Raney v. Board of Education of The Gould School District Brief for Appellants

    Intteft States (Unurt of Appeals
F oe, t h e  E ig h t h  C ircu it  

No. 18527 

Civil

Aethttr, L ee R a n e y , et al.,
Appellants,

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

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF ARKANSAS, PINE BLUFF DIVISION

BRIEF FOR APPELLANTS

J ack  G reenberg 
J am es  M. N abrit , III 
M ic h ael  M eltsner  
H en ry  M. A ronson  
M ic h ael  J . H en ry

10 Columbus Circle
New York, New York 10019

J o h n  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

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

Unequal Facilities ....................................................  3

Unequal Programs ....................................................  5

Teacher Segregation ..........    6

Intimidation ................................................................ 7

New Construction to Perpetuate Segregation....... 8

Denial of Relief by the Court B elow ...................... 10

Statement of Points to Be Argued .............................  11

A bg u m en t—

I. This Court Should Consolidate the Dual School 
System in Gould so that All Elementary Stu­
dents Attend the Field Site and All High School 
Students Attend the Gould Site, Under the Prin­
ciples of Kelley v. Altheimer .............................  13

The Remedy..........................................-............. 18

II. Appellants Are Entitled at the Very Least to a 
Comprehensive Decree Governing the Desegre­
gation Process Under Kelley v. Altheimer ....... 23

C onclusion 28



IX

A ppen d ix—
PAGE

Affidavit on the Status of the New School Con­
struction in the Gould School District (April 
28, 1967) .................................................................. la

A Summary of the Testimony of Plaintiff’s Ed­
ucational Expert in Kelley v. The Altheimer, 
Arkansas Public School District No. 22 et al. 
on the Inefficiency of a Dual School System of 
Small Schools ........................................................  3a

The Decree of the Court of Appeals for the Eighth 
Circuit in Kelley v. The Altheimer, Arkansas 
Public School District No. 22 et al., No. 18,528, 
April 12, 1967 ........................................................  7a

T able op Cases

Board of Education of the Oklahoma City Public 
Schools v. Dowell, 10th Cir., No. 8523, January
23, 1967 ................................................................... 22, 24, 25

Board of Public Instruction of Duval County, Pla. v.
Braxton, 326 F.2d 616 (5th Cir. 1964) ...................... 15

Bradley v. School Board of the City of Richmond, 382
U.S. 103 (1965) ............................................................ 25

Brown v. Board of Education, 347 U.S. 483 (1954) .... 21 
Brown v. Board of Education, 349 U.S. 294 (1955) .... 25

Chambers v. Hendersonville City Board of Education,
364 F.2d 189 (4th Cir. 1966) .....................................  25

Clark v. Board of Education of Little Rock School Dist.,
369 F.2d 661 (8th Cir. 1966) .....................................  26

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965) 22



I l l

PAGE

Kelley v. The Altheimer Arkansas Public School Dis­
trict No. 22, 8th Cir., No. 18,528, April 21, 1967 ....13-17,

22, 23-28, 7a-lla
Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) .......16,25

McLaurin v. Oklahoma State Regents, 339 U.S. 637 
(1950) ................................................................-..........21>27

Missouri ex rel. dailies v. Canada, 30o U.S. 337 
(1938) ....................... -...................................................21>27

Rogers v. Paul, 382 U.S. 198 (1965) .............................  25

Smith v. Board of Education of Morrilton School 
Dist. No. 32, 365 F.2d 770 (8th Cir. 1966) ..................  26

Sweatt v. Painter, 339 U.S. 629 (1950) ....~..............-21, 27

United States v. Jefferson County Board of Education,
5th Cir., Civil No. 23345, December 29, 1966; reaf­
firmed en banc, March 29, 1967 .................. -...... 22, 24, 25

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

Wheeler v. Durham City Board of Education, 363 F.2d 
738 (4th Cir. 1966) ..................................................... -

Wright v. County School Board of Greensville County,
Va., 252 F. Supp. 378 (E.D. Va. 1966) ........... -.......- 15



Imtpfc BtnUa (totrt nt Kppttda
F oe t h e  E ig h t h  C ircuit  

No. 18527 

Civil

A et h e r  L ee R an ey , et al.,
Appellants,

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

Appellees.

BRIEF FOR APPELLANTS

Statement of the Case

This case originally involved a class action suit by 
Negro students filed September 7, 1965, against the 
Gould Special School District of the State of Arkansas 
to enjoin said district, inter alia, from (1) requiring 
them and all others similarly situated to attend the all- 
Negro Field School, (2) providing public school facilities 
for Negro pupils which are inferior to those provided 
for white pupils, and (3) otherwise operating a racially 
segregated school system (R. 3-8). Plaintiffs first learned 
of a proposed construction program during the hearing- 
on the complaint in November 1965 and an amendment 
at that time was accepted by the trial court seeking to 
require that any future replacement high school facilities 
in the Gould school system be located on the premises



2

of the white Gould High School, rather than on the 
premises of the Negro Field School (R. 12, 138).

The Gould school system is a school district of very 
small population, having a total enrollment of 879 in 
the 1965-66 school year (R. 79-80). Until September, 
1965 the district had not taken any steps to comply with 
Brown v. Board of Education—the district operated com­
pletely separate schools for Negro and for white pupils 
(R. 31). Negro students were instructed in a complex 
of buildings known as the Field School, and white students 
were taught in a complex of buildings known as the Gould 
School (R. 31). The sites of the two building complexes 
are within 8 to 10 blocks of each other (R. 73). Each 
site contains an elementary school and a secondary school 
(R. 31). Also up until September, 1965, the faculty was 
completely segregated, with white students taught only 
by white teachers and Negro students taught only by 
Negro teachers (R. 31).

The school district did not consider undertaking any 
program of desegregation until compelled to do so under 
the Guidelines of the United States Department of Health, 
Education, and Welfare implementing Title VI of the 
Civil Rights Act of 1964 (R. 121-122). In September of 
1965, the district adopted a “freedom of choice” plan of 
desegregation for all 12 grades. This plan was later 
amended to withdraw three grades from the plan for 
the 1965-66 school year (R. 53-60, 62-63). During the 
fall of 1965, the enrollment figures for the school district 
were as follows: 509 Negro students in the all-Negro 
Field School, and 71 Negro students and 299 white stu­
dents in the previously all-white Gould School (R. 79-80). 
There were no white students attending the all-Negro 
Field School (R. 79-80).



3

Unequal Facilities

The present condition and the past condition since 1954 
of the all-Negro Field High School was admitted by 
W. C. Sheppard, Jr., President of the Board of Edu­
cation, to have been “grossly inferior” to the white high 
school (R. 130). It is an old wooden frame structure 
erected in 1924 (R. 10, 16). He said that the reason that 
no money had been spent on the Negro high school facility 
since 1954 was that every dollar available had been ex­
hausted on other uses (R. 130). Nevertheless, a com­
pletely new high school had been constructed at the white 
Gould site in 1964 following a fire which destroyed the 
old high school building there (R. 83).

As of September, 1965, the Negro Field High School 
was completely unaccredited, and the Field Elementary 
School had class “C” rating from the Arkansas State 
Department of Education (R. 31). By contrast, the 
predominantly white Gould Schools had ratings of “A” 
from the State of Arkansas (R. 10).

The bathroom facilities at the Negro Field High School 
are located in a separate building, which requires stu­
dents to walk outside to reach them in all kinds of weather 
(R. 50-52). Similarly the gymnasium facilities for the 
use of Negro high school students are located about four 
blocks away on the premises of the Negro elementary 
school (R. 32). Conversely, the predominantly white 
Gould High School and Elementary School each have rest 
room facilities within each building, which facilities are 
kept in good repair and are adequate (R. 50-52).

There is an agriculture building at the predominantly 
white Gould High School, but there is none at the Negro 
Field High School (R. 40-41). There is a hot lunch pro­



4

gram for both elementary and secondary students at the 
predominantly white site, hut there is none at the Negro 
site and there never has been one (R. 40). The section 
of the Negro high school which is used as an auditorium 
is inadequate for that purpose in capacity and facilities, 
whereas there is a room designed as an auditorium at 
the white high school (R. 41).

There is a library in the white high school which con­
tains approximately 1,000 books, and there is an actual 
librarian who has several periods of the day set aside 
for library duties (R. 42-43). Conversely, there is no 
library at the Negro school. The school does have three 
sets of encyclopedias, one of which was purchased just 
one month before the hearing in this case (R. 113-114). 
These books are kept in the office of the principal of the 
school rather than in a separate library, and the prin­
cipal of the school, in effect, functions as librarian, to 
the extent that any such functions are required with such 
a minimal number of books (R. 114). Even these books 
were purchased with private contributions rather than 
funds supplied by the school board (R. 114). The record 
shows that the superintendent had a complete lack of 
knowledge of the extent, or lack of same, of the library 
facilities at the Negro School (R. 42-43).

The science facilities at the Negro high school were 
admitted by the superintendent to be inferior to those 
of the predominantly white high school, even though the 
former is the larger school (R. 43-44). Pupils who attend 
the predominantly white Gould High School generally 
have an individual desk and chair, whereas the standard 
pattern at the Negro Field High School is that there is 
a folding table with folding chairs and three on each 
side, sitting at the table (R. 47-48).



5

Unequal Programs

The various specific inequalities are reflected in the 
fact that the “per pupil” expenditure by the school system 
is less for the all-Negro Field High School than it is for 
the formerly all-white and now predominantly white Gould 
High School (R. 44). Even this disparity does not fully 
reflect the actual disparity in the situation because of 
the school system’s past practice of charging enrollment 
fees to pupils at Field High School, but not at the Gould 
High School (R. 44-45). It was also the practice of the 
school system in the past to require Negro students to 
pick cotton in the fields during class time and after hours 
for school fund raising projects, and to pay the enroll­
ment fees (R. 44-46). For instance, even a portion of 
the rather small number of books at the Field School 
were purchased through fund-raising efforts by the stu­
dents rather than with funds supplied by the Board of 
Education (R. 105-106).

The unequal per pupil expenditures of the school sys­
tem are also reflected in the fact that the student-teacher 
ratio is higher at the Negro school than at the predom­
inantly white school, i.e., the average class size is larger 
at the former than at the latter (R. 59-62). There are 
14 teachers for 365 students at the predominantly white 
Gould School, but only 16 teachers for 478 students at 
the all-Negro Field School (R. 60-61). This disparity is 
similarly reflected in inequality of salaries for Negro and 
white teachers. The range of Negro teacher salaries is 
from $3,870 to $4,500, whereas for white teachers, the range 
is from $4,050 to $5,580 (R. 33-39).

There are also disparities in course offerings at the 
two high schools. For instance, neither vocational agri­
culture nor journalism, which are offered at the predom­



6

inantly white school, are offered at the all-Negro school, 
although the latter is the larger of the two (E. 52-53). 
There is a similar disparity in the offering of extra­
curricular activities. Again, although the Negro school 
is the larger of the two, there are no football, basketball, 
or track programs offered at the Negro high school, 
whereas there are football, basketball, and track teams 
at the formerly all-white school (E. 106-107). While there 
is a Future Farmers of America vocational club at the 
white school, there is none at the Negro school (E. 106).

Teacher Segregation

The Gould school system has undertaken only token 
faculty desegregation, with only one or two white teachers 
being assigned to some duties at the Negro school and 
no Negro teachers assigned to regular teaching at the 
white school (E. 67-70). The school system has no plans 
for substantial faculty desegregation. The superintendent 
stated that “we have kept that in the background, we want 
to get the pupil integration question settled and running 
as smoothly as possible before we go into something else” 
(E. 68). The system had not even begun integrated faculty 
meetings or “ in-service” work shops, so as to produce 
some integrated faculty and staff contact, as preparation 
for future actual staff integration (E. 68).

When asked whether re-assignments of faculty members 
were eventually contemplated, the superintendent stated 
that “We do not have any plans to re-assign anybody” 
(E. 69). He also indicated that this same standard of 
continued assignment on the basis of the predominant 
race of the student body would be applied to new teachers 
hired in the future (E. 69). As compliance with HEW 
requirements, the school system submitted a plan in which



7

it stated that it “will attempt to employ Negro teachers 
in a predominantly white school on a limited basis, and 
particularly in positions that do not involve direct in­
structions to pupils” (R. 69). This is in spite of the fact 
that the qualifications of the Negro teachers in the school 
system were described by the superintendent as generally 
superior to those of the white teachers, with every Negro 
teacher having a bachelor’s degree and two having master’s 
degrees, while there is only one white teacher with a 
master’s degree and two are without any degrees (R. 32- 
33, 94-95).

Intimidation

In response to the admittedly deplorable conditions in 
the Negro high school, the PTA at the Negro school had 
begun to protest these conditions to the superintendent 
and the school board. The superintendent responded to 
these petitions for redress of grievances by issuing an 
order which forbade the Negro PTA from meeting in the 
Negro high school (R. 63-64). He stated that “the reason 
for that is, as I understand, the PTA had evolved into 
largely a protest group against the school board and the 
policies of the board. The members of that organization 
were the same who planned to demonstrate against the 
G-ould High School and had sent chartered bus loads of 
people to Little Rock to demonstrate around the Federal 
Building, who were getting a chartered bus of sympathizers 
to come to this hearing today and it does not seem right 
to us to furnish a meeting place for a group of people 
that is fighting everything we are trying to do for them” 
(R. 64).

When questioned as to whether this in effect meant 
that the Negro high school patrons could not have a PTA, 
the superintendent responded, “they can have a PTA but



8

they can meet somewhere else” (E. 64). He later admitted 
that he had no knowledge that any plans for marches or 
demonstrations had been made at a PTA meeting, and 
that all that he had heard to this effect was pure hearsay 
(E. 108-109). The superintendent and some members of 
the Board of Education also obtained an injunction against 
several civil rights groups in Gould, enjoining them from 
making protests about conditions in the school system, 
by picketing in the vicinity of the predominantly white 
Gould High School (E. 63).

New Construction to Perpetuate Segregation

The plan for the program of construction which appel­
lants sought to change dates back to 1954, a decade before 
the school district gave any consideration to undertaking 
desegregation, and apparently resulted from an equaliza­
tion lawsuit brought at that time (E. 65-67, 72-77, 129, 131). 
The plan provided for the construction of a complete 
new high school on the site of the present all-Negro Field 
Schools to replace the Negro high school facility entirely 
(E. 65-67). The Field High School site is located just 8 to 
10 blocks from the predominantly white Gould High School 
site (E. 73), and each of the dual high schools has an 
enrollment of only about 200 students (E. 29-30).

Plaintiffs sought to alter this new construction, which 
was not scheduled to begin until January, 1967, by a timely 
amendment during the hearing in November, 1965 (E. 
137-138). However, the district court refused to grant re­
lief in an opinion in April, 1966, and the court reporter 
did not complete the transcript in the case until one year 
later—April 1, 1967—thereby delaying the appeal (E. 140). 
However, only the outer shell of the new building des­
ignated for use as the new Field High School has been



9

completed at the time of the filing of this brief. A number 
of walls are not in; plumbing facilities and fixtures have 
not been added; much work remains to be done on the 
interior walls and upon the roof; flooring has not been 
laid; and all of the doors and windows have apparently 
not been installed (see Affidavit of Attorney John W. 
Walker, Appendix, infra, p. la).

The superintendent admitted that the Field High School 
is now clearly a “Negro” school, and that it probably 
would continue to be an all-Negro school, if it were re­
placed with a new facility at the Field site (R. 67). He 
admitted that it was economically inefficient for such a 
small school district to undertake to construct a whole 
new separate high school when it already had one, since 
this will require having two libraries, two auditoriums, 
two agriculture buildings, two science laboratories, two 
cafeterias, two business departments, etc., and it is more 
expensive per pupil for a small district such as Gould 
to build a whole new facility from the beginning, rather 
than expanding an already existing facility (R. 74-76).

The Gould High School is the most modern physical 
facility in the district, having been the most recently con­
structed in 1964 (R. 89). ' The adjacent predominantly 
white Gould Elementary School was originally constructed 
for use as a high school and was subsequently converted 
to an elementary school (R. 81-82). There is a sizable 
area of presently vacant land adjacent to the campus of 
the predominantly white Gould High School which could 
be condemned for public use for expansion of that high 
school (R. 73-74).

The Negro Field Elementary School is also a modern 
facility, which was constructed in 1954, with a gym­
nasium and auditorium added in 1960, and two addi­
tional class rooms in 1965 (R. 89-91). The gymnasium at 
the Negro Field Elementary School is modern and presently



10

used by both elementary and high school students there, 
so that it would be adequate for use by all of the elemen­
tary school students in the district if the white elementary 
students at Gould were shifted to Field and the Negro 
high school students at Field were shifted to Gould 
(E. 20). If the dual school systems were consolidated into 
a single system, the elementary school would contain ap­
proximately 450 students and the secondary school would 
contain approximately 400 students (E. 29-30).

Denial of Relief by the Court Below

The district court denied all requested relief and dis­
missed the case in a memorandum opinion filed April 26, 
1966 (E. 12-25). In its opinion, the court indicated that 
the facts that the school district had begun a desegrega­
tion plan without being ordered to do so by a court, that 
the plan was approved by the Federal Department of 
Health, Education, and Welfare, and that some Negro 
students were in fact attending the “white” school, were 
persuasive as to the good faith of the board of education 
in undertaking desegregation. Because of this, and the 
reasons of administrative convenience offered by the board 
of education for constructing the new high school replace­
ment facilities on the site of the present Negro elementary 
school rather than enlarging the previously all-white school, 
the court determined that the replacement plan was not 
“ solely motivated by a desire to perpetuate or maintain 
or support segregation in the school system” (E. 24-25).

Plaintiffs filed notice of appeal from this decision in 
proper time, and the case was scheduled to be heard at 
the same time as the companion case of Kelley v. AU- 
heimer, No. 18,528. However, the court reporter was sick 
for an extended period of time, and was unable to com­
plete the transcript until April 1st this year (1967) (E. 140).



11

STATEMENT OF POINTS TO BE ARGUED

I.
This Court Should Consolidate the Dual School Sys­

tem in Gould so that All Elementary Students Attend 
the Field Site and All High School Students Attend 
the Gould Site, Under the Principles of Kelley v. Alt- 
heimer.

Board of Education of the Oklahoma City Pub­
lic Schools v. Dowell, 10th Cir., No. 8523, 
January 23, 1967;

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

Brown v. Board of Education, 347 U.S. 483 
(1954);

Dowell v. School Board of Oklahoma City, 244 
F. Supp. 971 (W.D. Okla. 1965);

Kelley v. The Altheimer, Arkansas Public 
School District No. 22, 8th Cir., No. 18,528, 
April 12, 1967;

Kemp v. Beasley, 352 F,2d 14 (8th. Cir. 1965);
McLaurin v. Oklahoma State Regents, 339 U.S. 

637 (1950);
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 

(1938);
Sweatt v. Painter, 339 U.S. 629 (1950);
United States v. Jefferson County Board of 

Education, 5th Cir., Civil No. 23345, December 
29, 1966; reaffirmed en banc, March 29, 1967;

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

Wright v. County School Board of Greensville 
County, Va., 252 F. Supp. 378 (E.D. Va. 1966).



12

II.

Appellants Are Entitled at the Very Least to a Com­
prehensive Decree Governing the Desegregation Proc­
ess Under Kelley v. Altheimer.

Board of Education of the Oklahoma City Pub­
lic Schools v. Dowell, 10th Cir., No. 8523, 
January 23, 1967;

Bradley v. School Board of tine City of 'Rich­
mond, 382 U.S. 103 (1965);

Brown v. Board of Education, 349 U.S. 294 
(1955);

Chambers v. Hendersonville City Board of Edu­
cation, 364 F.2d 189 (4th Cir. 1966);

Clark v. Board of Education of Little Rock 
School Dist., 369 F.2d 661 (8th Cir. 1966);

Kelley v. The Altheimer, Arkansas Public 
School District No. 22, 8th Cir., No. 18,528, 
April 12, 1967;

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965);
McLaurin v. Oklahoma State Regents, 339 U.S. 

637 (1950);
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 

(1938);
Rogers v. Paul, 382 U.S. 198 (1965);
Smith v. Board of Education of Morrilton Sch. 

Dist. No. 32, 365 F.2d 770 (8th Cir. 1966);
Sweatt v. Painter, 339 U.S. 629 (1950);
United States v. Jefferson County Board of 

Education, 5th Cir., Civil No. 23345, December 
29, 1966, reaffirmed en banc, March 29, 1967;

Wheeler v. Durham City Board of Education, 
363 F.2d 738 (4th Cir. 1966).



13

ARGUMENT

I.

This Court Should Consolidate the Dual School Sys­
tem in Gould so that All Elementary Students Attend 
the Field Site and All High School Students Attend 
the Gould Site, Under the Principles of Kelley v. Alt- 
heimer.

This case is controlled by the principles of this Court’s 
decision in Kelley v. The Altheimer, Arkansas Public 
School District No. 22 et al., No. 18,528, April 12, 1967. 
This Court held in Kelley that the location of schools 
to perpetuate segregation must be enjoined.1

In Kelley, this Court was confronted with a school sys­
tem which contained only 1,400 total students and 
which had nevertheless rebuilt two elementary schools 
on the traditional sites of the Negro and white schools 
within a few blocks of each other just after adopting a 
so-called “freedom of choice” desegregation plan. The 
Court noted that (1) the original planning for the re­
placement construction had been made during segregated 
operation of the system long before any thought had been 
given to desegregation, and the plans had not been either 
changed or even reconsidered after ostensible desegrega­
tion had begun; (2) there was almost negligible consulta­

1 It should be noted that the trial judge’s opinion in Kelley v. Altheimer 
denying relief against the new construction in that case relied on District 
Judge Young’s opinion in this case, which preceded Kelley, also denying 
such relief. See Kelley Record, No. 18,528, p. 248. The Court’s attention 
is also respectfully invited to the Brief for Appellants in Kelley v. 
Altheimer, No. 18,528, prepared by the same counsel as counsel for ap­
pellants here, which contains an extended analysis of basic principles 
of equity jurisprudence concerning implementation of the remedy in the 
school desegregation eases— which discussion is not repeated here.



14

tion with the community on the plans for the replacement 
construction; (3) the school system was so small that 
there was no educational or financial justification under 
generally accepted school administration practice for the 
maintenance of separate buildings to serve two separate 
student bodies within the same general area; (4) the 
replacement plans were clearly premised on the continued 
attendance at the Negro site of a number of students ap­
proximately equal to the number of Negro students in 
the system, and the continued attendance at the white site 
of a number of students approximately equal to the num­
ber of white students in the system; (5) the Superin­
tendent indicated in his testimony that it was the system’s 
assumption that the present all-Negro school might re­
main an all-Negro school after the replacement construc­
tion program; (6) the school system had undertaken no 
steps since Brown to attempt to change the identity of 
the Negro school from a racial to a non-racial school, 
having undertaken no teacher desegregation and providing 
the school with insufficient funds, resulting in heavier class 
loads for its teachers, inferior library facilities, and a 
lower scholastic rating.

Based on these facts, this Court concluded that “the 
trial court’s finding that the new buildings were not de­
signed to perpetuate segregation” was erroneous. It said:

The construction program, which served as the basis 
of the appellants’ Complaint, emphasized the intention 
of the Board of Education to maintain a racially segre­
gated school system. Under such circumstances, it is 
understandable that no white students can be expected 
to transfer to [the Negro school].

# # *



15

This action sharply brought home to the Negro com­
munity the Board’s expectation that their present and 
future children were to continue attending the tradi­
tionally all-Negro Martin School, and that there would 
not be room for them at [the predominantly white] 
Altheimer.

This Court held in Kelley:

We would add that the lower court should have 
recognized the problems inherent in the Board’s con­
struction plans and required them to be modified to 
meet constitutional standards. Undue reliance on the 
“deliberate speed” language in the Brown case, plus 
adherence to the dictum in Briggs, has resulted in a 
decision which makes it more difficult to achieve a 
non-racially operated school system.

It is clear that school construction is a proper matter 
for judicial consideration. Wheeler v. Durham City 
Board of Education, 346 F.2d 768 (4th Cir, 1965); 
Board of Public Instruction of Duval County, Fla., 
et al. v. Braxton, et al. [326 F.2d 616 (5th Cir. 1964)]. 
It is also clear that new school construction cannot 
be used to perpetuate segregation. In Wheeler v. 
Durham City Board of Education, supra at 774, the 
Court stated:

“From remarks of the trial judge appearing in the 
record, we think he was fully aware of the pos­
sibility that a school construction program might 
be so directed as to perpetuate segregation. . . .”

Relying upon Wheeler, the District Court in Wright 
v. County School Board of Greensville County, Va., 
252 F. Supp. 378, 384 (E.D. Ya. 1966) said:



16

“This court is loathe to enjoin the construction of 
any schools. Virginia, in common with many other 
states, needs school facilities. New construction, 
however, cannot be used to perpetuate segrega­
tion. . . .”
We conclude that the construction of the new class­

rooms by the Board of Education had the effect of 
helping to perpetuate a segregated school system and 
should not have been permitted by the lower court.

Nevertheless, this Court concluded in Kelley that since 
the new building sought to be enjoined had already been 
completed, and since it had given qualified approval in 
Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965), to “freedom 
of choice” plans of desegregation where there was some 
reasonable probability that such plans would actually 
desegregate the system, that the “freedom of choice” plan 
adopted by that school system would be permitted to con­
tinue for a period of time.

But this Court also emphasized in Kelley that the “free­
dom of choice” plan must actually have some reasonable 
probability of desegregating the system. In this connec­
tion it pointed out that the situation in the school system 
must be such that the mechanics of a “ freedom of choice” 
plan can prevent or counteract the interference by the 
school administration or board of education with students’ 
“ freedom of choice.” It also explicitly stated that the 
constitutional obligation to desegregate applied to the 
whole school system, and a system could not be considered 
desegregated as long as it continued to have clearly identi­
fiable Negro schools:

The appellee School District will not be fully desegre­
gated nor the appellants assured of their rights under 
the Constitution so long as the Martin School clearly



17

remains identifiable as a Negro school. The require­
ments of the Fourteenth Amendment are not satisfied 
by having one segregated and one desegregated school 
in a District.

# #
[W]e have made it clear that a Board of Education 
does not satisfy its constitutional obligation to deseg­
regate by simply opening the doors of a formerly 
all-white school to Negroes.

The Gould School District undertook no desegregation 
at all from 1954 until compelled to do so at the time that 
the Civil Rights Act of 1964 became applicable in 1965, 
when it adopted a “ freedom of choice” plan in order to 
receive federal funds. Now that Negro students can at­
tempt to transfer to the white high school under that 
plan, the school district has actually undertaken the long 
promised but long delayed upgrading of the Negro high 
school. A program of replacement construction has begun 
on the site of the present all-Negro elementary school 
which is designed to replace the Negro high school com­
pletely.

The Superintendent stated that he expected that this 
would continue to be an all-Negro school as only Negroes 
would elect to go there (R. 67). The Negro site is located 
just 8 to 10 blocks from the traditionally white site (R. 
73), and each of the dual high schools has an enrollment 
of only about 200 students (R. 29-30). The Superintendent 
admitted that it is economically and educationally ineffi­
cient for such a small school district to undertake to 
construct a second separate high school, rather than ex­
panding the one good one which it has on the traditionally 
white site (R. 74-76). The planning for this replacement 
construction goes back to long before the school system 
began to consider desegregation, and was not subsequently



18

changed (E. 65-67, 72-77, 129, 131). No attempt has been 
made to alter the racial identity of the all-Negro schools.

Unlike the off ending dual schools in Kelley, the replace­
ment construction sought to be enjoined has not yet been 
completed at the time of the filing of this brief. While the 
foundation has been laid and portions of the outer shell 
of a building erected, the various furnishings which would 
cause this building to actually become a high school rather 
than an elementary school have yet to be installed (See 
affidavit in Appendix, infra, p. la.)

The Remedy

The present situation of the Gould school system ideally 
lends itself to a plan of consolidation, with the Gould 
School site becoming the single secondary school, and the 
Field School site the single elementary school for the dis­
trict. The present traditionally white Gould High School 
is the most modern facility in the district, having been 
completed in 1964 (E. 89). The immediately adjacent 
Gould Elementary School was originally constructed for 
use as a high school, and was subsequently converted to an 
elementary school (E. 81-82). If the Gould Elementary 
School were converted back to use as a high school, the 
combined Gould Elementary-High School site would be 
clearly suitable for all of the secondary students in the 
district—numbering about 400 (E. 29-30). There is also a 
sizable area of presently vacant land adjacent to the cam­
pus of the Gould Schools which could be condemned for 
public use for expansion of the high school if that should 
prove necessary (E. 73-74).

The presently all-Negro Field Elementary School is also 
a modern facility, constructed in 1954 with subsequent ad­
ditions (E. 89-91). The gymnasium is adequate for both 
the present number of Negro elementary and Negro high



19

school students, so that it would also be suitable for the 
Field School to be used by all of the elementary students 
in the system (R. 20). The replacement building presently 
under construction and planned by the system for use as 
the Negro high school is immediately adjacent to the Field 
Elementary School, and can at this point easily be fur­
nished as an addition to the elementary school—which 
would make the combined Field School adequate for all of 
the elementary students in the district, numbering about 
450 students (R. 29-30).

Although this case is similar to Kelley, the facts devel­
oped in this record indicate that the school administration 
in the Gould school system is considerably more hostile to 
the Negro community than that in the Altheimer system 
and that therefore the approval of a “ freedom of choice” 
desegregation plan, rather than a plan of consolidation, 
would simply cloak the continued existence of a segregated 
dual school system. The Court in Kelley noted that one 
defect of the board’s plans for replacement construction 
was the failure to seek community involvement in those 
plans. Here, instead of simply failure to consult the Negro 
community, we have a clear case of active intimidation of 
the community, which had been seeking not even desegrega­
tion of the schools, but simply equalization. The PTA of 
the Negro school wTas prohibited from meeting at the school 
once it began to protest conditions there, and an injunction 
was obtained by the board of education against public pro­
tests concerning school conditions (R. 63-64).

The degree of inequality between the Negro and white 
high schools which has been maintained by the Gould 
School District since 1954, despite a court judgment 
requiring their equalization, suggests that the board is so 
totally committed to victimizing the Negro community 
that it could not be expected to administer a “freedom



20

of choice” plan fairly even under a court order. In Kelley 
it is to be noted that the facilities, while unequal, were still 
comparable enough that the replacement construction for 
both the Negro and white schools was being undertaken at 
the same time. Here the Negro high school is an old 
wooden frame structure erected in 1924, while the white 
high school is a modern new building constructed in 1964 
(E. 10, 16, 83), and the Negro high school was admitted to 
have been “grossly inferior” to the white high school at 
least since 1954 by the president of the board of education 
(E. 130). The white high school has an “A ” rating from 
the State of Arkansas while the Negro high school is com­
pletely unaccredited (E. 10, 31). The library at the Negro 
school is virtually non-existent, while the library at the 
white school contains approximately 1,000 volumes (E. 42- 
43, 113-114). The unconscionable and direct exploitation 
of Negro students and faculty members is unequivocably 
demonstrated by the long-standing practice of requiring 
Negro students to take time off from class to engage in 
“fund-raising” projects such as cotton picking to pay the 
“ enrollment fees” at the Negro school, while there were no 
such fees at the white school (E. 44-46); and by the sub­
stantially lower salary scales for Negro teachers as com­
pared to white teachers of the same qualifications (E. 
33-39).

Unless the Gould school district is enjoined from using 
the addition to the Field site as a separate high school, not 
only will a predominantly segregated school system be ir­
revocably fastened upon the community for at least another 
generation, but all of the students in the system—Negro 
and white—will continue to pay the price of the inefficiency 
which the attempt to operate a dual school system by such 
a small district causes. It is to be noted that the school sys­
tem in Kelley had 667 secondary students, while the Gould



21

system has only about 400 (E. 29-30). Appellants have re­
printed in the Appendix to this brief, infra, pp. 3a-6a, a sum­
mary of the expert testimony given in Kelley v. Altheimer, 
outlining the basic educational theory as to why very small 
schools are economically and educationally inefficient, which 
this Court found persuasive. Since the Gould school sys­
tem is in the county (Lincoln) immediately adjacent to 
the one in which the Altheimer school system is located 
(Jefferson), and since the Gould school system is identical 
in pattern but even smaller in number of students to the 
Altheimer system, all of these propositions apply a fortiori 
to the Gould system. This is graphically illustrated by the 
testimony concerning the disparity in course offerings at 
the two present high schools. The Superintendent indi­
cated that one reason why journalism was not offered at 
the Field High School but was at Gould, was that not 
enough students requested it at Field to justify assigning 
a teacher to it (E. 93-94). If all students were attending 
the same high school, everyone would have the opportunity 
to take journalism, and more such enrichment courses 
would be likely to be offered since there would be more 
total students who would probably elect them. Similarly, 
the basic sciences, chemistry and biology, are offered only 
in alternate years at Gould while they are offered every 
year at Field. In a consolidated system, all students would 
have the opportunity to take each of these courses every 
year.

Not only has the practice of segregation followed by this 
school district been unconstitutional since 1954, Brown v. 
Board of Education, 347 U.S. 483, but the “gross in­
feriority” of the separate public school facilities provided 
for Negro students has been unconstitutional at least since 
1938, Missouri ex rel. Gaines v. Canada, 305 U.S. 337 
(1938), Sweatt v. Painter, 339 U.S. 629 (1950), McLaurin



22

v. Oklahoma State Regents, 339 TT.S. 637 (1950). The his­
tory of this school district strongly argues that substantial 
equitable remedies would be justified to overcome the re­
calcitrance to equality for Negro students demonstrated.

However, all plaintiffs-appellants now seek is an injunc­
tion requiring a different utilization of existing buildings 
by the school district, rather than an actual change in loca­
tion of a yet un-constructed new building. This is pre­
cisely one component of the desegregation relief ordered 
by the district court in Dowell v. School Board of Oklahoma 
City, 244 F. Supp. 971 (W.D. Okla. 1965) and approved by 
the U.S. Court of Appeals for the Tenth Circuit in Board 
of Education of the Oklahoma City Public Schools v. 
Dowell, No. 8523, January 23, 1967. This is a relatively 
minor step to assure a non-racial school system in the fu­
ture, for the record in this case shows no practical, admin­
istrative or other reason why this re-arrangement of the 
use of facilities would be burdensome to the school district. 
On the contrary, the record suggests that re-arrangement 
would result in a financial saving to this hard pressed dis­
trict (R. 74-76).

An order requiring the uncompleted new building on the 
site of the Field Elementary School to be used as an ad­
dition to that school, and the entire Gould School building 
to be used as the consolidated high school, would simply be 
to follow the requirement of the Kelley decree that “any 
new facilities shall, consistent with the proper operation 
of the school system, be designed and built with the objec­
tive of eradicating the vestiges of the dual system and of 
eliminating the effects of segregation.” See Kelley decree, 
infra, Appendix, p. 10a. Cf. the similar decree of the U.S. 
Court of Appeals for the Fifth Circuit in United States et 
al. v. Jefferson County Board of Education et al., Civil 
No. 23345, December 29, 1966, reaffirmed en banc, March 
29, 1967.



23

II.

Appellants Are Entitled at the Very Least to a Com­
prehensive Decree Governing the Desegregation Proc­
ess Under Kelley v. Altheimer.

Since a dual school system has not yet been irrevocably 
re-established in the Gould system as in Kelley v. Altheimer, 
and a plan of re-arranging the use of the facilities can be 
easily implemented so as to produce with certainty a uni­
tary integrated school system, many of the complexities 
which arise in attempting to enforce a desegregation plan 
in a multiple school system need not arise here. The 
present configuration of the facilities in the Gould system 
is highly flexible, and there are no substantial administra­
tive or practical obstacles of any kind which suggest that 
this Court should not order their rearrangement. This 
case comes to this Court on a record showing the admis­
sion of the superintendent of the school system that the 
system’s present plan for the use of its yet uncompleted 
new facilities will continue to maintain an all-Negro high 
school and an all-Negro elementary school (R. 67). For 
the above reasons, we think this case is unique.

Nevertheless, if this Court should approve the continued 
attempt by the Gould School District to meet its constitu­
tional obligation to desegregate by employing* “freedom of 
choice” , a comprehensive decree governing the desegrega­
tion process following that in Kelley v. Altheimer (reprinted 
infra, Appendix, pp. 7a-lla), should be entered. This school 
district has shown by its past performance that not only is 
it extremely hostile to the idea of equality for Negroes 
and the end of segregation, but also that it is not predis­
posed even to implement court orders requiring such goals 
to be achieved. Therefore, an effective equity decree must



24

liave the requirements for a plan of desegregation spelled 
out in detail in such a way that the board is not left undue 
discretion to destroy its effectiveness. Cf. United States v. 
Jefferson County Board of Education, supra; Board of 
Education of Oklahoma City Public Schools v. Dowell, 
supra.

The integration of faculty is absolutely fundamental to 
the success of a desegregation plan. Yet the Gould School 
District has assigned no Negro teachers to regular teach­
ing at the traditionally white schools, and only one or two 
white teachers to very limited duties at the traditionally 
and still all-Negro schools (R. 67-70). Furthermore, the 
system has no plans to substantially desegregate the fac­
ulty in the future, in spite of having filed compliances with 
the H.E.W. Guidelines, and has not even begun preparatory 
programs looking toward eventual faculty integration (R. 
68-69). It intends to apply the standard of assignment on 
the basis of race even to new faculty members to be hired 
in the future (R. 69).

As this Court said in Kelley:

“ . . the presence of all Negro teachers in a school
attended solely by Negro pupils in the past denotes 
that school a ‘colored school’ just as certainly as if 
the words were printed across its entrance in six- 
inch letters. . . .’

“It may be added, that the converse is also true, that an 
all-white faculty in a school attended exclusively by whites 
in the past denotes that school as a ‘white school.’

“The failure of the Board to take any steps towards de­
segregation of the faculty for more than a decade after 
Brown 1 and II, and the statement of the superintendent 
of schools that he does not intend to reassign faculty mem­



25

bers within the school system make it highly probable that 
faculties will not be desegregated unless such action is 
compelled by this Court or by the Department of Health, 
Education and Welfare. Regardless of the steps which 
may be taken by H.EW. to secure compliance, we will 
not avoid our responsibility in the matter.

“The Supreme Court and four Circuit Courts, including 
our own, have made it clear that a school District may not 
continue a segregated teaching staff [discussion of Brown 
v. Board of Education, 349 U.S. 294 (1955), Bradley v. 
School Board of City of Richmond, 382 U.S. 103 (1965), 
and Rogers v. Paul, 382 U.S. 198 (1965)].

“ The Fourth, Fifth and Tenth Circuits have also held 
that race must be eliminated as a basis for the employment 
and assignment of teachers, administrators and other per­
sonnel. The Board of Education of Oklahoma City Public 
Schools, et al. v. Dowell, et al., supra; United States, et al. 
v. Jefferson County Board of Education, et al., supra; 
Wheeler v. Durham City Board of Education, 363 F.2d 738, 
741 (4th Cir. 1966); Chambers v. Hendersonville City 
Board of Education, 364 F,2d 189 (4th Cir. 1966); [other 
citations omitted].

“Our own Court’s decisions on the obligation to desegre­
gate faculties are unequivocal.

In Kemp v. Beasley, supra at 22, Judge Gibson said:

‘Plaintiffs also complain that the Court did not 
order faculty and staff desegregation. The Court 
recognizes the validity of the plaintiff’s complaint re­
garding the Board’s failure to integrate the teaching- 
staff. Such discrimination is proscribed by Brown 
and also the Civil Rights Act of 1964 and the regula­
tions promulgated thereunder. . . .’



26

“In Smith v. Board of Education of Morrilton Sch. Dist. 
No. 32 [365 F.2d 770 (8th Cir., 1966)], at 778, Judge Black- 
mun said:

‘It is our firm conclusion that the reach of the 
Brown decisions, although they specifically concerned 
only pupil discrimination, clearly extends to the pro­
scription of the employment and assignment of public 
school teachers on a racial basis. (Citing cases.) This 
is particularly evident from the Supreme Court’s posi­
tive indications that nondiseriminatory allocation of 
faculty is indispensable to the validity of a desegrega­
tion plan. . . .’

“And, in Clark v. Board of Education of Little Bock 
School ’Dist. [369 F.2d 661 (8th Cir., 1966)], at 669-70, 
Judge Gibson stated:

‘We agree that faculty segregation encourages pupil 
segregation and is detrimental to achieving a constitu­
tionally required non-racially operated school system. 
It is clear that the Board may not continue to operate 
a segregated teaching staff. . . . It is also clear that 
the time for delay is past. The desegregation of the 
teaching staff should have begun many1 years ago. At 
this point the Board is going to have to take accele­
rated and positive action to end discriminatory prac­
tices in staff assignment and recruitment. (Emphasis 
added.)

* * # # *■
‘ . . .  We are not content at this late date to ap­

prove a desegregation plan that contains only a state­
ment of general good intention. We deem a positive 
commitment to a reasonable program aimed at ending 
segregation of the teaching staff to be necessary for 
the final approval of a constitutionally adequate de­
segregation plan. . . .’



27

“From these decisions, it is clear that affirmative action 
must be taken by the Board of Education to eliminate 
segregation of the faculty. While this may well be the 
most difficult problem in the desegregation process, it has 
been made more difficult by the failure of the Board to 
desegregate the faculties by filling vacancies on a non- 
racial basis.

“We cannot permit the difficulties involved in desegregat­
ing the faculties to deter us from achieving what the Con­
stitution requires. To facilitate faculty desegregation, we 
urge that the full understanding and cooperation of the 
Negro and white faculty be sought. Experience has in­
dicated that where an effort is made to obtain such co­
operation, it is given, that the task is made easier and that 
the results are more productive.”

Thus the decree of this Court with regard to faculty in 
Kelley, reprinted infra, Appendix, pp. 8a-9a, should also be 
entered in this ease.

Similarly, the shocking inequalities in facilities and pro­
grams between the all-Negro and predominantly white 
schools outlined in the Statement of the Case, supra, pp. 
3-6, require that a. detailed decree on school equalization 
be entered following the one in Kelley, Appendix, infra, 
p. 10a. No argument is required that this situation is com­
pletely unconstitutional, and has been so for at least sev­
eral decades. Missouri ex rel. Gaines v. Canada, supra, 
Sweatt v. Painter, supra, and McLaurin v. Oklahoma State 
Regents, supra.

The decree should also provide that all H.E.W. require­
ments should be complied with, and that the district court 
should retain jurisdiction to ensure that the decree is car­
ried out. In this regard it should particularly adopt the 
annual reporting requirement of the Kelley decree, which



28

makes effective enforcement of a desegregation plan pos­
sible. Similar provisions to those relating to students, 
transportation, and construction should also be included. 
See infra, Appendix, pp. 7a-lla.

Since the record of the Gould School District shows that 
“ the policies and practices of the appellee School District 
with respect to students, faculty, facilities, transportation 
and school expenditures have been designed to discourage 
the desegregation of the school system, and have had that 
effect,” just as did the record of the Altheimer School Dis­
trict, the vindication of the constitutional rights of the 
Negro students of Gould to a desegregated education re­
quires at the very least the entering of a comprehensive 
decree following that in Kelley v. Altheimer.

CONCLUSION

For the foregoing reasons, appellants respectfully pray 
that this Court reverse the lower court and grant the re­
quested relief seeking a genuinely desegregated school sys­
tem in accordance with the Constitution of the United 
States.

Respectfully submitted,

J ack  G reenberg 
J ames M . N abrit , III 
M ic h ael  M eltsner  
H en ry  M . A ronson  
M ic h ael  J . H enry

10 Columbus Circle
New York, New York 10019

J o h n  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Appellants



A P P E N D I X



APPENDIX

Affidavit on the Status of the New School Construction 
in the Gould School District (April 28 , 1967)

I n  th e

U n ited  S tates C ourt of A ppeals 

F or t h e  E ig h t h  C ircu it

No. 18527 
C ivil

A r t h u r  L ee R a n e y , b y  his m oth er and n ext fr ien d , 
M rs. R oxie R a n e y , et al..

Appellants,
v.

B oard of E ducation  of th e  G ould S chool D istrict ,

Appellee.

A F F I D A V I T

S tate of A rkan sas ,
C o u n ty  of P u l a sk i, ss. :

I, John W. Walker, being duly sworn, state:
(1) I am one of the attorneys for the appellants herein, 

and I have had occasion to travel to Gould, Arkansas in 
the last week and observe the state of the construction 
of the proposed new high school for Negroes (to be known 
as the Field High School) in the City of Gould, Arkansas.



2a

(2) The Field High School for Negroes, now under con­
struction, is being constructed on the premises of the 
Field Elementary School for Negroes, adjacent to the 
Field Elementary School and the gymnasium which were 
constructed several years ago.

(3) The construction of the new Field High School is 
partially complete but, to my observation, much work re­
mains to be done. A  number of the walls are not in; 
plumbing facilities and fixtures have not been added; much 
work remains to be done on the interior walls and upon 
the ceiling or roof; much work remains to be done on the 
floors, unless, of course, said floors are to be concrete; 
all of the doors and windows do not appear to be in ; and a 
significant drainage problem will have to be corrected be­
fore the building will be ready for occupancy.

(4) The site of the new construction is approximately 
10 or 12 blocks from the existing predominantly white 
Gould Elementary and High School.

Signed:

J oh n  W . W alker

Subscribed to and sworn before me, 
a Notary Public, this 28 day of April,
1967.

A nobew  J effries 
N otary P ublic

M y  C om m ission  E x p ir e s :
D ecem ber , 1968.



3a

A Summary of the Testimony of Plaintiff’s Educational 
Expert in Kelley v. The Altheimer, Arkansas Public 
School District No. 22 et al. on the Inefficiency of 
a Dual School System of Small Schools1

Plaintiffs obtained the services of an educational expert, 
Dr. Myron Lieberman, to analyze the educational sound­
ness of the then proposed new construction of small 
dual schools within a few blocks of each other. Dr. 
Lieberman is Director of Education Research and Develop­
ment, and Professor of Education, at Rhode Island College 
in Providence, Rhode Island.1 2 He made a substantial field 
investigation of the Altheimer school system, and surveyed 
the planning and impact of the construction proposal.3

T h e  I n efficien cy  of a D ual S chool S ystem  of 
S m all  S chools

As part of his analysis of the possible bases for the 
school board’s program of replacement construction, Dr. 
Lieberman considered the overall educational efficiency 
and desirability of the present dual structure of the 
Altheimer school system with two small school complexes.

1 U. S. Court of Appeals for the Eighth Circuit, No. 18,528, April 12, 
1967. This testimony is referred to on p. 19 of the Court’s slip opinion, 
and is described on p. 20 of that opinion as “ virtually uncontradieted.”  
It is also to be noted that counsel for the school district in this case 
(Baney v. Gould) were co-counsel for the school system in Kelley and 
participated in the deposition o f Dr. Lieberman. The record citations in 
this summary are to the record in Kelley, No. 18,528.

2 He has a Bachelor’s degree in law and social science from the Uni­
versity of Minnesota and Master’s and Ph.D. degrees in education from 
the University of Illinois. He has co-authored four books on school per­
sonnel administration and other aspects of public school planning (R  37- 
40).

3 He examined physical facilities at both school complexes and inter­
viewed the superintendent of schools, the principals o f the two school 
complexes, and a number of teacher's and other administrators in the 
school system. He was able to obtain relevant data from the school 
administration to allow him to analyze the operation o f the system 
(R. 40-42).



4a

He based his analysis particularly on what he considered 
“the most important study of secondary education that 
has been made in this country,” Dr. James Bryant Conant’s 
Study of the American High School (R. 44-45). He pointed 
out that in this work, Dr. Conant gives top priority in 
educational planning to the elimination of small high schools 
with graduating classes of less than one hundred [which 
would mean a six-year secondary enrollment of at least 
600] (R. 47).

A crucial reason for the desirability of larger high 
schools is to provide adequate teachers for specialized sub­
jects. When the total enrollment of the school falls below 
a certain number, the small percentage of the student 
body who are apt to elect any one of a number of special­
ized academic subjects will probably be so small that the 
school system will not feel that the expense of providing 
a teacher for that subject is justified. Thus, if there were 
two schools in which only ten students in each elect a 
particular subject, the school board might not provide a 
teacher for that subject in either school and therefore all 
20 of those students would be deprived of the opportunity 
of taking that subject; however, if all 20 of those students 
were in the same school and elected that subject, the school 
board would then feel justified in undertaking the expense 
of a teacher for that subject (R. 47).

This type of analysis was applied by Dr. Lieberman 
to other aspects of school operations at both the elemen­
tary and high school levels. For instance, the Altheimer 
school system is operating two libraries for grades one 
through 12 six blocks apart. If each library is to be ade­
quate and the facilities are to be equal, the school system 
must buy duplicate copies of every book, and every time 
duplicate copies of the same book are purchased where 
one would be sufficient, this means there will be less money 
to buy other different books that would be useful to students 
(R. 45-46).



5a

Dr. Lieberman noted that there is also the matter of 
specialization of training among personnel. For instance, 
it is most desirable for elementary students to have spe­
cially trained elementary librarians and secondary students 
to have specially trained secondary librarians. However, 
if there are two libraries, each of which covers grades 1 
through 12, and only one librarian at each one, then they 
will either have to have an elementary librarian and the 
secondary pupils will suffer because the librarian is in­
adequate for them, or vice versa. This would not be the 
case if one school were an entirely elementary school and 
the other school an entirely secondary school (R. 46).

Even where a school system does undertake to dupli­
cate course offerings and services in each of two small 
schools, Dr. Lieberman continued, it still cannot avoid 
necessary resulting inefficiencies. For instance, schools 
today perform a wide-range of functions in addition to 
purely academic instruction, such as vocational guidance, 
which require specialized personnel. If this special ser­
vice or special type of course is offered at a small school, 
it is not feasible for a specially trained teacher or other 
such special service personnel to spend all his time doing 
what he is a specialist in because there are too few pupils 
to require his full-time services, and to that extent his 
specialized training is wasted. The existence of such a 
situation also makes it more difficult to attract such spe­
cialized personnel, whose services are often difficult to ob­
tain in the first place (R. 50).

Dr. Lieberman pointed out that the capital outlay for 
equipment as well as the salary of specialized instructors 
adds up to such a large figure in terms of the few enrolled 
as to make many educational programs prohibitively ex­
pensive in schools where the graduating classes have less 
than one hundred (R. 47-48). Educational experts gen­
erally assume that a school district which is capable of



6a

eliminating small schools will do so. Dr. Lieberman con­
cluded that it did not make sense that a district such as 
Altheimer would maintain “twro high schools, which even 
combined, were less than the number needed to operate a 
high school efficiently from an educational standpoint” 
(R. 48). In reaching his conclusions, Dr. Lieberman said 
that he had considered situations in which the construc­
tion of separate facilities might be justified, such as the 
children in the school district being so far apart that it 
is not feasible to transport them to a central school, but 
that none of these were applicable to the Altheimer case 
(R. 50-51).

An additional element of the inefficiency which arises 
from the operation of a dual school structure is the con­
tinuing problem of maintaining equality of educational 
opportunities between the two school systems. There are 
many continuing difficult specific decisions to make, such 
as how many books or how many teachers or what facili­
ties, etc., should be placed in one school or the other (R. 
55-56).

Dr. Lieberman concluded that there was no educational 
or financial justification for the perpetuation of a com­
pletely dual set of schools in the Altheimer school system 
by the replacement construction. The operation of such a 
dual system makes a sound educational program of “ such 
exorbitant cost that the school system is never going to 
pay it and can’t pay it” (R. 49-50). He also said: “I 
regard this as a major dis-service to the white students 
as well as to the Negro students” (R. 48).

He emphasized that this was not simply a matter of dif­
ferences between himself and the Altheimer School Board 
over educational practices, but rather a complete absence 
of any justification for the dual construction according to 
any educational theory or practice based on his profes­
sional knowledge (R. 57-58).



7a

The Decree of the Court of Appeals for the Eighth 
Circuit in Kelley v. The Altheimer, Arkansas Public 
School District No. 22 et al., No. 18 ,528 , April 12, 
1967, Slip Opinion pp. 25-30

T h e  R em edy

The policies and practices of the appellee School Dis­
trict with respect to students, faculty, facilities, transporta­
tion and school expenditures have been designed to dis­
courage the desegregation of the school system, and have 
had that effect.

The decision of the District Court dismissing the ap­
pellants’ Complaint is, therefore, reversed and remanded 
for action consistent with this decision. The District Court 
shall retain jurisdiction to insure that the appellee School 
District carries out a detailed plan for the operation of 
the school system in a constitutional manner so that the 
goal of a desegregated school system is rapidly and finally 
achieved. When the goal is achieved, the District Court 
may relinquish jurisdiction, and the appellee shall be 
relieved of its obligation to file the reports or plans re­
quired by this decision with the District Court.

The plan approved by the District Court shall be con­
sistent with, and in no event less stringent than, the one 
set forth in the H.E.W. Guidelines, heretofore accepted by 
the appellee School District. The plan, if the trial court 
desires, may be identical to that set forth in the guide­
lines. In any event, the plan, including the sections of 
the guidelines adopted by the court, shall be embodied in 
a decree and shall contain, in addition to the matter pre­
viously referred to, provisions incorporating the require­
ments set forth below. Annual reports shall be filed with 
the Clerk of Court and served on the opposing parties 
thereto no later than April 15, of each year, provided that 
an initial report shall be filed no later than October 31,



8a

1967. Such, reports shall be in a form prescribed by the 
District Court, and shall contain such information as the 
court feels necessary to enable it to determine whether the 
Board is complying with the decree.

S t u d e n t s

The use of the “freedom of choice” plan, as outlined 
in the guidelines and as accepted by the appellee School 
District, is approved and may be used unless and until 
it becomes clear that the school system cannot be desegre­
gated under such guidelines.

Uniform standards shall be developed for use in deter­
mining whether a class or school is overcrowded, and for 
use in determining the distance from home to school.

F a c u l t y

The faculty shall be completely desegregated no later 
than the beginning of the 1969-70 school year.24 To this 
end:

(1) Vacancies at Altheimer [the “white” school] shall, 
when possible, be filled by the employment of qualified 
and competent Negro classroom teachers for such vacan­
cies and, at Martin [the “Negro” school], by the employ­
ment of qualified and competent white classroom teachers 
for such vacancies.

34 In The Board o f Education of Oklahoma City Public Schools, et al. 
v. Dowell, et al., Civil No. 8523, 10th Cir., January, 1967, the Court fo l­
lowed the recommendation o f education experts hired by the plaintiffs 
and set the beginning of the 1969-70 school year as a target date for 
having “ the same approximate percentage of non-white teachers in each 
school as there now is in the system.”  The same formula was followed 
in Kiev v. County School Bd., 249 F.Supp. 239, 247 (W.D. Ya. 1966). 
While we impose no exact formula in this case, we call the above formula 
to the attention of the parties and the District Court as one which 
comports with Brown. See also, Bobinson v. Shelby County Board of 
Education, Civil No. 4916 (D.C. W.D. Tenn. January 19, 1967).



9a

(2) Immediate steps shall be taken by the appellee 
School District to encourage full-time white faculty mem­
bers to transfer from Altheimer to Martin, and full-time 
Negro faculty members from Martin to Altheimer.26 If suf­
ficient volunteers are not forthcoming, the appellee School 
District shall assign a significant number of Negro class­
room teachers to Altheimer for the school year 1967-68, 
and a larger number for the 1968-69 school year. The ap­
pellee School District shall also assign additional white 
classroom teachers to the Martin School for each of the 
above years. An equitable distribution of the teachers with 
advanced degrees shall be considered in making said trans­
fers.

(3) Should the desegregation process result in the clos­
ing of either school, or the shutting down of a particular 
grade in either school, displaced personnel shall, at the 
minimum, be absorbed in vacancies appearing in the 
system.

(4) Inequalities between white and Negro teachers with 
respect to salaries and teaching load based on racial con­
siderations shall be eliminated.

T ransportation

The existing transportation plan shall be discontinued 
at the end of the present school year, and a new plan 
inaugurated consistent with this opinion.

26 This requirement is not to be taken as in any way diminishing 
the responsibility o f the Board of Education to desegregate the faculty 
in the event volunteers are not forthcoming. The Supreme Court in 
Brown v. Board of Ed. of Topeka, 349 U.S. 294, 299 (1955), said:

“ Pull implementation of these constitutional principles may re­
quire solution of varied local school problems. School authorities 
have the primary responsibility for elucidating, assessing, and solv­
ing these problems; court will have to consider whether the action 
of school authorities constitutes good faith implementation o f the 
governing constitutional principles. . . . ”



10a

C onstruction  and U se of F acilities

(1) Plans for the construction of additional facilities 
shall be submitted to the District Court for approval. 
Any new facilities shall, consistent with the proper opera­
tion of the school system, be designed and built with the 
objective of eradicating the vestiges of the dual system 
and of eliminating the effects of segregation.

(2) Students at Martin shall be permitted to make rea­
sonable use of library facilities at Altheimer until such 
time as equal facilities at Martin School are provided.

S chool  E qualization

(1) The appellee School District shall take prompt steps: 
(a) to provide library facilities for the Martin School 
which are substantially equal to those at Altheimer, (b) 
to equalize pupil-teacher ratios and pupil-classroom ratios 
between the Martin and Altheimer Schools, and (c) to 
secure a prompt accreditation of the Martin School equal 
to that currently held by Altheimer School.

(2) By October of each year, the appellee School Dis­
trict shall serve on the opposing parties, and file with the 
Clerk of Court, a report showing pupil-teacher ratios, 
pupil-classroom ratios, and teacher expenditures both as to 
operating and capital improvement costs; and, if there 
are any substantial differences between Martin and Alt­
heimer Schools, the appellee School District shall outline 
the steps which it will take to eliminate said inequalities 
and state the time it will take to eliminate them.



11a

H.E.W. G uidelines

Nothing in this opinion shall be considered as relieving 
the appellee School District of any obligations that it has 
under the Civil Eights Act of 1964, including the responsi­
bility of complying with the H.E.W. Guidelines, which they 
have voluntarily agreed to follow. To the extent that this 
opinion may constitute approval of said guidelines, it is 
not intended to deny a day in court to any person in as­
serting any individual rights or to the Board of Education 
in contesting any section of the H.E.W. Guidelines.



MEILEN PRESS INC. —  N. Y. 219