Norwood v. Tucker Brief for Appellants

    llxnti'h Butts (Cmtrt u! Appals
F or th e  E ig h t h  Circu it  

No. 16586—September Term, 1959

W il l ia m  H en ry  N orwood, et al.,
Appellants,

-v.—

E verett T u cker , Jr., et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT EOR THE 

EASTERN DISTRICT OE ARKANSAS, WESTERN DIVISION

BRIEF FOR APPELLANTS

W iley  A. B ranton

119 East Barraque Street 
Pine Bluff, Arkansas

T hurgood M arshall  
J am es M . N abrit , III 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



I N D E X

S tatem en t  of t h e  Ca s e ................................................................  1

Introduction ...............................................................  1

I. Partial History of tlxe Case .................. 2

A. The 1956-1957 Proceedings ..............  2

B. Proceedings from 1957 until June
1959 ......................................................  3

C. Proceedings Resulting in the Order
of September 2, 1960 ........................ 4

II. Facts About the Original Plan as Indi­
cated in the 1956-57 Proceedings ........... 7

III. The Facts at the 1960 Trial Indicating
Current Placement Procedures..............  13
A. General Organization of Schools;

the Pattern of Continued Segrega­
tion .................    13

B. The Beginning of the Placement Pro­
cedures; Preliminary Student Regis­
tration and Administrative Proced­
ure ........................................................ 17

C. The Board Meeting of July 29, 1959: 
Adoption of Local Placement Regula­
tion ; Initial Assignment of Students; 
Board’s Reasons for Its Actions .... 19

D. Actions and Procedures on Requests 
for Change of Assignments; Special 
Tests and Interviews; Board Hear­
ings

PAGE

24



11

P oints  a n d  A u t h o r it ie s ......................................................... 27

A r g u m e n t ................................-...........................................................  30

I. The Denial of Injunctive Relief Permits an 
Unjustified Modification of the Court-Approved 
Desegregation Plan and Impairs Rights of Ap­
pellants Secured by the Plan, the Former De­
crees, and the Fourteenth Amendment............. BO

II. The Denial of Injunctive Relief Permits the 
Permanent Continuation of Racially Discrimi­
natory Policies and Procedures Tending to 
Preserve Segregation and Thus Deprives Ap­
pellants of Rights Protected by the Fourteenth 
Amendment .......................................................... 44

III. The Principles Requiring Exhaustion of Ad­
ministrative Remedies and Limiting Parties to 
Asserting Personal Rights, Do Not Affect Ap­
pellants’ Standing to Litigate the Questions 
Presented or Their Right to the Relief Prayed 54

C o n c l u s io n .......................................................................................... 57

PAGE

T a b l e  o f  C a s e s :

Aaron v. Cooper, 143 F. Supp. 855 (1956) ...........3, 7,12, 30,
31, 32

Aaron v. Cooper, 243 F. 2d 361 (1957) .............. 3, 7, 30, 32
Aaron v. Cooper, 257 F. 2d 33 (1958) ................. 32,39,43
Aaron v. Cooper, 261 F. 2d 97 (1958) .......................... 39
Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 

1959) .......... -...............-...........................................17,39,43
Avery v. Wichita Falls, 241 F. 2d 230 (5th Cir. 1957) .. 37



I ll

Barrows v. Jackson, 346 U. S. 249 (1953) ..................  56
Bates v. Little Bock, 361 U. S. 516, 4 L. ed. 2d 480,

486 (1960) ..................... ................................................ 38
Bolling v. Sharpe, 347 U. S. 497 (1954) .....................  45
Brown v. Board of Education, 347 IT. S. 483 (1954) ....3, 44 
Brown v. Board of Education, 349 U. S. 294 (1955) ....36, 37

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956)........... 55
Cities Service Co. v. Securities & Exchange Comm.,

-  257 F. 2d 926 (3rd Cir. 1958) .....................................  31
Cooper v. Aaron, 358 U. S. 1 (1958) .............. 4, 37, 38, 39,

40, 44, 45
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959) .. 55

Dove v. Parham, —— F. 2 d ------(8th Cir. Aug. 1960)
50, 52, 55

Evans v. Ennis,------F. 2 d -------  (3rd Cir., July 1960),
on rehearing------F. 2 d -------  (Aug. 1960) ...............14, 52

Farley v. Turner,------F. 2d-------(4th Cir., June, 1960) 55

Gibson v. Board of Public Instruction, 272 F. 2d 763
(5th Cir. 1959) ............................................ * .....35,36,55

Gibson v. Mississippi, 162 U. S. 565 (1896) ............... 44

Hill v. School Board of City of Norfolk, V a .,------F.
2 d ------ (4th Cir. Sept. 1960) .................. ........ ........ . 52

Holland v. Board of Public Instruction, 258 F. 2d 730
(5th Cir. 1958) ............ ................... ..... .....................  55

Hopkins v. Lee, 6 Wheat. 109 (1821) .............................  40

Jones v. School Board of the City of Alexandria, Va.,
276 F. 2d 72 (4th Cir., 1960) .....................................52, 53

PAGE



PAGE

Kelly v. Board of Education, 159 F. Supp. 272 (M'. D.
Tenn. 1958) ...................................................................35,

Kelly v. Board of Education of the City of Nashville, 
supra, at 159 F. Supp. 275-277 .................................

McCullough v. Virginia, 172 U. S. 102 (1898) ............
McKissick v. Carmichael, 187 F. 2d 949 (4th Cir.,

1951) ............................................................................50,
McLaurin v. Oklahoma State Regents, 339 U. S. 637

(1950) ............................................. -..............................
Mannings v. Board of Public Instruction, 277 F. 2d 370

(5th Cir. 1960) .........................................35, 37, 52, 54,
Meyer v. Nebraska, 262 U. S. 390 (1923) ......................

N A A CP v. Alabama, 357 U. S. 449 (1958) ...............39,

Oklahoma v. Texas, 256 U. S. 70 (1921) ................. -....—
Orleans Parish School Board v. Bush, 242 F. 2d 156 

(5th Cir. 1957) .............................................................

Parham v. Dove, 271 F. 2d 132 (8th Cir. 1959) .......... 40,
Pierce v. Society of Sisters, 268 U. S. 510 (1925) ....51, 
Public Utilities Comm. v. United States, 355 U. S. 534 

(1958) ............................................................................

Rippy v. Borders, 250 F. 2d 690 (5th Cir. 1957) ..........

School Bd. of City of Newport News v. Atkins, 246 F. 2d
325 (4th Cir. 1957) ............ -.................................... - -

School Bd. of City of Norfolk v. Beckett, 260 F. 2d
18 (4th Cir. 1958) ...........................................................

Slaughterhouse Cases, 16 Wall. 36 (1873) ......................
Smith v. Texas, 311 U. S. 128 (1940) .............................

36

36

40

51

50

55
51

56

31

55

,55
,56

56

36

55

51
44
44



V

PAGE

United States v. Johnson County, 6 Wall. 166 (1867) .... 40 
United States v. Peters, 5 Cranch 115 (1809)................  40
United States v. Swift & Co., 286 U. S. 106 (1932) ....41, 42 

O t h e b  A u t h o b i t i e s  :

^  Appellees Brief, p. 7, 243 F. 2d 361.......... ......................  11
>( Appellees Brief, p. 45, 257 F. 2d 33.................................  40

Arkansas Pupil Assignment Law of 1956 (Initiated Act
No. 2 of 1956) ...............................................................  40

Arkansas Pupil Placement Law of 1959 (Act No. 461 
of 1959) .........................................................................39, 40

—-'Civil Eights Act of 1960, Title I, 62 Stat. 769 (1960),
18 U. S. C. §1509 ...........................................................  38

Pomeroy, Equity Jurisprudence (Symons 5th Ed.)
Vol. 1, Sec. I V ............................................................... 57

Eule 23(a)(3) Federal Eules Civil Procedure ...........56,57

Black, The Lawfulness of the Segregation Decisions,
69 Yale L. J. 421 (1959) 51



STATEMENT OF THE CASE

Introduction

This appeal involves another phase of litigation com­
menced in February 1956 in which appellants, Negro school 
children and parents, have challenged racial segregation in 
the public schools of Little Rock, Arkansas. Different 
phases of this cause have been before this Court on five 
occasions, and twice have been decided by the Supreme 
Court of the United States.* 1 2 3 4 5 6

While familiarity with the entire history is helpful in 
understanding the matter now before the Court, a descrip­
tion of all previous proceedings would unduly lengthen this 
statement. Therefore the statement is confined to prior 
proceedings directly related to the issues now presented.

This is an appeal from an order dated September 2, 1960, 
denying appellants’ motion seeking further relief to re­
strain certain actions of the Board of Directors of the 
Little Rock School District. The opinion below, dated 
September 2, 1960, also expressly declined to further retain 
jurisdiction.

1 Previous decisions in this litigation are reported as follows:
1. Aaron v. Cooper, 143 F. Supp. 855 (E. D. Ark. 1956), aff’d 243 

F. 2d 361 (8th Cir. 1957).
2. Aaron v. Cooper, 2 Eace Eel. Law B. 935 (E. E>. Ark. 1957), aff’d 

sub nom. Thomason v. Cooper, 254 F. 2d 808 (8th Gir. 1958).
3. Aaron v. Cooper, 156 F. Supp. 220 (E. D. Ark. 1957), aff’d sub mm. 

Faubus v. United States, 254 F. 2d 797 (8th Cir. 1958), cert. den. 
358 U. S. 829 (1958).

4. Aaron v. Cooper, 163 F. Supp. 13 (E. D. Ark. 1958), cert, before 
judgment of Court of Appeals denied 357 U. S. 566, rev’d 257 F. 2d 
33 (8th Cir. 1958), aff’d Cooper v. Aaron, 358 TJ. S. 1 (1958).

5. Aaron v. Cooper, 3 Eace Eel. Law E. 882 (E. D. Ark. 1958), vacated 
and remanded 261 F. 2d 97 (8th Cir. 1958), opinion on remand, 169 
F. Supp. 325 (E. D. Ark. 1959).

6. Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d sub
nom. Faubus v. Aaron,------ IX. S .------- ■, 4 L. ed. 2d 237 (1959).



2

The opinion and order followed a trial held March 22nd 
and March 23rd, 1960, which involved actions, policies and 
regulations of the Board under a pupil assignment pro­
gram instituted prior to the 1959-60 school term. One 
issue was whether the Board’s pupil assignment actions 
and regulations improperly modified a plan for desegre­
gation approved by the trial court in 1956; this has neces­
sitated review of matters involved in the trial of August 
15, 1956 (143 F. Supp. 855), and the subsequent appeal 
(243 F. 2d 361). (See Tr.8 pp. 262-269, and Plaintiffs’ Ex­
hibits 8 and 9.)

This statement is divided into three parts. Part I is a 
partial history of the litigation describing the 1956 pro­
ceedings in the trial court and proceedings immediately 
preceding the present appeal. Part II is a detailed state­
ment of facts about the 1955 plan. Part III describes facts 
developed at the 1960 trial.

I.

Partial History of the Case

A. The 1956-1957 Proceedings (143 F. Supp. 855 and 243 
F. 2d 261).

This case was commenced in February 1956 when Negro 
school children and parents sued to restrain the practice 
of compulsory racial segregation in the public school sys­
tem of Little Rock, Arkansas. This was a class action (Rule 
23(a)(3) Federal Rules of Civil Procedure) pursuant to 
28 U. S. C. *§1331,1343. 2

2 The typewritten transcript of the hearing held on March 22-28, 1960 
is cited herein as “ Tr.”  followed by the page number. The 1956 Transcript is 
eited as “ 1956 Tr.” ; see note 5 infra.



3

At the first trial, August 15, 1956, the Board admitted 
compulsory segregation and acknowledged violating prin­
ciples set forth in Brown v. Board of Education, 347 U. S. 
483 (1954). However, it interposed as a defense a plan 
of procedures for gradual systematic desegregation of the 
schools—a plan the Board adopted voluntarily on May 
24, 1955. This plan provided for delay until September 
1957 in starting desegregation in high schools, and for 
even longer delays in ending segregation in junior high and 
elementary schools. Plaintiffs objected. The Board under­
took to establish that administrative obstacles to desegre­
gation resulting from local school problems justified delay 
in starting the plan and further delay incident to its three- 
phase character.

On the basis of the Board’s showing of administrative 
problems and representations as to results which would be 
obtained, the trial court held that plaintiffs’ enjoyment of 
their constitutional right to non-segregated public educa­
tion could be delayed, and that the plan was “adequate” , 
in that it would “ultimately bring about a school system 
not based on color distinctions” , 143 P. Supp. 855, 866. The 
Court also ordered that jurisdiction be retained during 
the period of transition. Plaintiffs appealed, and this 
Court affirmed, 243 P. 2d 261. No review was sought in 
the Supreme Court.

B. Proceedings From 1957 Until June 1959.

For present purposes, it is important to note that every 
proceeding from 1957 until 1959 involved attempts by the 
Board, various state officials, and others, to suspend, aban­
don, or frustrate the 1955 plan or to prevent any desegre­
gation of the Little Rock public schools. The Board three 
times applied for permission to “ suspend” the plan, once 
attempted to lease school property for racially segregated 
operation by “private” persons, and subsequently sought



4

permission to “abandon” the plan and operate segregated 
schools pending formulation of a new plan.

In 1958, the Supreme Court met in special session to hear 
this case and affirmed this Court’s reversal of an order 
granting a suspension in the face of opposition to, and 
unlawful interference with, desegregation of the Little 
Rock schools, Cooper v. Aaron, 358 U. S. 1.

In November 1958 the proclivity of the Board and other 
state officials for activities interfering with desegregation 
caused this Court to direct issuance of an injunction re­
straining the Board in broad terms:

. . . from engaging in any other acts, whether in­
dependently or in participation with anyone else, which 
are capable of serving to impede, thwart or frustrate 
the execution of the integration plan mandated against 
them (261 F. 2d 97,108; 169 F. Supp. 325, 337).

The Board’s request for permission to “abandon” the 
plan and operate the schools on a segregated basis pend­
ing submission of a new plan occurred after the above- 
quoted injunction, and was participated in by three of its 
present members. (The opinion of September 2, 1960 
mentions this unreported order at page 10.)

No litigation between 1957 and 1959 necessitated a re­
view of the meaning of the 1955 plan, or involved a claim, 
such as is now made, that the plan was not being admin­
istered in accordance with the representations made to 
secure initial approval of the plan.

C. Proceedings Resulting in the Order of September 2, 1960.

On August 8, 1959, the appellants filed a motion for 
further injunctive relief, and a motion to substitute as



5

defendants three new members of the Board. The motion 
for further relief alleged that the Board had taken certain 
actions in initially assigning the plaintiffs and other 
Negroes entitled to the benefit of the judgments in this 
case, which were inconsistent with, impeded, and frustrated 
the effectuation of the court-approved plan for desegre­
gation, thereby depriving Negro children of rights pro­
tected by the due process and equal protection clauses of 
the Fourteenth Amendment and of the benefits of the prior 
orders in the case.

The motion alleged that Negro pupils were deprived of 
the right to attend the schools in their attendance areas 
and had instead been assigned on the basis of race to an 
all-Negro school located outside their attendance areas. 
It was alleged that this was an impermissible modification 
of the court-approved desegregation plan. The plaintiffs 
prayed for an injunction

“restraining the defendants from refusing to admit, 
enroll and educate the named plaintiffs and intervenors, 
and all other Negro students who present themselves 
for admission to such of the Little Rock senior high 
schools as they may be entitled to enter pursuant to 
the prescribed school zones, at normal admission and 
enrollment periods conducted during the forthcoming 
1959-60 school term and thereafter.”

The defendants responded to the motion for further 
relief, on August 21, 1959, alleging: (1) that they were 
operating the schools on a nondiscriminatory basis; (2) 
that Negro plaintiffs had not completed administrative 
procedures established by the Board for obtaining re­
assignments; (3) that the plaintiffs could no longer main­
tain a class action in this case; (4) that the Board was 
entitled to consider many criteria other than residence in



determining school assignments; and (5) that the defen­
dants’ actions and assignment procedures were “within 
the framework of the governing court orders and decisions.” 
The Board prayed that the motion for further relief be 
dismissed, and that the trial court “ specifically approve” 
the assignment procedures adopted and followed by the 
Board.

September 19, 1959, several Negro students and parents 
filed a motion to intervene as plaintiffs, adopting the al­
legations of the motion for further relief. The court al­
lowed intervention by order dated September 24, 1959, and 
the response to the motion for further relief was treated as 
a response to the intervention.

The cause came on for hearing before the Court on 
March 22 and 23, 1960. The motion to substitute defen­
dants was granted. The opinion and order of the court 
denying plaintiffs’ request for injunctive relief were en­
tered September 2,1960.

The court below held that plaintiffs were not entitled 
to any relief and concluded that the Board’s assignment 
procedures were consistent with the 1955 plan; that the 
assignment procedures employed by the Board did not 
discriminate racially; that the Board acted in good faith; 
and that there was no reason for the court to retain juris­
diction.

Plaintiffs filed notice of appeal on September 3, 1960. 
This Court on September 13, 1960, directed that the cause 
be set for oral argument at the November 1960 session, 
the appeal to be heard on the original files of the District 
Court.

6



7

Facts About the Original Plan as Indicated in the 
1956-1957 Proceedings

It is undisputed and generally known that only nine 
Negro students attended Central High School during 1957- 
58 (1960 Tr. 272-273), and as stated by this Court in one 
of its opinions, 257 F. 2d 33, 34 (8th Cir. 1958)3 the Super­
intendent did conduct a “ screening” of Negro pupils prior 
to the 1957-58 school term.

But contrary to the conclusions of the court below in its 
September 2, 1960 opinion, which repeats the undocumented 
and unsupported claims made in the Board’s brief below,4 
there was no mention of “ screening” Negro or any students 
and no mention of an intention to use any assignment 
criteria changing the general attendance area rule in either 
the text of the plan, the pleadings, the testimony, or the 
exhibits when the plan was presented and approved. There 
was no mention of such a policy in either the opinion of 
the District Court (143 F. Supp. 855) or the opinion of 
this Court (243 F. 2d 361). Likewise there was no mention 
of a policy (nowT held to be a part of the plan), permitting 
“A child who was assigned to a school wherein his race 
was in the minority to transfer to a school wherein his

3 This opinion reversed a ruling allowing a 2 ^  year suspension of de­
segregation.

4 The Court wrote, at p. 14:
‘‘One provision of the plan was to permit any child who was as­
signed to a school wherein his race was in the minority to transfer 
to a school wherein his race was in a majority. It is clear that 
there was a re-districting in that attendance areas were fixed. It  
is equally clear that student assignment (at that time called “ screen­
ing” ) was provided for and permitted by the plan. In fact, at that 
time there were approximately as many Negro students eligible for 
assignment solely on the basis of attendance areas to formerly all 
white schools in 1957 as there are now. The screening then em­
ployed under the plan reduced the number to 17, and only 9 at­
tended predominantly white schools.” (Emphasis supplied.)

II.



8

race was in a majority.” In fact, contrary representations 
were made to the trial court and to this Court in 1956-57. 
The facts are as follows:

At the 1956 trial5 the Board represented that each child 
in the desegregated grades would have the “basic right” 
to attend the school in his attendance area. The Super­
intendent testified as follows on direct examination while 
explaining the plan, at 1956 Tr. pp. 68-69:

Q. I wanted you to tell us, Mr. Blossom, with concrete­
ness, those of the fourteen points that you consid­
ered at the time that you drew up the plans that 
have been put into practice in connection with the 
plan?

A. All right. We have developed attendance areas.
Q. All right?
A. That would give every child the basic right to at­

tend school in the area of the legal residents (sic) 
of his parents or legal guardian. That’s a concrete 
step we have taken. All right. We have made the 
studies that reflect the achievement and the ability 
of individual children to show us the job we have to 
provide the educational development in the school 
system of Little Rock School District. (Emphasis 
supplied.)

At the 1956 trial the Superintendent testified to a general 
policy of assigning students to schools in the areas where 
they lived,6 and stated that the areas would be applied as

5 The typewritten transcript of the August 15, 1956 trial was considered 
by the court below and has been certified to this court on the instant appeal 
(see 1960 Tr. 267-269). In addition excerpts from that transcript are included 
in Plaintiffs’ Exhibit 9. In this brief citations to the 1956 transcript are 
indicated as “ 1956 Tr.”  followed by a page number.

6 The Superintendent testified at 1956 Tr. pp. 106-107:
A. All right, the estimated date, as we have told heTe is to begin in 

1957. Now we said two things in that statement— (1) that we



9

generally restrictive boundaries, within which pupils would 
be assigned without regard to race.7 It was explained that

were going to follow the general principles laid down; that we 
were going to hold the standards of our educational program. 
Now our plans call for a grouping o f the children in the at­
tendance areas for educational purposes in grades 10, 11, and 
IS. That’s estimated ’57. (Emphasis supplied.)

The Superintendent further testified at 1956 Tr. pp. 125-126:
Q. It is the policy of your School District to require that children 

attend the school in the school area, attendance area, that they 
live, is that true?

A. There are exceptions to it, hut that’s the general policy.
Q. That is your general policy. Your Point 11 here says “ To Pro­

vide an Opportunity for All Children of Attending School in the 
Attendance Area Where the Residence of Their Parents or Legal 
Guardian Is Located.”  Now, since that is already your policy, 
why do you need time to enforce that?

A. To develop these maps that are in the individual program, it’s 
all related.

Q. But you got your maps already?
A. Yes but we don’t have the program completed. It takes more 

than maps and just buildings. You can create your area and you 
can put them in a seat, but that’s a far-ery different than edu­
cating them. The job just begins when you get them in the seats.

Q. But that is true under all circumstances?
A. Yes sir, but each set of circumstances are different and you 

can’t just apply one general principle and say that’s it (126), and 
have an educational program.

Q. Well when do you think you’ll get that problem solved?
A. Now which particular problem are you talking about?
Q. The problem of getting your program ready for—
A. We have told you that it’s ready at the Senior High School level; 

that the Junior High School attendance areas are tentative; at 
the time in this phase program there will, in all likelihood have 
to be another Junior High School. Now i f  we have to bring in 
another junior high school to house the number of children be­
cause of growth, then those areas will have to be revised. Now if 
the growth does not cause the revision of the attendance areas, 
they will stand as they are; but i f  the children justify an addi­
tional school, additional seats, facilities, instructors and so on, 
then the necessary changes will be made under the principles as 
outlined. (Emphasis supplied.)

7 The Superintendent testified at 1956 Tr. pp. 62-63:
Q. Now, integration can not be commenced until the West End 

High School is completed?
A. Under this plan, that is correct.



10

the Board would not be ready to make the change from the 
old system of city-wide attendance areas with separate 
schools for whites and Negroes until September 1957 at 
the high school level.8 It was said that the change to the 
new system could not be made until September 1957 when 
a high school would be ready at the west end of the city 
(Hall High),9 and because the high schools’ curricula had 
to be adjusted to provide for the specific needs of all chil­
dren living within the newly established attendance areas.

Q. Now why is that, specifically, Mr. Blossom?
A. That is specifically correct so far as I ’m concerned in the prob­

lem of dealing with curricula. Now we have three attendance 
area at the present time that affect senior high school children—  
Central High School, Horace Mann High School and Little Hock 
Technical High School. The attendance area for Little Bock 
Tech High is city-wide; the attendance area for Little Bock 
Central High School is city-wide; the attendance area for Horace 
Mann High School is city-wide. Now when we change from city­
wide attendance areas to geographical areas within the city, that 
restrict a certain group of youngsters to one area— to one build­
ing, we create problems that deal with our curriculum of planning 
the curriculum for the needs of those specific children. . . . 
(Emphasis supplied.)

At 1956 Tr. p. 91 the Superintendent testified:
A. I  am saying that the putting of the races together in different 

attendance areas because of different children, as reflected on 
these exhibits here, on the attendance areas, that the fact that 
under our present system at the senior high school area our pro­
gram is city-wide. So, all of the white children are embraced in 
that program, all of the colored children are embraced in another. 
When we restrict the geographic areas we restrict that to a cer­
tain group of youngsters. Now, it is justified, reasonable and 
sensible to take the time to plan the basic program for the in­
dividual group of youngsters in a specific area and to try to at­
tain the second educational objective of providing the program 
that serves the specific needs o f  the individual children. Now 
when you do that, you concentrate a different type of program 
for a specific set of needs and—

8 See note 7 supra.
9 See note 7 supra. The statement that the plan could not be started 

until the city had 3 high schools is contained in the text of the plan; see 
143 E. Supp. 855, 859 (paragraph called “ Time for integration” ).

10 See notes 6 and 7 supra. See also 1956 Tr. pp. 45-50, passim.



11

The attendance areas system of assignment was the matrix 
of the plan, and the areas were first established in connec­
tion with the plan by locating* all pupils—colored and 
white—on spot maps and then drawing the zone lines with 
reference to the residences of all pupils and the capacities 
of the school buildings.11

The Board represented during the 1957 appeal that 
under the plan pupils would be assigned to the schools in 
their attendance areas without regard to race. In its brief 
in this Court the Board made the following statement 
(Appellees’ Brief, p. 7, 243 F. 2d 361, 8th Cir., No. 15,675):

“ Integration will start in the high schools as of 
September, 1957. At that time 582 Negro pupils will 
receive education in an integrated school system (R. 
63). In 1958, 292 Negro pupils who will graduate from 
junior high schools will have the same opportunity 
(R. 62). In 1959 355 will move into the integrated sys­
tem, and in 1960 406 will be admitted (R. 62). By that 
time the junior high schools will be integrated, and that 
means that all pupils presently in the top three grades 
of elementary schools will also be in integrated schools 
by 1960. All Negro pupils now attending Little Rock 
schools as of September, 1957, will be bound to ex­
perience education under the integrated system before 
finishing their courses.” 12

The record references in the above quote are to the pages 
of the printed record which summarize exhibits,13 indicat­
ing the numbers of pupils attending the various grades,

11 See 1956 Tr. pp. 31-38. See also Plaintiffs’ Exhibit 8 from the 1960 
trial— a summary of the contents of Exhibits C, D, E, F, G, and H from the 
1956 trial. The original 1956 exhibits are no longer available in the court 
records as indicated at 1960 Tr. pp. 262-264.

12 This representation was brought to the attention of the court below; 
Tr. 264-266.

13 The same information is now contained in Plaintiffs’ Exhibit 8.



12

and the numbers of colored and white pupils in each at­
tendance area (see note 11 above). The testimony and 
the manner in which the enrollment figures were presented 
in the Board’s 1957 brief in this Court make it plain that 
the plan contemplated a “ general policy” (1956 Tr. 125- 
126) of assigning both Negro and white pupils to high 
schools on the basis of residence in the areas. For ex­
ample, one figure mentioned in the quotation is “ 582” 
Negro pupils. It was said that “582 Negro pupils will re­
ceive an education in an integrated school system” in 1957. 
The “582” pupils mentioned were all of the Negro high 
school students in the system. Thus it was represented 
that white students would be assigned to Mann High and 
Negro students to Central if they lived within the zones 
prescribed for those schools. This is clear in light of the 
testimony about the “ restrictive” nature of the boundaries.

Mann, presently an all-Negro high school, was not an 
old “Negro” school established under the “ separate but 
equal” system. Rather, Mann was a new building opened 
in February 1956, which had been originally planned as 
a junior high school, and which was said to have been 
redesigned as a high school “ to fit into this [desegregation] 
plan . . .  in order . . . [to do] . . . the job of providing 
adequate attendance areas that would serve the needs of 
the children.. . . ” 14

The texts of the Board’s public announcement of May 
20, 1954, and the plan approved May 24, 1955, both advert 
to attendance areas (143 F. Supp. 855, 858-59). The rea­
son stated in the plan for the long period of delay neces­
sary before elementary schools could be desegregated was 
the fact that attendance areas were more difficult to estab­

14 See 1956 Tr. p, 53.



13

lish at the elementary level.15 Likewise, the delay in de­
segregating the high schools from the adoption of the plan 
in May 1955 until September 1957 was justified by the 
need to build additional high schools (including Mann, 
completed in 1956, and the west end (Hall) school which 
was completed in 1957), in light of the proposed attendance 
area system of pupil assignment.16

III.
The Facts at the 1960  Trial Indicating Current 

Placement Procedures

Appellants’ general factual claims are: (1) that the
Board’s present actions and procedures governing the 
placement of pupils constitute a substantial modification 
of the assignment policies set forth to obtain approval of 
the 1955 plan, and (2) that its actions and procedures 
governing both initial assignments and changes of assign­
ments subject Negro pupils and parents seeking desegre­
gated assignments to different and unequal treatment, and 
operate to allow a small “token” number of Negro children 
to attend predominantly white schools while perpetuating 
the general rule of compulsory racial segregation.

A. General Organisation of Schools; the Pattern of Continued 
Segregation.

It is undisputed that all elementary schools (grades 1-6) 
and junior high schools (grades 7-9) in Little Rock are 
still operated under a policy of complete and compulsory

15 143 F. Supp. at 860:
“ 6. The establishment of attendance areas at the elementary level 

(grades 1-6) is most difficult due to the large number of both 
students and buildings involved. Because of this fact it should 
be the last step in the process.”

16 See notes 7 and 14 supra.



14

racial segregation.17 Four senior high schools (grades 10- 
12) are maintained in the system (Tr. 40): Technical High, 
which has a city-wide attendance area, specializes in “trade” 
education, and in 1959-60 served 175 white male students 
(Tr. 42, 77, 41); Mann, Central, and Hall offer general 
high school curricula (Tr. 77-78), and have the same at­
tendance areas established as a part of the 1955 plan, ex­
cept for one change in the Hall-Central boundary;18 Mann 
is an all-Negro school which had an enrollment during the
1959- 60 term estimated at 700 students,19 Hall enrolled an 
estimated 700 students, only three of whom were Negroes 
(Tr. 41), and, during the 1959-60 term, Central enrolled 
around 1600 students, including only five Negroes (Tr. 41).

The record does not indicate enrollment figures for the
1960- 61 term,20 but press reports indicate that the racial 
distribution remains generally the same with 12 Negro 
pupils now assigned to the two predominantly white high 
schools.21

During the 1959-60 school term the residence statistics 
for pupils in the three high school attendance areas were 
(Plaintiffs’ Exhibit 1) :

17 See Defendants’ Exhibit 5, a resolution stating the board’s intention 
not to extend desegregation to the junior high school level in 1960-61.

18 Tr. 43. See plaintiffs’ Exhibit 1 (map). None of the high schools are 
overcrowded; 1960 Tr. 89. See note 36, infra, about “ registration”  areas.

19 Tr. 41. The total was probably closer to 600 pupils; cf. Plaintiffs’ Ex­
hibit 1 indicating a total of 638 Negro high school students.

20 The trial took place before the assignments. 1960 Tr. 204.
21 New York Times, September 7, 1960, p. 29, col. 6. I f  the Board desires, 

appellants would readily stipulate that it could supply the current enrollment 
statistics to the District Court by affidavit and certify them to this Court, as
was suggested recently in Evans v. Ennis (3rd Cir., Aug. 29, 1960),------ E. 2d
------ (on rehearing).



15

White Negro
Pupils Pupils Totals

Mann H. S. Area ......... ..... 202 277 579
Central H. S. A rea ...... ...... 1412 349 1761
Hall H. S. Area .......... ..... 677 12 689

Total ________ ..... 2291 638 3029
These figures indicate only the residence pattern, not the 
placements.

The pattern of high school placements can be explained 
in terms of two general principles,22 with exceptions as 
indicated:

1. White pupils were generally placed in schools where 
they registered in accordance with the attendance areas,23 24 
except that all of the 200 white pupils living in the Mann 
area were placed at Central under racial “ options” for 
registrants.24. No white pupils who registered at the school 
in their attendance areas were refused assignment at that 
school.25

Exceptions: A small number of white students were 
permitted to move from Hall to Central and vice versa: 
Twenty white students registered outside their areas and 
were initially assigned where they registered; 26 27 about 
twenty-four others were granted transfers outside their 
areas after applying for reassignments.37

22 See generally Tr. 200-203.
23 As indicated in the sources cited in notes 26 and 27 below, only 20 

white students were not assigned on an area basis initially, and only 24 others 
obtained changes of the initial assignments.

24 Defendants’ Answer to Interrogatory No. 6, pp. 3-10. See also Plain­
tiffs’ Exhibit 2.

25 Defendants’ Answer to Interrogatory No. 4.
26 Defendants’ Answer to Interrogatory No. 6, pp. 1-2.
27 Defendants’ Answer to Interrogatory No. 2, part A, indicates that 24 

of 32 white applicants were granted changes of initial assignments.



16

2. Generally Negro students were placed at Mann High 
School without regard to area of residence, or place of reg­
istration.™ Although, fifty of the 349 Negro pupils living 
in the Central area registered at Central, most were placed 
at the all-Negro Mann High.

Exceptions: Three Negroes initially assigned to Hall, 
and three to Central;28 29 three other Negroes admitted to 
Central after reassignment hearings.30 All of these students 
lived in areas where admitted. (One of nine Negroes ad­
mitted to Central did not attend in 1959-60, having re­
ceived a diploma.)

The manner in which the Board accomplished the pat­
tern described above was complicated and can be explained 
only by the detailed description of the Board’s actions, 
policies and procedures which appears below.

The school district has continued the policy of hiring 
and assigning teachers on the basis of race at all grade 
levels.31

Each of the three general high schools in the system 
serves pupils with varied levels of ability and academic 
achievement.32 There is no program of homogeneous abil­
ity-grouping by high schools, but only within each school.33

28 As indicated in Plaintiffs’ Exhibit 1, more Negro pupils lived outside 
the Mann area than within that area. Only 9 Negroes were assigned to Hall 
and Central and only 8 actually attended. See notes 29 and 30 below.

29 The names of these six students are included in Defendants’ Answer to 
Interrogatory No. 1.

30 These three students are indicated in Defendants’ Answer to Interroga­
tory No. 3.

31 Tr. 47, 319-20; see: Minutes Beg. Mtg., June 25, 1959, Defendants’ Ex­
hibit 2.

32 See generally Tr. 73-86.
33 The exception is Technical High— recommended for students with me­

chanical aptitude; Tr. 80. Each of the three general schools has the same basic 
school program.



17

That is to say, there is no school building set aside solely 
for slow-learners or fast-learners or solely for advanced 
students or retarded students (Tr. 75-76), hut each school 
has classes in which students are grouped by ability or 
achievement level.34 The basic qualification for admission 
to the three general high schools is simply successful com­
pletion of the lower grades and promotion to the 10th grade 
(Tr. 78, 79).

B. The Beginning of the Placement Procedures; Preliminary 
Student Registration and Administrative Procedures.

Throughout the 1958-59 school year the high schools 
were closed pursuant to state laws operating to prevent 
desegregation, which were held invalid on June 15, 1959, 
in Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark.). (See 
Tr. 43.) One week after the McKinley decision the Board 
resolved to reopen the schools and to use the Arkansas 
Pupil Assignment Law (Act No. 461 of 1959).35

On July 14, 1959, the Board issued a pre-registration 
announcement for all high school students, and also pub­
lished amended attendance area boundaries for Hall and 
Central High Schools (Defendants’ Ex. 2—Minutes Spec. 
Mtg., July 14, 1959). The change added a small part of 
the Central area to the Hall area (Tr. 43). The registration 
announcement directed high school students to register 
during the period July 21-24, 1959 (Plaintiffs’ Exhibit 2).36 
The announcement expressly referred to the race of stu­

34 Tr. 78. In addition, there are “ special education”  classes for handicapped 
children; Tr. 73.

35 Defendants’ Exhibit 2— Minutes Spec. Mtg., June 25, 1959.
36 It should be observed that while the Board now insists upon using the 

term “ registration areas”  instead of “ attendance areas”  (of. Plaintiffs’ Ex­
hibit 6— Defendants’ Answers to Interrogatories), the Board’s registration an­
nouncement of July 14, 1959, used the phrase “ attendance areas”  (Tr. 50) ; 
and “geographically”  the areas are the same (Tr. 51).



18

dents, providing optional places of registration based on 
race.37

During the prescribed period the majority of the high 
school students in the system registered (Tr. 54). Fifty- 
nine Negro students (including all the plaintiffs) regis­
tered as follows: Central—50 pupils; Hall—6 pupils; 
Technical—3 pupils.38

The registration procedure operated as follows:
1. Each student was given a mimeographed notice which 

admonished him to be certain that he was “ eligible” to 
register at that school (Defendants’ Exhibit 21, Tr. 362-63).

2. Each student completed a form called “Request for 
Admission to the Little Rock Public School System” 
(Plaintiffs’ Exhibit 3 is a specimen). The form contained 
questions about the pupil’s residence, past school atten­
dance, courses desired, and other details. A space was 
provided for the registrars to indicate the pupil’s atten­
dance area on the form. No space was provided for a 
student to indicate a choice of schools, and the only pro­
cedure for a student to indicate his desire was to appear in 
person at his chosen school (Tr. 52-53).

37 Superintendent Powell read this provision at Tr. 50:
A. (Beading) “Place of Registration: Tech. High. All students de­

siring to attend Tech High will register there. Hall High School: 
All students in the Hall High attendance area will register at 
Hall High except that the Negro students in the Hall High at­
tendance area, who elect to do so, may register at Horace Mann 
High School. Central High: All students in the Central High 
attendance area will register at Central High, except that Negro 
students in the Central High attendance area, who elect to do so, 
may register at Horace Mann High School. Horace Mann High 
School: AH students in the Horace Mann High School attendance 
area will register at Horace Mann High School, except that white 
students in the Horace Mann attendance area, who elect to do so, 
may register at Central High School.”

38 See Defendants’ Answer to Interrogatory No. 1— Plaintiffs’ Exhibit 6.



19

3. Each student wrote his name and address on a postal 
card, later used to give notice of his assignment (Tr. 52-53; 
Plaintiffs’ Exhibit 4 is a specimen card).

4. School registrars marked the letters “ C-PP”—an 
abbreviation for the words “colored, pupil placement”—on 
the “Request for Admission” forms of Negro students who 
registered at Central (Tr. 138-139).

5. The “ request for admission” forms (which contained 
all of the information) were retained at the several schools, 
but the postal cards (which contained only names and ad­
dresses) were forwarded to the Superintendent’s office in 
bundles from each school (Tr. 131).

6. The individual record folders of the 59 Negro stu­
dents who registered at Central, Technical and Hall, were 
gathered at the Superintendent’s office at the request of 
the School Board; also forwarded to the central office were 
the files of white students who lived in the Hall area but 
registered at Central, and those who lived in the Central 
area but registered at Hall (Tr. 115-116; 120-121).

C. The Board Meeting of July 29 , 1 9 5 9 : Adoption of Local 
Placement Regulations; Initial Assignment of Students; 
Board’s Reasons for Its Actions.

On July 29, 1959, the Board met and adopted regulations 
“ for the assignment of pupils, for the reassignment of 
pupils, and for the processing and hearing of applications 
for reassignment of pupils.” 39 The regulations provided, 
inter alia, for the assignment of high school students by 
the Board, upon the recommendation of the Superintendent 
(Article I ; Art. 11(a)(3); Art. 11(b)(1)). Parents who 
object to assignments are required to do so on written 
notarized forms within 10 days after initial assignments;

39 These regulations are set out in full in footnote 2 of the opinion below.



20

to appear in person at hearings before the Board; and to 
submit to the Board’s investigations (Art. III). Article Y 
of the regulations provides standards for initial assign­
ments and reassignment requests, which incorporate the 
sixteen criteria listed in the Arkansas pupil assignment 
law (Act No. 461 of 1959), and “all relevant matters” . The 
regulations contain no prohibition against consideration 
of race in assigning pupils.

After adopting the regulations, the Board proceeded 
to assign “around 2600” high school students en masse 
(Tr. 119). The Superintendent did not attend this meet­
ing (being absent from the city), and the Assistant Super­
intendent insists that he did not make recommendations 
for assignments (Tr. 128). But it is clear that the Board 
assigned most students by merely adopting long lists com­
piled by the staff from the postal cards mentioned above.40

The Board made no attempt to apply its “ assignment 
criteria” to the two thousand or more students initially 
assigned on July 29th.41 The criteria were applied only to 
eleven Negro students on initial assignment.42 The Board 
assigned the balance of the students to what the Board 
called their “normal schools” .43 These “ normal” assign­
ments effected placements in accordance with the “ two 
general principles” used to analyze the placement pattern 
in this brief, supra, at pages 16-17. Of the eleven Negroes

40 Tr. 132. The lists are attached to the minutes of the July 29, 1959 
meeting—Defendants’ Exhibit 2.

41 Tr. 166-168; 184-185. See generally Tr. 143-148; 156-57, 162; 1955— 
198; 200-203. See also Defendants’ Answers to Interrogatories 6 and 7 
(Plaintiffs’ Exhibit 6).

42 Ibid. These eleven students were five Negroes who had attended Cen­
tral during the 1957-58 term; and six Negroes who sought admission to Hail 
High.

43 With regard to “ normal”  assignments see: Tr. 195-198, 200-203 and 
156-157.



21

“ screened” , three were admitted to Hall and three to Cen­
tral. The rest were relegated to Mann High (Tr. 184).

At the initial assignment meeting the Board did not 
apply its assignment “ criteria” by studying the individual 
files of any other students (Tr. 167)—not even to the 48 
other Negroes44 who had sought admission to Central and 
Technical or to the twenty-odd white students45 who regis­
tered outside their attendance areas. These forty-eight 
Negroes were also relegated to the segregated Mann school46 
although only one47 of them lived in the Mann area; but 
the 20 white students were allowed to attend schools out­
side their areas48 without the application of any criteria 
or review of their files.

In summary, students were generally initially assigned to 
the schools in accordance with the registration announce­
ment, except for 53 of the 59 Negroes who registered at 
previously all-white schools.

Students were notified by post cards of their initial as­
signments after the June 29,1959 meeting.

On August 4, 1959, the Board decided to open the high 
schools three weeks early and announced that August 12, 
1959, would be the first day of school (Minutes of Regular 
Mtg., Aug. 4, 1959—Defendants’ Exhibit 3; of. Tr. 209).

The Board’s reasons for its initial assignments were 
set forth in the answers to Interrogatories 6 and 7, quoted

44 The names are listed in Defendants’ Answer to Interrogatory No. 1.
45 The names are listed on pages 1 and 2 of Defendants’ Answer to In­

terrogatory No. 6.
46 See note 44 supra.
47 See Defendants’ Answer to Interrogatory No. 5 (Plaintiffs’ Exhibit 6).
48 See note 45 supra.



22

in the margin below.49 The reasons are expressly related 
to the racial pattern of school enrollments and the theory 
that it would be detrimental to the Negro students and the 
school program if they were “ assigned to a school where 
their race was in the minority during a crucial time of the 
transition period.” The Board contended that it was to 
the advantage of the Negro students not to be assigned 
to predominantly white schools where they were “isolated” ,

49 Answer to Interrogatory No. 6:
“ These students had previously attended the school at which they 

registered and/or had registered at a school where their race was in 
a majority, and the registrations were generally consistent with a 
balanced teacher, classroom and school capacity for the high schools 
of the District. Therefore, due to the multitude of problems and 
details confronting the Board requiring practically around-the-clock 
attention in getting the closed schools open, the Board had no al­
ternative but to make the initial assignments that appear on the 
attached schedule to this Interrogatory and Interrogatory No. 7.”

Answer to Interrogatory No. 7:
“ With regard to the 59 students listed in answer to Interrogatory 

No. 1, six were assigned to the school at which they registered. 
Thelma Mothershed and Melba J. Patillo were assigned to Mann 
High School due to a determination by the Board in the case of 
Melba J. Patillo that she had been unable to make the necessary 
adjustment to pursue her educational studies at Central High School 
where she had previously been in attendance. The assignment of 
Thelma Mothershed was based upon the Board’s determination, 
from information available to it, that due to an impairment in her 
health it would be to her best interest to be in a one-storied school 
building instead of a multi-storied school building. With regard 
to the remaining 51 students listed in Interrogatory No. 1, their 
assignments were based upon a determination by the Board that it 
had insufficient information, and insufficient time in which to obtain 
the necessary information, with regard to those individual stu­
dents to justify initial assignment to a school where their race was 
in the minority during a crucial time of the transition period. The 
extreme pressures of time and problems have been referred to in 
the answer to Interrogatory No. 6, and the Board knew there would 
be adjustment problems for the Negro students and the white 
students which could be detrimental to both the individuals and the 
educational program. Thus, for these reasons and in view o f the 
publicized procedure for reassignment and the opportunity aiforded 
thereby for the Board to obtain sufficient facts and give proper at­
tention to the matter, it was determined that the proper procedure 
was to assign the remaining 51 Negro students to Horace Mann.”



23

unless they were “ screened,” because they might have ad­
justment problems.50

One Board member candidly acknowledged the difference 
between the pupil placement procedure and the court- 
approved plan, stating that pupil placement gave the 
Board “a little bit of leeway” (Tr. 148-49); but another 
member said that he did not recognize that a child had the 
basic right to attend the school within his attendance area 
under the court-approved plan (Tr. 188-89).

A Board member acknowledged a statement attributed 
to him by the press that: “The Board’s most troublesome 
problem has been to integrate a large enough number of 
Negroes to satisfy the Federal Courts and a small enough 
number to satisfy the reluctant white residents of Little 
Rock”, (Tr. 163-164) and asserted his view that five Negroes 
at Central High was “ enough for this year” (Tr. 164, 152- 
155).

The Board members said that the administrative staff 
was new; that the Board was also new and inexperienced 
in running the schools; that they spent a great deal of time 
in meeting to plan for the opening of schools, and in making 
arrangements for the physical security of the schools. The 
Board chairman explained that the Board thought it would 
be on “ safer ground to assign [Negro children] to a school 
where their race was in the majority” (Tr. 323), and that 
the Board “ did not want to get in a position or approach 
the question of having the schools in turmoil or confusion 
or the possibility of having them closed or having a special 
session of the Legislature called that would pass additional 
Acts that would create more confusion” (Tr. 325).

50 Testimony of Psychiatrist, Dr. Peters, 1960 Tr. 336-349. This witness 
did not examine any of the pupils involved in the ease, did not consult with 
the school board in making its decisions (Tr. 345), and had conducted no 
formal research relating to psychological problems connected with segregation 
or desegregation (Tr. 347).



24

D. Actions and Procedures on Requests for Change of Assign­
ments; Special Tests and Interviews; Board Hearings.

Seventy-six students (19 Negro and 57 white pupils) 
filed requests for changes of assignment under the place­
ment regulations. Seventeen Negroes and thirty-two white 
students actually attended reassignment hearings (An­
swers to Interrogatories 2 and 3). Ten of the Negro 
students who attended hearings were plaintiffs in this case, 
while four of the plaintiffs did not file re-assignment re­
quests (Tr. 10).

All of the Negro students who had reassignment hearings 
lived in the areas of the schools which they sought to at­
tend while none of the white students who had reassign­
ment hearings lived in the areas of the schools which they 
sought to attend (Tr. 87; Answers to Interrogatories 2 and 
3).

The procedures established by the Board included social 
worker interviews of pupils and parents, special intelli­
gence tests, and hearings.

Of the 49 students who had hearings before the Board, 
all of the 17 Negroes and their parents were summoned to 
attend social worker interviews, while only 3 of the 32 
white students were summoned to interviews (Tr. 225-26 
and Plaintiffs’ Exhibit 7). Among the same group of 49 
students, all 17 Negroes were required to take the Stanford- 
Binet Intelligence test, while only 6 of the 32 white students 
were summoned to the tests (Tr. 240-241), and three of the 
six white students tested were handicapped students at­
tending “ special education” classes.51

51 “ Special education”  pupils are regularly tested when they enter the 
special program or when the staff feels they need a new evaluation (Tr. 241- 
42).



25

The Stanford-Binet test requires about one and one-half 
hours per pupil to administer, and must be given by a 
skilled tester (Tr. 243). The Stanford-Binet test is not 
a part of the system’s “general testing program” which 
consists of standardized “group” tests of intelligence 
and achievement routinely administered by teachers to all 
pupils (Tr. 235-237). Likewise, the social worker inter­
views and case-studies are routinely used only for stu­
dents having attendance or truancy problems, and occa­
sionally with “tuition” pupils and those who move (Tr. 
231-32).

With respect to the 23 pupils tested, detailed reports 
were made by the school psychologist summarizing the 
Stanford-Binet results, and each pupil’s complete school 
record (Tr. 242-43), and the psychologist also made oral 
reports to the Board in executive session prior to the hear­
ings of some students, outside the presence of the pupils 
and parents (Tr. 110-111. See, for example, Minutes of 
Hearings Held September 8, 1959—Defendants’ Exhibit
4).

Among ten plaintiffs tested, eight of them obtained IQ 
scores within the normal range and two scored slightly 
above the normal range (Tr. 246-47). Although the Stan­
ford-Binet test is not given to all students, the school psy­
chologist stated that she was sure that there were students 
at Hall and Central High Schools with IQ scores lower 
than any of the plaintiffs (Tr. 248).

No standard objective personality tests, primarily de­
signed to gain information about emotional development 
and personality, were administered as a part of the pupil 
placement procedure (Tr. 236-37), but teacher comments 
were included in the written reports.

The hearings conducted by the Board were held on 
August 4, and September 2, 4, 8, and 9, 1959 (see Minutes,



26

Defendants’ Exhibits 3 and 4). At the hearings the chil­
dren and parents were asked to make statements and were 
then questioned and cross-questioned by the Board mem­
bers, staff, and school board attorneys (Tr. 70-72). The 
Board chairman testified that an effort was made to make 
the hearings “ informal.” However, even a cursory exam­
ination of the hearing minutes reveals that the hearings of 
white children were typically brief and perfunctory,52 while 
the hearings of Negro children involved lengthy and de­
tailed interrogations of students and parents. For ex­
ample the minutes of the special meeting on September 2, 
1959, contain the hearings of six white students and one 
Negro student, and the reporter’s notes of the Negro stu­
dent’s hearing fill as many (or more) pages than the hear­
ings of the six white pupils combined. Compare also the 
Minutes of the August 28th hearings (13 white students) 
with the Minutes of the September 8th hearings (7 Negro 
and 2 white students).

The hearing of one Negro student became a long ani­
mated debate between the parent and the Board on issues 
such as segregation, the Board’s “good faith” , and the 
reason for the present lawsuit (see Hearing of William 
Massey—September 9, 1959). Subsequently, this pupil was 
rejected by the Board on the theory that: “While an atti­
tude of ‘sticking up for one’s rights’ is normally to be 
commended, this attitude could create an unbearable prob­
lem from the standpoint of the Board’s efficient and effec­
tive operation of the schools in an extremely difficult transi­
tion period” (Defendants’ Exhibit 6-AA).

After the hearings the Board acted on the requests. 
Twenty-four of the thirty-two white applicants were 
granted transfers out of their attendance areas, while

52 Despite this, one white child burst into tears during a hearing. The 
Board chairman opined that there was “ no provocation whatever” , Tr. 331-332.



27

only three Negro applicants were permitted to attend the 
schools in their areas and the other fourteen Negroes were 
required to remain in Horace Mann School (see Answer to 
Interrogatories 2 and 3). The fourteen rejected Negro 
applicants included all reassignment applicants who had 
intervened in this case.

POINTS AND AUTHORITIES

I.
The denial of injunctive relief permits an unjustified 

modification of the Court-approved desegregation plan 
and impairs rights of appellants secured by the plan, the 
former decrees, and the Fourteenth Amendment.

Aaron v. Cooper, 143 F. Supp. 855 (1956);
Aaron v. Cooper, 243 F. 2d 361 (1957);
Oklahoma v. Texas, 256 U. S. 70 (1921);
Cities Service Co. v. Securities & Exchange Comm., 

257 F. 2d 926 (3rd Cir. 1958);
Aaron v. Cooper, 257 F. 2d 33 (1958);
Gibson v. Board of Public Instruction, 272 F. 2d 

763 (5th Cir. 1959);
Mannings v. Board of Public Instruction, 277 F. 2d 

370 (5th Cir. 1960);
Kelly v. Board of Education, 159 F. Supp. 272 

(M. D, Tenn. 1958);
Brown v. Board of Education, 349 U. S. 294 (1955); 
Rippy v. Borders, 250 F. 2d 690 (5th Cir. 1957); 
Avery v. Wichita Falls, 241 F. 2d 230 (5th Cir. 

1957);
Cooper v. Aaron, 358 U. S. 1 (1958);
Bates v. Little Rock, 361 U. S. 516, 4 L. ed. 2d 480 

(1960);



28

Civil Rights Act of I960, Title I, 62 Stat. 769 
(1960), 18 U.S.C. §1509;

N. A. A. C. P. v. Alabama, 357 U. S. 449 (1958); 
1959).

Arkansas Pupil Placement Law of 1959 (Act No. 
461 of 1959);

Hopkins v. Lee, 6 Wheat. 109 (1821);
McCullough v. Virginia, 172 U. S. 102 (1898); 
United States v. Peters, 5 Cranch 115 (1809); 
United States v. Johnson County, 6 Wall. 166 

(1867);
Arkansas Pupil Assignment Law of 1956 (Initiated 

Act No. 2 of 1956) ;
Parham v. Dove, 271 F. 2d 132 (8th Cir. 1959); 
United States v. Swift & Co., 286 U. S. 106 (1932); 
Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 

1959);

II.

The denial of injunctive relief permits the permanent 
continuation of racially discriminatory policies and pro­
cedures tending to preserve segregation and thus de­
prives appellants of rights protected by the Fourteenth 
Amendment.

Brown v. Board of Education, 347 U. S. 483 (1954);
Bolling v. Sharpe, 347 U. S. 497 (1954);
Cooper v. Aaron, supra;
Dove v. Parham, ------ F. 2d ------  (8th Cir. Ang.

1960);
McLaurin v. Oklahoma State Regents, 339 U. S.

637 (1950);
McKissick v. Carmichael, 187 F. 2d 949 (4th Cir.

1951) ;



29

School Board of City of Norfolk v. Beckett, 260 F.
2d 18 (4th Cir. 1958);

Meyer v. Nebraska, 262 U. S. 390 (1923);
Pierce v. Society of Sisters, 268 U. S. 510 (1925); 
Jones v. School Board of City of Alexandria, Va., 

278 F. 2d 72 (4th Cir. 1960);
Mannings v. Board of Public Instruction, supra;
Evans v. Ennis, ------  F. 2d ------  (3rd Cir. July

1960);
Hill v. School Board of City of Norfolk, V a.,------

F. 2d------(4th Cir. Sept. 1960).

III.
The principles requiring exhaustion of administrative 

remedies and limiting parties to asserting personal 
rights, do not affect appellants’ standing to litigate the 
questions presented or their right to the relief prayed.

Mannings v. Board of Public Instruction, supra; 
Gibson v. Board of Public Instruction, supra;
Farley v. Turner,------F. 2d ------  (4th Cir. June

1960);
Holland v. Board of Public Instruction, 258 F. 2d 

730 (5th Cir. 1958);
Dove v. Parham, supra;
Parham v. Dove, supra;
Public Utilities Comm. v. United States, 355 U. S. 

534 (1958);
Carson v. War lick, 238 F. 2d 724 (4th Cir. 1956); 
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 

1959);
School Board of City of Newport News v. Atkins, 

246 F. 2d 325 (4th Cir. 1957);
Orleans Parish School Board v. Bush, 242 F. 2d 

156 (5th Cir. 1957).



30

A R G U M E N T

I.
The denial of injunctive relief permits an unjustified 

modification of the Court-approved desegregation plan 
and impairs rights of appellants secured by the plan, the 
former decrees, and the Fourteenth Amendment.

The 1955 plan was presented in 1956 as the Board’s 
defense to the prayer for immediate injunctive relief, and 
was judicially approved upon a determination that admin­
istrative obstacles to desegregation justified delay in the 
enforcement of Negro children’s constitutional rights. The 
plan was held “ adequate” in that it would “ultimately 
bring about a school system not based on color distinctions” , 
Aaron v. Cooper, 143 F. Supp. 855, 866 (1956). The effect 
of that decree was to delay all relief until September, 1957, 
and to delay further the enforcement of Negroes’ rights in 
junior high and elementary school grades. This Court af­
firmed, rejecting the appeal of the Negro pupils, Aaron 
v. Cooper, 243 F. 2d 361 (1957).

It is submitted that the 1955 plan has now been modified 
by the adoption of policies discarding the very aspects of 
the plan used to justify the original delay, and which for­
merly insured that the plan would “ultimately bring about 
a school system not based on color distinctions.” The de­
termination requires a comparison of the two plans.

The inquiry with respect to the original plan is similar 
to that made when res judicata is urged as a defense to a 
claim, in that—“What was involved and determined in the 
former suit is to be decided by an examination of the record 
and proceedings therein, including the pleadings, the evi­
dence submitted, the respective contentions of the parties,



31

and the findings and opinion of the court . . .  ” , Oklahoma 
v. Texas, 256 U. S. 70, 88 (1921); Cities Service Co. v. 
Securities & Exchange Comm., 257 F. 2d 926, 930 (3rd Cir. 
1958). There is no conflicting evidence about the meaning 
of the 1955 plan; no extrinsic evidence was offered at the 
1960 trial to explain the prior proceedings. The records of 
the 1956 proceedings are the only relevant sources on this 
issue, and this Court now has the same documentary record 
made available to the District Court.

When viewed as a whole the 1956 proceedings make it 
plain that the original plan contemplated the assignment 
of students without regard to race on the basis of non- 
racial attendance areas.53 True the text of the plan does 
not explicitly state this, though it does indicate that prob­
lems related to the attendance areas were reasons offered 
for delay.54 But the Board’s own presentation in 1956 was 
unequivocal. The Superintendent, flatly stated that all 
pupils would have the “basic right” to attend the schools 
in their areas;55 that pupils would be generally restricted 
in their areas by the new system ;56 that the “general policy” 
would be to require students to attend the school in their 
areas ;57 and that curricula would be planned to implement 
the attendance area grouping.58

The 1956 opinion (143 F. Supp. 855) did not recite all 
of the evidence, but it was clear that the uncontradieted 
presentation of the Board was accepted by the Court when 
it found that an objective of the plan was “ to provide the 
opportunity for children to attend school in the attendance 
area where they reside” (at 860). That opinion quoted the

53 See generally Statement of the Case, part II,
54 143 F. Supp. 855, 859, 860.
55 1956 Tr. 68-69.
56 1956 Tr. 62-63; 91.
57 1956 Tr. 125-126.
58 1956 Tr. 106-107.



32

Board’s plan and its provision that desegregation could 
not be started until completion of an additional high school 
(at 859), and that desegregation of junior high and ele­
mentary schools must be deferred even longer (at 860). 
These delays were justified on the ground that time was 
needed for establishment of attendance areas, which was 
more difficult at the lower levels due to the greater num­
bers of pupils and buildings involved. Both the District 
Court and this Court held, on the representations made 
by the Board, that the plan was one which would accom­
plish desegregation of the high schools in 1957, and the 
eventual complete desegregation of the entire system “not 
later than 1963” (143 F. Supp. at 861; 243 F. 2d at 362).

The Board’s present position is that it is bound only 
to end total segregation by some procedure, while appel­
lants urge that the Board must completely eliminate segre­
gation as proposed in the 1956 proceedings and must do 
more than break the pattern of total segregation by “token” 
desegregation. To support the position that it is operat­
ing “ on a non-discriminatory basis” within the “general 
framework” of the plan, the Board points to the well- 
known fact that only nine Negro pupils attended Central 
High School in 1957-58. However, the record of what the 
Board represented in 1956 is still clear. The fact that all 
Negro children did not receive the benefits promised can­
not eradicate the promise of the plan or the decrees which 
confirmed that promise.

The argument that a statement by this Court, subsequent 
to approval of the plan, Aaron v. Cooper, 257 F. 2d 33, 34 
(1958),59 concludes the matter, is founded upon identical

59 In the opinion considering the 2% year suspension request this Court’s 
summary of the facts included this sentence:

“In conformity with the plan, and under the direction of the Superintendent 
of Schools of the Little Kock School District (hereinafter called “ Dis­
trict” ), approximately 60 Negro students were meticulously screened prior 
to the opening of schools in September, 1957.”



33

reasoning. While this Court in August 1958 used the words 
“ in conformity with the plan”, the issue now presented— 
the meaning of the plan—was not an issue before this 
Court in 1958. The Court’s statement indicated only the 
facts about what was done after the Board secured ap­
proval of the plan. Nothing in the 1958 opinion lends 
credence to the theory that this Court determined the 
propriety of screening in 1958 when that was not in issue. 
The matter of “ screening” had not been mentioned in the 
opinion of Judge Lemley which preceded the 1958 appeal 
(163 F. Supp. 13). Decisively, the record and opinions in 
the 1956 trial and ensuing appeal—when the meaning of 
the plan was in issue—contain not one mention of “ screen­
ing” .

The conclusions of the Court below with regard to the 
1955 plan were that: “One provision of the plan was to 
permit any child who was assigned to a school wherein his 
race was in the minority to transfer to a school wherein 
his race was in a majority” (p. 14) ;eo and that “ It is 
equally clear that student assignment (at that time called 
“ screening” ) was provided for and permitted by the plan” 
(p. 14). It is respectfully submitted that both quoted con­
clusions rest upon nothing in the 1956 record, which indeed 
conclusively demonstrates the contrary. The Board has 
not documented them by any reference to the 1956 record.

As to the present pupil placement policies and proce­
dures, there is also no conflict in the evidence, which is de­
rived entirely from the records and testimony of the Board 
and its employees. The Board has not followed the prac­
tice of assigning all students without regard to racial con­
siderations and on the basis of attendance areas. Indeed, 
appellants do not understand that the Board even contends 
that its present policies: (a) give pupils the “basic right”

60 References are to pages of the typewritten opinion below.



34

to attend the schools in their attendance areas; (b) re­
strict students to their areas; or (c) disregard race in the 
assignment of pupils. The evidence assembled in part III 
of the Statement of the Case, supra, is overwhelmingly to 
the contrary.

One or two examples are sufficient to demonstrate the 
point. Documentary evidence makes it plain that the 
Board’s preregistration announcement, which served as 
the preliminary administrative step and ultimately de­
termined most pupils’ initial assignments, makes express 
reference to race and establishes optional registration 
places based on race.61 The record is equally clear that only 
Negro pupils wishing to attend formerly all white schools 
were subjected to “ screening” to obtain initial assignment 
in the area of their residence, and that no white child was 
“ screened” when merely seeking initial assignment in his 
attendance area.62 Further differences in the treatment 
of Negro and white pupils during the initial assignment 
and re-assignment stages are documented in detail in part 
III of the Statement of the Case, supra. These differences 
in treatment change the original plan for non-racial at­
tendance area grouping.

In several ways the approval of the pupil placement prac­
tices substantially impairs rights of Negro children pro­
tected by the 1955 plan and the decree approving the plan. 
The Board is now permitted to abandon policies, volun­
tarily adopted and confirmed by judicial decree, which 
guaranteed to all Negro students the eventual opportunity 
to attend desegregated schools. The guarantee of complete 
desegregation is replaced by a plan which does not guar­
antee systematic elimination of segregation at any time. 
The extent of desegregation now depends entirely upon

61 See note 37, supra.
62 See note 41, supra.



35

the will of the Board acting under a broad grant of dis­
cretion. The pupil placement regulations do not even pro­
hibit the use of race as an assignment standard; they merely 
make no mention of race. While the regulations have oper­
ated thus far to effect “ token” desegregation within the 
overall segregated system, nothing in the regulations re­
quires even this. Nothing in the pupil placement plan is 
even inconsistent with a return to complete segregation. 
Several opinions have pointed out that pupil placement 
laws were not incompatible with continued segregation, 
Gibson v. Board of Public Instruction, 272 F. 2d 763, 766 
(5th Cir. 1959); Mannings v. Board of Public Instruction, 
277 F. 2d 370, 372 (5th Cir. 1960); Kelly v. Board of Edu­
cation, 159 F. Supp. 272, 277 (M. D. Tenn. 1958).

The change from a plan which guaranteed eventual “ com­
plete” desegregation to one which does not insure a sys­
tematic approach to the elimination of discrimination is 
now permitted after enforcement of Negro children’s con­
stitutional right has been long delayed in deference to the 
very system now discarded. Delay was granted to allow 
development of an effective system for attendance area 
grouping-on a non-racial basis. It is submitted that to 
allow the Board to discard grouping by attendance areas 
after securing delay on that basis, produces an unconscion­
able result and is fundamentally unfair to the Negro 
children whose rights have been delayed in deference to 
the plan.

Under the new pupil placement plan segregation is con­
tinued, nevertheless, in all junior high and elementary 
schools, although the justification for continued segregation 
in those grades—the difficulty in establishing the attendance 
area system in those levels—becomes invalid when the 
Board abandons the policy of non-racial grouping by at­
tendance areas.



36

The rights of Negro children are further prejudiced by 
the modification of the original decree which is effected by 
the District Court’s refusal to retain jurisdiction of the 
matter even though desegregation of the system is in­
complete. The Court below concluded its opinion by stat­
ing:

And it appearing that the enforcement of those 
rights heretofore recognized and adjudicated are per­
sonal to those who may assert that their rights have 
been and are being violated, there is no reason for the 
court to retain jurisdiction, and the order will omit 
provision for the retention of jurisdiction (p. 30).

The relinquishment of jurisdiction leaves the Board free 
to impose further unilateral modifications of the plan (such 
as the delay of the second phase—see Defendants’ Exhibit 
5) without leave of court and without reference to the 
rights of Negro children. Negro children are left without 
a forum to seek redress against modifications, for the Dis­
trict Court has “washed its hands” of the matter. The 
Court supported its action by the statement that the en­
forcement of appellants’ rights was personal. It is sub­
mitted that the personal nature of Negro children’s rights 
under the Fourteenth Amendment is beside the point for 
the system is still almost completely segregated. The 
personal interest of Negroes in such situations was recog­
nized in Brown v. Board of Education, 349 U. S. 294, 300 
(1955), but the courts were directed to retain jurisdiction 
during the periods of transition to a non-discriminatory 
school system (349 U. S. at 301). An argument identical 
to appellees’ for dismissal of a pending case in the light of 
a pupil assignment law was rejected in Kelly v. Board of 
Education of the City of Nashville, supra, at 159 F. Supp. 
275-277. Accord Gibson v. Board of Public Instruction, 
supra at 767; see also Rippy v. Borders, 250 F. 2d 690, 694



37

(5th Cir. 1957); Avery v. Wichita Falls, 241 F. 2d 230, 235 
(5th Cir. 1957).

The relinquishment of jurisdiction leaves Negro pupils 
to “ run the gauntlet of a battery of experts” and vague in­
tangible criteria “ in attempting to meet the tests for ad­
mission to a ‘white’ school” without even the protection of 
“a court order making certain that the factor of race would 
not be a consideration in the solution of these many in­
tangible tests” , Mannings v. Board of Public Instruction, 
supra at 375.

The Court below expressed the belief that “ as time 
passes and the transition progresses, application of the 
same standards and criteria will progressively produce 
entirely different results . . . ” (pp. 29-30). It is sub­
mitted that an optimistic expectation is no substitute for 
retention of jurisdiction. Even if Brown v. Board of Ed­
ucation, supra, did not require retention until segregation 
was completely eliminated, it would be compelled by the 
long history of efforts by the Board and other state officers 
to impede desegregation. The events that followed ap­
proval of the Board’s own plan have already belied the 
expectation that the plan would be implemented with dis­
patch without the need for judicial enforcement.

Another fundamental change of the original plan ef­
fected by pupil placement is less obvious but is of vital 
importance. Originally responsibility for initiative in 
ending the dual-racial school system was assumed by 
the school authorities through adoption of the attendance 
area grouping system. This was undoubtedly proper for 
the Supreme Court said in Cooper v. Aaron, 358 U. S. 1, 
7 (1958):

State authorities were thus duty bound to devote 
every effort toward initiating desegregation and bring­



38

ing about the elimination of discrimination in the pub­
lic school system.

The pupil placement plan shifts the burden of initiative. 
Now initial assignments are made on racial grounds—i.e., 
“normal” assignments determined on the basis of the pre­
existing pattern of segregation.63 This compels the indi­
vidual Negro family to take the initiative and protest an 
assignment made on the basis of race by running the 
“ gauntlet” of the Board’s criteria. This is significant, be­
cause in addition to the inconveniences involved in pursu­
ing the re-assignment process, Negro parents and students 
who do apply to “white” schools become conspicuous ex­
ceptions to the general segregated pattern, and the focus 
of the resentment and reprisals of elements of the com­
munity opposing desegregation. This case contains ample 
information revealing the opposition to desegregation 
among both public officials and private persons in Little 
Rock, Cooper v. Aaron, supra. Cf. Bates v. Little Rock, 
361 U. S. 516, 4 L. ed. 2d 480, 486 (1960). Indeed, the 
existence of private efforts to impede desegregation led 
Congress to adopt the Civil Rights Act of 1960, Title I, 
62 Stat. 769 (1960), 18 U. S. C. §1509, to provide addi­
tional criminal sanctions to meet the problem of obstruction 
of federal court orders.

The pupil placement plan shifts the burden of initiative 
to Negro parents and students—a burden increasing the 
requirement that Negro students exercise the courage re­
quired to advance an unpopular cause—and purports to 
relieve the Board of the obligation to take the initiative 
in eradicating the segregation system. The Board’s only 
obligation under the placement plan is to screen those 
Negroes who have the courage to demand reassignment

63 See note 43 supra and accompanying text.



39

after the Board assigns them to the all-Negro school. The 
Board has thus established a governmental framework for 
the full play of private forces working to prevent desegrega­
tion. The “ interplay of governmental and private action” 
operates to preserve the segregated status quo, cf. 
N. A. A. C. P. v. Alabama, 357 U. S. 449, 463 (1958).

Neither the Arkansas Pupil Placement Law of 1959 (Act 
No. 461 of 1959), nor the Board’s regulations can justify 
this type of “whittling-away” at the desegregation plan 
previously ordered enforced by the courts. Just as the 
21/2 year suspension request,64 the school-leasing scheme,65 
and the school-closing scheme66 could not justify the com­
plete preservation of segregation, so the Pupil Placement 
Law must fail in its more subtle attempt to limit rights 
secured under the judgments of the federal courts.

The Arkansas statute directly purports to block any 
plan of desegregation providing for reorganization to a 
simple non-racial attendance area system; Section 2 of 
Act 461 of 1959 condemns,

any general or arbitrary reallocation of pupils here­
tofore entered in the public school system according 
to any rigid rule of proximity of residence or in ac­
cordance solely with request on behalf of the pupil . . .

Section 3 of the Act provides that school districts “ are not 
required to make any general reallocation of pupils . . . 
and shall have no authority to make or administer any 
general or blanket order to take effect from any source 
whatever . . .  ” .

64 257 F. 2d 33, 40; 358 U. S. 1.

65 261 F. 2d 97.
66 172 F. Supp. 944.



40

It is submitted that decrees of courts of the United States 
may not be modified by state legislative pronouncements 
such as these. Rights obtained under the judgments of 
the courts of the United States are beyond state legislative 
or administrative power to reach or destroy, directly or 
indirectly. Hopkins v. Lee, 6 Wheat. 109 (1821); McCul­
lough v. Virginia, 172 U. S. 102 (1898); Cooper v. Aaron, 
supra, at 18-19; United States v. Peters, 5 Cranch 115, 136 
(1809). “ [S]tate laws, whether general or enacted for the 
particular case, cannot in any manner limit or affect the 
operation of the process or proceedings in the federal 
courts.” United States v. Johnson County, 6 Wall. 166, 195 
(1867).

The Supreme Court of the United States in this very 
case recognized that the Arkansas Pupil Assignment Law 
of 1956 was a part of the “program designed to perpetuate 
in Arkansas the system of racial segregation which this 
Court had held violated the Fourteenth Amendment” , 
Cooper v. Aaron, supra, at 8-9. The Court said at 358 U. S. 
1,4:

We are urged to uphold a suspension of the Little 
Rock School Board’s plan to do away with segregated 
public schools in Little Rock until state laws and efforts 
to upset and nullify our holding in Brown v. Board 
of Education have been further challenged and tested 
in the courts. We reject these contentions.

In 19.58 the Little Rock School Board itself told this 
Court in this case that the Arkansas Pupil Assignment 
Law of 1956 (Initiated Act No. 2 of 1956) was adopted 
“ to impede the process of integration”  (Appellees’ Brief, 
p. 45, 257 F. 2d 33). There is no substantial difference 
between the 1956 law and the law presently invoked by 
the Board, see Parham v. Dove, 271 F. 2d 132, fn. 3 (8th 
Cir. 1959).



41

Appellants submit that no new circumstances could jus­
tify the particular modifications of the 1955 plan that have 
been accomplished by the Board, and that the Board has 
made no showing of changed circumstances justifying any 
modification. Indeed, the Board made no effort to do so, 
contending that it did not need leave of court to adopt 
pupil placement because the 1955 plan permitted it.

The general rule is that only a clear showing of gross 
injustice caused by changes in material circumstances jus­
tifies the modification of even an injunctive decree entered 
by the consent of both parties, United States v. Swift & Co., 
286 U. S. 106 (1932). In this case the Board’s plan for 
desegregation was imposed over the objection of the plain­
tiffs and delayed the enjoyment of the personal consti­
tutional rights of all Negro children in the system. After 
such delay, at the instance of the Board, only a really ex­
traordinary change of circumstances could justify any mod­
ification that operates to the disadvantage of Negro chil­
dren.

The reasoning and holding in the Swift case is instruc­
tive ; at 286 U. S. 106,119-120, the Court wrote:

We are not framing a decree. We are asking our­
selves whether anything has happened that will justify 
us now in changing a decree. The injunction whether 
right or wrong, is not subject to impeachment in its 
application to the conditions that existed at its mak­
ing. We are not at liberty to reverse under the guise 
of readjusting. . . . Nothing less than a clear showing 
of grievous wrong evoked by new and unforeseen con­
ditions should lead us to change what was decreed 
after years of litigation with the consent of all con­
cerned. . . . Wisely or unwisely they [defendants] sub­
mitted to these restraints upon the exercise of powers 
that would normally be theirs. They chose to renounce



42

what they might otherwise have claimed, and the decree 
of a court confirmed the renunciation and placed it 
beyond recall.

What was then solemnly adjudged as a final com­
position of an historic litigation will not lightly be un­
done at the suit of the offender, and the composition 
held for nothing.

In rejecting a request for modification of a particular 
restraint, the Court said that the question was whether 
modification “ can he made without prejudice to the inter­
ests of the classes whom this particular restraint was 
intended to protect,” 286 U. S. 106, 117-118. Another point 
in the Swift opinion is also relevant in appraising the 
complex pupil assignment criteria. At 286 U. S. 119 the 
Court stated:

The difficulty of ferreting out these evils and repress­
ing them when discovered supplies an additional rea­
son why we should leave the defendants where we find 
them, especially since the place where we find them 
is the one where they agreed to be.

The issue is thus not whether the Little Bock School 
District has general power to adopt abstract and intangible 
assignment standards. It is whether the District, having 
adopted a simple objective standard promising specific 
practical results, and having obtained judicial approval 
of delay to implement that objective standard, may now 
substitute abstract and intangible assignment standards 
which promise nothing. Appellants submit that the answer 
is plainly—“No” .

The Court below emphasized the good faith of the Board’s 
present members, their dedication to their duties, and the 
fact that they have brought “ order out of chaos” by re­



43

opening the closed schools. The opinion mentioned the 
“ chaotic conditions that existed in the Little Eock high 
schools during the school year of 1957-58” and said that 
they “cannot be forgotten by a law abiding people” (p. 30).

It is submitted that neither the good faith of the Board, 
nor the difficulties which arose because of opposition to 
desegregation (including the closing of the schools, the 
turnover of personnel, the need for security arrangements, 
etc.), can justify modification of the plan to the prejudice 
of the rights of Negro children. Good faith and “ practical 
difficulties” caused by the actions of other state officers 
could not justify the earlier 2y2 year suspension request 
(257 F. 2d 33, 38-40; 358 U. S. 1, 15-16). In like manner, 
good faith cannot now justify a denial of the rights of Negro 
pupils on the ground that difficult problems were created 
by the tragic school-closing. Negro children did not close 
the schools; state officials closed them to prevent Negro 
children from having a non-segregated education, Aaron 
v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959). Negro 
pupils were not responsible for the chaos of 1957-58 as 
was determined long ago, 257 F. 2d 33, 39.67 If the present 
modification of the 1955 plan is permitted, those respon­
sible for closing the schools and the “ chaotic conditions” 
of 1957-58 will have prevailed at last, and the 1955 plan 
will have been “watered down” .68

67 This Court stated:
It is more accurate to state that the fires, destruction o f property, bomb 

threats, and other acts of violence, were the direct result of popular 
opposition to the presence of the nine Negro students. To our mind, there 
is a great difference from a legal standpoint when the problem in Little 
Bock is stated in this manner.

68 At 257 F. 2d 33, 40, the Court wrote:
We say the time has not yet come in these United States when an order 

o f a Federal Court must he whittled away, watered down, or shamefully 
withdrawn in the face of violent and unlawful acts o f individual citizens 
in opposition thereto.



44

The Supreme Court in Cooper v. Aaron, supra, at 17, 
said that the rights asserted by appellants

. . . can neither be nullified openly and directly by 
state legislators or state executive or judicial officers, 
nor nullified indirectly by them through evasive 
schemes for segregation whether attempted “ inge­
niously or ingenuously” . Smith v. Texas, 311 U. S. 
128,132.

Whether the pupil placement policies are viewed as the 
products of an “ ingenious” discriminatory intent, or as 
the products of a good faith, honorable, “ ingenuous” effort 
to solve problems caused by opposition to desegregation, 
they must nevertheless be rejected as unjustifiably modify­
ing the original plan to the detriment of the Negro pupils 
entitled to the benefits of that plan.

II.
The denial of injunctive relief permits the permanent 

continuation of racially discriminatory policies and pro­
cedures tending to preserve segregation and thus de­
prives appellants of rights protected by the Fourteenth 
Amendment.

Appellants object to the procedures and policies employed 
by the Board in connection with both initial assignments 
and re-assignments, on the related grounds that they oper­
ate to perpetuate a general pattern of segregation and im­
pose and confer unequal burdens and benefits on a racial 
basis, thereby violating the equal protection and due process 
clauses of the Fourteenth Amendment. Racial discrimina­
tions have long been regarded as prohibited by the equal 
protection clause.69 Brown v. Board of Education, 347 U. S.

69 Among the early opinions see for example: Gibson v. Mississippi, 162 
U. S. 565, 591 (1896) ;  Slaughterhouse Cases, 16 Wall. 36, 81 (1873).



45

483 (1954) held that racial segregation in public schools 
was per se discriminatory and prohibited by the Fourteenth 
Amendment. The Court also held that segregation in public 
education is a discrimination “ so unjustifiable as to be 
violative of due process”, Bolling v. Sharpe, 347 U. S. 497, 
499 (1954); Cooper v. Aaron, 358 U. S. 1,19 (1958).

In Little Rock’s placement plan initial assignments of the 
vast majority of pupils are made on what a board member 
called a “ normal” assignment basis.™ It is plain that “nor­
mal assignments” are defined by reference to race and 
attendance areas. Pupils generally were assigned where 
they registered (if such assignment would not result in 
desegregation); places of registration having been desig­
nated on the basis of attendance areas with specific excep­
tions based on race.70 71 Students were given “elections” to 
register at (and ultimately to attend) schools outside their 
areas if they were white students living in the Negro school 
area (Mann High) or Negro students living in a white 
school area (Hall and Central).72 73 Assignments outside of 
residence areas which were consistent with and maintained 
the segregated pattern were granted as a matter of course.78 
However, the 59 Negro students who registered in the all- 
white schools w7ere not assigned routinely to those schools 
though they met the residence requirements. Indeed, only 
eleven of the 59 Negroes who registered at white schools 
were considered individually by the Board, and only six 
initially were assigned to the schools where they registered. 
The only Negroes considered for initial assignment in white 
schools were five Negroes who had attended Central High 
in 1957-58, and six students who registered at Hall High.74

70 See note 43, supra.
71 See notes 23-30, supra.
72 Ibid.
73 Ibid.
74 See notes 41 and 42, supra.



46

Forty-five Negro registrants at Central, and three at Tech­
nical, were assigned to the all-Negro Mann High without 
any application of the Board’s assignment criteria. All of 
the plaintiffs and intervenors (appellants here) were in this 
latter group.75 The Board’s asserted justification for this 
action is that it did not have sufficient information to assign 
these students to a school where their race was in a 
minority, and that it had insufficient time to obtain the 
information prior to initial assignments.76

The “ insufficient information” point is inconsistent with 
the Board’s actions, because the Board assigned three 
Negroes to Hall and rejected three others having the same 
information it had for the forty-five pupils not considered; 
i.e., the academic record folders. With respect to “ insuffi­
cient time” , the Board did not even seek or obtain any study 
or recommendation about these pupils from the Superin­
tendent or his staff,77 even though the placement regulations 
specifically provided for such recommendations.78

But appellants’ basic objection does not proceed from 
such fine determinations. Fundamentally both the “ insuffi­
cient time” and “ insufficient information” arguments pro­
ceed upon an explicit assumption that the Board is entitled 
to measure Negro pupils applying to predominantly or 
all-white schools by the use of criteria applied to no other 
pupils in the system during the initial assignment stage. 
Appellants’ objection is addressed to this assumption and 
the actions predicated upon it.

The necessity for applying the criteria only to Negro 
students was expressed by the statement that it was “ safer”

75 Iiid .
76 Defendants’ Answer to Interrogatories 6 and 7.
77 Tr. 128.
78 See Opinion below, fn. 2.



47

to assign Negroes to an all-Negro school unless the Board 
judged that they could make the adjustment to a school 
where their race was in a minority.79 The Board’s position 
is that it is better to assign Negroes to an all-Negro school 
unless the Board is satisfied that they can adjust in the 
predominantly white school,80 and inferentially that the 
Negroes had no complaint about this racial assignment be­
cause they were given a later opportunity to file a protest 
and use the re-assignment machinery.81

It is submitted that the initial assignments, made ex p a rte  
on an admitted racial basis, cannot be justified by the 
availability of the reassignment protest machinery even 
assuming (and this did not actually occur) that the later 
reassignment process was conducted without further dis­
crimination. This is so, because the racial initial assign­
ments place Negroes in the position of having to file a 
protest and pursue the reassignment machinery merely to 
obtain rights routinely accorded to all white students with­
out the necessity of such protests; e.g., the right to attend 
the school in the area of residence. It may be said that 
some white students were required to follow the protest 
machinery. But the vital point is that none were required 
to do so merely to obtain the right to attend the school in 
their area of residence; all white students were given this 
right as a matter of course.82

During the reassignment process (ten of the fourteen 
named plaintiffs submitted to the procedure) the discrimi­
nation begun in the initial assignment phase was com­
pounded. Negro pupils began the reassignment process 
situated differently from all white pupils because all of the

79 Defendants’ Answers to Interrogatories 6 and 7; Tr. 323-325.
80 Ibid.
81 Tr. 168.
82 See note 25.



48

Negroes merely sought to attend the schools in their areas.83 
All of the Negroes were given special IQ tests, while only 
six of the thirty-two white applicants were tested; all 
Negroes were interviewed by a social worker, while only 
three white families were interviewed; three out of 17 
Negro applications were granted, while twenty-four of 
thirty-two white applications were granted.84 The statis­
tical results may not conclusively demonstrate discrimina­
tion, but they become meaningful when considered against 
the background of special standards applied to Negroes.

The special tests and interviews are basically irrelevant 
in terms of the ordinary admission standards, and only 
have meaning in light of the theory that Negroes applying to 
predominantly white schools needed special qualifications. 
The Stanford-Binet test has not been and still is not used 
as a requisite for admission to high schools; the basic quali­
fication being promotion to the appropriate grade.85 All 
of the ten Negro plaintiffs who were given the tests obtained 
higher scores than some pupils already attending the pre­
dominantly white high schools, but none were accepted.86 
Basically the high schools are organized to accommodate 
students with varying achievement and intelligence levels 
who have succeeded in completing the lower grades.87 Thus 
the Negro pupils were required to take tests that had no 
relationship to the routine admission requirements, while 
most white reassignment applications were decided with­
out such tests, as were all of the initial assignments. The 
same principle applies to the social worker interviews, 
which were required of but three white reassignment appli­
cants and none of the pupils initially assigned to schools.

83 Tr. 87.
84 Tr. 225-26; 240-41; Plaintiffs’ Exhibit 7.
85 Tr. 235-37; Tr. 78-79.
86 Tr. 246-48.
87 Tr. 73-86.



49

It is plain, and presumably acknowledged by the Board, 
that it proceeded upon a theory that Negroes needed special 
qualifications for admission to predominantly white schools 
because they would be in a small racial minority in those 
schools. This determination necessarily proceeds from an 
assumption that there will be only a few Negroes admitted 
to the predominantly white schools—an assumption not 
based on the residential pattern since more Negroes lived 
in the Central Area than lived in the area of the all-Negro 
Mann school.88 The Board manifestly engaged in an attempt 
to select the Negroes it believed would adjust; the Board’s 
written findings and conclusions also bear this out.89

Assuming that the Board had adequate information to 
make such a judgment and that it made an honest effort to 
predict each child’s probability of success in the predom­
inantly white school, the procedure is nevertheless a viola­
tion of the Negro children’s constittuional rights, because 
they were singled out for the application of special stand­
ards on a racial basis. That the Board was motivated by 
its belief as to the welfare of the children cannot justify 
the racial discrimination imposed by subjecting the stu­
dents to siiecial standards, and relegating them to an all- 
Negro segregated school if they failed to satisfy the special 
tests.

The Court below approved the Board’s policy stating at 
page 28:

The courts have often recognized that many individual 
liberties guaranteed by the Constitution are not and 
cannot be unlimited. For example, there is no such 
thing as complete freedom of the press or speech, nor 
is there an unlimited or unrestrained freedom of stu­

88 Plaintiffs’ Exhibit 1.
89 Defendants’ Exhibit 6.



50

dents, white or colored, to select and “ crash” their way 
into a particular school under the guise of choosing the 
direction in which their constitutional advantages lie.

It is submitted that the ruling below is directly contrary 
to the principle stated by this Court in Dove v. Parham, 
------F. 2 d -------  (8th Cir., Aug. 1960):

An individual cannot be deprived of the enjoyment of 
a constitutional right, because some governmental 
organ may believe that it is better for him and others 
that he not have this particular enjoyment. The judg­
ment as to that and the effect upon himself therefrom 
are matters for his own responsibility.

The Dove ruling rests upon a sound foundation of prece­
dent and should be reaffirmed and applied to the present 
case. The Supreme Court dealt with a similar problem in 
McLaurin v. Oklahoma State Regents, 339 U. S. 637, 641-42 
(1950):

It may be argued that appellant will be in no better 
position when these restrictions are removed, for he 
may still be set apart by his fellow students. This we 
think irrelevant. There is a vast difference—a Con­
stitutional difference—between restrictions imposed by 
the state which prohibit the intellectual commingling 
of students, and the refusal of individuals to com­
mingle where the state presents no such bar.

The Court of Appeals for the Fourth Circuit states the 
principle forcefully in McKissick v. Carmichael, 187 F. 2d 
949, 953-54 (4th Cir. 1951) :

We must give first place to the rights of the individ­
ual citizen, and when and where he seeks only equality



51

of treatment before the law, Ms suit must prevail. It 
is for Mm to decide in which direction his advantage 
lies.

See School Board of City of Norfolk v. Beckett, 260 F. 2d 
18, 19 (4th Cir. 1958) where Negro pupils rejected under a 
placement plan because of an apprehended “ injurious sense 
of isolation” were held entitled to immediate admission in 
all-white schools. See also Meyer v. Nebraska, 262 U. S. 
390 (1923) invalidating a state prohibition against foreign 
language instruction; and Pierce v. Society of Sisters, 268 
U. S. 510 (1925) invalidating state interference with the 
right to attend non-governmental schools.

Approval of assignment practices which proceed upon 
the assumption that each Negro child must establish to 
the Board’s satisfaction that his admission to a non-segre- 
gated school will benefit him, would indeed establish a 
unique proposition. A recent article suggests some logical 
consequences; Black, The Lawfulness of the Segregation 
Decisions, 69 Yale L. J. 421, 428 (1959) :

To have a confession beaten out of one might in 
some particular case be the beginning of a new and 
better life. To be subjected to a racially differentiated 
curfew might be the best thing in the world for some 
individual boy. A man might ten years later go back 
to thank the policeman who made him get off the plat­
form and stop making a fool of himself. Religious 
persecution proverbially strengthens faith. We do not 
ordinarily go that far, or look so narrowly into the 
matter. That a practice, on massive historical evidence 
and in common sense, has the designed and generally 
apprehended effect of putting its victim at a disadvan­
tage, is enough for law. At least it has always been 
enough.



52

The opinion of this Conrt in Dove v. Parham, supra, and 
four other recent appellate opinions reflect a common thesis 
that student assignment standards must be uniformly ap­
plied without regard to race, Jones v. School Board of City 
of Alexandria, Va., 278 F. 2d 72 (4th Cir. 1960); Mannings
v. Board of Public Instruction, supra; Evans v. Ennis,------
F. 2 d ------ (3rd Cir. July 1960), on rehearing,------  F. 2d
------(Aug. 1960) ; Hill v. School Board of City of Norfolk,
Va.,------F. 2 d -------  (4th Cir. Sept. 1960).

In disapproving a proposed pupil assignment plan in the 
Dove case, supra, this Court observed that the application 
of certain tests was proposed only for Negro students seek­
ing to enter white schools, without reference to any re­
organization of the school system on the basis of the tests, 
and not as a transitional step to effect desegregation.

In Jones, supra, the Court specifically condemned the 
“ maintenance of a dual system of attendance areas” , and 
the application of assignment criteria only to Negroes by 
applying them to transfer applications and not initial as­
signments.

In Mannings, supra, the Court held that proof that all 
initial assignments were made on the basis of the segrega­
tion pattern, with the assignment criteria applied on to the 
few Negroes who sought transfers to all-white schools, 
would afford a basis for injunctive relief (at 277 F. 2d 374- 
75).

The Evans v. Ennis, opinion on rehearing, supra, dealt 
primarily with the adequacy of Delaware’s grade-a-year 
plan, but the Court mentioned its view that admission re­
quirements must be non-discriminatory.

In the recent Hill opinion, the Fourth Circuit again stated 
the principles mentioned in Jones, supra, stating that the 
indiscriminate application of assignment criteria would



53

mean “that the concept of moving with a so called ‘normal 
stream’ based upon race can no longer be availed of in these 
situations.” The Court approved as “ interim measures 
only” the practice of making first grade assignments on a 
racial basis, where the trial court was requiring that 
Negroes promoted from elementary to junior high schools 
or from junior to senior high schools were entitled to enter 
formerly all-white schools without the application of special 
criteria, and it was contemplated that the system of non­
discrimination would move progressively to the lower 
grades.

Little Eoek’s racial options for assignments operate to 
establish assignments just as if the dual-racial school zones 
condemned in Jones, supra, were drawn on the attendance 
area map. For practical purposes the Mann area, for ex­
ample, is really the Central area for white students living 
there.

It should also be mentioned that neither the Board nor 
the Court below took the position that the pupil assignment 
program was an interim measure. Rather the Court below 
held that there was no discrimination, and merely “ the in­
discriminate application of the legal criteria and standards” 
(p. 29), and declined to retain jurisdiction of the matter.



54

III.

The principles requiring exhaustion of administrative 
remedies and limiting parties to asserting personal 
rights, do not affect appellants’ standing to litigate the 
questions presented or their right to the relief prayed.

The Court below held that the four students who did not 
pursue the reassignment procedures had no standing to 
protest the Board’s actions because of the doctrine requir­
ing exhaustion of administrative remedies (p. 17); and 
that no claim could be made by plaintiffs on behalf of other 
Negro students in the system who did not join the lawsuit 
(not even four who pursued the reassignment procedures) 
because persons must assert constitutional rights individu­
ally. It is submitted that neither general principle is appro­
priately applied to this case.

The holding based on the “ exhaustion” doctrine is in 
error in that the four pupils who did not pursue the re­
assignment process nevertheless must logically have had 
the right to object to modification of the 1955 plan, and to 
the racial initial assignments. The administrative remedy 
offered no forum for deciding either question, and was lim­
ited by the Board’s own rules to a consideration of the 
placement of one pupil at a time. Certainly the fact that 
some Negroes utilized the reassignment machinery enables 
the Court to view the total procedure in a more concrete 
manner, but the basic question of the legality of the initial 
assignment process where the criteria were applied only to 
Negro students could be readily decided if no student had 
pursued the reassignment machinery. Mannings v. Board 
of Public Instruction, supra, held that Negroes could main­
tain an action to enjoin a system of segregation without 
first having exhausted administrative procedures which per­



mitted only a consideration of applications to specific 
schools. Gibson v. Board of Public Instruction, supra, was 
the basis for the Mannings decision.90 The Fourth Circuit 
indicated agreement with Mannings in Farley v. Turner,
------ F. 2d ------ (4th Cir., June, 1960), where the Court
applied the “ futility” exception to the exhaustion rule. The 
theory of Mannings and Gibson is not “ futility” in the ordi­
nary sense that it is certain the Negroes would be rejected 
even if they followed the procedures, but rather reflects 
understanding that the procedures for assignment to a 
particular school are not adequate91 to secure the relief 
which plaintiffs sought i.e., an order requiring the abolition 
of the dual-racial school system.

Indeed, it was held in Holland v. Board of Public Instruc­
tion, 258 F. 2d 730 (5th Cir. 1958) that a Negro entitled 
only to attend the school in which he was assigned had 
standing to challenge the system of segregation. Indeed, 
in the recent Dove opinion Negro pupils who were held not 
entitled to enter the school they sought to attend, never­
theless were treated as having standing to object to a pro­
posed desegregation plan, and in earlier proceedings, Par­
ham v. Dove, supra, students who had not exhausted admin­
istrative remedies were held entitled to a general order 
prohibiting segregation.

Further the holdings in Mannings and Gibson are con­
sistent with general rules pertaining to exhaustion of

55

90 At 272 F. 2d 767, the Fifth Circuit indicated its view that various 
Fourth Circuit opinions were not to the contrary, including Carson v. W article, 
238 F. 2d 724 (4th Cir. 1956) ; and Covington v. Edwards, 264 F. 2d 780 (4th 
Cir. 1959).

91 Cf. School Bd. of City of Newport News v. Atkins, 246 F. 2d 325 (4th 
Cir. 1957), assignment law held inadequate remedy where state had fixed policy 
of closing desegregated schools; and Orleans Parish School Board v. Bush, 242 
F. 2d 156 (5th Cir. 1957) holding pupil assignment law inadequate for failure 
to provide standards.



56

administrative remedies, ef. Public Utilities Comm. v. 
United States, 355 U. S. 534, 540 (1958).

The holding of the Court below with respect to appel­
lants’ right to maintain a representative class action pre­
sents a question involving Rule 23(a)(3) Federal Rules of 
Civil Procedure, and requires analysis of the issues pre­
sented and the relief sought. It is generally true that liti­
gants can assert only their personal rights, although the 
rule has important exceptions.92 But this case merely re­
quires analysis of the claim for relief and the matter in 
controversy in terms of Rule 23(a)(3), with regard for 
the equitable policy of avoiding a multiplicity of litigation.

The requirements of Rule 23(a)(3) are met by this case 
in that the Negroes’ rights are several, they are members 
of a numerous class, their cases present common questions 
of law and fact, and common relief is sought, namely an 
injunction prohibiting certain discriminatory policies and 
requiring the Board to proceed with the 1955 plan for 
desegregation.

All Negro pupils in the Little Rock system may be repre­
sented in the sense that plaintiffs prayed for injunctive 
relief to prohibit discriminatory practices and requiring 
assignments on the basis provided by the 1955 plan. Such 
relief would benefit all Negroes in the school system, just 
as the approval of the three-stage plan delaying desegre­
gation limited the rights of all Negroes in the school system. 
It would be basically unfair if all Negro students’ rights 
are first limited in 1956 on the theory that the case is a

92 See for example Barrows v. Jackson, 346 U. S. 249 (1953) (white seller 
allowed to assert right of Negro purchaser as defense to damage suit on 
restrictive covenant) ; NAACP  v. Alabama, 357 TJ. S. 449 (1958) (organiza­
tion could assert rights of members to assoeiational privacy) ; Pierce v. Society 
of Sisters, supra (society could assert right of parents and pupils to private 
school education).



57

representative action, and then it is held that the enforce­
ment of their rights must be accomplished by a multiplicity 
of individual lawsuits. Equity rules do not normally work 
so unilaterally as the Board urges in this case. Rule 23 
(a)(3) serves the salutary purpose, traditional in equity, 
of avoiding a multiplicity of suits arising out of the same 
factual and legal situation. See Pomeroy, Equity Jurispru­
dence (Symons, 5th ed.) Vol. 1, Sec. IV, passim.

CONCLUSION

It is respectfully submitted that the judgment of the 
court below should be reversed.

Respectfully submitted,

W il e y  A. B r a n t o n

119 East Barraque Street 
Pine Bluff, Arkansas

T h u r g o o d  M a r s h a l l

J a m e s  M . N a b r it , III 
10 Columbus Circle 
New York 19, New York

Attorneys for Appellants