Yarbrough v. The Hubert-West Memphis School District No. 4 Appellants' Brief
Public Court Documents
January 1, 1967

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Brief Collection, LDF Court Filings. Yarbrough v. The Hubert-West Memphis School District No. 4 Appellants' Brief, 1967. 02f95caf-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/87c73775-cbbd-4a5f-85f4-c392f6f8c231/yarbrough-v-the-hubert-west-memphis-school-district-no-4-appellants-brief. Accessed July 16, 2025.
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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