The Board of Education of the Little Rock School District v. Clark Brief in Opposition to Certiorari

    In the

Qltfurt of til? lEnttoti States
October Term, 1972

No. 72-739

T h e  B oard of E ducation of th e  L ittle 
B ock S chool D istrict, et al.,

Petitioners,
vs.

D elores Clark , et al.

p e t i t i o n  f o r  a  W RIT o f  CERTIORxARI t o  t h e  
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J o h n  W . W alker  
P h ilip  E . K aplan

Walker, Kaplan & Mays 
622 Pyramid Life Building 
Little Bock, Arkansas 72201

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



TA B L E  O F CONTENTS

PAGE

Opinions B elow ..................-................................................  1

Jurisdiction ..................... ............................................. —  1

Question Presented ............ .......................... -....................  2

Statement .......... ...................... -..... - ....................... -...........  2

Reasons Why the Writ Should be Denied ....... ......... ....  3

1. The issue is failure to desegregate three grades 3

2. The decision below will require neither exces­
sive transportation nor inordinate expense __  4

3. The principle applied below is well settled
among the lower federal courts .... ............. .... -  5

Conclusion 7



Isr the

lihtpr̂ me dmtrt nf %  United Bintts
October Term, 1972 

No. 72-739

T h e  B oard of E ducation of th e  L ittle  
R ock S chool D istrict , et al.,

vs.
Petitioners,

D elores Clark , et al.

PETITION FOR a  W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The August 21, 1972 opinion of the United States Court 
of Appeals for the Eighth Circuit is now reported at 465 
F.2d 1044. The district court opinion, reprinted at pp. 
A-14 to A-31 of the appendix to the Petition, is not re­
ported.

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1254(1).



2

Question Presented

Did the Court of Appeals err in requiring that an ac­
ceptable plan of desegregation in Little Bock affect all 
elementary grades, and in rejecting the school board’s offer 
to desegregate only two of five elementary grades?

Statement

Respondents generally accept the Statement offered by 
the Petitioners, but we note the following:

1. The description of the plan offered by the Petitioners, 
which the Court of Appeals rejected, is technically correct 
but astonishingly fails to mention that as to grades 1-3 in 
the so-called “perimeter” elementary schools, the plan 
would leave them as segregated as the entire five grades 
were in 1971, when the Court of Appeals required further 
desegregation. Clark v. Board of Educ., 449 F.2d 493 
(8th Cir. 1971), cert, denied, 405 U.S. 936 (1972).

2. This action to fully desegregate the public schools 
of Little Rock, Arkansas, has been pending since 1965. 
See Clark v. Board of Educ., 369 F.2d 661 (8th Cir. 1966); 
426 F.2d 1035 (8th Cir. 1970), cert, denied, 402 U.S. 952 
(1971); 449 F.2d 493 (8th Cir. 1971), cert, denied, 405 
U.S. 936 (1972). Joined with its predecessor action, it is 
one of the nation’s oldest school desegregation cases. See, 
e.g., Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956), 
aff’d 243 F.2d 361 (8th Cir. 1957); Norwood v. Tucker, 287 
F.2d 798 (8th Cir. 1961).

3. With regard to the matters alleged in n. 1 of the 
Petition, the former school administrators or school board 
members sued in their official capacities are no longer



3

parties to this action even in the absence of a formal 
order to that effect. F.R.C.P. 25(d). Compare Bradley 
v. School Bd. of Richmond, 324 F. Supp. 401 (E.D. Va. 
1971).

Reasons Why the Writ Should be Denied

This is the third Petition for Writ of Certiorari in as 
many Terms of this Conrt filed by the Little Rock school 
board, seeking to overturn orders requiring effective deseg­
regation of the Little Rock public schools. Each of the 
prior Petitions was denied, 402 U.S. 952 (1971) ; 405 U.S. 
936 (1972), but the board now attempts to raise, in its 
present Petition, all of the claims it unsuccessfully sought 
to raise before.

1. The issue is failure to desegregate three grades.

The only issue properly presented in this case is whether 
a plan which desegregates only two grades of five-grade 
schools can be said to be adequate compliance with a 
school district’s obligation to dismantle its formerly dual 
school system. The question whether school segregation 
in Little Rock resulted accidentally or whether it is a 
vestige of the prior dual school system was determined 
adversely to the school district in 1970, 426 F.2d 1035 
(8th Cir. 1970), cert, denied, 402 U.S. 952 (1971). See 
Brief in Opposition to Certiorari, No. 409, O.T. 1970, pp. 
618, 12-15, 19-26. Likewise, the necessity for complete 
desegregation at the elementary level was before the Court 
of Appeals in 1971, 449 F.2d 493 (8th Cir. 1971), cert, 
denied 405 U.S. 936 (1972), and the lower court was re­
quired to have submitted to it and to approve for imple­
mentation, a plan to complete the desegregation of the 
elementary schools using any or all of the techniques



4

validated by this Court in Swann v. Charlotte-MecJclenburg 
Bd. of Educ., 402 U.S. 1 (1971).

The plan submitted by the school district would involve 
only fourth and fifth grade students in the elementary 
schools on the eastern and western extremities of the City 
of Little Eock. Pupils in the first three grades would 
remain as totally segregated at these schools as were the 
entire student bodies in 1970—when the Court of Appeals 
explicitly condemned maintenance of the school zones as 
vestiges of the dual system. 426 F.2d at 1043-44, notes 
18-22 and accompanying text.

2. The decision below will require neither excessive 
transportation nor inordinate expense.

The crosstown transportation of elementary students to 
which Petitioners refer is the result of their own design 
of a plan. In Little Eock, as is generally true, two basic 
approaches are available to desegregate groups of racially 
identifiable schools located generally on the opposite sides 
of town. The shortest bus rides can be achieved if the 
central city schools are included in a pupil transportation 
plan, although a larger number of students would have to 
ride the buses. Petitioners chose the other approach, which 
minimizes the number of students who must travel but 
enlarges the distance which those students must go, by 
desegregating the center city schools as a single unit with 
virtually no transportation (Petition, pp. 4-5) and ex­
changing students among the schools at either extremity.

The expense to the school district of which Petitioners 
complain is insubstantial in comparison to the enormous 
unnecessary past expenditures through which the school 
district constructed additional segregated facilities at the 
extreme ends of the city and which it now finds so difficult



5

to desegregate. See, e.g., Clark v. Board of Educ., 401 U.S. 
971 (1971).

3. The principle applied below is well settled among 
the lower federal courts.

The Petitioners misrepresent the Eighth Circuit’s deci­
sion in Yarbrough v. Hulbert-West Memphis School Dist., 
457 F.2d 333 (8th Cir. 1972) in their effort to develop some 
conflict among the lower courts. That case did not involve 
desegregation only of some grades, but rather a compre­
hensive plan for a small school district, within which 
projected student enrollments at each school would vary 
by 20% on either side of the system-wide racial ratio. 
See 339 F. Supp. 1059 (E.D. Ark. 1971). Plaintiffs’ com­
plaint was that traditionally black schools remained black 
and traditionally white schools white. In light of the 
specific factual circumstances (an exception to this pattern 
had been projected but failed to materialize), the Court of 
Appeals declined to reverse, although it did authorize the 
district court to modify the plan.

Indeed, the law is clear in all of the Circuits which have 
decided the question: desegregation plans must affect all 
grades absent compelling justification for specific exemp­
tion. E.g., Flax v. Potts, 464 F.2d 865 (5th Cir.), cert, 
denied, 41 U.S.L.W. 3274 (November 13, 1972); Thompson 
v. School Bd. of Newport News, 465 F.2d 83 (4th Cir. 
1972), cert, pending; Jackson v. Marvell School District 
No. 22, 425 F.2d 211 (8th Cir. 1970); Moore v. Tangipahoa 
Parish School Bd., 304 F. Supp. 244 (E.D. La.), aff’d 417 
F.2d 801 (5th Cir. 1969); Graves v. Walton County Bdl. of 
Educ., 403 F.2d 181 (5th Cir. 1969); cf. Moses v. Washing­
ton Parish School Bd., 456 F.2d 1285 (5th Cir.), cert, 
denied, 41 U.S.L.W. 3274 (1972).



6

There may be some differences of opinion among the 
Courts of Appeals in school desegregation cases, but not 
with respect to the issue in this case.* Contrary to Peti­
tioners’ claim, granting the Writ in this case would hardly 
assist the Court in reaching its decision in the Denver 
case, Keyes v. School Dist. No. 1, No. 71-507 (argued Oc­
tober 11, 1972), or any other school desegregation case 
which is presently pending before the Court. Denial of 
the Writ, on the other hand, will assure effectuation in 
Little Rock of the same constitutional standards which have 
been applied in Fort Worth, Charlotte, Augusta, Jackson, 
Pontiac, San Francisco** and countless other school 
districts.

* One of the decisions relied upon by Petitioners to indicate such 
differences, but which they failed to identify as the source of the 
quotation at the top of p. 13 of the Petition, is Mapp v. Board of 
Educ. of Chattanooga, No. 71-2006 (6th Cir., Oct. 11, 1972). On 
November 28, 1972, the Court of Appeals for the Sixth Circuit 
ordered that that matter be reheard en banc on December 14, 1972.

Flax v. Potts, supra; Swann v. Charlotte-Mecklenburg Bd. 
of Educ., supra; Acree v. County Bd. of Educ., 458 F.2d 486 (5th 
Cir.), cert, denied, 41 U.S.L.W. 3274 (November 13, 1972) ; Single- 
ton v. Jackson Municipal Separate School Dist., 432 F.2d 927 (5th 
Cir. 1970), cert, denied, 402 U.S. 944 (1971) ; Davis v. School Dist. 
of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970), aff’d 443 F.2d 573 
(6th Cir.), cert, denied, 404 U.S. 913 (1971) ; Johnson v. San Fran­
cisco Unified School Dist., 339 F. Supp. 1315 (N.D. Cal. 1971), 
appeal pending.



7

CONCLUSION

W herefore, for the foregoing- reasons, Respondents 
respectfully pray that the Writ be denied.

Respectfully submitted,

J ohn  W . W alker 
P h ilip  E. K aplan

Walker, Kaplan & Mays 
622 Pyramid Life Building 
Little Rock, Arkansas 72201

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J. Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



MEILEN PRESS iNC. —  N. Y. C. 219