Jackson v. City of Lynchburg, VA School Board Appendix to Appellants' Brief

    IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 
NOS. 19746 £< 19797

CEINERS JACKSON, et al.,
Appellants,

vs.
MARVELL SCHOOL DISTRICT NO. 22, et al.,

Appellees.

EARLIS JACKSON, et al.,
Appellants,

vs.
MARVELL SCHOOL DISTRICT NO. 22, et al.,

Appellees.

Appeals From The United States District Court 
For The Eastern District of Arkansas, Eastern Division

BRIEF FOR APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER 
BURL C. ROTENBERRY 

18 20 W. 13th Street 
Little Rock, Arkansas 72202

GEORGE HOWARD, JR.
329*5 Main Street
Pine Bluff, Arkansas 71601

Attorneys for Appellants



Pa^e

Table of Cases ......................................  ii
Preliminary Statement ................................  iv
Issue Presented for Review ............................  1
Statement of the C a s e ................................  2
Argument

The Court Below Erred In Permitting This School
District To Continue To Use Free Choice On The
Ground That Immediate Conversion To A Unitary
System Might Result in The Withdrawal of White
Students From The Public Schools . . 15

Conclusion............................................. 27

INDEX

x



Page
Aaron v. Cooper, 257 F.2d 33 (8th Cir. 1958)............  17
Anthony v. Marshall County Bd. of Educ., No. 26432

(5th Cir., April 15, 1969)....................  18 :
Brown v. Board of Educ., 347 U.S. 483 (1954)............  2, 23
Cato v. Parham, 293 F. Supp. 1375 (E.D. Ark. 1968) . . . .  23
Clark v. Board of Educ. of Little Rock, 369 F.2d 661

(8th Cir. 1966) ..............................  24
Coppedge v. Franklin County Bd. of Educ., 404 F.2d

1177 (4th Cir. 1968)..........................  26
Dove v. Parham, 282 F.2d 256 (8th Cir. 1960)............  5
Dowell v. School Bd. of Oklahoma City, 244 F. Supp.

971 (W.D. Okla. 1965) ........................  19
Felder v. Harnett County Bd. of Educ., No. 12,894

(4th Cir., April 22, 1969)....................  26
Gaston County, North Carolina v. United States,

___ U.S. ___, 23 L.ed. 2d 309 (1969) ..........  5
Gilbert v. Hoisting & Portable Engineers, 237 Ore.

139, 390 P. 2d 320 (1964)......................  23
Green v. County School Bd. of New Kent County,

391 U.S. 430 (1968) ..........................  3, 8, 19
Hall v. St. Helena parish School Bd., No. 26450

(5th Cir., May 28, 1969)......................  20
Haney v. County Bd. of Educ. of Sevier County,

No. 19404 (8th Cir., May 9, 1969) ............  19, 20
Jackson v. Marvell School Dist. No. 22, 389 F.2d

740 (8th Cir. 1968) ..........................  2, 3, 21,
23, 24

Jackson Municipal Separate School Dist. v. Evers,
357 F. 2d 653 (5th Cir. 1966)..................  5

Kelley v. Altheimer, Arkansas School Dist. No. 22,
378 F. 2d 483 (8th Cir. 1967)..................  3, 5

Kelley v. Altheimer, Arkansas School Dist. No. 22,
297 F. Supp. 753 (E.D. Ark. 1969) ............  18, 19, 22

Table of Cases

ii



Page

McNeese v. Board of Educ., 373 U.S. 668 (1963)..........  15
Monroe v. Board of Comm'rs of Jackson, 391 U.S.

450 (1968)....................................  3, 18
Moore v. Tangipahoa Parish School Bd., Civ. No.

15556 (E.D. La., July 2, 1969)................  19
Newman v. Piggie park Enterprises, Inc., 390

U.S. 400 (1968) ..............................  23, 25
Raney v. Board of Educ. of Gould, 391 U.S. 443 (1968) . . '3, 18
Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th

Cir. 1951) .................................. 26
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) ........  25
Sprague v. Taconic Nat11 Bank, 307 U.S. 161 (1939) . . . .  23
Stell v. Savannah-Chatham Bd. of Educ., 318 F.2d

425 (5th Cir. 1963), 333 F.2d 55 (5th Cir.
1964), 387 F. 2d 486 (5th Cir. 1967) ..........  5

Thomas v. west Baton Rouge parish School Bd., civ.
No. 3208 (E.D. La., July 25, 1969)............  19

Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1965) . . .  9
United States v. Board of Educ. of Bessemer, 396

F.2d 44 (5th Cir. 1968) ......................  20
United States v. Choctaw County Bd. of Educ., No.

27297 (5th Cir., June 26, 1969) ..............  20
United States v. Hinds County Bd. of Educ., No.

28030 (5th Cir., July 3, 1969)................  18-19
United States v. Lincoln County Bd. of Educ., Civ.

No. 1400 (S.D. Ga., July 9, 1969) ............  5
Vaughn v. Atkinson, 369 U.S. 567 (1962) ................  23
Walker v. County School Bd. of Brunswick County, Va.,

No. 13,283 (4th Cir., July 11, 1969)..........  18



1
Preliminary Statement

These are appeals from the unreported orders of the 
United States District Court for the Eastern District of 
Arkansas, Eastern Division, Hon. Oren Harris, United States 
District Judge, entered April 15, 1969 and June 13, 1969.

iv

r>
H I



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 
NOS. 19746 & 19797

CEINERS JACKSON, et al.,
Appellants,

vs.
MARVELL SCHOOL DISTRICT NO. 22, et al.,

Appellees.

EARLIS JACKSON, et al.,

vs.
Appellants,

MARVELL SCHOOL DISTRICT NO. 22, et al.,
Appellees.

Appeals From The United States District Court 
For The Eastern District of Arkansas, Eastern Division

BRIEF FOR APPELLANTS 

Issue Presented For Review

Whether the District Court erred in rejecting a deseg­
regation plan which would immediately convert the Marvell public 
schools into a unitary nonracial school system, because of the 
possibility that white students might thereupon withdraw from 
the system.



Statement of the Case

This is not the first time that this Court has been
called upon to review the lack of progress of the Marvell School
District in eliminating its dual school system based on race. When
appellants commenced the first of these actions"^ August 17, 1966,
more than twelve years had passed since the decision in Brown v.
Board of Education, 347 U.S. 483 (1954) but the school district
had never voluntarily undertaken even the most minute step toward

2/converting to a unitary school system.— in 1968 this Court 
declined to rule out freedom of choice on the basis of the limited 
record before it but did require greater affirmative action by 
appellees to eliminate their dual system. Jackson v. Marvell 
School Dist. No. 22, 389 F.2d 740 (8th Cir. 1968).

During the pendency of the first appeal, the second
3/action was commenced. in that case, appellants sought to enjoin 

additional construction on the site of the (all-Negro) Tate High 
School by the district, on the grounds that such construction would 
perpetuate the dual school system based on race (Complaint in No. 
H-67-C-20, 55 II, XI-/)

1/ Ceiners Jackson, et al. v. Marvell School District No. 22, et al., civ. No. H-66-C-35 (E.D. Ark., E.D.).
2/ In 1965, the district agreed to allow free choice in grades 1-4 

during the 1965-66 school year in accordance with then current 
H.E.W. Guidelines in order to retain its federal funds. Jackson v 
Marvell School Dist. No, 22, No. 18762 (8th Cir.), Record, pp. 5-6,* 8—9 .
3/ Earlis Jackson, et al., v. Marvell School District No. 22, et al., Civ. No. H-67-C-20 (E.D. Ark., E.D.).
4/ On July 14, 1969, this Court granted appellants' motion to pro­ceed upon the original papers herein.
5/ The Complaint alternatively prayed, should construction be

-2-
/



Subsequent to the May 27, 1968 decisions of the United
States Supreme Court in Green v. County School Bd. of New Kent 
County, 391 U.S. 430; Monroe v. Board of Comm'rs of Jackson, 391 
U.S. 450; and Raney v. Board of Educ. of Gould, 391 U.S. 443, and 
after remand by this Court, Jackson v. Marvell School Dist. No. 22, 
supra, plaintiffs in the original action filed a Motion for Further 
Relief seeking to require that the district adopt and implement a 
plan of desegregation other than a freedom of choice plan (Motion 
for Further Relief, No. H-66-C-35). The two actions were consol­
idated at the August 6, 1968 hearing (Tr. I 4;-^ Order entered 
August 29, 1968, p. 2). This appeal is taken from the June 17 
order of the district court approving continued free choice in 
this school distict.

The district
Marvell School District No. 22 has operated under 

freedom-of-choice plans for four school years. The following 
table shows the results of the choice periods in those years:

permitted, for relief consistent with Kelley v. Altheimer, Arkansas 
School Dist, No. 22, 378 F.2d 483 (8th Cir. 1967). The request for 
injunction was subsequently withdrawn because construction had been 
completed, and appellants stated that they would rely on their 
prayer for alternative relief consistent with Kelley. (Letter from 
undersigned counsel to Hon. Oren Harris, U.S. District Judge, dated 
September 14, 1967, in No. H-67-C-20).
6/ Appellants have previously furnished the Court, at the time of 

filing their Motion for Summary Reversal in No. 19746, certified 
copies of the transcripts of the hearings below. The transcript of 
the August 6, 1968 hearing is in two volumes and will be referred 
to herein as Tr. I and Tr. II respectively; the one-volume trans­
cript of the March 31, 1969 hearing will be referred to as Tr. III.

-3-



Year

Total 
Negro 

Stu­
dents in 
District

Number of 
Negro Stu­
dents in 
"white" 
Schools

% of
Negro Stu­
dents in 
"white" 
Schools

Number of 
white Stu­
dents in 
All-Negro Schools

% of
white stu­
dents in 

All-Negro Schools
7/1965-66- 1,700 17 1.0 % 0 0.0 %
8/1966-67- 1, 700 116 6.8 % 0 0.0 %

1967-68 1,566 207 13.2 % 0 0.0 %
1968-69 1,616 205 12.7 % 0 0.0 %

9/1969-70- 1,548 215 13.9 % 36 6.6%

The district presently operates the predominantly white Marvell 
High School (opened in 1967-68) and Marvell Elementary School, 
the all-Negro Tate High and Elementary Schools, and the Turner 
School, a small, rural all-Negro elementary school 
Marvell High and Marvell Elementary are about two blocks apart 
and the Tate Schools are less than a mile away, also within the 
town of Marvell (Tr. Ill 40).

7/ Grades 1-4 offered free choice.
8/ Grades 1-6, 11-12 offered free choice.
9/ Based on choices exercised to May 16, 1969.
10/According to the May 22, 1969 Report of the district, Tate

Elementary School will have thirty-six white students enrolled 
during 1969-70; the Turner School will be closed and students who 
chose it permitted to attend Tate or Marvell Elementary.
11/During the school year 1965-66, the district operated the white 

Marvell Elementary and High schools on the present Marvell Elem­
entary site (transfer of the predominantly white high school grades 
to the newly constructed facility in 1967-68 left unused facilities 
in Marvell Elementary; see Answers to Interrogatories in No. H-67- 
C—20), the Negro Tate Elementary and High Schools on a single cam­
pus at the present location, and three small Negro elementary 
schools in rural locations. 389 F.2d at 742-43. One small all- 
Negro school was closed prior to the 1966-67 school year and another 
prior to the 1967-68 school year, leaving only Turner. (Answers to Interrogatories in No. H-67-C-20).

-4-



The Proceedings
Following the filing of the Motion for Further Relief

and consolidation of the two actions, an evidentiary hearing was
held on August 6, 1968. The district called its Superintendent
(Tr. I 6-107; Tr. II 3-24) and appellants called Dr. Myron Lieber- 

12/man—  as an expert witness. In general, the Superintendent 
defended the district's record under freedom of choice, on the 
grounds that every choice made had been honored, that in his 
judgment the majority in both the white and Negro communities 
favored free choice, that it was an educationally sound procedure, 
that forced interracial association in the classroom was not 
conducive to learning, that there was an achievement differential 
between Negro and white students in the district— ^ that made any 
plan but freedom of choice impossible, and that any plan other 
than freedom of choice would result in the desertion of the dis­
trict's white patrons and pupils.

12/ Dr. Lieberman testified as an expert witness for plaintiffs 
in Kelley v. Altheimer, Arkansas School Dist. No. 22, 378 F.2d 483 (8th Cir. 1967).

13/ To the extent that this is an accurate statement of fact it 
is the direct result of the inadequate segregated education 

offered Negro children by this district. For example, the Answers 
to Interrogatories in No. H-67-C-20 demonstrate that tie black 
schools in the district had lower sq. ft./pupil ratios, higher 
pupil/teacher ratios and higher pupil/bus route ratios than the 
white schools. This was not the ground upon which the district 
court sustained free choice, as he clearly could not have done.
Dove v. Parham, 282 F.2d 256 (8th Cir. 1960); Jackson Municipal 
Separate School Dist. v. Evers, 357 F.2d 653 (5th Cir. 1966);
Stell v. Savannah-Chatham Bd. of Educ., 318 F.2d 425 (5th Cir. 1963), 
333 F.2d 55 (5th Cir. 1964), 387 F.2d 486 (5th Cir. 1967); United 
States v. Lincoln County Bd. of Educ., Civ. No. 1400 (S.D. Ga.,
July 9, 1969); cf. Gaston County, North Carolina v. United States,
___ U.S. ___, 23 L.ed.2d 309 (1969) . The separate and duplicative
bus routes serving Tate and Marvell schools were redrawn by the 
district after a May, 1968 pretrial conference at which counsel 
displayed a map of the overlapping segregated routes.



Dr. Lieberman stated that his analysis and study of 
the district led him to conclude that the basic organization and 
operation of the district were dictated by racial considerations, 
that the duplication of facilities and inefficiency of operating 
two separate twelve-grade schools in a district this size was so 
devoid of educational purpose or justification that the rationale 
could only be racial, that freedom of choice would never work to 
eliminate the dual school system in this district, and that other 
means of converting to a unitary school system were readily avail­
able to the district. Specifically, Dr. Lieberman proposed pairing 
and grade restructuring so that all students, Negro and white, 
residing within the district, would attend the present Tate schools 
for the elementary grades; Marvell Elementary would serve as a 
junior high school; and the high school grades would be located
at the new Marvell High School. Dr. Lieberman felt that the

14/district could implement his plan in a few days— ■ and that it 
promised immediate conversion to a unitary system offering better 
education to all students of the district.

Although the district court agreed that freedom of
choice had shown itself worthless to break down the institutional
barriers of the segregated school system in Marvell, it rejected
Dr. Lieberman's estimate of the ease with which another plan
could be implemented, and announced that because so little time

15/remained before the opening of school for 19 68-69— ! free choice 

14/ Tr. II 44-46.
15/ At the May 3, 1968 pre-trial conference, the district court 

refused to set a trial date after appellants announced their intention to challenge the district's free choice plan, on the 
ground that cases raising the issue were pending before the United

-6-
1



would be permitted for another year:
Here we have an important school program 
in a transitional state at a time when 
our circuit has suggested this Court 
recognize that there should be some time 
and opportunity in this transitional 
period for the development of a consti­
tutional desegregation program. The 
thing that bothers me is just what the 
court itself recognized, that there are 
school boards and districts which simply 
do not come to the reality of developing 
the kind of a program that would be ac­
cepted and approved and would provide the 
objective which the Court said fourteen 
years ago that we must come to ultimately 
to do justice to all of those who are en­
titled to an equal opportunity for public 
education. So consequently the Circuit 
Court of Appeals and this Court has given 
an opportunity to this school district 
for compliance, and I for one was hopeful 
that the proposed plan for freedom-of- 
choice would prove to be effective. . . .
. . . If you've got something that doesn't
work then we better look for something 
else, and that is precisely what this Court 
is going to do.
It is quite obvious to me that the freedom- 
of-choice system is not working for this 
district. It is clear from the testimony 
and the record presented here that it will 
not work, that you are not going to resolve 
this problem with this kind of program. . . .
. . . I am therefore going to cancel and
disapprove your porposed desegregation 
plan of freedom-of-choice. . . .
. . . This is the 6th of August. To leave
the school district in that kind of a sus­
pended situation at this time would, in my 
judgment, be cruel and certainly unjustified. 
So the Court is going to permit the school 
district to proceed with the school program 
under the present arrangement beginning with 
the school system.

States Supreme Court. Yet no hearing was held between May 27, 1968, 
when those cases were decided adversely to free choice, and August 
6, 1968.

-7-



Then I am going to ask that by February the 
1st that you submit another type of plan be- 
cause l_ am saying that for this school district 
under the circumstances freedom-of-choice 
is out the window. There is no need to 
pursue a course that has already run out and is no good.

(Tr. II 110-11, 113, 114, 116 [emphasis supplied]). The district 
court thereafter entered its written order August 29, 1968,
allowing the district until February, 1969 to submit a plan other
, 16/ than freedom of choice.—

At this point, appellants were disappointed by the
district court's failure to require a unitary school system in
1968-69 but fully expected that compliance with the Constitution
would be achieved by 1969-70. Except for the effective date of

17/the district court's order,—  there was nothing to appeal, 
although nothing concrete had been achieved, either.

16/ The order provided, inter alia:
2. The Plan of Desegregation of Marvell 
School District No. 22 proposed on No­
vember 25, 1966, and amended April 9, 1968, 
is hereby disapproved as an unacceptable 
method for the operation of this school
on a constitutional basis as interpreted 
by the Supreme Court in Green v. County 
School Board of New Kent County (No. 695 
decided May 27, 1968).
3. The defendants are hereby ordered to 
propose an alternate plan for the conver­
sion of the school system to a unitary sys­
tem in accordance with the decisions of 
the Supreme Court made May 27, 1968, for 
all students in attendance, and such plan 
shall be presented to the Court on or be­
fore E’ebruary 1, 19 69. Upon the filing
of said plan with the Court and after due 
notice, a hearing will be held at a day 
certain to be determined by the Court.

(Order entered August 29, 1968, p. 2) .
17/ Compare Kelley v. Altheimer, Arkansas School Dist. No. 22,

-8-



Appellees' "Report" filed February 1, 1969, however, 
failed to comply with the district court's direction. it stated 
that freedom of choice is the only feasible procedure in the 
assignment of students in this system; there is no feasible al­
ternative" (Report of Defendants dated January 31, 1969, p. 1). 
Appellants filed a Motion February 21 opposing continued free 
choice and praying that the district be given five days in which 
to submit a new plan, failing which a receiver be appointed by 
the court to operate the schools in accordance with the Constitu-
4. • Wtion. The district court scheduled a hearing March 31, 1969.

Appellees presented testimony by the Superintendent 
(Tr. Ill 6-48), the Mayor of Marvell (Tr. ill 48-66) and two 
Negro schoolteachers employed by the district (Tr. Ill 66-87). The 
Superintendent testified that the District had rejected alter­
natives other than freedom of choice because while in each instance 
they would achieve total integration and conversion to a unitary 
system, a withdrawal of white students from the Marvell public 
schools was anticipated:

Q. But really, I just want to captalize [sic] 
this, you are making your request for ad­
ditional time, and your request for per­
mission to continue with freedom of choice 
primarily because of the disproportions of 
blacks to whites in the school district, 
is that correct. That is to say that you 
have too many Negroes in the school system 
and too few whites to make integration

8th Cir. No. 19419 (Motion for Summary Reversal denied September 16, 1968) .
18/ Cf. Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1965).

-9-

/ !



attractive to white parents and their children.
A. in one immediate shot?
Q. Yes.
A. Yes. The school is based on acceptance 

of the people in that community. if you 
are going to destroy or chase people out 
and cause them to abandon their school, 
then the responsibility of the local 
people is to keep their schools for the students.

(Tr. Ill 22-23). See also, Tr. Ill 19-20. 26-27, 30-31; cf. Tr
Ill 39. Both the Superintendent and the Mayor explained the "new 
approach" to freedom of choice which they felt the district was 
proposing, and in which the city government was apparently 
cooperating efforts by the school district to encourage white
parents to choose . . 19/all-Negro schools. The new approach did not
promise immediate or speedy conversion to a unitary system;

Q. Is it fair to say that if you have not 
been able to get white pupils to transfer 
to the black schools under the freedom of 
choice, in any numbers anyway, to transfer 
to the black schools this next year?

A. That is something that I would be guessinq at.
Q. I understand that.
A. In any great numbers?
Q. Yes.
A. I do not believe that the first shot of 

integrating a school is going to be 
made with any great degree of enthusiasm.

19/ Apparently the district was satisfied with the rate of choice 
of white schools by Negro students, even though that figure 

 ̂ static at less than 14%. (The increases between 1965-66 and 
967-68 are misleading. The first year students in all grades were offered free choice was 1967-68. See p. 4 supra.)

-10-

/ T! 1



Q. So if any white students accepted your
offer or invitation it would be token more 
or less, would it not, a few white pupils?

A. I think the first step, yes, sir, would be 
to get a few.

Q. How long do you propose, in case the court 
grants your request, to operate under the 
freedom-of-choice procedure, or the 
solicitation procedure?

A. Well, of course, we feel like if the begin­
ning is made that that foundation could 
be built on.

(Tr. Ill 17-18).

The two Negro schoolteachers, employees of the district, 
called by appellees, testified that from their knowledge and 
experience as well as personal preference, freedom of choice was 
a better method of desegregation than forced association through 
pairing or zoning. They opined that the majority of the Negroes 
in the Marvell school district favored free choice.

Appellants presented no testimony but took the position
that white reluctance or resistance was irrelevant and that the
district had not met its burden of demonstrating that free choice
was an effective means of converting to a unitary system. The
district court recognized that the situation in March was unchanged
from the situation in August:

. . . However, the school district is
still operating at this time a state- 
imposed dual system. No progress has 
been noted in the disestablishing of 
the Negro school as such. . . .

(Tr. II 101).

-11-



But the court now reversed its earlier ruling to hold
that this new variant of freedom of choice should be given an

20/opportunity-- to prove itself:
There were many of us in the Congress 
at the time [May 17, 1954] who felt 
that the [Supreme] court arbitrarily 
went way out in left field to change 
the basic law which the Supreme Court 
had enunciated in 1896. . . .
. . . I have made it very clear that
as long as those who have the respon­
sibility will undertake to bring about 
compliance, it may be the impact is 
greater on some than on others, but as 
long as there can be shown an effort 
towards bringing about compliance with 
the basic constitutional requirements,
I have great compassion and sympathy 
and I am going to do what I can as the 
court to assist the leadership and encouragement towards a constitutionally 
operated system. . . . When it is
apparent that there is no real effort 
being made to bring about better methods 
and means of compliance, this court is 
directed to act with this kind of 
situation. . . .
. . . I want to compliment those who
have the responsibility in this diffi­
cult problem. I can see a decidedly 
changed attitude of the people through­
out the school district who have children 
and interested in their education . . . .
Of course, the best solution, if it could 
be done, would be to have an all high 
school where everyone would be assigned and 
an all elementary school. . . .
From the testimony, it is apparent that 
through efforts of the mayor, members of 
the city council and other leaders in the 
school district, the novel approach proposed 
might provide a solution of this most 
sensitive problem.

20/ Years?

-12-



So since there appears to be a good-faith 
effort in the proposal and the court being 
persuaded that with the proper guidance 
and leadership and understanding, patience 
and tolerance, real progress can be realized, 
I am going to give the district an oppor­
tunity. . . .
I am going to modify my previous ruling 
in which I disapproved the continuation of 
freedom of choice in the operation of the 
schools of this district, at least for the 
time being, in an effort to see just how 
the proposal of the district will now work.

If, from the reports, no progress is indi­
cated and there is no prospects of achieving 
a constitutionally operated school system, 
the court will have to take notice and act 
accordingly. After the results are reported 
about May 15 and should it become necessary 
for the court to consider this problem in 
a different light, the parties will be given 
another opportunity to be heard. . . .
Now the court is going to approve this pro­
cedure at the risk of being reversed by the 
Circuit Court of Appeals. . . .

(Tr. Ill 99-101, 105-09)[emphasis supplied]. Accordingly, the
district court April 15, 1969 entered its order requiring the
district to hold a special choice period between April 15 and
May 15, 1969, and to report the results thereof to the district
court on or before May 22, 1969, after which time the court would

21/pass upon the continued use of freedom of choice.— 1

21/ April 24, 1969, appellants filed a Notice of Appeal from this 
order, which was docketed as No. 19,746. Appellants filed a 

Motion for Summary Reversal on May 17, 1969, which was denied June 
6 "without prejudice to renew after the filing of any additional 
order as contemplated in the District Court's order of April 15, 
1969."

-13-



May 22, 1969, appellees filed a Report with the district 
court which indicated the following results of the special choice
period:

School
Number 

white stu- 
dents choosing

Number 
Negro stu- 

dents choosing
Number faculty 
bers of minority 
race assigned

Marvell Elementary 251 117 0
Marvell High 261 98 1
Tate Elementary 36 660 4-2/3
Tate High 0 628 2-2/3

22/Turner Elementary-- 0 45 0

Total Number of Negro students choosing . . .
Total Number of white students choosing . . .
No. of Negro students choosing "white"

schools ..............................
No. of white students choosing all-

Negro schools ........................
% of Negro students in "white" schools . . .
% of white students in all-Negro schools . . 
% of Negro students in all-Negro schools . .

1548
548
215
36
13.9 % 
6.6 % 

43.5 %

Without further hearing, the district court entered an order 
approving the use of freedom of choice for 1969-70 because it 
would "produce the maximum degree of desegregation possible at this 
time when compared to the reasonably predictable results of other 
alternatives." June 17, 1969, appellants filed Notice of Appeal.-^/

22/ The school district proposed to close Turner and offer its 
Negro students a second choice between Tate Elementary and 

Marvell Elementary Schools.
23/ The appeal was docketed as No. 19797. June 26, 1969, appel­

lants filed a Motion to Consolidate Nos. 19746 and 19797, to 
Proceed Upon the Original Papers, and for Summary Reversal. On 
July 14, 1969, this Court denied summary reversal and remand, but 
directed that the matter be set for oral argument and submission 
at the September, 1969 session, and established an accelerated briefing schedule.

-14



ARGUMENT

The Court Below Erred In Permitting This 
School District To Continue To Use Free 
Choice On The Ground That Immediate 
Conversion To A Unitary System Might 
Result in The Withdrawal of White Students 

From The Public Schools

Appellants' chagrin at the present status of the Marvell
School District No. 22 can hardly be described. Three years
after they first filed suit, the Marvell schools will be opening
under the same inefficient and discriminatory-^/ freedom of choice
plan in 1969-70, with the same racially identifiable black and
white schools staffed by racially identifiable faculties. Over a
year after the Supreme Court of the United States declared that
free choice plans were not constitutional means of pupil assignment
in New Kent County, Virginia, where only 15% of the Negro school-
children attended integrated schools, or in Gould, Arkansas, where
less than 15% attended integrated schools, the court below approved
continued free choice in the district despite the evidence that,

25/at best, 13.9% of the district's Negro students would attend

24/ It is habitual for school board counsel in these cases to main­
tain that there has been honest and nondiscriminatory admini­

stration of the free choice plan by the district. That is not the 
sense in which we use the term here. We refer rather to that inher­
ent characteristic of freedom of choice which places the burden 
upon Negroes to bring about the conversion to a unitary nonracial 
school system. Under free choice, Negro schoolchildren must 
shoulder that burden despite the indignity of racially identifiable 
schools. These children also find themselves isolated by the 
district's failure to take steps now to create the unitary school 
system which it would have established but for racial discrimination 
To maintain that the school district's obligation ends with mechan­
ical granting of all choices looks back to the concept of exhaustion 
of administrative remedies, cf. McNeese v. Board of Educ., 373 U.S. 
668 (1963), and ignores the close relationship between the dual 
racial system of education and the "peculiar institution" outlawed by the Thirteenth Amendment. See, Blaustein, A. & Zangrando, R., ed 
Civil Rights and the American Negro (1968) 180-322.

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formerly all-white schools, and 6.6% of the district's white 
students will attend a formerly all-Negro school. And finally, 
appellants have seen their efforts of a year ago, which seemed 
close to fruition when the district court required submission of 
a new plan, stand for naught as the district court yielded to 
the repeated entreaties of the school district not to upset the 
whites in the district.

To make matters worse, there is not even the prospect 
that the regime approved by the district court will result in a 
unitary system in the foreseeable future. To the contrary, 
appellees have never maintained that it will, and the district 
court has no illusions:

Q. How long do you propose, in case 
the court grants your request, to 
operate under freedom-of-choice 
procedure, or the solicitation 
procedure ?

A. Well, of course, we feel like if 
the beginning is made that that 
foundation could be built on.

(Superintendent Cowsert)(Tr. Ill 18).
. . . of course, the best solution, if
it could be done, would be to have an 
all [-district] high school where everyone

25/ The district's 1969-70 estimates are based on choice forms
returned as of May 15, 1969. The table attached to the May 22, 

1969 Report shows some 48 Negro students, exclusive of graduating 
seniors, who attended the all-Negro Tate and Turner Schools last 
year, had not returned their forms. Since the percentage of Negro 
children in formerly all-white schools has been stable (extrapola­
ting from the figures for years when free choice did not extend to 
all grades), it seems highly unlikely that the choices of these 48 
will raise the percentage this year significantly, if at all. It 
is of course unlikely that the Negro students who chose the Turner 
School will on their second choice elect the predominantly white 
Marvell Elementary School.

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would be assigned and an all [-district]
elementary school. . . .

(Judge Harris)(Tr. Ill 105-06). Free choice was approved not 
because it would work, much less because it could work most 
effectively of any plan suggested, but because the district 
raised the specter of "white flight" to delay realization of 
appellants' constitutional rights.

Q. But really, I just want to captalize [sic] 
this, you are making your request for ad­
ditional time, and your request for per­
mission to continue with freedom of choice 
primarily because of the disproportions of 
blacks to whites in the school district, is 
that correct. That is to say that you have 
too many Negroes in the school system and 
too few whites to make integration attrac­
tive to white parents and their children.

A. In one immediate shot?
Q. Yes.
A. Yes. The school is based on acceptance of 

the people in the community. If you are 
going to destroy or chase people out and 
cause them to abandon their school, then 
the responsibility of the local people is 
to keep their schools for the students.

(Tr. Ill 22-23). See also, Tr. Ill 19-20, 26-27, 30-31; cf. Tr.
Ill 39; Response to Motion for Permission to Appeal Upon the 
Original papers and to Consolidate Appeals, and in Opposition to 
Motion for Summary Reversal, p . 5.

White hostility has never been accepted by the federal 
courts as a ground for delaying the implementation of constitu­
tional rights. This Court early held that such rights were para­
mount. Aaron v. Cooper, 257 F.2d 33 (8th Cir. 1958). What is so 
disheartening about the district court's action in this case is 
that the same arguments, in the same context of free choice plans, 
were made to and rejected by the Supreme Court of the United

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States in Raney v. Board of Educ. of Gould, supra, and in Monroe 
v. Board of Comm'rs of Jackson, supra, 391 U.S. at 459:

We are frankly told in the Brief that 
without the transfer option it is 
apprehended that white students will 
flee the school system altogether.
"But it should go without saying that 
the vitality of these constitutional 
principles cannot be allowed to yield 
simply because of disagreement with 
them." Brown II at 300.

Accord, Anthony v. Marshall County Bd. of Educ., No. 26432 (5th
Cir., April 15, 1969); Walker v. County School Bd. of Brunswick
County, Va., No. 13,283 (4th Cir., July 11, 1969); Kelley v.
Altheimer, Arkansas School Dist. No. 22, 297 F. Supp. 753, 758
(E.D. Ark. 1969). "White flight" is an insidious argument. Once
accepted, it can be used as a sort of perpetual procrastinator of

26/constitutional rights. If whites have not learned to accept
the idea of integration between 1954 and 1969, what prospect is 
there that they will be any more receptive by 1984? (Instructive 
in this regard is the failure of this district to act between 
1954 and 1965). Furthermore, it is an extremely slippery concept, 
difficult to either prove or disprove. It is baldly asserted by 
school administrators who desire to maintain free choice, but it 
remains a speculative fancy. It was recently rejected by the 
United States Court of Appeals for the Fifth Circuit even when 
sought to be supported by "impartial public opinion surveys." 
United States v. Hinds County Bd. of Educ., No. 28030 (5th Cir.,

26/ The same argument was proffered by the El Dorado School District 
and accepted by the same district judge, to excuse that system's 

failure to eliminate its segregated elementary schools. See Kemp 
v. Beasley, No. 19782, pending in this Court.

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July 3, 1969), preliminary slip opinion at pp. 6-8. Finally, as 
this Court has recently emphasized, the constitutional right to 
equal protection of the laws is not subject to the vote. Haney 
v. County Bd. of Educ. of Sevier County, No. 19404 (8th Cir., May 
9, 1969), slip opinion at pp. 9-10. This principle adheres whether 
the vote is with the ballot or with the body, by a change of residence.

The decision below is equally unsupportable on any 
other grounds. It is directly contrary to Green because it rejects 
what even the court below recognized (Tr. Ill 105-06) to be the 
most effective plan to eradicate the dual system based on race.
The appellees had more than sufficient opportunity to develop 
their own plan to accomplish that purpose. When they did not, 
the district court should have entered its own plan, or that 
recommended by appellants' expert witness. See Moore v.
Tangipahoa Parish School Bd., Civ. No. 15556 (E.D. La., July 2,
1969); Thomas v. West Baton Rouge parish School Bd., Civ. No.
3208 (E.D. La., July 25, 1969); Kelley v. Altheimer, Arkansas 
School Dist. No. 22, 297 F. Supp. 753 (E.D. Ark. 1969); cf,
Dowe11 v. School Bd. of Oklahoma City, 244 F. Supp. 971, 972 (W.D.
Okla. 1965).

Appellees are bound to argue that free choice is 
resulting in acceptable progress towards a unitary system in 
this district, pointing to the 1.2% increase in Negroes attending 
white schools this year, and the 6.6% white students who chose 
the Negro elementary school; and representing that all Negroes 
at Tate Elementary will be attending an "integrated school" next 
year. Even under this view of the facts, 43.5% of the Negro

19-



students in this district will continue to attend a segregated, 
all-Negro school.

But this Court has recently said that "the time for 
transition has now passed and that these problems should have 
been worked out long ago." Haney v. County Bd. of Educ. of Sevier 
County, supra, slip opinion at p. 11. Another Circuit has held, 
"As a matter of law, there must be student desegregation now, 
not 10 per cent in 1968-69, 20 per cent in 1969-70, and so on 
until desegregation eventually is effected," United States v. 
Choctaw County Bd. of Educ., No. 27297 (5th Cir., June 26, 1969), 
slip opinion at p. 9. The district court accepted such a schedule 
because it erroneously concluded that good faith vel non satisfied 
the Constitution:

. . . I have made it very clear that
as long as those who have the respon­
sibility will undertake to bring about 
compliance, it may be the impact is 
greater on some than others, but as 
long as there can be shown an effort 
towards bringing about compliance with 
the basic constitutional requirements 
I have great compassion and sympathy 
and I am going to do what I can as the 
court to assist the leadership and 
encouragement towards a constitutionally 
operated system.

(Tr. Ill 100-01).

"At this very, very late date in the glacial movement 
toward school racial integration, it should no longer be an 
issue of good faith," United States v. Board of Educ. of Bessemer, 
396 F.2d 44, 49 (5th Cir. 1968); accord, Hall v. St. Helena 
Parish School Bd., No. 26450 (5th Cir., May 28, 1969), slip

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opinion at p. 16. Cf. Kemp v. Beasley, 389 F.2d 178, 185 n.10 
(8th Cir. 1968) and accompanying text. At any rate, the record 
here completely belies any claim of good faith. Between 1954 
and 1965 the district failed to make a single move to eliminate 
segregation. It did so only when prodded by H.E.W. in 1965. It 
then withdrew in 1966 rather than substantially dismantle its 
dual system, and whatever further measures have been effected are 
due to the pressure of appellants and court orders. The district 
waited until nine days before the last hearing in this matter —  
well after it proposed on February 1 to continue free choice —  
to send out the letter to white parents soliciting choices of the 
Tate Schools (Tr. Ill 9). Even then, as noted, the response was 
uninspiring. Furthermore, the district very clearly has acted 
in' bad faith with regard to faculty desegregation. Despite this 
Court's instruction on February 9, 1968 that "the Board should 
be required to take affirmative action to (1) encourage voluntary 
transfers . . . (2) assign members of the faculty and staff from
one school to another," Jackson v. Marvell School Dist. No. 22, 
supra at 745, no such teacher assignments have ever been made 
"against their wishes" (Tr. Ill 13).

This Court should require the Marvell district to imple­
ment a unitary system now. 27/ There is in this record a plan for

27/ Contrary to appellees' representations, appellants' complaint
is not the lack of racial balance in the Marvell public schools. 

Our dissatisfaction lies with the continued operation of a dual 
school system in Marvell, which freedom of choice shows no prospect 
of eliminating in the foreseeable future. We do contend that the 
lack of substantial integration in the classes of this district 
demonstrates the futility of freedom of choice, and reflects the 
continued existence of the dual system based on race. We seek the

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the operation of the Marvell public schools on a unitary nonracial 
basis which the district court recognized to be the optimal plan. 
It consists of grade reorganization and pairing so that all of 
the district's pupils in a particular grade are assigned to the 
same attendance center. Under this plan, faculty desegregation 
would take care of itself. So would desegregation of the other 
aspects of the educational program. See Kelley v. Altheimer, Ark­
ansas School Dist. No. 22, 378 F.2d 483 (8th Cir. 1967).

The district court should be specifically instructed to 
require implementation of this plan on remand.

Attorneys' Fees

Appellants submit that this district's obstinacy as 
manifested on this record makes an award of counsel fees neces­
sary. We recognize that no statute explicitly authorizes fees 
in a case of this nature. But it is well established that the 
federal courts have equitable power to award attorneys' fees

institution of a unitary nonracial system of public education; what 
that means can be very simply stated: The district should be
operated, within the limitation of its present physical facilities, 
as nearly as possible as it would be operated had racial discrim­
ination never been a factor. in this small district it is obvious 
beyond any question that, but for race, two twelve-grade schools 
within several blocks of each other in the district's largest 
community would never have been established. This was the opinion 
of appellants' expert witness. The best remedy is to convert to a 
single school system, for it is also apparent that were all the 
students in the district of the same race, there would be but one 
school facility for each grade.

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/ ?1



in appropriate cases. See Vaughn v. Atkinson, 369 U.S. 567 
(1962); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); 
Newman v. Piggie park Enterprises, Inc., 390 U.S. 400, 402 n.4 
(1968). This power has been exercised in school desegregation 
cases. E.g., Cato v. Parham, 293 F. Supp. 1375 (E.D. Ark. 1968).

The main purpose of the American rule generally 
disallowing counsel fees is to avoid discouraging use of the 
courts for the resolution of bona fide disputes; however, this 
purpose is not served by a trial of the issues "where the law 
is clear and the facts free from ambiguity." Comment, 77 Harv.
L. Rev. 1135, 1138 (1964). In a case like the instant one, 
forcing the plaintiffs below to sue to enforce their rights under 
"clear facts and strong recent precedent seems an abuse of the 
remedial system." Ibid..

This proceeding is private in form only the plain­
tiffs acted as "private attorneys general" in vindicating the 
rights of the class and in furthering the public policy of the 
nation of eliminating racial discrimination in the public schools 
Cf. Newman v. piggie park Enterprises, Inc., supra.

This appeal would not have been required had the 
district complied as directed by the district court on August 
29, 1968. Neither the appeal nor the trial below should have 
been necessary at all. The mandate of Brown and Green is all 
too clear. Negro citizens should not be forced to resort to 
the courts for protection, bearing the "constant and crushing

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expense of enforcing their constitutionally accorded rights." 
Clark v. Board of Educ. of Little Rock, 369 F.2d 661, 671 (8th 
Cir. 1966).

As early as Brown II and most recently in Green, 
the Supreme Court reiterated that the burden is on the state 
and indirectly the local boards to initiate, develop and 
implement plans disestablishing prior state-imposed segregation. 
In this case a dual school system has been maintained for some 
15 years in flagrant violation of the Constitution. It should 
not have been necessary for Negro plaintiffs to bring legal 
action to obtain its dissolution. That burden should have been 
assumed by the State through its agent, the School Board. Only 
the award of substantial counsel fees, based upon the substantial 
like sums expended from public funds in the attempt to preserve 
the dual system, will prod unwilling state officials to assume, 
at long last, their constitutional obligations by initiating, 
without awaiting suit by Negroes, the requisite transitions to 
unitary nonracial systems.

The time has come for this Court to make it clear to 
recalcitrant school boards that their constitutional obligations 
do not depend in each and every instance on specific orders 
from the courts. The history of school desegregation in this 
Circuit is a painful one. Again and again this Court has been 
required to consider cases, such as this one, where the law and 
the facts are perfectly clear but where the school board simply 
will not budge without a court order. This situation is no 
longer tolerable. it puts the burden of expensive litigation

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on the Negro schoolchildren and their lawyers. The rights of 
the schoolchildren are not vindicated unless attorneys or legal 
service organizations are available to serve without fee and 
subsidize the expenses of l i t i g a t i o n / There will inevitably 
be many cases where there are no attorneys in a position to 
exercise the diligence essential to protecting the rights of 
the children. The only just solution is to impose the expense 
of unnecessary desegregation litigation on the party causing the 
expense —  the recalcitrant school board —  and to reward the 
"private attorney general" (Newman, supra, 393 U.S. at 402) for

28/ Civil rights cases ordinarily do not generate legal fees, 
contingent or otherwise. See generally, on problems of 

representation in civil rights cases, Sanders v. Russell, 401 
F.2d 241 (5th Cir. 1968). As to representation by legal service 
organizations, Senator Hart made the following comments on the 
counsel fees provision of the Fair Housing Act of 1968:

Frequently indigent plaintiffs are 
represented by legal associations, acting 
as "private attorneys general" in the 
vindication of important constitutional 
and statutorily created rights. it would 
be most anomalous if courts were per­
mitted to deny these costs, fees, and 
damages to an obviously indigent plain­
tiff, simply because he was represented 
by a legal association. I think it 
should be clearly understood that this 
representation in no way limits a 
plaintiff's right of recovery.

114 Cong. Rec. S2308 (daily ed., March 6, 1968).
See also, Sanders v. Russell, supra, at 244 n.5.

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performing the public function of eradicating unconstitutional 
discrimination in the public schools. This would also serve
the salutary purposes of inducing the school board to live up 
to its clear obligations and of removing unnecessary litigation 
from the courts. What is needed here is an added sanction 
imposed against unnecessary litigation occasioned by clearly 
unconstitutional conduct. What is needed is an effective deter— 

to the recalcitrance and obstinate refusal to recognize that 
court decrees mean what they say revealed by this record. We 
believe that the imposition of attorneys' fees will go a long way 
toward meeting those needs.

Finally, for the same reasons, this Court should award 
counsel fees on the appeal. Cf. Gilbert v. Hoising & Portable 
Engineers, 23[7 Ore. 139, 390 P.2d 320 (1964) ; Coppedge v. Franklin 
County Bd. of Educ., 404 F.2d 1177 (4th Cir. 1968); but see,
Felder v. Harnett County Bd. of Educ., No. 12,894 (4th Cir.,
April 22, 1969).

29/ Awarding counsel fees to encourage "public" litigation by
private parties is an accepted device. For example, in Oregon, 

union members who succeed in suing union officers guilty of wrong­
doing are entitled to counsel fees both at the trial level and on 
appeal, because they are protecting an interest of the general public

If those who wish to preserve the internal demo­
cracy of the union are required to pay out of their own pockets the cost of employing counsel, they are 
not apt to take legal action to correct the abuse.
. . . The allowance of attorneys' fees both in the
trial court and on appeal will tend to encourage 
union members to bring into court their complaints 
of union mis-management and thus the public interest 
as well as the interest of the union will be served.

Gilbert v. Hoidinq & Portable Engineers, 237 Ore. 139, 390 P.2d 
320 (1964) . See also Rolax v. Atlantic Coast Line R R . 186 F 2d 473 (4th Cir. 1951). ' --

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CONCLUSION

For all of the above reasons, the order and judgment
of the district court should be reversed, and the cause remanded 
with instructions to require thfe implementation at the earliest 
possible moment of the desegregation plan proposed by appellants' 
expert witness at the August 6, 1968 hearing of this cause, and 
substantial attorneys' fees should be awarded to appellants as 
part of their costs in this Court; the district court should be 
further instructed to award plaintiffs-appellants reasonable 
attorneys' fees. Appellants further pray that this Court award 
them their costs, and for such other relief as to this Court may 
appear appropriate and just.

Respectfully submitted

JACK GREENBERG 
NORMAN J. CHACHKIN

10 Columbus Circle
New York, New York 10019

JOHN W. WALKER 
BURL C. ROTENBERRY

1820 W. 13th Street 
Little Rock, Arkansas 72202

GEORGE HOWARD, JR.
329% Main Street
Pine Bluff, Arkansas 71601

Attorneys for Appellants

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