Georgia v. Rachel Brief for Petitioner

    BRIEF FOR APPELLANTS AND JOINT APPENDIX.

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

No. 14,130.

CHARLES L. BROWN, INFANT, BY ARTHUR BOUSER, 
HIS STEPFATHER AND NEXT FRIEND,

ET AL., APPELLANTS,
VS.

J. W. RAMSEY, SUPERINTENDENT OF SCHOOLS, 
ET AL., APPELLEES.

a p p e a l  f r o m  th e  d ist r ic t  c o u r t  of  th e  u n it e d  s t a t e s

FOR THE WESTERN DISTRICT OF ARKANSAS,
FORT SMITH DIVISION.

J, R o b e r t  B o o k er ,
Century Building,
Little Rock, Arkansas,

U. S im p s o n  T a t e ,
1718 Jackson Street, 
Dallas, Texas,

Counsel for Appellants,



SUBJECT INDEX

Jurisdictional Statement-------------------------------------------  1
Statement of Case__________________________________  3
Statement of Errors_______________________________  4
Points Relied Upon in Argument____________________  6
Argument--------------  8

I. Plaintiffs were entitled to a summary judgment 
of June 13, 1949, when their motion for sum­
mary judgment was heard by the court------------  8

II. The Fort Smith Junior College was established 
as a part of the Fort Smith public school sys­
tem and has been operated and maintained since 
its establishment out of public funds---------------  9

III. The plaintiffs and others similarly situated on
whose behalf they sued have been discriminated 
against by defendants in courses offered at the 
Lincoln High School for Negroes as compared 
to those offered in the Junior and Senior High 
Schools and the Junior College for white 
scholastics___________________________________  15

IV. The plaintiffs and those similarly situated on
whose behalf they sued have been discriminated 
against in the per capita expenditures made in 
capital invested in lands, buildings and equip­
ment for educational purposes, and in operat­
ing expenses of public schools in the district-----  25



II Index

T a b le , of  C ase s

American Insurance Co. vs. Gentile Bros., 109 F. 2d
732 _____________________________________________  8

Blood vs. Fleming, 161 F. 2d 292------------------------  9
Creel vs. Lone Star Defense Corp., 171 F. 2d 964--------- 8
Engle vs. Aetna Life Insurance Co., 139 F. 2d 469------ 9
Fletcher vs. Kris, 120 F. 2d 809--------------------------------  9
Gaines vs. Canada, 59 S. Ct. 232------------------------------ 19, 21
Gassifier Mfg. Co. vs. Ford Motor Co., 1 F. R. D. 104— 8
Loan Association vs. Topeka, 87 U. S. 655-------- -------  15
McCabe vs. A., T. & S. F. Ry. Co., 235 U. S. 151, 305

U. S. 339_______________ - _______________________  19
Mitchell vs. U. S., 63 S. Ct. 873____________ __ _____  19
Moore vs. State, 76 Ark. 197, 88 S. W. 881---------------  15
Reid Gas Engine Co. vs. Lewellyn, 42 F. Supp. 895------ 9
Sipuel vs. Board of Regents of Okla., 332 U. S. 631------ 21
Town River Junction vs. Maryland Casualty Co., 110

F. 2d 278_______________________________________  9
Vitzoi vs. Balboa S. S. Co., 69 F. Supp. 286---------------  9
Westminster School District vs. Mendz, 161 F. 2d 993-— 19

S t a t u t e s

Judicial Code, Section 24 (1 )_______________________  2
Judicial Code, Section 24 (14)---------------------------------  2
Pope’s Digest, Arkansas Laws, Section 11535------------ 3
Rule 56, Federal Rules of Civil Procedure--------------- 8
Rule 73, Federal Rules of Civil Procedure---------------  2
Title 8, United States Code, Sections 41 and 43--------- 2
Title 28, United States Code, Section 225____________ 2



UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

No. 14,130.

CHARLES L. BROWN, INFANT, BY ARTHUR BOUSER, 
HIS STEPFATHER AND NEXT FRIEND,

ET AL., APPELLANTS,
VS.

J. W. RAMSEY, SUPERINTENDENT OF SCHOOLS, 
ET AL., APPELLEES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF ARKANSAS,

FORT SMITH DIVISION.

BRIEF FOR APPELLANTS AND JOINT APPENDIX.

Appellants respectfully submit the following brief in 
support of Appellants’ affirmative position that the judg­
ment appealed from should be reversed,

JURISDICTIONAL STATEMENT,

The appellants appeal from a judgment entered 
against them in favor of appellees, defendants below, in 
the District Court of The United States for the Western



2

District of Arkansas, Fort Smith Division, in Civil Action 
numbered 798 on the 19th day of November, 1949, by the 
District Court of the United States for the Western Dis­
trict of Arkansas, Fort Smith Division, after hearing by 
the Court.

The District Court of the United States, for the West­
ern Division of Arkansas, had jurisdiction of the cause, 
under the Judicial Code, Section 24(1) (28 United States 
Code, Section 41(1)), this being a suit in equity which 
arose under the Constitution and Laws of the United States, 
viz., the Fourteenth Amendment of said Constitution and 
Sections 41 and 43 of Title 8 of the United States Code, 
and under Section 24(14) of the Judicial Code (28 United 
States Code, Section 41 (14)).,. this being a suit in equity au­
thorized by law to be brought to redress the deprivation 
under color of law, statute, regulation, custom and usage 
of a state rights, privileges and immunities secured by 
the Constitution of the United States, viz., the Fourteenth 
Amendment to said Constitution, and of rights secured by 
laws of the United States providing for equal rights of 
citizens of the United States and of all persons within the 
jurisdiction of the United States, viz., Sections 41 and 43 
of Title 8 of the United States Code.

This Court has jurisdiction to review the judgment 
under Title 28 of the United States Code, Section 225, and 
under Rule 73 of the Federal Rules of Civil Procedure.

The pleadings, which show the existence of juris­
diction, are the complaint, the amended complaint and 
answer filed herein (R. 2, 47 and 43).



3

STATEMENT OF THE CASE.

The plaintiffs herein, are all minor citizens of the 
United States and residents domiciled in Arkansas and 
within the Fort Smith Special School District, who are 
entitled to attend the public schools of Fort Smith, Arkan­
sas. Under the laws of Arkansas it is the duty of School 
Directors to: “Establish separate schools for white and
colored persons,” Pope’s Digest, Section 11535. All of the 
plaintiffs herein are members of the Negro or colored race, 
and as such are forced and compelled to attend such 
schools as are designated for them by the School Directors 
as schools for Negroes, on a segregated basis. On Decem­
ber 10, 1948, plaintiffs filed their original complaint in 
which they contended that certain discriminations had 
been practiced against them by the Defendant Board of 
School Trustees in providing educational opportunities, 
privileges and advantages, because of the race and color of 
plaintiffs. An Amended complaint was filed substituting 
certain parties as plaintiffs. The Court granted defend­
ants’ motions for sixty days (60) extension of time in 
which to answer. In February, 1949, Defendants filed a 
motion for a more definite statement. In March, 1949, 
plaintiffs filed their Bill of Particulars and at the same 
time filed their Motion for Summary Judgment, with 
affidavit attached and an Interrogatory. Defendants filed 
their answer to Plaintiffs’ Motion for Summary Judgment 
with affidavits attached. The Motion for Summary Judg­
ment was heard on June 13, 1949, and dismissed by the 
Court without any argument or motion by the defendants. 
The cause came on for trial on November 9, 1949, and 
Plaintiffs’ complaint was dismissed upon a finding of fact 
by the Court that no discrimination with respect to plain­
tiffs existed and for want of equity, from which judgment 
and decree, this appeal is respectfully taken.



4

STATEMENT OF ERRORS.

1. The Court erred in over-ruling plaintiffs’ motion for 
summary judgment.

2. The Court erred in its Findings of Fact in the following 
instances:

(2) The Fort Smith Junior College is supported and 
maintained from tuition and fees paid by the 
students enrolled therein, and not from public tax 
funds.

(13) The allocation of monies to the schools operated for 
Negro children was made by the Directors in good 
faith and with the intention of preserving a con­
dition of substantial equality between the Negro 
and white schools.

(15) The Lincoln High School in which the standard six 
high school grades are taught affords the students 
therein enrolled substantially the same educational 
advantages enjoyed by the white students enrolled 
in the junior and senior high schools. Both the 
Lincoln High School and the Senior High School 
enjoy equal standing in the North Central Associa­
tion of Colleges and Secondary Schools, and 
students from either school can enroll in any mem­
ber college or university of said North Central 
Association without any scholastic deficiencies.

(16) The Physical Education Department of the Lincoln 
High School is comprehensive in scope, both for 
male and female students. A woman teacher is 
provided for the girls’ physical education classes 
and a man teacher is provided for the boys’ 
classes. The equipment for these classes is left 
largely to the respective instructors, and all requisi­
tions for such equipment for the physical educa­
tion department have been promptly filled by the



5

Board of Directors. The uncontradicted evidence 
shows the Defendants able and willing to furnish 
adequate athletic equipment for the use of the 
students of Lincoln High School upon request and 
requisition of the principal and faculty of that 
school.

(18) Considered as a whole the buildings and other 
physical facilities provided for the Negro school 
children of the Defendant District are not inferior 
to the buildings and other physical facilities pro­
vided for the white children of the District.

(19) The buildings and other physical facilities which 
are at the Lincoln High School, upon completion 
of the buildings and new installations now almost 
ready for occupancy and use, will be superior to 
the buildings and appurtenant physical facilities 
at the Junior High School and will be on a sub­
stantial equality with the combined Junior and 
Senior High School buildings and appurtenant 
physical facilities.

(20) The courses of study made available to the students 
of the Lincoln High School are substantially equal 
to the courses of study made available to the 
students of the Junior and Senior High Schools.

(21) There is no discrimination, existing or imminent, 
against the children of the Negro schools of the 
Defendant District in the matter of curriculum or 
courses of study.

(22) There is no discrimination, existing or imminent, 
against the children of the Negro schools of the 
Defendant District in the matter of building and 
appurtenant physical facilities.

(23) There is not in existence or imminent any policy, 
custom or usage in the Special School District of 
Fort Smith, Arkansas, under which the Negro 
school children of the District are discriminated



6

against in the favor of the white children of 
the District.

3. The Court erred in its Conclusions of Law in the fol­
lowing respects:

(3) With reference to the Fort Smith Junior College 
the Plaintiffs have been denied no rights or 
privileges guaranteed to them by the Federal or 
State Constitutions or by Federal or State laws.

(5) The plaintiffs have failed to sustain the allegations 
of their complaint.

(6) A decree should be entered dismissing the com­
plaint for want of equity.

4. The decree and judgment of the Court is contrary to 
the evidence.

5. The decree and judgment of the Court is contrary to the 
the weight of the evidence.

6. The decree and judgment of the Court is contrary to the 
law in such cases made and provided.

7. The Court erred in dismissing the complaint of plaintiffs 
for want of equity.

POINTS RELIED UPON IN ARGUMENT.

I.

Plaintiffs were entitled to a summary judgment of 
June 13, 1949, when their motion for summary judgment 
was heard by the court.

II.

The Fort Smith Junior College was established as a 
part of the Fort Smith Public School System and has been 
operated and maintained since its establishment out of 
public funds.



7

III.

The plaintiffs and others similarly situated on whose 
behalf they sued have been discriminated against by de­
fendants in courses offered at the Lincoln High School for 
negroes as compared to those offered in the Junior and 
Senior High Schools and the Junior College for white 
scholastics.

IV .

The plaintiffs and those similarly situated on whose 
behalf they sued have been discriminated against in the 
per capita expenditures made in capital invested in lands, 
buildings and equipment for educational purposes, and in 
operating expenses of public schools in the district.



8

ARGUMENT.

I.

Plaintiffs were entitled to a summary judgment of 
June 13, 1949, when their motion for summary judgment 
was heard by the court.

On June 13, 1949, when the Plaintiffs’ Motion for 
Summary Judgment was heard by the Court, the cause had 
been pending for six months and three days. The record 
then before the Court consisted of plaintiffs’ amended com­
plaint, defendants’ motion for a More Definite Statement, 
Plaintiffs’ Bill of Particulars, Plaintiffs’ Motion for Sum­
mary Judgment, Plaintiffs’ Interrogatory, Defendants’ 
Answer to Plaintiffs’ Interrogatory, Defendants’ Answer 
to Plaintiffs’ Motion for Summary Judgment and Plain­
tiffs’ and Defendants’ Affidavits attached to their Motion 
for Summary Judgment and Answer thereto.

Appellants contend that the record as then made pre­
sented no material dispute as to facts in the cause and that 
Plaintiffs were entitled to a ruling by the Court on the 
record as it then stood, that is on the pleadings, deposi­
tions and supporting affidavits then before the Court.

American Insurance Co. v. Gentile Bros., 109 F. 2d 
732.

Creel v. Lone Star Defense Cory., 171 F. 2d 964.

The purpose of Rule 56, Federal Rules of Civil Pro­
cedure is to promptly dispose of causes where there is no 
material dispute as to fact.

Grassifier Mfg. Co. v. Ford Motor Co., 1 F. R. D. 
104.



9

The Rule intends to provide against vexation and de­
lay which comes from formal setting for trial in those 
cases where there is no material issue of fact.

Blood v. Fleming, 161 F. 2d 292.

It is intended for a party to pierce the allegations of 
fact in the pleadings and obtain relief by Summary Judg­
ment where the facts set forth in detail in affidavits, dep­
ositions and admissions on file show that there are no 
genuine issues of facts to be tried.

Engle v. Aetna Life Insurance Co., 139 F. 2d 469, 
472.

Fletcher v. Kris, 120 F. 2d 809.
Vitzoi v. Balboa S. S. Co., 69 F. Supp. 286.

The Summary Judgment Rule contemplates that the 
Judge will take the pleadings as they have been shaped to 
see what issues of fact they make, and consider the deposi­
tions, and admissions on file, together with the affidavits 
to see if any such issues are real and genuine. If they are 
not, judgment is given without further delay.

Town River Junction v. Maryland Casualty Co., 
110 F. 2d 278, 283.

Reid Gas Engine Co. v. Lewellyn, 42 F. Supp. 895.

Appellants, submit that Plaintiffs below should have 
had judgment then on the record then before the Court.

II.

The Fort Smith Junior College was established as a 
part of the Fort Smith Public School System and has been 
operated and maintained since its establishment out of pub­
lic funds.

The Fort Smith Junior College was established by the 
Fort Smith Special School District and is operated by the 
Board of Directors of the Fort Smith Special School Dis­



10

trict (See Answer to Interrogatory 1) (R. 36 and 372). The 
Fort Smith Junior College is operated in the Senior High 
School Building (R. 211), as testified to by Dr. J. W. 
Ramsey, Superintendent of Public Schools in Fort Smith, 
Arkansas. Dr. Ramsey testified that he derives his entire 
income from the Fort Smith Special School District and 
that he is president of the Fort Smith Junior College (R. 
212); that upon his recommendation teachers are hired for 
the Senior High School and that some of these teachers are 
used part time and some full time at the Junior College 
(R. 212); that it is a part of his duties to plan the cur­
riculum of all schools under his supervision (R. 212); 
that he indirectly plans the courses offered at the Junior 
College and that he has authority to approve the courses 
offered at the Fort Smith Junior College (R. 212); that 
the tuition at the Fort Smith Junior College is recommended 
by him and the Board of Directors of the Fort Smith 
Special School District upon his recommendation de­
termines what the tuition at the Fort Smith Junior College 
shall be (R. 212).

Dr. Ramsey, Superintendent of Schools at Fort Smith 
was questioned by Attorney for Plaintiffs below:

Q. Now, Dr. Ramsey, there are certain expenses in­
cident to the operation of the Junior College, such 
as providing heat, and light and telephone service, 
janitorial service and so on. Who pays the light bill 
at the Junior College?
A. The light bill and all of the operating expenses 
of the Junior College are paid along with the same ex­
penses for the High School, that is, on the assumption 
that the building is there; it has to be maintained and 
operated, regardless of the occupancy of it and in 
that way—this is an indirect way of answering your 
question, but these expenses are paid as part of the 
high school (R. 213).



11

Q. Do you keep your revenue from the Junior Col­
lege in a separate account?
A. All of our funds are co-mingled from all sources, 
but a separate ledger account is kept for each of the 
schools, including the Junior College (R. 213).

Dr. Ramsey further testified that Mr. Elmer Cook is 
the Dean of the Junior College, and that Mr. Cook works 
under his supervision and that Mr. Cook was appointed 
on his recommendation (R. 213); that there is operated 
under his supervision in Fort Smith a Junior High School, 
a Senior High School and a Junior College for white scho­
lastics (R. 213).

Plaintiffs’ Exhibit No. 71 shows that for the years 
1932-33 and 1942-43 to and including 1947-48 the Fort 
Smith Junior College had an operating loss of $10,836.03 
(Exhibit 71, following R. 228), in answer to question by 
Attorney for Plaintiffs below, Dr. Ramsey denies that 
there was a shortage, but he does not deny that if there 
were one, it was paid out of the general public school 
fund (R. 226).

In answer to Interrogatory 4, Dr. Ramsey admits that 
Negro children are not admitted to the Fort Smith Junior 
College, and in Interrogatory 4b, he further admits that 
there is no Junior College in connection with the Lincoln 
High School for Negroes (R. 36 and 373).

Testifying for defendants, Dr. Ramsey testified that 
the construction of the Junior College-Stadium building 
cost $150,000 of which $67,000 was a grant from the Fed­
eral Works Administration and $83,000 was received from 
the bond issue floated by the Fort Smith Special School 
District (R. 347).

On cross examination of Mr. Raymond Orr, President 
of the Board of Directors of the Fort Smith Special School



12

District, Mr. Orr was questioned and he answered as fol­
lows:

Q. During the time you have been a member of the 
school board, various bills have been presented to and 
paid by the Fort Smith Board for the Fort Smith 
Junior College, have they not?
A. The utility bills for the Senior High School, which 
in turn, houses the Junior College.
Q. And the salaries also are paid by the Fort Smith 
Special School District?
A. Which salaries?
Q. Salaries for the Junior College.
A. Yes.
Q. And the books for the library for Junior College 
have also been paid for by the Fort Smith Special 
School District, have they not?
A. I suppose they have. I cannot answer that exactly 
(R. 260).

On re-direct examination Mr. Orr testified that salaries 
and expense at the Junior College were paid out of the 
general funds, and he continued:

Those of us on the board have known all the way 
through at least I have since my time, that if we had 
spent more than the tuition brought in we would 
have been subject and vulnerable to attack from any 
taxpayer that desired to raise the issue (R. 261).

Then there followed this question by defendants’ attorney:

Q. Isn’t it a fact that the school board has seen to it 
at all times that the income from tuition paid by 
students of the Junior College paid all the bills?
A. It is sufficient and has been to pay the out of 
pocket cost (R. 261).

Now reading this question of Defendants’ attorney and 
Mr. Orr’s answer in connection with the question by plain­



13

tiffs’ attorney (R. 226) as to how the shortage of $10,- 
836.03 which had arisen in the Junior College from 1933 to 
1948 had been paid, and Dr. Ramsey’s answer thereto, a 
complete picture of deliberate juggling of accounts pre­
sents itself.

Q. Now, was that paid out of the general school fund, 
sir, that difference?
A. The college during that period did not operate at 
a loss. When these figures or expenses are considered 
as applicable to Junior College—we paid the salaries 
of the personnel, which would be a dean, part of the 
time and a clerk part of the time. For a good many 
years in this period the college operated on a much 
less pretentious basis, I would say, than it is at pres­
ent. There was no person in charge as a dean or 
there was no additional secretaries—all operated out 
of the principal’s office. Therefore, there was no 
charge additional for that, because his salary was paid 
to operate the school and there was no extra expense 
incurred. So, the expenditures for the dean during 
the period of this 17 years here that we had a dean, 
the clerk, the salaries of the teachers, plus the actual 
expenditures for library books, instruction materials, 
any other incidental expense directly chargeable to 
the Junior College, those four items I have men­
tioned—well, exactly two; salaries of personnel and 
direct instruction expenses, assuming that they were 
only expenses that were incurred over and above what 
would have been incurred, regardless of the Junior 
college, putting that against the gross income in the 
way of tuitions, there was a profit rather than a loss 
(R. 227).

Thus the record disclosed that there were deliberate 
manipulations of the accounts of the Junior College to 
make them show a profit from tuition. But be that as it 
may, the fact that the tutition from the college was put 
into the general fund as was all other tuition paid as was



14

testified to by Dr. Ramsey (R. 213 and 357), and all of the 
bills and expenses of the Junior College were paid out of 
the same fund, it is of no significance that the income 
from tuition did or did not exceed expenses, the Junior 
College was operated at public Expense. Arkansas Stat­
utes, 1947—Title 80, Education, Chapter 10, District Fi­
nances, Section 1002—Revenue and Non-revenue Receipts 
defined:

The revenue receipts of a school district shall be 
defined as those receipts that do not result in increas­
ing school indebtedness or in depleting school property. 
Specifically they shall be defined as follows:

(2) The net proceeds from local taxes collected 
during the year 1949 plus forty percentum (40%) of 
the proceeds of local taxes which are not pledged for 
debt service collected in 1950.

(3) The net proceeds from all other funds placed 
to the credit of the school district during the fiscal 
year from regular revenue sources, including tuition 
receipts, fees, etc.

Non-revenue receipts of a school district shall be 
defined as those receipts which must be met at some 
future date or which change the form of an asset from 
property to cash and therefore decrease the amount 
and value of school property. Specifically they con­
sist of proceeds of a bond sale, payments of losses on 
an insurance policy, receipts from the sale of property, 
etc. Non-revenue receipts shall not be considered as 
revenue for current operating or maintenance pur­
poses.

The Fort Smith Junior College is clearly a public in­
stitution in that it was created by the Board of School 
Trustees, it has always been housed in public school prop­
erty, its teachers and all of its expense are paid out of the 
general school funds, tuitions collected are deposited in



15

general school account. This being true it is of no im­
portance that the tuition does or does not exceed the ex­
penses, it is none-the-less a part of the public school system.

It is the general rule that a municipal corporation may 
not issue bonds or assume a debt to aid in the establish­
ment of a private corporation.

Loan Association v. Topeka, 87 U. S. 655.

It is the law in Arkansas that public funds may not be 
applied to other than public purposes.

Moore v. State, 76 Ark. 197, 88 S. W. 881.

III.
The plaintiffs and others similarly situated on whose 

behalf they have sued have been discriminated against by 
defendants in courses offered at the Lincoln High School 
for Negroes as compared to those offered in the Junior and 
Senior High Schools and the Junior College for white 
scholastics.

Professor C. M. Greene, Principal of the Lincoln High 
School for Negroes at Fort Smith, Arkansas, testified on 
direct examination, as an adverse witness for plaintiffs 
that he was principal of the said school and that he had 
been so employed for seven years (R. 110); that his school 
does not now and will not in June, 1950, be able to issue 
certificates of graduation to its students in commercial 
training (R. 110). Such certificates are issued by the 
Senior High School for white children. He further testi­
fied that as of the day of trial, his school had no function­
ing shop. He was questioned and gave answers as follows:

Q. In your trade shop, Mr. Greene, will you tell the
Court what equipment you have in that shop as of
today?



16

A. We haven’t any equipment in the new building 
now.
Q. You have no equipment for teaching shop as of 
today?
A. The building hasn’t opened yet (R. 111).

He also testified that there was no stadium in connection 
with his school (R. 112); that there was no swimming pool 
(R. 112).

Though Mr. Greene testified that his school had a 
band, when shown Plaintiffs’ Exhibit 13 which is a picture 
of the Band Room at the Senior High School for white 
persons, and asked if similar equipment was provided in 
his school, he answered in the negative (R. 113). He fur­
ther said that his school had no equipment similar to that 
shown in Plaintiffs’ Exhibit 14, which is the Music Room 
at the Junior High School for white persons (R. 113). 
When he was shown pictures of the Metal Trades shop at 
the white high school, Plaintiffs’ Exhibit 19, and asked 
if he had similar equipment in his school he replied, “We 
do not” (R. 113). He further testified that the Lincoln 
school had no auditorium similar to the one at the Senior 
High School for White (R. 114), nor such as was shown in 
Plaintiffs’ Exhibit 31, which is the auditorium at the 
Junior High School (R. 114). He admitted that the 
Lincoln High School for Negroes did not on the date of trial 
give courses in Spanish, Latin, Trigonometry, Diversified 
Occupations, Sign painting, dramatics, costume jewelry 
making, pewter work (R. 131), commercial art, oil and 
water colors, commercial law, consumer education, Archi­
tectural screening (R. 131), Distributive Education, Journal­
ism, Accounting II and III (R. 132), Commercial Geography, 
Algebra III, Salesmanship (R. 132). All of the above 
courses are offered at the Senior High School for white 
pupils (See Schedule of Courses at Senior High School 
(R. 229, and Courses at Lincoln High School (R. 353)).



17

In his answer to Interrogatory 12 (R. 375) Dr. Ramsey, 
Superintendent of Fort Smith Schools admitted that the 
following courses were not offered at the Lincoln High 
School for Colored: Accounting, Band, Business Law,
Commercial Law, Chemistry, Distributive Education, 
Journalism, Latin, Linotyping, Printing press operation, 
Metal Trades, Office Machines, Physics, Spanish, Short­
hand, and Typing all of which are offered at the Senior 
High School. Dr. Ramsey contended that Commercial 
Geography was taught, but Mr. Greene testified that the 
course was not taught (R. 132). Dr. Ramsey testified that 
in the Junior College the following Courses were taught: 
Art 13b, Business Law, Biology 13b; Band Music 13b; Ac­
counting 13b-14b; Chemistry 13b; English 13b-14b; French 
13b; History 13b-14b; International Relations 13b; Journal­
ism 14b; Economics 13b-14b; Mathematics 13b-14b; Office 
Machines 14b; Psychology 13a; Typewriting 13b-14b; 
Shorthand 13b-14b; Production Printing Voice 13b-14b; 
Violin 13b; Spanish 13b; and Swimming 13b (R. 373); and 
that Negroes were not permitted by the defendant board 
of education to attend said Junior College (R. 373), and 
that no Junior College facilities were provided in con­
nection with the Lincoln High School (R. 373 and 374) .

Professor A. H. Miller, the Shop Teacher at Lincoln 
High School testified on Direct Examination, as an adverse 
witness for Plaintiffs that he was Industrial Arts In­
structor (R. 171) and that Industrial Arts Courses are ex­
ploratory courses, devoted to one hour of teaching daily 
while Trade Courses are taught for three hours per day 
and they lead to trades for employment purposes (R. 171).

Mr. W. E. Hunzicker, Shop Teacher at the Senior 
High School for White persons, testified as an adverse wit­
ness for plaintiffs. After having identified Plaintiffs’ Ex­
hibit 19 as a true representation of the Machine Shop at



18

the Senior High School for white persons, he said that his 
school offered courses in Industrial or vocational trades; 
that such courses were strictly specific courses designed 
to train a boy as an advanced learner in that field. This 
embraces three periods per day in Trades and one period 
to related trade information. He further testified that 
industrial arts (such as is given at Lincoln) is part of 
general education; they are exploratory or finding courses 
he said (R. 182). They are feeders for trade courses.

To the following question, Mr. Hunzicker replied:

Q. Now, a young student who finished your course 
would be superior in training, experience and equip­
ment to a person who had finished the industrial arts 
course, wouldn’t he?
A. We hope that he is, yes, sir.

Mr. Elisco Sanchez, Printing Teacher in the Fort 
Smith Senior High School for white pupils, testified that 
Plaintiffs’ Exhibit 17. was a true representation of his print 
shop at the Senior High School (R. 191), and identified 
certain presses and machines therein, none of which are 
provided for Negroes. He further testified that in his 
department industrial arts and trade printing are taught 
(R. 193).

Mr. Tom Traw, Woodwork Teacher at the Junior High 
School testified that in woodwork in the Junior High 
School only industrial arts are taught (R. 197). So it is 
that the shop course in the Junior High School is the same 
as the Shop course at the Lincoln High School, see testi­
mony of Mr. A. H. Miller, Industrial Arts teacher at Lin­
coln High School (R. 171), who testified that he taught 
only industrial arts; that he was not equipped to teach 
metal trades; that the machinery in his department was 
in poor repairs (R. 173); that their emphasis had been



19

in the building trades, and he had not been able to do an 
effective job in those courses (R. 175).

Demand for Courses.

Defendants put great reliance upon the defense for 
courses that had been provided for Negroes on the basis 
of need and demand.

In Interrogatory 15 (R. 375-376) Dr. Ramsey, Superin­
tendent of Schools at Fort Smith admits that there is no 
printing shop at the Lincoln High School and said: 
“ Courses of study at Lincoln High School have been 
adapted to the opportunities open to Negro students in 
the community after they leave Lincoln High School” (R. 
376). In open court when asked if the needs of Negro and 
white students in his system were the same, Dr. Ramsey 
said that in his opinion they were different because oc­
cupational opportunities in the community favored the 
white student (R. 383). He further testified that for the 
27 years that he had been superintendent he had planned 
courses for Negro and white on the basis of what he con­
sidered their respeective needs (R. 384), and he admitted 
that he had not followed the legislative mandate of Sep­
arate but equal provisions (R. 384).

Plaintiffs contend that the rights of Negroes to enjoy 
all of the privileges and advantages for public education 
that are provided by the state for members of other races 
is a civil right, which the Courts will protect.

Gaines v. Canada, 59 S. Ct. 232.
Westminster School Dist. v. Mendz, 161 F, 2d 993.

A civil right is a personal right, and cannot be made 
to depend upon the concurrence of any third person or 
persons.

McCabe v. A., T. & S. F. Railroad Co., 235 U. S.
151.

Mitchell v. U. S., 63 S. Ct. 873.



20

The defendants argued that facilities had not been 
improved for Negroes due largely to lack of funds and 
materials.

Plaintiffs contend that lack of funds is no defense 
against proof of failure to provide equal facilities to the 
members of the two races in segregated schools. In Ash­
ley v. School Board, of Gloucester County, Virginia, 82 F. 
Supp. 167, at 171, Judge Hutcheson, speaking for the Court 
said:

I am aware of the familiar contentions that finan­
cial difficulties facing the counties in the efforts to 
equalize facilities and opportunities for the races are 
so great as to raise doubt as to their ability to do so; 
and that the greater portion of the tax burden falls 
upon the white population. While I am not unmind­
ful of the practical problem presented, a superficial 
consideration of these suggestions is sufficient to 
bring a realization that under the prevailing law 
neither has any bearing upon the legal and factual 
questions here involved.

Future Plans.

Throughout the trial of this cause, defendants made 
no effort to show existing equality of facilities. Rather 
they based their strongest defense upon future plans, 
which when put into execution would make the facilities, 
courses and opportunities equal for Negroes and whites. 
The Court accepted and approved this line of defense. 
The Court found as a fact that; The buildings and other 
physical facilities at the Lincoln High School, upon the 
completion of the buildings and new installations now 
almost ready for occupancy and use, will be superior to the 
buildings and appurtenant physical facilities at the Junior 
High School and will be on substantial equality with the 
combined Junior and Senior High School Buildings and



21

appurtenant physical facilities (Finding of Fact No. 19, at 
R. 429).

This attitude in the Court is further seen from the 
record (R. 150-151), where Mr. Greene, the principal of 
Lincoln High School for Negroes, was asked to give his 
opinion of the relative equality of the Negro and white 
schools when the program of improvements is completed. 
Counsel for Plaintiffs objected and urged that the relative 
equality must be considered at the time the cause of ac­
tion arose and at the time that the matter was tried.

The Court over-ruled the objection and said his deci­
sion would depend largely upon what the board is doing 
now, that is, whether or not they have a realization of 
their responsibilities. “ I want to see whether or not they 
are arbitrarily refusing” (to provide equal facilities), he 
said (R. 151).

Plaintiffs contend that both the finding of fact and 
the ruling were erroneous.

Where facilities have been provided for the white race 
to secure public education and such facilities have not been 
provided for Negroes, Mr. Chief Justice Hughes said: 
* * * “ a mere declaration of purpose, still unfulfilled, 
is not enough.”

Gaines v. Canada, 59 S. Ct. 232, at 235, 305 U. S.
339.

The United States Supreme Court has further held that 
where separate facilities are provided for white and Negro 
races they must be provided at the same time.

Sipuel v. Board of Regents of Okla., 332 U. S. 631.

Here the record clearly reveals that at the time of 
trial the Howard Elementary School for Negroes upon 
which defendants put so much reliance was under con­



22

struction, was not complete and had no furniture in it. 
Dr. Ramsey admitted that considering a school as a com­
bination of buildings and facilities, library, students and 
teachers the Howard School was not a school on the date 
of trial (R. 357). He further admitted that the Lincoln 
High School which has only eight class rooms was under 
improvements and that three of the class rooms, the Library 
and the Principal’s office in which certain classes are held 
were under repairs and could not be used (R. 357-358). 
He further admitted that the old shop at Lincoln had 
been converted into a domestic science building, leaving 
no shop, and that the new shop building was under con­
struction, that it had no equipment in it and as such the 
school had no efficient shop. Dr. Ramsey testified that 
due to the disruption of the school program by the build­
ing program, “ there will be some lost motion” (R. 360), 
and the Negro students at the Lincoln High School had 
not enjoyed the same educational opportunities and ad­
vantages, during the present semester, as white children 
in the district had enjoyed (R. 360), and that the loss 
suffered was irreparable.

With this line of testimony in the record by the Super­
intendent of Fort Smith Schools the plaintiffs contend that 
the Court erred in its findings of fact as numbered in 
parentheses that there was no discrimination in providing 
buildings for Negroes (18), that there was no discrimina­
tion in providing courses (20); that there is no dis­
crimination, existing or imminent, against children of 
Negro schools in the matter of courses and curriculum (21).

Dr. Ramsey admitted that he had arbitrarily provided 
courses on the basis of his conception of their needs and 
that the curriculum was not identical. With this before the 
Court plaintiffs contend that the Court erred in its find­
ing of fact that no policy, custom or usage existed to dis­



23

criminate against Negro children in the School District 
(23).

Facilities.

Mr. Greene, Principal of Lincoln High School admitted 
that the Lincoln High School has no stadium (R. 112); 
that it has no swimming pool (R. 112); that it has no music 
room and no cafeteria (R. 113); that the auditorium facili­
ties were not equal (R. 114); that the Lincoln High School 
had no faculty lounge (R. 114); that the libraries are not 
equal (R. 116); that the toilet facilities were not equal 
(R. 117).

Mr. Hilliard admitted that the gymnasium facilities 
at the Lincoln High School were unequal to those at the 
Senior High School for white children; that he was not 
qualified to teach girls; that the basket ball court was not 
of standard size (R. 166); that the equipment in the 
gymnasium was not standard (R. 167); that the shower and 
dressing room facilities at the white and Negro schools 
were not comparable (R. 168), and that there were no 
tennis courts at the Lincoln High School (R. 169).

The only defense that defendants made to this was 
that the teacher at Lincoln High School had failed to order 
the necessary equipment (R. 170). Mr. Hilliard then tes­
tified that he did not like certain equipment in his gym­
nasium and counsel for defendants caused him to testify 
that equipment had been provided upon the basis of what 
the physical education teacher at the Lincoln High School 
thought that he needed and not on any basis of equality 
(R. 170).

Mr. Orr, President of the Board testified that a faculty 
lounge and showers for boys and girls were under con­
struction at Lincoln High School (R. 243); that there are



24

no metal lockers for students at the Lincoln High School 
(R. 253); that no cafeteria facilities had been provided at 
Lincoln High School (R. 254).

Dr. Ramsey admits in his answers to Plaintiffs’ In­
terrogatories: that there is a Junior College for white 
children (1); that Negroes may not attend the Junior Col­
lege for white children (4); that no Junior College is pro­
vided for Negro children (5); that there is an athletic 
stadium at the white high school (8); that no stadium is 
provided for Negro children at the Lincoln High School 
(10); that the value of the machinery in the Printing Shop 
at the white high school is approximately $30,000 (14); 
that there is no printing shop at the Lincoln High School 
(15); that Negro children may not study printing at the 
white high school (16); that there is a cafeteria at the 
white high school (20); that there is no cafeteria at the 
Lincoln High School (21); that approximately 1,000 metal 
lockers of the approximate value of $7,400 are provided 
at the white high school (28, 29); that no metal lockers 
are provided at the Lincoln High School for Negroes (30); 
that the Library at the white high school is used ex­
clusively by the students of that school (33); that the 
library at the Lincoln High School is used in part as a 
public library (35); that the auditoriums at the white 
Junior and Senior high schools are used exclusively as 
auditoriums (38 and 51); that the auditorium at the 
Lincoln High School is a combined auditorium and gym­
nasium (41); that 'there is a gymnasium in connection 
with the white high school used exclusively as such (44); 
that there is no swimming pool at the Lincoln High School 
for Negroes (50); that the auditorium at the Junior High 
School may be used by white adult groups (54); that it 
may not be used by Negro students (53); that it may not 
be used by Negro adult groups (55); that there is a Junior



25

High School for white children in the school district (50); 
and no such Junior High School facilities are provided for 
Negro children, in a separate building as is provided for 
white children (56); that the white high school building 
is about 20 years old (57); and that the Lincoln High 
School building is about 55 years old (58) (R. 372-383).

In the light of this testimony, Plaintiffs urge that the 
court erred in its findings of fact that: “ Considered as a
whole the building and other physical facilities provided 
for the negro school children of the Defendant District are 
not inferior to the buildings and other physical facilities 
provided for the white children of the District (18), and 
that the Court erred in its Conclusions of Law that: “The
Plaintiffs have failed to sustain the allegations of their 
complaint” (5) and (6). A decree should be entered dis­
missing the complaint for want of equity.

IV.
The plaintiffs and those similarly situated on whose 

behalf they sued have been discriminated against in the 
per capita expenditures made in capital invested in lands, 
buildings, and equipment for educational purposes, and in 
operating expenses of public schools in the district.

Plaintiffs’ Exhibit 70 (R. 224-225) shows the value of 
land, buildings and equipment devoted to the education of 
Negroes in the District for the years 1932-33, 1943-44 and 
1947-48 and the number of Negro children enrolled in the 
Lincoln High School for Negroes at Fort Smith, and value 
of land, buildings and equipment devoted to the education 
of white children in the District together with the number 
of white children enrolled in grades 7 to 12 in such schools 
in the District. The enrollment in the white and colored 
schools represent the same grade groups, that is grades 
7 to 12 in both instances. The results show:



26

Average Value of Lands, Buildings 
and Equipment per Pupil

1932-33
1943-44
1947-48

Negro
$271.41
279.49
229.20

White
$406.15
500.26
457.76

Testimony with respect to these values is developed at 
page 215 through page 225 of the Record.

Defendants have undertaken to rebut this testimony 
by showing a different relationship in the figures, but 
by their own charts, discriminations in per capita expendi­
tures for lands, buildings and grounds are shown.

Defendants’ Exhibit No. 3 (R. 317) shows that in 1949 
the Average Daily Attendance in the white Schools was 
89.6% of the whole and that of Negroes was 10.4%. De­
fendants’ Exhibit No. 6 (R. 321-322) shows that 94.3% of 
the capital investment was made on 89.6% of the total 
A. D. A. which represents white children, while only 
5.7% of the capital investment was applied to Negroes 
who represented 10.4% of the A. D. A. of the District. 
That was in 1949, which is the time of trial.

When Defendants’ Exhibit No. 6 was introduced, coun­
sel for plaintiffs objected to the introduction of so much of 
the exhibit as had to do with future plans (R. 321), but 
this objection was over-ruled by the Court (R. 322), which 
ruling the plaintiffs contend was error.

It is further to be observed that the calculations made 
by plaintiffs in their calculation of average per capita in­
vestment in lands, buildings and equipment was based upon 
the enrollment, while defendants’ calculations were based 
upon Average Daily Attendance.



27

Defendants’ Exhibit No. 7 Data on Fort Smith School 
Buildings shows the sanitation facilities to be “modern.” 
Dr. Thomas Foltz, a physician and member of the Fort 
Smith Board of Education testified that as such he had in­
spected the Lincoln High School; that the Lincoln High 
School was “ inadequate” from the standpoint of health 
and safety and sanitation (R. 268).

Under the heading Cafeteria Service, on Defendants’ 
Exhibit 7, Lincoln High School is referred to as having 
“ Partial” service. On cross examination on this point, Dr. 
Ramsey testified that the meaning of “partial” cafeteria 
service was that some of the students at Lincoln were per­
mitted to go to the Old Howard School (a distance of ap­
proximately five city blocks) to have meals in the How­
ard Cafeteria (R. 365), which served milk only.

The Howard school referred to on the chart, Defend­
ants’ Exhibit 7 is referred to as “New.” It is to be noted 
that at that time the New Howard School was not com­
pleted, it had no cafeteria, no students, no health service, 
no attendance service and no supervisory service, Mr. Ram­
sey said on the stand:

q  * * * you do not deny that the Howard School at 
this time is not a school in any practical sense in that 
it is not the combination of buildings and facilities, 
library, student and teacher, in that sense it is not a 
real school today, is it?
A. That is right (R. 357).

Of sixteen white schools listed on Defendants’ Exhibit 
7 only one serves milk only, all of the rest have cafeterias. 
Of four colored schools listed, Lincoln, Howard (the old 
school), Washington and Dunbar, not one has a cafeteria 
completely equipped for cooking and serving food.



28

Per Capita Costs for Operations.

Plaintiffs’ Exhibit 69 (R. 219) shows an analysis of 
Operating Expense for white and Negro schools, grades 7 
to 12 inclusive. This chart reveals actual per capita ex­
penditures for operations as reported in the Superintend­
ent’s Annual Reports for the years indicated:

Actual Per Capita Difference 
Expenditures for

Year Page of Report Operations
White : Negro

1932-33 57 $54.59 $36.70 $17.89
1942-43 43 72.91 44.85 28.06
1943-44 35 92.01 73.42 18.59
1944-45 34 86.31 71.01 15.30
1945-46 29 104.35 84.18 20.17
1946-47 32 116.84 107.32 9.52
1947-48 31 127.52 103.91 23.61

This chart shows a pattern of discrimination in this 
respect. On the witness stand Dr. Ramsey admitted that 
he knew “ in a general way” of this discrepancy in expendi­
tures; that he could have known conclusively if he had 
made an effort to find out (R. 216), and that it does make 
a pattern of spending less on Negroes than on whites in op­
erations (R. 217).

This chart was admitted over Defendants’ objection. 
The Court ruled that it would be assumed to be correct; 
that Defendants had the right to check and rebut its ac­
curacy (R. 218). Defendants have never directly disputed 
these facts.

Defendants introduced an analysis, Defendants’ Ex­
hibit No. 4 (R. 319), which is the Per capita cost for instruc­
tion, as against all operating expense. But this chart



29

shows the same pattern of discrimination. Defendants’ 
Exhibit No. 4 shows:

High Schools
Year White Colored Difference*

1945-46 $104.35 $ 84.18 20.17
1946-47 116.84 107.32 9.52
1947-48 127.52 103.91 23.61
1948-49 134.89 124.88 10.01

Dr. Ramsey admits that even his own calculations show 
this pattern (R. 366). Note that for 1945-46, 1946-47 and 
1947-48 our differences are the same.

Considering this testimony and evidence, Plaintiffs re­
spectfully submit that the Court erred in its Finding of 
Fact to the effect that there is not in existence or imminent 
any policy, custom or usage in the Special School District 
of Fort Smith, Arkansas, under which the Negro school 
children of the District are discriminated against in favor 
of the white children of the District (23).

The appellants submit that, based upon the forego­
ing authorities, the decision of the trial Court dismissing 
Plaintiffs’ Complaint on its own motion should be re­
versed, and an order entered granting Plaintiffs the re­
lief prayed for in their original and amended complaint.

Respectfully submitted,
J. R obert B o o k er ,
Century Building,

Little Rock, Arkansas,
U. S im p s o n  T a t e ,

1718 Jackson Street,
Dallas, Texas,

Attorneys for Appellants.

The calculation of the difference is ours.