Jenkins v. Missouri Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 

NO. 19,920

CHARLES MC GHEE, et al.,
Plaintiffs,

UNITED STATES OF AMERICA,
plaintiff-lntervenor-Appellant,

vs.
THE NASHVILLE SPECIAL SCHOOL DISTRICT, 
et al.,

Defendants-Appellees.

Appeal from the united States District Court for the Western 
District of Arkansas, Texarkana Division

MEMORANDUM OF CHARLES MC GHEE, et al.

JOHN W. WALKER
1820 West Thirteenth Street 
Little Rock, Arkansas 72202 

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Charles McGhee, 
et al.



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 

NO. 19,920

CHARLES MC GHEE, et al..
Plaintiffs,

UNITED STATES OF AMERICA,
plaintiff-Intervenor-Appellant,

vs.
THE NASHVILLE SPECIAL SCHOOL DISTRICT, 
et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western
District of Arkansas, Texarkana Division

MEMORANDUM OF CHARLES MC GHEE, et al.

This Memorandum is filed on behalf of Charles McGhee, et al.,, 
who are formal parties to this appeal although not technically 
"interested" in this appeal. The original plaintiffs in this 
action wish to state their position to the Court, however, and in 
particular to emphasize two points not covered in the Brief of the 
United States: (1) the need for uniformity in Arkansas school
desegregation cases; and (2) the effect upon this case of the
decision in Alexander v. Holmes County Bd. of Educ., ____ U.S. ____
(1969), rev'q sub nom. United States v. Hinds County Bd. of Educ., 
_____  F.2d ____  (5th Cir. 1969).



ISSUES PRESENTED FOR REVIEW
Plaintiffs Charles McGhee, et al., adopt the Statement of 

the issues contained in the Brief of the United States.

STATEMENT
Plaintiffs adopt the Statement of facts contained in the 

Brief of the United States.

ARGUMENT
Plaintiffs agree with most of what is said in the Brief of 

the United States. This case, involving some five school districts, 
is a particularly instructive example of failure by both the 
school boards and the courts to achieve the dismantling of the 
dual system of schools.

The two school systems involved in this litigation were
classic examples of one of the devices used to maintain segregated
schools: dual overlapping zones. In each case, the dual zones were
contiguous with district boundary lines. The Nashville-Childress
system consisted of two totally overlapping school districts, one
for whites and one for Negroes. The Saratoga-Mineral Springs-
Howard County Training School system consisted of two separate
white districts and a Negro district which totally overlapped the

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two white districts.

This Court has recently had before it districts which used 
the other major segregation-perpetuating methods: a single
district operating district-wide white and Negro schools
(Jackson v. Marvell School District No. 22, ___  F.2d ___  (8th
Cir. 1969)); and separate non-overlapping districts for white 
and Negro students (Haney v. County Bd. of Educ. of Sevier 
County, 410 F.2d 920 (8th Cir. 1969)).

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in 1954, the Supreme Court of the United States held in 
Brown v. Board of Bduc„, 347 U.S. 483, that the maintenance of 
separate educational facilities for white and Negro students, 
through whatever device, was unconstitutional. Subsequently, in 
Brown II, 349 U.S. 294 (1955), the Court decreed that while school 
boards had an obligation to begin immediately the process of 
converting to unitary school systems, it would be the responsibility 
of the district courts, where school districts were challenged in 
litigation, to determine whether valid reasons existed to justify 
the rate at which a district was proceeding with its constitutional! 
imposed task. The history of school desegregation law since that 
time has largely been one of decisions by appellate courts urging 
faster accomplishment of the goal, culminating in the October 29, 
1969 decision of the United States Supreme Court in Alexander v. 
Holmes County Bd. of Educ., supra. That decision reflects the 
frank recognition that the procedural framework established in 
Brown II, as well as the standard of "all deliberate speed," 
had failed to bring about compliance with the Fourteenth Amendment.

After the 1954 Brown decision, none of the districts here 
involved took any action to comply with the Constitution. Cf.
Green v. County School Bd. of New Kent County, 391 U.S. 431 (1968). 
Not until this suit was filed on December 20, 1965, did any prospect 
for change appear. The proceedings in this litigation demonstrate, 
however, that the actions of the district court have been 
inconsistent and they have failed to achieve the constitutional 
objective.

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In the case of the Nashville and Childress districts, 
the district court found Childress to have been unconstitutionally 
created as a separate Negro school district, ordered its 
dissolution and the education of its students by the Nashville 
district with consolidation of school facilities, not freedom 
of choice. But in the case of the Howard County Training School 
District, which the court below likewise found illegally created, 
the court required only that upon its dissolution, students 
formerly attending its schools (despite their residence within 
the physical boundaries of either the Mineral Springs or 
Saratoga districts) be given freedom of choice to attend either 
the white or black school, predictably, the Negro school operated 
previously by the Howard County Training School District remained 
all Negro.

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Even after the decision in Green, supra, the district
court refused to face the reality of a situation graphically 
shown by the map in the government's brief. But for race, the 
Howard County Training School would never have been built and 
operated. Its continued operation as an all-Negro facility 
cannot be justified under Green.

The district court's decision is even less justifiable 
under Alexander v. Holmes County Bd. of Educ., supra. The effect 
of the delay granted by the Fifth Circuit in that case was to 
permit thirty Mississippi school districts to continue to use 
freedom of choice plans which had produced results no more signif­
icant, certainly, than the results of freedom of choice in 
Saratoga-Mineral Springs. The Supreme Court held that the continued 
operation of such plans, because of supposed administrative obstac­
les to the implementation of other plans, for any additional 
period of time, was totally indefensible under the Constitution.
In order to assure meaningful relief, the Supreme Court also 
described the new responsibilities which it expected the Courts of 
Appeals to assume to make certain that unitary school systems were 
achieved at the earliest possible date.

Alexander means, therefore, in the context of this case, 
that this Court has a responsibility when this case comes before it 
to determine whetle r or not freedom of choice can be justified as 
a matter of law, based on the latest information about the school 
district (see United States v. Greenwood Municipal Separate School



Dist.. 406 P. 2d 1086, 1092 n.6 (5th Cir. 1969)), and to prescribe
a remedy which will immediately carry out the constitutional 
mandate. This will require specific directives from this Court 
to the district court on remand.

There is an additional reason for specific directions
in this Court's mandate. Uniformity of approach to Arkansas school
desegregation cases, within the limits imposed by the differing
facts of each school district, is much to be desired. So long as
inconsistent positions are taken by the courts, other school
districts and school administrators will have difficulty in defining
their constitutional obligations. This district court has shown,
in this very litigation, an inconsistent approach to similar

2/factual situations. We think it appropriate, therefore, that 
this Court specifically order the immediate formulation and imple­
mentation of a plan to replace freedom of choice in Saratoga and 
Mineral Springs, so that there will be no question of the obligation 
of the district courts or of school boards in this respect in the 
future.

2/ The same district judge in Jackson v. Marvell School District.
supra, first held freedom of choice unacceptable and then, 

eight months later, ruled that the school district would be permittee 
to use it.

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CONCLUSION

Plaintiffs Charles McGhee, et al., for the foregoing 
reasons, support the relief requested by the United States in this 
case in its Brief previously filed.

Respectfully submitted,

JOHN W. WALKER
1820 West Thirteenth S 
Little Rock, Arkansas 

72202
JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, N.Y. 10019

Attorneys for Charles 
McGhee, et al.



CERTIFICATE OF SERVICE

I hereby certify that I mailed copies of the 
Memorandum of Charles McGhee, et al. to counsel for all 
parties by United States mail, postage prepaid (two 
copies each) as follows:

Boyd Tackett, Esq.
State First National Bank Building 
Texarkana, Arkansas 75501
Herschel H. Friday, Esq.
1100 Boyle Building 
Little Rock, Arkansas 72201
Hon. Joe Purcell
Attorney General of Arkansas
Justice Building
Little Rock, Arkansas 72202
John A. Bleveans, Esq.
United States E^jartment of Justice 
Washington, D. C. 20530

NORMAN J. CHACHKIN

I

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