Raney v. Board of Education of The Gould School District Petition for Writ of Certiorari

    I n  th e

x m x  QUrnxt n f !1jt U m ix b
October Term, 1967 

No.............

A r t h u r  L ee R a n e y , et al.,
Petitioners,

v .

T h e  B oard of E ducation  of th e  G ould  S chool D istrict , 
a Public Body Corporate, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

J a c k  G reenberg 
M ic h ael  M eltsner  
M ic h ael  J . H en ry

10 Columbus Circle 
New York, New York 10019

J o h n  W . W alk er  
N orman  C h a c h k in

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners



I N D E X

Citations to Opinions Below ................. ....................... -  1

Jurisdiction ............................................ -..........................  2

Questions Presented ... ........................................................ 2

Constitutional Provision Involved ..................................  2

Statement .......................................................................... - 2
New Construction to Perpetuate Segregation .......   4

Unequal Facilities and Programs ............................. 6

Teacher Segregation ................................................. 8

Intimidation ..............................................................  9
Denial of Relief by the Courts Below ..................  10

R easons for Gran tin g  t h e  W rit

Introduction ....................................... -.......................  11
The Court Below Erred in Dismissing the Com­
plaint Without Further Inquiry Into the Feasibil­
ity of Grade Consolidation or Other Relief Which 
Would Disestablish Segregation................................ 15
A. By Dismissing the Complaint, the Courts ,

Below Abdicated Their Responsibility Under 
Brown v. Board of Education to Supervise 
Disestablishment of the Segregated System .... 15

B. “Freedom of Choice” Is Incapable of Dises­
tablishing Segregation in the Gould School 
District .................................... -..................... -.....  21

PAGE



11

C. Use of One School for Elementary Grades and
the Other for Secondary Grades Is a Reason­
able Alternative to “Freedom of Choice” Which 
Will Disestablish the Dual System ..................  25

D. As Minimum Compliance With Brown v. Board 
of Education Petitioners Are Entitled to a 
Comprehensive Decree Governing the Deseg­

PAGE

regation Process .......................................    29

C on clusion  ........................................................................ 32

A ppendix

Opinion of United States District Court .................... -  la

Order of Dismissal............................................................  15a
Opinion of United States Court of Appeals for the 

Eighth Circuit ................................................................  16a

Judgment ...........................................................................  26a
Order Denying Petition for Rehearing ........................  27a

T able op C ases

Board of Public Instruction of Duval Co., Fla. v.
Braxton, 326 F.2d 616 (5th Cir., 1964) .......................  18

Bradley v. School Board of the City of Richmond, 382
U.S. 103 (1965) ....................................... ...............-.... 19,24

Brooks v. School Board of Arlington County, 324 F.2d
305 (4th Cir. 1963) ................................... .................16,17

Brown v. Board of Education, 347 U.S. 483; 349 U.S.
294 (1955) .............. .................... - ......... ..2,3,11,12,15,16,

17, 21, 23, 25, 30
Buckner v. Board of Education, 332 F.2d 452 (4th Cir. 

1964) 17



I l l

Calhoun v. Latimer, 377 U.S. 263 (1964) ...... ........16,18, 26
Carr v. Montgomery County Board of Education, 253

F. Supp. 306 (M.D. Ala. 1966) ............. -..................... - 17
Cypress v. Non-sectarian Hospital Association, 375 

F.2d 648 (4th Cir. 1967) ................... -.....................  20

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla., 1965), aff’d 375 F.2d 158 (10th Cir., 
1967) cert. den. 387 U.S. 931 (1967) .......................... 18

Charles C. Green v. County School Board of New Kent
County, Virginia, No. 695, October Term, 1967 .......11,14

Griffin v. School Board of Prince Edward County, Va.,
377 U.S. 218 (1964) .................................................... 17,19

Kelley v. Altheimer, 378 F.2d 483 (8th Cir. 1967) ....10,11,
23, 24, 29, 30

Kier v. County School Board of Augusta Co., Va., 249 
F. Supp. 239 (W.D. Va., 1966) ...................................  24

McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950) .............................-...................... -.......................  23

Missouri ex rel. Gaines v. Canada, 305 U.S 337 ..........  23
Brenda K. Monroe v. Board of Commissioners of the 

City of Jackson, Tennessee, No. 740 October Term,
1967) ............................................................................. 11,14

Moses v. Washington Parish School Board, — F. Supp.
—, No. 15973, E.D. La............................................ -.....  28

Schine Chain Theatres v. United States, 334 U.S. 110
(1948) ...............................    17

Smith v. Hampton Training School, 360 F.2d 577 (4th
Cir. 1966) ........................................................................ 16

Smith v. Morrilton, 365 F.2d 770 (8th Cir. 1966) ....... 16,18
Sweatt v. Painter, 339 U.S. 629 (1950) ......     23

PAGE



IV

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) aff’d with modifications 
on rehearing en banc, 380 F.2d 385 (1967) cert. den. 
sub nom. Caddo Parish School Board v. United 
States,------U .S ..................................... 12,13,16, 22, 29, 30

United States v. National Lead Co., 332 U.S. 319 
(1947) .............................................................................  17

United States v. Standard Oil Co., 221 U.S. 1 (1910) .... 17

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir., 1965) ......................................................  18

Yarbrough v. Hulbert-West Memphis, 380 F.2d 962 
(8th Cir. 1967) .....................    17

T able of S tatutes  and  R egulations

15 U.S.C. §4 .........................................................   17

28 U.S.C. §1254(1) ..........................................................  2

Elementary and Secondary Education Act of 1965, 20 
U.S. §241A....................................................................13,14

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964 (45 CFR Part 181.54) .....................................  21

O th er  A u thorities

Conant, The American High School Today (1959) ..... 28

Southern School Desegregation, 1966-67, a Report of 
the U.S. Commission on Civil Rights, July 1967 ....12,13,

14, 20

PAGE



I n  th e

g>upr£ttt£ (Em irt of %  States
October Term, 1967 

No.............

A r t h u r  L ee R a n e y , et al.,
Petitioners,

v.

T h e  B oard op E ducation  op th e  G ould S chool D istrict , 
a Public Body Corporate, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Eighth Circuit entered in the above-entitled case Au­
gust 9, 1967, rehearing of which was denied September 18, 
1967.

Citations to Opinions Below

The unreported opinion of the district court is reprinted 
in the appendix, infra, at pp. la-14a. The opinion of the 
court of appeals is reported at 381 F.2d 252 (8th Cir. 
1967) and is reprinted in the appendix, infra, at pp. 15a- 
25a.



2

Jurisdiction

The judgment of the Court of Appeals was entered 
August 9, 1967 and petition for rehearing was denied 
September 18, 1967, infra, pp. 26a-27a. The jurisdiction of 
this Court is invoked under 28 U.S.C. Section 1254(1).

Questions Presented

1. Whether—13 years after Brown v. Board of Educa­
tion,-—a “ freedom of choice” plan which maintains an all- 
Negro school is constitutional in a system with only two 
nearby school plants, one traditionally Negro and the other 
traditionally white, although assigning elementary grades 
to one school and secondary grades to the other would 
immediately desegregate the system.

2. Whether the court of appeals erred in denying all 
relief, dismissing the complaint, and declining to order the 
district court to supervise the desegregation process on 
the ground that the Department of Health, Education and 
Welfare had initially approved the Board’s plan as facially 
sufficient to comply with Title VI of the Civil Bights Act 
of 1964.

Constitutional Provision Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

Negro students filed a class action September 7, 1965, 
to enjoin the Gould School Board from (1) requiring them 
and all others similarly situated to attend the all-Negro 
Field School; (2) providing public school facilities for



3

Negro pupils inferior to those for whites; and (3) other­
wise operating a racially segregated system (E. 3-8). Plain­
tiffs first learned of a proposed school construction pro­
gram during a November, 1965 hearing in the district 
court, and amended to pray that future replacement high 
school facilities be located on the premises of the white 
Gould High School, rather than at the Negro Field School 
(R. 12, 19, 138).

Gould is a small district of about 3,000 population, and 
total school enrollment of 879 in the 1965-66 school year 
(R. 79-80). Until September, 1965, the district had not 
taken any steps to comply with Brown v. Board of Educa­
tion, and operated completely separate schools for Negro 
and for white pupils with racially separate faculties (R. 
31). Negro students were instructed in a complex of build­
ings known as the Field School, and white students were 
taught in a complex of buildings known as the Gould School 
(R. 31). The two complexes are within 8 to 10 blocks of 
each other; each contains an elementary school and a 
secondary school (R. 31, 73).

The school district did not consider undertaking any 
desegregation program until the United States Department 
of Health, Education, and Welfare issued Guidelines im­
plementing Title VI of the Civil Rights Act of 1964 (R. 
121-23). September, 1965, the district adopted a “free­
dom of choice” plan of desegregation for all 12 grades, 
but later obtained approval from H.E.W. to withdraw 
three grades from the plan’s operation for 1965-66 be­
cause of overcrowding in those grades caused by Negro 
requests to go to the white school. There were no white 
requests to go to the Negro school. As a result Negroes, 
in the 5th, 10th and 11th grades were turned away from 
the white school (R. 53-60, 62-63). During the 1965-66 
school year, the enrollment figures for the school district 
were as follows (R. 79-80):



4

Grades Negro White

Field Complex 1-12 509 0
Gould Complex 1-12 70 299

During the 1966-67 school year, the second year of “ free-
dom of choice” , the enrollment figures were as follows:1

Grades Negro White

Field Complex 1-12 477 0
Gould Complex 1-12 71 304

New Construction to Perpetuate Segregation

White Gould High School, constructed in 1964, is the 
most modern facility in the district (E. 89). Adjacent 
white Gould Elementary School was constructed originally 
as a high school and was subsequently converted to an 
elementary school (E. 81-82). The Negro Field Elemen­
tary School is also modern, constructed in 1954; gym­
nasium and auditorium were added in 1960 (E. 89-91). 
Until the 1967-68 school year Negro high school class­
rooms were in a building constructed in 1924 concededly 
obsolete and inferior to the white high school (E. 10, 16, 
130).

Promises by the Board to improve the Negro high school 
date back to 1954, a decade before any consideration was 
given to desegregation, and apparently resulted from a 
suit to require equal facilities for Negroes (131-132, 129). 1

1 The record in this case, like the records in all school desegregation 
cases, is necessarily incomplete by the time it reaches this Court. In this 
case the 1965-66 school year was the last year for which the record sup­
plies desegregation statistics. Information regarding student and faculty 
desegregation during the 1966-67 school year was obtained from official 
documents, available for public inspection, maintained by the United States 
Department of Health, Education and Welfare. Certified copies thereof 
and an accompanying affidavit have been deposited with this Court and 
served upon opposing counsel.



5

Actual construction of a new high, school building on the 
site of the Field school, however, did not begin until Janu­
ary, 1967. The new building was scheduled to open in Fall, 
1967 (R. 65, 66).

The superintendent admitted that the old Field High 
School was clearly a “Negro” school, and probably would 
continue to be an all-Negro school if replaced with a new 
facility at the Field site (R. 67). He also conceded that 
it was inefficient for a small school district to construct 
a new secondary school when it already had one. There 
would be duplication of libraries, auditoriums, agriculture 
buildings, science laboratories, cafeterias, and other facil­
ities (R. 74-76). He was asked (R. 76):

Q. “This means that you have to spend a lot more 
money for equipment and for materials for the Negro 
school in order to just have an equal department with 
the white school!”

He answered: “I suppose so. It would take more 
money to build a new building and equip it.”

Plaintiffs sought to shift the construction site of the 
new high school to the site of the white school by a timely 
amendment during the hearing in November, 1965 more 
than a year before construction wras scheduled to begin 
(R. 137-138). The district court refused to grant relief 
in an opinion in April, 1966. Because of illness the court 
reporter did not complete the transcript until one year 
later—April 1, 1967—thereby delaying determination of 
the appeal (R. 140). At the time the case was submitted 
to the court of appeals the outer shell of the new building 
at the Negro school site was completed.2 Because the con­

2 Petitioners filed in the court of appeals an affidavit of their attorney 
stating that the outer shell was completed but that a number o f walls, 
plumbing facilities and fixtures and interior walls, the roof and flooring 
had not been completed, see infra, p. 18a.



6

struction of the replacement facility at the Negro school 
had progressed by the time briefs were filed in the court 
of appeals, petitioners asked that court to require a utiliza­
tion of the Gould School site as the single secondary school, 
and the Field School site the single elementary school for 
the district. It was urged that such a utilization was prac­
tical, economical, educationally superior and would dis­
establish segregation.

Unequal Facilities and Programs

The record shows that for many years prior to con­
structing the new Negro high school the Board tolerated 
substantial inequalities between the segregated schools. 
The old all-Negro high school, a wooden frame structure, 
was admitted by the president of the Board to have been 
“grossly inferior” to the white high school (R. 10, 16, 130). 
He said that the reason no money was spent on the build­
ing was that every dollar available had been exhausted on 
other uses (R. 130). Nevertheless, a new all-white high 
school was constructed at the Gould site (rather than at 
the Negro Field site) in 1964 following a fire which de­
stroyed the old high school building there (R. 83).

The Negro Field High School is completely unaccredited; 
the Arkansas State Department of Education rates the 
Field Elementary School class “ C” (R. 31) and the white 
Gould Schools “A ” (R. 10). The Negro school bathrooms 
were in a building separated by a walk exposed to weather 
(R. 51-52); the white schools had rest rooms in each build­
ing (R. 50, 52).

There is an agriculture building at the predominantly 
white high school, and a hot lunch program for elementary



7

and secondary students but none at the Negro site (R. 
40-41). The library at the white high school contains ap­
proximately 1,000 books, and a librarian (R. 42-43). The 
Negro school has only three sets of encyclopedias, one pur­
chased a month before the hearing in this case (R. 113- 
114). These books were kept in the principal’s office, rather 
than in a separate library, and the principal, in effect, 
functions as librarian, to the extent that such function is 
required (R. 114). The superintendent had a complete 
lack of knowledge of the extent of library facilities at the 
Negro school (R. 42).

The science facilities at the Negro high school were 
inferior to those of the predominantly white high school, 
even though the former is larger (R. 43-44). Pupils who 
attend Gould generally have an individual desk and chair; 
the standard pattern at the old Negro school was a folding 
table with folding chairs and three students on each side, 
sitting at the table (R. 47-48).

The “ per pupil” expenditure is less at Field School than 
for the formerly all-white, now predominantly white, Gould 
School (R. 44). The system has charged “ enrollment fees” 
to pupils at Field, but not at Gould (R. 44-45). It was 
also the practice to require Negro students to pick cotton 
in the fields during class time to earn money for school 
fund raising projects, and to pay “enrollment fees” (R. 
44-46).

Unequal per pupil expenditures are also reflected in 
higher student-teacher ratio at the Negro school i.e., the 
average class size is larger (R. 59-62). There are 14 teach­
ers at Gould, but only 16 teachers at Field although it has 
about 130 more students (R. 60-61). The range of Negro 
teacher salaries is from $3,870 to $4,500; for white teachers, 
the range is from $4,050 to $5,580 (R. 33-39).



8

There are also disparities in course offerings. Neither 
vocational agriculture nor journalism, offered at Gould, are 
offered at Field (R. 52-53). There is a similar disparity 
in extracurricular activities. The larger Negro school has 
no football, basketball, or track programs, whereas there 
are football, basketball, and track teams at the white school 
(R. 106-107). There is a Future Farmers of America voca­
tional club at the white school, but none at the Negro school 
“because they do not have an agricultural department” 
(E. 106).

Teacher Segregation

The school system has no plans for substantial faculty 
desegregation. In 1965, the Board planned to assign two 
white teachers to the Negro school but no Negro teachers 
to full teaching duties at the white school (E. 67-70). How­
ever, by the 1966-67 school year the only faculty desegre­
gation which had taken place was assignment of one part 
time white teacher to the Negro school.3 Faculty meetings 
had not been integrated (E. 68). At trial, the superin­
tendent stated that “we have kept that in the background, 
we want to get the pupil integration question settled and 
running as smoothly as possible before we go into some­
thing else” (E. 68).

When asked whether re-assignments of faculty members 
were eventually contemplated, the superintendent stated 
that “we do not have any plans to re-assign anybody” 
(E. 69). He stated that, in compliance with H.E.W. re­
quirements, the school system “will attempt to employ 
Negro teachers in a predominantly white school on a limited 
basis, and particularly in positions that do not involve di­
rect instructions to pupils” (R. 69). The superintendent

3 See Note 1, supra.



9

described the Negro teachers’ academic qualifications as 
superior to the white teachers. Every Negro teacher had a 
bachelor’s degree and two had master’s degrees. Only one 
white teacher had a master’s degree; two have no degree 
(E. 33, 94-95).

Intimidation

When the PTA at the Negro school began to protest to 
the superintendent and the Board the deplorable condi­
tions at the old Negro high school the superintendent re­
sponded by issuing an order which forbade the Negro PTA 
from meeting in the Negro high school (E. 63-64). He 
stated: “The reason for that is, as I understand, the PTA 
had evolved into largely a protest group against the school 
board and the policies of the board. The members of that 
organization were the same who planned to demonstrate 
against the Gould High School and had sent chartered bus 
loads of people to Little Eock to demonstrate around the 
Federal Building, who were getting a chartered bus of 
sympathizers to come to this hearing today and it does 
not seem right to us to furnish a meeting place for a group 
of people that is fighting everything we are trying to do 
for them” (E. 64).

When questioned whether this meant the Negro high 
school parents could not have a PTA, the superintendent 
responded: “ They can have a PTA but they can meet 
somewhere else” (E. 64). He later admitted that he had no 
knowledge that any plans for marches or demonstrations 
had been made at a PTA meeting, and that all that he 
heard to this effect was hearsay (E. 108-109). The super­
intendent and some members of the Board obtained an in­
junction against several civil rights groups, enjoining them 
from protesting conditions in the system (E. 63).



10

Denial of Relief by the Courts Below

The district court denied all relief and dismissed the 
case in an opinion April 26, 1966 (R. 12-25). The court 
relied on the fact that the school district adopted a plan 
without court order, that the plan was approved by the 
Department of Health, Education, and Welfare, and that 
some Negro students were in fact attending the “white” 
school. With respect to constructing new secondary school 
replacement facilities on the site of the present Negro 
school, rather than enlarging the previously all-white school, 
the court decided that the replacement plan was not “ solely 
motivated by a desire to perpetuate or maintain or support 
segregation in the school system” (R. 24-25).

The court of appeals found that the Board was operating 
under a freedom of choice plan which on its face met stan­
dards approved by the circuit and the Department of 
Health, Education, and Welfare; that there was “no sub­
stantial evidence to support a finding that the Board was 
not proceeding to carry out the plan in good faith” ; that 
progress was being made in equalizing teachers’ salaries; 
and that relief requiring that the replacement construction 
be undertaken at the Gould site could not be effective be­
cause considerable progress has been made in constructing 
the building on the Field site.4

Although the court found that “There is no showing that 
the new construction added could not be converted at a 
reasonable cost into a completely integrated grade school 
or into a completely integrated high school when the appro­

4 Plaintiffs filed notice of appeal and oral argument was originally 
scheduled at the same time as a case involving similar issues, Kelley V. 
Altheimer, 378 F.2d 483 (8th Cir. 1967). However, the court reporter 
was sick for an extended period of time, and was unable to complete the 
transcript until April 1st, 1967 (E. 140).



11

priate time for such course arrives” (emphasis supplied), 
it declined to order conversion of one school plant to use 
as an elementary school and the other as a secondary school 
as such relief had not been considered by the trial court. 
In addition, the court held that petitioners were not en­
titled to a comprehensive judicial decree governing the 
operation of the “choice” plan as ordered by a different 
panel of the court in Kelley v. Altheimer, 378 F.2d 483 (8th 
Cir. 1967), and affirmed dismissal of the complaint.

A petition for rehearing en banc or by the panel, ad­
verting to a conflict between panels of the court with re­
spect to standards for approval of desegregation plans, 
was denied September 18, 1967.

REASONS FOR GRANTING THE WRIT 

Introduction

The question here is whether in the mid-sixties, a full 
school generation after Brown v. Board of Education, a 
board which stubbornly refused to comply until threatened 
with loss of federal funds, may, with judicial approval, 
adopt a desegregation plan which perpetuates racially 
identifiable schools, although a practical, economical, and 
educationally superior alternative would disestablish the 
dual system. Similar issues are pending here in Charles 
C. Green v. County School Board of New Kent County, 
Virginia, No. 695, October Term, 1967, and Brenda K. 
Monroe v. Board of Commissioners of the City of Jackson, 
Tennessee, No. 740, October Term, 1967. A second ques­
tion, no less significant, is whether a district court and 
court of appeals may dismiss a complaint broadly chal­
lenging the constitutionality of desegregation policies and 
refuse to supervise the desegregation process because the



12

Board has adopted a plan facially approved by the United 
States Department of Health, Education, and Welfare.

In the Gould School District, as elsewhere, “ free choice” 
has not achieved meaningful desegregation. Although the 
proportion of Negroes in all-Negro schools has declined 
since 1954, more Negro children are now attending such 
schools than in 1954.6 Indeed, during the 1966-67 school 
year, 12 years after Brown, more than 90% of the almost 
3 million Negro pupils in the 11 Southern states still at­
tended schools over 95% Negro; 83.1% were in 100% Ne­
gro schools.6 In this case approximately 85% of the Negro 
pupils in the system still attend schools with only Negroes. 
Desegregation has been a one-way street—a few Negroes 
moving into white schools, no whites attending Negro 
schools. “This June, the vast majority of Negro children 
in the south who entered the first grade in 1955, the year 
after the Brown decision, were graduated from high school 
without ever attending a single class with a single white 
student,” 7 a result plainly attributable to the prevalence 
of “choice” plans. The United States Civil Rights Com­
mission in its most recent report stated:

The review of desegregation under freedom of choice 
plans contained in this report, and that presented in 
last year’s commission’s survey of southern school

6 Southern School Desegregation, 1966-67, a Report o f the U.S. Com­
mission on Civil Rights, July 1967, p. 11.

6 Id. at 165.
7 Id. at 147. As the Fifth Circuit has had occasion to say “ [f]o r  all 

but a handful of Negro members of the High School Class of 1966, this 
right [to a racially nondiscriminatory public school system] has been of 
such stuff as dreams are made on.” United States v. Jefferson County 
Board of Education, 372 F.2d 836, 845 (5th Cir., 1966) aff’d with modifi­
cations on rehearing en banc, 380 F.2d 385 (1967) cert. den. sub nom.,
Caddo Parish School Board V. United States, ------  U.S. ——  (October 9,
1967).



13

desegregation, show that the freedom of choice plan 
is inadequate in the great majority of cases as an 
instrument of disestablishing a dual school system. 
Such plans have not resulted in desegregation of Ne­
gro schools and therefore perpetuate one-half of the 
dual school system virtually intact. (Emphasis added.)8

By dismissing the complaint, the courts below totally 
refused to supervise the desegregation process, remitting 
Negro school children to a supposed remedy under Title VI 
of the Civil Bights Act of 1964. Such a disposition is un­
precedented. It is particularly difficult to comprehend here 
because the H.E.TV Guidelines do not regulate the impact 
of construction policy or include specific standards to 
measure the effect of construction on “ freedom” in a “ free­
dom of choice” plan. The irony of the court of appeals 
deferral to H.E.W. is that in formulating desegregation 
standards the Department is guided by legal principles 
emanating from the courts.9 For the Guidelines to develop 
in accordance with constitutional desegregation standards, 
the courts must continue to develop those standards with 
respect to central, but not heretofore considered, issues 
such as the impact of school construction policies on a 
desegregation plan and remedies appropriate to overcome 
institutionalization of segregation.

This petition is filed at a critical time in American edu­
cation. Under the newly enacted Elementary and Secondary 
Education Act of 1965, 20 U.S. §241A, federal aid to the 
states for education is constituting an increasingly sig­
nificant portion of the school budget. “ In many cases

8 Southern School Desegregation, 1966-67, a Report of the U.S. Com­
mission on Civil Rights, July, 1967, pp. 152-153.

9 The Fifth Circuit recognized this in United States v. Jefferson County 
Board of Education, supra, at 372 F.2d 847, 851.



14

higher than 20% and in some cases higher than 30%.” 10 11 
These vast funds can either institutionalize segregation or 
operate as a force to eliminate it. Too often they have been 
a force for segregation. As the U.S. Commission on Civil 
Eights has reported:

That Title I funds have been employed in such a 
manner as to institutionalize and strengthen the dual 
school structure is apparent when the use of such 
funds in the construction of new school facilities is 
examined. In at least one district, for example, school 
authorities used Title I funds to purchase portable 
classrooms for overcrowded Negro schools. In another 
district, Title I funds were used to build a vocational 
training shop midway between a white and a Negro 
school to be used separately by the children at each 
school. In still another district, Title I funds supplied 
one-third of the money to add separate gymnasiums 
to white and Negro schools which were 1,000 yards 
apart.11

This particular case, Green v. County School Board of New 
Kent County, Virginia, No. 695, October Term, 1967 and 
Monroe v. Board of Commissioners of the City of Jackson, 
Tennessee, No. 740, October Term, 1967, now pending be­
fore the court, do not involve the expenditure of ESEA 
funds, although in the instant suit the school board has 
been spending other federal grants. The causes arose 
before ESEA funds might have become an issue. But over 
years to come thousands of districts, probably including 
those mentioned above, will be receiving such monies with 
consequences that will tend to establish or disestablish

10 Southern School Desegregation, 1966-67, a Report of the U.S. Com­
mission on Civil Rights, July, 1967, at p. 130.

11 Id. at p. 136.



15

segregation as well as affect other aspects of the education 
process. The disposition of this case will be exceedingly 
important in such a development because this ease involves 
standards which H.E.W. may impose on a district or from 
which it may relieve a district in the course of admin­
istering federal monies. This case, therefore, involves the 
relationship between this Court’s interpretation of the 
Constitution and the administration of federal statutes im­
plementing that interpretation, a matter of paramount 
importance.

The Court Below Erred in Dismissing the Complaint 
Without Further Inquiry Into the Feasibility of Grade 
Consolidation or Other Relief Which Would Disestab­
lish Segregation.

A. By Dismissing the Complaint, the Courts Below Abdicated 
Their Responsibility Under Brown v. Board of Education 
to Supervise Disestablishment of the Segregated System.

Petitioners made a timely challenge to racially planned 
construction of new secondary school classrooms on the 
Negro school site. They did not challenge the replacement 
of a dilapidated Negro school generally but asked only 
that the construction, not scheduled to begin for over a 
year, take place on the white school site. Under a choice 
plan, to do otherwise would result in perpetuating an 
unmistakably identifiable Negro school. After the district 
court failed to enjoin the construction and a court re­
porter’s illness delayed the appeal, the new building’s 
outer shell was completed. In the court of appeals peti­
tioners sought utilization of the dual plants as constructed 
in a maner which would disestablish the segregated sy­
stem. The court ruled that it would not consider utiliza­
tion of one plant for elementary students and the other



16

for secondary students because this relief was not sought 
in the trial court. It affirmed dismissal of the complaint.

We submit this is an ironic and unnecessary result which 
demonstrated a misconception by the court of its equitable 
powers and responsibility in a school desegregation case. 
Desegregation is by its nature a continuous process which 
requires continuing supervision by the lower courts. Rec­
ords are always somewhat out of date and relief to be 
effective must be fashioned with flexibility. In the circum­
stances of this case, where completion of the construction 
merely altered the appropriate form of relief, dismissal 
of the complaint was abdication of jurisdiction over the 
desegregation process. See Brown v. Board of Education, 
349 U.S. 294, 301 (1955); Calhoun v. Latimer, 377 U.S. 263 
(1964); Brooks v. School Board of Arlington County, 324 
F.2d 305 (4th Cir. 1963); Smith v. Morrilton, 365 F.2d 
770, 783 (8th Cir. 1966); Cf. Smith v. Hampton Training 
School, 360 F.2d 577, 581 (4th Cir. 1966). As the court of 
appeals said in United States v. Jefferson County Board 
of Education, supra (380 F.2d at p. 389) : “ School deseg­
regation cases involve more that a dispute between certain 
Negro children and certain schools. If Negroes are ever 
to enter the mainstream of American life as school chil­
dren they must have equal educational opportunities with 
white children.” The fact that petitioners’ request for 
consideration of a grade consolidation plan had not been 
sought in the trial court does not justify dismissal of 
this case. The construction itself, and the failure of the 
Board to disestablish segregation, were the subject of 
timely attack in the district court. It was not feasible to 
raise the issue of consolidation because at the time the 
trial was held the new construction was not scheduled to 
begin for over a year. At the very least, the court of 
appeals was obligated to remand to the district court for a



17

hearing with instructions to order grade consolidation if 
not educationally impractical.

It is submitted that by dismissal of the complaint, at a 
time when segregation is entrenched, the panel failed to 
adhere to the rule of Brown v. Board of Education, 349 
U.S. 294, 301. (1955) and numerous decisions of lower 
courts which hold that district courts must retain juris­
diction until a racially nondiscriminatory school system is 
a reality.12 In Brown, federal courts were expressly di­
rected to retain jurisdiction in order to supervise the 
enforcement of desegregation. Here, the court simply re­
fused to be influenced by developments subsequent to trial 
even though their genesis, the construction program, was 
subject to timely attack.13 The failure of the court of

12 See e.g. Brooks v. School Board of Arlington County, 324 F.2d 305 
(4th Cir. 1963); Buckner v. Board of Education, 332 F.2d 452 (4th Cir. 
1964); Yarbrough v. Hulbert-West Memphis, 380 F.2d 962 (8th Cir. 1967).

13 In the second Brown decision this Court directed that “ in fashioning 
and effectuating the decrees, the courts will be guided by equitable prin­
ciples.”  (349 U.S. at 300). Equity courts have broad power to mold their 
remedies and adapt relief to the circumstances and needs of particular 
eases as graphically demonstrated by the construction given to 15 U.S.C. 
§4 in restraining violations of the Sherman Antitrust Act. The test o f the 
propriety of such measures is whether remedial action reasonably tends to 
dissipate the effeets of the condemned actions and to prevent their con­
tinuance, United States v. National Lead Co., 332 U.S. 319 (1947). Where 
a corporation has acquired unlawful monopoly power which would con­
tinue to operate as long as the corporation retained its present form, 
effectuation o f the Act has been held even to require the complete dis­
solution of the corporation. United States v. Standard Oil Co., 221 U.S. 
1 (1910); Schine Chain Theatres v. United States, 334 U.S. 110 (1948). 
Numerous decisions establish that the federal courts construe their power 
and duties in the supervision of the disestablishment of state imposed 
segregation to require as effective relief as in the antitrust area. So in 
Griffin v. School Board of Prince Edward, County, Va., 377 U.S. 218 
(1964) this Court ordered a public school system which had been closed 
to avoid desegregation to be reopened. Carr v. Montgomery County (Ala.) 
Board of Education, 253 F. Supp. 306 (M.D. Ala. 1966), ordered twenty- 
one (21) small inadequate segregated schools to be closed over a two



18

appeals to remand to the district court with instructions 
to order consolidation, if feasible, demonstrates a too nar­
row view of the power and duties of a federal court of 
equity in supervising desegregation and granting relief 
required by the Constitution.14 At one point in its opinion 
the court of appeals states that the parties had no oppor­
tunity to offer evidence on the feasibility of consolidation 
and the trial court had no opportunity to pass on the issue. 
I f the defect was solely one of evidence, however, the proper 
remedy was remand to the district court for further pro­
ceedings, not dismissal.

Other portions of the panel’s opinion suggest, however, 
that it affirmed dismissal of the complaint for quite dif­
ferent, although also erroneous, reasons:

Moreover, there is no showing that the Field facilities 
with the new construction added could not be con­

year period and the students reassigned to larger integrated schools. 
Dowell v. School Board of Oklahoma City, 244 F. Supp. 971 (W.D. Okla., 
1965), aff’d 375 F.2d 158 (10th Cir., 1967), cert. den. 387 U.S. 931 (1967), 
ordered the attendance areas o f pairs of six-year junior-senior high 
schools in adjacent neighborhoods consolidated, with one school in each 
pair to become the junior high school and the other to become the senior 
high school for the whole consolidated area. The Fifth Circuit has held 
that a district court has power to enjoin “ approving budgets, making 
funds available, approving employment contracts and construction pro­
grams . . . designed to perpetuate, maintain or support a school system 
operated on a racially segregated basis.”  Board of Public Instruction of 
Duval Co., Fla. v. Braxton, 326 F.2d 616, 620 (5th Cir., 1964). The 
Fourth Circuit has held that a school construction program an appro­
priate matter for court consideration in spite of the possible complexities 
involved. Wheeler v. Durham City Board of Education, 346 F.2d 768 
(4th Cir., 1965).

14 The continuous nature of the desegregation process has consistently 
obligated appellate courts to fashion relief despite the occurrence of 
events subsequent to judgment in the district court. Such has been the 
common practice of the courts applying Brown and indeed it had been 
the practice o f the Eighth Circuit until this ease. Calhoun v. Latimer, 
377 U.S. 263 (1964); Smith v. Morrilton, 365 F.2d 770 (8th Cir. 1966).



19

verted at a reasonable cost into a completely inte­
grated grade school or into a completely integrated 
high school when the appropriate time for such course 
arrives. (Emphasis supplied.) Appendix, infra, p. 20a.

Utilization of one school as elementary and one as second­
ary school is thus acceptable to the court of appeals but 
only “when the appropriate time for such course arrives.” 
Such language strongly implies that it is a notion of 
deliberate speed which led the court to reject grade con­
solidation and approve a choice plan and not solely that 
petitioners did not seek in the trial court altered utilization 
of classrooms wThich were not even constructed at the time 
of trial. But the time for deliberate speed is over. Over 
two years ago this Court stated, “more than a decade has 
passed since we directed desegregation of public school 
facilities with all deliberate speed. . . . Delays in deseg­
regating school systems are no longer tolerable.” Bradley 
v. School Board of the City of Richmond, 382 U.S. 103, 105 
(1965). In 1964, the Court said: “There has been entirely, 
too much deliberation and not enough speed. . . .” Griffin 
v. County School Board of Prince Edward County, 377 
U.S. 218, 229. The Court should grant certiorari in this 
case to make it clear that “ the appropriate time” is now.

By their opinions and dispositions the courts below indi­
cated that they regard the United States Department of 
Health, Education, and Welfare as having controlling re­
sponsibility for supervising school desegregation in Gould 
despite the fact that H.E.W. Guidelines do not deal with 
the impact of construction policy on a “ freedom of choice” 
plan, that H.E.W. had not required modification of the 
construction plan or in any way sought to ameliorate its 
impact. To be sure H.E.W. Guidelines are entitled to 
substantial weight as general propositions of school deseg­
regation law, and as minimum standards for court-ordered



20

desegregation plans. The same cannot be said for H.E.W. 
administrative approval of a particular school district’s 
actual compliance with constitutional standards. With its 
limited personnel and funds, the Department is simply un­
able to ascertain all of the relevant facts about the per­
formance of an individual school district in the way that a 
court hearing can, especially where, as here, H.E.W. Guide­
lines do not even purport to regulate the effect of con­
struction policy. H.E.W.’s “compliance reviews and en­
forcement proceedings” are “not planned in a rational and 
consistent manner” ; the Department’s appraisal of deseg­
regation sometimes cannot be but “faulty and inefficient.” 
“ Manpower limitations” force the Department to fail to 
proceed against many districts which are not in compliance. 
See Southern School Desegregation, 1966-67, A Report of 
the U. S. Civil Rights Commission, July, 1967, pp. 58, 59. 
Compare Cypress v. Non-sectarian Hospital Association, 
375 F.2d 648, 658, 659 (4th Cir. 1967) where a hospital 
defended a desegregation suit on grounds of H.E.W. ap­
proval, but the court ruled that H.E.W.’s compliance 
mechanism was so inefficient that it was not an equitable 
defense to a suit based on deprivation of constitutional 
rights. Unfortunately, the sorry statistics of southern 
school desegregation, see supra p. 12, reflect the inability 
of the Department to police, effectively, compliance with 
the Guidelines.

Petitioners complained, moreover, of a violation of their 
constitutional rights; not statutory rights such as they 
may have under Title VI of the Civil Rights Act which 
regulates the relationship between the federal government 
and its grantees. The courts may not abdicate their re­
sponsibility to construe the performance of school boards 
in terms of the constitutional standards of the Fourteenth 
Amendment. Petitioners have been unable to locate any



21

decision which holds to the contrary. In this regard, the 
court below fundamentally misconstrued the role of burden 
of proof in school desegregation cases. The burden of 
proof is not on plaintiffs to demonstrate that a school sys­
tem which undisputedly has been segregated for genera­
tions is still segregated, but on the school board to demon­
strate that its desegregation plan desegregates the system. 
Brown v. Board of Education, supra. That burden is not 
carried by adoption of a “ freedom of choice” plan when 
another plan which apparently is reasonable and possible 
will immediately desegregate the system.

B. “ Freedom of Choice”  Is Incapable of Disestablishing Segre­
gation in the Gould School District.

The fundamental premise of Brown v. Board of Educa­
tion was that segregation in public education had very 
deep and long term effects upon Negroes who were segre­
gated. It is not surprising that individuals, reared in that 
system and schooled in the ways of subservience (by segre­
gation in schools and every other conceivable aspect of 
existence) who are given the opportunity to “make a 
choice,” chose, by inaction, that their children remain in 
Negro schools.15 16 By making the Negro’s exercise of choice 
the critical factor, school authorities virtually insure de­
segregation’s failure. Moreover, intimidation, a weapon

15 In its Revised Statement of Policies for School Desegregation Plans 
Under Title VI of the Civil Rights Act of 1964 (referred to as the Guide­
lines), the Department of Health, Education, and Welfare states (45 
CFR Part 181.54) :

A  free choice plan tends to place the burden of desegregation on 
Negro or other minority group students and their parents. Even 
when school authorities undertake good faith efforts to assure its fair 
operation, the very nature of a free choice plan and the effect o f long­
standing community attitudes often tend to preclude or inhibit the 
exercise of a truly free choice by or for minority group students. 
(Emphasis added.)



22

well-known throughout the south, has been employed to 
deter transfers. Every community pressure militates 
against the affirmative choice of white schools by Negro 
parents. Here the heavy hand of segregation did its work 
in overt fashion.

First. “ The only school desegregation plan that meets 
constitutional standards is one that works”  (United States 
v. Jefferson County Board of Education, supra, 372 F.2d 
at p. 847 (emphasis in original)) and the Gould plan has 
not worked. In both first and second year of its operation 
only about 70 Negro pupils attended the white school and 
no whites “chose” to attend the Negro school. In the first 
year of the plan several Negroes “chose” the white school 
but were refused admission due to overcrowding, an over­
crowding caused in part by the fact that no whites “chose” 
to attend the Negro school. Only one teacher has been 
assigned to a desegregated faculty, and that teacher on a 
part time basis. In June, 1967, the superintendent in­
formed the Department of Health, Education and Welfare 
that he anticipated an increase of only 14 Negro students 
in the white school for the 1967-68 school year, the third 
year of desegregation and that again no whites would 
attend the Negro school. No Negro teacher would be as­
signed to teach at the white school; one white teacher and 
one white supervisor would have part time duties at the 
Negro school, see note 1, supra. In short, in over two 
years of operation “ freedom of choice” has not and does 
not appear capable of disestablishing segregation.

Second, the record shows active intimidation of the Ne­
gro community. The PTA of the Negro school was pro­
hibited by the superintendent from meeting at the school 
once it began to protest conditions there, and an injunction 
was obtained by the board of education against public 
protests concerning school conditions (R. 63-64).



23

Third, the degree of inequality between the Negro and 
white high schools which has been maintained for so long 
inevitably communicates to the Negro community that the 
Board could not be trusted to administer a “ freedom of 
choice” plan fairly, see supra pp. 6-8. Until 1965, the 
Negro high school had such a poor physical plant and 
program that it was completely unaccredited by the State 
of Arkansas, while the white high school had an “A” 
rating (R. 10, 16, 31, 83, 130). Long promised reconstruc­
tion took place only after adoption of a “ freedom of 
choice” desegregation plan when a new school would have 
the possible effect of limiting the number of Negro trans­
ferees under the choice plan. Not only has the practice 
of segregation followed by this district been unconstitu­
tional since 1954, Brown v. Board of Education, 347 U.S. 
483, but the “gross inferiority” of the separate public 
school facilities provided for Negro students has been 
unconstitutional at least since 1938, Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337; Sweatt v. Painter, 339 U.S. 629 
(1950); McLaurin v. Oklahoma State Regents, 339 U.S. 
637 (1950). The court of appeals erred fundamentally, in 
ignoring the relevance of these historic inequalities to the 
validity of the choice plan.

Fourth, the character of the new replacement construc­
tion on the traditional segregated site (and that no ra­
tional educational purpose is apparent behind such dual 
construction) is not susceptible to any other interpretation 
by the community, Negro and white, than that the Board 
wishes to maintain a segregated system, with one school 
intended for whites and the other intended for Negroes, 
see Kelley v. Altheimer, 378 F.2d 483, 490, 496 (8th Cir. 
1967). This was just as unambiguous an act as re-writing 
the word “white” over the door of the Gould School and 
the word “Negro” over the door of the Field School—and



24

is just as coercive to the Negroes who have traditionally, 
been informed by the segregated system that they were 
not wanted in “white” institutions, and to whites who have 
been informed that it was not proper for them to be in 
“Negro” institutions. The replacement construction here 
has precisely the same effect on the “ freedom” in a “ free­
dom of choice” plan as does the maintenance of all-white 
and all-Negro faculties at various schools in a system. 
Cf. Bradley v. School Board of the City of Richmond, 382 
U.S. 103 (1965); Kier v. County School Board of Augusta 
Co., Va., 249 F. Supp. 239, 246 (W.D. Va., 1966).

Fifth. The integration of faculty is a factor absolutely 
fundamental to the success of a desegregation plan, for a 
school with a Negro or white faculty will always be a 
Negro or white school. Nevertheless, the Board has as­
signed no Negro teachers to regular teaching at the tra­
ditionally white school, and only two whites to limited, 
non-teaching, duties at the traditionally and still all-Negro 
school (R. 67-70; see note 1, supra). There are no plans 
for substantial desegregation in the future (R. 68-69).16 
Compare Kelley v. Altheimer, 378 F.2d 483, 491 (1967).

The duty of the School Board was to convert the dual) 
school system it had created into a “unitary non-racial 
system.” Although it had an alternative which would have 
disestablished the dual system more speedily and with less 
educational inefficiency, the Board chose a method whose 
success depended on the ability of Negroes to unshackle 
themselves from the psychological effects of the dual sys­
tem of the past, and to withstand the fear and intimidation

16 The failure o f the Board to take meaningful steps to integrate its 
faculty is consistent with what the record shows: that the Board, by 
adopting freedom of choice, could not in good faith have believed or in­
tended that the dual system would thereby be converted into the nonracial 
system required by the Constitution.



25

of the present and future. Only a “ freedom of choice” 
plan subjects Negroes to the possibility of intimidation 
or gives undue weight to the very psychological effects of 
the dual system that this Court found unconstitutional in 
Brown v. Board of Education. Nor did the Board intro­
duce evidence to justify adoption of a method, which if it 
could disestablish the dual system at all, would require 
a much longer period of time in the method petitioners 
urge. The failure of the Board to show, by clear and con­
vincing evidence, the existence of such administrative rea­
sons as this Court contemplated in Brown II  might justify 
delay, made it error for the courts below to abdicate totally 
to an administratively supervised “freedom of choice” plan 
and refuse to place the Board under the restraint of a 
court order.

C. Use of One School for Elementary Grades and the Other 
for Secondary Grades Is a Reasonable Alternative to “ Free­
dom of Choice”  Which Will Disestablish the Dual System.

Because of the very simple configuration of this small 
district, there is a clear-cut choice between a system com­
posed of one reasonably-sized integrated elementary school 
and one reasonably-sized integrated secondary school, or 
a system composed of two inefficiently-small, combination 
elementary and secondary schools. The superintendent’s 
concession that the replaced Negro school would continue 
to be all-Negro (R. 67) as well as the obvious educational 
inefficiency and undesirability of the dual schools provides 
a reasonable basis for providing that one site shall be used 
for an elementary school and the other site for a secondary 
school. The system’s school buildings as constructed are 
adaptable to changed usages and whatever additional cost 
might be involved in alteration, as the court of appeals 
recognized, appendix, infra, p. 20a, can be more than bal­



26

anced against the continued extra operating cost of the 
inefficient dual system.

The court of appeals failed to order grade consolidation 
because of the time when such relief was sought, a ruling 
which is discussed fully, supra pp. 15-19. For this reason, 
however, we believe that the proper course for this Court 
to follow is to remand to the district court for a deter­
mination of the feasibility of consolidation with instrue- 
tons to order such relief if not impractical. We, therefore, 
restrict ourselves in this section of the petition to a brief 
showing that such utilization is shown by this record to be 
a sufficiently workable and attractive method of admin­
istering the system for the lower courts to be required to 
consider it on the merits. See e.g. Calhoun v. Latimer, 377 
U.S. 263 (1964).

The school facilities of the district ideally lend them­
selves to a plan of consolidation. The traditionally white 
Gould High School is the most modern facility in the dis­
trict, having been completed in 1964 (R. 89). The imme­
diately adjacent Gould Elementary School was originally 
constructed for use as a high school, and was subsequently 
converted to an elementary school (R. 81-82). If the Gould 
Elementary School were converted back to use as a second­
ary school, the Gould site would be clearly suitable for all 
the secondary students in the district. The 1966-67 second­
ary enrollment of the district was 360 for grades 8-12, 
while the total enrollment at the Gould School was 375 
(grades 1-12).17

The all-Negro Field Elementary School is also a modern 
facility, constructed in 1954 with subsequent additions (R. 
89-91). The gymnasium is adequate for both the present

17 See footnote 1, supra.



27

number of Negro elementary and Negro high school stu­
dents, so that it would also be suitable for use by all of 
the elementary students in the system. The new building 
constructed by the system for use as the Negro high school 
is adjacent to the Field Elementary School, and can easily 
be furnished as an addition to the elementary school— 
which would make the combined Field School adequate for 
all of the elementary students in the district. The enroll­
ment for the district in 1966-67 was 492 for grades 1-7, 
while the total enrollment at the Field School was 477. 
(grades 1-12).18

Unless the Board is required to cease maintaining dual 
facilities, not only will a predominantly segregated school 
system be fastened upon the community for at least another 
generation, but all students—Negro and white—will con­
tinue to pay the price of the inefficiency caused by oper­
ating a dual system in such a small district. This is 
graphically illustrated by the disparity in course offerings 
at the two high schools. If all students were attending the 
same high school, everyone would have the opportunity 
to take courses such as journalism or agriculture, as well 
as other courses which would be available because a higher 
total of students would elect them. Negroes who presently 
have no football, basketball or track programs would be 
able to participate in those sports. The basic sciences, 
chemistry and biology, are offered only in alternate years 
at Gould while they are offered every year at Field. There 
is no Future Farmers of America Program at Field be­
cause there is no agriculture course. In a consolidated 
system, all students would have the opportunity to take 
each of these courses every year.

18 Ibid.



28

The sad fact is that the Board’s failure to consider grade 
consolidation not only perpetuates segregation but deprives 
both Negroes and whites of significant educational oppor­
tunities. It is no accident that the most important study 
of secondary education that has been made in this country, 
James Bryant Conant’s, The American High School Today 
(1959) gives highest priority in educational planning to 
the elimination of small high schools with graduating 
classes of less than one hundred.19 See Moses v. Washing­
ton Parish School Board, — F. Supp. — No. 15973, E.D. 
La. (“Free choice” plan “wasteful in every respect” ; geo­
graphic zones ordered).

The court of appeals recognized that there is substantial 
evidence that consolidation is a feasible alternative to free­
dom of choice when it found that “there is no showing 
that the Field facilities with the new construction added 
could not be converted at a reasonable cost into a com­
pletely integrated grade school or into a completely inte­
grated high school when the appropriate time for such a 
course arrives”  (emphasis supplied), appendix, infra, p. 20a. 
Given the apparent feasibility of grade consolidation, the 
deficiencies of a “choice” plan in this district, and the fact 
that petitioners could not have explicitly sought consolida­
tion in the trial court because the hearing took place long

19 “ The enrollment of many American public high schools is too small 
to allow a diversified curriculum except at exorbitant expense . . . ‘The 
prevalence of such high schools— those with graduating classes o f less than 
one hundred students'— constitutes one o f the serious obstacles to good 
secondary education throughout most o f the United States. I believe such 
schools are not in a position to provide a satisfactory education for any 
group of their students— the academically talented, the vocationally 
oriented, or the slow reader. The instructional program is neither suffi- 
cinetly broad nor sufficiently challenging. A  small high school cannot by 
its very nature offer a comprehensive curriculum. Furthermore, such a 
school uses uneeonomically the time and efforts of administrators, teachers, 
and specialists, the shortage o f whom is a serious national problem” 
(p. 76).



29

before construction of new classrooms began, the court of 
appeals had an obligation to fashion a remedy equal to the 
task of disestablishing the dual structure. Instead, it er­
roneously affirmed dismissal of the complaint.

D. As Minimum Compliance With Brown v. Board of Educa­
tion Petitioners Are Entitled to a Comprehensive Decree 
Governing the Desegregation Process.

As alternative relief, petitioners asked the court of 
appeals to issue a comprehensive decree governing the 
desegregation process similar to that imposed by another 
panel of the circuit in Kelley v. Altheimer, 378 F.2d 483 
(8th Cir. 1967), and by the Fifth Circuit in United States 
v. Jefferson County Board of Education, supra. The court 
did not detail its reasons for refusing to grant this relief 
but only stated:

Unlike the Altheimer situation, no attack has been 
made in the pleadings on the desegregation plan 
adopted by the Board. Additionally, we find no sub­
stantial evidence to support a finding that the Board 
was not proceeding to carry out the plan in good 
faith. (Appendix, infra, p. 24a)

If the failure of the court of appeals to subject the 
Board to a comprehensive decree, rather than dismissing 
the complaint, rests on whether an attack had been made 
on the plan in the trial court, it rests on a finding which 
is clearly erroneous. The complaint sought to enjoin the 
Board from compelling any Negroes to attend the all- 
Negro school (relief fundamentally inconsistent with the 
“choice” plan) and also sought to enjoin the “operating 
of a segregated school system” (B. 8). The trial is replete 
with testimony concerning the operation of the plan (B. 53- 
63, 67-71, 75, 95, 96, 101, 102, 109, 117, 118, 121-23) and the



30

district court refused to enjoin the Board from maintain­
ing a segregated system as prayed only because he found 
the plan adequate (R. 14).

To the extent the second reason given by the court— 
that the Board was proceeding to carry out the plan in 
good faith—supports the court’s conclusion that the com­
plaint should be dismissed, it reflects a misconception of 
the role of lower courts in supervising the desegregation 
process, see supra, pp. 16-19). This petition describes ad­
ministration of the Gould system in detail sufficient to 
show that whether the Board is acting in good faith or 
not, its performance is not such as to permit the lower 
courts to avoid supervision of the desegregation process.

In United States v. Jefferson County, supra, and in 
Kelley v. Altheimer, supra, the courts found that the 
policies and practices of the school boards had been de­
signed to perpetuate segregation and for that reason, 
and to insure the continuity and speed of desegregation, 
ordered that any plan submitted by the boards would 
have to conform to certain principles as to student and 
faculty desegregation, transportation, school equalization 
and other areas touching on desegregation. At the very 
least, on the basis of the record in this case, petitioners 
were entitled to a retention of jurisdiction and entry of 
a comprehensive decree by the district court.

The finding of the Fifth Circuit in Jefferson that “case 
by case development of the law is a poor sort of medium 
for reasonably prompt and uniform desegregation” (372 
F.2d at pp. 854-55) is undisputable. A comprehensive and 
uniform decree, therefore, provides invaluable assistance 
to district courts in fulfilling their responsibility to require 
the reorganization of segregated school systems under 
Brown. Such a decree provides a distillation of the ex­



31

perience in formulating desegregation standards of the 
courts, the Executive branch, educators and administrators. 
When adopted uniformly such a decree also avoids totally 
different rates of desegregation in communities which are 
similarly situated. It provides Negroes with a definite 
understanding of what they can expect, and district courts 
with what they must require, from school authorities. It 
insures that desegregation plans will encompass the mini­
mum range of administration and planning functions which 
must be reorganized if the unlawful segregated system is 
to be disestablished.

This litigation should not have been necessary. At a 
minimum, the Negroes represented by petitioners are 
entitled to judicial supervision of desegregation where 
administrative supervision has not proved adequate as well 
as to a clear statement of the essential features which 
the plan must encompass. Only in this way will there be 
removed the “ obstacles” to enjoyment of the right to an 
equal and desegregated education guaranteed by the Four­
teenth Amendment—“obstacles” which this Court recog­
nized must be destroyed thirteen years ago.



32

CONCLUSION

W herefore, petitioners pray that the petition for writ 
of certiorari be granted.

Respectfully submitted,

J ack  G reenberg 
M ich ael  M eltsner  
M ich ael  J . H en ry

10 Columbus Circle 
New York, New York 10019

J o h n  W . W alker  
N orm an  Ch a c h k in

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners



A P P E N D I X



APPENDIX

Opinion of United States District Court 

(Filed April 26, 1966)

The plaintiffs in this case are Negro children who are 
pnpils in grades five, ten and eleven in the Public School 
System of Gould, Arkansas. This action was brought by 
their parents and next friends and is a class action seek­
ing an injunction enjoining the Board of Education of the 
Gould School District from (1) requiring the minor plain­
tiffs and all others similarly situated to attend the all- 
Negro Field School for the 1965-66 school term, (2) pro­
viding public school facilities for Negro pupils in Gould, 
Arkansas, which are inferior to those provided for white 
pupils, (3) expending any funds for operation or improve­
ment of the predominantly white Gould Public Schools 
until and unless the Field School is made substantially 
equal in facilities, equipment, curriculum, advantages, etc. 
to the predominantly white Gould Schools, (4) building 
any new facilities to replace Field High School at any 
location other than on or adjacent to the grounds of the 
Gould Public Schools, and from (5) otherwise operating a 
racially segregated school system.

The defendant school board claims that it is doing every­
thing possible to correct the very things plaintiffs are 
complaining of and that no injunction is required or war­
ranted, therefore the case should be dismissed.

The Gould School District encompasses about eighty 
square miles of agricultural land in Lincoln County in 
Southeast Arkansas. Almost 20,000 acres of this land is 
tax exempt because the Arkansas State Penitentiary is 
located within the district. It is a rural and agricultural



2a

area. There are no significant industries within the dis­
trict, and Gould, with a population of 1,210, is the district’s 
only incorporated town. In the 1964-65 school year the 
district derived $56,530 from its millage levy on the as­
sessed value of the real and personal property in the 
district and most of the rest of its budget of over $200,000 
was received from various programs of the State and 
Federal Government. It is obvious from these facts and 
from other testimony given at the hearing of this case 
that this school district is a financially poor one.

The population of the district of about 3,000 consists of 
1,800 Negroes and 1,200 white people. There are approxi­
mately 880 students in the system and 580 of these are 
Negro. Prior to 1965 the school board operated two school 
systems from grade one through twelve on a racially 
segregated basis. The Field Elementary School and the 
Field High School were attended by Negro children only. 
The Gould Elementary School and the Gould High School 
had only white students. In the spring of 1965 the de­
fendant school board unanimously voted to accept a 
desegregation plan which provided for the integration of 
all twelve grades of the system in the 1965-66 school year 
in accordance with a “Freedom of Choice” plan.1

After the students and their parents had expressed their 
choice of schools it appeared that there would be over­
crowding in the Gould Schools in grades five, ten, and 
eleven. The school authorities discussed the problem with 
the appropriate authorities of the Department of Health, 
Education and Welfare and it was agreed that it would be

Noth 1 : The “ Freedom of Choice” plan in this ease is of the same 
type that the Court of Appeals for the Eighth Circuit indicated it would 
approve in Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965), therefore it 
is unnecessary to explain the details o f the plan in this opinion.

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3a

better for the school to postpone the granting of the free­
dom of choice in these grades for one year. However, as 
many Negro children in these three grades as possible who 
chose the previously all-white school were accepted in 
that school on the basis of geographical proximity of their 
home to the school. The plan as amended was approved by 
the federal agency.

In other words, all students in the district were accepted 
in the school of their choice except in the fifth, tenth, and 
eleventh grades. In these grades some forty Negro pupils 
expressed a preference to attend the Gould Schools and 
twelve of them were accepted. The remaining students 
were assigned to the Field Schools and it is this group 
that is represented by the plaintiffs in this case.

At the trial plaintiffs offered testimony concerning al­
leged discrimination within the district which they con­
tend this Court should correct by use of its injunctive 
powers.

One of plaintiffs’ contentions is that the Court should 
enjoin the defendant school board from maintaining a 
racially segregated school system. But the testimony dis­
closes that the school board is no longer maintaining such 
a system. The desegregation plan which it has adopted 
and which has been approved by the Department of 
Health, Education and Welfare has brought about more 
than token integration even though it has been in opera­
tion only one year. There are 71 Negro students and 298 
white students attending the previously all-white school 
and there will undoubtedly be more Negro students in 
this school next year. The Negro students are participat­
ing on the school athletic teams and taking part in several 
other extra-curricular activities at the school. Further­
more, in the school term beginning September 1966 it is

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4a

the plan of the district to honor the preference of all 
children in the three grades to which the Choice plan was 
only partially applicable this year.

Another contention of the plaintiffs is that the school 
board is discriminating against Negroes by paying Negro 
teachers salaries lower than those paid to white teachers. 
The testimony revealed that the base salary paid to 
Negro teachers is $3,870, while the base salary for white 
teachers is $4,050.00. The range of salaries for Negro 
teachers is from $3,870.00 to $4,500.00, and the range for 
white teachers is $4,050.00 to $5,580.00. The superintend­
ent of the schools testified that he was well aware of the 
differences in salaries paid to the teachers of different 
races, and he said that the historical reason for this differ­
ence was simply the law of supply and demand. Because 
of the larger supply of Negro teachers he was able to hire 
them at lower salaries than those demanded by white 
teachers. He stated that five years ago, when he was first 
employed by the school system, the difference in the base 
salaries was $600. In the last five years the difference has 
been lowered to $180. The reason the salaries cannot be 
equalized before next year is purely a financial one. The 
budget for the 1965-66 school year is practically exhausted 
and there are no funds available for this or any other 
purpose.2 In the course of his testimony, the superintend­
ent assured the Court that the salaries for Negro and white 
teachers for the 1966-67 school year would be equal.

The primary complaint of the plaintiffs is that they are 
being discriminated against because the Field Schools to 
which they have been assigned are grossly inferior to the

Note 2 : The total received for all school purposes this year was 
$225,000. The budget expenditure is $221,000. This is a typical year. 
The surplus remaining from last year was $1,200.

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5a

Gould Public Schools. They show the inferiority of the 
Fields Schools by citing several examples. Some of these 
are: (1) the Field High School is a frame building erected 
in 1924 which is in a poor state of repair, with holes in the 
floor and cracks in the wall, while the Gould High School 
is located in a brick and concrete block building only two 
years old; (2) the Gould High School has an “A” rating 
from the Arkansas Department of Education, while the 
Field High School is unaccredited; (3) the restroom facili­
ties at the Field High School are located in a separate 
building, causing students to -walk outdoors to reach the 
restroom, while at the Gould High School the restroom 
facilities are located in the school building itself; (4) the 
Field High School is heated with upright gas heaters, while 
the Gould Schools are heated with central heat; (5) the 
science laboratory facilities at Field High School are in­
ferior to those at Gould High School; (6) the library facili­
ties at Field High are very poor, with few books and no 
full-time librarian, while the Gould School library con­
tains almost 1,000 books and has a librarian; (7) there is 
no hot lunch program at the Field Schols, while the Gould 
Schools have an air-conditioned cafetorium; and, finally 
(8) courses in journalism and agriculture are not offered 
at the Field High School, while they are taught at the 
Gould High School.

The defendant admits that facilities at the Field High 
School are inferior to those at the Gould Schools, that the 
situation is a bad one, and that a new school building is 
needed. It claims that there are no funds available at the 
present time with which to build such a school and that the 
school district does not have sufficient borrowing power to 
secure enough money for such a project. To borrow that

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6a

much money the school district would need a new bond 
issue, hut since the present millage is at 47 (the maximum 
allowable under State law),3 new millage cannot be added 
to finance such a bond issue. However, one of the present 
outstanding bond issues will be paid off by January of 
1967, and the nine mills used to finance that issue can be 
transferred to a new issue. The money obtained thiough 
this new bond issue has long been earmarked by the hoard 
for the construction of a modern facility to replace Field 
High School. Therefore, it appears that the defendant 
school board realizes the need for a new school building 
and is doing all that it is financially able to do toward filling 
this need.

On the other hand, the defendant does not admit the 
degree of inequality between the schools is as great as 
plaintiffs claim. They contend that although the Field 
High School building is in very poor condition and is in­
ferior to the Gould High School building, the same is not 
true for the rest of the buildings in the Field School System. 
The evidence shows that in the last fifteen years, or at 
lease since 1954, over seventy-five per cent of all money 
available for construction has been spent on the Negro 
schools. In fact, the total building expenditures for the 
Negro schools since 1954 are in excess of $138,000. On the 
other hand, the only money spent on capital improvements 
at the Gould School was from proceeds of an insurance 
policy when the school building burned late in 1963. The 
new building was built entirely with the funds from this

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Note 3: Under Arkansas law a school district may not issue bonds 
in an amount in excess of 15% of the district’s assessed valuation o f 
property located, within the district, (rould has reached that limit.



7a

insurance policy,4 The Field Elementary School is a mod­
ern brick and concrete block building built in 1954 with 
classrooms added as late as 1965. The gymnasium for the 
Field Elementary and High Schools is a modern concrete 
block building with excellent restroom, dressing room, and 
shower facilities, as well as a fine gymnasium and audito­
rium. The gymnasium at the Gould School is an old frame 
building in poor repair, with inadequate and unsightly 
dressing room and restroom facilities. The home economics 
buildings at both the schools are old buildings which the 
citizens of the school district have helped repair and deco­
rate, and which are of approximately the same quality. 
Although it was never definitely established just what 
scientific laboratory facilities the Field High School has, 
it is evident from the testimony that they are inadequate 
and practically nonexistent. However, the laboratory facili­
ties at the Gould High School would hardly be considered 
adequate or satisfactory. The laboratory is located in an 
old concrete block building that was once used as a bar- 
beque house. For most of the experiments there is only 
enough equipment for the teacher to use at a demonstra­
tion desk and sink. According to the evidence, no build­
ing on either campus is heated by central heat, and in 
the last two years the same amount of money has been 
allocated to each of the libraries. The defendant admits 
that the Field Schools do not have a hot lunch program 
or an agriculture department but claims that federal aid 
is being sought, and the superintendent of schools as­
sured the Court that both programs would be established

N ote 4: A  Teaeherage, consisting of two cottages for oecupany by 
teachers, was constructed on the Field campus a year or two ago. This 
was financed locally, and the monthly payments to pay the loan come 
from rent paid by the teachers.

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8a

in the Field Schools by the end of this year. Defendant 
also states that the reason some courses such as journalism 
are taught in Gould School and not in Field School is that 
they are elective courses and are not taught unless there 
is a sufficient demand for them. Therefore the defendant 
claims that although conditions at the Field High School 
are poor, there is not a large degree of inequality between 
the two school systems.

During the course of the hearing on this matter, after 
the defendant had admitted the inferiority of the Field 
High School and had set forth its proposal for building a 
new facility, plaintiffs moved in open court to amend 
their petition for an injunction to include enjoining the 
defendant from building any new facilities to replace 
Field High School at any location other than on or ad­
jacent to the grounds of the Gould Public Schools. This, 
it is believed, is the only real issue remaining in the case. 
The Court granted the motion, and evidence was heard 
on both sides of this question. The Court also asked 
counsel for briefs on the question of whether or not the 
Court could or should order the school district to build 
its proposed new facilities at any particular location.

It is plaintiff’s contention that the building of a new 
high school at the site of the old Field High School or 
on the Field Elementary School grounds would promote 
and encourage segregation in the school system. Plain­
tiffs contend that if the new high school was built at one 
of these locations, only Negro pupils would request that 
they be assigned there. Plaintiffs also say that in fact 
this is the intention of the school board. They point out 
that at the hearing the superintendent of schools stated 
that probably only Negro children would select the new 
high school and plaintiff argues that this shows that it is

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9a

the school board’s intention to create a “Negro high 
school” and not just another high school for the district. 
Plaintiffs argues that it is a breach of plaintiffs’ consti­
tutional rights to allow defendant school board to carry­
out a construction program which is designed to bring 
about or further segregation in the school system.

Plaintiffs also contend that it would be unsound for a 
school district in the financial condition of the Gould School 
District to maintain separate school facilities for Negro 
children. Such a plan would entail considerable duplica­
tion and would dilute the quality of education which 
could be offered to both white and Negro students by a 
school district of this size.

The defendant contends that the management or ad­
ministration of the schools has been committed to local 
school officials and is not within the province of the Court 
and that selection of the location of a new school facility 
is an administrative or managerial decision which should 
be left to those officials whose duty is to determine what 
is best educationally and administratively for the school 
system. The defendant claims that there are several rea­
sons why it is unsound to locate the new high school at 
the site insisted upon by plaintiffs and which support 
the board’s selection of a site adjacent to the Field Ele­
mentary School. These facts are (1) that the school dis­
trict already owns enough land at the Field Elementary 
School to accommodate the new high school building, (2) 
the district does not own sufficient land at the site of the 
Gould High School for this purpose, (3) additional land 
near the Gould High School is not for sale and would 
have to be acquired by condemnation at a high price since 
it is being subdivided into residential lots, (4) the new 
gymnasium (which has been referred to above) was

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10a

built on the grounds of the Field Elementary School to 
accommodate both elementary and high school students in 
anticipation of the location of the new high school on that 
campus, (5) that the location of the schools in opposite 
ends of town and on opposite sides of a heavily traveled 
U. S. highway is desirable for the safety of the children 
and for obtaining the educationally advantageous concept 
of “neighborhood schools.”

The question before the Court is actually two pronged. 
First, is this Court authorized to tell the school board 
where to build or not to build a new school building, and 
second, should the Court do so under the circumstances 
in this case? These questions are of first instance before 
this Court, and in fact there is very little authority from 
any jurisdiction.

In the “landmark” civil rights cases concerning school 
integration the courts leave no doubt that segregation 
is and must be a thing of the past. They tell the courts 
that there can no longer be “Negro schools” and “White 
schools” and that the courts cannot permit a state to 
support “ segregated schools through any arrangement, 
management, funds or property. . . . ” Cooper v. Aaron, 
358 U.S. 1. In a general way these cases give this and 
all district courts the authority to take what steps are 
necessary to insure that there is an end to segregation in 
our schools.

At the same time these cases also contain language 
which seems to recognize a limit to the courts’ authoriza­
tion to deal in school affairs. In Brown v. Board of Ed­
ucation of Topeka, 349 U.S. 294, the court said:

“ school authorities have the primary responsibility 
for elucidating, assessing, and solving these problems;

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11a

courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles.”

In Briggs v. Elliot, 132 F.Supp. 776, 777 (E.D. S.Car. 
1955), a three-judge district court interpreting Brown 
said,

“Having said this, it is important that we point out 
exactly what the Supreme Court has decided and 
what it has not decided in this case. It has not decided 
that the federal courts are to take over or regulate 
the public schools of the state.”

And this Court in Aaron v. Cooper, 164 F.Supp. 325, 334 
(1959) stated:

“It is not the duty or function of the Federal Court to 
regulate or take over and operate the public schools. 
That is still the duty of the duly state-created school 
authorities.”

These cases make it apparent that there is a limit to the 
court’s authority to deal in school matters, although they 
do not say what that limit is.

In Board of Public Instruction of Duval County, Fla. v. 
Braxton, 326 F.2d 616 (1964), the Court of Appeals for 
the Fifth Circuit approved an injunction issued by Judge 
Simpson of the District Court for the Middle District of 
Florida in which the school authorities were enjoined 
from operating a compulsory biracial school system, main­
taining dual attendance areas, assigning pupils and teach­
ers on the basis of color, and from

“Approving budgets, making available funds, approv­
ing employment contracts and construction programs,

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12a

and approving policies, curricula and programs de­
signed to perpetuate, maintain or support a school 
system operated on a racially segregated basis.”

Although that injunction does not go as far as plaintiffs 
have asked for in this case, it does go further into the 
realm of school administration than any other court has 
gone. Perhaps some of the factors that the case dealt 
with should be pointed out in that they may limit the 
scope of the decision.

In that case the court was dealing with a school system 
that, some eight years after the second Brown decision, 
had done nothing toward bringing an end to segregation. 
In fact, the board was still maintaining and planning to 
continue to maintain separate systems for colored and 
white children with dual attendance areas. The court, of 
course, was trying to enjoin all this type action. There­
fore it did enjoin all the policies of the board including its 
future construction policies which were “designed to per­
petuate, maintain or support a school system operated 
on a racially segregated basis.”

In June of 1965 this Court in Yarbrough v. Hulbert-West 
Memphis School Dist. No. 4, 243 F. Supp. 65, 71, said:

“ . . . the basic responsibility and authority for oper­
ating the schools in a constitutional manner rest upon 
school boards and school authorities rather than the 
courts. The question is not what the court would do 
if it were operating the schools, but whether the 
defendants are proceeding in a permissible manner 
from a constitutional standpoint.”

This still seems to be the better or most well reasoned role 
for the court. It should be an ameliorative or corrective

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13a

body rather than an initiating or policy-making one. Once 
the school board has made a decision to take a certain 
action in the administration of the schools, then it be­
comes the Court’s duty to determine whether or not this 
action is constitutional.

However, this Court is not prepared to state that there 
might not be circumstances under which the Court would 
be justified in taking action such as that the plaintiff is 
asking for in this case. Assuming without deciding that 
this is an area of school policy-making which the court 
could enter to protect the civil rights of the school dis­
trict’s citizens, this Court does not feel that the circum­
stances of this case merit such action.

Here the school board has begun a desegregation pro­
gram for all twelve grades without having been ordered 
to do so by a court. The delay in the program for the 
three grades involved in this case is temporary and future 
plans call for complete integration. The fact that the 
Negro children who are attending the previously all-white 
schools are participating in the school’s curricular and 
extra-curricular activities seems to indicate that this plan 
is more than a pretense or sham to meet the minimum re­
quirements of the law.

The availability of campus area in one place and not 
the other, the lack of funds to procure more land, and the 
necessity of locating the new high school near the exist­
ing gymnasium designed to accommodate the high school 
students are all valid reasons for the administration’s deci­
sion as to the location of the new high school. There is 
no reason to assume that only Negro students will attend 
the new high school. In fact, it is a virtual certainty with 
the progress of integration, building space limitations 
alone will insure that the new school will be integrated.

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14a

Certainly these reasons, coupled with the school board’s 
recent initiative toward integrating the schools, do not 
indicate that the board’s plans are solely motivated by a 
desire to perpetuate or maintain or support segregation 
in the school system. Therefore, the Court will not usurp 
the normal managerial prerogative of the school board to 
the extent of determining where the new building will be 
located.

CONCLUSION

Practically all of the questions or problems in this case 
stem from one major source—the school district has a 
serious lack of funds. The main problem, of course, is 
the inferiority of the Field High School. However, if the 
Court ordered the school board to build a new facility to­
morrow the board would be powerless to act. It simply 
does not have the money to do so. It is obviously not the 
purpose of an injunction to order someone to do something 
he is already doing or something which is impossible for 
him to perform. Therefore, this Court can see no reason 
for the requested injunction to be issued. The petition 
will be denied and the case dismissed.

Dated: April 26, 1966.

G obdon E. Y oung 
United States District Judge

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Order of Dismissal

(Filed April 26, 1966)

In accordance with memorandum opinion filed this date, 
the complaint is dismissed.

Dated: April 26, 1966.

/ s /  G obdon E. Y oung  
United States District Judge



O p in io n  o f  U n ited  States C ou rt o f  A p p ea ls
F o r  th e  E igh th  C ircuit

[Filed August 9, 1967.]

Before V ogel, Chief Judge, V an  O osterhout and G ibson , 
Circuit Judges.

V an  O osterhout , Circuit Judge.

This timely appeal is taken from final judgment dis­
missing a class action brought by plaintiffs as parents and 
next friends of sixteen minor Negro students attending 
grades five, ten and eleven of the defendants’ district 
Negro school against the Board of Education of the Gould 
School District pursuant to 28 TJ.S.C.A. §1343(3) and 
42 TJ.S.C.A. § 1983, seeking injunctive relief. The prayer 
of the original complaint is to enjoin the defendant Board 
from:

“ (1) requiring minor plaintiffs and all other simi­
larly situated to attend the all-Negro Field School 
for the 1965-66 School Term;

(2) providing public school facilities for Negro 
pupils in Gould, Arkansas which are inferior to those 
provided for white pupils;

(3) expending any funds for operation or improve­
ment of the predominantly white Gould Public Schools 
until and unless the Field School is made substantially 
equal in facilities, equipment, curriculum, advantages, 
opportunities, etc. to the predominantly white Gould 
schools; and



17a

(4) otherwise operating a racially segregated school 
system.”

At the close of all of the evidence, plaintiffs amended 
their complaint by striking item (3) above set ont and 
substituting in lieu thereof:

“the prayer to have any future high school facilities 
in the Gould School System constructed on or near 
the premises of the present Gould high school, which 
is now attended predominantly by white pupils, . . . ”

Upon appeal, plaintiffs again altered their position and 
urged that the Board be restrained from using the new 
building construction as a replacement for the Field High 
School and that instead, the building be converted into a 
unit of a completely integrated grade school. The issue 
last stated is raised for the first time upon appeal and 
was not presented to the trial court and no opportunity 
was afforded the parties to offer evidence on the feasibility 
of such a plan, nor was the trial court given any oppor­
tunity to pass thereon. It is fundamental that issues not 
presented to or considered by the trial court cannot be 
considered upon appeal.

The trial court, in our view, states the issues properly 
raised by this appeal as follows:

“The question before the Court is actually two 
pronged. First, is this Court authorized to tell the 
school board where to build or not to build a new 
school building, and second, should the Court do so 
under the circumstances in this case?”

0 -pinion o f  U n ited  S ta tes  C ou rt o f  A p p ea ls
F o r  th e E ig h th  C ircu it



18a

The trial court on the first issue recognized that under 
appropriate circumstances a constitutionally discrimina­
tory construction program could be enjoined, stating:

“However, this Court is not prepared to state that 
there might not be circumstances under which the 
Court would be justified in taking action such as that 
the plaintiff is asking for in this case. Assuming with­
out deciding that this is an area of school policy­
making which the Court could enter to protect the 
civil rights of the school district’s citizens, this Court 
does not feel that the circumstances of this case merit 
such action.”

Our recent decision in Kelley v. Altheimer, 8 Cir., . . . 
F.2d . . . (April 12, 1967), recognizes that a court may 
enjoin a construction program which is designed to per­
petuate segregation. The supporting facts in Altheimer 
are far stronger than those in our present case. We recog­
nized in Altheimer that injunctive relief against construc­
tion could not be effective after a building is constructed. 
Such appears to be the situation here.1

The trial court as a basis for its refusal to exercise its 
equitable powers to grant the injunction requested states:

“Here the school board has begun a desegregation 
program for all twelve grades without having been 
ordered to do so by a court. The delay in the pro­
gram for the three grades involved in this case is

O pinion  o f  U n ited  S ta tes  C ou rt o f  A p p ea ls
F o r  th e E ig h th  C ircu it

1 Attached to plaintiffs’ brief is an affidavit o f their attorney dated 
April 28, 1967 which states that the building in controversy is under con­
struction and from which it would appear that considerable progress 
had been made upon such construction.



19a

temporary and future plans call for complete integra­
tion. The fact that the Negro children who are attend­
ing the previously all-white schools are participating 
in the school’s curricular and extra-curricular activi­
ties seems to indicate that this plan is more than a 
pretense or sham to meet the minimum requirements 
of the law.

“ The availability of campus area in one place and 
not the other, the lack of funds to procure more land, 
and the necessity of locating the new high school near 
the existing gymnasium designed to accommodate the 
high school students are all valid reasons for the ad­
ministration’s decision as to the location of the new 
high school. There is no reason to assume that only 
Negro students will attend the new high school. In 
fact, it is a virtual certainty with the progress of 
integration, building space limitations alone will insure 
that the new school will be integrated. Certainly 
these reasons, coupled with the school board’s recent 
initiative toward integrating the schools, do not indi­
cate that the board’s plans are solely motivated by a 
desire to perpetuate or maintain or support segrega­
tion in the school system. Therefore, the Court will 
not usurp the normal managerial prerogative of the 
school board to the extent of determining where the 
new building will be located.”

We note that the Field High School which was being 
replaced is the oldest building in the school system. The 
bulk of the evidence in this case is directed at its many 
deficiencies and dilapidated condition. The Negro seg­
ment of the community had for years been insisting that

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F o r  the E ig h th  C ircuit



20a

a replacement of such building be made and continued to 
assert such position throughout the trial and at least until 
the amendment made at the close of all of the evidence 
hereinabove set out. Reference is made in plaintiffs’ testi­
mony to an alleged prior action which purported to require 
the Board to give priority to the upgrading of the Field 
High School and the Board’s commitment so to do. The 
evidence discloses that the district is weak financially and 
that prior construction was largely prevented by statutory 
limitations upon bonded indebtedness. It would appear 
that such obstacle would be cleared up by the completion 
of payments on prior bonded indebtedness by 1967. There 
is absolutely nothing in the record to indicate the nature 
of the plans for the new high school building under con­
struction on the Field elementary school grounds. The 
evidence does disclose that a gymnasium and certain other 
facilities on such ground already in existence had been 
used and would continue to be used by students in the 
Field High School. Moreover, there is no showing that 
the Field facilities with the new construction added could 
not be converted at a reasonable cost into a completely in­
tegrated grade school or into a completely integrated high 
school when the appropriate time for such course arrives. 
We note that the building now occupied by the predomi­
nantly white Gould grade school had originally been built 
to house the Gould High School.

As pointed out by the trial court, the defendant Board 
had voluntarily adopted a desegregation plan for the 
schools which it operates, the plan to be in effect in Sep­
tember 1965. Such plan went considerably beyond the 
minimum requirements of the Department of Health, Edu­

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21a

cation and Welfare (BLEW.), providing for immediate 
unrestricted freedom of choice of school attendance on the 
part of all students, and provision was also made for 
faculty desegregation. The desegregation plan is similar 
to a plan we indicated would be approved in Kemp v. 
Beasley, 8 Cir., 352 F.2d 14.

Subsequently, when the students exercised the freedom 
of choice provided for by the plan, it developed that grades 
five, ten and eleven would be seriously overcrowded which 
led to an amendment making the freedom of choice in­
operative for the 1965-66 school year with respect to 
grades five, ten and eleven but fully effective thereafter. 
The plan as amended was approved by H.E.W. As stated 
in Kemp v. Beasley, supra, final responsibility for deter­
mining the constitutionality of desegregation plans rests 
with the court but H.E.W. guidelines are entitled to con­
siderable weight.

In Clark v. Board of Education of Little Rock Sch. Dist., 
8 Cir., 374 F.2d 569, we approved a freedom of choice plan 
similar to that adopted by the Board here. We stated:

“ [W]hen a student is given a well publicized annual 
right to enter the school of his choice, coupled with 
periodic mandatory choices as set forth in the Board’s 
amended plan, we can find on the face of it no uncon­
stitutional state action. . . .
Therefore, if in fact all the students wishing to trans­
fer were fully accommodated, the Constitution would 
unquestionably be satisfied, and apparently under 
these circumstances petitioners would have little objec­
tion to the plan’s operation. . . . ” 374 F.2d 569, 
571-72.

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22a

We recognized in Clark that a plan appropriate on its 
face could be unconstitutionally administered and observed 
that in case of such a development, the District Court 
upon appropriate application could do what is necessary 
to bring the plan up to constitutional standards.

Prior to 1965, the defendant District had operated an 
all-Negro school known as the Field school and an all- 
white school known as the Gould school on a segregated 
basis. The district is a predominantly agricultural district 
with little industry. The population is approximately 
3,000 of which 60% are Negro. There are about 880 stu­
dents in the system of which 580 are Negro.

Under the freedom of choice plan adopted, all students 
expressed their attendance preference. Seventy-one Ne­
groes who expressed a preference for the Gould School 
were accepted for attendance at that school. All prefer­
ences except those for overcrowded grades five, ten and 
eleven were fully respected. Twelve of the forty Negro 
students applying w7ere accepted in grades five, ten and 
eleven. Those who were accommodated at Gould lived 
the greatest distance from Field. Under the plan all 
preferences are to be honored commencing with the 1966-67 
school year.

The evidence shows that the defendant Board has taken 
substantial steps to narrow the gap between the salaries 
paid to white and Negro teachers and that any discrep­
ancy in this respect will be completely eliminated by the 
1966-67 school year. The superintendent as a witness also 
stated that no teachers would be discharged as a result 
of the integration. It also appears that the transportation 
of pupils has been integrated.

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23a

The enrollment at the Gould school in 1965-66 consisted 
of 71 Negro students and 298 white students. Thus sub­
stantial progress toward integration has been made in the 
first year of the plan’s operation. With the restricted 
grades open for freedom of choice and upon the basis of 
the favorable acceptance of the Negro students at the 
Gould school, it is reasonable to anticipate that integra­
tion will rapidly progress as predicted by the trial court.

The complaint charges coercion has been used against 
integration. The Chief of Police of Gould was named as 
a defendant on this charge. The case was voluntarily 
dismissed by the plaintiffs against him. There is no sub­
stantial evidence that any coercion was exercised to deter 
Negro students from electing to attend the white school. 
The record fairly shows that the integration plan has 
operated smoothly and that the Negro students have been 
encouraged to elect the white school.2

2 The testimony of the president of the school board includes the 
following:

“We have had wonderful cooperation out of the white people and the 
colored people. I ’d say that we have got ninety-five percent of the 
cooperation out o f both sides. And the Board as a whole— if I might 
elaborate just a little—has gone out of our way in going to athletics 
— not just the Board, but all the people, to go to our athletic pro­
gram, or any social functions and to discourage any violence or any 
nagging, or anything of that nature, not only with the white patrons, 
but the colored patrons, we’ve had wonderful cooperation. W e’ve 
got a small minority that’s not interested in our schools or our peo­
ple or our economy or our welfare that don’t even have kids. We 
haven’t had any trouble out o f people that’s got kids that’s going to 
school— colored or white. W e’ve had wonderful cooperation out of 
them.

“ Q. Do you have any knowledge of any such coercion or undue 
influence attempted to be exercised with respect to the students

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24a

The trial judge by reason of his presence at all stages 
of the trial has the feel of the case. The court’s findings 
are based upon substantial evidence and are not clearly 
erroneous. Moreover, the trial court has a large discre­
tion in determining whether an injunction should be 
granted. See 43 C.J.S.2d Injunctions §§ 14, 15, and cases 
there cited.

Plaintiffs have failed to demonstrate that the trial court 
abused its discretion in denying the injunction here sought.

Plaintiffs alternately upon this appeal ask us to issue 
a comprehensive decree governing the desegregation proc­
ess similar to that in Kelley v. Altheimer, supra. The rec­
ord in this case does not warrant such relief. Unlike the 
Altheimer situation, no attack has been made in the plead­
ings on the desegregation plan adopted by the Board. Ad­
ditionally, we find no substantial evidence to support a 
finding that the Board was not proceeding to carry out 
the plan in good faith.

Primary responsibility for the operation of the public 
schools rests in the school board. Courts are not equipped 
to solve the everyday problems of school operation. The 
court’s interference with the Board’s operation of its 
school is justified only upon a showing that the Board in

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making their choices, that are allocated under this plan, by any em­
ployees or representatives of the Gould School District?

A. None whatever, by no member of the faculty, no member of the 
School Board, or no farmers. In fact we have encouraged colored 
people to send their kids up to the white school. To the contrary, 
they have failed and refused— people that we thought we could talk 
with if something come up, that we could adjust the situation. There 
hasn’t been any economic pressure put on. Almost every member of 
this Board has got colored people living on their farm that have 
colored children in the white schools.”



25a

its operation of its school is depriving pupils of rights 
guaranteed by the federal constitution.

In Brown v. Board of Education of Topeka, 349 U.S. 
294, 299, the Court states:

“ School authorities have the primary responsibility 
for elucidating, assessing, and solving these problems; 
courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles. Be­
cause of their proximity to local conditions and the 
possible need for further hearings, the courts which 
originally heard these cases can best perform this 
judicial appraisal.”

In our present case, no issue on the adequacy of the 
plan adopted by the Board or its implementation was 
raised in the District Court. Issues not fairly raised in 
the District Court cannot ordinarily be considered upon 
appeal. Hormel v. Helvering, 312 U.S. 552, 556; Duignan 
v. United States, 274 U.S. 195, 200; Smith v. American 
Guild of Variety Artists, 8 Cir., 368 F.2d 511, 514.

The judgment is affirmed.3

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3 The evidence in this case was taken on November 24, 1965. Due 
to disability o f the reporter, the preparation of the transcript o f testi­
mony was delayed and this has delayed the appeal. Since the hearing 
in the trial court, the 1966-67 school year has been completed and the 
1967-68 year is about to commence. Our decision is based upon the 
record before us. I f  subsequent evidence should prove that the defend­
ant Board is not fairly administering its integration plan, resort to the 
equitable powers of the District Court is open to any aggrieved party.



26a

Judgment

UNITED STATES COURT OF APPEALS 
F ob t h e  E ig h t h  C ircu it  

September Term, 1966 
No. 18,527

Arthur Lee Raney, by his mother and next friend, Mrs. 
Roxie Raney; Bobby Cox and Annette Cox, by their 
grandmother and next friend Mrs. Carrie Dilworth; 
Charles Washington, by his mother and next friend, 
Mrs. Yertis Frazier; Dennis James Bailey, by his 
mother and next friend, Mrs. Olens Bailey; Robert 
Hall, by his mother and next friend, Nonie Mae George; 
Wyvonne Dale, by her mother and next friend, Laverne 
Dale; Earnestine Dale, by her father and next friend, 
E. W. Dale; Irma Jean Clark, by her grandmother 
and next friend, Mrs. Mattie Harper; Linda Wright, 
by her grandmother and next friend, Mrs. Blanche 
Newman; Jake Taylor, Jr., and Linda Austin, by their 
mother and next friend, Mrs. Beatrice Austin; Willie 
Lee Jones and Stella Harper, by their parents and 
next friends, Mr. and Mrs. Rice Harper; Bobbye Caro­
lyn Hadden, by her mother and next friend Mrs. Norma 
Jean Hadden; Jesteen Jasper, by her father and next 
friend, Jim Jasper,

Appellants,
vs.

Board of Education of the Gould School District.



27a

Judgment

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS

This cause came on to be heard on the record from the 
United States District Court for the Eastern District of 
Arkansas, and was argued by counsel.

On Consideration Whereof, It is now here Ordered and 
Adjudged by this Court that the judgment of the said 
District Court in this cause be, and the same is hereby, 
affirmed.

August 9th, 1967.

Order Denying Petition for Rehearing

(Filed September 18, 1967)

Appellants’ Petition for Rehearing en banc or by the 
Panel filed in this cause having been considered, It is now 
here Ordered by this Court that the same be, and it is 
hereby, denied.



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