Jackson v. Marvell School District Reply Brief for Appellants

    *

IN THE UNITED STATES COURT OP 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 Prom The United States District Court 
Por The Eastern District of Arkansas, Eastern Division

REPLY BRIEF POR APPELLANTS

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER 
BURL C. ROTENDERRY 
1820 W. 13th Street 
Little Rock, Arkansas 7220

GEORGE HOWARD, JR.
329^ Main Street 
Pine Bluff, Arkansas

Attorneys for Appellants

r



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 Prom The United States District Court 
For The Eastern District of Arkansas, Eastern Division

REPLY BRIEF FOR APPELLANTS

VJhile Appellees* Brief only occasionally confronts 
the issues in this case, it is replete with omissions and distor­
tions of varying degrees. He file this Reply Brief to correct 
some of those errors, and to emphasize that acceptance of the 
argument profferred by the school district in this case would 
be contrary to more than a decade of constitutional adjudication.



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Misinterpretation of a case ordinarily merits no comment, 
but we confess to being completely confounded by appellees' descrip­
tion of Broussard v. Houston Independent School District* 395 F.2d 
817, rehearing en banc denied. 403 F.2d 34 (5th Cir. 1968) as 
having "sustained Houston's freedom-of-choice plan • . . (Ap­
pellees' Brief, p. 13). In denying rehearing, Judge Connally

wrote (403 F.2d at 34-35)•
As noted in the original opinion, this action was 
filed in the court below as a class action, in 
equity, to restrain the expenditure of what^then 
remained uncommitteed of the proceeds of a #59 
million bond issue for school construction and 
improvement. • . • In their petition for rehear­
ing plaintiffs contend that though the building 
program be complete, upon their request for 
"further relief" this Court should remand the 
action to the District Court to permit plaintiffs 
to seek an order as to how the new buildings 
may best be used to further and promote integra­
tion. But this action is not the usual school 
integration" case wherein the District Court is 
charged with the duty of retaining jurisdiction 
to shepherd the school district along its path 
from segregation to integration. As heretofore 
noted, such an action has been pending against 
this defendant, in the Southern District of 
Texas, for many years where all questions of 
this nature appropriately may be raised.

Indeed, the action to which Judge Connally referred was pending in
his own court I On July 23, 1969, after an extensive trial, Judge
Connally ruled that Houston must submit a new plan not based upon
freedom of choice. Ross v. Bckels. Civ. Ho. 10444 (S.D. Texas,

. 1/
July 23, 1969)(oral comments of Connally, J.).

1/ Appellees skip far too lightly over Broussard and United Spates 
v. Board of Educ. of Baldwin Countv. Georgia, Ho. 272ol v5th 

Cir., July 9, 1 9 ^ 9 ) . In both school districts Involved, there was 
extremely rigid residential segregation, which led the Court in

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Appellees persist in representing that we seek the impo­
sition of a "racial balance" and the elimination of all-Negro 
schools (See Appellees* Brief, pp. 12, 14-15, 19) • l;Je state again, 
as we did in our Brief (n. 27, pp. 21-22; see also, n. 24, p. 15), 
that appellants* objective is the eradication of the dual school 
system based on race. In a district with only two schools, the 
continued operation of one as an all-Negro institution, against a 
background of past state-imposed segregation, inescapably signals 
the failure to dismantle the dual system. In fact, appellants 
expert witness testified that there was no educational support for
the operation of more than one school in Marvell, and that the only

2/reason for maintaining two schools was racial.”"

Baldwin County to conclude that drawing geographic zones would not 
further the disestablishment of the dual system. There is no such 
rigid residential segregation throughout the Marvell School Dist­
rict, but zoning is inefficient and objectionable because of the 
extremely small size of the district and the consequent lack of 
educational opportunity which it entails. At any rate, neither 
case gave any sort of blanket approval to freedom of choice.
We also urge the Court to compare Judge Bell’s dissenting opinion 
in Jefferson II (cited in Appellees* Brief at p. 94 seealso n. 10_ 
at p. 19) with his opinion for the Court in Jefferson,III ~  United 
States v. Jefferson County nd. of Educ.. No. 27444 (5th Cir., June 
26, 1969)(slip opinion at pp. 5, 7):

It is clear that freedom of choice has not disestablished 
the dual school systems in Bessemer or Jefferson County. 
The district court was of the view that it would in time 
but this probability will not meet the test of Creen if 
there are other methods available which will disestablish 
the dual system now. . . .  2/ There was testimony that
white students would not attend formerly Negro schools. 
This is not a legal argument. Cf. Cooper v. Aaron. 358 
U.S. 1 (1958).

2/ Although the district had every opportunity over the course of 
*" two hearings in this matter to introduce such testimony as it 
desired and to make whatever it desired, the Brief seeks to bolster 
appellees’ arguments with newspaper and magazine references con­
cerned with other cities and other districts. See n. 5 infra.

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Jp

Appellees seek to excuse their failure to meet consti­
tutional requirements by pointing out that there will be Negro and 
white students on each of the three school sites they operated, 
admitting that there will be no Negroes attending Tate High School.

A high school is a basic educational unit.
When racially identifiable under freedom of 
choice it is not a unitized desegregated school 
even if children of the opposite race attend 
elementary school classes in the same building.

Moore v. Tangipahoa Parish School Bd.. ___ F. Supp. _ Civ.
No. 15556 (E.D. La., July 2, 1969)(Slip Opinion, p. 5).

. . .  (A) school composed of white classes and 
black classes is not desegregated. Students must 
be assigned to classes even as they must be assigned 
to schools, in a racially nondiscriminatory fashion 
and no classes may be racially identifiable.

Id. at 7.
Appellants are unable to accept any portion of the white

flight" argument advanced by appellees.
First, it cannot be said (Appellees’ Brief, p. 4) that

we "do not really challenge the factual proposition that any al- 
*

ternative method of student assignment in this district will 
result in the abandonment of the public schools by the white stu­
dents."*^ We have never addressed ourselves directly to this

2/ Appellees seek support for their position from the Report of the 
United States Civil Rights Commission (Appellees' Brief, p. 7)* 

The cited discussion of "tipping points" related to districts in 
which one or more schools developed an increasingly large black 
enrollment, leading white parents to feel they were being treated 
unfairly because the schools attended by their children "bore the 
brunt of integration." The Commission’s conclusions are fhr less 
susceptible of application to a unitary district in Marvell, Arkan­
sas which would operate only one twelve-grade school and thereby 
offer all of its enrolees an equal opportunity.

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Jr

speculation because (a) it is nothing more than speculation- and 
(b) it is irrelevant. If we were compelled to express our opinion 
we would say that we are not at all so sure as the appellees that 
establishing a unitary school system in Marvell, Arkansas will 
cause a mass exodus of whites from the district;-^ we are certain 
that a school board which was truly interested in the welfare of 
its students could provide the enlightened leadership to prevent 
this^  At any rate, it seems elementary to us that the public
school system can be preserved only by operating it in accordance

1/with the law of the land.

4/

4/ Of, United States v. Hinds County 3d. of Educ., No. 28030 (5th 
Cir., July 3, 19^9)(slip opinion at p. 7 JV

5/ The record of other districts is also of questionable relevance.
There is no certainty that the experience of one district will 

be repeated jjn any other. For example, when Alabama schools opened 
this year with substantial increases in integration, whites stayed 
away from classes in large numbers in only one district. See H.I. 
Times, Sept. 7, 1969, §1 P- 32.
6/ Appellees suggest that it would not be prejudice which would 

motivate white parents to withdraw their children from the 
schools, but an unwillingness to send white children to schools 
"where the dominant culture is so different from their own. Up- 
pellees* Brief, p. 10). (This is probably not true —  although 
the majority of students might be Negro, the dominant culture in 
any school today is a reflection of the dominant national culture 
white). But the Board never considered this an obstacle so long as 
Negro students were the ones who had to cross purported cultural 
lines.
j/ Appellees refer to Congressional statements of "national policy 

and to administrative announcements of a slowdown in school de­
segregation (Appellees* Brief, pp. 14-18) and accuse us of ignor-|( 
(ing) the foregoing executive and legislative pronouncements . . • 
Ignore them we do not, but we are firm that they are not the pole 
star of constitutional interpretation. This Court has long recog­
nized, and specifically in the context of school desegregation 
cases, that the judiciary, and not the executive or the legislative, 
is the expositor of the Constitution. Kemp v. Beasley. 352 F. d 
14, 18-19 (8th Cir. 1965).

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Second, we do not comprehend why the requirements of the 
Fourteenth Amendment to the Constitution of the United States should 
differ dependent upon whether a school district has a majority of 
white or black students* Yet this is exactly the implication of
appellees’ repeated entreaties for special consideration because

8/this is a majority-Negro school district.”
The position of appellees is different only in degree, not

in kind, from the position of the Little Rock School Board in 1958.
Instead of white resistance to any integration, we now have:

These parents are willing to have their children 
attend schools with (a few) Negroes, but they 
are not willing to expose their children to the 
consequences of being a minority in a school 
where the dominant culture is so different from 
their own.

(Appellees’ Brief, p. 10). Thus, this district is still unwilling 
to offer educational opportunity to Negro students except on its 
own terms -- percentage-wise or otherwise. And, as noted before, 
the same arguments were made to the United States Supreme Court in 
1968 and rejected by them. Rane.v v. Board of Uduc. of Could. 391 
U.S. 443 (1968); Monroe v. Board of Comm’rs of Jackson. Tennessee. 
391 U.S. 450 (1968); accord. Anthony v. liarshall County Bd. of 
Educ.. No. 26432,(5th Cir., April 15, 1969); United States v.
Hinds County Bd. of Educ.. supra: United States v. Jefferson County;

8/ " . . .  in spite of the fact that approximately 15% of the 
students in this rural school district are Negro, . . .  

(Appellees’ Brief, p. 2); " (i)t is an understatement to char­
acterize the problems of desegregating a predominantly Negro 
school district as delicate and difficult' (p. 5)•



Bd. of Educ.. supra: Walker v. County School Bd. of Brunswick 

County. No. 13,283 (4th Oir.t July 11, 1969).

Judicial integrity and preservation of the Constitution 
demand that the same arguments be rejected in this case.

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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