The Board of Education of the Little Rock School District v. Clark Petition for a Writ of Certiorari and Motion to Advance

    IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No.

THE BOARD OF EDUCATION OF THE LITTLE ROCK 
SCHOOL DISTRICT, et al.,

Petitioners,
vs.

DOLORES CLARK, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals 

for the Eighth Circuit and
MOTION TO ADVANCE

HERSCHEL H. FRIDAY 
ROBERT V. LIGHT 
G. ROSS SMITH 

1100 Boyle Building 
Little Rock, Arkansas 72201 

Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477



TABLE OF CONTENTS

Page

Motion to A dvance.............................................................  1

Prayer .......................      3

Opinions Below .............................................   3

Jurisdiction ......................................................................... 4

Questions Presented...........................................................  4

Constitutional Provisions Involved .................................. 5

Statement ............................................................................  5
1. Proceedings before the District C ou rt...................  5
2. The Decision of the Court of A ppeals.................. 8

Reasons for Granting the W r it .......................................  9

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

Appendix A— Opinion of Court of Appeals for the 
Eighth C ircu it................................................................. A -l

Appendix B—Judgment ....................................................A-26

Appendix C— Opinion of the District C ou rt.................A-27

Appendix D—Decree of the District C ou rt.................. A-58

Table of Cases Cited

Alexander v. Holmes County Board of Education, 396

U. S. 19 (1969) ..........................................................9,13,16
Beckett v. School Board of the City of Norfolk, 308 F.

Supp. 1274 (D. C. Va. 1969).........................................  13
Bell v. School City of Gary, Ind., 213 F. Supp. 819 

(N. D. Ind.), aff’d 324 F. 2d 209 (7 Cir. 1963), cert, 
denied, 377 U. S. 924 ......................................... .. .12,13



11

Bivins v. Bibb Comity, . . .  F. Supp. . . .  (N. D. Ga.,
January 21, 1970) ............................................................. 13

Broussard v. Houston Ind. S. Dist., 395 F. 2d 817 (5 
Cir. 1968), petition for rehearing en banc denied,
403 F. 2d 34 (5 Cir. 1968)............................................... 13

Brown v. Board of Education, 347 U. S. 483 (1954).. .9,11

Carter v. West Feliciana School Board, 396 U. S. 290
(1970) .......................     13

Clark v. Board of Education, 369 F. 2d 661 (8 Cir.
1966) ................................................................................. 6

Cooper v. Aaron, 358 U. S. 1 (1958)...............................  2

Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6 Cir. 1966), cert, denied, 389 U. S. 847 (1967).. .11,13 

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

Ellis v. The Board of Public Instruction of Orange
County, Florida, 423 F. 2d 203 (5 Cir. 1970)............14-15

Ex Parte Quirin, 317 U. S. 1 (1942)...............................  2

Graves v. Board of Education of North Little Bock,
299 F. Supp. 843 (D. C. Ark. 1969)............................ 14

Green v. County School Board, 391 U. S. 430 (1968). .6,13

Hilson v. Washington County, . . .  F. Supp. . . .  (M. D.
Ga., January 28, 1970) .................................................  14

Henry v. Clarksdale Municipal Separate School Dist.,
409 F. 2d 682 (5 Cir. 1969)...........................................  13

Northcross v. Board of Education of Memphis, 420 F.
2d 546 (6 Cir. 1970) .......................................................  14

Northcross v. Board of Education of the City of Mem­
phis, 397 U. S. 232 (1970) ...........................................  14

Rosenberg v. United States, 346 U. S. 273 (1953)........  2

Singleton v. Jackson Municipal Separate School Sys­
tem, . . .  F. 2d . . .  (5 Cir., May 5, 1970) 15



I l l

Springfield School Committee v. Barksdale, 348 F. 2d
261 (1 Cir. 1965) .............................................................

Swann v. Charlotte-Mecklenburg Bd. of Ed., 369 F. 2d
29 (4 Cir. 1966) ...............................................................

Swann v. Charlotte-Mecklenburg Board of Education,
. . .  F. 2d . . .  (4 Cir., May 26, 1970), cert, granted 
No. 1713, 38 LW  3522 (June 29, 1970)........................2,

Thornie v. Houston County, . . .  F. Supp. . . .  (M. D. 
Ga., January 21, 1970) .................................................

United States v. Greenwood Municipal Separate School
Dist., 406 F. 2d 1086 (5 Cir. 1969).............................

United States v. Indianola Municipal Separate School
Dist., 410 F. 2d 626 (5 Cir. 1969)...............................

United States v. Jefferson Co. Bd. of Educ., 372 F. 2d 
836, 879 (5 Cir. 1966), aff’d en banc, 380 F. 2d 385 
(5 Cir. 1967), cert, denied, 389 U. S. 840 (1967 ).... 

United States v. State of Georgia, . . .  F. Supp. . .. 
(N. D. Ga., December 17, 1969)...................................

Statutes Cited

28 U. S. G, 1254(1) ...........................................................
42 U. S. C., 2000-c(b) .......................................................

Constitution Cited

Constitution of the United States:
Fourteenth Amendment ...............................................

Congressional Record Cited

13

13

15

14

13

13

11

13

4
12

5

110 Cong. Rec. 12715 

110 Cong. Rec. 12717
12
12



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No,

THE BOARD OF EDUCATION OF THE LITTLE ROCK 
SCHOOL DISTRICT, et al.,

Petitioners,
vs.

DOLORES CLARK, et al.,
Respondents.

MOTION TO ADVANCE

Petitioners respectfully move that the Court advance 
its consideration and disposition of this case. It presents 
issues of national importance which require prompt reso­
lution by this Court for the reasons stated in the annexed 
petition for a writ of certiorari. The public school sys­
tems of the nation face conditions of impending confusion 
and chaos as a result of conflicting decisions of the Courts 
of Appeals and of the District Courts respecting the obli­
gations of the school districts pertaining to assignment 
of students and other phases of their operations in the 
1970-71 school year. It would therefore be desirable for 
the issues to be decided before the beginning of the next 
school term which is September 8, 1970 in petitioners’ dis­



2

trict in order to guide the many courts and school boards 
now making plans for the coming year and to avoid the 
occasion for reorganizations of systems after the 1970-71 
school term is underway.

The issues herein are closely related to those in Swann 
v. Charlotte-Mecklenburg Board of Education, No. 1713, 
cert, granted, 38 LW  3522 although perhaps the record 
in this case brings into sharper focus the fundamental 
issue of the constitutional validity of the neighborhood 
school system. On June 29, 1970 the Court expressly de­
ferred decision on motions to expedite in that case similar 
to the motion here made.

Wherefore, petitioners pray that the Court:

1. Advance consideration of the petition for writ of cer­
tiorari and any cross-petition or other response thereto 
for determination at the earliest feasible time.

2. If the Court determines to grant the petition for cer­
tiorari, to direct an expedited briefing schedule and to 
set the case for argument at a special term before the 
commencement of the 1970-71 school year. Special terms 
were convened to consider Cooper v. Aaron, 358 U. S. 1 
(1958); Rosenberg v. United States, 346 U. S. 273 (1953); 
and Ex Parte Quirin, 317 U. S. 1 (1942).

Respectfully submitted

HERSCHEL H. FRIDAY

ROBERT V. LIGHT

G. ROSS SMITH 
1100 Boyle Building 

Little Rock, Arkansas 72201 
Attorneys for Petitioners



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No.

THE BOARD OF EDUCATION OF THE LITTLE ROCK 
SCHOOL DISTRICT, et a!.,

Petitioners,
vs,

DOLORES CLARK, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals 

For the Eighth Circuit

Petitioners pray that a writ of certiorari issue to re­
view the judgment of the United States Court of Appeals 
for the Eighth Circuit entered in this case on May 13, 
1970.

OPINIONS BELOW

The opinion of the United States Court of Appeals for 
the Eighth Circuit and the dissenting opinion of Judges 
Van Oosterhout and Gibson are not yet reported. They 
are set forth in the Appendix, pp. A-l-A-25. The decision 
and decree of the United States District Court for the 
Eastern District of Arkansas, Western Division, are un­
reported. They are set forth in the Appendix, pp. A-27- 
A-59.



JURISDICTION

The judgment of the United States Court of Appeals for 
the Eighth Circuit was rendered May 13, 1970. The juris­
diction of this Court is invoked under 28 U. S. C. 1254(1).

QUESTIONS PRESENTED

1. Where the record discloses that a metropolitan school 
district assigning students to schools near their homes by 
fairly drawn attendance zones can significantly increase 
the racial balance in each school only by providing com­
pulsory transportation to schools long distances from their 
homes, does the Constitution require the geographical zon­
ing system to be abolished and a system of compulsory 
busing be adopted?

2. Where a school district has desegregated its faculty so 
that in no school do the number of Negro teachers exceed 
50 per cent, where students are assigned on a fairly drawn 
geographical zoning system to schools near their homes, 
and where students so assigned to a school where their 
race is in a majority have the option to transfer to a school 
where their race is in a minority, is the Constitution vio­
lated because such system fails to achieve some degree of 
racial balance in each school?

3. Where a school district has adopted a fairly drawn geo­
graphical zoning system for neighborhood schools, does 
the Constitution require that students so assigned to a 
school where their race is in the majority be given an 
option to transfer to a school where their race is in the 
minority ?

4. Where a school district has adopted a fairly drawn 
geographical zoning system for neighborhood schools, 
does the Constitution require or permit the district court 
to order gerrymandering of zone lines solely for the pur­



pose of producing greater racial balanice at certain 
schools ?

5. Where a school district has adopted a fairly drawn 
geographical zoning system for neighborhood schools, 
does the Constitution authorize the district court to order 
implementation of a plan designed to racially balance the 
schools in one section of the district although it is un­
disputed in the record that the results would be contrary 
to those intended?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

—  5 —

STATEMENT

1. Proceedings before the District Court.

Petitioners are the members of the Board of Education 
of the Little Eock School District. This is a metropolitan 
school district operating 42 schools for the benefit of 
23,113 students. In July, 1968, the latest date such data 
appears in this record, there were 15,063 white students 
and 8,050 Negro students.

This school desegregation suit was originally filed on 
November 4, 1964 in the Eastern District of Arkansas by 
five Negro children and their parents who alleged a de­
nial of equal protection of the laws arising out of the 
district’s assignments of students pursuant to the Arkansas 
Pupil Assignment Law. Plaintiffs sought the adoption 
of a zoning system that would ‘ ‘ generally assign all pupils 
to the schools nearest their residence.”  On January 14, 
1966, the district court, in an unreported opinion, ap­
proved a transition by the school district to a freedom of 
choice desegregation plan. The freedom of choice plan



was approved in substance, but with minor modifications, 
by the Court of Appeals. Clark v. Board of Education, 
369 F. 2d 661 (8 Cir. 1966). On June 25, 1968, after this 
Court’s May 27, 1968 decisions in Green v. County School 
Board, 391 U. S. 430 (1968), and companion cases, the 
plaintiffs filed a Motion for Further Relief asking, inter 
alia, that the school district be required to submit a de­
segregation plan other than freedom of choice. After a 
response by the school district, a hearing was commenced 
on August 15, 1968, but was adjourned at the conclusion 
of the second day of testimony when plaintiffs’ counsel 
moved to adjourn to permit the school district to submit a 
revised plan.

On November 15, 1968, the school district filed its re­
vised plan which proposed, in accordance with the pre­
vious suggestion by letter of the district court to counsel 
for the school district, to reassign its teaching staff for 
the 1969-70 school year so that the number of Negro teach­
ers within each school in the district would range from 
a minimum of 15 per cent to a maximum of 45 per 
cent and the number of white teachers within each 
school of the district would range from a minimum 
of 55 per cent to a maximum of 85 per cent, and 
to assign students to school on the basis of compul­
sory geographic attendance zones for elementary, junior 
high and senior high schools. All students would attend 
the school designated for the zone in which they resided, 
except that any eligible student in the district could elect 
to attend the Metropolitan Vocational-Technical High 
School which served all students in the district, teachers 
were permitted to enroll their children in the schools 
where they were assigned to teach and all students in 
the eighth, tenth and eleventh grades were permitted to 
choose between the school designated for the zone in 
which they resided or the school that such students were 
attending at the time of the adoption of the plan.



An evidentiary hearing on the district’s plan began 
on December 19, 1968 and after three days of testimony 
on December 19, 20 and 24, 1968 was adjourned. Both 
plaintiffs and defendants presented expert testimony on 
the availability or unavailability to the district of alter­
native desegregation plans.

The district court noted that the plan involving com­
pulsory geographic attendance zones was based on the 
neighborhood school concept by which students are as­
signed to attend classes at the school closest their home, 
that the only alternative plan to more proportionately 
balance student enrollment in the eastern and western 
parts of the City of Little Rock would require compulsory 
transportation of students by bus for distances of at 
least six to eight miles from their homes because of the 
heavy predominance of white citizens residing in the 
western section of the city and the heavy predominance 
of Negro citizens residing in the eastern portion of the 
city, that the school district at that time was not furnish­
ing transportation to any students and that the annual 
cost (exclusive of the initial capital investment which 
would be required for needed buses) would be approxi­
mately $500,000.00 The school district’s proposals for the 
desegregation of both students and faculty were approved. 
Thus plaintiffs achieved the basic relief they had earlier 
sought in the suit. However, certain modifications were 
engrafted upon the student desegregation plan by the 
district court. The boundary line of the zone of one of 
the district’s five high schools was gerrymandered to 
include an additional 80 Negro students in the predom­
inately white Hall High School. The consolidation or 
pairing of five elementary schools, one of which would 
have been attended by 313 Negro students and 34 white 
students under the zoning plan, was ordered. This proj­
ect, known as the Beta Complex, was a part of a previous 
plan which had been considered by the school district.



Finally, the district court superimposed on the zoning 
plan a provision which would allow any student in the 
district to transfer from a school in which his race was 
a majority to a school with available space where his 
race was a minority.

2. The decision of the Court of Appeals.

The plaintiffs appealed, urging that the geographic 
attendance zone plan based on the neighborhood school 
concept failed to achieve a unitary system and that neither 
the neighborhood school concept nor the necessity of bus­
ing students could excuse the failure, and that the faculty 
assignment plan was inadequate to eliminate the racial 
identity of certain schools. The school district cross-ap­
pealed from those portions of the district court’s order 
which gerrymandered the Hall High School attendance 
boundary, which required the majority to minority trans­
fer option and which ordered implementation of the Beta 
Complex. The Court of Appeals en banc1 (two Judges dis­
senting) reversed and remanded the district court’s order 
insofar as it approved the geographic attendance zone as­
signment plan but affirmed as to the faculty desegregation 
plan, and as to the three modifications ordered by the dis­
trict court. The Court of Appeals based its disapproval 
of the student assignment plan on the fact that several 
schools in the district remained “ racially identifiable”  
because of the heavy predominance of students of one 
race and the conclusion that alternative means of pupil 
assignment were available to the district to achieve “ more 
effective desegregation.”

Chief Judge Van Oosterhout and Judge Gibson dis­
sented, finding that “  (E)verything has been done that 1

— 8 -—

1 Judge Mehaffy did not participate. Prior to his appoint­
ment to the bench he was a member o f the law firm representing 
this school district.



could be done short of abandonment of the neighborhood 
system . . that the desegregation process in the dis­
trict was no longer impeded by state action; that this 
Court had not decided that racial balance was required 
in all schools of a metropolitan school district, and that 
geographic attendance zones fairly drawn without racial 
discrimination should meet the constitutional standards of 
Brown v. Board of Education, 347 U. S. 483 (1954) and 
subsequent decisions of this Court.

REASONS FOR GRANTING THE WRIT

This case merits review by this Court on certiorari be­
cause it involves issues of vital importance to virtually 
all metropolitan school districts in this country which are 
now attempting to achieve a unitary school system prior 
to the commencement of the 1970-71 school year, pursuant 
to this Court’s mandate in Alexander v. Holmes Gounty, 
396 U. S. 19 (1969). The absence of definitive guidelines 
for meeting the constitutional requirements in such dis­
tricts, the square and irreconcilable conflicts on such 
issues between and within the various courts of appeal 
and the confusion resulting therefrom render the duty of 
such districts to establish and operate “unitary school 
systems within which no person is to be effectively ex­
cluded from any school because of race or color” virtually 
incapable of fulfillment. The principal focal point from 
which these opinions diverge, and the principal issue 
herein, is the constitutional status of student assignment 
plans which utilize what is commonly referred to as “ the 
neighborhood school concept” by which children are as­
signed, on the basis of geographic attendance zones, to 
attend the school closest to their home. Because of the 
tendency of the people in this country, north, south, east 
or west, to reside in those areas of a city populated by 
other citizens of their race, such plans almost invariably



— 10

result in an irregular distribution by race of students in 
the schools of the district, with some schools having an 
all Negro or predominantly Negro enrollment and some 
schools having an all white or predominantly white en­
rollment, the gradations of minority representation in 
particular schools ranging from 0 per cent to 49 per cent. 
In Little Rock Negro students comprise approximately 35 
per cent of the total student population in the district. 
Of the district’s 42 schools, Negro students comprise from 
1 to 15 per cent of the enrollment in ten schools, from 15 
per cent to 50 per cent of the enrollment in seven schools, 
from 50 per cent to 100 per cent in 15 schools, and ten of 
the district’s schools have no Negro students enrolled. 
Those schools having a high majority of Negro student 
enrollment are situated on the city’s east side, those hav­
ing a heavy predominance of white students are situated 
on the west side and the central city schools are generally 
substantially integrated. There is no contention that the 
boundaries of any zone were intentionally gerrymandered 
by the school district to include or exclude students be­
cause of their race. The faculty of every school in the 
district has not less than 14 per cent and not more than 
50 per cent Negro teachers. As approved by the district 
court, the plan would permit any student to elect to trans­
fer from a school in which his or her race is in the ma­
jority to a school where that race is a minority.

It was recognized by the district court and both opin­
ions of the court of appeals that the only alternatives 
available to the district to achieve a racial balance in 
each school in the district more closely approximating 
the racial ratio of Negro and white students in the entire 
district involved either tremendously expensive plans 
based on an “ educational park” or consolidation and pair­
ing concepts or the re-drawing of zone lines in an east- 
west direction with the initiation of a cross-busing pro­
gram to transport students from one side of the city past



— 11

the central city schools to schools in the opposite side of 
the city at an annual expense of $500,000.00.

The effect of the majority opinion below is to deny to 
the Little Rock School District the right to assign its pub­
lic school students as they are assigned, and have been for 
decades, by the vast majority of the nation’s school dis­
tricts. The Fifth Circuit Court of Appeals has noted that 
“ The neighborhood school system is rooted deeply in 
American culture.”  United States v. Jefferson Co. Bd. of 
Educ., 372 F. 2d 836, 879 (5 Cir. 1966), aff’d en banc, 380 
F. 2d 385 (5 Cir. 1967), cert, denied, 389 U. S. 840 (1967). 
In a decision in square conflict with that of the majority 
of the Court of Appeals in the case at bar, the Sixth Cir­
cuit Court said in Deal v. Cincinnati Board of Education, 
369 F. 2d 55 (6 Cir. 1966), cert, denied, 389 U. S. 847 
(1967), at page 60:

“ The neighborhood system is in wide use throughout 
the nation and has been for many years the basis of 
school administration. This is so because it is ac­
knowledged to have several valuable aspects which 
are an aid to education, such as minimization of safety 
hazards to children in reaching school, economy of 
cost in reducing transportation needs, ease of pupil 
placement and administration through the use of neu­
tral, easily determined standards, and better home- 
school communication. ’ ’

This system of student assignment has received the en­
dorsement of all three branches of the fedei’al government 
in the very context in which it was attacked in the courts 
below. That is, its effects on the allocation of students of 
different races among the schools. This Court in Brown 
recognized geographic districting as the normal method of 
pupil placement and did not foresee changing it as the re­
sult of relief to be granted in that case. Brown v. Board 
of Education, 347 U. S. 483, 495 note 13, question 4(a). 
The Congress spelled out the national policy pertaining to



12 —

racial considerations in public school assignment in un­
ambiguous terms in the Civil Rights Act of 1964. In the 
subchapter dealing with public education it provided:

“  ‘ Desegregation’ means the assignment of students 
to public schools and within such schools without re­
gard to their race, color’, religion, or national origin, 
but ‘ desegregation’ shall not mean the assignment of 
students to public schools in order to overcome racial 
imbalance.”  78 Stat. 246, 42 U. S. C., 2000-c(b) 
(1964).2

And, as noted in the dissenting opinion below, President 
Nixon in a recent public statement endorsed the neighbor­
hood school system and disapproved “ transportation of 
pupils beyond normal geographical school zones for the 
purpose of achieving racial balance # *

The constitutionality of neighborhood school zoning- 
plans has been upheld by many courts of stature although

2 The legislative history establishes beyond doubt that it was 
the intention of Congress to adopt, and thus confirm as the na­
tional policy, Judge Beamer’s interpretation of the Constitution 
in Bell v. School City of Gary, Ind., 213 F. Supp. 819 (N. D. 
Ind.), aff’d 324 F. 2d 209 (7 Cir. 1963), cert, denied, 377 U. S. 
924. Senator Humphrey, manager of the Bill in the Senate, 
made this statement during the debate:

“ Judge Beamer’s opinion in the Gary case is significant 
in this connection. In discussing this case, as we did many 
times, it was decided to write the thrust of the court’s 
opinion into the proposed substitute.” 110 Cong. Rec. 12715.

The “ thrust” of the Gary decision was accurately described 
by Senator Humphrey to be:

“ I should like to make one further reference to the Gary 
case. This case makes it quite clear that while the Con­
stitution prohibits segregation, it does not require integra­
tion. The busing of children to achieve racial balance 
would be an act to effect the integration of schools. In 
fact, if  the bill were to compel it, it would be a violation, 
because it would be handling the matter on the basis of 
race and we would be transporting children because o f race 
The bill does not attempt to integrate the schools, but it 
does attempt to eliminate segregation in the school systems ” 
110 Cong. Rec. 12717.



13

residential patterns produce racial imbalance in some of 
the schools. In addition to the decision of the Sixth Circuit 
Court in Deal, supra, and that of the Seventh Circuit Court 
in Gary, supra, see Springfield School Committee v. Barks­
dale, 348 F. 2d 261 (1 Cir. 1965); Swann v. Charlotte- 
Mecklenburg Bd. of Ed., 369 F. 2d 29 (4 Cir. 1966); Brous­
sard v. Houston Ind. S. Dist,, 395 F. 2d 817 (5 Cir. 1968), 
petition for rehearing en banc denied, 403 F. 2d 34 (5 Cir.
1968) ; Downs v. Board of Ed. of Kansas City, 336 F. 2d 
988 (10 Cir. 1964).

However, other decisions, notably in the Fifth Circuit, 
have invalidated geographic zoning plans where some 
measure of racial balance was not achieved in the enroll­
ment of students at schools in the district. See, e. g., 
United States v. Greenwood Municipal Separate School 
Dist., 406 F. 2d 1086 (5 Cir. 1969); Henry v. Clarksdale 
Municipal Separate School Dist., 409 F. 2d 682 (5 Cir.
1969) ; United States v. Indianola Municipal Separate 
School Dist., 410 F. 2d 626 (5 Cir. 1969).

Far from resolving the areas of controversy, this Court’s 
recent decisions in Green v. County School Board, 391 U. S. 
430 (1968); Alexander v. Holmes County Board of Edu­
cation, 396 IT. S. 19 (1969), and Carter v. West Feliciana
School Board, 396 U. S. 290 (1970), seem to have com­
pounded the confusion as to the ultimate goal sought while 
accelerating the deadline for its accomplishment. School 
boards were not alone in the resulting quandary; many 
courts faced with the responsibility of determining com­
pliance with the Constitution expressly decried the ab­
sence of criteria by which to determine whether or not a 
unitary system had been achieved and the “ cryptic”  na­
ture of this Court’s definition thereof. See, e. g., Bivins 
v. Bibb County, . . . F. Supp. . . .  (N. I). Ga., January 21,
1970) ; United States v. State of Georgia, . . .  F. Supp. 
. . .  (N. D. Ga., December 17, 1969); Beckett v. School 
Board of the City of Norfolk, 308 F. Supp. 1274 (D. C.



— 14 —

Va. 1969); Thornie v. Houston County, . . .  F. Supp. . . .  
(M. D. Ga., January 21, 1970); Hilson v. Washington 
County, . , .  F. Supp. . . .  (M. D. Ga., January 28, 1970); 
Graves v. Board of Education of North Little Rock, 299 
F. Supp. 843 (D. C. Ark. 1969); Northcross v. Board of 
Education of Memphis, 420 F. 2d 546 (6 Cir. 1970).

This dilemma was apparently recognized by Chief Jus­
tice Burger in his concurring opinion in Northcross v. 
Board of Education of the City of Memphis, 397 U. S. 232
(1970), where he observed:

“ . . . the time has come to clear up what seems to 
be a confusion, genuine or simulated, concerning this 
Court’s prior mandates.
# # #

. . we ought to resolve some of the basic practical 
problems when they are appropriately presented in­
cluding whether, as a constitutional matter, any par­
ticular racial balance must be achieved in the schools; 
to what extent school districts and zones may or 
must be altered as a constitutional matter; to what 
extent transportation may or must be provided to 
achieve the ends sought by prior holdings of the 
Court. Other related issues may emerge.”

That such conflicts presently exist is best illustrated by 
a comparison of the varying views asserted in opinions 
rendered within the last five months in courts of appeals 
for the Fourth and Fifth Circuits and those of the ma­
jority and dissenting opinions of the Eighth Circuit Court 
of Appeals herein.

One panel of the Court of Appeals for the Fifth Cir­
cuit unanimously concluded that a residential zoning sys­
tem in which each student was “ assigned to attend the 
school nearest his or her home, limited only by the ca­
pacity of the school, and then to the next nearest school”  
satisfied constitutional requirements. Ellis v. The Board



of Public Instruction of Orange County, Florida, 423 F.
2d 203 (5 Cir. 1970). Less than three months later, an­
other panel of that court concluded, also unanimously, 
that a similar residential zoning system did not meet con­
stitutional demands, and ordered that a majority to mi­
nority transfer right be adopted, that transportation be 
provided transferring students, and that they be given 
priority for assignment to any schools they choose. Single- 
ton v. Jackson Municipal Separate School System, . . . F. 
2d . . .  (5 Cir., May 5, 1970).

On the other hand, the Court of Appeals for the Fourth 
Circuit, sitting en banc in Swann v. Charlotte-Meeklen- 
burg Board of Education, . . .  F. 2d . . .  (4 Cir., May 26, 
1970), cert, granted No. 1713, 38 LW  3522 (June 29, 1970), 
divided three ways in its efforts to define what the Con­
stitution requires of a metropolitan school district. Three 
judges were of the opinion that the obligation of such dis­
tricts is to “ use all reasonable means”  to integrate all 
the schools, that a plan was not constitutionally deficient 
if such reasonable efforts failed to integrate all the 
schools, and that the amount of busing ordered by the 
district court to achieve racial balance in the elementary 
schools was unreasonable. Two judges thought that the 
district court was correct in setting as a goal the system- 
wide ratio of Negro and white students, and then re­
quiring sufficient busing of students to produce approxi­
mately that racial balance in each school. The third view, 
expressed by Judge Bryan, is that the district court erred 
in entering an injunction requiring the school authorities 
to transport students because “ Busing to prevent racial 
imbalance is not as yet a Constitutional obligation.”

It has already been noted herein that the Court of 
Appeals for the Eighth Circuit in its decision in this case 
published May 13, 1970, divided five to two on the ques­
tion of whether fairly drawn attendance zones for the 
assignment of students satisfied constitutional require­



— 16 —

ments. The state of the law in this area—the legal stand­
ards by which local school authorities must attempt to 
guide and measure their official conduct—is succinctly 
summarized in the dissenting* opinion below:

“ The District Courts and the Courts of Appeals are 
divided upon the constitutional validity of retaining 
geographical school zones fairly drawn without dis­
crimination. Such issue can only be authoritatively 
answered by the Supreme Court.”

The issues presented in Questions Presented Nos. 2 
through 5 are subsidiary to the fundamental issue con­
tained in Question Presented No. 1. However, they are 
necessary to preserve for consideration by this Court the 
consistent position maintained by petitioners in both 
courts below. That is, that the original command of 
Brown that public school systems must operate free from 
racial classifications has not been altered by this Court’s 
subsequent decisions in the matter. This was confirmed 
as recently as Alexander v. Holmes County Board of Ed­
ucation, 396 U. S. 19 (1969), in which this Court said it 
was the constitutional duty of every school district to 
operate “ school systems within which no person is to be 
effectively excluded from any school because of race or 
color.”

Each of the devices superimposed upon the petitioners’ 
admittedly fairly drawn zoning system by the district 
court, the subjects of Question Presented Nos. 3, 4, and 
5, define the rights of the students affected on a purely 
racial basis. If Alexander means what it says, each of 
these devices by which students are excluded from certain 
schools solely because of their race must be invalidated.

In the narrow context of the plight of the Little Rock 
School District that prompts the filing of this petition, 
this case has been remanded by the Court of Appeals with 
no standards by which the Board, or the district court,



— 17 —

can measure its legal obligations pertaining to school 
operations during the next school year which commences 
September 8, 1970. The dissent below noted that the 
Board is “ at a loss to know what course to take in de­
vising a desegregation plan”  and that the remand in 
these circumstances can “ only create confusion and lack 
of stability in the Little Rock school system.”

However, the circumstance that makes this case an ap­
propriate one for the earliest possible consideration of 
this Court is that metropolitan school districts all over 
the nation are in a like dilemma. The fundamental issue 
tried in this case, on a record meticulously made by both 
sides, was the validity of the neighborhood school concept 
of student assignment. Educational experts testified for 
both sides, and the district court squarely decided this is­
sue in a well reasoned opinion. It is therefore submitted 
that this case is a particularly suitable vehicle for this 
Court to resolve this question of urgent national im­
portance.

CONCLUSION

For the foregoing reasons it is submitted that the peti­
tion for certiorari should be granted to review the judg­
ment of the United States Court of Appeals for the Eighth 
Circuit.

Respectfully submitted

IIERSCHEL H. FRIDAY

ROBERT V. LIGHT

G. ROSS SMITH 
1100 Boyle Building 

Little Rock, Arkansas 72201 
Attorneys for Petitioners

July 15, 1970.



APPENDIX.



A -l —

APPENDIX A

United States Court of Appeals 
For the Eighth Circuit

No. 19,795.

Delores Clark, et ah,
Appellants,

v.

The Board of Education of the 
Little Bock School District, et al.,

Appellees.

No. 19,810.

Appeals from the 
United States Dis­
trict Court for the 
Eastern District of 
Arkansas,

Delores Clark, et al.,
Appellees,

v .

The Board of Education of the 
Little Bock School District, et al., 

Appellants. -

Opinion

[May 13, 1970.]

Before Van Oosterhout, Chief Judge; Matthes, Black- 
mun, Gibson, Lay, Heaney and Bright, Circuit Judges, 
En Banc.*

* Judge Mehaffy took no part in the consideration or decision 
of these appeals.



■— A-2 —

Matthes, Circuit Judge.

This appeal and cross-appeal from the judgment of the 
United States District Court for the Eastern District of 
Arkansas (the late and lamented Gordon E. Young) causes 
us again to consider whether the efforts of the Board of 
Education of the Little Eock, Arkansas, School District 
(hereinafter referred to as District or Board) to desegre­
gate its schools satisfy the Equal Protection Clause of the 
Fourteenth Amendment as interpreted in Brown v. Board 
of Education, 347 U. $. 483 (1954) (Brown I) and subse­
quent decisions of the Supreme Court which have deline­
ated the principles enunciated therein.

The process of desegregation in this District has been 
controversial and its long history is recorded in the deci­
sions cited in the margin.1 While we focus our attention 
on the events from 1966 to the present, it is necessary to 
briefly sketch the background against which these events 
are set. Up until 1954 and Brown 1, the District, pursuant 
to state law, operated separate educational facilities for 
black and white children. After much turmoil, and the 
passage of several years, students were assigned to schools 
according to the dictates of the Arkansas pupil placement 
statute. When this practice was found to contravene the 
Fourteenth Amendment,1 2 a “ freedom of choice”  plan was

1 Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956), aff’d 
243 F. 2d 361 (8th Cir. 1957) ; Aaron v. Cooper, 2 Race Rel. L. 
Rep. 934-36, 938-41 (E. D. Ark. 1957), aff’d Thomason v. Cooper, 
254 F. 2d 808 (8th Cir. 1958) ; Aaron v. Cooper, 156 F. Supp. 
220 (E. D. Ark. 1957), aff’d sub nom. Paubus v. United States, 
254 F. 2d 797 (8th Cir. 1958) ; Aaron v. Cooper, 163 F. Supp. 13 
(E. D. Ark.) rev’d 257 F. 2d 33 (8th Cir.), aff’d sub nom. Cooper 
v. Aaron, 358 U. S. 1 (1958) ; Aaron v. Cooper, 261 F. 2d 97 (8th 
Cir. 1958) ; Aaron v. Cooper, 169 F. Supp. 325 (E. D. Ark. 1959) ; 
Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d sub 
nom. Paubus v. Aaron, 361 U. S. 197 (1959); Aaron v. Tucker, 
186 F. Supp. 913 (E. D. Ark. 1960) rev’d Norwood v. Tucker, 
287 F. 2d 798 (8th Cir. 1961); Clark v. Board of Education of 
Little Rock, 369 F. 2d 661 (8th Cir. 1966).

2 Norwood v. Tucker, 287 F. 2d 798 ( 8th Cir. 1961).



adopted. In Clark v. Board of Education, 369 F. 2d 661 
(1966), we sanctioned “ freedom of choice”  in principle 
but found the District’s plan to be deficient in failing to 
provide adequate notice to the students and their parents 
and to provide a definite plan of staff desegregation. We 
remanded and directed the district court to retain juris­
diction to insure adoption and operation of a constitutional 
plan for the full desegregation of the Little Rock schools.

In August of 1966, four months prior to our decision in 
Clark, the Board apparently recognizing the inadequacy 
of its existing mode of desegregation, employed a team of 
experts from the University of Oregon to make a study 
of the system and prepare a master plan of desegregation. 
The team submitted its recommendations, the “ Oregon 
Report,”  in early 1967. In brief, the recommendations 
called for abandonment of the neighborhood school con­
cept and the development of an educational park system3 
through the institution of a capital building program and 
the pairing of schools. The cost of implementing the 
Oregon plan was estimated to be in excess of ten million 
dollars. In the November 1967 school board election at 
least one of the incumbent members of the Board who 
supported the “ Oregon Report”  was defeated and re­
placed by a candidate who opposed the report. The election 
results were interpreted as a public rejection of the “ Ore­
gon Report,”  and it was subsequently abandoned by the 
Board.

Still searching for a solution, the Board directed Floyd 
W. Parsons, Superintendent of Schools, and his staff to

3 The educational park concept, as applied to the Little Rock 
District, called for a single attendance zone coextensive with the 
school district boundaries. One high school was to be established 
drawing students from the entire District. Similarly, fewer middle 
schools and elementary schools would be operated, and those oper­
ated would be concentrated near the center of the District. Some 
pairing was contemplated at the elementary level. Obviously, im­
plementation of such a plan would necessitate transportation of 
some students from their homes to the schools.



A-4 —

prepare a comprehensive plan for desegregation of the 
schools. Acting accordingly, this group submitted a pro­
posal known as the “ Parsons Plan.”  The plan provided 
for desegregation of the high schools and two groups of 
grade schools. It made no provision for the junior high 
schools. The high schools were to be desegregated by 
“ strip-zoning”  the District geographically, generally from 
east to west so as to form three attendance zones for the 
high school students. The Horace Mann High School, an 
all Negro school, was to be abolished and utilized as an 
elementary facility, and additions were to be made to two 
of the three remaining high schools. The two groups of 
elementary schools were to be desegregated by pairing of 
schools within each group.4 5

The cost of implementing the “ Parsons Plan”  was esti­
mated at five million dollars,3 and a bond issue for that 
amount was submitted to the voters in March of 1968. 
Despite active campaigning by Superintendent Parsons 
and several Board members, the bond issue was decisively 
defeated, as were two incumbent members of the Board 
who supported the plan. Thus, as of March, 1968, the 
District, although recognizing the inadequacies of the ex­
isting means of desegregation, had been unable to develop 
and implement an acceptable alternative. And, students 
were assigned for the 1968-69 school year according to 
* ‘ f  reedom-of-choice. ’ ’

4 The “ Parsons Plan” called for the creation of two floating 
zones— the Alpha Complex in the northeastern corner of the Dis­
trict and the Beta Complex in the south central portion of the Dis­
trict. Within these two complexes there existed a number of ele­
mentary schools, some of which were predominantly black and 
others predominantly white. Under Mr. Parsons’ plan these ele­
mentary schools would be paired in order to achieve a “ reasonable 
racial _ ratio” in each of the schools. Some remodeling of existing 
facilities was contemplated in implementing the two complexes.

5 However, less than 40% o f this sum was directly related to 
achieving desegregation. The remaining 60% o f the cost arose from 
needs of the system apart from efforts to desegregate.



-~A~5

On June 25, 1968, plaintiffs moved the district court for 
further relief.6 The court responded by setting a hearing 
for August 15, 1968, and, by letter of July 18, 1968, sug­
gested to the Board that it devise a geographic zoning 
plan to correct student segregation. The Board was also 
admonished to devise a plan for faculty desegregation so 
that the racial division of the faculty in each school would 
approximate the racial breakdown of the faculty in the 
entire District. At the August 15th hearing the District 
presented an “ interim”  zoning plan which was admittedly 
incomplete and required more study, and requested that 
the “ freedom of choice”  method of pupil placement be 
retained for the 1968-69 school year. After the second day 
of testimony, the hearing was recessed to enable the Dis­
trict to formulate a final plan for the disestablishment of 
racial segregation to become effective at the beginning of 
the 1969-70 school year. Before recessing, the court re­
affirmed its earlier suggestion concerning faculty desegre­
gation and stated unequivocally that “ freedom of choice”  
as applied to the Little Rock schools would not satisfy the 
constitutional requirements. The Board was directed to 
file its plan not later than November 15, 1968.

During the Board’s deliberations two plans were sub­
mitted for its consideration and rejected. A group of 
Negro citizens offered the “ Walker Plan,”  so designated 
because John Walker, counsel for plaintiffs, was a moving 
force in its formulation. The “ Walker Plan”  contem­
plated grade restructuring and pairing of schools through­
out the District and at all grade levels. Substantial 
transportation of students would have been necessary to 
implement the plan. The Board also considered and re­
jected a proposal offered by two of its members calling

6 Several parties sought to intervene. A group of Negro chil­
dren, by their parents, were permitted to intervene as parties plain­
tiff. The Little Rock Classroom Teachers Association was also 
permitted to intervene.



— A-6 —

for retention of “ freedom of choice”  plus the reservation 
of space at predominantly white schools for Negro chil­
dren desiring to attend them. The Board finally adopted, 
with two members dissenting, a plan for pupil assignment 
based on geographic attendance zones.

Attached to this opinion is a reduced reproduction of 
Defendants’ Exhibit 22 depicting the geographic zones 
proposed, and designating the location of elementary, 
junior high and high school buildings. The elementary 
zones are defined by fine lines and the junior high zones 
by broad lines. On the original exhibit the high school 
zones are identified by four different colors. Because we 
were unable to reproduce the colors, we have highlighted 
the high school zone boundaries by a crossed line, and 
have appropriately designated the several colors of the 
original exhibit, Except for this alteration, the map is 
an exact reproduction of the original exhibit.

As illustrated by the map, the Little Rock School Dis­
trict is an irregular rectangle running from east to west. 
Natural boundaries on the north and south and the com­
mercial and industrial nature of the eastern portion have 
caused the city to expand toward the west. Generally 
speaking the eastern one-half of the District is inhabited 
predominantly by Negro citizens and the western one-half 
predominantly by white citizens.

At the beginning of the 1969-70 school year there were 
24,248 students in the system; 15,027 white and 9,221 
Negro. They attended five high schools, seven junior high 
schools, and thirty-one elementary schools throughout the 
District.

Under the District’s plan, all students were to attend 
schools serving their grade level in their zone of residence 
except: (1) students attending Metropolitan High School,7

7 Metropolitan High School is a vocational school which serves 
the entire District. No segregation exists as to this facility.



— A-7

(2) students in the 8th, 10th and 11th grades in 1969-70, 
who were permitted to choose between the school in their 
zone and the school they had previously attended8 and (3) 
children of teachers in the District, who could attend the 
school where their parents were employed. The proposal 
for faculty desegregation complied with the suggestion 
of Judge Young. It called for the assignment of teachers 
so that the percentage of Negro teachers in each school 
ranged from a maximum of 45% to a minimum of 15%.

Pursuant to the court’s direction at the conclusion of 
the August 16 hearing, the District submitted the plan 
now under consideration. On December 19, the hearing 
was resumed and additional evidence was introduced. On 
May 16, 1969, the district court filed its unreported opin­
ion. While approving the District’s plan in principle, the 
court amended it by: (1) redrawing the Hall High School 
zone to include approximately 80 additional Negro chil­
dren; (2) establishing a “ Beta Complex” ;9 (3) providing 
for majority to minority transfer of students.10

Both parties have appealed from the district court’s 
judgment.

A brief summary of the contentions urged upon us will 
suffice. Plaintiffs submit that the geographical zones as 
drawn merely serve to perpetuate the previously estab­
lished segregated attendance patterns of the students in 
the District. Neither the neighborhood school concept nor

8 This departure from geographical attendance zones was an ef­
fort to minimize disturbance of the extra-curricular patterns estab­
lished by students in these grades.

0 The court adopted in part Mr. Parsons’ concept calling for the 
pairing of certain elementary schools within a floating zone. See 
note 4 supra.

10 This provision of the court’s modification permitted students 
attending schools in which their race was in the majority to trans­
fer to schools in which their race was in the minority, subject to 
the availability of space in the transferee school.



— A-8 —

the possible necessity of busing, according to plaintiffs, 
excuses the District’s failure to achieve a unitary system 
devoid of racially identifiable schools. Lastly, they argue 
that the faculty assignment approved by the district 
court continues to preserve the racial identity of certain 
schools.11

Conversely, the District is of the firm conviction that 
the plan that it submitted to the district court is consti­
tutionally faultless. It reasons that the geographical zones 
were drawn without regard to race, and that, as such, the 
plan established a unitary system within the constitutional 
requirements. It is further asserted that the constitution 
does not require transportation of children outside the 
area of their residence in order to achieve racial balance 
in the schools, and indeed the assignment of pupils ac­
cording to race would itself be a violation of the Four­
teenth Amendment. According to the District, the neigh­
borhood school concept is educationally sound, and, in 
view of community attitudes, the only feasible means of 
operating the Little Rock system.

On cross-appeal the District objects to the district 
court’s departure from the geographical zoning scheme it 
submitted. It is argued that the gerrymandering of the 
Hall zone to include more Negro students and the ma­
jority to minority transfer provision are violative of the 
Fourteenth Amendment since they require racial distinc­
tions to be made. A similar objection is made to the 
“ Beta Complex” .

THE FACULTY

For the 1969-70 school year there were 1053 teachers 
employed by the District—29% Negro and 71% white. 
Under the plan adopted by the District and approved by 11

11 Plaintiffs also assert that the district court erred in refusing to 
allow them attorney fees.



— A-9

the district court, the percentage of Negro teachers in 
each of the schools varies from 14% to 50%.12 Plaintiffs 
complain that even under the approved plan there is a 
general pattern throughout the system whereby schools 
with a high proportion of Negro students (“ Negro 
schools” ) have a higher percentage of Negro teachers. 
They argue that this pattern tends to reinforce the racial 
identity of those schools.

Just as schools may be racially identified by the makeup 
of their student body, so may they be identified by the 
character of their faculty, and school boards are obligated 
to correct any previous patterns of discriminatory teacher 
assignment. One means of correcting such patterns is to 
assign teachers so that the ratio of Negro teachers to 
white teachers in each school approximates the ratio for 
the District as a whole. United States v. Montgomery 
County Board of Education, 395 U. 8. 225 (1969); Yar­
brough v. Hulbert— West Memphis School District, 380 
F. 2d 962 (8th Cir. 1967). However, the ultimate goal is 
the assignment of teachers solely on the basis of educa­
tionally significant factors, wherein race in and of itself 
is irrelevant.

The plan adopted by the District provides for the non- 
discriminatory assignment of teachers and affirmative 
steps to correct the existing imbalance. The experts 
agreed that the District’s plan was ambitious, and in 
fact some doubt was expressed as to whether it could be 
carried out. However, to a remarkable degree it has 
been implemented, and its implementation has radically 
changed the complexion of faculties throughout the dis­
trict, Where before Negro teachers were heavily con­
centrated in those schools long identified as Negro, they

12 The district court judge, on the basis of projected figures, 
thought the percentages would range from 15% to 45%. Because 
of resignations, attrition, etc. these figures proved slightly incorrect.



A-10 —

are now distributed throughout the District so that no 
school has more than 50% Negro teachers. Indeed, and 
particularly at the elementary level, in most of the schools 
the percentage of Negro teachers in any particular facility 
varies only slightly from the percentage of Negro teach­
ers in the District as a whole.

Therefore, we affirm the district court’s approval of the 
District’s plan with respect to faculty.13 See Kemp v. 
Beasley, . . .  F. 2d . . .  (8th Cir. 1970) (Kemp 111). The 
plan as implemented has corrected and exaggerated racial 
imbalance of teachers in the system. Faculty desegrega­
tion through teacher assignment is a dynamic process. The 
District has committed itself to the non-discriminatory as­
signment of teachers and the correction of previous segre­
gation, and has for the 1969-70 school year evidenced its. 
good faith in fulfilling these commitments. We are con­
fident that any remaining vestiges of faculty segregation 
will be corrected by the District’s continuing efforts.

STUDENTS

After deliberate consideration, we are driven to the con­
clusion that the proposal for student desegregation does 
not comport with the recent pronouncements of the Su­
preme Court, hence it must be rejected. We hasten to 
add, however, that significant progress has been made by 
the District. For example, Central High School, the scene 
of so much turmoil in 1956, is now desegregated— 1,542 
white, 512 Negro. So too are several other previously all­
black or all-white schools. However, as we recognized in

13 Compare the order of Judge Johnson in Carr v. Montgomery 
County Board of Education, 289 F. Supp. 647 (M . D. Ala. 1968). 
In a district where the faculty ratio was 3 to 2, the order required 
that in the coming school year only 1 of every 6 members of each 
school’s faculty be from the race which was in the minority in 
that particular faculty. This was approved in United States v. 
Montgomery County Board of Education, 395 U. S. 225 (1969).



A -ll

Kemp III, supra, the finding of some progress does not 
end the inquiry whether the particular District has satis­
fied its constitutional obligations.

It is, of course, axiomatic that the operation of separate 
schools for black and white children under sanction of 
state law is violative of the Fourteenth Amendment. As 
the Court observed in Brown I, supra, in the field of edu­
cation “ separate facilities are inherently unequal.”  And in 
Brown II, 349 U. S. 294 (1955), school districts which had 
previously operated “ separate”  schools were ordered to 
take the necessary action to eradicate this constitutional 
violation. The question now before us is whether the 
District has fulfilled its constitutional obligation to convert 
what admittedly was a segregated school system to a 
“ unitary system in which racial discrimination would be 
eliminated root and branch.”  Green v. County School 
Board of New Kent County, 391 U. S. 430, 438 (1968).

Principal guidance from the Supreme Court as to this 
issue is to be found in the trilogy of cases decided in 1968. 
Green v. County School Board of New Kent County, supra; 
Raney v. Board of Education of Gould School District, 391 
U. S. 443 (1968); Monroe v. Board of Commissioners of 
City of Jackson, 391 U. S. 450 (1968). Each of the school 
districts there involved had adopted “ freedom of choice”  
plans (or modifications thereof) for pupil assignment. In 
general the ‘ ‘ freedom of choice ’ ’ plans under consideration 
had not significantly altered attendance patterns which 
had been established by pre-Brown I state segregation 
laws. “ Negro schools”  continued to be attended by Negro 
students and “ white schools”  by white students. For ex­
ample, in Green 85% of the Negro children continued to 
attend the all Negro school. Despite the School Board’s 
contention in Green that it had “ fully discharged its obli­
gation by adopting a plan by which every student, regard­
less of race, may ‘ freely’ choose the school he will attend.”  
391 U. S. at 437, the Court found that “ freedom of choice”



— A-12 —

as applied to these three districts did not meet the con­
stitutional requirements.

The thrust of all three opinions is that the manner in 
which desegregation is to be achieved is subordinate to 
the effectiveness of any particular method or methods of 
achieving it. The following language is instructive:

4 ‘ The burden on a school board today is to come for­
ward with a plan that promises realistically to work, 
and promises realistically to work now.

The obligation of the district courts, as it always 
has been, is to assess the effectiveness of a proposed 
plan in achieving desegregation. There is no universal 
answer to complex problems of desegregation; there 
is obviously no one plan that will do the job in every 
case. The matter must be assessed in light of the cir­
cumstances present and the options available in each 
instance. It is incumbent upon the school board to 
establish that its proposed plan promises meaningful 
and immediate progress toward disestablishing state- 
imposed segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts at hand 
and in light of any alternatives which may be shown 
as feasible and more promising in their effective­
ness . . . .

We do not hold that ‘ freedom of choice’ can have 
no place in such a plan. We do not hold that a ‘ free­
dom of choice ’ plan might of itself be unconstitutional, 
although that argument has been urged upon us. 
Eather all we decide today is that in desegregating a 
dual system\ a plan utilizing ‘ freedom of choice’ is not 
an end in itself.”  391 U. S. at 439-40. (Emphasis in 
the second and third paragraphs supplied.)

More recent pronouncements by the Court are consistent 
with this pragmatic approach. In Alexander v. Holmes 
County Board of Education, 396 U. S. 19 (1969), the Court 
ordered the “ immediate”  termination of dual school sys-



terns and the operation of “ unitary school systems within 
which no person is to be effectively excluded from any 
school because of race or color.”  Id. at 20. (Emphasis 
supplied.)

Review of desegregation decisions from this circuit re­
veals that we too have tested proposed plans of desegre­
gation by their effectiveness. For instance, ten years ago 
we held that the Arkansas pupil placement statute, on its 
face a non-discriminatory and educationally rational 
means of pupil placement, could not be used to assign stu­
dents, if it failed to correct the segregated character of 
the system. Dove v. Parham, 282 F. 2d 256 (8th Cir. 
I960).14 In 1969, prior to the Green trilogy, we wTere faced 
with a “ freedom of choice”  plan. Kemp v. Beasley, 389 
F. 2d 178 (8th Cir. 1968) (Kemp II). It too was asserted 
to be educationally sound and devoid of racial considera­
tions. However, we tested “ freedom of choice”  as ap­
plied in that particular instance and found it lacking; not 
by viewing it in the abstract, but rather by considering 
whether it effectively advanced the desegregation process. 
Our analysis in Kemp II was, of course, approved by the 
Green trilogy.15 And, only very recently wTe again found 
“ freedom of choice”  to be constitutionally deficient in 
Kemp III, supra. Although desegregation had been ac­
complished at the high school level by pairing and the 
junior high level by “ freedom of choice,”  application of 
“ freedom of choice”  to the elementary grades left 5 of 
the 10 schools racially identifiable. We ordered the Dis­
trict to take the necessary steps to correct the segregated 
character of those 5 elementary schools.

Thus, as of this date, it is not enough that a scheme for 
the correction of state sanctioned school segregation is

14 See also, Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961).

15 Indeed Kemp II was cited with approval. 391 U. S. at 440.



---A-14

non-discriminatory on its face and in theory. It must also 
prove effective. As the Court observed in Green:

“ In the context of the state imposed pattern of long 
standing, the fact that in 1965 the Board opened the 
doors of the former ‘white’ school to Negro children 
and of the ‘ Negro’ school to white children merely 
begins, not ends, our inquiry whether the Board has 
taken steps adequate to call for the dismantling of 
a well-entrenched dual system.”  391 U. S. at 437.

We believe that geographic attendance zones, just as the 
Arkansas pupil placement statutes, “ freedom of choice”  
or any other means of pupil assignment must be tested by 
this same standard.16 In certain instances geographic zon­
ing may be a satisfactory means of desegregation. In 
others it alone may be deficient. Always, however, it must 
be implemented so as to promote desegregation rather 
than to reinforce segregation. See United States v. In- 
dianola Municipal Separate School District, 410 F.2d 626 
(5th Cir. 1969); Henry v. Clarksdale Municipal Separate 
School District, 409 F.2d 682 (5th Cir. 1969); United 
States v. Greenwood Municipal Separate School District, 
406 F. 2d 1086 (5th Cir.), cert, denied, 395 U. S. 907 (1969).

When viewed in context of the above principles, the plan 
approved by the district court is constitutionally infirm.

16 The Board’s reliance on language in Green for the proposition 
that geographic zoning in and of itself is constitutionally mandated 
is misplaced. In two places in the Green opinion the Court did 
refer to geographic zoning as a possible alternative to “ freedom of 
choice.”  However, it is clear when considered in context, that the 
Court was limiting its suggestion to the Kent district, a district 
without residential segregation. Indeed footnote 6 quotes with ap­
proval a paragraph from the concurring opinion in Bowman v. 
County School Board, 382 F. 2d 326 (4th Cir. 1967), in which it 
is stated, " . . .  a geographical formula is not universally appro­
priate.” Id. at 332. Any other reading of the Green decision would 
be entirely inconsistent with the Court’s declaration that the ulti­
mate test is effectiveness and many plans may or may not prove 
effective in a particular instance. See also the footnote appearing' 
at 391 U. S. 460. F s



—  A -15 —•

For a substantial number of Negro children in the Dis­
trict, the assignment method merely serves to perpetuate 
the attendance patterns which existed under state man­
dated segregation, the pupil placement statute, and “ free­
dom of choice” 17—all of which were declared unconstitu­
tional as applied to the District. In short the geographical 
zones as drawn tend to perpetuate rather than eliminate 
segregation.18 Several examples are illustrative. During 
the 1968-69 school year, under “ freedom of choice”  Mann 
High School, located in the eastern portion of Little Rock 
and historically an all Negro school, was attended by all 
Negroes. In this school year it is attended by 838 Negroes 
and 4 whites. Parkview High and Hall High, historically 
white schools,19 have 45 Negro and 793 white and 40 Negro 
and 1,415 white students, respectively. Prior to this year 
both Booker Junior High20 and Dunbar Junior High21 
were all Negro. Now they are attended by 733 Negro and 
20 white and 685 Negro and 18 white students, respec­
tively. Two junior high schools located in the western por­
tion of the city are attended by similar proportions of 
students with white students predominating. At the ele­
mentary level, Carver, Gillam, Granite Mountain, Ish, 
Pfeifer, Rightsell, Stephens, and Washington all have 95%

17 Under “ freedom o f  choice” in 1968-69 approximately 75% of 
the Negro students attended schools in which their race constituted 
90% or more of the student body. The plan adopted by the dis­
trict court reduces this percentage by only 6%.

1S It was agreed by all the experts that zone lines for the Dis­
trict would have to be drawn from east to west if previously es­
tablished attendance patterns were to be broken.

19 Both of these schools were constructed after 1956.

20 This school, named after a prominent Negro, was constructed 
in 1963. Only Negro children were assigned to it and it was staffed 
by Negro teachers.

21 Prior to 1954, Dunbar was the Negro junior high school for 
the District.



— A-16 —

or more Negro students.22 In a number of other elemen­
tary schools the reverse is true. All of the foregoing 
schools are racially identifiable.

While it is true that the majority to minority transfer 
provision has the potential for alleviating the situation to 
an extent, it is in large part an illusory remedy. No trans­
portation is provided for those children choosing to take 
advantage of it. And, it requires little insight to recognize 
that the children who are most likely to desire transfer 
are those least able to afford their own transportation. 
Moreover, there is no assurance that space will be avail­
able in the schools to which most of the transfers would 
probably occur.23

Alternative means of pupil assignment which would pro­
vide more effective desegregation were and are available 
to the District. Indeed, several such means were embodied 
in plans submitted to and considered by the Board. We 
point this out not as an endorsement of any particular 
plan, but merely to emphasize that alternatives are avail­
able. Of particular significance is the “ Parsons Plan,”  
which was developed by a group of educators closely af­
filiated with the District and presumably quite sensitive 
to the educational needs and problems of the community. 
It was long ranged and comprehensive. If implemented, it 
would have cured the isolation of Mann High School as a 
Negro facility. The “ Parsons Plan”  also would have

22 Carver, Granite Mountain, Pfeifer, and Washington were 
operated as “ Negro schools”  under state-imposed segregation. 
Rightsell was converted to a “ Negro school” in 1961. Gillam and 
Ish, named after prominent Negroes and located in Negro neigh­
borhoods, were constructed in 1963 and 1965, respectively. They 
were staffed by Negroes and have always been attended almost 
solely by Negro students.

23 Compare the transfer provision adopted in Ellis v. Board of 
Public Instruction of Orange County, . . . F. 2d . . . (5th Cir. Feb. 
17, 1970), which provided transportation for children choosing to 
transfer and insured that space would be available in the trans­
feree schools.



— A-17 —•

erased the racial identity of several elementary schools 
which exists under the plan now before us. It enjoyed the 
support of the Board and the professional staff of the 
system.

Because of community opposition to the plan, as mani­
fested in the defeat of a millage increase necessary to 
finance its implementation, the “ Parsons Plan”  was not 
adopted. Similarly, community opposition was a substan­
tial factor in rejection of other promising plans. We are 
not unmindful of the difficult nature of the Board’s duties 
in this District.24 However, it has long been the law of the 
land that community opposition to the process of desegre­
gation cannot serve to prevent vindication of constitutional 
rights. Monroe v. Board of Commissioners of the City of 
Jackson, supra; Aaron v. Cooper; 358 IT. S. 1 (1958); Jack- 
son v. Marvell School District No. 22, 416 F.2d 380 (8th 
Cir. 1969). Accordingly, we are not at this time prepared 
to hold that the geographical zoning plan adopted by the 
lower court is the only “ feasible”  means of assigning 
pupils to facilities in the Little Rock School System. 
Green v. County Board of Education of New Kent County, 
391 U. S. at 439.

CROSS-APPEAL

By way of cross-appeal defendants challenge those pro­
visions of the district court’s order departing from the 
geographical zoning plan submitted by the Board. Since 
we have found the plan adopted by the district court to be 
deficient in the aforementioned particulars thereby requir­
ing remand for adoption of an entirely new7 plan, defend­
ants’ objections become somewhat academic. Nevertheless, 
we briefly address ourselves to the contention that any 
consideration of race in the placement of pupils is a 
violation of the Fourteenth Amendment.

24 Aaron v. Cooper, 257 F. 2d 33, 39 (1958).



— A-18

This argument is not new and has been previously heard 
and rejected by this court, iKemp II, 389 F. 2d at 187-88. 
See also United States v. Jefferson County Board of Edu­
cation, 372 F. 2d 836, 876-78 (5th Cir. 1966); Wanner v. 
County School Board, 357 F. 2d 452, 454-55 (4th Cir. 1966); 
Fiss, Racial Imbalance in the Public Schools: The Con­
stitutional Concepts, 78 Harv. L. Rev. 564, 577-78 (1965). 
As the Wanner court observed it would be somewhat 
anomolous to prevent correction of previous segregation 
under the guise that the remedy impermissibly classifies 
by race. Accordingly, we are not persuaded by defendants’ 
contention that the Fourteenth Amendment prohibits the 
drawing of geographic zones to promote desegregation, 
the majority to minority transfer plan, or any other con­
sideration of race for the purpose of correcting uncon­
stitutionally imposed segregated education.

REMEDY

This court has long recognized that it should not en­
deavor to devise a plan of desegregation for any school 
district. Kemp III, supra; Yarbrough v. Hulbert—West 
Memphis School District, supra; Clark v. Board of Educa­
tion of Little Rock, supra; Kemp v. Beasley, 352 F. 2d 14 
(8th Cir. 1965); Aaron v. Cooper, 257 F. 2d 33 (8th Cir. 
1958). This task is basically within the province of the 
school board under the supervision of the district court. 
We continue to adhere to this philosophy. In light of the 
size and complexity of the Little Rock School District it 
is additionally important that the Board be afforded ample 
opportunity to formulate a comprehensive plan of de­
segregation. Nor do we believe it proper to direct the 
Board to adopt a particular means of school desegrega­
tion. As was observed in Green v. County Board of Educa­
tion of New Kent County, supra, there are a variety of 
methods of desegregation, and no particular method is



A-19 —

universally appropriate. Considering the unique problems 
facing the District any one of several different methods, 
or a combination thereof, may be deemed appropriate. 
We leave this decision to the school board and the sound 
discretion of the district court. We do, however, strongly 
suggest that the Board consider enlisting the services of 
the Department of Health, Education and Welfare in de­
veloping an acceptable scheme of desegregation.

Consistent with these above views we consider several 
questions either implicitly or explicitly raised in the 
parties’ briefs and oral arguments.

As in Kemp 111, supra, we do not hold that precise 
racial balance must be achieved in each of the several 
schools in the District in order for there to be a “ unitary 
system”  within the meaning of the constitution. Nor do 
we hold that geographical zoning or the neighborhood 
school concept are in and of themselves either constitu­
tionally required or forbidden. See Kemp 111. We merely 
hold that as employed in the plan now before us they do 
not satisfy the constitutional obligations of the District. 
By so holding we express no opinion as to the relative 
merits or demerits of the neighborhood school.

Lastly, we do not rule that busing is either required or 
forbidden. As Judge Blackmun stated in Kemp 111, “ Bus­
ing is only one possible tool in the implementation of uni­
tary schools. Busing may or may not be a useful factor in 
the required and forthcoming solution of the . . . prob­
lem which the District faces.”  . . .  F. 2d . . . .  We observe 
in passing, however, that busing is not an alien practice 
in the state of Arkansas or this District. Some busing was 
employed by the District in the past to preserve segre­
gated schools. Presently the District, through the use of 
federal Hinds, aids some children in eastern Little Rock 
who use public transportation to travel to schools, and 
some private busing occurs in the western portion of the



city. Of course, busing of school children is a common 
practice in many less urban areas of the state and is par­
tially subsidized with state funds.

The case is remanded to the district court with direc­
tions to require the school district to file in the district 
court on or before a date designated by it a plan consistent 
with this opinion for the operation of the system “ within 
which no person is to be effectively excluded from any 
school because of race or color.’ ’ Alexander v. Holmes 
County Board of Education, 396 U. S. at 20. The plan shall 
be fully implemented and become effective no later than 
the beginning of the 1970-71 school year. The district 
court shall retain jurisdiction to assure that the plan ap­
proved by it is fully executed.

Because of the urgency of formulating and approving 
an appropriate plan, our mandate shall issue forthwith 
and will not be stayed pending petitions for rehearing or 
certiorari.

Costs are allowed to plaintiffs. On remand the question 
of attorney fees may again be presented to the district 
court.

Van Oosterhout, Chief Judge, and Gibson, Circuit Judge, 
dissenting in part.

Judge Matthes’ carefully prepared majority opinion 
fairly sets out the pertinent facts and issues presented by 
the appeal and cross-appeal in this case. We are in agree­
ment with his determination that the plan should be ap­
proved as to the faculty desegregation, and also with his 
affirmance on the cross-appeal. We likewise agree that 
the court properly retained jurisdiction of the case.

With reluctance, we find it necessary to dissent from the 
holding of the majority that the plan for student desegre­
gation should be rejected. The late Judge Young, a very

— A-20 —



— A-21

able and conscientious judge, heard this case. He advised 
the Board that the existing freedom of choice plan, which 
was being fairly administered, did not meet standards for 
desegregation set by the Supreme Court and he directed 
the Board to present a geographical zoning plan. After 
much study, the Board presented such a plan. An exten­
sive evidentiary hearing was held at which school experts 
testified on behalf of each of the parties. The cause was 
well tried by able counsel for all parties. In due course, 
Judge Young filed a well-considered opinion setting forth 
the law, the evidence and his conclusions. Included in his 
findings of fact is the following:

“ As shown by Defendants’ Exhibit 22, the Board’s 
plan for geographical attendance zones, assuming the 
legality of the neighborhood school concept, seems 
fairly and equitably drawn. There is no indication of 
gerrymandering. ’ ’

Such finding is not contested by plaintiffs. It is supported 
by substantial evidence and is not clearly erroneous.

Judge Young modified the plan in the manner set forth 
in the majority opinion. The principal effect of the modifi­
cation was to impose upon the geographical zoning a 
freedom of choice option which would allow any student 
whose race was in the majority in any school to transfer 
to a school where his race was in the minority. As stated 
by Judge Young, this modification would permit Negro 
students who would otherwise be locked into predominantly 
Negro schools to transfer to predominantly white schools. 
Other modifications made, which Judge Young conceded 
were gerrymandering, were designed to further racial bal­
ance in the schools. The Board’s plan as modified was 
approved. The court in its decree retained jurisdiction 
over the case and required the Board to report further 
upon the operation of the plan.

For the reasons assigned by Judge Young in his well- 
considered opinion, we believe the modified plan as ap­



-—A-22

proved meets constitutional standards. Everything has 
been done that could be done short of abandonment of the 
neighborhood school system to eliminate segregation. 
Plaintiffs have pointed to no existing state law that pre­
vents desegregation or integration and we find no such law. 
It can no longer be fairly said that the desegregation 
process is impeded by state law.

Geographic attendance zones fairly laid out without ra­
cial discrimination by a unitary system should meet the 
constitutional standards set forth in Brown 1 and sub­
sequent Supreme Court cases commanding a racially non- 
discriminatory school system. There is no question here 
of dual attendance zones or of a state imposed pattern of 
segregation.

The neighborhood school concept, as shown by expert 
testimony in the record, is a well-established and accept­
able means of providing a proper educational program 
in all sections of the country for people of all nationalities 
and races. President Nixon in a recent public statement 
has said neighborhood schools “ will be deemed the most 
appropriate base”  for an acceptable school system, and 
“ transportation of pupils beyond normal geographical 
school zones for the purpose of achieving racial balance 
will not be required.” 1

1 The Gallup poll published in many papers on April 5, 1970, in­
cludes the following conclusions:

“ By the lopsided margin of eight to one, parents vote in op­
position to busing, which has been proposed as a means of 
achieving racial balance in the nation’s classrooms.

“ Opposition to busing arises not from racial animosity but 
from the belief that children should attend neighborhood 
schools and that busing would mean higher taxes. This is seen 
from a comparison of attitudes on busing with those on mixed 
schools.
*  *  *  *

“ When Negro parents are asked the same series of ques­
tions, the weight of sentiment is found to be against busing.’ ’



A-23

The basic issue presented on this appeal appears to be 
whether upon the facts disclosed by the record a fairly 
established geographical zoning system for neighborhood 
schools must be abolished in order to attain racial balance 
and if so, whether such balance in each school must closely 
approach the percentage of each race in the district.

It would appear from the record before us that such 
racial balance could only be accomplished by pairing white 
and Negro districts, a considerable distance from each 
other. On this issue, Judge Young states:

“  [T]he plaintiffs attack the neighborhood school prin­
ciple, saying it has no validity and that the geographic 
attendance zones should run lengthwise the District. 
This, as they admit, would involve compulsory trans­
portation of students by bus for distances at least six 
to eight miles. This is so because the schools in the 
central part of the City, including Central High, are 
largely integrated, and the great disparity between 
the races exists in the extreme eastern and western 
parts. Therefore, transportation of pupils would con­
sist largely of transportation from the extreme east-to- 
west and vice versa, traversing the crowded traffic 
conditions of the middle section, including the down­
town district. Thus, high school pupils from Horace 
Mann in the east would have to be transported past 
Central to Hall High in the west, or vice versa. The 
same would be true in a lesser degree with the junior 
high and elementary schools.”

The District Courts and the Courts of Appeals are 
divided upon the constitutional validity of retaining geo­
graphical school zones fairly drawn without discrimina­
tion. Such issue can only be authoritatively answered by 
the Supreme Court, While broad language in some of the 
Court’s opinions could arguably be subject to an inter­
pretation that some degree of racial balance is required,



A-24

it is our view that the Supreme Court has not decided this 
issue. See Chief Justice Burger’s concurring opinion in 
Northcross v. Board of Education, . . .  U. S. . . .  (March 9, 
1970).

The exhibits in the record reflect that in northern states 
as well as in the south, the Negro population is frequently 
concentrated in certain geographical areas and that as a 
result in many northern metropolitan areas some neigh­
borhood schools serve predominantly only Negro students. 
Absent state law forcing segregation, as is the situation 
here, we see no racial discrimination or violation of equal 
protection. The Constitution should be applied uniformly 
in all sections of this country.

The approved plan has been in operation only a short 
time. Particularly in light of the freedom of choice option 
superimposed upon the geographical zoning, no reliable 
prediction can be made as to the effect of the plan on 
desegregation.

Moreover, any resident of a geographical school zone is 
entitled to attend the school serving his zone regardless 
of race. Federal law now prohibits racial discrimination 
in the sale of homes. It is quite possible that acquisition 
of homes by Negroes in predominantly white zones will 
promote racial balance in the schools. The approved 
teacher desegregation plan should also produce more ra­
cial balance.

The busing issue is subsidiary to the neighborhood 
school issue. Busing is of course, frequently provided to 
transport pupils living at a substantial distance from the 
schools, particularly in sparsely settled areas. Here a 
neighborhood school is at hand. Judge Young states that 
the evidence shows that the annual cost of busing in event 
of the proposed pairing of districts is $500,000, which ap­
parently is exclusive of required capital expenditure. The



A-25 —

busing issue presents the additional problem of whether 
such a substantial outlay could not be better used for 
educational purposes.

Absent authoritative guide lines from the Supreme Court 
as to the constitutional status of neighborhood schools in 
metropolitan districts, the Board upon remand would be 
at a loss to know what course to take in devising a de­
segregation plan. The remand for the proposal and con­
sideration of a new plan for desegregation, absent more 
specific guide lines, would only create confusion and lack 
of stability in the Little Rock school system.

We would affirm the order and judgment of the trial 
court in its entirety.

A  true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.



— A-26 —

APPENDIX B

United States Court of Appeals 
for the Eighth Circuit

September Term, 1969

No. 19,795
Delores Clark, et al.,

vs. Appellants,

The Board of Education of the Lit­
tle Rock School District, et al.,

Appellees.

No. 19,810
Delores Clark, et al.,

vs Appellees,

The Board of Education of the Lit­
tle Rock School District, et al., 

Appellants.

Appeals from the 
United States Dis­
trict Court for the 
Eastern District of 
Arkansas.

Judgment

(Filed May 13, 1970)

These Causes came on to be heard on the joint appendix 
and briefs and was argued by counsel for the respective 
parties.

On Consideration Whereof, it is now here ordered and 
adjudged by this Court that these causes be, and the same 
are hereby, remanded to the said District Court with di­
rections consistent with the majority opinion of this Court 
this day tiled herein.

And it is further ordered by this Court that the Man­
date in these causes issue forthwith to the said District 
Court, and Mandate will not be stayed pending petitions 
for rehearing or certiorari.



APPENDIX C

In the United States District Court 
Eastern District of Arkansas 

Western Division

Delores Clark, et al.,

v.
Plaintiffs,

The Board of Education of the Little 
Rock School District, et al., 

Yolanda G-. Townsend, a Minor, et al., 
Plaintiff-Intervenors,

„ No. LR-64-C-155.

Little Rock Classroom Teachers As­
sociation,

Intervenors.

Memorandum Opinion

(Filed May 8, 1969)

History of This Case.

On November 4, 1964, five Negro children, joined by 
their parents, filed their complaint in this case, seeking 
to enjoin the Little Rock School Board from refusing 
them admission to certain Little Rock schools because of 
their race. Aside from the inability of these children to 
attend the schools of their choice, the principal attack in 
the complaint was directed against the Little Rock Board’s 
use of the Arkansas Pupil Assignment Law. The plaintiffs 
urged in their complaint that attendance zones be created 
by the Board on a non-racial basis.

On April 23, 1965, the Board filed a “ Supplemental Re­
port,”  requesting the abandonment of the Board’s use of



A -2 8  —

the Arkansas Pupil Assignment Plan and the adoption of 
a “ Freedom of Choice”  plan.

The plaintiffs, in their memorandum brief filed Febru­
ary 4, 1965, stated that (quoting Northcross v. Board of 
Education, 302 F. 2d 818, 823):

“ Minimal requirements for non-racial schools are 
geographic zoning, according to the capacity and 
facility of the buildings and admission to a school 
according to residence as a matter of right.”

In plaintiffs’ response to the Board’s motion to proceed 
under the freedom of choice plan, plaintiffs again asked 
that the Court require the Board to generally reassign all 
pupils to geographic attendance areas.

On January 14, 1966, the Court filed a memorandum 
opinion approving the freedom of choice plan proposed 
by the Board.

Plaintiffs then appealed to the United States Court of 
Appeals for the Eighth Circuit, which affirmed the free­
dom of choice plan, with a minor modification as to 
sufficiency of notice to be given to pupils and their 
parents, and with the further requirement that the Board 
take more positive and definitive action in regard to de­
segregation of faculty and staff. Clark v. Board of Edu­
cation of Little Rock School Dist., 369 F. 2d 661 (8 Cir. 
1966).

On June 25, 1968, plaintiffs filed a motion for further 
relief, asking, among other things, that the Board be 
required to submit a plan for the assignment of all stu­
dents upon the basis of a unitary system of non-racial 
geographic attendance zones, or a plan for the consoli­
dation of grades or schools or both. Several parties 
sought leave to intervene in the action. One group was 
permitted to intervene as additional parties plaintiff; the 
Little Bock Classroom Teachers Association was also



A-29 —

permitted to intervene, although it took no active part 
in the proceedings; the other motions for leave to inter­
vene were denied.

On July 17, 1968, the Board filed its answer to the 
motion for further relief. Essentially, it stated that after 
the United States Supreme Court decisions in the Greene, 
Raney and Monroe cases (May 27, 1968) the School Board 
had appointed a committee to determine what feasible 
changes and alternatives to the desegregation procedures 
of the District were available—that this committee had 
met several times, but before it could conclude its work 
plaintiffs’ motion was filed.

It stated that the committee would continue its work, 
and expressed the commitment of the Board to proceed 
affirmatively in good faith, etc.

On July 18, 1968, the Court wrote a letter to counsel 
for the School Board, as follows:

“ I consider the answer of the defendants to the mo­
tion for further relief as essentially meaningless and 
an evasion of the Board’s responsibilities under the 
law.
“ A hearing on the motion for further relief is set 
for Thursday, August 15, at 9:30 a. m.
“ Because of the short time between now and the 
new school year, I suggest that the Board and its 
staff immediately begin the formulation of a plan 
for the division of the school system into compulsory 
attendance areas and the re-assignment of the faculty 
to each school in accordance with the ratio between 
the races in the system.
“ This letter shall be made a part of the record.”

A hearing was held on the motion and answer on Au­
gust 15 and 16, 1968. At the conclusion of the second



— A-30

day, plaintiffs’ counsel moved to adjourn the hearing to 
permit the defendant Board to submit a revised plan.

As required by the Court, the defendant Board filed its 
report and revised plan on November 15, 1968. The case 
was set for trial on December 19, and testimony was heard 
for three more days—December 19, 20 and 24, 1968.

This memorandum opinion is based on the pleadings 
and the hearings held on those dates.

The Proposed Plan of the Little Rock School Board Filed 
November 15, 1969

The proposed plan is in the form of a resolution adopted 
by the Board of Directors of the Little Rock School Board 
on November 15, 1969. It is as follows:

“ Be It Resolved by the Board of Directors of the 
Little Rock School District of Pulaski County, 
Arkansas:

“ That the following desegregation plan for the 
Little Rock School District for the 1969-70 school 
year be adopted and presented to the Honorable Gor­
don Young, U. S. District Judge, pursuant to his 
Order of August 16, 1968, entered in the case of 
Delores Clark, et al., v. Board of Education of Little 
Rock School District, et al.”

“ A. Faculty
“ The Little Rock Public Schools will assign and 

reassign teachers for the 1969-70 school year to 
achieve the following:

“ 1. The number of Negro teachers within each 
school of the district will range from a minimum of 
15% to a maximum of 45%.

“ 2. The number of white teachers within each 
school of the district will range from a minimum of 
55% to a maximum of 85%.



A-31

“ B. Students
“ The Little Rock School District will be divided 

into geographic attendance zones for elementary, 
junior high, and senior high schools as indicated on 
the accompanying map. All students residing in the 
designated zones will attend the appropriate school 
in that zone with the following exceptions:

“ 1. The Metropolitan Vocational-Technical High 
School will serve students from the entire district. 
Students will indicate their desire to attend Metro­
politan before May 1, 1969. Actual assignments will 
be determined from objective test results on one or 
more vocational-technical aptitude inventories.

“ 2. All teachers, who desire to do so, may enroll 
their children in the schools where they are assigned 
to teach.

“ 3. All students presently in the 8th, 10th, and 
1.1th grades will be required to choose between the 
school that they now attend or the appropriate 
school located in the zone of residence for the 1969- 
70 school year.”

Description of the Little Rock School District

The Little Rock School District is semi-rectangular 
geographically, running from east to west. Its border 
on the north is the Arkansas River, which separates Little 
Rock from North Little Rock. On the south side lies 
what is called the Fourche River bottoms. This is a low 
area and not suitable for the erection of homes. It is, 
therefore, an effective barrier to expansion of the District 
southward until the western part of the school area is 
approached. The eastern part is commercial and indus­
trial in nature. Thus, the District is narrow north and 
south until the western end of the District is approached, 
where the Arkansas River makes a northwesterly turn, 
and the end of the Fourche bottom area is reached. This



— A-32

extreme western area and the southwestern area furnish 
the only basis for expansion of the City and the School 
District, and it is these areas where nearly all residential 
construction has occurred for a number of years.

The center of the District, including the Main Street of 
Little Rock and the streets adjacent thereto, were formerly 
occupied by higher income citizens, mostly white. In the 
last few years a great many of them have moved to the 
western part of the City and District, and Negroes have 
moved to the center of the City to occupy these vacated 
homes.

In Superintendent Floyd W. Parsons’ Desegregation 
Report, Df. Ex. 10, he states, pp. 4 and 5, that housing 
patterns in the City are largely segregated. There has 
been some infiltration by Negroes into the historically 
identified white sections. Once this infiltration begins, 
the section tends to move rapidly to all-Negro. This has 
created several pockets of Negro residents surrounded by 
white neighborhoods. He said also that the sections iden­
tified as all-Negro are actually not all-Negro. An in­
significant number of white families “ dot”  every Negro 
section of the City. On page 5 of the report it is said 
that most of the school buildings in Little Rock were con­
structed with a view to perpetuating segregation rather 
than implementing desegregation. “ This means that a 
Negro community has a school so located in relation to 
it that it is ‘ sensible’ for children in that community to at­
tend that school. The same is true for the white commu­
nity.”  On the other hand, Parsons testified at the hear­
ing (Tr. 444), “ No, we have not built any building for 
the purpose of perpetuating segregation.”

To illustrate generally this population makeup, the lo­
cation of the four general high schools1 is illuminating.

1 This does not include Metropolitan High, a specialized voca­
tional school, which for years has served the entire District. There 
is no segregation problem relating to this school.



— A-33

The most eastern high school is Horace Mann, which is 
all-Negro. In the middle of the City is Central High, 
which in the school year 1968-69 had 1,542 white students 
and 522 Negroes. At the same time, Hall High, in the 
western part of the District, had 1,461 white pupils and 
4 Negroes. The fourth high school, Parkview, in the south­
western part, had 46 Negroes and 519 whites (Df. Ex. 25). 
Parkview is not as yet a true high school. It consists of 
grades 8, 9, and 10 in 1968-69; and will serve grades 9, 10, 
and 11 in 1969-70. Similar patterns are reflected in the 
junior high and elementary schools—heavily Negro in the 
eastern part of the District, a mixture in the central por­
tion, and heavily white in the western part of the District,

The scholastic population of the District, using the latest 
figures available as reflected by District assignments in 
July 1968, is 23,113. Of these, 15,063 (65.2%) are white, 
and 8,050 (34.8%) are Negro (Df. Ex. 6, p. 5).

As of July 1968 (page 7 of the same Exhibit) it is 
indicated that for the year 1968-69 a total of 1,398 Negro 
students would attend formerly all or predominantly white 
schools; in the elementary schools, 956 Negro students 
would do so, making a total of Negroes attending formerly 
all or predominantly white schools of 2,354.

Developments Since the Decision hy the Court of Appeals 
for the Eighth Circuit in This Case December 15, 
1966. Clark v. Board of Education of Little Rock 
School Dist., Supra

The Little Rock School Board, on August 29, 1966, ap­
proximately four months before the Court of Appeals 
decision, entered into an employment agreement with a 
team of experts from Oregon to make a study and offer 
recommendations as to a satisfactory desegregation plan 
to be used in the Little Rock School System. The cost 
was approximately $25,000. That group filed its report



A-34;

of 203 pages with the Board in May 1967, and throughout 
the hearing is referred to as the “ Oregon Report”  (Df. 
Ex. 7).

Briefly, this report recommended a so-called educational 
park system, including the creation of one senior high 
school for the entire District, involving some 5,000 or 
more students, the pairing of Mann with Metropolitan 
High School, the closing of a number of older schools and 
the construction of several new ones. The price tag to 
implement the report was estimated to be in excess of ten 
million dollars.

The Little Rock School Superintendent, Mr. Parsons, 
criticized the report because it required the development 
of an extensive system of transportation and the complete 
abandonment of the neighborhood school concept. He 
considered the ten million dollar cost figure to be ex­
tremely conservative, and thought that implementation of 
the report would cost considerably more.

On August 31, 1967, the School Board directed Super­
intendent Parsons to prepare a long range plan for de­
segregation for the Little Rock School District and to 
submit the plan not later than January 25, 1968. It ap­
pears in the record as Defendants’ Exhibit 10.

Mr. Parsons’ plan would have desegregated the senior 
high schools through so-called strip zoning from east 
to west; closed down Horace Mann, the all-Negro school 
on the east side; and built additions to Parkview and Hall 
in order to achieve a reasonable racial ratio in those high 
schools.

Mr. Parsons also recommended the creation of what he 
called the Alpha Complex, which would have involved 
the closing of four grammar school buildings on the east 
side of Main Street, and which would have resulted in the 
creation of a reasonable racial ratio at the elementary 
level in this section. He also recommended the creation



A-35

of the so-called Beta Complex which involved the Garland, 
Lee, Stephens, Franklin and Oakhurst Schools, making a 
complex out of these five schools, because one of these 
schools (Stephens) was all-Negro, and the others were 
predominantly white. By pairing or consolidating these 
schools a reasonable racial balance would be achieved in 
this particular area in the central portion of the District.

His report did not attempt to deal with the junior high 
problem because he stated that “ a solution for this at 
that time escaped us, and I am not sure but that it still 
escapes us.”

The Board adopted the proposal and called for a bond 
issue for something in excess of five million dollars to 
implement the plan and proposed a millage rate of 50 
mills. The election was in March, 1968, and the voters 
rejected the millage increase. Some of the school direc­
tors who had voted for adoption of the Parsons Report 
were defeated. All parties concede that the negative vote 
at this election was in effect a defeat of the Parsons Plan, 
which was the primary issue at the election. A similar 
fate had already befallen the Oregon Plan.

The Zoning Plan Filed by the Board November 15, 1968

At the December hearings Parsons testified that the only 
feasible alternative to the present freedom of choice pro­
cedure is geographic attendance zones. Defendants’ Ex­
hibit 22 is a map showing high school, junior high school, 
and elementary attendance zones the School Board pro­
poses.

In discussing Defendants’ Exhibit 22 Parsons said there 
are exceptions to certain students residing in these zones. 
One is that Metropolitan Technical High serves the whole 
District; the seceond is that since there would be a de­
cided increase in faculty desegregation that all teachers 
desiring to do so may enroll their children in the school or 
schools where those teachers are assigned to teach. This



A-36

would assist in assigning teachers and in recruiting 
teachers.

Another exception was that all students presently in 
the eighth grade in junior high school level and all stu­
dents who are presently in the tenth and eleventh grades 
in senior high school level would be given a choice to 
either attend the appropriate school in the geographic 
zone where they reside or continue to attend the school 
where they are currently enrolled.

The reason for these last exceptions—that is, in the 
junior and senior high—is that the pupils in the 11th 
grade, for example, have related themselves to eo-curricu- 
lar and extra-curricular activities. The 11th grade stu­
dents have probably already ordered their invitations and 
rings. There are pupils in the 10th grade who have been 
elected to the pep clubs, are playing in the band, or par­
ticipating in athletics, and Mr. Parsons feels that they 
have a pre-emptive right to remain in that school if they 
desire to do so until graduation.

At the junior high level the 7th grade student has re­
lated himself somewhat to the school, but he has not done 
so as effectively as has the 8th grade student. Conse­
quently, he feels that the 8th grade student at the junior 
high school level should be permitted to finish the 9th 
grade at that junior high school.

In explanation of the plan presented November 15, Par­
sons said he knows of no plan that could be put into oper­
ation within the reasonably near future that would not 
involve an expenditure of money, other than a neighbor­
hood geographic zoning plan which would actually make 
a more effective and more efficient use of existing facili­
ties and could be administered in a more effective and 
impartial manner. It involves a neighborhood school con­
cept which gives a closer relationship between the parents 
and patrons of any school.



—--A-37 —

The Little Eock System, he said, is presently operating 
under the most restrictive current operating budget that 
has been experienced in the last seven years. The Dis­
trict has no available funds for additional expenses. It 
has a contingency fund in next year’s budget of $135,000. 
Normally the Board tries to carry a contingency fund of 
21/2% of the total budget—$135,000 is slightly less than 
1%.

Mr. Parsons referred to Mr. Walker’s estimate of the 
cost of $500,0002 for transportation, and Mr. Parsons said 
that there is no way in the world to squeeze the Little 
Rock School District’s budget and get that much left over.

The Faculty.

The School District’s desegregation proposal as relat­
ing to the faculty is set forth in Defendants’ Exhibit 23. 
18% of the total high school faculty is Negro and 82% 
white; 27% of the junior high school faculty is Negro 
and 73% white; and at the elementary level 35% is Negro 
and 65% white. Under the plan for the future as shown 
on Defendants’ Exhibit 24 the actual number of white 
and Negro teachers and the number of transfers involved 
in order to achieve the objectives sought is shown. There 
is a variation, but in no case is there less than 15% nor 
more than 45% of each faculty Negro. There is a mini­
mum of 55% of each faculty white, and a maximum of 
85%.

The School Staff.

There are seven members of the Little Rock School 
Board. Mr. T. E. Patterson, one of the members is a 
Negro; the other six members are white.

2 Since this is stated to be an annual cost, it apparently does not 
include the initial capital investment in the buses that would be 
needed.



— A-38 —

The Superintendent, Mr. Parsons, is white, as is the 
Deputy Superintendent, Mr. Fair. The Assistant Super­
intendent in Charge of Instruction, Mr. Fortenberry, is 
white, as is the Assistant Superintendent in Charge of 
Business Affairs, and Assistant Superintendent in Charge 
of Research and Pupil Personnel. The Assistant Super­
intendent in Charge of Personnel is Mr. Fowler, a Negro. 
Mr. Fowler’s primary responsibility concerns the actual 
employment of and assignment of principals and other 
members of all personnel who are to be employed by the 
school system.

Mr. Winslow Drummond, one of the members of the 
Board, and Mr. Patterson, the Negro member, voted 
against the plan submitted to the Court. Mr. Drummond 
testified that the primary reason he voted against it was 
because the Board had asked the Superintendent at its 
September meeting to draw a plan within certain policy 
guidelines, which Parsons submitted to the Board October 
10. Certain changes were made in the plan by the Board 
before it. was submitted to the Court, and Drummond felt 
that Mr. Parsons’ plan as of October 10 should have been 
adopted by the Board. His reasons, in some detail, were 
a part of a prepared statement which is included in De­
fendants’ Exhibit 27 as a part of the minutes of the 
meeting of November 15. Actually, he said, the only dif­
ference of any importance between the two plans is that 
the tentative proposal by Mr. Parsons of October 10 would 
have included 80 pupils in Hall High.

Mr. Drummond does think that the Beta Complex is 
still a feasible plan for further implementation of deseg­
regation in the District.

He agreed that there were no surplus funds in the 
operating budget.

The change in the Hall High boundary line proposed 
by Mr. Parsons October 10 and which was the principal



A-39

reason for Mr. Drummond’s opposition to the adopted 
plan of November 15, is shown on Defendants’ Exhibit 28. 
The change is in the southeast area of the Hall High 
zone, and this line would have extended it farther south­
east, within a few blocks of Central High, picking up 76 
Negro students, making a total of 80.

Testimony by the Experts.

As might be expected, testimony of the experts cor­
responded generally with the views of the parties who 
called them to testify.

The School Board called Dr. E. C. Stimbert, Super­
intendent of Schools of the Memphis, Tennessee City Sys­
tem. He has an extensive educational background. For 
the last 22 years he has been with the Memphis School 
System; the last 11 years as Superintendent of that sys­
tem, and has 125,000 students, about 50% Negro. The 
Memphis system of assigning students is based on the 
neighborhood school concept.

Professionally he differs from the proposal of Dr. Gold- 
hammer to abandon the neighborhood school system in 
Little Rock in favor of the educational park concept. He 
knows of no public school system in the nation that has 
converted its entire system to an educational park oper­
ation, although some are talking about experimenting 
with it.

He thinks the involvement of the parents in the neigh­
borhood schools is a definite asset to the schools involved. 
More support is received from parents through P. T. A. 
and other school programs.

If a child is transported to some distance away from 
home there is an element of time in addition to the ex­
pense. There is a lack of interest on the part of the home 
in that school which is more remote from the neighbor­
hood in which the child resides. In the case of very



A-40 —

young children who quite often get sick at school, in the 
neighborhood concept the school is close to the home of 
the child and it is easy to get in touch with the parents 
or neighbors.

The American Association of School Administrators, of 
which he is a member, made a study of this problem, and 
at the conclusion of the study there was full agreement 
on the neighborhood school philosophy as far as the 
administrative unit for achieving optimum educational 
results.

He has examined the faculty desegregation plan that 
Mr. Parsons presented to the Court. In his opinion it is 
a tremendously ambitious program. He knows of no school 
system in the United States that has desegregated the 
faculties in the manner he is proposing for the coming 
year, 1969.

In his opinion, after studying the various plans su m , 
mitted to the Court here, he knows of no plan other than 
geographical attendance zones that would be educationally 
sound or administratively feasible.

The plaintiffs called Dr. Keith Goldhammer, Dean of 
the School of Education, Oregon State University. He 
has a Ph. D. degree from that institution. He has had 
extensive experience and was one of the research team 
which made the so-called Oregon Report in Little Rock. 
He is the author of publications. In Little Rock his pri­
mary responsibility was to undertake the direction and 
supervision of the field work.

His basic point of disagreement with Mr. Parsons is 
the disagreement over the continuation of the neighbor­
hood school concept. He said that is not an educational 
concept, but an administrative concept—there is nothing 
to lose educationally by abolishing the neighborhood 
school concept. He does not think the geographic at­
tendance area plan prepared by the District is one to



— A-41

accomplish desegregation. He does not think it would 
improve upon the present freedom of choice system. He 
suggests pairing of certain schools, which would require 
some busing at the District’s expense.

Dr. Goldhammer resumed his testimony on December 
24, after the recess from August. He said that as far as 
faculty desegregation is concerned the Board’s plan 
seemed to be a feasible approach; although it does not 
do the entire job, if it is followed by action that would 
relieve any inequities that remained, complete faculty de­
segregation could be achieved.

He criticizes the situation in Hall High because of the 
few Negroes enrolled there.

He said that the Board has three plans that he has seen 
which are superior to the plan submitted to the Court 
under the Resolution of November 15. They are: the 
Oregon Report, Mr. Parsons’ Plan, and the plan which 
became known as the Walker Plan (Walker is one of 
counsel for plaintiffs).

He doubts that the superimposing the Beta Complex 
upon the plan represented by Defendants’ Exhibit 22 
would be feasible because it would be doing the job in 
a section of the community without effect on the total 
community.

Although a member of the American Association of 
School Administrators, he is in disagreement with their 
support of the neighborhood school concept.

The plaintiffs also presented as an expert, Dr. Dan W. 
Dodson, whose credentials are impressive. He is chair­
man of the Department of Education of Sociology and An­
thropology of the School of Education at New York Uni­
versity. He obtained his Ph. D. from that institution. 
He assisted the Washington, D. C. school board in 1953-54 
in the desegregation of its schools. He designed a plan



for desegregation for the New Rochelle School System in 
the early 1960s, and served as a consultant in the study 
of the Englewood, New Jersey school system in the de­
segregation of that system. He made a study of the 
school system of Mount Vernon, New York and proposed 
a desegregation plan which the State Commissioner of 
Education has ordered to be put into effect. He also did 
a study of the Orange, New Jersey school system as a 
basis for the NAACP’s suit against that district. He is 
the Dr. Dodson referred to in the Second Circuit Court 
of Appeals case involving New Rochelle.

He said that the neighborhood school concept never 
had any integrity in the educational literature until 
around 1920. It is now a place where people who are 
more privileged try to hide from the encounter with 
others. It has become an exclusive device. He would 
not describe the high schools shown on the map, Defend­
ants’ Exhibit 22, as neighborhood schools. No high school 
in the community, nor series of high schools, are neigh­
borhood schools.

He said that reports he had studied showed that Negro 
youngsters in an integrated situation had done better than 
other Negro children, and white children have not fallen 
behind because of integration.

He does not think you can have an effective or mean­
ingful integration, even though the faculty be integrated, 
without integration of its pupils.

He referred to the Englewood school system and White 
Plains. In White Plains, Negro children were sent by 
bus in a leapfrog operation beyond the desegregated school 
to the outlying schools where there were all-white, so that 
each school reflects between 10% and 30% Negro in a 
community that is about 24% Negro child population.

Pairing of schools has also been used widely.

— A-42 —



— A-43 —■

Busing is a common practice in education in America.

Commenting on the so-called Parsons Plan in connection 
with high school desegregation, if desegregation is to be 
accomplished the zones would have been east and west 
rather than north and south.

His attention was called to the so-called Beta Complex, 
page 34, Defendants’ Exhibit 10. He thinks this would 
be a rather imaginative approach to dealing with the 
problem.

When he was asked whether Defendants’ Exhibit 22 
reflected a non-racial system, his response was that it 
appeared to him to be a racist school system—it will re­
sult in the west end of town being white and the east end 
of town Negro, and the next step, if it follows the history 
of New York, would be that the frustrated blacks will 
demand “ the separation into local control”  and “ they 
will want to take over the school system for themselves 
and press for apartheid education.”

On cross-examination he stated that almost all the de­
segregation plans he had mentioned and that he had a 
part in formulating involved either the closing of a Negro 
school or providing transportation for the students, or 
both. These involved some expense.

He doesn’t know how far students would have to be 
transported by bus if the high school zones on Defendants’ 
Exhibit 22 had been drawn east to west, but he knew it 
would be several miles. When asked whether the Parsons 
Report and the exhibits in it reflect that Negro students 
living in the eastern section of the District if assigned to 
Hall High under an east-west zoning plan would be six, 
seven, or eight miles to go to get to Hall High, he said 
that he had noted that that figure had been “ passed 
around” .



— A-44 —

He disagrees with certain statements published by the 
former president of Harvard University, Dr. James Bryant 
Conant, and also certain statements in a publication by 
the Honorable Hubert Humphrey, former Vice-President 
of the United States, published in 1964.

He knows of no other school district with as high a 
proportion of Negro students as in Little Rock District 
that has undertaken so massive a reassignment of teach­
ers for the purpose of moving toward racial balance, as 
disclosed in the plan filed in this case.

He agrees that there is a good deal of diversity of pro­
fessional opinion concerning the neighborhood school con­
cept and the educational park concept. He would also 
agree that there are a great many professional educators 
with good credentials who would disagree with some of 
the ideas he has expressed in his testimony.

The Applicable Law.

The School Board has filed a plan involving compulsory 
geographic attendance zones on the part of the pupils, 
using the neighborhood school concept, although admit­
tedly that concept has less applicability to high schools. 
On the other hand, the plaintiffs attack the neighborhood 
school principle, saying it has no validity and that the 
geographic attendance zones should run lengthwise the 
District. This, as they admit, would involve compulsory 
transportation of students by bus for distances at least 
of six to eight miles. This is so because the schools in 
the central part of the City, including Central High, are 
largely integrated, and the great disparity between the 
races exists in the extreme eastern and western parts. 
Therefore, transportation of pupils would consist largely 
of transportation from the extreme east-to-west and vice 
versa, traversing the crowded traffic conditions of the 
middle section, including the downtown business district.



— A-45

Thus, high school pupils from Horace Mann in the east 
would have to be transported past Central to Hall High 
in the west, or vice versa. The same would be true in 
a lesser degree with the junior high and elementary 
schools.

At the present time the school District furnishes no 
transportation to any students. Although some students 
use public transportation (bus), this would not service a 
school system such as plaintiffs propose.

Thus, the central issue in this case raised by plaintiffs 
is whether or not the school District should be required 
to adopt geographical zones running from east to west, 
regardless of the expense to the District and the con­
venience of the pupils.

This Court’s search of the authorities has not disclosed 
a case that has required compulsory bus transportation 
by the school system.

United States v. Jefferson County Board of Education, 
372 F. 2d 836 (5 Cir. 1966), is one of the most widely cited 
cases by counsel for Negro plaintiffs in school cases. Its 
long opinion raised questions about the neighborhood 
school system, but said, at p. 879:

“ The neighborhood school system is rooted deeply in 
American culture. Whether its continued use is con­
stitutional when it leads to grossly imbalanced schools 
is a question some day to be answered by the Su­
preme Court, but that question is not present in any 
of the cases before this court.”  (Emphasis supplied.)

As to transportation of students, it simply says, p. 890:
“ If transportation is provided for white children, the 
schedules should be re-routed to provide for Negro 
children. ’ ’



— A-46

In the three Supreme Court cases decided May 27, 
1968—Greene v. County School Board, 391 U. S. 430; 
Raney v. Board of Education, 391 U. S. 443; and Monroe 
v. Board of Commissioners, 391 U, S. 450—no reference is 
made to compulsory transportation of students. In Greene, 
p. 441, the Court said that instead of freedom of choice, 
the Board should consider “ reasonably available other 
ways, such for illustration as zoning* . . . . ”

In Raney, at p. 448, the Court said:

“ The Board must be required to formulate a new plan 
and, in light of other courses which appear open to 
the Board, such as zoning, fashion steps . . .

In a case from the Fifth Circuit later than Jefferson, 
supra, Broussard v. Houston Independent School District, 
395 F. 2d 817 (5 Cir. 1968), the court said, at p. 820:

“ Racial imbalance in a particular school does not, in 
itself, evidence a deprivation of constitutional rights. 
Zoning plans fairly arrived at have been consistently 
upheld, though racial imbalance might result.”  (Cit­
ing cases from the Fourth, the First, and the Tenth 
Circuits.)

However, in Adams v. Matthews, 403 F. 2d 181 (5 Cir. 
1968), another panel of that Circuit said, p. 188:

“ If in a school district there are still all-Negro schools 
or only a small fraction of Negroes enrolled in white 
schools, or no substantial integration of faculties and 
school activities, then, as a matter of law the existing 
plan fails to meet the constitutional standards as 
established in Greene . . . One alternative to freedom 
of choice is the assignment of students on the basis 
of geographic attendance zones. In an attendance zone 
system (as in a freedom of choice system) the school 
authorities should consider the consolidation of cer­



A-47

tain schools, pairing of schools, and a majority-to- 
minority transfer policy as means to the end of dis­
establishing the dual system.”

On rehearing the court said, p. 190, in suggesting cer­
tain measures to be considered:

“ (a) Liberal majority-to-minority transfer policies, 
notwithstanding the existence of zones;

“ (b) Principal, faculty, and staff desegregation; and

“ (c) Desegregation of athletic activities . . . ”

The most recent case of the Fifth Circuit that has been 
called to our attention by counsel for plaintiffs is Henry 
v. The Clarksdale Municipal Separate School District, .. . 
F. 2d . . .  (March 6, 1969). The court criticized the geo­
graphical zoning plan of the board because the plan would 
only produce token desegregation. It said if there were 
still all-Negro schools or only a small fraction of Negroes 
enrolled in white schools or no substantial integration of 
faculties and school activities, then as a matter of law 
the existing plan fails to meet constitutional standards.

The court said that the board should consider redraw­
ing its attendance zone boundaries, incorporating the ma­
jority-to-minority transfer provision in its plan, closing 
all Negro schools, consolidating and pairing schools, rotat­
ing principals, and taking “ other”  measures to overcome 
the defects of the present system.

In none of these cases from the Fifth Circuit, which 
admittedly has gone much further than any other circuit 
in discussing possible alternatives to freedom of choice, 
has the court suggested compulsory transportation of 
pupils by bus.

We can only surmise, but perhaps the omission in all 
of these cases of compulsory bus transportation may be



due, at least in part, to the national policy spelled out by 
Congress in the Civil Rights Act of 1964. Title IV of the 
Act confers authority on the Attorney General to initiate 
civil suits to “ further the orderly achievement of de­
segregation in public education,”  subject to this provision: 

“  . . . provided that nothing herein shall empower 
any official or court of the United States to issue any 
order seeking to achieve a racial balance in any school 
by requiring the transportation of pupils or students 
from one school to another or one school district to 
another in order to achieve such racial balance, or 
otherwise enlarge the existing power of the court to 
insure compliance with constitutional standards.”  78 
Stat. 248, 42 U. S. C. 2000e-6 (1964).

‘ In Clark, supra, plaintiffs were seeking geographical 
attendance areas, and on p. 666 the Eighth Circuit char­
acterized attendance areas as “ this admittedly constitu­
tional alternative.”

The Court’s Conclusions.

1. The Board’s Zoning Plan for Pupils.

As shown by Defendants’ Exhibit 22, the Board’s plan 
for geographical attendance zones, assuming the legality 
of the neighborhood school concept, seems fairly and 
equitably drawn. There is no indication of gerrymander­
ing. It will be approved, with the following exceptions:

(a) The Hall Boundary Line

Mr. Parsons suggested in his report to the Board dated 
October 10 that the south line of Hall be extended east­
ward to a point not far from Central High, the purpose 
being to include 80 Negro students in Hall rather than the 
four who would be included under the District’s Plan, 
Exhibit 22. This proposed extension of the south line of

— A-48 —



— A-49 —

Hall eastward is shown on Defendants’ Exhibit 28. The 
southeast line of Hall will be modified according to De­
fendants’ Exhibit 28. To pinpoint this issue for the bene­
fit of counsel and the Court of Appeals, this change from 
the Board’s Plan is gerrymandering pure and simple, but 
it is justified, we think, to increase integration, which is 
almost non-existent in Hall.

(b) The Beta Complex

There are five elementary schools near the center of 
the system: Franklin, Garland, Oakhurst, Stephens, and 
Lee. They are close enough together to permit their con­
solidation of pairing. The disparity of integration in these 
schools under the proposed zoning plan contrasted with 
the so-called Beta Complex Plan is shown on the table 
on page 1 of Court Exhibit 1:

Elementary Zoning Plan Beta Complex
School Negro White Negro White 

Primary
Franklin 61 526 170 403
Garland 62 260 114 269 

Intermediate
Oakhurst 24 330 104 286
Stephens 313 34 144 396 

Special Educ.
Lee 70 219 30 40
Totals 530 1,369 562 1,394
Grand Total 1,899 1,956

Dr. Dodson characterized the Beta Complex as an 
imaginative approach to solving the integration problem 
of these particular schools. We realize that Dr. Gold- 
hammer, as well as Mr. Parsons, criticized the adoption 
of the Beta Complex unless similar adjustments were 
made throughout the system. As best the Court can tell,



A-50 —

this opposition is primarily due to the fact that these wit­
nesses feel that the patrons of these particular schools 
will feel that they have been unduly singled out in contrast 
to the other schools in the system. The Court does not 
feel that these reasons are sufficient to prevent a solution 
to the problem in these five schools as shown by the tables 
above, and the Court will hold that the so-called Beta 
Complex involving these elementary schools must be 
implemented.

We realize, however, that some capital expenditures will 
be involved, and it is perhaps too late, both for the capital 
improvements to be made and the necessary administra­
tive procedures to be accomplished by September of 1969, 
and we hold that the Beta Plan need not be put into effect 
until September 1970.

(c) Transfers From Schools Where Student’s Race is in 
the Majority to Schools Where His Race is in the 

Minority.

The Board’s Plan will be further modified by retention 
of freedom of choice for any Negro or white student to 
transfer from a school in which his race is in the majority 
to a school in which his race is in the minority. Such 
transfers are to be subject to the usual provisions as to 
overcrowding, etc.

This will permit Negro students who otherwise would 
be locked into predominantly Negro schools by attend­
ance zoning to transfer to predominantly white schools. 
White students are given the same privilege. That such 
provisions are valid is well established by the cases.

There are other minor exceptions to the geographical 
zoning, that are mentioned in the Board’s Plan.



— A-51 —

Teachers’ Children.

Under the faculty plan a good many teachers will be 
transferred from the schools in which they now teach. The 
plan provides that teachers who desire to do so may 
enroll their children in the schools where they (the teach­
ers) are assigned. This will affect a small number of 
students and may aid the school staff in securing the 
cooperation of the teachers to accept new posts. We ap­
prove it.

Students Presently in Eighth, Tenth, and Eleventh Grades.

We think this is reasonable and will cause less disrup­
tion among the students who are approaching the end of 
their junior and senior high school years. This is a tem­
porary situation and will only last two years until the 
tenth grade pupils graduate. We think it is a reasonable 
exception, and approve it.

2. Faculty and Staff.
The Board has made substantial advances in the inte­

gration of its faculty and staff since the opinion of the 
Court of Appeals in Clark. Much more progress has been 
made in staff integration than indicated above in this 
opinion where reference was made to personnel associated 
with the Superintendent and his assistants.

The proposal of the Board made at the suggestion of the 
Court means that no school in the District will have an all- 
Negro nor an all-white faculty. The number of Negro 
teachers within each school will range from a minimum of 
15% to a maximum of 45%. The number of white teachers 
within each school will range from a minimum of 55% to 
a maximum of 85%.

The Court has no hesitancy in approving that plan. 
The experts, Drs. Dodson, Goldhammer and Stimbert, all



— A-52 —

agreed that it was a most ambitious program to be ac­
complished in one year, and one or more of them expressed 
some concern about the District’s ability to implement it. 
Superintendent Parsons, however, firmly expressed his 
conviction that it would be implemented by September, and 
we have no reason to doubt his intentions in that regard.

Comparison of Integration Under Freedom of Choice and 
Zoning

The Court requested counsel for the School Board to 
submit tables showing the number of Negro students at­
tending formerly all-white schools and white students 
who would attend formerly all-Negro schools under the 
proposed zoning plan in contrast to the number of pupils 
in the same categories in the last few years under free­
dom of choice. This appears in the record as Court Ex­
hibit 2.

The figures in the before and after columns show that 
as of July 1968 there were 1,398 Negro students assigned 
to formerly all-white schools as contrasted to 1,133 under 
the Board’s Plan for geographical zoning to go into effect 
in September 1969. These totals are not strictly com­
parable because the July 1968 column shows 131 Negro 
students in Metropolitan (the technical high school), and 
the total for September 1969 under zoning omits any 
Negro students who would attend Metropolitan. Why the 
Exhibit was prepared in this manner we do not know—- 
but, as stated above, Metropolitan serves the entire Dis­
trict, and as Footnote C reflects, the Board anticipates 
that a number of Negroes will attend Metropolitan under 
the zoning plan.

Up to the present time no white students have chosen 
to attend any formerly all-Negro schools. The Board Ex­
hibit reflects that it expects 182 white students to be in 
that category this coming September.



Elementary Schools

The number of Negroes assigned to formerly all-white 
schools under freedom of choice in 1968 was 956, with no 
whites attending formerly all-Negro schools. Under the 
proposed zoning plan there would be 1,176 Negro stu­
dents attending formerly all-white schools, and 199 white 
students in formerly all-Negro schools. These figures do 
not take into consideration the implementation of the 
Beta Complex.

The total number of Negro pupils attending all-white 
schools in 1968 was 2,354, and under the zoning plan it is 
anticipated that the total Negroes attending formerly all- 
white schools (again omitting Negroes attending Metro­
politan High, but which were included in the 2,354 figure) 
will be 2,309, and 381 white students will attend formerly 
predominantly Negro schools, making a total number of 
pupils attending schools in which their race is in the 
minority 2,690.

While we are sure these figures are accurate as far as 
the experience for 1968, and the location of pupils by race 
in the attendance zones plan, these figures do not ac­
curately depict what will occur under the zoning plan. 
In the first place, they do not take into consideration the 
Court’s modification of the plan so as to permit any Negro 
child wherever he lives in the District the choice to 
transfer to a school in which his race is in the minority. 
IIow many that will be it is impossible to foretell, except 
that on the basis of past experience it should be a con­
siderable number (2,354 in 1968, although that figure 
probably includes some Negroes who reside in zones where 
their race is in the minority and who would be ineligible 
to exercise the majority-to-minority transfer choice). The 
withholding of application of the zoning plan to pupils 
in grades 8, 10, and 11, as well as the expiration of this 
exemption, also will have an influence on the figures, al­



— A-54 —

though it is impossible to be definite as to their number. 
The number of white students who are required to attend 
formerly all-Negro schools is, of course, a net gain of the 
mixture of races in the school system.

Construction of Schools

We realize that some of the cases make a distinction 
between school integration that originated de jure as 
contrasted to that which came about and exists de facto. 
The parents of school children do not move where schools 
are—schools are constructed where the children are or 
expected to be. Nearly every school district as large as 
Little Eock employs experts who study the trends which 
indicate where the population will be five and even ten 
years from the time of construction of the schools. What 
has happened in Little Rock is no different than that which 
has happened in the northern and other sections of this 
country where there was never any de jure segregation. 
The growth of the City and the construction of new homes 
had to be in the west and southwesterly portions of the 
District. If new schools should be built where the pupils 
are or will be, the construction of new schools had to be 
in the same sections of the District.

As Dr. Dodson said, he has noticed no difference in 
the growth patterns where segregation was de jure or 
those sections of the country where it was de facto. In 
all comparable cities the same movement has occurred— 
the white people, particularly the ones with higher in­
comes, have moved into the suburbs, most of the Negroes 
have remained where they were or have moved into the 
central part of the city, in many cases occupying the 
homes which the whites have vacated.

We have no doubt that the growth of Little Rock and 
its School District would have been the same without 
regard to so-called de facto or de jure segregation.



— A-55 —

If the concept of neighborhood geographical zoning is 
legal, we see no reason why this Court should attempt to 
supervise the construction of new schools or the altera­
tion or addition to older schools, because the population 
demands will inexorably dictate the location and con­
struction of schools. Of course, if the Board deviated 
from this policy in such a way as to impede desegrega­
tion, application for relief could always be made to this 
Court.

Attorneys’ Fees

The Court realizes that the Court of Appeals has sug­
gested that the District Courts assess substantial at­
torneys’ fees in favor of plaintiffs in cases of this type 
where such fees are warranted by the circumstances.

In their brief the plaintiffs have listed a great many 
hours said to have been devoted to preparation for trial, 
although there is no breakdown among the different 
phases of the case.

After the Eighth Circuit’s decision in Clark in December 
1966 the Board immediately complied with its directive 
as to notice to the pupils under the freedom of choice 
plan. Plaintiffs’ counsel so stipulated during this hear­
ing. Of course, the rate of progress of desegregation of 
faculty and staff may be a matter of opinion, although 
considerable progress was made. As of May 27, 1968, the 
date of the three Supreme Court cases, the Little Rock 
School Board was operating a freedom of choice system 
which had been declared legal by the Eighth Circuit. The 
petition for further relief of plaintiffs forming the basis 
of this phase of the litigation was filed June 25, 1968, less 
than one month after the date of the opinions of the 
Supreme Court in the three cases. If a reasonable allow­
ance is made for receiving copies of those Supreme Court



— A-56

opinions, study of them by counsel, and counsel’s con­
ferring with the School Board, it seems impractical, if 
not almost impossible, for the Board to have made a re­
vision in its desegregation policies by the time that plain­
tiffs’ petition was filed on June 25.

It is true that the response filed by the Board contained 
no affirmative statements except an affirmation of good 
faith and the fact that a committee had been appointed 
to reappraise the Board’s policies, but such committee 
had not completed its work. It was in response to that 
answer that the Court wrote a letter to counsel suggest­
ing the filing of a geographic zoning plan for the pupils 
and a redistribution of the faculty in each school in ac­
cordance as near as possible with the ratio of the races 
of the pupils in the District.

The Board filed a plan embodying the suggestions made 
in the Court’s letter. Since that time this lawsuit has 
largely consisted of a vigorous attack by the plaintiffs 
on the neighborhood zoning plan filed by the Board, and 
they have insisted that the Board adopt either the Oregon 
or Parsons Plan, both of which would require compulsory 
transportation of pupils by bus. The Court has no doubt 
that nearly all of the hours which plaintiffs list have been 
in connection with this issue which the Court has found 
against the plaintiffs.

The Court realizes, as was stated in Clark, that the past 
history of the Board (which, of course, includes many 
members who no longer are serving) has been one of 
intransigence—but under the circumstances here, and con­
sidering the outcome of this case, the Court cannot say 
that, since the Court of Appeals opinion in 1966 the Board 
has exhibited bad faith—and for that reason attorneys’ 
fees are denied.



—-A-57 —

Addendum

There was another group of schools suggested for pair­
ing or consolidation in the eastern part of the District, 
known as the Alpha Complex. The facts in the record 
as to that group of schools are not sufficient for the Court 
to make a finding or issue a directive as it has done in the 
Beta Complex.

The Court is aware that this case will be "appealed to 
the Court of Appeals, if not to the Supreme Court. Were 
that not true, the Court would presently order that 
further information be furnished the Court in connection 
with the Alpha Complex, and, if necessary, a hearing be 
held in connection with those elementary schools. The' 
Court does not believe that it would serve any useful 
purpose to do so now—but unless appellate courts decide 
otherwise, the Court will, as soon as it is feasible, pursue 
the possibility of further integration in that area.

Jurisdiction of this' cause will be retained.

Dated: May 8, 1969.

Gordon E. Young 
United States District Judge



— A-58 —

APPENDIX D

In the United States District Court 
Eastern District of Arkansas 

Western Division

Delores Clark, et al.,
Plaintiffs,

v.

The Board of Education of the Lit­
tle Rock School District, et al., 

Defendants,

Yolanda G. Townsend, a Minor, 
et ah,

Plaintiff-Intervenors,

No. LR-64-C-155.

Little Rock Classroom Teachers 
Association,

Intervenors. _

Decree

(Filed May 16, 1969)

Pursuant to Memorandum Opinion entered May 8, 1969, 
it is by the Court Considered, Ordered, Adjudged and 
Decreed:

1. The defendants’ student assignment plan based on 
the zones reflected in defendants’ Exhibit 22 is approved 
with the following exceptions:

(a) The defendants are directed to redraw the south­
east zone boundary of Hall High School so as to place not 
less than 80 Negro high school students within that zone.

(b) The so-called “ Beta Complex”  as described in 
the Court’s opinion shall be implemented by the Board 
for the school term beginning in September 1970.



A-59 —

(c) Defendants are directed to provide an oppor­
tunity for any student, white or Negro, to transfer from 
a school where his race is in the majority to a school 
where his race is in the minority where space is avail­
able. Adequate notice of such opportunity to transfer 
shall be given to the students by the defendants.

2. The special provisions mentioned in the opinion re­
lating to children of teachers, and students presently in 
the 8th, 10th and 11th grades are approved.

3. Defendants’ plan for faculty desegregation is ap­
proved.

4. Plaintiffs’ application for allowance of attorneys’ 
fees is denied.

5. Not later than 10 days before the commencement of 
the school term in September 1970 the defendants shall 
file a report with the Court which shall contain informa­
tion as to the progress of faculty desegregation and the 
implementation of the “ Beta Complex” .

6. If it becomes necessary for defendants to adjust any 
of the zone boundaries to better distribute the students 
among the schools prior to September 1970, they will 
promptly file and serve on counsel for plaintiffs a descrip­
tion of all such changes, together with reasons they were 
deemed necessary.

7. The Court retains jurisdiction of the cause for all ap­
propriate purposes.

Dated: May 16, 1969.

/ s /  Gordon E. Young
United States District Judge