Raney v. Board of Education of The Gould School District Brief for Petitioners

    I n  t h e

§itprari£ (Emirt uf tty Uniteb
October Term, 1967 

No. 805

A rthur L ee R aney, et al.,

Petitioners,
v.

T he B oard of E ducation of T he Gould School D istrict, 
a Public Body Corporate, et al.

on writ of certiorari to the united states 
court of appeals for the eighth circuit

BRIEF FOR PETITIONERS

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
M ichael J. Henry

10 Columbus Circle
New York, New York 10019

J ohn W . W alker 
Norman Chacpikin

1304-B Wright Avenue 
Little B.ock, Arkansas 72206

Attorneys for Petitioners



I N D E X

Citations to Opinions Below .........    1

Jurisdiction......................................................................... 1

Questions Presented..................................................    2

Constitutional Provision Involved .................................  2

Statement ..................................................    2
New Construction to Perpetuate Segregation ....   4

Unequal Facilities and Programs .........................  6
Teacher Segregation ......................................    8
Intimidation.............................................................. - 9
Denial of Belief by the Courts Below .............-....  10

Summary of Argument ......-.........................................-  12

A rgument

The Court Below Erred in Dismissing the Com­
plaint Without Further Inquiry Into the Feasi­
bility of Grade Consolidation or Other Belief 
Which Would Disestablish Segregation ............. . 13
A. By Dismissing the Complaint, the Courts Be­

low Abdicated Their Besponsibility Under 
Brown v. Board of Education to Supervise 
Disestablishment of the Segregated System .... 13

B. Use of One School for Elementary Grades 
and the Other for Secondary Grades Is a 
Seasonable Alternative to a “ Choice” Plan 
Which Will Disestablish the Dual System .... 23

PAGE



11

C. Freedom of Choice Is Incapable of Disestab­
lishing Segregation in the Gould School Dis­

PAGE

trict ....................................................................... 27

Conclusion ........................................................................-...... 38

T able op Cases

Board of Public Instruction of Duval Co., Fla. v.
Braxton, 326 F.2d 616 (5th Cir., 1964) ............ .........  16n

Bradley v. School Board of the City of Richmond,
382 U.S. 103 (1965) ............................................ 17, 30n, 35

Brooks v. School Board of Arlington County, 324 F.2d
305 (4th Cir., 1963) ........................... .................. .......  14

Brown v. Board of Education, 347 U.S. 483 (1954);
349 U.S. 294 (1955) ........................... -........2, 3,13,14,15,

20, 22, 28, 30
Buckner v. Board of Education, 332 F.2d 452 (4th 

Cir., 1964) ........................................... -..............-......... 15

Calhoun v. Latimer, 377 U.S. 263 (1964) ........ 14,17n, 31n
Carr v. Montgomery County (Ala.) Board of Educa­

tion, 253 F. Supp. 306 (M.D. Ala. 1966) .................- 16n
Cooper v. Aaron, 358 U.S. 1 (1958) ............................ . 31
Cypress v. Non-Sectarian Hospital Assn., 375 F.2d 

648 (4th Cir., 1967) ..................-...... ......................... . 19

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla., 1965), aff’d 375 F.2d 158 (10th 
Cir., 1967) cert. den. 387 U.S. 931 (1967) ............ 16n, 24

Freeman v. Gould Special School District (No. 19,016 
8th Cir.) 4n



PAGE

iii

Goss v. Board of Education, 373 U.S. 683 (1963) ....... 31n
Griffin v. School Board of Prince Edward County, Va.,

377 U.S. 218 (1964) ................ .................. ..... 16n, 18, 31n
Kelley v. Altheimer, 378 F.2d 483 (8th Cir., 1967) ....11,12n,

26, 34
Kier v. County School Board of Augusta Co., Va., 249 

F. Supp. 239 (W.D. Va., 1966) ................. .. .............-  35
Louisiana v. United States, 380 U.S. 145 (1965) ....... 16n
McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950) .....................    34
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) 34
Moses v. Washington Parish School Board, ------  F.

Supp.------ (E.D. La., Oct. 19, 1967) .......................... 27
N.L.R.B. v. Newport News Shipbuilding & Drydock 

Co, 308 U.S. 241 (1939) ....................... .......................  16n

Rogers v. Paul, 382 U.S. 198 (1965) .............................. 31n
Schine Chain Theatres v. United States, 334 U.S. 110

(1948) ...............      16n
Singleton v. Jackson Municipal Separate School Dis­

trict, 355 F.2d 865 (5th Cir., 1.966) .......... .................  29n
Smith v. Hampton Training School, 360 F.2d 577 (4th

Cir., 1966) ........................     15
Smith v. Morrilton, 365 F.2d 770 (8th Cir., 1,966) ....14,17n 
Sweatt v. Painter, 339 U.S. 629 (1950) ..................... 34
United States v. Jefferson County Board of Educa­

tion, 372 F.2d 847, affirmed en bane, 380 F.2d 385 
(5th Cir., 1967) cert, denied sub nom. Caddo Parish
School Board v. United States, ------ U.S. ------ , 19
L.ed 2d 103 (1967) ................................_15n, 22, 29n, 30n,

33, 36n



IV

PAGE

United States v. National Lead Co., 332 U.S. 319
(1947) ................................................................ -........... 16n

United States v. Standard Oil Co., 221 U.S. 1 (1910).... 16n

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir., 1965) ...................................................... 16n

Yarbrough v. Hulbert-West Memphis, 380 F.2d 962 
(8th Cir., 1967) .............................................................  15

T able op Statutes and R egulations

28 U.S.C. §1254(1) ..........................................................  1
45 C.F.R. §80.4(c) (1) (1967) ..........    21
45 C.F.R. §181.11 (1967) .................................................  24
45 C.F.R. §181.54 (1967) .................................................  32n

Other A uthorities

Conant, The American High School Today (1959) ..... 26
Racial Isolation in the Public Schools, A report of the 

U.S. Commission on Civil Rights, 1967 ................ 19, 28n
Southern School Desegregation, 1966-67, a Report of 

the U.S. Commission on Civil Rights, July 1967 ....19, 28n,
30n, 36n,37n

Survey of School Desegregation in the Southern and 
Border States, 1965-1966 ............................................  30n

The Courts, H.E.W., and Southern School Desegre­
gation, 77 Yale L.J. 329 (1967) ..........................19, 20, 21

Title VI, The Guidelines and School Desegregation 
in the South, 53 Va. L. Rev. 42 (1967) .......... 3, 21n, 32n



I n the

(Emxrt nf %  States
October Term, 1967 

No. 805

A rthur L ee R aney, et al.,

v.
Petitioners,

T he B oard of E ducation of T he Gould School D istrict, 
a Public Body Corporate, et al.

ON writ of certiorari to the united states
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONERS

Citations to Opinions Below

The unreported April 26, 1966 opinion of the district 
court is reprinted in the appendix, at pp. 12-24. The August 
9, 1967 opinion of the court of appeals is reported at 381 
F.2d 252 and is reprinted in the appendix at pp. 143-52.

Jurisdiction

The judgment of the court of appeals was entered August 
9, 1967 and petition for rehearing was denied September 
18, 1967, appendix, pp. 153, 154. The petition for writ of 
certiorari was filed November 9, 1967 and the writ was 
granted January 15, 1968. The jurisdiction of this Court 
is invoked under 28 U.S.C. Section 1254(1).



2

Questions Presented

1. Whether the court of appeals erred in denying all re­
lief, dismissing the complaint, and declining to order the 
district court to supervise the desegregation process on the 
ground that the school board was acting in good faith and 
the Department of Health, Education and Welfare had ini­
tially. approved the board’s plan as facially sufficient to 
comply with Title VI of the Civil Rights Act of 1964.

2. Whether—-13 years after Brown v. Board of Educa- 
tion,•—a “choice” plan which maintains an all-Negro school 
is constitutional in a system with only two nearby school 
plants, one traditionally Negro and the other traditionally 
white, although assigning elementary grades to one school 
and secondary grades to the other is a feasible alternative 
assignment method which would immediately desegregate 
the system.

Constitutional Provision Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

Fifteen Negro students and their parents filed a class 
action September 7, 1965, to enjoin the Gould School Board 
from (1) requiring them and all others similarly situated 
“to attend the all-Negro Field School” (2) “providing pub­
lic school facilities for Negro pupils . . . inferior to those 
provided for whites” (3) “expending any funds for . . . 
white Gould Public Schools until and unless the Field 
School is made substantially equal” and (4) “otherwise



3

operating a racially segregated system” (A. 3-8). During 
trial, November 24, 1965, plaintiffs first learned of a pro­
posed school construction program and, with leave of court, 
amended the complaint to pray that replacement high school 
classrooms he constructed on the premises of the white 
Gould High School, rather than at the Negro Field School 
(A. 12, 19, 138).

Gould is a small district of about 3,000 population, and 
total school enrollment of 879 in the 1965-66 school year 
(A. 79-80). Until the 1965-66 school year the district had 
not taken any steps to comply with Brown v. Board of Edu­
cation, and operated completely separate schools for Negro 
and for white pupils with racially separate facilities (A. 31). 
All Negro students were instructed in a complex of build­
ings known as the Field Schools and all white students were 
taught in a complex of buildings known as the Gould 
Schools (A. 31). The two complexes are located about 10 
blocks from each other; each contains an elementary school 
and a secondary school (A. 31, 73).

The school district did not consider undertaking any de­
segregation program until the United States Department 
of Health, Education, and Welfare issued Guidelines imple­
menting Title VI of the Civil Rights Act of 1964 (A. 121-23). 
The district adopted a “ freedom of choice” plan of desegre­
gation for all 12 grades, but later obtained approval from 
H.E.W. to withdraw three grades from the plan’s operation 
for 1965-66 because of “ overcrowding” in those grades 
caused by Negro requests to go to the white school. There 
were no white requests to go to the Negro school. As a re­
sult some 28 Negro pupils, in the 5th, 10th and 11th grades 
were turned away from the white school (A. 14, 53-60, 62- 
63). During the 1965-66 school year, the enrollment figures 
for the school district were as follows (A. 79-80):



4

Grades Negro White

Field Complex 1-12 477 0
Gould Complex 1-12 70 299

During the 1966-67 school year, the second year of “freedom
of choice” , the enrollment figures were as follows .1

Grades Negro White

Field Complex 1-12 477 0
Gould Complex 1-12 71 304

New Construction to Perpetuate Segregation

At the time this action was filed the white Gould High 
School, constructed in 1964, was the most modern facility 
in the district (A. 89). Adjacent white Gould Elementary 
School was constructed in 1947, originally as a high school, 
and was subsequently converted to an elementary school 
(A. 81-82). The Negro Field Elementary School is also 
modern, constructed in 1954; gymnasium and auditorium 
were added in 1960 (A. 89-91). Negro high school class­
rooms, however, were located until the 1967-68 school year 1

1 The record in this case, like the records in all school desegregation 
cases, is necessarily incomplete by the time it reaches this Court. In this 
case the 1965-66 school year was the last year for which the record sup­
plies desegregation statistics. Information regarding student and faculty 
desegregation during the 1966-67 and 1967-68 school years was obtained 
from official documents, available for public inspection, maintained by the 
United States Department o f Health, Education and Welfare. This in­
formation is based upon data supplied to the United States by respondent 
school district. Certified copies of these documents and an accompanying 
affidavit were deposited with this Court, and served upon opposing counsel 
with the petition for writ o f certiorari.

The school board has also been sued by 6 Negro teachers claiming dis­
criminatory termination of employment. The record in that case, Freeman 
v. Gould Special School District, No. 19,016, 8th Cir. (R. 165-67) shows 
that for the school year 1967-68 approximately 80 to 85 Negroes attend 
the Gould complex and no whites attend the Field complex.



5

in a building, constructed in 1924, eoncededly obsolete and 
in every respect inferior to the white high school (A. 10,16, 
130). Promises by the Board to improve the Negro high 
school date back to 1954, a decade before any consideration 
was given to desegregation, and apparently resulted from 
a suit to require equal facilities for Negroes (A. 131-132, 
129). Actual construction of a new high school building on 
the site of the Field School, however, did not begin until 
January, 1967. The new building opened in Fall, 1967, sub­
sequent to the decision of the court of appeals (A. 65, 66).

Plaintiffs sought to shift the construction site of the new 
high school to the site of the white school by a timely 
amendment during a November 24, 1965 hearing, immedi­
ately after learning of the proposed construction (A. 137- 
138). The district court allowed the amendment (A. 12, 19) 
but refused to grant relief in an opinion in April 26, 1966. 
Because of illness the court reporter did not complete the 
transcript until one year later—April 1, 1967—-thereby de­
laying determination of the appeal (A. 140, 152). Because 
the construction of the replacement facility at the Negro 
school had progressed by the time briefs were filed in the 
court of appeals, petitioners asked that court to require a 
utilization of the Gould School site as the single secondary 
school, and the Field School site as the single elementary 
school for the district (A. 144).2 It was urged that such a 
utilization was practical, economical, educationally superior 
and would disestablish segregation; on the other hand to 
permit the racial construction to stand unmodified would 
make disestablishment by “choice” plan impossible.

2 Petitioners presented to the court of appeals an affidavit o f their 
attorney stating that as o f April, 1967 the outer shell of the new building 
was completed but that a number of walls, plumbing facilities and fixtures 
and interior walls, the roof and flooring had not been completed (A. 141, 
145).



6

At trial, the superintendent admitted that the old Field 
High School was clearly a “Negro” school, and probably 
would continue to he an all-Negro school if replaced with 
a new facility at the Field site (A. 67). He also conceded 
that it was inefficient for a small school district to construct 
a new secondary school when it already had one. There 
would be duplication of libraries, auditoriums, agriculture 
buildings, science laboratories, cafeterias, and other facil­
ities (A. 74-76). He was asked (A. 76):

Q. “This means that you have to spend a lot more 
money for equipment and for materials for the Negro 
school in order to just have an equal department with 
the white school!”

He answered:
“ I suppose so. It would take more money to build 

a new building and equip it.”

Unequal Facilities and Programs

The record shows that for many years prior to con­
structing the new Negro high school in 1967 the board 
tolerated substantial inequalities between the segregated 
schools. The old all-Negro high school, a wooden frame 
structure, was admitted by the president of the board to 
have been “grossly inferior” to the white high school (A. 
10, 16, 130). He said that the reason no money was spent 
on the building was that every dollar available had been 
exhausted on other uses (A. 130). Nevertheless, a new all- 
white high school was constructed at the Gould site (rather 
than at the Negro Field site) in 1964 following a tire which 
destroyed the old high school building there (A. 83).



7

The Negro Field High School is completely unaccredited; 
the Arkansas State Department of Education rates the 
Field Elementary School class “ C” (A, 31) and the white 
Gould Schools “A ” (A. 10). The Negro school bathrooms 
were in a building separated by a walk exposed to weather 
(A. 51-52); the white schools had rest rooms in each build­
ing (A. 50, 52). There is an agriculture building at the 
predominantly white high school, and a hot lunch program 
for elementary and secondary students but none at the 
Negro site (A. 40-41). The library at the white high school 
contains approximately 1,000 books, and a librarian (A. 42- 
43). The Negro school has only three sets of encyclopedias, 
one purchased a month before the hearing in this case (A. 
113-114). These books were kept in the principal’s office, 
rather than in a separate library, and the principal, in 
effect, functions as librarian, to the extent that such function 
is required (A. 114). The superintendent had a complete 
lack of knowledge of the extent of library facilities at the 
Negro school (A. 42).

The science facilities at the Negro high school were 
inferior to those of the predominantly white high school, 
even though the former was larger (A. 43-44). Pupils who 
attend Gould generally have an individual desk and chair; 
the standard pattern at the old Negro school was a folding 
table with folding chairs and three students on each side, 
sitting at the table (A. 47-48).

The “per pupil” expenditure is less at Field School than 
for the formerly all-white, now predominantly white, Gould 
School (A. 44). The system has charged “enrollment fees” 
to pupils at Field, but not at Gould (A. 44-45). It was 
also the practice to require Negro students to pick cotton 
in the fields during class time to earn money for school 
fund raising projects, and to pay “ enrollment fees” (A. 
44-46).



8

Unequal per pupil expenditures are also reflected in 
higher student-teacher ratio at the Negro school i.e., the 
average class size is larger (A. 59-62). There are 14 teach­
ers at Gould, but only 16 teachers at Field although it has 
about 130 more students (A. 60-61). The range of Negro 
teacher salaries is from $3,870 to $4,500; for white teachers, 
the range is from $4,050 to $5,580 (A. 33-39).

There are also disparities in course offerings. Neither 
vocational agriculture nor journalism, offered at Gould, are 
offered at Field (A. 52-53). There is a similar disparity in 
extracurricular activities. The larger Negro school, for 
example, has no football program but there is a football 
team at the white school (A. 106-107). There is a Future 
Farmers of America vocational club at the white school, 
but none at the Negro school “because they do not have an 
agricultural department” (A. 106).

Teacher Segregation

The school system has no “definite plans for faculty 
desegregation” (A. 67, 68). In 1965, the board “did not 
have any plans to reassign anybody” (A. 69). By the 1966- 
67 school year, the only faculty desegregation which had 
taken place was assignment of one part time white “super­
visor” to the Negro school3 and for the 1967-68 school year 
the only anticipated change was addition of a part time 
white teacher at the Negro school. Faculty meetings had 
not been integrated (A. 68). At trial, the superintendent 
stated that “ . . . we have kept that in the background, Ave 
want to get the pupil integration question settled and run­

3 See Note 1, supra.



9

ning as smoothly as possible before we go into something 
else” (A. 68). When asked whether re-assignments of 
faculty members were eventually contemplated, the super­
intendent stated that the school system “will attempt to 
employ Negro teachers in a predominantly white school on 
a limited basis, and particularly in positions that do not 
involve direct instructions to pupils” (A. 69). The superin­
tendent described the Negro teachers’ academic qualifica­
tions as superior to the white teachers. Every Negro 
teacher had a bachelor’s degree and two had master’s 
degrees. Only one white teacher had a master’s degree; 
two have no degree (A. 33, 94-95).

Intimidation

When the PTA at the Negro school began to protest to 
the superintendent and the board the deplorable condi­
tions at the old Negro high school, the superintendent re­
sponded by issuing an order which forbade the Negro PTA 
from meeting in the Negro high school (A. 63-64). He 
stated:

“ The reason for that is, as I understood, the PTA 
had evolved into largely a protest group against the 
school board and the policies of the Board. The mem­
bers of that organization were the same who planned 
to demonstrate against the Gould high school and 
had sent chartered bus loads of people to Little Rock 
to demonstrate around the Federal Building, who were 
getting a chartered bus of sympathizers to come to this 
hearing today and it does not seem right to us to 
furnish a meeting place for a group of people that is 
fighting everything we are trying to do for them” 
(A. 64).



10

When questioned whether this meant the Negro high school 
parents eonld not have a PTA, the superintendent re­
sponded: “ They can have a PTA but they can meet some­
where else” (A. 64). He later admitted that he had no 
knowledge that any plans for marches or demonstrations 
had been made at a PTA meeting, and that all that he 
heard to this effect was hearsay (A. 108-109). The super­
intendent and some members of the board obtained an in­
junction against several civil rights groups, enjoining them 
from protesting conditions in the system (A. 63).

Denial of Relief by the Courts Below

The district court denied all relief and dismissed the 
complaint on April 26, 1966 (A. 12-25). In its opinion, the 
court relied on the fact that the school district had adopted 
a plan without court order, that the plan was approved by 
the Department of Health, Education, and Welfare, and 
that some Negro students were attending the “white” 
school. With respect to the board’s plan to construct new 
high school replacement facilities on the site of the Negro 
school, rather than enlarging the previously all-white 
school, the court decided that the replacement plan at the 
Negro school site was not “ solely motivated by a desire to 
perpetuate or maintain or support segregation in the school 
system” (A. 24-25).

The court of appeals found that the board was operating 
under a “choice” plan which on its face met standards 
approved by the circuit and H.E.W.; that there was “no 
substantial evidence to support a finding that the board 
was not proceeding to carry out the plan in good faith” ; 
that progress was being made in equalizing teachers’ sala­
ries; and that relief requiring that the replacement con­
struction be undertaken at the Gould site could not be



1 1

effective because by the time the appeal was considered 
considerable progress had been made in constructing the 
building on the Field site,4

Although the court found that “there is no showing 
that the new construction added could not be converted at 
a reasonable cost into a completely integrated grade school 
or into a completely integrated high school when the ap­
propriate time for such course arrives”  (emphasis sup­
plied), it declined to order conversion of one school plant 
to use as an elementary school and the other as a secondary 
school, on the ground that such relief had not been con­
sidered by the trial court. Rather than remanding the 
case to the district court for consideration of such relief, 
the court affirmed dismissal of the complaint. In addition, 
the court took the position that petitioners were not en­
titled to a comprehensive judicial decree governing the 
operation of the “choice” plan, as ordered by a different 
panel of the court in Kelley v. Altheimer, 378 F.2d 483 
(8th Cir. 1967):

IJnlike the Altheimer situation, no attack has been 
made in the pleadings on the desegregation plan 
adopted by the Board. Additionally, we find no sub­
stantial evidence to support a finding that the Board 
was not proceeding to carry out the plan in good 
faith. (A. 151)

A petition for rehearing en banc or by the panel, advert­
ing to a conflict between the decision of the panel and the 
decision in Kelley v. Altheimer, supra, with respect to

4 Plaintiffs filed notice o f appeal and oral argument was originally 
scheduled at the same time as a case involving similar issues, Kelley v. 
Altheimer, 378 F.2d 483 (8th Cir. 1967). However, the court reporter was 
ill for an extended period of time, and was unable to complete the tran­
script until April 1st, 1967 (A. 140, 152).



12

standards for approval of desegregation plans, was denied 
by the panel September 18, 1967.5

Summary of Argument

By dismissing the complaint, the courts below totally re­
fused to supervise the desegregation process in this district 
and remitted Negro school children to an inadequate remedy 
under Title VI of the Civil Bights Act of 1964. Such a dis­
position is unprecedented. It is particularly difficult to com­
prehend here because the segregated system has not been 
disestablished and because, in formulating desegregation 
standards, the Department of Health, Education, and Wel­
fare is guided by legal principles emanating from the courts.

There is a clear-cut choice in this district between a sys­
tem composed of a reasonably-sized, integrated, elementary 
school and similar secondary school, or a system composed 
of two inefficiently-small, segregated, combination ele­
mentary and secondary schools. Under a “ choice” plan the 
Negro school will continue to be all-Negro. On the other 
hand, a grade consolidation plan, utilizing one site as an 
elementary school and the other site as a secondary school, 
will immediately desegregate the system. The “choice” plan 
presently in operation is incapable of disestablishing seg­
regation, but grade consolidation is sufficiently workable 
and attractive a method of administering the system for the 
lower courts to be required to consider it on the merits and 
order such relief, if not impractical.

6 The panel had attempted to distinguish Kelley stating that the “sup­
porting facts in Altheimer are far stronger than those in our present case” 
(A. 145). The petition for rehearing en banc or by the panel, which 
strenuously objected to this characterization of the cases, is part of the 
record in this ease but has not been printed. Petitioners have been in­
formed by the office of the clerk of the court of appeals that this petition, 
pursuant to the Eighth Circuit practice, was denied by the panel which 
heard the Gould appeal and not by the court as a whole.



13

Brown v. Board of Education not only condemns compul­
sory racial assignments of public school children, but re­
quires “a transition to racially non-discriminatory system.” 
That goal is not achieved if schools are still maintained or 
identifiable as being for Negroes or for whites. It cannot 
be achieved until the racial identification of schools, con­
sciously imposed by the state during the era of enforced 
segregation, has been erased. The specific direction in 
Brown II and general equitable principles require that 
school districts, formerly segregated by law, employ affirma­
tive action to achieve this end. The courts below should 
fashion relief which, while consistent with educational and 
equitable principles, employs the speediest means available 
to disestablish the dual system and its vestiges, thereby 
achieving the unitary nonracial system mandated by the 
Constitution.

ARGUMENT

The Court Below Erred in Dismissing the Complaint 
Without Further Inquiry Into the Feasibility of Grade 
Consolidation or Other Relief Which Would Disestab­
lish Segregation.

A. By Dismissing the Complaint, the Courts Below Abdicated 
Their Responsibility Under Brown v. Board of Education 
to Supervise Disestablishment of the Segregated System.

Petitioners made a timely challenge to construction of 
new secondary school classrooms at a Negro school site, 
inferior facilities offered Negro students, and continued 
operation of a segregated school system in Gould, Arkan­
sas. They did not challenge the replacement of a dilapidated 
Negro school generally, but sought to require that the con­
struction, not scheduled to begin for over a year, take place 
on the white school site. To do otherwise would result in



14

perpetuating an unmistakably identifiable Negro school in 
a system with only two school plants which had chosen to 
adopt a “choice” desegregation plan. The district court 
failed to enjoin construction at the Negro site, or to grant 
other relief, and dismissed the action. After a court re­
porter’s illness delayed consideration of the appeal, the 
outer shell of the new classrooms was completed. In the 
court of appeals, petitioners sought utilization of the dual 
plants as constructed in a manner which would disestablish 
the segregated system or, alternatively, entry of a decree 
governing disestablishment of the dual system. The court 
ruled that it would not consider utilization of one plant for 
elementary students, and the other for secondary students, 
or entry of a decree governing the desegregation process 
because such relief was not sought in the trial court, and 
because there was “no substantial evidence to support a 
finding that the Board was not proceeding to carry out the 
[choice] plan in good faith” (A. 151). It affirmed dismissal 
of the complaint.

We submit this result demonstrates a misconception by 
the court of its equitable power and responsibility in a 
school desegregation case and an erroneous construction of 
what took place in the district court. Desegregation is by 
its nature a continuous process which requires continuing 
supervision by lower courts. Records on appeal are always 
somewhat out of date and relief to be effective must be 
fashioned with flexibility. In this case where completion of 
the construction merely altered the appropriate form of re­
lief and where the desegregation of the district was at issue, 
dismissal of the complaint was improper abdication of any 
jurisdiction over the desegregation process. See Brown v. 
Board of Education, 349 U.S. 294, 301 (1955); Calhoun v. 
Latimer, 377 U.S. 263 (1964); Brooks v. School Board of 
Arlington County, 324 F.2d 305 (4th Cir., 1963); Smith v.



15

Morrilton, 365 F.2d 770, 783 (8th Cir. 1966); Yarbrough v. 
Hulbert-West Memphis, 380 F.2d 962 (8th Cir. 1967); cf. 
Smith v. Hampton Training School, 360 F.2d 577, 581 (4th 
Cir. 1966); Buchner v. Board of Education, 332 F.2d 452 
(4th Cir. 1964) and eases cited. “School desegregation cases 
involve more than a dispute between certain Negro children 
and certain schools. If Negroes are ever to enter the main­
stream of American life as school children they must have 
equal educational opportunities with white children.” 6

The fact that petitioners’ request for consideration of a 
grade consolidation plan had not been sought in the trial 
court does not justify dismissal of this case. The construc­
tion to which the consolidation related and the failure of the 
board to disestablish segregation, were the subject of timely 
attack in the district court. It was not feasible to raise the 
issue of consolidation because at the time the trial was held 
(November, 1965) the new construction wTas not scheduled 
to begin for over a year (January, 1967). At the very least, 
the court of appeals was obligated to remand to the district 
court to supervise disestablishment of segregation and for a 
hearing, with instructions to order grade consolidation if 
appropriate. It is submitted that by dismissal of the com­
plaint, at a time when segregation is entrenched, the panel 
failed to adhere to the rule of Brown v. Board of Education, 
349 U.S. 294, 301 (1955) and numerous decisions of lower 
courts which hold that district courts must retain jurisdic­
tion until a racially nondiscriminatory school system is a 
reality. Secondly, by refusing to be influenced by develop­
ments subsequent to trial, even though their genesis, the 
construction program, was subject to timely attack, the 
court took a too narrow view of the power and duty of a

6 United States V. Jefferson County Board of Education, 372 F.2d 847, 
affirmed en banc, 380 F.2d 385, 389 (5th Cir. 1967) cert, denied sub nom.
Caddo Parish School Board v. United States, ------ U.S.   —, 19 L.ed 2d
103 (1967).



16

federal court of equity in supervising desegregation and 
granting relief required by the Constitution.7

7 In the second Brown decision this Court directed that “ in fashioning 
and effectuating the decrees, the courts will be guided by equitable prin­
ciples.” (349 U.S. at 300). Equity courts have broad power to mold their 
remedies and adapt relief to the circumstances and needs of particular 
cases as graphically demonstrated by the construction given to 15 U.S.C. 
§4 in restraining violations of the Sherman Antitrust Act. The test of 
the propriety of such measures is whether remedial action reasonably 
tends to dissipate the effects of the condemned actions and to prevent 
their continuance, United States V. National Lead Go., 332 U.S. 319 (1947). 
Where a corporation has acquired unlawful monopoly power which would 
continue to operate as long as the corporation retained its present form, 
effectuation of the Act has been held even to require the complete dis­
solution of the corporation. United States v. Standard Oil Go., 221 U.S. 
1 (1910); Schine Chain Theatres v. United States, 334 U.S. 110 (1948). 
Compare N.L.R.B. v. Newport News Shipbuilding & Drydock Co., 308 
U.S. 241, 250 (1939); Louisiana v. United States, 380 U.S. 145, 154 
(1965).

Numerous decisions establish that the federal courts construe their 
power and duties in the supervision of the disestablishment of state im­
posed segregation to require as effective relief as in the antitrust area. 
So in Griffin v. School Board of Prince Edward County, Va., 377 U.S. 218 
(1964) this Court ordered a public school system which had been closed 
to avoid desegregation to be reopened. Carr v. Montgomery County (Ala.) 
Board of Education, 253 E. Supp. 306 (M.D. Ala. 1966), ordered twenty- 
one (21) small inadequate segregated schools to be closed over a two year 
period and the students reassigned to larger integrated schools. Dowell 
v. School Board of Oklahoma City, 244 F. Supp. 971 (W.D. Okla., 1965), 
aff’d 375 F.2d 158 (10th Cir., 1967), cert. den. 387 U.S. 931 (1967), 
ordered the relief sought here—attendance areas o f schools con­
solidated, with one school in each pair to become the junior high school 
and the other to become the senior high school for the whole consolidated 
area. The Fifth Circuit has held that a district court has power to enjoin 
“ approving budgets, making funds available, approving employment con­
tracts and construction programs . . . designed to perpetuate, maintain 
or support a school system operated on a racially segregated basis.” 
Board of Public Instruction of Duval Co., Fla. v. Braxton, 326 F.2d 616, 
620 (5th Cir., 1964). The Fourth Circuit and a panel of the Eighth 
Circuit have held that a school construction program is an appropriate 
matter for court consideration. Wheeler v. Durham City Board of Educa­
tion, 346 F.2d 768 (4th Cir., 1965); Kelley v. Altheimer, 378 F.2d 483 
(8th Cir., 1967).

The continuous nature o f the desegregation process has consistently 
obligated appellate courts to fashion relief despite the occurrence of 
events subsequent to judgment in the district court. Such has been the



17

At one point in its opinion the court of appeals states 
that the parties had no opportunity to offer evidence on the 
feasibility of consolidation and the trial court had.no op­
portunity to pass on the issue. If the defect was solely one 
of evidence, however, the proper remedy was remand for 
further proceedings, not dismissal. Other portions of the 
panel’s opinion suggest, however, that it affirmed dismissal 
of the complaint for quite different, although also erroneous, 
reasons:

Moreover, there is no showing that the Field facilities 
with the new construction added could not be converted 
at a reasonable cost into a completely integrated grade 
school or into a completely integrated high school when 
the appropriate time for such course arrives (A. 147).

Utilization of one school as elementary and one as second­
ary school is thus acceptable to the court of appeals but 
only “when the appropriate time for such course arrives.” 
Such language and other portions of the opinions of the 
courts below strongly imply that a notion of deliberate 
speed—effectuated by a “choice” plan—led to rejection 
grade consolidation and not solely that petitioners did not 
seek in the trial court altered utilization of classrooms 
which were over a year away from construction at the time 
of trial. But the time for deliberate speed is over. Over 
two years ago this Court stated, “more than a decade has 
passed since we directed desegregation of public school 
facilities with all deliberate speed. . . . Delays in desegre­
gating school systems are no longer tolerable.” Bradley v. 
School Board of the City of Richmond, 382 U.S. 103, 105 
(1965). In 1964, the Court said: “There has been entirely

common practice of the courts applying Brown, and indeed it had been 
the practice of the Eighth Circuit, until this case. Calhoun v. Latimer, 
377 U.S. 263 (1964); Smith v. Morrilton, 365 E.2d 770 (8th Cir., 1966).



18

too much deliberation and not enough speed. . . Griffin v. 
County School Board of Prince Edward County, 377 U.S. 
218, 229.

If the failure of the court of appeals to remand for con­
sideration of grade consolidation, or to subject the board 
to a comprehensive judicial decree, rather than dismissing 
the complaint, rests on a finding by the court that no attack 
had been made on the desegregation plan in the trial court, 
it rests on a finding which is clearly erroneous. As the 
district court said: “ One of plaintiff’s contentions is that 
the Court should enjoin the defendant school board from 
maintaining a racially segregated system. But the testi­
mony discloses that the school board is no longer maintain­
ing such a system” (A. 14). The complaint sought to enjoin 
the board from compelling any Negroes to attend the all- 
Negro school (relief fundamentally inconsistent with a 
“choice” plan) and also sought to enjoin the “ operating of 
a segregated school system” (A. 8). The trial is replete 
with testimony concerning the actual and expected opera­
tion of the plan (A. 53-63, 67-71, 75, 95, 96, 101, 102, 109, 
117-18, 121-23). Indeed, the district court refused to enjoin 
the board from maintaining a segregated system and dis­
missed the complaint only because he found the H.E.W. 
plan sufficient compliance with the Constitution (A. 14, 24).

Another reason given by the court for dismissal—that 
the board was proceeding to carry out the plan in good 
faith—reflects a misconception of the role of lower courts 
in supervising the desegregation process, see supra, pp. 
14-16. The record describes the administration of the Gould 
system in detail sufficient to show that whether the board 
is acting in good faith or not, its performance is not such 
as to permit the lower courts to avoid supervision of the 
desegregation process.



19

By their opinions and dispositions the courts below also 
indicated that dismissal was strongly influenced by the fact 
that the United States Department of Health, Education, 
and Welfare had, in their view, controlling responsibility 
for supervising school desegregation in Gould because the 
district had adopted a plan to conform with Title VI of 
the Civil Rights Act of 1964. To be sure, H.E.W. Guide­
lines deserve weight as general propositions of school de­
segregation law, and as minimum standards for court- 
ordered desegregation plans. The same cannot be said for 
H.E.W. administrative approval of a particular school dis­
trict’s actual compliance wflth constitutional standards. 
With its limited personnel and funds, the Department is 
simply unable to ascertain all of the relevant facts about 
the performance of an individual school district in the way 
that a court hearing can do (especially where II.EW. 
Guidelines do not even purport to regulate an issue in the 
case—-the effect of construction policy on desegregation). 
Because of a shortage of resources, H.E.W.’s “compliance 
reviews and enforcement proceedings” are “not planned in 
a rational and consistent manner” ; the Department’s ap­
praisal of desegregation is often “faulty and inefficient.” 
“Manpower limitations” force the Department to fail to 
proceed against many districts which are not in compliance. 
See Southern School Desegregation, 1966-67, A Report of 
the U. S. Civil Rights Commission, July, 1967, pp. 58, 59; 
Note, The Courts, H.E.W. and Southern School Desegrega­
tion, 77 Yale L.J. 329, 347 (1967). Compare Cypress v. 
Non-sectarian Hospital Association, 375 F.2d 648, 658 659 
(4th Cir. 1967) where a hospital defended a desegregation 
suit on grounds of H.EW. approval, but the court, sitting 
en banc, ruled that H.E.W.’s compliance mechanism was 
so inefficient that it was not an equitable defense to a suit 
based on deprivation of constitutional rights. H.E.W. 
“necessarily concerns itself with every school district in



20

the country” so that to hold that “H.E.W. has preempted 
jurisdiction would relegate the courts to the purely appel­
late role of reviewing the particular treatment afforded a 
school district by the government.” Note, 77 Yale L. J. 
321, 323 (1967j. The practical effect of such rule would be 
to reduce the rate of desegregation for H.E.W.’s enforce­
ment difficulties are enormous. Unfortunately, the sorry 
statistics of southern school desegregation, see infra p. 36, 
reflect the inability of the Department to police, effectively, 
compliance with the Guidelines.

Dismissal of school desegregation cases on the ground 
that school boards are subject to H.E.W. jurisdiction is a 
step which would thwart efforts to secure compliance with 
Brown v. Board of Education for still another reason. 
H.E.W. depends on the courts to enunciate the substantive 
standards on which its Guidelines, and their enforcement, 
are based, “to chart the outer limits of Title VI and to 
enforce nondiscrimination in those areas Title VI is not 
broad enough to cover.” 8 A recent study of judicial and 
administrative efforts to achieve desegregation put the 
matter clearly:

“At least under present HEW policy, the Office of Edu­
cation’s ability to attack discrimination will only grow 
and evolve as the constitutional requirements them­
selves do, for the government is only attempting to 
impose the same conditions required by the Fourteenth 
Amendment. The result, of course, is that future 
changes in HEW standards to permit attacks on the 
worst examples of racial imbalance or the elimination 
of freedom of choice as a legitimate desegregation plan 
will only occur if courts hold such phenomena and 
practices unconstitutional. Until the courts strike down

s Note, 77 Yale L.J. 321, 329 (1967).



21

the free choice plan, the Office of Education will not 
move, and once the court so holds, the Office of Educa­
tion has no choice but to act accordingly.”  9

The facts of this case are an excellent illustration of the 
Department’s need to rely on judicially determined stan­
dards. While the Guidelines recognize that it is the re­
sponsibility of a school system to adopt and implement a 
desegregation plan which will eliminate the dual school 
system, and all other forms of discrimination, as expedi­
tiously as possible, they nowhere direct themselves to the 
effect of school construction policies on the achievement 
of this goal and do not supply standards against which 
such policies may be measured. Thus, the dismissal of the 
complaint in this case remitted Negro children and their 
parents to regulations which do not contain standards 
directed to an injury they claim and are unlikely to do so 
until such standards are judicially recognized.

Additional factors make compelling the conclusion that 
a district court may not refuse to supervise the desegrega­
tion process for this reason. The regulations drafted by 
H.E.W. pursuant to Title VI make compliance satisfactory 
if a school system is subject to a final order of a court of 
the United States, 45 C.F.R. §80.4(c)(1)(1967). This is 
clear recognition that the Department will not insist on 
standards different from those adopted by the courts.10

9 Ibid.

10 That H.E.W. accepts free choice plans as establishing the eligibility 
of a district for federal aid does not of course mean that such plans are 
constitutional. For the available evidence indicates that H.E.W. has 
approved such plans, despite the massive evidence o f their inability to 
disestablish the dual system, only because they have received approval in 
the courts, and it is felt inappropriate to enforce requirements more 
stringent than those imposed by the Fourteenth Amendment. See the 
materials collected in Dunn, Title VI, The Guidelines and School Desegre­
gation in the South, 53 Ya. L. Rev. 42 (1967); Note, 77 Yale L.J. 321 
(1967).



22

Indeed it has been universally recognized that the Guide­
lines were drafted in light of prevailing judicial standards, 
e.g. United States v. Jefferson County Board of Education, 
supra, 372 F.2d 847, 851. In such circumstances, dismissal 
in deference to H.E.W. would be to inhibit the growth of 
departmental standards. The courts would defer to H.E.W. 
and H.E.W. would defer to the courts. A dangerous circular 
pattern of negative, rather than positive, enforcement 
would be created.

Petitioners complained, moreover, of a violation of their 
constitutional rights; not statutory rights which they may 
have under Title VI of the Civil Eights Act which regulates 
the relationship between the federal government and its 
grantees. The courts may not abdicate their responsibility 
to confront the performance of school boards in terms of 
the constitutional standards of the Fourteenth Amendment. 
Petitioners have been unable to locate any decision which 
holds to the contrary. In this regard, the courts below 
fundamentally misconstrued the rule of burden of proof 
in school desegregation cases. The burden of proof is not 
on Negro students to demonstrate that a school system 
which undisputedly has been segregated for generations 
(and which still maintains one of its two school plants as 
all-Negro) is still segregated, but on the school board to 
demonstrate that its desegregation plan desegregates the 
system, Brown v. Board of Education, supra. That burden 
is not carried solely by adoption of a “choice” plan when 
another plan which apparently is reasonable and practical 
will immediately desegregate the system.



23

B. Use of One School for Elementary Grades and the Other 
for Secondary Grades Is a Reasonable Alternative to a 
“ Choice”  Plan Which Will Disestablish the Dual System.

Petitioners do not ask this Court to order grade consoli­
dation in this district but to consider the standard under 
which such an order by the district court would he appro­
priate. We believe that the proper course for this Court 
to follow is to vacate the judgment in order that the feasibil­
ity of consolidation may be determined in the courts below, 
with instructions to order such relief, if not impractical, 
because it will more speedily disestablish the dual system. 
We restrict ourselves, therefore, to a showing that (1) such, 
utilization is shown by this record to be a sufficiently 
workable and attractive method of administering the sys­
tem for the lower courts to be required to consider it on 
the merits, infra pp. 23-27, and (2) that the “freedom of 
choice” plan presently in operation is incapable of dis­
establishing segregation, infra pp. 27-38.

Because there are only two nearby schools in this small 
district, there is a clear choice between a system composed 
of reasonably-sized, integrated, elementary and secondary 
schools, or a system composed of two inefficiently-small, 
combination elementary and secondary schools. The super­
intendent’s concession that under the “choice” plan the 
replaced Negro school would probably continue to be all- 
Negro, actual experience under the plan, as well as the 
obvious educational inefficiency and undesirability of the 
dual schools constitute a reasonable basis for providing 
that one site shall be used for an elementary school and 
the other site for a secondary school. (The dual school 
system might also be completely eliminated with a mini­
mum of administrative difficulty in this district, where 
both races reside throughout, by a geographic assignment



24

plan, but such a plan would not end the manifest inefficiency 
of operating two small schools serving grades 1-12.) The 
system’s school buildings as constructed are adaptable to 
changed usages and whatever additional cost might be in­
volved in alteration, as the court of appeals recognized, 
is reasonably balanced against the continued extra operat­
ing cost of the inefficient dual system (A. 147).

The school facilities of the district ideally lend themselves 
to a plan of consolidation, which is, as recongized by the 
H.E.W. Guidelines and court decisions, an appropriate 
method of disestablishment:

In some cases, the most expeditious means of deseg­
regation is to close the schools originally established 
for students of one race, particularly where they are 
small and inadequate, and to assign all the students 
and teachers to desegregated schools. Another appro­
priate method is to reorganize the grade structure of 
schools originally established for students of different 
races so that these schools are fully utilized, on a de­
segregated basis, although each school contains fewer 
grades. (45 CFR §181.11)

See Dowell v. School Board of Oklahoma City, supra. Until 
1967, the traditionally white Gould High School was the 
most modern facility in the district, having been completed 
in 1964 (A. 89). The immediately adjacent Gould Elemen­
tary School was originally constructed for use as a high 
school, and was subsequently converted to an elementary 
school (A. 81-82). If the Gould Elementary School were 
converted back to use as a secondary school, the Gould site 
would be clearly suitable for all the secondary students 
in the district (A. 145). The 1966-67 secondary enrollment



25

of the district was 360 for grades 8-12, while the total 
enrollment at the Gould School was 375 (grades 1-12).11

The all-Negro Field Elementary School is also a modern 
facility, constructed in 1954 with subsequent additions (A. 
89-91). The gymnasium is adequate for both the present 
number of Negro elementary and Negro high school stu­
dents, so that it would also be suitable for use by all of 
the elementary students in the system. The new building 
constructed by the system for use as the Negro high school 
is adjacent to the Field Elementary School, and can easily 
be furnished as an addition to the elementary school— 
which would make the combined Field School adequate for 
all of the elementary students in the district. The enroll­
ment for the district in 1966-67 was 492 for grades 1-7, 
while the total enrollment at the Field School was 477 
(grades 1-12).12

If there is some impediment to consolidation which the 
record does not reveal, the board should have the oppor­
tunity, on remand, to prove it, but absent some serious 
educational or practical deficiency in such a course, the 
board should not be permitted to reject it in favor of an 
assignment system which does not disestablish the dual 
system. For unless the board is required to cease main­
taining dual facilities, a predominantly segregated school 
system will be fastened upon the community for at least an­
other generation, and all students—Negro and white—will 
continue to pay the price of the inefficiency caused by oper­
ating a dual system in such a small district. This is graphi­
cally illustrated by the disparity in course offerings at 
the two high schools. If all students were attending the 
same high school, everyone would have the opportunity

11 See footnote 1, supra.

12 Ibid.



26

to take courses such as journalism or agriculture, as well 
as other courses which would he available because a higher 
total of students would elect them. Negroes who have no 
football or track programs would be able to participate in 
those sports. The basic sciences, chemistry and biology, 
are offered only in alternate years at Gould while they are 
offered every year at Field. There is no Future Farmers 
of America Program at Field only because no agriculture 
course is offered. In a consolidated system, all students 
would have the opportunity to take each of these courses 
every year.

The sad fact is that the board’s failure to consolidate 
grades not only perpetuates segregation but deprives both 
Negroes and whites of significant educational opportunities. 
To be sure, the Fourteenth Amendment may not require 
that school administrators operate their system in the 
most efficient manner, but their failure to do so, with­
out explanation, demonstrates the racial purpose of the 
“choice” assignment plan, infra, pp. 27-38.13 It is no accident 
that the board ignores the recommendations of the most 
important study of secondary education that has been made 
in this country, James Bryant Conant’s, The American 
High School Today (1959) which gives highest priority 
in educational planning to the elimination of small high 
schools with graduating classes of less than one hundred.14

13 A similar inference was made in Kelley v. Altheimer, 378 F .2d 468 
(8th Cir. 1967). There the school board added additional classrooms at 
each o f two complexes, one traditionally maintained for Negroes the other 
for whites:

We conclude that the construction of the new classroom buildings 
had the effect of helping to perpetuate a segregated school system 
and should not have been permitted by the lower court.

14 “ The enrollment of many American public high schools is too small 
to allow a diversified curriculum except at exorbitant expense . . . ‘The 
prevalence of such high schools— those with graduating classes of less 
than one hundred students— constitutes one of the serious obstacles to



27

See Moses v. Washington Parish School Board, — F. Supp. 
— (E.D. La., Oct. 19, 1967) (“Free choice” plan “wasteful 
in every respect” ; geographic zones ordered).

The court of appeals recognized that there is substantial 
evidence that consolidation is a feasible alternative to “ free­
dom of choice” when it found that “there is no showing that 
the Field facilities with the new construction added could 
not be converted at a reasonable cost into a completely 
integrated grade school or into a completely integrated 
high school when the appropriate time for such a course 
arrives. We note that the building now occupied by the 
predominantly white grade school had originally been 
built to house the Gould High School” (emphasis supplied) 
(A. 145). Given the apparent feasibility of grade consoli­
dation and the deficiencies of a “choice” plan in this district, 
see infra pp. 33-35, the court of appeals had an obligation 
to fashion a remedy equal to the task of disestablishing 
the dual structure. Instead, it erroneously affirmed dis­
missal of the complaint.

C. Freedom of Choice Is Incapable of Disestablishing Segrega­
tion in the Gould School District.

The duty of the school board was to convert the dual 
school system it had created into a unitary non-raeial 
system. Although it had an alternative which would have 
disestablished the dual system immediately, and with less 
educational inefficiency, the board adopted a method whose

good secondary education throughout most of the United States. I  believe 
such schools are not in a position to provide a satisfactory education for 
any group of their students—the academically talented, the vocationally 
oriented, or the slow reader. The instructional program is neither suffi­
ciently broad nor sufficiently challenging. A  small high school cannot by 
its very nature offer a comprehensive curriculum. Furthermore, such a 
school uses uneconomieally the time and efforts of administrators, teachers, 
and specialists, the shortage of whom is a serious national problem” 
(p. 76).



28

success depended on the ability of Negroes to unshackle 
themselves from the psychological effects of the dual system 
of the past, and to withstand the fear and intimidation of 
the present and future. Only the “ choice” plan selected by 
the board subjects Negroes to the possibility of intimida­
tion or gives undue weight to the very psychological effects 
of the dual system that this Court found unconstitutional 
in Brown v. Board of Education. Nor did the board intro­
duce evidence to justify adoption of a method, 11 years 
after Brown, which if it could disestablish the dual system 
at all, would require a much longer period of time than 
available alternatives. The failure of the board to show 
the existence of any administrative reasons, such as this 
Court contemplated in Brown II might justify delay, made 
it error for the courts below to abdicate to an adminis­
tratively supervised “choice” plan.

After Brown, southern school boards were faced with the 
problem of “effectuating a transition to a racially non- 
discriminatory system” (Brown II at 301). The easiest 
method, administratively, was to convert the dual attend­
ance zones into single attendance zones, without regard to 
race, so that assignment of all students would depend only 
on proximity and convenience.* 16 With rare exception, how­
ever, southern school boards, when finally forced to begin 
desegregation, rejected this relatively simple method in 
favor of the complex and discriminatory procedures of 
pupil placement laws and, when those were invalidated, 
switched to what has in practice worked the same way— 
the so-called free choice.16

16 Indeed, it was to this method that this Court alluded in Brown II 
when it stated “ [t]o that end, the courts may consider problems related 
to administration arising from revision of school districts and attendance 
areas into compact units to achieve a system of determining admission to 
the public schools on a non-racial basis”  (349 U.S. at 300-301).

16 According to the Civil Rights Commission, the vast majority of school 
districts in the south use freedom of choice plans. See Southern School



29

Under so-called free choice students are allowed to attend 
the school of their choice. Most often they are permitted to 
choose any school in the system. In some areas, they are 
permitted to choose only either the previously all-Negro 
or previously all-white school in a limited geographic area. 
Not only are such plans more difficult to administer (choice 
forms have to be processed and standards developed for 
passing on them, with provision for notice of the right 
to choose and for dealing with students who fail to exer­
cise a choice),17 they are, in addition,—as experience dem­

Desegregation, 1966-67, A Report of the U. S. Commission on Civil 
Rights, July, 1967. The report states, at pp. 45-46:

Free choice plans are favored overwhelmingly by the 1787 school 
districts desegregating under voluntary plans. All such districts . . . 
in Alabama, Mississippi, and South Carolina, without exception, and 
83% of such districts in Georgia have adopted free choice plans. . . .

17 Section II of the decree appended by the United States Court of 
Appeals for the Fifth Circuit, to its recent decision in United States v. 
Jefferson County Board of Education, supra, shows the complexity of 
such plans. That court had previously described such plans as a 
“haphazard basis” for the administration of schools. Singleton v. Jackson 
Municipal Separate School District, 355 F.2d 865, 871 (5th Cir. 1966).

Under such plans school officials are required to mail (or deliver by way 
of the students) letters to the parents informing them of their rights to 
choose within a designated period, compile and analyze the forms re­
turned, grant and deny choices, notify students of the action taken and 
assign students failing to choose to the schools nearest their homes. Vir­
tually each step of the procedure, from the initial letter to the assignment 
o f students failing to choose, provides an opportunity for individuals 
hostile to desegregation to forestall its progress, either by deliberate mis- 
performanee or non-performance. The Civil Rights Commission has re­
ported on non-complainee by school authorities with their desegregation 
plans:

In Webster County, Mississippi, school officials assigned on a racial 
basis about 200 white and Negro students whose freedom of choice 
forms had not been returned to the school office, even though the 
desegregation plan stated that it was mandatory for parents to exer­
cise a choice and that assignments would be based on that choice 
[footnote omitted]. In McCarty, Missouri after the school board had



30

onstrates (infra pp. 33, 36)—far less likely to disestablish 
the dual system.

Under “choice” plans, the extent of actual desegregation 
varies directly with the number of students seeking, and 
actually being permitted, to transfer to schools previously 
maintained for the other race. It should have been obvious, 
however, that white students—in view of general notions 
of Negro inferiority and the hard fact that far too often 
Negro schools are vastly inferior to those furnished whites 
see supra pp. 6-8—would not transfer to formerly Negro 
schools; and, indeed, very few have.18 From the beginning 
the burden of disestablishing the dual system under free 
choice was thrust upon Negro children and their par­
ents, despite this Court’s admonition in Brown II (349 U.S. 
294, 299) that “ school authorities had the primary responsi­
bility.”

The notion that the making available of an unrestricted 
choice satisfies the Constitution, quite apart from whether 
significant numbers of white students choose Negro schools 
or Negro students white schools, is, we submit, funda­

distributed freedom o f choice forms and students had filled out and 
returned the forms, the board ignored them.

Survey of School Desegregation in the Southern and Border States,
1965- 1966, at p. 47. Given the other shortcomings of free choice plans, 
there is serious doubt whether the constitutional duty to effect a non- 
raeial system is satisfied by the promulgation of rules so susceptible of 
manipulation by hostile school officials. As Judge Sobeloff has observed:

A procedure which might well succeed under sympathetic administra­
tion could prove woefully inadequate in an antagonistic environment.

Bradley v. School Board of the City of Richmond, 345 F.2d 310 (4th 
Cir, 1965) (concurring in part and dissenting in part).

18 “During the past school year, as in previous years, white students 
rarely chose to attend Negro schools.”  Southern School Desegregation,
1966- 67 at p. 142; United States v. Jefferson County Board of Education, 
supra, 372 F.2d at 889.



31

mentally inconsistent with the decisions of this Court in 
Brown I and II ; Cooper v. Aaron, 358 U.S. 1 (1958); Brad­
ley v. School Board of the City of Richmond, supra, and the 
entire series of cases it has decided.19 Brown contemplates 
complete reorganization. It condemns not only compulsory 
racial assignments of public school students, but also the 
maintenance of a dual public school system based on race— 
where some schools are maintained or identifiable as being 
for Negroes or others for whites. It presupposed a major 
reorganization of the educational systems of the affected 
states, the extent of which is suggested by the fact that the 
court took an additional year to consider the problem of 
relief. The direction in Brown II, to the district courts that 
they might consider

problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools 
on a non-racial basis, and revision of local laws and 
regulations which may be necessary in solving the fore­
going problems (349 U.S. at 300-301)

amply demonstrates the magnitude and thoroughness of the 
reorganization envisaged.

If this Court in Brown I and II had thought that a “ra­
cially non-discriminatory system” would be achieved al­
though Negro and white students would continue as before 
to attend schools designated for their race, none of the 
quoted language was necessary. It would have been suffi­

19 See Rogers v. Paul, 382 U.S. 198 (1965) ; Calhoun v. Latimer, 377 
U.S. 263 (1964) ; Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964); Goss v. Board of Education, 373 U.S. 683 
(1963).



32

cient merely to say “compulsory racial assignment shall 
cease.” But the Court did not stop there. Bather it ordered 
a pervasive reorganization so that the system would be 
transformed into one that was “unitary and nonracial,” one 
in which schools would no longer be identifiable as being 
for Negroes or whites. That students have been permitted 
to choose a school does not destroy the racial identification 
of that school if it continues to serve students of one race, 
is staffed solely by teachers of that race, or is treated as a 
Negro or white school by school officials. The only way 
racial identifications—consciously imposed by the state dur­
ing the era of enforced segregation—can be erased is by 
having schools serve students of both races, through 
teachers of both races. This is what we think disestablish­
ment of the dual system means and this is what we submit 
the Brown decisions require.

Given the premise of Brown v. Board of Education—that 
segregation in public education had very deep and long 
term effects upon Negroes—it is not surprising that indi­
viduals, reared in that system and schooled in the ways of 
subservience (by segregation in schools and every other 
conceivable aspect of existence) who are given the oppor­
tunity to “make a choice,” chose, by inaction, that their 
children remain in Negro schools.20 By making the Negro’s 
exercise of choice the critical factor, school authorities have

20 In its Revised Statement of Policies for School Desegregation Plans 
Under Title VI o f the Civil Rights Act of 1964 (referred to as the Guide­
lines), the Department of Health, Education, and Welfare states (45 CER 
§181.54) :

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



33

insured desegregation’s failure. Moreover, intimidation, a 
weapon well-known throughout the south, has been em­
ployed to deter transfers. Every community pressure mili­
tates against the affirmative choice of white schools by Ne­
gro parents. Here the heavy hand of segregation did its 
work in overt fashion.

First, “ the only school desegregation plan that meets 
constitutional standards is one that works”  (United States 
v. Jefferson County Board of Education, supra, 372 F.2d at 
p. 847 (emphasis in original)) and the Gould plan has not 
worked. In both first and second year of its operation only 
about 70 Negro pupils attended the white school and no 
whites “chose” to attend the Negro school. The number 
seems to have climbed only slightly in the 1967-68 school 
year.21 In the first year of the plan several Negroes “chose” 
the white school but were refused admission due to over­
crowding, an overcrowding caused in part by the fact that 
no whites “chose” to attend the Negro school. Only one 
teacher has been assigned to a desegregated faculty, and 
that teacher on a part time basis. No Negro teacher has 
been assigned to teach at the white school. In short, four­
teen years after Brown, “ freedom of choice” has not and 
does not appear capable of disestablishing segregation.

Second, the record shows active intimidation of the Negro 
community. The PTA of the Negro school was prohibited 
by the superintendent from meeting at the school once it 
began to protest conditions there, and an injunction was 
obtained by the board of education against public protests 
concerning school conditions (A. 63-64).

21 In June, 1967, the superintendent informed the Department of 
Health, Education and Welfare that he anticipated an increase of only 
14 Negro students in the white school for the 1967-68 school year, the 
third year o f desegregation and that again no whites would attend the 
Negro school, see note 1, supra.



34

Third, the degree of inequality between the Negro and 
white high schools which has been maintained for so long 
has inevitably communicated to the Negro community that 
the board could not be trusted to administer a “ freedom 
of choice” plan fairly, and that the choice offered was 
not really free. Until 1965, the Negro high school had 
such a poor physical plant and program that it was com­
pletely unaccredited by the State of Arkansas, while the 
white high school had an “A ” rating (A. 10, 16, 31, 83, 130). 
Long promised reconstruction took place only after adop­
tion of a desegregation plan (itself required to obtain fed­
eral funds) when a new school would have the possible 
effect of limiting the number of Negro transferees under 
the choice plan. Not only has the practice of segregation 
followed by this district been unconstitutional since 1954, 
but the “gross inferiority” of the separate public school 
facilities provided for Negro students has been unconsti­
tutional at least since 1938, Missouri ex rel. Gaines v. 
Canada, 305 U.S. 337; Sweatt v. Painter, 339 U.S. 629 
(1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 
(1950). The court of appeals erred, fundamentally, in ig­
noring the relevance of these historic inequalities to the 
validity of the choice plan and the need to explore alter­
nate methods of disestablishment.

Fourth, the character of the new replacement construc­
tion on the traditional segregated site (and that no ra­
tional educational purpose is apparent behind such dual 
construction) is not susceptible to any other interpretation 
by the community, Negro and white, than that the board 
wishes to maintain a segregated system, with one school 
intended for whites and the other intended for Negroes, 
cf. Kelley v. Altheimer, 378 F.2d 483, 490, 496 (8th Cir. 
1967). This was just as unambiguous an act as re-writing 
the word “white” over the door of the Gould School and 
the word “Negro” over the door of the Field School—and



35

is just as coercive to Negroes who have traditionally 
been informed by the segregated system that they were 
not wanted in “white” institutions, and to whites who have 
been informed that it was not proper for them to be in 
“Negro” institutions. The replacement construction here 
has precisely the same effect on the “freedom” in a “free­
dom of choice” plan as does the maintenance of all-white 
and all-Negro faculties at various schools in a system. Cf. 
Bradley v. School Board of the City of Richmond, 382 U.S. 
103 (1965); Kier v. County School Board of Augusta Co., 
Va., 249 F. Supp. 239, 246 (W. D. Va., 1966).

Fifth, the integration of faculty is a factor absolutely 
fundamental to the success of a desegregation plan, for 
a school with a Negro or white faculty will always be a 
Negro or white school. Nevertheless, the Board has not 
assigned Negro teachers to regular teaching at the tradi­
tionally white school, and only one white to part time duties 
at the traditionally, and still, all-Negro school (A. 67-70; 
see note 1 , supra). There are no plans for substantial de­
segregation in the future (A. 68-69).22 Compare the panel’s 
indifference to the faculty issue with the treatment ac­
corded the issue in the decision of another Eighth Circuit 
panel in Kelley v. Altheimer, 378 F.2d 483, 491 (1967).

With rare exception school officials adopt, and the lower 
courts condone, free choice knowing full well that it will 
produce less Negro students in white schools, and less in­
jury to white sensibilities than under consolidation, geo­
graphic attendance zone, or other available methods. These 
expectations are justified. Meaningful desegregation has

22 The failure of the board to take meaningful steps to integrate its 
faculty is consistent with what the reeord shows: that the board, by 
adopting freedom of choice, could not in good faith have believed or in­
tended that the dual system would thereby be converted into the nonracial 
system required by the Constitution.



36

not resulted from the use of free choice. Even when Negroes 
have transferred, however, desegregation has been a one­
way street—a few Negroes moving into the white schools, 
but no whites transferring to the Negro schools. In most 
districts, therefore, as in the case before the Court, the 
vast majority of Negro pupils continue to attend school 
only with Negroes. Although the proportion of Negroes 
in all-Negroes schools has declined since Brown, more 
Negro children are now attending such schools than in 
1954.23 Indeed, during the 1966-67 school year, a full 12 
years after Brown, more than 90% of the almost 3 million 
Negro pupils in the 11 Southern states still attended schools 
which were over 95% Negro and 83.1% were in school which 
were 100% Negro.24 “This June, the vast majority of Negro 
children in the South who entered the first grade in 1955, 
the year after the Brown decision, were graduated from 
high school without ever attending a single class with a 
single white student.” 25 26 As the Fifth Circuit has said, 
“ [f]or all but a handful of Negro members of the High 
School Class of 1966, this right [to equal educational op­
portunities with white children in a racially non-discrimina- 
tory public school system] has been of such stuff as dreams 
are made on.” 20 And in its most recent report, the Civil 
Rights Commission states:

The review of desegregation under freedom of choice 
plans contained in this report, and that presented in, 
last years commission’s survey of southern school 
desegregation, show that the freedom of choice plan

23 Southern School Desegregation, 1966-67, at p. 11.

24 Id. at 165.

26 Id. at 147.

26 United States v. Jefferson County Board of Education, supra, 372 
F.2d at 845.



37

is inadequate in the great majority of cases as an 
instrument for disestablishing a dual school system. 
Such plans have not resulted in desegregation of 
Negro schools and therefore perpetuate one-half of 
the dual school system virtually intact. (Emphasis 
added.)27

Petitioners submit that a freedom of choice plan is 
constitutionally unacceptable where as in this case, there 
are other methods, educationally feasible and no more 
difficult to administer, which would more speedily disestab­
lish the dual system.

27 Southern School Desegregation, 1966-1967, pp. 152-153. In an earlier 
report, Racial Isolation in the Public Schools, 1967, the Civil Rights Com­
mission observed (at p. 69) that, . . the degree of school segregation in 
these free-choice systems remain high,”  and concluded that (ibid) : “ only 
limited school desegregation has been achieved under free choice plans in 
Southern and Border city school systems.”



38

CONCLUSION

W herefore, petitioners pray that the judgment below be 
vacated and the cause remanded for appropriate proceed­
ings.

Respectfully submitted,

J ack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
M ichael J. H enry

10 Columbus Circle
New York, New York 10019

J ohn W . W alker 
Norman Chachkin

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners



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