St. Cyr v Hays Jurisdictional Statement

    I n the

United States GJmtrt nf Appeals
F or the E ighth Circuit 

No. 18368

D elores Clark, el al.,

-v.-
Appellants,

T he B oard of E ducation of the 
L ittle R ock S chool D istrict, et al.,

Appellees.

on appeal from the united states district court

for THE EASTERN DISTRICT OF ARKANSAS

APPELLANTS’ BRIEF

J ohn W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas

H arold A nderson

Century Building, Room 205 
Ninth & Arch Streets 
Little Rock, Arkansas

J ack Greenberg 
J ames M. Nabrit, III 
M ichael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants



I N D E X

PAGE

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

Statement of Points to Be Argued ................................ 16

A rgument :

I. The Revised “ Preference” Plan Approved 
by the District Court Is Both Improper in 
This Case and Inadequate to Effect Deseg­
regation of the School System ......................  19

A. Resort to a “ preference” plan is improper 
where the board has obtained substantial 
delay to implement a geographic zone
Plan .................................... ..............................  19

B. The plan approved is inadequate to de­
segregate the Little Rock school system .. 20

II. Appellees’ Policy of Assigning Teachers and 
Supervisory Personnel on the Basis of Race 
Is Unconstitutionally (a) Vague and Indefi­
nite; (b) It Deprives Negro Pupils Who At­
tend Negro Schools of Equal Protection; and 
(c) Impedes Desegregation Under a “ Pref­
erence” Plan by Labelling Schools “ White”
and “ Negro” .....................................................  25

III. Appellees Are Entitled to an Award of Sub-
stanial Attorneys’ Fees ..................................  32



11

IV. The Court Below Erred in Refusing to Re­
tain Jurisdiction of This Cause in Face of 
Clear and Convincing Evidence That Tran­
sition to a Nonracial System Is Not Complete 
and of a Need for Continuing Judicial Super­

PAGE

vision of the Desegregation Process ............. 34

V. Conclusion .......................................................  36

T able of Cases

Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956)
1, 2,6

Aaron v. Cooper, 169 F. Supp. 325 (E. D. Ark. 1959) 12
Aaron v. Cooper, 243 F. 2d 361 (8th Cir. 1957) ....... . 17
Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958) ....2, 3,11,13 
Aaron v. Tucker, 186 F. Supp. 913 (E. D. Ark. 1960)

3,12
Admiral Corp. v. Penco Ins., 108 F. Supp. 1015, aff’d

203 F. 2d 517 (2nd Cir. 1953) .................................... 18, 33
Anderson v. Martin, 375 U. S. 399 ................................18, 29

Beckett v. School Board of Norfolk, Civil Action No.
2144 (E. D. Va.) .........................................................17,27

Bell v. School Board of Powhatan County, 321 F. 2d
494 (4th Cir. 1963) ....................... ..................17,18, 22, 32

Bell v. School Board of Staunton, V a .,------F. Supp.
------ (W. D. Va. Jan. 5, 1966) ..................................... 17, 26

Bradley v. School Board of Richmond, 382 U. S. 103
17, 25, 26, 28

Brooks v. County School Board of Arlington, Va., 324 
F. 2d 303 (4th Cir. 1963) ........................................... 18, 35



I l l

Brown v. Board of Education, 347 U. S. 483 .......18, 24, 25,
34, 35

Brown v. Board of Education, 349 U. S. 294 ...............18, 34
Byrd v. Board of Directors of the Little Rock School 

District, Civ. No. LR 65-C-142 ......... .......................... 10

Cooper v. Aaron, 358 U. S. 1 ..........................................18, 35

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ...........18, 29
Dowell v. School Board of Oklahoma City, 244 F. Supp.

971 (W. D. Okla. 1965) ..........................................17, 26, 31

Gantt v. Clemson College, 320 F. 2d 611 (4th Cir. 1963)
17, 22

Goss v. Board of Education, 373 IT. S. 683 .................. 18, 29
Guardian Trust Co. v. Kansas City So. Ry., 28 F. 2d 

283 (8th Cir. 1928) ..................................................... 18,33

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) .....14,16,17,
19, 20, 21, 25, 26, 31

Kier v. County School Board of Augusta, Va., No. 65- 
C-5-H (E. D. Va., Jan. 5, 1966) .................... 17, 22, 26, 31

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) ....2, 4, 5, 6,
12,13,18, 32, 35

Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) ................. 33
Price v. Denison Independent School District, 348 F.

2d 1010 (5th Cir. 1965) ..............................................18,31

Rogers v. Paul, 382 U. S. 198 (1965) .......................... 17,25
Rolax v. Atlantic Coast Line Ry. Co., 186 F. 2d 473 

(4th Cir. 1951) ............................................................. 18,33

PAGE



IV

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F. 2d 865 (5th Cir. 1966) ...............16,17,19, 31

Sprague v. Taconic National Bank, 307 U. S. 161 
(1939) ........................................................................... ..18,33

Wright v. County School Board of Greenville County,
------F. Supp.-------  (E. D. Va. Jan. 27, 1966) .........17, 26

PAGE

Statutes and R egulations

March, 1966 Revised Statement of Policies Implement­
ing Title VI of the Civil Rights Act of 1964 (Guide­
' s )  ...................................................................20,21,24,29

Other A uthorities

77 Harv. Law Rev. 1135 (1964) ......................................  33

Statistical Summary of School Segregation-Desegre­
gation in Southern and Border States, 15th Revision,
Dec. 1965, Southern Education Reporting Service 28



In the

linxteb i ’tatrii (Emtrt nf Appeals
F or the E ighth  Circuit

No. 18368

D elores Clark, et al.,

-v.-
Appellants,

T he B oard of E ducation of the 
L ittle R ock School D istrict, et al.,

Appellees.

on appeal from the united states district court

FOR T H E  EASTERN DISTRICT OF ARKANSAS

APPELLANTS’ BRIEF

Statement of the Case*

This appeal is the most recent phase of litigation begun 
in 1956 when Negro pupils brought a class action to desegre­
gate the public schools of Little Rock, Arkansas. Aaron v. 
Cooper, 143 F. Supp. 855 (E. D. Ark.). The school district 
responded to the suit by proposing a plan for gradual de­
segregation to occur over a six year period. The school

* On April 19, 1966, this Court entered an order which stated: 
“ . . . appellants may dispense with the preparation of a printed 
record and the Court will hear this appeal on the original files of 
the District Court and briefs of the parties.”



2

board argued that “gradual” rather than immediate de­
segregation was the best transitional plan because of prac­
tical problems which were faced by the district in estab­
lishment of unilateral geographic attendance areas and con­
struction of additional school facilities. Elimination of these 
problems, the board argued, would enable the district to 
effect an orderly relocation of pupils on an “ attendance 
area” basis. At the trial, the board presented maps and 
charts which purported to show the expected enrollments 
of the school system when operated on the basis of geo­
graphic zones.

On the basis of these representations the gradual time­
table for the implementation of the plan for desegregat­
ing the Little Rock schools (see, Aaron v. Cooper, supra, 
aff’d 243 F. 2d 361 (8th Cir. 1957)) provided for high 
school integration to begin in 1957; for junior high school 
integration “ two or three” years later; and for elemen­
tary school integration two or three years after junior 
high school integration. System-wise integration of the 
Little Rock schools was “ to be completed not later than 
1963.” Norwood v. Tucker, 287 F. 2d 798, 801 (8th Cir., 
1961).

Under the plan, nine Negro pupils attended the formerly 
all-white Central High School during the 1957 school term 
under difficult circumstances. (See, Aaron v. Cooper, 261 
F. 2d 97 (8th Cir., 1958).) The schools were closed for the 
1958-59 school term during which time the School Board 
sought to lease the school facilities to a private school which 
would have been racially segregated. This Court, in for­
bidding the proposed transfer of facilities, directed the dis­
trict court to enter an order enjoining the board “ from en­
gaging in any . . . acts . . . which are capable of serving



3

to impede, thwart or frustrate the execution of the integra­
tion plan mandated against them” ; and providing for “ such 
affirmative steps as the district court may hereafter direct, 
to facilitate and accomplish the integration of the Little 
Rock School District in accordance with the Court’s prior 
orders.” The Court noted further: “ It is of course not the 
intention of this provision of our order that appellees 
shall take only such affirmative steps to carry out the in­
tegration plan as the District Court may expressly direct. 
Appellees have an obligation under the previous general 
order against them to move forward, within their official 
powers, to carry out the integration plan, to which they 
must commensurately respond on their own initiative.” 
Aaron v. Cooper, 261 F. 2d at p. 108. These directives were 
reiterated in Norwood, v. Tucker, supra.

When the schools were reopened during the 1959-60 school 
year, the School Board made school assignments pursuant 
to the pupil assignment laws of Arkansas (§§80-1519 
through 80-1554, and 80-1234, Ark. Stats., 1947 vol. 7, 1960 
replacement). In doing so, the Board allegedly discon­
tinued use of “ attendance areas” as the primary criterion 
for school assignments. Consequently, many Negro pupils 
living within zones of white high schools were assigned 
against their choice to the Negro high school located in an­
other attendance area. A number of these pupils chal­
lenged the deviation from the approved plan and the ap­
plication of the assignment criteria. The district court 
upheld the board’s deviation from the approved plan and 
held that the criteria had been properly applied (Aaron 
v. Tucker, 186 F. Supp. 913 (I960)) stating that “ The 
Constitution . . . does not require integration. It merely 
forbids the use of governmental power to enforce segrega­



4

tion” (Id. at p. 931). In reversing the district court, this 
Court held that the board must implement its original at­
tendance area plan. However, the Court allowed the de­
fendants to “ supplement” this original attendance area 
plan by a “ proper use” of the placement law. Norwood v. 
Tucker, 287 F. 2d 798, 802. However, this Court made the 
following observation about the School Board’s applica­
tion of the assignment criteria:

It is established without any serious dispute that the 
Board’s assignment criteria under the pupil place­
ment laws were not applied to any white student in 
making these initial assignments; that no white student 
was refused assignment to the school of his residence 
area or registration; and . . . the evidence convincingly 
established that in making initial assignments of plain­
tiffs and other Negro students, the Board’s action was 
motivated and governed by racial considerations (Id. 
at 806).

This Court said further:

. . .  we are convinced that Negro students were sub­
jected to different treatment in the assignment pro­
cedures . . . and that, consciously or otherwise, the 
standards and criteria were applied by the defendants 
for the purpose of impeding, thwarting and frustrat­
ing integration (Id. at 808).

This Court directed the district court to “ retain juris­
diction of the cause to the end that our views as herein 
expressed are carried into effect.” (Id. at 109).

During the spring of 1964, under a choice plan for grades 
one, four, seven and ten, one hundred and eighty-eight



5

Negro pupils made preferences for initial assignment to 
predominantly white schools. One hundred and fourteen 
were granted. The remaining seventy-four, including one 
of the plaintiffs, were refused and assigned to all-Negro 
schools. An undetermined number of Negro pupils whose 
initial assignment preferences were denied pursued the 
administrative remedies of the pupil assignment law. 
Twenty-one of the requests were approved. A number were 
denied, including the request of plaintiff Ethel Lemar 
Moore (Tr. 166, 175).

Shortly before the opening of school in September, 1964, 
Negro Army sergeant Roosevelt Clark, moved his family, 
which included four school age children, to Little Rock and 
sought to enroll his children in the public schools. His wife 
inquired by telephone of the school board’s administrative 
staff as to which schools their children should attend, and 
the staff, apparently acting on the assumption that the 
caller was a white person, advised her to enroll in a named 
white elementary school and a named white junior high 
school located in their general residential area (Tr. 284, 
285). However, when Mrs. Clark sought to register her 
children in these schools she was refused by the principals 
of the two schools and referred to the school board’s ad­
ministrative staff. At one of the schools she was advised 
that “ they had all the colored children picked out that would 
attend the school” (Tr. 285, 286). The administrative staff 
assigned the pupils to “ Negro” schools near their home and 
relegated them to the administrative remedies of the as­
signment law (Tr. 288, 289).

This litigation followed. On September 25, 1964 the 
Clark and Moore children moved to intervene in Norwood 
v. Tucker, 287 F. 2d 798 (8th Cir., 1961). After a hearing



6

on their motion, the intervention was denied by the district 
court on October 26, 1964. The district judge advised the 
intervenor applicants at the hearing that a new suit would 
have to be filed because of the presence of issues new to the 
Aaron and Norwood litigation. The present action followed. 
Plaintiffs alleged, inter alia, that: (1) the orders of this 
Court directing non-racial use of the pupil assignment 
laws were being ignored by defendants; (2) separate schools 
for white and Negro pupils were being operated and main­
tained and that new construction and site location was 
planned on a basis of preserving or continuing segregation; 
(3) the district, despite denials, used geographic zoning in 
making school assignments based on racially drawn, over­
lapping school zones; and (4) faculty and supervisory per­
sonnel were assigned on a racial basis.

At the trial of the new action on January 5 and 6, 1965 
appellants moved to have this action consolidated with 
Aaron v. Cooper, supra; and Norwood v. Tucker, supra. In 
denying the motion, the court advised that the orders en­
tered in those cases were applicable to this case (Tr. 3, 4, 5).

At the time of trial, there were approximately 23,000 
pupils in the school system (Tr. 40) of which 7,341 were 
Negro (Tr. 136). Faculties and supervisory personnel were 
completely segregated (Tr. 130). Although complete inte­
gration was to occur “not later” than September 1963, the 
school system was as racially segregated as it was in 1956 
with the exception of 212 Negro pupils in formerly white 
schools (Tr. 135, 176, 184, 185, 211, 279, 365). (See also, 
Answer to Interrogatories, No. 25, dated Jan. 4, 1965.) 
Appellees took the position that even though there were 
but a token number of Negro pupils in attendance at pre­
dominantly white schools, the “preference” procedure fol­



7

lowed by the board satisfied its constitutional obligation 
(Tr. 169).

The school board encouraged the continuation of segre­
gated schools by conducting “ pre-school roundups,” and 
junior high and senior high school “ orientation” on a racial 
basis and in a way designed to perpetuate racial segrega­
tion. New schools were constructed and initially populated 
only by Negro pupils and staff (Tr. 211, 212, 273). The 
“pre-school roundups” are designed to identify the first 
grade population in each school for the coming school year, 
to bring the pupils to the schools which they will probably 
attend, and to orient the pupils and their parents to the 
schools’ physical facilities, teachers and expectations. The 
roundups are usually held in the spring before September 
school opening. Generally, the principals and teachers of 
each elementary school conduct a survey to locate all of 
their entering pupils. This is done in several ways. Chil­
dren already in attendance are requested to provide the 
schools with the names and addresses of relatives and 
friends who will be entering the first grade. Parent-Teacher 
Association groups make announcements about the round­
ups. The result has been that white pupils attend “pre­
school roundups” in white schools; Negro pupils in “Negro” 
schools. The Deputy Superintendent testified that he did 
not know of any Negro pupils who had participated in 
“pre-school roundups” in white schools. “Preference” 
forms are subsequently distributed to the pupils so that 
they may make their choice of schools and pupils are ex­
pected to choose the “ roundup” school (Tr. 106, 107, 177, 
178, 179). (See also, Answers to Interrogatories Nos. 7, 8, 
9, dated Jan. 4,1965.)



8

The board operated “ feeder” elementary schools for 
each junior high school. Each elementary school graduating 
class was expected to be assigned to a particular junior 
high school (Tr. 110, 253, 274). For example, all of the 
graduates of Negro elementary schools on the east side of 
Little Rock were expected by the School Board and staff 
to be assigned to the Negro junior high school on the east 
side of Little Rock. Likewise, graduates of “Negro” ele­
mentary schools on the west side of Little Rock were ex­
pected to “ feed” into the “ Negro” junior high school on 
the west side of Little Rock (Tr. 265, 266, 267).

The situation was similar for white pupils. Principals 
and counselors from the receiving school visited the 
“ feeder” elementary school at a time shortly before the 
pupils made their junior high school choices for the purpose 
of orienting the pupils to the junior high school programs, 
facilities and expectations at their respective schools. Thus, 
Negro principals and counselors oriented only Negro pupils 
and white principals and counselors oriented only white 
pupils (with the exception, of course, of any Negro pupils 
in the predominantly white “ feeder” schools graduating 
class) (Tr. 107-111). This basic procedure was also fol­
lowed in the junior high schools at a time before the grad­
uating pupils made their school choices (Tr. 35-39, 107-110, 
253, 262, 263, 265, 266, 273, 275).

Assignments of pupils were generally made on the basis 
of this feeder school pattern. Ethel LeMar Moore, attended 
an all-Negro elementary school. Although she chose a 
nearby predominantly white school, she was assigned to 
the school which has historically been her elementary 
school’s receiving school (Tr. 265). Moreover, the hundreds



9

of pupils, both white and Negro, who made no choice of 
schools were assigned to schools solely on a “ feeder school,” 
dual attendance area basis (Tr. 31, 34, 83, 100, 107-109, 
115, 135, 197, 198, 267, 273, 274, 371). However, those white 
pupils who chose schools outside of their “ feeder school” 
area or their attendance area were denied their choice 
initially by the School Board and after reassignment re­
quest. When the Board wanted to grant such choice or 
request, they made a “no-but” ruling. The “no-but” policy 
simply meant that the Board was denying the choice for the 
present but making it possible for the school administrative 
staff to grant the requested choice at a later date (Tr. 51, 52, 
53, 194-196).

The board’s policy of encouraging segregation is further 
seen in (1) the closing of a predominantly white junior 
high school shortly before trial, and (2) the closing of an 
all-Negro elementary school shortly after trial. The school 
board operated a predominantly white junior high school 
on the east side of Little Bock until 1964 when it was closed. 
The pupil enrollment at that school included more than four 
hundred white pupils and twenty-seven Negro pupils (Tr. 
21, 29, 30). Shortly before the closing of the east side white 
school, the school board opened a new “ Negro” junior high 
school on the east side of Little Rock and named it “ after 
Bob Booker . . .  a respected colored attorney . . . ” (Tr. 
236, cf. also 211, 235). Thereupon, the board closed the 
east side junior high school and assigned the Negro pupils 
in attendance at east side to the Bob Booker school. The 
white east side pupils, however, were assigned to the pre­
dominantly white west side school located in West Little 
Rock. Although representing itself to be operating under a 
choice plan, the board made the choice for the pupils strictly 
on a racial basis (Tr. 28, 29, 30, 201, 202, 211, 212).



10

The second school closing occurred during the summer of 
1965 while the district court was considering the case at 
bar. The board closed an all-Negro school which was lo­
cated near one existing Negro elementary school and two 
predominantly white elementary schools. Simultaneously, 
the board opened a new school which was also named for a 
distinguished Negro citizen, and staffed it with a Negro 
faculty. Pupils were then shifted around by the board on 
a geographic attendance area basis. Negro pupils were 
reassigned from three different schools by the board in 
order to populate the new schools. Significantly, none of the 
pupils were assigned to either of the two nearby white 
schools although some lived closer to them than to the 
Negro schools they were assigned to attend; and none of 
the white pupils in the geographic attendance area were 
reassigned. Thus, when the district court required the 
school board to provide the pupils assigned to Negro 
schools an opportunity to make a choice of schools in Byrd 
et al. v. Board of Directors of the Little Rock School Dis­
trict, Civ. No. LR 65-C-142, the character of the new school 
had become an established fact. The board had thus created 
by design another “Negro” school and had again made clear 
its unwillingness to either assign white pupils to “ Negro” 
schools or Negro pupils to predominantly white schools 
(ef. Tr. 184,185). (See also Answer to Interrogatories Nos. 
28 and 31, supra). However, as a result of Byrd, more than 
one hundred of the approximately 1,500 affected Negro 
pupils were assigned to the two predominantly white 
schools in the general area. This number is reflected in the 
district court’s figure of 621 Negro pupils in predominantly 
white schools at the beginning of the 1965-66 school term.



11

(See p. 4 of the district court’s opinion of January 14,1966.) 
(See also, Tr. 359, 360, 361.1)

Through the 1964 school year, all teachers were hired 
on a racial basis—Negro teachers for “Negro” schools; 
white teachers for white schools. The Superintendent testi­
fied that although the school board had not officially con­
sidered desegregating the teaching staffs, the subject pre­
sented many problems. One problem he anticipated was 
finding white teachers who were willing to teach classes 
of all-Negro children (Tr. 338); another was that Negro 
teachers probably could not relate properly to white chil­
dren (Tr. 339). He presented nothing in support of either 
of these beliefs. Although they had no data this position, 
the board President and the Superintendent both felt that 
Negro teachers were inferior to white teachers and con­
sequently, desegregation of the teaching staff should be 
delayed (Tr. 45, 46, 339, 340, 341, 352).

This Court in Aaron v. Cooper, 261 P. 2d 97 (1958) 
directed the defendants take affirmative action on its own

1 Number of Negro Pupils Attending
White Schools During Desegregation Process

Number of Negro Pupils
School Year in Schools with Whites Source
Prior to Sept. 1957 0____ ------Lower Court opinion
1957- 58
1958- 59 Schools closed

9 of Feb. 4, 1966

1959-60 9 U

1960-61 12 U

1961-62 44 u

1962-63 72 a

1963-64 124 u

1964-65 220 i t

1965-66 471____ ----- Little Rock School
District (7 /19/65)

1965-66 (after Byrd litigation) 621— ------Lower Court opinion
of Feb. 4, 1966



12

initiative to accomplish the objectives of the approved 
plan of “ integration.” Aaron v. Cooper, 169 F. Supp. 325, 
337 (1959), Aaron v. Tucker, 186 F. Supp. 913 (I960) and 
Norwood v. Tucker, 287 F. 2d 798 (1961). Testimony ad­
duced at trial showed that board members and their school 
staff had completely ignored this requirement. In response 
to a question from plaintiff’s counsel—“what affirmative 
steps has the board taken since May of 1961 to promote 
the desegregation of the Little Rock Schools other than 
the Board motion which was adopted that you would de- 
segregate at a certain school level?,” board President 
Matson replied: “ We’ve made no attempt other than that” 
(Tr. 49). (See also Tr. 50.) Board member J. H. Cottrell 
said that he did not recall “ any affirmative steps taken by 
the board pursuant to this Court’s directive” (Tr. 79. 81). 
Former Board Member Ted Lamb (whose term expired 
shortly before the beginning of this litigation) stated:

I don’t think the Board has taken any affirmative steps 
to complete a program of desegregation and eventual 
integration of the Little Rock schools. I think they 
have only done what they feel is necessary to avoid 
contempt of court orders, to avoid being found in con­
tempt of court. I don’t think they have done anything 
else. All the initiative is on the part of the Negro child 
if they want to go into a white school in Little Rock 
(Tr. 208, 209).

In addition to the board’s failure to take affirmative steps 
to disestablish racial segregation in the schools, the board 
members and staff knew little about the plan that the 
school system was committed to implement (Tr. 49, 140, 
141, 142). The deputy superintendent conceded that he



13

did not know the details of the plan. The Superintendent 
stated that he had not made any effort to acquaint himself 
“with the so-called Blossom Plan for desegregation” (Tr. 
351-352) (cf. p. 242). Appellees did not consider them­
selves bound by the initial desegregation plan or by prior 
orders in this case. This position was taken by defense 
counsel in an oral statement to the court (Tr. 25, 26) al­
though prior orders had been issued against the corporate 
board, the individual board members, their successors, their 
employees, and their attorneys. Aaron v. Cooper, 261 F. 2d 
97, 108; Norwood v. Tucker, 287 F. 2d 798, 809.

Upon the conclusion of the trial on January 6, 1966, the 
district court, the court stated:

. . . the Moore child did everything that was required 
under the regulations of the school in her application 
for assignment to, I believe it was West Side [junior] 
High. As far as the evidence, I find nothing that would 
justify the Board’s refusal to permit her transfer. In 
fact, I think, in her case, it amounted to a violation— 
the refusal amounted to a violation of the Court order 
and injunction, so I ’m going to order now the Moore 
child admitted to the school which she asked for . . . 
at the beginning of the semester, and I want a special 
attorney’s fee of $250.00 taxed as costs to her. She 
should not have been required to hire counsel to pro­
tect her rights. Now, as to the other children, there 
is a different question involved and I want to think 
about that a few days (Tr. 386).

Subsequently, the “ other” children were reassigned by the 
school board to the schools of their original choice thereby 
making it unnecessary for the court to take such action.



14

Subsequently, on April 22,1965, before the district court’s 
opinion was written, the defendants revised their plan 
again. The plan—presented as a Motion and Supplemental 
Report—adopted “ freedom of choice” without the restric­
tive provisions of the pupil placement law at the first, 
seventh and tenth grade levels. Pupils in other grades had 
the right to make “ lateral” transfer2 requests which would 
not be granted except in “unusual circumstances.” The 
board’s teacher desegregation plan was: “ The Board . . . 
assumes the responsibility of undertaking and completing 
as expeditiously as possible the desegregation of teachers 
and staff with the end in view of recruitment and assign­
ments without regard to race.”

Defendants implemented their proposed plan, over ob­
jections of plaintiffs which were filed May 20, 1965, and 
without formal approval of the district court.

On November 26, 1965, the district attempted to conform 
its plan to this court’s requirements set out in Kemp v. 
Beasley, 352 P. 2d 14 (1965). Thus, all “ entering first 
graders, sixth graders going to the seventh grade and ninth 
graders going to the tenth grade” were required to make 
a choice. Lateral transfers in the other grades would be 
granted upon the pupils’ initiative in any case except where 
the transfer would cause overcrowding. Notice was to be 
given by the classroom teacher.

The district court entered its opinion in this cause on 
January 14, 1966, more than one year after trial, and ap­
proved the board’s post-trial “abandonment” of the Ar­

2 The Board’s definition of “ lateral transfer” was “ the assignment 
of a student to a school of the same level (that is elementary, junior 
high or senior high) other than the one he currently attends.” 
P. 2, letter from Mr. Herschel Friday, Jr. to the District Court 
dated November 26, 1965.



15

kansas Pupil Assignment law and the adoption of a 
“ choice” plan.

The Court observed that:

Under the proposal those pupils entering the first 
grade, the seventh grade (junior high), and the tenth 
grade (senior high), as well as all pupils newly en­
rolled in the district would be given and even required 
to exercise a choice of schools, such choice being ab­
solute unless overcrowding would result” (p. 2 of the 
district court’s January 14, 1966 opinion).

“As to pupils in the other grades, near the close 
of the year they would be reassigned to the same 
school. Pupils might apply for reassignment, but it 
is a stated policy of the board that such lateral trans­
fers would be granted only in unusual circumstances” 
(p. 3 of the district court’s January 14, 1966 opinion).

The Court further found that the School Board had com­
mitted itself to “ expeditiously” pursuing the problem of 
teacher desegregation and had, in fact, assigned four white 
teachers to Negro schools and five Negro teachers to pre­
dominantly white schools. The court concluded “ that for 
the present, at least, no additional order of the Court is 
required.”

In giving conditional approval to the “ choice” plan, the 
district court required the Board to amend the plan to 
include: (1) mid-semester choices for pupils in the twelfth 
grade; and (2) annual “ freedom of choice”  to be exercised 
under reasonable regulations and conditions promulgated 
by the board and sufficiently publicized to acquaint all in­
terested parties with the simple mechanics of exercising 
their right of choice of schools—subject, of course, to the



16

availability of classroom facilities and the overcrowding 
of classrooms.

On January 27,1966, the board complied with the Court’s 
directive by granting twelfth grade pupils mid-semester 
transfers. However, the annual choice requirement was 
couched in ‘ -lateral transfer” language and provided: (1) 
that if a pupil outside grades one, seven and ten wanted 
to transfer to another school he could do so (voluntary 
rather than compulsory choice) by obtaining a transfer 
form from the office of the school principal or the super­
intendent; and (2) notice of “ the annual lateral transfer 
right” would be given to the pupils by the classroom 
teachers. (Report to the Court dated January 27, 1966.)

The district court entered its order approving the school 
board’s plan on February 4, 1966. Notice of appeal was 
filed on March 4, 1966.

Statement of Points to Be Argued

I

The Revised “ Preference” Plan Approved by the 
District Court Is Improper in This Case and In­
adequate to Effect Desegregation of the School 
System.

A. Resort to a “preference” plan is improper where 
the hoard has obtained substantial delay to im­
plement a geographic zone plan.

B. The plan approved is inadequate to desegregate 
the Little Rock school system.

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965);
Singleton v. Jackson Municipal Separate School 

District, 355 F. 2d 865 (5th Cir. 1966);



17

Aaron v. Cooper, 243 F. 2d 361 (8th Cir. 1957); 
Kier v. County School Board of Augusta, Va.,

No. 65-C-5-H, E. D. Va., January 5, 1966; 
Gantt v. Clemson College, 320 F. 2d 611 (4th Cir. 

1963);
Bell v. School Board of Powhatan County, 321 

F. 2d 494 (4th Cir. 1963).

II

Appellees’ Policy of Assigning Teachers and 
Supervisory Personnel on the Basis of Pace Is 
Unconstitutional in That It (a) Is Vague and 
Indefinite, (b) Deprives Negro Pupils Who Attend 
Negro Schools of Equal Protection and (c) Im­
pedes Desegregation Under a “Preference” Plan 
by Labeling Schools “ White” and “ Negro.”

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) ; 
Singleton v. Jackson Municipal Separate School 

District, 355 F. 2d 865 (5th Cir. 1966);
Dowell v. School Board of Oklahoma City, 244 F.

Supp. 971 (W. D. Okla. 1965);
Kier v. County School Board,------F. Supp.------- ,

No. 65-C-5-IJ, E. D. Va., January 5, 1966; 
Bradley v. School Board of Richmond, 382 U. S. 

103 (1965);
Rogers v. Paul, 382 U. S. 198 (1965);
Bell v. School Board of Staunton, Va., ------  F.

Supp.------  (W. D. Va. Jan. 5, 1966);
Wright v. County School Board of Greenville

County,------F. Supp.-------  (E. D. Va. Jan. 27,
1966);

Beckett v. School Roard of Norfolk, Civil Action 
No. 2144 (E. D. V a .);



18

Goss v. Board of Education, 373 U. S. 683; 
Anderson v. Martin, 375 U. S. 399;
Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960); 
Price v. Denison Independent School District, 348 

F. 2d 1010 (5th Cir. 1965).

III

Appellees Are Entitled to an Award of 
Substantial Attorneys’ Fees.

Bell v. School Board of Powhatan County, 321 F.
2d 494 (4th Cir. 1963);

Guardian Trust Co. v. Kansas City So. Ry., 28 F.
2d 283 (8th Cir. 1928);

Rolax v. Atlantic Coast Line Ry. Co., 186 F. 2d
473 (4th Cir. 1951);

Sprague v. Taconic National Bank, 307 U. S. 161
(1939);

Admiral Corp. v. Penco Ins., 108 F. Supp. 1015, 
aff’d 203 F. 2d 517 (2nd Cir. 1953).

IV

The Court Below Erred in Refusing to Retain 
Jurisdiction of This Cause in Face of Clear and 
Convincing Evidence That Transition to a Non- 
racial System Is Not Complete and of a Need for 
Continuing Judicial Supervision of the Desegre­
gation Process.

Brown v. Board of Education, 347 U. S. 483, 349
U. S. 294;

Cooper v. Aaron, 358 U. S. 1;
Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961); 
Brooks v. County School Board of Arlington, Va.,

324 F. 2d 303 (4th Cir. 1963).



19

ARGUMENT

I

The Revised “ Preference”  Plan Approved by the 
District Court Is Both Improper in This Case and In­
adequate to Effect Desegregation of the School System.

A. Resort to a “preference”  plan is improper where 
the hoard has obtained substantial delay to imple­
ment a geographic zone plan.

In Aaron v. Cooper, 243 F. 2d 361 (Stli Cir. 1957), this 
Court approved the Little Rock sis year, geographic at­
tendance area, desegregation plan over plaintiff’s objec­
tions. The basis for the requested six year delay was to 
enable the district to complete its construction program 
to provide adequate facilities under a geographic assign­
ment plan for the integrated student bodies in the high 
and junior high schools. The district has now had nine, 
instead of the six years granted by the Court, to complete 
its transition. Thus it is highly improper for the board 
to propose extending the transition by experimenting with 
any kind of a “preference” plan, at best an interim meas­
ure, the adequacy of which for desegregation of an urban 
school system is doubtful. Singleton v. Jackson Municipal 
Separate School District, 355 F. 2d 865, 871 (5th Cir. 1966). 
Appellants submit that although this Court has given con­
ditional approval to “ freedom of choice” as a transitional 
desegregation approach because it “ could prove practical 
in achieving the goal of a non-segregated system,” Kemp 
v. Beasley, 352 F. 2d 14 (1965), such principle does not 
apply where a board has obtained substantial delay in 
order to institute geographic assignment. Despite the



2 0

admonitions of this Court Negro pupils still attend school 
in a segregated system. Whatever its validity in other 
contexts, Little Rock should not now be permitted to have 
the “burden” of making pro-integration school choices 
shifted to Negroes. Thus, the court should now squarely 
place the burden for desegregating the schools on the 
appellees rather than on Negro pupils and require the 
board to draw unitary, nonracial zones.

B. The plan approved is inadequate to desegregate the 
Little Rock school system.

The plan approved by the district court is a transfer 
plan rather than a “ free choice” plan within that term’s 
definition in Kemp v. Beasley, supra, and in the Revised 
Statement of Policies for School Desegregation Plans 
under Title VI of the Civil Rights Act of 1964 (hereafter 
referred to as the Guidelines). The plan approved requires 
that mandatory choices be exercised only by pupils enter­
ing grades one, seven and ten. Pupils entering the other 
grades have an annual “ right to express a preference for 
reassignment . . .  by filing a request for lateral transfer” . 
Notice of this right is to be given the students by the 
classroom teachers in the various schools.

Both Kemp v. Beasley, supra, and the Guidelines require 
all pupils in a choice plan which encompasses twelve grades 
to make compulsory annual choices, Kemp v. Beasley, 
supra, at pp. 21, 22; the Guidelines, §181.43. A 
fatal deficiency of the school board’s plan is that a choice 
is neither mandatory, nor annual, in grades other than 
one, seven and ten. Failure of any pupil in the system to 
make a choice of schools should place the burden upon the 
school board to assign the pupil on a nonracial, attendance



21

area, basis. Kemp v. Beasley, supra at p. 22; Guidelines 
§181.45. Here, the district, although committed since 1956 
to a unitary set of school zone lines, maintains racially 
created dual school zones (Tr. 83, 100, 135, 197, 198, 267, 
361). The school zone lines must be redrawn or eliminated 
altogether if choice is to be acceptable. Kemp v. Beasley, 
supra, p. 4.

Moreover, the board’s plan is silent on the period of time 
pupils have to exercise their choices. Appellants submit 
that the requirements of the Guidelines which provide for 
a choice period of not less than 30 days (§181.44), is only a 
minimum and that a three month period should be required. 
Additionally, the school board’s notice provision—notice 
being given by the classroom teachers, and newspaper pub­
lication once a week for two consecutive weeks—is far 
short of the notice requirements in the Guidelines. They 
provide that notice of the plan of desegregation and of 
pupils’ right to free choice must be by letter distributed to 
each pupil on the first day of the choice period (§181.42). 
Additional publication through newspapers, radio and tele­
vision is required (§181.53).

Furthermore, the plan is inadequate because:

1. Faculty segregation continues and there is no defi­
nite plan for disestablishing the practice;

2. White pupils will not attend Negro schools under the 
plan and many schools will remain all Negro;

3. The plan has effected little change of the deliberately 
created segregated pattern.

Faculty segregation constitutes a form of encouragement 
of segregation which is in violation of the school boards’



22

duty to encourage desegregation. See Gantt v. Clemson 
College, 320 F. 2d 611, 613 (4th Cir. 1963); Bell v. School 
Board of Powhatan County, 321 F. 2d 494, 499 (4th Cir. 
1963). This view was taken by the district court in Kiev v. 
County School Board of Augusta, Va., C. A. No. 65-C-5-H, 
January 5, 1966. The Court held:

Where, as here, the school authorities have chosen 
to adopt a freedom of choice plan which imposes upon 
the individual student, to his parent, the duty of choos­
ing in the first instance the school which he will attend 
(and where the burden of desegregating is imposed 
upon the individual Negro student or his parents), it 
is essential that the ground rules of the plan be drawn 
with meticulous fairness. “ The ideal to which a freedom 
of choice plan must ultimately aspire, as well as 
any other desegregation plan, is that school boards 
will operate ‘schools,’ not ‘Negro schools’ or white 
schools.’ ” Brown v. County School Bd., supra, 245 F. 
Supp. at 560. See Bradley v. School Bd., supra, 345 F. 
2d at 324 (dissenting opinion). Freedom of choice, in 
other words, does not mean a choice between a clearly 
delineated “ Negro school” (having an all-Negro faculty 
and staff) and a “white school” (with all-white faculty 
and staff). School authorities who have theretofore 
operated dual school systems for Negroes and whites 
must assume the duty of eliminating the effects of dual­
ism before a freedom of choice plan can be superim­
posed upon the pre-existing situation and approved 
as a final plan of desegregation. It is not enough to 
open the previously all-white schools to Negro students 
who desire to go there while all-Negro schools continue 
to be maintained as such. Inevitably, Negro children



will be encouraged to remain in “ their school,” built for 
Negroes and maintained for Negroes with all-Negro 
teachers and administrative personnel. See Bradley 
v. School Bd., supra, 345 F. 2d at 324 (dissenting opin­
ion). This encouragement may be subtle but it is none­
theless discriminatory. The duty rests with the School 
Board to overcome the discrimination of the past, and 
the long-established image of the “ Negro school” can 
be overcome under freedom of choice only by the pres­
ence of an integrated faculty.

The school board’s qualified choice plan used throughout 
this litigation and the choice plan now in use was adopted 
with full knowledge of the fact, and indeed in reliance upon 
the fact, that white parents in Little Rock do not choose 
to send their children to the all Negro schools as they 
are presently constituted (Tr. 28, 29, 31, 34, 68, 71). Thus 
the plan, adopted with knowledge of that fact, cannot dis­
establish the segregated system. That segregated system 
has been meticulously maintained by assignment proce­
dures based on the objective of limiting the number of 
Negro pupils who would otherwise attend predominantly 
white schools and of providing ways for white pupils to 
avoid attending “Negro” schools. We urge that a sup­
posed remedial effort—a desegregation plan—which re­
sults in minimum one-way desegregation should not be ap­
proved as adequate.

The experience with a “ preference” approach from 1957 
through 1965 demonstrates that it has not effected any sig­
nificant reform of the segregation pattern. The statistics 
on desegregation in Little Rock (see statement, p. 11, 
supra) demonstrates painfully slow change and only mini­



24

mal results. We submit that actual results are the only 
proper basis upon which to evaluate the adequacy of a de­
segregation plan to accomplish the purpose of Brown v. 
Board of Education.

Finally, as the school board proposes a freedom of choice 
plan which places the burden of desegregation on pupils, the 
board should be required to eliminate all other practices 
which encourage segregation from the system, e.g., “ pre­
school roundups” , and junior and senior high school orienta­
tion; the construction and location of schools in neigh­
borhoods identifiable as “ Negro” or “white” and the racial 
naming of schools.

Unless these safeguards are provided, “ freedom of choice” 
cannot under any circumstances be an adequate “ interim” 
desegregation plan. More importantly, the adequacy of a 
free choice plan cannot be properly determined unless it is 
under the district court’s supervision. That court should 
require the school board to submit frequent reports on the 
progress of desegregation (Guidelines, §181.55); and 
should be directed to take such steps as necessary to insure 
that within a reasonably short period of time the school 
system will be totally “ integrated.”



25

II

Appellees’ Policy of Assigning Teachers and Super­
visory Personnel on the Basis of Race Is Unconstitu­
tionally (a) Vague and Indefinite, (b) It Deprives Negro 
Pupils Who Attend Negro Schools of Equal Protection 
and (c) Impedes Desegregation Under a “ Preference”  
Plan by Labelling Schools “ White”  and “ Negro.”

The school board’s teacher desegregation plan (see State­
ment, swpra, p. 14) is unconstitutionally vague and in­
definite and fails to protect the rights of Negro school 
children. The Board committed itself only to “ expedi­
tiously” undertake faculty desegregation “ to the end” that 
teacher assignments would be nonracial. It failed to set 
forth system-wide standards of assignment or a definite 
timetable. The evidence shows that with the exception of 
assigning five Negro teachers to “white” schools and four 
white teachers to “Negro” schools, the board is continuing 
its discriminatory practice of assigning Negro teachers to 
“ Negro” schools and assigning white teachers to predomi­
nantly white schools. Thus, thirty-five schools have experi­
enced no faculty desegregation whatsoever. The failure of 
the Board to adopt a definite desegregation plan, or to re­
assign a significant number of teachers, renders the plan 
approved by the court invalid.3 Rogers v. Paul, 382 U. S.

3 The standing of pupils and parents to question faculty assign­
ments was conclusively declared in Bradley v. School Board, 
supra, 382 U. S. 103, which holds that removal of race considera­
tions from faculty selection and allocation is, as a matter of law, 
an inseparable and indispensable command within the abolition of 
pupil segregation in public schools as pronounced in Brown v. 
Board of Education, supra, 347 U. S. 483. See also Kemp v. 
Beasley, supra.



26

198 (1965); Bradley v. School Board of Richmond, 382 U. S. 
103 (1965); Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965); 
Singleton v. Jackson Municipal Separate School District, 
355 F. 2d 865 (5th Cir. 1966); Kier v. County School Board, 
supra; Dowell v. School Board of Oklahoma City, 244 F. 
Supp. 971 (W. D. Okla. 1965); Bell v. School Board of
Staunton, Va.,------F. Supp.-------  (W. D. Va. Jan. 5, 1966);
Wright v. County School Board of Greensville Coimty,
------F. Supp.------- (E. D. Va. Jan. 27, 1966). In view of the
constitutionally required goal of desegregation, it is im­
perative that the Little Rock School System be required 
promptly to adopt an effective faculty desegregation plan. 
Reassignment of an insignificant number of teachers and 
absence of a specific, system-wide, plan are plainly unsatis­
factory.

In Dowell, supra, the court, adopting the recommenda­
tions of educational experts, set a goal of 1970 by which 
time there should be “ . . . the same approximate percentage 
of nonwhite teachers in each school as there now is in the 
system. . . . ” The 1970 date was keyed to personnel turn­
over figures indicating that approximately 15% of the total 
faculty is replaced each year, and permits the accomplish­
ment of a faculty integration by replacements to the faculty 
as well as by transfers (244 F. Supp. at 977-78).

In the Kier case, the district court noting the small num­
ber of Negro teachers in the system, ordered faculty de­
segregation to be completed by the 1966-67 school year and 
adopted the Dowell standard:

Insofar as possible, the percentage of Negro teachers 
in each school in the system should approximate the 
percentage of Negro teachers in the entire system for 
the 1965-66 school session.



27

Recently, in Beckett v. School Board of Norfolk, Civ. 
No. 2214 (E. D. Ya.) where the faculty is 40% Negro, a 
district court entered a consent order on March 17, 1966 
approving a plan submitted by the board containing pro­
visions for teacher desegregation which in addition to 
recognizing its obligation to take all reasonable steps to 
eliminate existing racial segregation of faculty that has 
resulted from the past operation of a dual school system 
based upon race or color, committed the board inter alia, 
to the following:

The Superintendent of Schools and his staff will take 
affirmative steps to solicit and encourage teachers 
presently employed in the System to accept transfers 
to schools in which the majority of the faculty mem­
bers are of a race different from that of the teacher 
to be transferred. Such transfers will be made by the 
Superintendent and his staff in all eases in which the 
teachers are qualified and suitable, apart from race 
or color, for the positions to which they are to be 
transferred.

In filling faculty vacancies which occur prior to the 
opening of each school year, presently employed teach­
ers of the race opposite the race that is in the majority 
in the faculty at the school where the vacancy exists 
at the time of the vacancy will be preferred in filling 
such a vacancy. Any such vacancy will be filled by a 
teacher whose race is the same as the race of the ma­
jority on the faculty only if no qualified and suitable 
teacher of the opposite race is available for transfer 
from within the System.

Newly employed teachers will be assigned to schools 
without regard to their race or color, provided, that



28

if there is more than one newly employed teacher who 
is qualified and suitable for a particular position and 
the race of one of these teachers is different from 
the race of the majority of the teachers on the faculty 
where the vacancy exists, such teachers will be as­
signed to the vacancy in preference to one whose race 
is the same.4

An effective faculty desegregation plan, as these cases 
show, must establish specific system-wide goals to be 
achieved by affirmative policies administered with regard 
to a definite time schedule. The plan approved by the dis­
trict court does not meet these criteria. The Little Rock 
school system for valid constitutional and educational rea­
sons should be required to submit faculty desegregation 
plans patterned after those in the Oklahoma City, Augusta 
County, and Norfolk cases.

A total of 13 Little Rock schools have solely Negro 
enrollment. No whites attend formerly Negro schools in 
Little Rock (Tr. 35, 36). The plan in effect has resulted 
in one-way desegregation, i.e., Negro pupils leaving their 
all-Negro schools with all-Negro faculties and student 
bodies intact.5 It is obvious that if this pattern is continued 
without corresponding integration of Negro faculty per­
sonnel, not only will meaningful pupil desegregation re­
main impossible, but Negro teachers will be gradually

4 A  similar plan was approved March 30, 1966, by the district 
court in Bradley v. School Board of City of Richmond, Civ. No. 
3353 (B. D. Va.). where about 50% of the teachers are Negro.

5 See comprehensive statistics published by the Southern Educa­
tion Reporting Service in its periodic “ Statistical Summary of 
School Segregation-Desegregation in Southern and Border States” , 
15th Revision, December 1965, passim.



29

siphoned out of the system, and efforts to achieve faculty 
desegregation will no longer be difficult, but impossible.

Faculty segregation impedes the progress of pupil deseg­
regation. Where, as here, students and parents are given 
a choice of schools it insures schools which are identifiable 
on a racial basis and influences a racially-based choice. 
Arrangements which work to promote pupil segregation 
and hamper desegregation are not to be tolerated in deseg­
regation plans. Goss v. Board of Education, 373 U. S. 683. 
Faculty segregation influences a racially-based choice as 
surely as the law requiring racial designations on ballots 
which was invalidated in Anderson v. Martin, 375 U. S. 399.

In Dove v. Parham., 282 F. 2d 256 (8th Cir. I960) this 
Court stated the obligation of a school district “ to dis­
establish a system of imposed segregation.” Application of 
this principle requires an effective, specific faculty and 
supervisory personnel desegregation plan not just token 
reassignment of a few teachers. The United States Office 
of Education has noted the negative consequences of pupil 
desegregation without concurrent faculty desegregation. 
Thus, in further implementing Title VI of the Civil Rights 
Act of 1964 (42 U. S. C. A. 2000d) the Office of Education 
in its March, 1966 Revised Statement of .Policies requires 
school districts submitting plans for desegregation to com­
ply with the following policies.

§181.13 Faculty and Staff.

(a) Desegregation of Staff. The racial composition 
of the professional staff of a school system, and of 
the schools in the system, must be considered in de­
termining whether students are subjected to discrimi­
nation in educational programs. Each school system 
is responsible for correcting the effects of all past



30

discriminatory practices in the assignment of teachers 
and other professional staff.

(b) New Assignments. Eaee, color, or national ori­
gin may not be a factor in the hiring or assignment 
to schools or within schools of teachers and other 
professional staff, including student teachers and staff 
serving two or more schools, except to correct the 
effects of past discriminatory assignments.

-tf- </■  -Sfe Jfew  w  w  w  w

(d) Past Assignments. The pattern of assignment 
of teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students of 
a particular race, color or national origin, or such 
that teachers or other professional staff of a particular- 
race are concentrated in those schools where all, or 
the majority, of the students are of that race. Each 
school system has a positive duty to make staff as­
signments and reassignments necessary to eliminate 
past discriminatory assignment patterns. Staff de­
segregation for the 1966-67 school year must include 
significant progress beyond what was accomplished 
for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time 
basis. Patterns of staff assignment to initiate staff 
desegregation might include, for example: (1) Some 
desegregation of professional staff in each school in 
the system, (2) the assignment of a significant portion 
of the professional staff of each race to particular 
schools in the system where their race is a minority 
and where special staff training programs are estab­
lished to help with the process of staff desegregation,



31

(3) the assignment of a significant portion of the staff 
on a desegregated basis to those schools in which the 
student body is desegregated, (4) the reassignment of 
the staff of schools being closed to other schools in 
the system where their race is a minority, or (5) an 
alternative pattern of assignment which will make 
comparable progress in bringing about staff desegre­
gation successfully.

These Office of Education standards for faculty desegre­
gation are entitled to great weight. See Kemp v. Beasley, 
supra; Singleton v. Jackson Municipal Separate School 
District, 355 F. 2d 865 (5th Cir. 1965); Price v. Denison 
Independent School District Board of Education, 348 F. 
2d 1010, 1013 (5th Cir. 1965). Yet the plan approved by 
the district court fails to conform in the most elementary 
manner to these standards. Significantly, at least two dis­
trict courts had fashioned orders before the Office of Ed­
ucation adopted its Revised Statement which complement 
the new regulations. Dowell v. School Board of Oklahoma 
City Public Schools, supra, and Kier v. County School 
Board of Augusta County, Virginia, supra. Both courts 
required plans under which the percentage of Negro 
teachers assigned to each school would result in an equal 
distribution of Negro teachers throughout the system. This 
or similar relief is necessary to eliminate the problem of 
faculty segregation in Little Rock. The appellees should 
be required to submit a comprehensive and specific admin­
istrative plan for complete faculty desegregation in accord 
with such definitive guidelines.



32

III

Appellees Are Entitled to an Award of Substantial 
Attorneys’ Fees.

In Bell v. School Board of Powhatan County, 321 F. 2d 
494, 500 (4th Cir. 1963), the Court of Appeals for the 
Fourth Circuit set forth criteria for awarding counsel fees 
in school desegregation cases. The criteria included a 
board’s: (1) “ refusal to take any initiative” to deseg­
regate the schools; (2) “ interposing administrative obsta­
cles to thwart the valid wishes of plaintiffs for a deseg­
regated education” ; and (3) “ long continued pattern of 
evasion and obstruction.” The Bell court concluded that 
the “ equitable remedy would be far from complete, and 
justice would not be attained if counsel fees were not 
awarded in a case so extreme.”

Appellants submit that this case meets the Bell criteria 
and is a proper case for the award of substantial counsel 
fees by reason of the school board’s refusal to grant the 
school choices of Negro children and failure to completely 
desegregate the school system. Indeed, litigation has been 
required because of the board’s failure to protect the con­
stitutional rights of Negro pupils in the Little Eock school 
system which should have been desegregated totally no 
later than 1963. Norwood v. Tucker, 287 F. 2d 798 (8th 
Cir. 1961).

The district court made a token award of attorneys’ fees 
in the amount of $250.00, but the amount and the limitation 
of the award to one plaintiff, was too narrow (Tr. 387). 
The expenses and fees were far greater than this nominal 
sum. The record shows that the trial itself took two full 
days, involved three lawyers, extensive pretrial discovery,



33

post trial memoranda, and numerous conferences. As the 
Moore infant should not have been required to obtain coun­
sel to protect her rights she was entitled to more than 
nominal protection. The Clark infants were, however, re­
quired to institute suit in order to secure rights to which 
they were plainly entitled and the district court failed to 
award them counsel fees, see supra, p. 5. As the school 
board brought the entire litigation on itself, both the Clark 
and Moore children were entitled to reasonable atorneys' 
fees. See Admiral Corp. v. Penco Ins., 106 F. Supp. 1015, 
aff’d 203 F. 2d 517 (2nd Cir. 1953).

In a school desegregation suit plaintiffs assert not only 
their own rights but those of the class of persons whose 
rights the school board is required to protect. This is 
necessary in order to protect their individual rights and 
also because of the class character of racial discrimination. 
In such circumstances named plaintiffs ought not carry 
the entire financial burden. Potts v. Flax, 313 F. 2d 284 
(5th Cir. 1963). The controlling principle is taken from 
the class of cases in which the defendant is trustee of a 
common fund and as such bound by law to protect the 
interests of the plaintiffs who are beneficiaries of the fund. 
In such cases where the trust has been violated the courts 
do not hesitate to award attorneys’ fees to plaintiffs. 
Guardian Trust Co. v. Kansas City So. Ry., 28 F. 2d 283 
(8th Cir. 1928); Sprague v. Taconic National Bank, 307 
II. S. 161 (1939); Rolax v. Atlantic Coast Line Ry. Co.. 
186 F. 2d 473 (4th Cir. 1951). The public interest in school 
desegregation requires no less. See Note, 77 Harv. Law 
Rev. 1135 (1964).

In this case, the plaintiffs, of necessity and by the board’s 
default, assumed the board’s obligation to protect the con­



34

stitutional rights of Negro pupils in Little Rock. Denial of 
substantial attorneys’ fees will encourage the school board 
to continue the dilatory, evasive, and obstructive tactics 
shown by this record (see supra, pp. 7-13) and thereby 
encourages further litigation.

IV

The Court Below Erred in Refusing to Retain Juris- 
diction of This Case in Face of Clear and Convincing 
Evidence That Transition to a Nonracial System Is Not 
Complete and of a Need for Continuing Judicial Super­
vision of the Desegregation Process.

On February 4, 1966, the District Court entered an order 
which stated: “ There being no remaining issues in the 
case, the cause is dismissed, at the cost of defendants.” 
The district court clearly erred in reaching this conclusion. 
First, a number of issues remain, as urged in this brief, 
as to which the board has not submitted a constitutionally 
valid plan. Under no circumstances, however, should this 
case have been dismissed. The Little Rock system is not 
completely desegregated— schools still retain their racial 
character and are predominantly attended by Negro stu­
dents or white students who are instructed by Negro or 
white teachers respectively. The board has a continuing 
obligation to effect a desegregated system which, as the 
history of litigation amply demonstrates, see supra at pp. 
1-14, requires judicial supervision.

Brown v. Board of Education, 347 U. S. 483 (1954), 349 
U. S. 294 (1955) and its progeny require district courts to 
retain jurisdiction over school desegregation cases until 
racially segregated school systems are totally eliminated.



35

In its March 2, 1961 opinion this Court clearly directed the 
“ District Court . . .  to retain jurisdiction of the cause . . . ” 
until the segregated system had been replaced by a non- 
racial school system, Norwood v. Tucker, 287 F. 2d at 809. 
While this Court observed in Norwood, supra, that under 
the approved desegregation plan, “ integration was to be 
effectively completed not later than 1963” that goal has 
not yet been achieved by 1966 (italics added). Indeed, the 
Deputy Superintendent, Mr. Paul Fair, stated that the 
system was still in transition. In response to a question 
from appellants’ counsel:

“Well, if you had to come to the court and say to 
the Court, ‘Your honor, we think now that the school 
desegregation plan is complete and we want to termi­
nate this lawsuit, everything is operating as it should 
without any racial discrimination,’ do you think we’re 
at that stage yet?”—he answered, “ No.”

An instructive decision is Brooks v. County School Board 
of Arlington, Va., 324 F. 2d 303 (4th Cir. 1963). There a 
district court dissolved an injunction against racial dis­
crimination on the ground that the policy of segregation 
no longer existed. The Court of Appeals reversed holding 
that there was “no long history of sustained obedience” 
(Id. at 307) and that district court supervision of transi­
tion to a totally desegregated system was contemplated by 
Brown v. Board of Education, 347 U. S. 483 and Cooper v. 
Aaron, 358 FT. S. 1 (Id. at 308). Here there has been no 
history of obedience, desegregation is not completed, and 
the board’s absence of good faith is demonstrated by its 
treatment of the Moore and Clark children (see pp. 5, 13, 
supra).



36

CONCLUSION

W herefore appellants respectfully pray that the judg­
ment below be reversed.

Respectfully submitted,

J ohn W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

H arold B. A nderson

Century Building, Room 205 
Ninth & Arch Streets 
Little Rock, Arkansas

J ack Greenberg

J ames M. Nabrit, III
M ichael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants



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