Rogers v Paul Petition for Writ of Certiorari and Motion to Add Party Plaintiffs

    In the

§H|ir£itt£ GImtrt of %  Imtefc
October T erm, 1965 

No........................

P atricia R ogers, et al., 

—v.—
Petitioners,

D r. E dgar F. P aul, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
AND

MOTION TO ADD ADDITIONAL PARTY PLAINTIFFS

Jack Greenberg 
J ames M. Nabrit, III 
Derrick A. B ell, Jr.

10 Columbus Circle 
New York, New York 10019

George H oward, Jr.
329^ Main Street 
Pine Bluff, Arkansas

Attorneys for Petitioners



I N D E X

I. P etition eoe W rit oe Certiorari................................. 1

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

Jurisdiction ....................................................................... 2

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

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

Statement of the Case .................................................... 3

PAGE

Reasons for Granting the Writ ..................................... 11

1. The Fort Smith Plan Unreasonably Delays 
Pupil Desegregation and Condemns Negro 
Children to Attend Inferior Schools ..............  12

A. The Court of Appeals has approved a pace 
of desegregation in conflict with standards 
established by this Court and the other cir­
cuits .................................................................  12

B. In view of the grossly inferior education it
provides, the Lincoln School should have 
been desegregated immediately .................  17

C. The lower court’s decision frustrates en­
forcement of school desegregation as re­
quired by the Civil Rights Act of 1964....... 21

2. Petitioners’ Constitutional Right to a Desegre­
gated Education Includes, of Necessity, In­
struction by Teachers Assigned Without Re­
gard to Race .......................................................  24

Conclusion 33



11

PAGE

II. Motion foe L eave to A dd Pabty P laintiffs ....... 35

A ppendix

Opinion of Angnst 19, 1964 ................................... la

Judgment Filed August 19, 1964 .............................  28a

Opinion of May 7, 1965 ........................................  29a

Judgment Filed May 7, 1965 ...................................  49a

T able of Cases

Aaron v. Cooper, 257 F. 2d 33 (8th Cir. 1958) ........... 15
Acree v. County Board of Education of Richmond

County, Georgia, ------  F. 2d ------ (5th Cir., No.
22,723, June 30, 1965) ..................................................  19

Augustus v. Board of Public Instruction, 306 F. 2d 
862 (5th Cir. 1962) ...................................................... 26

Bailey v. Patterson, 369 U. S. 31 .......................... ....24, 28
Bates v. Little Rock, 361 U. S. 516 .............................  28
Bivins v. Bd. of Public Eductaion and Orphanage for 

Bibb County, Ga., 342 F. 2d 229 (5th Cir. 1955) .... 31 
Board of Public Instruction of Duval County v. Brax­

ton, 326 F. 2d 616 (5th Cir. 1964) ............................. 26, 30
Bowditch v. Buncombe County Board of Education,

345 F. 2d 329 (4th Cir. 1965) ..................................... 31
Bradley v. School Board of Richmond, Va., 345 F. 2d

310 (4th Cir. 1965) .......................................................  31
Bradley v. School Board of the City of Richmond, Va.,

No. 415 (Oct. Term, 1965) ..........................................  12



Ill

Brewer v. Hoxie School District, 238 F. 2d 91 (8th
Cir. 1956) .............. .................. ................ .......... ........  16

Brooks v. School District of Moberly, Mo., 267 F. 2d
733 (8th Cir. 1959) .......................... ............................. 28

Browder v. Gayle, 352 IT. S. 903 ......... ................ ......  24
Brown v. Board of Education, 347 IT. S. 483 .......2, 3,18,19,

21, 24, 30, 32
Brown v. Board of Education, 349 U. S. 294 .......3, 4, 9,13,

24, 25
Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957) 29 
Buckner v. County School Board of Greene County,

332 F. 2d 452 (4th Cir. 1964) .............................. . 20

Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963) ....... 31
Calhoun v. Latimer, 377 LT. S. 263 ......................... 12,14, 25
Christmas v. Board of Education of Harford County,

Md., 231 F. Supp. 331 (D. C. Md. 1964) ................"... 30
Colorado Anti Discrimination Commission v. Conti­

nental Air Lines, 372 U. S. 714 .................................  24
Cooper v. Aaron, 358 IT. S. 1 ................... .............13,15,16
Corbin v. County School Board of Pulaski County, 177

F. 2d 924 (4th Cir. 1949) ......... ......... .....................  20
Crisp v. County School Board of Pulaski County, Va.

(W. D. Va., 1960, C. A. No. 1052) 5 Pace Eel. L.
Eep. 721 ........ ...............................................................  20

Dawson v. Baltimore City, 350 U. S. 877 ........................  24
Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ...... 15
Dowell v. School Board of Oklahoma City, 219 F. Supp.

427 (W. D. Okla. 1963) ............................ ........ .........  30

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ........... 12

PAGE



Gaines v. Dougherty County Board of Education, 329
F. 2d 823 (5th Cir. 1964) ..........................................

Gebhart v. Belton, 91 A. 2d 137 (Del, 1952) ..............
Gilliam v. School Board of the City of Hopewell, Ya.,

No. 416 (Oct. Term, 1965) ............................................
Gilliam v. School Board of the City of Hopewell, Va.,

345 F. 2d 325 (4th Cir. 1965) .....................................
Goins v. County School Board of Grayson County, 186

F. Supp. 753 (W. D. Va., 1960) .............................
Goode v. Board of Education of Summers County, 8

Eace Eel. L. Eep. 1485 (S. D. W. Va. 1963) ..........
Goss v. Board of Education of Knoxville, 301 F. 2d

164 (6th Cir. 1962) ........................................... ......13,
Goss v. Board of Education of Knoxville, 305 F. 2d

523 (6th Cir. 1962) ....................................................
Goss v. Board of Education of the City of Knoxville,

373 H. S. 683 .................................... .................. 5, 9,12,
Griffin v. Board of Supervisors, 339 F. 2d 486 (4th

Cir. 1964) .......................... ................................ ...........
Griffin v. County School Board of Prince Edward

County, 339 F. 2d 486 (4th Cir. 1964) .........................
Griffin v. County School Board of Prince Edward

County, 377 U. S. 218 ....................................... 12,14,
Griffith v. Board of Education of Yancey County, Civ. 

No. 1881 (W. D. N. C.) 186 F. Supp. 511 (W. D. 
N. C. 1960) ...................................................................

Henry v. Coahoma County, Miss. Board of Education,
8 Eace Eel. L. Eep. 1480 (N. D. Miss. 1963) ..........

Holmes v. City of Atlanta, 350 U. S. 879 ......................

Jackson v. School Board of City of Lynchburg, Va.,
321 F. 2d 230 (4th Cir. 1963) ......................... 12,26,

Johnson v. Virginia, 373 H. S. 61 .................................

19
19

12

31

20

29

19

20

14

31

26

24

20

29
24

31
24



V

Kemp v. Beasley, Civ. No. 4-65-C-8 (E. D. Ark.) .... 22

Lockett v. Board of Education of Muscogee County 
Sell. Dist. Ga., 342 F. 2d 225 (5th Cir. 1965) ....... 31

Mapp v. Board of Education of Chattanooga, 319 F. 2d
571 (6th Cir. 1963) ....................................................26,SI

McLaurin v. Oklahoma State Regents, 339 IT. S. 637 ..25, 32 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ....19, 20 
Mullaney v. Anderson, 342 U. S. 415 .............................  36

Northcross v. Board of Education of City of Memphis,
333 F. 2d 661 (6th Cir. 1964) ............... ......... .13,26,31

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) ....... 15

Peterson v. City of Greenville, 373 IT. S. 244 ................  24
Plessy v. Ferguson, 163 IT. S. 537 .................................  18
Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) ..................  28
Price v. Denison Independent School District,------ F.

2d ------(5th Cir. No. 21632, July 2, 1965) .......... 13,15,16,
21, 23, 31

PAGE

School Board of Warren County v. Kilby, 259 F. 2d
497 (4th Cir. 1958) .......................................... ............. 20

Shelton v. Tucker, 364 U. S. 479 ............................. .......  28
Singleton v. Jackson Municipal Separate Sehool Dis­

trict, ------F. 2 d -------  (5th Cir. No. 22527, June 22,
1965) ................................................................ -............  23

Sipuel v. Oklahoma Board of Regents, 332 U. S. 631 .... 19 
Sweatt v. Painter, 339 IT. S. 629 ......................................  19

Turner v. City of Memphis, 369 U. S. 350 ...................... 24

United States v. Board of Education of Greene County, 
Mississippi, 332 F. 2d 40 (5th Cir. 1964) .................... 28



VI

United States v. Bossier Parish. School Board, ——  F,
2d —— (5th Cir. No. 22863, Aug. 17, 1965) ............ . 23

United States v. City of Bessemer Board of Education,
------F. 2d-------(5th Cir. No. 22862, Aug. 17, 1965) .... 23

United States v. Jefferson County Board of Education,
------F. 2d------- - (5th Cir. No. 22864, Aug. 17,1965) .... 23

United States v. Parke, Davis & Co., 365 U. S. 125....... 3
United States v. Trans-Missouri Freight Assoc., 166 

U. S. 290 ........................................................................  3

Valley v. Rapides Parish School Board,------F. 2d —-—
(5th Cir. No. 22832, Aug. 19,1965) .............................  23

Walker v. County School Board of Floyd County, Va.
(W. D. Va., 1960, C. A. No. 1012), 5 Race Rel. L.
Rep. 714 ......................................................................... 20

Watson v. City of Memphis, 373 U. S. 526 .............. .......9,14
Wheeler v. Durham City Board of Education,------F.

2d ------(4th Cir., No. 9630, June 1, 1965) .................... 31

Yarbrough v. Hulbert West Memphis Sch. District 
No. 4, Civ. No. 1048 (W. D. Ark.) .............................  22

Statutes

28 U. S. C. §1254(1) .........................................................  2

42 U. S. C. A. §2000d (Civil Rights Act of 1964) ....11, 21, 23

PAGE

45A C. F. R. §80(c) (December 4, 1964) ........................ 22

Other A uthorities

Conant, James B., The American High School Today, 
McG-raw Hill, New York (1959) ................................. 18



V ll

General Statement of Policies Under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation 
of Elementary and Secondary Schools, HEW, Office 
of Education, April 1964 (H. E. W. Guidelines)..21, 22, 28

Lamanna, Richard A., “ The Negro Teacher and De­

PAGE

segregation,” Sociological Inquiry, Vol. 35, No. 1, 
Winter 1965 ........................................................... ....... 30

N. T. Times, Aug. 29, 1965, p. 52; Aug. 31, 1965, pp.
1, 42 .............. ..................................................................  23

Southern Education Reporting Service, “ Statistical 
Summary of School Segregation-Desegregation in 
the Southern and Border States,” 14th Rev., Nov.
1964 ...............................................................    29

Southern School News, May 1965 .............................. . 21

1960 Census of Population, Vol. I, “ Characteristics of 
the Population,” Part I, U. S. Summary..................  30



In the

(Emtrt ®f Mnxtvh
October Teem, 1965 

No........................

P atricia R ogers, et al.,
Petitioners,

Dr. E dgar F. Paul, et al.

I

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT 
AND

MOTION TO ADD ADDITIONAL PARTY PLAINTIFFS

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Court of Appeals for the Eighth Cir­
cuit entered in the above-entitled cause on May 7, 1965, and 
that this Court grant petitioners’ motion to add additional 
party plaintiffs.

Citations to Opinions Below

The opinion of the District Court (R. 43), printed in the 
Appendix hereto, infra, p. la, is reported in 232 F. Supp. 
833. The opinion of the Court of Appeals (R. 44), printed 
in the Appendix hereto, infra, p. 29a, is reported in 345 
F. 2d 117.



2

Jurisdiction

The judgment of the Court of Appeals was entered on 
May 7, 1965 (p. 49a, infra). Mr. Justice White, on July 
30, 1965, extended the time for filing the petition for cer­
tiorari until September 4, 1965. The jurisdiction of this 
Court is invoked under 28 U. S. C., Section 1254(1).

Questions Presented

The following questions are now posed for resolution by 
this Court:

1. Whether the Board’s grade-a-year desegregation plan 
can be sustained under Brown v. Board of Education, in 
the absence of valid administrative problems justifying 
delay of complete desegregation until 1968, where such 
delay condemns petitioners and all other Negro pupils now 
in high school to complete their public school education in 
a segregated school, clearly inferior to high schools to which 
all white pupils are assigned?

2. Whether petitioners have standing to seek and should 
be afforded relief now requiring the school board to cease 
assignment of teachers on the basis of race?

Constitutional Provision Involved

This case involves Section 1 of the Fourteenth Amend­
ment of the Constitution of the United States.



3

Statement o f the Case

Petitioner, Mrs. Corine Rogers, filed this action to de­
segregate the public schools in Fort Smith, Arkansas, in 
September 1963 (R. 1), after unsuccessfully attempting to 
obtain transfer of her two minor daughters, Patricia and 
Janice, from the Negro Lincoln High School to the white 
Northside High School (R. 7).1

Negro parents whose children now constitute less than 
ten percent (R. 65) of the 14,000 students (R, 57) pres­
ently attending the system’s 30 schools (R. 54) began 
efforts to desegregate the Fort Smith schools in 1954 im­
mediately after this Court’s decision in Brown v. Board 
of Education (R. 75). The Board promised citizens that 
they would study the matter (R. 76). The following year, 
after the second Brown decision, the local N A A CP again 
petitioned the Board for a meeting to discuss school deseg­
regation, and as a result, several meetings were held (R. 76).

In September 1957, the Board placed into effect a grade- 
a-year desegregation plan adopted the year before (R. 12), 
providing for the enrollment of first grade children each 
year without regard to race or color. Thus, Negro children 
entering the first grade in the Fall of 1957 were permitted 
to enroll in a white school, but only if they resided in the 
attendance area or zone served by the white school (R. 49). *

* Janice Rogers graduated from the Lincoln School after this 
suit was filed (R. 110). Patricia Rogers, however, is enrolled in the 
twelfth grade at the Lincoln School, and a motion filed with this 
petition, p. 35, infra, seeks to add as minor petitioners in this 
case, Vera Moore and Karen Jones, both of whom are now enrolled 
np Lincoln High School. Thus, this ease presents issues uncom­
plicated by problems of mootness. Moreover, the questions pre­
sented are of general public importance. See United States v 
Parke, Davis <& Co., 365 U. S. 125; United States v. Trans-Missouri 
Freight Assoc., 166 U. S. 290, 308-10.



4

"Where assignment would place the child in a school where 
the majority of pupils were of another race, a provision of 
the plan permitted transfer to a school where a majority 
of the pupils were of the child’s race (E. 22).

By June 1963, when petitioner, Mrs. Eogers, requested 
transfer for her daughters (E. 7), both were in high school 
and the Board’s plan had reached only grade six. The 
transfer applications were denied (E. 12), leading to this 
action for injunctive relief: to require their immediate 
admission to the Northside School, and to require the 
immediate desegregation of the school system, including 
assignment of pupils and faculty on a nonracial basis and 
the elimination of racial considerations from budgets and 
all other school programs (E. 2, 8-10).

During the first seven years of the plan’s operation, only 
121 Negroes and 110 white first grade pupils resided in 
attendance areas enabling them to enter school on a de­
segregated basis (E. 24-29, 51-52). Eighty-five Negro and 
all 110 white pupils chose to attend segregated schools 
(E. 29). No desegregated assignments were permitted above 
the grades reached by the plan, even though Negroes have 
made requests for such assignments (E. 78-79). The plan, 
moreover, fails to indicate how Negro pupils residing in 
white attendance areas but enrolled in Negro schools for 
grade one could later be assigned to white schools. As a 
result, only about 37 Negroes were attending three white 
schools under this plan as of the end of the 1963-64 school 
year, and no white children were enrolled in the system’s 
four Negro schools (E. 28-29, 50).

In the Answer, the Board referred to its 1957 plan, argu­
ing its validity under Brown v. Board of Education, 349 
U. S. 294 (E. 13), its efficiency in permitting desegregation



5

while promoting “harmonious and peaceful relationships 
between all pupils and patrons” of the School District 
(E. 14), and its necessity for solving “ administrative prob­
lems of various natures” peculiar to the remaining segre­
gated grades (R. 14-15).

Following a pre-trial conference in June 1964 at which 
the Board was ordered to prepare a revised desegregation, 
plan eliminating the racial minority transfer provisions 
(R. 30), the Board in July 1964, filed a plan which main­
tained the grade-a-year pace (R. 31-35).2

During the 1964-65 school year, some 197 seventh and 
eighth grade pupils at the Negro Lincoln School were as­
signed to white junior high schools (R. 39) under the 
revised plan. Lincoln High School will serve only grades 
10, 11, 12 beginning with the 1965-66 school year by which 
time grade-a-year desegregation would be in its ninth year 
(R. 39-40, 56). Petitioners objected to the Board’s plan 
contending: (a) desegregation was not proceeding with all 
deliberate speed, (b) the plan would not benefit Patricia 
Rogers, then in the eleventh grade, (c) retention of the 
minority transfer provision is unconstitutional, (d) the

2 On June 13, 1964, following the Supreme Court’s decision in 
Goss v. Board of Education, 373 U. S. 683, the Board amended its 
Answer, summarizing the transfers granted under the minority 
racial transfer feature of their plan, and offering to eliminate this 
provision (R. 24-29). However, the revised plan provided a one 
year extension of the minority transfer plan at the elementary 
school level as to white pupils who otherwise would have been 
assigned to one of three Negro elementary schools (R. 53-58). The 
Board defended the extension by asserting that assigning 55 white 
pupils to the Howard Elementary School with 530 Negro pupils, 
22 white pupils to Dunbar Elementary School with 60 Negro 
pupils, and 30 white pupils to Washington Elementary School 
with 70 Negro pupils would result in “an intense psychological 
impact” on the white pupils (R. 36-37, 59-63), would adversely 
affect the good racial relationships in the community, and would 
cause many white children to enter private schools.



6

Lincoln attendance area will be based solely on race, and 
(e) no provision is made for desegregation of teaching 
personnel (E. 41-42).

At the hearing in Angnst 1964, the Board offered tes­
timony in support of its revised plan, emphasizing that 
for the 1964-65 school year some 300 Negro pupils would 
be assigned to white schools (R. 64), but refused to ex­
plain exactly what administrative problems would prevent 
immediate desegregation of grades 9-12, and particularly 
what problems justified the Board’s denial of applications 
for transfer filed by minor plaintiffs and a few other Negro 
high school students (E. 78-79).

Having ascertained from the Board Superintendent that 
only three Negroes had applied for transfer from the Lin­
coln High School, and since the Record was silent as to 
why such transfers had been denied, petitioners’ attorney 
asked the Superintendent:

“ Q. So at most, roughly you would have three 
Negroes who would desire to transfer from the Negro 
high school to the white high school. Is that correct? 
A. That is all that has asked to as I remember.

“Q. I would like for you to tell this Court now how 
three Negroes could disrupt or destroy your educa­
tional system. A. Judge, do I have to try to elabo­
rate on that?

The Court: No, I think that is a question for the 
Court. You have covered it. If you desire you can 
elaborate some on it, yes.

“A. Your Honor, I prefer not to try to discuss it any 
further than I have.

The Court: All right.



7

“ Q. Then you refuse to answer the question? A. 
You haven’t asked a question. You have asked an 
opinion.

“ Q. You have been giving opinions here all morning. 
The attorneys asked you. A. I have already given 
you that opinion.

“ Q. And you refuse to answer the question?

The Court: I am going to hold that he has suffi­
ciently answered it.”

Minor petitioner Patricia Rogers was not at all reticent 
in explaining why she wanted a transfer to the Northside 
High School.

“Q. I would like for you to tell His Honor in your 
own words just why you would like to attend the 
Northside High School. A. I would like to attend be­
cause today Negroes are competing not only against 
Negroes for job opportunities but also against whites, 
and I think with the integrated education I will have 
a lot better opportunity for these jobs than I Avould 
just going to a Negro high school.”

In addition to desiring a desegregated education, minor 
petitioner Patricia Rogers informed the Board that she 
would like to study journalism, music and German. None 
of these courses are available at Lincoln (R. 112-13). All 
are offered at the two white high schools (R. 122). The 
Superintendent testified that petitioner’s course requests 
were no basis for transfer because white students cannot 
transfer from one high school to the other to obtain wanted 
courses (R. 99, 100); but a review of the catalogue shows 
that most basic courses are offered at both white schools.3

3 Southside High School is teaching only grades nine through 
eleven during the 1964-65 school year (R. 39), explaining why 
some Northside courses were not offered during that year.



8

In fact, the two white high schools are far larger and 
offer a wider and more varied choice of subjects than are 
provided Negroes at Lincoln High School (Pltfs’ Exhs. 
2, 3, R. 122-24). There are less than 200 Negroes at Lin­
coln’s Senior High (R. 107), while Northside has 2,300 
and Southside has 1,000 (R. 96). White high school stu­
dents are provided with a 25 page printed “ Course Cata­
logue” listing 142 courses in 12 subject matter areas and 
detailed information on grading, testing, college require­
ments, suggested programs and school policies and regu­
lations (Pltfs’ Exh. 2, R. 122). Negro students at Lincoln 
get a “ Teachers and Students Handbook,” consisting of 
one mimeographed page listing approximately 35 courses 
in three divisions (Pltfs’ Exh. 3, R. 124).

While the Board maintains that it has desegregated 
grades one through eight under its plan, Negroes are at­
tending only five of 27 white schools (R. 25-28, 126). All 
schools are still listed for administrative purposes as 
“White” and “ Negro” (Pltfs’ Exh. 8, R. 126). As atten­
dance areas are now drawn, it appears that such official 
designation by race will remain substantially accurate in 
fact in the future, particularly at the elementary school 
level (R. 25-29).

In addition, the Board has taken no steps to integrate 
Negro and white teachers, although all teachers have met 
together for several years (R. 76). The Board objected 
to allegations of teacher segregation (R. 11, 84), contend­
ing petitioners lack standing to raise the teacher issue. 
The district court agreed, sustained objection (R. 85, 117), 
to petitioners’ efforts to require assignment of teachers 
on a nonracial basis, and approved the Board’s Revised 
Plan as submitted, Rogers v. Paul, 232 F. Supp. 833 (W. D.



9

Ark. 1964). Reviewing the plan in light of school decisions 
by the Supreme Court and various federal courts of ap­
peal, the trial court concluded without further elaboration 
that the plan met the standards of the cases cited. Thus, 
while referring to the decision in Goss v. Board of Edu­
cation, 373 U. S. 683, as the basis for its order of June 18, 
1964, invalidating the minority transfer provision in the 
Board’s plan, the lower court concluded from the number 
of pupils utilizing the provision: “ It seems clear that the 
great majority of pupils, white and Negro, do not desire 
to attend an integrated school.” 232 F. Supp. at 838. The 
court indicated no other reason for its approval of the 
extension of the provision for use by white elementary 
school children during the 1964-65 school year.

In dismissing petitioners’ argument that the Board plan 
does not meet current standards for good faith and all 
deliberate speed, the court referred to those portions of 
Brown v. Board of Education, permitting time to solve 
administrative problems, but interpreted the Court’s sub­
sequent statements in Watson v. City of Memphis, 373 
IJ. S. 526, as relevant only to desegregation in recreational 
facilities, 232 F. Supp. at 841. Because the court deemed 
the Board’s desegregation efforts “diligent” and the plan 
“ eminently successful and satisfactory,” petitioners’ mo­
tion for counsel fees (R. 119) was denied. The court then 
retained jurisdiction as to the teacher issue “ if presented 
by proper parties,” and dismissed the complaint. 232 F. 
Supp. at 844. The court entered judgment based on the 
above opinion on August 19, 1964 (R. 44), and petitioners 
filed notice of appeal on the same date (R. 45).

The Eighth Circuit affirmed the district court on May 7, 
1965 (345 F. 2d 117), agreeing that the plan is satisfactory 
as to speed and completeness, and the Board’s refusal to



10

immediately complete desegregation was justified by its 
fear such action “would needlessly thwart the good faith 
efforts of the Board to accomplish de jure desegregation 
in a peaceful and orderly manner.” 345 F. 2d at 122.

The Eighth Circuit reviewed several cases from four 
circuits condemning grade-a-year desegregation plans, and 
distinguished them on the basis that they involved areas 
where school boards had failed to act in good faith. Unlike 
areas where there was hard core opposition to integration, 
the Court found that the transition in Fort Smith was 
smooth, without incident, and that the record presented 
impressive evidence that “ . . . both races are satisfied 
with the revised plan.” 345 F. 2d at 123.

The Court found that the record provided no basis for 
ordering the immediate admission of petitioner Patricia 
Rogers to the Northside High School because both the 
Negro and white schools are accredited and courses are 
provided at each school upon request of at least six stu­
dents if a teacher can be found to teach it. Cases where 
individual petitioners were permitted to transfer to de­
segregated schools in order to obtain courses not other­
wise available to them were distinguished as arising in 
districts where geographical school zoning had not been 
adopted. Since Patricia Rogers lives within three blocks 
of the Lincoln High School, the Court found that a transfer 
would constitute discriminatory action in her favor and 
would weaken the school system.

In regard to teacher desegregation, the Eighth Circuit 
interpreted the district court’s action, not as requiring a 
teacher to raise the question, but as requiring that it be 
raised by a pupil then eligible to attend a desegregated 
school.



11

Reason for Granting the Writ

The approval by the courts below of a grade-a-year de­
segregation plan despite the absence of valid administra­
tive problems justifying delay of complete desegregation 
for four more years, and the inability of petitioners and 
other Negro high school students to obtain an education 
in the Negro high school equal (in respects other than 
segregation per se) to that provided for white high school 
students, presents the question of this Court’s “ all de­
liberate speed” standard today.

The Fort Smith plan has condemned both original minor 
plaintiffs to complete their public school education in an 
inferior segregated school. Two additional Negro high 
school students, Yera Moore in the 10th grade and Karen 
Jones in the 11th grade, seek to join as petitioners in this 
Court, but because the Board’s grade-a-year plan extends 
only to grade nine during the 1965-66 school year, these 
petitioners too will be denied the benefits of a high quality 
desegregated education, as will all other Negro pupils now 
in grades ten, eleven and twelve.

At a time when other courts of appeal are constricting 
the time in which Southern school boards must extend the 
desegregation process to all grades, the Eighth Circuit, by 
approving the Fort Smith plan, unduly prolongs the ex­
istence of a small, segregated and educationally inefficient 
Negro high school, and ironically, shackles petitioners and 
their class with a slower desegregation pace than would 
have been required by the United States Department of 
Health, Education and Welfare for Board compliance with 
the 1964 Civil Rights Act if judicial relief to desegregate 
the schools had not been sought.



12

The Department considers itself bound by court-approved 
plans. Moreover, to the extent that the Department fol­
lows the lead of the court, the Eighth Circuit has set a 
standard calculated to encourage slowness not speed. And 
apart from the effect on H. E. W. standards, this decision 
of course will be important for those districts that choose 
to forego federal funds. Only the courts can desegregate 
them.

This case also presents the issue of faculty desegrega­
tion, and whether a school board may delay it until pupil 
desegregation is completed or teachers themselves intervene 
seeking assignment on a non-racial basis.

Similar issues are presented in petitions for writs of 
certiorari filed in Bradley v. The School Board of the City 
of Richmond, Va., No. 415 (Oct. Term, 1965), and Gilliam 
v. School Board of the City of Hopewell, Va-, No. 416 (Oct. 
Term, 1965).

1.

The Fort Smith Plan Unreasonably Delays Pupil De­
segregation and Condemns Negro Children to Attend 
Inferior Schools.

A. The Court of Appeals has approved a paee of desegregation 
in conflict with standards established by this Court and 
the other circuits.

In several significant respects as set forth in the follow­
ing paragraphs, the decision below conflicts with decisions 
of this Court in Calhoun v. Latimer, 377 U. S. 263; Griffin 
v. School Board of Prince Edward County, 377 U. S. 218; 
Goss v. Board of Education of City of Knoxville, 373 U. S. 
683, and with the Third Circuit in Evans v. Ennis, 281 
F. 2d 385 (3d Cir. 1960), the Fourth Circuit in Jackson v.



School Board of the City of Lynchburg, 321 F. 2d 230 
(4th Cir. 1963), the Fifth Circuit in Price v. Denison Inde­
pendent School District, ------  F. 2d ------  (5th Cir. No.
21632, July 2, 1965), and the Sixth Circuit in Goss v. Board 
of Education of City of Knoxville, 301 F. 2d 164 (6th Cir. 
1962) and Northcross v. Board of Education of City of 
Memphis, 333 F. 2d 661 (6th Cir. 1964).

The basic error in the lower court decision is traceable 
to an interpretation of this Court’s “all deliberate speed” 
standard placing emphasis on accommodation to opposition 
rather than whether change took place as speedily as bona 
fide administrative considerations would permit. The court 
of appeals approved the district court finding that the 
Board’s plan had not upset the “ . . . exceptionally har­
monious and cooperating relationship between the races 
in Fort Smith, Arkansas” (345 F. 2d at 122). The Court 
found that unlike areas such as Prince Edward County, 
Virginia, where integration efforts met with hard core 
opposition,

In Fort Smith the transition was smooth and without 
incident. There was no manifestation of bad feeling or 
violent opposition. The lack of any evidence to indicate 
any serious objection to the plan of desegregation is 
impressive. So far as this record is concerned, both 
races are satisfied with the revised plan. It has been 
accepted by the majority of pupils and parents as the 
best method of complying in good faith with the law 
(345 F. 2d at 123).

This Court’s decisions, of course, leave no doubt that re­
gardless of community opposition, compliance is required 
“at the earliest practicable date” . Brown v. Board of Edu­
cation, 349 U. S. 294; Cooper v. Aaron, 358 U. S. 1. Beview- 
ing the intransigence of Prince Edward County, this Court



14

nevertheless concluded: “ The time for mere ‘deliberate 
speed’ has run out, . . . ” Griffin v. School Board of Prince 
Edward County, 377 U. S. 218, 234. And as for the main­
tenance of existing and commendable good-will between the 
races, this Court observed in Watson v. City of Memphis, 
373 U. S. 526, 537, that such conditions “ can best be pre­
served and extended by the observance and protection, not 
the denial, of the basic constitutional rights here asserted.”

But despite these decisions and the more stringent limita­
tions on delay imposed in Goss v. Board of Education, 373 
U. S. 683, and Calhoun v. Latimer, 377 U. S. 263, the court 
below, based on testimony that white pupils would suffer 
“an intense psychological impact” (R. 37) if required to at­
tend Negro schools, approved both the grade-a-year pace 
and an extension of a minority transfer provision similar 
to one invalidated in Goss v. Board of Education, supra. In 
the Superintendent’s view:

Anything of this nature, that is as big a shock as this 
would be, in my opinion, to the children, and their par­
ents, the discussions that would take place on the 
phones, would affect the whole community. It would 
affect the working relationship, in my opinion, of the 
staff, the School Board, the patrons, and would only 
result in difficulty for the smooth operation of the 
whole school system, not just the schools involved” (R. 
63).4

The Superintendent testified that the Board was grap­
pling with problems related to : “ school population growth 
and inadequacy of buildings and other facilities” , “mass 
shifting within the District of school population from the

4 But compare with Record at 71-73, 113.



15

older sections of Fort Smith to new suburban areas”, a 
huge building program; and “ the transition of all schools 
into a 6-3-3 system (E. 53-58). The Eighth Circuit con­
sidered this testimony as evidence that such administrative 
problems precluded acceleration of the plan’s grade-a-year 
speed. But there was no testimony as to how these factors 
related to the time required for school desegregation, or 
more specifically, how they would complicate or prevent 
immediate desegregation of the Fort Smith high schools 
(see E, 56-57).

The lower court’s second basic error is in the misplaced 
importance and distorted effect given to findings concerning 
the Board’s good faith progress under the plan. It need 
hardly be repeated that school officials may not assert good 
faith as a legal excuse for delay. Cooper v. Aaron, supra, at 
15. Only recently the Fifth Circuit in requiring rapid ac­
celeration of a grade-a-year plan initiated prior to the filing 
of a law suit, observed that a school board’s good faith de­
sire to do what the law requires is significant:

But in the final analysis it has limited bearing on the 
substantive rights accorded and specifically the speed 
of the plan. The rights of Negro children come from 
the Constitution, not the attitude, good or bad, of school 
administrators. Price v. Denison Independent School
District, —  F. 2 d ------ (5th Cir. No. 21632, July 2,
1965).

The Eighth Circuit had seemed to adopt a similar view 
in Dove v. Parham, 282 F. 2d 256, 261 (8th Cir. 1960) where 
good faith was measured objectively by “ required action” 
not “ state of mind.” Accord, Norwood v. Tucker, 287 F. 2d 
798, 804 (8th Cir. 1961). And it was the Eighth Circuit 
which seven years ago stood firm in the face of determined 
resistance by state and local governments to desegregation 
efforts in Little Eock. Aaron v. Cooper, 257 F. 2d 33, 40



16

(8th Cir. 1958), affd. Cooper v. Aaron, 358 U. S. 1. See also 
Brewer v. Hoxie School District No. 46, 238 F. 2d 91 (8th 
Cir. 1956).

Clearly, the Eighth Circuit’s departure from standards 
set by this Court and followed by the other courts of appeal 
which have rejected grade-a-year plans may not be con­
cealed by the claim that such cases involve “ . . . situations 
where the school boards had either failed to act in good 
faith or after inordinate delays had proposed a plan which 
was too slow and unduly protracted the process of desegre­
gation” 345 F. 2d at 122. For example, the Fifth Circuit in 
the Price case supra, accelerated a grade-a-year plan pro­
duced in good faith and without inordinate delay. On the 
other hand, here the Board’s plan was initiated in 1957, but 
its rate of progress until, at least, this suit was filed could 
accurately be described as “ slow and unduly protracted.”

As indicated above, no specific reasons were provided why 
three years will be required to desegregate the one Negro 
high school, Lincoln, with only about 200 students in grades 
ten to twelve (R. 107). Nor was there an explanation why 
school budgets and records continue to be maintained on a 
racial basis (R. 126), or indeed why the Board refuses, short 
of a suit by a teacher, to desegregate its teacher hiring and 
assignment procedures (R. i l ,  84). But whatever the rea­
sons, the Eighth Circuit’s position, clearly contrary to the 
decisions of this Court and the other courts of appeal, per­
petuates the denial of constitutional rights to petitioner and 
her class resulting in sacrifices far more severe than en­
visioned as necessary in the “all deliberate speed” standard.



17

B. In view of the grossly inferior education it provides, the 
Lincoln School should have been desegregated immediately.

The Eighth Circuit stands alone in its willingness to delay 
desegregation when such delay condemns petitioner and all 
other Negro high school students to attend the undeniably 
inferior Lincoln High School. The court below points to 
Lincoln’s accredited status as proof of equality without 
mentioning that such accreditation is based on a separate 
philosophy designed to meet opportunities that may be 
available to Negro graduates (R. 89-90). Accreditation how­
ever, connotes merely that the school meets the minimum 
standards of the accrediting agency, and cannot obscure 
the fact that the Lincoln School’s curriculum is woefully 
lacking when compared to that provided students attend­
ing the white high schools.

Petitioner Patricia Eogers’ expressed belief that an 
integrated education would better prepare her for job op­
portunities (K. 112) carries more than sociological and 
psychological implications when applied to Fort Smith’s 
high school facilities. Patricia Rogers specifically supple­
mented her desire for a desegregated education, by re­
questing instruction in journalism, music, and German (R. 
112), none of which are available at Lincoln High (R. 124). 
White students attending Northside High School can enroll 
in Journalism I, II, III, and IV, as well as 10 different 
English courses (4 are offered at Lincoln). In music, white 
students are offered Music Theory, three band and four 
choral classes while Negroes may take “Band” or “ Glee 
Club” in lieu of physical education. Four years of German 
are available at Northside as well as four years of Latin, 
French and Spanish. Negroes are offered two years of 
French.



18

Beyond the subjects in which Patricia Rogers was spe­
cifically interested, a plethora of courses designed to pre­
pare students for meaningful participation in today’s world 
are offered in the white high schools. The courses, illustra­
tively listed in a 25 page printed handbook, include and 
range from family living, driver education, library science, 
mechanical and architectural drawing, trade printing, metal 
work, home management, accounting, office machines to col­
lege preparatory chemistry, physics, algebra and mathe­
matics. These are but a few of the more than 140 courses 
offered in the white high schools in twelve subject matter 
areas. Negro students at Lincoln High School are offered 
none of these courses, and must select in their one page 
mimeographed “handbook” from about 35 course offerings 
in three subject matter areas.5

Based solely on a summary comparison of the offerings 
at the two high school systems, it is obvious that sound 
scholastic and constitutional basis exist under Brown v. 
Board of Education, supra, and probably even the rejected 
“ separate but equal” standard of Plessy v. Ferguson, 163

5 The lower court’s quotation of figures shows that per pupil 
costs for Negro high school pupils are higher than those for white 
students. This points up the difficulty of maintaining a first class 
high school with only 200 students, far below the number experts 
consider feasible for an efficient and effective high school. Thus, 
Dr. James B. Conant has written:

The enrollment of many American public high schools is 
too small to allow a diversified curriculum except at exor­
bitant expenses. . . . The prevalence of such high schools— 
those with graduating classes of less than one hundred stu­
dents— constitutes one of the serious obstacles to 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 sufficiently broad nor suffi­
ciently challenging. A  small high school cannot by its very



19

U. S. 537 for requiring the immediate desegregation of 
grades ten thorugh twelve at the Lincoln School.

Indeed, even prior to the decision in Brown v. Board of 
Education, this Court in Missouri ex. rel. Gaines v. Canada, 
305 U. S. 337; Sipuel v. Oklahoma, 332 U. S. 631, and Sweatt 
v. Painter, 339 U. S. 629, held that disparity in educational 
facilities required immediate desegregation. Moreover, at 
the elementary and high school level, the Supreme Court of 
Delaware in Gebhart v. Belton, 91 A. 2d 137 (Del. 1952), 
held that measurable disparity in facilities requires im­
mediate integration.6

Following Brown, a number of federal courts have re­
quired immediate school desegregation on a finding of in­
equality of facilities. Recently, the Fifth Circuit acting on 
a motion for an injunction pending appeal, required the 
immediate admission of a Negro student to summer sessions 
at a white school in order to obtain Algebra courses not 
available at the Negro school. Relief was granted notwith­
standing that the appellant was not eligible to attend a de­
segregated grade. Acree v. County Board of Education of
Richmond County, Georgia,------F. 2 d -------  (5th Cir., No.
22,723, June 30, 1965). See also, Gaines v. Dougherty 
County Board of Education, 329 F. 2d 823 (5th Cir. 1964).

The Sixth Circuit in approving a stair-step school de­
segregation plan has denied specific relief to named plain­
tiffs who were not eligible for transfer under the plan, Goss

nature offer a comprehensive curriculum. Furthermore, such 
a school uses uneconomically the time and efforts of admin­
istrators, teachers, and specialists, the shortage of whom is a 
serious national problem. Conant, James B., The American 
High School Today, pp. 37, 77, McGraw-Hill, New York 
(1959).

6 Affirmed sub nom., Brown v. Board of Education, 347 U. S. 483.



20

y. Board of Education of Knoxville, 301 F. 2d 164, 168 (6th 
Cir. 1962), but granted relief where a Negro student sought 
a commercial art course not available in Negro schools. 
Goss v. Board of Education of Knoxville, 305 F. 2d 523 
(6th Cir. 1962).

For similar reasons, courts in the Fourth Circuit both 
prior and after Brown have required the immediate de­
segregation of public schools where Negro pupils were 
required to leave the school district to attend school, Buch­
ner v. County School Board of Greene County, 332 F. 2d 
452 (4th Cir. 1964); Goins v. County School Board of Gray­
son County, 186 F. Supp. 753 (W. D. Va., 1960), stay denied 
282 F. 2d 343 (4th Cir. 1960); School Board of Warren 
County v. Kilby, 259 F. 2d 497 (4th Cir. 1958); Corbin v. 
County School Board of Pulaski County, 177 F. 2d 924, 927 
(4th Cir. 1949); Griffith v. Board of Education of Yancey 
County, 186 F. Supp. 511 (W. D. N. (1, 1960); Walker v. 
County School Board of Floyd County, Va. (W. D. Va., 
1960, C. A. No. 1012), 5 Race Eel. L. Rep. 714; Crisp v. 
County School Board of Pulaski County, Va. (W. 1). Va., 
1960, No. 1052), 5 Race Eel. L. Rep. 721.

Thus, even assuming the presence of valid factors miti­
gating against the immediate desegregation of grades ten 
through twelve, it appears that only the Eighth Circuit 
would refuse Negro students the right to immediate ad­
mission to white schools to obtain courses not available at 
Lincoln High. Petitioners’ right to such admission is in no 
way diminished by the Superintendent’s offer to provide 
any course at any high school “ if there are as many as six 
students that want the course and we can find a teacher to 
teach it” (R. 89).7 As this Court indicated in Missouri ex

7 While teacher segregation will be discussed below, its continued 
presence in the Fort Smith system adversely affects the likelihood



21

rel. Gaines v. Canada, 305 U. S. 337, 351, constitutional 
rights cannot be made to depend upon the number of per­
sons who may be discriminated against.

C. The lower court’s decision frustrates enforcement of school 
desegregation as required by the Civil Rights Act of 1964.

The Civil Rights Act of 1964 represents a Congressional 
effort to implement this Court’s decision in the Brown 
case, by forbidding in Title VI of its provisions the dis­
bursement of federal funds to facilities (including schools) 
which discriminate on the basis of race or color.8 Acting 
pursuant to the authority of Title VI, the United States 
Department of Health, Education and Welfare (H. E. W.) 
and its Office of Education has prepared standards for 
school boards seeking to desegregate their systems.9 Under 
the standards contained in its “ General Policy Statement,” 
school boards making the transition from biracial to de­
segregated systems must as a minimum for the 1965-66 
school year, take several affirmative steps including desegre­
gation of all grades if possible, but no less than four grades, 
including “ the first and last high school grades,” desegre­
gate all grades by the 1967-68 school year, permit any pupil 
assigned to a segregated school to transfer, irrespective of 
whether the grade he is attending has been desegregated, 
“ . . .  to take a course of study for which he is qualified and

that the superintendent will be able to fulfill his offer at the Lincoln 
High School.

8 42 U. S. C. §2000d.
9 General Statement of Policies Under Title VI of the Civil Rights

Act of 1964 Respecting Desegregation of Elementary and Secondary 
Schools, HEW, Office of Education, April 1964. The document, 
hereinafter cited as “H. E. W. Guidelines” is reprinted in the ap­
pendix to Price v. Denison Independent School District,------ P. 2d
------  (5th Cir. No. 21632, July 2, 1965), and in Southern School
News, May 1965, pp. 8-9.



22

which is not available in the school he is attending;” 
(H. E. W. Guidelines, V, E 1, 4).10 11

Unfortunately for petitioners and their class, the regula­
tions under which Title VI of the Civil Rights Act of 1964 
are administered,11 and the H. E. W. Guidelines based on 
these regulations, supra, provide that school boards are 
eligible for financial assistance if they are subject to a final 
court order of desegregation. As presently interpreted, 
this provision applies even though the court order provides 
for more limited desegregation than the H. E. W. Guide­
lines. Thus, approval by the court below of the Board’s 
grade-a-year plan, enables the Board to continue receiving 
federal funds and places petitioners in a position worse 
than if this suit had not been filed.12 The order of the court 
below was accepted as the Fort Smith plan by the Office 
of Education on July 19, 1965.

Precisely to avoid such paradoxical results, the Fifth 
Circuit, recognizing the United States Office of Education as 
better qualified and “ the more appropriate federal body to

10 As of August 24, 1965, the Office of Education reported that 
they have accepted desegregation plans from 113 Arkansas school 
boards, 68 of which provide for desegregation in all 12 grades in 
the Fall of 1965. Ten school boards will desegregate all 12 grades 
by the Fall of 1966 and 35 will complete desegregation in 1967. 
An additional 80 Arkansas Boards have submitted plans which are 
pending approval in the Office of Education.

11 45A C. F. R. §80 (c) (December 4, 1964).
12 Unhappily, petitioners are not alone. District courts in the 

Eighth Circuit have recently approved desegregation plans in El 
Dorado, Arkansas, Kemp v. Beasley, Civ. No. 4-65-C-8 (E. D. Ark.), 
and West Memphis, Arkansas, Yarbrough v. Hulbert-West Mem­
phis Sch. District No. 4 Civ. No. 1048 (W. D. Ark.), both of which 
plans limit desegregation to two grades in 1965 and in a variety of 
other respects, fall short of meeting the minimum standards con­
tained in the H. E. W. Guidelines. The Office of Education reports 
that both court orders have been accepted, assuring the continued 
flow of federal funds to these school districts.



weigh administrative difficulties inherent in school de­
segregation plans,” rejected a grade-a-year plan in Single-
ton v. Jackson Municipal Separate School District,------F.
2d------ (5th Cir., No. 22527, June 22, 1965), and by injunc­
tion pending appeal ordered the district court to conform 
the plan to the minimum standards fixed by the United 
States Office of Education. This policy, the court said, was 
intended to prevent school boards from using federal courts 
as a means of circumventing requirements for financial 
aid.13 “If judicial standards are lower,” predicted the Fifth 
Circuit in Singleton, supra, “ recalcitrant school boards in 
effect will receive a premium for recalcitrance; the more the 
intransigence, the bigger the bonus.”

The restricting effect the lower court’s decision has had 
on school desegregation thus not only denies petitioners’ 
constitutional rights, but also creates standards which 
handicap uniform enforcement of Title VI of the 1964 Civil 
Rights Act. It now appears that many Boards will waive all 
federal aid rather than comply with the Civil Rights Act 
(see N. T. Times, Aug. 29, 1965, p. 52, Aug. 31, 1965, pp. 
1, 42). The lower court’s decision encourages such recalci­
trant systems to maintain segregation until suits are filed 
and the more lenient judicial standards are invoked.

13 The Fifth Circuit has followed its decision in the Singleton 
case in Price v. Denison Independent School District, supra, and by- 
injunction pending appeal in United States v. Jefferson County
Board of Education,------ F. 2 d -------  (5th Cir. No. 22864, Aug. 17,
1965); United States v. City of Bessemer Board of Education,------
F. 2d ------  (5th Cir. No. 22862, Aug. 17, 1965) ; United States v.
Bossier Parish School Board,------ F. 2 d -------- (5th Cir. No. 22863,
Aug. 17, 1965); and Valley v. Rapides Parish School Board,------
F. 2d ------  (5th Cir. No. 22832, Aug. 19,1965).



24

2.
Petitioners’ Constitutional Right to a Desegregated 

Education Includes, o l Necessity, Instruction by 
Teachers Assigned Without Regard to Race.

During the decade since Brown v. Board of Education, 
347 U. S. 483, 349 U. S. 294, the principles established in 
those cases have been interpreted to prohibit all racial 
discrimination by states.14 Petitioners submit it is time to 
direct immediate implementation of their right to attend 
schools where teachers and other faculty personnel are as­
signed on a non-racial basis. Such relief is closely linked 
to the requirement under Brown v. Board of Education, 349 
U. S. 294, to have the district courts supervise the effectua­
tion of “ a racially nondiscriminatory school system” (349 
U. S. at 301, emphasis added). The Court in deciding the 
second Brown case, supra, pointed to administrative prob­
lems related to “ the physical condition of the school plant, 
the school transportation 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 nonracial basis, and revision of local laws and 
regulations . . .  ” , as matters to be considered in apprais­
ing the time necessary for good faith compliance (emphasis 
added). We believe that the Court plainly regarded the

14 Griffin v. School Board of Prince Edward County, 377 U. S. 
218 (schools) ; Peterson v. Greenville, 373 U. S. 244 (restaurant) ; 
Johnson v. Virginia, 373 U. S. 61 (courtroom) ; Colorado Anti- 
Discrimination Commission v. Continental Air Lines, 372 U. S. 
714, 721 (employment) ; Turner v. Memphis, 369 U. S. 350 (air­
port restaurant) ; Bailey v. Patterson, 369 U. S. 31 (transporta­
tion) ; Browder v. Gayle, 352 U. S. 903 (buses); Holmes v. Atlanta, 
350 U. S. 879 (municipal golf courses); Dawson v. Baltimore City, 
350 U. S. 877 (municipal beaches).



25

task as one of ending all discrimination in school systems, 
including “personnel” as well as discrimination in the trans­
portation system, attendance districts or the other factors 
mentioned. The delay countenanced by the “ deliberate 
speed” doctrine was predicated on the assumption that 
dual school systems would be reorganized.

The brief of the United States, as amicus curiae, in 
Calhoun v. Latimer, 377 U. S. 263, argued in this Court 
that:

Obviously, a public school system cannot be truly non- 
discriminatory if the school board assigns school per­
sonnel on the basis of race. Full desegregation can 
never be achieved if certain schools continue to have 
all-Negro faculties while others have all-white faculties. 
Schools will continue to be known as “white schools” 
or “Negro schools” depending on the racial composi­
tion of their faculties. It follows that the school au­
thorities must take steps to eliminate segregation of 
personnel as well as pupils. (Brief of the United States, 
pp. 39-40.)

The judgment in Calhoun was vacated without discussion 
of this issue, but in addition to the statements in Brown 
quoted above, this Court earlier had condemned state- 
imposed racial restrictions which produced inequalities in 
the training of a teacher. McLaurin v. Oklahoma State 
Regents, 339 U. S. 637. There, the Court found that racial 
restrictions would impair and inhibit the learning of a 
student seeking a graduate degree in education, and that 
the adverse affect on his education, would in turn be re­
flected in the education and development of those he taught 
339 U. S. at 641. What is obviously true of the graduate



26

student in education cannot be less so when applied to 
students at the elementary and high school level.

The lower court’s ruling that petitioners lack standing 
to question the Board’s policy of assigning teaching per­
sonnel on a segregated basis as effectively preserves the 
traditional characterization of Fort Smith’s schools as 
“white” or “ colored” , as racial signs over the doors. The 
ruling, moreover, is contrary to rulings on the standing 
issue in the Fourth, Fifth and Sixth Circuits,15 each of 
which courts has read the attack on teacher segregation:

“ . . .  as a claim that continued assigning of teaching 
personnel on a racial basis impairs the students’ right 
to an education free from any consideration of race.” 
Mapp v. Board of Education of Chattanooga, 319 F. 
2d at 576.

The record, moreover, simply does not support the 
Eighth Circuit’s conclusion (345 F. 2d at 125) that the 
district court refused to consider teacher desegregation 
because petitioners were not attending grades being de­
segregated.

The Board moved to strike petitioners’ allegations re­
garding teacher segregation from the complaint (R. 6), 
contending such facts “ . . . are insihficient to state a claim 
upon which plaintiffs are entitled to or can be granted any 
relief . . . ” (R. 11). And at the hearing, when peti­

15 Griffin v. County School Board of Prince Edward County, 339 
F. 2d 486 (4th Cir. 1964); Jackson v. School Board of City of 
Lynchburg, 321 F. 2d 230 (4th Cir. 1963); Board of Public In­
struction of Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 
1964) ; Augustus v. Board of Public Instruction, 306 F. 2d 862, 869 
(5th Cir. 1962); Northeross v. Board of Education of City of Mem­
phis, 333 F. 2d 661 (6th Cir. 1964); Mapp v. Board of Education 
of Chattanooga, 319 F. 2d 571 (6th Cir. 1963).



27

tioners’ attorney attempted to question the Superintendent 
with reference to desegregation of teachers and adminis­
trative personnel, the Board’s attorney objected, stating: 
“ . . .  we do not conceive that to be an issue before the 
Court in this case. No teachers are parties.”  (R. 84). (Em­
phasis added.)

The district court sustained objection, and during a 
subsequent colloquy with counsel explained that jurisdic­
tion would be retained so that if there was “ a bona 
fide effort on the part of interested parties, particularly 
the teachers for assignment, . . . then they could simply 
intervene here . . . ” (R. 118). Plaintiffs’ counsel sought 
clarification as to whether it was the court’s position that 
petitioners lacked sufficient interest to raise the question 
of faculty desegregation, and the court responded, “ That 
is, in effect, the ruling of the Court . . . ” (R. 118). Thus, 
the district court’s opinion accurately summarizes its posi­
tion :

u . . . the court sustained an objection to the introduc­
tion of evidence by plaintiffs on the question of assign­
ment of teachers, but in order to avoid a multiplicity 
of suits, the Court will retain jurisdiction of the case 
in order that the question may be raised if any proper 
party desires to intervene.” 232 Fed. Supp. at 843. 
(Emphasis added.)

Clearly, the district court contemplated that parties 
not then before the Court must “ intervene” to question 
teacher segregation, which language refutes the Eighth 
Circuit’s interpretation that petitioners may raise the 
teacher desegregation issue when they become eligible to 
enter desegregated grades. Even if its reading of the dis­



trict court’s intention had been accurate, however, such a 
view would place unjustified restrictions on the right to re­
lief of petitioners who seek for themselves, and all other 
Negro pupils in the system, not just desegregated assign­
ments, but a desegregated school system. See Bailey v. 
Patterson, 369 U. S. 31, 33. Potts v. Flax, 313 F. 2d 284, 
288-89 (5th Cir. 1963).

Approval of the Board’s plan by the court below with­
out requiring teacher desegregation further disadvantages 
petitioners for having sought relief in the courts. School 
systems required to desegregate in accordance with the 
standards contained in the H. E. W. guidelines, must take 
positive steps to eliminate faculty as well as pupil segrega­
tion.16

Obviously, the Fort Smith system cannot be desegregated 
as long as the faculty at each school is assigned on the 
basis of race. Just as obviously, the careers of Negro 
teachers in the South, particularly in Arkansas, are too 
tenuous to reasonably expect their participation in school 
desegregation suits.17

16 The H. B. W. Guidelines provide in Par. V  B :
1. Faculty and staff desegregation. All desegregation plans 
shall provide for the desegregation of faculty and staff in ac­
cordance with the following requirements:

a. Initial assignments. The race, color, or national origin 
of pupils shall not be a factor in the assignment to a par­
ticular school or class within a school of teachers, admin­
istrators or other employees who serve pupils.
b. Segregation resulting from prior discriminatory as­
signments. Steps shall also be taken toward the elimina­
tion of segregation of teaching and staff personnel in the 
school resulting from prior assignments based on race, 
color, or national origin (see also, Y. B. 4 (b ) ).

17 Shelton v. Tucker, 364 U. S. 479; Bates v. Little Bock, 361 
U. S. 516; United States v. Board of Education of Greene County, 
332 P. 2d 40 (5th Cir. 1964) ■ Brooks v. School District of Moberly,



29

The number of Negro teachers in Fort Smith schools is 
not large. Their assignment on a nonracial basis along 
with white teachers in the system will hardly constitute a 
major administrative problem, and may substantially re­
lieve the “ intense psychological impact” the Board fears 
will result from assigning white children to Negro schools 
(R. 36-37, 59-63). Indeed, it is significant that the Board’s 
fear of psychological trauma was voiced only when white 
pupils were to be assigned to school with all Negro faculties.

The significance of the decisions on teacher desegrega­
tion and their effects on society should not be ignored. In 
1964-65 Arkansas public schools employed 13,205 white 
teachers and 3,545 Negro teachers.18 Complete teacher 
segregation is maintained, except in Little Rock where, 
in the fall of 1964, a Negro was named Supervisor of 
Elementary Education. A similar situation exists in most 
southern states. It is estimated that there are 419,199 
white teachers and 116,028 Negro teachers in 11 southern 
states, six border states (excluding Maryland) and the 
District of Columbia.19 There was no faculty desegregation 
in Alabama, Georgia, Louisiana, Mississippi and South 
Carolina. One North Carolina district, two Florida dis­
tricts, and seven Tennessee districts had some faculty de­
segregation.20

Mo., 267 F. 2d 733 (8th Cir. 1959) ; Henry v. Coahoma County, 
Miss. Board of Education, 8 Race Eel. L. Rep. 1480 (N. D. Miss. 
1963); Goode v. Board of Education of Summers County, 8 Race 
Rel. L. Rep. 1485 (S. D. W. Ya. 1963) ; Bryan v. Austin, 148 F. 
Supp. 563, 567 (E. D. S. C. 1957), judgment vacated 354 U. S. 933.

18 Southern Education Reporting Service, “ Statistical Summary 
of School Segregation-Desegregation in the Southern and Border 
States” , 14th Rev., Nov. 1964, p. 8.

19 Id. at p. 2.
20 Id. at pp. 2,15, 39, 50.



30

Within the Negro community, Negro teachers generally 
are recognized as having a leadership role with a com­
paratively high economic position21 but their potential 
as leaders in efforts to promote desegregation of public 
facilities and schools is limited.22 Continued faculty segre­
gation, posing the danger of discharge of Negro teachers 
as Negro pupils go to white schools where no Negro teachers 
are assigned threatens potentially disastrous soeial con­
sequences for one of the most important social and eco­
nomic groups in Negro communities in the South.

Increasingly, district courts are reaching the conclusion 
that faculty desegregation is not only necessary to effec­
tuate the mandate of Brown, but that delaying the process 
until pupil desegregation is complete increases to the point 
of impossibility the difficulty of completely disestablishing 
segregation in the system.23 But the courts of appeal, while 
apparently willing to affirm district court orders requiring 
faculty desegregation,24 have hesitated to require immedi­
ate implementation of perhaps the most vital part of the 
school desegregation process, and in case after case, sus­

21 According to the 1960 census the median income for the non­
white family was $3,662, but the median for the non-white family 
whose head was employed as an elementary or secondary teacher 
was $6,409 (1960 Census of Population, Vol. I, “ Characteristics of 
the Population,”  Part I, U. S. Summary, Table 230, pp. 1-611).

22 Lamanna, Richard A., “ The Negro Teacher and Desegregation” , 
Sociological Inquiry, Yol. 35, No. 1, Winter 1965.

23 See Christmas v. Board of Education of Harford County, 231 
P. Supp. 331 (D. Md. 1964); Howell v. School Board of Oklahoma 
City, 219 P. Supp. 427 (N. D. Okla. 1963) ; Board of Public In­
struction of Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 
1964).

24 Board of Public Instruction of Duval County v. Braxton, 
supra.



31

tain lower court rulings delaying teacher integration.25 Its 
construction of the district court’s ruling on teachers aside, 
the Eighth Circuit’s decision here has the same effect as 
the rulings in the other courts of appeal, i.e., the delay of 
teacher desegregation until pupil desegregation is sub­
stantially complete.

Such delay has been criticized in a dissent to the Fourth 
Circuit’s ruling postponing consideration of the teacher 
segregation issue in Bradley v. School Board of Richmond, 
Va., 345 F. 2d 310, 324 (4th Cir. 1965) by Judges Sobeloff 
and Bell in terms appropriate to this case:

The composition of the faculty as well as the com­
position of its student body determines the character 
of a school. Indeed, as long as there is a strict separa­
tion of the races in faculties, schools will remain 
“white” and “Negro” making student desegregation 
more difficult. . . . The question of faculty desegrega­
tion was squarely raised in the District Court and 
should be heard. It should not remain in limbo indefi­
nitely. After a hearing there is a limited discretion 
as to when and how to enforce the plaintiffs’ rights in 
respect to this, as there is in respect to other issues, * V.

25 Wheeler v. Durham City Board of Education,------ P. 2d —-—
(4th Cir. No. 9630, June 1, 1965) • Gilliam v. School Board of City 
of Hopewell, 345 P. 2d 325 (4th Cir. 1965) ; Bradley v. School 
Board of Richmond, Va., 345 P. 2d 310 (4th Cir. 1965); Bowditch
V. Buncombe County Board of Ed., 345 F. 2d 329, 332, 333 (4th 
Cir. 1965) ■ Griffin v. Board of Supervisors, 339 P. 2d 486, 493 
(4th Cir. 1964) ; Jackson v. School Board of the City of Lynchburg, 
321 P. 2d 230, 233 (4th Cir. 1963); Price v. Denison Independent
School District,------ P. 2 d -------  (5th Cir. No. 21632, July 2, 1965);
Lockett v. Board of Education of Muscogee County Sch. Dist., Ga., 
342 P. 2d 225, 229 (5th Cir. 1965) ; Bivins v. Board of Public Edu­
cation and Orphanage for Bibb County, Ga., 342 P. 2d 229, 232 
(5th Cir. 1965) ; Calhoun v, Latimer, 321 P. 2d 302, 311 (5th Cir. 
1963); Northcross v. Board of Education of City of Memphis, 333 
P. 2d 661, 666-67 (6th Cir. 1964) ; Mapp v. Board of Education of 
Chattanooga, 319 F. 2d 571 (6th Cir. 1963).



since administrative considerations are involved; but 
the matter should be inquired into promptly. There 
is no legal reason why desegregation of faculties and 
student bodies may not proceed simultaneously.

The views expressed by Judges Sobeloff and Bell, peti­
tioners submit, are constitutionally and practically cor­
rect. A policy of assigning teachers to schools on the basis 
of the race of the pupils is plainly invidious even without 
regard to its effect on what schools various pupils attend. 
Pupils admitted to public schools are entitled to be treated 
alike without racial differentiations in those schools. Mc- 
Laurin v. Oklahoma State Regents, supra. The student’s 
relationship with teachers is central to the educational ex­
perience in public schools. When a state decrees that those 
Negro pupils in all-Negro schools be taught only by Negro 
teachers and that those Negro pupils in schools with white 
children be taught only by white teachers, it significantly 
perpetuates the segregation of Negro Americans in their 
educational experience. This is contrary to the egalitarian 
principle of the Fourteenth Amendment and the teaching 
of Brown that segregated education is “ inherently unequal.”

The issues presented by the grade-a-year plan and the 
faculty segregation issue merge into a common problem 
of vital importance to the implementation of the Brown 
decision, and deserve review by this Court.



33

CONCLUSION

Wherefore, for the foregoing reasons it is respectfully 
submitted that the petition for certiorari should be
granted.

Respectfully submitted,

Jack Greekberg 
James M. Nabrit, III 
D errick A. B ell, Jr.

10 Columbus Circle
New York, New York 10019

George H oward, Jr.
3291/2 Main Street 
Pine Bluff, Arkansas

Attorneys for Petitioners





3S

II

MOTION FOR LEAVE TO ADD PARTY PLAINTIFFS

Petitioners, pursuant to the provisions of Rule 21, Fed­
eral Rules of Civil Procedure, move the Court for leave 
to add as party plaintiffs in the subject case Vera Moore, 
minor, by her mother and next friend, Mrs. Ellsworth Win- 
ton, and Karen Jones, minor, by her mother and next 
friend, Mrs. Beatrice C. McCain, and in support of said 
motion show the Court:

1. Each of the parties who join in this motion to be 
added as plaintiffs in this case are Negroes and are resi­
dents of Fort Smith, Arkansas. Vera Moore is eligible to 
enter the 10th grade in the Fort Smith public schools and 
has been assigned to the Negro Lincoln High School. Karen 
Jones is eligible to enter the 11th grade in the Fort Smith 
public schools and has been assigned to the Lincoln High 
School.

2. This action was filed in September 1963 to desegre­
gate the public schools in Fort Smith, Arkansas, by Mrs. 
Corine Rogers on behalf of her two minor daughters, Janice 
and Patricia Rogers, both of whom were then assigned to 
the Lincoln High School. The suit sought relief for both 
the named plaintiffs and for all other persons similarly 
situated. The parties seeking to be added as plaintiffs are 
members of the class upon whose behalf relief was sought 
in the subject case.

3. The proposed minor party plaintiffs in this action 
could have been original proper party plaintiffs, having 
been enrolled in the Fort Smith public schools and suffer­



36

ing from the racial segregation existing in the school sys­
tem at the time this action was filed.

4. Moreover, the parties seeking to be added as party 
plaintiffs seek relief requiring the complete desegregation 
of the Fort Smith schools and their immediate admission 
to the white Nortliside High School for all the reasons 
originally stated by petitioners.

5. During the period since this suit was filed, one of the 
original minor plaintiffs, Janice Rogers, has graduated 
from the Lincoln High School and is thus no longer en­
rolled in the Fort Smith public school system. The other 
minor plaintiff, Patricia Rogers, will enter the 12th grade 
at the Lincoln High School in September 1965, and may 
graduate before all the relief sought in the complaint can 
be obtained and the issues raised by this litigation finally 
settled.

6. Petitioners, thus seek to add additional party plain­
tiffs so as to insure complete and effective disposition of 
all issues raised in this case and avoid any possibility that 
the class will not be adequately represented.

7. Granting petitioners’ motion will make members of 
the represented class real parties in interest, and will not 
result in embarrassment or unfair handicap to the defen­
dants. Mullaney v. Anderson, 342 U. S. 415.



37

"Wherefore, for all the foregoing reasons, petitioners 
move the Court for leave to add as party plaintiffs in the 
subject case Yera Moore, minor, by her mother and 
next friend, Mrs. Ellsworth Winton, and Karen Jones, 
minor, by her mother and next friend, Mrs. Beatrice C. 
McCain.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Derrick A. B ell, J r.

10 Columbus Circle 
New York, New York

George H oward, J r. 
329% Main Street 
Pine Bluff, Arkansas

Attorneys for Petitioners



A P P E N D I X



APPENDIX

UNITED STATES DISTRICT COURT 

W. D. A rkansas, F ort Smith D ivision 

No. 1741

[833]
O p i n i o n  D a t e d  August 19, 1964

Janice R ogers, a Minor, age 16, P atricia R ogers, a Minor, 
age 15, by Their Mother and Next Friend, Mrs. Corine 
R ogers,

Plaintiffs,

Dr. E dgar F. Paul, Dr. R oger Dost, J ohn M. Y antis, 
Bruce Shaw , Jack Orober, Douglas G. R ogers, Board 
of Directors of Special School District of Fort Smith, 
Arkansas, Chris Corbin, Superintendent of Schools of 
Special School District of Fort Smith, Arkansas, 
Special School D istrict op F ort Smith , A rkansas, a 
Corporation,

Defendants.

232 F. Supp. 833

George Howard, Jr., Pine Bluff, Ark., for plaintiffs.

Daily & Woods, Shaw, Jones & Shaw, Fort Smith, Ark., 
for defendants.

J ohn E. Miller, Chief Judge.

On September 12, 1963, plaintiffs tiled their complaint 
against the Directors and the Superintendent of the Spe­
cial School District of Fort Smith, Arkansas, and against



2a

the District, in which they alleged that the defendants, and 
each of them, while acting in their official capacities have 
denied in the past, are now, and threaten to continue to 
deny to minor plaintiffs and the members of the class of 
persons that they represent, their rights, privileges and 
immunities as citizens of the United States and the State 
of Arkansas by engaging in the following:

“A. By maintaining and operating segregated pub­
lic high schools within the Special School District of 
Fort Smith, Arkansas for minor plaintiffs and the 
members of the class of persons that they represent 
and assigning minor plaintiffs and the members of 
the class of persons that they represent to segregated 
public high schools in said district because of their 
race and color contrary and in violation of the equal 
protection and due process clauses of the Fourteenth 
Amendment to the federal Constitution; and,

“B. By maintaining and operating a dual scheme 
of attendance areas based solely on race with the 
assignment of high school pupils to schools in the dis­
trict on the basis of their attendance areas in which 
they live, except that Negro high school pupils who 
do not reside in the Negro attendance area are re­
quired to attend the high school in the Negro atten­
dance area, and the white high school pupils residing 
in [834] the Negro attendance are required to at­
tend high school in a white attendance area, all of 
which violate the equal protection and due process 
clauses of the Fourteenth Amendment to the United 
States Constitution; and,

Opinion Dated August 19, 1964



3a

“ C. By maintaining and approving of budgets mak­
ing available funds, school construction programs and 
curricula designed to perpetuate and maintain com­
pulsory racially segregated schools, all of which vio­
late the Fourteenth Amendment to the Constitution 
of the United States; and,

“D. By the assignment of teachers, principals and 
other administrative personnel to the various high 
schools within the Special School District of Fort 
Smith, Arkansas on the basis of their race and color 
and on the basis of the race and color of the pupils, 
all of which is being done to the detriment of the 
plaintiffs and the members of the class of persons they 
represent and in violation of the Fourteenth Amend­
ment to the Constitution of the United States.”

That after conferring with defendants in an effort to 
persuade them to cease and discontinue the alleged unlaw­
ful and discriminatory practices, the minor plaintiffs tried 
to enroll at one of the white high schools in the District 
but were refused admission; that in June 1963 the plain­
tiffs invoked rights under the Arkansas Pupil Assignment 
Law by filing a written request for transfer from the all- 
Negro high school to the Northside white high school and 
requested a hearing before the Board; that “defendants 
have refused to enroll or admit minor plaintiffs to the 
Northside white school because of their race and color, 
contrary to and in violation of the equal protection and 
due process clauses of the Fourteenth Amendment to the 
Constitution of the United States.”

Opinion Bated August 19, 1964



4 a

That the minor plaintiffs, and each of them, and the 
members of the class of persons that they represent, have 
been and are now being greatly harmed, damaged and in­
jured by the unlawful, wrongful and knowing acts of the 
defendants.

The prayer of the complaint is that the cause be ad­
vanced on the docket and be set for a speedy hearing; that 
a temporary injunction be issued to enjoin and restrain 
defendants from further denying and depriving minor 
plaintiffs, and the members of the class of persons that 
they represent of their rights, privileges and immunities 
as citizens of the United States, or the equal protection of 
the laws secured to them by the Constitution and laws of 
the United States on the basis or classification of race or 
color; that upon a final hearing the temporary injunction 
be made permanent, and that the defendants and their 
successors in office be enjoined and restrained “ from as­
signing teachers, principals and other administrative per­
sonnel to the schools within the Special School District of 
Fort Smith, Arkansas, or any public school that is under 
the supervision or control of the defendants, on the basis 
of their race and color and on the basis of the race and 
color of the pupils in said district.”

On October 7, 1963, defendants filed their joint answer, 
in which they specifically denied that they have discrimi­
nated against the plaintiffs or the class of persons whom 
plaintiffs represent, because of race and color.

The defendants incorporated in their answer a motion 
to strike sub sub-paragraph D of sub-paragraph 9 of para­
graph IV of the complaint on the ground that the facts

Opinion Dated August 19, 1964



5a

therein alleged are insufficient to state a claim upon which 
plaintiffs are entitled to or can be granted any relief.

Paragraph III of the answer is as follows:

“ The defendants allege that on July 16, 1956, the 
defendants and their predecessors in office as members 
of the Board of Directors of the Special School Dis­
trict of Fort Smith, Arkansas, voluntarily and unani­
mously adopted a Plan of desegregation applicable to 
all of the schools administered and maintained by the 
Special School District of [835] Fort Smith, Arkan­
sas, which Plan is enunciated and set forth in an 
exchange of letters from the then President of the 
Board of Directors of the Special School District of 
Fort Smith under date January 5, 1956, addressed to 
the attorney member of the then Board of Directors 
of the District, Mr. Owen C. Pearce to Mr. Frank 
Beckman, President of the Board of Directors of the 
Special School District of Fort Smith under date of 
April 30, 1956, copies of which two said letters em­
bodying said Plan of desegregation are annexed to 
this Answer as Exhibits A and B hereto and made a 
part hereof to the same extent at this point as if copied 
in full in this Answer.

“Defendants further allege that said Plan of de­
segregation was placed in full effect by the defendants 
and their predecessors in office upon the commence­
ment of the school term in September 1957, at which 
term the First Grade in all of the elementary schools 
administered and maintained by the defendants was 
fully desegregated under said Plan and at which time

Opinion Dated August 19, 1964



6 a

the defendants cancelled and voided all pre-existing 
separate geographical districts for white and Negro 
pupils applicable to the First Grade in all of the de­
fendants’ schools.

“ Thereafter these defendants and their predecessors 
as members of the Board of Directors of the Special 
School District of Fort Smith have, each year at the 
commencement of the September term of the schools 
of the district, likewise desegregated the next highest 
grade in said schools and cancelled and voided all pre­
existing separate geographical districts for white and 
Negro pupils applicable to each successive higher 
grade, thus progressing through September, 1963, to 
full desegregation through the Seventh Grade, abol­
ishing all pre-existing separate geographical districts 
for white and Negro pupils applicable to Grades One 
to Seven inclusive.

“Defendants allege that said Plan is in full con­
formity with the decision of the United States Supreme 
Court in Brown v. Board of Education, 349 U. S. 294, 
75 S. Ct. 753, 99 L. Ed. 1083; is fully consistent there­
with and with the test of ‘all deliberate speed’ pre­
scribed in said decision under the facts and circum­
stances then and thereafter and now existing in the 
community served by the Special School District of 
Fort Smith; that the administration of said Plan by 
the defendants as above set forth is in conformity 
with and not violative of the equal protection and due 
process clauses of the Fourteenth Amendment to the 
United States Constitution as heretofore interpreted

Opinion Dated August 19, 1964



7a

by the Supreme Court of the United States and other 
Courts of Appeal of the United States.

“ That the plaintiffs and the class whom they repre­
sent have acquiesced in the administration of said 
Plan by the defendants as consistent with the equal 
protection and due process clauses of the Fourteenth 
Amendment to the Constitution of the United States, 
as interpreted by the courts of the United States, from 
its inception in 1957 down to the filing of this action.

“ That said Plan, as voluntarily adopted and admin­
istered by the defendants and their predecessors 
in office, has proved workable, beneficial and non- 
discriminatory for all of the patrons of the Fort Smith 
Special School District and the inhabitants of the 
community which it serves, regardless of race or color.

“ That said Plan is non-discriminatory on the basis 
of race or color upon its face and as in fact admin­
istered by the defendants from September, 1957, down 
to the present.

“ That said Plan as so administered has fostered 
and promoted harmonious and peaceful relationships 
[836] between all pupils and patrons of the Fort Smith 
Special School District and citizens of the community 
which it serves during the entire period of its opera­
tion down to the present, and provides a vehicle by 
which a transition from a totally segregated to a 
totally desegregated school system can be accomplished 
with a minimum of administrative problems.

“ That there still exist administrative problems of 
various natures involved in the continued transition 
from segregated schools to desegregated schools, some

Opinion Dated August 19, 1964



8 a

of which, are peculiar to the presently remaining seg­
regated grades Eight through Twelve, which grades 
the defendants in all good faith intend to continue to 
desegregate in accordance with the Plan, a grade each 
year; and a continuance of the Plan in its present form 
will foster the orderly, peaceful and harmonious solu­
tion of such administrative problems. Disruption or 
material alteration of the Plan at this stage of its 
progress will aggravate and accentuate the admin­
istrative problems confronting the defendants and 
peculiarly affecting the desegregation of grades Eight 
through Twelve, and will thereby cause a deterioration 
and down grading of the educational opportunities 
that can be afforded by the defendants to all of the 
patrons of the defendant District over the course of 
the nest five years, to the detriment of all of the stu­
dents of the defendant District, both Negro and white, 

“ That the progression of the Plan of desegregation, 
as adopted and placed in effect by the Special School 
District of Fort Smith, presently constitutes a deseg­
regation with ‘all deliberate speed’, in compliance with 
the equal protection and due process clauses of the 
Fourteenth Amendment to the United States Consti­
tution as interpreted and declared by the United States 
Courts.”

The cause was set for trial on its merits on November 
21, 1963, but it developed that facilities for holding court 
would not be available on that date, and the case was 
stricken from the trial calendar subject to resetting.

Opinion Bated August 19, 1964



9a

On June 2, 1964, the court fixed June 18, 1964, as the date 
for a pretrial conference to be held in the Circuit Court 
room in the Sebastian County Courthouse.

On June 13, 1964, the defendants filed an amendment to 
their answer in which they referred to the original plan 
of desegregation that had been voluntarily and unani­
mously adopted by the defendants and their predecessors 
and placed in operation upon the commencement of the 
school term in September 1957. In the amendment the de­
fendants set forth the status of the program under the 
plan heretofore referred to as carried out in those schools, 
the attendance areas of which include both white and Negro 
pupils.

The plan under which the defendants were operating 
when this suit was filed provided in subsection (b) of 
numbered paragraph 2:

“No pupil whose race or color is in the minority in 
a given school should be required to attend that school. 
He should be allowed, but not required, to attend the 
school nearest his home in which his race or color 
predominates.”

The defendants prayed in the amendment to their an­
swer that “ in the event the Court rules that the voluntary 
transfer provisions of the present plan of integration of 
Fort Smith Special School District and heretofore in effect 
since September 1957 be violative of any rights of the 
plaintiffs, that the Court grant the defendants reasonable 
time in which to promulgate and file with the Court and 
serve upon the plaintiffs a revised plan for the future con­
tinued integration of the schools in the Fort Smith Spe­

Opinion Bated August 19, 1964



1 0 a

cial School District eliminating therefrom the voluntary 
transfer provisions on the basis of race heretofore in effect; 
and pray otherwise as in their original Answer.”

[837] At the pretrial conference on June 18, 1964, 
the court held that the action heretofore taken under sub­
section (b) of numbered paragraph 2 (the voluntary trans­
fer provision) of the original plan of integration is invalid, 
and that the defendants should have a reasonable time to 
prepare, serve and file a revised plan of integration. In 
accordance with such findings the defendants were ordered 
to prepare, serve and file with the court in a reasonable 
time a revised plan for the integration of the schools of 
Fort Smith Special School District.

Also, at the same hearing it was announced that Mr. 
William M. Eads, Jr., had succeeded the named defen­
dant, Douglas G. Rogers, as a member of the Board of 
Directors, and the said Eads was substituted as a party 
defendant.

On July 17, 1964, the defendants in compliance with 
the pretrial order of June 18 filed and served the revised 
plan of integration. The plan filed by the defendants con­
sists of nine typewritten pages. It was introduced into 
evidence, and it seems unnecessary to copy herein the 
entire plan, but reference will be made herein to the provi­
sions of the proposed plan that are specifically objected 
to by the plaintiffs.

On July 28, 1964, the plaintiffs filed their response to 
the revised plan, in which they alleged that the revised 
plan and the initial plan, under which the defendants have 
heretofore operated the schools “do not represent a good

Opinion Dated August 19, 1964



1 1 a

'faitli and prompt effort to desegregate the Special School 
District of Fort Smith, Arkansas, with all deliberate speed 
within the meaning of the United States Supreme Court’s 
Mandate in the Brown case.” That the revised plan does 
not offer any benefits to the minor plaintiff, Patricia Rogers, 
who is now in the 11th grade; that the other named plain­
tiff, Janice Rogers, graduated from high school during 
the last school term and did not have an opportunity to 
enjoy the benefits to be derived from an integrated educa­
tion,1 and “ if the court should countenance the delay which 
is advocated by defendants, which plaintiffs assert that 
defendants have not shown any necessity for such delay, 
this minor plaintiff also will be denied her rights to an 
integrated education.” That the revised plan makes no 
provisions for the desegregation of the teaching and ad­
ministrative personnel in the schools within the Special 
School District of Fort Smith, Arkansas, all in violation of 
the Fourteenth Amendment to the United States Constitu­
tion. “ That the Lincoln attendance area under the pro­
posed reorganization will still be based solely on race, all 
in violation of the federal Constitution.”

The cause was tried to the court on August 10, 1964. 
The defendant, Chris Corbin, Superintendent of Schools 
of the Special School District of Fort Smith, Arkansas, 
called as a witness by defendants, testified at length. By 
agreement the original plan of integration, appearing as 
Exhibit A to the original answer and which became effec­
tive with the beginning of the school term in September 1

Opinion Dated August 19, 1964

1 Plaintiff Janice Rogers is now enrolled in the Fort Smith 
Junior College, a completely integrated college.



12 a

1957, and the proposed revised plan filed herein on July 
17, 1964, were introduced into evidence together with maps 
of the proposed attendance areas under the proposed and 
revised plan.

The plaintiffs also called Mr. Corbin as a witness and 
introduced Exhibits 1 through 8, but it seems unnecessary 
to set forth such exhibits for the reason that in the opinion 
of the court they are not helpful in determining the issues 
raised by the pleadings and the proposed revised plan and 
the objections of the plaintiffs thereto. These exhibits were 
introduced by plaintiffs in support of sub-paragraph 9-C 
of paragraph IV of the specific allegations of the com­
plaint, but they in nowise tend to establish that the de­
fendants have been maintaining and approving budgets 
making available funds, school construction programs and 
curricula designed to perpetuate and [838] maintain com­
pulsory racially segregated schools.

The plaintiffs also called as witnesses S. E. Bullock, 
Principal of Lincoln High School, and the plaintiffs Mrs. 
Corine Rogers and Miss Patricia Kogers. The plaintiff 
Mrs. Corine Rogers, mother of Miss Patricia Rogers, tes­
tified that she would like for her daughter to be “ exposed 
to an integrated education.” The daughter testified that 
she would like to attend an integrated high school because 
Negroes are now in competition with white people as well 
as with Negroes, and she felt that she would have a better 
chance to succeed by graduating from an integrated high 
school.

There are 30 schools situate in the defendant District and 
operated by the defendant Directors. In the school year 
1963-64 there was a total of slightly more than 14,000

Opinion Dated August 19, 1964



13a

pupils residing in the District. The average daily at­
tendance of Negro pupils was 1,0S2 while the average daily 
attendance of white pupils was 11,423.

The school population prior to World War II had re­
mained practically static for several years, but increased 
rapidly in the decade of 1940 to 1950. In 1948 the defen­
dant District found it necessary to engage in a huge build­
ing program, which program is now practically completed, 
and all the new buildings will be in operation with the be­
ginning of the school year 1964-65. The District plans to 
demolish the old Washington elementary school building 
which has heretofore been attended exclusively by Negroes. 
The building is antiquated and the other buildings are in 
excellent condition and the facilities are ample. Under the 
revised plan the students formerly attending will be trans­
ferred to other schools that are predominantly white and 
located in the attendance area of the residence of the pupils.

At the end of the school year 1962-63 the elementary 
grades, 1 through 6, had been integrated according to the 
original plan. At the beginning of the school year 1963-64, 
the 7th grade was integrated in accordance with the original 
plan. In the defendant District the elementary grades in­
clude 1 through 6, the junior high schools include grades 7 
through 9, and the senior high schools include grades 10 
through 12.

During the 1963-64 school year white and Negro pupils 
availed themselves of the provisions for voluntary trans­
fer contained in the original plan heretofore set forth, 
and the record discloses that a total of 323 white pupils 
voluntarily transferred from schools to which they had 
been assigned situated in their residential areas to vari­

Opinion Dated August 19, 1964



14 a

ous other schools. During the same time 214 Negro pupils 
transferred from schools located in their residential areas 
to other schools that were predominantly Negro. Only 39 
Negro pupils were enrolled and attended a predominantly 
white school during that school year, and no white pupils 
were enrolled or attended a school that was predominantly 
Negro. If the original plan had not contained the volun­
tary transfer provision, there would have been approxi­
mately 170 Negro pupils required to attend schools that 
were predominantly white and approximately 100 white 
students would have been required to attend schools that 
were predominantly Negro.

It will be observed from statements heretofore made that 
the pupils of both races availed themselves of the provi­
sions of the original plan for voluntary transfer.. It seems 
clear that the great majority of pupils, white and Negro, 
do not desire to attend an integrated school.

On June 3, 1963, the Supreme Court handed down the 
opinion in Goss v. Board of Education, 373 U. S. 683, 83 
S. Ct. 1405, 10 L. Ed. 2d 632, in which the court held that 
similar voluntary transfer provisions in a plan were void 
and unconstitutional. The court, in discussing the trans­
fer provision under consideration in that case, beginning 
at page 686 of 373 U. S., at page 1408 of 83 S. Ct., said:

“ It is readily apparent that the transfer system 
proposed lends itself to perpetuation of segregation. 
Indeed, the provisions can work only [839] toward that 
end. While transfers are available to those who choose 
to attend school where their race is in the majority, 
there is no provision whereby a student might trans­

Opinion Dated August 19, 1964



1 5 a

fer upon request to a school in which his race is in a 
minority, unless he qualifies for a ‘good cause’ trans­
fer. As the Superintendent of Davidson County’s 
schools agreed, the effect of the racial transfer plan 
was ‘to permit a child [or Ms parents] to choose 
segregation outside of his zone but not to choose inte­
gration outside of his zone.’ Here the right of trans­
fer, which operates solely on the basis of a racial 
classification, is a one-way ticket leading to but one 
destination, i.e., the majority race of the transferee 
and continued segregation. This Court has decided 
that state-imposed separation in public schools is in­
herently unequal and results in discrimination in vio­
lation of the Fourteenth Amendment. Brown v. Board 
of Education of Topeka, 347 U. S. 483, 74 S. Ct. 686, 98 
L. Ed. 873 (1954). Our task then is to decide whether 
these transfer provisions are likewise unconstitutional. 
In doing so, we note that if the transfer provisions 
were made available to all students regardless of their 
race and regardless as well of the racial composition 
of the school to which he requested transfer we would 
have an entirely different case. Pupils could then at 
their option (or that of their parents) choose, entirely 
free of any imposed racial considerations, to remain 
in the school of their zone or to transfer to another.”

At page 689 of 373 IT. S., at page 1409 of 83 S. Ct. the 
Court said:

“ * * * The transfer provisions here cannot be 
deemed to be reasonably designed to meet legitimate 
local problems, and therefore do not meet the require-

Opinion Dated August 19, 1964



16 a

merits of Brown. Accordingly, the decisions of the 
Court of Appeals, insofar as they approve the trans­
fer provisions submitted by the boards of education of 
Knoxville, Tennessee, and Davidson County, Tennessee, 
are reversed and the cases are remanded to the Court 
of Appeals with directions to remand to the District 
Courts for further proceedings in accordance with 
this opinion.”

When that decision was announced the defendant Direc­
tors began consideration of an amendment to their integra­
tion plan under which the schools had been operated since 
the beginning of the school term in 1957. On September 9, 
1963, three months and six days after the release of the 
opinion in the Goss case, the plaintiffs commenced the in­
stant action. As a result of the order of this court entered 
June 18, 1964, the defendants asked and were granted per­
mission to serve and file a plan for integration as a sub­
stitute for the original plan. In the revised plan the de­
fendant Board of Directors stated that their predecessors 
announced in 1956 their intention to integrate the District 
schools in accordance with the Brown decision. The Board 
at that time recognized that there were a number of fac­
tors that were required to be taken into consideration in 
arriving at a satisfactory solution of the problem and 
in formulating a plan for integration agreeable to con­
stitutional principles. In the revised plan the defendants 
stated:

“ This Board recognizes that these same elements 
must still, in varying degrees, be taken into account

Opinion Dated August 19, 1964



17 a

in revising the present plan. A revised plan must 
meet the mandate of the courts as laid down in later 
decisions.

“ The Board reaffirms its former position to endeavor 
to effect a constitutional solution of the problem. As 
a part of its revised plan of integration it re-adopts the 
policies that it used as a basis for the original ap­
proach to the matter in 1956. Inasmuch as any revised 
plan must take into account the progress that has al­
ready been made, and inasmuch as the sufficiency of a 
revised [840] plan must be determined in the light 
of the experience heretofore gained, the Board feels 
the the original declaration of the Board establishing 
the policy and Plan of Integration should be re-stated 
and incorporated into this revision:”

Then follows a restatement of the policy, and after re­
stating such policy the defendants set forth that subsequent 
decisions of the Supreme Court and other appellate courts 
require a modification of the present plan of integration, 
but that these modifications do not require that the policy 
of the Board be changed inasnruch as the announced policy 
on integration is consistent with and broad enough to be 
a basis of a revised plan that will in the judgment of the 
Board be adequate. Continuing the defendants said:

“ As a result of the original Plan of Integration the 
Special School District of Fort Smith, Arkansas, will 
enter the eighth year of its plan for voluntary integra­
tion at the beginning of the 1964-65 school year. In 
accordance with this present plan of voluntary integra­
tion grades 1 through 8 will be integrated at the be­

Opinion Dated August 19, 1964



1 8 a

ginning of the 1964-65 school term. The Revised Plan 
of the Board provides to continue to integrate the 
school system one grade at a time as it has heretofore 
done.”

The Board of Directors then deals with the schools in 
the “ elementary level” and in the “ secondary level.” With­
out doubt, in a District the size of the defendant District 
the most approved and efficient plan calls for a division of 
the schools in what school men term the “ 6-3-3” plan of 
operation, which is to say that the first six grades should 
be classified as elementary, the next three grades as junior 
high, and the last three grades as senior high. The re­
vised plan clearly outlines the changes necessary to put 
such a classification in effect, and it is necessary to create 
new junior high school attendance areas in order to take 
full advantage of the new system and as required by the 
huge building program hereinbefore referred to. The plan 
further provides:

“Under the revised plan of integration the Board 
will continue to integrate at the secondary level one 
grade at a time. During the 1964-65 school year grade 
eight will be integrated at the junior high school level. 
This will result in 197 Negro pupils being integrated 
in previously all white junior high schools.

“ Complying with the Court’s direction, the Board 
directs the discontinuance of the practice of voluntary 
transfer as provided in the original plan of integra­
tion. Any transfer either voluntary or involuntary of 
a pupil from one secondary school district to another

Opinion Dated August 19, 1964



19 a

must be done hereafter for reasons that appear ade­
quate to the administration, which reasons are neither 
based upon nor influenced by race or color.”

The plaintiffs contend that the revised plan of integra­
tion and defendants’ initial plan of integration “ do not 
represent a good faith and prompt effort to desegregate 
the Special School District of Fort Smith, Arkansas, with 
all deliberate speed within the meaning of the United States 
Supreme Court’s Mandate in the Brown case.” They also 
argue that there has been too much deliberation and not 
enough speed.

When the actions of the School Board from 1956 to the 
present time are considered, along with the many decisions 
of the Supreme Court and the appellate courts, it is diffi­
cult for this writer to understand why such contentions 
would be made. There have been and is now an exceptionally 
harmonious and cooperative relationship between the races 
in Fort Smith, Arkansas. Integration is an accomplished 
fact, and certainly the School District, acting through its 
Directors, made “a prompt and reasonable start towards 
compliance with the Brown decision.”

In Brown v. Board of Education, (1955) 349 U. S. 294, 75 
S. Ct. 753, 99 L. Ed. 1083, the court, beginning at page 
[841] 300 of 349 U. S., at page 756 of 75 S. Ct., said:

“ # * * Once such a start has been made, the courts 
may find that additional time is necessary to carry 
out the ruling in an effective manner. The burden rests 
upon the defendants to establish that such time is 
necessary in the public interest and is consistent with 
good faith compliance at the earliest practicable date.

Opinion Dated August 19, 1964



2 0 a

To that end, the courts may consider problems related 
to administration, arising from the physical condition 
of the school plan, the school transportation system, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of deter­
mining admission to the public schools on a nonracial 
basis, and revision of local laws and regulations which 
may be necessary in solving the foregoing problems. 
They will also consider the adequacy of any plans the 
defendants may propose to meet these problems and 
to effectuate a transition to a racially nondiscrimina- 
tory school system.”

The plaintiffs cited and seem to rely upon the case of 
Watson v. City of Memphis (1963) 373 U. S. 526, 83 S. Ct. 
1314, 10 L. Ed. 2d 529, in their broadside assault upon 
the revised plan, but the court, beginning at page 531 
of 373 U. S., at page 1318 of 83 S. Ct., said:

“ This case presents no obvious occasion for the ap­
plication of Brown. We are not here confronted with 
attempted desegregation of a local school system with 
any or all of the perhaps uniquely attendant problems, 
administrative and other, specified in the second Brown 
decision as proper considerations in weighing the need 
for further delay in vindicating the Fourteenth Amend­
ment rights of petitioners. Desegregation of parks 
and other recreational facilities does not present the 
same kinds of cognizable difficulties inhering in elimina­
tion of racial classification in schools, at which attend­
ance is compulsory, the adequacy of teachers and

Opinion Dated August 19, 1964



2 1 a

facilities crucial, and questions of geographic assign­
ment often of major significance.”

In Aaron v. Cooper, (8 Cir. 1957) 243 F. 2d 361, the 
court had under consideration a judgment of the District 
Court for the Eastern District of Arkansas, 143 F. Supp. 
855 (1956), in which the District Court approved a plan of 
integration promulgated and adopted by the Board of 
Directors of the Little Bock School District. The trial 
court at page 864 of 143 F. Supp. said:

“ * * * The primary responsibility for the imple­
mentation of the constitutional principles announced 
in the May 17, 1954, decision, Brown v. Board of Edu­
cation, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873, is 
upon the school authorities. It is the duty of the school 
authorities to solve the many and varied local problems. 
Because of the nature of the problems and the local 
conditions the school authorities often find that action 
taken by other school districts is inapplicable to the 
facts with which they are dealing. It is not the duty 
or function of the federal courts to regulate or take 
over and operate the public schools. That is still the 
duty of the duly state-created school authorities, but 
the free public schools must be maintained and operated 
as a racially nondiscriminatory system. During the 
period of transition from a segregated to a nonsegre- 
gated system the school authorities must exercise good 
faith. They must consider the personal rights of all 
qualified persons to be admitted to the free public 
schools as soon as practicable on a nondiscriminatory 
basis. The public interest must be considered along

Opinion Dated August 19, 1964



2 2 a

with all the facts and conditions prevalent in the 
school district. Educational standards should not be 
lowered. If the school authorities have acted and are 
proceeding in good faith, their actions should not 
be set aside by a court so long as [842] their action 
is consistent with the ultimate establishment of a non- 
discriminatory school system at the earliest practicable 
date.”

The Court of Appeals, in affirming the judgment of the 
District Court, beginning at page 363 of 243 F. 2d, said:

“Appellants cite to us several cases where Federal 
Courts have used their injunctive powers to speed up 
or effectuate integration. Willis v. Walker, D. C. 
W. D. Ky. 1955,136 F. Supp. 177; Thompson v. County 
School Board of Arlington County, D. C. E. D. Va. 
1956, 144 F. Supp. 239; Clemons v. Board of Educa­
tion, 6 Cir., 1956, 228 F. 2d 853, certiorari denied 1956, 
350 U. S. 1006, 76 S. Ct. 651, 100 L. Ed. 868; Booker 
v. State of Tennessee Board of Education, 6 Cir., 1957, 
240 F. 2d 689. These decisions serve only to demon­
strate that local school problems are ‘varied’ as re­
ferred to by the Supreme Court. A reasonable amount 
of time to effect complete integration in the schools of 
Little Bock, Arkansas, may be unreasonable in St. 
Louis, Missouri, or Washington, D. C. The schools 
of Little Bock have been on a completely segregated 
basis since their creation in 1870. That fact, plus local 
problems as to facilities, teacher personnel, the crea­
tion of teachable groups, the establishment of the

Opinion Dated August 19, 1964



23a

proper curriculum in desegregated schools and at the 
same time the maintenance of standards of quality in 
an educational program may make the situation at 
Little Rock, Arkansas, a problem that is entirely dif­
ferent from that in many other places. It was on the 
basis of such ‘varied’ school problems that the Su­
preme Court in the second Brown decision remanded 
the cases there involved to the local District Courts to 
determine whether the school authorities, who pos­
sessed the primary responsibility, have acted in good 
faith, made a prompt and reasonable start, and whether 
or not additional time was necessary to accomplish 
complete desegregation. The question of speed was to 
be decided with reference to existing local conditions.”

Throughout the proposed revised plan the Board refers 
only to elementary and secondary schools for the reason 
that the “ 6-3-3” program cannot be inaugurated and ef­
fectively followed until there have been some necessarj  ̂
changes made, as set forth in the provisions of the revised 
plan, and in discussing those revisions the Board has re­
ferred to both junior high and senior high as schools of the 
secondary level, but when the revised plan is in operation, 
the Board states:

“ In order to accomplish reorganization of the second­
ary schools the Board has established a transition 
period during the 1964-65 school year. Northside High 
School will house grades 10, 11 and 12. Southside 
Junior-Senior High School will house grades 9, 10 and 
11 during the transition year. Lincoln will include 
grades 9, 10, 11 and 12 during the school year 1964-

Opinion Dated August 19, 1964



2 4 a

65 and 10, 11 and 12 beginning with the school year 
1965-66.”

The plaintiffs made no contention as to the provisions 
of the revised plan which provides that in the interest of 
maintaining and insuring “quality education for all pupils” 
that the revised plan, insofar as the Howard Elementary 
School, the Dunbar Elementary School and the Washing­
ton Elementary School are concerned, shall not apply until 
the beginning of the school year 1965-66 for the reasons 
set forth in numbered paragraph 3-A, B and C of the re­
vised plan.

The plaintiffs further contend that the revised plan is 
unconstitutional because under it teachers, principals and 
other administrative personnel of the high schools may be 
assigned on the basis of their race and color and on the 
basis of the race and color of the pupils which will be 
to the detriment of the plaintiffs and the members of the 
class of persons they represent.

In this connection, the defendants in their original answer 
filed October 7, [843] 1963, moved to strike sub-paragraph 
9-D of Paragraph IV, which is the paragraph where the 
plaintiffs voice their objection to the plan because of the 
manner of providing for the assignment of teachers and 
other administrative personnel.

The court in the pretrial conference stated that the sub- 
paragraph would not be stricken for the reason that it 
might become material and require consideration if the 
question was raised by proper parties, and relying upon 
Mapp v. Board of Education of City of Chattanooga (6 
Cir. 1963) 319 P. 2d 571, the court sustained an objection

Opinion Dated August 19, 1964



2 5 a

to the introduction of evidence by plaintiffs on the question 
of the assignment of teachers, but in order to avoid a 
multiplicity of suits, the court will retain jurisdiction of 
the case in order that the question may be raised if any 
proper party desires to intervene.

At the close of the introduction of testimony the plain­
tiffs orally moved the court that they should recover their 
costs and a reasonable attorney’s fee, and in support thereof 
have cited to the court the case of Bell v. School Board 
of Powhatan County, Va., (4 Cir. 1963) 321 F. 2d 494; 
Local No. 149 I. U., U. A., A. & A. I. W. v. American 
Brake Shoe Co., (4 Cir. 1962) 298 F. 2d 212; Bolax 
v. Atlantic Coast Line R. Co., (4 Cir. 1951) 186 F. 2d 
473; and Buckner v. County School Board of Green County, 
(4 Cir. 1964) 332 F. 2d 452.

The court has examined all of the cases relied upon by 
plaintiffs in support of their motion for allowance of at­
torney’s fees. Bell, supra, the court, in considering the 
question of allowance of attorney’s fees in a school integra­
tion case, announced what this court believes to be the 
correct rule at page 500 of 321 F. 2d:

“ * * * The general rule is that the award of coun­
sel fees lies within the sound discretion of the trial 
court but, like other exercises of judicial discretion, 
it is subject to review. The matter must be judged in 
the perspective of all the surrounding circumstances. 
Local 149, U. A. W. v. American Brake Shoe Co., 298 
F. 2d 212 (4th Cir.), cert, denied, 369 U. S. 873, 82 
S. Ct. 1142, 8 L. Ed. 2d 276 (1962). Here we must 
take into account the long continued pattern of eva­

Opinion Dated August 19, 1964



2 6 a

sion and obstruction which included not only the de­
fendants’ unyielding refusal to take any initiative, thus 
casting a heavy burden on the children and their 
parents, but their interposing a variety of administra­
tive obstacles to thwart the valid wishes of the plain­
tiffs for a desegregated education. To put it plainly, 
such tactics would in any other context be instantly 
recognized as discreditable. The equitable remedy 
would be far from complete, and justice would not be 
attained, if reasonable counsel fees were not awarded 
in a case so extreme. See Eolax v. Atlantic Coast Line 
E. Co., 186 F. 2d 473, 481 (4th Cir. 1961) (Parker, 
C .J.); cf. Vaughan v. Atkinson, 369 U. S. 527, 530-531, 
82 S. Ct. 997, 8 L, Ed. 2d 88 (1962).”

Certainly the facts in the instant case do not justify the 
allowance of an attorney’s fee to the plaintiffs, and there­
fore their motion should be overruled.

The facts reflect that the Directors and administrators 
of the school affairs of the defendant District have since 
1956 been diligent in their efforts to integrate the schools 
as required by the decisions of the courts. The adminis­
tration of the plan has been eminently successful and satis­
factory. It has been accepted by the majority of pupils 
and parents as the best method of complying in good faith 
with the law. When the defendants discovered that the 
voluntary transfer provisions in the original plan was 
unconstitutional, they began to do something about it. 
Prior to the decision in the Goss case, the defendants were 
moving with all deliberate speed to make some necessary 
changes in the attendance areas in order to utilize all

Opinion Dated August 19, 1964



27a

the facilities of the District and to guarantee every child 
of school age the full enjoyment of his or her constitutional 
rights. In order to insure the attainment of that objec­
tive a plan had to be followed. It has [844] been followed 
for seven years, and under the proposed revised plan full 
and complete integration will be accomplished, and in order 
to insure such a result and the full implementation of the 
constitutional principles, the Directors and school authori­
ties should not be deprived of the exercise of their sound 
discretion in the discharge of their primary responsibility 
for “assessing and solving the problems that confront 
them.”

The revised plan should be approved, and judgment is 
being entered today, approving and confirming the revised 
plan as filed herein on July 17, 1964; retaining jurisdiction 
of the cause for a decision of any question that might arise 
as to the assignment of teachers and principals, but not to 
any other personnel, if presented by proper parties; dis­
missing the complaint of the plaintiffs except as to sub- 
paragraph 9-D of paragraph IV ; and providing that the 
parties hereto shall pay their own costs.

Opinion Dated August 19, 1964



2 8 a

Judgment

On August 10, 1964, this cause came on for trial to the 
court, without the intervention of a jury, the plaintiffs ap­
peared by Mr. George Howard, Jr., their attorney, and the 
defendants appeared by Mr. J. S. Daily and Mr. Bruce H. 
Shaw, their attorneys.

Evidence on behalf of the parties was presented and, at 
the conclusion thereof, the case was submitted and taken 
under advisement by the court.

Now, having considered all the evidence adduced at the 
trial of this cause and all the pleadings herein, the court 
has prepared and filed its opinion herein, and in accordance 
therewith,

It is therefore ordered, adjudged and decreed that the 
defendant’s Revised Plan of Integration, filed herein on 
July 17, 1964, be and hereby is approved and confirmed; 
that the court retain jurisdiction of the cause for a decision 
on any question that might arise as to the assignment of 
teachers and principals, but not as to any other personnel, 
if presented by proper parties; that the complaint of the 
plaintiffs, except as to subparagraph 9-D of paragraph IV, 
be and is dismissed and the parties hereto shall pay their 
own costs.

I t is further ordered and adjudged that plaintiff’s mo­
tion for allowance of attorney’s fees be and hereby is over­
ruled.

This August 19,1964.

J ohn E. Miller 
United States District Judge



2 9 a

UNITED STATES COURT OF APPEALS

E ighth Circuit 
—.—.— « — .——

No. 17870.

345 F. 2d 117 
--------- «---------

J anice R ogers, a Minor, Age 16, P atricia R ogers, a Minor, 
Age 15, by Their Mother and Next Friend, Mrs. Corine 
R ogers,

Appellants,

[117]

O p i n i o n  D a t e d  M a y  7, 1 9 6 5

Dr. Edgar F. P aul, Dr. R oger B ost, J ohn M. Y antis, 
B ruce Shaw , J ack G-roeer, D ouglas G. R ogers, Board 
of Directors of Special School District of Fort Smith, 
Arkansas; Chris Corbin, Superintendent of Schools of 
Special School District of Fort Smith, Arkansas; Spe­
cial School D istrict of F ort S mith, A rkansas, a Cor­
poration,

Appellees.

[118] Derrick A. Bell, Jr., New York City, made argu­
ment for appellants and filed brief with Jack Greenberg 
and John W. Walker, New York City, and George Howard, 
Jr., Pine Bluff, Ark.

Bruce IJ. Shaw, of Shaw, Jones & Shaw, Fort Smith, 
Ark., made argument for appellees and filed brief with 
John S. Daily, of Daily & Woods, Fort Smith, Ark.



30 a

Opinion Bated May 7, 1965

B e f o r e  :
V ogel, Matthes and Mehafey,

Circuit Judges.

Matthes, Circuit Judge.
In Goss v. Board of Education, 373 U. S. 683, 83 S. Ct. 

1405, 10 L. Ed. 2d 632, decided June 3, 1963, the Supreme 
Court held unconstitutional so-called voluntary transfer 
provisions incorporated in the formal desegregation plans 
adopted by the school boards of the Knoxville, Tennessee 
and the Davidson County, Tennessee School Districts. In 
the desegregation plan adopted by the school board of the 
Special School District of Fort Smith, Arkansas, a volun­
tary transfer provision was incorporated under which any 
student, upon request, was permitted, solely on the basis 
of his own race and the racial composition of the school to 
which he was assigned by virtue of the attendance area in 
which he resided, to transfer from such school, wdiere he 
would be in racial minority to the school in wdiich his race 
or color predominated.

Approximately three months after Goss was decided, 
Mrs. Corine Rogers, a Negro parent, filed this suit in 
behalf of her two minor daughters, Janice, then 16, and 
Patricia, then 15, and in behalf of all other Negro minors 
within the Special School District of Fort Smith, Arkansas, 
who are similarly situated because of race and color. She 
sought to enjoin the school board members and the District 
Superintendent, defendants in the action, from maintaining 
and operating segregated public schools in such district. 
Janice graduated from the twelfth grade upon completion



31a

of the 1963-1964 school term, and as to her the issues pre­
sented by this litigation are now moot. Patricia will enter 
the last year of high school with the advent of the 1965-1966 
school year.

The allegations of the complaint upon which plaintiffs 
(hereinafter designated as appellants) premise their right 
to relief appear verbatim in the District Court’s opinion 
(Judge John E. Miller), 232 F. Supp. 833 (1964) and need 
not be fully restated herein. It is sufficient to recall that 
appellants alleged that defendants (hereinafter sometimes 
designated as appellees) were maintaining and operating 
segregated high schools for the minor appellants and the 
members of the class they represent; were maintaining 
and operating the voluntary transfer system for assign­
ment of pupils; were maintaining and approving budgets, 
programs and curricula designed to perpetuate and main­
tain compulsory racially [119] segregated schools; and 
were assigning principals, teachers, and administrative per­
sonnel to the various high schools on the basis of their 
race and color, all in violation of the equal protection and 
due process clauses of the Fourteenth Amendment to the 
United States Constitution.

At a pretrial conference held after the issues had been 
joined, the Court ruled that the voluntary transfer provi­
sion was invalid and granted appellees a reasonable time 
to file a revised plan of integration. On July 17, 1964, ap­
pellees, in compliance with the Court’s order, filed a revised 
plan which also came under attack by appellants.

After a trial on August 10, 1964, the Court, on August 
19, 1964 filed its opinion, and entered judgment approving 
and confirming the revised plan of integration. The Court,

Opinion Dated May 7, 1965



32 a

however, retained jurisdiction of the cause for a decision 
“ of any question that might arise as to the assignment of 
teachers and principals.”

We revert now to the original desegregation plan, the 
circumstances attending its adoption, its effect upon segre­
gation, and to other pertinent facts and circumstances.

Following Brown v. Board of Education, 349 TJ. S. 294, 
75 S. Gt. 753, 99 L. Ed. 1083 (1955), the Board of the Spe­
cial School District of Fort Smith, pursuant to voluntary 
action on its part, announced a policy on integration of the 
Fort Smith public schools. The policy was enunciated in 
a plan which was formulated and adopted by the Board in 
1956. The plan became effective at the beginning of the 
1957-1958 school year, provided for the desegregation of 
one grade each year commencing with the first grade and 
progressing through the twelfth grade, and as noted, had 
incorporated therein the voluntary transfer provision.

There are now 30 schools in the District. In the 1963- 
1964 school year the total school population was slightly 
in excess of 14,000. The average daily attendance of Negro 
pupils was 1,082, and the average daily attendance of white 
pupils was 11,423. In that same school year 39 Negro pupils 
were enrolled in and attended predominantly white schools. 
It appears that pupils of both races took advantage of the 
voluntary transfer provision. Thus, by way of illustration, 
in the 1963-1964 year 323 white pupils and 214 Negro pupils 
transferred from schools located in their residential areas, 
which they were at liberty to attend, to other schools where 
their race predominated. The Superintendent testified 
without contradiction, that if the voluntary transfer pro­
vision had not been utilized there would have been 150 to

Opinion Dated May 7, 1965



33 a

170 Negro pupils attending predominantly white elemen­
tary schools in the 1963-1964 year, and approximately 100 
white students would have attended predominantly Negro 
schools in the same school year. The facts in regard to 
the transfer issue caused Judge Miller to observe “It 
seems clear that the great majority of pupils, white and 
Negro, do not desire to attend an integrated school.” 232 
F. Supp. at p. 838.

The revised plan readopted what may appropriately be 
referred to as the geographic school zoning system. The 
voluntary transfer provision was eliminated. Under the 
plan “ all pupils will be assigned to the elementary school 
district in which they reside, without regard to race.” How­
ever, there was excepted from the plan’s operation for a 
period of one year the following three elementary school 
attendance areas having a predominantly Negro popula­
tion: Howard Elementary School, having a ratio of ap­
proximately 55 white pupils to 530 Negro pupils; Dunbar 
Elementary School, having a ratio of approximately 22 
white pupils to 60 Negro pupils; and Washington Ele­
mentary School, having a ratio of approximately 30 white 
pupils to 70 Negro pupils. The exception was made to 
permit pupils residing in the three named attendance areas 
to resort to the voluntary transfer provision for the stated 
period of one year.1

Opinion Bated May 7, 1965

1 In justification of the exception, the Board stated that there 
“would be an intense psychological impact in the assigning of 
a minority of White pupils to previously all Negro elementary 
schools. * # # The Board feels that its good faith in formulating 
this Revised Plan cannot be challenged because of this element 
of delay in connection with these three schools when consideration 
is given to the fact that this revised plan will result in the im-



3 4 a

[120] The revised plan provides that integration was to 
continue on the basis of a grade each year until complete 
integration through the twelfth grade has been accom­
plished. Thus, under the plan the eighth grade was inte­
grated during the 1964-1965 school year and four additional 
years will be required to fully integrate all grades.

Provisions in the revised plan, not found in the original 
one, are designed to effect reorganization and establish the 
6-3-3 system so as to provide a basic six-year elementary 
school program, a three-year junior high school program, 
and a three-year senior high school program commencing 
in September 1965.2

The plan also contemplates a reorganization of the sec­
ondary schools in a manner that will better serve the

Opinion Dated May 7, 1965

mediate integration of more than 106 Negro pupils into the pre­
dominantly White elementary schools upon the Court’s approval 
of this Revised Plan.

“ (b) Because of the state of repair and the generally poor physi­
cal condition and inadequacy of facilities at Washington Ele­
mentary School, this school will be discontinued by the beginning 
of the 1965-66 school year. At that time and beginning with 
the 1965-66 school year, the Negro pupils within the present at­
tendance area of Washington Elementary School will be assigned 
to the Sutton Elementary School and the Spradling Elementary 
School.

“ (c) Beginning with the school year 1965-66 the Howard Ele­
mentary School and the Dunbar Elementary School will continue 
upon a fully integrated basis.”

We assume that the one year moratorium applicable to the three 
named elementary schools will end with the termination of the 
1964-1965 school year, and that grades one through nine will be 
integrated during the 1965-1966 school year.

2 The plan designates the schools in which the reorganization 
will be accomplished. We deem it unnecessary to burden this 
opinion with an analysis of the plan in this regard.



3 5 a

community and meet the educational needs of the pupils. 
It is expressly provided that “Any transfer either volun­
tary or involuntary of a pupil from one secondary school 
district to another must be done hereafter for reasons 
that appear adequate to the administration, which reasons 
are neither based upon nor influenced by race or color.”

The foregoing background facts bring us to the issues 
presented in this appeal. We will advert to other pertinent 
facts during our consideration and discussion of the conten­
tions of the parties.

Summarily stated, appellants contend that the District 
Court erred in approving the revised plan for the reasons: 
(1) it unreasonably delays total desegregation for four 
years; (2) it unreasonably subjects the minor appellants 
and other Negroes similarly situated to an inferior as well 
as segregated education and prevents Patricia Eogers from 
attending the predominantly white Northside High School; 
(3) it deprives the minor appellants and other Negroes sim­
ilarly situated of their constitutional right to instruction by 
teachers assigned without regard to race. The fourth and 
final contention brings into issue the refusal of the trial 
court to allow reasonable attorney’s fees to appellants for 
the prosecution of this litigation.

We pause to observe that appellants do not attack or 
challenge the validity of the geographic school zoning sys­
tem embraced by the revised plan. Neither is there any 
hint or suggestion of intentional gerrymandering of the 
school zones so as to confine one race to attendance at a 
particular school as was the situation in Taylor v. Board of 
Education of City School District of New Rochelle, 294 
F. 2d 36 (2 Cir. 1961), cert, denied 368 U. S. 940, 82 S. Ct.

Opinion Dated May 7, 1965



36 a

382, 7 L. Ed. 2d 339 (1961). Thus, we have here a ease 
where the primary and basic complaint is that the school 
board has moved too deliberately and with insufficient speed 
in bringing about desegregation of all of the grades in the 
Fort Smith system. What appellants are obviously desirous 
of [121] accomplishing by this litigation is desegregation 
of grades nine through twelve by the beginning of the 1965- 
1966 school term.

Before turning to an evaluation of the original deseg­
regation plan, its revision, and the Board’s actions relating 
thereto, we deem it appropriate to again briefly review 
the pertinent criteria to be considered in resolving the 
issues presented.

In the second Brown case, the Supreme Court stated:
“ * * * [T]he courts will require that the defendants 

[Board] make a prompt and reasonable start toward 
full compliance with our May 17, 1954, ruling. Once 
such a start has been made, the courts may find that 
additional time is necessary to carry out the ruling in 
an effective manner. The burden rests upon the defen­
dants to establish that such time is necessary in the 
public interest and is consistent with good faith com­
pliance at the earliest practicable date. To that end, 
the courts may consider problems related to adminis­
tration, arising from the physical condition of the 
school plant, the school transportation system, per­
sonnel, revision of school districts and attendance areas 
into compact units to achieve a system of determining 
admission to the public schools on a nonracial basis, 
and revision of local laws and regulations which may be

Opinion Dated May 7, 1965



37a

necessary in solving the foregoing problems. They will 
also consider the adequacy of any plans the defendants 
may propose to meet these problems and to effectuate 
a transition to a racially nondiscriminatory school sys­
tem * * * 349 U. S. at pp. 300-301, 75 S. Ct. at p. 756.

Since Brown the time available for making the transition 
from a segregated to a desegregated school system has de­
creased and the emphasis on local problems has been re­
duced. See Watson v. City of Memphis, 373 U. S. 526, 83 
S. Ct. 1314, 10 L. Ed. 2d 529 (1963); Goss v. Board of Edu­
cation, 373 U. S. 683, 83 S. Ct. 1405 (1963); Griffin v. County 
School Board of Prince Edward County, 377 U. S. 218, 84 
S. Ct. 1226, 12 L. Ed. 2d 256 (1964); Calhoun v. Latimer, 
377 IT. S. 263, 84 S. Ct. 1235, 12 L. Ed. 2d 288 (1964). In 
Goss, supra, 373 U. S. at p. 689, 83 S. Ct. at p. 1409, the 
Court enunciated the context in which desegregation plans 
must be judged:

“ * * * Indeed, it was consideration for the multi­
farious local difficulties and ‘variety of obstacles’ which 
might arise in this transition that led this Court eight 
years ago to frame its mandate in Brown in such lan­
guage as ‘good faith compliance at the earliest prac­
ticable date’ and ‘all deliberate speed.’ Brown v. Board 
of Education, 349 IT. S., at 300, 301, 75 S. Ct. at 756 
[753], Now, however, eight years after this decree 
was rendered and over nine years after the first Brown 
decision, the context in which we must interpret and 
apply this language to plans for desegregation has 
been significantly altered.”

Opinion Dated May 7, 1965



38a

Opinion Dated May 7, 1965

Delay issue.

[1] Although appellants do not expressly or impliedly 
assert that the revised plan is the product of or motivated 
by actual bad faith on the part of the Board members and 
Superintendent, they do assert, in effect, that the failure of 
the plan to provide for complete desegregation without 
further delay constitutes lack of good faith as a matter of 
law within the teachings of the Supreme Court in the 
Brown cases, 347 TJ. S. 483, 74 S. Ct. 686, 98 L. Ed. 873; 
349 TJ. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, and the subse­
quent cases in which the Supreme Court expounded the 
Brown mandate. Thus, they argue that “ there is no reason 
to prolong for another four years a procedure which prac­
tically and constitutionally can be accomplished in one.”

Similar assertions made below were treated by Judge 
Miller in this language: “ [w]hen the actions of the School 
Board from 1956 to the present time are considered, 
along with the many decisions of [122] the Supreme Court 
and the appellate courts, it is difficult for this writer 
[Court] to understand why such contentions would be made. 
There have been and is now an exceptionally harmonious 
and cooperative relationship between the races in Fort 
Smith, Arkansas. Integration is an accomplished fact,3 
and certainly the School District, acting through its Di­
rectors, made ‘a prompt and reasonable start towards com­
pliance with the Brown decision.’ ” 232 F. Supp. at p. 840.

3 Appellants acknowledge in their brief that “ [a] private Junior 
college and the Catholic schools are integrated as are the local 
hotels, movie theatres, skating rinks, bowling alleys and the swim­
ming pool.”



39 a

This determination is factually sound and was not in­
duced by an erroneous concept of the controlling legal prin­
ciples. The integration plan adopted by the school board 
without compulsion, when evaluated in light of local con­
ditions and administrative hurdles, convinces us that not 
only did the school board make a “prompt and reasonable 
start toward full compliance,” but that desegregation has 
in fact moved forward with “ all deliberate speed.”

But appellants argue further that there was no showing 
of valid administrative problems justifying prolonging of 
complete desegregation for four additional years. We do 
not so read the record. Both appellants and appellees were 
satisfied to rely mainly on the testimony of the Superin­
tendent of Schools of the Special School District of Fort 
Smith.4 His testimony in siibstance was that since the vol­
untary adoption of the desegregation plan in 1956, the 
Board has continuously been confronted with administra­
tive problems arising out of: (a) school population growth 
and inadequacy of buildings and other facilities; (b) mass 
shifting within the District of School population from the 
older sections of Fort Smith to new suburban areas; (e) 
the huge building program entailing an expenditure of 
approximately $10,000,000; and (d) the transition of all 
of the schools into a regular 6-3-3 system. The Super­
intendent further stated that to require immediate deseg­
regation of the four remaining grades would give rise to

Opinion Dated May 7, 1965

4 We note that appellants’ case consisted of the Superintendent 
of Schools of the Special School District, the Principal of Lincoln 
High School and two of the appellants, Mrs. Corine Rogers and 
Patricia Rogers. Only the Superintendent of Schools testified on 
behalf of appellees.



4 0 a

additional administrative problems and would greatly 
hamper what has to date been an orderly desegregation 
of the schools. That the Superintendent was qualified to 
express the foregoing opinion can hardly be gainsaid. He 
had been in the Fort Smith school system for 24 years as a 
principal, 4 years as assistant superintendent, and 10 years 
as Superintendent. His uncontradicted testimony supports 
the conclusion that to compel immediate and complete in­
tegration would needlessly thwart the good faith efforts of 
the Board to accomplish de jure desegregation in a peaceful 
and orderly manner.

In further support of their contention that the Board has 
not gone forward with all deliberate speed, appellants make 
reference to recent Third, Fourth, Fifth and Sixth Circuit 
decisions which require school boards to desegregate all 
grades within no more than four to six years in lieu of the 
twelve year grade-a-year plans. A cursory examination of 
these authorities reveals one unavoidable and most signifi­
cant factual dissimilarity with the facts presented in this ap­
peal. Among other important factual variances, every case 
involved situations where the school boards had either failed 
to act in good faith or after inordinate delays had proposed 
a plan which was too slow and unduly protracted the process 
of desegregation. The courts were there confronted with 
proposed desegregation plans of the grade-a-year variety 
which were to commence from 5 to 10 years after the Su­
preme Court’s first disposition [123] of the Brown case in 
1954. In Evans v. Ennis, 281 F. 2d 385 (3 Cir. 1960), in 
the Fall of 1959 (5 years after Brown); Jackson v. School 
Board of City of Lynchburg, Virginia, 321 F. 2d 230 (4 Cir. 
1963), in the Fall of 1962 (8 years after Brown); Bush v. 
Orleans Parish School Board, 308 F. 2d 491 (5 Cir. 1962),

Opinion Bated May 7, 1965



4 1 a

the revised plan in the Fall of 1962 (8 years after Brown); 
Gaines v. Dougherty County Board of Education, 334 F. 2d 
983 (5 Cir. 1964), in the Fall of 1964 (10 years after 
Brown); Stell v. Savannah-Chatham County Board of Edu­
cation, 333 F. 2d 55 (5 Cir. 1964), cert, denied, Roberts v. 
Stell, 379 U. S. 933, 85 S. Ct. 332, 13 L. Ed. 2d 344 (1965); 
Armstrong v. Board of Education of Birmingham, 333 F. 2d 
47 (5 Cir. 1964), in the Fall of 1963 (9 years after Brown); 
Goss v. Board of Education of the City of Knoxville, 301 
F. 2d 164 (6 Cir. 1962), reversed on other grounds, 373 
U. S. 683, 83 S. Ct. 1405, 10 L. Ed. 2d 632 (1963), in the 
Fall of 1960 (6 years after Brown); Lockett v. Board of 
Education of Muscogee County, 342 F. 2d 225 (5 Cir. 1965), 
and Bivins v. Board of Public Education and Orphanage, 
342 F. 2d 229 (5 Cir. 1965), in the Fall of 1964 (10 years 
after Brown).

Desegregation of the Fort Smith public schools stands 
out in bold contrast to desegregation efforts in some bi- 
racial districts where there was hard core opposition to 
any semblance of integration. See e. g. Griffin v. County 
School Board, 377 LT. S. 218, 84 S. Ct. 1226, 12 L. Ed. 2d 
256 (1964) for history of desegregation efforts in Prince 
Edward County, Virginia. In Fort Smith the transition was 
smooth and without incident. There was no manifestation 
of bad feeling or violent opposition. The lack of any evi­
dence to indicate any serious objection to the plan of de­
segregation is impressive. So far as this record is con­
cerned, both races are satisfied with the revised plan. It has 
been accepted by the majority of pupils and parents as the 
best method of complying in good faith with the law. To be 
sure, the original plan contained the voluntary transfer

Opinion Dated May 7, 1965



4 2 a

provision which was struck down by the Supreme Court as 
violative of the constitutional rights of the Negro children. 
But this defect was eliminated without unreasonable delay, 
and full integration is now assured. Nearly one-third or 
approximately 300 of eligible Negro children attended 
schools having a predominantly white population in the 
current, 1964-1965 school year, and obviously the number 
will increase each of the four remaining years as integra­
tion moves forward. We are convinced, as was the able, 
understanding and discerning trial judge, that the admin­
istration of the plan has been eminently successful and 
satisfactory, and that the members of the Board and other 
school authorities should not be deprived of the right to 
exercise their sound discretion in discharging their primary 
responsibility for “ assessing and solving the problems that 
confront them.” Brown, supra.

Subjugation to inferior and segregated education issue.

[2] In support of their efforts to bring about full and 
immediate desegregation, appellants contend that Patricia 
Rogers6 and other Negro high school students similarly 
situated are subjected to an inferior as well as segregated 
education. More specifically, we are requested to direct 
the entry of an order permitting Patricia to transfer from 
Lincoln High School to Northside High School for the 
1965-1966 school year in order that she may avail herself of 
an integrated education and be permitted to obtain instruc­

Opinion Dated May 7, 1965

6 As we have seen, Janice Rogers graduated from Lincoln High 
School in 1964. The record shows that she is presently attending 
the Fort Smith Junior College which is completely desegregated.



43a

tion in journalism, music, and German, which are unavail­
able at Lincoln. In regard to the alleged inferior education 
available to Negro students, the Superintendent testified 
without contradiction that the Lincoln High School [124] 
facilities have been regularly improved;6 and there exists 
an equal apportionment of teachers per pupil throughout 
the three high schools;7 that the per pupil operating cost 
for Lincoln was greater than the largest white high school ;8 
and that “Lincoln High School has been accredited by the 
North Central Association since 1924, before that it was 
accredited by the Southern Association, and it meets fully 
the requirements of the students under requirements of 
the North Central Association for full accreditation.” Ad­
ditionally, the Superintendent stated:

“ * * # you try to step up a curriculum based on the 
size and what the pupils request in the school. We 
have told all of our high schools, all three of them, 
that we would offer any course requested if there are 
as many as six students that want the course and we

Opinion Dated May 7, 1965

6 In reviewing the improvements of the Negro sehools he stated: 
“At Lincoln High School, dropping back to the beginning of our 
building program, back about the 1948 to 1950 era, we built a 
new shop building there and did considerable renovation on the 
old building, and then about two years ago we built a new gym­
nasium and a new classroom wing, so there has been considerable 
improvement.”

7 The predominantly white Northside and Southside High Schools 
have approximately 85 teachers for 2300 students and 40 teachers 
for 1000 students, respectively; Lincoln High School has 21 teachers 
for less than 500 students.

8 During the 1962-1963 school year the per pupil operating cost 
at Northside was $269.00 per pupil; at Lincoln it was $288.00 
per pupil.



4 4 a

can find a teacher to teach it. Lincoln High School and 
Northside High School have been North Central ac­
credited High Schools, the same length of time, I believe 
since 1924. The Southside High School is not accred­
ited by the North Central Association at the present 
time. Therefore the offerings in each school are based 
on what the students want in the school.”

This record provides no basis or warrant for an order 
directing the Board to transfer Patricia Rogers from 
Lincoln to Northside High School for the 1965-1966 school 
year. True, in Jeffers v. Whitley, 309 F. 2d 621, 629 (4 Cir. 
1962) and Board of Education of St. Mary’s County v. 
Groves, 261 F. 2d 527, 529 (4 Cir. 1958) immediate relief 
was granted to individual plaintiffs; however, unlike here, 
in those districts the geographic school zoning system had 
not been adopted. We observe that in Jeffers, supra, at 
fn. 11, p. 627 of 309 F. 2d, the Court recognized the basic 
and necessary distinction between a “voluntary applica­
tion for assignment system” and a “geographic school 
zoning assignment system,” stating, “ In other systems of 
assignment, as those based upon geographic school zoning, 
the wish of the individual may be, and usually is, immaterial. 
It is the essence of a voluntary system of racial separation.” 
As we have indicated, appellants have no quarrel with the 
geographic school zoning system embraced in the Fort 
Smith plan of desegregation. Patricia Rogers resides within 
three blocks of Lincoln High School and within Lincoln’s 
geographical attendance area. Under the plan she is re­
quired to attend Lincoln High School. To allow her to trans­
fer would constitute discriminatory action in her favor,

Opinion Bated May 7, 1965



4 5 a

would open the door to similar requests, and would weaken 
the stability of the entire geographic attendance area sys­
tem. Compare Downs v. Board of Education of Kansas 
City, 336 F. 2d 988 (10 Cir. 1964), cert, denied 85 S. Ct. 
898, where the Court very pertinently stated:

“While there seems to be authority to support that 
contention,9 the better rule is that although the Four­
teenth Amendment prohibits segregation, it does not 
command integration of the races in the public schools 
[125] and Negro children have no constitutional right 
to have white children attend school with them, (citing 
cases).

-7?  Tf- -Jf

“ ‘ * * * “ there is no affirmative U.S. Constitutional duty 
to change innocently arrived at school attendance dis­
tricts by the mere fact that shifts in population either 
increase or decrease the percentage of either Negro or 
white pupils.” ’ ” 336 F. 2d at p. 998.

Teacher issue.

[3] Desegregation of teachers is recognized as a part of 
the over-all desegregating process, and courts have been 
ordering districts to undertake teacher integration as a 
part of the total job of desegregating the schools. Pupils 
in grades that are integrated have standing to challenge 
faculty segregation, not necessarily for the purpose of pro­
tecting the constitutional rights of the teachers, but in

Opinion Dated May 7, 1965

9 In Downs, appellants contended that even though the Board 
was not pursuing a policy of intentional segregation, there was 
still segregation in fact and that the Board was required to 
eliminate segregation in fact as well as segregation by intention.



4 6 a

order to insure that the pupils will not be discriminated 
against on the basis of their race. Hence, under proper 
circumstances pupils are within their rights in insisting 
that a teacher not be selected on the basis that the teacher’s 
race corresponds to their own. See and compare Augustus 
v. Board of Public Instruction, 306 F. 2d 862 (5 Cir. 1962); 
Mapp v. Board of Education of Chattanooga, 319 F. 2d 
571 (6 Cir. 1963); Northcross v. Board of Education of 
City of Memphis, 333 F. 2d 661 (6 Cir. 1964); Board of 
Public Instruction of Duval County, Fla. v. Braxton, 326 
F. 2d 616 (5 Cir. 1964).

[4] Judge Miller refused to strike the allegation in the 
complaint which raised the assignment of teachers issue, 
holding that “ [I]t might become material and require con­
sideration if the question is raised by proper parties, * # # 
[and] in order to avoid a multiplicity of suits, the court 
will retain jurisdiction of the case in order that the question 
may be raised if any proper party desires to intervene.” 
Appellants seem to regard the foregoing to mean that only 
a teacher has standing to challenge discrimination in teacher 
assignments. We do not so regard the holding and are not 
persuaded that Judge Miller so intended. The Court was 
familiar with the cases cited, supra, which stand for the 
proposition that pupils may have standing to litigate the 
issue. Seemingly, the Court was of the view that appellants 
were prematurely attacking the assignment of teachers for 
the reason that Patricia Rogers and others of her class 
are high school students who are attending grades not yet 
reached in the orderly progress of the plan of integration. 
We are in accord. Certainly if there is in fact discrimination 
being practiced in teacher selection, pupils who are directly

Opinion Dated May 7, 1965



Opinion Dated May 7, 1965

affected thereby, or the teachers themselves should be will­
ing to intervene and seek a judicial determination of the 
question.

Moreover, in view of the good faith efforts of the Board 
and other school authorities to bring about complete in­
tegration, we are persuaded to hold that they should be 
afforded the initial opportunity of correcting the practice 
of employing teachers on a proscribed discriminatory basis, 
if in fact that practice prevails. If the Board and other 
school authorities fail or refuse to recognize and discharge 
their responsibility in this regard, we are confident that 
the trial court on motion or application of proper parties 
will accord the question prompt and effective considera­
tion and will enter such order as the facts and circum­
stances justify and require.

Attorney’s fee issue.

[5] Finally, appellants contend that the Court’s error 
in approving the revised plan extends to its denial of their 
motion for attorney’s fees orally made at the conclusion 
of the trial. Applicable here is the general rule that the 
award of counsel fees lies within the sound discretion of 
the trial court, but like other judicial discretion, it is sub­
ject to review. Bell v. School Board of Powhatan County, 
Virginia, 321 F. 2d 494 (4 Cir. 1963).

[6] Judge Miller accorded the question due considera­
tion, 232 F. Supp. pp. [126] 843-844, and concluded that the 
“ facts * * * do not justify the allowance * # # ,” and denied 
the motion. We have examined the question in the per­
spective of all the surrounding circumstances and are 
thoroughly convinced that there is no valid reason for hold­



48a

ing that the Court’s action resulted from an abuse of its 
discretion. The Bell case, supra, has vital and decisive 
distinguishing features. There the Court was obviously 
motivated by the “ long continued pattern of evasion and 
obstruction which included not only the defendants’ un­
yielding refusal to take any initiative, thus casting a heavy 
burden on the children and their parents, but their inter­
posing a variety of administrative obstacles to thwart the 
valid wishes of the plaintiffs for a desegregated education.” 

In summary, therefore, we are satisfied that the action 
of the school authorities in their desegregation efforts 
“ constitutes good faith implementation of the governing 
constitutional principles.” Accordingly, the judgment must 
be and is affirmed.

Opinion Dated May 7, 1965



4 9 a

Judgment

UNITED STATES COURT OF APPEALS 

F ob the E ighth Circuit 

No. 17870

Janice R ogers, a Minor, Age 16, Patricia R ogers, a Minor, 
Age 15, by Their Mother and Next Friend, Mrs. Corine 
R ogers,

Appellants,
vs.

Dr. E dgar F. Paul, Dr, R oger B ost, J ohn M. Y antis, 
B ruce Shaw , Jack Grober, D ouglas G. R ogers, Board 
of Directors of Special School District of Fort Smith, 
Arkansas; Chris Corbin, Superintendent of Schools of 
Special School District of Fort Smith, Arkansas; Spe­
cial School D istrict of F ort S mith , A rkansas, a 
Corporation.

A ppeal from the United States District Court for the 
Western District of Arkansas.

T his Cause came on to be heard on the record from the 
United States District Court for the Western District of 
Arkansas and was argued by counsel.

On Consideration W hereof, it is now here ordered and 
adjudged by this Court, that the judgment of the said Dis­
trict Court, in this cause, be, and the same is hereby, 
affirmed.

May 7, 1965.