Kelley v. The Altheimer, Arkansas Public School District No. 22 Reply Brief for Appellants

    Imta* &mxl ni App?sta
F or t h e  E ig h t h  C ir c u it  

No. 18528 
Civil

M oses K ell e y , o il behalf of himself and his minor 
children, Moses Kelley, Jr., et al.,

Appellants,

T h e  A l t h e im e r , A rkansas P ublic  S chool D istr ic t  N o. 22, 
a public body corporate, and T h e  J. E. S tow ers 

C o n stru ctio n  Co m pa n y ,
Appellees.

A PPEA L  PRO M  T H E  U N IT E D  STA TES D IST R IC T  COU RT EOR T H E  

EA STER N  D IST R IC T  OP A RK ANSAS, P IN E  B L U F F  D IV ISIO N

REPLY BRIEF FOR APPELLANTS

J ack  Greenberg  
J am es M . N abrit , III 
M ic h a e l  M eltsn er  
M ic h a e l  J .  H en r y

10 Columbus Circle 
New York, New York 10019

J o h n  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas

D elector  T il l e r

2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Appellants



Intttft Bu Ub GJmtrt of
F ob t h e  E ig h t h  C ir c h it  

No. 18528 
Civil

M oses K elley , on behalf of himself and his minor 
children, Moses Kelley, Jr., et ah,

Appellants,

T h e  A l t h e im e b , A rkansas P u blic  S chool D istr ic t  N o. 22, 
a public body corporate, and T h e  J. E. S tow ers 

Co n stru ctio n  C o m pa n y ,
Appellees.

A PPEA L  PROM  T H E  U N IT E D  STA TES D ISTR IC T COU RT FO R T H E  

EA ST E R N  D ISTR IC T  OP A RK A N SA S, P IN E  B L U P P  D IV ISIO N

REPLY BRIEF FOR APPELLANTS

Since the time of the filing of the Brief of Appellants, 
two landmark school desegregation cases have been decided 
by the United States Court of Appeals for the Tenth 
Circuit—Board of Education of the Oklahoma City Public 
Schools v. Robert L. Dowell, et al., No. 8523, January 23, 
1967—and by the United States Court of Appeals for the 
Fifth Circuit—United States of America and Linda Stout, 
et al. v. Jefferson County (Ala.) Board of Education, et al., 
Nos. 23345, etc., December 29, 1966, Petition For Rehearing 
En Banc granted; oral argument denied, February 9, 1967.



2

Both of these cases undisputedly stand for the proposi­
tion that a school board which has operated a legally 
compelled segregated school system is under a duty to re­
organize that school system in such a way as to maximize 
the degree of desegregation. Furthermore, both cases em­
phasize that in assessing the Constitutional adequacy of 
a plan of desegregation results are what count; a “plan” 
which promotes or gives rise to continued segregation or 
token desegregation is not good faith compliance with a 
board’s constitutional duty under Brown v. Board of Edu­
cation. Both cases are clear in pointing out that the lan­
guage in Northern school cases, where there was no legal 
segregation, about there being no duty to remedy “racial 
imbalance” is clearly inapplicable to a Southern school 
system which brought about segregation and “inherent 
inequality” of schools by state action.1

An example of the scope of the duty of a school board 
to maximize the degree of desegregation in its system 
where it had previously sought to maximize segregation is 
the Oklahoma City case. There the Court required that 
two pairs of attendance districts be consolidated in order 
to increase desegregation and guard against expected 
future segregation caused by gradual expansion of a 
Negro residential area. The relief granted and the facts 
which gave rise to it are conceptually indistinguishable 
from the situation which prevails in the Altheimer district. 
As the Tenth Circuit described the facts:

1 Appellees err in their contention that these decisions are out of step 
with Supreme Court jurisprudence. As indicated in our original brief, 
Supreme Court decisions in the school desegregation area support the 
very extensive duty to maximize desegregation found by courts in the 
Oklahoma City and Jefferson County cases.



“The first of those procedures requires the consolida­
tion of Harding and Northeast districts and Classen and 
Central districts. Each of the old districts now maintains 
a school including the seventh through the twelfth grades. 
Upon consolidation, each of the two new districts would 
maintain two schools in the existing facilities, one for 
the seventh through the ninth grades and the other for the 
tenth through the twelfth grades. The combination of 
Harding and Northeast would produce a racial composition 
of 91% white and 9% non-white; the combination of 
Classen and Central would produce a racial composition 
of 85% white and 15% non-white. The present racial 
compositions in the four schools are : Harding 100% white, 
Northeast 78% white, Classen 100% white and Central 
69% white. Under the new plan, the amount of traveling 
required by pupils in the merged districts would be no 
greater than some pupils in other parts of the system 
are now required to travel and no busing problem arises 
from the merger. The court recognized this fact and 
expressly eliminated the necessity for busing in its plan. 
It is obvious this part of the plan would result in a broader 
attendance base and in a better racial distribution of the 
pupils.” 2

2 Tlie district court in Dowell v. School Board of Oklahoma City, 244 
F. Supp. 971, 977 (W.D. Okla 1965) stated:

The recommendation that the zone lines of the integrated Northeast 
and all-white Harding High Schools and the integrated Central and 
all-white Classen High Schools be combined provides a further method 
of overcoming the results of residential segregation which, because of 
the Board’s inaction, has resulted in the maintenance of schools based 
on race. The combining of the zones as suggested in the Report and 
testimony (with the Board to determine which school in each set is to 
be used for grades 7-9 and which school is to be used for grades 
10-12) is reasonable and educationally sound. I t  will require pupils 
to travel no greater distance than many are presently traveling to 
reach schools at the secondary level.



4

It is to be noted that the Oklahoma City school system 
had a substantially greater degree of desegregation (20%) 
at the time of the entry of the consolidation order, than 
the Altheimer system, but this was still held to be inade­
quate because the system had not been reorganized in such 
a way as to maximize the degree of desegregation. The 
Fifth Circuit decision in Jefferson County articulates iden­
tical principles. For example, school boards are specifically 
ordered to “locate any new school and substantially expand 
any existing schools with the objective of eradicating 
the vestiges of the dual system and of eliminating the 
effects of segregation.”

Here in Altheimer we have a very simple school system 
in which there are three clear-cut choices of re-organiza­
tion: (1) Altheimer site for higher grades and Martin
site for elementary grades; (2) Martin site for higher 
grades and Altheimer site for elementary grades; (3) com­
pletely dual schools at both sites. Because there are only 
two school sites in the district choice (1) or (2) results in 
disestablishment of the segregated system and, therefore, 
complete desegregation. The school board has chosen the 
third alternative, which is the one under which only token 
desegregation will take place. Although it had the oppor­
tunity to do so, the Board failed to suggest any educational 
explanation or interest for maintaining duplicate schools 
six blocks from each other in the face of evidence that 
such a system is educationally inefficient, financially waste­
ful, and minimizes desegregation (see e.g. B. 55, 57, 61-63). 
We do not believe that the Board’s affirmative duty of good 
faith compliance with Brown v. Board of Education is met 
by such conduct especially where, as here, the planning of 
replacement construction was part and parcel of adminis­
tration of a segregated system (see B. 55, 109, 110, 182).



5

A final point. The Board argues that “if a sufficient 
number of Negro students chose to attend the Altheimer 
school complex to overcrowd that facility, the students in 
the overcrowded classes or grades would all be assigned, 
on the basis of the proximity to their homes to the two 
schools involved and this might well result in the assign­
ment of some white students to the Martin Schools” 
(Brief of Appellees, pp. 24, 25). This argument makes 
sense in a school system with a number of different school 
sites scattered through a community. It falls of its own 
weight in the unique situation prevailing in Altheimer 
where only about 200 of 1400 pupils live within the city 
of Altheimer (R. 179), where %rds of the students arrive 
at schools by bus (R. 28-29) and the schools are only six 
blocks apart (R. 179, 228).

As almost all of the students in the district live at a 
great distance from the schools, and the schools are so 
close together, it is impossible to discern in any practical 
way whether a student lives closer to one school than 
the other. The residence standard simply does not set out 
meaningful assignment criterea in such a school dis­
trict.3 Furthermore, what does “closer” mean—airline 
distance or road distance? There is a major highway 
(No. 88) running through town upon which many students 
arrive by bus, and from which the schools are approxi­
mately equidistant, so that in reality, if the ground route 
interpretation of distance were employed, almost all 
students are at the same distance from each school (R. GO- 
62, 179, 228). Even if it were possible and practical to 
measure accurately the precise distance between each stu­

3 In  this regard it is significant that the Altheimer school complex can 
absorb only a limited number of NegTO transferees and should the num­
ber of applicants overcrowd the school, the Board would have an ar­
bitrary discretion to limit the number of Negroes able to attend.



6

dent’s residence and the schools to do so would turn school 
assignment into incredible calculations of inches and feet. 
That the Board disingenuously propounds such a sugges­
tion, when use of one school for lower and one for higher 
grades would so conveniently result in complete desegre­
gation of the system, speaks eloquently of its intention to 
maintain segregation for as long as possible.

Respectfully submitted,

J ack  Greenberg

J am es M . N abbit , I I I
M ic h a e l  M e l t sn e r

M ic h a e l  J .  H en ry

10 Columbus Circle 
New York, New York 10019

J o h n  W .  W a l k e b

1304-B Wright Avenue 
Little Rock, Arkansas

D elector  T il l e r

2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Appellants



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