Pulaski County Special School District No. 1 v. Little Rock School District Consolidated Brief in Opposition

    Nos. 85-1316, 85-1547

In th e

j^uprme dmtrt of tlic TUmteb States
Octobee T erm, 1985

P ulaski County S pecial S chool D istrict N o. 1, et al., 
and A rkansas S tate B oard of E ducation, et al.,

vs.
Petitioners,

L ittle R ock S chool D istrict, et al. 
and L orene J oshua, et al.,

Respondents.

CONSOLIDATED BRIEF IN OPPOSITION

J ulius L eV onne Chambers 
T heodore M. S haw*

99 Hudson Street
New York, New York 10013
(212) 219-1900

J ohn W . W alker 
1723 Broadway- 
Little Rock, Arkansas 72006 
(501) 374-3758

W iley A. B ranton, Sr.
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Counsel for Respondents 
Lorene Joshua, et al.

*Counsel of Record





QUESTIONS PRESENTED

1 ) Did the Court of Appeals for the 

Eighth Circuit properly determine that the 

district court's findings of segregative 

violations with significant interdistrict 

effect were not clearly erroneous?

2) Did the Court of Appeals apply the 

relevant case law in a manner which is 

consistent with its own precedent and in 

harmony with the law of other circuits?

i



TABLE OF CONTENTS
Page

QUESTIONS PRESENTED ..............  i

JURISDICTION ......................  1

CONSTITUTIONAL PROVISION
INVOLVED .....................  2

STATEMENT OF THE CASE ............  2

The State Board's Liability ...... 5

PCSSD's Liability ................. 6

The Court of Appeals Decision .... 12

REASONS FOR DENYING THE WRIT ....  13

CONCLUSION ......................... 30

- ii -



TABLE OF AUTHORITIES

Cases Page
Aaron v. Cooper, 169 F. Supp. 325

(E.D. Ark. 1959) ............  2

Aaron v. Cooper, 163 F. Supp. 13 
(E.D. Ark.), rev1d , 257 F.2d 
33 (8th Cir.)~aff*d sub nom.
Cooper v. Aaron, 358 U.S. 1
(1958) .......................  2

Aaron v. Cooper, 261 F.2d 97
(8th Cir. 1958) ............. 2

Aaron v. Cooper, 2 Race Rel. L.
Rep. 934 (E.D. Ark. 1957),
aff'd Thomason v. Cooper, 254
F.2d 808 (8th Cir. 1958) ___  2

Aaron v. Cooper, 156 F. Supp. 220 
(E.D. Ark. 1957), aff'd sub 
nom. Faubus v. United States,
254 F.2d 979 (8th Cir.
1958) ........................  2

Aaron v. Cooper, 143 F. Supp. 855 
(E.D. Ark. 1956), aff'd, 243 
F.2d 361 (8th Cir. 1957) ___  2

Aaron v. McKinley, 173 F. Supp.
944 (E.D. Ark. 1959), aff'd 
sub nom. Faubus v. Aaron,
371 U.S. 1 97 ( 1959) ......... 2

iii



Page

Milliken v. Bradley, 433 U.S. 267
( 1977) .......................  28

Pullman-Standard v. Swint, 456
U.S. 273 ( 1 982) .............  13,20

Swann v. Charlotte-Mecklenburg 
Bd. of Ed., 402 U.S. 1 
(1971) .......................  21,25

Zinnamon v. Board of Education 
of the Pulaski County,
Arkansas Special School 
District, No. 2, LR-68- 
C—1 54 ........................  passim

STATUTES

Ark. Stat. Ann. § 80-509 .........  5

vi



Page
Columbus Board of Education v.

Penick, 443 U.S. 449
( 1979) .......................  22

Davis v. North Little Rock
School Board, 635 F.2d 730 
(8th Cir. 1980), cert, denied,
454 U.S. 904 ( 1 98TT". .'......  4

Evans v. Buchanan, 582 F.2d 750
(3rd Cir. 1978)(en banc) .... 29

Goldsboro City Bd. of Ed. v.
Wayne City Bd. of Ed., 745 
F.2d 324 (4th Cir. 1984) ___  26

Green v. County School Board, 391
U.S. 430 ( 1968) .............  8,18

Joshua, et al. v. Pulaski
County Special School Dis­
trict No. 1, et al., 738 
F . 2d 445 (8th Cir. 1984 ) ___  3

Lee v. Lee County Bd. of Educa­
tion, 639 F .2d 1243 (5th 
Cir. 1981) ................... 27

Liddell v. State of Missouri,
731 F . 2d 1 291 ( 1984 ) ........ 28

Milliken v. Bradley, 418 U.S.
717 (1974) .................. 15,16,19

v



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985 
No. 85-1316 
No. 85-1547

PULASKI COUNTY SPECIAL SCHOOL DISTRICT 
NO. 1, et al., and ARKANSAS STATE 
BOARD OF EDUCATION, et al.,

Petitioners,
vs.

LITTLE ROCK SCHOOL DISTRICT, et al. 
and LORENE JOSHUA, et al.,

Respondents.

CONSOLIDATED BRIEF IN OPPOSITION

JURISDICTION

The jurisdiction of this Court is

based on 28 U.S.C. § 1254(1)



2

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the

United States Constitution provides, in

relevant part, that "[no State shall] deny

to any person within its jurisdiction the

equal protection of the laws."

STATEMENT OF THE CASE

This interdistrict school desegregation

case follows on the heels of efforts to

desegregate the Little Rock, Arkansas

school district, reported in Aaron v.

Cooper and Clark v. Little Rock Board of 
1

Education. The plaintiffs are the Little

Aaron v. Cooper, 143 F. Supp. 855 ( E.D. 
Ark. 1956) ;' afF'd 243 F.2d 361 (8th Cir. 
1957); Aaron v. Cooper, 2 Race Rel. L. 
Rep. 934-36, 938-41 (E.D. Ark. 1957), 
aff1d Thomason v. Cooper, 254 F.2d 808 
(8th Cir. 1958); Aaron v. Cooper, 156 F. 
Supp. 220 (E.D. Ark. 1957), aff'd sub nom. 
Faubus v. United States, 254 F. 2d 797 (8th 
Cir. 1958); Aaron v. Cooper, 163 F.Supp. 
13 (E.D. Ark.), rev'd 257 F.2d 33 (8th 
Cir.), aff1 d sub nom. Cooper v . Aaron , 358 
U.S. 1 (1958); Aaron v. Cooper, 261 F.2d 
97 (8th Cir. 1958); Aaron v. Cooper, 169 
F. Supp. 325 (E.D. Ark. 1959); Aaron v. 
McKinley, 173 F. Supp. 944 (E.D. Ark. 
1959), aff1 d sub nom. Faubus v. Aaron, 371 
U.S. 197 (1959); Aaron v. Tucker, 186



3

Rock School District and intervenors
2

Joshua and Knight, et al. The defendants 

are the Pulaski County Special School 

District No. 1 (hereinafter PCSSD), the 

North Little Rock School District (herein­

after NLRSD), and the Arkansas State

Board of Education (hereinafter SBE or 
3

State Board).

F.Supp. 913 (E. D. Ark. 1960), rev'd 
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 
1961); Clark v. Board of Education of 
Little Rock, 369 F.2d 661 (8th Cir. T966); 
Clark v. Board of Education of Little Rock 
School Dist., 426 F.2d 1035 (8th Cir.
1970) , cert, denied 402 U.S. 952 (1971); 
Clark v. Board of Education of Little Rock 
School District, 44$ F.2d 493 (6th Cir.
1971) , cert, denied 405 U.S. 936 (1971); 
Clark v. Board of Education of Little Rock 
School District', 465 F.2d 1 044 (8th Cir.
1972) , cert ."cienied 413 U.S. 923 (1973); 
Clark v. Board of Education of the Little 
Rock School District, 705 F.23 265 (8th 
Cir. 1983).

Knight and Joshua were allowed to inter­
vene at the remedy stage by an Eighth 
Circuit order reversing the district 
court's denial of intervention. Joshua, 
et al. v. Pulaski County Special~~School 
District No. 1, et al., 738 F.2d 445 (8th 
Cir. 1584).

3 The PCSSD and NLRSD each were the subject 
of a school desegregation suit. The PCSSD



4

There are three school districts in
4

Pulaski County: LRSD, PCSSD and NLRSD.

LRSD covers 53 square miles and comprises 

60% of the City of Little Rock. The 

population of the area covered by LRSD is 

2/3 white; during the 1983-84 school year 

70% of LRSD's 19,052 students were black. 

NLRSD covers 26 square miles and comprises 

nearly all of the City of North Little 

Rock. In 1983-84, 36% of NLRSD's 9,051

students were black; 64% were white. 

PCSSD was created in 1927 and surrounds 

LRSD and NLRSD. PCSSD covers 755 square 

miles and contains the portion of the

litigation, Zinnamon v. Board of Education 
of the Pulaski County, Arkansas Special 
School District, No 1 LR-68-C-1 54 , filed 
Tn 1968 was settled in 1973. The NLRSD 
litigation, Davis v. North Little Rock 
School Board, was last before this Court 
m  1981 on the school board's petition for 
certiorari, which was denied. 635 F.2d 
730 (8th Cir. 1980) , cert, denied 454 U.S. 
904 (1981).

4 Each of the three districts is under court 
order to desegregate; none has achieved 
unitary status.



5

county which is not in LRSD and NLRSD. In 

1983-84 PCSSD enrolled 27,839 students, of 

whom 22% were black and 78% were white.

The State Board's Liability 
Prior to 1 954 the State of Arkansas 

mandated segregation in public schools. 

Ark. Stat. Ann. § 80-509. As they were 

throughout Arkansas, the black public 

schools in Pulaski County, i.e., within 

LRSD, PCSSD and NLRSD, were inferior to 

the white schools. Moreover, the black 

ele-mentary schools in PCSSD and NLRSD 

were inferior to black elementary schools 

in LRSD, and disparities on the high 

school level were even more pronounced. 

Prior to 1954, PCSSD maintained inadequate 

black schools and operated without an 

accredited high school for black students. 

Accordingly, the LRSD was identified as 

the school district with opportunities for 

black students, who were drawn there from 

all over the state and particularly from



6

other parts of Pulaski County. Some black 

families moved from the County to Little 

Rock because of disparities in educational 

opportunities.

The State of Arkansas was aware of 

these inequities and their consequences. 

The state took no remedial action to 

require adequate facilities outside of 

LRSD for black students prior to 1954. In 

fact, when it came to educating black 

students the State ignored school dis­

trict boundary lines. Arkansas took no 

post-Brown steps to dismantle its segre­

gated school systems or to improve the 

quality of black schools. Post-1954 state 

actions heightened the identity of the 

LRSD as a black district and delayed 

desegregation. Although the LRSD had 

announced shortly after Brown I that it 

would begin to desegregate its schools by 

1957 and complete the process by 1963, the 

active intervention of the state was a



7

central factor in delaying desegregation 

of the Little Rock schools until 1973, and 

in contributing to an increasing concen­

tration of blacks in LRSD.

The state took no action to foster 

racially neutral school siting; it 

approved segregative siting as late as 

1980. In 1953 the state enacted legis­

lation authorizing the segregative 

transfer of a housing project site, 

Granite Mountain, specifically designated 

for blacks, from PCSSD to LRSD. This 

transfer further identified the LRSD as 

the school district in Pulaski County with 

primary responsibility for educating 

blacks. The State of Arkansas has never 

acknowledged its affirmative duty to 

assist local school boards in their 

desegregation efforts and has never 

promulgated any rules or guidelines which



8

would encourage local school districts to 

eliminate discrimination within their 

school systems.

PCSSD1s Liability

PCSSD participated in and was liable 

for the pre-1954 violations ascribed to 

the State Board, and shares responsibility 

for the manner in which the dual inter­

district system of education concentrated 

blacks in LRSD. The courts below ruled 

that PCSSD committed a number of post- 

Brown segregative actions which had 

significant interdistrict effects. PCSSD 

accepted students from LRSD when the 

latter closed its schools during the 1958 

school year to avoid desegregation. 

Significant numbers of interdistrict 

transfers continued until the mid-1960's.

The historic intention was that the 

boundaries of the cities of North Little

Rock and Little Rock would remain coter­

minous with their respective school



9

districts. Until the late 1960's as the 

City of Little Rock grew, LRSD grew. 

After Green v. County School Board, 3 91 

U.S. 430 (1968) made school desegregation 

more likely, LRSD no longer annexed land 

so as to remain coterminous with the city 

of Little Rock.

By 1984 the City of Little Rock 

encompassed 91 square miles while LRSD 

covered 53 square miles. Areas annexed to 

the City of Little Rock but part of PCSSD 

are residential areas in which many white 

families lived or moved. As a result, 

their children now attend PCSSD schools. 

If the boundaries of the City of Little 

Rock and its school district had remained 

coterminous the black-white ratio in LRSD 

schools would now be sixty-forty rather 

than seventy-thirty. The courts below 

found that PCSSD's acts of freezing its 

boundaries to discontinue the practice of 

allowing the City of Little Rock and LRSD



10

boundaries to remain coterminous spring 

from unconstitutional racial motives that 

have significant interdistrict effects on 

LRSD.

The 1 973 Zinnamon decree set forth 

PCSSD's desegregation responsibilities. 

PCSSD has not complied with the terms of 

the decree in a number of significant 

respects. PCSSD failed to meet goals for 

hiring and promotion of black principals, 

teachers and administrators. After 1973 

PCSSD closed schools in black neighbor­

hoods and built new schools in distant 

white neighborhoods. Many of the new 

schools were over 90% white. There has 

been no new construction in black areas of 

the county. The Eighth Circuit affirmed 

the district court's conclusion that 

PCSSD's violation of the Zinnamon order

directing the district to stop building



schools in a segregative manner has had 

substantial and continuing intra-and 

inter-district effects.

The chances that a black student in 

PCSSD will be classified as mentally 

retarded are significantly greater in 

PCSSD than in LRSD. The burdens of 

transportation fall inequitably on black 

PCSSD students. Student assignments 

continue to be made on a discriminatory 

basis. In 1983 PCSSD bused black students 

to black schools rather than to available 

white schools. Of fifty-one schools in 

PCSSD, sixteen were racially identifiable 

as black schools and thirteen were 

racially identifiable as white schools. 

The Eighth Circuit ruled that PCSSD's 

failure to comply with requirements of the 

Z innamon decree which would have provided 

input of the PCSSD black community on 

school sites selection and housing project

decisions exacerbated the historical trend



12

of black in-migration to LRSD and white 

out-migration to PCSSD. The district court 

further concluded that PCSSD and LRSD 

boundaries have been maintained to keep 

LRSD predominantly black and PCSSD 

predominantly white and that these 

manipulations and other violations had 

substantial interdistrict effect. The 

Eighth Circuit ruled that these findings 

were not clearly erroneous.

The Court of Appeals Decision

On appeal, the Eighth Circuit held 

that the district court's findings on 

liability were not clearly erroneous and 

that intra- and inter-district relief was 

appropriate. The Court of Appeals ruled 

that the district court's conclusion that 

consolidation was the only viable remedy 

was clearly erroneous and remanded 

remedial issues for further hearings on 

school district boundary line adjustments 

or some other effective alternative which



13

would remedy the proven violations. The 

court ordered additional relief, including 

improving the quality of education in any 

remaining all-black schools in LRSD, 

provision of compensatory and remedial 

programs for black children in all three 

school districts, magnet schools and 

programs, and the State Board's partici­

pation in funding remedial and quality 

education programs.

REASONS FOR DENYING THE WRIT 

PCSSD and the State's petitions for a 

writ of certiorari should be denied. Two 

courts below concluded that the evidence 

established that defendants' segregative 

violations have had significant inter­

district effect. The Eighth Circuit 

correctly ruled that the district court's 

findings in this regard were not clearly 

erroneous and thus, under Anderson v. City 

of Bessemer, 84 L.Ed.2d 518 ( 1985) and

Pullman-Standard v. Swint, 456 U.S. 273,



14

276-90 (1982), cannot be reversed. The

district court made specific findings on 

interdistrict effects of the actions of 

PCSSD and the other defendants; these 

findings were scrutinized by the Eighth 

Circuit which ruled that they were not 

clearly erroneous.

The Eighth Circuit order to revise 

the boundaries between PCSSD and LRSD is 

predicated on a close review of all of the 

evidence before it. The Eighth Circuit 

modified the district court's remedial 

order and provided for a less intrusive 

remedy with respect to district boundary 

lines, which is tailored to address the 

effects of specific violation found. 

Moreover, PCSSD's certiorari petition 

presents issues to this Court which 

arguably are not ripe for adjudication. 

The Eighth Circuit's order directs the 

district court to hold a hearing before 

adjusting the boundaries between PCSSD and



15

LRSD. The nature and scope of the remedy

cannot be determined until that hearinq is 
5

held .

The State's liability as "a primary 

constitutional violator" is well estab­

lished. Under the relevant Eighth Circuit 

precedent and in harmony with the applic­

able law of other circuits the district 

court's remedy, as modified, is necessary 

and appropriate.

Milliken v. Bradley, 418 U.S. 717 

(1974) establishes the conditions under 

which a district court may order inter­

district relief. The Eighth Circuit, 

sitting en banc, applied Milliken's 

standards in a manner consistent with its 

own precedent and with the law of other 

circuits. "Before the boundaries of 

separate and autonomous districts can be

5 As of the submission of this brief that 
hearing has not been held. The appellate 
court's order leaves open the possibility 
that no boundary adjustments will be made.



16

set aside" there must be proof of "ra­

cially discriminatory acts" within one 

district that produce a "significant 

segregative effect" in another district. 

418 U.S. at 744-45. The Eighth Circuit 

upheld numerous factual findings by the 

district court which fell within the 

parameters of the proof required by 

Mi11iken . The appellate court found that 

the district court's findings on liability 

were not clearly erroneous.

1. in its petition for certiorari, 

PCSSD ignores crucial grounds for the 

Court of Appeals affirmance of the 

district court's liability findings and 

miscasts the nature of other findings. The 

Eighth Circuit opinion delineates a number 

of violations committed by PCSSD before 

and after Brown I. The former include 

PCSSD's failure, coupled with the State's, 

to provide adequate education for black 

students even during the d e j u r e  period.



17

The court of appeals noted that"[o]f 

particular importance to this case [was 

the fact that] the black elementary 

schools in [PCSSD] were inferior to the 

black elementary schools in LRSD." A-13. 

With the "even more pronounced" dispari­

ties at the high school level and PCSSD's 

failure even as of the mid-1 950's to 

provide a fully accredited high school for 

black students, these violations identi­

fied LRSD "as the district in the state 

which provided educational opportunities 

for black students." The Court of 

Appeals stated that "[t]his identification 

tended to draw black students to LRSD from 

all over the state, and particularly from 

Pulaski County." The two courts below 

both credited state-commissioned studies 

concluding that disparities between 

educational opportunities in school 

districts "were prominent among the 

factors that drew black families to Little



18

Rock from the county and the rest of the 

state." A13-14. The Eighth Circuit cited 

the district court:

It cannot seriously be denied 
that the Little Rock School Dis­
trict's maintenance of the only North 
Central accredited high school in the 
County and indeed in the entire area 
led to a concentration of blacks in 
this district. For almost half a 
century it has not only assumed the 
burden of giving a quality education 
to blacks in the County and from far 
corners of the state but has also 
been the object of racially motivated 
attacks by certain political and 
cultural groups. 514 F. Supp. 330.

This finding alone, which the Court 

of Appeals ruled was not clearly erro­

neous, establishes an unconstitutional 

segregative interdistrict violation on the 

part of PCSSD and the State Board (through 

the State) which created their affirmative 

duty to dismantle the dual system "root 

and branch". Green v. County School 

Board, 391 U.S. 430 at 437-38 (1968). That

duty remains unsatisfied.



19

Two courts below found that PCSSD 

involvement with segregative interdistrict 

transfers in the late 1950's and early 

1 960's were part of a scheme in which 

local and state school board officials 

ignored school district boundary lines in 

order to maintain segregation. The 

appellate court, after reviewing the 

record in its entirety, concluded that 

"[t]he district court's finding that 

specific discriminatory actions by the 

defendants had a substantial and continu­

ing effect on the racial composition of

LRSD is supported by general and school
6

population statistics." A-23. This Court

The court of appeals cited demographic 
data "generally contrary to statewide 
trends in Arkansas [which tended] to 
support plaintiffs' theory that state- 
created racial turmoil in LRSD in the 
1950's fostered substantial white flight 
from LRSD to PCSSD and NLRSD. A-2 3, n.8. 
This scenario falls directly within the 
parameters of Milliken's requirement of 
proof of "racially discriminatory acts" 
within one district that produce and 
"significant segregative effect" in 
another district". 418 U.S. at 744-45.



22

should be drawn.'" Columbus Board of 

Education v. Penick, 443 U.S. 449, 465

(1979). Moreover, two courts below

concluded that "there were substantial and 

continuing inter- and intra-district 

effects from PCSSD's violation of Zinna- 

m o n 1s specific order that PCSSD must 

cease and desist now and in the future 

from building schools in sites which are 

not equally accessible to blacks and 

whites." A-31, 584 F. Supp. at 346.

PCSSD asserts that "there are no 

factual findings (and no evidence in the 

record) to establish any casual connection 

between . . . intradistrict violations and 

the increasing proportion of black 

students in the Little Rock School 

District". PCSSD Petition at 10. PCSSD 

blithely ignores, by way of example, 

evidence such as that cited by the court 

of appeals.



23

The district court credited the 
testimony of Dr. Charles Willie, 
Professor of Education and Urban 
Studies at the Harvard Graduate 
School of Education, that the various 
intentionally discriminatory actions 
of the defendant outlined in this 
opinion contributed to the dispropor­
tionate movement of whites into PCSSD 
instead of LRSD. 584 F. Supp. at 
347. He testified that, among other 
factors ... PCSSD's numerous viola­
tions of the Zinnamon decree (includ­
ing school site locations) were of 
significance.

A-45-46.

Petitioner PCSSD attempts to wish 

away the evidence and then assert that the 

district court's findings, affirmed by the 

court of appeals, have no support in the 

record.

3. PCSSD concedes that "the findings 

and evidence clearly demonstrated the 

existence of segregatory location of 

housing projects within the City of Little 

Rock," but contends that the only housing 

decision with interdistrict effects was 

the Granite Mountain housing project.



24

PCSSD Petition at 11. The evidence shows 

that the state concentrated public housing 

in LRSD, even though the Little Rock and 

North Little Rock housing authorities had 

authority to construct housing ten miles 

beyond city limits, i.e., in PCSSD. As 

for PCSSD's claim that "there was no 

finding, and no evidence that the failure 

to build public housing in the county was 

the result of any racially discriminatory 

purpose on the part of the housing 

authorities themselves or of any person, 

private or official, in the suburban 

areas" (PCSSD Petition at 11), the Court 

of Appeals noted that "[t]he district 

court found that [segregative clearance 

and relocation practices] were part of 'a 

deliberate policy of the Little Rock 

Housing Authority and other governmental 

bodies to maintain a residential racial 

segregation.'" A-37, 584 F. Supp. at 342. 

"PCSSD also contributed to the segregated



25

nature of the private housing market 

through its decisions in school sitings." 

A-37. The Court of Appeals quoted Chief 

Justice Burger in Swann: "People gravitate 

toward school facilities, just as schools 

are located in response to the needs of 

people. The location of schools may thus 

influence the pattern of residential 

development of a metropolitan area and 

have important impact on the composition 

of inner city neighborhoods." 402 U.S. 1

at 20. Again, petitioner PCSSD's dis­

tortion of the nature of the record below 

does not justify review by this Court.

4. Petitioner PCSSD argues that no 

factual support exists for a finding of 

"freezing" or "manipulation" of school 

district boundaries. The Court of Appeals

The Court of Appeals cited two specific 
fact findings in the district court's 
opinion, Findings of Fact 36 and 37, which 
leave no doubt about the interdistrict 
nature of the segregative housing vio­
lation. See A-38.



26

ruled that the district court's findings

that boundaries between PCSSD and LRSD had

been maintained to keep LRSD predominantly

black and PCSSD predominantly white and

that these boundary manipulations have had

a substantial interdistrict segregative
" 3

effect were not clearly erroneous. A-28.

The conclusions of the court below 

are not in conflict with the law in other 

circuits. Goldsboro City Bd. of Ed. v. 

Wayne City, Bd. of Ed., 745 F.2d 324 (4th 

Cir. 1984) involved a school district 

which had been declared unitary and which 

was not tainted by violations of prior

g
The court cited the expert testimony of 
Dr. Robert Dentler, who concluded that in 
1968 PCSSD and LRSD ceased consolidation 
efforts. Findings of Fact Nos. 7-26 in 
the district court opinion support the 
general finding that discriminatory racial 
intent infected consolidation decisions. 
The district court concluded that "[t]he 
refusal of the Pulaski County Special 
School District, with its long history of 
deannexation and support of consolidation, 
allow this court to infer that race is a 
factor in its decision to energetically 
oppose interdistrict relief." A — 111.



27

court orders or the segregative action of 

housing market actors. Similarly, Lee v. 

Lee County Bd. of Education, 639 F.2d 1243 

(5th Cir. 1981) does not dictate a

different result. in Lee the Fifth 

Circuit ruled that the district court's 

finding that the interdistrict violations 

were neither significant nor continuing 

was not clearly erroneous. Here the 

district court decided otherwise and that 

finding has been upheld because it is not 

clearly erroneous. Thus, there is no 

conflict with Lee. The Eighth Circuit's 

conclusions do not, contrary to PCSSD's 

claim, require a school district to remedy 

mere racial imbalance between adjacent 

school districts. To the contrary, they 

are supported by factual findings which 

require an appropriate remedy.

5. The court of appeals' imposition of 

remedial responsibilities upon the state 

which will require an expenditure of funds



28

follows the law of the Eighth Circuit and 

does not conflict with that of others. In 

Milliken II, 433 U.S. 267 ( 1 977) this

Court acknowledged that remedying the 

effects of state-imposed segregation may 

require an incidental expenditure of funds 

for compensatory and remedial programs. In 

the St. Louis school desegregation suit 

the Eighth Circuit ordered the state of 

Missouri to pay one-half the cost of the 

construction or rehabilitation necessary 

to house a magnet school program and the 

full cost of transporting students who 

enrolled. See Liddell v. State of Mis-■ g

souri, 731 F.2d 1291 at 1309-12 (1984). 

These remedial responsibilities imposed

As the court of appeals correctly ob­
served, the imposition of such responsi­
bilities upon the state in Liddell was 
based upon an intra-district violation. 
Thus, this remedial element does not 
require proof of inter-district violation 
and could be ordered upon proof of a much 
less extensive violation than that found 
here.



29

upon the state do not conflict with the 

law of other circuits; they raise no 

issues worthy of review by this Court. See 

Evans v. Buchanan, 582 F.2d 750 (3rd Cir. 

1978)(en banc).

The State Board argues that the 

requisite causal relationships between the 

violation and present conditions in LRSD 

does not exist. The State Board ignores 

its status as a "primary constitutional 

wrongdoer" whose actions had significant 

interdistrict effects. Moreover, the 

State's segregative actions through local 

housing authorities further impose the 

responsibility to eliminate the inter­

district effects of its violation.



30

CONCLOSION

For the reasons stated above, the 

petitions for certiorari should be denied.

Respectfully submitted,

JULIOS LeVONNE CHAMBERS 
THEODORE M. SHAW*

99 Hudson Street
New York, New York 10013
(212) 219-1900

JOHN W. WALKER 
1723 Broadway
Little Rock, Arkansas 72006 
(501) 374-3758

WILEY A. BRANTON, SR.
Sidley & Austin 
1722 Eye Street, N.W. 
Washington, D.C. 20006 
(202) 429-4000

Counsel for Respondents 
Lorene Joshua, et al.

♦Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177