Rogers v Paul Brief in Opposition for Writ of Certiorari

    IN TH E

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

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

PATRICIA ROGERS, et a!.,
Petitioners,

vs.

DR. EDGAR F. PAUL, et al., 
Respondents.

BRIEF IN  OPPOSITION TO  PETITION FOR W R IT  OF  
CERTIORARI TO THE UNITED STATES COURT OF  

AP P E A LS FOR THE EIGHTH CIRCUIT

John P. W oods 
John S. Daily 
Bruce H. Shaw

Merchants National Bank Building 
Fort Smith, Arkansas

Attorneys for Respondents

E. L. M endenhall, Inc., 1108 Oak Street, Kansas City, Mo. 64106, HArrison 1-3030



IN D E X

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

Argument—

I. The Fort Smith Plan Is the Product of the E x­
ercise of a Discretion by the Board of Directors 
Based upon Experience and Its Provisions Are 
Reasonable................................................................ 4
A. The pace of desegregation as reviewed by the

District Court and affirmed by the Court of 
Appeals is not in conflict with standards 
established by this Court and the other Cir­
cuits ................................................. ................. ...  4

B. The record does not indicate that the Lincoln
School provides grossly inferior education .... 6

C. The lower court’s decision is not in conflict 
with the text of the Civil Rights Act of 1964
or the regulations for its administration .......  8

II. The Question of the Assignment of Teachers 
Without Regard to Race Has Not Been Finally 
Litigated in This Case........................................  8

Conclusion ..........................  10

Table of Cases

Goss v. The Board of Education of the City of Knoxville, 
Tennessee, 373 U.S. 683 ...............................   2

Rogers v. Paul, et al., 232 F. Supp. 833, W.D. of Ark.
1964, 345 F.2d 117 .......................  3 ,4 ,5 ,6 ,7 ,8 ,9 ,10

Statutes

Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000d 8



IN TH E

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965

No.

PATRICIA ROGERS, et al., 
Petitioners,

vs.

DR. EDGAR F. PAUL, et al. 
Respondents.

BRIEF IN  OPPOSITION TO PETITION FOR W R IT  OF 
CERTIORARI TO  THE UNITED STATES COURT OF  

APPEALS FOR THE EIGHTH CIRCUIT

STATEM ENT OF THE CASE

An inquiry into the record in this case will readily 
reveal that there is no dispute or actually no room for 
dispute between the parties as to any legal principle in­
volved. Further inquiry will inevitably lead to the con­
clusion that these respondents have not attempted to 
circumvent the requirements of the law in the matter of 
the integration of the school system of the respondent 
district, but to the contrary, have made a “prompt and 
reasonable start” as early as 1956 (R. 48) by adopting a



2

plan of desegregation. This plan provided for the deseg­
regation of one grade each year commencing with the 
school term 1957-1958 in the first grade, one year at a 
time, until full integration should be accomplished. The 
plan continued progressively in that manner (R. 16-23, 
48-49, 75-76).

Thereafter, in the opinion in the case of Goss v. The 
Board of Education of the City of Knoxville, Tennessee, 
373 U.S. 683, this Court proscribed a voluntary transfer 
provision in a plan of desegregation substantially of the 
same terms as that included in the plan of the Special 
School District of Fort Smith. With reasonable dispatch 
the District revised its plan to eliminate the objectionable 
feature of voluntary transfer except as to a period of 
one year delay as to three predominately Negro elemen­
tary schools (R. 29-31, 40 and 58).

The revised plan operated to immediately integrate 
some three hundred Negro pupils into previously all white 
schools which was the integration of approximately one- 
third of all of the Negro pupils residing within the dis­
trict (R. 63-64-66), and under the plan and as grades 9 
through 12 will proceed to integrate, one each subsequent 
year after the school year 1964-65, there will and must 
necessarily be a geometrical increase in this integration 
of both white and Negro pupils in each successive school 
year. In fact, the enrollment records of the respondent 
district show that, under its plan approved by the courts 
below, of a total of 1,055 Negro pupils enrolled in all the 
district’s schools in September, 1965, for the current 1965- 
66 school year, 844 (exactly four-fifths) are presently 
enrolled in and attending integrated schools in which 
white pupils are also presently enrolled, all in attendance 
in integrated classes.



3

This case (Rogers v. Paul, et al., 232 F. Supp. 833, 
W. D. of Ark. 1964) was tried to the District Court, and 
the issues of fact were found in favor of the respondents. 
Upon review the case was affirmed by the Court of Ap­
peals, Eighth Circuit (345 F.2d 117).

The District Court found that the School District, act­
ing through its directors, had made a “prompt arid reason­
able start toward compliance with the Brown decision” 
and had proceeded with “all deliberate speed” , 232 F. 
Supp. at page 840.

The Court of Appeals, in its opinion affirming the 
action of the District Court, said:

“This determination is factually sound and was 
not induced by an erroneous concept of the control­
ling legal principles. The integration plan adopted by 
the local school board without compulsion, when 
evaluated in light of local conditions and adminis­
trative hurdles, convinces us that not only did the 
school board make a ‘prompt and reasonable start 
toward full compliance’, but that desegregation has 
in fact moved forward with ‘all deliberate speed’.” 345 
F.2d at p. 122. (Emphasis supplied).

It is respondents’ position that there are no issues in 
this case except factual issues, that is to say, the applica­
tion of undisputed facts to accepted legal principles.

In the first instance, the directors of the Special 
School District of Fort Smith have been allowed to exer­
cise their discretion in the adoption and application of a 
plan of desegregation. Thereafter, this plan and its good 
faith application was reviewed by the District Court, and 
that Court has exercised judicial discretion in determin­
ing the factual situation. Thereafter, the Court of Ap­
peals has found the facts to be that the District Court 
correctly exercised its judicial discretion in determining



4

the factual situation, and the Court of Appeals has ju­
dicially found and determined that the facts support the 
respondents’ position.

Petitioners are not now with this proceeding attempt­
ing to present any unique and unresolved legal question. 
To the contrary, petitioners seek only to have the facts 
reviewed by this Court.

AR G U M EN T

I.

The Fort Smith Plan Is the Product of the Exercise of 
a Discretion by the Board of Directors Based upon 

Experience and Its Provisions Are Reasonable.

A . The pace of desegregation as reviewed by the District 
Court and affirmed by the Court of Appeals is not in conflict 
with standards established by this Court and the other Circuits.

There is no conflict between the decision below and 
the decisions of this Court and decisions of other Circuit 
Courts.

The petitioners took this same position in the Court 
of Appeals and urged the same authorities as cited in their 
present argument. These authorities were explored by 
the Court of Appeals (R. 40a, 41a; 345 F.2d at p. 123) and 
the opinion of the Court in each case was discussed 
by the Court of Appeals. No language could be clearer than 
that contained in the opinion (R. 40a; 345 F.2d at p. 122) 
where the Court said:

“A cursory examination of these authorities re­
veals one unavoidable and most significant factual 
dissimilarity with the facts presented in this appeal. 
Among other important factual variances, every case 
involved situations where the school boards had either 
failed to act in good faith or after inordinate delays



5

had proposed a plan which was too slow and unduly 
protracted the process of desegregation. The courts 
were there confronted with proposed desegregation 
plans of the grade-a-year variety which were to com­
mence from 5 to 10 years after the Supreme Court’s 
first disposition of the Brown case in 1954.”

When petitioners urge the universally recognized 
principle that good faith is not measured by “ state of 
mind” but objectively by “ required action” (Petitioners’ 
Brief at page 15) they overlooked another equally well 
established guideline. This Court has recognized from 
the beginning that the duty and responsibility of com­
pliance rests initially upon the shoulders of the directors 
and administrators of the school system. It remains only 
a factual question to be reviewed by the Court as to 
whether or not this duty and responsibility has been ade­
quately undertaken and completed. The District Court 
inquired into the adequacy of the assumption and per­
formance of this responsibility by the District. In affirm­
ing the action of the District Court, the Court of Appeals 
recognized that in fulfilling this responsibility the direc­
tors must competently cope with administrative problems 
and that they must make an adequate start toward full 
desegregation as based upon and in the face of the attend­
ant local problems.

In other words, the District Court and the Court of 
Appeals have made a judicial determination of the facts 
which portray the administrative hurdles attendant upon 
the solution of the problem at the local level and in do­
ing so reviewed the undisputed testimony relative to the 
number and significance of those hurdles attendant upon 
a fair and adequate solution. As stated by the Court of 
Appeals:

“But appellants argue further that there was no 
showing of valid administrative problems justifying



6

prolonging of complete desegregation for four addi­
tional years. We do not so read the record. Both 
appellants and appellees were satisfied to rely mainly 
on the testimony of the Superintendent of Schools of 
the Special School District of Fort Smith. His testi­
mony in substance was that since the voluntary adop­
tion of the desegregation plan in 1956, the Board has 
continuously been confronted with administrative 
problems arising out of: (a) school population growth 
and inadequacy of buildings and other facilities; (b) 
mass shifting within the District of School population 
from the older sections of Fort Smith to new suburban 
areas; (c) the huge building program entailing an 
expenditure of approximately $10,000,000; and (d) 
the transition of all of the schools into a regular 6-3-3 
system. The Superintendent further stated that to 
require immediate desegregation of the four remain­
ing grades would give rise to additional administrative 
problems and would greatly hamper what has to date 
been an orderly desegregation of the schools. That the 
Superintendent was qualified to express the forego­
ing opinion can hardly be gainsaid. He had been in 
the Fort Smith school system for 24 years as a prin­
cipal, 4 years as assistant superintendent and 10 years 
as Superintendent. His uncontradicted testimony 
supports the conclusion that to compel immediate and 
complete integration would needlessly thwart the 
good faith efforts of the Board to accomplish de jure 
desegregation in a peaceful and orderly manner.” (Pe­
titioners’ Brief at pages 39a, 40a; 345 F.2d at p. 122).

B. The record does not indicate that the Lincoln School 
provides grossly inferior education.

Again the petitioners seek with this proceeding to 
have a review by this Court of facts which have been 
judicially determined by the Court of Appeals. When 
the petitioners urge the “undeniably inferior Lincoln High 
School” (Petitioners’ Brief at p. 17), they are urging upon 
this Court a question of fact which has been judicially 
determined adversely to this contention.



7

The facts with reference to this contention were 
thoroughly explored by the lower court and the follow­
ing language appears in the opinion of the Court of Ap­
peals:

“In support of their efforts to bring about full 
and immediate desegregation, appellants contend that 
Patricia Rogers and other Negro high school students 
similarly situated are subjected to an inferior as well 
as segregated education. More specifically, we are 
requested to direct the entry of an order permitting 
Patricia to transfer from Lincoln High School to North- 
side High School for the 1965-1966 school year in 
order that she may avail herself of an integrated edu­
cation and be permitted to obtain instruction in jour­
nalism, music, and German, which are unavailable at 
Lincoln. In regard to the alleged inferior education 
available to Negro students, the Superintendent testi­
fied without contradiction that the Lincoln High 
School facilities have been regularly improved; and 
there exists an equal apportionment of teachers per 
pupil throughout the three high schools; that the per 
pupil operating cost for Lincoln was greater than 
the largest white high school; and that ‘Lincoln High 
School has been accredited by the North Central As­
sociation since 1924, before that it was accredited by 
the Southern Association, and it meets fully the re­
quirements of the students under requirements of 
the North Central Association for full accreditation.’ 
Additionally, the Superintendent stated:

“ * * you try to step up a curriculum based
on the size and what the pupils request in the school. 
We have told all of our high schools, all three of 
them, that we would offer any course requested if 
there are as many as six students that want the course 
and we can find a teacher to teach it. Lincoln High 
School and Northside High School have been North 
Central accredited High Schools, the same length of 
time, I believe since 1924. The Southside High School 
is not accredited by the North Central Association at



8
*

the present time. Therefore the offerings in each 
school are based on what the students want in the 
school.’ ” (Petitioners’ Brief at pages 42a-44a, 345 
F.2d at pp. 123-4).

So, again this question raised by the petitioners here 
resolves itself into a predetermined question of fact.

C. The lower court’s decision is not in conflict with the 
text of the Civil Rights Act of 1964 or the regulations for its 
administration.

It is urged by petitioners that this court should take 
jurisdiction of this case on the basis that petitioners be­
lieve that the Court of Appeals’ decision frustrates en­
forcement of school desegregation as required by the Civil 
Rights Act of 1964 (42 U.S.C.A. Sec. 2000d).

We fail to see the adequacy and force of any argu­
ment that can be made on this score. Actually petitioners 
answer their own argument when they admit that the 
regulations under which the Civil Rights Act of 1964 are 
administered provide that:

“ * * * school boards are eligible for financial 
assistance if they are subject to a final court order 
of desegregation.” (Petitioners’ Brief at page 22).

So long as this is a regulation then it would appear that 
it is enforceable as a part of the body of the administra­
tive law of the Civil Rights Act of 1964.

II.

The Question of the Assignment of Teachers Without 
Regard to Race Has Not Been Finally Litigated 

in This Case.

We refer to the language of the Court of Appeals on 
the question of the disposition of the issue of the desegre­
gation of the teachers. It was recognized by the District



9

Court in the first instance and by the Court of Appeals 
that the desegregation of teachers is recognized as a part 
of the over-all desegregating process and that courts have 
been ordering districts to undertake teachers’ integra­
tion as a part of the total job of desegregating the schools. 
Respondents do not take issue with this pronouncement; 
they readily agree and have always agreed that in order 
to fairly and completely integrate the school system and 
to thus bring to full fruition the purpose and intent of 
the decisions that the teachers must be employed without 
regard to race or color. Respondents recognize and have 
recognized that it would be a discrimination against the 
pupils who have been integrated to deny them the right 
to challenge faculty segregation.

The District Court considered this question but re­
served it as a question that might become material and 
require consideration in a proper situation.

The Court of Appeals sanctioned and approved the 
District Court’s action in retaining jurisdiction of this 
question until such time as the matter was litigated by 
students who are attending integrated classes, reached in 
the orderly progress of the plan of integration. None such 
were parties in this case.

The Court of Appeals states:

“Seemingly, the Court was of the view that ap­
pellants were prematurely attacking the assignment 
of teachers for the reason that Patricia Rogers and 
others of her class are high school students who are 
attending grades not yet reached in the orderly prog­
ress of the plan of integration. We are in accord. 
Certainly if there is in fact discrimination being prac­
ticed in teacher selection, pupils who are directly af­
fected thereby, or the teachers themselves should be 
willing to intervene and seek a judicial determination 
of the question.



10

“Moreover, in view of the good faith efforts of 
the Board and other school authorities to bring about 
complete integration, we are persuaded to hold that 
they should be afforded the initial opportunity of cor­
recting the practice of employing teachers on a pro­
scribed discriminatory basis, if in fact that practice 
prevails. If the Board and other school authorities 
fail or refuse to recognize and discharge their re­
sponsibility in this regard, we are confident that the 
trial court on motion or application of proper par­
ties will accord the question prompt and effective 
consideration and will enter such order as the facts 
and circumstances justify and require.” (Petitioners’ 
Brief, page 46a; 345 F.2d 125).

We know of no decision, and our attention is not di­
rected to any decision by petitioners, that takes issue with 
this position.

CONCLUSION

It is the position of the respondents that there are no 
unique questions of law which are raised by this record 
and remain undecided, nor any conflicts with prior 
decisions of this Court, nor decisions of Courts of Appeal 
of other Circuits upon similar facts, and for the foregoing 
reasons it is respectfully submitted that the Petition for 
Writ of Certiorari should be denied.

Respectfully submitted,

John P. W oods 
John S. Daily 
Bruce H. Shaw

Merchants National Bank Building 
Fort Smith, Arkansas

Attorneys for Respondents



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