa­
tion did they seek, what advice did they seek from you? 
A. Well, we discussed—as a matter of fact, the School 
District and the Superintendent and I, we planned new 
construction, as a matter of fact, on a ten year period plan, 
and we will continually add new construction as time goes 
on, and this year was supposed to have been the time that 
we get rid of all the frame buildings.

Q. This ten year building plan you talk about began in 
1955 when you first went there? A. 1957.

Fred Martin—for Plaintiffs—Direct



110

Q. So you have a ten year plan which is to end in 1967; 
this is a part of those plans, isn’t it? A. Yes.

Q. And those plans were formulated, weren’t they, hack 
in 1957 at a time when the District did not have any deseg­
regation plan? A. No, it didn’t have a desegregation plan 
at that time I ’m sure.

Q. Now, the construction then that has been engaged in 
since that time has been pursuant to the old policy of hav­
ing schools for Negroes and schools for whites! A. I 
could not say that, because—

Q. Let’s forget about this present controversy now, but 
up until this present controversy all the schools in the past 
were built for Negroes or for whites or the additions were 
added for Negro and for whites, isn’t that true? A. Yes.

Q. Now, how does the present construction proposal dif­
fer from the other proposals that you have had and plans 
that you have carried out during the last eight of nine 
years? A. Well,—

The Court: The construction itself, he is talking 
about. How does this construction program pro­
posal, location, size of buildings and so on, how does 
it differ from the plans and the program that has 
been in effect for the past five or six or seven years?

The Witness: I don’t know that there is any dif­
ference only the fact they are going to build the 
schools. It has always been to get rid of the frame 
buildings and we have gradually done that each 
year.

Q. All right, so that you did not plan these new schools 
as far as you know with the intent to promote the process

Fred Martin—for Plaintiffs—Direct



I l l

of desegregation? A. To promote the process of—repeat 
that again.

Q. You did not plan these new schools to promote the 
process of desegregation? A. The buildings were planned 
for housing pupils to educate them, to improve the en­
vironment of students. I can’t say whether—there was noth­
ing discussed whether it was planned to perpetuate or 
promote desegregation.

Q. Do you have an opinion as an educational adminis­
trator as to whether these construction plans will promote 
or perpetuate desegregation—perpetuate segregation? A. 
Well, my opinion is those people, persons, parents or stu­
dents who desire to send their students or children to 
either of the schools will do so of their choice.

Q. Mr. Martin, what is your understanding of the term 
“one school system, a unitary school system? A. It means 
that students of any race or nationality or origin may 
select or go to the school which they desire and on the 
grade level which he wants.

Q. All right, Mr. Martin, if there but one race of pupils 
eligible to attend the Altheimer School in your opinion as 
an educator how many high schools for the number of 
high school pupils you have there would you have in the 
City of Altheimer ? A. The number of schools could easily 
be one for high schools; for the number I think a high 
school could probably—

Q. Isn’t it true, though, that educators say that unless 
you have at least four hundred pupils in a high school you 
really can’t effectively operate a rate high school system? 
A. Usually.

Q. Eight; now,— A. We have that high school.
Q. But that school could very easily be six hundred too,

Fred Martin—for Plaintiffs■—Direct



112

couldn’t there; and it would probably be better to have just 
one school for all the pupils? A. Probability, yes.

Q. Now, the question, if all these pupils in this school 
district were white would you have a need for two high 
schools; would there be two high schools? A. I can’t say 
on a proposition like that, that’s drawing out quite far.

Q. Is it educationally sound in your judgment as an ad­
ministrator of seventeen years experience to build two ele­
mentary schools located some few blocks apart, one to be 
able to accommodate four hundred pupils and the other to 
be able to accommodate two hundred pupils?

The Court: Just a moment. That’s not the situa­
tion we have here exactly. As the Court understands 
these plans, the proposal is to build two eight-room 
class structures on the Martin campus and one eight- 
room structure on the Altheimer campus; so you are 
talking about three buildings in two locations rather 
than two buildings in two locations.

Mr. Walker: Thank you, Tour Honor.
The Court: That may be a difference without a 

distinction, or vice versa; but I believe it will be best 
to confine your question to that state of facts, which 
is the one with which we are actually confronted.

Q. Now, the school planned for the Martin site, the 
schools rather planned for that site is to be in two parts? 
A. That’s right.

Q. Aren’t they to be connected in some way? A. No.
Q. You mean you’re going to have one school building 

with nothing but classrooms in it? A. That is right, the 
primary grades will be—

Fred Martin—for Plaintiffs—Direct



113

Q. All right, are you going to have the other building 
standing alone, with offices in it? A. That’s right.

Q. On the same site? A. That’s right,
Q. How far apart? A. I think the contractor said ap­

proximately eighty one feet, I believe, I’m not sure.
Q. Distance from here to the back of the Courtroom? A. 

Something like that.
Q. But it is really going to be one school? A. It will be 

a school, one school, Martin Elementary School.
Q. Assuming it is one school, is it sound educational prac­

tice to locate, to build another school at the same time you 
are building this school within a few blocks of this school, 
or would it be a sounder practice to construct just one 
school on one site? A. According to some of the informa­
tion and discussions with or in previous administrative 
meetings that I have attended—-

The Court: Mr. Tillar, will you snap off the switch 
on that microphone while you are fumbling through 
the plans. Thank you.

The Witness: According to some of the discus­
sions in meeting I have attended and with fellow 
administrators and some of the meets I have at­
tended I remember the size of the elementary school 
will be not more than five hundred.

Q. But isn’t it generally considered by administrators 
and education centers throughout the country that ele­
mentary schools ranging in size from three hundred to 
eight hundred are common and perhaps can afford a better 
quality education than smaller schools, like schools for two 
hundred? Let me put my question a different wray—

Fred Martin—for Plaintiffs—Direct



114

The Court: Gentlemen, Isn’t there—I take it from 
what the two of you say that there is some divergence 
of view on this subject, whether a smaller elementary 
school or a larger elementary school is more desir­
able. I’ve heard some people suggest, and I suppose 
it is ridiculous, but that there was some merit in the 
one-room school house. Isn’t that what we get down 
to, that there are varying theories about this.

Mr. Walker: I’ll go at it a different way, Your 
Honor.

Q. Isn’t it true that if all the pupils in Altheimer were 
white, if all the pupils in Altheimer were white you would 
not have considered the construction of two elementary 
facilities as you have planned now located so close together ? 
A. Sir, I will be frank and honest with you, I cannot stretch 
my imagination to answer a question on a supposition like 
that. If they were white—you mean if they were all of one 
race! It depends upon the philosophy of the School Board, 
the Administration, as to how many students they want in 
a school.

Q. But nonetheless, regardless of the philosophy I would 
imagine, you would have schools of equal size rather than 
disproportionate size, wouldn’t you, from an educational 
point of view? A. Now, you say taking into consideration 
also there would be no schools they already have?

Q. What you’re doing is, you’re replacing them, if I’m 
not mistaken, the present facilities, so what we have is a 
situation where theoretically you don’t have any schools? 
A. It’s a little difficult for me to follow’ your theory. I 
would like you to be more specific and actual.

Q. I was asking for an opinion, so you don’t have an 
opinion on that? A. No.

Fred Martin—for Plaintiffs—Direct



115

Q. Now, isn’t it true that the present elementary school 
attended by the Negro pupils is in the process of being torn 
down? A. Yes, part of it.

Q. Now, isn’t it true that those pupils who are not able 
to attend classes in your elementary school are required to 
attend classes in a Negro church! A. We have two classes 
in a Negro church, and one class, one of the three classes in 
the vocational agricultural building.

Q. Now, for the record, Mr. Martin, you are a Negro! 
A. Yes.

Q. For the record, the Martin School was established as 
a Negro school! A. At the time of its conception I ’m sure 
it was.

Q. And for the record, you have no knowledge of any 
plans by the Board to disestablish segregation of schools, 
do you? A. Yes, I have the plans last year.

Q. No, plans by the Board to itself remove segregation 
from the school system with regard to pupil assignment? 
A. The plan that was submitted last year was designed to 
do that.

Fred Martin—for Plaintiffs—Direct

Mr. Walker: I will pursue this with the Superin­
tendent, Your Honor, he is the proper witness to ask 
the question.

Q. Do you have an opinion as to whether or not the 
planned school construction program will further pupil de­
segregation? A. Do you ask do you, do I think it will 
further desegregation because of the construction of these 
schools? As I said before, I feel that those people who 
want—

Q. No, just a moment, that is different. I don’t have any 
difficulty with that, but you have testified pupils Avho want



116

to go to the white school they could, that is Negro pupils, 
and if why pupils want to go to the Negro School I pre­
sume that they could go! A. Yes.

Q. But do you think that this construction program will 
further the process of moving to just one school system in 
the elementary grades for all pupils! A. Possibly, ac­
cording to the guide lines.

Q. I’m talking about your opinion, regardless of the guide 
lines! A. I’m talking about the guide lines, that’s where 
I got my opinion from, if there were no guide lines, accord­
ing to this form that is what the School Board is required 
to do, I would think differently.

Q. Have you read those guide lines! A. Yes.
Q. I  quote to you, sub-paragraph B—this will be later 

introduced in evidence.

The Court: Go right ahead.

Q. “It is the responsibility of a school system to adopt 
and implement a desegregation plan which will eliminate 
the dual school system and all other forms of discrimina­
tion as expeditiously as possible.” Now, do you think that 
this school construction program that we’re discussing here 
will eliminate the dual school system which has been in ex­
istence until the present! A. I think if the guide lines are 
followed it will. If not I believe, I guess the Office of Educa­
tion will certainly prevail upon the School Board to change 
its plan that will permit it to do so. I understand from the 
guide lines will be the elimination, regardless of where the 
schools are located and how many there are in the District, 
the elimination of any evidence of racial discrimination, 
or you will not be able to tell the origin, the national origin 
of the school by even the desegregation of the staff, as well

Fred Martin—for Plaintiffs—Direct



117

as the pupils, and there are also provisions in that guide 
line—

Q. I ’m familiar with the provisions of the guide lines. 
A. That’s the reason why I base my opinion—

Q. I’m asking do you think that when we’re discussing 
and dealing with here now will cause the district to move 
forward soon with the elimination— A. Yes.

Q. Of the segregated schools? A. I feel so.
Q. How? A. By the choice of the people first, if they 

don’t choose it then it’s the responsibility of the District to 
provide means to do it. How they would do it, it would be 
impossible for me to tell you in the Board’s mind what 
they will do.

Q. How many of your little pupils chose the wthite school 
last year? A. We returned all the forms to you; I didn’t 
have an opportunity to go back through eleven hundred 
forms and decide which ones.

Q. But you do know how many went to the white school, 
don’t you? A. No, I don’t.

The Court: He knows how many went to his 
school, but obviously he doesn’t know how many went 
to the white school.

Mr. Walker: I meant, Your Honor, it was so small.
The Court: Gentlemen, does that complete the 

direct examination?
Mr. Walker: Yes, sir.
The Court: I believe then we will be in recess un­

til one-thirty.
(Whereupon, Court recessed for lunch.)

Fred Martin—for Plaintiffs—Direct



118

James D. Walker—for Plaintiffs—Direct 

A fter  R ecess

(Pursuant to taking recess for lunch, Court re­
convened at 1:30 o’clock, P. M.)

The Court: Gentlemen, will there be a cross-ex­
amination of Mr. Martin?

Mr. Friday: We have no questions.
The Court: Who will be next, Mr. Walker?
Mr. Walker: Mr. James D. Walker.

J ames D. W alker, called as a witness by and on behalf 
of the Plaintiffs, being duly sworn, was examined and 
testified as follows:

Direct Examination Questions by Mr. Walker:
Q. State your name, please? A. I am James D. Walker.
Q. What is your position? A. Superintendent of 

Schools, Altheimer School District No. 22, Jefferson 
County, Arkansas.

Q. Yesterday we served some subpoenas on you that you 
bring to Court certain information, do you have that with 
you? A. I do.

Q. May I have it?
(Witness goes to counsel table for files, and passed docu­

ment to counsel.)

Q. Now, Mr. Walker, how long have you been Superin­
tendent of the schools in Altheimer, Arkansas? A. July 1, 
1960 is when I took the position; I wras elected in October, 
1959.

Q. And what had been your previous position in the



119

school district? A. High School Principal, Altheimer High 
School.

Q. Now, will you tell the Court where you received your 
under-graduate and other training! A. Bachelor of Arts 
Degree, Henderson State Teachers College 1949, Master of 
Arts, Education Administration, University of Arkansas, 
1954, at present completing the last three hours of diploma 
in advance studies, University of Arkansas.

Q. Now, the diploma in advance studies is a six year 
diploma, is that right! A. That’s right.

Q. Have you received any education any place else? A. 
University of Colorado, Summer term 1950, I believe; Pea­
body College for Teachers, Nashville, Tennessee 1959, I 
cannot be specific of the exact year, but approximately that 
time, 1959, of course in-service training- at different places.

Q. Now, has the advanced training that you have re­
ceived been concentrated in any particular area? A. Edu­
cational Administration.

Q. Now, will you tell the Court the kinds of pro­
grams Educational Administration encompasses? A. Ed­
ucational Administration encompasses courses in statistics, 
courses in history and philosophy of education, custodial 
maintenance, buildings and that sort of thing, that is one 
program; school budgeting, school finance in general and 
related subjects, economics.

Q. Did it have anything to do—did any of your studies 
take you into the area of construction planning? A. Yes, 
one course called building, 1952, I believe, I had a course 
called, 1952 University of Arkansas, I believe, or 53,1 can’t 
remember specifically what year, I had a course I believe 
entitled school buildings and custodial service.

Q. Have you had any courses at all which deal with the 
matter of site selection? A. This course would be general 
in nature and would probably cover site selection, yes.

James D. Walker—for Plaintiffs—Direct



120

Q. Did you recall or do you recall having’ any particular 
lecture, anything like that, on the matter of where to place 
schools so as to get the most advantage of the School Dis­
trict’s money? A. Well, I’m sure there must have been a 
lecture on the subject, but that was in ’52—that is fourteen 
years ago, specifically I could not remember.

Q. Have you had any courses or instructions or other 
studies since 1952 which dealt with that? A. Not specifi­
cally, no.

Q. Have you had any conversations with Educational 
Administrators, teachers or other persons connected with 
universities? A. Yes.

Q. Who have discussed this particular problems with 
you? A. To some extent, yes.

Q. Will you tell us who they are? A. Yes, Professor of 
Educational Administration, University of Arkansas.

Q. Will you tell me the name of one of them, please? A. 
Dr. Harvey Waldorff, Assistant Superintendent, Little 
Eock Public Schools, teaches a class I ’m in right now.

Q. Could you think of someone else? A. I can think of 
any number—

Q. I would like for you to talk in terms of somebody who 
taught you at the University of Arkansas? A. Dr. Max 
Roelfs, who is now Assistant Dean, I believe of the College 
of Education; a man who taught me the course on build­
ings was Dr. Robert Proctor, deceased now, from Duke 
University.

Q. All right, I want to get from you some information 
about the character of the school system at Altheimer; 
could you tell the Court the total number of pupils? A. I 
believe there were 1431 children at the end of the seventh 
month in the school district.

Q. Now, would you break this down to the number of

James D. Walker—for Plaintiffs—Direct



121

pupils in the high school division and the number of pupils 
in the elementary school division; and further break it down 
to the number of pupils in the Negro high school division 
and the elementary school division, and the white division? 
A. Not without notes, I don’t think I can just pull those-—- 

Q. Approximately? A. All right, in the elementary di­
vision there were approximately seven hundred fifty stu­
dents; some where in the neighborhood of six hundred 
seventy high school students; whether that adds up to 
fourteen hundred thirty one I don’t know, approximately.

Q. Now, racial break down? A. The racial break-down 
of the school district is approximately one thousand to 
about—well the difference between that—

Q. Four hundred thirty one? A. Something like that.
Q. Now, in the elementary grade level at the predomi­

nantly white school how many pupils do you have? A. I 
believe at the end of the seventh month there were two 
hundred eleven students.

The Court: Wait a minute. Two hundred eleven 
white or Negro students?

The Witness: They are a combination, Sir.
The Court: Two hundred eleven in the elementary 

grades?
The Witness: Yes, sir, at the Altheimer site.

Q. Two hundred eleven white students, approximately? 
A. No, sir, I didn’t say that; I said—you asked me how 
many students, I said there were two hundred eleven stu­
dents in the Altheimer Elementary School.

Q. Now, I ’m asking you how many Negro pupils are 
there? A. In the Altheimer Elementary School, two, I be­
lieve.

James D. Walker—for Plaintiffs—Direct



122

Q. Two? A. Yes.
Q. So that there are approximately two hundred and 

twenty high school pupils in the Altheimer High School? 
A. Yes.

Q. How many of those are Negro? A. Four.
Q. Now, prior to the time that 8910 was implemented by 

your district, before you received any funds under that 
Act, what was the number of Negro teachers that you had 
in your school system? A. Prior—

Q. Let me explain that. I said Negro teachers. I mean 
people who did not have administrative duties, full time 
class room teachers? A. I believe in this morning’s testi­
mony we talked about a figure of thirty-one; I ’m sure that 
is fairly accurate; I don’t have my list in front of me here, 
but that is essentially right.

Q. Now, at the beginning of this same school year how 
many white teachers who had full time teaching responsi­
bility? A. I think about nineteen.

Q. Nineteen? A. Yes.
Q. Now, since that time under Public Law 8910 I under­

stand you have hired some additional people? A. That’s 
right.

Q. Tell the Court how many such people you have hired? 
A. Since 8910 became operative in our district we em­
ployed Mrs. Reed, who is the remedial reading teacher at 
Martin Elementary School; we employed Mrs. Morgan in 
Special Education; we employed Mrs. Nannie Wax, I be­
lieve it is, in practical English; we employed Mr. J. C. 
Feaster as the Elementary Counselor Home Visitor; we 
employed—in other words, Mr. Coates was employed as a 
social studies teacher and was transferred to the position 
of counselor after January 17th of this year; and then a 
Miss Emma Goodrum taught social studies; Mrs. Herby

James D. Walker—for Plaintiffs—Direct



123

Johnson took a regular teaching position; Mrs. Gerald 
Shepherd was transferred from another teaching position 
to a supervisory capacity after this time; Mrs. C. E. White 
took a practical English course; Mrs. Samon Fitzgiven took 
remedial reading. I believe other than the fact the speech 
therapists, who was discussed this morning, was also paid 
for partially under 8910 funds. We mentioned their names, 
I believe one was Mrs. Ramstead, and I couldn’t tell you 
her first name, and Mrs. Cochran, I believe in speech ther­
apy. I believe those are all.

Q. Now, you are familiar with the guide lines of 8910, 
are you not? A. Yes, I am.

Q. Did not the District Committee itself for hiring and 
using people hired under 8910 program on a nondiscrimina- 
tory basis ? A. That’s right.

Q. Isn’t it true that you have proceeded to employ sev­
eral Negro people under this 8910 Act and to continue pre­
vious practice of assigning them to Negro schools? A. 
They have been so assigned.

Q. Isn’t it true that the white people have been hired 
since this time? A. That’s right.

Q. Have been placed primarily in the white schools? A. 
Formerly all white schools, yes.

Q. Now, isn’t it true that you have no Negro supervisors 
so designated in the school system other than the Negro 
principal? A. That is right.

Q. Isn’t it true that all these people that have been hired 
on the basis of race, of course, along with their qualifica­
tions? A. No, sir.

Q. When you got ready to hire a supervisor for the 
elementary schools did you look for a Negro person or did 
you make it known to Negro persons throughout the state 
that you were in the process of considering applications for

James D. Walker—for Plaintiffs—Direct



124

the position of elementary school supervisor? A. No, I 
did not; nor do many school systems look outside their own 
system, when they have people within their own system 
which they wish to use for that purpose.

Q. But you would say then—-how do you explain the fact 
that all the supervisors are white in a school system where 
most of your pupils are Negro and most of your teachers 
are Negros? A. If you are speaking of the fact that there 
is one supervisor in the district and this woman happens to 
he white, I see nothing greatly disturbing about this.

Q. Did you let the Negro teachers know that you were 
considering naming a person as elementary supervisor? 
A. Yes, they were aware we were going to—

Q. Did you let them know that they could apply for that 
job? A. Mr. Walker, again when you—

Q. Did you let them know? A. They knew there was 
going to be an elementary supervisor employed?

Q. Did you let them know, Mr. Walker, that they could 
apply for that job and have a reasonable chance of getting 
it if they had the qualifications? A. In my profession 
anyone can apply any time—

Q. But did you—

The Court: Just a minute, Mr. Walker. We’ll get 
along much better and more rapidly if you will pay 
attention to the question and answer it. Now, that 
question can be answered very simply, yes, I did or 
no, I did not.

The Witness: Would you restate the question, 
please, Sir?

Mr. Walker: Would you read it back?
The Court: Don’t read it back. The question was 

in substance, did you let the Negro teachers know

James D. Walker—for Plaintiffs—Direct



125

that they could apply for the job of elementary school 
supervisor with a reasonable expectation that they 
might be hired?

The Witness: No, I did not make such an an­
nouncement.

Q. Now, Mr. Walker, do you know Mr. Boy A. Bogey? 
A. I know Mr. Boy A. Bogy.

Q. B-o-g-y? A. That is right.
Q. What is his position within the school district? A. 

Sixth grade teacher.
Q. Sixth grade teacher; does he have any administrative 

responsibility? A. None.
Q. Has he ever had? A. Prior to coming to our District 

I  believe he—
Q. In your District? A. No.
Q. You do know Mr. B. W. Davis? A. Yes, I do.
Q. And he is principal of Altheimer High School? A. 

Yes.
Q. All right, then, now, I note that Mr. Davis has been 

in your school system for a period of between five and eight 
years, has he been principal there for this period of time, 
five years? A. No.

Q. How long? A. Just this year.
Q. Just this year; let me ask you, in your judgment, 

do you think that the Negro teachers in the school system 
are equally prepared and equally competent on the whole 
to teach youngsters in the Altheimer Public Schools as 
the white teachers? A. I answer your question this way, 
Mr. Walker: Based upon college training, experience they 
would be equally trained, with the exception that in our 
Altheimer Schools there are more teachers who have more 
advanced degrees than there are in the Martin Schools.

James D. Walker—for Plaintiffs—Direct



126

Q. Would you say that—would you admit that there are 
at least eight teachers in the Altheimer School who have 
Masters degrees'? A. Yes, including myself I  believe.

Q. Would you admit that there are only two persons in 
the Altheimer Negro School who have Masters Degrees, 
including the Principal? A. That, I believe, is right.

Q. Now, would you then say that the teachers at the 
Altheimer Schools, predominantly white teachers, are in­
ferior to the teachers at the Martin School? A. You ask 
me are the teachers at the Martin School inferior to those—

Q. Are the teachers in your opinion in terms of capacity 
to instruct pupils inferior to the teachers at the Martin 
School? A. No, I wouldn’t say they were inferior. You 
talking about the teachers at the Altheimer School are 
inferior to the teachers at the Martin School?

Q. Yes? A. No, I wouldn’t say that.
Q. Would you say they are superior, generally speaking? 

A. Yes, I think so.
Q. So then it follows, doesn’t it, Mr. Walker, that if the 

teachers at the Altheimer School are superior to the teach­
ers at the Martin School, then the quality of education 
being offered to the pupils at the Martin School are in­
ferior to that being offered to the pupils at the Altheimer 
School? A. No, sir, I didn’t say that.

Q. Why not? A. Because I didn’t say the Martin School 
is inferior. I simply said the teachers at the Altheimer 
School were not inferior to the teachers at Martin School.

Q. You also said in your opinion you thought they were 
superior to the teachers at the Martin School; so, since 
you do think that the white teachers—really that’s what 
we’re talking about—are superior to the Negro teachers, 
does it not logically follow that the pupils that they teach, 
that the Negro teachers teach, are not getting the same

James D. Walker—for Plaintiffs—Direct



127

kind of education as the white pupils or the pupils in the 
Altheimer School get? A. I can’t agree with that, no, 
sir.

Q. Well, would you explain it then? Let me ask a differ­
ent question. Yo do use standardized tests in the adminis­
tration of your school system, don’t you? A. Yes, we do.

Q. Now, those tests were administered to all pupils in 
the system? A. Not all pupils, no, sir.

Q. They are administered to the pupils in the high school 
grades? A. In some high school grades, not all, some are 
administered—

Q. Will you tell us what grades then? A. I believe the 
eighth grade tests were administered, twelfth grade tests 
are administered, and at the present we are in the process 
of administering tests in the elementary school,

Q. All right.
First grade test, which is a reading preparation, and I 

think third and fourth grades? A. All right.
Q. All right, now, when you administer these tests at 

the first grade level—first what test do you use? A. I ’m 
not the counselor and I ’m not sure; I think—

Q. Did you ever become acquainted with the Otis achieve­
ment test? A. Yes, I think the Otis test has been admin­
istered, but I wouldn’t take an oath to that.

Q. All right, I  won’t go into the specifics of that, I ’ll just 
ask the general question, isn’t it true at the first grade 
level the Negro pupils and the white pupils generally score 
just about the same on the tests that you give? A. Mr. 
Walker, I ’m not an authority on tests, and I couldn’t say 
that they do or that they don’t; I ’m not an authority on 
tests.

Q. I’m not talking about tests in general? A. I don’t 
feel that I’m competent to tell you whether a child’s test

James D. Walker—for Plaintiffs—Direct



128

in the first grade at Martin or Altheimer first grade is 
superior or not superior, because I ’m not a counselor and 
I ’m not trained in testing.

Q. Well, as an educational administrator, isn’t it reason­
able to assume that when youngsters enter the first grade 
that they all come within a range of scores which has no re­
lationship necessarily to their race? A. I ’m sure it didn’t 
have any relationship to race. I ’m not saying that it does 
or doesn’t; I know this, that since I ’m not an authority I 
can’t make judgment on those things.

Q. You did take some courses on testing; you said you 
took some courses on statistics? A. Yes, but it is some­
thing I don’t work with every day and, therefore, I don’t 
feel competent.

Q. Well, isn’t it a reasonable assumption though that 
Negro youngsters and white youngsters are about equal 
when they enter school, at the beginning of school, some 
better, some worse, generally about the same? A. This 
would be an assumption—

The Court: Mr. Walker, the witness obviously 
doesn’t know. I don’t believe you’re going to get him 
to make an assumption about which he knows noth­
ing, and if he did make it the Court wouldn’t believe 
it simply because he says he doesn’t know anything 
about it. Now, get somebody that knows something 
about this sort of thing, and may be you will prove 
something, but this witness just doesn’t know.

Mr. Walker: Well, with regard—-
The Court: You might try to inquire of him 

whether anybody knows in the Altheimer school 
system what the results of first grade testing is. I 
don’t know whether anybody knows or not.

James D. Walker—for Plaintiffs—Direct



129

Q. Does anybody know?

The Court: Have you been giving tests in the 
first grade?

The Witness: We have just begun them this year, 
yes, just started them.

The Court: Have you finished any of them yet?
The Witness: I think we have, yes.
The Court: Do you know what they showed this 

year, or somebody does?
The Witness: Yes, I think we do.

Q. Who is that person? A. I would imagine the ele­
mentary supervisor would probably be familiar with that.

Q. What about the counselors? A. They certainly ought 
to be familiar with that.

Q. Now, Mr. Walker, the Altheimer Schools is rated 
with the North Central Association; the Martin School is 
rated A ; would you say that the quality of education being 
received by Negro pupils in the Martin School is equal to 
that being received by white pupils in the Altheimer 
Schools, pupils in the Altheimer School? A. Mr. Walker, 
you know as well as I know that North Central Association 
rating indicates to all the world to know that that high 
school has obtained a rating second to none for reason of 
accreditation. I also further know, Sir, that there are many 
class A schools in this state which are superior to some 
of the schools that have been in North Central for a number 
of years. If you realize that just recently North Central 
Association started re-evaluating high schools after six 
years, one time during six years, and many high schools who 
have been North Central accredited for a number of years

James D. Walker—for Plaintiffs—Direct



130

do not have the curriculum nor the course offering that 
are offered at Martin High School.

Q. All right, for the record, then, since you have pre­
sumed to be an authority on education in Arkansas, would 
you state, Sir, the names of those schools that do not have 
equal programs or superior programs to the Martin School 
which are rated by the North Central Association? A. Off­
hand I do not have the record of all the schools in Arkansas.

Q. Just name those that you know? A. I know the 
school when I attended high school, which was Gurdon 
High School, a North Central School. Of course—

Q. Isn’t it— A. And I know the curriculum at Martin 
High School now is over a period of years.

Q. When is the last time you’ve been back to Gurdon? 
A. I beg your pardon?

Q. When is the last time you’ve been back to Gurdon? 
A. I left Gurdon in 1943.

Q. So you don’t have any real experience since 1943? 
A. That’s right.

Q. So what you gave was just an opinion about educa­
tion in Arkansas rather than something that has some 
system on which to base the opinion? A. It is certainly 
an opinion, certainly.

Q. So that the quality of education offered Negro pupils 
in the District, at the Martin School, is inferior to that 
offered to pupils that go to the Altheimer School? A. I 
do not agree with you.

The Court: Do you agree that the school program 
at Martin has a lower rating qualification than does 
that at Altheimer school?

James D. Walker-—for Plaintiffs—Direct

A. Yes, sir, I will.



131

Q. Now, let me ask you, in your response to the inter­
rogatories you set out that you did not have a separate 
salary schedule for Negro teachers and white teachers? 
A. That’s right, we do not have a salary schedule.

Q. You also state that there is no salary discrimination? 
A. Yes.

Q. All right, then, are you familiar with a report that 
you send in every year to the Arkansas State Department 
of Education that sets out teacher salaries? A. I am.

Q. I show you a copy of such a schedule that you sub­
mitted to the Arkansas State Department of Education 
after the beginning of this school term, which was the 9th 
of November this year, and I will ask you if you are 
familiar with the contents of that copy? A. I am.

Mr. Walker: Your Honor, I would like to have 
this marked as Plaintiff’s Exhibit No. 1 for identifi­
cation at this time, to be introduced in the record 
later.

The Court: You may so mark it.
(Thereupon, the document above referred to 

was marked as Plaintiff’s Exhibit No. 1 for 
identification.)

Q. Now, Mr. Walker, I notice that a number of Negro 
teachers, no less than nine who have been employed in the 
school system during the time ranging from no years in 
1965 up to a period of several years, four or five, who re­
ceived salaries of four thousand dollars. Is that the lowest 
salary you all pay? For teachers? A. I believe so.

Q. At the same time I notice that there are a number of 
white teachers in the school system working in the system

James D. Walker—for Plaintiffs—Direct



132

period of no years on np for whom the minimum salary 
is forty three hundred dollars; in fact not a single white 
teacher in the system earns less than forty three hundred 
dollars. How do you explain the disparity? A. We employ 
teachers individually as vacancies occur. They are inter­
viewed hy me; I state to them the salary which we can pay 
them; they either accept it or reject it.

Q. So that white teachers are worth more than Negro 
teachers in your school system?

The Court: No, Mr. Walker, that doesn’t follow.
If anything follow, it follows they are paid more.

Q. I will ask you this, how do you explain paying a 
teacher, a white teacher who doesn’t even have a Bachelors 
Degree seven hundred dollars more than you pay Negro 
teachers who have been working in the system for a number 
of years and who have degrees? A. The lady you refer 
to has taught in the Altheimer School District for thirty 
five years. In my opinion she is a master musician, a 
superior teacher, with one hundred forty one, I think, 
college hours, who is approaching her retirement year 
very soon, and she has been in the District I believe thirty 
five years; and I think she is a superior teacher and as a 
superior teacher she is due superior pay.

Q. Do you think she is superior to all the Negro teachers 
in that system? A. I wouldn’t make a statement that Mrs. 
Quattlebaum was superior to all teachers in the system. 
I say Mrs. Quattlebaum is superior in music.

Q. She doesn’t have a Bachelors degree, she has been 
teaching in your system, for the record now, thirty one 
years rather than thirty five years? A. You may be right;

James D. Walker—for Plaintiffs—Direct



133

I think though there has been some time in the thirty five 
years she was out a year or so.

Q. You have a Negro woman teacher who has a Bachelor 
Degree who has been teaching in the system thirty seven 
years who received a salary of forty two hundred dollars; 
how do you explain that? A. I explained as I did a while 
ago, there are some teachers who are superior, they are 
paid superior wages.

Q. Are you saying that this Negro teacher is inferior? 
A. I did not say that; I said some teachers are superior 
and paid superior wages.

Q. I ’m asking you a question now? A. No, she is not 
inferior.

Q. She is just not worth as much? To the District A. 
No.

Q. What about this Negro teacher who has been teaching 
in the school system twenty six years, in the field of ele­
mentary education, Mrs. Leola Allen, who receives only 
forty three hundred dollars; how can you justify paying 
her forty three hundred dollars when you pay Mrs, Linda 
Cunningham, who has absolutely no teaching experience at 
all, the same thing? A. Mr. Walker, I said I employed 
teachers individually and I set a salary, they have a chance 
to take it or not to take it.

Q. Now, why is it that you always set salaries for Negro 
teachers lower than you set salaries for white teachers? 
A. Mr. Walker, the salaries are not all lower for Negro 
teachers. We have several Negro teachers in our system 
whose salaries exceed some white teachers.

Q. All right, lets look at one of them. Here is a man, 
Mr. A. D. Nash, who, I ’m not mistaken, is a basketball 
coach. A. That’s right.

James D. Walker—for Plaintiffs—Direct



134:

Q. Also teaches science, he makes a salary of five thou­
sand four dollars? A. Yes.

Q. Isn’t it generally known that teachers who have spe­
cial responsibilities, especially in the athletic area, receive 
special pay for the extra work? A. That’s right.

Q. Now, Mr. Nash took your colored team to the State 
Championship and won, but how do you justify paying 
your white physical ed. teacher more money by thirteen 
hundred dollars than you pay Mr. Nash? A. Mr. Shepherd 
has a Master’s Degree, with fifteen years exeprience.

Q. All right, a Master’s Degree, with fifteen years ex­
perience is worth thirteen hundred dollars more than a 
Bachelor’s Degree and ten years experience? A. That 
was our decision, yes.

Q. Fifteen hundred dollars, for five years get fifteen 
hundred dollars more?

The Court: I believe it was thirteen.

Q. Thirteen hundred dollars more? A. Yes.
Q. All right, lets look at another one. You also recog­

nize that agricultural teachers make more money generally 
than other teachers, if for no reason other than they work 
twelve months ? A. That’s right.

Q. How do you justify paying your agricultural teacher 
in the white school fifty six hundred four dollars and your 
Negro teacher five thousand dollars? A. Mr, Cash has 
been in the system a good many years, I can’t remember, 
probably fifteen years; he has approximately twenty hours, 
I believe beyond his Bachelor’s Degree, he is a very thor­
oughly competent man, and in my opinion he is worth the 
difference ?

James D.'Walker—for Plaintiffs—Direct



135

Q. He is more competent than the Negro teacher! A. 
I will have to say yes.

Q. Well, now, Mr. Walker, how do you justify paying 
Mr. E. W. Davis, who has the responsibility for the white 
high school program, has about eight or nine teachers at 
most, a salary of sixty three hundred dollars, while you 
pay Mr. Martin, who has the responsibility, by his count, 
forty teachers, only six thousand dollars, and he has also 
been in the school district far more than the eight years 
that Mr. R. W. Davis has been there? A. Mr. Davis was 
discussed with and asked if he wanted the position, and this 
is the salary he asked for and received, though it does not 
reflect in that report there, for some additional duties, 
though we’re on a twelve months contract, Mr. Martin has 
been paid additional revenue in excess of the contract of 
his salary.

Q. You heard Mr. Martin state that his salary was six 
thousand dollars? A. Mr. Martin’s contract is for six 
thousand dollars, but for additional work he is paid addi­
tional pay.

Q. All right, now, the contract, we can only go by the 
contract? A. I understand.

Q. Now, the contract for Mr. Davis, how do you justify 
giving him a contract that calls for more money than you 
pay Mr. Martin? A. I go back to my original statement. 
We employ people one at the time as individuals. This is 
the amount of money necessary to employ Mr. Davis.

Q. In other words, it costs you more money to get Mr. 
Davis than it cost to you get Mr. Martin? A. It did.

Q. Does this also mean that the District believes—

The Court: Now, Gentlemen, just a minute. I 
have a little difficulty with this one, where the stated

James D. Walker—for Plaintiffs—Direct



136

salary, contract salary is not the total compensation. 
Like paying your preacher a salary of three thou­
sand dollars, but giving him another twelve hundred 
dollars for house rent, because it is better for him 
tax-wise. How much total compensation do you pay 
the principal of the Martin School?

The Witness: Sir, we pay forty dollars a month 
for extra work, looking after the cafeteria funds, 
he keeps up with those and files those, that is forty 
dollars for nine months. The last Summer Mr. Mar­
tin worked in the Head Start Program, and I think 
he received approximately four hundred dollars 
extra compensation for that; does extra work, Sir.

Q. Did you pay Mr. Davis any money for extra work 
last year? A. No, Mr. Davis did no extra work; he was 
in graduate school.

Q. He was in Graduate school? A. Yes.
Q. Did you pay him while in graduate school? A. He 

had a twelve months contract, yes, sir.
Q. So all the time he was in graduate school he was being 

paid? A. Yes, he had a twelve months contract.

The Court: Davis got how much?
The Witness: His contract this year, Sir, is sixty 

three hundred dollars.
The Court: And Mr. Martin, is it, got how much, 

six thousand?
The Witness: Yes, sir.
The Court: Plus some extra money for extra 

work?
The Witness: Yes, sir.

James D. Walker—for Plaintiffs—Direct



The Court: The only thing you’ve proved, it oc­
curs to the Court, Mr. Martin ought to have asked 
for more money, they’re paying what they ask for.

Mr. Walker: I wish it worked like that, Your 
Honor.

Q. All right, now, I have gone down and made a survey 
of teachers’ salaries for white teachers and for Negro 
teachers, and in no instance do I find a Negro teacher who 
receives a salary for the same work receiveing a salary 
great as that of the white teachers, how do you explain 
that? If I ’m wrong you tell me, if any one teaching in 
the system who is performing the same kind of work who 
received less money, white now, than the Negro counterpart 
at any grade level? A. Mr. Walker, it is difficult to pin­
point teacher for teacher, although it sounds similar, people 
may have extra duties which do not reflect on the State 
report.

Q. All right, do any of the Negro teachers have extra 
duties? A. Some of them, yes.

Q. Do they get paid for it? A. Yes, Mr. Martin is paid.
Q. Other than Mr. Martin; I ’m not talking about the 

special programs that you have. I ’m talking about the regu­
lar school program as covered by the contracts ? A. You’re 
talking about just the contracts?

Q. Just the contracts? A. Your question was, is there 
a single instance where—

Q. Yes, sir. A. I don’t believe there is.
Q. Why is it in every case white teachers are paid more 

money for the same work than Negro teachers? A. The 
point I have attempted to make, and reiterate, that I em­
ploy teachers individually, the salaries are set for them 
to accept or reject.

James D. Walker—for Plaintiffs—Direct



138

Q- Why do you always set the salaries for Negro teach­
ers lower than you set the salaries of white teachers? A. 
Because I have not always set all of them; some of them 
are forty three hundred, some four thousand, some five 
thousand and some, in one case six thousand.

Q. Negro teachers, you have a six thousand dollars? 
A. Yes.

Q. For the principal, yes, hut he is an administrator, on 
your level. Now, isn’t it true that aside from the people 
who have special responsibility, like agricultural teacher 
and coaches and the like, and principals, that you don’t 
have a Negro teacher earning more than forty five hun­
dred dollars. I will show you the form. A. I’m sure you’re 
right, but I would like to look at the form, I can’t remember 
right offhand.

(Document passed to the witness.)
The Witness: You are right.

Q. Now, I notice that you have, and I will show this to 
you again, a number of white teachers who earn far more 
than forty five hundred dollars, look at it and see if I’m 
right? A. That’s true.

Q. Isn t it true that this lady who has been teaching 
thirty one years and who doesn’t have a Bachelor’s Degree 
earns more than any Negro teacher in the system who does 
not have special responsibility, like Ag. teacher and Physi­
cal ed. teacher? A. The answer is yes.

Q. How do you explain it other than the basis of race? 
A. Pace has nothing to do with it. Mrs. Quattlebaum is a 
superior teacher, that any school would be fortunate to 
have.

James D. Walker—for Plaintiffs—Direct



139

Q. How do you justify paying- white teachers greater 
salaries, in every instance now, than you pay Negro teach­
ers? A. I am not attempting to justify anything, Mr. 
Walker; I am simply saying that’s the procedure that we 
have used, we say this is the salary we can pay, we have 
always had an adequate number of applicants for the job.

Q. Doesn’t this reflect, have something to do with teacher 
competence, the salary you give them? A. Well, yes.

The Court: Mr. Walker, let me suggest. I don’t 
know that the Court ought to draw this inference, 
but the impression the Court has so far from this 
testimony is that in general Negro teachers have 
been willing to work for less. He says he does this on 
an individual basis. He figures out about what he 
can get them for, what he is willing to pay, and they 
take it or leave it, and evidently they have been tak­
ing it, where he has been having to pay a little more 
to get the other people. That is one inference that 
can be drawn certainly.

Mr. Walker: I think another inference that we 
urge that can be drawn is that there is a scale, a 
schedule, which is as follows, that the minimum sal­
aries for white teachers is forty three hundred dol­
lars and the minimum for Negroes is four thousand 
dollars; that the maximum for Negro teachers is 
forty five hundred, unless they have special responsi­
bilities; and the maximum for white teachers is up­
ward of five thousand dollars.

The Court: Rather than call it a schedule, I sus­
pect that what this shows is a pattern of that kind 
of conduct. I don’t know that we have any evidence 
of a schedule. I believe he said they don’t have a

James D. Walker—for Plaintiffs—Direct



140

schedule. You seem to think, and I suspect you may 
be correct, that there is a pattern established; and 
if it doesn’t make any difference to you whether it 
is a schedule or pattern, let’s go on.

Q. All right, just one more thing. If you can get one 
teacher for less money than you can get another teacher, 
doesn’t it indicate to you that the teacher you can get for 
less generally is not as well prepared as a teacher that 
would cost you more? A. I would not subscribe to that 
theory; there are many times when teachers will take a 
job in order to be with their families, and many teachers 
we have employed are teachers that have taught great dis­
tances from the Pine Bluff area and rather be back home 
with their people.

Q. Well, let me get this from you again. Don’t you 
really think that a Negro teacher, the Negro teachers in 
your system aren’t as well prepared to teach pupils as the 
white teachers? A. Mr. Walker,—

Q. That is a yes or no answer. A. I would say, with the 
exception which I noted earlier, that the staff at the Alt- 
heimer formerly all white and formerly elementary high 
school there are more Master Degree teachers than there 
are at the Martin High School; I could not necessarily say 
that they are superior other than superior training; nor 
do I imply that the teachers at the Martin School are in­
ferior, based upon objective criteria.

Q. But you would say that based on education, which is 
an important factor, isn’t it, criteria, you have better white 
teachers than you do Negro teachers, as attested by the 
number of Master’s Degrees you have? A. That is right, 
yes.

Q. So that the pupils who attend the Altheimer Schools

James D. Walker—for Plaintiffs—Direct



141

have better educational opportunities than the ones who 
attend the Martin School? A. No, sir, I do not subscribe 
to that theory. As I said, training and experience are cer­
tainly good criteria to go by, but I don’t think that degrees 
and experience are the only things that you would use in 
determining whether a person was doing a good job. I think 
if they have interest in their job and work for it and pre­
pare for it, you might have a B. A. Degree, may have a 
Master’s Degree, or you may have an advanced degree; so 
I don’t subscribe simply because a teacher does not have 
a Master’s Degree that she is not doing a good job.

Q. I will ask you this, aren’t the facilities at the 
Altheimer School superior to the present facilities at the 
Martin School? A. No, sir, I would not agree with that. 
I have been Superintendent of schools, this is my sixth 
year, and I would say that of the money expended for cap­
ital outlay has been ninety per cent spent at the Martin 
School. The high school is newer, two additions which are 
newer than the one at the Altheimer School; the Altheimer 
High School was built in 1923; it had two additions since 
that time. The Martin High School has a brand new 
cafeteria, and two additional classrooms. Both schools had 
frame elementary school buildings. And that is the whole 
purpose of this building program, is to replace those sub­
standard elementary buildings on those sites where we 
can get on the job of educating boys and girls.

Q. How do you explain the fact that the North Central 
Association has denied N. C. A. rating to the Martin School 
when it has granted it to the Altheimer School; does not 
N. C. A. take into account adequacy of the facilities that 
you have? A. Mr.Walker, to get into the North Central 
Association, as we did just two years ago at the Altheimer 
High School, meant three years of work. At this same pe-

James D. Walker—for Plaintiffs—Direct



142

riod of time at the Martin School we proceeded with a 
study there, with this program going along, and they were 
brought up to a Class A school. In other words, North 
Central is very ticky on any single deficiency. In other 
words, to get in. Now, once you get in you can have a 
deficiency, of which they will advise you of one, but as 
result of this visiting committee found not sufficient defi­
ciencies in the Altheimer School to deny them their ac­
creditation. Therefore, in that same year we petitioned 
the State Chairman of the North Central Committee, who 
happens to be the Assistant Commissioner of Education 
in Arkansas, I believe that is Mr. Curtis Swink; we made 
formal application for accreditation for the Martin High 
School for North Central accreditation. It takes generally, 
schools of our size and our ability to support education 
about three to four years in order to eliminate any single 
deficiency that would keep them from giving accreditation. 
We are now in our second year of study at North Central. 
Before that we had the State Library Commission come 
down and make recommendations—

Q. Let me interrupt you! A. Yes.
Q. I  think that is set out in the interrogatories. We can 

take those up later. Now, at the beginning of the 1965-66 
school year you had a ratio of approximately one teacher 
to every thirty pupils in the Negro school, while at the 
same time you have a ratio of approximately one teacher 
to every twenty one pupils in the white school; do you 
agree with that, at the beginning of the 1965-66 school 
term? A. It might very well be. I  don’t have those figures 
before me. I’m sure you have them there and I think they 
are probably right.

Q. Now, when you take into consideration better quali­
fied teachers in terms of preparation, higher rating, lower

James D. Walker—for Plaintiffs—Direct



143

teacher pupil ratio in the white school, higher salaries for 
the white teachers, how in the world can yon say the Negro 
pupils can get equal education in the Martin School as 
they can in the Altheimer School? A. The figures you 
use there, Mr. Walker, one to twenty nine or one to twenty 
one is not of any significance, because one to thirty is not 
a bad ratio, pupil teacher ratio.

Q. Isn’t it true that the smaller classes are the more 
the teacher can do with those pupils in terms of giving 
them individual attention? A. Not necessarily, not neces­
sarily. Now, there is a limit how small you can be and how 
large you can be. There are certain things that can be 
taught to thirty children just as well as can be taught to 
fifteen or ten or five.

Q. Let me ask you something else, with your experience 
and education, now, is it not generally felt in the education 
field that a low teacher pupil ratio indicates a context in 
which teachers can do an adequate or superior job of teach­
ing, and that the lower the teacher pupil ratio, down to a 
point, of course, the better the teacher will be in being 
able to do the job? A. I  still see no significant difference 
between a ratio of one to twenty one and one to twenty 
nine, nothing of educational significance there.

Q. What if the teacher ratio was one to thirty five and 
the other school was one to twenty nine? A. Thirty five 
is the recognized limit to which a class should not go be­
yond.

Q. Isn’t it possible, isn’t it logical you can do a better 
job teaching twenty students than you a greater number of 
students? A. It depends upon what you are teaching 
would largely determine.

Q. All right, that’s good; lets look at something some 
of the teachers teach. Let’s look at algebra. Doesn’t it

James D. Walker—for Plaintiffs-—Direct



144

follow that a teacher in this difficult area, recognizes as 
difficult by pupils at least, would be able to do a better job 
if he had fewer students in that area than another teacher 
who had a larger number of students? A. You have to 
tell me what number you are speaking of, Mr. Walker.

Q. Twenty nine and twenty one. A. I still think there 
would be no significant difference in ratio twenty one and 
twenty nine.

Q. You give me a subject then where it would be a signifi­
cant difference ? A. I can’t offhand think of one that would 
make that much difference.

Q. Do any educators prescribe to your theory to the best 
of your knowledge? A. I  do not know what other educa­
tors 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.

Q. All right, then, do you have pupils from schools like 
the University of Arkansas and George Peabody College 
and Vanderbilt, Tulane come to Altheimer School at any 
time of the year to talk about those schools? A. Did we 
this year, you say?

Q. Do you occasionally have people from those schools? 
A. From George Peabody College or—

Q. Any of the colleges in the state or outside the state?

The Court: Come to talk for what purpose, col­
lege recruitment?

Q. College recruitment, that’s what I ’m talking about? 
A. We wouldn’t particular care about hearing somebody 
talking about college improvement.

Q. College recruitment? A. Oh, yes, we have college 
recruiters who come to our school, yes.

Q. And they come from places like University or Ar-

James D. Walker—for Plaintiffs—Direct



145

kansas, and such, like that? A. They come from all over 
the state.

Q. All over the state; how many college recruiters to 
your knowledge go to the Negro high school? A. To my 
knowledge, Mr. Walker, I don’t know of any, but I ’m sure 
Mr. Martin could answer that.

Q. Wouldn’t it be logical to assume that only persons 
from Negro colleges who went to Martin School searching 
for students ? A. That would be an assumption I wouldn’t 
wish to make.

Q. You would know, wouldn’t you, if a person from a 
white school in the state recruited at the Martin School, 
wouldn’t you? A. Not necessarily, no, I wouldn’t know.

Q. Isn’t it true, now, Mr. Walker, that any time white 
persons go over to that school Mr. Martin called you to 
find out whether or not it is all right with you? A. No, 
that isn’t right, Mr. Walker. Mr. Walker didn’t check with 
me. We have board policies in which we understand one 
another and he administers that in the Martin High School; 
he doesn’t check with me on every little piddling detail, 
administrative detail.

Q. But that’s not a piddling administrative detail? A. 
Yes, it is, as far as I ’m concerned.

Q. Let’s go to something else, Mr. Walker. I started off 
a while ago talking about people who have been hired under 
eighty nine ten; now, you are familiar with the spirit of 
the Act, and that is to narrow the gap, the educational gap 
and the cultural gap existing between persons defined as 
educationally deprived and culturally deprived and those 
persons who are advantaged, isn’t that right? A. That is 
the tone of it, yes.

Q. Now, presently, as I understand it, most of the pupils 
in the District who are in the category known as culturally

James D. Walker—for Plaintiffs—Direct



146

and educationally deprived are Negroes by far? A, Yes, 
they are.

Q. In fact, you stated to Mr. Ford in the State Depart­
ment of Education that a number of such pupils in the 
District is approximately seven hundred ninety seven, isn’t 
that right? A. Yes, those are the figures which the State 
Department of Education gave us. If I  may, I would like 
to fill you in on where those figures came from.

Q. That’s all right, I don’t need to get that now. I rec­
ognize that, you know, they might not be completely ac­
curate, but generally they’re not too far right, isn’t that 
right! A. I  haven’t any way of saying whether they are 
right or wrong. Those were figures provided to my office 
by Mr. Ford’s office as result of picking ten of the most 
populace counties in Arkansas with a series of things 
based upon welfare checks, social security payments and 
all that sort of thing, and Jefferson County happened to 
be one of those, and our prorata part of that happened, 
they say, was seven hundred ninety seven.

Q. How many of those people are white? A. I  would 
judge somewhere less than a hundred of them.

Q. Wouldn’t you say it is about twenty two? I call to 
your attention your 8910 proposal, which is rather blurred? 
A. I believe there are more than twenty two.

Q. May we see your better copy? A. Yes, let me get it.

(Witness goes to counsel table for documents.)

Q. Would you refresh your recollection from your notes. 
I call your attention to page 3, I think it is, of your plan 
for use of the money that you’re getting, Table E, teacher 
data No. 1, pupil-teacher data. A. Section B?

Q. Table E, the record of that number of ninety seven; 
you have ninety seven white pupils, you have ninety seven 
pupils who attend predominantly white schools to qualify

James D. Walker—for Plaintiff s—Direct



147

as being culturally deprived and educationally deprived 
pupils'? A, That’s right.

Q. And you have approximately seven hundred Negroes! 
A. That is right.

Q. Now, you’ve heard Mr. Martin testify that the library 
at the Martin School is about as adequate as the library at 
the Altheimer school, you heard that? A. Yes, I did.

Q. Now, I see by your proposal where you plan to build 
a new library on the site of the Altheimer School, wait, 
and that you’re going to build that library with Public 
Law 8910 funds; how can you justify placing that library 
in that school where you have fewer pupils to qualify to 
participate in the benefits of Public Law 8910? A. This 
part of the product is not a matter of justification. We’re 
going to improve both schools libraries under this so- 
called 8910, Title 1 fund, and also Title 2.

Q. Well, now, why is it that the Negro youngsters in this 
District always come second to the needs of the pupils 
in the white school, predominantly white school? A. I  do 
not agree with that assumption, Mr. Walker.

Q. Isn’t it reasonable to assume that if you have more 
pupils in one school who are in need of the benefits of 89-10 
than you do in another that any facilities that you would 
locate would be placed where the concentration of the 
students is? A. The facilities, we follow the purpose and 
intent of 89-10. This project was approved by the State 
Board of Education as being educational feasible.

Q. I don’t think that you can state that, can you? They 
approved it, but you cannot say they approved it as educa­
tionally feasible; you have nothing in the record to show 
that? A. I have nothing in the record, but I happen to 
know that these plans—

Q. Well, you don’t have anything any place to show that,

James D. Walker—for Plaintiffs—Direct



148

do you? A. I can show you, I can tell you how these things 
were processed.

Q. Isn’t it t:ru> to the best of your knowledge that not a 
single 89-10 program that has been submitted to the State 
Department of Education has been rejected? A. I  would­
n’t know.

Q. All right, so you don’t really know about what you 
were saying before? A. Yes, sir, I do know how this plan 
was adopted and I do know the procedure which it followed, 
that I know.

Q. Did the students at the Altheimer School need a li­
brary more so than the students at the Martin School? A. 
In my opinion, yes.

The Court: Gentlemen, is this library a part of 
the construction program which is in issue in this 
case?

Mr. Walker: Not yet, Your Honor.
The Court: What is it you propose to do by way of 

building a library at Altheimer?
Mr. Walker: Your Honor, this is not building a 

library. We are taking the frame building and reno­
vating it and taking three of the rooms and trying 
to make a construction material center for the 
site, Altheimer High School-Altheimer Elementary 
School. Eenovate this building, and—

The Court: What do you propose to do about 
library now at the Martin School ?

A. We propose to follow the guide lines—

The Court: Don’t tell me about guide lines; tell 
me what you propose to do?

James D. Walker—for Plaintiffs—Direct



149

The Witness: All right, to improve it up to a 
standard where we would receive North Central Ac­
creditation.

The Court: I believe I heard Mr. Martin say that 
you were going to tear out a wall and enlarge it and 
make it some separate shelf space and some separate 
office space?

The Witness: That’s right.
The Court: You going to get any more books?
The Witness: We hope to, yes, sir.
The Court: Mainly it takes books to make a li­

brary, you know?
The Witness: That’s right, Sir.

Q. How much money are you spending on this renova­
tion at the Martin School for a library? A. In this year’s 
project Two thousand dollars set aside for renovation, and 
next year’s project, which is a continuation of this, we 
hope to spend in the neighborhood of about ten thousand 
dollars for renovation of the science department and also 
renovating the library.

Q. Let me go back now. It has been shown that the 
Altheimer School is presently thought by the North Cen­
tral Association at least to offer superior opportunities to 
the Martin School. Now, if the intent of Public Law 89-10 
is to narrow the gap between those persons who are sub­
jected to inferior opportunities and facilities and the like, 
if that is the intent of the law, how can you justify placing 
this library over in the school which already is rated by 
some other as superior?

Mr. Friday: Your Honor,—
Mr. Walker: Let me finish.
The Court: Let him finish his question.

James D. Walker—for Plaintiffs—Direct



150

Q. Now, is not that leading toward exaggerating the gap 
rather than narrowing the gap!

Mr. Friday: I object to that line of questioning, 
Your Honor, for this reason: It relates to no ma­
terial issue in the case as I see it. If Mr. Walker 
states it so there is a legitimate issue it has escaped 
me, up to this point; and with the Court’s permission 
I will elaborate a little. Certainly the way the School 
District is administering this Public Law is not an 
issue in the case. We have two things before the 
Court. One is the plan, whether or not it meets the 
constitutional standards, and the other whether the 
construction involved be enjoined; and I am thor­
oughly reluctant to object at all, Your Honor, but it 
looks to me like in the absence of satisfactory ex­
planation we are getting too far afield. That’s the 
basis for the objection.

The Court: It seems we are getting rather far 
afield, but in the hope it may be in some way related 
to this issue or at least may have some cathartic 
effect I believe I will go ahead and let it come in 
anyway. I am not sure the question as stated is a 
fair question, but answer it as best you can. Do you 
remember what the question was ?

The Witness: I think so. I state that I do not see 
that there is any equity, they are attempting to bring 
both school’s libraries up. As an educator I want 
to see the best library money can buy, with money 
which I have to deal with.

Mr. Walker: I don’t think that is responsive.
The Court: Mr. Walker, what the Court would 

like to know in this connection, admitting that we

James D. Walker—for Plaintiffs—Direct



151

may be afield, was one of the deficiencies, so far as 
North Central accreditation is concerned, that the 
Martin School in the library?

Mr. Walker: Yes, sir, that’s right.
The Court: Now, then, what you propose to do 

there about extending and improving the library, 
elevate those library facilities to a point where there 
is a reasonable expectation that they will meet North 
Central requirements?

The Witness: That is our goal, Your Honor.
The Court: Well, is what you propose now suffi­

cient to get it up there? I realize you can’t say in 
advance whether it will pass the test or not, but I 
know they must have told you how the condition was 
and whether this would solve it or not. Is this pro­
gram going to bring up the library to the North 
Central standards?

The Witness: Yes, sir, this plus about three or 
four years of hard work behind us we hope this will 
bring it up.

The Court: What is it you are doing at Altheimer 
about a library that you’re not doing at Martin? 
You’re taking this old frame buliding and remodel­
ing it or doing something with it. Now, what is that 
you’re doing with it?

The Witness: We hope to create a little more 
floor space. The high school library is terribly small 
and cramped for space, and we’re attempting to—as 
you say, a library is made up of books, and we’ve run 
out of space in the present site, which is the second 
story of this 1923 year old building, and we are 
hoping to have more floor space in this new structure

James D. Walker—for Plaintiffs—Direct



152

and have more wall space for books and to have as 
modern up-to-date library as possible.

Q. But you don’t have a modern, up-to-date library for 
Negroes now, do you? A. We have a modern high school 
building and with these improvements we will bring it up.

Q. The library that you have at the high school, the 
one that you contemplate for both elementary pupils and 
high school pupils? A. Yes.

Q. One room for all the pupils? A. The library will 
be scheduled at different times.

Q. For different grades? A. Yes.
Q. So you don’t have elementary pupils in at the same 

time you have high school students? A. I hope not.
Q. But that’s the way it is at the Martin School, isn’t 

it? A. That’s right.
Q. As Mr. Martin has testified? A. That is right.

Mr. Walker: Your Honor, if I may respond at 
this point to Mr. Friday. I think that this issue is 
germain to this case for the reason that it shows a 
pattern, I think, we hope to show a pattern of em­
phasizing on the part of the Board and making 
available and making available greater amount of 
opportunity for persons who attend the white school. 
I  think that the history of this District shows this; 
and I think it will be admitted by the defendant. 
If not we will be prepared to put testimony on; and 
that the spirit of Public Law 89-10 and the 1964 Civil 
Rights Act is to eliminate all those historical differ­
ences through compensating the very pupils who 
have been in the group, economically and racially, 
which have received the blunt of the deprivation;

James D. Walker—for Plaintiffs—Direct



153

and I think that we have shown that this far this 
school District percentagewise per pupil spent more 
money per white pupil of its own resources than they 
do per Negro pupil; and we have further shown 
through this 89-10 money that they are determined 
to continue spending more money per white pupil 
or per pupil who attend the white school than they 
do the Negroes, and this is not in keeping nor in 
compliance with 89-10.

The Court: Mr. Walker, if we assume that is 
true, isn’t there a very simple answer to it? If 
that school over there is greatly superior—I’m not 
suggesting this is the answer—but if that school is 
greatly superior can’t a number of the Negro pupils 
who think so go over there and register?

Mr. Walker: Your Honor, then we’re back in the 
position that we find ourselves right now; and that 
is that the Court can take judicial knowledge of the 
fact that school districts in this state are reluctant 
to place white pupils in positions of having to be a 
racial minority in their school system. Now, if a 
number of Negro pupils, say fifty, make choices to 
attend the predominantly white school, all those 
choices can’t be honored without overcrowding re­
sulting; so then you give the Negro pupils an oppor­
tunity to exercise a second choice, which means then 
you’re sending them back to the Negro school, be­
cause realistically speaking the Board does not con­
template, I think, and I hope the evidence will show 
this, assigning white pupils to the Negro Schools; 
and this is why I think that the construction program 
of the district, and also the other policies of the Dis­
trict, have to be revised in such a way as to move

James D. Walker—for Plaintiffs—Direct



154

this District toward a unitary school system, be­
cause freedom of choice—in a two school system 
like this is really—

The Court: Mr. Walker, does unitary school sys­
tem mean having it all on one campus?

Mr. Walker: It means if you have no more pupils, 
if you have too few pupils to justify the retention 
of two schools you’ve got to have one school, for 
those pupils.

The Court: All right, here is where I ’m having a 
great deal of difficulty with this case so far as the 
construction is concerned. If we’re starting out in 
a district that had no buildings and no campus at 
all our problem would be one thing, but we have 
here are two separate campuses located a few blocks 
apart. These campuses and the buildings thereon 
were built largely in the days of the segregated 
school system. Even the more recent buildings 
were built under some what different plans than the 
School Board now has. Now, is it to be suggested 
that in order to operate the school district on a 
non-discriminatory basis the school district must 
abandon one or the other of these sites and build 
all the buildings in one location?

Mr. Walker: That is not our argument here,
Your Honor.

The Court: Wait a minute. Lets just talk about 
buildings. The School District, as I understand it, 
now proposes to build two of these classrooms at 
the Martin site and one at the Altheimer site, plus 
remodeling an old frame building for the library 
facility. Is it your position that all three of the 
buildings sought to be at one of the sites, or that

James D. Walker—for Plaintiffs—Direct



155

two of them ought to be over at Altheimer and one 
at Martin? Precisely what is your contention about 
these buildings? Now, confine yourself not to the 
program or the students who attend them, but the 
buildings for the moment.

Mr. Walker: All right.
The Court: And tell me what you think the Court 

ought to do and what you want the Court to do about 
the buildings.

Mr. Walker: What I think the Court ought to 
do and what I want the Court to do are one and the 
same, Your Honor. I think that the Court has two 
alternatives, one is to enjoin the placement of one, 
presumably the white school on its present site and 
have the school authorities if they are going to 
have such facilities have them place it where the 
other two buildings are going to be located.

The Court: You think all the three buildings ought 
to be built in the same place ?

Mr. Walker: That’s right. I think there are rea­
son for this. One, of course, is that they are not 
that far apart. Another alternative available to 
the Court is imposing a requirement upon the Dis­
trict that the District assign, require the District 
to assign pupils on a basis of geography, or some 
other basis, like the school at the Altheimer site so 
that would be a school for pupils in grades one and 
two and the school on the present Martin site would 
be a school for pupils who are in grades four, five 
and six, three, four, five and six. I think that this 
is the only way that you can really—

The Court: Mr. Walker, of course, it may very 
well be that if as and when freedom of choice breaks

James D. Walker—for Plaintiffs—Direct



156

down some such arrangement will have to be made, 
but so long as the Courts have approved freedom 
of choice on an annual basis, at least as a satisfactory 
position program, and I say at least that much, be­
cause I don’t know how much further the Court of 
Appeals is going. Do you think the Court would be 
warranted in abandoning that freedom of choice 
concept at this stage of the game?

Mr. Walker: Your Honor, our position as to 
freedom of choice is it is incapable in this school 
district of desegregating the school system. Now, 
I think the Eighth Circuit Court—

The Court: Even as a transitional tool?
Mr. Walker: They have had a year’s transitional 

period, Your Honor, and during that year less than 
ten Negro pupils received an equal education in that 
District. Now, I think that the guide lines—

The Court: What about—let’s go a little further. 
If freedom of choice, as a transitional tool, was sup­
plemented by somewhat stricter requirements, and 
maybe these are in the guide lines, of quality of 
facilities, we will say quality of the educational op­
portunity, then what would your position be with 
respect to the location of these buildings?

Mr. Walker: If they were equal?
The Court: Yes.
Mr. Walker: Then my position, of course, would 

be the same, that this is an educationally unsound 
method of placing schools, and that at this point the 
School Board, as all school boards in this State and 
the South, are now required to do.

The Court: Now, why, tell me, I know you have 
not had any expert on yet yourself, but why is it

James D. Walker—-for Plaintiffs—Direct



157

educationally unsound to do it this way, to place these 
buildings, two on one side the street and one on the 
other?

Mr. Walker: One, it has been shown that most of 
the pupils in this District actually don’t live in the 
town of Altheimer, they are going to have to be 
bussed in.

The Court: That’s true.
Mr. Walker: All right, now, if they are going to 

have to be bussed in I see it as being somewhat im­
practical to require a bus to come and let some stu­
dents otf at one school, and then go from that school 
on over to another and let the others off. The other 
being in terms of money, in terms of financial con­
sideration, it takes more money to operate two 
schools. This means you have got to have two ad­
ministrators, this means you cannot have the breadth 
of offering in terms of opportunity to—

The Court: Of course, you already have two 
schools.

Mr. Walker: That’s right, Your Honor.
The Court: If you had only one to start with I 

think your argument I think your argument might 
have some validity, but where you already have two 
school setups, and presumably can’t afford to aban­
don one of them completely, and I don’t think this 
District could, I think it would be too much financial 
burden. It seems to me that your argument loses 
weight.

Mr. Walker: Well, Your Honor, I think the point 
that we’re trying to make is at this stage of the 
game the Courts did not condone any act which will 
tend to perpetuate on the part of the defendant which

James D. Walker—for Plaintiffs—Direct



158

would tend to continue the status quo, if that status 
quo is constitutionally intolerable, which it has been 
found to be. I think the Courts, as you recognize, 
require school districts to disestablish segregation. 
Now, they have given them generally defined discre­
tion to do that; but I’m simply saying that at this 
stage of the game if the Altheimer District’s plans, 
or any other district’s plans, are to enter into new 
construction, new construction, I ’m not talking about 
retention of the present facilities, then they have 
to be constructed with a thought in mind of a unitary 
school system.

The Court: All right, I guess I see your point. 
I ’m not sure I understand it. Go ahead.

Q. Now, Mr. Walker, you have admitted that you really 
did not comply with what you told the State Department of 
Education you were going to do with regard to hiring 
teachers under 89-10, isn’t that true? A. I don’t follow 
you.

Q. You committed yourself to the State Department of 
Education that you-—you signed a pledge that you would 
hire people, hire staffs, to implement 89-10 on a nondis- 
criminatory basis, isn’t that true? A. Yes.

Q. And you went ahead and hired them on the same 
basis you have hired on before. A. I have hired teachers 
since January 17th, yes, sir.

Q. And you have assigned them on the basis of race? 
A. I’ve hired teachers for vacancies that occurred.

Q. I’m talking about 89-10 now. These are the remedial 
reading teachers, speech therapists and things like that? 
A. These teachers were available and they were assigned 
to Martin Elementary and high school, that’s right.

James D. Walker—for Plaintiffs—Direct



159

Q. It was on the same basis as you did before? A. It 
was not on basis of race; those people applied for jobs and 
they were assigned to a school.

Q. How many white teachers have you got in Martin full 
time? A. One elementary supervisor, it’s full time.

Q. She is not a teacher, is she? A. She is a teacher; not 
in a sense that she is teaching classes now; the supervisor 
is a teacher and usually a Master teacher who works with 
teachers and help them improve themselves.

Q. But nonetheless, you have gone ahead and placed peo­
ple on the basis of race; that is to say the two people that 
you hired to work full time in the Negro school are Negroes, 
and the ones you have hired to work in the white school 
are white? A. That’s right, yes.

Q. Now, do you plan to continue doing that? A. I  plan 
to continue to obey the law of the land.

Q. You just said that you violated the law? A. I didn’t 
say that.

Q. All right, now, are you familiar with the new guide 
lines set forth by the office of Education of the Department 
of Health Education and Welfare? A. I ’m familiar with 
them, yes.

Q. Are you familiar with form 441b? A. I am familiar 
with it, yes.

Q. Now, Mr. Friday stated today that you have executed 
form 441b, which is an assurance of compliance with Title 
6 of the 1964 Civil Rights Act, is that right? A. That is 
right.

Q. When did you send that to Washington? A. Our 
441B, the directions were first that they be sent to the 
Commissioner of Education, State of Arkansas. We re­
ceived our copy back, I believe, day before yesterday; the 
Board adopted this in their 15th of March meeting, I be-

James D. Walker—for Plaintiffs—Direct



160

lieve is right; and this was mailed shortly thereafter; the 
State Board of Education sent me my copy bach, I believe, 
yesterday or day before yesterday, with a letter of trans­
mittal to the Office of Economic Opportunity in Washing­
ton.

Q. Mr. Friday also stated that you have a plan for de­
segregation? A. That is right, we have a plan.

Q. Can I see it?

Mr. Friday: Your Honor, a copy of this was sub­
mitted in reply to interrogatory by the plaintiff.

The Court: Very well.
Mr. Walker: If I might respond to that—while it 

might have been made available, but I didn’t get a 
copy of this; you probably intended to give me one, 
but I didn’t get it.

Q. Now, has the District adopted that plan? A. It was 
adopted last spring.

Q. This plan was adopted last spring? A. That’s right; 
you want—

Q. This is the 1965 plan that you are now proceeding 
under? A. This is 1966, isn’t it; yes, it was adopted for 
the school term 1965-66, this plan right here.

Q. You do not have a plan for the operation of the school 
other than this plan for the 66-67 school term? A. As I 
understand the guide lines, the School Board read these 
guide lines, they have been explained to the Board, when 
you sign form 441b you agree to all the changes necessary 
to be in compliance.

Q. Now, my question still is you have not—

The Court: Just a minute. Do you know what 
those guide lines are that you are agreeing to ?

James D. Walker—for Plaintiffs—Direct



161

The Witness: Your Honor, I am familiar with 
them, yes, sir, and this guide line, this 441B says 
that if you have a plan previously accepted by the 
office, and ours was accepted August 9th last year, 
that if you intend to obey these guide lines you will 
sign this form, and some little statistical informa­
tion on the back, and it is forwarded to the Com­
missioner of Education of Arkansas, who forwards 
it to Washington.

The Court: As you read these guide lines does 
there appear to be much reason for disagreement 
as to what they may mean!

The Witness: I don’t believe it leaves any doubt 
what they mean, Your Honor.

Mr. Walker: Your Honor, for your information— 
first of all I  would like to introduce into the record 
Revised Statement of Policies for School Desegre­
gation Plans Under Title VI of The Civil Rights 
Act of 1964. This will be Plaintiff’s Exhibit No. 2.

The Court: Is this what is commonly referred to 
as the guide lines?

Mr. Walker: Yes, Your Honor.
(Thereupon, the document above referred to was 

marked as Plaintiff’s Exhibit No. 2, for identi­
fication.)

The Court: Let it be received.
(Thereupon, the document heretofore marked 

Plaintiff’s Exhibit No. 2, for identification, 
was received in evidence.)

Mr. Walker: These are the guide lines.
(Document passed to the Court.)

James D. Walker—for Plaintiffs—Direct



162

Q. Now, I call to your attention Subpart B of the 
guide lines, and read to you this statement: “It is the re­
sponsibility of the School system to adopt and implement 
a desegregation plan which will eliminate the dual school 
system and all other forms of discrimination as expdi- 
tiously as possible.” This is on page 2. How do you in­
terpret “eliminate the dual system”? A. Our plan is to 
use the freedom of choice in grades one through 12.

Q. Negro pupils, if Negro pupils chose again to attend 
Negro schools and white pupils chose again to attend the 
Altheimer School, with one or two Negroes going to the 
Altheimer School, do you say that that is eliminating the 
dual system? A. I will says this: that those five gentle­
men who make up the school board of education are law 
abiding citizens, I ’m School Superintendent and I think I 
am, we’re going to obey the law.

Q. I ’m not talking about what you’re going to do, Mr. 
Walker; sure you’re going to try to obey the law; but I ’m 
asking you what is your understanding of “eliminating the 
dual system”? Now, it is possible to retain the dual system 
if the Negro pupils refuse to assume your burden of de­
segregating the schools, isn’t that true? A. I ’m not sure 
I understand what you mean, they have to assume our 
burden.

Q. Well, this is lawyer talk for the most part; the 
Supreme Court has stated and the Court of Appeals of 
this District have stated and the guide lines have stated 
that it is the responsibility of the school system to assume 
the burden for desegregating the school system, rather 
than holding this upon pupils; now, they have permitted 
as an implement measure this burden which they feel as 
being light to be assumed by the pupils; but if the pupils 
refuse to assume the burden of removing segregation 
from your system what do you propose to do about it? A.

James D. Walher—for Plaintiffs—Direct



163

We have already assumed them to the extent of about one 
hundred seventy dollars worth of postage, three hunderd 
dollars worth of other material which we prepared these 
forms, which Washington prepared, in which no change 
has been made except the Superintendent of School’s name 
be signed to these letters of transmittal, with four pages 
of instructions and the freedom of choice.

Q. You didn’t understand my question. A. May be not.
Q. You have got all Negro school now and some mixed 

schools, how are you going to change the whole system into 
a mixed system if the Negroes refuse or fail for some 
reason or another to exercise choices for the predominantly 
white school? A. Mr. Walker, I think you are crossing 
bridges before you arrive there; as far as 1 know, you’re 
thinking ahead. This, freedom of choice plan goes in today 
and we have thirty days, like those guide lines require, 
and I think the integration will be taken care of.

Q. Now, how do you eliminate the dual system in case 
the Negro pupils don’t desegregate the system for you? 
A. If they don’t that’s a problem we will have to get to 
when we get there. That is not a problem right now with 
us.

Q. Let me go about it in a different, way. Assume that 
the Judge approves your construction plan and you suc­
ceed—

James D. Walker—for Plaintiffs—Direct

The Court: Rather state it, assume that the Judge 
does not disapprove it. I don’t know that this Court 
is going to ever approve the construction. I don’t 
know that its this Court business to approve con­
struction. The Court may refuse to disapprove it. 
That’s probably the most the Court will do.



164

Q. Assuming that the Court will refuse to disapprove 
your construction plan and you continue to build replace­
ment facilities on the basis of the present enrollment what 
do you do or how do you treat fifty Negro pupils who 
express choices for the predominantly white school! A. 
Mr. Walker, the guide line is very specific. No choice will 
be given any one as preference for registering early; and 
then when a number of children exceed the capacity of a 
school, then those children who reside closest to that school 
will then be given preference, as the guide lines state.

Q. Now, if overcrowding results in the Altheimer School 
as a result of a number of choices by Negro pupils to at­
tend that school, and if it results in a number of white 
pupils being placed in position of being closer or as close 
to the Negro School how do you—do you plan to assign 
these white pupils to the Negro School! A. I said earlier 
we’re going to obey the law.

Q. I don’t quite understand that. I understand you want 
to obey the law, but do you plan now to put those white 
students in the Negro school! A. We have planned to 
obey the law, and if that is what the law says at that time 
we will do it.

Q. That time is almost upon us—

The Court: Mr. Walker, let me interrupt you 
for a moment. I ’m looking at Subpart B of the guide 
lines and trying to follow along. Subpart B, Sec. 
181.13 D says: “The pattern of assignment of
teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students of 
a particular color, race or national origin, or such 
that teachers or other professional staff of a par-

James D. Walker—for Plaintiffs—Direct



165

ticular race are concentrated in those schools where 
all or a majority of the students are of that race.” 
Now, let us assume that the School District of 
Altheimer continues to accept federal money, and 
let us assume that the Office of Education does not 
recede from its standards, particularly the one I ’ve 
just read having to do with past assignments, and 
that within a fairly short number of years the Office 
in fact enforces that particular sentence which I have 
just read, what difference is it going to make whether 
these school buildings are located at Altheimer or 
Martin? They are going to be mixed so you can’t 
tell them apart, won’t they?

Mr. Walker: Well, Your Honor, it is a matter—
The Court: If that reads what it says to me in 

plain language—the witness just said there didn’t 
seem to be any room for differences about these. I 
don’t see but one possible interpretation at this 
point of that single sentence. There may be other 
things in here that limit it or qualify it, which I 
have not yet read.

Mr. Walker: If it please the Court, the guide 
lines for last year also were rather strong, stronger 
than most administrators in the south wanted to 
digest, and I think the Court can take judicial 
notice of the fact that many administrators in the 
south sought to circumvent them, and that the Office 
of Education did not really require those guide 
lines to be fully implemented. That is to say that 
the Office of Education says that unless School Dis­
tricts comply with the guide lines federal funds 
will be withheld, and only tow cases in the Office 
of Education withheld funds, and one of those is

James D. Walker—for Plaintiffs—Direct



166

a case which Your Honor heard, and in which the 
Office of Education reneged on. Of course, they 
had plausible reasons for reneging on that.

The Court: Which one is that?
Mr. Walker: That’s the Morrilton School case. 

The other one dealt with the Chicago Board of 
Education; and in both cases the Office of Educa­
tion decided this was too much for it to do and 
they vacillated. What we have here is a matter of 
the right of pupils right now to receive equal ed­
ucation on a desegregated basis, and that they not 
be required because of the construction plans or 
any other plans of the District to forego those 
rights. Now, certainly, sooner or later that will 
be met, but we’re talking about present rights in 
terms of the Supreme Court and other Court de­
cisions; and we brought this suit, I state, although 
I ’m testifying in a way, we brought this suit pri­
marily because of the fact that the Office of Educa­
tion has . refused to give us the relief that we want. 
This, of course, is something for the Judge’s con­
sideration, it comes to me, but I cannot substantiate 
that other than my statement.

The Court: Well, all right. I am greatly troubled 
by this parliamentary situation here. It occurs to 
me that perhaps I ’m being asked, may be I ’m being 
asked to administer this Aid to Education Act. I 
don’t think I can do that.

Mr. Walker: Well, you aren’t being asked to do 
that, Your Honor, we just presented the 89-10 in­
formation or testimony to show that the defendant 
district continues to place more emphasis on the 
quality of education it affords one group of pupils

James D. Walker—for Plaintiffs—Direct



167

as over against another group of pupils, and when 
you look at the point of the whole it states the 
reason why this school district should be enjoined 
from continuing its construction program. Lets 
look at that for a minute, Your Honor. If, for in­
stance, there is a need, which there if, or course, 
to place a library at the elementary school, and 
only one library can be placed at a  school, then 
this means that a group of pupils will be deprived 
from the privilege of using that facility; and one 
group of pupils cannot receive it; and I see no 
reason, no logical reason for depriving one group 
of pupils and benefitting another group of pupils 
merely because of some administrative decision to 
postpone the process of complete desegregation.

The Court: Well, assuming that’s true, do you 
think that is a problem that ought to address itself 
to this Court or to the agency that is handing out 
this money?

Mr. Walker: Your Honor, when you look at the 
guide lines you will find that the guide lines are 
strong in some respects, they are wTeak in some 
respects and they do not cover some aspects of 
school operation. They do not deal with the prob­
lem of site selection and school construction. So 
accordingly—I think really what has happened is 
that the Courts have taken the judicial, the teachings 
of the judiciary, and they have tried to put these 
teachings of the judiciary into the guide lines. I 
do not think that they have gone beyond the teach­
ings of the Fifth Circuit and the Eighth Circuit 
and the Fourth Circuit in this area. They perhaps 
are awaiting a decision from some Court wfith re-

James D. Walker—for Plaintiffs—Direct



168

gard to the matter of site selection in school con­
struction before formulating guide lines in that area.

The Court: The Court doesn’t know what they’re 
awaiting. Well, go ahead. I ’ve interrupted you too 
much.

Mr. Walker: That is all right, Your Honor, I 
appreciate it.

Q. Now, you stated in your interrogatory, Mr. Walker, 
that your teacher desegregation plans for the next year, 
however, call for the placement of a white teacher and a 
Negro teacher in the Negro school somewhat as a teaching 
team, is that correct? A. My answer to the interroga­
tory, Mr. Walker, was that the Board would present, Mr. 
Johnson would be assigned to the vocational shop, which 
you mentioned earlier, both he and Mr. Cash will teach 
classes in vocational agriculture as a team, and will be 
assigned classes in the same building.

Q. Now, as of now you have no more specific plans for 
the assignment or reassignment of teachers than that, do 
you? A. Not at this time, no, sir.

Q. So that as of this litigation you are under a lawsuit, 
which does not really—you are operating under a plan 
devised by the Office of Education which does not require 
you specifically to integrate the faculty—the guide lines 
do, and your plan is to place one white teacher in one 
Negro school? A. No, sir, I didn’t say that; I said Mr. 
Calvin Johnson is a vocational agriculture teacher pres­
ently at Martin School will be assigned to the formerly 
all wffiite school, Altheimer High School, and he will teach 
classes, both white and Negro children at this site.

Q. He is not going to have full teaching responsibility?

James D. Walker—for Plaintiffs—Direct



169

A. He will be assigned a full teaching responsibility, five 
periods a day, plus a conference period.

Q. Did you say it would be like a team teacher situa­
tion! A. They will work together, yes.

Q. So both of them will be together during all that 
period! A. Not necessarily, no, there may be a time when 
Mr. Johnson will be teaching a class during Mr. Cash’s 
conference period and it might be Mr. Cash will be teach­
ing a class during Mr. Johnson’s conference period. 
Frankly, I haven’t worked out the details exactly of the 
period in which they are going to teach, but they are both 
assigned.

Q. I see; now, have you issued new contracts to the 
teachers in the school district for the 1966-67 school year! 
A. No contracts have thus been issued.

Q. Now, if you issue contracts on the basis with the 
understanding that the teachers will be reassigned to their 
present school with the exception of the two gentlemen 
you have mentioned will you not be hiring people on the 
basis of race! A. I beg your pardon!

Q. If you issue—first, the teachers in the system have 
not been hired for next year, have they! A. No, they 
have not been hired.

Q. So that if you contract to those teachers—if you 
issue contracts to those people to teach in the school 
where they are presently teaching then this means that 
with the exception of the two teachers you mentioned 
before all of the teachers will be assigned to their present 
schools! A. I think I understand what you’re saying*.

Q. All right. A. Those teachers who are reelected by 
the Board and they have been doing the job they are sup­
posed to do in their position will probably be reappointed 
in the position in which they are teaching this year.

James D. Walker—for Plaintiffs—Direct



170

Q. So that since they were initially hired on the basis 
of race they will be rehired for the next school year on 
the basis of race, will they not? A. Mr. Walker, race 
has nothing to do with it. There are so many teaching 
stations and we need so many teachers in those jobs and 
if they are reelected by the Board they will be reassigned 
to the teaching position.

Q. Weren’t they hired initially on the basis of race? 
A. Certainly, Mr. Walker, you know very well—

Q. That is all right, I want an answer yes or not. Now, 
if you rehire them and reassign them to the present school, 
then they would be rehired or reassigned on the basis 
of race, would they not? A. No, sir, I don’t agree with 
that.

Q. What would be the basis? A. I have sixty teacher 
stations and I need to fill them with qualified teachers 
and if they are doing the job they will be reassigned to 
the job they were doing.

Q. That is reassigning on the basis of race, isn’t it.

The Court: Gentlemen, let’s not quibble about it. 
It suffices to say that if they are rehired in the same 
positions this action will tend to a degree at least 
to perpetuate some reassignment in fact on racial 
segregated basis. There doesn’t seem to be in ques­
tion about that, regardless of the motive, what the 
motive in the rehiring may have been.

Q. Now, what is the teacher turnover? A. Frankly, it’s 
not too high. We have a fairly stable situation there. 
Right offhand I couldn’t tell you the percentage, but it 
is fairly stable.

Q. Last year you had five or six people to leave the

James D. Walker—for Plaintiffs—Direct



171

system, the Negro school? A. I can’t recall at this moment. 
We had one young man who left.

Q. You don’t have to itemize them; just give me an esti­
mate? A. I couldn’t say whether it was four or five or 
three. One man left for the Ministry, and I believe that’s 
all in the high school; and in the elementary school we 
have had one or two.

Q. What about the white school? A. The principal who 
was there last year left.

Q. You say the Principal who was there last year left? 
A. At the Altheimer High School, yes, he took another 
position.

Q. Let me go back. The new man that you hired you 
pay sixty three hundred dollars, even though he had never 
been a Principal in that district before?

The Court: We’ve been over that; let’s not repeat.
Mr. Walker: All right, Your Honor.

Q. All right, then, with regard to the teacher turnover, 
isn’t it true hat you could effectuate segregation of the 
faculty, partially anyway, by the racial assignment of 
teachers coming into the district for the first time? A. I 
beg your pardon.

Q. If you wanted to integrate the faculty couldn’t you 
do so by assigning the Negro teachers coming into the 
white school and the white teachers coming into the system 
into the Negro school? A. I couldn’t create vacancies to 
accommodate—

Q. If you do have some turnover you could do it that 
way? A. I suppose you could, yes, if there are any vacan­

James D. Walker—for Plaintiffs—Direct

cies.



172

Mr. Walker: I don’t know whether the Court 
wants us to go into this area, but what I want to do, 
Your Honor, get into the record really the plans 
of the District, because by our coming into Court 
we might be closing our hand. I just want to have 
this in the record.

Q. Assuming that the Office of Education does not re­
quire you to follow these guide lines because of the fact 
you have come into Court do you have a plan for teacher 
desegregation?

The Court: Mr. Walker, where in the guide lines 
does it say that if they come into Court they don’t 
have to follow the guide lines?

Mr. Walker: Just a moment, let me get my guide 
lines.

The Court: Is there any way the Court could say 
and get away with it that if they elect to be gov­
erned by these guide lines no resort should be made 
to the Courts?

Mr. Walker: I don’t think so, Your Honor. I don’t 
think that. I think that the Eight Circuit opinion 
which dealt with the H. E. W. guide lines set out 
that generally the Office of Education was prepared 
and equipped to administer, you know, the problems 
—well, the ’64 Civil Eights Act.

The Court: There was some language like that, 
and, of course, I couldn’t tell whether the Court could 
have decided that on the basis of judicial notice. It 
certainly wasn’t reviewing anything the District 
Court had said, because in that record as I recall

James D. Walker—for Plaintiffs—Direct



173

there were no Health, Education and Welfare guide 
lines in the evidence.

Mr. Walker: That’s right. Nevertheless, it did not 
say that resort to one would preclude resort to the 
other. Now, I call your attention, Your Honor, to 
page 1 of the guide lines, sub a, b and c.

The Court: 181.6, a b and cf
Mr. Walker: That’s right, 181.6.
The Court: What this says is that, I think, if the 

system is under a Court desegregation order the 
school district, school system may not submit another 
copy if the Court is accepted by the Commissioner, 
and if the Court order meets current judicial stan­
dards.

Mr. Walker: I  call your attention to Number C, 
Your Honor, which sets out that if a Court order 
does not meet current judicial standards, then resort 
is back to that Court or to a higher court or to the 
Department of Justice or individual action. I think 
what this means, and the interpretation I have re­
ceived from the Office of Education is that they are 
going to take a hands-off attitude about situations 
in which there is an outstanding Court order, and 
it needs to be revised because it is out-of-date or 
anything, and the Department of Justice would be 
encouraged then—

The Court: All right, up to a point I suppose the 
Department will recognize Court orders if it hap­
pens to agree with them. If it doesn’t it will either 
appeal or initiate some other action. In the mean­
while I don’t know whether it will pay over the 
money or not. I don’t think we’re faced with that 
problem immediately, however.

James D. Walker—for Plaintiffs—Direct



174

Q. All right, for the record, let me find out the plan for 
assignment of teachers for these two new facilities you 
plan to build! A. What is your question!

Q. What are your plans for assignment of teachers for 
these two new facilities you are building! A. I plan to 
assign the teachers who are presently employed in the 
district in those positions if they choose to come hack.

Q. Do you have any reason to anticipate greater num­
bers of Negro pupils to the predominantly white school! 
A. I would anticipate that the law is very specific in the 
choice to come there.

Q. Do you anticipate—you know something about your 
pupils and you can make some prediction about where they 
want to go to school; do you anticipate any substantial 
increase in the number of Negro pupils exercising a choice 
to go to the predominantly white school! A. I would pre­
dict there will be several Negro children who will elect to 
go to the formerly all white school.

Q. You think the number would he very small! A. I 
wouldn’t have any guess what the number would be. I ’m 
no judge; I know this, that in vocational agriculture there 
are over a hundred students who participate, so I know 
there will be at least a hundred who will be in the Altheimer 
High School.

Q. You said you plan to have these two, this Negro and 
white teaching team in the white school! A. That’s right.

Q. Do you plan to assign all the pupils who take voca­
tional agriculture to the white school! A. I  plan to as­
sign all students who take vocational agriculture to go to 
the vocational shop, which is situated half way between 
Martin and Altheimer High School.
' Q. Is it presently situated there! A. Yes, it is, half 

way between.

James D. Walker—for Plaintiffs—Direct



175

Q. Halfway between? A. When I say halfway, Mr. 
Walker, I'm saying approximately; now, I  haven’t gone 
over and stepped it off, but it is essentially halfway between 
the two present sites.

Q. Now, you have stated before—let me stay on this a 
minute. Unless you assign a number of Negro teachers to 
the predominantly white school then that school is still 
going to be identified as a white school? A. If there are 
no vacancies—I cannot manufacture jobs.

Q. I know, but you can reassign teachers, can’t you? A. 
A superintendent of schools generally has authority to re­
assign teachers; but I do not reassign teachers just to be 
reassigning them.

Q. Do you plan to reassign them to change the character 
as it presently is looked upon, the Martin Elementary 
School and the Altheimer Elementary School? A. I plan 
to reassign those teachers who are teaching presently in 
teaching situations which they are now teaching in if they 
wish to come back to school next year to teach.

Q. You plan to continue next year the present pattern 
of assignments for the elementary grades, the teaching 
assignments? A. I can’t tell you how many teachers are 
going to resign.

Q. Assume none resign you plan to keep them all where 
they are? A. As of right now I told you what reassign­
ments would be made, and right now that is the most I 
can tell you, that’s as far.

Q. Do you view the composition of the teaching staff 
as being important, the racial composition of the teaching 
staff as being important in determining whether that school 
is a Negro school or white school? A. I don’t understand 
you.

James D. Walker—for Plaintiffs—Direct



176

Q. Isn’t it true that if all the teachers in a school are 
white that the community identifies that school as a white 
school? A. I would presume that the people in our com­
munity are not totally ignorant; if they see a Negro they 
recognize a Negro; if they see a white man they recognize 
a white man.

Q. Will you answer my question yes or no? A. Well, I  
thought I did.

Q. Isn’t it—

The Court: Just a minute. If you had white 
teachers in the Negro school what kind of school 
would you have? I guess that’s what he wants to 
know. Or if you had all Negro teachers in a white 
school what would you have?

The Witness: We have schools, Your Honor, 
and—

The Court: They would just be schools?
The Witness: Yes, sir, just schools.
Mr. Walker: I really don’t think that was my 

question.
The Court: If that wasn’t it, then what was it?

Q. .My question was if you have all Negro teachers in 
a particular school, then in terms of what the community 
thinks about that school is it considered a Negro school or 
a white school? A. Mr. Walker a school is a school.

The Court: Well, now, wait a minute. You have 
to make a further assumption is, what kind of pupils 
are in it?

Mr. Walker: It doesn’t matter, Your Honor. Our 
position is, and I think the position of the guide

James D. Walker—for Plaintiffs—Direct



177

lines and the relevant Court orders, that if the com­
position of the teaching staff is all of one race in 
a context where you have Negro and white teachers 
and pupils, then that school is a Negro or a white 
school, dependent upon, you know, the kind of 
teachers.

The Court: That is a chicken and egg proposition, 
I don’t know which comes first. I think it may be 
rather pointless for us to argue about it. I suppose 
historically you have had and perhaps still have cer­
tainly predominantly Negro faculties where you have 
had Negro student bodies and vice versa; and I as­
sume the communities would continue on the basis 
of history to recognize that pattern. I don’t think 
there’s any question about it.

Q. All right, now, isn’t it true that the community of 
Altheimer presently, the people in the community of Alt- 
heimer know that Mr. Fred Martin is a Negro? A.If they 
had occasion to know anything about the school they would 
recognize Mr. Martin as a Negro gentleman.

Q. Now, isn’t it also true that when you name a school 
for a Negro man, any place that you know, that that school 
is identified by the community as a Negro school?

The Witness: Your Honor, may I answer that 
question in some detail?

The Court: Gentlemen, it is getting along late 
in the afternoon and the Court’s patience grows thin, 
I must confess, after four o’clock. Mr. Walker, are 
you really interested in an answer to this question?

Mr. Walker: Your Honor, I ’m trying to establish 
—they say they have no plan for disestablishing the 
existing structure of separate of Negroes and white.

James D. Walker—for Plaintiffs—Direct



178

The Court: All right. Mr. Walker, I take it that 
for the last several minutes at least you have been 
going more into the area of compliance with the 
guide lines, plans for future desegregation, plans 
on the theory that you may come out of this law­
suit with some kind of desegregation order which 
would limit you or limit your clients to some extent 
from dealing with the Office of Education under 
these guide lines.

Mr. Walker: That’s right.
The Court: I doubt very much that that’s going 

to happen. I don’t want to foreclose you, hut I would 
urge you not to go, not to spend too much time on 
that phase of the case. I really don’t believe we will 
get to it.

Mr. Walker: All right, Sir, I  again call your at­
tention to another situation in which the Court par­
ticipated, that is the Dollarway case, and I think 
that you will find that the Dollarway Board has 
been able to evade the guide lines by the order 
entered by you in 1956, or 1957, if I ’m not mistaken. 
That order, as the Court recognizes, falls far short 
of the present guide lines in most respects; and, of 
course, this has not—

The Court: Well, I don’t undertake to recall what 
was in Dollarway completely. I don’t believe that 
there was ever more than a temporary consent to 
proceed a year at the time in Dollarway anyway. I 
don’t think this Court ever approved any plan for 
Dollarway.

Mr. Walker: But merely because of the fact it 
was under some kind of Court directive the Office

James D. Walker—for Plaintiffs—Direct



179

of Education last year—this is my statement again— 
and Mr. Friday will agree with me, I ’m sure—took 
a hands-off position, and I don’t want to put these 
people in that position again this year.

The Court: Well, Gentlemen, all I can say to you 
is that I ’ll try to stay within the issues framed in 
the pleadings, and will go no further.

I believe we better take a few minutes recess, and 
let’s see if we can’t move the case along a little 
faster after the recess.

Mr. Walker: All right.
(Short recess.)
The Court: You may return to the stand, Mr. 

Walker. You may continue, Mr. Walker.

Q. Now, Mr. Walker, I ’m going to walk over to the 
blackboard, and I have here a circle, which contains some­
thing that resembles a square. I have a line running through 
the square. I would like for you to imagine this is high­
way 88. On one side of the high school is another small 
square, which we will call the white elementary school. 
On the other side of the highway we have a rectangle we 
will call the Negro elementary school. Now, is it true that 
the Martin School and the Altheimer Elementary School 
are situated somewhat like that, presently in Altheimer? 
A. Approximately six city blocks apart.

Q. Now, only about two hundred pupils reside within 
this square, which is the City of Altheimer, is that right? 
A. It’s hard for me to tell you how many were beginning, 
the census this month, April 1st, it’s hard for me to tell 
you, but two hundred might be a good guess, I couldn’t say 
just exactly how many live in the City of Altheimer.

James D. Walker—for Plaintiffs—Direct



180

Q. Most of the pupils come from the outlying areas, don’t 
they? A. That is right, yes.

Q. Now, your present plan to replace these two schools 
are based upon your presumption that Negro pupils will 
for the main part choose to attend the Negro schools and 
white pupils will attend the predominantly white school, 
is that right? A. No, sir, that is not right.

Q. All right, now, do you think it is sound educational 
practice, taking into consideration the fact that all of your 
pupils or most of your pupils, come from the outlying- 
areas, to have two small elementary schools? A. Mr. 
Walker, I think I said earlier in testimony that educators 
do not all agree on what is the ideal, but I have it on au­
thority from some competent educators that the optimal 
size elementary school ought not to exceed eighteen teach­
ing stations of a ration of one to thirty. I realize, of 
course, there are some elementary schools larger and there 
are some smaller.

Q. Now, generally isn’t this the situation where you have 
more or less urbanized schools with the neighborhood school 
concept being the reason for having two schools in a com­
munity the size of Altheimer, two enrollments for the 
elementary grades? A. Mr. Walker, I didn’t understand 
your question. Will you say that again, please, sir?

Q. Where you have a situation where you have two 
schools, elementary schools, generally those schools are set 
up on a geographic contingency on a neighborhood school 
basis? A. That might be true in your urban areas, but 
in rural areas are reorganized and they transport large 
numbers of children, and the schools have been there for 
a good long time; and we are talking about something the 
schools are there and not just replacing some, but adding to 
to take care of the added load.

James D. Walker—for Plaintiffs—Direct



181

Q. If all these pupils were white would your construction 
plan be any different? A. All the pupils are not white.

The Court: No, if they were would there be any 
difference ?

The Witness: I still say, Your Honor, that an 
elementary school exceeding eighteen teaching sta­
tions would be too large.

Q. All right, now, let me ask you this: If all the pupils 
were white would it not be more feasible from an educa­
tional point of view to have the two schools which you 
are now planning to construct or are now in process of 
construction of approximately equal size? A. Presently 
and in the past the largest enrollment of children have 
been at the Martin site.

Q. Forget about Negro and white, if all the pupils in 
the district, assuming you’re going to have two schools for 
the district, and all the pupils, in the district are white, 
wouldn’t it be reasonable and logical to plan those schools 
to be of almost equal size, approximately equal size to 
accommodate, you know, almost the same kind of enroll­
ment; say if you have six hundred and fifty pupils in the 
district to have schools planned to accommodate three 
hundred and twenty five pupils in each school, give or take 
a few? A. I ’m not sure that I follow you and I’m not 
sure that I  agree with that philosophy.

Q. If most of the students are going to be bussed in and 
you want to provide them the same kind of educational 
opportunities, equal educational opportunities, if you are 
going to have two schools, would not you try to have 
those schools constructed pretty much the same size? A. 
When you decide on the size of a school you don’t just

James D. Walker—for Plaintiffs—Direct



182

consider that particular classroom; you consider the sup­
porting agencies which are presently available at the 
school site.

Q. Well, I ’m assuming now that there are equal support­
ing facilities at both places? That is true, isn’t it? A. 
There is a cafeteria at both schools; there is a gymnasium 
which serves as an auditorium at that school.

Q. So you have equal supporting facilities at both schools, 
what would be the reason, assuming all the pupils are 
white, for having a larger school in one site and a smaller 
in another? A. Traditionally there have been more stu­
dents in Martin Elementary School than have been in the 
other school.

Q. All right, so you are planning to continue the tradi­
tion? A. We are planning to build classrooms for boys 
and girls who attend the schools in the Altheimer School 
District.

Q. All right, now, isn’t it logical that from your expe­
rience as a Superintendent of Schools and your conversa­
tions with other school superintendents to assume that over 
the long run it will be Negro pupils choosing to go to white 
schools rather than the other way round? A. It is logical 
that that would be the case, yes.

Q. All right, now, how will your construction plan where­
by you plan to have a smaller school at the Altheimer site 
facilitate the movement by Negroes from the Martin School 
situation into the Altheimer Elementary School situation? 
A. I think the new guide lines will do the facilitating that 
needs to be done.

Q. The guide lines can’t do it? A. I read them and un­
derstand them that way.

Q. Let’s forget about the guide lines, Mr. Walker, for a 
minute, because of the fact what we are dealing with now

James D. Walker—for Plaintiffs—Direct



183

may or may not involve those guide lines. Now, if there 
were no guide lines how would, under the freedom of choice 
plan, your construction program facilitate desegregation 
of the elementary grades? A. We still have a freedom of 
choice, and the parents could make that decision.

Q. Now, coming back to the thing again, because I want 
to get it clear in my own mind, perhaps for the Court as 
well, primarily for the Court, if you have approximately 
two hundred and eleven white pupils in the district and 
you are planning an eight-classroom replacement facility 
for the white school, you have constructed facilities for not 
very many more than two hundred and eleven pupils, so 
assuming that you have freedom of choice, and assuming 
further that it will be primarily Negro students who make 
the choice to go to the white school, are not you creating 
a situation where you are going to have overcrowding? 
A. I am not deliberately trying to create overcrowding. 
There again these rules and regulations we agreed to abide 
by take care of that.

Q. Well, Mr. Walker, wouldn’t it be better for the dis­
trict to say that, well, we’re going to have to recognize that 
we’re going to have Negro pupils going in greater numbers 
to the white school and so as to avoid overcrowding at this 
stage of the game when you have the opportunity to do 
this, we’re going to build this school of an equal size as 
the Martin School and then we have our problem met? 
A. Your question again?

Q. Wouldn’t that be the better thing to do? A. I don’t 
think so, no, sir.

Q. You had rather confront a situation where you prob­
ably will have overcrowding than to plan to prevent over­
crowding? A. As an educator I don’t wish to have over­
crowding any where in any school in my system.

James D. Walker—for Plaintiffs—Direct



184

Q. The question is, Mr. Walker, you can now plan to 
prevent overcrowding? Now, am I right? A. I don’t agree 
with yon, no, sir.

Q. Let me start at this a different way. You are going 
to construct twenty-four classrooms? A. Bight.

Q. You really need more than that, don’t you? A. I 
think not at this time.

Q. Well, it has been testified that you need at least 
seventeen at the Negro school and at least eight at the 
white school, that’s twenty five right there, and you have 
already stated in your answer to the interrogatory that 
you’ve got about five overcrowded classrooms in the ele­
mentary grades at the Martin school, and two in the white 
school? A. You understand, Mr. Walker, that we are re­
serving three of the more recent rooms and relocating 
them on the campus to take care of these special programs 
of remedial reading.

Q. What I ’m simply saying is right now you have need 
for more than twenty five classrooms? A. Yes, but we’re 
planning to retain three rooms which we plan to keep.

Q. All right, now, let me ask you this, I ’m having dif­
ficulty with this. Isn’t it true that right now the Altheimer 
School is overcrowded? A. It is true that both schools 
are overcrowded. That’s the reason why we are building 
these facilities.

Q. All right, now, isn’t it true that when the overcrowd­
ing occurred that the pupils in those schools are not given 
a second choice? A. It is true under the law that in a 
case of overcrowding those children who live the closest 
to the school will be given their preference.

Q. My point is this last year you had overcrowding at 
the Martin School in a great part, isn’t that right? Now, 
did you give those pupils in the Martin School a second

James D. Walker—for Plaintiffs—Direct



185

choice? A. They were given a choice in the month of 
May last year to make—their parents were, to make their 
freedom of choice—

The Court: Well, Mr. Walker, isn’t it true that 
there isn’t any second choice for anybody. I thought 
you were undertaking to make that point much 
earlier in the case, and made it very well. There 
are only two schools. You get a choice. Now, your 
second choice is either that of going to the school 
you did not choose originally or not going at all.

Q. Pupils who prefer schools that happen to be over­
crowded would be given an opportunity to get out of that 
crowded situation into another situation of their choosing. 
Now, we have a situation, I think, in this District where 
pupils in those overcrowded situations, and I think that 
the Martin School was more overcrowded this last year 
than the Altheimer School; isn’t that right? A. Your 
thinking is incorrect.

Q. I  think your interrogatory set that out. I ’ll call that 
to your attention.

Mr. Walker: I ’m simply pointing out, Your Honor, 
that the construction plans in the District are such 
that really freedom of choice cannot be used, be­
cause if a pupil is going* to be given a choice of 

schools—let me put it this way: A white pupil is 
going to be given his choice in a school as a matter 
of course; the Negro pupil is the only one that 
would be subjected to the overcrowding criteria. 
This is—

The Court: I  don’t understand that at all. As

James D. Walker—for Plaintiffs—Direct



186

I understand it, if there are more students choosing 
to go to a particular school than there are seats in 
the school, we will say, those who live the closest get 
to go to the school, and the others have to go some­
where else. N ow t , if there isn’t any place to go the 
School Board can do one of two things with them, 
either leave them where they chose to go, crowded 
or not, or let them withdraw from school and not 
go any place. There isn’t anything else to do, is 
there ?

Mr. Walker: The second isn’t an alternative under 
the law of the State, Your Honor, I think we have a 
compulsory attendance—

The Court: Well, as a practical matter they just 
get to go where they choose to go, don’t they?

Mr. Walker: I would hope that the Court would 
so order. I don’t think that—

The Court: Wait. So long as you have over­
crowding at both schools. If both of them are filled 
to overflowing and there is no seat any place, can’t 
you put extra chairs in one school just as easy as 
you can another?

Mr. Walker: My point, Your Honor, is that ex­
perience has taught that it is going to be only 
Negro pupils wanting to go to white schools. If you 
create a situation where you already have a crowded 
school before you move, then this not only disturbs—

The Court: What you are saying is that for some 
people there might not be any choice at all.

Mr. Walker : And I—
The Court: Well, of course, if that happens I 

should think there could be some remedy for it.

James D. Walker—for Plaintiffs—Direct



187

It hasn’t happened yet, has it, Mr. Walker?
The Witness: No, sir.
Mr. Walker: What is that?
The Court: I was asking this witness if it had 

happened yet at Altheimer. That is did you refuse 
last year to let any pupil go to the school of his 
choice?

The Witness: No, sir.
Mr. Walker: Your Honor, there were only six 

pupils, Negro pupils who—

Q. One final thing, Mr. Walker. I asked you this once 
before, but I  didn’t get a satisfactory answer. How do 
you justify building a school, one school for two hundred 
and twenty pupils and another for four hundred and forty 
if you do not plan to continue your present policy of re­
taining a dual structure of separate schools for white and 
Negro? A. I will answer that question again, Mr. Walker, 
by saying we’re building classrooms for students, and what 
the composition or makeup of those students will be is 
a matter of conjecture at this time. It is my opinion and 
opinion of the Board that this is the thing we should do 
and that is the reasqn we are following this plan.

Q. Have you considered any alternative plan? For de­
segregation? A. We have considered the freedom of choice 
plan and have adopted it.

Q. Have you considered any alternative plan? A. No, 
sir, we have not.

Q. Has the Board considered employing experts or other 
consultants to help them get over the problem of mixing 
the schools? A. The Board has counsel who advises us 
on these problems, yes.

James D. Walker—for Plaintiffs—Direct



188

Q. I ’m talking about educators now. Lawyers are not 
equipped really to do anything more than protect people’s 
rights? A. The Board did not employ anyone other than 
the head of the school and teachers and counsel for the 
purpose of advising us. We followed the guide lines sent 
down to us.

Q. All right, now, forget about the guide lines for a 
minute. A. I wish we could, Mr. Walker.

Q. In a way I wish you could too. Now, do you see it 
as your positive responsibility to move the school district 
toward complete pupil desegregation, eliminating all traces 
of past segregation, including the disparity between teacher 
salaries? A. I  say it is my responsibility, Mr. Walker, 
to obey the law and the policy of the Board of Education.

Q. Do you think that what you are doing right now in 
terms of teacher salaries and other several things that have 
been pointed out here to encourage the retention of the 
status quo that this is obedience to the law? A. As I  see 
it, Mr. Walker, I am attempting to obey the law.

Q. Now, you heard Mr. Martin testify that you told him 
at the beginning of the year that you knew that there 
was disparity, but that you were going to have it eliminated 
at the beginning of this school year; you heard him say 
that, didn’t you? A. Yes, sir.

Q. Now, you say there is no disparity? A. I ’m saying, 
Mr. Walker, there is no disparity based upon the race; 
and that was your question in the interrogatory.

Mr. Walker: I think we have covered that, Your 
Honor; if you think I should pursue it further I  will 
ask a couple more question, but I don’t want to— 

The Court: I  don’t think so. The Court wants to 
ask one or two when you get through.

James D. Walker—-for Plaintiffs—Direct



189

Mr. Walker: I have finished.
The Court: Mr. Walker, in so far as you know, 

and I realize that—and if you don’t know, if the 
Board hasn’t cited you certain limits, say so; but 
does your school administration presently have any 
plans under way to adopt a salary scale for teachers 
based on paper qualifications, that is degrees, years 
of experience, and so on!

The Witness: Your Honor, we are studying the 
policy, not only basing it upon paper, but—-yes, we 
do, we have discussed this.

The Court: When do you think you might put 
that into effect?

The Witness: During this coming school term, 
Your Honor.

The Court: During this coming school term?
The Witness: Yes, sir.
The Court: Now, fully realizing, as I think all of us 

realize, that there are great differences in individual 
teachers, that is a given teacher with no degree 
might in fact be a better instruction than one with a 
degree, nevertheless, the Court knows from experi­
ence in other of these cases at least a good many, 
I wont say most, because I don’t know about most, 
but a good many school districts have tried to pro­
vide equal pay for equal work and equal qualifica­
tions; and I was wondering whether you had any 
plans to improve your procedure along those lines 
rather than doing as I  suspect you’ve done somewhat 
in the past of bargaining; that is paying in effect 
the least you could pay and get by; and I say, as I 
understand, you do have some plans for making 
such adjustments in the next school year?

James D. Walker—for Plaintiffs—Direct



190

The Witness: That’s right.
The Court: Have you sent out your contracts yet 

for the next year!
The Witness: No, sir, we have not sent out con­

tracts; they are due to go out in April.
The Court: In April, this next month!
The Witness: That’s right.
The Court: If you know, can yon tell the Court 

whether it is anticipated that those new contracts 
will call for general increases in pay scale for 
teachers in the Martin School?

The Witness: They do, in the preliminary budget 
they are.

The Court: Sir.
The Witness: I  prepare for the Board a pre­

liminary budget, which is based upon a lot of ifs. 
If the State minimum foundation program pays off 
at a certain percent, if our millage is a certain mill- 
age, which we have every reason to believe it will 
be, and if Title 1 funds are renewed for the follow­
ing school term—

The Court: I understand budgets; you are pre­
paring a budget and are preparing to more nearly 
equalize or equalize these pay scales between the 
two schools?

The Witness: Absolutely, Sir.
The Court: Now, there seems to be running 

through this lawsuit a thread of discontent, and I 
can understand why there would be, about the rela­
tive amounts of 89-10 money, whatever that is, on 
these two schools. Part of it hinges around the re­
modeling of the frame building at the Altheimer

James D. Walker—for Plaintiffs—Direct



191

School for use as a library facility or reading room, 
something of that sort. How much money approxi­
mately does the School District expect to spend on 
that building?

The Witness: Sir, ten thousand dollars.
The Court: Ten thousand dollars!
The Witness: Yes, sir.
The Court: Now, how much money at the same 

time are you spending on the library facilities, li­
brary expansion at the Martin School?

The Witness: The total figures for actual expan­
sion—the money in one project, Sir, is two thousand 
dollars for that, but we are anticipating using Title 
I funds for the next fiscal year to help pay for addi­
tional equipment, whatever is necessary to bring 
that library up to North Central standards, what­
ever it take to do that. We ha we worked on that 
for four or five years.

The Court: What else is deficient as far as North 
Central accreditation is concerned at the Martin 
School; what else do you need to bring up over 
there?

The Witness:: We need to bring up to standard, 
which we hope to do, renovation of the science room 
where biological science can be taught more effec­
tively, which we expect to do.

The Court: When do you propose to do that ?
The Witness: This summer. Sir.
The Court: And have it ready for school next 

fall?
The Witness: It is our hope to.
The Court: Is that a Title I project?

James D. Walker—for Plaintiffs—Direct



192

The Witness: Yes, sir.
The Court: And about how much is that costing?
The Witness: Judge, that will be around twelve 

thousand dollars.
The Court: Are you making any similar improve­

ment or revision at the Altheimer School?
The Witness: No, sir.
The Court: Can you make a rough comparison of 

the amounts of 89-10 money spent on these two 
schools ?

The Witness: I can roughly, yes, sir.
The Court: Would you please do so?
The Witness: We received a total of ninety six 

thousand and eight dollars; we qualified for one 
hundred twenty one thousand; because of this thirty 
percent limitation the first year it was cut down to 
ninety six thousand and eight dollars. Roughly 
we put in the budget twenty five thousand dollars 
for instructional personnel; and Sir, of all of that, 
all except two have gone to the Martin School. We 
put an additional twenty five thousand dollars in 
this budget for the purpose of feeding these young­
sters whose families could not afford to; and, Sir, 
ninety eight percent of that money has come through 
the Martin School, and I have paid the District 
two warrants paid to the Altheimer cafeteria, which 
I think amounted to about three hundred dollars 
for the first month and a half, and the Martin High 
School got close to nearly five thousand dollars. 
Now, I have not been billed for the month of March 
yet; but most of the money for feeding the children 
has gone to Martin School. In this Title 2 of the 
same Act the money is divided by requirement of

James D. Walker—for Plaintiffs—Direct



193

so much, per person, every child whose enumerated 
in the Martin Elementary School they get so much 
a child, on a numerical basis, so that everyone will 
get their pro-rata share, and the Martin School will 
get probably two-thirds of that money. Some of 
the other items, the inservice training, part of it, 
and the materials—lets go back, visual aid, we put 
in the budget approximately ten thousand dollars; 
and I would say, Your Honor, close to seven thou­
sand dollars of that money, and I will say not only 
visual aid, but equipment for the cafeteria has been 
spent at the Martin School. We had to buy new 
dishes and a new oven to accommodate this large 
number of children; and we put in this budget this 
ten thousand dollars for this library expansion. 
There is also in the budget six thousand dollars for 
dental and medical aid for those children that need 
it. Our counsellor, home visitor, is going out to 
these places and finding out why the children are 
not there, and when he comes back and gives a re­
port to my office we will then make arrangements to 
buy shoes or whatever is necessary. To date nothing 
has been bought ; there have been only two families 
reported to my office; one child reported he needed 
glasses; we arranged for an appointment with an 
eye, ear, nose specialist in Pine Bluff and the boy 
didn’t show up in school that day; so, Your Honor, 
I just—I could justifiably say that eighty percent 
of this Title I funds have been allocated to the 
benefit of the Martin School. If evidence is pre­
sented there is where the largest percentage of our 
boys and girls from so-called poverty homes with

James D. Walker—for Plaintiffs—Direct



194

income of two thousand or less, according to records 
which have been given me.

The Court: Mr. Walker, are you able to predict 
at this time how long the Altheimer School District 
may operate under a so-called freedom of choice 
plan?

The Witness: Your Honor, I  have no idea how 
long it will operate under the freedom of choice 
plan; it is a year to year basis.

The Court: If your pupils choose to go to school 
next year about as they did this year will your 
Board be able to honor all requests?

The Witness: For the 66—
The Court: For the 66-67 year, if during that year 

the same pattern as was followed last year is followed 
again, but with some increase in requests to go to 
the Atlheimer School will you be able to honor all 
the requests with a moderate increase?

The Witness: Yes, sir, I would agree.
The Court: Now, when, if the Court does not 

stop you from building these buildings, when will 
you have them finished?

The Witness: We have a contract, Sir, that they 
will be completed by August 15th.

The Court: They will be ready for the next school 
year?

The Witness: Yes, sir.
The Court: How many more people have—how 

many more people than you had this year can you 
take care of at the Altheimer School if you get the 
new building?

The Witness: With the boys coming to the shop 
there will probably be over a hundred there.

James D. Walker—for Plaintiffs—Direct



195

The Court: I ’m talking about ordinary classroom 
attendance, how many more people can you take 
care of at the Atlheimer School when the new build­
ing is finished, classroom space? I ’m not talking 
about folks that go from one place to another, but 
those that stay regualarly at that school, how many 
more can you take care of there than you could in 
the old facilities?

The Witness: At least two classrooms more, Sir.
The Court: At least two classrooms more, well, 

what would that be, sixty or seventy people ?
The Witness: Approximately, yes, sir.
The Court: If we assume, I believe you said 

thirty five is a practical top on efficient instructions?
The Witness: Yes, sir.
The Court: Twenty eight or thirty is better, 

twenty-eight or twenty-nine or thirty?
The Witness: Yes, sir.
The Court: So you could then take next year 

approximately sixty or sixty five people more than 
you had this year at the Atlheimer School?

The Witness: Yes, sir.
The Court: Looking beyond that date to the 

day when you might have requests for two or three 
hundred or four hundred new pupils in attendance 
at the Altheimer School has the Board made any 
plans for such an eventuality?

The Witness: No plans have been made, Your 
Honor; these gentlemen have always met these 
problems when they arose and faced them, and pre­
sented the problem to the public. In the last six 
years, Your Honor, we have raised our millage in

James D. Walker—for Plaintiffs—Direct



196

our District twelve mills; and so, as these problems 
arise our Board has the guts to say so, Sir, and to 
face up to it and face up to it and present it to the 
population and they have approved it overwhelm­
ingly all three times.

The Court: Can you tell me whether these new 
buildings being built, and regardless of which side 
of the road they are on, are so unique in structure 
that they cannot be wholly integrated on either 
side of the road, if necessary? If you need to send 
one hundred and twenty Negro pupils and a hundred 
and twenty white pupils to any one of those three 
new buildings on either side of the road is there any 
reason why you can’t do it so far as the building is 
concerned, its location is concerned?

The Witness: The buildings themselves are mod­
ern structures, or will be when they are completed.

The Court: If this Court or the Office of Educa­
tion under its guide lines should say to the Board 
you must fully integrate grades one, two, three and 
four, is there any reason why you couldn’t use the 
buildings, these new buildings on either side or 
both sides of that road if necessary to house those 
integrated classes?

The Witness: The buildings will he there, yes, sir. 
There would he no difference in the buildings.

The Court: That’s what I want to know?
The Witness: No, sir, there’s no difference.
The Court: Is there anything there that says 

“white only” or “Negroes only”?
The Witness: No, sir.
The Court: Any difference in the desks?

James D. Walker—for Plaintiffs—Direct



197

The Witness: No, sir.
The Court: The water fountains?
The Witness: No, sir.
The Court: Or anything else? Nowr, if you don’t 

build the schools at this particular place and the 
Court decides you ought to build them some where 
else where do you think the Court ought to tell you 
to build them?

The Witness: Sir, I don’t think the Court should 
tell us where to locate these facilities.

The Court: Well, let’s pass on from that question 
and assume regardless of what you might think about 
it or what the Board might think about it, you knowT 
the Court does a whole lot of things that don’t suit 
anybody?

The Witness: Yes, sir.
The Court: Suppose the Court should decide to 

have to order you to build these buildings some where 
else or not to build them vThere you had planned have 
you made any plans where you would build them?

The Witness: No, sir.
The Court: Can you offer any suggestions to the 

Court as to any other site that is available?
The Witness: I certainly don’t know of any sites 

that are available.
The Court: Do you have room to build all three of 

them on either side of the road?
The Witness: No, sir, for the simple reason the 

playground space would be taken up at both places 
if you build them all there.

The Court: Have you no room for expansion of 
these schools on the present campus?

James D. Walker—for Plaintiffs—Direct



198

The Witness: We have jnst recently bought some 
land on both sites, approximately twenty acres at 
the Martin site additional, thirteen acres; and we 
bought additional 4.6 acres at the Altheimer School; 
and we bought all in the Martin site that has been 
available for expansion in that direction; and we go 
back to a bayou on the Altheimer site, and we are 
completely surrounded by residences all around that, 
and a private club joining on one side and a—I call 
it a branch, not a bayou, but a drainage ditch.

The Court: What has been the trend of your 
school enrollment during the years in which you have 
been Superintendent, has it been up or down?

The Witness: Tour Honor, the enrollment has 
been up slightly, but the attendance has been up con­
siderably.

The Court: All right, what I ’m really talking 
about, I guess, is attendance?

The Witness: Yes, sir.
The Court: How much is your attendance up say 

in the last three years?
The Witness: Approximately a hundred.
The Court: About one hundred percent?
The Witness: Yes, sir. No, no, sir, not a hundred 

percent, approximately a hundred in number.
The Court: A hundred in the total enrollment; in 

which school?
The Witness: This year the enrollment at the 

Martin School is down somewhat; the enrollment at 
the Altheimer School is up approximately thirty five 
to forty, that is this present school year.

James D. Walker—for Plaintiffs—Direct



199

The Court: How long has that trend, if it is a 
trend, been continuing, what has been happening at 
that school?

The Witness: Actually that was the first year that 
the Martin School has not had a steady gain. Pre­
vious to that time they had been gaining right along 
in number. I have some figures over there that I 
could look back and see what it was in 1960, the 
year I became Superintendent, and what it is now.

The Court: I don’t care about that exactly; you 
say that both schools have had a small steady trend 
upward until this past year?

The Witness: Until this present year.
The Court: Until this present year, at which time 

the Martin School was down how much, thirty or 
forty?

The Witness: Yes, sir.
The Court: And how much was the other school 

up this year?
The Witness: About the same number.
The Court: And how much of that was due to 

transfer of Negro students from the Martin School 
over to the Altheimer School ?

The Witness: Very little, Sir.
The Court: You had four or five or six?
The Witness: Six, yes, sir.
The Court: Six altogether? Have you and the 

Board considered that if the guide lines of the Office 
of Education were enforced to the fullest extent pos­
sible that there is a possibility that as a condition 
to receiving money from from the Federal Govern­
ment you might need a greater degree of integra­
tion than you now have in the School District?

James D. Walker—for Plaintiffs—Direct



200

The Witness: Yes, sir.
The Court: Can you tell the Court you are pre­

pared to meet that when it comes, regardless of 
whether it takes new buildings or not!

The Witness: Yes, sir.
The Court: Any other questions, Mr. Walker?
Mr. Walker: I just had an opportunity to go 

through hurriedly some of the information Mr. 
Walker brought with him and I want to ask briefly 
one or two questions.

Redirect Examination Questions by Mr. Walker:
Q. Mr. Walker, do you treat your Negro and white 

teachers equal, with the same respect and all? A. I  think 
I  do, yes, sir.

Q. I  want to introduce in the records at this time the 
minutes, well, your teacher salary information for the fiscal 
year ending June 30, 1965, for the purpose, not as showing 
the disparity, Your Honor, but as showing that—and this 
is a significant point that the Supreme Court considered 
once before—all female white teachers are referred to by 
courtesy title, while all Negro teachers are referred to with­
out that title. We would also like to introduce into the 
record, Your Honor, that the per pupil cost as set forth 
in the records of the School District the Negro pupil is 
substantially lower than the per pupil cost for white pupils. 
This is set forth in schedule No. 23 and schedule No. 8, 
which I would like to have introduced.

(Thereupon, the documents above referred to 
were marked as Plaintiffs’ Exhibits Nos. 3 and 
4, for identification.)

James D. Walker—for Plaintiffs—Direct



201

The Court: These schedules will be received. You 
may mark them and offer them. You may substitute 
copies if you don’t want to take them out of that 
docket.

(Thereupon, the documents heretofore marked 
Plaintiffs’ Exhibits 3 and 4, for identification, 
were received in evidence.)

The Court: Do you suggest that the difference in 
per pupil cost differs in any substantial degree on 
account of anything other than the relative size of 
the schools? I understand there is some small total 
difference here in teacher salaries. One of these 
schools is what, about four hundred and the other 
about a thousand?

Mr. Walker: Yes, sir, Your Honor.
The Court: I think it is true just generally that in 

a four hundred pupil school it is going to cost more 
money than say a thousand pupil school.

Mr. Walker: The cost for operating the white 
school for 1965 totals approximately one hundred 
twenty seven thousand dollars; the cost for operat­
ing the Negro school came to approximately one 
hundred and sixty thousand; there’s a difference of 
approximately, about twenty five thousand dollars.

The figures are for the wThite high school, Your 
Honor, for the year ending 1965 seventy one thou­
sand, eight hundred ninety two dollars, and the per 
pupil cost was $389.80; and for the white elementary 
school the total amount was forty five thousand, 
four hundred thirty dollars and seventy eight cents; 
and the per pupil cost was two hundred sixty five 
dollars, sixty one cents.

James D. Walker—for Plaintiffs—Redirect



202

The Court: Two sixty five, sixty one?
Mr. Walker: That’s right, Tour Honor. Now, for 

the Negro high school the total cost was $73,846.87, 
a per pupil cost of $192.00; the elementary school 
total cost was $86,563.92, and a per pupil cost of 
$164.59.

I think this is the reason why as long as the schools 
operate on the present structure Negro students will 
be denied equal education opportunity.

The Court: Approximately how many white high 
school pupils do you have?

The Witness: About two hundred eleven; no, 
more than that, about two hundred seventeen.

The Court: And about how many in the elemen­
tary, about the same number?

The Witness: Yes.
The Court: Do you take white pupils from some 

other District?
The Witness: Yes, sir. Not only white pupils, 

we take white and Negro students.
The Court: I was wondering how it happened 

that you had the same number of pupils in your high 
school as you did in the elementary grades, when 
ordinarily the roll is smaller, isn’t it?

The Witness: Yes, sir.
The Court: I take—you accept elementary stu­

dents from outside the district?
The Witness: Yes, sir.
The Court: I  take it you get more white high 

school students than you do white elementary stu­
dents from outside ?

The Witness: Oh, yes, sir.

James D. Walker—for Plaintiffs—Redirect



203

The Court: Have you made any plans necessary 
to give preference as far as space in this Altheimer 
School to residents of the District!

The Witness: Sir, I think that is understood, 
people who live there have first choice. We have a 
tuition contract agreement with the Sherrill District, 
who is a neighbor to us, and they send in, tradi­
tionally sent their high school students both from 
the all Negro and from the all white to the Altheimer 
District, and we have given them the same freedom 
of choice; in fact of the matter, of those six children 
from the Sherrill School District who attended the 
formerly all white high school.

The Court: That isn’t exactly what I had in mind. 
What I was thinking about, suppose fifty Altheimer 
District Negro high school students choose Altheimer 
high next year and you don’t have room for them 
without saying to the Sherrill white high school 
students you will have to go somewhere else. Are 
you prepared to take care of your own people first? 
That’s what I  want to know.

The Witness: Yes, sir, we’ll take care of our own 
first.

The Court: All right, any questions, Mr. Friday, 
from this witness?

Mr. Walker: I have just one more, Your Honor. 
I call to the Court’s attention, through this witness, 
that under the 89-10 program ninety percent, eighty 
seven percent of the pupils who are eligible to re­
ceive the compensatory funds are Negro, but only, 
according to Mr. Walker, sixty six percent approxi­
mately of the funds go for their benefit. Now,—

The Court: Where do you get that figure?

James D. Walker—for Plaintiffs—Redirect



204

Mr. Walker: Well, lie said at various points that 
at least two-thirds of the money went here and two- 
thirds there and seven thousand of the ten thousand 
going some place else. Now, taking that ten thou­
sand dollars of the ninety seven thousand dollars, 
which has been allocated, ten thousand dollars is go­
ing to the white school and that means that that 
leaves ten percent of the total, and when you con­
sider two-thirds of this and twTo-thirds of that, this 
has to bring the figure for the benefit of the eighty 
seven percent of the pupils down below sixty six 
percent really, giving them the benefit of the doubt.

The Court: I haven’t computed that and I didn’t 
think it ran anything like that much.

Mr. Walker: Allright, ten thousand dollars, bet­
ter than ten thousand dollars of the ninety seven 
thousand dollars is going for the construction of 
the library at the white school; seven thousand of 
the ten thousand dollars for another item, I forget 
which item it was, perhaps Mr. Walker knows.

The Court: Wait a minute. Three thousand of 
that ten thousand would be going to the white 
school.

Mr. Walker: Sixty six percent of—he mentioned 
at least two or three other items that I don’t have 
in my notes now. I just made notes of the percent­
ages that will be going to the white school.

The Court: I think we have to consider this ten 
thousand dollars for the remodeling of that building 
in a special category. We will come back to this in 
a moment. Leaving it out for the moment, that ten 
thousand dollars for the library, of the twenty five 
thousand dollars that went to personnel, as I recall

James D. Walker—for Plaintiffs—Redirect



205

it, all but two of those people were at the Negro 
school.

Mr. Walker: I think that’s not quite the case. 
There were two at the Negro school, two people 
were hired at the Negro school, and the elementary 
supervisor spent a lot of time at the Negro school. 
There were three white people, if I ’m not mistaken, 
hired under 89-10.

The Witness: We’re getting into figures and I 
will try to remember them. There were two part 
time speech therapists who were hired under 89-10. 
They are white women. There is a white elementary 
supervisor, who spends most of her time in the 
Martin elementary school. There is a remedial 
reading teacher in Martin Elementary School. There 
is a special education teacher in the Martin Elemen­
tary School. There’s a special English or remedial 
English teacher in Martin High School. There is an 
elementary counsellor home visitor at the Martin 
Elementary School; there is a high school counsellor 
at Martin High School. There is one remedial read­
ing teacher in the Altheimer Elementary School; and 
one remedial English teacher in the Altheimer High 
School. Those are the only two people put on at 
the Altheimer School; the rest of the staff has been 
assigned to the Martin Elementary and High School.

Q. But didn’t you say earlier that the speech therapists 
work both places? A. They work both places.

Q. All right, so you have two full time people being paid 
salaries of better than four thousand dollars to go to the 
white school; and two full time people under 89-10 to go to 
the Negro School? A. No.

James D. Walker—for Plaintiffs—Redirect



206

Q. But what you’re doing is cutting it down the middle 
and giving the Negro. A. No, sir, no sir. These speech 
therapists were employed out of the county office; all of 
us were sent a pro-rata part of their services.

The Court: We had those figures given in detail 
somewhat earlier by both Mr. Walker and Mr. 
Martin; and as I recall there -were, I thought I un­
derstood there were two full time people at the 
Altheimer School; there were, I think two, may be 
three people who worked both places; and there 
were four or five, I forget which, I was thinking five, 
I ’m not sure what my notes reflect at the moment, 
but I  think it was five positions created for assign­
ment at the Martin School. Now, that was out of 
that twenty five thousand. The six thousand for 
rental and medical—

The Witness: Dental and medical.
The Court: Dental and medical, not rental, dental 

and medical aid and so on, simply has not been 
spent; you found only what, two clients—

The Witness: Two families, yes, sir.
The Court: So you haven’t spent that at all?
The Witness: No, sir.
The Court: Now, you had another item of ten 

thousand, seven thousand of which was spent at the 
Martin School and you’ve had twenty five thousand 
for this lunch program, ninety eight percent of which 
was spent at the Martin School. While you are 
spending ten thousand dollars approximately of 89- 
10 money on this renovation, as I understood it 
you are budgeting at the same time a similar sum, 
ten or twelve thousand dollars for the build-up of

James D. Walker—for Plaintiffs—Redirect



207

the library and science facilities at the Martin 
School, although only a small part of that, I believe 
two thousand is 89-10 money?

The Witness: Yes, sir.
The Court: The rest of it comes from some other 

source.
The Witness: Yes, sir, it will come from other 

sources and 89-10 money and next year’s budget.
The Court: Well, I  can’t figure that out percent­

age wise; I suppose I could, but I don’t know that 
I will figure it out percentage wise, but it looks 
to me like something in the order of eighty percent 
of that money must being spent at the Martin 
School.

Mr. Walker: Your Honor, I don’t think really it 
comes out of the ten thousand dollars.

The Court: No, I don’t think it can either.
Mr. Walker: Here’s the point I wish to make by 

bringing this up. The School District, by the records 
and exhibits that we have introduced, spent far less 
per pupil on Negro pupils than it does on white 
pupils.

The Court: That’s true.
Mr. Walker: Now, under the 89-10 law before 

any of that money can be spent by the pupils who 
already have the advantage the District has to bring 
the facilities that it has and the opportunity that it 
offers of the deprived pupils up to par, so that the 
gap can be eliminated. Now, as I figure it, fifteen 
thousand dollars, plus ten thousand dollars of this 
money has been used by the District predominantly 
for white youngsters. That is approximately one- 
fourth, Your Honor, and I suggest that perhaps we

James D. Walker—for Plaintiffs—Redirect



208

don’t at this point haven’t made a ease for injunctive 
relief against, you know, their plan of 89-10 money. 
This does fit into the District’s general policy with 
regard to treatment of Negro patrons and Negro 
pupils, and that—

The Court: Is this a matter of enforcement by 
this Court, or for a complaint to the Office of—what 
would it he, Economic Opportunity or Office of Edu­
cation or Health, Education and Welfare? I  don’t 
know who handles it.

Mr. Walker: To my knowledge, and this is off 
the record again, the Office of Education has never 
appealed the implementation of an 89-10 program; 
the State Department of Education has never dis­
approved a plan submitted by a school district for 
us of 89-10 money.

The Court: You mean the money is expended 
under nobody’s supervision?

Mr. Walker: I t’s under somebody’s supervision, 
but they never required the poor people, the Negro, 
to—I would like to present Mr. Ford or somebody 
else on this, because of the fact I am right now 
guilty of testifying, and I hope you don’t mind for 
the moment.

The Court: Well, I ’m asking you to tell me what 
supervision there is for this money.

Mr. Walker: I know of many situations that we 
have called to the attention of both the Office of Ed­
ucation in Washington and Mr. Ford, and we would 
like to have him here to testify, where misuse of au­
thority has been alleged, but no relief.

The Court: Well, I don’t want to go into the mis­
use in the sense that—you mean disproportionate?

James D. Walker—for Plaintiffs—Redirect



209

Mr. Walker: Disproportionate, yes.
The Court: Disproportionate, not necessarily mis­

use, disproportionate. All right, sir.
Mr. Walker: I don’t request the Court to do—

. The Court: Not asking the Court to do anything 
about that?

Mr. Walker: Other than to consider it generally, 
because of the fact we haven’t really presented any 
testimony.

The Court: Of course, if this were a separate but 
equal proposition the Court would have no doubt 
about what it could do and should do.

Is there any cross-examination, Mr. Friday?
Mr. Friday: Your Honor, I  think we better let 

Mr. Walker rest; we may put him back for a few 
questions.

The Court: You may stand aside, Mr. Walker.
(Above witness temporarily excused.)
The Court: Who will be your next?
Mr. Walker: I  think, Your Honor, perhaps coun­

sel for the Defendants are willing to stipulate that 
the allegations we set out in our complaint with ref­
erence to who the plaintiffs are and what they com­
plain about. They probably will not stipulate to the 
relief that we seek. If they do we have no other 
witnesses.

The Court: Are you talking about the identifica­
tion of the plaintiff’s as being the patrons and so on 
of the school Board? This seems to be contained in 
a response for request for admissions, No. 2, the 
Defendants admit that all of Plaintiffs are proper 
parties plaintiff with the exception of the Plaintiff

James D. Walker—-for Plaintiffs—Redirect



210

Claude Thomas, who is not a resident of the Defend­
ant School District. This defendant admits the plain­
tiffs are proper parties to bring the action on behalf 
of themselves and other members of their class, with 
the exception noted. Does that satisfy yon, Mr. 
Walker?

Mr. Walker: Yes, sir, I  think it does.
The Court: This would be their response No. 2. 
Mr. Walker: I think I better put Moses Kelley 

on for one question.

Moses Kelley—for Plaintiffs—Direct

M oses K elley , called as a witness by and on behalf of 
Plaintiffs, being duly sworn, was examined and testified as 
follows:

Direct Examination Questions by Mr. Walker:
[Moses Kelley, plaintiff in the lawsuit, testified concern­

ing the failure of the Altheimer school system, upon his 
transfering into the district, to provide him with adequate 
notice of his children’s freedom of choice under the 
desegregation plan.]

#  #  #  *  #

Mr. Walker: I  have no further questions.
The Court: Any questions of this witness?
Mr. Friday: No, sir.
Mr. Walker: Plaintiff rests.
The Court: Plaintiff rests; any testimony on be­

half of the defendant?
Mr. Friday: Your Honor, Pm going to offer into 

evidence the interrogatories propounded to Defend­
ants and the answers made by the Defendant. I 
realize they are in the record, but I  want to formally



211

offer them into evidence with the exception of the 
blueprint portion of the construction contract. We 
do not offer this because it has already been covered.

The Court: Is there any objection, Gentlemen, 
to the Court receiving as part of the hearing record 
all of the interrogatories and responses thereto and 
the requests for admissions filed by both sides?

Mr. Walker: Your Honor, we have no objection 
to receiving the requests for admission into the rec­
ord, and the answers that we filed. We do have objec­
tion to a number of the interrogatories, which we 
would like to set out for the record at a later date.

The Court: You may submit those objections in 
writing subsequent to this date.

Mr. Friday: We will call the Superintendent back 
just for a moment.

James D. Walker—-for Plaintiffs—Recalled—Direct

J ames D . W alker, b e in g  recalled , was exam ined  a n d  te s ­
tified  a s  fo llow s:

Direct Examination Questions by Mr. Friday:
Q. You are the same Mr. Walker who testified pre­

viously? A. Yes, sir, I am.
Q. Mr. Walker, I ’m going to hand you three documents, 

the first of which I have marked for identification at the 
top defendant’s Exhibit 1(A); the second the defendant’s 
Exhibit L(B) and the third the Defendant’s Exhibit 1(C); 
now, to expedite I  don’t want, Your Honor, I do not want 
to duplicate in the record, but these are forms 441B, re­
vised statement of policies, and the green back forms. 
A. Let me digress. Did you offer these? Are these in evi­
dence?



212

The Court: Is that the guide lines!
Mr. Friday: The guide lines.
The Court: Revised statement of policy and plans 

and so on under Title 6, that is Plaintiff’s Exhibit 2. 
It was received. Is that the same as your 1(B)?

Mr. Friday: That’s the same as 1(B), and there­
fore, I ’ll not offer Defendant’s Exhibit 1(B).

(The documents above referred to were marked 
for identification as Defendant’s Exhibit 1(A), 
1(B) and 1(C).

The Court: Very well; if you have an extra copy 
of it it might be well if you would furnish it to the 
Court for the Court’s use.

Mr. Friday: All right. Now,—

Q. Now, look at the documents I have just handed you, 
Mr. Walker, and take 1(A); on 1(A) there are certain 
blanks that have been filled in; is this correct? A. Yes, sir.

Q. Is the information that’s filled in the blank identical 
to that contained in the form that you have submitted to 
the Commissioner of Education in Arkansas, and then on 
to Washington? A. Yes, sir.

Q. All right.

Mr. Friday: I am going to offer this form 441(B) 
submitted as the Defendant’s Exhibit 1(A).

The Court: Let it be received.
(Thereupon, the document heretofore marked 

as Defendant’s Exhibit 1(A), for identifica­
tion, was received in evidence.)

James D. Walker—for Plaintiffs—Recalled—Direct



213

Q. Now, take Defendant’s Exhibit 1(C), I  have turned in 
this document, marked for identification Defendant’s 1(C) 
to a form where the capital letter A is written at the top, 
and ask you to look at that form. Is that the form that 
you published in the newspaper and mailed to each parent 
of a student in your district1? A. Yes, it is, where we filled 
in the blank.

Q. Were the blanks filled in? A. Yes, sir.
Q. All right, now, turn over until you find a form that 

is marked with a capital B at the top. What is that form? 
A. This is a letter of transmittal to the parent telling 
them what it is this form, a notice of the desegregation of 
the public schools system, and telling them where they can 
register, and so on.

Q. Is that identical with the letter that you have mailed 
to each parent of a student in the district? A. Yes, sir, at 
the top we simply put Altheimer School District No. 22, 
Post Office Drawer N, Altheimer, Arkansas, and the date 
sent, and signed Sincerely Yours, James D. Walker.

Q, All right, what is the choice period that the district 
fixed? A. March 31-April 29.

Q. 1966? A. Yes, sir.
Q. All right, turn to the form that is marked at the top 

with a capital C, what is that form? A. This is the free­
dom of choice form, where the name of the child is given, 
the age and the schools and the schools within the dis­
trict.

Q. Is that identical with the freedom of choice form that 
you included in this letter that you sent to every parent? 
A. Yes, sir; well, we substituted the name of our own 
schools.

Q. You filled in the appropriate information as to 
schools? A. Yes, sir.

James D. Walker—for Plaintiffs—Recalled—Direct



214

James D. Walker—for Plaintiffs—Recalled—Direct 

Q. All right.

Mr. Friday: I  am going to offer into evidence, 
Your Honor, the document testified to by the wit­
ness, marked at the top Defendant’s Exhibit 1(C).

The Court: Let it be received.
(Thereupon, the document above referred to was 

marked as Defendant’s Exhibit No. 1(C), for 
identification.)

Mr. Friday: I want to be sure that there is in the 
record, and I intended to get it in the record by 
offering in the interrogators including the exhibits 
of the plan filed last year. Is there any question 
about this being in the record!

The Court: There is. It is not in the record, al­
though the Court was furnished a copy of the plan. 
At least I  think it is not in.

Mr. Friday: All right, I want to formally put it in. 
If it is in twice why we won’t duplicate it.

The Court: All right.

Q. Mr. Walker, I have just handed you a document and I 
ask you what it is ? A. The first document is a letter from 
the Department of Health, Education and Welfare, signed 
by Francis Keppell, who was then U. S. Commissioner of 
Education, a letter addressed to me as Superintendent of 
Schools, telling the School District that their plan had been 
accepted for the 65-66 school term.

Q. Thumb through the rest of it. Is the rest of it the 
plan and accompanying information in the exhibit! A. 
Yes, sir, it is.



215

Q. Be sure it is all there.

Mr. Friday: I am going to mark this defendant’s 
Exhibit 2, and offer it into evidence.

(Thereupon, the document above referred to was 
marked as Defendant’s Exhibit No. 2, for 
identification.)

The Court: Let it be received.
(Thereupon, the document heretofore marked as 

Defendant’s Exhibit No. 2, for identification, 
was received in evidence.)

Q. Mr. Walker, are you familiar with the construction 
contract that has been executed by and between the District 
and J. E. Starrs, general contractors? A. Yes, sir, I am.

Q. I  hand you a document and I’ll ask you to look at it 
and see if that is a copy of the executed contract? A. Yes, 
sir.

Q. I ’m not going to offer this in evidence, but I want to 
ask you two or three questions about it to get the answers 
in evidence. I think you can answer them without looking at 
it. I  want to know the date of the contract? A. The date 
of the contract is February 10, 1966.

Q. February 10, 1966? A. Yes, sir.
Q. I want to know the completion period specified in the 

contract? A. One hundred eighty calendar days.
Q. One hundred and eighty calendar days? A. Yes, sir.
Q. The dollar amount of the contract? A. Approxi­

mately two hundred fifty seven thousand dollars.
Q. Let’s get it exactly, if we’re going to have it. If I 

suggest to you $252,432.00 you verify this? A. Yes.
Q. That is your testimony? A. Yes, sir.

James D. Walker—for Plaintiffs—Recalled—Direct



216

Q. Are you familiar with the specifications which are 
part of this contract? A. Yes, sir, I have general knowl­
edge of it.

Q. Is the construction of these classrooms, which are in 
three separate buildings, identical insofar as material, de­
sign, and so forth are concerned? A. Yes, sir.

Q. Mr. Walker, you have testified about the present facili­
ties, physical facilities, and in answer to various questions 
propounded to you you have testified about what your—of 
about the proposals for expenditures concerning physical 
facilities; and I don’t want to repeat any of this, but let me 
ask you two or three questions about the rating situation. 
No. 1, are you familiar with the requirements for North 
Central rating? A. I am.

Q. Are you familiar with the deficiencies that exist at 
the Martin School to get a North Central rating? A. Yes, 
sir.

Q. Based on this familiarity have the necessary steps 
been taken to correct these deficiencies ? A. We are in the 
process of taking them, S ir; some of them have, and when 
we begin this project we hope to eliminate them.

Q. Did I understand you that your application has been 
pending—I’m expediting—two years for the Martin School 
accreditation? A. We filed formal application, yes, sir, 
and we have not yet asked them to send a visiting committee.

Q. Are you able to state to the Court whether, based upon 
your knowledge, that you have just testified to, that there 
is any reason why this accreditation would not be forth­
coming? A. Not to my knowledge, no, sir.

Q. Do you expect it to be forthcoming?

Mr. Walker: I object here, Your Honor.
Mr. Friday: I  won’t press the point, Your Honor.

James D. Walker—for Plaintiffs—Recalled—Direct



217

Q. All right, now, can you state to the Court, after you 
complete the construction and expenditures that you have 
already testified to, will there he any substantial difference 
in physical facilities at Martin—between those at Martin 
and those at Altheimerf A. No, sir.

Q. The interrogatories cover the curriculum in detail at 
the various schools, and I will not repeat that. Is there any 
substantial difference in the scope of the curriculum—well, 
there are just a few and they are listed? A. Yes.

Q. Now, are you familiar, and are you prepared to state 
whether there are any differences or will there be any dif­
ferences in the quality of the educational program that will 
be offered at these facilities? Wait a minute; if he wants to 
object, let him object.

Mr. Walker: I do.
Mr. Friday: What ground?
Mr. Walker: It has been shown here that the 

witness already believes that there is no difference 
in the quality of the education presently; and on the 
basis of this I think he has already answered the 
question; and I think it is self-serving.

Mr. Friday: I will accept that and let the answer—
The Court: The Court will not accept it. The 

Court is willing to accept that he says there is no 
difference in general, but whether the Court will 
agree with that conclusion in the light of the other 
statements about some of the differences that exist, 
I’m not prepared to concede at this time; so if you 
want to explore it any further perhaps you’d better 
do so.

Q. What elements go into the quality of an educational 
program, Mr. Walker? A. Well, library facilities, staff,

James D. Walker—-for Plaintiffs—Recalled—Direct



218

science facilities, the supporting services, like cafeteria, 
transportation, gymnasium facilities, good teachers, of 
course, and adequate financing.

Q. Let me ask you this, go into such details as you need 
to, hut as a professional educator do you believe that there 
ought to be substantially equal facilities from the stand­
point of quality available to every student in the District? 
A. Yes, sir, I do.

Q. Is this your objective, Mr. Walker? A. It is, Sir.
Q. Do you propose to meet this objective? A. As fast 

as possible.
Q. Well, all those that you’ve testified about, physical 

facilities, and we’ve had a lot of testimony about staff, and 
what you feel about staff, and you testified about proposals 
on salary; now, do all these have a bearing on quality? 
A. Yes, sir.

Q. What about the expenditures? A. Expenditures, of 
course, you have to, in the past, as I stated earlier, this 
School District has increased its millage by twelve mills; 
and frankly in a rural with the assessed valuation right 
now it will run about three million, six hundred thousand, 
I  think they are showing a real desire on the part of the 
Board and the voters in the District to meet these objec­
tives.

Q. What is the millage? A. Forty three mills.
Q. What is the breakdown in the millage between opera­

tion and maintenance and bonded indebtedness? A. Pres­
ently twenty nine mills for maintenance and operation and 
fourteen mills for debt, Sir.

Q. You came to the District as Superintendent in 1960? 
A. Yes, sir.

Q. What was the millage in 1960? A. Thirty one.

James D. Walker—for Plaintiffs■—Recalled—Direct



219

Q. Now, Mr. Walker, there was introduced into evidence 
a short time ago an exhibit which purported to reflect per 
pupil expenditures. Are you familiar with these! A. I 
am familiar with Mr. Glenn A. Railbach’s audit, a C.P.A. 
in Pine Bluff.

Q. I don’t want to get into the correctness or incorrect­
ness, but do you think from the standpoint of the Court to 
have a complete understanding of what these figures mean 
that you are in a position to add anything to them! Do you 
understand what I ’m asking you! A. Yes, sir, I think I 
do, Sir. I think I could say this, that these expenditures 
reflect only current operating expenditures; they do not 
reflect capital outlay expenditures; and as his Honor said, 
we all know that certain numbers you can have a cheaper 
per capita cost if you have numbers; and I also know this, 
it is not very easy, and I don’t think it is very accurate 
breakdown, because I don’t think Mr. Railsbaeh goes to 
how many rolls of toilet tissue goes to Martin School or 
how many bars of soap go over there and that sort of thing; 
I don’t think there is any provision to reflect the capital out­
lay for buildings and that sort of thing that is reflected in 
these average costs.

Q. Well, there are still some differences, aren’t there! 
A. Yes, sir.

Q. You are not purporting to tell the Court there are not! 
A. No, sir.

Q. All right,—

Mr. Friday: I’m not going to dwell on it any 
longer. If the Court wants to ask some questions.

Q. I ’m going to hand you some photographs and ask you, 
I hand you one which is marked on the back as Defendant’s

James D. Walker—for Plaintiffs—Recalled—Direct



220

Exhibit-—let me do these in mass, Your Honor—I hand 
you a group of photographs, they are marked on the back 
as defendant’s three, starting with three and going for­
ward, and there purports to be an identifying legend on the 
back of each. Will you glance at them and see if that leg­
end is accurate and identifies what the picture depicts, 
what each picture reflects? A. Yes, sir.

Mr. Friday: They start with Exhibit 3 and go 
through Exhibit 23. He has testified that each of 
them has a legend on the back identifying them. 
You want to see these? I ’m offering these in evi­
dence, Your Honor. These are pictures of the various 
facilities at the Altheimer and the Martin facilities.

Q. Incidentally, these are pictures as they exist as of 
this date? Do you know when they were taken? A. Yes, 
sir, last week, I believe.

Q. Within a week or ten days ago? A. Yes, sir.

The Court: Do they fairly represent the facili­
ties they are supposed to represent at the present 
time?

The Witness: Yes, sir.
(Thereupon, the documents above referred to 

were marked as Defendant’s Exhibits Nos. 3 
through 23, for identification.)

The Court: Let them be received.

Q. Do you have the photographer here who took those 
pictures ?

James D. Walker—for Plaintiffs—Recalled—Direct



221

The Court: It is not necessary, the witness says 
they reflect the situation as it exists now.

Mr. Tillar: No objection.
(Thereupon, the documents heretofore marked 

as Plaintiff’s Exhibits 3 through 23, for identi­
fication, were received in evidence.)

Mr. Friday: I don’t, Mr. Walker and Mr. Tiller, 
I  don’t want to spend any time developing this; is 
there any issue in this case, I  don’t want to develop 
something I don’t have to—are you contending that 
the plan that was in effect last year that as to the 
implementation of that plan the School District 
failed to give notice to anyone or failed to grant 
any preferences that were asked for; is there any 
issue in this case of this?

Mr. Walker: No, sir, the only thing, Your Honor, 
that pupils and patrons coming into the District for 
the first time were not given an opportunity to ex­
press a choice for the school, and had their choice 
granted.

Mr. Friday: Well, let me ask this question:

Q. As of this time and in the future, Mr. Superintendent, 
will every pupil and/or parent, as the case may be, whether 
in the system or newly entering be given the opportunity to 
express a choice and have the choice granted in accordance 
with your plan?

The Court: And the guide lines.

James D. Walker—for Plaintiffs—Recalled—Direct

Q. And the guide lines? A. Yes, sir.
Q. You answer yes; all right, did you receive any com-



222

plaints or protest about your construction program prior 
to the filing of this litigation? A. No, sir.

Q. From no one? A. From no one.
Q. If anyone in the District had received it would you 

know about it? A. Well,—
Q. Well, let me put it this way: If any one in an official 

position with the District, such as the Board or staff would 
you know about it? A. I would think so, yes.

Mr. Walker: I think that—
The Court: Objection sustained.

Q. All right, but you don’t know of any? A. No, sir.

Mr. Friday: That is all.
The Court: The Court will take judicial notice if 

there could have been very much complaint about 
it prior to this time it would have come to the atten­
tion of the Superintendent, who is the Chief Execu­
tive Officer of the School. The Court knows that 
Superintendents hear about these things. People are 
not reluctant to tell it.

James D. Walker—for Plaintiffs—Recalled—Cross

Cross Examination Questions by Mr. Walker:
Q. With regard to the publication, the notices about your 

construction plan, were those notices phrased in such a way 
as to state to the voting populace that the Board contem­
plated building two schools, give written notices? A. Yes, 
sir, the front page article—

Q. Your written notices now? I ’m not talking about a 
newspaper article on it? A. Most as I remember, and I 
do not have a copy of the notice with me, Mr. Walker.



223

Q. I asked for all that information; the only thing you. 
gave me was a statement, a duplication of a legal notice? 
A. Are we going back now to the last—

Q. I ’m talking about your school construction plans? A. 
They were published in the Pine Bluff Commercial, articles 
four different times, discussing this building plan; July 
22nd issue, front page, in which the writer called the— 
I was in school and they spoke to the Secretary of the 
School Board, and the article on the front page, the July 
22 issue about where the schools were going to be located, 
announcing where the schools were going to be located, 
what was going to be done, and then at least three other oc­
casions there was something has to do with this building 
program in the Pine Bluff Commercial; I believe Sunday 
preceding the election there was an article, and then there 
was an article in the paper the day after the election, and 
may be the day before the election, telling about the in­
crease in millage necessary to finance this bond issue.

Q. I ’m satisfied on that. How many voted in the elec­
tion? A. Offhand I think about two hundred thirty people 
who voted.

Q. How many registered voters are there, to the best 
of your knowledge, in Altheimer, eligible to vote in the elec­
tion? A. At that time I have no idea, really.

Q. The year before how many would there have been?

The Court: Wouldn’t have been any the year be­
fore, would they? We didn’t have registered voters 
then.

Mr. Walker: I ’m thinking about poll tax, Your 
Honor.

The Court: They had qualified electors, but we 
didn’t have registered voters.

Janies D. Walker—for Plaintiffs—Recalled—Cross



224

Q. How many qualified electors did yon have the year 
before! A. Mr. Walker, I ’m serious, I don’t have any 
idea.

Q. The participation in this election wasn’t significant, 
was it? A. For a school election it was rather significant, 
Mr. Walker, it was a rather substantial number.

The Court: Anything else from this witness!
Mr. Friday: I have nothing further.
The Court: You may stand aside.
(Above witness temporarily excused.)
The Court: Who will be your next?
Mr. Friday: This will be all except the matter we 

discussed in chambers, Your Honor.
Mr. Walker: I  have just one other matter, Your 

Honor. Approximately twenty four patrons in the 
District have approached me asking to have them­
selves intervene as parties plaintiff in this action; 
and I would like to have leave to file a written in­
tervention in the case on their behalf.

The Court: The intervention comes rather late. 
I don’t mind letting them intervene, but I don’t 
want to entertain any pleadings from them now or 
any further hearing.

Mr. Walker: There will be no further hearing 
nor no further pleadings; they will adopt the testi­
mony admitted today, along with the allegations set 
forth in the complaint.

The Court: Leave is granted for the interven­
tion. Furnish a list of the names to the Clerk.

Now, Gentlemen, subject to your submission of 
the deposition of one final witness, if its possible

James D. Walker—for Plaintiffs—Recalled—Cross



225

Colloquy

for it to be done on deposition. If not you may notify 
the Court and we will hear it at a later date. At 
any rate, pending the receipt of that deposition the 
case will remain in a state of suspended animation, 
I guess, and following receipt of that testimony 
then, one way or another, we will close the hearing 
record.

Is ther any reason why the Court should not recess 
at this time?

Mr. Friday: We have nothing further, Your 
Honor. We appreciate the Court accommodating us.

The Court: I suppose if you want to file briefs, or 
if there are further proceedings we can take that up 
at the time when the hearing record is finally closed.

Mr. Walker: Thank you, Your Honor.
The Court: Court will be in recess.



226

Certification

I, John I. Gilbert, do hereby certify that I am an official 
court reporter in the United States District Courts for the 
Eastern and Western Districts of Arkansas; that as such 
I reported the proceedings in the within named and num­
bered cause at Little Dock, Arkansas on the 31st day of 
March, 1966; that the foregoing one hundred ninety nine 
pages of typewritten matter constitute a true and correct 
transcript of said proceedings; that I  personally tran­
scribed same from my original shorthand notes taken at 
the time.

/ s /  John I. Gilbert 
Joins' I. Gilbert 
Official Reporter

This August 9, 1966.



227

(Filed June 3, 1966)

This is a suit in equity brought by Negro citizens of 
Arkansas who reside within the limits of Altheimer Pub­
lic School District No. 22, Jefferson County, Arkansas, 
for the purpose of enjoining certain allegedly racially 
discriminatory practices of the District, including the 
proposed construction of three new elementary classroom 
buildings as replacements for existing buildings. The de­
fendants are the District itself and J. E. Stowers, doing 
business as “J. E. Stowers, General Contractor.” 1 The 
suit was brought as a class action by plaintiffs on behalf 
of themselves and others similarly situated. Jurisdiction 
of the Court is not questioned and is established. The 
case has been tried to the Court, and this memorandum 
incorporates the Court’s findings of fact and conclusions 
of law.2

The defendant District includes the incorporated town 
of Altheimer together with a substantial rural area of 
Jefferson County in the vicinity of the town. The popula­
tion of the District is predominantly Negro, and the 
public school enrollment of the District is likewise pre­
dominantly Negro. The District offers public instruction 
in Grades 1-12 to all students of both races residing 
within the District, and, in addition, offers instruction 
to certain students of both races in the upper grade

1 Mr. Stowers has the contract for the construction of the three build­
ings at a cost of more than $250,000. He, of course, would like to perform 
his contract; apart from that he has no direct interest in the lawsuit.

2 At the conclusion of the trial the Court granted an oral motion of 
plaintiffs’ counsel for leave to file an intervention on behalf of 21 other 
Negro school patrons. As hereinafter used, the term “plaintiffs” will in­
clude the intervenors.

Memorandum Opinion of J. Smith Henley, D.J.



228

levels who reside in the neighboring Sherrill School Dis­
trict No. 4.

Prior to the commencement of the current school year 
in September 1965 defendant District had maintained 
racially segregated schools. Negro students were in­
structed in a complex of buildings known as the Martin 
School,3 and white students were taught in a complex 
of buildings known as the Altheimer School. The sites 
of the two building complexes are within a few blocks 
of each other. The area between the two sites is traversed 
by an Arkansas State Highway. About midway between 
the two sites there is another school building in which 
vocational agriculture is taught.

Prior to the current school year the administrative 
staff of the District was entirely white, except for prin­
cipal Martin. White students were taught by white teach­
ers, and Negro students were taught by Negro teachers. 
Under the law of Arkansas the governing body of the 
District is its elected Board of Directors, referred to 
herein as the Board.

On July 2, 1964, Congress adopted the Civil Bights 
Act of 1964, P.L. 88-352, 78 Stat. 241. Insofar as here 
pertinent, Title VI of that Act provides in substance 
that public school districts which receive federal financial 
assistance must eliminate, more or less expeditiously, all 
racial discrimination in the schools.4 As far as public

Memorandum Opinion of J. Smith Henley, D.J.

3 The Martin School is named for the present principal of those schools, 
Fred Martin, Jr. Martin has been principal since 1955. When he took 
charge of the school it was known as the Altheimer Training School. 
The name was changed about 1960.

4 Section 601 of the Act, 42 U. S. C. A., §2000d, provides: “No person 
in the United States shall, on the ground of race, color, or national origin, 
be excluded from participation in, be denied the benefits of, or be sub-



229

school desegregation is concerned, the Act is administered 
by the United States Office of Education in the Depart­
ment of Health, Education and Welfare. In December 1964 
the Commissioner of Education propounded regulations 
or guide lines designed to implement the administration 
of Title VI of the Act. Those guide lines are codified as 
45 C.F.R., Part 80.

Section 80.4 of the guide lines required assurances from 
affected institutions of compliance with the Act. Section 
80.4(c), relating' specifically to elementary and secondary 
schools, provided that such institutions might satisfy the 
assurance requirement by showing that they were oper­
ating under a court approved plan for desegregation 
or by submitting a plan of voluntary desegregation ac­
ceptable to the Commissioner.

Like most Arkansas school districts, the Altheimer Dis­
trict is absolutely dependent upon federal financial as­
sistance if its schools are to be operated on the scale 
desired by its patrons, administrators, and faculty. Ac­
cordingly, in April 1965 the Board submitted a voluntary 
plan to the Commissioner; the proposed plan was amended 
at least once, was finally approved in August 1965, and 
went into operation in September of that year.

A bond issue to finance the construction here challenged 
was approved by the voters of the District at the 1965 
school election. The construction proposed consists of 
two elementary classroom buildings, containing a total 
of 16 classrooms and related facilities, to be located on 
the Martin site, and a single elementary classroom build­
ing, containing six classrooms and related facilities, to be 
located on the Altheimer site.

Memorandum Opinion of J. Smith Henley, D.J.

jected to discrimination under any program or activity receiving Federal 
financial assistance.”



230

Before going further it should be said that both the 
Martin school and the Altheimer school are divided on 
what is known as a 6-6 basis. That is to say, there is, 
for each site, an elementary school consisting of the first 
six grades and a combination junior-senior high school 
consisting of grades 7-12. The Altheimer High School 
enjoys accreditation from the North Central Association 
of Secondary Schools and Colleges, and the Martin High 
School has the highest rating issued by the Arkansas 
State Department of Education, which is Grade A; the 
Altheimer High School is also rated A by the State 
Education Department. Martin High School has not yet 
been recognized by the North Central Association.

The Board’s desegregation plan, which was approved 
by the Office of Education, dealt with both faculty desegre­
gation and with the desegregation of student bodies. For 
the moment the Court will confine itself to the plan as 
it affected students.

The method adopted for student desegregation was what 
is known as the “freedom of choice” plan under the terms 
of which students may express choices for assignments 
to particular schools, the assignments to be honored as a 
matter of course unless to do so would result in the over­
crowding of a particular school, in which case the problem 
of overcrowding is to be solved on a non-racial basis. 
The plan contemplated that freedom of choice would be 
afforded at all 12 grade levels commencing in September 
1965 and that the same choice would be afforded each 
year thereafter; the freedom of choice plan applied not 
only to students who resided in the Altheimer District 
but also to the Sherrill residents who were being in­
structed in the Altheimer District.

Memorandum Opinion of J. Smith Henley, D.J.



231

Prior to the opening of school last year, two Negro 
elementary students requested assignment to the Altheimer 
site, and four Negro high school students requested as­
signment to that site. No white student requested assign­
ment to the Martin site. All six requests of the Negro 
students were granted.

As a result of those assignments, the racial distribution 
of students in the District’s schools for the current year 
has been as follows: Junior-Senior High Schools, 458 
Negro, 209 white; Elementary Schools, 543 Negro, 198 
white. As indicated four Negro students are in the Alt­
heimer High School and two Negro students are in the ele­
mentary school on the Altheimer site.

There are 31 full time Negro teachers and 19 full time 
white teachers. Additional personnel of both races have 
been employed recently with funds obtained by the Dis­
trict under the provisions of the Elementary and Secondary 
Education Act of 1965, P.L. 89-10, 79 Stat. 27. Those 
funds have been referred to by the parties as “89-10 
funds.”

Apart from the fact that certain personnel employed 
by use of “89-10 funds” work in both school systems, the 
faculty of the District is still essentially segregated on 
the basis of race. The plan approved originally by the 
Office of Education dealt to some extent with desegrega­
tion of faculty and staff, and the process was supposed 
to be completed not later than the end of the 1966-67 
school year. The plan contemplated limited but increasing 
use of mixed faculties during the transition period.

This suit was filed in February of the current year. 
Prior to the trial of the case the Commissioner of Edu­
cation promulgated his Revised Statement Of Policies 
For School Desegregation Plans Under Title VI Of The

Memorandum Opinion of J . Smith Henley, D.J.



232

Civil Eights Act Of 1964. That statement laid down new 
guide lines which are substantially more detailed, specific, 
and rigorous than those laid down in 1964. School dis­
tricts which had submitted plans which had been approved 
under the former guide lines were required to subscribe 
to the new ones if they desired to continue to receive 
federal aid, and the new guide lines were deemed to be 
incorporated into existing plans. On March 15, 1966, 
the Board by executing HEW Form 441-B accepted the 
new guide lines and agreed that its approved plan would 
be considered as amended so as to incorporate the new 
standards.

The most immediate complaint of plaintiffs relates to 
the proposed building construction. Plaintiffs contend that 
the construction of two new elementary school buildings 
on the Martin site and a single new elementary school 
building, providing fewer classrooms, on the Altheimer 
site will tend to perpetuate racial segregation and will 
not foster or hasten desegregation.

However, it seems to the Court that the basic com­
plaint of plaintiffs goes not so much to the construction 
and location of the new buildings but rather to the whole 
concept of freedom of choice as a means of bringing 
segregation to an end as commanded by the decisions 
of the Supreme Court in the Brown cases, and by numerous 
decisions of other federal courts including this one. As 
will be seen, this is not the first time that freedom of 
choice has been attacked in Arkansas by Negroes.

Apart from their general attack on freedom of choice 
as a means of desegregation, plaintiffs assert that the 
Board’s plan is in itself an inadequate freedom of choice 
plan as far as students are concerned, and that it is an 
inadequate tool for the ending of staff and faculty desegre-

Memorandum Opinion of J. Smith Ilenley, D.J.



233

gation. They complain also that Negro teachers are be­
ing discriminated against salarywise, and they complain 
about the fact that the Altheimer High School enjoys a 
higher academic rating than does the Martin High School.

A subsidiary complaint, and one not directly involved 
here but about which evidence was introduced, is that 
the Board spent “89-10 funds” on the formerly all-white 
system which should have been spent on the Negro system.

The District denies that the complaints have merit. It 
contends that the desegregation plan approved in August 
1965 was a sufficient plan both as to student body and 
faculty, but that if there were any defects in it, they have 
been supplied by the new guide lines and the Board’s 
adherence thereto; they deny discrimination against Ne­
gro teachers, and deny that there is any substantial dif­
ference between the two school systems notwithstanding 
the disparity between the academic ratings of Altheimer 
High School and Martin High School. As to the building- 
program, the District denies that its planned construction 
violates any constitutional rights of Negroes, and, indeed, 
it argues that the construction will hasten final desegrega­
tion.

I.

At the outset of discussion of the contentions of the 
parties it must be kept in mind that the concern of this 
Court is solely with whether the administrative actions 
of the Board about which plaintiffs complaint are violative 
of the 14th Amendment to the Constitution of the United 
States. If the actions in question constitute “invidious 
racial discrimination” outlawed in Broivn, intervention by 
this Court may be required. If they do not, the complaint 
must be dismissed.

Memorandum Opinion of J. Smith Henley, D.J.



234

The Commissioner of Education in administering the 
Civil Eights Act of 1964 is, of course, concerned with 
the elimination of unconstitutional racial discrimination 
in the schools. But, the Commissioner, unlike the Court, 
may well be, and probably is, concerned with much more. 
It seems obvious to the Court that the Commissioner is 
carrying out a broad program of social welfare in the 
field of education, involving the granting or withholding 
of federal funds, and that the ultimate goal which he is 
seeking to achieve may well go beyond what the Consti­
tution requires.

For example, if the view taken by Judge Parker in 
Briggs v. Elliott, E.D. S.C., 132 F.Supp. 776, that the 
Constitution simply forbids compulsory segregation and 
does not require affirmative integration of the public 
schools, a view which up to this time at least has found 
some acceptance by the federal district courts sitting in 
Arkansas,6 is still good law, then the Commissioner is 
clearly going further than the Constitution requires since 
a reading of the new guide lines discloses that the aim 
of the Office of Education is to fully integrate public 
school student bodies and faculties and to eliminate dual 
school facilities.

But, however that may be, the function of the federal 
courts in school desegregation contexts is different from 
that of the Office of Education. Standards or guide lines 
laid down by the agency are entitled to consideration in 
evaluating the acceptability of a desegregation plan from 
the judicial standpoint, but they are not binding on the 
Courts; the Courts may “require something more, less

Memorandum Opinion of J. Smith Henley, D.J.

6 See, however, the language of the Court of Appeals for this Circuit 
in Kemp v. Beasley, 8 Cir., 352 F. 2d 14, 21-22.



235

or different from the (agency) guide lines.” Kemp v. 
Beasley, supra, 352 F. 2d at 19.

II.
In appraising plaintiffs’ basic attack on freedom of 

choice as a means of ending racial discrimination in the 
public schools, one must start with the proposition that 
the Supreme Court in the Brown cases held that compulsory 
racial segregation in the schools amounts to discrimina­
tion and is unconstitutional. However, Brown did not 
require the immediate end of all segregation, but per­
mitted its end in proper circumstances over periods of 
time and by means of transitional plans. While such 
plans continue in effect, it is clear that unconstitutional 
discrimination exists, and in passing upon a transitional 
plan the Court is concerned with whether the plan, al­
though unconstitutional, is, nevertheless, within the “tol­
erance of Brown.” 6 In order for a plan to be within that 
tolerance it must be designed to eliminate, and be capable 
of eliminating, compulsory and unlawful racial segrega­
tion within a reasonable period of time. That principle 
was recognized both by the Court of Appeals and by this 
Court in the series of opinions growing out of the Dol­
larway School Case, which, like this one, arose in Jeffer­
son County. See in addition to Parham v. Dove, 8 Cir., 
271 F. 2d 132, Dove v. Parham, 8 Cir., 282 F. 2d 256; 
Dove v. Parham, E.D. Ark., 181 F.Supp. 504; Dove v. 
Parham, E. D. Ark., 183 F.Supp. 389; and Dove v. Parham, 
E. D. Ark., 194 F.Supp. 112.

As the Court understands it, plaintiffs’ argument that 
freedom of choice cannot bring an end to unlawful segrega-

6 The phrase is drawn from the language of Judge Johnsen in Parham 
v. Dove, 8 Cir., 271 F. 2d 132, 137.

Memorandum Opinion of J. Smith Henley, D.J.



236

tion and can at best produce but “token desegregation” 
or “token integration” is based on two premises: (1) That 
white students will not request assignments to Negro 
schools. (2) That the general run of Negro students will 
not apply for assignments to formerly all white schools 
because of fear of violence or economic reprisals. Hence, 
plaintiffs contend that freedom of choice will not bring 
white students into schools identified as Negro schools 
and will bring into the formerly all white schools only 
Negroes of exceptional initiative and fortitude.

As freedom of choice may be affected by new school 
construction or by improvements to existing facilities, 
plaintiffs’ argument would seem to be that it requires 
considerable motivation for a Negro student to ask for 
assignment to a formerly all white school. The building 
of new Negro schools or the improvement of existing 
ones will not move the white students to ask to go there, 
and, on the other hand, it will diminish Negro motivation 
to ask for transfers. Thus, new Negro construction or 
improvements to the Negro school plant tends to per­
petuate segregation or at least to slow down desegregation.

The Court has little trouble with plaintiffs’ first premise 
that if given a choice white students will remain in all 
white schools or in predominantly white schools. The 
second premise that generally Negro students will not 
ask for transfers to formerly all white schools may or 
may not have some basis in fact, and may or may not 
have some validity from a purely sociological standpoint. 
The Court does not think it necessarily valid from a 
legal and constitutional viewpoint.

If the doors of the formerly all white schools are freely 
opened to Negro students so that they can go there when 
and if they choose, and if they are permitted to go back

Memorandum Opinion of J. Smith Henley, D.J.



237

to their original schools if dissatisfied with the transferee 
schools, it would seem to the Court that the Constitutional 
requirement of the 14th Amendment has been met. Cf. 
Briggs v. Elliot, supra. If a person is given freedom of 
action, the Court does not know that he is being subjected 
to discrimination in the Constitutional sense merely be­
cause he may be afraid or reluctant to exercise his right 
of choice. Of course, he is entitled to be protected in 
the exercise of his legal rights from the unlawful activities 
of others, and judicial notice may be taken of the fact 
that such protection is available to Negro students seek­
ing to attend formerly all white schools.

Nor does the Court know that Negro students as a class 
are unwilling to ask for assignment to formerly all white 
schools. The Court does know, and counsel know, that at 
least in certain Arkansas school districts substantial num­
bers of Negro students have requested transfers or as­
signments to formerly all white facilities. That is certainly 
true in Little Bock. It was even more true at Morrilton 
where all but four of the Negro students enrolled in 
Grades 7-12 chose to be assigned to new formerly all 
white facilities at the commencement of the current school 
year, the effect of the choices being to force the Morrilton 
School Board to close the formerly all Negro Sullivan 
High School.

In any event, freedom of choice as a method of class­
room desegregation has been approved by this writer as a 
permissible method in the El Dorado School case, and 
on that point the writer’s decision was upheld by the 
Court of Appeals, at least to the extent that freedom of 
choice may be regarded at this time as a permissible 
starting point. Kemp v. Beasley, supra. And it has also 
been approved in the West Memphis School case. Yar-

Memorandum Opinion of J. Smith Henley, D.J.



238

brougii v. Hulbert-West Memphis School District No. 4, 
E.D. Ark., 243 F.Supp. 65. Further, it is to be noted that 
the new guide lines themselves give recognition to free­
dom of choice as a permissible means of desegregation 
in certain circumstances. See Revised Statement Of Poli­
cies etc., Subpart B, §181.11, and all of Subpart D.

Taking into account the state of the law in this Circuit 
and the administrative recognition of freedom of choice 
as an acceptable method in some circumstances, the Court 
rejects for the present at least the attack on freedom of 
choice itself.

Memorandum Opinion of J. Smith Henley, D.J.

III.

Coming now to the permissibility of the Board’s desegre­
gation plan as an individual plan, the promulgation of 
the new guide lines in March of the current year, which 
standards have been incorporated into the Board’s plan, 
makes it unnecessary for the Court to consider the ade­
quacy of the plan as it was written when it was approved 
in August 1965. The Court will observe that the plan as 
approved last summer was somewhat more liberal than 
was the plan which the Court of Appeals permitted to be 
put into effect at El Dorado and was also somewhat more 
liberal than the West Memphis plan approved in Yar­
brough, supra.7

The Court must assume that the Office of Education 
will adhere to and enforce the new guide lines, and that 
the Board and staff of the defendant District will obey 
them. And the Court is convinced that if the guide lines 
are enforced and obeyed, the Board’s plan incorporating 
the guide lines amounts to a prompt and reasonable start

7 There was no appeal from the decision in the Yarbrough case.



239

toward the elimination of unconstitutional racial discrim­
ination within a reasonable time and is within the tolerance 
if not beyond the requirements of Brown.

Subpart D of the guide lines deals in detail with addi­
tional requirements imposed on school districts seeking 
to effect desegregation by means of freedom of choice 
plans. Section 181.54 which relates to the complaints of 
Negroes that freedom of choice is not an effective method 
for ending segregation is as follows:

“Requirements for Effectiveness of Free Choice 
Plans. A free choice plan tends to place the burden 
of desegregation on Negro or other minority group 
students and their parents. Even when school author­
ities undertake good faith efforts to assure its fair 
operation, the very nature of a free choice plan and 
the effect of longstanding community attitudes often 
tend to preclude or inhibit the exercise of a truly 
free choice by or for minority group students.

“For these reasons, the Commissioner will scrutinize 
with special care the operation of voluntary plans 
of desegregation in school systems which have adopted 
free choice plans.

“In determining whether a free choice plan is oper­
ating fairly and effectively, so as to materially further 
the orderly achievement of desegregation, the Com­
missioner will take into account such factors as com­
munity support for the plan, the efforts of the school 
system to eliminate the identifiability of schools on 
the basis of race, color, or national origin by virtue 
of the composition of staff or other factors, and the 
progress actually made in eliminating past discrim­
ination and segregation.

Memorandum Opinion of J. Smith Henley, D.J.



240

“The single most substantial indication as to whether 
a free choice plan is actually working to eliminate 
the dual school structure is the extent to which Negro 
or other minority group students have in fact trans­
ferred from segregated schools. Thus, when substan­
tial desegregation actually occurs under a free choice 
plan, there is strong evidence that the plan is oper­
ating effectively and fairly, and is currently acceptable 
as a means of meeting legal requirements. Con­
versely, where a free choice plan results in little or 
no actual desegregation, or where, having already 
produced some degree of desegregation, it does not 
result in substantial progress, there is reason to be­
lieve that the plan is not operating effectively and 
may not be an appropriate or acceptable method of 
meeting constitutional and statutory requirements.

“As a general matter, for the 1966-67 school year 
the Commissioner will, in the absence of other evi­
dence to the contrary, assume that a free choice plan 
is a viable and effective means of completing initial 
stages of desegregation in school systems in which a 
substantial percentage of the students have in fact 
been transferred from segregated schools. Where a 
small degree of desegregation has been achieved and, 
on the basis of the free choice registration held in the 
spring of 1966, it appears that there will not be a 
substantial increase in desegregation for the 1966-67 
school year, the Commissioner will review the working 
of the plan and will normally require school officials 
to take additional actions as a prerequisite to continued 
use of a free choice plan, even as an interim device.

“In districts with a sizable percentage of Negro or 
other minority group students, the Commissioner will,

Memorandum Opinion of J. Smith Henley, D.J.



241

in general, be guided by the following criteria in 
scheduling free choice plans for review:

“ (1) If a significant percentage of the students, such 
as 8 percent or 9 percent, transferred from segregated 
schools for the 1965-66 school year, total transfers 
on the order of at least twice that percentage would 
normally be expected.

“ (2) If a smaller percentage of the students, such as 
4 percent or 5 percent, transferred from segregated 
schools for the 1965-66 school year, a substantial in­
crease in transfers would normally be expected, such 
as would bring the total to at least triple the per­
centage for the 1965-66 school year.

“(3) If a lower percentage of students transferred 
for the 1965-66 school year, then the rate of increase 
in total transfers for the 1966-67 school year would 
normally be expected to be proportionately greater 
than under (2) above.

“(4) If no students transferred from segregated 
schools under a free choice plan for the 1965-66 school 
year, then a very substantial start would normally 
be expected, to enable such a school system to catch 
up as quickly as possible with systems which started 
earlier. If a school system in these circumstances is 
unable to make such a start for the 1966-67 school 
year under a free choice plan, it will normally be re­
quired to adopt a different type of plan.

“Where there is substantial deviation from these 
expectations, and the Commissioner concludes, on the 
basis of the choices actually made and other available 
evidence, that the plan is not operating fairly, or is

Memorandum, Opinion of J. Smith Henley, D.J.



242

not effective to meet constitutional and statutory re­
quirements, he will require the school system to take 
additional steps to further desegregation.

“Such additional steps may include, for example, 
reopening of the choice period, additional meetings 
with parents and civic groups, further arrangements 
with State or local officials to limit opportunities for 
intimidation, and other further community prepara­
tion. Where schools are still identifiable on the basis 
of staff composition as intended for students of a 
particular race, color, or national origin, such steps 
must in any such case include substantial further 
changes in staffing patterns to eliminate such iden- 
tifiability.

“If the Commissioner concludes that such steps 
would be ineffective, or if they fail to remedy the 
defects in the operation of any free choice plan, he 
may require the school system to adopt a different 
type of desegregation plan.”

Section 181.13 of the guide lines deals with faculty and 
staff desegregation and is as follows:

“Faculty and Staff.

“(a) Desegregation of Staff. The racial composi­
tion of the professional staff of a school system, and 
of the schools in the system, must be considered in 
determining whether students are subjected to dis­
crimination in educational programs. Each school sys­
tem is responsible for correcting the effects of all past 
discriminatory practices in the assignment of teachers 
and other professional staff.

Memorandum Opinion of J. Smith Henley, D.J.



243

“(b) New Assignments. Race, color, or national 
origin may not be a factor in the hiring or assignment 
to schools or within schools of teachers and other 
professional staff, including student teachers and staff 
serving two or more schools, except to correct the 
effects of past discriminatory assignments.

“ (c) Dismissals. Teachers and other professional 
staff may not be dismissed, demoted, or passed over 
for retention, promotion, or rehiring, on the ground 
of race, color, or national origin. In any instance 
where one or more teachers or other professional 
staff members are to be displaced as a result of 
desegregation, no staff vacancy in the school system 
may be filled through recruitment from outside the 
system unless the school officials can show that no 
such displaced staff member is qualified to fill the 
vacancy. If as a result of desegregation, there is to 
be a reduction in the total professional staff of the 
school system, the qualifications of all staff members 
in the system must be evaluated in selecting the staff 
members to be released.

“(d) Past Assignments. The pattern of assignment 
of teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students of a 
particular race, color, or national origin, or such that 
teachers or other professional staff of a particular 
race are concentrated in those schools where all, or 
the majority of, the students are of that race. Each 
school system has a positive duty to make staff as­
signments and reassignments necessary to eliminate 
past discriminatory assignment patterns. Staff deseg-

Memorandum Opinion of J. Smith Henley, D.J.



244

regation for the 1966-67 school year must include 
significant progress beyond what was accomplished 
for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time 
basis. Patterns of staff assignment to initiate staff 
desegregation might include, for example: (1) Some 
desegregation of professional staff in each school in 
the system, (2) the assignment of a significant por­
tion of the professional staff of each race to partic­
ular schools in the system where their race is a 
minority and where special staff training programs 
are established to help with the process of staff 
desegregation, (3) the assignment of a significant por­
tion of the staff on a desegregated basis to those 
schools in which the student body is desegregated, 
(4) the reassignment of the staff of schools being 
closed to other schools in the system where their race 
is a minority, or (5) an alternative pattern of assign­
ment which will make comparable progress in bringing 
about staff desegregation successfully.”

The sections of the guide lines which have been quoted 
above and other sections dealing with other phases of the 
problems incident to desegregation are designed to ac­
complish the ultimate objective of the agency expressed 
in section 181.2, which is to eliminate any practices in 
violation of Title VI of the Act “including the continued 
maintenance of a dual structure of separate schools for 
students of different races.”

The ability of the agency to achieve its objective by its 
control over federal funds can hardly be questioned. In­
deed, even under the old guide lines it was able to achieve 
in a little over a year more desegregation than had been

Memorandum Opinion of J. Smith Henley, D.J.



245

achieved under the combined pressure of all of the federal 
injunctions issued during the decade following the second 
Brown decision.

Memorandum Opinion of J. Smith Henley, D.J.

IY.
What has been said about freedom of choice and about 

the new guide lines is, from a practical standpoint, dis­
positive of plaintiffs’ complaint about the new construc­
tion, assuming that a federal court’s jurisdiction in a 
desegregation case may in certain circumstances extend 
so far as to justify interference with a school district’s 
building program, cf. Wheeler v. The Durham City Board 
of Education, 4 Cir., 346 F. 2d 768; Board of Public In­
struction of Dade County, Florida v. Braxton, 5 Cir., 326 
F. 2d 616.

If the defendant District can use freedom of choice, 
subject to the restrictions and requirements of the new 
guide lines, to bring about desegregation, as the Court 
holds that it can, there is no constitutional objection to 
the District’s constructing buildings on both of its sites or 
to the building of more classrooms on the Martin site than 
on the Altheimer site. As desegregation proceeds under 
the guide lines, it is clear that both sites will be used for 
the benefit of students of both races. It must be remem­
bered that when two school sites rather than one were 
established, the maintenance of dual school systems was 
generally if not universally considered to be constitutional, 
and there is nothing in the constitution which says that 
the District must now abandon one of its sites. As stated, 
the two sites are close together, and they can be used 
conveniently as components of the unitary school system 
wThich is now foreseeable.



246

On this phase of the case the Court has given due con­
sideration to the deposition of Dr. Myron Lieberman, 
Director of Education Research & Development and Pro­
fessor of Education at Rhode Island College, Providence, 
R.I. That deposition was taken post-trial at the instance 
of plaintiffs, was transcribed, and filed as part of the 
record in the case.

The opinion of Dr. Lieberman is that apart from pre­
serving or prolonging segregation within the schools of the 
defendant District there is no educational, financial, or 
other legitimate basis for the District’s maintenance of 
two separate school complexes or for the construction of 
elementary school buildings on both the Martin site and 
the Altheimer site. Dr. Lieberman is of the view that 
segregation should be eliminated and the Civil Rights 
Act of 1964 complied with by concentrating all of the 
elementary students at the Martin site and all of the 
secondary students at the Altheimer site.

The Court is not concerned here with whether it is wise 
or economical for the District to maintain the two sites 
or to construct elementary classroom buildings on both 
sites. The Court is not convinced that in planning the 
new construction and in adhering to its plan following 
the passage of the Act the Board was motivated by a 
desire to perpetuate segregation, or that the effect of the 
construction will have that effect.

Certainly, Dr. Lieberman’s proposed solution to the 
problem would be a constitutionally permissible one, but 
it is not the only solution which the Constitution permits.

VI.

Evidence has been introduced relative to salaries paid to 
Negro teachers as compared to salaries paid to white

Memorandum Opinion of J. Smith Henley, D.J.



247

teachers. The Court will assume that Negro students or 
their parents have standing to complain about teachers’ 
salaries as well as about faculty segregation, although the 
Court seriously doubts the validity of that assumption. 
The Court will also assume that the evidence would justify 
a finding that in instances Negro teachers are paid less 
than white teachers of comparable education, training, 
teaching experience, and tasks. However, the Court is not 
able to find from a preponderance of the evidence that 
salary differentials adverse to Negroes, to the extent that 
they may exist, are due to racial discrimination. The Dis­
trict has never had formal salary schedules and individual 
teachers are hired on the basis of individual bargaining. 
Superintendent James Walker denied in his testimony that 
he considered race in working out with teachers the amounts 
of their compensation; there was no testimony to the 
contrary.

Perhaps the Court would pay more attention to this 
phase of the case were it not for the fact that Mr. Walker 
testified that salary schedules would be put into effect 
at the beginning of the 1966-67 school year, and that those 
schedules would have no racial differentials.

Plaintiffs introduced evidence as to the alleged misuse 
of “89-10 funds” for the purpose of showing a discrim­
inatory attitude toward Negroes on the part of the school 
authorities. 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. After all, it would be strange if the only under 
priviliged or deprived children in the District were Ne­
groes.

It is true that the accreditation enjoyed by Altheimer 
High School is higher than that of the Martin High School,

Memorandum Opinion of J. Smith Henley, D.J.



248

but there is nothing that the Court can do about that at 
this time. The officials of the District have been made 
aware of the requirements of the North Central Associa­
tion with respect to the Martin High School and are under­
taking to meet those requirements. Actually, apart from 
formal accreditation there is no marked difference between 
the two school systems.

The Court is mindful that recently Judge Gordon E. 
Young had occasion to consider similar litigation involving 
a school construction program at Gould, Lincoln County, 
Arkansas (Raney et al. v. The Board of Education of The 
Gould School District, Docket No. PB-65-C-45), and to 
deny injunctive relief. While the cases are not identical, 
the result in the Gould case is persuasive here.

VII.
From what has been said it follows that the complaint 

herein must be dismissed in its entirety. To allay one 
expressed fear of counsel for plaintiffs the Court wishes 
to make it clear that the dismissal will leave the problem 
of desegregating the District’s schools exactly where it 
was before the suit was filed, that is to say, in the hands 
of the District and the Office of Education. The dismissal 
should not be construed by anyone as placing the District 
in the status of a district which is meeting its desegrega­
tion obligations under a “desegregation order of a Federal 
court within the meaning of Section 181.2 of the guide 
lines.

Dated this 3rd day of June, 1966.

/ s /  J. Smith Henley 
J. Smith Henley 
United States District Judge

Memorandum Opinion of J. Smith Henley, D.J.



Judgment

(Filed June 3, 1966)

Pursuant to memorandum opinion entered this date the 
complaint herein is dismissed.

Dated this 3rd day of June, 1966.

/ s /  J. Smith Henley 
J. Smith Henley 
United States District Judge



MEILEN PRESS INC. —  N. Y. C. 219