Clark v. Little Rock Board of Education Brief for Plaintiffs-Appellants

    UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT 

NO. 82-1834

DELORES CLARK, et al.,
Plaintiffs-Appellants, 

v.
BOARD OF EDUCATION OF LITTLE ROCK 
SCHOOL DISTRICT, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Arkansas 

Western Division

BRIEF FOR PLAINTIFFS-APPELLANTS

JOHN W. WALKER 
RALPH WASHINGTON

1191 First National Building 
Little Rock, Arkansas 72201
JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE 
THEODORE M. SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

W. A. BRANTON, JR.
Suite 500
666 Eleventh Street, N.W. 
Washington, D.C. 20001

Attorneys for Plaintiffs-Appellants



4

SUMMARY AND REQUEST FOR ORAL ARGUMENT

This is a school desegregation case which was 
originally filed more than a quarter century ago to 
disestablish the dual system of public education in the 
public schools of Little Rock, Arkansas. A potentially 
meaningful desgregation plan was not entered in this case 
until 1973. However, the School Board engaged in a series 
of segregative actions in the areas of student classroom 
assignment, faculty assignment and school abandonment and 
construction. The immediate proceedings below concern the 
approval by the District Court of a segregative student 
assignment plan in which black elementary students 
were assigned to four virtually all black schools. The 
District Court also failed to alleviate student classroom 
assignment, faculty assignment and school abandonment and 
construction problems. It is respectfully suggested that 
oral argument is required in light of the issues presented 
in this lengthy litigation and generally. The issues 
presented are significant because they concern the extent 
of a school district's affirmative obligation to desegre­
gate. At least 15 minutes of oral argument would be 
appropriate.

i
I



TABLE OF CONTENTS

Page
QUESTION PRESENTED ............................ 1
STATEMENT ...................................... 2

1. Prior Proceedings ..................  2
2. Post-1972 Proceedings ..............  10
3. Proceedings Below ..................  15

ARGUMENT ....................................... 20
I. The Duty of Defendant School Board 

and the District Court Was "'To 
Come Forward With A Plan That 
Promises Realistically To Work ...
Now ... Until It Is Clear That 
State-Imposed Segregation Has Been 
Completely Removed'"................  2 3

II. The District Court Wrongly Approved
Partial K-6, Which Unconstitutionally 
Resegregates Substantial Numbers of 
Black School Children and Failed to 
Correct Student Assignment, Faculty 
Assignment, and School Closing and
Construction Problems .............. 26

CONCLUSION ....................................  32

l



TABLE OF CASES
Cases Pa9e
Aaron v. Cooper, 143 F. Supp. 885 (E.D. Ark.

1956) ........................................ 2
Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957).... 2
Aaron v. Cooper, 257 F.2d 33 (8th Cir. 1958), aff'd,

358 U.S. 1...................................  3
Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) .... 3
Aaron v. McKinley, D.C., 1973 F. Supp. 944 (3

judge court), sub. nom. Faubus v. Aaron, 361 
U.S. 197 ..................................... 3

Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969) ..............................  5

Arlington Heights v. Metropolitan Housing Corpora­
tion, 429 U.S. 252 (1977) .................... 29

Clark v. Board of Directors of Little Rock School 
District, 328 F. Supp. 1205 (E.D. Ark.
1971)......................................... 6,7

Clark v. Board of Education of Little Rock School
District, 369 F.2d 661 (8th Cir. 1966 .....  4,5

Clark v. Board of Education of Little Rock School
District, 426 F.2d 1035 (8th Cir. 1970) .... 4,6

Columbus Board of Education v. Penick, 443 U.S.
449 (1979) ..................................  22,2 3,24,25,2 6,2 8,29,31

Cooper v. Aaron, 358 U.S. 1 (1958) ................ 2,21
Davis v. School Comm'rs of Mobile County, 402

U.S. 33 (1971) ..............................  23, 24
Dayton Board of Education v. Brinkman, 443 U.S.

526 (1979)...................................  24,25,26,27
Faubus v. Aaron, 361 U.S. 197 ....... ...........  3
Faubus v. United States, 254 F.2d 797 (8th Cir.

1958), cert. denied 358 U.s. 829 ............  3

- ii -



1

Cases Page
Green v. County School Board, 391 U.S. 430,

(1968) .......................................... 2,5,9,23,2 4
Higgins v. Board of Education, 508 F.2d 779 (6th

Cir. 1974) .....................................  29
Kelley v. Metropolitan County Board of Education,

687 F . 2d 814 (6th Cir. 1982) ..................  2 7,2 8
Martin v. Charlotte-Mecklenburg Board of Education,

475 F. Supp. 1318 (W.D.N.C. 1979), aff'd on
other grounds, 1165 (4th Cir. 1980), cert.
denied, 450 U.S. 1041 ( 1981 ) ..................  22

McNeal v. Tate, 508 F.2d 1017 (5th Cir. 1975) .....  30
Milliken v. Bradley, 418 U.S. 717 (1974) ..........  26,2 7,29
Milliken v. Bradley, 433 U.S. 267 ( 1977) ........... 31
Monroe v. Board of Commissioners, 391 U.S. 450

(1968) ...........................................  5,29
Monroe v. Board of Education of Chidester School 

District No. 59, 448 F.2d 709 (8th Cir.
1971) ...........................................  8

Norwood v. Tucker, 287 F.2d 798 (8th Cir.
1961) ...........................................  4

Parham v. Dove, 371 F.2d 132 (8th Cir.
1959) ...........................................  3

Pasadena City Board of Education v. Spangler, 427
U.S. 424 ( 1976) ................................  2 6, 2 7

Raney v. Board of Education of Gould School
District, 391 U.S. 443 ( 1968) .................  5

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 ( 1971) ..............................  2 3, 2 4, 25,2 6,

2 7, 2 8, 31
Thomason v. Cooper, 254 F.2d 808 (8th Cir.

1958) ...........................................  3
United States v. Board of Commissioners of

Indianapolis, Indiana, 503 F.2d 68 (7th Cir.
1974) ...........................................  2 9

- iii -



Cases Page
United States v. Gadsden City School District, 572 

F .2d 1045 (5th Cir. 1978) ...................
United States v. Scotland Neck Board of Education, 

407 U.S. 484 (1972) ..........................
Wright v. Council of City of Emporia, 407 U.S.

451 (1972) ...................................

'30

2 4,25,29 

24

IV



PRELIMINARY STATEMENT

The Honorable William Ray Overton rendered the decision 
from which plaintiffs hereby appeal. Jurisdiction of the 
district court was invoked pursuant to 28 U.S.C. §§ 1343, 
1331. This court's jurisdiction is invoked pursuant to 28 
U.S.C. § 1292(b). The Memorandum and Order were filed on 
July 9, 1982, and timely notice of appeal was filed on July 
9, 1982.

STATEMENT OF ISSUE

Whether the District Court erred by allowing the Little 
Rock School District, which is under a constitutionally 
imposed duty to dismantle the remaining vestiges of a formally 
dual system of public education,

(a) to attempt to retain or regain white students
by resegregating black students in four virtually all black 
schools; and

(b) to fail to correct segregatory and discriminatory 
student classroom assignment, faculty assignment and school 
closing and construction policies. Columbus Board of Education 
v. Penick, 443 U.S. 449, 459-63 (1979); Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1 (1971).



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
NO. 82-1834

DELORES CLARK, et al.,
Plaintiffs-Appellants, 

v.
BOARD OF EDUCATION OF LITTLE ROCK 
SCHOOL DISTRICT, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Arkansas 

Western Division

BRIEF FOR PLAINTIFFS-APPELLANTS

QUESTION PRESENTED
Whether the District Court erred by allowing the 

Little Rock School District, which is under a constitution­
ally imposed duty to dismantle the remaining vestiges of a 
formerly dual system of public education,

(a) to attempt to retain or regain white students 
by resegregating black students in four virtually all black 
schools; and

(b) to fail to correct segregatory and discrimina­
tory student classroom assignment, faculty assignment and 
school closing and construction policies.



STATEMENT OF THE CASE
This appeal once again brings to this Court one of 

the oldest and most famous school desegregation cases for 
determination of issues relating to the duty of a former 
racially dual system of schools to "take whatever steps 
might be necessary to convert to a unitary system in 
which racial discrimination would be eliminated root and 
branch." Green v. County School Board, 391 U.S. 430, 
437-38 (1968). Specifically, plaintiffs appeal from 
a district court order which allows the School District 
to establish four segregated schools with all black 
enrollments and which ignores the continuing vestiges of 
racial discrimination which still permeate the Little 
Rock public schools.
1. Prior Procedures

This litigation began in 1956 when plaintiffs filed 
a class action seeking desegregation of the public 
schools of Little Rock. Aaron v. Cooper, 143 F. Supp.
885 (E.D. Ark. 1956). On appeal in 1957, this Court 
approved a plan for gradual desegregation by 1963 which 
was based upon geographical attendance zones. Aaron v. 
Cooper, 243 F.2d 361 (8th Cir. 1957). The District Court 
was ordered to retain jurisdiction to supervise transition 
to a nondiscriminatory system. It was the attempted 
implementation of this plan that led to the Supreme 
Court's famous decision in Cooper v. Aaron, 358 U.S. 1

2



(1958). In the process various state officials were 
enjoined from impeding the mandate to desegregate,
resulting in this Court's decisions in Thomason v.
Cooper, 254 F.2d 808 (8th Cir. 1958) and Faubus v. United 
States, 254 F.2d 797 (8th Cir. 1958), cert, denied 358 
U.S. 829. In Aaron v. Cooper, 257 F.2d 33 (8th Cir.
1958), aff'd. 358 U.S. 1, this Court denied an attempt by 
the School Board to impose a two and one-half year 
moratorium on desegregation. In 1958 the Arkansas 
legislature enacted legislation which closed the Little 
Rock public schools for the 1958-59 school year. The closing 
was held to be unconstitutional in Aaron v. McKinley, 173 F. 
Supp. 944 (E.D. Ark. 1959) (3 judge court), aff'd sub, nom. 
Faubus v. Aaron, 361 U.S. 197.

Undaunted in its efforts to evade its constitu­
tionally imposed duty to dismantle the prior dual system 
of schools, the Board next attempted to lease the public 
school facilities to a private school system which would 
continue to operate the segregated schools. This Court 
struck down that scheme in Aaron v. Cooper, 261 F.2d 97 
(8th Cir. 1958).

Next, during the 1959-60 school year the Board 
assigned students to school on the basis of a state 
student assignment law, which, although this Court found 
was not facially unconstitutional in Parham v. Dove, 371 
F.2d 132 (8th Cir. 1959), was subsequently found to be

3



unconstitutional as applied. The School District was 
once more ordered to effect a transition to a non-dis- 
criminatory system. Norwood v. Tucker, 287 F.2d 798, 809 
(8th Cir. 1961).

The School District responded by adopting a freedom 
of choice plan for 1964 for grades one, four, seven and 
ten, which resulted in only token desegregation at some 
all-white schools. Clark v. Board of Education of Little 
Rock School District, 369 F.2d 661, 664 (8th Cir. 1966). 
This Court generally upheld the plan but remanded the 
case to the District Court with orders to oversee the 
correction of certain deficiencies. Specifically, 
the Court found that the plan did not provide adequate 
notice for annual choice of schools and that it did not 
adequately provide a definite plan for faculty and staff 
desegregation. Clark v. Board of Education of Little 
Rock School District, 369 F.2d 661, 671 (1966).!/

]_/ Between 1967 and 1968 two plans for desegregation 
were submitted to the School Board. The "Oregon Report", 
submitted in 1967 by a team of experts from the University 
of Oregon, called for "abandonment of the neighborhood 
school concept and the development of an educational park 
system though the institution of a capital building 
program and the pairing of schools." Clark v. Board of 
Education of Little Rock School District, 426 F.2d 1035, 
1037-38 (8th Cir. 1970) (footnote omitted). The proposal 
was abandoned by the Board after the 1967 School Board 
election, in which an incumbent supporter of the "Oregon 
Report" was defeated by an opponent of the plan.

[footnote continued]
4



After further proceedings in the District Court 
initiated by plaintiffs' motion for further relief filed 
on June 25, 1968, the District Court approved, with some 
amendments, the Board's plan for pupil assignment based 
on geographic attendance zones. Clark, id., at 1039-40. 
The amendments ordered by the Court included, inter alia, 
pairing of certain neighborhood schools. Both parties 
appealed. Plaintiffs argued that geographical zones 
served to perpetuate segregated schools and that the plan 
did not adequately desegregate faculty. The Board argued 
that the Constitution did not require transportation to 
particular schools and did not allow assignments according 
to race. This Court, citing Green v. County School 
Board, 391 U.S. 430 (1968); Raney v. Board of Education 
of Gould School District, 391 U.S. 443 (1968); Monroe v . 
Board of Commissioners, 391 U.S. 450 (1968); and Alexander 
v. Holmes County Board of Education, 396 U.S. 19 (1969), 
approved the Board's faculty desegregation plan but found 
the student assignment plan to be constitutionally 
deficient.

j[/ (continued)
Subsequently the School Board considered the "Parsons 

Plan", named for the Superintendent of Schools under whom 
the plan was developed. Under the "Parsons Plan" the high 
schools would be paired. Horace Mann, a black high school, 
would be closed. No provision was made for desegregating 
junior high schools. A bond issue required to finance 
implementation of the "Parsons Plan" was defeated in March 
1968, and thus, during the 1968-69 school year students were 
still assigned to schools according to "freedom of choice." 
Clark, Id., at 1038.

5



In striking down the Board's student assignment plan
this Court said

In certain instances geographic zoning may 
be a satisfactory means of desegregation. In 
others it alone may be deficient. Always, 
however, it must be implemented so as to 
promote desegregation rather than to reinforce 
segregation....

When viewed in the context of the above 
principles, the plan approved by the district 
court is constitutionally infirm. For a 
substantial number of Negro children in the 
District, the assignment method merely serves 
to perpetuate the attendance patterns which 
existed under state mandated segregation, the 
pupil assignment statute, and "freedom of 
choice" —  all of which were declared uncon­
stitutional as applied to the District. In 
short the geographical zones as drawn tend to 
perpetuate rather than eliminate segregation.

Clark v. Board of Education of Little Rock School District,
426 F.2d 1035, 1043 (1970).

The Court rejected the School Board's appeal and 
remanded the case to the District Court with directions 
that required the Board to submit a constitutionally 
effective plan which would be fully implemented "no later 
than the beginning of the 1970-71 school year." Id. at 
1 046.

Once again the District Court attempted to devise a 
plan which would pass constitutional muster. Clark v. 
Board of Directors of Little Rock School District, 328 F. 
Supp. 1205 (E.D. Ark. 1971). The District Court rejected 
a School Board proposal that would have reorganized the 
district on a 5-3-2-2 basis. Under the plan, both 
graduating high schools would have been in predominantly

6



white eastern Little Rock, and one middle school complex, 
Gibbs-Dunbar, would have had a black enrollment of over 
90 percent. I<3. at 1213.

Instead, the Court approved a plan which utilized 
pairing, clustering, and contiguous and noncontiguous 
zoning as desegregative techniques. Under the Court- 
approved plan,

grades 6 through 12 would be integrated at the 
beginning of the 1971-72 school year. All 
students in grades 6 and 7 would be assigned to 
four middle school centers located in the 
generally white residential areas in the 
western sections of the city; all students in 
grades 8 and 9 would be assigned to four junior 
high school centers, three of which are in the 
largely black residential areas in the eastern 
section of the city; and all students in grades 
10 through 12 would be assigned to three high 
school centers, two in white residential 
areas and one-Central High School-in central 
Little Rock.

Clark v. Board of Education of Little Rock, 449 F.2d 
493, 495 (1971).

Desegregation of elementary schools was to be 
delayed for one year, until the 1972-73 school year. At 
that time, however, the School Board was to disestablish 
racially identifiable schools "by means of pairing and 
grouping schools and assigning students to them so as to 
destroy their former racial identifiability." Clark v. 
Board of Directors of Little Rock School District, supra 
328 F. Supp. at 1219.

Again, both parties appealed. The Board claimed 
that its plan which would have left the Gibbs-Dunbar

7



Complex 95% black, was constitutionally permissible, that 
desegregation of elementary grades should not be required 
in 1972-73, and that the Board should not be required to 
provide certain transportation.

This Court approved the Board's plan with respect to 
secondary schools, but required the School Board to 
immediately establish objective nondiscriminatory teacher 
reassignment criteria consonant with standards set forth 
in Moore v. Board of Education of Chidester School 
District No. 59, 448 F.2d 709 (8th Cir. 1971). With 
respect to elementary schools, this Court took note of 
the long history of segregated schools and the inordinate 
delay on the part of the School Board in desegregating 
those schools. The Court required the Board to adopt a 
time-table and to immediately begin progress toward 
implementation in 1972-73 of a plan that would utilize 
pairing, clustering, contiguous and non-contiguous 
zoning, and the use of student transportation to effec­
tuate transition to a unitary system. Clark, supra 449 
F.2d 493 at 498-499.

Once again the District Court approved a plan from 
which plaintiffs appealed; once again this Court was 
unable to approve the plan in its entirety. The Court 
was able to approve the portion of the elementary school 
plan that called for zoning, pairing and clustering in 
grades 4 and 5. Under the plan, fourth grade students

8



from eastern and western Little Rock would attend schools
in predominantly white western Little Rock. Fifth grade 
students from those areas were assigned to schools in 
predominantly black eastern Little Rock. The Court also 
approved the provision in the plan for neighborhoood 
schools in central Little Rock "insofar as it provides 
for the integration of grades 1 through 5 in the central 
section of the city ... because this aspect of the plan 
preserves the neighborhood school in relatively integrated 
neighborhoods, and there is nothing to suggest that 
students in these grades will not be placed in fully 
desegregated classrooms and school buildings." Clark v . 
Board of Education of Little Rock, Arkansas, 464 F.2d 
1044, 1046 (1972). (Emphasis added and footnote omitted).

This Court, however, could not approve that portion 
of the plan which purported to desegregate grades 1-3 in 
the eastern and western section of the School District by 
assigning those students to their neighborhood schools.
Id., 1047. Dismissing the School Board's argument that 
the plan was sufficient because students in grades 1 
through 3 will be attending schools with desegregated 4th 
and 5th grades, the Court observed that "it appear[ed] to 
be a last ditch effort to retain a segregated school 
system in the primary grades contrary to the Surpeme 
Court's mandate that segregation be eliminated 'root and 
branch.'" Id., 1047 (citing Green v . County School 
Board, 391 U.S. 430, 437-38 (1968)).

9



The Court remanded and ordered that the School Board
develop a plan for grades 1-3 in eastern Little Rock 
similar to that adopted for grades 4 and 5. Implementa­
tion was scheduled for the beginning of the 1973-74 
school year.2./ Id.
2. Post-1972 Proceedings

Pursuant to a court-approved stipulation between the 
parties a plan was implemented during the 1973-74 school term 
(Tr. 250-51) that remained in effect, with some modifications 
until the implementation of the plan which is the subject of 
this appeal. The stipulation entered on June 23, 1973, 
reflected the terms of a moratorium agreement whereby litiga­
tion by plaintiffs would be foregone or held in abeyence in 
order to allow the School Board time to develop and implement 
desegregation in an atmosphere free of litigation. As part 
of the 1973 moratorium plaintiffs made a concession that al­
lowed all lower elementary grades to be placed in white neigh 
borhoods. Tr. 270. In turn, the Board agreed to keep the

2/ The Court also voided a modification of the Board's 
plan by the District Court which would have required 
assignment of faculty in a manner so that elementary 
schools with a greater number of students of one race 
would have a greater number of faculty of the other race. 
Instead, the Court thought it sufficient that teachers be 
assigned to schools in substantially the same proportions 
that they are found throughout the system. Clark v.
Board of Education of Little Rock, Arkansas, 464 F.2d 
1044, 1048 (1972). The Court also agreed sufficient 
objective criteria for faculty reassignment did not exist 
but remanded the issue to the District Court for develop­
ment of an adequate record. Id., 1049.

10



the schools as racially balanced as possible. Tr. 33-34.
In particular, the Board was required to stay within a 10% 
deviation of the average racial percentage on each particular 
level. Tr. 39, 98.

After 1973 various modifications to the existing 
plan were presented to either the Biracial Committee or 
to the plaintiffs for consideration and discussion. In 
the spirit of the moratorium, the plaintiffs did not inter­
pose formal objections until 1979 when it became clear to 
plaintiffs that their objections to the manner of implemen­
tation of desegregation were not being heeded. Tr. 257.

During the period in which the moratorium agreement 
remained in effect, the District engaged in a series of 
segregatory and discriminatory acts, including student 
assignment, faculty assignment and school construction 
policies and practices. With respect to student assign­
ment, Board Member Betty Herron admitted that the Board 
engaged in "tracking" of students within ostensibly 
desegregated schools. Tr. 217. (See also testimony of Dr. 
Patterson, Tr. 321). On the intermediate level, students were 
assigned to classes through ability grouping on the basis of 
test performance and teacher recommendations. _Id. Black 
students generally scored lower on standardized tests. Tr.
62. The result of testing and teacher recommendations was 
racially identifiable classes on the intermediary level.



Tr. 216. Although the District does not currently administer 
I.Q. tests (Tr. 128) it her used them for some assignment 
purposes. Generally it is true that if I.Q. tests are used 
for purposes of classroom assignments segregated classes will 
result. Tr. 118.

On the secondary level, there are basic, regular, 
enriched and honors classes (four levels). Tr. 215. Student 
placement resembled a bell curve, with 20% of the students at 
either end and 60% in the middle. On either end the students 
were of one race, i.e. honors classes were predominantly white 
and basic classes are predominantly black. Tr. 402. In the 
middle, regular courses were largely black. Tr. 409-410.
Since 1973, only 5% of all honors graduates have been black. 
Tr. 366. At the time of trial, of 76 students in three high 
schools (Parkview, Hall and Central) taking physics, only one 
was black. Tr. 404. At Parkview there were no blacks in

3/advanced biology. Tr. 404.
Testimony at trial also indicated that special 

education classes were racially segregated. Specifically, 
classes for the learning disabled have been virtually all

3/ Moreover, some honors classes have as little as 8-10 
students; no special education class has as few. Tr. 116, 117.

12



black while the related educable mentally retarded clsses 
were virtually all white. Tr. 112. Moreover, in 1976 
federal funds were temporarily withheld because over 1,000 
black children were discriminatorily relegated to special 
education classes. Tr. 322.

The School Board offered no evidence that its 
program of extensive classroom segregation was justified 
by any legitimate educational benefit to students.

Black faculty have not, for the most part, advanced 
to upper level i. e . , supervisory positions. Not one high 
school principal is black. Tr. 110. Although there are 
approximately 15 instructional supervisors, no black 
supervises, or has ever supervised, academic instruction, 
with the exception of special education, on the secondary 
level. Tr. 11, 350. For example, in 1980, Dr. Ruth 
Patterson, supervisor for human relations for the School 
District, was recommended by Paul Masem, then superintend­
ent of the Little Rock public schools, for the position of 
Supervisor of English and Social Studies. Tr. 327. In Mr. 
Masem's opinion, Dr. Patterson was eminently qualified for 
the job. Tr. 447. Nevertheless, Masem was instructed by the 
Board to remove Dr. Patterson's name from the list of candi­
dates and the position was given to a white male with lesser 
qualifications. Tr. 327. Dr. Herbert B. Williams, assoc­

13



iate superintendent of educational programs, testified that 
in his opinion Dr. Patterson was qualified for the position 
of Supervisor of English and Social Studies and knew of no 
valid reason why she was not given the position. Tr. 415. 
Moreover, although Mr. Williams, who is black, is second in 
the school district's hierarchial structure, when Superintend­
ent Masem was placed on inactive status by the School Board, 
Mr. Williams was by-passed in favor of a white woman, who was 
made acting superintendent. Tr. 129-130.

During the moratorium years, the District engaged 
in school closing and construction policies which were 
segregatory and imposed the burden of desegregation 
disporportionately on black students. Thus, schools in 
black neighborhoods have been disproportionately closed 
without justification. Tr. 55, 104, 210. School 
construction proceeded in white neighborhoods at a time 
when capacity existed at schools located in the black 
community. Tr. 108. Schools built in western Little Rock 
during the last 2 1/2 years have not been filled as pro­
jected. Tr. 57.

On May 4, 1979, plaintiffs moved for further relief.
The District court, however, has never remedied the 
Board's student assignment, faculty, and school closing 
and construction practices.

14



Subsequently, on August 27, 1981 the Board passed a 
resolution which provided that during the 1981-82 school 
year homerooms in grades 1-3 of the primary schools 
"be integrated, as far as possible, in accordance with 
the approximately 65 to 35 race ratio in the overall 
Little Rock School District and that, as far as possible, 
in no case in these schools should a minority be repre­
sented by less than 35% of the total enrollment in a 
homeroom class if that minority is represented at all."
See "Stipulation," App. 1. The School District stipulated 
that "[i]n the event the Board's Resolution is implemented 
some of the primary classes within the Little Rock School 
District will be all black; in the event the proposal is not 
implemented, all of the primary classes will have a mixture 
of black and white students." App. 1. The plan, known as 
the "65-35 plan," was opposed by plaintiffs and rejected by 
the District Court after a hearing in September, 1981 which 
led the Court to conclude that it was "not a constitutionally 
permissible plan of student assignment." Order of District 
Court of 9/3/81.

3. Proceedings Below
On April 26, 1982, the Little Rock School Board 

adopted a plan by which it knowingly created four segre-

15



gated schools with all black enrollments.- Tr. 168.
The plan, known as "Partial K-6", was offered as an attempt 
to entice white parents to keep their children in the dis­
trict and to regain some who had left. Tr. 304. "Partial 
K-6" included restructuring of attendance zones to facilitate 
reestablishment of neighborhood schools. Tr. 122. Because 
Little Rock's residential patterns are racially segregated, 
neighborhood schools are inevitably segregated schools.
Tr. 175.

The underlying thesis of "Partial K-6" is that 
the School District will be able to retain white children 
and perhaps even regain some who have left if it provides 
an opportunity for them to attend some schools at which the 
black population is relatively low because black students 
are concentrated elsewhere. Tr. 444. Stated differently, 
if the School Board segregates some black students in order 
to increase white percentages in certain schools, some white 
children will be attracted back to the system. Tr. 90. 
Indeed, as one School Board member explained, the concept 
behind "Partial K-6" is "to provide an integrated school 
system in the elementary grades for as far as our white 
children will go." Tr. 276. (Emphasis added.)

4/

4/ Under "Partial K-6" four schools, Rightsell, Mitchell, 
Ish and Carver, would have over 90% black enrollment. 
Rightsell would be 96% black, Mitchell 99%, Ish 99%, and 
Carver 99%. The number of nonwhite students (1,484) in 
these schools would represent approximately 13% of all 
students in the elementary schools and approximately 19% 
of the non-white students in elementary schools. L.R.S.D. 
Reorganization Impact on Students, Instructional Programs, 
Personnel, Resources, Logistics, Physical Plants - Paul 
Masem, Superintendent (April 5, 1982)

16



The Board voted to implement "Partial K-6" in spite 
of the fact that it not only established four segregated 
schools, it also resulted in overcrowding at those 
schools.—/ And the Board voted to implement the plan 
in spite of the fact that, as Dr. Paul Masem (who at the 
time the Board approved "Partial K-6" was the superinten­
dent of the Little Rock School District) testified, the 
educational impact of "Partial K-6" on students in the 
four segregated schools would be a rather significant 
gap in performance between them and their white counter­
parts. Tr. 440. Dr. Masem testified that overcrowding

4/ For example, during the 1981-82 school term Carver 
enrolled 309 students (263 excluding kindergarten); under 
"Partial K-6" enrollment was projected to be 504 (453 
excluding kindergarten). Carver's capacity is 450. In 
1981-82 Carver's student enrollment was 59% black. Given 
the racial composition of the school district, it was 
well integrated. Tr. 165. Under Partial K-6, 
that will change. White children who attended Carver 
last year from the Williams school area will now attend 
Brady and Jefferson, both of which are located in white 
neighborhoods. Tr. 165.

Of course, the creation of four all-black segregated 
schools has the corresponding effect of making other 
schools disproportionately white. Tr. 172-73.
For example, in 1981-82 at Brady there were 52 white and 
21 black children in kindergarten. Under "Partial K-6" 
there will be 34 white children and one black. Tr. 190.

At Meadowcliff, in 1981-82 there were 29 white and 
20 black kindergarten children. Under "Partial K-6" there 
will be 0 blacks in kindergarten.

And the Wilson school, which was 
will be 44% white. Tr. 173.

21% white in 1981-82



would have detrimental effects because higher performance 
among black students currently seems to benefit from lower 
student teacher ratios. The four segregated schools, partic­
ularly to the extent that they are overcrowded, would be "at 
a real disadvantage to provide quality education." Tr.
440-41.

The plan also contemplated a magnet school which was
located at the Williams school in a virtually all-white
neighborhood. Tr. 203. The magnet was located pursuant to a
School Board stipulation that it would have to be west of
University Boulevard, which is perceived to be the boundary \
between black Little Rock and white Little Rock. Tr. 204. 
Western Little Rock is predominantly white.

The magnet is a K-6 school which operates a random 
selection procedure based on attendance zones. Its 
projected enrollment was 500 students. Its planned 
racial composition was 50% black, 50% white, with a 10% 
allowable variance. Tr. 199. In effect, the magnet compo­
nent of "Partial K-6" establishes a disproportionately white 
"ideal school" in the predominantly white western section of 
Little Rock while four overcrowded segregated schools are
established in predominantly black eastern Little Rock. Tr.

5/340.~

5 / Thedford Collins, a black member of the Patrons' 
Committee who opposed "Partial K-6" (Tr. 224-25) 
testified that the proposed magnet at Williams is

18



An additional result of "Partial K-6" is an increase 
in the burden of transportation on black students. Under
the reorganization students would be reassigned from 
Booker Junior High School. As a result, at the junior 
high school level, it was projected that approximately 
312 black students would be transported by bus who had 
not been previously transported. Tr. 58-59. Under the plan, 
no additional white children would be bussed. Tr. 226-27.

The School Board petitioned the District Court for 
approval of "Partial K-6" and a hearing followed on June 
7 and 8, 1982. On July 9, 1982, the District Court ruled 
that ” [u]nder the circumstances of this case, Partial K-6 
Plan is a constitutionally sound plan which may be imple­
mented by the Little Rock School District." Memorandum 
and Order of July 9, 1982, at 18. The Court based its 
ruling, in part, upon the conclusion that "[a]s a tool 
for accomplishing desegregation of elementary grades, the 
present plan has, perhaps, outlived its usefulness. The

5 /  (continued)
not truly a magnet, since it does not offer a special 
curriculum. Rather, it offers a basic program that is 
available elsewhere in the district. Tr. 304.

The Patron's Committee was established by the Board 
in October, 1981, one month after the District Court 
struck down the "65-35 plan." It was charged with the 
task of reviewing various desegregation plans and evaluat­
ing which ones could work. Tr. 297.

19



RETURN TO ORDER TO SHOW CAUSE # BY
JACK GREENBERG AND JAMES M. NABRIT, III, 
AND MOTION FOR WBW0W LEAVE TO WITHDRAW AS 
COUNSEL FOR ###### APPELLANTS.

In response to the Order to Show cause entered herein on

January, 1983, Jack Greenberg and James M. $##### Nabrit,III
tjoth members of the bar of this ##### court, state as follows:

Jack Greenberg serves as Director-Counsel 
of the NAACP Legal Defense and Educational Fund, Inc. and #### 
James M. Nabrit, III is the Associate Counsel of ######## that 
organization. ##### In our capacities as supervisors of the 
the NAACP Legal Defense and Educational Fund, Inc. we on occasion
permit# our names to be signed to briefs and pleadings in

or one of its employed staff attorneys 
cases where the Fund/has provided ###### ###########ft#### assistant
to the ########### lead counsel handling a case but #### where 
we have "not: actively participated in the presentation of the case

l\ ---- —  )
ih court, the Clark case^now before this Court neither of

(Yif&KJi/ffV '^u$ has 0  had any a c t i v e  p a r t i c i p a t i o n  in  t h e  p r e s e n t a t i o n  o f  th e  
0 ° * -

j v t J c j ^ s e  i n  t h i s  c o u r t  o r  in t h e  c o u r t  below during 1982  o r  1 9 8 3 .

/ Neither of us had any knowledge of the facts and
1 circumstances which may have led to a violation of this courts 

p.LWhp | rules until informod. of th»=<»fe£y- January 6, 1983
when we
rules until a<£ter"we--werm informed-,

first learned of the entry of this court's show 
cause order.######## , Neither of us at any time agreed to
assume responsibility for any

task in connection with the perfection or 
preparation of the appeal. Ph-i-*hfl,rmnr c. fibring the period
December 7, 1982 to January 4, 1983 Jack Greenberg was outside 
the United States traveling in Tndi rvnrl nthrr pnrtw n f—1'rrrrr.



dual system has long been eliminated and the Board
should be permitted to consider factors other than
racial balance in structuring an elementary attendance

6/
plan." [footnote next page]

SUMMARY OF ARGUMENT
The District Court erred by failing to require 

that the school district discharge its affirmative 
obligation to disestablish the dual school system and 
to provide the most effective desgregation possible. 
Permitting the school district to resegregate four 
elementary schools as black schools was neither neces­
sary nor justified and constitutes a failure of the 
schools district's affirmative obligation to provide 
an effective desegregation remedy. Likewise, per­
mitting segregative student classroom assignment, 
faculty assignment and school abandonment and con­
struction also does not comport with affirmative ob­
ligations to disestablish a segregated school system 
now.

20



ARGUMENT
Although this case and its predecessor, Cooper v. 

Aaron, span over a quarter of a century, during the great 
majority of that time no significant desegregation 
occurred.

When this case was before the Court in 1971 the Court
noted with respect to the elementary schools that

In the 1970-71 school year, more than seventy- 
five percent of the black students attended 
twelve schools which were either totally black 
or more than ninety percent black, and more 
than seventy-five percent of the white students 
attended eleven elementary schools which were 
either all-white or more than ninety percent 
white.

Clark v. Board of Education of Little Rock, Arkansas, 449 
F .2d 493, 498 (1971). Not until the 1973-74 school year 
was a meaningful desegregation plan implemented. That 
plan was implemented pursuant to a moratorium agreement 
between the parties under which appellants made some 
concessions with the hope that the School Booard, un-

6/ Plaintiffs Motion for Stay Pending Appeal and Expe­
dited Appeal was denied by this Court on August 16, 1982 
and the Court set a briefing schedule for this Appeal. 
However, the Court directed the District Court to hold a 
prompt hearing on a motion for further relief and certain 
discovery requests filed by plaintiffs. The District 
Court filed a Memorandum & Order on September 3, 1982, in 
which it ruled that there were no unresolved motions 
before the Court.

21



fettered by continuous litigation, would pursue desegregation 
on its own initiative with their cooperation. That hope 
proved illusory. During the period formal litigation was 
held in abeyance, the uncontradicted record demonstrates that 
the District engaged in segregatory and discriminatory 
student assignment, faculty assignment and school closing and 
construction policies which substantially vitiated the 
desegregation plan. Indeed, action by the District Court was 
required to prevent implementation of the segregatory 
"65-35" student assignment program.

The District Court, therefore, wholly erred in 
concluding that "the Little Rock School District has 
operated in compliance with court decrees for nine years 
as a completely unitary desegregated school system...." 
Memorandum and Order of July 9, 1982, p. 16. The District 
Court erroneously ignored the uncontradicted record that 
any significant desegregation came late to Little Rock, 
and that the task of eliminating all vestiges of 
state-imposed discrimination has not yet been completed.
See, e.g. Columbus Board of Education v. Penick, 443 U.S.
449, 459-63 (1979). Clearly, there was no basis for any 
conclusion that a unitary school system was being operated. 
Martin v. Charlotte-Mecklenburg Board of Education,
475 F. Supp. 1318, 1322-40 (W.D.N.C. 1979), aff'd on 
other grounds, 626 F.2d 1165 (4th Cir. 1980), cert. 
denied, 450 U.S. 1041 (1981). Even assuming arguendo,

22



black school children cannot be squared with the Constitu­
tion's prohibition of racially discriminatory state 
action. Columbus Board of Education v. Penick, supra,
443 U.S. at 961-63.

that the District Court's statements concerning unitariness
had some basis, resegregation of substantial numbers of

I.
The Duty of Defendant School Board and the 
District Court Was "'To Come Forward With 
A Plan That Promises Realistically To Work ... 
Now ... Until It Is Clear That State-Imposed 
Segregation Has Been Completely Removed."' 1_/

"The objective today remains to eliminate from the
public schools all vestiges of state-imposed segregation."
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1, 15 (1971). "In default by the school authorities
of their obligations to proffer acceptable remedies, a
district court has broad power to fashion a remedy that
will assure a unitary system." Ic3. , at 16.

"Having once found a violation, the district 
judge or school authorities should make every 
effort to achieve the greatest possible 
degree of actual desegregation, taking into 
account the practicalities of the situation.
A district court may and should consider the 
use of all available techniques including 
restructuring of attendance zones and both 
contiguous and non-contiguous attendance 
zones.... The measure of any desegregation 
plan is its effectiveness."

Davis v. Board of School Commissioners, 402 U.S. 33, 37 
(1971 ) .

]_/ Swann v. Charlotte-Mecklenburg Board of Education, 4 0 2 
U.S. 1, 13 (1971), quoting Green v. County School Board, 
391 U.S. 431, 439 (1968) (emphasis in original).

23



The principles set forth in Swann and Davis have not
lost vitality. In 1979 the Supreme Court reiterated 
that a "[school] board's continuing obligation was '"to 
come forward with a plan that promises realistically to 
work ... now ... until it is clear that state imposed 
segregation has been completely removed."' Swann v .
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 13 
(1971), quoting Green, supra at 439 (emphasis in original)." 
Columbus Board of Education v. Penick, 443 U.S. 449, 459 
(1979); Dayton Board of Education v. Brinkman, 443 U.S.
526, 538 (1979). The Supreme Court affirmed in Penick, 
that" [t]he Board's continuing 'affirmative duty to 
disestablish the dual school system' [is] beyond question." 
443 U.S. at 460.

Where a racially discriminatory school 
system has been found to exist, Brown II imposed 
the duty on local school boards to "effectuate 
a transition to a racially nondiscriminatory 
school system." 349 U.S. [294] 301. "Brown II 
was a call for the dismantling of well-entrenched 
dual systems," and school boards operating such 
systems were "clearly charged with the affirmative 
duty to convert to a unitary system in which 
racial discrimination would be eliminated root 
and branch." Green v. County School Board, 391 
U.S. 430, 437-438 (1968). Each instance of a 
failure or refusal to fulfill this affirmative 
duty constitutes the violation of the Fourteenth 
Amendment. Dayton I, 433 U.S. at 413-414. Wright 
v. Council of City of Emporia, 407 U.S. 451, 460 
(1972); United States v. Scotland Neck Board of 
Education, 407 U.S. 484 (1972) (creation of a new 
school district in a city that had operated a dual 
school system but was not yet the subject of 
court-ordered desegregation).

24



443 U.S. at 458 (emphasis added). The duty of a school 
board to provide effective nondiscriminatory relief was
once again recognized. As the Court stated in the Brinkman 
opinion:

Part of the affirmative duty imposed by our 
cases, as we decided in Wright v. Council of City of 
Emporia, 407 U.S. 451 (1972), is the obligation 
not to take any action that would impede the process 
of disestablishing the dual system and its effects.
See also United States v. Scotland Neck City Board 
of Education, 407 U.S. 484 (1972). The Dayton Board, 
however, had engaged in many post-Brown I actions 
that had the effect of increasing or perpetuating 
segregation. The District Court ignored this com­
pounding of the original constitutional breach on the 
ground that there was not direct evidence of continued 
discriminatory purpose. But the measure of the 
post-Brown I conduct of a school board under an 
unsatisfied duty to liquidate a dual system is the 
effectiveness, not the purpose, of the actions in 
decreasing the segregation caused by the dual system. 
Wright, supra, at 460, 462; Davis v. School Comm'rs 
of Mobile County, 402 U.S. 229, 243 (1976). As was 
clearly established in Keyes and Swann, the Board 
had to do more than abandon its prior discriminatory 
purpose. 413 U.S. at 200, 201, n.11; 402 U.S. at 
28. The Board has had an affirmative responsibility 
to see that pupil assignment policies and school 
construction and abandonment practices "are not 
used and do not serve to perpetuate or re-establish 
the dual school system," Columbus, ante, at 460, 
and the Board has a "'heavy burden'" of showing 
that actions that increased or continued the effects 
of the dual system serve important and legitimate 
ends. Wright, supra, at 467, quoting Green v.
County School Board, 391 U.S. 430, 439 (1968).

443 U.S. at 538 (emphasis added).
The District Court wrongly ignored the principles 

of Swann and Davis which were reiterated in Brinkman and Penick. 
(Indeed, Brinkman or Penick were neither cited nor re­
ferred to by the lower court.) Instead, the Court allowed 
implementation of "Partial K-6" because it concluded "that 
the Board is not motivated by a desire to resegregate the

25



schools in adopting "Partial K-6". Memorandum and Order 
of July 9, 1982, at 12. Good faith, however, is not a 
defense. Id. Indeed, "the availability to the board of 
other more promising courses of action may indicate a 
lack of good faith." Green, supra, 391 U.S at 439.

II.
The District Court Wrongly Approved Partial K-6, 
Which Unconstitutionally Resegregates Substantial 
Numbers of Black School Children and Failed to 
Correct Student Assignment, Faculty Assignment, and 
School Closing and Construction Problems.

The District Court, cited Milliken v. Bradley, 418 U.S. 
717, 740-741 (1974); Swann v. Charlotte-Mecklenburg Board 
of Education, supra, 402 U.S. at 22-25; and Pasadena City 
Board of Education v. Spangler, 427 U.S. 424, 434 (1976), 
for the proposition that "there can be no serious claim 
that 'racial balance' in the public schools is constitu­
tionally mandated." Memorandum and Order of July 9, 1982 at 
17. The District Court went on to declare that

A small number of one-race, or virtually 
one-race, schools within a district is not in 
and of itself the mark of a system that still 
practices segregation by law. Swann v. Charlotte- 
Mecklenburg Board of Education, supra, at 26.
This is particularly true where, as here, the 
one race schools are the product of demographics 
over which the Board has no control. Pasedena 
City Board of Education, supra at 436. ...
Neighborhood schools, a magnet school, financial 
considerations, and the desirable aspects of a 
K-6 grouping are legitimate factors which may 
be considered when weighing the educational 
benefits of one attendance plan against another.

Id., at 17.
26



The District Court's interpretation of the case
law is tortured, however, and flies in the face of 
the Supreme Court's decisions in Penick, supra, and 
Brinkman. Moreover, the District Court's opinion ignores 
the law of this case. While Milliken, Swann and Pasadena 
all support the proposition that strict racial balance at 
every school is not constitutionally required, the 
Supreme Court has approved the use of mathematical 
ratios and has stated that "[a]wareness of the racial 
composition of the whole system is likely to be a useful 
starting point in shaping a remedy to correct past 
constitutional violations." Swann, supra, at 25; Kelley v . 
Metropolitan County Board of Education, 687 F.2d 814, 817-19 
(6th Cir. 1982).

And nothing in the case law relied upon by the 
District Court supports the proposition that a school 
board may knowingly and deliberately create segregated 
schools. To the contrary, the governing principle is 
that

in a system with a history of segregation the 
need for remedial criteria of sufficient 
specificity to assure a school authority's 
compliance with its constitutional duty warrents 
a presumption against schools that are 
substantially disproportionate in their racial 
composition. Where the school authority's 
proposed plan for conversion from a dual to a 
unitary system contemplates the continued 
existence of some schools that are all or 
predominantly of one race, they have the burden

27



of showing that such school assignments are genuinely nondiscriminatory. The court should 
scrutinize such schools, and the burden upon 
the school authorities will be to satisfy the 
court that their racial composition is not the 
result of present or past discriminatory action 
on their part.

Swann, supra, at 26; Kelley, supra.
Swann spoke to instances where, through circum­

stances totally beyond the board's control, a school 
board is simply unable to desegregate every school in a 
system, and the failure to do so does not perpetuate 
discriminatory state action. This case does not present 
one of those instances. Rather, it presents a situation 
where all of the schools in the school district were 
desegregated, i ,e. , within a reasonable variation from
the district wide racial ratios before the implemen-

8/tation of Partial K-6. This is not an example of
a school board's inability to desegregate a small number
of remaining all black schools in a system; it is an
example of a school board affirmatively acting to reestab-

9/lish all black schools.

8/ Indeed, every witness to whom the question was put, 
including members and employees of the School Board, 
testified that under the plan in effect prior to imple­
mentation of "Partial K-6", the four schools, Mitchell, 
Ish, Rightsell and Carver were desegregated, as were the 
rest of the Little Rock public schools. Tr. 60, 66, 89, 
165, 239, 253, 436.
9/ Although the District Court refused to find that the 
school board was acting discriminatorily, the uncontro­
verted evidence reveals otherwise. It is beyond dispute 
that the School Board knowingly and deliberately created 
four virtually all black schools. See Tr. 94, 272, 395. 
In fact, Mrs. Betty Herron, a School Board member, during

28



The School Board has advanced, and the District 
Court has credited, a number of reasons for implementing
"Partial K-6". None of these reasons justify intentional­
ly resegregating part of the School District. The phenom­
enon known as "white flight" is constitutionally unaccept­
able as an excuse. Monroe v. Board of Commissioners, 391 
U.S. 450, 459 (1968); United States v. Scotland Neck City 
Board of Education, 407 U.S. 484, 491 (1972); Higgins v. 
Board of Education, 508 F.2d 779, 794 (6th Cir. 1974). 
United States v. Board of Commissioners of Indianapolis, 
Indiana, 503 F.2d 68, 80 (7th Cir. 1974). Moreover, the 
presence of other non-racial reasons for adopting "Partial 
K-6" does not cure the constitutional violation. Race 
need not be the dominant or primary purpose behind the 
School Board's actions. It is enough for equal protection 
purposes, that a discriminatory purpose has been a

9/ continued
the June 7-8, 1982 hearings in the District Court, 
testified that "I did not intend in reorganizing the 
school district to maintain integration at this time, but 
that is what I saw as something that had to be done."
Tr. 168.

The School Board's motivation for adopting "Partial 
K-6" can in no way be said to be non-racial. The entire 
context of the Board's actions was racial. Thus, for 
racial reasons, the School Board adopted a plan with the 
forseeable result of creating four virtually all-black 
schools. Adherence to a particular policy or practice 
"with full knowledge of the predictable effects of such 
adherence upon racial imbalance in a school system is one 
factor among many others which may be considered by a 
court in determining whether an inference of segregative 
intent should be drawn." Columbus Board of Education v. 
Penick, supra, 443 U.S. at 465.

29



motivating factor. Arlington Heights v. Metropolitan 
Housing Corporation, 429 U.S. 252, 265 (1977).

With respect to student assignment, faculty assign­
ment, and school closings and construction, the 
District Court found no vestiges of discrimination in 
the School Board's policies or practices by wholly 
ignoring the uncontroverted testimony in the record.— /

In spite of the unrebutted testimony of both employees 
and non-employees of the School District to the effect 
that the School Board discriminatorily and without 
legitimate educational justification tracks students into 
racially segregated classes, the District Court found 
that "there is absolutely no evidence that [such segrega­
tion is] the product of any discriminatory policy or 
practice pursued by the Board." Memorandum and Order 
of July 5, 1982, at 14. That conclusion is contrary to 
all authority, where, as here, the board fails to 
present any evidence that the assignment method is not 
based on the present results of past segregation or 
provides substantial educational benefits. United States 
v. Gadsen Cty School Dist., 572 F.2d 1049 (5th Cir.
1978); McNeal v. Tate, 508 F.2d 1017 (5th Cir. 1975) (and 
cases cited). The District Court erred when it failed to 
recognize that "[pjupil assignment alone does not

10/ See Tr. 112, 114, 115, 320, 324, 402.
30



automatically remedy the impact of previous, unlawful 
educational isolation, the consequences linger and can
only be dealt with by independent measures." Milliken v. 
Bradley, 433 U.S. 267, 287 (1977) (Milliken III). In a 
system with this history of past discrimination, it 
simply cannot be maintained that the classroom segrega­
tion and disparities in achievement levels are not 
vestiges of a dual system of segregation.

Similarly, the District Court erroneously ignored 
the impact of school construction and abandonment policies.

The construction of new schools and the 
closing of old ones are two of the most important 
functions of local school authorities and also two 
of the most complex.... In the past, choices in this 
respect have been used as a potent weapon for 
creating or maintaining a state-segregated school 
system. In addition to the classic pattern of 
building schools specifically for Negro or white 
students, school authorities have sometimes, since 
Brown, closed schools which appeared likely to 
become racially mixed through changes in neighbor­
hood residential patterns. This was sometimes 
accompanied by building new schools in the areas of 
white suburban expansion furthest from Negro popu­
lation centers in order to maintain the separation 
of the races with a minimum departure from the 
formal principals of "neighborhood zoning." Such a 
policy does more than simply influence a short-run 
composition of the student body of a new school. It 
may well promote segregated residential patterns 
which, when combined with "neighborhood zoning," 
further lock the school system into the mold of 
separation for the races. Upon a proper showing a 
district court may consider this in fashioning a remedy.

Swann supra, 402 U.S. at 20-21; Penick, supra, 443 U.S. at 
460.

The same is true of faculty assignment. Swann, supra, 
402 U.S. at 18; Penick, supra, 447 U.S. at 460.

31



CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

JOHN W. WALKER 
RALPH WASHINGTON

1191 First National Building 
Little Rock, Arkansas 72201
JACK GREENBERG 
JAMES M. NABRIT, III 
BILL LANN LEE 
THEODORE M. SHAW 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

W. A. BRANTON, JR.
Suite 500
666 Eleventh Street, N.W. 
Washington, D.C. 20001

Attorneys for Plaintiffs-Appellants

32



CERTIFICATE OF SERVICE

Undersigned counsel hereby certifies that on the 4th day 
of January, 1983, copies of the foregoing Brief for Plaintiffs- 
Appellants were served on attorneys for defendants-apellees 
by Federal Express, guaranteed next day delivery, addressed 
to:

Chris Heller, Esq.
First National Building
Little Rock, Arkansas 72201
Walter Paulson, Esq.
First National Building
Little Rock, Arkansas 72201

Attorney for Plaintiffs-Appellants



)

I

*