T.R. v. The Lamar County Board of Education Reply Brief of Plaintiff-Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
NO. 19968

MRS. ALBERT TATE, et al..
Appellants,

v.
THE BOARD OF EDUCATION OF THE 
JONESBORO, ARKANSAS SPECIAL 
SCHOOL DISTRICT, et al..

Appellees.

Appeal from the United States District Court 
for the Eastern District of Arkansas, 

Jonesboro Division

APPENDIX-BRIEF FOR APPELIANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
Suite 2030New York, New York 10019

JOHN W. WALKER 
FRANK B. NEWELLWalker, Rotenberry, Kaplan, 

Lavey & Hollingsworth 
1820 W. 13th Street Little Rock, Arkansas 72203

Attorneys for Appellants



TABLE OF CONTENTS

PRELIMINARY STATEMENT....................... -
ISSUES PRESENTED FOR REVIEW................. .
STATEMENT................................... .
ARGUMENT:

1. The Court below erred in holding 
that appellants' conduct did not 
constitute symbolic speech pro­
tected by the Free Speech Clause 
of the First Amendment to the 
Federal Constitution.

2. The Court below erred in holding 
that the summary suspension of 
appellants did not violate Due 
Process.

3. The lower court denied appellants 
rights guaranteed by the Equal Protection Clause of the Fourteenth 
Amendment by refusing to enjoin the 
playing of "Dixie" at the school 
assembly.

CONCLUSION..................................

Page
1
1
2

7

13

18

24
APPENDIX TO ARGUMENT 25



TABLE OF CASES
Pa^e

Barber v. Hardway, 394 U.S. 905 (1969)................ 1,11
Beauharnais v. Illinois, 343 U.S. 250(1951)........ 2,22,23
Blackwell v. Issaquena Board of Education,

363 F.2d 749 (5th Cir. 1965)........................... 1,11
Brown v. Board of Education, 347 U.S. 483

(1954 )•■•••••»•..«••.••*.. . ........•*•••••••2*18,19,20,21Brown v. Greer, 299 F. Supp. 595 (1969)  .... ...1,11
Brown v. Louisiana, 383 U.S. 131, 142 (1966) .... 1,7
Burnside v. Byars, 363 F.2d 744 (1966).... ........1,8,9,13
Chaplinsky v. New Hampshire, 315 U.S. 568, 572

(1947)......  ........ .............................2,23
Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (M.D. Ala. 1967)..........  .......1,7,9
Dieteman v. Time, Inc. 284 F. Supp. 925

(1968)............................ .................2,22Dixon v. Alabama State Board of Education, 294 F.2d 
150, 155 (5th Cir. 1961), cert, denied, 360 U.S.930.................... ..........................1,13,14

Esteban v. Central Mo. State College, 277 F. Supp.
649 (W.D. Mo. 1967).............................. 1,14,17

Frain v. Baron, 38 L.W. 2347 (E.D.N.Y. 1969)........1,10,13
Goldwyn v. Allen, 54 Misc.2d 94, 261 N.Y.S.2d

899 (1967)........................................1,16,17
Green v. County School Board, 391 U„S„ 430 (1968).,.2,18,20
Greene v. Howard University, 271 F. Supp. 609

(D.D.C. 196 )..... ..................................Griffin v. School Board, 377 U.S. 218 (1964)............ 18Hammond v. South Carolina, 272 F. Supp. 947 (1967)......1,8
In re Gault, 387 U.S. 1 (1961)........................ 1, 14
Jones v. Mayer Co., 392 U.S. 409 ( 1 9 6 8 ) . 2 , 2 3 , 2 4  
Knight v. State Board of Education, 200 F. Supp.

174 (M.D. Term. 1961)................................1#14
Madera v. Board of Education, 267 F. Supp. 356

(S.D. N.Y. 1967), rev'd on other grounds, 386 F.2d 
778 (2nd Cir. 196 ), cert, denied, 390 U.S. 1028
(1968)...............................................1*14

Monroe v. Board of Commissioners, 391 U.S. 450 (1968)..2,18 
Moore v. Student Affairs Comm, of Troy State

University, 284 F. Supp. 725 (M.D. Ala. 1968).........2,14
NAACP v. Button, 371 U.S. 415 (1963).....................1,7Raney v. Board of Education, 391 U.S. 443 (1968)...... 2,18
Schiff v. Hannah, 282 F. Supp. 381 (W.D. Mich. 1966)...2,14 
Soglin v. Kaufman, 295 F. Supp. 978 (1968), aff'd 38

L.W. 2278 (1969).........................  1,8Tinker v. Des Moines Community School District, 393 U.S.503 (1969).................. ............ ..1,7,9,13
United States v. Jefferson County Board of Education,

372 F.2d 836 (1967)................................. 2,19
- ii -



Page
Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir, 1967).... 2,14
West Virginia State Board of Education v. Barnette,

319 U.S o 624 (1943)............. .............1,2,9,12,21
Woods v. Wright, 334 F.2d 369 (5th Cir. 1964)......... 2,14

- iii -



PRELIMINARY STATEMENT
This is an appeal from the unreported decision of the

United States District Court for the Eastern District of 
Arkansas, Hon. Gordon E. Young, United States District Judge, 
entered July 23, 1969.

ISSUES PRESENTED FOR REVIEW
1.

2.

Whether the District Court erred in holding that 
appellants' conduct did not constitute symbolic 
speech protected by the Free Speech Clause of the 
First Amendment to the Federal constitution*

Barber v. Hardway, 394 U.S. 905 (1969)Blackwell v. Issaquena Board of Education, 363 F.Zd
749 (1965)Brown v. Greer, 299 F. Supp. 595 (1969)

Brown v. Louisiana, 383 U.S. 131, (1966)
BURNSIDE v. BYARS, 363 F.2d 744 (1966) _Dickey v* Alabama state Board of Education* 273 

F. Supp. 613 (1967)FRAIN v. BARON, 38 L.W. 2347 (E.D.N.Y. 1969)Hammond v. South Carolina State College, 272 F. Supp. 
947 (1967)NAACP v. Button, 371 U.S. 415 (1963)

SOGLIN v. KAUFMAN, 295 F. Supp. 978 (1968)TINKER v. DES MOINES COMMUNITY SCHOOL DISTRICT, 393 
U.S. 503 (1969)West Virginia state Board of Education v. Barnette, 
319 U.S. 624 (1943)Wright v. Texas Southern University, 392 F.2d 728 
(1968)

Whether the District Court erred in holding that the 
summary suspension of appellants did not violate Due 
Process:

DIXON v. ALABAMA STATE BOARD OF EDUCATION, 294 F.2d 
150, .(1961)Esteban v. Central Mo. State College, 277 F. Supp.
649 (1967)GOLDWYN v. ALLEN, 281 N.Y.S.2d 899 (1967)Greene v. Howard University, 271 F. Supp. 609 (1967) 

Knight v. State Board of Education, 200 F. Supp. 174 
(M.D. Tenn. 1961)In re Gault, 387 U.S. 1 (1961) .Madera v. Board of Education, 267 F. Supp. 356 (1967)

- 1 -



Moore v. Student Affairs Comm, of Troy State
University, 284 P. Supp. 725 (1968)

Schiff v. Hannah, 282 F. Supp. 381 (1966)
Wasson v. Trowbridge, 382 F„2d 807 (1967)
Woods v. Wright, 334 F.2d 369 (1964)
Wright v. Texas Southern University, 392 F.2d 728 

(1968)
3. Whether the District Court denied appellants rights 

guaranteed by the Equal Protection Clause of the 
Fourteenth Amendment by refusing to enjoin the play­
ing of "Dixie" at school assemblies:

Beauharnais v. Illinois, 343 U.S. 250 (1951)
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954) 
CHAPLINSKY v. NEW HAMPSHIRE, 315 U.S. 568 (1941) 
Dieteman v. Time, Inc., 284 F. Supp. 925 (1968)
Green v. Board of Commissioners, 391 U.S. 430 (1968) 
Griffin v. School Board, 377 U r5. 218 (1964)
Jones v. Mayer Co., 392 U.S. 409 (1968)Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 
Raney v. Board of Education, 391 U.S. 443 (1968) 
United States v. Jefferson County Board of Education, 

372 F,2d 836 (1967)West Virginia State Board of Education v. Barnette, 
319 U.S. 624 (1943)

STATEMENT
Procedure:

This action was commenced on November 15, 1968 by the 
filing of a Complaint which alleged, inter alia, that 
appellees had acted unconstitutionally in suspending minor 
appellants for their role in an incident involving the singing 
of "Dixie" in school assemblies. The case was decided on 
stipulated evidence and pleadings. United States District 
Judge Young dismissed the Complaint because, in his view,
there were no federal questions raised. The Court below found1/
that "no racial connotations" (R. 21) were involved in this 
case; arguably this finding was intended to dispose of

Reference is to original pagination of Record.
- 2 -



appellants' contentions that they were being denied their 
Fourteenth Amendment rights because they were subjected to 
an unusually severe punishment. The Court further stated, 
at the close of the hearing, that " [t]here are many songs that 
I may or may not like; whether I want to get up and march 
around or not is something else." (R. 21.) It would appear 
that these words were directed at, and intended to dispose of, 
appellants' contentions that the practice of singing "Dixie" 
as part of a public school exercise contravened the Fourteenth 
Amendment to the Constitution of the United States, and that 
their demonstration in opposition to the song was protected by 
the First Amendment. With regard to the issue whether the 
suspended students were denied Due Process of Law in violation 
of the Fourteenth Amendment to the Constitution, the Court 
commented:

School children are subject to dis­
ciplinary measures that adults are 
not . . . but I find no federal 
constitutional principles involved 
here.

The District Court's order of dismissal was entered on 
July 23, 1967, (A."E") and on August 21, 1969 appellants filed 
their Notice of Appeal (A."F") to this Court.
Factual Statement:

The facts of this case are undisputed. They demonstrate 
how a school’s unreflective adherence to custom can threaten 
the educational process.

- 3 -



The school involved is Jonesboro High School. Recent 
desegregation has created a student body racially mixed in a 
proportion of roughly 9 to 1, white students predominating.
(R. 8.)

The legal and social climates giving rise to school de­
segregation also indicate that a re—evaluation of other old, 
accepted policies is in order. It is from the appellees' 
failure to appreciate the implications of social change that 
the present difficulties arise.

Jonesboro High School, like most schools, recognizes that 
extra-curricular activities play an integral part in school 
life. With this in mind, numerous such activities are spon­
sored by the school. One of the most popular and important 
of these is varsity athletics.

Student support for varsity athletics is sought and ob­
tained through the medium of pep rallies. These are designed 
to arouse the student body to a frenzy of school spirit through 
chants and songs, the end in mind being to unify students in 
support of the teams.

Traditionally, one of the songs played by the school band
2/

at pep rallies is "Dixie." (R. 8,9.) No protest was heard 
when the school was all-white. The last two years, however,

2/ The song "Dixie" was adopted by Jefferson Davis as the 
South's national anthem and it was played at his inauguration 
as president of the Confederacy.

4



have witnessed increasing resentment of the playing of the 
song. Black students see "Dixie" as a relic of slavery ex­
pressing a longing that slavery and white supremacy should 
return to, if not remain in, the South. School authorities, 
well aware of the increasing resentment of black students, 
wisely took remedial action. As of September 27, 1968, the 
playing of "Dixie" was banned. (R. 10,11.) This affirmative 
gesture of good will was almost immediately followed by a 
full-scale retreat. Seeking at once to insulate themselves 
from criticism by white citizens and to appear "democratic," 
school authorities submitted the matter to a student vote.
The voting being split along racial lines, predictably, the 
views of white students prevailed.

On October 25, 1968, three days before the votes were 
even counted, school authorities anticipated that black stu­
dents would be none too pleased at the election results.
(R. 13,14.) Consequently, students were offered a palliative 
in the form of an option of not participating in pep rallies. 
They were given leave to go to the auditorium instead, where 
they were expected to sit and wait until the rallies ended.

On November 1, 1968, it was announced that "Dixie" would 
continue to be a part of the school program. (R. 14,15.)

As it happened, a pep rally was scheduled for November 1, 
1968. The school took no position as to whether "Dixie" would 
actually be played at this rally or in subsequent ones.
(R. 14,15.)

- 5 -



Consequently, when the rally was held, a number of black 
students chose not to participate; but others did. Those who 
did not participate went to the school auditorium. Other black 
students who chose to attend went directly to the gymnasium, 
where, upon entering, they were greeted with "Dixie." Without 
even pausing to be seated, appellants turned and quietly ab­
sented themselves. (R. 16.) They went directly and peace­
fully to the auditorium, located a few feet away in the same 
building, which the school had designated as the proper place 
for non-participants. (R. 16.)

Had the students presented themselves at the auditorium
originally, no action would have been taken. For changing
rooms instants later, appellants have been made to suffer in
several ways. Appellants were subjected to a five-day sus-

1/pension which was belatedly reduced to three days, Appel­
lants were denied participation in school-related functions 
during the period of their suspension. A grade reduction of 
from six to ten points from their overall daily score for the 
entire grading period was imposed. (R. 17,18.) And, finally, 
as a condition of reinstatement, appellants were required to 
sign statements implying that their peaceful action was 
wrongful. (R. 16,17.)

3/ Twenty-two students were readmitted after three days; 
five at the end of four days; and three at the end of five 
days.

- 6 -



ARGUMENT
1. The Court below erred in holding that appellants1 

conduct did not constitute symbolic speech pro­
tected by the Free~~Soeech Clause of the First 
Amendment to the Federal Constitution.

This issue arises from the disciplinary action taken 
against appellants because of the peaceful exit from the pep 
rally. We are concerned at this point with whether the peace­
ful exodus is symbolic action guarded from suppression by the 
Free Speech Clause of the First Amendment to the Federal 
Constitution.

Initially, it is clear that appellants are in a position 
to assert constitutional claims. "It can hardly be argued 
that . . . students . . . shed their constitutional rights to 
freedom of speech or expression at the school house gate." 
Tinker v. Des Moines Community School District, 393 U.S. 503 
(1969).

Equally apparent is the fact that the rights guaranteed 
by the First Amendment "are not confined to verbal expression," 
Brown v. Louisiana, 383 U.S. 131, 142 (1966), and extend to 
"protect certain forms of orderly group activity," NAACP v. 
Button. 371 U.S. 415, 430 (1963).

For example, the Court has upheld protests against the 
Vietnam War voiced by students of a public school system as a 
valid exercise of their First Amendment rights. Tinker, supra. 
See, also, Dickey v. Alabama State Board of Education, 273 F. 
Supp. 613 (M.D, Ala. 1967). Although reasonable, narrowly-

- 7



drawn school regulations aimed at maintaining discipline and 
order are permissible, "the Fourteenth Amendment protects the 
First Amendment rights of school children against unreasonable 
rules and regulations imposed by school authorities." Burnside 
v. Byars. 363 F.2d 744, 747-48 (1966). See, also, Soglin v. 
Kaufman. 295 F. Supp. 978 (1968), aff’d 38 L.W. 2278 (1969); 
Hammond v. South Carolina State College, 272 F. Supp. 947 
(1967). To prohibit students’ assertion of First Amendment 
rights at a public school, school officials must show that the 
exercise of the right would "materially and substantially 
interfere with the requirements of appropriate discipline in 
the operation of the school." Burnside, supra, at 749 
(emphasis added).

The test of a reasonable regulation, therefore, is whether 
it "measurably contributes to the maintenance of order and 
decorum within the educational system." Burnside, supra, at 
748 (emphasis added).

Concomitantly, constitutional protection extends to guard
rights infringed pursuant to a rule reasonable on its face but

4/
unreasonably applied.

The most cursory consideration of the present facts in 
light of the above standard of reasonableness reveals that 
disciplinary action by the school authorities was unwarranted.

4/ The two school rules (A.34 and 35 ) upon which the 
appellees rely to justify their disciplinary action are dis­
cussed infra, pp.

8



Perhaps a disruptive exit from a classroom would "materially 
and substantially" interfere with "appropriate" discipline.
But surely Burnside, Tinker, and Dickey, supra, cannot intelli­
gibly be construed to proscribe a quiet procession from the 
designed commotion of a pep rally to a place, a few scant yards 
away, specifically made available by school authorities.

The students did not disrupt surroundings otherwise 
"orderly and decorous." To see the "order and decorum within 
the educational system" jeopardized by such mild action re­
quires an attitude and imagination which can charitably be 
described as rigidly authoritarian.

Neither can the school authorities' disciplinary action be 
justified by pointing to any unauthorized presence in a place 
declared off-limits during school hours. Appellants were given 
the option to be absent from the assembly. The fact that they 
chose to exercise their option by a peaceful exodus from the 
pep rally certainly cannot justify suspensions varying from 
three days to a week.

The appellees and the lower court may consider "silly"
(R. 21) appellants' sensitivity to a symbol of oppression still 
not fully lifted. "But freedom to differ is not limited to 
things that do not matter much" to the majority condoning them. 
West Virginia State Board of Education v. Barnette. 319 U.S.
624 (1943).

Only recently a Second Circuit District Court had occasion 
to protect the First Amendment rights of a few New York City

9



school children who refused to join their class in pledging
allegiance to the United States flag. Frain v. Baron, 38 L.W.
2347 (E.D.N.Y. 1969). The Court there said:

Since no disruption is imminent, 
either from spontaneity or from 
non-allegiance swearing students’ 
actions, the students are entitled 
to a preliminary injunction pre­
venting their suspension from 
class or differentiated treatment 
from those who participate in the 
pledge....

In a word, as a student in a public school cannot be 
punished for reasonably and peacefully expressing opposition 
to the Vitenam War, neither can he be disciplined for asserting 
opposition to school-supported activities reflecting racial 
prejudice, and activities calculated to have, or unintentional­
ly having, a humiliating impact upon a minority group.

So long as the method by which the pupils assert that 
opposition is peaceful and reasonable and the protestation is 
unaccompanied by disruptive reactions by other students, 
imposition of punishment is impermissible.

The line separating "orderly activity" constituting 
peaceful protest from disruptive conduct is not susceptible of 
precise and unalterable demarcation. However, on no view of 
the facts presented by this record can a case be made out of 
disruption warranting punitive action. The conduct here is 
poles away from that shown in cases where restraint by school 
officials of First Amendment rights has been upheld.

The Supreme Court has recently reaffirmed the distinction
10 -



between peaceful and disruptive student protest activity. In
denying certiorari in Barber v. Hardway, 394 U.S. 905 (1969),
the Court emphasized the importance of determining whether acts
of protest result in disruption. The concurring opinion of
Justice Fortas acknowledges this distinction as follows:

I agree that certiorari should be 
denied. The petitioners were sus­
pended from college not for express­
ing their opinions . . . but for violent and destructive interference 
with the rights of others . . . .
[T]he findings of the District Court, 
which were accepted by the Court of Appeals, establish that the petition­
ers here engaged in an aggressive and 
violent demonstration, and not in 
peaceful, non-disruptive expression 
such as was involved in Tinker . . . .
Id.. at 905 (emphasis added).

In Wright v. Texas Southern University. 392 F.2d 728 
(5th Cir. 1968), it was held that students exceeded the bounds 
of permissible conduct by physically and verbally abusing a 
teacher.

And in Brown v. Greer. 299 F. Supp. 595 (1969) it was held 
that the evidence presented sustained the action of a board of 
trustees in suspending students who used abusive and 
threatening language toward the Superintendent and others, 
struck two faculty members and disrupted orderly operation of 
school.

Nor is the case at bar comparable to Blackwell v.
Issaquena Board of Education. 363 F.2d 749 (5th Cir. 1965), 
where the Fifth Circuit rejected the claim of a group of black

11



students that their right to wear what were loosely termed 
"freedom buttons" was protected by the First Amendment. There 
the appeals court was careful to note that the wearing of the 
buttons precipitated loud and boisterous conduct on the part 
of other students, and, therefore, had a disruptive effect on 
all school activity.

It should be understood that appellants do not contend 
that school authorities are powerless to formulate reasonable 
regulations to govern student behavior. But, as the Supreme 
Court noted more than a quarter of a century ago, although 
school boards have " . . .  important, delicate, and highly 
discretionary functions," they have "none that they may not 
perform within the limits of the Bill of Rights. That they are 
educating the young for citizenship is reason for scrupulous 
protection of Constitutional freedoms of the individual, if we 
are not to strangle the free mind of its source and teach 
youth to discount important principles of our government as 
mere attitudes." West Virginia State Board of Education v. 
Barnette. 319 U.S. 624, 637 (1943).

Appellants urge that this is the test to be applied in 
determining whether the school authorities' promulgation, 
interpretation and application of the school regulation meets 
constitutional requirements: Were the students engaged in an
assertion of speech and association rights; and if so, were 
they peacefully and reasonably asserting or exercising these 
rights? If they were, any punishment therefor by school

12



authorities contravenes constitutional mandates. The applica­
tion of this test, developed by the courts in Tinker, Burnside, 
Frain and other cases cited supra, admits of no other conclu­
sion but that the Court below erred in refusing to grant 
relief from the punitive action of the school authorities here.
2. The Court below erred in holding that the summary 

suspension of appellants did not violate Due 
Process.

"Whenever a governmental body acts so as to injure an 
individual, the Constitution requires that the act be consonant 
with Due Process of Law." Dixon v* A labama State Board of 
Education. 294 F.2d 150, 155 (5th Cir. 1961) cert, denied. 360 
U.S. 930* Although "(t]he minimum procedural requirements 
necessary to satisfy Due Process depends upon the circumstances 
and the interests of the parties involved."•ibid.. there should 
at least be notice and an opportunity to be heard before a 
state body imposes a serious sanction.

Whether taking serious action against a student without 
allowing him sufficient safeguards is viewed as violating Due 
Process because it is an arbitrary act or because his freedom 
to go to and from his local school is a liberty which cannot 
be withdrawn capriciously or because education has economic
value and is property which may not be seized summarily, it is5/
clear that appellants are entitled to some protection.

The Supreme Court has expressed increasing concern that the 
treatment of minors by state authorities be in accordance with

13



Indeed, it has been a proposition of many years standing 
our law that a student at a public school could not be expelled 
or suspended for a substantial interval without a prior hearing. 
See, e.g., Dixon v. Alabama State Board of Education, sup.ra; 
Knight v. State Board of Education, 200 F. Supp. 174 (M.D.
Tenn. 1961); Woods v. Wright, 334 F.2d 369 (5th Cir. 1964), 
Schiff v. Hannah. 282 F. Supp. 381 (W.D. Mich. 1966) (en banc); 
Esteban v. Central Mo. State College, 277 F. Supp. 649 (W.D.
Mo. 1967); Moore v. Student Affairs Comm, of Trov State 
University. 284 F. Supp. 725 (M.D. Ala. 1968); Greene v. Howard 
University. 271 F. Supp. 609 (D.D.C. 196 ); Madera v. Board.of 
Education. 267 F. Supp. 356 (S.D. N.Y. 1967), rev»d on other 
grounds. 386 F.2d 778 (2nd Cir. 196 ), cert, denied, 390 U.S. 
1028 (1968); Wasson v. Trowbridge, 382 F.2d 807 (2nd Cir. 1967) 
Wright v. Texas Southern University. 392 F.2d 728 (5th Cir. 
1968),, This is a firmly established legal principle which
presently admits of no doubt.

Appellees seek to justify their action by pointing to a
school regulation which provides as follows;

It is strictly against the rules to create 
a disturbance in assembly. (A. 24.)

A second source of justification relied on by appellees is
found in the "Jonesboro Senior High School Teacher Handbook."

5/ continued
Due Process. E0g.# In re Gault. 387 U.S. 1 (196 ). The Court held in Gault €Ea"t"aT€Kough the proceedings there were 
civil rather than criminal, the state was required to observe 
the Due Process requirement of a hearing.- 14 -



It provides as follows:
The Principal shall be empowered to use 
all means that he deems necessary to 
maintain discipline at all times, and 
shall have the support of the Board, as 
long as such means are reasonable and 
legal.6/ (A. 34.)

It is manifest on the face of the record that there was not 
even the semblance of a hearing before appellants were 
suspended. Appellee Sims, after briefly conferring with ap­
pellee Geis, decided that the departure of the students from
the assembly was disruptive and merited a five-day suspen- 

7/sion. The students were not given notice of the charges

6/
If this regulation is meant to confer authority on the 

principal to act according to his unfettered discretion, but to 
withhold Board support unless the action is "reasonable," then 
the Federal and State Constitutions and the State compulsory 
attendance school law (Ark. Stats. Ann. §§80-1502 —  80-1508, 
1967 Repl.) require that the regulation be held to be of no 
effect. If interpreted to authorise the principal to take 
action which is "reasonable and legal," the regulation is in 
part logically circular since it supplies a legal standard that 
qualifies itself with reference to its own legality. If, as 
appellants are willing to stipulate for the purposes of argu­
ment, the regulation is meant merely to say that a principal 
must act in a reasonable fashion, the regulation still does not 
justify appellees' action because the degree of punishment im­
posed on the students was a manifestly unreasonable one.
7/
This conclusion flies in the face of the facts, for the 

record clearly shows that no "disturbance" contemplated by the 
first regulation (A. .) occurred. "Disturbance" may be
taken here to mean "disruption" and there simply was none. Of 
course, it may be said that school officials were disturbed by 
the peaceful, non-disruptive action of the students —  as many 
people are disturbed by the fact of school desegregation? but 
the regulation may not be read so broadly as to prohibit stu­
dents from taking constitutionally protected action for fear of 
"disturbing" a school official. Moreover, it is not clear that 
the regulation was intended to cover pep rallies. "Assemblies"

15



against them. Nor were they permitted to defend their action, 
either individually or as a group. By no stretch of the 
imagination can the admittedly brief, impromptu "question and 
answer" period (R. 17) —  held after suspension was decided 
upon -- be considered to have satisfied the requirement of a 
hearing.

The requisites of Due Process depend upon the circum­
stances. Clearly, school officials have the authority to 
discipline unruly students. Further, there is no doubt that a 
school may exclude -- either by suspension or expulsion —  a 
child who is disobedient and disruptive. However, when the 
penalties result in the deprivation of important rights, the 
elemental requisites of Due Process —  notice and a hearing ~  
must be observed.

That the practical consequences of the suspensions here
are severe is not to be doubted. Suspension for a full school

2/week and attendant grade reductions clearly had an adverse 
affect on appellants' academic progress. For example, a ten

7/ continued
are normally occasions where students are called upon to attend 
to speeches or other activities given for their benefit. Con­
versely, a pep rally by definition involves the purposeful 
creation of a boisterous atmosphere —  one full of disturbance 
-- which would be intolerable were an assembly being held.
See, generally, discussion, supra, Arugment I.
8/See Goldwyn v. Allen, 54 Misc.2d. 94, 281 N.Y.S.2d. 899 
(1967) where it was held that a student subjected to disci­
plinary sanctions which affected his grades was entitled to be 
represented by counsel at a hearing.

16



per cent (10%) grade reduction reduces a low B to a D, a C to 
an P. (It should be noted that there were five more F's 
received by appellants for the grading period affected by the 
suspension than in the prior grading period. (R. 18,19.))
Such reductions might require an affected pupil to repeat the 
subject or perhaps a school year. The financial significance 
of such punishment is obvious.

Appellants submit that rudimentary Due Process calls for
9/

the adoption of hearing procedures before students are meted 
out punishment such as that imposed in this case. Such a 
requirement would not hamper the day-to-day operations of 
Jonesboro Senior High School. Nor would it undermine the 
authority of those responsible for maintaining discipline at 
the school. Formal education takes place not just in class­
rooms, but in all of a student's experiences with the school 
and its personnel. Constitutional considerations aside, it is 
harmful to good education when the entire process of school 
suspensions operates in an ad. hoc, arbitrary manner. The loss 
of faith by students in the inherent justice and fairness of 
the educational system may have serious detrimental conse-r .

9/
Appellants do not here argue that students who face sus­

pension are entitled to be represented by counsel at a 
disciplinary hearing although several courts have upheld such 
a claim. See, e.g., Goldwyn v. Allen, 281 N.Y.S.2d 899 (S. Ct. 1967); Esteban, supra. We do, however, recommend that in a 
disciplinary hearing which could result in suspension the 
parents of the affected student be included as active partici­
pants.

17



quences

3. The lover court denied appellants rights guaranteed 
by~the~Equal Protection Clause of the Fourteenth 
Amendment by refusing to enjoin "the playing of 
"Dixie” at the school assembly.

The real issue here is Whether school authorities can 
functionally preclude from full participation in the educa­
tional process substantially all the students of one race. We 
believe that both the letter and spirit of Brown v. Board of 
Education. 347 U.S. 483 (1954) demand a negative answer.

Ultimately, Brown stands for the proposition that it is 
beneficial for children of all races to attend school together. 
Separation of children at this critical point of life operates 
as a constitutionally proscribed deprivation. See, for 
example, Monroe v. Board of commissioners, 391 U.S. 450 (1968); 
Green v. County School Board, 391 U.S. 430 (1968); Raney v. 
Board of Education. 391 U.S. 443 (1968); Griffin v. School 
Board. 377 U.S. 218 (1964).

It is apparent that school authorities cannot, consistent­
ly with the spirit of Brown, sanction practices which create 
barriers, grounded on racial strife, between races sought to 
be united. Brown and its progeny require integration of stu­
dents, faculties, and staff, and reorganization of the school 
system into a unitary body. This must be done without undue 
affront or antagonism, on the basis of race, being encouraged 
or permitted by the appellees. This constitutional duty was

- 18 -



well-put in United States v. Jefferson County Board of Educa­
tion. 372 F.2d 836 (1967). Officials administering public 
schools, said the Court there:

[Kjave the affirmative duty under the 
Fourteenth Amendment to bring about 
an integrated, unitary school system 
.... In fulfilling this duty it is 
not enough for school authorities to 
offer Negro children the opportunity 
to attend formerly all-white schools.
The necessity of overcoming the ef­
fects of the dual school system ... 
requires integration of faculties, 
facilities and activities, as well as 
students. Id.. at 839.

Further, the essence of Brown and the cases which followed it 
is that the Fourteenth Amendment guarantees appellants not 
only the right to mere attendance at the same facilities but 
also the right to full participation in all aspects of the 
educational process. Here, the school has conditioned partici­
pation in an important activity on the appellants' ability to 
tolerate the expression of sentiments which are morally and 
legally abhorrent. In effect, the black student has been told 
that he may participate in a particular school activity —  
pep rallies —  under humiliating circumstances, or bide his 
time elsewhere.

Appellants contend that the school authorities' policy 
denies them equal participation and, consequently, equal 
protection of the laws.

Just as school boards are under a duty to achieve racially 
non-discriminatory school systems, so must they strive to

19



achieve integration in intra-school activities.
School boards [must] take whatever 
steps might be necessary to convert 
to a unitary system in which racial 
discrimination would be eliminated 
root and branch. Green v* School 
Board of New Kent County  ̂ 391 U.S.
430, 437-38 (1968) (emphasis added).

The choice offered the students under the plan shares the 
constitutional infirmities that condemn tactics employed to 
avoid the Brown mandate. Under the arrangement designed by 
the school, black students who are offended by the song —  
almost all the black students in attendance —  are segregated 
in the school auditorium, while white students are left alone 
to enjoy the pep assemblies in the absence of their black 
classmates. The school has thus, albeit indirectly, achieved 
the segregation of students that Brown and its progeny pro­
hibits. The facts of this case demonstrate that the school's 
plan has very effectively segregated the white and black stu­
dents at Jonesboro Senior High School. In spite of their 
desire to attend the varsity assemblies, appellants here were 
forced, upon hearing the insulting and demeaning words of a 
song that symbolized to them 250 years of slavery and 100 years 
of Jim Crow, to forego participation and segregate themselves 
in the school auditorium. The horns of the dilemma which con­
fronted black students graphically illustrates the unconstitu­
tionality of appellees' action? appellants were put to a choice 
between their Fourteenth Amendment right to participate in a 
school activity and their right not to be subjected to public,

- 20



officiallv—sanctioned, racial abuse and degradation.
That the song is capable of generating resentment can

hardly be gainsaid. It was even damned by its author when it
10/

was declared the Anthem of the Confederacy in 1861.
The school authorities cannot plead ignorance to the 

affront offered, since their initial impulse was to bar the 
playing of "Dixie." Neither can they delegate their constitu­
tional responsibilities to the students and resolve the issue 
by their vote. Appellants' constitutional rights are not 
susceptible to such a political process of abrogation.

The very purpose of a Bill of Rights 
[and the Equal Protection Clause of 
the Fourteenth Amendment] was to 
withdraw certain subjects from the 
vicissitudes of political controversy, 
to place them beyond the reach of 
majorities and officials and to 
establish them as legal principles to 
be applied by the courts... [Funda­
mental rights may not be submitted to 
vote; they depend on the outcome of 
no elections. West Virginia Stat=.
Board of Education v. Barnette, 319 
U.S. 624, 638 (1943).

Brown, of course, cannot affect the fact that "Old times

"Jefferson Davis liked the song so much that he adopted it 
as the South's national anthem and Dixie was played at his 
inauguration as president of the Confederacy at Montgomery, 
Alabama, on February 18, 1861.

"By the time the nation struggled in the grips of the 
Civil War, "Dixie," born of folk tunes and cradled in the North 
as a minstrel song, had become a stirring, martial tune for 
the Boys in Gray.

"And Emmett, who once served in the Union Army, said, 'If 
I had known to what use they were to put my song. I'll be 
damned if I'd have written it.9"

-  21 -



dar am not forgotten" in the private contemplation of many 
southerners; but Brown does assure that the spirit of the 
"old times" of slavery and white supremacy shall not walk with 
institutional approval in our public schools.

Nor is it any answer to suggest that the First Amendment 
protects the right of appellants to sing a song whcih cele­
brates the darkest era in our nation's history. We cannot 
countenance in our public schools officially-sponsored 
expression of sentiment which defies the law of the Nation. 
Although a claimed First Amendment right must be given the 
highest respect and careful consideration by our courts, the 
First Amendment cannot be used as a shield to protect practices 
which effectively derogate Brown and the constitutional 
principles which the Supreme Court sought to establish there. 
Other Constitutional rights, like the right to an equal educa­
tional opportunity, are equally as important as freedom of 
speech.

While the courts may be required under 
some circumstances to balance the rights and privileges when the consti­
tutional guaranty of freedom of speech 
. . . clashes with [other Constitutional 
rights,] there would appear to be no 
basis to give greater weight or priority 
to any one of these Constitutional 
guarantees. Dieteman v. Time, Inc., 284 
F. Supp. 925 (1968), at 929.

Moreover, the right to free speech does not give rise to 
the right to publicly insult or defame, Beauharnais v.
Illinois. 343 U.S. 250 (1951), and the singing of "Dixie," with

22



its ill-disguised overtones of black inferiority and white 
superiority, can certainly be taken as one variety of public 
defamation. The song does not lose its defamatory character 
because it is not directed against any single individual.
Speech which tends to defame black people as a racial group 
is not entitled to First Amendment protection. Beauharnais, 
supra. "Dixie’s" lines are "insulting [and] fighting words —  
whose which by their very utterance inflict injury or tend to 
incite a breach of the peace." Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1947). Indeed, the avowed purpose of the 
verse was to urge men on to battle for a cause abhorrent to 
our present national ethic. Our courts have never seen fit to 
grace such expression with First Amendment protection. Nor is 
any exception to the time-honored rule of Chaplinsky and 
Beauharnais warranted here.

It is submitted that school authorities cannot constitu­
tionally identify themselves spiritually and emotionally with
the fighting anthem of a Confederacy dedicated to the preserva-

11/
tion of the institution of slavery. It creates an intoler-

11/ In another sense, the singing of the anthem of defeated 
slave power abridges Constitutional rights, in that it con­
stitutes, clearly and unmistakably, a badge of slavery. The 
Thirteenth Amendment to the Constitution, abolishing slavery 
and involuntary servitude, and the congressional enactments 
grounded on it, were intended to rid the Nation of all such 
badges of slavery. See, e.g., Jones v. Mayer Co., 392 U.S. 
409 (1968). But, in the words of Mr. Justice Douglas:

- 23 -



able atmosphere of animosity and resentment; it adversely 
affects black students' ability to learn and grow. Here, the 
insult offered to black students and the resulting estrange­
ment of the races are palpable. If racism is to be eradicated, 
reason suggests that it not be fostered by the school system.

CONCLUSION
WHEREFORE, for all the reasons above stated, it is 

respectfully urged that this Court reverse the Order of the 
District Court, with instructions to afford appellants the 
following relief:
(1) That Appellees be enjoined from approving the playing of 
the tune "Dixie" at school-related affairs or functions;
(2) That Appellees be required to adopt hearing procedures 
which accord with Due Process requirements to be applied before 
a student is suspended or expelled from school;
(3) That Appellants and all of the members of the class they 
represent affected by the acts complained of on the part of 
Appellees or their agents be restored to the position or status

11/ continued
Some badges of slavery remain today.
While the institution has been outlawed, 
it has remained in the minds and hearts 
of many white men. cases which have 
come to this Court depict a spectacle 
of slavery unwilling to die. Id., at 
445.

Nothing could be more manifest than that this song literally 
"depicts a spectacle of slavery unwilling to die. The anthem, 
a badge of inferior, second-class citizenship and slave status, 
is certainly as much a vestige of slavery as the discriminatory 
housing practices which were considered violative of Constitu­
tional rights in Jones v. Mayer.

- 24 -



they would have had had suspensions not been enforced;
(4) That Appellees be enjoined from interpreting the regula­
tions here involved or any other regulation of the school in 
such a manner as to prohibit Appellants or any other student 
from taking peaceful and non-disruptive action falling within 
the protection of the Free Speech Clause of the First Amendment 
to the Constitution of the United States;
(5) Any further relief which this Court deems appropriate.

Respectfully submitted.

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
Suite 2030New York, New York 10019

JOHN W. WALKER 
FRANK B. NEWELLWalker, Rotenberry, Kaplan, 

Lavey & Hollingsworth 
1£20 W. 13th Street 
Little Rock, Arkansas 72203

Attorneys for Appellants

24a



CERTIFICATE OF SERVICE

I hereby certify that I have this 10th day of February, 
1970, served a copy of the foregoing Appendix-Brief on 
attorney for appellees by depositing a copy of same in the 
United States mail, air mail, postage prepaid, addressed 
to Mr. Berl Smith, 604 Citizens Bank Building, Jonesboro, 
Arkansas 72401.

James M. Nabrit, III 
Attorney for Appellants



APPENDIX TO ARGUMENT

1. MEMORANDUM BRIEF FILED BY APPELLANTS IN COURT BELOW
2. RULES OF JONESBORO SENIOR HIGH SCHOOL

25



Irf TUI UNITED STATf S DISTRICT COURT 
FOR THE EASTER* DISTRICT OF ARKANSAS 

JWSSEORO DXVISIO::

MRS. ALBERT TATE, <?t el.
Plaintlffa, . CIVIL ACTION

V.
.Til” BOARD OF EDUCATION 0? THE 
JOSBRUORO, AP.dAiiDAS SPECIAL 
GCHOOL .^STRICT, et el..

HO. J-6C-C-43

Deforviar-tu. :

MEMOItViDUK »FlEr OF PLAINTIFFS
Tho facta of this cono ore rather simple. The Jonesboro 

High School has apparently denogrogatod or "unified (in a Ioohi* 
6bna<;) for several yearn. Negro puyilo attend the Jonesboro 
High School and participate In ochool affairs in varying degrees.
As with root schools, there aro a number of extracurricular
activities at the Jonesboro High School, including varsity 
athletics. Student support for varsity athletics is often sought 
and obtained through the use of 'pap rallies. It is at these 
rallios that the pupils and ochool staff do things in their 
judgment necessary to show support for the extra-curricular 
athletic program. Tho central purpose at theno rallies, of course, 
la to unify students in support of the teams. Apparently, for 
many yoars vhen Jonesboro nigh School was an all-white school, 
tho familiar southern ooag, "Dixie," was played by the school 
band at pep rallies. Thin pattern continued until on or about 
SoverJ>*r 1, 19C3, when tho incident which is th-a subject of thi3 
litigation occurred. During the preceding several r.onthn prior 
to November 1, 1963, negro pupils had in varying forms expressed 
their opposition to tho playing of 'Dixie at pop rallies and in j 
compulsory student assarr.blios. Tho apparent masoning of the 
Btudents, though not necessarily couched in those words, van
that the tono, 'Dixie,' war a relic of slavery den isnod to

- la.-
\



express tho Idea end longing that slavery and vhito supremacy 
should return to, if not remain in, tho South. References in 
tho song to tha pact and the longing for tho pent vore considered 
by the black students to be nn affront to then. Plaintiffa and 
other Uegro students and membern of their class had sought to 
havo tho song, 'Dixie," eliminated from compulsory student 
aasenblies and from pep rallies which seek the support of all 
students by communicating their desire to the proper school 
authorities. They have at all times made thoir protests in a 
reasonable and peaceful rannor and havo at no time been physically 
disruptive or violent.

Apparently in recognition of tho fact that tho song, 
■Dixie,* was offensive to black ctudontn, defendants apparently 
gave black students the dovisive option of not participating in 
pop rallies and at the sarao tine apparently took tho position 

I that whether “Dixio" would or would not bo played on about or
after November 1, 1960 at pc? rallies was not certain. Therefore,^ 
on November 1, 1968, when a pop rally was held, a number of black 

I students choca not to participate in tho pep rally and a number 
chose to arid did participate. Those who did not participate 
stayed to themselves in a central site - tho school auditorium.

; Those who participated wont into the gymnasium. As coon as the 
black students entered tho pep assembly, thoy were greeted by tho 
playing of tiro tuno, "Dixie." At that point tho black students 
simply did not toko seats, but turned end peacefully loft tho 
gymnasium end went to join tho othar black students who had 
elected not to participate in this pop rally. For their con- 

i duct, tho students who quietly end peacefully walked out of the 
gymnasium wero punished to tho extent that thoy wore required

1
I



'

to suffer grade reductions of 15%, denied participation in school
related functions during the period of their five-day expulsion

o-and,. as a condition for reinstatement, v/ere required to make 
public apologies.

The severity of the punishment was extrene. For example 
in the case of a person who had a low B average, a 15% grade re­
duction would result in a drop to approximately a D average^ '.or a 
person with a C average, a 15% grade reduction could mean that 
the grade average would be reduced to the point of failure, thus 
requiring an affected pupil to repeat a subject or perhaps 
another school year. Such a course has financial significance.

Although school is not out, plaintiffs contend, on in­
formation and belief, that they have been punished and humiliated 
because of their race and their assertion of rights guaranteed to 
them by the First, Fifth, Thirteenth, and Fourteenth Amendments 
to the United States Constitution. The First Amendment rights 
alleged deal with freedom of speech and association and is made 
applicable to the defendants by the Fourteenth Amendment to the 
United States Constitution. The Fifth Amendment rights alleged 
deal with procedural due process also made applicable to the de­
fendants by the Fourteenth Amendment. The Thirteenth Amendment 
rights alleged deal with the ability of black pupils to be free 
from having to endure "badges of slavery" as they seek to enjoy 
their Brown v . Board of Education •rights. The Fourteenth Amend- 

j! ment rights are predicated upon the theory that only black students 
for the most part, as a class can have significant objection to the 
playing of this offensive southern symbol - "Dixie" - and, there-Ijji fore, any regulations promulgated to punish students for their 

II ODposition to it could only, or primarily, apply to black students.
I indeed, only black pupils have been injured under this "Dixie"
I regulation. The due process rights asserted include the right not 
only to have their administrators promulgate fair regulations, but 

; their right to fair procedures for enforcing and applying those
regulations as welt,

- 3i- 
-3-

\



&

Haintiffc* position, is that Srovn v. board^of^ Education# 
347 U.S. 433 (1354) and lto projany require integration of 
atudanta, faculties, and staff, and rcor-janlEetioft of tha school 
*y#t«m In nuch a way ea to becon;o a unitary cno without undue 
•ffrout or antagonists being aacouraguJ or jtejnvittcd by the 
dofor.danta (or their ageate) In tholr official capacity on either 
the bao;lo of r«c», religion, color or national origin. f!ie 
fluyrer® Court baa redo thlo quite clear in the religion area, 
which la analogous to the npaoch area, fotf-tlvot Court held that 
public ocUool districts could not corpol prayer in the school®, 
ffclngtca r.chool District v.. Scherjg, 374 W.B. 203 (1363). Vhirt- 
liL_ta_i+4*r, t i . t  la r.ov offensive to tho Constitution under t!;a 
church and otata separation principle for a school cystsw to 
paroit classes to bo started with a compulsory religious prayer.
On* apparent reason for reaching this result vac the fact that 
most of the prayora tended to project religion into the schools 
and ouch injection necessarily forced b o w * nonrollgieua students 
to ha offended. A further reaeon for the Cuprevo Court's ruling 

j *n 3ohosp;> was tMOt-thors-wsTryJ7̂  benefit n<scenirarily/lfco~*xj derived 
| frow an opening prayer oven though it rcay be acceptable to all 
| religious groups.

Zy analogy, therefore, it would aeos that there lo no
iij benefit to bo Afforded an integrated school system by the ployingIj off ar, offensive southern ayobol such as ’bixio" in a cowpulaory 
j studant ocscubly or ot a school sponsored activity, the tune'*
|devioivs character can bo oooily s««n, for in this case it ha#
; sot students apart primarily because of races.cr̂ 3 Such derisiveness 
is not beneficial -- indeed, it in detrimental -- to the educa-
I| tlonal process. School eyetans, under ilrown, supra, ve contend, 
i: aro charged with the roapcnoibllity of converting their school 
| systftKo in such e sannor vhoroin rocis'i, I* it block or white, 1b 
neither taught nor condoned. Panuy v. County Hoard of Kdjacntien
j;of Caviar County. I”. 2d (0th Cir. 1363). If racists is to

.................................... ' *":develop, just «» if religious bigotry is to continue, reason
Ij
suggests that it not b« fostered by the school system.-Vo. - 

- 4-

i



A basic issue involved is that of tho meaning of the 
First Amendment ao applied to pupils who arc* required by the 
State compulsory attendance law (Ark. Stats. Ann. SS00-1502-
80-1500, 1967 Ropl.) to attend school in tho context whoro those

\Btudcnts attend public schools. Once a student ia forced to 
roceivo tho benefit of a public education, nuat he, therefore, 
forfait hin constitutional right to apeak freely and association 
with his peers? Tho courts in roccnt years havo answered thin 
quaation nogativoly end hold in effect that n person*o right to 
free speech and to reasonably exercise that speech is protected 
by tho Constitution. Tho Court has uphold protests againct tho 
Vietnam v.'ar made by studonto of tho public school system ns a 
valid and reasonable cxercino of their Pirst Anendnont rights.
Tinker v. Den Koines Commu n i ty _Schoo I D  lot r let,  U.3. ___ ,
21 L.bd 2d 731 (1969) j Dickojy v . A1 obnrr.n_ J^tnte hoard of Education, 
273 F.Supp. 613 (K.D, Ala. 1967).by analogy, ec a student in a 
public school system cannot bo pur.ichod for reasonably and poaco- 
fully protesting or statino hie opposition to tho Vietnam War* 
nftithor can Jtudents bo punished for assorting their right to be 
free from racial humiliation and school supported prejudice, 
especially whero the method by which the pupilo aooort that right 
ia psacoful and reasonable. This caoo is quito unlike that of 
Blackwell v. Issaquena Board off IkJucntion, 363 F.2d 749 (5th Cir. j 
1956), where students engaged In on unquestionable degree off loud 
and boistorouo conduct following tho wearing of froodom buttons. 
Tho courtn strongly implied in that caoo that if tho students had ̂ 
not been boistoroua or loud in disrupting, suspensions would not j 
havo boon uphold. Likewise, in Wright v. Toxnn Southern 
University, 392 F.2d 72D (5th Cir. 1960), tha court hold that 
•tudonts exceeded tha bounds of permissible conduct by the 
physical and verbal abuse which was heaped upon a school official.

-  5 a. —-5-



I

•nriroR»cftt wore upheld. rlalotlffs thus contend that tha teat 
to bo applied In dateroinlny whether defendant* acted yroporly 
la follov*» Vero tho students encaycd In an assertion of 
•peach and car.cciaticn rights, and if so« wc.ro thc>y peacefully 
and reasonably aacurtin; or «tsaroiuing thoso rl<j!.t*7 If tney 
veto, any pvinlahawit therefor by school official* violates the 
bnitad statu* Constitution. rurnclCi.- v. fcyaro. 313 r.2d 744 
<;th Clr. ISCt).

Plaintiffs «So not contend that echool officials atro 
powerless to fonrulatst reatcr.aVlft r«*;ulttionr to severe the 
behavior or conduct of pupils vblle in the cur-tody of defciadsat*. 
iChat they do contend It that the royulntior.o in thin ctio, if 
tliero W  any, era patently cnreatchftblc *::<! thus offensive to the 
Constitution. J'-oruovsr, th«ro can bo no crgvrsent that th.u very
vor‘it of the turns, ’Pixie.' su^jeat lor.yin? for and adheranc* toI
the precept* of the pro -Civil car ora, prccopta which wore finally 
struck dovn, hopefully fee all tine, by the Rupr<nv« Court Is 
i-rcwii v. hoard of. f ducat ten, eupra. ~her*forft, v* contend that 

! the playin'* of 'Pixie,’ by a school a per. cored croup in r. school 
| content constitutes a l adpo of slavery forbidden by thw Consti- 
; tut ion. don®3 y. PyA>ra, 3S2 b.S. 4C9 (19«0), (corcurrlinj opinion)>
$♦*1. v. "aryl*n$. 373 235, 242 (1963).

finally, plaintiffs vora. denied ri<jhte guaranteed to 
thoas by the duo process and c^vsi protection clauses of the 
Vourtcanth hNor.dsfcont to th* L'nits.i ftatos Constitution. Plaintiffs 
wore ptmish-ad for violati ny va'jUfl, indvfiriite and ir.vufficioatly 
publicised regulations (if lndca-i that* v<sro any revelations at 
ell) , rjyulr.tions which w*ro liXuly and predictably applicable to 
blech student* primarily. A regulation may appear reasonable 
on its face but if it can only be racial in result, it foot b«

| struck do /si. fee, for axacpla. the “voter fraesi/v;" casts. If 
i a county or state has a history of ba.jro voting denial, and or.o 
of relatively full white voter ro jistrntion, coupled with rany 

jj unfraschinttii Macke of lev education, to impose a litoracy test
-ia.- 
- e  -



ij and impartially administer it would b« to parpatuato tha status 
i quo but in * different fora. Co a t o nCo un ty,_ t'or th Ce rollna y. 
j United rtatgg, 37 U.r.L.tfeoX (JiinO 2, 19C5}» ^hdtm_v._KontJUc)i^# 
304 U.S. 13$ (1?G$).

Plaintiffs were further deprived of a fair hearing andI
j opportunity to bo represented by counsel by such euspenoion-
i| Olrony. Alabama statoboard of Education, 234 P.2d 150 (5th cir.j 
J  1?61). They vero deprived of notice of the charges against thoa,
: of the opportunity to confront their accusoro, and the wholo 
! plethora of duo process righto offerded accused poroone about to
| be faced with penalty for rule or la* violations. In a (sense,
|

therefore, the seriousness of the penalties! iwpoeed is comparable 
to r.any nlcderejanor offon3oa. but, at leant in Court, a person 
has certain rightn. t’or those and other roaconu, the convictions j 
and (subsequent punishment of plaintiffs cannot ho allowed to stand. 

Tho relief that would bo appropriate now should, of
i
| course, be foraulntcd by tiso Court ; but vtt believe that equity 
j rcquiren at tha locot that!

(D defendants be unjoined from approving the playing 
■ of tha tuno, "Dixie," at school tainted affairs or functions.

(2) any rule or regulation promulgated by defendants 
l! which punishes or premicos to punish or affect one racial group
! by ito operation end doeo not apply to tho dominant racial group,
|j or to tho entire student body for that matter, bo otruch down.

(3) the apocific rule relied upon by defondanto heroin i 
j| bo atruoh down oo violative of tho First, Thirteenth and Fourteenthl!li Amendments to tha Constitution of tho United States;I]

(4) plaintiffn end any members of their class affected
i by tho acto complained of in tho complaint bo restored to tho 
|j position or status they would hovo had had tho cucponoionu not 
been enforced; end if any atudont suspended purauent to this

li policy has been forced to undergo oxponoe of ouneor school cduca-]|
tion or boon deprived of tho opportunity to graduate with hisl|jj clasc or bo prosftotad, that auoh expense bo paid to ouch person 
by tho defendants and that defendants bo required where necessary 
to grant diplomas to any plaintiff or ner.bor of plaintiff's claao

' and provide tutorial help to any person effected by the acts
-7- 
-  7 A -



complained about) and
(5) that dcfond&nte be enjoined otherwise aa io 

■pacifically requonted in tha complaint.
Plaintiffs do not waive any of their righto for relief 

by this Memorandum of Law and respectfully otntoa to the Court 
that although cone of tho points nnoortad nay indeed bo novel 
puroly because of tho naturo of tho suspensions and tho paucity 
of caso lav/ of tho general subject, plaintiffs are nonetheless 
entitled to comprehensive equitable relief, for which they 
pray.

Respectfully oufcnittad,
KALKF.R, ROTENBEMY V KAPLAN 
1820 West 13th Street 
Little Rock, Arkansas 7220
JACK GREENBERG
JAMES N. HABRIT, IIIMICHAEL KELTSNER
HORilAN J. CKACHKIN
Suite 2030
10 Columbus CircleKcw York, New York 10019
Attorneys for Plaintiffs

i

By _____ ____
~Jofin H. Walker

CERTIFICATE OP SERVICE

I do hereby certify that I havo served a copy of tho 
above and foregoing Memorandum of Law upon tho attorney for 
defendants, Ecrl S. Smith, Lnq., at Barrott, wheatloy, Smith 
i Deacon, 004 Citineno Bank building, Jonesboro, Arkansas, by 
nailing came, this 13th day off Juno, 1909.

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„„ 0 o£ the "blach end Cold" handbook tetniehcd
. U  student* .t Jonesboro nigh School oppe.r. the folloolng

n u n s  Strictly against the rules to create a 

disturbance in assembly.

On page 44 in the Jonesboro Senior High School 
Teacher Handbook, under "Policy of the Jonesboro School 
Board," adopted August 11. 1959, appears the following:,

"The Principal shall be empowered to use all 
means that he deems necessary to maintain 
discipline at all times, and shall have the 
support of the Board, as long as such means 

arc reasonable and legal.



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■ o. p.k« « . « s” ‘"  "lEh scb°o1
, ..suspension” appears the 

Teacher handbook, under

following:
e* studeat . «  »• « * P " 4" 1 tr°“ ‘Ch°01 ?
school pt.otlP*1 .» Joatlflnhlo pround, lot . 
period not to exceed one »eek, provided verb.l 

notii loot l°n 1“ d)v,n P*tcn"  l'nnie‘lla 1e IP * 
case it is not possible to notify parents 
verbally, they will be promptly notified by 
mail. U  the points deducted from a student's 
daily average scores due to suspension should 
result in lowering his score as much as 
letter grades (such as dropping from B to D) 
or cause him to have failing marks in his daily 
average scores, at that time he may request per­
mission to do sufficient extra work to remove 
the penalty caused by the suspension. Such 
request will always be granted provided the 
make-up work is completed in one week after 
return. It is not the intention of the school 
to cause the student to fail due to suspension."

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