Yarbrough v. The Hubert-West Memphis School District No. 4 Appellants' Brief

    In the

Uttitefr States QInurt of Appeals
F oe the E ighth Ciecuit 

No. 18693

Delois Y arbrough, et al.,

-v.—
Appellants,

T he H tjlbert-W est Memphis School District 
No. 4 of Crittenden County, A rkansas, et al.,

Appellees.

ON A PPE A L FRO M  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  
EASTERN D ISTRICT OF A R K A N SA S, JONESBORO DIVISION

APPELLANTS’ BRIEF

George H oward, Jr.
329% Main Street 
Pine Bluff, Arkansas

Jack Greenberg 
M ichael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants

M ichael Davidson
Of Counsel



INDEX
PAGE

Statement .............................................................................. 1

Statement of Points to be A rgued ................................... 7

A egument

I. The Vague Plan of Teaching and Administra­
tive Staff Desegregation Approved by the Dis­
trict Court Is Inadequate to Desegregate the 
School System and Does Not Conform to De­
cisions of This C ourt..........................................  9

II. The Court Below Erred in Failing to Retain 
Jurisdiction of This Case and Failing to Ex­
ercise Continued Supervision Over the Deseg­
regation Process Until Transition to a Non- 
discriminatory School System Is Completed .... 16

Conclusion .......................................................................... 21

Appendix of Federal Regulations .................................   23

T able of Cases

Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957) ............. 16

Bradley v. School Board, 382 U.S. 103 (1965) ..... .........  9
Brooks v. Board of Education of Arlington County, Va.,

324 F.2d 305 (4th Cir. 1963) ................. ...................... . 16
Brown v. Board of Education, 349 U.S. 294 (1955) .... 16

Clark v. Board of Education of Little R ock ,------F.2d
------ - (8th Cir., No. 18368, December 15, 1966) .... .9,11,14,

16,18



11

PAGE

Dowell v. School Board of Oklahoma City, ------  F.2d
------  (10th Cir. No. 8523, January 23, 1967) ...........10,12

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ....2,10,16,18 
Kier v. County School Board of Augusta County, 249 

F. Supp. 239 (E.D. Ya. 1966) .................................... 10,12

Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) .......  16

Robinson v. Shelby County Board of Education,------
F. Supp. ------  (No. 4916, W.D. Tenn. January 19,
1967) .................................................................................. 12

Rogers v. Paul, 382 U.S. 198 (1965) ......... .....................  9

United States v. Jefferson County School Board,------
F .2d------  (5th Cir. No. 23345, Dec. 29, 1966) ....10,19, 21

Wright v. County Board of Greensville County, 252 
F. Supp. 278 (E.D. Va. 1966) ..... ................................. 10

F ederal Regulations

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964 ............. .................................................... 18, 23, 24, 26



I n the

iuntcft UMpb tour! itf Appeals
F oe the E ighth Cibcuit 

No. 18693

Delois Y arbrough, et al.,
Appellants,

T he H ulbert-W est Memphis School District 
No. 4 oe Crittenden County, A rkansas, et al.,

________ Appellees.

ON A PPE A L PRO M  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  
EASTERN D ISTRICT OF A R K A N SAS, JONESBORO DIVISION

APPELLANTS’ BRIEF

Statement

This action was brought January 28, 1965 by Negro 
school children and their parents against the Hulbert-West 
Memphis School District No. 4, its superintendent and di­
rectors. The complaint alleged and the answer admitted 
that the system segregated students, teachers, and non­
teaching professional staff in separate, racially designated 
schools.1 *

After a hearing before the district court the school board 
filed a “Desegregation Plan” April 19, 1965 which estab­
lished a three year plan of student desegregation under 
which students would be assigned according to their school

1 Answer, filed February 23, 1965. See also answer to Interrogatory 14,
filed March 15, 1965.



2

preferences. Students in grades 1-6 would indicate pref­
erences during the first year of the plan, 1965-66, those in 
grades 7-9 during the second year, 1966-67, and those in 
grades 10-12 during the third, 1967-68. Dual attendance 
areas were to be maintained until the plan covered all 
grades. The plan provided only that faculty and staff 
recruitment and assignment would be desegregated “as 
expeditiously as possible” :

“VII Teachers and Staff. Beginning with the 1965- 
1966 school year, the Board of Directors will under­
take and complete as expeditiously as possible the 
desegregation of the teachers and professional staff, 
with the end in view of recruitment and assignment 
without regard to race. During the 1965-1966 school 
year, faculty meetings, teachers’ meetings, principals’ 
meetings and in-service workshops will be desegre­
gated and conducted on a non-racial basis.” 2

Negro students objected that the plan for student deseg­
regation was inadequate and that the board established 
no meaningful procedures for integrating faculty and 
staff,3 however, the district court approved the plan June 
18, 1965, 243 F. Supp. 65 (E.D. Ark. 1965). Negro students 
filed a notice of appeal to this Court, but before filing of 
the printed record and briefs, the parties agreed to amend 
the plan in light of a supervening decision, Kemp v. 
Beasley, 352 F.2d 14 (8th Cir. 1965), by providing for 
annual school assignment preferences, the right of 11th 
and 12th grade Negro students to state a preference for 
reassignment during the school year 1965-1966, and elim- * 8

2 Desegregation plan, filed April 19, 1965.
8 Objections to plan for desegregation, filed April 29, 1965. See 243 

F. Supp. at p. 69.



3

ination of dual attendance areas. The district court ap­
proved the amendments, which required the board to file 
a report on faculty and staff desegregation within 90 days, 
February 10, 1966.

The board filed such a report May 27, 1966 stating its 
intent to desegregate faculty meetings and workshops dur­
ing the 1966-67 school year. In September 1966 salaries 
of Negro and white teachers would be equalized “ for the 
first time in the history of the district.” 4 * The board would 
also “proceed, in due course, to adjust its contracts to a 
basis whereby teachers are employed with the understand­
ing that they are subject to assignment to any of the 
schools of the District” although the board refused to 
“commit to complete this for the 1966-67 school year.” 6 
The report did not propose any standards or timetable 
for actual desegregation of teaching and administrative 
staffs or for assignment of new teachers on a nonracial 
basis. On June 4, 1966, the Negro students filed objections 
to the report on the ground that it failed to provide ade­
quately for desegregation of presently employed teachers 
during the school year 1966-67, or for nonracial recruit­
ment and assignment.

During the first year of the plan’s operation, the 1965- 
1966 school year, 30 of the 2816 Negro students in the 
system attended white schools and no white students at­
tended Negro schools.6 A  four classroom addition to the 
Jackson Elementary School was constructed7 8 and an all 
Negro faculty was assigned to it.8 The school board created

4 Report, filed May 27, 1966.
6 Ibid.
6 Answer to Interrogatory 1, filed July 8, 1966.
7 Answer to Interrogatory 29, filed March 11, 1965.
8 Answer to Interrogatory 1, filed July 8, 1966.



4

22 new teaching positions9 and hired 45 new teachers, 
26 white and 19 Negroes; all of the new white teachers 
were assigned to white schools and all of the new Negro 
teachers were assigned to Negro schools.10 None of the 
system’s 125 white teachers taught at a Negro school and 
none of the 94 Negro teachers taught at a white school.11

As the new school year, 1966-67, started 115, or 3% of 
the 3029 Negro students in the School District were at­
tending white schools. No white students were attending 
Negro schools.12 The School Board added 21 teachers, in­
creasing its faculty from 219 to 24013 and employed 31 
teachers for the first time. Of the newly hired teachers 
20 are white and 11 are Negro.14 All of the new white 
teachers were assigned to white schools and all of the 
new Negro teachers were assigned to Negro schools.15

After Negro students filed objections to the report the 
board filed a supplemental report showing that during the 
1966-67 and 1967-68 school years there would be several 
appointments of white staff members who would work with 
Negro as well as white students: a white Federal coordina­
tor, cafeteria supervisor, and social worker. There would 
also be a white supervisor for formerly Negro elementary 
schools, a white and a Negro nurse would work with all 
students, a Negro music teacher would teach at white 
schools, a Negro librarian would work at the formerly 
white junior high school, and a white librarian at the for-

9 Compare answer to Interrogatory 5, filed March 11, 1965 and answer 
to Interrogatory 1, filed July 8, 1966.

10 Answer to Interrogatory 8a, filed July 8, 1966.
11 Answer to Interrogatory 1, filed July 8, 1966.
12 Answer to Interrogatory 2, filed July 8, 1966.
13 Compare Interrogatories 1 and 2, and Answers, filed July 8, 1966.
14 Answer to Interrogatory 8b, filed July 8, 1966.
15 Answer to Interrogatory 2, filed July 8, 1966.



5

meriy Negro junior high school. The School Board also 
planned “ a special education program in an elementary 
school attended predominantly by white children . . . which 
will have one white teacher and one Negro teacher.” 16 
No general staff desegregation was planned and the prac­
tice of assigning new teachers racially was not modified.

On September 29, 1966, the district court ruled on the 
objections and found that the board’s supplemental report 
“ represent(ed) a meaningful start toward desegregation 
of the faculty and may be constitutionally adequate for 
the time being” ,17 but the court suggested that the board 
add a “concrete” expression of intent to desegregate teacher 
and administrative staffs. The district court also expressed 
the view that it would be better if all school districts were 
regulated by the Department of Health, Education and 
Welfare than for the court to proceed to supervise the 
desegregation of individual school districts.

On October 6, 1966, the board adopted the statement of 
intent to hire and assign nonracially suggested by the dis­
trict court:

“Vacancies on the teaching and professional staff shall 
be filled by employment of the best qualified available 
applicant without regard to race, and it is hereby de­
clared to be the policy of this district to accept and 
consider all applications for employment without re­
gard to race. All applicants for positions of employ­
ment in this district shall be informed that Hulbert- 
West Memphis operates a racially desegregated school 
system, that the teachers and other professional per­
sonnel in the district are subject to assignment in the 
best interest of the school system without regard to

1(5 Letter to district court, filed as amendment to the plan on September 
27, 1966.

17 Letter opinion, filed September 29, 1966.



6

race or color, and that teachers shall be subject to 
being employed in integrated teaching situations.

“Race or color will henceforth not be a factor in the 
hiring, assignment, reassignment, promotion, demotion, 
or dismissal of teachers and other professional staff, 
with the exception that assignments may be made to 
further the progress of desegregation.” 18

The court dismissed the action October 28, 1966, accept­
ing the additional language adopted by the board and 
finding that no other issues remained to be adjudicated.

On November 4, 1966, Negro students moved the court 
to grant a new trial and, or in the alternative, to amend 
the order of dismissal on the ground that (1) the faculty 
plan still spoke only of unspecified action at an indeter­
minate time, and (2) the dismissal of the case was im­
proper in that it was the continuing obligation of the 
district court to supervise transition to a fully deseg­
regated system. At such a new trial the students offered 
to retain an educational expert to study teacher and ad­
ministrative staff desegregation in the school district so 
that an effective plan might be devised.

The district court denied the motion for a new trial on 
November 22, 1966 holding “that annual supervision of the 
defendants by the Court for an indefinite time in the future 
is not necessary in view of the pertinent provisions of the 
HEW  regulations under the current Civil Rights Act.” 19

Negro students filed a notice of appeal to this Court 
on December 16, 1966. On January 20, 1966, the court de­
nied their Motion to Expedite the appeal but ordered 
the appeal heard on the original file of the district court.

18 Letter to district court dated October 6, 1966.
19 Letter opinion, filed November 22, 1966.



7

STATEMENT OF POINTS TO BE ARGUED

I.

The Vague Plan of Teaching and Administrative 
Staff Desegregation which was Approved by the Dis­
trict Court Is Inadequate to Desegregate the School 
System and Does Not Conform to Decisions of This 
Court.

Bradley v. School Board, 382 U.S. 103 (1965); 
Clark v. Board of Education of Little Rock,

------ F .2d -------  (8th Cir. No. 18368, December
15,1966);

Dowell v. School Board of Oklahoma City,
------F .2d-------(10th Cir. No. 8523, January 23,
1967) Affirming 244 F. Supp. 971 (W.D. Okla.
1965) ;

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965); 
Kier v. County School Board of Augusta County,

249 F.Supp. 239 (E.D. Va. 1966);
Robinson v. Shelby County Board of Education,

------  F. Supp. ——  (No. 4916, W.D. Tenn.
January 19, 1967);

Rogers v. Paul, 382 U.S. 198 (1965);
United States v. Jefferson County School Board, 

—— F .2 d ------  (5th Cir. No. 23345, Dec. 29,
1966) ;

Wright v. County Board of Greensville County, 
252 F. Supp. 278 (E.D. Va. 1966).



8

The Court Below Erred in Failing to Retain Juris­
diction of This Case and Failing to Exercise Continu­
ing Supervision Over the Desegregation Process Until 
Transition to a Nondiscriminatory School System Is 
Completed.

Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957);
Brooks v. Board of Education of Arlington 

County, Va., 324 F.2d 305 (4th Cir. 1963);
Brown v. Board of Education, 349 U.S. 294 

(1955);
Clark v. Board of Education of Little Rock,

------ F .2d-------- (8th Cir., No. 18368, December
15, 1966);

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965);
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) •
United States v. Jefferson County School Board, 

F.2d (5th Cir., No. 23345, December

II.

29, 1966).



9

ARGUMENT

I.

The Vague Plan of Teaching and Administrative Staff 
Desegregation Approved by the District Court Is In­
adequate to Desegregate the School System and Does 
Not Conform to Decisions of This Court.

The district court accepted as an adequate plan the 
board’s statement of general intent to hire and assign 
teachers without regard to race over appellants’ objections 
that the plan was vague and failed to provide any definite 
standards or timetable for desegregation. The board had 
first promised to accomplish staff desegregation “as ex­
peditiously as possible” during the 1965-66 school year 
but during that year none of the system’s 125 white teachers 
taught at a Negro school and none of the 94 Negro teachers 
taught at a white school; 26 new white teachers were 
assigned to white schools and 19 new Negro teachers were 
assigned to Negro schools. The board also constructed a 
four classroom addition to the Jackson Elementary School 
to which an all Negro faculty was assigned.

At the beginning of the school year 1966-67 the board 
hired 20 new’ white and 11 new Negro teachers. All of the 
whites were assigned to white schools, and all of the Ne­
groes were assigned to Negro schools. As the second year 
of desegregation began, 130 white teachers were scheduled 
to teach at white schools and 110 Negro teachers were 
scheduled to teach at Negro schools.

It is established that the immediate implementation of 
a specific plan of faculty and staff desegregation is con­
stitutionally required. Rogers v. Paul, 382 U.S. 198 (1965); 
Bradley v. School Board, 382 U.S. 103 (1965); Clark v. 
School Board of Little R ock,------F .2d -------- (8th Cir. No.



10

18368, December 15, 1966); Kemp v. Beasley, 352 F.2d 14 
(8th. Cir. 1965); United States v. Jefferson County Board
of Education, et al., ------  F.2d ------  (5th Cir. No. 23345,
December 29, 1966); Kier v. School Board of Augusta 
County, 249 F. Supp, 239 (W.D. Va., 1966); Dowell v.
School Board of Oklahoma C ity ,------ F .2d ------  (10th Cir.
No. 8523, January 23, 1967) affirming 244 F. Supp. 971 
(W.D. Okla., 1965); Wright v. County Board of Greens­
ville County, 252 F. Supp. 378 (E.D. Va. 1966).

This Court in Clark v. School Board, supra, unequivocally 
asserted the need for definiteness in this constitutionally 
required plan for staff desegregation:

The lack of a definite program will only result in 
further delay of long overdue action. We are not 
content at this late date to approve a desegregation 
plan that contains only a statement of general good 
intention. We deem a positive commitment to a rea­
sonable program aimed at ending segregation of the 
teaching staff to be necessary for the final approval of 
a constitutionally adequate desegregation plan. Clark, 
supra.

In Little Rock a pledge that future employment, assign­
ment, transfer, and discharge of teachers would be non- 
racial and assignment of 52 teachers to minority situations 
was inadequate to obviate the need for a definite plan. Cer­
tainly, in Hulbert-West Memphis the same general pledge 
and only the assignment of a few special class teachers 
to minority situations heightens the need for a definite 
plan. As the court held in Wright v. County Board of 
Greensville County, supra:

Several principles must be observed by the board. 
Token assignments will not suffice. The elimination of 
a racial basis for the employment and assignment of



11

staff must be achieved at the earliest practicable date. 
The plan must contain well defined procedures which 
will be put into effect on definite dates.

In the Little Rock case this Court declared that the 
School Board should make “positive commitments . . . neces­
sary to bring about some measure of racial balance in the 
staffs of the individual schools in the very near future.” 
A  satisfactory plan of faculty and staff desegregation re­
quires “ a positive program aimed at ending in the near 
future the segregation of teaching and operating staff” 80 
Clark, supra. This board, however, has already permitted 
substantial numbers of new teachers to be assigned on a 
racial basis after ordered to desegregate pursuant to the 
vague and indefinite plan.

As a general pledge is no substitute for “ defined proce­
dures which will be put into effect on definite dates” 
Wright, supra, there are compelling reasons for the dis­
trict court to consider the proportion of Negro and white 
teachers in the school system as a whole as a standard 
for adequate faculty and staff desegregation of individual 
schools. This Court in Clark v. Board of Education of 
Little Rock, supra, held that fixed mathematical require­
ments were not necessary in Little Rock because significant 
progress in staff desegregation had been made. Such is 
not the case in this district. A clear standard is needed in 
Hulbert-West Memphis for the reason that the school 
board has minimized desegregation by failure to take ad- 20

20 In addition, as we urge infra at pp. 18-21 the board should be required 
to report its plans to assign faculty and staff to new schools and its plans 
to assign newly appointed faculty and staff to all other schools. The 
district court should set a reporting date far enough in advance of the 
new school year so that it may consider the adequacy of the board’s 
annual assignment plan and order such revisions as may be necessary to 
insure that faculty and staff will be desegregated in the near future.



12

vantage of the opportunities it has had during the last 
two years.21

The Court in Kiev v. County School Board of Augusta 
County, 249 F. Supp. 239, 247 (E.D. Ya. 1966) recognized 
the utility of requiring that the proportion of Negro and 
white teachers in individual schools approximate the pro­
portion of Negro and white teachers in the school system:

, Some guideline must be established for the School 
Board in carrying out the Court’s mandate. Insofar 
as possible, the percentage of Negro teachers in each 
school in the system should approximate the percentage 
of the Negro teachers in the entire system for the 
1965-66 school session. Such a guideline can not be 
rigorously adhered to, of course, but the existence 
of some standard is necessary in order for the Court 
to evaluate the sufficiency of the steps taken by the 
school authorities pursuant to the Court’s order.

The Tenth Circuit approved a similar proportional stan­
dard in Dowell v. Oklahoma Board of Education,------ F.2d
------  (10th Cir. No. 8523, January 23, 1967) affirming
244 F. Supp. 971 (W.D. Okla., 1965). See also Robinson
v. Shelby County Board of Education,------ F. Supp.--------
(No. 4916, W.D. Tenn., January 19, 1967).22

21 In the Little Rock case this Court recognized “ the difficulties involved 
in the reassignment of long time members of the staff . . . ”  Clark, supra 
(emphasis added). It should be noted that relatively few presently em­
ployed faculty and staff in this district are “long time members o f the 
staff . . The record shows that 76 or 32% of the staff have been 
employed after the commencement of this action. Certainly, there are 
few difficulties involved in the immediate reassignment of these teachers 
or in the reassignment of other recently appointed personnel.

22 In Iiobinson, the court ordered the following faculty desegregation 
plan.

The faculty of the school will be considered desegregated when the 
ratio of white teachers to Negro teachers in the school is the same, with 
reasonable leeway of approximately ten percent (10% ), as the ratio o f



13

The relationship between faculty and staff desegregation 
and the success of freedom of choice plans has been often 
acknowledged. Failure to desegregate faculty and staff

white teachers to Negro teachers in the whole number of certified per­
sonnel in the Shelby County public school system. A  teacher of a race 
whose representation on the faculty of any particular school is less than 
would be required by this ratio will be referred to in the following para­
graphs of this order as being of the under-represented race. The pro­
cedures and schedule to be followed by the defendants in achieving 
faculty desegregation shall be as follows:

(1) Each faculty vacancy shall be filled by transferring from 
within the system a teaeher whose race is under-represented in the 
faculty in which the vacancy exists; provided that if there is no such 
teaeher within the system educationally qualified to fill the vacancy, 
the defendants shall fill the vacancy by employing a new teacher of 
the race that is under-represented in the school. A  teacher of the 
race that is over-represented in the school shall be employed by or 
assigned to a vacancy only if a teacher of the opposite race can 
neither be transferred nor employed without seriously impairing the 
educational program.

(2) The defendants shall develop and put into effect a program 
to recruit white teachers for employment in public schools of Shelby 
County traditionally staffed by Negro teachers and to recruit Negro 
teachers for employment in schools traditionally staffed by white 
teachers. In deciding which among various applicants shall be em­
ployed, the defendants shall base their decision solely on qualifications 
apart from race or color, provided that no teacher shall be em­
ployed who is unwilling to teach students of another race and to 
serve on a faculty including teachers of another race.

(3) The defendant George H. Barnes and his staff shall, com­
mencing forthwith and for a period of not more than 120 days from 
the date of this order, review all personnel files of teachers and other 
professional staff employed by the Shelby County School System 
for the purpose of identifying teachers and other staff members to 
be reassigned to schools in which their race is under-represented and 
they shall effect such transfers for the 1967-68 school year in all 
cases in which the transfer can be accomplished without seriously 
impairing the educational program.

(4) The defendants shall for the second semester of the 1966-67 
school year and for each school year thereafter make assignments 
and reassignments, to the extent consistent with sound educational 
policy, to achieve the maximum desegregation of faculty possible for 
each such term or school year, and they shall achieve at least some 
desegregation o f regular classroom teachers in each school in the



14

encourage communities to continue to identify schools as 
either Negro or white schools, and impairs the use of free­
dom of choice plans:28

The age old distinction of ‘white schools’ and ‘Negro 
schools’ must be erased. The continuation of such 
distinctions only perpetuate inequality of educational 
opportunity and places in jeopardy the effective ap­
plication of the entire ‘freedom of choice’ type plan. 
(Clark v. Board of Education of Little Rock (No. 
18,368, p. 14, December 15, 1966)) * 23

Shelby County School System by the commencement of the 1967-68 
school year.

(5) The assignment and reassignment of teachers, which is herein 
required in order to distribute white and Negro teachers among the 
various schools in the Shelby County School System on a propor­
tionate basis as set forth herein, shall be accomplished in a manner 
whereby the abilities, experience, specialties, and other qualifications 
of both white and Negro teachers in the system will be, insofar as 
administratively feasible, distributed evenly among the various schools 
of the system. In this connection it should be the purpose of the 
defendants to provide equal educational opportunities to all students 
in the system.

(6) The defendants will be in compliance with the provisions of 
this Court’s Order of May 20, 1966, insofar as its provisions relate 
to the desegregation of faculty, when the assignment of teachers to 
each school within the system is such that neither white nor Negro 
teachers are under-represented in any school and the schools have 
operated for a full school year in accordance with this requirement.

23 The Department of Health, Education and Welfare made the very 
same observation in its Guidelines:

A free choice plan tends to place the burden of desegregation on 
Negro or other minority group students and their parents . . .  In 
determining whether a free choice plan is operating fairly and effec­
tively, so as to materially further the orderly achievement of deseg­
regation, the Commissioner will take into account such factors as 
community support for the plan, the efforts of the school system to 
eliminate the identifiability of schools on the basis of race, color, or 
national origin by virtue of the composition of staff or other factors 
and the progress actually made in eliminating past discrimination 
and segregation. (Guidelines, §181.54, Requirements for Effective­
ness of Free Choice Plans)



15

The fact that during the second year of desegregation only 
115, or 3%, of the 3029 Negro students in the district are 
attending “white” schools (and no whites attend “ Negro” 
schools) confirms that the absence of significant faculty 
desegregation in this district has inhibited the free use of 
freedom of choice.

An additional reason why a definite plan of immediate 
faculty and staff desegregation is necessary here is the 
presence of a rapidly expanding school system. In the last 
ten years the school population has more than doubled 
with the result that there has been a continuing building 
program, 243 F. Supp. at 69. The increase in student 
population and school buildings requires a continual in­
crease in faculty and staff positions, an obvious oppor­
tunity for progress in faculty desegregation which should 
not be missed.24

24 See supra, p. 3. In September 1965, eight months after the action 
commenced, five months after the plan was filed and three months after 
the plan was approved, the School Board added four classrooms to the 
Jackson school. All of the teachers and all of the students at Jackson 
are Negro. I f  good faith were all that was required to desegregate a 
school system, both Negro and white teachers would have been assigned 
to Jackson and then, perhaps, both Negro and white students would have 
elected to attend Jackson.



16

II.
The Court Below Erred in Failing to Retain Juris­

diction of This Case and Failing to Exercise Continued 
Supervision Over the Desegregation Process Until Tran­
sition to a Nondiscriminatory School System Is Com­
pleted.

Although desegregation of students in the district only 
began with the 1965-66 school year and an adequate plan 
of faculty desegregation has not been adopted, the dis­
trict court refused to maintain continuous supervision over 
the desegregation process and dismissed the action. It is 
submitted that the court failed to adhere to the rule of 
Brown v. Board of Education, 349 U.S. 294, 301 (1955) and 
decisions of this Court which hold that district courts 
must retain jurisdiction until a racially nondiscriminatory 
school system is a reality. In Brown federal courts were 
expressly directed to retain jurisdiction in order to super­
vise the enforcement of desegregation plans. As the rea­
soning of the district court reflects a misconception of 
the court’s duty under Brown, this Court should clarify 
the responsibility of district courts to protect the rights 
of the class of Negro students to prompt systemwide 
desegregation.

This Court has long recognized the obligation of district 
courts to retain jurisdiction of desegregation actions to 
supervise the enforcement and revision of desegregation 
of orders. Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965); 
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) ;  Aaron 
v. Cooper, 243 F.2d 361 (8th Cir. 1957). Compare Brooks 
v. School Board of Arlington County, Va., 324 F.2d 305 
(4th Cir. 1963).

Recently, in Clark v. Board of Education of Little Rock, 
the Court reaffirmed the need for continuing supervision



17

subsequent to dismissal of a desegregation suit by the 
district court.25 When specific commitments are made by a 
school board the court should “retain jurisdiction for the 
length of time necessary to insure that these commitments 
are honored.” The board should be “ . . . guided, of course, 
by the continuing jurisdiction of the Federal District 
Court.” Ibid.

This school board has only begun to desegregate its 
system. During the present school year, the second year of 
“ free choice” only 115 of the 3,029 Negro students in the 
School District are attending school with whites. Teachers 
continue to be assigned on a racial basis. The racial iden­
tity of schools has been preserved and no whites attend 
formerly Negro schools.

In dismissing the action the district court held that 
supervision by the courts was no longer necessary because 
of a supposed availability of administrative relief:

It seems to the court that annual supervision of the 
defendants by the court for an indefinite time in the 
future is not necessary in view of the pertinent pro­
visions of the HEW  regulations under the current 
Civil Eights Act, (Letter Opinion, filed November 21, 
1966).

The HEW Guidelines, however, establish that the remedy 
for students whose schools are under a judicial desegre­
gation order is only to be found in the courts and not before 
the Department of Health, Education and Welfare:

(a) A school system under a Federal court deseg­
regation order which meets the requirements of the 
new Eegulation may submit, as evidence of compliance 26

26 The Hon. Gordon E. Young sat as District Judge in Clark and in 
this case.



18

with Title VT, a copy of the court order, together with 
an assurance that it will comply with the order, in­
cluding any future modification.

* # #
(c) Revisions of Court Orders. A  school system 

under a court order for desegregation which is not in 
accord with current judicial standards is subject to 
legal action by the Department of Justice, or by the 
parties to the original suit, to modify the order to 
meet current standards. (45 CFR, §181.6(a)(c)).

This Court has ruled, moreover, that district courts shall 
continue to supervise transition to racially nondiscrim- 
inatory school systems because the right of Negro students 
to attend nonsegregated schools derives from the Consti­
tution, Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965). 
In Clark v. School Board of Little Rock, supra, this Court 
ordered the district court to “ retain jurisdiction to insure
(1) that a constitutionally accepted plan is adopted and
(2) that it is operated in a constitutionally permissible 
fashion so that the goal of a desegregated, nonracially 
operated school system is rapidly and finally achieved.”

Negro students are seriously disadvantaged by dismissal 
of a school desegregation action. First, it is more ex­
peditious to file a motion for further relief in a pending 
action than it is to commence a new action. Secondly, 
desegregation plans by their very nature provide for re­
lief over time and in order to insure the actual transition 
to a desegregated system courts, as well as class repre­
sentatives, require continuous reports from the school 
boards on which revision of desegregation plans may be 
based. The Department of Health, Education and Welfare 
requires such reports from boards which have submitted 
voluntary plans, 45 CFR §§181.18, 181.35, 181.55, and in



19

United States v. Jefferson County School Board,------ F.2d
— — (December 29, 1966) the Fifth Circuit ordered all 
school boards in its jurisdiction to be bound by a com­
prehensive decree which provides with respect to reporting:

Repoets to the Court

(1) Report on Choice Period. The defendants shall 
serve upon the opposing parties and file with the Clerk 
of the Court on or before February 15, 1967, and, 
in each subsequent year, on or before June 1, a report 
tabulating by race the number of choice applications 
and transfer applications received for enrollment in 
each grade in each school in the system, and the num­
ber of choices and transfers granted and the number 
of denials in each grade of each school. The report 
shall also state any reasons relied upon in denying 
choice and shall tabulate, by school and race of student, 
the number of choices and transfers denied for each 
such reason.

In addition, the report shall show the percentage of 
pupils actually transferred or assigned from segre­
gated grades or to schools attended predominantly 
by pupils of a race other than the race of the applicant, 
for attendance during the 1966-67 school year, with 
comparable data for the 1965-66 school year. Such 
additional information shall be included in the report 
served upon opposing counsel and filed with the Clerk 
of the Court.

(2) Report A fter School Opening. The defendants 
shall, in addition to reports elsewhere described, serve 
upon opposing counsel and file with the Clerk of the 
Court within 15 days after the opening of schools for 
the fall semester of each year, a report setting forth 
the following information:



20

(i) The name, address, grade, school of choice 
and school of present attendance of each student 
who has withdrawn or requested withdrawal of his 
choice of school or who has transferred after the 
start of the school year, together with a description 
of any action taken by the defendants on his request 
and the reasons therefor.

(ii) The number of faculty vacancies, by school, 
that have occurred or been filled by the defendants 
since the order of this Court or the latest report 
submitted pursuant to this subparagraph. This re­
port shall state the race of the teacher employed 
to fill each such vacancy and indicate whether such 
teacher is newly employed or was transferred from 
within the system. The tabulation of the number 
of transfers within the system shall indicate the 
schools from which and to which the transfers were 
made. The report shall also set forth the number 
of faculty members of each race assigned to each 
school for the current year.

(iii) The number of students by race, in each 
grade of each school.

Appellants submit that this Court should not only re­
affirm that district courts maintain continuous supervision 
of the school desegregation process until it is completed 
but should, as an aid to such supervision, require school 
districts within its jurisdiction to comply with standard 
reporting provisions similar to those required by the Fifth 
Circuit and the Department of HEW. The Fifth Circuit 
has said such reports are a “necessity” :

Scheduled compliance reports to the court on the 
progress of choice plans are a necessity and of benefit 
to all the parties. These should be required following’



21

the choice period and again after the opening of 
school. (United States v. Jefferson County School 
Board, et al.)

Receipt of such reports and exercise of a supervisory re­
sponsibility on the basis of them substantially assists 
achievement of meaningful desegregation.

CONCLUSION

W herefore, appellants pray that the judgment below be 
reversed.

Respectfully submitted,

M ichael Davidson 
Of Counsel

George H oward, Jr.
■ 3291/2 Main Street 

Pine Bluff, Arkansas
Jack Greenberg 
M ichael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants





23

APPENDIX OF FEDERAL REGULATIONS 
HEW GUIDELINES

Revised Statement of Policies for School Desegregation 
Plans Under Title VI of the Civil Rights Act of 1964

(As Amended for the School Year 1967-68)

§ 181.6 Systems Under Federal Court Order for Desegre­
gation

(a) Submission of Order. A  school system under a Fed­
eral court desegregation order which meets the require­
ments of the HEW  Regulation may submit, as evidence of 
compliance with Title YI, a copy of the court order, to­
gether with an assurance that it will comply with the order, 
including any future modification.

(b) Resubmission Not Required. A  school system under 
a court order accepted by the Commissioner need not 
submit another copy, but must submit any modification 
not previously submitted.

(c) Revision of Court Orders. A  school system under 
a court order for desegregation which is not in accord 
with current judicial standards is subject to legal action 
by the Department of Justice, or by the parties to the 
original suit, to modify the order to meet current standards.

§ 181.18 Reports

(a) Anticipated Enrollment. By April 15 of each year, 
or by 15 days after the close of the choice period in the 
case of plans based on free choice of schools, each school 
system must report to the Commissioner the anticipated 
student enrollment, by race, color, or national origin, and 
by grade of each school, for the following school year. 
Any subsequent substantial change in anticipated enroll-



24

ment affecting desegregation must be reported promptly 
to the Commissioner.

(b) Planned Staff Assignments. By April 15 of each 
year, each school system must report to the Commissioner 
the planned assignments of professional staff to each 
school for the following year, by race, color, or national 
origin and by grade, or where appropriate, by subject 
taught or position held. Any subsequent change in planned 
staff assignments affecting staff desegregation must be 
reported promptly to the Commissioner.

(c) Actual Data. As soon as possible after the opening 
of its schools in the fall, but in any case within 30 days 
thereafter, each school system must determine and 
promptly report to the Commissioner the actual data 
for the items covered in the reports called for under (a) 
and (b) above.

(d) Attendance Outside System of Residence. The re­
ports called for under (a) and (c) above must include a 
statement covering (1) all students who reside within 
the boundaries of the school system but attend school in 
another system, and (2) all students who reside outside 
but attend a school within the system. This statement must 
set forth, for each group of students included in (1) and 
(2) above, the number of students, by race, color, or na­
tional origin, by grade, by school and school system at­
tended, and by school system of residence.

(e) Consolidation or Litigation. A  school system which 
is to undergo consolidation with another system or any 
other change in its boundaries, or which is involved in any 
litigation affecting desegregation, must promptly report the 
relevant facts and circumstances to the Commissioner.

(f) Other Reports. The Commissioner may require a 
school system to submit other reports relating to its com­
pliance with Title VI.



25

§ 181.54 Requirements for Effectiveness of Free Choice 
Plans

A free choice plan tends to place the burden of deseg­
regation on Negro or other minority group students and 
their parents. Even when school authorities undertake 
good faith efforts to assure its fair operation, the very 
nature of a free choice plan and the effect of longstanding 
community attitudes often tend to preclude or inhibit the 
exercise of a truly free choice by or for minority group 
students.

For these reasons, the Commissioner will scrutinize with 
special care the operation of voluntary plans of desegre­
gation in school systems which have adopted free choice 
plans.

§ 181.35 Reports

(a) Attendance Zones. The report submitted under 
§ 181.18(a) by April 15 of each year must be accompanied 
by a map, which must show the name and location of each 
school facility planned to be used during the coming school 
year, the attendance zones for each school in effect during 
the current school year, and any changes in the attendance 
zones planned for the coming school year. The map need 
not be of professional quality. A  clipping of each news­
paper announcement and any map published under § 181.34
(b) or (c) above must be sent to the Commissioner within 
three days after publication and, in the case of proposed 
revisions, must be accompanied by data showing the esti­
mated change in attendance, by race, color, or national 
origin and by grade, and in the racial composition of the 
professional staff, at each school to be affected.

(b) Attendance Outside Zone of Residence. Whenever 
a student is permitted to attend a school other than that 
serving his zone of residence, and whenever a request for



26

such attendance is denied, the school system must retain 
records showing (1) the school and grade applied for, 
(2) the zone of the student’s residence and his grade 
therein, (3) the race, color, or national origin of the student, 
(4) the reason stated for the request, and (5) the reason 
the request is granted or denied. Whenever the total 
number of transfers permitted from any school exceeds 
two percent of the student enrollment at that school, the 
relevant facts must be reported promptly to the Com­
missioner.

§ 181.55 Reports

(a) Supporting Materials. Each school system must sub­
mit to the Commissioner a copy of the letter, notice, and 
choice form, all as prepared by the school system for 
distribution, within three days after their first distribu­
tion, and must submit a clipping of all newspaper an­
nouncements published in accordance with § 181.53 above 
within three days after publication.

(b) Data on Choices Not Being Honored. In any case, 
including the case of conflicting choices under § 181.42 
above, where a student chooses a school where he would 
be in a racial minority, and (1) he is to be assigned to a 
school where he would be in a racial majority, or (2) the 
school system proposes not to process his choice for any 
reason, the relevant facts must be reported promptly to 
the Commissioner.

(c) Transfers for Special Needs. Wherever a student 
is permitted, under §§ 181.48 or 181.50 above, to attend a 
school other than the school to which he is or would be 
assigned under the other applicable provisions hereof, and 
whenever a request for such attendance is denied, the 
school system must retain records showing (1) the school 
and grade applied for, (2) the school and grade to be



27

transferred from, (3) the race, color, or national origin 
of the student, (4) the reason stated for the request, and 
(5) the reason the request is granted or denied. Whenever 
the total number of transfers permitted from any school 
exceeds two percent of the student enrollment at that 
school, the relevant facts must he reported promptly to 
the Commissioner.



MEILEN PRESS INC. —  N. Y. C