Motion to Vacate Suspension of and Reinstate Order Pending Certiorari with Exhibits

    UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

IN THE

No. 18,693.

DELOIS YARBROUGH ET A L ,
Appellants,

v.
HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4 OF 

CRITTENDEN COUNTY, ARKANSAS, ET A L , 
Appellees.

On Appeal from the United States District Court for the 
Eastern District of Arkansas, Jonesboro Division.

APPELLEES' BRIEF.

HERSCHEL H. FRIDAY and 
G. ROSS SMITH,

1100 Boyle Building,
Little Rock, Arkansas 72201, 

Attorneys for Appellees.

St. L ouis L a w  Printing Co., I nc., 411-15 N. E ighth  St., 63101. CEntral 1-4477.



INDEX.
Page

Statement of Case ............................................................. 1

Statement of Points to Be A rgu ed ................................. 4

Argument:
I. The District Court Was Correct in Approving 

Appellees’ Plan for Desegregation of Faculty and 
Staff ............................................................................  5

II. The District Court Properly Dismissed the Case 
Since All Issues Had Been A djudicated................ 15

Conclusion............................... .......................... .................  17

Table of Cases.
Aaron v. Cooper, 169 F. Supp. 325 (E. D. Ark. 1959). .4,16 
Bradley v. School Board of the City of Richmond,

382 U. S. 103 (1965) ..................................... ...............  4, 5
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. Car.

1955) .................................................................................. 4,16
Brown v. Board of Education of Topeka, 347 U. S. 483

(1954 )............................................................................ 4,5,15
Clark v. Board of Education of Little Rock, 369 F. 2d 

661 (8th Cir. 1966) ................................. 4, 6, 7, 8,10,12,15
Dowell v. Oklahoma Board of Education, . . .  F. 2d 

. . .  (10 Cir. No. 8523 January 23, 1967), Affirming
244 F. Supp. 971 (W. D. Okla. 1967) ......................... 4,14

Kier v. County School Board of Augusta County, 249
F. Supp. 239 (E. D. Va. 1966) ............................. 4,13,14

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965)... .2,4, 6,15 
Smith v. Board of Education of Morrilton School Dis­

trict No. 32, 365 F. 2d 770 (8th Cir. 1966)..............4, 7,11
United States v. Jefferson County School Board . . .

F. 2d . . .  (5th Cir. No. 23345, Dec. 29,
1966) 4, 5,12,15,16



UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

IN THE

No. 18,693.

DELOIS YARBROUGH ET A L ,
Appellants,

v.
HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4 OF 

CRITTENDEN COUNTY, ARKANSAS, ET AL., 
Appellees.

On Appeal from the United States District Court for the 
Eastern District of Arkansas, Jonesboro Division.

APPELLEES’ BRIEF.

STATEMENT.

Appellants’ statement contains errors of omission and 
misplaced emphasis, and Appellees, in this Statement, 
will set forth factors necessary for a proper orientation 
to the issues presented in this appeal.

In response to the Appellees’ original Desegregation 
Plan, Appellants noted nine features of the plan to which 
they objected. One of these objections was that as pro­
posed, the provisions relating to faculty and staff de­
segregation were inadequate. The primary objection



2

was that the desegregation plan was defective in that it 
made no provision for “ establishing a set of school zone 
lines on a non-racial basis.”  See 243 F. Supp. at 69. 
After a hearing, the Plan was approved and the pro­
visions for staff desegregation were foxmd constitutionally 
adequate “ at this time,”  with the understanding that the 
Appellees would continue these efforts in accordance with 
added knowledge to be derived from their experiences 
with the problem. 243 F. Supp. 65.

After the Appellants filed Notice of Appeal, the parties 
agreed to amend the Plan to conform to the decision of 
this Court in Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 
1965). No changes were made in the provisions of the 
Plan pertaining to faculty and staff desegregation or in 
any commitments of Appellees with reference thereto but 
Appellees did agree to submit a progress report on faculty 
and staff desegregation. Such a report was filed and its 
contents are set forth in Section II of this brief. Appel­
lants objected to the report. Thereafter a Supplemental 
Report on faculty and staff desegregation was filed, the 
contents of which are also set forth in Section II of this 
brief. Both of the reports filed by Appellees were treated 
as amendments to the Plan.

As noted in the Memorandum Letter Opinion of No­
vember 21, 1966, Appellants then requested a ruling on 
the question of the adequacy of the Plan as it related to 
faculty and staff desegregation. By Memorandum Letter 
Opinion of September 29, 1966, the Plan as amended was 
approved, but Appellees were requested to adopt a “ con­
crete”  expression of policy suggested by the District 
Court. Appellees did so. The Court found that Appellees 
had made a “ meaningful start”  toward achieving faculty 
and staff desegregation. The District Court having 
deemed the matter to have been fully submitted, an Order 
was entered on October 28, 1966 approving the Plan as 
amended and dismissing the cause.



Appellants then filed a “ Motion for New Trial and/or 
to Amend the Judgment,”  in which the Court was in­
formed that Appellants then desired “ to investigate 
faculty and staff desegregation in the district”  and to 
retain their educational expert to “ survey the school sys­
tem”  and report to the Court. See Appellants’ Motion 
filed November 4, 1966. This action of Appellants was 
clearly untimely, and the Court denied the Motion and 
dismissed the cause, again finding that all issues had been 
fully adjudicated and that the orderly administration of 
its docket required the dismissal of the cause. There­
after, Appellants prosecuted this appeal.

— 3 —



— 4 —

STATEMENT OF POINTS TO BE ARGUED.

I.

The District Court Was Correct in Approving Appellees’ 
Plan for Desegregation of Faculty and Staff.

Bradley v. School Board of the City of Richmond, 
382 U. S. 103 (1965);

Brown v. Board of Education of Topeka, 347 U. S. 
483 (1954);

Clark v. Board of Education of Little Rock, 369 F. 2d 
661 (8th Cir. 1966);

Dowell v. Oklahoma Board of Education, . . .  F. 2d 
. . .  (10th Cir. No. 8523, January 23, 1967), A f­
firming 244 F. Supp. 971 (W. D. Okla. 1967); 

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965);
Kier v. County School Board of Augusta County, 249 

F. Supp. 239 (E. D. Va. 1966);
Smith v. Board of Education of Morrilton School Dis­

trict No. 32, 365 F. 2d 770 (8th Cir. 1966); 
United States v. Jefferson County School Board, . . .  

F. 2d . . .  (5th Cir. No. 23345, Dec. 29, 1966).

II.

The District Court Properly Dismissed the Case Since 
All Issues Had Been Adjudicated.

Aaron v. Cooper, 169 F. Supp. 325 (E. D. Ark. 1959); 
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. Car. 

1955);
Brown v. Board of Education of Topeka, 347 U. S. 483 

(1954);
United States v. Jefferson County School Board,

F. 2d . . .  (5th Cir. No. 23345, Dec. 29, 1966).



— 5 —

ARGUMENT.

I .

The District Court Was Correct in Approving Appellees’ 
Plan for Desegregation of Faculty and Staff.

Since the United States Supreme Court’s decision in 
Bradley v. School Board of the City of Richmond, 382
U. S. 103 (1965), increased attention has been directed to 
the problems involved in the desegregation of faculties 
and staffs of school board attempting to comply with the 
Civil Rights Act, the Health, Education and Welfare guide­
lines and decisional law on the subject. While recogniz­
ing the possible effect of faculty segregation upon the 
operation of desegregation plans and the need for con­
scientious activity to secure the expeditious desegregation 
of faculty and staff composition, all courts faced with this 
problem have shown an awareness of the delicate balance 
between the desirability of faculty desegregation and the 
preservation of some semblance of educationally sound re­
lationships between teachers and their students. Even the 
most drastic decision to date, United States v. Jefferson 
County School Board, . . .  F. 2d . . .  (5th Cir. No. 23345, 
December 29, 1966), concedes this point:

“ The most difficult problem in the desegregation 
process is the integration of faculties.

# # # # # # #
“ Everyone agrees, on principle, that the selection 

and assignment of teachers on merit should not be 
sacrificed just for the sake of integrating faculties; 
teaching is an art.”  p. 106.

In Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965), this 
Court held that the dictates of Brown v. Board of Edu­
cation of Topeka, 347 U. 8. 483 (1954), and the Civil 
Rights Act of 1964, require the desegregation of teaching



staffs as well as the elimination of discrimination in ad­
mission of students. The desegregation plan presented 
by the board in Kemp and approved by the District Judge 
contained no provisions for achieving faculty desegrega­
tion. Plaintiffs objected to this feature of the plan and 
urged this Court on appeal to order the adoption and 
implementation of a faculty desegregation plan which 
would embody specific and detailed rules to be adhered to. 
In rejecting this approach, the Court agreed that at the 
inception of the desegregation plan, there was no justifi­
cation for the imposition of stringent procedures regard­
ing faculty desegregation. Rather,

“  [T]he Court feels, . . .  as did the District Judge, 
that this is a situation which will be corrected by 
the Board during the transitional period.”  Kemp v. 
Beasley, supra, at p. 22.

Thus while urging the necessity for action to bring the 
Board into compliance with the law, this Court saw no 
need to “ hamstring”  the board in its dealings with 
teachers and staff members.

The problem of faculty desegregation was again pre­
sented to this Court in Clark v. Board of Education of
Little Rock, 369 F. 2d 661 (8th Cir. 1966). The plaintiffs 
urged that the desegregation plan was fatally defective 
in that it contained no specific outlines for faculty and 
staff desegregation. This Court held that the desegrega­
tion plan was deficient in so far as it dealt with faculty 
and staff desegregation, noting that the real purport of 
this feature of the plan was nothing more than a declara­
tion of intention. To achieve satisfactory faculty and 
staff desegregation, it was deemed necessary to incorpo­
rate into the plan, first, a positive pledge that future 
employment, assignment, transfer and discharge of teach­
ers would be free from racial considerations. Second, 
“ should the desegregation process cause the closing of



schools employing individuals predominantly of one race, 
the displaced personnel should, at the very minimum, 
be absorbed into vacancies appearing in the system.”  
Third, “ whenever possible, requests of individual staff 
members to transfer into minority situations should be 
honored by the Board.”  Finally, this Court urged the 
adoption of all additional positive commitments necessary 
to secure “ some measure of racial balance”  in school 
staffs.

It should be noted that the plan attacked in this appeal 
compares favorably with the suggestions set forth in 
Clark. The Hulbert-West Memphis Board has adopted 
a pledge as suggested in Clark which states:

“Vacancies on the teaching and professional staff 
shall be filled by employment of the best qualified 
available applicant without regard to race, and it is 
hereby declared to be the policy of this district to 
accept and consider all applications for employment 
without regard to race.

* # # # # # #
“Race or color will henceforth not be a factor in 

the hiring, assignment, reassignment, promotion, de­
motion, or dismissal of teachers and other profes­
sional staff, with the exception that assignments may 
be made to further the progress of desegregation.” 1

As to school personnel displaced by the closing of schools 
employing individuals predominantly of one race, Smith 
v. Board of Education of Morrilton School District No.
32, 365 F. 2d 770 (8th Cir. 1966), held that such displaced 
personnel should, at the very minimum, be absorbed into 
vacancies appearing in the system. Of course, Appellees 
accept this ruling as binding whether it is inserted in the 
Desegregation Plan or not. Thirdly, there has been no 
intimation throughout these proceedings that any in-

l Letter to District Court dated October 6, 1966.



dividual staff members have ever requested a transfer 
into a minority situation, or that such a request had ever 
been denied. Furthermore, according to the Hulbert-West 
Memphis Plan as it now stands, any transfer, assignment 
or reassignment of a faculty or staff member must be made 
without regard to race, except “ that assignments may be 
made to further the progress of desegregation.” Thus it 
would appear that this transfer procedure recommended in 
Clark is substantially the same as that presently existing 
in the Hulbert-West Memphis Plan.

As to other “positive commitments” necessary to achieve 
faculty and staff desegregation, the Hulbert-West Mem­
phis Board has included the following provision in its 
Plan:

“ . . . All applicants for positions of employment 
in this district shall be informed that Hulbert-West 
Memphis operates a racially desegregated school sys­
tem, that the teachers and other professional person­
nel in this district are subject to assignment in the 
best interest of the school system without regard to 
race or color, and that teachers shall be subject to 
being employed in integrated teaching situations.

— 8 —

By this proviso Appellees hope to eliminate a serious ob­
stacle to faculty desegregation. It has been correctly rec­
ognized, judicially and otherwise, that some teachers 
simply will not teach in a minority situation or in a de­
segregated school. By directing attention to the possibil­
ity of such an assignment, the Board may be able to main­
tain its force of teachers without resignations resulting 
from a teacher’s refusal to be assigned to an integrated 
situation.

All faculty meetings, teachers’ meetings, principals’ 
meetings and in-service workshops are being conducted 2

2 Ibid.



on an integrated and non-racial basis. Classroom teach­
ers’ salaries have been equalized, with the consequent 
elimination of any difference in rate of pay based on 
race. See Appellees’ Report tiled May 27, 1966.

In addition, as detailed in Appellees’ Report on Faculty 
and Staff Desegregation, filed with the District Court 
September 27, 1966, the Hulbert-West Memphis Board has 
instituted the following personnel innovations for the 1966 
school year concerning faculty and staff desegregation:

1. A Federal Coordinator (white) who supervises 
all schools and works mainly with Negro children.

2. A white cafeteria supervisor for schools attended 
by both white and Negro children.

3. A white social worker working in schools at­
tended by both white and Negro children, devoting 
the major portion of time to working with Negro 
children.

4. A team of nurses, one white and one Negro, who 
will work in schools attended by both white and 
Negro children.

5. A  white supervisor for elementary schools now 
being attended by Negro children. A  supervisor 
whose function will be to seek methods of eliminating 
the disparity in educational achievement levels of 
white and Negro students will oversee instructional 
methods and work with teachers and principals to 
raise the academic level of Negro students. This su­
pervisor also provides instruction to teachers conduct­
ing remedial classes. She also is responsible for the 
testing program in elementary schools of the district 
and will adapt testing methods to aid in elimination 
of educational attainment differentials between stu­
dents of different races.

6. The complete integration of students of a special 
education program in an elementary school attended

— 9 —



10 —

predominantly by white children. The program will 
be conducted by one white and one Negro teacher.

7. A  Negro music teacher teaching in the elementary 
schools attended predominantly by white children.

8. The scheduling of positions for a Negro librarian 
in a predominantly white Junior High School and a 
white librarian in a Junior High School now attended 
by Negro students.

In spite of the positive commitments relating to faculty 
and staff desegregation contained in the Appellees’ Plan 
and the specific activities enumerated above, Appellants 
characterize these efforts of the Hulbert-West Memphis 
District as vague and indefinite. The Appellants would 
have this Court impose a plan of faculty staff desegrega­
tion on the Appellee, whereby an arbitrary mathematical 
ratio would be used to “ balance”  the racial composition 
of the district’s faculties and staffs. Under this plan 
(which was also urged and rejected by this Court in 
Clark), Appellees would be required to re-allocate teach­
ers in the district on a purely racial criterion so that the 
proportion of Negro and white teachers in each school in 
the district would equal the proportion of Negro and white 
teachers in the entire school system. Pursuant to such 
a plan, in the 1966-1967 school year, each school in the 
Hulbert-West Memphis District would have been required 
to have a faculty composed of 45.8% Negro teachers and 
54.2% white teachers.3

It is submitted that the selection and assignment of 
faculty members is no place for the employment of an 
arbitrary criterion having no educational significance 
whatever. The operation of such a plan would involve a 
complete sacrifice of quality considerations in favor of

3 At the inception of the 1966-67 school year the Hulbert-West Mem­
phis District employed 240 teachers, 110 of whom are Negro and 130 
of whom are white. See Answer to Interrogatory No. 2, filed July 8,



11

racial composition of faculties. The whole purpose of 
faculty and staff desegregation is to eliminate such arbi­
trary criteria from the employment and assignment of 
teachers. To argue that faculty composition should be 
based on the very factor sought to be eliminated is com­
pletely unsound, even in the context of purporting to 
correct the effects of past assignments.

This Court and others have recognized that the area of 
faculty desegregation is no place for the application of 
arbitrary plans such as proposed by Appellants. In Smith 
v. Board of Education of Morrilton School District No. 32, 
365 F. 2d 770 (8th Cir. 1966), the Court stated:

“ We recognize that teaching is an art and that ex­
cellence does not depend upon knowledge, experience, 
formal training and classroom conduct alone. Fit­
ness for teaching rests upon a broad range of factors 
and encompasses numerous personality and character 
traits. See Shelton v. Tucker, supra, p. 485 of 364 
IT. S.; Beilan v. Board of Pub. Educ., 357 IT. S. 399, 
405 (1958); Adler v. Board of Educ., 342 IT. S. 485, 
493 (1952); Morris v. Williams, 149 F. 2d 703, 708 
(8 Cir. 1945); Brooks v. School Disk, supra, pp. 736- 
37 of 267 F. 2d; Safferstone v. Tucker, 235 Ark. 70, 
357 S. W. 2d 3, 4 (1962). In addition, the particular 
needs of a school district may at times genuinely re­
quire that weight indeed be given to an applicant’s 
ability to teach more than one subject, or, in addition 
to teaching, to supervise extracurricular activity. 
Nothing contained in this opinion is intended to be 
restrictive of a school board’s freedom to make full 
inquiry and to give due consideration to an appli­
cant’s qualifications and the district’s need in filling 
vacancies so long as the board does not act unreason­
ably, arbitrarily, capriciously, or unlawfully. Brooks 
v. School Dist., supra, p. 739 of 267 F. 2d. However, 
in this day race per se is an impermissible criterion



— 12

for judging either an applicant’s qualifications or the 
district’s needs.”  (365 F. 2d at 781, 782.) (Emphasis 
added.)

Even the majority opinion in United States v. Jefferson
County Board of Education, supra (characterized by the 
dissenting judge as a harsh and unwarranted extension of 
the Brown cases beyond their intended import), acknowl­
edged that the lack of experience of District Courts and 
the Fifth Circuit Court itself, in the area of faculty in­
tegration, was a factor that must be considered in framing 
orders for faculty desegregation. After noting that some 
few district courts had ordered the institution of plans 
similar to the “ ratio”  plan asserted here, the Fifth Circuit 
Court omitted any such plan from its order, commenting:

“ The goal should be an equitable distribution of 
the better teachers. We anticipate that when district 
courts and this Court have gained more experience 
with faculty integration, the Court will be able to set 
forth standards more specifically than they are set 
forth in the decrees in the instant cases.”  p. 111.

Similarly, in Clark, this Court rejected the very plait 
urged in the instant case, commenting:

“ We do not want to intrude into the specifics of or 
to unduly hinder the Board in its lawful operation of 
the local school system, but we cannot remain ob­
livious to plaintiffs’ valid constitutional objections. 
Therefore, we have attempted to protect the rights 
of plaintiffs without setting forth a detailed and rigid 
plan for accomplishing the necessary goals of proper 
notice and staff desegregation. We recognize that it 
is the responsibility of the Board to set policy and 
operate the schools, but it is also the positive duty of 
the Board to operate its schools according to the dic­
tates of the law. We prefer to rely at this time on the 
flexibility afforded by setting forth the duties of the



— 13 —

Board and allowing the Board to handle its duties 
according to the reasonable dictates of its expertise.”  
369 F. 2d at 670.

The Appellants attempt to distinguish the Court’s re­
jection of the mathematical ratio plan in Clark and the 
situation presented in this case by noting the comment 
in Clark as to “ significant progress”  having been made 
in the Little Rock District, and urging that there is no 
such element in the instant case. The distinction is not 
sound because the “ ratio”  approach is not proper under 
any circumstances, but, in any event, the commitments 
and performance (past and future) of the Hulbert-West 
Memphis District compare favorably with those of the 
Little Rock School District, even though Hulbert-West 
Memphis has been operating under a desegregation plan 
for a much shorter period of time.

It should also be noted that those situations where dis­
trict courts have seen fit to impose the “ ratio plan”  
(none in this circuit) are clearly distinguishable from the 
facts herein. For example, in Kier v. County School 
Board of Augusta County, 249 F. Supp. 239 (E. D. Ya. 
1966), although the total number of students in the sys­
tem was far in excess of the number of students in the 
Hulbert-West Memphis District,4 the total number of 
Negro teachers in the district was 25. 249 F. Supp. at 
247, Note 7. In the instant case, of 240 teachers in the 
district, 110 are Negro. Certainly this factor is an im­
portant one, as noted by Kier:

“ The number of Negro teachers in the school sys­
tem is small. It should be feasible to desegregate 
faculties and administrative staffs in the various 
schools completely for the 1966-67 school term . . . ”  
249 F. Supp. at 247.

4 Of a total of 10,000 school children in the county, slightly above 500 
were Negro (about 5% ). 249 P. Supp. at p. 240. In the Hulbert-West 
Memphis District, of 6,433 students, 3,029 are Negro and 3,404 are white. 
See Answer to Interrogatory No. 2, filed July 8, 1966,



14 —

Furthermore, in Kier, the plan did not contain a pledge 
to assign teachers to each school regardless of race and 
there had been no placements of teachers in integrated 
situations.

Likewise, in Dowell v. Oklahoma Board of Education, 
. . .  F. 2d . . .  (10th Cir. No. 8523, January 23, 1967), 
affirming 244 F. Supp. 971 (W. D. Okla. 1967), there were 
significant factors not present herein. There the District 
Court found that after eight years of operation under a 
desegregation plan, there was no tangible evidence of a 
good faith effort by the board and that the school board 
had in fact not acted in good faith “ in its efforts to 
integrate . . .  as to pupils and personnel.”  219 F. Supp. 
at 444, 445. During a six year period of operation under 
a desegregation plan,

“ Total segregation still existed as to faculty mem­
bers, administrative employees and all other support­
ing personnel within the system.”  Dowell, supra. 

Perhaps the most significant distinction in Dowell and this 
case lies in the fact that proof had established that in the 
Oklahoma district “ Negro teachers are equal in quality 
to the white teachers,”  219 F. Supp. at 444, 445 and:

“ The record reflects that a higher percentage of 
non-white teaching personnel have masters’ degrees 
than do white personnel. The superintendent of 
schools admitted there was no difference in the qual­
ity of performance between the white and non-white 
personnel.”  Dowell, supra.

It is thus seen that in the cases from other circuits 
where mathematical ratio plans have been suggested, there 
were factors present which are not present in the Hulbert- 
West Memphis District, and that such a plan applied to 
the Defendants herein would involve the most serious con­
sequences, perhaps interfering with the disestablishment 
of segregation as to students (in which the Defendants are 
already ahead of their original schedule pursuant to a vol-



— 15

nntary amendment of their plan to conform to the decision 
in Kemp v. Beasley, supra.) We emphasize that even 
though the cases cited are distinguishable, appellees posi­
tion is that a plan is unsound legally and educationally, 
even in the factual situations in which it has been in­
voked. The factors recognized in Clark, and United States 
v. Jefferson County Board of Education, supra, reflect that 
it is contrary to the best interests of all concerned.

II.

The District Court Properly Dismissed the Case Since 
All Issues Had Been Adjudicated.

Appellants allege that the action of the District Court 
in dismissing the case from its docket reflects a mis­
understanding of its duty under the Brown decision. Cer­
tainly courts cannot and should not abdicate their duty 
to test the conduct of school authorities against the stand­
ards of the Fourteenth Amendment to the Constitution. 
Appellees submit that the District Court fulfilled its obli­
gation in this regard. As stated in Brown:

“ School authorities have the primary responsibility 
for calculating, assessing, and solving these problems; 
courts will have to consider whether the action of 
school authorities constitute good faith implementa­
tion of the governing constitutional principles.”  99 
L. Ed. at 1105.

That this is exactly what the District Judge did is re­
flected in the opinion at 243 F. Supp., p. 71:

“ The question is not what the Court would do if it 
were operating the schools, but whether the defendants 
are proceeding in a permissible manner from a consti­
tutional standpoint.”

Appellants not only object to the District Court’s failure 
to retain jurisdiction, but would have this Court impose 
rigorous reporting requirements on this district and ap­



16

parently every other district in the Eighth Circuit, so 
that voluminous documents would constantly be flowing 
into the District Courts of this Circuit. Aside from the 
propriety of such an order from the standpoint of the 
scope of judicial action, the effect would be a virtual 
transformation of District Courts into an administrative 
agency, probably requiring substantial additions to physi­
cal and personnel resources. It should also be noted 
that the decision pronouncing such an order received 
a scathing attack from the third and dissenting member 
of the three judge panel hearing the appeal. See Judge 
Cox’s dissent in United States v. Jefferson County School 
Board, . . .  F. 2d . . .  (5th Cir., No. 23345, December 29, 
1966) (petition for rehearing en banc granted):

“ The colored children are not befriended and their 
lot is not improved by this unprecedented majority 
opinion and the entire school system will suffer under 
the impact of this improvident administrative direc­
tive as thus adopted by this Court.”  p. 153.

It has also been recognized many times that:
“ It is not the duty or function of the Federal 

Courts to regulate or take over and operate the pub­
lic schools. That is still the duty of the duly State- 
created school authorities * # #.” 3 Aaron v. Cooper, 
169 F. Supp. 325 (E. D. Ark. 1959); See also, for ex­
ample, Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. 
Car. 1955).

The Supreme Court has frequently urged that matters 
relating to the desegregation process be worked out 
through the exercise of a flexible equity jurisdiction of 
the District Courts. To this end, the District Judge found 
compelling reasons to dismiss the case since all issues 
had been adjudicated. As noted in the Memorandum Let­
ter Opinion of November 21, 1966:

“ The Court’s experience has been that the reten­
tion of these cases indefinitely keeps a backlog of



17

old cases oil its docket, with no really useful purpose 
served.

*  *  *  *  # #  #

The Court believes that the orderly administration 
of its docket requires the dismissal of a cause when 
all issues have been adjudicated.”

Appellants’ argument that if further litigation becomes 
necessary the institution of a new suit would be more 
burdensome than filing a complaint for further relief in 
a pending action is a mere exercise in semantics and 
untenable. It is also contrary to the experience and find­
ings of the District Judge:

“ This Court has always given priority to these 
desegregation cases, and as far as time is concerned 
there would be little or no difference between a hear­
ing on a motion in an old case and a hearing on a 
case newly filed. The clerk’s cost of filing a new ac­
tion would be $15.00, and the cost of service is not 
large.”

The District Court stands ready to receive requests for 
additional relief. On the other hand, genuine interests in 
the proper administration of justice are best served by 
keeping District Court dockets free of old cases which 
may never again come before the Court for consideration.

CONCLUSION.

Appellees respectfully submit that the Judgment of the 
District Court is correct and should be affirmed.

Respectfully submitted,
HERSCHEL H. FRIDAY and 
G. ROSS SMITH,

1100 Boyle Building,
Little Rock, Arkansas 72201, 

Attorneys for Appellees.



98