Clark v. Little Rock Board of Education Reply Brief for Appellants - Cross-Appellees

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IN THE UNITED STATES COURT OP APPEALS 
FOR THE EIGHTH CIRCUIT

NO. 19795
DELORES CLARK, at al„.

Appellants,
vs.

THE BOARD OP EDUCATION OF THE LITTLE 
ROCK SCHOOL DISTRICT, et al.

NO. 19810
DELORES CLARK, et al..

Appellees
vs.

THE BOARD OF EDUCATION OF THE LITTLE 
ROCK SCHOOL DISTRICT, et al

Appeals from the united States District Court for the Eastern 
District of Arkansas. Western Division_________ _

REPLY BRIEF FOR APPELLANTS - CROSS-APPELLEES

JOHN W. WALKER 
BURL C. ROTENBERRY 1820 West 13th Street Little Rock, Arkansas 72202 
JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants in 
NO. 19795

Attorneys for Appellees in 
NO. 19810



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 19795

DELORES CLARK, et al..
Appellants,

vs.
THE BOARD OF EDUCATION OF THE LITTLE ROCK 
SCHOOL DISTRICT, et al.,

NO. 19810
DELORES CLARK, et al..

Appellees,
vs.

THE BOARD OF EDUCATION OF THE LITTLE ROCK 
SCHOOL DISTRICT, et al..

Appeals from the United States District Court for the Eastern
District of Arkansas, Western Division

REPLY BRIEF FOR APPELLANTS - CROSS-APPELLEES

I .

Before turning to the issue before the Court, we confront the 
snide accusation, casually injected in a footnote to Appellees' 
Brief at p. 8 n. 4, that "the real plaintiffs in these cases are 
not [the named plaintiffs but] the attorneys. . . . "  This claim.



while nothing more than a smokescreen to obscure issues,^ is 
disrespectful not only to the thousands of Negro parents in the 
Little Rock School District who seek quality education for their 
children, but also the district court, where, had the issue been 
raised, it would have been easily rebutted by evidence. First, 
shortly after the filing of the Motion for Further Relief herein 
(A. 5a-14a), well over sixty minor Negro schoolchildren intervened 
in this litigation as plaintiffs, seeking the same relief ' A . 24a- 
31a, 33a). Second, the intervenors included Yolanda Townsend, 
daughter of a Negro optometrist who has long been prominently 
involved in civic affairs in Little Rock and who helped to found the 
Council on Community Affairs in that city. Third, plaintiffs have 
consistently been represented in this entire litigation by local 
attorneys admitted to practice before the Supreme Court of Arkansas 
who have been engaged in the practice of law in Arkansas. Fourth, 
the significance of a negative vote in some "predominantly Negro" 
precincts on the bond issue connected with the Parsons Plan is

1/ " . . .  the school board knows, has known since 1954, what
Negro parents mean when they allege generally that their 
children are being denied equal protection of the laws. They 
mean that all-Negro schools yet exist, that faculties have not 
been integrated, and that other characteristics of the dual 
system remain." United States v. Greenwood Municipal Separate 
School Pist.. 406 F.2d 1086, 1090 (5th Cir. 1969).

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questionable, particularly when one recalls that the Plan called 
for closing Horace Mann High School rather than assigning white 
students to it (see A. 131, 144-45) and would have left Negro 
students without any means of getting from their homes to the 
schools they were supposed to attend (A, 134-35).

II.
Appellees seem to have little quarrel with the Statement which 

appeared in our original Brief, except to label it a "distorted" 
history of Little Rock school desegregation. How that history is 
misrepresented is not shown, however, and we respectfully suggest 
that it was appellees' burden to demonstrate in what respects our 
account of continuous, racially motivated actions by the Little 
Rock School Board was erroneous.

We have never charged appellees with a "conspiracy," as 
sug^sted in their brief at p. 3. That is irrelevant to the 
relief which has been sought by appellants and the class since the 
inception of this litigation. As Judge Doyle said in Keves v.

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School Dist. No. 1, Denver:
We do not find that the purpose here 
included malicious or odious intent.
At the same time, it was action which 
was taken with knowledge of the 
consequences, and the consequences were 
not merely possible, they were 
substantially certain. Under such 
conditions the action is unquestionably 
wilful.

It seems to us that appellees have put their finger on the
reason why Little Rock remains a segregated school system today,2/some fifteen years after Brown. They state in their Brief at p. 3s

In short, these defendants have promptly 
changed the method of school operation on 
each occasion that the courts have 
declared a new rule calling for such change.

Arguendo, true. Equally true, however, is the implication of that
statement: that appellees have never taken any initiatives towards
creating a unitary, nonracial school system not based on color
distinctions; appellees have always preferred to litigate rather
than to integrate. Cf. Alexander v. Holmes County Bd. of Educ.,

U.S. _____ (1969). Not since adoption of the original 
Blossom Plan has a school board taken meaningful action.
Dr. Blossom did not long remain in the system, and since that time

2/ Civ. No. C-1499 (D. Colo., July 31, 1969), further order,
Aug. 14, 1969, stay pending appeal granted, F.2d _____
(10th Cir. No. 432-69. Aug. 27, 1969),* stay vacated, ___ S.
Ct. (Mr. Justice Brennan, Acting Circuit J’ustxce,
Aug. 29, 1969), slip opinion at p. 13.

3/ This is not propaganda, as appellees suggest; there is still
not a school system in Little Rock not based on color 
distinctions. See Aaron v. Cooper, 243 F.2d 361, 362 (8th 
Cir. 1957).

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Little Rock school boards have joined in resistance to the 
Constitution —  leasing facilities to private schools and 
minimizing pupil transfers, for example. Every board which 
approached its constitutional task with any openmindness (suggesting 
the parsons Plan, for example) has been promptly replaced by one 
opposed to greater progress. Again, we say as we did in our main 
brief, "small wonder, then, that the vestiges of segregation persist 
in this school district."

III.
The district court heldt

What has happened in Little Rock is 
no different than that which has 
happened in the northern and other 
sections of this country where there 
was never any de jure segregation.
"(A. 918) [emphasis supplied]

Similarly, appellees argue that "there are all-Negro and all-white 
schools all over the nation including those areas where State 
enforced segregation was never practiced" (Brief, p. 15). This 
conclusion, unsupported by the facts, becomes the major premise of 
appellees' argument —  which may be reduced to the following 
deductive framework*

I School districts in which there was 
never any da jure segregation, as well 
as school districts in which there was, 
today have many all-Negro or all-white 
schools.

II The existence of all-Negro or all-white 
schools in a district therefore does not 
indicate the continued presence of 
"vestiges" of de jure segregation.

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Ill Little Rock*8 zoning plan, which 
leaves all-Negro and all-white 
schools, does not therefore maintain 
the vestiges of previous segregation, 
and was properly approved by the 
district court.

The major premise is not supported by the facts. We do not questior 
the authenticity of the figures contained in the Appendix to 
Appellees* Brief. They do not, however, support the thesis.
Schedule 1A lists school districts in States which in 1954 had no 
State law requiring school segregation, not districts which never 
had de_ jure segregation or those in which the effects of that de 
jure segregation are not still apparent. For example, the district 
judge in the Keyes case, supra, found in August 1969 that there had 
been de jure segregation (created by the conscious racial action 
of the school board) in one of the school districts listed on 
Schedule 1A —  Denver. Most, if not all, of the cases of so-called 
11 de facto" segregation, no matter in what section of the country 
they be found, will upon examination be revealed to embody 
instances of d<a jure segregation. Moses v. Washington parish 
School Bd., 276 F» Supp. 834, 847 _ (E.D. La. 1967).

Courts are properly sensitive to the need for constitutional 
rules to apply uniformly throughout the nation. It was this 
sensitivity, we believe, which led the Sixth Circuit to err in 
Goss v. Board of Educ. of Knoxville, 406 F.2d 1183 (6th Cir. 1969) 
and the district court to err in this case. But Brown does not 
require different obedience in different sections of the country. 
Wherever there has been de jure segregation, its pervasive effects

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must be eliminated. This may perhaps be best illustrated by 
comparing two Seventh circuit decisions: Bell v. School City of
Gary, lnd.f 213 F. Supp. 819 (N.D. Ind.), aff'd 324 F.2d 209 (7th 
Cir. 1963), cert, denied, 377 U.S. 924 (1964) and United States v. 
School Dist. No. 151 of Cook County, 286 F. Supp. 786 (N.D. 111.), 
aff'd 404 F.2d 1125 (7th Cir. 1968).

4/
In the Bell case, the district court found that the effects

of pre-1949 de jure segregation (Indiana repealed its State law
requiring school segregation in 1949) had been dissipated by the
time the action was filed, and that school district authorities in
no way contributed to the existence of schools enrolling numbers of
students Qf one race disproportionate to the total number of.student
of that race in the entire school system. The district
court therefore held that the school board could continue to assign
students according to the geographic zones attacked in the lawsuit.

We do not have the record of that case before us and we 
thus express no criticism of the district judge's finding.
It may be that the district judge failed to grasp the 
relationship between pre-1949 and post-1954 patterns of 
school attendance. At any rate, the Seventh Circuit found 
the district court's findings not clearly erroneous on the 
record before it.

In Little Rock, in contrast, there is no dispute about the 
existence of many factors not present in the Bell casej 
busing to maintain segregation, constructing schools to 
service limited populations in areas where intense private 
residential discrimination against Negroes was widespread 
and well known to the board, cf. Brewer v. School Bd. of City 
of Norfolk, 397 F.2d 37 (4th Cir. 1968), assigning faculty 
members racially, based on the characteristics of the 
segregated neighborhoods in which new schools were located, etc

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In the School District No. 151 case, the district court found 
that the busing of Negro children by the school district past white 
schools to the phoenix school had contributed heavily to the outflow 
of whites from the phoenix area and the concommitant influx of 
Negroes. For this reason, the court rejected the school district's 
claim that the phoenix School was all-Negro only because of "de 
facto" segregation in the neighborhood surrounding it.

We thus cannot leap from the statistics furnished by appellees 
to the proposition which seems to be the major premise of their 
argument. We have equal difficulty in getting to their second 
thesis. Even were it established that both cte pure and de_ facto 
segregated districts had all-Negro and all-white schools, this in no 
way negates a causal relationship between de jure segregation and 
the present makeup of a school district. The Constitution bears 
upon that causal relationship. Finally, we of course cannot agree 
that the zoning plan approved below does anything but "freeze in" 
the results of past discrimination.

This case presents an important question for school boards
which understandably chafe at continuing federal judicial
supervisions when has a unitary system been achieved? This
Court long ago indicated its understanding of the situation and
stated one of the tests:

[T]he obligation of a school district to 
disestablish a system of imposed segrega­
tion, as the correcting of a constitutional 
violation, cannot be said to have been met 
by a process of applying placement standards, 
educational theories, or other criteria, 
which produce the result of leaving the 
previous racial situation existing, just as 
before.

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yDove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960). Little Rock
fails that test. Its obligation since 1954 has been to disestablish 
its dual system of schools. The district court recognized that it 
had not done so, and that under freedom of choice it was unlikely 
to do so in the future. But the district court approved a zoning 
plan "leaving the previous racial situation existing, just as 
before." That was its error.

Our reading of the cases is supported by the recent Supreme 
Court decision in Alexander v. Holmes County 3d. of Educ., supra.
We find extremely significant the Court's use of the phrase 
"effectively excluded." "Effectively" is a key word, and it 
embraces the realization that ingenious as well as disingenuous 
devices may be used to maintain segregation. Thus it encompasses 
the 1968 holdings that free choice plans, though not directly or 
openly exclusionary, nevertheless fail to pass Constitutional 
muster when they do not materially change the existing attendance 
patterns. Green v. County School Bd. of New Kent County, 391 U.S. 
431 (1968). A zoning plan which merely continues the attendance 
patterns which have developed under free choice is equally 
defective Constitutionally, united States v. Greenwood Municipal 
Separate School Dist., supra.

"The happy day when courts retire from the business of 
scrutinizing schools is wholly dependent on school boards 
facing up to the necessity of doing away with all Negro- 
schools and effectively integrating faculties. That is true, 
no matter whether school boards use freedom of choice, zoning, 
or a combination of the two plans." United States v. Choctaw 
County Bd. of Educ., No. 27297 (5th Cir., June 26, 1969), 
slip opinion at p. 4.

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IV.
We continue to maintain that Section 407(a)(2) of the Civil

Rights Act of 1964, 42 U.S.C. §2000c-6, has no application to this
case. That section provides that:

. . . nothing herein shall empower any 
officer or court of the United States 
to issue any order seeking to achieve a 
racial balance in any school by 
requiring the transportation of pupils 
or students from one school to another 
or one school district to another in 
order to achieve such racial compliance 
with constitutional standards.

The language and the legislative history of the section were 
reviewed in United States v. Jefferson County Bd. of Educ., 372 
F.2d 836, 880 (1966), aff*d en banc, 380 F.2d 385 (5th Cir.), cert, 
denied sub nom. Caddo parish School Bd. v. United States, 389 U.S. 
840 (1967) where it was held that Section 407(a)(2) did not 
restrict the remedial powers either of HEW or of the federal 
courts in school desegregation suits brought to redress the 
deprivation of constitutional rights.

Numerous other federal courts have since passed upon this 
section and all have concluded that the Act does not bar a federal 
court from requiring busing as a means of achieving integration if 
such is necessary to meet the affirmative obligations of school 
boards to erect unitary non-racial school systems, united States 
v. School District No. 151 of Cook County, 286 F. Supp. 786 (N.D. 
1 1 1 .), aff'd 404 F.2d 1125 (7th Cir. 1968); Moore v. Tangipahoa 
parish School Bd«, Civil No. 15556 (E.D. La., July 2, 1969); Keyes 
v. School District No. 1. Denver, supra; Dowell v. School Bd. of

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Okla. City, Civil No. 9452 (W.D. Okla. Aug. 8, 1969) vacated.
F.2d ___ (10th Cir. No. 435-69, Aug. 27, 1969), reinstated, ___
S.ct. ____ (Mr. Justice Brennan, Acting Circuit Justice, Aug. 29,
1969); cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., ___ F.
Supp. ____, Civ. No. 1974 (W.D. N.C., April 23, 1969),,

The issue, as it has been framed by school boards at variousy
times, is whether that section of the Act bars a federal court, 
in an action to enforce the Fourteenth Amendment, from requiring 
transportation of black or white students to or from any school 
facility as part of an effective desegregation plan.

There are several reasons not to construe the law to embrace 
such a broad bar. In the first place, it is a truism of statutory 
interpretation that statutes should be construed, whenever possible, 
so as to sustain their constitutionality. If Section 407 were 
construed as a limination upon the power of the federal courts to 
fashion a remedy for the deprivation of Fourteenth Amendment rights, 
serious constitutional questions concerning the validity of the 
legislation would be presented. Generally speaking, the power of a 
court of equity to fashion remedies is commensurate with the scope 
of the wrong. And where racial discrimination constitutes the 
wrong, federal courts have "not merely the power but the duty to 
render a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like discrimination 
in the future." Louisiana v. United States, 380 U.S. 145, 154 
(1965); cf. united States v. Montgomery County Bd. of Educ., 395

6/ The language in question is found in that part of the statute
~ which authorizes the Attorney General of the united States, 

upon complaint, to sue individual school districts which 
operate segregated public school systems. However, we assume 
arguendo, that application of Section 407(a)(2) is not limited 
to suits brought by the Attorney General.

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U.s. 225 (1969); Gray v. Main, ___ F. Supp. ___, No. 2430-N
(M.D. Ala., March 29, 1968); Hogue v. Aubartin, 291 F. Supp„ 1003 
(S.D. Ala. 1968); Brooks v. Beto, 336 F.2d 1 (5th Cir. 1966); 
Plaquemines parish School Bd. v. United States, No. 24009 (5th Cir., 
August 15, 1969)(slip opinion at pp. 29-31).

But the court need not decide the constitutional question.
There is little reason to believe that Congress intended such a 
drastic limitation upon the remedial powers of the federal courts. 
We think it is clear from the repeated references by several 
senators and representatives to Bell v. School City of Gary, Ind,, 
supra, that the provision was added to the legislation to negate 
any possible construction of the statute supporting a new statutory 
cause of action to redress innocently arrived at, de facto racial 
imbalance in the schools. The law of the Bell case was that where 
a court found no State involvement in creating the pattern of 
segregated schools, there was no right to a decree requiring that 
the pattern be altered by the school board. Senator Humphrey, 
floor manager of the bill in the senate (where the most important 
changes in and additions to the bill were made; see, , Dent v.
St. Louis-S.F. Rv. Co., 406 F.2d 399 (5th Cir. 1968)), said that 
Section 407(a)(2) was added to write ’’the thrust of the court's 
opinion [in the Gary case] into the proposed substitute." 110 Cong. 
Rec. 12714-15 (1964).

When the Civil Rights Act of 1964 was drafted, the distinction 
between de facto and de jure segregation had already been drawn, 
and the use of the phrase "racial imbalance" to refer to the former

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(as contrasted with "segregation”) had already become common. Thus, 
the language of the traction, that "nothing herein" (emphasis 
supplied) shall empower the courts to deal with "racial imbalance" 
cases (saying nothing of existing judicial power derived from the 
Constitution or other statutes), also supports the view that it was 
intended only as a safeguard against interpretations of the 
statute which would expand the jurisdiction of the federal courts. 
The Act was not to be construed as making any change in the basic 
prerequisites which had to be met in order to invoke the 
jurisdiction of the federal courts in school desegregation cases. 
The Act was not intended to imply that plaintiffs in such actions 
need no longer prove complicity by the school board or the state 
in creating a segregated condition in the public schools.

It would be wrong to impute to Congress any intention to 
intervene in the declaration of constitutional doctrine the 
function of the judiciary. The language added to the Act was 
designed to make clear that by enacting the law. Congress was not

. . ,  vattempting to change established constitutional principles.

7 7 we submit with thisReply Brief, for the Court's
convenience and reference, a copy of the Memorandum on the 
subject of the legislative history of this section prepared 
and filed by the united States at the request of the United 
States Court of Appeals for the Fifth Circuit in Singleton v. 
Jackson Municipal Separate School District and other cases 
argued en banc November 17 and 18, 1969 as well as the 
attached Appendix containing copies of pertinent sections of 
the Congressional Record and Congressional Committee reports. 
These documents are too lengthy to permit reproduction. We 
are submitting one copy to the Clerk for the use of the court.

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Any other construction of the statute would seriously hamper 
effectuation of the constitutional rights of hundreds of thousands
of Negro schoolchildren. For example, the requirement that a 
school district's bus transportation system be reorganized on a 
nonracial basis, when combined with even as modest a desegregation 
plan as freedom of choice, amounts to a directive to transport 
students to schools in order to dismantle a dual system of education 
created and maintained by state action.

Moreover, "busing" is a rather familiar feature on the 
educational scene, in 1967-68, some 17,271,718 public school 
students in the united States were given transportation at school 
district expense. In Arkansas and some other States in 
this circuit the figures were as follows:

State
Arkansas
Missouri
Iowa
Minnesota 
Nebraska 
North Dakota

Number of Enrolled pupils Trans- 
ported at Public Expense, 1967-68

232,022 
526, 252 
275,931 
361,478 
59,047 
56,807 8/

It is also well known that virtually all private schools and 
kindergartens in the county transport their students by bus. Thus 
a decree requiring the use of school buses as a means of achieving 
a unitary system injects nothing of startling significance into 
school desegregation cases. As the court stated in Swann v. 
Charlotte-Mecklenburg Bd, of Educ,, supra, slip opinion at p. 16,

§7 1967-68 Statistics on School Transportation (National
Commission on Safety Education of the National Education 
Association, 1968).

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The Board has the power to use school 
busses for all legitimate school 
purposes. Busses for many years were 
used to operate segregated schools. 
There is no reason except emotion (and 
I confess to having felt my own share 
of emotion on this subject in all the 
years before I studied the facts) why 
school busses cannot be used by the 
Board to provide the flexibility and 
economy necessary to desegregate the 
schools. Busses are cheaper than new 
buildings? using them might even keep 
property taxes down.

V.
A word about racial balance. As a matter of appropriate 

remedy, a district court may conclude that a particular school 
district ought to be required to adopt a school attendance plan 
which will at least initially, and to the extent feasible, achieve 
at each school the racial balance which exists in the system as a 
whole. E.cj, . ' Robinson v. Shelby County Bd. of Educ., Civ. No.
4916 (W.D. Tenn., July 19, 1968). This Court might conclude on an 
appeal that such "racial balance" was the only adequate remedy on 
the facts as shown. As a remedial consideration, "racial balance" 
is nothing more than a benchwork to aid in determining when the 
impetus of past discrimination has been brought to rest.

Appellees' continued reliance upon stereotyped generalizations 
is evident from their comment that "[a)ny possible inference that 
Negro teachers had or would receive less than their 'fair-shake' 
during faculty desegregation should be promptly discarded in view 
of the fact that the Assistnat Superintendent for personnel with

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the direct responsibility to carry out staff desegregation."
(Brief, p. 29 n. 8). Mr. Fowler held that position for some time, 
without measurable result, because he was never authorized by his 
superiors, the Superintendent and the Board, who are responsible 
for the operations of the school district, to attempt real faculty 
desegregation except on a voluntary basis (A. 255). Appellants are 
interested in results, not in the color of the man whose job it is 
to achieve results.

In conclusion, we emphasize that the Beta complex was properly 
included in the district court's decree as a matter of remedy, we 
agree with the expert testimony that standing alone it is 
insufficient, but since a new comprehensive plan for Little Rock 
school desegregation must be drawn, the issue is of marginal 
significance. Finally, we repeat our request for attorneys' fees 
as contained in our original brief.

Respectfully submitted.

JOHN W. WALKER 
BURL C. ROTENBERRY

1820 West 13th Street 
Little Rock, Arkansas 72202 

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

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellants in 
NO. 19795

Attorneys for Appellees in 
NO. 19810

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A

V