McKinley v. Aaron Statement of Appellants

    i° / i 3 /r?

SUPREME COURT OF THE UNITED STATES
October Term, 1959

No. Mil

E d I. M cK inley, et al., substitute

parties defendant, _1— -— -------——------  Appellants

v.

J ohn A aron, et al. — — --------------------- ------------Appellees

APPEAL PROM THE UNITED STATES DISTRICT COURT 
POR THE EASTERN DISTRICT OF ARKANSAS 

WESTERN DIVISION

STATEMENT OF APPELLANTS,
STATE BOARD OF EDUCATION AND 

ARCH W. FORD,
COMMISSIONER OF EDUCATION OF ARKANSAS, 

AS TO JURISDICTION

B ruce B ennett 
Attorney General 
State of Arkansas 

B en J . H arrison <
Chief Assistant Attorney General 

State of Arkansas
Attorneys for Appellants

PARAGON PR I NT! NG CO. , LITTLE ROCK



I N D E X

Page

Statement as to jurisdiction _______________ _____ _____ ;--------- ---- 1

Opinion below _________________________________________________  1

Jurisdiction ____________________________________________   1

Statutes involved ---- --------------------------------------------------------- ---—  2

Questions presented ----------------------------------------------------    3

Statement of the case __________________________ ______________  3

Conclusion ---------    7

Cases:

Aaron v. Cooper, 261 F. 2d 97 -------------------------------------------------  1

Radio Corporation of America v. United States, 95 F. Supp. 660,
Affirmed 341 U.S. 412 _____ ----------------------------------------------~ 2

St. John v. Wisconsin Employment Relations Board, 340 U.S. 411_ 2

Texas Company v. Brown, 258 U.S. 466 -------------------------------------  2

Hines v. Davidowitz, 312 U.S. 331 —------------------------------  2

Fitzhugh v. Ford, Commissioner, Ark. Law Rep., Vol. 105 --------- 5

Statutes:

Ark. Const., Amend. 7 ----------------------------------    2

Appendix --------------- --------------------------------------- -— ...-.... .... —* la



SUPREME COURT OF THE UNITED STATES
October Term, 1959

No.

E d I. M cK inley, et al., substitute

parties defendant, ___ __________ _____ Appellants
V .

J ohn A aron, et al____________________________Appellees

STATEMENT AS TO JURISDICTION

This appeal is from the decision of the United States 
District Court, Eastern District of Arkansas, Western 
Division, entered on June 18, 1959, holding Act 5, Ark. 
Acts of 1958 (2nd Ex. Sess.), as amended, unconstitutional 
and permanently enjoining these appellants from engaging 
in any acts which would directly or indirectly impede, 
thwart, delay or frustrate the execution of the approved 
plan for the gradual integration of the schools of the 
Little Rock School District. This statement is presented 
to show that the lower court erred in its decision.

OPINION BELOW

The District Court, on June 18, 1959, delivered its 
decision upon the issues raised by the supplemental com­
plaint and the answers thereto. The opinion is reported 
at 173 F. Supp. 944 and appears in the appendix hereto 
at page la.

JURISDICTION

This action, another phase of Aaron v. Cooper, 261 F. 
2d 97, and Cooper v. Aaron, 358 U. S. 1, was begun by 
plaintiffs filing a supplemental complaint pursuant to 28



9

U.S.C.A. §§2281, 2284, 2201 and 2202. The supplemental 
complaint alleged the unconstitutionality of Act 4, and 
Act 5 as amended by Act 151, Ark. Acts of 1959, and 
sought declaratory and injunctive relief. The jurisdiction 
of this Court to review by direct appeal the action of a 
three-judge court rests upon 28 U.S.C.A. §§1253 and 2201 
(b). An appeal to the Supreme Court of the United 
States from the decision of a three-judge court is a matter 
of right. Radio Corporation of America v. United States, 
95 F. Supp. 660, Affirmed 341 U.S. 412. Judgments of 
three-judge courts are properly appealable directly to the 
Supreme Court of the United States. St. John v. Wiscon­
sin Employment Relations Boardl, 340 U. S. 411.

STATUTES INVOLVED
Act 5, Ark. Acts of 1958 (2nd Ex. Sess.), as amended 

by Acts 151 and 466, Ark. Acts of 1959, is set out in the 
appendix hereto at pages 17a through 24a. At the 
time of the hearing on May 4, 1959, the provisions of Act 
466, supra, were not in effect. Act 466 was approved with­
out an emergency clause on March 31, 1959, but did not 
become effective until 90 days after the Legislature ad­
journed. Hence, the effective date of the Act was June 
11, 1959, Ark. Const., Amend. 7. While Act 466 was in 
effect shortly before the decision of the lower court, it 
apparently was not considered. Thus, the situation pre­
sented here is similar to a case where there has been 
legislation enacted after the decree of a lower court, and 
the effect of Act 466 should be considered by this Court. 
See Texas Company v. Brown, 258 U.S. 466; Fines v. 
Davidowits, 312 U.S. 331. Hereafter in this brief, a ref­
erence to Act 5, as amended, refers to the Act, as amended 
by Acts 151 and 466, Ark. Acts of 1959.

Act 5, as amended, authorizes the withholding of 
State funds from schools where: (a) such schools have



3

been closed by order of the Governor under the provi­
sions of Act 4, Ark. Acts of 1958 (2nd Ex. Sess.); or (b) 
whenever a student should be accepted for enrollment in 
a school other than the one which he normally would at­
tend; and authorizes pro rata payments of State funds to 
other districts only under the condition set forth in (a) 
above.

QUESTIONS PRESENTED

The questions presented by this appeal are whether 
the lower court was correct in holding Act 5, as amended, 
unconstitutional because it was complementary to and 
dependent upon Act 4 and that funds withheld from a 
school district were allocable to that school district on a 
constitutional basis, and whether the court was correct 
in permanently enjoining these appellants from applying 
the provisions of Act 5, as amended.

STATEMENT OF THE CASE

The Arkansas State Board of Education and Arch 
W. Ford, Commissioner of Education of Arkansas, were 
made parties defendant in the supplemental complaint 
filed on January 17, 1959. The plaintiffs sought tempo­
rary and permanent injunctive relief from the provisions 
of Act 5, as amended, and also asked the court to declare 
whether Act 5 denied plaintiffs and those similarly 
situated of rights guaranteed them by the Due Process 
and Equal Protection Clauses of the Fourteenth Amend­
ment to the Constitution of the United States. These ap­
pellants answered alleging that the complaint failed to 
state a claim against them for which relief could be granted 
and denied the material allegations of the complaint. The 
provisions of Act 5, as originally enacted, had been pre­
viously put into effect and some funds withheld from the 
Little Rock School District and paid to other districts 
where former students of Little Rock schools were in at­



4

tendance. Act 5, as amended, merely authorizes the State 
Board of Education to withhold State funds from schools 
which have been closed by the Governor under Act 4, 
supra, or where a student has transferred from one school 
to another. Before Act 466 amended Act 5, as amended by 
Act 151, these withheld funds could be paid to another dis­
trict which had accepted a student under either of the 
foregoing situations. After Act 466 became effective, the 
funds could be withheld as before but could not be paid 
to another district except where a school had been closed 
by the order of the Governor, and any unexpended surplus 
had to be returned to the district at the end of the school 
year. The District Court simply held that Act 5, as 
amended by Act 151, was invalid because it was dependent 
upon Act 4. As stated heretofore, the effect of Act 466 
was not considered; and when the effect of the Act is con­
sidered, it is clear that the opinion of the District Court 
was in error. On the face of the Act as it now stands, it 
is obvious that Act 5, as amended, is not completely de­
pendent upon the provisions of Act 4.

The substantial questions that arise here thus address 
themselves to the Court’s decision. Can a federal court 
render wholly unconstitutional an act which, while de­
pendent in one phase on an act held unconstitutional, has 
an application and operation purely local in its nature? 
Aside from the provisions of Act 466, is partial or even 
complete dependency of operation on an alleged uncon­
stitutional act sufficient grounds to invalidate the de­
pendent act? A second and more serious question is 
whether a school district has any right to funds gratui­
tously paid to it by a state which is protected by the Federal 
Constitution. This latter question arises out of the Court’s 
holding that Act 5 “ did not, and does not, authorize the 
State Board of Education to deprive the Little Rock School 
District of State funds allocable to it for the maintenance



5

of its schools on a constitutional basis, or to divert any 
part of those funds to other schools or other districts.”  
Bearing in mind that the District Court did not say that 
the particular application of Act 5 deprived these plain­
tiffs and others similarly situated of their share of funds 
normally allocable to them by the State, can it be said that 
the Little Rock School District is constitutionally entitled 
to any State funds ? The State questions on State con­
stitutional requirements had been precluded by the hold­
ing of the Arkansas Supreme Court in Fitzlmgh, v. Ford, 
Commissioner, Ark. Law Rep., Yol. 105, Opinions de­
livered May 4, 1959. Therefore, the question posed by 
the holding is indeed substantial since it invades an area 
heretofore regulated and controlled by the states which 
support their schools with state funds.

If this Court should wish to assume for purposes of 
this statement that Act 4 is unconstitutional, such assump­
tion would not change appellant’s argument nor will it 
sustain the District Court’s ruling. It is true a part of 
the operation of Act 5, as amended by Act 151, does hinge 
on the validity of Act 4, but the most that can be argued 
on this point would be the mootness of Act 5. Obviously, 
there is an application of Act 5 having no relation to Act 
4, and the validity or even the existence of Act 4 is im­
material. The application is obvious on the face of the 
Act. Simply stated it is this: When a student leaves
the school he would normally attend, his share of State 
funds is withheld from the district he leaves. When the 
school year is over, the funds are returned to the district. 
This procedure deprives no student or school or agency of 
anything. The distridt is merely temporarily deprived of 
funds for a student or students it is not educating. It 
cannot be argued that this result was not the intention of 
the Legislature. The Act as it now stands speaks for it­
self; and up to tins point, no court has held that the per­



6

sonal preference of individual students as to the school 
they would not attend could be exercised in such a manner 
as to deprive other students of constitutional rights. This 
is not a case of an attempt to frustrate or thwart the de­
segregation of a public school by State action. The de­
cision of one or all of the white or colored students not 
to attend an integrated school does not or would not change 
its integrated nature in law, nor can it be said that Act 
5, as amended, assists these students to attend other 
schools since funds may not be paid to other districts under 
Section 3 (Act 466, Ark. Acts of 1959) for these transfer­
ring students.

It is earnestly insisted by these appellants that the 
District Court erred in its holding and abused its discre­
tion in granting the injunction prayed since there was 
absolutely no showing that appellees would suffer any 
injury or be deprived of any right by the operation of Act 
5 or either of its amendments, and certainly not by Act 
5 in its present form. Appellants recognize that a con­
stitutional law may be applied in an unconstitutional man­
ner, but this is not the question before the Court. The 
action was brought alleging personal deprivations of 
rights. The relief was g r a n t e d  on the basis of 
rights belonging to a school district and a theory of un­
constitutionality by association.

If the District Court’s broad holding is allowed to 
stand, it will jeopardize a whole segment of school laws, 
not only in Arkansas, but in many states that provide 
gratuitous aid to schools and which have many laws of 
long standing regulating the amount, the manner and other 
details of state aid.



7

CONCLUSION

For the reasons stated, it is respectfully submitted 
that the decision of the lower court be reversed.

Respectfully submitted,

B ruce B ennett 
Attorney General 
State of Arkansas

B en J . H arrison 
Chief Assistant Attorney General 
State of Arkansas

Attorneys for Appellants



APPENDIX

DECISION
of

THE DISTRICT COURT
Opinion Delivered June 18, 1959

Civil Action No. 3113

J ohn A aron, et al. _________________ _______  Plaintiff
v.

E d I. M cK inley , et al, .... ............................  Defendant

PER CURIAM.

This case was tried and argued to this statutory three- 
judge court on May 4, 1959, upon the issues raised by the 
supplemental complaint of the plaintiff’s and the answers 
of the defendants. The action is a class action brought 
by school-age children of the Negro race and their parents 
and guardians, all residents of Little Rock, Arkansas. 
Declaratory and injunctive relief is sought against the 
defendants, State officers of the State of Arkansas, upon 
the claim that Act No. 4 of the Second Extraordinary Ses­
sion of the Sixty-first General Assembly, 1958, of that 
State, pursuant to which the Governor on September 12, 
1958, closed the four senior public high schools of Little 
Rock, both Negro and white, is unconstitutional under the 
due process and. equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States, and 
that Act No. 5 of the same Session, as later amended, by 
vritue of which state funds allocable to the Little Rock 
School District for the maintenance and operation of its



public schools have been withheld from the District and 
diverted to other schools, is likewise unconstitutional and 
void.

The defendants are the Governor of Arkansas, the 
State Commissioner of Education, the members of the 
State Board of Education, the Superintendent of the 
Little Bock Public Schools, the members of the Board of 
Directors of the Little Bock School District, and other 
State officers asserted to have a relation to the ease.

In their supplemental complaint, the plaintifs 
allege:

“ Acts No. 4 and 5, as amended by Act 151 of 
the Arkansas Acts of 1959, are part of a studied 
plan devised by the Governor and General Assembly 
of Arkansas to preserve racial segragation in the 
public schools and thus evade or frustrate com­
pliance with the decision of the Supreme Court of 
the United States in the School Segregation Cases 
and, more specifically, the decrees of this Court, 
the Court of Appeals and the Supreme Court in the 
instant case. Each order of the federal courts to 
implement the constitutional rights of plaintiffs 
and others similarly situated to an unsegregated 
education has been met by action of the legislative 
and executive departments of Arkansas designed 
to nullify those orders. (Report of the Governor’s 
Committee to Make Recommendations for Official 
Action, February 24, 1956; Constitutional Amend­
ment No. 44 to the Constitution of Arkansas, 
adopted Nov. 6, 1956; Arkansas Statutes 1947, 
§§6-801 to 6-824; Arkansas Statutes 1947, §§80- 
1519 to 80-1525, Acts No. 6, 7, 8, 9, 10, 11, 12, 13, 14, 
15, 16, 17 of the General Assembly of Arkansas, 
2nd Extraordinary Session 1958, approved Septem­
ber 12, 1958.)

“ The State of Arkansas has undertaken as a 
state function to provide a system of free public 
schools for the education for all persons between the



ages of six and twenty-one years. Arkansas Con­
stitution Article 14, §1.

“ Acts No. 4 and 5 as amended by Act No. 151 
of the Arkansas Acts of 1959, in authorizing the 
closing of the public high schools of the Little Rock 
School District, the withholding of funds from 
them because they were in the process of being de­
segregated pursuant to Court order, and the pay­
ment of said funds to ‘ non-profit private’ schools 
which enroll pupils who formerly attended the 
schools now closed, is designed to nullify the orders 
of this Court and to condition the maintenance of 
public schools upon their operation in an unconsti­
tutional manner and upon the waiver by plaintiffs 
of rights secured to them by the Constitution of the 
United States, all in violation of rights, privileges 
and immunities guaranteed to plaintiffs by the due 
process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United 
States.”

The plaintiffs ask this Court to declare Act No. 4 and 
Act No. 5, as amended, unconstitutional; to enjoin the de­
fendants and those in concert with them from enforcing or 
seeking to enforce the Acts in question; to enter a judg­
ment ordering that the public schools in Little Rock be 
opened, operated and maintained on a nonsegregated basis 
in accordance with the previous orders of the United 
States Courts in that regard; and to enjoin the defend­
ants from further acts to prevent the carrying out of such 
federal court orders.

The complete history of this controversy from its in­
ception to September 12, 1958, has been stated by the 
Supreme Court of the United States in its opinion in 
Cooper v. Aaron, 358 TJ.S. 1, unanimously affirming the 
United States Court of Appeals for the Eighth Circuit in 
reversing an order of the United States District Court



suspending the approved plan of gradual integration for 
the period of two and one-half years.

The Supreme Court had on September 12, 1958, in 
that case, entered an order reading as follows (page 5 of 
358 U .S .):

“ It is accordingly ordered that the judgment 
of the Court of Appeals for the Eighth Circuit, 
dated August 18, 1958, 257 F.2d 33, reversing the 
judgment of the District Court for the Eastern Dis­
trict of Arkansas, dated June 20, 1958, 163 P.Supp. 
13, be affirmed, and that the judgments of the Dis­
trict Court for the Eastern District of Arkansas, 
dated August 28, 1956, see 143 F.Supp. 855, and 
September 3, 1957, enforcing the School Board’s 
plan for desegregation in compliance with the de­
cision of this Court in Brown v. Board of Educa­
tion, 347 U.S. 483, 349 U.S. 294, be reinstated. It 
follows that the order of the Court of Appeals 
dated August 21, 1958, staying its own mandate is 
of no further effect.

“ The judgment of this Court shall be effective 
immediately, and shall be communicated forthwith 
to the District Court for the Eastern District of 
Arkansas.”

Upon the entry of that order, the Little B.ock School 
Board and the Superintendent of Schools were again under 
mandate to carry out the approved plan of integration of 
the schools of Little Bock.

The further history of this litigation and its factual 
background is to be found in the opinion of the Court of 
Appeals for the Eighth Circuit, of November 10, 1958, in 
Aaron v. Cooper, 261 F.2d 97. That court points out that 
after its opinion of August 18, 1958 (257 F.2d 33), hold­
ing to be legally unwarranted the 21^-year suspension of 
the approved plan of integration granted by the District 
Court in 163 F.Supp. 13, the Governor of Arkansas called



the General Assembly into extraordinary session; that on 
August 26, 1958, it passed, with emergency clauses, the 
two Acts in question, which, however, were not signed by 
the Governor until September 12, 1958, the day the 
Supreme Court of the United States entered its order in 
Cooper v. Aaron, affirming the decision of the Court of 
Appeals for the Eighth Circuit, 257 F.2d 33; that on the 
same day, acting under the authority purported conferred 
upon him by Act Mo. 4, the Governor issued a proclama­
tion closing all of the senior high schools of Little Rock, 
and called for an election in the School District, to vote on 
the alternative ballot proposition of “ For Racial Integra­
tion of All Schools Within the ____ _______  School Dis­
trict”  or “  Against Racial Integration of All Schools With­
in the _____________ __ School District” ; that Act No. 4
provided that, unless a majority of the qualified electors 
of the District vated in favor of integration, “ no school 
within the district shall be integrated” , and that a school 
closed by executive order authorized by the Act ‘ ‘ shall re­
main closed until such executive order is countermanded 
by proclamation of the Governor” ; and that the vote at 
the election was about 19,000 against, and 7,500 for, racial 
integration of all schools in the Little Rock School District 
(page 101 of 261 F.2d).

Speaking of Act Mo. 5, the Court of Appeals said on 
page 99 of 261 F.2d:

“ Act No. 5 was complementary to Act No. 4, 
in its provisions for withholding from a school dis­
trict, in which the Governor had ordered a school 
closed, a pro rata share of the State funds otherwise 
allocable from the County General School Fund, and 
making such withheld funds available, on a per 
capita basis, to any other public school or any non­
profit private school accredited by the State Board 
of Education (of which the Governor was a member), 
which should be attended by students of a closed



school, with an obligation being imposed upon the 
State Board of Education in these circumstances to 
make such payments. §§2 and 3.”

While the Court of Appeals expressed no opinion with 
respect to the constitutionality of Acts No. 4 and 5, it 
ruled that the Little Rock School Board, which was under 
mandate of the federal District Court to effectuate the 
plan for the gradual integration of the public schools of 
Little Rock approved by that Court in Aarno v. Cooper, 
143 F.Supp. 855 (a ff’d in Aaron v. Cooper, 243 F.2d 361), 
could not lease the high school buildings of the District to 
a Private School Corporation for the operation of schools 
on a segregated basis, nor could the School Board other­
wise disable itself from carrying out the court-approved 
plan of integration.

The District Court was directed by the Court of Ap­
peals to enjoin the School Board, its members, and their 
successors, from transferring the high schools or other 
property of the District for the carrying on of any segre­
gated school operations of any nature and to provide that 
the Board and its members and their successors “ shall 
take such affirmative steps as the District Court may here­
after direct, to facilitate and accomplish the integration of 
the Little Rock School District in accordance with the 
Court’s prior orders’ ’ (page 108 of 261 F.2d).

The Supreme Court of Arkansas on April 27, 1959, 
by a four-to-three majority, in the case of Garrett v. Fau-
bus, Governor of Arkansas, ..... Ark. ....... ........., 323 S.W.
2d 877, held that Act No. 4 did not conflict with any provi­
sion of the Constitution of the State of Arkansas or with 
the Constitution of the United States. Justice Ward 
wrote the opinion of the Court. Justice Robinson and 
Chief Justice Harris each wrote a concurring opinion.



The four justices of that Court who believed 
that the Act was valid both under the Constitution 
of Arkansas and the C o n s t i t u t i o n  of the United 
States were of the view that the Act represented 
a reasonable and proper exercise of the police power of the 
State to meet a temporary emergency , and — to quote *  
from the opinion of Justice Ward — “ to protect the peace 
and welfare of the people, and to effect a workable solu­
tion of this momentous problem [integration of the 
schools] — all within the framework of the Brown opinion 
\Brown v. Board of Education, 347 IJ.S. 483, 349 TJ.S. 
294] . ”

Justice Robinson, in his concurring opinion, had this 
to say (page 892 of 323 S.W.2d):

“ * * # In order to prevent violence that would 
be brought about by sending the Negro children to 
White schools, and to prevent the use of armed 
troops in the school buildings and on the school 
grounds, the Legislature authorized the Governor 
to close the school affected. Rut, undoubtedly, the 
General Assembly felt that if a majority of the 
voters, including Negro voters (who constitute a 
large percentage of the total electors in Little 
Rock), felt that the schools should be opened, then 
the schools could be conducted without the use of 
troops and United States Marshals. Act No. 4, 
therefore, provides for an election to determine if 
the people wanted the schools opened. Such an 
election was held, and the vote was overwhelming 
in favor of keeping the schools closed.”  [ #]

Chief Justice Harris was also of the viewT that Act No. 4 
represented a valid exercise of the police power of the

* It is to be noted that the only choice given voters under 
Act No. 4 was to vote either for or against “Racial Integration of All 
Schools * * *,” and not upon the question of having the schools open 
or closed.



State to meet a situation ‘ ‘ sufficiently inimical to the pub­
lic safety and welfare to justify the legislation * #

Justice McFaddin, in his dissenting opinion, expressed 
the view that Act No. 4 was violative of Section 1 of Ar­

t ic le  14 of the State Constitution providing that “  * * * 
the State shall ever maintain a general, suitable and effi­
cient system of free public schools whereby all persons in 
the State between the ages of six and twenty-one years may 
receive gratuitous instruction” , and opposed to decisions 
of the Arkansas Supreme Court construing that provision 
of the Arkansas Constitution.

Among other things, Justice McFaddin said (page 900 
of 323 S.W.2d):

“ * * * If the People of Arkansas want to strike 
Art. 14 from the Constitution, then the schools may 
be closed under some legislation similar to Act No. 
4. But until Art. 14 of the Constitution is repealed, 
then it is my solemn and sincere view that Act 
No. 4 is violative of the Arkansas Constitution.”

He expressed the view that the police power of a state may 
not be used to invade or impair the liberty of citizens 
guaranteed by the State Constitution, and said: “ In
short, the Arkansas Legislature cannot under the guise 
of the police power, enact legislation contrary to the Ar­
kansas Constitution.”  He stated that the situation with 
which the Court was dealing was not the kind of an emer­
gency that permits the use of “ Emergency Police Powers,”  
and further said, in that regard: “ Rather, we are dealing 
with a condition that has already existed since 1954 and 
will continue to exist until either the United States Con­
stitution is amended or the United States Supreme Court 
overrules Brown v. Board of Education.”

Apparently, all of the State Justices were agreed that 
Section 1 of Article 14 of the Constitution of Arkansas



requires the continued maintenance by the State of free 
public schools. In Justice Ward’s opinion, in which Jus­
tice Eobinson and Chief Justice Harris concurred, it is 
said (pages 880-881 of 323 S.W.2d):

“  * * * If Act 4 is viewed as giving the Gover­
nor the power to close all public schools permanent­
ly, it would, we concede, be in violation not only of 
the decree in the Brotvn case [Brown v. Board of 
Education, 347 U.S. 483, 349 U.S. 294] but also of 
the State Constitution, but we do not consider it 
that way. * * * we take it as well understood that 
the Act was intended to slow down the implementa­
tion of integration until it could be accomplished 
without great discomfort and danger to the people 
affected or until a lawful way could be devised to 
escape it entirely.* *

As we read the opinion of the Supreme Court of the 
United States in Cooper v. Aaron, 358 U.S. 1, it, in effect, 
holds that no lawless violation or threat, fear or anticipa­
tion of such violence, resulting from hostility to the inte­
gration of its schools, can justify any State, under the 
guise of the exercise of its police power, in depriving 
citizens, either temporarily or permanently, of rights 
guaranteed them by the Constitution of the United States.

The Court said (pages 16-17 of 358 U .S .):

“ The constitutional rights of respondents 
[Aaron, et ah] are not to be sacrificed or yielded 
to the violence and disorder which have followed 
upon the actions of the Governor and Legislature. 
As this Court said some 41 years ago in a unani­
mous opinion in a case involving another aspect of 
racial segregation: ‘ It is urged that this proposed 
segregation will promote the public peace by pre­
venting race conflicts. Desirable as this is, and 
important as is the preservation of the public peace, 
this aim cannot be accomplished by laws or ordi­
nances which deny rights created or protected by



the Federal Constitution.’ Buchanan v. Warley, 
245 U.S. 60, 81. Thus law and order are not here 
to be preserved by depriving the Negro children 
of their constitutional rights. The record before 
us clearly establishes that the growth of the Board’s 
difficulties to a magnitude beyond its unaided power 
to control is the product of state action. Those 
difficulties, as counsel for the Board forthrightly 
conceded on the oral argument in this Court, can 
also be brought under control by state action.

“ The controlling legal principles are plain. 
The command of the Fourteenth Amendment is 
that no ‘ State’ shall deny to any person within its 
jurisdiction the equal protection of the laws. ‘A 
State acts by its legislative, its executive, or its 
judicial authorities. It can act in no other way. 
The constitutional provision, therefore, must mean 
that no agency of the State, or of the officers ox- 
agents by whom its powers are exerted, shall deny 
to any person within its jurisdiction the equal pro­
tection of the laws. Whoever, by virtue of public 
position under a State government . . . denies or 
takes away the equal protection of the laws, vio­
lates the constitutional inhibition; and as he acts 
in the name and for the State, and is clothed with 
the State’s power, his act is that of the State. This 
must be so, or the constitutional prohibition has no 
meaning.’ Ex parte Virginia, 100 U.S. 339, 347. 
Thus the prohibitions of the Fourteenth Amend­
ment extend to all action of the State denying equal 
protection of the laws; whatever the agency of the 
State taking the action, see Virginia v. Rives, 100 
U.S. 313; Pennsylvania v. Board of Directors of 
City Trusts of Philadelphia, 353 U.S. 230; Shelley 
v. Kraemer, 334 U.S. 1; or whatever the guise in 
which it is taken, see Derrington v. Plummer, 240 
F.2d 922; Department of Conservation and Devel­
opment v. Tate, 231 F.2d 615. In short, the con­
stitutional rights of children not to be discriminated 
against in school admission on grounds of race or 
color declared by this Court in the Brown case can



11 a

neither be nullified openly and directly by state 
legislators or state executive or judicial officers, 
nor nullified indirectly by them through evasive 
schemes for segregation whether attempted ‘ in­
geniously or ingenuously.’ Smith v. Texas, 311 U.S. 
128, 132.”

Mr. Justice Frankfurter, in his concurring opinion, 
said (pages 21-22 of 358 U.S.) :

“ The use of force to further obedience to law 
is in any event a last resort and one not congenial 
to the spirit of our Nation. But the tragic aspect 
of this disruptive tactic was that the power of the 
State was used not to sustain law but as an instru­
ment for thwarting law. The State of Arkansas is 
thus responsible for disabling one of its subordi­
nate agencies, the Little Bock School Board, from 
peacefully carrying out the Board’s and the State’s 
constitutional duty. Accordingly, while Arkansas 
is not a formal party in these proceedings and a 
decree cannot go against the State, it is legally and 
morally before the Court.

“ We are now asked to hold that the illegal, 
forcible interference by the State of Arkansas with 
the continuance of what the Constitution commands, 
and the consequences in disorder that it entrained, 
should be recognized as justification for undoing 
what the Board of Education had formulated, what 
the District Court in 1955 had directed to be car­
ried out, and what was in process of obedience. No 
explanation that may be offered in support of such 
a request can obscure the inescapable meaning that 
law should bow to force. To yield to such a claim 
would be to enthrone official lawlessness, and law­
lessness if not checked is the precursor of anarchy. * # # > >

See, also Fembus v. United States, 8 Cir., 254 F.2d 797, 
807.



Tlie deplorable conditions which were found by the 
Honorable Harry J. Lemley, United States District Judge, 
to have existed at Little Eock Central High School during 
the 1957-58 school year, when nine Negro students were 
enrolled in the formerly all-white school attended by about 
2,000 pupils, and which he honestly and sincerely believed 
justified granting a 21^-year moratorium to the School 
Board in the carrying out of its plan of integration (163 
F.Supp. 13), were held insufficient to support his order 
both by the Court of Appeals (257 F.2d 33) and by the 
Supreme Court of the United States (358 U.S. 1). If the 
factual situation as found by Judge Lemley, whose fact 
findings have never been questioned, were insufficient to 
sustain his order, we can see no basis whatever for a rul­
ing by us that Act No. 4 constitutes a valid and reasonable 
exercise of the police power of Arkansas to meet an 
emergency.

“ * * * Every exercise of the police power must 
be reasonable and extend only to such laws as are 
enacted in good faith for the promotion of the public 
good, and not for the annoyance or oppression of 
a particular class.”  Plessy v. Ferguson, 163 U.S. 
537, 550. See and compare, Tick Wo v. Hopkins, 
118 U.S. 356.

With all due respect to the considered views of those 
Justices of the Supreme Court of Arkansas who concluded 
that Act No. 4 represented a valid exercise of the police 
power of the State and therefore did not violate the Four­
teenth Amendment to the Constitution of the United 
States, we are firmly of the opinion that Act No. 4 can­
not be sustained upon that ground, and is clearly uncon­
stitutional under the due process and equal protection 
clauses of the Fourteenth Amendment, and conferred no 
authority upon the Governor to close the public high 
schools in Little Rock.



The Supreme Court of Arkansas, in the case of Fits-
hugh v. Ford, Commissioner, ______  Ark. ______, 323
S.W.2d 559, in a unanimous opinion filed on May 4, 1959, 
held that Act No. 5 violates no part of the Constitution of 
the State of Arkansas, but did not consider whether it vio­
lated any part of the Constitution of the United States. 
The Court said (page 560 of 323 S.W.2d):

“ In essence, Act 5 provides: (a) It requires the 
Commissioner of Education to withhold certain 
State Funds (otherwise allocable to a school dis­
trict wherein a school has been closed under said 
Act 4) in an amount calculated on a certain pro rata 
basis, the correctness of which is not challenged 
It requires the Commissioner of Education to pay 
over to other public schools or non-profit private 
schools accredited by the State Board of Education 
from the funds so withheld an amount calculated on 
a pro rata basis according to the number of students 
from the closed schools) attending a recipient 
school. Simply and briefly stated, Act 5 provides 
that the money which normally would be spent on 
a student in a closed school would be paid to the 
school which he might later attend.”

Since Act No. 5 is complementary to and dependent 
upon Act No. 4, and that Act is invalid, it follows that 
Act No. 5 is also invalid and completely ineffectual. We 
are satisfied that Act No. 5, as amended, cannot stand 
alone and did not, and does not, authorize the State Board 
of Education to deprive the Little Bock School District of 
State funds allocable to it for the maintenance of its schools 
on a constitutional basis, or to divert any part of those 
funds to other schools or other districts.*

* Sections 2 and 3 of Act No. 5 of the Acts of the 2nd Extra­
ordinary Session of the 61st General Assembly of Arkansas, approved 
September 12, 1958, as amended by Act No. 151 of the General As­
sembly for the year 1959, approved March 3, 1959, read as follows:

“Section 2. Whenever the Governor shall order any school 
to be closed, and continuing thereafter until such order shall



There is no dispute as to the facts. The Little Bock 
public high schools were closed by the Governor, under 
Act No. 4, on September 12, 1958, before they were opened 
for the admission of students, and have remained closed 
ever since. The School Board has been precluded, by 
the closing of the public high schools, from carrying out 
its approved plan of gradual integration ordered into ef­
fect by the federal courts.

By virtue of Acts No. 4 and No. 5, as amended, $350,- 
586.00 in funds allocable to the Little Rock School District 
had been withheld up to May 4, 1959. The total amount 
which will be withheld by the end of the 1958-59 school 
year, if these Acts remain in effect, will be slightly in 
excess of $510,000. Of the funds withheld, $187,768.00 
has been paid to other schools, public and private, in ac­
cordance with Act No. 5. Of this amount, $71,907.50 was 
paid to the private Raney High School.

The total number of prospective high school students 
registered for the four high schools in Little Rock as of 
September, 1958, was 3,665. Of these, after the closing 
of the high schools by the Governor, 266 white students 
and 376 Negro students did not attend any school; the 
remainder transferred to private schools in Little Rock 
and to public and private schools within or without the 
State. The evidence shows where the white students went 
and where the Negro students went, but we find it unneces­
sary to go into that detail.

The purpose, effect, and results of the enactment and

have been countermanded by the Governor, or whenever any 
person of school age shall be accepted for enrollment in any 
school other than the one in which he normally would attend, 
the State Board of Education, acting through its Commissioner 
of Education, shall cause to be withheld from the State funds 
otherwise allocable to the school district having jurisdiction over 
any such closed school, or over any such school which any such



enforcement of Acts No. 4 and No. 5 are too obvious to 
require further discussion.

It is the judgment and declaration of this Court: that 
Act No. 4 of the Second Extraordinary Session of the 
General Assembly of Arkansas, 1958, is unconstitutional 
and invalid; that the proclamation of the Governor of Ar­
kansas closing the public high schools in Little Rock was 
and is void; that Act No. 5, as amended, as a device for 
depriving the Little Rock School District of State funds 
allocable to it for the maintenance of its schools upon a 
constitutional basis, is also unconstitutional and invalid; 
that the diversion of such funds pursuant to Act No. 4 
and Act No. 5 should be and is hereby permanently en­
joined; that the Superintendent of the Schools of Little 
Rock, and the members of the Board of Directors of the 
Little Rock School District, and their successors, are under 
the continuing mandate of this District Court to effectuate 
the plan of integration for the public schools of Little 
Rock approved by this Court in Aaron v. Cooper, 143 F. 
Snpp. 855 (a ff’d, 8 Cir., 243 F.2d 361); and that this Court 
has heretofore retained jurisdiction to require the Superin­
tendent and the School Board to take such affirmative

person of school age normally would attend, an amount equal 
to the proportion of the total of such State funds that the total 
average daily attendance of students for the next preceding 
school year in the closed school, or in the school which any 
such person would normally attend, bears to the total average 
daily attendance of all students of the district for said next 
preceding school year; plus, and also from State funds, an 
amount equal to the same foregoing proportion of ad valorem 
taxes collected in the calendar year next preceding the date of 
any such closing order, or next preceding the date of acceptance 
for enrollment of any such student in the school which he 
normally would attend, for the benefit of the said school district 
for maintenance and operation; plus, also from State funds, 
an amount equal to the same foregoing proportion of all funds 
allocable to the school district during the then current fiscal 
year from the County General School Fund, all as set forth in 
the budget of the County Board of Education.



steps as may hereafter be directed by this Court to ac­
complish the integration of the schools of Little Rock in 
accordance with and as required by the prior orders of 
this Court, and the orders and decisions of the Court of 
Appeals for the Eighth Circuit and of the Supreme Court 
of the United States,

It is further adjudged that the defendants and their 
successors in office be and are permanently enjoined from 
engaging in any acts which will, directly or indirectly, 
impede, thwart, delay or frustrate the execution of the 
approved plan for the gradual integration of the schools of 
Little Rock, the effectuation of which has been heretofore 
commanded by the orders of this Court.

The motions of the defendants to dismiss the supple­
mental complaint, which were taken under submission by 
the Court, are overruled.
Dated June 18, 1959.

J o h n  B . S anborn

United States Circuit Judge 
J ohn E . M iller.

United States District Judge 
A xel J. B eck

United States District Judge

“Section 3. Should any of the students of any school so 
closed by order of the Governor, or any of students eligible to 
attend any racially integrated school, determine to attend, and 
attend, in this State, any other public school, or any non-profit 
private school accredited by the State Board of Education, then 
State funds so withheld as hereinbefore provided, shall be paid 
over by the State Board of Education to each said other public 
school or accredited non-profit private school in an amount 
equal to the same proportion of the total said State funds that 
the number of transferred students in any such public or private 
school bears to the total number of students upon which said 
withholding was made as hereinbefore provided. Appropriations 
of funds from time to time made available to the State Board 
of Education, including but not limited to those contained in 
Act 305, approved March 27, 1957, shall be useable for the 
purpose herein provided."



ACT 5, ARK. ACTS OF 1958 (2nd Ex. Sess.) 

Approved September 12, 1958

AN ACT to Provide for the Withholding of a Portion of 
the State Aid Otherwise Allocable to a School District 
During the Period of Time Any School in Any Such Dis­
trict Shall Be Closed by Order of the Governor of This 
State; to Provide for the Payment from Any Funds So 
Withheld to Other Public Schools and Accredited Non- 
Profit Private Schools During the Period of Enrollment 
and Continuance of Study Therein of Any Students of 
Said Schools So Ordered to Be Closed by the Governor; 
to Authorize the State Board of Education to Adopt, and 
Enforce, Such Reasonable Rules and Regulations Not In­
consistent with the Provisions Hereof as it Shall Deter­
mine to Be Necessary or Desirable to Effectuate the 
Purposes and Intent of This A ct; and for Other Purposes.

Be It Enacted by the General Assembly of the State of 
Arkansas:

Section 1. Nothing in this Act contained shall be so 
construed as to alter, amend, or in any other manner change 
the method of determining the amount of State funds al­
locable to the public schools of a county, or of any school 
district therein, under the Minimum Foundation Program 
Law, or other applicable State aid school law, by reason 
of the closing of any school therein by order of the Gover­
nor of this State.

Section 2. Whenever the Governor shall order any 
school to be closed, and continuing thereafter until such 
order shall have been countermanded by the Governor, the 
State Board of Education, acting through its Commissioner



of Education, shall cause to be withheld from the State 
funds otherwise allocable to the school district having 
jurisdiction over any such school, an amount equal to the 
proportion of the total of such State funds that the total 
average daily attendance of students for the next preceding 
school year in the closed school bears to the total average 
daily attendance of all students of the district for said 
next preceding school year; plus, and also from State 
funds, an amount equal to the same foregoing proportion 
of ad valorem taxes collected in the calendar year next 
preceding the date of any such closing order for the bene­
fit of the said school district for maintenance and opera­
tion; plus, and also from State funds, an amount equal to 
the same foregoing proportion of all funds allocable to 
the school district during the then current fiscal year from 
the County General School Fund, all as set forth in the 
budget of the County Board of Education.

Section 3. Should any of the students of any school 
so closed by order of the Governor determine to attend, 
and attend, in this State, any other public school, or any 
non-profit private school accredited by the State Board of 
Education, then State funds so withheld as hereinbefore 
provided, shall be paid over by the State Board of Educa­
tion to each said other public school or accredited non­
profit private school in an amount equal to the same 
proportion of the total said State funds that the number 
of transferred students in any such public or private school 
bears to the total number of students upon which said with­
holding was made as hereinbefore provided. Appropria­
tions of funds contained in Act 305, approved March 27, 
1957, shall be usable for the purposes herein provided.

Section 4. For the purpose of determining the amount 
of State funds so to be withheld, and thereafter paid out, 
after the date of any such continuing closing order, the 
State Board of Education, or the Commissioner of Eduea-



tion, may call upon the Legislative Auditor, the State 
Comptroller, or other State officer or employee, to assist 
whenever auditorial assistance or advice shall be required.

Section 5. The State Board of Education shall have 
the power to adopt, and enforce, such reasonable rules and 
regulations not inconsistent with the provisions of this Act 
as it shall determine to be necessary or desirable to effectu­
ate the purposes hereof.

Section 6. If for any reason any section or provision 
of this Act shall be held to be unconstitutional, or invalid 
for other reason, such holding shall not affect the remain­
der of this Act.

Section 7. It has been found and it is hereby declared 
by the General Assembly that a large majority of the people 
of this State are opposed to the forcible integration of, or 
mixing of the races in, the public schools of the State; that 
practically all of the people of this State are opposed to 
the use of federal troops in aid of such integration; that 
the people of this State are opposed to the use of any fed­
eral power to enforce the integration of the races in the 
public schools; that it is now’ threatened that Negro chil­
dren will be forcibly enrolled and permitted to attend some 
of the public schools of this State formerly attended only 
by white children; that the President of the United States 
has indicated that federal troops may be used to enforce 
the orders of the District Court respecting enrollment and 
attendance of Negro pupils in schools formerly attended 
only by white school children, that the forcible operation 
of a public school in this State attended by both Negro and 
white children will inevitably result in violence in and 
about the school and throughout the district involved en­
dangering safety of buildings and other property and lives; 
that the state of feeling of the great majority of the people 
of this State is such that the forcible mixing of the races



in public schools will seriously impair the operation of a 
suitable and efficient system of schools, and result in lack 
of discipline in the schools; that for said reasons it is 
hereby declared necessary for the public peace, health and 
safety that this Act shall become effective without delay. 
An emergency, therefore, exists and this Act shall take 
effect and be in force from and after its passage.

ACT 151 OF 1959

AN ACT to Amend Sections 2 and 3 of Act 5 of the Acts 
of the 2nd Extraordinary Session of the 61st General 
Assembly, Approved September 12, 1958; and for Other 
Purposes.

Whereas, the Supreme Court of the United States 
predicated its school integration decision upon the psycho­
logical effect of segregated classes upon children of the 
Negro race, and, at the same time, ignored the psychologi­
cal impact of integrated schools upon certain white chil­
dren who observe segregation of the races as a way of life ; 
and

Whereas, legislation is necessary in order to protect 
the health, welfare, well-being, and educational opportuni­
ties of such white children;

Now therefore be it Enacted by the General Assembly 
of the State of Arkansas:

Section 1. Section 2 of Act 5 of the Acts of the 2nd 
Extraordinary Session of the 61st General Assembly of the 
State of Arkansas, approved September 12, 1958, is hereby 
amended to read as follows:

“ Section 2. Whenever the Governor shall or­
der any school to be closed, and continuing there­
after until such order shall have been counter­
manded by the Governor, or whenever any person



of school age shall he accepted for enrollment in any 
school other than the one in which he normally 
would attend, the State Board of Education, acting 
through its Commissioner of Education, shall cause 
to be withheld from the State funds otherwise al­
locable to the school district having jurisdiction 
over any such closed school, or over any such school 
which any such person of school age normally would 
attend, an amount equal to the proportion of the 
total of such State funds that the total average 
daily attendance of students for the next preceding 
school year in the closed school, or in the school 
which any such person would normally attend, bears 
to the total average daily attendance of all students 
of the district for said next preceding school year; 
plus, and also from State funds, an amount equal 
to the same foregoing proportion of ad valorem 
taxes collected in the calendar year next preceding 
the date of any such closing order, or next preceding 
the date of acceptance for enrollment of any such 
student in the school which he normally would at­
tend, for the benefit of the said school district for 
maintenance and operation; plus, also from State 
funds, an amount equal to the same foregoing pro­
portion of all funds allocable to the school district 
during the then current fiscal year from the County 
General School Fund, all as set forth in the budget 
of the County Board of Education.”

Section 2. Section 3 of Act 5 of the Acts of the 2nd 
Extraordinary Session of the General Assembly of the 
State of Arkansas, approved September 12, 1958, is hereby 
amended to read as follows:

‘ ‘ Section 3. Should any of the students of any 
school so closed by order of the Governor, or any 
of the students eligible to attend any racially into



grated school, determine to attend, and attend, in 
this State, any other public school, or any non­
profit private school accredited by the State Board 
of Education, then State funds so withheld as here­
inbefore provided, shall be paid over by the State 
Board of Education to each said other public school 
or accredited non-profit private school in an amount 
equal to the same proportion of the total said State 
funds that the number of transferred students in 
any such public or private school bears to the total 
number of students upon which said withholding 
was made as hereinbefore provided. Appropria­
tions of funds from time to time made available to 
the State Board of Education, including but not 
limited to those contained in Act 305, approved 
March 27, 1957, shall be useable for the purposes 
herein provided.”

Section 3. If for any reason any section or provision 
of this Act shall be held to be unconstitutional, or invalid 
for other reason, it shall not affect the remainder of this 
Act.

Section 4. It has been found, and it is hereby declared 
by the General Assembly that a large majority of the peo­
ple of this State are opposed to the limitation of attend­
ance by students of the public schools of the State to the 
schools in which they are now enrolled, or may be eligible 
for enrollment; that such limitation of attendance results 
in dissatisfaction on the part of students, lack of interest 
and effort in their school curricula, and a psychological 
impairment of the health and welfare of such students; 
that private, accredited schools and other public schools 
are more s u i t a b l e  for such students than their 
resident schools; that the state of feeling of the 
great majority of the people of this State is such 
that inability to transfer freely to accredited private



schools and other public schools will seriously impair the 
operation of a suitable and efficient system of schools, the 
psychological well-being of the students, and result in lack 
of discipline in the schools; that for said reasons, it is 
hereby declared necessary for the public peace, health, and 
safety that this Act shall become effective without delay. 
An emergency, therefore, exists, and this Act shall take 
effect and be in force from and after its passage.



ACT 466, ARK. ACTS OF 1959 

Approved March 31, 1959

AN ACT to Amend Act 5, Ark. Acts of 1958 (Ex. Sess.) 
Section 3, to Provide for a Return to School Dis­
tricts of Surplus Withheld Funds.

Be It Enacted by the General Assembly of the State of
Arkansas:

Section 1. Act 5, Ark. Acts of 1958 (Ex. Sess.) Sec­
tion 3 is amended to read as follows:

“ Section 3. Should any of the students of any 
school so closed by order of the Governor determine 
to attend, and attend, in this State, any other pub­
lic school, or any non-profit private school ac­
credited by the State Board of Education, then 
State funds so withheld as hereinbefore provided, 
shall be paid over by the State Board of Education 
to each said other public school or accredited non­
profit private school in an amount equal to the same 
proportion of the total said State funds that the 
number of students in any such public or private 
school bears to the total number of students upon 
which said withholding was made as hereinbefore 
provided. Appropriations of funds contained in Act 
305, approved March 27, 1957, shall be usable for 
the purpose herein provided. At the end of the 
school year all funds withheld as aforesaid which 
have not been paid over to a public or non-profit pri­
vate school accredited by the State Board of Edu­
cation, as provided herein shall be released and 
paid over to the school district involved.”