Northcross v. Memphis City Schools Board of Education Motion for Leave to File Petition

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NO. 71-1174

DEBORAH A. NORTHCROSS, et al.,
Plaintiffs-Appellants,

v.
BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, et al.,

De fendants-Appe1lees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division
MOTION FOR LEAVE TO FILE PETITION IN EXCESS OF FIFTEEN PAGES MOTION FOR STAY OR RECALL OF MANDATE AND 

PETITION FOR REHEARING EN BANC

LOUIS R. LUCAS 
WILLIAM E. CALDWELL 
RATNER, SUGARMON and LUCAS 525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- Appe Hants



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NO. 71-1174

DEBORAH A. NORTHCROSS, et al.f
Plaintiffs-Appellants,

v.
BOARD OF EDUCATION OF THE MEMPHIS CITY SCHOOLS, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

MOTION FOR STAY OR RECALL OF MANDATE

Plaintiffs-Appellants, by their undersigned counsel, 
respectfully pray that this court enter an Order staying the 
issuance of or recalling its judgment and mandate in accordance 
with its per curiam order herein rendered March 24, 1971 until 
the court shall have acted upon the annexed Petition for 
Rehearing .En Banc timely filed. Unless the mandate is stayed 
or recalled, it is entirely possible that acquisition of the 
sites in question and actual construction of school facilities 
will proceed rapidly before the Petition for Rehearing En Banc 
can be considered, and the issues upon any such rehearing en



banc rendered moot. In somewhat similar circumstances in
this case, the panel refused an injunction pending appeal in 
No. 20, 533 with the result that by the time of oral argument, 
February 10, 1971, the Owens College site construction was 
substantially under way and plaintiffs-appellants were compelled 
to concede that enjoining completion of the facility would 
be impractical. See also, Monroe v. Board of Comm'rs of 
Jackson, 6th Cir. No. 71-1096, March 18, 1971 (order dismissing 
appeal as moot following denial of injunction pending appeal 
and completion of construction before briefs filed).

WHEREFORE, plaintiffs-appellants respectfully pray that 
issuance of the mandate herein be stayed (or, if the per curiam 
Order acts as the mandate, that it be recalled) pending 
disposition of the annexed Petition for Rehearing En Banc.

RATNER, SUGARMON and LUCAS 
525 Commerce Title Building Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- Appellants

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NO. 71-1174

DEBORAH A. NORTHCROSS, et al.,
Plaintif fs-Appe Hants,

v.
BOARD OF EDUCATION OF THE MEMPHIS CITY 

SCHOOLS, et al.,
Defendants-Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

MOTION FOR LEAVE TO FILE PETITION 
FOR REHEARING EN BANC IN EXCESS OF FIFTEEN PAGES

Plaintiffs-appellants, by their undersigned counsel, 
respectfully pray, pursuant to F.R.A.P. 40(b), that the 
Court enter an order granting them leave to file the 
appended Petition for Rehearing En Banc in excess of fifteen 
pages. The length of the Petition is necessitated by (a)the 
extraordinary importance of the matter, since any desegre­
gation in Memphis can be defeated if the school board is 
permitted to continue to build schools which will be segre­
gated if operated as the board contemplates and in conformit. 
with the present law in this Circuit, and (b) the necessity



to discuss at some length a Supreme Court decision handed
down after the ruling of the panel in this matter. There 
also appended, for the Court's convenience, copies of the 
panel's decision and unreported matters relevant to the 
determinat ion of the Petition for Rehearing En Banc.

LOUIS R. LUCAS 
WILLIAM E. CALbWELL 
RATNER, SUGARMON and LUCAS 

525 Commerce Title Building 
Memphis, Tennessee 38103

JACK GREENBERG NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NO. 71-1174

DEBORAH A. NORTHCROSS, et al.,
Pi a intif fs-Appe Hants

v
BOARD OF EDUCATION OF THE MEMPHIS CITY 

SCHOOLS, et al.,
Defendants-Appellees.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

Plaintiffs-appellants, by their undersigned counsel, 
respectfully pray that this Court grant rehearing, before 
the entire Court sitting en banc, of the judgment of a panel

the district court which permits the construction of new 
segregated schools in Memphis, Tennessee.

1/ For the Court's convenience, the panel's decision is reprinted as Appendix A, infra pp. la-9a.

PETITION FOR REHEARING EN BANC

of the Court issued March 24, 197l ^  affirming a decision of



En banc consideration is sought because: (1) the panel's
ruling conflicts with the determinations of this Court in 
Sloan v. Tenth School Dist. of Wilson County, 433 F.2d 587 
(6th Cir. 1970) and Kelley v. Metropolitan County Bd. of 
Educ. of Nashville and Davidson County, 436 F.2d 856 (6th Cir. 
1970), and thus results in the application of different legal 
rules in the two largest cities in Tennessee; and (2) it is 
exceptionally urgent in the circumstances of this case, in 
which past denial of a motion for injunction restraining
construction pending appeal has already resulted in establishing

2/additional segregated schools within the dual Memphis school 
structure, that the Court implement effective desegregation 
by preventing execution of a multi-million dollar construction 
program until it is demonstrated that new facilities will 
solve, not exacerbate, Memphis' school segregation.

Rehearing is sought for these reasons, and additionally 
because (1) the panel mistakenly held that the district judge 
should consider the construction of the facilities in question 
without also passing upon the school board’s intended method 
of pupil assignment to these new schools; (2) the panel's 
application of the standard approved in Monroe v. Board of 
Comm'rs of Jackson, 427 F.2d 1005 (6th Cir. 1970) is out of

2/ Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970), 
held Memphis still operated a dual school system where 93% 

of its black students were enrolled in schools more than 90% 
black. During the 1970-71 school year, more black students 
attended such overwhelmingly black schools than in 1969-70, 
although the total increase in the student body through annex­ations reduced the percentage of black students in black 
schools slightly, to 89.7%. See October 16, 1970 Report of 
School Board, filed as supplemental record in No. 20,533.

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and theharmony with Sloan, supra, and Kelley, supra. ^  
panel s action fails to provide a workable means for execu­
ting the policy expressed in those cases; and (3) the panel 
did not have before it when it rendered it s decision, the 
Supreme Court's unanimous March 22, 1971 action granting an 
injunction against school construction "pending final dispo­
sition of all issues" on appeal before the Eighth Circuit in 
Board of Educ. of Little Rock v. Clark, No. 409, O.T.

I
This appeal concerns the proposed construction of two 

elementary schools in an area of the City of Memphis which 
was recently annexed from Shelby County^ (Tr. 1) There
is also pending in this Court our appeal from the district 
court's order approving Memphis' plan of desegregation fol­
lowing remand in Northcross v. Board of Educ. of Memphis. 397 
U.S. 232 (1970).

3/ In fact, the panel's Order does not even mention these 
decisions, although they were specifically relied upon by appellants. See Motion to Enjoin School Site Purchase and Construction (Pending Appeal), p. 1. ' “ “—

4/ On March 23, 1971, counsel for plaintiffs-appellants trans­
mitted copies of the Supreme Court and Eighth Circuit orders 

to this Court; these were returned on March 25 without being 
presented to the panel. See Appendix D, pp. 74a-75a infra.
5/ See Robinson v. Shelby County Bd. of Educ., 6th Cir. No. 20,629 (appeal pending).
6/ Citations are to the transcript of the hearing before the 

district court on February 19, 1971, which has been forwar­ded to this Court as part of the record on appeal herein.
7/ 6th Cir. No. 20,533.

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The first proposal is for an elementary school to be
constructed immediately adjacent (across the street) to the 
existing Geeter Elementary School (Tr. 8). The complex of 
buildings now known as the Geeter School serves grades 1-12; 
the new facility will serve children from the existing atten­
dance zone, which is not to be modified, in grades 1-6; the 
buildings which now house these children will be converted
to vocational use for high school students (Tr. 8-9, 21-22).♦
The new elanentary school is anticipated to be over 90% black 
in student enrollment (Tr. 22).

The Director of Research and Planning for the Memphis 
school system testified that achieving desegregation was not 
a factor in the decision to construct the new Geeter facil­
ities :

0 In selecting these sites what facts did you consider?
A Availability of land. Having it as centrally 
located as we possibly could to serve a par­
ticular zone, and then a very, very important

8/ See also the testimony of the Acting Superintendent [Tr. 44- 45] :
Q Mr. Freeman, what do you consider the School Board's responsibility in selecting sites and 
constructing new schools?
A Well, I think certainly there are many factors 
that go into the determination of a school site.The need for a particular school need based on 
children that are either in overcrowded situations 
or in an area because of new housing, or many 
changes that occur that produce need for a facility. 
And I would suppose that our primary concern is 
the need of providing facilities for children that 
do exist because of any one of a number of factors, 
some of which I spoke to. Of course, there would be many things that would bear on that.

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consideration is the cost of land. If you are buying property that sold commercial you are 
paying one price and if you are buying property 
that is relatively undeveloped and zoned resi­
dential you are paying another price.
Q Any other factors?
A Well, certainly in this case, being mind­
ful of the court order under which we operate 
we feel that this would be a good opportunity 
to build a racially mixed elementary school.
0 Did the same factor enter into your consid­
eration of the Geeter site?
A I think maybe Geeter is a bit different.
What option did we have? We could have 
continued to arrange portable classrooms on 
that site from now on, I suppose, there is 
nothing that says we can'd do that. We have 
a philosophy that hopefully portables don't 
have to stay at a school over a year, and if 
they do we have a capital improvement program 
that will provide for their removal.
We were attempting to provide a more durable 
educational setting for kids in grades one 
through six in the Geeter Community than we presently have. (Tr. 23-24)[emphasis supplied].

The only possibility which the Acting Superintendent of 
Schools faesaw for desegregating the new Geeter School, in 
fact, depends upon construction of new integrated housing 
developments in that area (Tr. 47-48). No such construction 
is under way; the existing rent-subsidy projects are occupied 
mostly by black families (Tr. 32) and there is little avail­
able land in the area immediately surrounding the new school 
site (Tr. 38) .

There are some white families living in the Geeter 
attendance zone whose children attend other schools under

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but the dis-Memphis' "pockets and coves" policy (Tr. 50), 
trict did not consider altering the zone boundary for the 
new Geeter School so as to require these white children to 
attend the school; in fact, the Director of Records and Atten­
dance had no count of how many white pupils in the Geeter zone 
enrolled at other city schools under this policy (Tr. 51).

The school district rejected the notion of locating a 
new facility north of the present one and drawing a new zone 
to desegregate the school (Tr. 35):

0 In relieving the overcrowding at Geeter you 
couldn’t redraw your zone lines and locate up 
here and achieve a large amount of desegregation?
A It so happens that most of the kids in that 
Geeter School happen to live close to it. If you 
want to build a school away from where the kids 
are and build it at some other point I do not 
think you are solving the problem for Geeter.

The district's policy is, in short, to build segregated schools
in segregated neighborhoods (Tr. 45); desegregation is
subservient to a "neighborhood assignment policy" (Tr. 33).

The second new school facility is proposed to be located
approximately midway between the existing Fairley and Lake-
view Elementary Schools. Fairley presently enrolls 1085
students, 71% of whom are white; Lakeview has 471 children,
98% of whom are black (Tr. 11). The new facility will have

11/a capacity of 440 and will serve a new attendance zone

9/

9/ The present (black) Geeter zone is circumscribed by the 
zones for Westwood and Fairley elementary schools, both majority white (see October 16, 1970 Report, supra n. 1).

10/ The Acting Superintendent was not even aware that Lhere 
were "pockets and coves" in the Geeter zone (Tr. 46). Compare Brief of Appellants in No. 20,533, p. 27 and n.22.

11/ Compared to the new Geeter facility's capacity of 1000 (Ti.

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drawn partly from both existing zones. The area immediately 
surrounding the new site is a predominantly white subdivision 
with some integration (Tr. 14) and the district estimates an 
initial enrollment for the school of 300 white and 100 black 
students (Tr. 12). Lakeview will not, however, be desegrega­
ted (Tr. 29).

There is no vacant land adjacent to Fairley but space 
is available for new construction next to the Lakeview campus 
(Tr. 26); construction of a school there would desegregate 
both the new facility and Lakeview School (Tr. 28-29). Such 
a course was not favored by the school district because it 
would be "inconvenient" for children in the subdivision near 
the new site to attend the Lakeview campus (Tr. 28). However, 
black children in other school zones already travel greater 
distances to schools in the Memphis system (ibid.) .

II
The district court failed to consider alternative sites

because it was satisfied with the Board's proposed zone lines
for the new schools (even though Geeter and Lakeview would
remain black schools) (Tr. 60) :

. . . We can speculate on other sites but we 
will always come up with some problem for somebody.
Now, this Court has heretofore approved the 
concept of having a school, particularly elem­
entary schools, where the pupils are. The 
Supreme Court is considering the validity of 
this Court's ruling indirectly, and the Court 
of Appeals has heard arguments on the Court’s 
specific ruling which adopted the concept of

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what is known as neighborhood schools. Both 
of these schools, in the opinion of the Court, 
or these sites, have been selected consistent 
with the Court's approved policy.
Now, this is not to say that they are perfect 
solutions, and probably someday there will be 
pairing or transportation to correct this 
racial imbalance. . . .

The panel held that "[t]he construction of the new structures 
may require the establishment of new school zones by the Board 
and its consideration of other actions necessary to accomplish 
the desired desegregation. But these matters were not properly 
before the District Judge and may be considered by him at an 
appropriate time after remand" (emphasis supplied). If the 
panel meant that the lower court had not considered zone lines 
for and student assignments to the new schools, its reading 
of the record was erroneous. The Board put its proposed zones 
before the court as an integral part of its construction plan­
ning (e.q., Tr. 10-12) and the district court specifically 
approved the zones (Tr. 59-62, 64-65). If the panel meant, on 
the other hand, that the district court was mistaken in con­
sidering the zones in these proceedings, then its view of the 
law was in error. Exploration of the anticipated pupil assign­
ment plan for a new facility is crucial:

. . . It must be kept in mind, too, that the
defendant board's current proposals are for 
structures only; they do not represent that, 
absent the compulsion of a court order, they 
intend to initiate a transportation program 
to integrate the new schools as they open.
Indeed in open court counsel for the city board 
stated that, if permitted, they would elect to 
operate under a neighborhood zoning system for 
understandable reasons of economy. Moreover, in view of defendants' professed needs for 
extra capacity at the elementary level, it is 
unlikely that the schools, if built, could be 
ordered to lie idle.

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Especially if the Supreme Court rulings vali­
date for all circumstances the policy of con­
tiguous attendance zones, it would be strange 
if the construction of new schools which, 
under such a plan, would foreseeably be uni- 
racial were thought to be consistent with 
the duty to desegregate the system.
If further efforts are required, as under current 
lav/ in this circuit, it is not credible that the 
expense and time involved would not bear on the 
means required. "Traditionally, equity has been 
characterized by a practical flexibility in 
shaping its remedies and by a facility for ad­
justing and reconciling public and private needs." 
Brown v. Board of Education of Topeka, 349 U.S.
294, 300 (1955). The duty would still remain on 
the school board to take care not to create 
impediments to the performance of its duty to 
operate integrated schools now and hereafter.

Bradley v. School Bd. of Richmond, Civ. No. 3353-R (E.D. Va.,
Jan. 29, 1971)(slip op. at pp. 9-10, 16-17; Appendix B, pp.
10a-27a infra).

It is illogical to permit the deliberate construction of 
segregated schools on the theory that busing to desegregate 
them may in the future be required. As the Tenth Circuit 
recently observed:

The continued use of less efficient remedies 
such as busing and majority to minority 
transfers could be avoided in the future by 
the judicious placement of needed new schools 
at locations which maximize the inclusion of 
students of both races within the normal 
attendance zones formed around those locations.

United States v. Board of Educ., Independent School Dist. No.
1, Tulsa, 429 F.2d 1253, 1259-60 (10th Cir. 1970).

In Sloan, supra, 433 F.2d at 589, this Court
recognized the possibility of the construction 
of new schools and the expansion of existing 
facilities creating or preserving the racial 
segregation of pupils in violation of the

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Fourteenth Amendment, as well as the pos­
sibility of a school board selecting sites for new schools in order to effect an incorporation 
of existing residential segregation into the ,
school system. — '

This Court in Sloan therefore approved a notice of new construc­
tion provision which it found designed to aid the district 
court in supervising implementation of its order enjoining the

planning, designing, locating or constructing 
new schools or additions or expansions of existing 
schools in such manner as to conform to racial 
residential patterns or to encourage or support 
the growth of racial segregation in residential 
patterns, and are enjoined to plan, design, 
locate and construct any and all new schools in 
their respective school systems in such manner 
as to affirmatively promote and provide for both 
the present and future an equitable distribution 
of racial elements in the population of each 
school in the school system. (433 F.2d at 588).

In Kelley, supra, this Court approved the extension, by 
the same district judge, of the same principles to attendance 
zoning, requiring "affirmative action to maximize integration 
in all feasible ways so as to promote the immediate estab­
lishment of a unitary school system." 436 F.2d at 861.

The panel in this case ignored these opinions in order to 
rely upon a far weaker construction decree approved in Monroe, 
supra. We should think such a decree ought to be strengthened 
in light of Sloan and Kelley. A similar provision respecting

12/ Compare Tr. 45:
Q So if neighborhoods are segregated you are 
going to have to build segregated schools as 
the population grows in those areas?
A Children have to be served, yes.

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construction is in effect in Memphis, and its sufficiency is 
before this Court in No. 20,533. But in any event, the panel's 
action here, in purported reliance upon Monroe, does not 
effectuate the policy underlying that decision, Sloan, or Kelley.

That policy is —  simply put —  not to build segregated
schools, but to use new construction as an administrative tool
to overcome the entrenched pattern of segregation brought about
in part by former building policies (Cf. Tr. 45). The policy
cannot be enforced, however, if school boards are under no
obligation to justify their construction choices among the
range of alternatives available to them. This is certainly the
minimum requirement of Green v. County School Bd. of New Kent
County, 391 U.S. 430, 439 (1968), a decision which the district
court claimed to be respecting (Tr. 63):

. . . where other, more promising courses of 
action are open to the board, that may indi­
cate a lack of good faith, and at the least it places a heavy burden upon the board to 
explain its preference for an apparently less 
effective method.

Here it is uncontradicted that the new Geeter Elementary School 
will be over 90% black (Tr. 22) although its location elsewhere 
and the drawing of different zone lines could desegregate it 
(Tr. 35); that a new, small, integrated elementary school is 
to be built which will result in continued segregated operation 
of black Lakeview School —  although sufficient space is avail­
able at the Lakeview campus to expand its facilities to house 
the white children whom the Board expects to attend the new 
school (Tr. 28-29). As in Bradley v. School Bd. of Richmond, 
supra, slip op. at p. 10, p. 19a infra, the evidence was 
that each of the new

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elementary school sites was in some respect 
lacking in its contribution to the full desegregation of the [Memphis] system. This 
is sufficient to shift to the defendant board 
the "heavy burden . . .  to explain its pref­
erence for an apparently less effective method."

Nothing in the record or the opinions of the district court or
13/of the panel reflects that the Board met its burden.

We respectfully suggest the appropriateness of the test
set forth in Bradley, supra (pp. 22a-23a infra):

Consistent with its affirmative duty to take such administrative steps (again within reason) as will lead to integrated student bodies, the 
defendant city board should in this case have 
explored particular feasible alternatives in 
order to avoid decisions which will limit the 
extent of reasonable desegregtion in the future. 
With an eye, in other words, to the possible costs of extensive cross-busing over a number 
of years, they should satisfy themselves as to 
whether a certain added construction expense is 
merited. The board, put simply, should not 
erect obstacles to the achievement of desegre­
gation at lowest possible cost.

13/ The panel seems to have concluded (p. 3a infra) that relo­
cation of Geeter or construction of a new elementary on 

the Lakeview campus would require the school district to furnish transportation for which it had neither the facilities nor the 
financing. But the Board offered no evidence on this subject, 
such as an estimate of how many students in a revised Geeter 
zone (or from the Smith-Turley subdivision, if a school were 
built at the Lakeview campus) would live further away than the 
State minimum busing distance from each school. Nor is there 
evidence of the amount of public transportation, if any, avail­
able in the area. On the other hand, the district court was 
aware of the availability to Memphis of State aid for pupil 
transportation. The Superintendent testified that such aid 
was available but that Memphis had not applied for it. See 
Brief of Appellants in No. 20,533 at p. 44 n.43.The evidence showed simply that Memphis preferred not to 
assign students these distances to these schools, even though 
black students must already travel further to school, without 
transportation, in other zones (Tr. 28). As in Bradley, infra 
p. 20a, "the defendants offered little mae than bare conclusions 
to meet their Green burden.

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Only such a test is consistent with Kelley1s requirement that 
school boards take whatever steps are necessary to implement 
a unitary system. The district court and the panel violate 
the spirit of Kelley by allowing the school board to build 
facilities which can only be desegregated by cross-busing, 
despite the availability of alternatives which would desegre­
gate the new schools within the context of what the law in the 
Memphis school case and in this Circuit have so far required.

Ill
Two days before a panel of this Court acted, the Supreme 

Court unanimously issued an injunction restraining construction 
of a school addition in Little Rock, Arkansas, pending deter­
mination of the issues raised by Negro plaintiffs in a school 
desegregation appeal yet to he decided by the Court of Appeals 
for the Eighth Circuit. Board of Educ. of Little Rock v.
Clark, No. 409, O.T. 1970 (March 22, 1971). Although plaintiffs- 
appellants sought to bring the decision to the attention of the 
panel as soon as their attorneys had received a copy (see Appen­
dix D, pp. 74a-75a infra), the panel rendered its decision 
before the material could be transmitted. We respectfully 
suggest that the Little Rock injunction is significant enough 
to warrant rehearing before the entire Court en b a n c . ^

14/ We recognize that ordinarily such a situation would call 
for litigants to address their request for rehearing, in 

the first instance, to the panel. However, because of the ur­
gency of the matter and the danger of mootness, as well as the 
history of this case, we seek rehearing en banc. (The panel 
denied motions for expedited appeals on November 20, 1969 and 
September 4, 1970, an injunction pending appeal cn September 4, 
1970, and an injunction pending certiorari on January 12, 1970. remanded for expedited hearinq consistent with Alexander, 397 U.S. 232 (1970).

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Little Rock marks the first direct consideration of 
school construction injunctions pending desegregation, and 
it is significant for that reason that the Supreme Court 
unanimousl granted the request of Negro plaintiffs that
school construction be halted until a constitutional plan had 
been adopted and approved.

In Little Rock, the school district submitted (and the 
district court approved) a plan which Negro plaintiffs claimed 
was discriminatory because it placed the overwhelming burden 
of inconvenience in desegregation upon black children by 
closing black schools and requiring the transportation of only 
black students. After the matter was submitted on appeal, the 
school district began construction of an addition to a white 
junior high school to house the black students whose school 
would be closed. The district court denied relief (p. 28a 
infra)y the Court of Appeals held that an injunction should 
issue, subject however, to the posting of a $25,000 bond (p.
39a infra). After the Court of Appeals continued the bond 
requirement despite filing of affidavits of indigence (pp. 42a- 
44a infra), the injunction expired and an application to the 
Supreme Court seeking to restrain the construction was submitted 
and granted. Thus, the application in the Supreme Court also 
presented an equal protection issue regarding the bond require­
ment; however, both parties argued the merits of the construction 
injunction extensively (see Appendix C, pp. 53a-56a, 67a-69a 
infra) and the issuance of the injunction must be taken as an 
indication of approval by the Supreme Court of the notion that

15/ Mr. Justice Blackmun, who sat on the case prior to ascenu the Supreme Court bench, did not participate.

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it is better to postpone construction temporarily than to 
build a permanent structure where segregation will be fostered. 
Cf. Sloan, supra. (For the Court's convenience in assessing 
Little Rock, copies of the relevant documents are attached 
hereto as Appendix C, pp. 28a-73a infra).

The claim of plaintiffs-appellants to an injunction in 
this case is even stronger than that in Little Rock, where 
the issues involved desegregation burdening only students of 
one race. In Memphis, it is undisputed that construction will 
result in one new all-black facility and the avoidable contin­
uation of another. While, of course, the factual setting is 
different, the principles underlying the injunction in Little 
Rock also apply to Memphis. Cf. Northcross v. Board of Educ. 
of Memphis, 397 U.S. 232 (1970) fAlexander v. Holmes County Bd. 
of Educ. applies to Memphis].

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CONCLUSION
The panel's affirmance and remand with the comment that 

the district court "will undoubtedly be helped when the 
school cases already argued in the Supreme Court last October 
have been decided" (p. 8a infra) symbolizes its failure to 
apply long-established legal principles to this dispute, and 
brings into sharp focus the conflict between its action and 
this Court’s decision in Kelley, supra. Because we believe 
Kelley correctly states the law, because the panel erred in 
applying the law, and because it was unable to consider a 
recent Supreme Court decision in this area, plaintiffs-appellants 
respectfully pray that rehearing en banc be granted and the 
school construction which is the subject of this appeal be 
enjoined pending disposition of the Petition for Rehearing 
En Banc.

525 Commerce Title Building 
Memphis, Tennessee 38103

JACK GREENBERG 
NORMAN J. CHACHKIN

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- Appellants



CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of April, 1971,

I served two copies of the foregoing Motion for Leave to 
File Petition in Excess of Fifteen Pages, Motion for Stay 
or Recall of Mandate and Petition for Rehearing En Banc upon 
the attorney for the defendants-appellees herein, Jack Petree, 
Esq., 900 Memphis Bank Building, Memphis, Tennessee 38103, 
by depositing same in the United States mail, first class 
postage prepaid, addressed to him as alpove. (— \

Norman J. Chacrtvkin " 
Attorney for/Plaintiffs-Appellants



APPENDIX A Decision of the Panel . . la

APPENDIX B

APPENDIX C

Unreported decision in Bradley v. School 
Bd. of City of Richmond, Civ. No. 3353 
(E.D. Va., Jan. 29, 1971)..................  10a
Board of Educ. of Little Rock v. C1ark,
No. 409, O.T. 1970, March 22, 1971:

District court opinion................ 28a
Opinion of 8th Circuit granting injunction with requirement of bond . .39a
Order of 8th Circuit denyingmotion to increase amount of bond . . .40a
Order of 8th Circuit denying
reconsideration ...................... ^2a
Opinion dissenting from bond
requirement .......................... ^3a
Application for Stay Injunction . . . .45a
Response to Application for Stay 
Injunction............................ 6-*-a
Order of Supreme Court granting 
injunction............................ 73a

Letter transmitting Little Rock material . .74a
Letter from Clerk returning material . . . .75a

APPENDIX D



X o . 7 I- 1174
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

DEBORAH A. NORTIICROSS, et al
Plaintiffs-Appellants

v s
BOARD OF EDUCATION OF THE 
MEMPHIS CITY SCHOOLS,

Defendant-Appellee

PER CURIAM ORDER

Before WEICK and CELEBREZZE, Circuit Judges, and 
O'SULLIVAN, Senior Circuit Judge.

The District Judge, after an evidentiary hearing, 
denied the motion of plaintiffs-appellants for an injunction 
restraining the Board of Education of the Memphis City Schools 
from purchasing land and constructing elementary school buildings 
thereon in the Whitehaven area in Memphis, Tennessee. The plain­
tiffs have appealed and have filed a motion for injunction pending 
appeal.

The proposed purchases of land and the erection of 
school buildings thereon were primarily to relieve overcrowding 
of Geeter, Fairley and Lakeview Schools, which had been part of 
the school system under the jurisdiction of Shelby County, 
Tennessee Board of Education. Memphis acquired jurisdiction

(Uv



No. 71-1174 ?

over .hose schools by annexation at tne toriitoiy in h iu

and 1970.
c e c e r  School located o« a 7-acre tract of lead

and consisted of eight Individaal free-standing buildings, of 
which only one, namely the gymnasium, was an excellent facility. 
Sine portable classrooms were provided to relieve overcrowding.
Five buildings were in an average state of repair, and two old
structures, which accommodated grades 1 to o, needed to be

, 0 c Of „hite children attended Geetermodeled. 835 Negro and 25 or 26 white cniia

School.
In addition to these problems which it inherited from 

the County, the Memphis Board of Education was confronted with 
the fact that two Federal Housing rent subsidy units were being 
constructed in the immediate vicinity of the school, one of 
which was only one hundred yards away, and which, when both
were completed, would "inundate" the school.

The Board's proposal, which the District Court approved,

was to acquire an additional fifteen acres of land directly 
across the street from Geeter School, at a cost of $80,000, and 
to construct a new building thereon at a cost of around 
$1,250,000,. providing 36 classrooms and a capacity for

oL



No. 71-1174 3

children. The proposal included the renovation of the two old 
buildings as a vocational facility.

The Board considered alternatives, one of which was 
the erection of additional portable classrooms "to keep up with 
the rent subsidies", but decided against that course. It could 
also have purchased land located some distance away from the 
existing Geeter structures, but it had no facilities to furnish 
transportation, and did not deem it advisable to require the 
children to walk to school. Shelby County had furnished trans­
portation for children attending the country schools, but 
Memphis did not furnish transportation. Apparently both Boards 
had financial problems.

Construction of the new facility directly across the 
street from the old one permitted the use of both facilities. 
These facilities are located in the area where the children live, 
and thus the children will be able to walk to school.

Fairley "has been a fastly overcrowded facility". There 
was no vacant land around it. Sixteen classrooms are under 
construction for Fairley High School.

The Board's proposal with respect to Fairley and 
Lakeview Schools was to acquire ten acres of land located be­
tween these two schools at a cost of $40,000, and to construct

3«.



No. 71-1174

a school building thereon at an estimated cost of $250,000, pro­
viding sixteen classrooms with a capacity for 440 children. At 
present Fairley is an integrated school composed of 1085 
children, of whom 771 are white and 314 are black, in grades 
1 to 6 .

Fairley also has nine portable classrooms; Lakeview 
has three portable classrooms. Lakeview is also overcrowded.

Lakeview has 462 Negro and 9 white children attending.
The attendance zone of the new school will comprise both Fairley 
and Lakeview, and it is estimated that it will have at least 
257c minority enrollment.

There is a large subdivision located near Fairley, 
known as Smith Turley Subdivision, financed by F.H.A., which 
will consist of five hundred single dwelling units. Half of 
these units have been completed and are occupied, and the remainder 
are under construction. Both Negro and wh ite families live in 
this subdivision and apparently are getting along all right.

The District Court, in denying the injunction, stated:



71-1174 5

The Court has considered the two sites 
separately, and, of course, as in every particular 
area there are differences. There are some signi­
ficant differences with regard to the site that 

. is in the Geeter School zone. That area has some 
peculiar problems, and I must say it probably reflects 
the former practice of the county, or everybody in 

. this area, providing separate and inferior schools 
for black people. There is no doubt that that was 
done, and I am sure that there is grave need for 
updating the facilities. That has probably been 
further aggravated by the fact that the county 
anticipated that it was going to be annexed and 
didn't make capital improvements on it.

yBut in any e/ent the school, of course, is 
predominantly black, and in an area where whites



a matter of fact. Of courae,are leaving the area aa 
we can't base our decision on trying to predict who 
is going to leave, but it is a factor that the 
School Board must be realistic about.

The other site is in a relatively undeveloped 
area, according to the aerial photograph, but a 
growing developing area, and one between two schools

i

that have crowding problems now. We can speculate 
on other sites but we will always come up with some _ 
problem for somebody.

" Now, this Court has heretofore approved the 
concept of having a school, particularly elementary 
schools, where the pupils are. The Supreme Court 
is considering the validity of this Court's ruling ' 
indirectly, and the Court of Appeals has heard 
arguments on the Court's specific ruling which 
adopted the concept of what is known as neighborhood 
schools. Both of these schools, in the opinion of 
the Court, or these sites, have been selected 
consistent with xhe Court's approved policy.

" Now, this is not to say that they are perfect 
solution^, and probably someday there will be 
pairing or transportation to correct this racial 
imbalance. This may or may not be, but it is 
certainly not what the present plan has and, of

(/•Os.



No . 7 1 - L i 7 4 7

course, if we do have transportation to correct 
racial imbalance, or pairing, these locations 
will be beneficial in that system because it is 
better to put a school between two schools if you 
are going to end up pairing them than it is to 
concentrate in an existing area and expect the pairing 
to come from a remote area. I have reference to the _ 
Lakeview situation down there and the Fairley area.
It will be much easier to pair the new school with 
Lakeview and Fairley to correct a racial imbalance 
than it would to put this new school over on the 
Lakeview Campus. And maybe that is what we will 
end up doing at some future time, but that is not

before the Court today.
I further find and realize that the School

Board has many factors that must be considered. And 
while desegregation is certainly a primary factor, 
the Court has never felt that it could impose orders 
that ignored cost, for example, and ignored safety 
of pupils. The Court has not ordered transportation.

of pupils.



N o .  7 1 - 1 1 7 4 8

in our opinion, the decision of the District Court

comports with Monroe v.,joard.of Comm'rs of C J ^ L ^ j j £ i L I l > 
427 F .2d 1005, 1009, 1010 (6th Cir. 1970). The construction
of the new structures may require the establishment of new 
school zones by the Board and its consideration of other 
action necessary to accomplish the desired desegregation.

But these matters were not properly before the District Judge 
and may be considered by him at an appropriate time after the 
remand. The District Court has continuing jurisdiction over 
this case, and will undoubtedly be helped when the school cases 
already argued in the Supreme Court last October have been

decided.
We find no abuse of discretion in the order of the

District Court denying the injunction.
Since we have been favored with a complete transcript

of the record in the District Court, the brief of the plaintitfs 
filed in that Court and the briefs of both parties filed here, 
no further argument is necessary. We are of the opinion that 
plaintiffs were not entitled to injunctive relief. Rule 8,

Sixth Circuit.



No. 71-1174 y

Ic is ORDERED chat the judgment of the District 
Court be affirmed, and the case is remanded to that Court 
for further proceedings.

Entered by order of the Court.

C l e r k



IN 1HC UNITED STATES I'E.TUICT COURT 

( ok r,u: l AFiiMi :>TSTnrc:r of vircinta

RinPIO'in DIVISION

CAKOI VN BRAW.CY, ct nl :

v : CIVIC ACTION
: NO.3353-R

SCHOOL BOARD OF THE CITY OF :
RICHMOND, VIRGINIA, et al :

MEMORANDUM

Since June 20, 1970, the defendant School Board of the 

City of Richmond has been under this Court's order to refrain from 

further' soltnal met i**n during fhe panderMy of this litigation

This was entered by the Courl on the plaintiffs' motion for the 

reason that major physical changes in the system will have an enduring 

impact on the range of alternative pupil assignment plans, with conse­

quent effect on the feasibility of future desegregation. See, Sloan v.

Tenth School District of Wilson County, 433 F. 2d 587 (6th Cir. 1970); 

Calhoun v. Cook, 430 F. 2d U74 (5th Cir. 1970); United States V. Board 

of Education, Independent School District No. 1, Tulsa County, 429 F. 2d 

1253 (10th Cir. 1970); Monroe v. Board of Coimnlssloners of Jackson County. 

427 F. 2d 1005 (6th Cir. 1970); Singleton v. Jackson Municipal Separate 

School District, 419 F. 2d 1211 (5th Cir. 1969), rev'd. in part sub nom. 

Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970); United 

States v. School District 151 of Cook County, 404 F. 2d 1124 (7th Cir. 1968) 

Brewer v. School Board of City of Norfolk. 397 F. 2d 37 (4th Cir. 1968);

Carr v. Montgomery County Board of Education, 289 F. Supp. 647, 659-60 

(M.D. Ala. 1968), aff'd. sub. nom. United States v. Montgomery County 

Board of Education, 395 U.S. 225 (1969). "The continued use of lens 

6fllrle.nl remedies such art hutting end majority to niltitii ll j transfers 

could be avoided in the future by the judicious placement of needed new 

schools at locations which maximize the inclusion of students of both



races within the normal attendance zones formed around those locations." 

United States v. Hoard of Education, Independent School District No. 1, 

Tulsa County, supra, 1259-60.

At the time that order was entered the city was not opera­

ting a constitutionally unitary school system. It is still not doing 

so. This Court permitted the schools to open under an interim plan 

proposed by the school board because the sole constitutionally satis­

factory plan - that offered by the plaintiffs - could only be instituted 

at the cost of unreasonable disruption of the system,and by means of 

the purchase of additional buses not then available. Bradley v. School 

Board of the City of Richmond, 317 F. Supp. 255 (E.D. Va. 1970).

Since that time, as required by the Court's order of 

August 17, 1970, the city school board has presented additional proposed 

plans for the eventual desegregation of the system. Without prejudging 

the merits of the three proposals, the Court can say that these plans 

reflect an appreciation of the physical and human resources which may 

be required in this task.

On December 4, 1970, the Court, in response to the city 

school board's motion to vacate or modify the construction injunction, 

invited the parties to present the issue on briefs and the depositions 

of witnesses. This is the question now before the Court.

Prior to the school board's motion, the parties informed 

the Court by letter of October 29, 1970, that an agreement had been 

reached such that the plaintiffs would make no objection to the board's 

proceeding with certain construction projects. Furthermore, it appears 

that certain other construction plans are not now matters of high 

priority.

-2-



The only projects which currently are held up, apparently, 

by reason of the June 20th Injunction, are two elementary schools 

of 900 pupil capacity to be built In the newly annexed area of Richmond 

and a third proposal for an elementary school to accomodate 750 pupils 

on a site on Dove Street In the city's northslde.

Defendants contend that they have made the showing required.

by the opinion of June 20:
Upon a showing by the defendants, prior 
to the final approval by the Court of a 
school plan, that any particular project 
will not In fact and law have the effect 
of perpetuating racial segregation, leave 
to proceed will be granted.

The Court must rule on the pending motion without the benefit 

of decisions by the Supreme Court In Swann v. Charlotte-Mecklenburg Board 

of Education, cert, granted, 38 U.S.t.Week 3522 (June 23, 1970); Davis v. 

Mobile County Board of School Commissioners, cert, granted, 39 U.S.L.

Week 3144 (Oct. 4, 1970); and other school cases now before the Court. 

This Court will not speculate as to the guidance, If any, that rulings 

in those cases might afford In the solution of the present problems.

The. law prevailing In this circuit Is that new school construction can 

only be approved if, after a consideration of alternative sites and 

assignment plans, It appears that the project will eradicate rather 

than entrench racial segregation. Felder v. Harnett County Poar_d_of 

Education, 409 F. 2d 1070, 1074 (4th Clr. 1969); Brewer v. School Board 

of City of Norfolk, supra.
The Court will adhere to that standard. It should be noted, 

however, that it has been the school board's position at numerous stages 

of this case that further action to desegregate the schools should be 

deferred until Swann and Davis arc decided. On the present Issue they 

do not request such abstention. They must be on notice, however, that

-3-



when they move for leave to proceed with construction, and when the 

Court rules, all assume the risk that any costs incurred in reliance 

on a district court ruling may be shown by an Intervening interpretation 

of the law to have been expended in error.

In its consideration of the deposition testimony, the Court 

has proceeded on the premise that the board's estimation of its needs 

for further capacity, while far from beyond inquiry, is worthy of sub­

stantial deference for the reason that public officials presumably do not 

ordinarily spend money needlessly. It is primarily the question of loca­

tion of new facilities that occupies the Court. As in the case of zone 

lines, the rule in expansion cf facilities is that "The board's rejection 

of alternatives suggested by the Court [or by parties] that would lead 

to less segregation . . . [raises] an Inference of discrimination that 

[requires] the board to justify its conduct by clear and convincing evi­

dence." Brewer v. School Board of City of Norfolk, supra, 41.

Concerning capacity needs, Dr. Thomas Little, Associate 

Superintendent of Schools, testified that confining consideration to the 

newly annexed area of southside Richmond, and looking to September of 

1972, present elementary school capacity would fall 1275 spaces short 

of needs if a kindergarten through sixth grade (K-6) pattern were em­

ployed, and 1479 spaces short if elementary schools housed kindergarten 

through fifth grade classes (K-5) . These figures are based upon 907. 

utilization of classroom spaces, a standard which has been used by 

Richmond for some years in an effort to reduce class sizes. The 

shortage is greater under a K-5 plan because of the need to put one 

former elementary unit to use as a middle school.

While it is in one respect artificial to confine discussion 

to the annexed area in testing capacity needs, the technique is not 

entirely invalid. For, looking forward either to a geographic zoning

-4-

l



plan or to a plan incorporating pairing and cross-busing, the school 

board proceeded on the premise that it would be desirable to locate 

the schools so that either half of the pupils or all of them could be 

within walking or short transportation distance of school (D.55).

I'.vcn though the evidence in earlier proceedings has been that elementary 

children must be bused to school in any event in the annexed area for 

safety reasons, it is understandable that the board should wish to keep

the routes as short as possible.
The sites were re—evaluated by the board, Dr. Little testi­

fied, in the light of the Court's opinion of June 20, to test their 

compatibility with various possible plans of desegregation. The defen­

dants concluded that the proposed locations would not serve to perpetuate 

segregation under three possible legal standards fixing the duty of 

school officials: basic geographic zoning with contiguous pairing, non­

contiguous pairing, and a metropolitan system incorporating the adjoining 

counties.
Alternative sites were considered and rejected, Dr. Little 

said. The board thought that based on the historical development of 

racial housing patterns in Richmond, schools located closer to the core 

of the city than the proposed sites in the annexed area would predictably 

be in all-black neighborhoods in a fairly short time (D. 25) . Site cost 

and the desirability of placing schools in less densely settled areas 

were also considerations.
The two proposed annexed area elementary schools, one on 

Jahnke Road and another on Walmsley Boulevard, are in principally white 

areas; the Dove Street site is in a mainly black area.

While considering the locations valid under either a plan 

limited to contiguous pairing or one incorporating cross-busing, Dr. 

Little conceded that the locations might be questionable were the law

H u



to require in the future transportation only up to a certain distance, 

or were the law to accept racial imbalances concomitant with contiguous 

zoning of existing schools but require that any new facilities reflect 

the system's overall ratio. (D. 53-58). At the same time. Dr. Little 

stated that he favored, as an expert, non-contiguous pairing and 

cross-busing as the best means to accomplish substantial desegregation 

of elementary classes, and that the locations selected would not impede 

such a plan (D. 83-84).

at one time he opposed the Jahnke Road elementary school project in 

the annexed area on account of lack of need for further capacity. Since 

then, he received detailed figures concerning the number of elementary 

level pupils residing in the annexed area but attending school tempor­

arily in Chesterfield County. These come to 1192, and 1387 if sixth 

grade is included. If the board's 27-pupil classroom standard is 

adhered to, the system might well have an overall shortage when they 

return to the city system (D. 129).

Jahnke Rond site would result in a nearly all-white school if contiguous 

zones were used (D. 99). Noncontiguous pairing, usually a more expen­

sive technique, would of necessity be with a zone north of the James 

River, but the witness did not consider this site disadvantageous if 

such a scheme were used. (P. 100). If the school could not be paired 

with a site north of the James, however, a segregated school would result.

school under contiguous zoning (D. 102). To pair it with a non-contiguous 

zone across the river, within or without a metropolitan plan, would entail

substantia) transportation, however.

The plaintiffs' expert, Dr. Cordon Foster, testified that

Passing questions of capacity, Dr. Foster stated that the

The Walmsley Boulevard site would also contain an all-white

- 6 -



The plaintiffs' expert preferred the Jahnke Road location 

to that on Walmsley Boulevard in the context of a pairing and cross­

busing plan because of its accessibility to the black populations on 

both sides of the dames. Still he would advocate seeking a location 

for the proposed Jahnke Road school further to the east, where "depending 

on population movements, which are not always clear, there might be no 

need for transportation." (D. 125). Assuming a plan incorporating 

cross-busing, however, he said a difference of about a mile in trans­

portation distance would not be very material. (D. 127).

Dr. Foster said that the Dove Street school proposal would, 

under a contiguous zoning plan, result in a mainly black school. On a 

metropolitan plan, the location would not be unsuitable so long as inte­

gration by noncontiguous pairing was available. The witness did not give 

his opinion of the site as part of a citywide system employing cross­

busing. lie could not suggest a better site to replace the aging Highland 

Park School, but admitted that, in counsel's words, he did not "have the 

advantage of the exploration of possible sites that has been going on by 

the Planning Commission of the City and the School Board for a number of 

years. . ." (D. 121).

Ccncrally speaking, the witness would have preferred that 

"every avenue be exhausted in search of a site which would be more equi­

distant to the white and black population." (D. 119). For example, one 

"buffer" zone where a school replacing the Bowler and Mason facilities 

could be built without entrenching segregation, he testified in answer 

In a hypothetical, quest Ion, la located a mile south of the river nenr 

the Oak Grove School.

lie did not contest the sites chosen as valid "neighborhood" 

schools (D. 123), and he conceded that if integration of each elementary 

facility is required by the law, this can only be achieved throughout 

Richmond by noncontiguous pairing and cross-busing (D. 124).

-7-



The difficulty with tins approach which the defendants 

have apparently undertaken in reviewing their site selections to 

determine whether the choices promote or impede legally required de­

segregation is that they have proceeded on the basis of hypothetical 

legal standards rather than what the law currently requires.

The law of this circuit governing the desegregation in 

general of large city school systems has been set forth in more than 

one recent railing:

The school board in devising its plan and 
the district court in considering whether 
or not it is adequate must explore every 
reasonable method of desegregation, inclu­
ding rezoning, pairing, grouping, school 
consolidation, and transportation, inclu­
ding a majority to minority transfer plan.
Til short, any and all reasonable means to 
dismantle the dual system and eliminate 
racial characteristics in the Roanoke 
schools must be utilized, so that "no person 
is to be effectively excluded from any school 
because of race or color." Alexander v.
Holmes Co. Bd. of Fd., 396 1J.S. 19 (1969).
Preen v. School Hoard of the City of Roanoke.
428 F. 2d 811, 812 (4th Cir. 1970).

First, . . . not every school in a unitary 
school syslem need he integrated; second, 
nevertheless, school hoards must use all 
reasonable means to integrate the schools 
in their jurisdiction; and third, if black 
resident ial areas are so large that not all 
schools can be integrated by using reasonable 
means, school boards must take further steps to 
assure that pupils are not excluded from inte­
grated schools on the basis of race. Special 
classes, functions, and programs on an inte­
grated basis should be made available to pupils 
in the black schools. The board should freely 
allow majority to minority transfers and pro­
vide transportation by bus or common carrier so 
individual students can leave the black schools.
And pupils who are assigned to black schools for 
n portion of their school careers should be as­
signed to integrated schools as they progress 
from one school to another. Swann v. Charlotte- 
Hecklcnhurg Board of Education, supra. 142.



The very case which gave birth to the rule of reasonableness, moreover, 

partially relied in its conclusion of de jure segregation on a finding 

that "The school board, for its part, located schools in black resi­

dential areas and fixed the size of the schools to accomnodate the 

needs of immediate neighborhoods." Id. 141. Courts in this circuit 

must consider the potential which site and capacity decisions for faci­

lities built today have for the creation of segregated conditions whfch 

may in years to come be very difficult to alleviate.

Prevailing standards setting a school board's duty to inte­

grate seem to depend to a great extent on the characteristics of the 

system in issue and thus lack the precise simplicity of the legal rules 

which the city board hypothesized. In Swann, for example, the Fourth 

Circuit approved the district court's rejection of a "drastically 

gerrymandered" contiguous zoning system for elementary students because 

about half the students of each race were left in nearly completely 

segregated schools - the plan was ineffective. At the same time the 

Court of Appeals rejected a proposal incorporating pairing and cross­

busing for reasons relating to expense in time and money - the plan 

was unreasonable. Still the same court chastized the school board for 

failing to consider "such legitimate techniques as pairing, grouping, 

clustering, and satellite zoning," M .  146, and specifically endorsed 

bus transportation as a "permissible tool," Id. .145. Yet again the 

court held that each separate school facility need not be integrated 

at all cost.

It is in the light of this guidance as to the measure of 

the defendant school board's duty that these new projects must be 

measured. It must be kept in mind, too, that the defendant board's 

current proposals urc for structures only; they do not represent that,

-9-



absent the compulsion of a court order, they Intend to initiate a 

transportation program to integrate the new schools as they open.

Indeed in open court counsel for the city board stated that, if per­

mitted, they would elect to operate under a neighborhood zoning system 

for understandable reasons of economy. Moreover, in view of defendants' 

professed needs for extra capacity at the elementary level, it is un­

likely that the schools, if built, could be ordered to lie idle.

Some prior rulings concerning school construction have been" 

made in the context of free choice plans. See, e.g. Kelley v. Althelmer, 

Arkansas Public School District No. 22, 378 F. 2d 483 (8th Clr. 1967);

Lee v. Macon County Board of Education, 289 F. Supp. 975 (M.D. Ala. 1968) 

Wright v. County School Board of Greensville County, 252 F. Supp. 378 

(15.1). Va. 1966). Of primary concern in such instances wan the effect 

of a site and size choice on the individual pupil's attendance decision. 

While current doctrine is not restricted to such reliance upon pupil 

initiative to achieve integration, the powers of a court of equity are 

still limited by reason and practicality. If building these proposed 

facilities gives rise to avoidable impracticallties in desegregating them 

or other schools, it cannot be said that the expansion "will prevent the 

recurrence of the dual school structure," Singleton v. Jackson Municipal 

Separate School District, supra.

Here the plaintiffs' expert witness testified without direct 

contradiction that each of the three elementary school sites was in some 

respect lacking in its contribution to the full desegregation of the 

Richmond system. This is sufficient to shift to the defendant board 

the "heavy burden . . .  to explain its preference for an apparently less 

effective method," Green v. County School Board of New Kent County, 391 

U.S. 430, 439 (1968).

- 10-

( C1C\



To meet this burden the defendants offered little more 

than bare conclusions. Testimony was that city school administrators, 

the State Department of Education, and the city’s Department of Planning 

and Coniminity Development, were requested to participate in reevaluating 

the proposals. To buttress the conclusion that the chosen sites were 

appropriate, a letter from A. Howe Todd, Director of the Department of 

Planning and Urban Development was introduced. It apparently makes ref­

erence to all nine construction projects which arc proposed. Mr. Todd _ 

states therein that sites closer to the city's center would Involve leas 

transportation distance, but schools then would have to be in "less de­

sirable” blighted or industrial areas. Moreover, he said, because of 

the lack of vacant land, costs would increase; "Acquisition, demolition 

and development costs of such built-up land would be at least six times 

greater than sites in proposed locations.” Minimum site rules of 

the State Board also pose problems, he said.

This information was not subject to cross-examination, nor 

were the bases for the factual conclusions set forth.

Superintendent Adams' letter was also introduced at Dr. 

Little's deposition. He stated that:

Careful consideration had been given to the 
original selection of these sites from the 
standpoint of vacant land, accessibility to 
community facilities, adjoining land uses, 
traffic hazards and other planning factors, 
and regardless of the action of the courts, 
these sites are still considered to be the 
best available.

This evidence, too, was not subject to elucidation by cross-examination.

The testimony of Dr. Little himself was in the main conclusory 

as well. Other general locations for the annexed area schools were con­

sidered, he said, and those closer to the core were thought prohibitively 

expensive and lacking in amenity. The details of the investigations made

-11-



of alternative locations from the standpoint of the racial composition, 

site and building costs, and factors such as the most feasible way to 

pair the schools, if necessary, and whether one location, under a cross- 

busing plan, would require the purchase of less buses than another, 

are not now before the Court.

The testimony of the plaintiffs' expert is that the planned 

Jahnke Road school might, if sited further east, be desegregated without 

the use of transportation, and that the Walmsley Boulevard school site 

cannot be paired without substantial transportation, which would perhaps 

prohibit the use of certain buses for more than one trip each morning.

7.ikewJ.se it is uncontradictcd that the Dove Street school is not now 

needed for reasons of lack of capacity, but is conceived as a replace­

ment for the Highland l’ark School. fl>. 24). It is anticipated to be 

predominantly black if run on a neighborhood zoning basis; in other 

words, it too could not be desegregated without the use of transportation.

The school board on this evidence has not sustained its bur­

den of demonstrating that, of all reasonable alternatives, the proposed 

new construction, in site and capacity choices, will best serve "the 

objective of eradicating the vestiges of the dual system," United States 

v. Jefferson County Board of Education, 380 F. 2d 385 (5th Cir.), cert, 

denied, 389 U.S. 840 (1967), and that the new schools will not be 

"located to perpetuate iJrgrcgntinn," Brewer v. School Board of City of 

Norfolk, supra. Nor have the proposals been Justified on the alternative 

ground that, although schools in other places or of different capacity 

might contribute more to integration, they would be unreasonably expen­

sive to erect, or the costs of alternatives would outweigh the expense 

of transportation to desegregate the schools now planned. The language

- 12-

' 1̂ (V



of a recent Fifth Circuit decision fits  this case:

III

The conclusory expression of opinion by 
the superintendent of schools that In his 
judgment the location of this school, long 
since planned, without reference to the re­
quirements of Jefferson, would meet those 
requirements, cannot substitute for the ab­
sence of a planning study and analysis made 
In such manner as to be subiect to review 
by the district court that is required under 
the Jefferson ruling. United States v.
Board of Public Instruction of Polk County,
395 F. 2d 66, 70 (5th Clr. 1968)(emphasis 
supplied).

Effective review requires that the bases for administrators’ conclusions 

be supplied. It may be that exhaustive analyses of the cost of building 

schools elsewhere and of different capacity were made and that the ex­

pense of ensuring a desegregated student body at various places has been 

determined. If such studies were made, the Court has not seen them.

All agree that desegregation of each school Is possible. 

There Is even consensus on the most practical technique: pairing and 

cross-busing. Whether that technique can be applied to these schools

is not the question. It can.
But once these facilities are constructed, It will not 

necessarily be the defendants' duty to desegregate them whatever the 

cost. The plaintiffs' relief will be limited by the feasibility of, 

and expense Involved in, providing an Integrated education for given 

proportions of the student body in various numbers of schools. Con­

versely, to say, as the law does, that all the schools In any given 

system need not be integrated docs not mean that there is no duty to 

undertake all reasonable measures to that end, which sometimes will 

be attainable.
Conulstcnt with its affirmative duty to take such adminis­

trative steps (again within reason) as will lead to Integrated student 

bodies, the defendant city hoard should in this case have explored

-13-



particular feasible alternatives in order to avoid decisions which will 

limit the extent of reasonable desegregation in the future. With an 

eye, in other words, to the possible costs of extensive cross-busing 

over a number of years, they should satisfy themselves ns to whether a cer­

tain added construction expense is merited. The board, put simply, should 

not erect obstacles to the achievement of desegregation at lowest possible 

cost.

The Court shies at the task of comparing predictions as to 

the cost and effectiveness of various proposals said to contribute to 

desegregation. But neither the Court nor the school board can avoid 

the question whether, as part of the overall system, no alternative 

proposal to solve a capacity problem and achieve integration will in­

volve less cost, now and in the long run, to the system for construction 

and transportation and less cost to the pupils in time, expense, and 

inconvenience related to transportation. Without further evidence of 

the studies made of alternative solutions, the Court cannot conclude 

that the defendants have met their burden.

The plaintiffs, as noted above, do not attack certain of 

the defendants' proposals. The evidence demonstrates, furthermore, that 

the city board may continue with them at present.

Dr. Little testified that on the basis of September, 1970, 

capacity figures and predictions as to the number of Richmond residents 

returning to city schools from former positions in Chesterfield County, 

where they are taught under an agreement ancillary to the recent annexa­

tion, a shortage of 1629 spaces at the junior high and high school levels 

will exist. (D. 10).

Dr. Foster, the plaintiffs' expert witness, testified, and 

the Court finds, that the proposed middle school of 1440 pupil capacity 

located near John Marshall High School would open as a desegregated 

facility if operated on a contiguous geographic zoning basis. If the

-14-



city system were merged with that of Henrico County, or if it adopted 

noncontiguous zoning, the site and size selection would not make the 

school difficult to integrate (D. 91-92).

He also said, and the Court finds, that the site chosen for 

a middle school near George Wythe High School housing 1200 students 

would promote desegregation even on a contiguous zoning basis. If 

the more costly cross-busing technique were used, the site would be 

accessible to areas of black population to the north and east and 

across the James. The possibility of a metropolitan system would not 

affect his view. (D. 109-110).

In these Instances, all the evidence is that the defendants 

have not elected a less effective alternative means to achieve desegre­

gation; consequently no burden is cast on them further to justify their 

choices.

Dr. Foster also stated that the new high school in the 

annexed area would be required if the school board adhered to plans to 

operate four-year high schools, and that, if zone lines were gerryman­

dered or satellite zones used, the school could be desegregated in a 

municipal or metropolitan system. Only if a geographic neighborhood 

plan were instituted would the facility be heavily white. (D. 105-07).

Language and holdings in both Swann and Brewer v. School

Board of the City of Norfolk, No. 14,544, _____  F. 2d ______  (4th Cir.

June 22, 1970), indicate that a school board's duty to desegregate at

the secondary level is somewhat more categorical than at the elementary

level. Moreover because, as Dr. Foster testified, high schools generally
elementary

draw attendance from a wider geographic area than smallcr/schools even 

on a purely contiguous basis, some transportation to the high school 

will probable be required whatever the pupil assignment pattern. Seen 

in this light, the high school project is not in conflict with the 

city board's duty to locate new facilities so that obstacles to inte­

gration are not created.

-15-



The injunction will remain in force .is to certain projects 

which, accord ill); to Dr. Tittle's testimony, would not be begun even If 

the order were lifted. These arc the expansion of the small Nary Scott 

Elementary School, the replacement of Westhampton Elementary School, 

the proposed elementary facility along Route 147 in the annexed area, 

and the middle school in the southern end of the annexed area.

The Court will state expressly that the June 20th Injunction 

should not be construed to forbid any planning efforts that the defen-, 

dants may wish to undertake, assist, or commission, up to and Including 

preparing working drawings. At the same time the expenditure of funds 

and effort in planning while the injunction is In force esnnot be con­

sidered a change of position made in justifiable reliance of the sort 

that a court of equity should consider when the issue of proceeding to 

build arises. The merits of any particular project will be considered 

on a clean slate when the defendants advise the Court that they wish 

to commence activities now enjoined.

What has hern said In thin point relates to I lie law nq It 

stands. The Court cannot ignore entirely, however, the pendency of 

what wll.1 probably be important desegregation cases before the United 

States Supreme Court. Under nearly any foreseeable change In the law 

in upcoming rulings, however, the decision on the pending motions 

would be the same.

Especially if the Supreme Court rulings validate for all 

circumstances the policy of contiguous attendance zones, it would be 

strange if the construction of new schools which, under such a plan, 
would foreseeably be uniracial were thought to be consistent with the 

duty to desegregate the system.

11 further efforts are required, ns under current law In 

this circuit, it is not credible that the expense and time involved 

would not bear on the means required. "Traditionally, equity has been

-16-



characterized by a practical flexibility in shaping its remedies and 

by a facility for adjusting and reconciling public and private needs." 

Brown v. Board of Education of Topeka. 349 U.S. 294, 300 (1955). The 

duty would still remain on the school board to take care not to create 

impediments to the performance of its duty tooperatc integrated schools 

now and hereafter.

A word is in order concerning the prospect, which came into 

evidence during the depositions, that the failure to construct the faci-. 

litics in the annexed area might give rise to further abandonment of 

the public system by white students. Of course the Court could not 

honor requests for delay in integration in order to accommodate those 

who find that constitutional requirement hard to accept. For the same 

reason the Court could not permit proposed construction to go forward 

in order to placate those who view it as possibly contributing to the 

continuation of segregated conditions. Monroe v. Board of Conrnissionera 

of the City of Jackson, 391 U.S. 450 (1968).

By these remarks the Court intends no implication of bad 

faith on the part of school officials. Various community pressures, the 

motivation of which is not always easy to discern, no doubt partly spur 

their desire to recommence their building program. It is simply a fact 

of life that they are sub ject to such influences and to an extent mold 

their position in litigation accordingly. Under the law, however, this 

Court must insulate its decisions from certain considerations. "The 

proper functioning of our judicial system requires that subordinate 

courts and public officials faithfully execute the orders and directions 

of the Supreme Court. Any other course would be fraught with conse­

quences, both disastrous and of great magnitude." Stanley v. Darlington 

County School District. 424 F. 2d 195, 198 (4th Cir. 1970).

-17-



To say that the Court may not condone the parties'

catering to the racial prejudices of some who may threaten white 

flight does not mean that the projects at issue here may not reflect 

genuine educational needs and cannot be evaluated as such. The Court 

accepts the defendants' proposals as presented in that spirit. There 

is nothing inconsistent with their constitutional duty in efforts to 

operate, during the transition to full integration and thereafter, a 

school system which offers all of its patrons an attractive opportunity . 

for the greatest possible educational benefits with the minimum feasible 

disruption. The law seeks the same ends.

-18-

/ t*V



. lLO: CLARK et al

IN filL U.iITLD S'iATEo DISTRICT CO1 LALTERN DISTRICT OF ARKANSAS WESTEnj; DIVISION
"”*T I L  E  0

L‘: C 8 1370
i v i <

Plaintiffs, K  ..__v. ) -^ -)- JDAiiD Jr tiiUCATlGN Or This LITTLE HOCK )-•cnoch. district c*t ui., ) civil action)Defendants. ) LK-6 A 155)xCLÂ t/i J. TOwiULaD, a minor, et al., ))rialtitlf fa-Intervenora . )):,14 xL. jiOci, CLAoohOQ.i x A CHmiL ASSOCIATXO.*, ))Interveners,. )
.or,cranium Opinion

mis cause, which Involves the racial desegregation of the 
, a. lie schools cf tne City of Little nock, Arkansas, was remanded 
to tills Court by tne Court of Appeals in November of tne current 
year for tne limited purpose of allowing this Court to give further 
consideration to the question of whether proposed construction at 
t.i’> icncierson Junior iilvh Scnool In the western part of the City 
should be enjoined as prayed by plalntiffs-intervenors (plaintiff^ 
v . - . curt considered tne matter in the li.riit of tne overall record 
In the cii it plus certain depositions. On December 1, , tie
court entered an oruer refusing to enjoin the construction anu re- 
•ict vin . t it right to file a memorandum opinion dealing with the 
issue. The Court now does so, and the Clerk la directed forthwith 
U  certify a copy of tills opinion to the Court of Appeals for its 
cofi.Ji leraticn aioa,:: with other Issues presently on submission to 
tout Court.

Tills writer's connection with the Little hock School Case 
actually began following the >iay 13, 1170, opinion of the Court 
of -npeald reversing a lyf> 9 decision of the late Judge Cordon t.. 
luuii. .< ,ich had approved a desegregation plan submitted oy the 
uittle foci; Gc.ool board in ljod. Clark v. uoara of Education, 
c c 1  r., t p 6 P. C u 1  b 3 5  •

r. July 10, 1970, tee heard filec a new plan which plaintiffs 
o posed. Plalntlffa also moved for temporary injunctive relief 
Kith respect to certain proposed school construction, including

£)S <■1



the her.derson construction. On the aornln,: of August C the Court 
i.o, un a ...-arliv. In the ewe but adjourned It suoxarllj In the after 
""" 1 1  clear to the Court that the new plan submitted
b., t ie ;>oara was insufficient to satisfy constitutional requirements.

1 ‘‘*A i submitted on August 1 0 , and a harlr;, tnereon
***** “ 1̂** 0 , 1 Aui.ust lj. Plaintiffs opposed tne new plan and put for­
ward variants oi t.ielr own. In ar. unpublished opinion filed on 
nu, uat 1 / tne court approver tne board's plan at tne r,lp.li school 
tun; elementary school levels for tne 1*70-71 school year only. j.he 
Court. old r.ot at the time approve the plan at the Junior uiph 
senool level.

«.« far as t..c elementary achool3 were concerned, the Court 
rtcopnlzed U.ot they nave been located in accordance wltn tile pre­
vailing nelp.itoihiood school concept, amt that they are racially 
Identifiable, .he Court held that such an elementary sohool system 
la constitutionally tolerable provided tnat the hi.-.n schools and 
junior nipr. scnools are substantially integrated. The Court found 
t.iat tne ucaru's plan was adequate to Integrate the hi-h schools 
hut was not adequate to integrate tire Junior hlrh schools. And 
t .c '̂,>.rt issued a directive to the joara to >urk out a two step 
inter rut ion ;lar. for the Junior hlph schools, tne first step to 
•in U«A«n an ot the be. inninr of tire current school year and with 
t.;<i second step, to be taken as of the be.qlnnin*’; of the 1*71-72 ses­
sion of school.

i lalntiffs ciq ealed immediately to tne Court of Appeals. Jn 
September 1 , 1 >7 C, the hoard filed a revised plan .leaking certain 
required commitments with respect to the hlrh schools and a tat Inc 
wnat it i ropoaed to do about the Junior hir'd cchocls. The Court 
of Appeals /ranted permission to the Court to consider the revised 
rlon, and arotia nearinr was held on Cep'tember 22. On September 2 U 
..a Court filed another uei.orandun opinion in union it approved tne 
J'.nici' .;x. !, school plan for this year only with the proviso that 
t..e .nte, ration of tne Junior ui.h schools be completed as of tne 

In, of i»c..(,cl xfi ht-pte.der 1>71. Clark v. doard ol education.

- 2



U i-il

/■r'k., 31b I'.lupp. 102J.  ̂ Plaintiffs promptly expanded their 
al tc. ir.cluue tie Court's September 2 (i opinion and decree, 
utile the issue ca to sci.ool construction was before the Coui1; 
sui ’uer and fall, it occupied a more or less subsidiary poaiti >/ 
••-I- not oevelo, eu or discusses in any great detail. I.’ealin, 
if id cpte . er, the Court had this to say (31b f’.Jupp. at 
an- 1 -lb).

"oefore concluding' these comments the Court desires to ••• er.tloa tie fact that tie plan for* the Junior high -c. ools reiers to recodeling now (joins on at Pulaski eights Junior High dcr.ool and proposed construction at endersor.. Counsel for plaintiffs and interveners have capresse-.l tne fear that such remodeling and construction will r.aeper ratuer than expedite integration.
The Court recoi nices that a school district carmot constitutionally enrage in construction that tends to per­petuate segregation or to delay Integration. Kelley v. Alt.iCi, «r, Ark. Public Jchool riutrlct No. 22, •; Cir.,

373 i*. 2d *<0 3, 494-497. but, the Court also is aware frot its later experience in the Altheir.er ease that a construe tion pro,-Taw even though originally intended to preserve segregation ray turn out ultimately to be a means for the expediting oi integration, that very thing happened at Althei.rer.
The re rode Bn.; of the Pulaski heights Junior high .-a.iooi is approaching completion, and It la going to have tw be* cos. leted 1 1 ' the sc iool Is to be used efficiently r.cr does tne Court see that It will affect Integration ad­versely in any way.
The principal cc-plaint of plaintiffs is directed ut the i; .rovements to be mode at Henderson. Counsel argue that the 'taking of tnose isuproveiuents will hasten the migra­tion of white parents of Junior high school children from the eastern and central portions of the City to the western portion which would tend to res«s*r*i<ate the schools in the former portions.
anile the hoard has ooncy available for the Henderson construction, the work .bus not been advertised for Bits, ur.u the Court does r.ot know when the Hoard plans to consienct- the construction. Construction might begin at some tire uurlng the approaching, winter or next spring, or the work 

1 .it not ie coiiunenced until some later time.
Toe court is r.ot persuaded tuat the fear of counsel Is so «ell ,rounded as to move the Court to enjoin the construct! cn of the improve rents at Henderson at tale time, assuming that the Court n&s Jurisdiction to do so in the 

: re. c-r:t posture of the case, or in terms to disapprove the construction ir. the course of evaluating the Junior high school plan. The Court thinks, though, that the board would be well advised r.ot to commence work without the prior approval of this Court or the Court of Appeals.’
i' c court has undertaken to sur.iixarise briefly what it /.eld in 

u -cuji aiid ofepte-uer of this year. The Court's opinions and 
uarecs filvru during, t .one month:; apeak for the:.^elves, of course, 
nil this Court In no way intends in this opinion to modify, expand,r contract anything sail or set forth In those memoranda and
‘-•cr-ae j .



I;< early inter tne Board. without t ing the cotter up 
tit : t.j court of Appeals or with thij Court or with counsel lor 
plaintiffs, auvt-rtised for claa on the proposed Henderson construc­
tion. oluc -ore opened on October 27, ana on October 2$ a con­
tract .<a* let to tne successful bidder, John t. Stovers. rue. of 
•tittle -.C/Ck. lie contract price was $3*9,21<1, with the work to 
l o comp leted In i'l’j calendar days. However, no work order w&s 
insued at tne tine.

bn :.oViiner 2, 1170, the Board filed a motion in this Court 
in union. after historical recitations, the Board stated.

c. Construction work has not yet conunenced but It is iterative that it oe commenced in the very near future if t'i<? facilities are to be completed fcy the cout- r.ericemerit of t’e 1371-72 school year when there will be a critical i.eciu for ti-e.s. In its Memorandum and Order of bct.ter.ber 2lI, 1370 this Court declined to enjoin this con­struction but observed "The Court thinks, though, that the ^oard would te well advised not to couaence work without t:.e prior approval or this Court or of the Court of Appeals.
j. fills Court hus earlier expressed doubts respecting ita Jurisulctlori to superintend the desegregation activities of t;iu district while tho case is pending on appeal tc the (.ourt of ;.i peals ana on September , 1970 refrained from npL-rovln, tho current Junior high school paaue cf defendants’, 3ft;: until tne Court of Appeals expressly authorized such action which that Court subsequently did. '-toreover, in wts opinion of September 2*1, lv7'l this Court ex, recaly indi­cated cloutt about its Jurisdiction to approve or disapprove this proposes., construction while tne case was before the Court of appeals.
4. refendants are advised that plaintiffs are prepar- in;, to file a .otlon in trie Court of Appeals seeking a li.-iteu re;.and of tne case for the purpose of consideration 

t y this Court of this proposed construction, defendants In­tone to Join In t.at .otlon and to request that it be grantee expeditiously.
.h!f i-,i.FCKb, defendants pray that this Court approve tne , ronosed construction promptly after remand if the Court of v-peals acts favorably on that hotlon."

-n tne Siii.e cay plaintiffs filed a motion in the Court of
• rl.thl.i for a limited remand of the case in which motion the Moarc
joii.e... It v.-.o alleged by plaintiffs that tne contemplated con - 
..tructioi is to acco.uirodate a unite population shift and will 
further retard rattier t..an facilitate unitization of the school 
system. ‘ . tie prayer was t.iat the Court of Appeals issue an
i: laiuiato orcer rer.andinjj this case to tne district court for the 
11..1 ten , ur..,osf of promptly advl«e[lnn] tills court of the action

A -



? t orotr of rt“u8 ;iu %&e entered on fiove,.:ber 4, and It recited.
. 0 1  cause shown it is now here ordered tuat the case . -d1 it is Hereby, partially remanded to the United tv.tes district Coart X'or t.ie 1astern llstrict of Arkansas J or t limited purpose of entertaining a j. itlon requeat- 

2 -i i; Junctlvc relief' against sc,.ool construction at Header- ..oi. .Tur.lor 1 ..ccool.
.13 court retains Jurisdiction of all matters presently

under sue- isr.ton.

ucter: in in t..at the . er.derson construction should not be 
•i.ad, t;.*s ‘ Curt ..uve specific ar.d detailed consideration to the 

.. of . .lohr. a. .towers, tire read of John '£. Stowers, 
/,v u  lut. of cC.'iools, Floy a <■ . Parsons, which were

w>n-n or; ..ov..iiher 17 and *hic.. were later transcribed and filed.
ucitr a on Junior i!l.;h ochcol in located on a 46 acre campus It; 

ioithreat ; art of t.su vlctriot and fronts on Joan narrow load, 
its nor.'.ill attendance area is a rabidly >’rowlnc residential one 
• ecu;. l«d ,'ro-jo! lnar.tly by white people enjoy In? hi£h or Kiddie in- 

i«.ry fe. no .roes live in taut area, although there are seise 
. i -c; it.-rvi: i a nu.a er of residential ttuvdivlslons located in

04 w • . sVv . X W .
1 L. , &J
r- ukt'H 01

l» .Uj noi ■
i to nOi'.
V Cu;
co.,.v O «

. . -i a 1 ,e^t or r.iversity ; venue ant c"tween West arkha.t. street .

or. I..- 3citr s /.rnar.sus .itate ; 1,-hway Id, on the north .

: c .  :  .. ,  t v .  i  v.is ion;, are e  C O :  1 C . icallv exclusive eric i i u  »c>, roe a

• * ’ V '. 0 V ; ;  U  . t  C> l t 1 . L  ! act, u . s  far as >.r.. Parsons knows

"‘VS r. ove«> into a;.,; new su. divisions located west of 
.-venae. excep t t..e feuorally financed University Park 

it-- t ;iih;j is located somewhat closer to .Southwest 
; e '• ol t.iSi. it is to enderson.

. junior him school enrollment of the district ifr approxl- 
" i . “ico t (lack, but t.,c- current enrol latent at header son is 

t.ia-. 1 /iti'ccr.t i-luc*., am; even so the present black enrollment 
r*:.rwue.it» a stunt, ant lal increase over what the black enrollment at

Oi .J-e.: at ir r vc. ■ 1 7u school year.' i’hat increase
Oaf tO ■ •••-«>.• .t least in part to t .e fact tnat theuVt i3 v-Ct 'Ofi i ti Cl' r . Parsons did not nave currentt '.•.a cefore ;il. . ':ie stated, however, that tne totalv C. t i' n.itiiuor. is arourid 1 1 3 1  students of ooth races. k■ ato.’y i, in tint Arkansas f.wsette on November a contains

1 i .ai'. j, obviously ovtalneu fro- official sources and probably re- ' i ■ -'5c. v .vjA t.iet as oi the openin; of school on September c i...-..tujou .it.'. a total enrollment of Illy of whom dl ( 7  percent) vert .lac.:, fne ua I.' fi ores reflect that during 1969-70 ilerroes made at oi.l', f percent of t.ie enrol i.:.ont at Henderson.

S'^v



i eJo:..lnuntly ro went oi ‘e Junior :• 1 ;*r* 3cncol in wn&t 1j no*
”’u? '■’v.tiul port of t..« Cl tv la 1:: t'ie procf® of Coin • p.i&bed out 
and C.iafc sous: <e ro students who would normally lave oemt In 
uttsm-ii .cc at t.ut school have br»n transferred to other junior 
a-*x •• oola , Inclualut uonueraon.

*’• r arson.-. .i-ejxcts tr.at l or l.<71-72 t!ie enrollment at Hornier 
jo.i .1x1 ccrailst ox" K»3 white student-4! anti jCJ or perhaps Vj
•' 1,0 atuaenta. If that px'ojection is to Co realized, it let ob- 

'■*' %. it,t ler o i up.*a?x*a oi .it>tT0C5 are poln.- to have to Ca trans- 
l° - Oiiderion fro.” ucnools In tne eastern anti cex.tral portio 

of t..c city w.iero ..oat cf tne Uick people live.
i»4 construction of .ie.nCerson was conceives In li)tl, and tJuri.v 

voter oi the district approved a loud loaue of 

oo,. ji, tr.e proceed., of walc-i were to c»? allocated. to ti»e pro 
j:ct. In lat-3 an anul11 or.ai bond issue of #f50,000 fox’ endeisori 

'' •‘wi’x jvoo , and construction war. : e ui. lui'lx.p, tnet year an:i a
CO- • i t  t o - . i r .  1 *L j .

r. .'arson- .as employed by the district as Superintendent in 
1 .M a no :?c '.as .'■-•on fur.11 lax* wit: Henderson essentially fror the 
..i ini,i,i . ..... Je; oa« . t at it was planned that tne ..chool «ouiu
•«cco. ..ouate e 12‘, u students, ar;-1 that the ultimate achieve., ent 
ox t.»ac oal wool,- l.vvolv*. cor - 1 true t lor In two ate,a.

i.io !.'rl '.uni - uildin-v was deal- nee to provide class room apace 
1 ox* fiaout lj‘j htuuexits, tut, as the Court understands it fncilltir 
otic i than claesroono, sac.i %a laboratories, buna roou. Hoar. , 
u;;u the like, wore- resigned to uceoituoUate soi.c yoo additional 
students.

. . noted, the r resent enrollment at ilendersor. Is somewnat

* *2 VO w t. O'Cti

Vlc.o l hut

fsrt'i*'.] t o .

or t- '•it:

-. it4 C i

L.'iat j ejy 1

■ 1 } t u' J , j'0

j:et. In :

ilt ' X C fcj ii .*> OX' 11„ luut;it.). Tii
-uilain. and lr. f'.. ir rox tat le e
U i a . i<_‘ C rs 's [:.X'y j.y t: ; nropot’Oi cor.

i: s t: faculty at; -anocr.jfii i
roi.̂ r u re are ->C "teaching in
dtdli V! IO representec ov the ; ori
teuCvieru who nave r.o a rooxr.a
*0 i ..'0 #y: i O are re ferred t<

the ; o; table clasaroc.as. I'hat leaves ei it 
class rooms assigned specified

33CV



In ..arcii 1-70 toe voters of the District approved a bend Issue
01 i 1 ,*j r.,, JiVj I or sc iGol construction and improvement. $1,000,00')
. .i • I lotted to •••tropolltttfi HLru School and *5 3 0 , 0 0 0  w&s allotted 
to .uritlonal constructior: at ..enderson. Architects were employed 
•. c Ui as* ,-la:i3 for tire wor, at Henderson, and they completed th e ir  

”or‘- *-> -l fH or .'a/ of this year. Later- relevant chronology has
-ctn outlined already.

*’-* i ropost 'j .»orK ̂ Involves trie construction of twelve entirely 
m\ - c].r:.-.jroo..s, certain remodelin* of the existin' fcuildln* that 
i;ili “ -*k« two Additional claasrooito available, ar.c the roof in., over
02 ’* outdoor- re creation area for the purpose of converting it 
Into a gymnasium facility for female students.

if the «ork proceeds to completion. Henderson will accomtrodat» 
at,out 115'-’ students, as planned originally, and it will be the 
iur^eat Junior ni -•}» school in the system. The other Junior hi Kb 
ucnools art- in cue cal designed to accommodate not More tnan 1,000 
-vuuents each. The hooker Junior hiyh School in the eastern part 
sf the City Is a smaller senool designed for about 750 students.

Lu* erinter.-Jer.t Parsons testified that tno amount of the Stowerc 
Pit. for tne work is quite reasonable; that the additional facilities 
are needed now, and that the need will exist regard1«3a of -mat 
direction integration of the city’s schools nay tawe eventually, 
it., re, arci to watt ia sometimes called "white flight.’ r. Parsons 
2 of t:,e view triat full integration of the City’s schools reyuiri-ij 
u-da.ve basin, and cross-busln; of students would probably result 
.initially lr. substantial numbers of unite students leaving the 
system entirely, t at he anticipates that many would tend to return 
with tie :-(i3sa;<! of tire.

-ias ueer; observed, tae motion filed by plaintiffs in the
ourt of _id-;nga ln_ refers to a an lit In unite population._That there
3a local television newscast on December 2 indicated that excava­tion work »as bo.yui; immediately after entry of tire Court’s order of December 1 anu is now in progress.
‘’A.iia roofing ever of the recreation area is a very minor part jt t.-.e work. ,r. dtowers testified tr.st it would be possible to wall u: the. arc .) and fcj the use of partitions to construct additional ciassroo.. at otated, however, that this would be a rather expen­sive proposition, and there is no evidence that the board has any intention of tai.ii; . such u step.

6'Sk&  a  7



. ..a : « n  a :,-.l raticri of whit* people In both Llttl«; Kook and In 
:*<t V ... ori.i, ..oi-ti Llttlu >.ock duh'.ii/ the past several year? oamu't, 

fr. Little frock tne ml prat Ion lias been to the w«3t, 
ia >;ort: Little i ock It has ta*en a northward direction. See
jJv.vcb v. -oaro of duucatlon, .'lortit Little nock, u.L. Ark., 29‘j P.
• ; . L 3, £*3. And toon* nitrations nay be clue in part, although
wortaiiil/ not entirely, to a desire on the part of white people 
».ho cur. afford to . ovtf to avoid having tneir children educated in 
ui; tnt* •.rutea environment.

‘■it r.aalc position of plaintiffs is tn&t tne construction of 
-.ore .-.cLocla in the western part of the district or the 1,-orovewent 
or c ;ilar,:e..ent of existing scr.ools in that area contributes to the 
..euta-sr i nitration- of whites, and that if that Migration is not 
chucked, -ittle Lock will wind up with a dual system of de facto 
se.repfatea schools.' Plaintiffs feel that injunctions prohlbltlnr 
juu.j construction constitute an appropriate ireana of checking tne 
alio ..ah white fli ht” to tne western parts of Little hoc*, includ- 
-i.. Mi.turc.-J, »nu the Court was askeu to issue such an injunction
. h l-tia Cil̂ H.

' CO'.i Iteration of the cross examination of duperlr.tenuent 
i.racns tj counsel lor plaintiffs wake it evident that plaintiffs 
f *• b 1 that put lie moneys available for school construction in blttlle 
>c.- at the Junior high school level should not be spent on schooljs 

1". t.uc •c-dtern , art of tie City, but should be used to construct 
an entirely new Junior hi?:u school at some site, probably east of 
.riversIty Avenue and south of west Twelfth Street, located betweer 
. rc .o,.A:ientl./ he,u-o neighborhoods and predominantly white neighbor 
.u-Ows. a.iu that all children of Junior high school age residing in 
t..ouc .-icl,. noorhooua should te assigned to that school. And tne 
testi- on:/ of r. Parsons indicates that the ultimate construction 
of -UicL a school is ,-ot beyond the thinkin;; of the Board, and that 
ij-O.j.Juv. Is available for such construction now. However, that
- In >.falin, with the him schools in Little dock the Court has I'eco ilf«u tne possibility tnat Central High School, whlcn is now into -rated satlsfactorilv, say 'Tesegregatc itself ' and beeone an.11 , i ucV. or a pi’udoulnantly alack. school. Ana in its August deer} t.w wdurt orderea the board to take steps to see that such a re-scc.re* utlon does not ta*e place.

£x A • 3 - 6^ (A



c .ii_tr,.ctiOn Is r,ot 1 Eminent; nor, in his opinion, Joes the possl- 
* Hit/ of it obviate what he considers to be the necessity for the
1: i . roves.enta tt hentierson

o. uL. t.r ositJon of plaintiffs is that although racial balance 
tm ,t acuUved in the western schools, Including Henderson, by 
ti unsporting 1 urge numbers of s'egroeii to tnoee schools, such truns- 
.ci tation over tne substantial distances Involved places an inorul •
■ ict.* 'w.l diecrl.in ftory burden upon herroes as a class, particularly 
u> on jeor zeroes. As indicated in the preceding paragraph, plain- 
ulif.- . ould .iavt scr.oole located sore centrally ao as to equalise
tuc* i. Ui’den.

-till another claim Is that the enlargement or modernization 
<>f western schools;, like Henderson, the inhabitants of the normal 
attendance areas of able!', arc exclusively or predominantly white 
t.,.. criminates against the schools located In the aaatern and cen­
tral parts of t..e City, and tends to uaxe unite students even more 
,iI'* 1 111;;; tnari they now are to accept assignments to schools locate.: 
in t.ioce parte of tne City.

I’; passing upon t::e contentions of plaintiffs the Court Mas 

re luit-eo ta exercise its Judicial discretion. The Court ,-ave full 
«ei >.t to tne arguments and considerations put forward by plaintiff; 
cot wnu not pirauadeu Ly thee. It row behooves the Court to aay wnv
i v >"* a* b ilgt t

•° start with, t:.e Court >.111 say that it doubts that tne 
~c.tr.. is wise in spending or. Henderson at this time as much iconey 
t. it :Ians to spend, particularly in view of the unsettled state 
ol tse law in tiie area of school integration. and the Court doubts 
teat if tne Junior high schools are fully integrated, a process 
thet will involve shifting many white students from west to east, 
any additional apace at iiennerson will really be needed witdn the 
immediate future.
__i'̂ jeverj. ..tne Court, ac a court, la not concerned with whether■'Tne new Junior hijyh school which the Hegroes postulate may pro- hably be considered os part of tr.a sc-callcd “Walker Plan' which 

wa. ..tit forward by plaintiffs in the course of the hearing that tris Court held on august 1 3 . The 3oord was not ordered to adopt tuat plan, anc the Court eccscenteu upot; it to son* extent in the uiipubls.-neu opinion that waa filed on August 17. Opinion of ust 17, 1.'70, p, U.



J~*'* j. _ . wTtu * t i f . t..? -intrlct *ii .'T.onoy wlaci> u: whether It t«

il rooliu.»l>. ..or, i:. t.ie Court prepared to duoatitute

i u  Juu ---.-.ent for t iut of the school administration as to i.enaerson 

ICO,. : : j i .’act lit lea tn at will accommodate up to 12i>0 students, or 

1~ ' ' " *01' the substitution of permanent for portable

cl .!.iruO':.jr or as to the neeb for rlvln? the feral* students at 

.•anucr- or a covered :;yr naslu.c.. Apart Troi.-. taelr possible impact 

on i-'ciul doje-M-fc. atlon, administrative decisions In such areas 

•■r.; utters of educational policy with which the federal courts 

•iTt. *»ot, i*nu A:\oulti not L*c, concerned •

..or Is tola Court or tue board concerned with where either 
*.'.lwt oi ..e .ro residents ol' Little rock choose to live. it is the
-ll., of tr.o roard to provide an lnte.-rated public school syste,.,
.. t iJ »..* iut*’ of tiir .iurt to see that tne beard doc-s ao. uut that
... a..i far either soard or Court should %■<>.

* wr oett' r or f o v  wor*e the junior .ilph schools In Little f;oo. 

1 ' R e n t e d  »i.ci'j they are. and tie district la entitle^ to use 

t u ' - ‘ "1 flclei.tiy and to .:a»e t.ia school plants adequate and 
eo fortable.

■ “ cc-nte. plated Improvements at Henderson willnot affect tne 
lute ration of that facility one way or another provided that 
i-ueiKl balance witen the school is maintained. If the improvements 
bih= ..ad<-. the students, ootii black and white, assipned to that 
scuool . . 1 1 1  have better facilities than would be the case otherwlat

1 bourt recognizes that It is inconvenient to or perhaps 
!t -'•'•'-'..hip a; .or. a '.o ro student llvln.; in the east end of Little 
‘•c '* b-sal̂ neo tv. a Junior hl.._n 3c..ool In the west end. iut
-s: .. .li, t at he is ,'iinr. to be assigned to such a school It does 
..ot, frc. a practical stsnupolnt, make a particle of difference to 
I - w.iet .er he is sent to ..endereon, or to Southwest, or to Pulaski 
ex..nta, or to rarest it-I :its. Ar.a it would fleet. to the Court that 
other thIn.'s oelnp approximately eyual, an affected ke.;ro student 
iul.‘ ret nor at tone, the oeat ff.cllltv avallacle to bin. than one not 
o 00,1 .

nei ore coocludln t ;la «.e, orrndur the Court desires to refer
;rlt-ix to the board’s present i.lar. for waat is supposed to be

11

£*A a $1



aorace ..ann Ju*. ,v Hl&h School aa of the b inning or the 1 >71- 7 i
school year. Speakinr of that aspect of the hoard's overall plan
lur ti.c Junior high scnool3 , the Court pointed out lr. September•that In the last analysis student assignments to what the doard 
proposes to call tac ebook or- ann Complex' .411 result in an ele- 
font ary-junior high school complex that will he identifiable rucl 
ally as & black *cnool complex. Clara v. Board of Education, eu,* rk 
lip i .oupp. at lw'lJ-lkUt. And the board is re.virtued that its 
Junior hi? h school plan, including the propose , hooker-, ann coapl 
•iaa not t-een approved with respect to 1^71-7? and sutae.'iuent ye nr 
loiu at p. 121b.7

The Court does not know, of course, what expected decisions 
of tie Supreme Court in cases now on submission to that Court will 
uo to tala Court's previous decisions in this case, hoc does this 
oourt know whether its previous decisions will gain the approval 
cf the Court of Appeals even for this year, hut, unless there Is 
scr.-e rather radical change in Judicial approach to tne subject 0 1  

scnool integration, the Court very seriously doubts that tae con­
cept of the booker-nar.n Complex will pass constitutional tauster.

If tie Court's douut turns out to ue well founded, and if a 
full/ integrated junior nigh school system in Little f<oc». iu ra~ 
juired, the board will probably have to operate Horace ann Junior 
- 1, school as a jufclor hit;:, scnool facility and will have to 
achieve substantial racial balance in it by assigning to it large 
numbers of white students from the western part of town.

lince an appropriate order aas been entered already, nothin, 
further is required.

...ten this % ft'i&j of bee*, .ter, 1>70.

/■•/ v • -1- »•
United States biatrfet~.fud, e

Âctually, tne .hooker- .'.am. Cor-.p 
1 .orace . ann dipt, bchool la still mid lstn yraoe levels, and -oo.ier Junior high school.

Ex- A 11

lex is not vet ir. operat lor.. a senior high school at the lit:. Junior hi School la still a



FOR THE EIGHTH CIRCUIT
No. 20485 September Term, 1970

Delores Clark, et al, ))
Appellants, ) Appeal from the United States 

vs. ) District Court for the
) Eastern District of Arkansas. 

The Board of Education of the )
Little Rock, School District, ) 
et al. Appellees. )

BEFORE: MATTHES, Chief Judge; VAN OOSTERHOUT, GIBSON, LAY, HEANEY 
and BRIGHT, Circuit Judges.

There is now pending for consideration appellants’ motion for 

injunction restraining appellees from commencing and continuing 

any construction at Henderson Junior High School pending final 

disposition of all issues presented in this appeal.

Being fully advised in the premises, it is now ORDERED that 

the motion for injunction should be granted and the restraining 

order should issue.

The issuance of the injunction is conditioned upon the filing 

of a bond by appellants in the penal sum of §25,000. The bond 

shall run to the appellees, shall be filed in the United States 

District Court for the Eastern District of Arkansas, and be 

approved by the court both as to form and sufficiency of surety 

or sureties. The bond shall be conditioned upon the payment of 

damages, if any, suffered as a result of the issuance of the 

injunction in the event it is ultimately decided that the injunc­

tion should not have been issued.

The injunction shall become effective upon the filing and 

approval of the bond as above provided.

This Court reserves jurisdiction to terminate the injunction 

either on its own motion or upon motion of the parties.

Judges Lay, Heaney and Bright dissent from that part of the 

order requiring the filing of the bond.

UNITED STATES COURT OF APPKAJ"

DATED: December 28, 1970



-<— .ores clarx, c t ai,

INITED STATES CC'JRT OF APPEALS 

FOR TnE ExGhTL CeRCUxT 

No. 20,4 35 
))

Aooellants, ))
v. )

) ORDER
LOARD OF EDUCATION OF )
LITTLE ROCK SCHOOL DISTRICT, )—  cl, ))

Appellees. )

before XATT..ES, Chief Judge, VAN OCSTERHOUT, GIBSON, LAY, HEANEY and
BRIGHT, Circuit Judges.

There is now pending before this Court a motion of appellees 

for reconsideration of the order of this Ccprt entered on December 

23, _97C, authorizing the issuance of an injunction ar.p restraining 

tnc commencement ana continuance of any construction at Henderson 

“t..ur Keen School pending final disposition of issues presented 

j) this -ope.— . Alternatively, appellees move for an order termi­

ng 1-L.ng the an junction or for an order increasing the penal amount 

of the none.

ti

o.t

The Court has been informed by counsel for the appellants

- the appellants have not filed the bond as required by the 

: of this Court entered on December 23, 1970.

Jpor. due consideration of the motion of the appellees and 

.he order heretofore entered by this Court, it is new ordered

- unless the appellants file a good and sufficient bond as

.ireu by tne order of th_s Court entered on December 28, 1970, 

r bor^re February 1, 1971, that the order authorizing the 

ance of an injunction entered on December 23, 1970 shall u^and 

ended _nd v-- .ted and have no further effect. Judges Lay,

tx F WCo-



.970 requiring the filing of a bone.

DATED January 20, 197i.

Ex f  - 2 -



UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1970No. 20485

Delores Clarx, et al, )
Appellants, ) 

vs. )
The Board of Education of ) 
the Little Rock School ) 
District, et al, )

A ppellees, ) 
Yolar.da G. Townsend, a )
minor, et al. Appellants, ) 
Little Rock Classroom )
Teachers Association. )

No. 20568

Delores Clark, et al., )
Appellees, ) 

vs. )
The Board of Education of ) 
t . Little Rock School ) 
L^stric ., et al, )

Appellants, ) 
v s . )

Yolanda G. Townsend, a )
minor, et al. Appellees, ) 
Little Rock Classroom )
Teachers Association. )

Appeals from the United States 
District Court for the 

Eastern District of Arkansas.

Appellees' motion to reconsider the Court's order 

of acerober 28, 1570, is denied.

The Court's order of January 20, 1971, remains in 

full force and effect.

Judges Lay, Heaney and Bright dissent.

February 2, 1^,1

E x -  [ \



iiiK Appeal, No. 209K5, Delores Clark, ct aX. v. Board of Education 
ol the Little Rock School District:,, el: al. ,/l

ROBERT C. TUCKER
! LAY, HEANEY and BRIGHT, Circuit Judges, dissenting.

We believe that an injunction to halt construction of 
additional classrooms at Henderson Junior High School, a racially

| identifiable white school, should have issued and should not have
i
| been conditioned on appellants' filing a penal bond:

(1) The appellants are not responsible for the delays 
incurred in the final disposition of this appeal. This Court 

rendered its most recent decision, involving the Little Rock 
schools, in May of 1970. See, Clark v. Board of Education of 
Little Rock School Dist.. 926 F.2d 103S (8th Cir. 1970). We, 

there, remanded the matter to the District Court with instructions
| t° it to require the School District to establish a unitary school 

system no later than the beginning of the 1970-71 school year.
The appellees did not comply with the orders of the District Court 
alter remand and that court has issued three opinions since 

remand: LR-69-C-1SS, August 17, 1970; 316 F.Supp. 1209, September 
29, 1970; and, LR-69-C-15S, December 8, 1970. These opinions deal 
only with the school year 1970-71 and do not, contrary to this 
Court's opinion, require that a unitary school system be fully 
established by the beginning of the 1970 school year.

Appeals were taken from the various decisions of the 
District Court to this Court. We heard oral argument on the 
issues raised on October 19, 1970. We reserved an opinion pending 
a decision by the United States Supreme Court in the school 

desegregation cases presently pending before it. To permit any 
changes to be made in the facilities of the School District prior 
to the date that this Court issues its opinion is highly 
inequitable and an injunction should issue to prevent construction 
of additional facilities without any requirement that the appel­
lants post a penal bond.

(2) Notwithstanding the specific suggestion of the

h * .  1



4
5
6

7
8 

9

10

11

12

13
14
15
16
17
18
19
20 

21 

22

23
24

|j United States District Court that "the Board would be well advised
]i
!i not to commence work without prior approval of this court or theiJiij Court of Appeals," the Board without taking the matter up withjii •the United States District Court, or the Court of Appeals, or
j| with counsel for the plaintiff, advertised for bids and awarded

'
a construction contract.

(3) This Court has, with a few isolated exceptions, 
refrained from assessing attorneys' fees or punitive damages 
against School Districts which have deliberately disregarded the 
decisions of this Court to establish unitary school systems. To 

! require a penal bond of appellants in a situation in which they

j are in no way responsible for delays that have occurred or that

1 may occur is unjust and punitive in nature.

26
27
28 
29
30
31
32



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

NO. ______

DELORES CLARK, et al..
Petitioners,

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

APPLICATION FOR STAY INJUNCTION

To the Honorable Harry L. Blackmun, Associate Justice of the 
Supreme Court of the United States and Circuit Justice for 
the Eighth Circuit:

Petitioners Delores Clark, et al., plaintiffs in an 
action seeking the desegregation of the schools of Little 
Rock, Arkansas, pray that an order be entered enjoining the 
respondent school officials from carrying out any further steps

U H



in the construction of the Henderson Junior High School 
in Little Rock, Arkansas, pending decision of the United 
States Court of Appeals for the Eighth Circuit in the appeal 
now before it. The Court of Appeals unanimously agreed to 
issue the injunction now requested here, but by a three to 
three vote conditioned it upon petitioners posting a bond in 
the penal amount of $25,000.Because petitioners are financially 
unable to furnish such a bond the injunction was vacated 
necessitating the present application.

Statement of the Case

This action is a school desegregation suit seeking
the end of unlawful segregation in the schools of Little 

1 /Rock, Arkansas.— In August of 1970, petitioners perfected 
an appeal to the Eighth Circuit from an order of the district 
court approving a school desegregation plan presented by the
school district over certain objections by the petitioners.

. 2 'While that appeal was pending in the Eighth Circuit,— there 
arose the question of the propriety of the school board

\/ There is presently pending in this Court a petition for 
writ of certiorari in this case, sub nom., The Board of 
Education of the Little Rock School District et al., petition­
ers, v. Delores Clark, et al., Oct. Term, 1970, No. 409 
The present matter, however, concerns issues not involved in 
the pending petition for writ of certiorari. Rather, it deals 
with orders entered by the lower courts relating to school 
desegregation subsequent to the order sought to be reviewed in 
No. 409. Thus, this application is filed as an independent 
matter and not in the pending case.
2/ The appeal, although it has been fully briefed and argued, 
is still pending. The Eighth Circuit is withholding decision 
until this Court decides the school desegregation cases now 
before it (See, Ex. I).

2



going forward with certain additions to Henderson Junior 
High School. Petitioners moved for a limited remand from 
the Eighth Circuit to the district court for the purpose of 
that court deciding whether the school district could proceed 
with the expansion of the school. The school district joined 
in the motion of the plaintiffs.

On November 4, 1970, the Eighth Circuit remanded 
to the district court for that limited purpose. Following 
the remand, the district court considered petitioners' motion j 
to enjoin the proposed construction of the additions to the 

school.

On December 1, 1970, the district court denied the 

request for an injunction and on December 8, it issued a 
memorandum opinion giving its reasons for the order (see 
Exhibit A attached hereto). Pursuant to the direction of the j 
Court of Appeals, the order and opinion were forwarded to 
the Court of Appeals. On December 9th, the district court 
denied an injunction of the construction pending appeal to I
the Eighth (Exhibit B). On the same day, petitioners filed 
a motion for an injunction with the Court of Appeals. It 
requested an injunction of the additions to the school in orderj 
to preserve the status quo until the Court of Appeals could 
decide the construction issue on the merits (Exhibit C).

On December 28, 1970, the Eighth Circuit unanimously | 
issued an order granting an injunction. However, by a 3 to 
3 vote, the injunction was conditioned on the petitioners ' 
posting a $25,000 penal bond to indemnify the school district

1
i

4 ‘K  I

3



in the event that the district court's decision was upheld 
on appeal (Exhibit D). Subsequently, on or about January 8,
1971, the defendant school officials filed a motion in the 
Court of Appeals requesting that the injunction be vacated 
since the penal bond had not been filed (Exhibit E). This 
motion was granted on January 20, 1971 (Exhibit F). The 
petitioners on or about January 22, filed a motion requesting i 
that the Court of Appeals reconsider the bond requirement, with j 
supporting affidavits, on the ground that the plaintiffs were 
unable because of lack of funds to provide the $25,000 cash 
security required by bonding companies before the bond would 
be issued (Exhibit G). On February 2, 1971, the Eighth Circuit, 
again by a 3 to 3 vote, denied the motion over a dissent by 
Judges Lay, Heaney and Bright (Exhibits H and I). Thus, in 
conformity with Rule 51 of the rules of this Court, applicationj 
has been made to the courts below for the relief sought here, j 
and this application seeks that the injunction requested of 
the Court of Appeals be issued without a bond requirement.

Statement of the Facts

Following the remand by the Court of Appeals, the 
district court's consideration of the motion for an injunction I 
against the proposed construction at Henderson Junior High 
School was based on two depositions taken on November 17, 1979, ! 
and on the record theretofore made in the case. This 
evidence showed that the Henderson Junior High School is locat­
ed in northwestern Little Rock in an area composed almost entire- 
ly of all-white subdivisions. There are in the area that the 
school will serve, at best, only a few Black families whose 
children might attend the school (Exhibit A, p.5) For the



school year 1970-71 less than 10 percent of the school pop­
ulation was Black (81 out of 1,119 students). For the 
school year 1969-1970, Blacks made up only two percent of 
the enrollment at the Junior High School (Ibid). The super­
intendent of schools projected that for the school year 1971 
72 the enrollment at Henderson would consist of 900 white 
students and from 300 to perhaps 400 Black students. This 
projection, however, was based on an assumption that the 
school district would be required to transport substantial 

numbers of Black students to Henderson Junior High School 
from schools in the eastern and central portion of Little 
Rock where the bulk of the Black population is concentrated

(Id. at 6) .
i

At the present time Henderson Junior High consists 
of an original building with a capacity of 750 students and 
four portable classrooms in which the overflow population is 
located. The proposed additions would involve the construction! 
of 12 entirely new classrooms which would replace the four 
portable classrooms now used and the remodeling of the exist- ■

iing building which would make two additional classrooms avail- I 
able. If the work is completed, Henderson will accommodate 

approximately 1,250 students (Id. at 6-7).

In an order issued on September 24, 1970 (316 F.Supp.
1029 (E.D. Ark. 1970)), the district court commented on the 
proposed construction at Henderson at a time when no bids 
had been advertised and/or received and no contract had been 
signed. The court responded to the concern of counsel for 
plaintiffs that construction might begin by saying:



The Court is not persuaded that the fear of 
counsel is so well grounded as to move the 
court to enjoin the construction of the 
improvements at Henderson at this time, 
assuming that the court has jurisdiction 
or in terms to disapprove the construction 
in the course of evaluating the junior high 
school plan. The Court thinks, though, 
that the Board would be well advised not 
to commence work without the prior approval 
of this Court or the Court of Appeals. (Id.at 3)!.

Despite this warning, in early October the Board, 
without taking the matter up with the Court of Appeals, the 
district court or with counsel for plaintiffs, advertised for 
bids on the proposed Henderson construction (Id. at 4). The 

contractor who submitted the lowest bid and received the contract 
testified in his deposition that it was not indicated in any

I
way in the advertisement that there might be a problem in 
going ahead with the fulfillment of the contract because of 
the pending school desegregation litigation. Indeed, he test- | 
ified if he had known of the possibility of any such difficulties 
he would not have spent his time preparing and submitting a bid.—  ̂
Bids were opened on October 27, and on October 29 a contract 
was let to the successful bidder. The contract price was $349,
218 with the work to be completed in 240 calendar days. No 
work order was issued at the time, however (Exhibit A, p.4).

School officials urged that the construction was 
necessary because of the potential overcrowding at the facility 
which would result because of the rise in junior high school 
population. However, other evidence indicated that there was 
space available in under utilized Black junior high schools.
In addition, a proposal was before the district court for the 
location of a new junior high school at a site near the bound­
ary of white and Black residential areas which would result in 
3/ Deposition of John E. Stowers p.5

6



an integrated student body without the need for extensive 
transportation of students (Ic3.at 8-9).

Despite this evidence the district court declined 
to enjoin the construction of the school in its order of 
December 1, 1970. It gave as its reason that, despite the

' fact that the school was being constructed in a virtually all- 
white area of the city, it could still be fully integrated by

1 transporting Black students from other areas of the city. Thus,
j
the court passed over plaintiffs' objections that this would 
place the entire burden of integrating the school on Black 
students while other options available to the school board would 

minimize that burden or divide it equally between the Black and 
white community (Id. at 9). As a result of the order of Dec­
ember 1, a work order was issued by the school district immed­

iately and preliminary excavation commenced.

Following the denial of the district court of an in­
junction pending appeal of its December 1 order, plaintiffs filed

I
a motion for an injunction pending appeal in the Eighth Circuit. 
Of particular importance was the fact that one of the issues 
raised on appeal was the propriety and constitutionality of 
placing the greater part of the burden of desegregating the 
schools in Little Rock on Black students.-^ Since the Eighth

4/ The district court's order of August 17, 1970, the subject 
of the current Eighth Circuit Appeal, approved (over plaintiffs' 
objections) the school board's plan to phase out the black Horace 
Mann High School over a three year period and reassign its stud­
ents to white schools in western Little Rock.

7

\ llA



I
II 

!'

i

I

l!!i

!|

j
agreed that an injunction pending appeal should issue in order 
to preserve the status quo until the court could review fully
on the merits the question of whether the school district should !

Ibe allowed to enlarge the facilities at Henderson. Despite 
this conclusion, the Court of Appeals conditioned the injunction |
on the posting of a $25,000 penal bond and refused to reconsider 'j
that condition after uncontradicted affidavits had been filed 
demonstrating that the plaintiffs were unable to furnish the 
required $25,000 cash collateral. As stated above, when a 
bond was not filed the injunction was vacated.

|As of February 23, 1971, the construction at Henderson 
has not progressed past its initial stages. The site had been 
excavated and work on the foundations had commenced. However, 
according to information received by the attorneys for the 
petitioners, such work as beginning the construction of walls, 
etc., had not been commenced.

JURISDICTION TO GRANT A STAY INJUNCTION

This application is brought pursuant to 28 U.S.C. §1651, 
the "All-Writs" statute. That section grants to this Court and 
individual Justices thereof the power to grant all orders 
necessary to preserve this Court's jurisdiction. The power 
extends to granting injunctions pending disposition of a 
petition for writ of certiorari (see, , Arrow Transportation
Co. v. Southern Railway Co., 9 L.ed.2d 36, 83 S. Ct. 1, opinion 
of Mr. Justice Black), pending the filing and disposition of 
a petition (see Davis v. Board of School Commissioners of 
Mobile, 38 U.S.L. Week 3220 (Dec. 13, 1969)), and pending the 
decision of an appeal in the lower federal courts when such an 
order is required to protect the ultimate jurisdiction of this

Circuit granted the injunction, it is clear that the court

8

I



jl
Court to review the matter on certiorari (see. Boomer v.
Beaufort County N.C. Board of Education and Felton v. Edenton- 
Chowan School Administrative unit, unreported, August 30, 1968

j !  (Mr. Justice Black in Chambers, vacating stay orders issued
I
! ^  the Fourth Circuit and reinstating injunctions pending
i decision of an appeal in the Fourth Circuit), Johnson v.

J Stevenson, 335 U.S. 801 (1948), and see discussion and cases 
cited in Robertson & Kirkham, Jurisdiction of the Supreme Court 

!| of t̂ le United States, §439 (2nd ed., wolfson & Kierland, 1951).
The present action falls into the last category. if an 

|j injunction is not issued the construction at Henderson Junior 
ji High will very probably proceed to or near completion before 

j| Court of Appeals decides the constitutional claims raised
below on the merits. if the construction is thus completed, 
the constitutional claims will thereby effectively be rendered 

' rooot and this Court will have no jurisdiction to review the 
]| decision of the Eighth Circuit.

REASONS WHY THE STAY INJUNCTION SHOULD ISSUE
II

A. An Injunction of the Construction at Henderson Junior High 
jj School is Necessary to Preserve Petitioners' ConstitutionalClaims.

It must be emphasized that the court of Appeals agreed, 
j by a 6 to 0 vote, with petitioners' contention that an injunction
I

should issue pending appeal so that the status quo might be
;

maintained while the court considered the merits of petitioners'
I .
I objections to the proposed construction. It was only because 
j *-he court divided 3 to 3 on the necessity for a bond that the 
injunction was vacated. However, although the bond requirement 
is thus the central issue in deciding whether the requested 
injunction should be granted, that question is largely dependent 
on the reasons why an injunction is necessary.

c V-

9



For a number of years the lower federal courts have 
!| recognized the central importance of the location of new school 
| facilities in the achievement of a unitary school system, 
ij Thus, in Gaines v. Dougherty County Board of Education. 392 
i| F-2d 669 (1968), the Fifth Circuit pointed out that unless 
jj school boards were required to locate facilites in order to 
| maximize desegregation, construction might proceed and a 
| district court could be faced with racially segregated schools
as a fait accompli. See also Sloan v. Tenth School District 
of Wilson County. 433 F.2d 587 (6th Cir. 1970). On a number of 
occasions, local federal courts have enjoined the construction 
of new or the expansion of existing schools where it was clear 
that they would serve one racial group. See, tj.£., Board of 

Public Education and Orphanage for Bibb County. 284 F.Supp.
888 (M.D. Ga. 1967).

il
|
||
ij

The present case presents a classic example of the 
necessity for close scrutiny of the location of new facilities.
It was uncontradicted, and the district court so found, that 
Henderson Junior High School is located in a section of Little 
Rock which is virtually all-white. Thus, absent transportation, 
the student body of the school would also be virtually all-white, 
as it in fact is today.

The district court, however, decided that an injunction need 
not issue since the facility could be desegregated by trans­
porting Black students from other parts of the city. This 
conclusion raises a number of significant issues which 

petitioners sought to be decided by the court of Appeals. First, 
the district court in effect rejected petitioners' claim that it 
was in and of itself a violation of the Fourteenth Amendment 
so to locate schools as to place on Black students the burden 
of desegregation. That is, in order to integrate Henderson

II

i

10



Junior High School, Black students and only Black students will 
have to travel great distances from their homes. On the other 
hand, there were before the court alternative proposals for 
providing additional junior high school facilities which would

Iresult in the burden of desegregation being minimized and being | 
equitably distributed between Black and white students. Second, i 
the district court's decision was based on an assumption that 
the school board would in fact be required to transport Black 
students. However, pending before this court, and as yet 
undecided, are school desegregation cases raising the issues 
of the extent to which school districts can operate so-called 
neighborhood schools and whether federal district court can 
require substantial transportation of public school students 
to accomplish desegregation. Davis v. Board of School 
Coirmissioners of Mobile County. Oct. Term 1970, No. 436;
Swann v. Charlotte-Mecklenburq Board of Education. Oct. Term 
1970, No. 281.

Obviously, the legitimacy of the proposed construction at 
Henderson Junior High School may be substantially affected by 
the decisions of the Eighth Circuit and this Court as to both 
issues. Whatever the ultimate rulings in these cases may be,

I
it is imperative that the status quo with regard to the school j 
be preserved so that the Court of Appeals may consider the issue 
fully without being faced with a fait accompli which will 
severely limit the remedies available to it. To illustrate 
the importance of flexibility in developing remedies, petitioners 
have attached hereto as Exhibit j a recent decision of the 
Eastern District of Virginia in Bradley v. School Board of the 
City of Richmond. C.A. No. 3353-r , Jan. 29, 1971. There, the 
court enjoined certain school construction on the ground that

I
the projects would be located in nearby all-white areas of the 1



; City' Since- under current legal standards, the schools would 
i; be Vlrtually all-white, the court declined to speculate as to 
| whether they could be integrated under future decisions of this 
S Court. Petitioners urge that the same considerations should 
; govern here and that the requested injunction should be granted 
so that the Court of Appeals may fully consider the question 

j on the appeal pending before it.
I
|j
| B. A Stay Injunction Should Not Be Conditioned on Providing a Penal Bond. y

As stated above, although the lower court unanimously 

!i held that an injunction pending appeal should issue, it split 
| 3 to 3 over whether the injunction should be conditioned on 
petitioners furnishing a bond in the penal amount of $25,000 to 

|j indemnify the school district against losses suffered if the 

j j  denial of injunction should be affirmed. Petitioners urge
|| that the bond requirement was in error for three reasons:

(1) it was an abuse of discretion to require a bond as a 
j| condition on protecting petitioners' constitutional right to 
the desegregation of the school system; (2) petitioners here 
demonstrated they were financially unable to furnish a bond; 
thus, the decision below effectively denied them their consti­
tutional rights because of their financial condition; (3) in 

j the present case, if the school district were to suffer financial 
loss it would be solely its own fault since it let the construc- 

|! tion contract without obtaining the prior approval of the district 
J court or the court of appeals in the face of a warning to get 
ij such approval.

First, the requirement of a penal bond as a condition on 

;! tbe granting of an injunction is discretionary under Rule 8(b), 
iFederal Rules of Appellate Procedure, and Rule 62(c), Federal 

h Rules of Civil Procedure. The provisions of those rules are

j

j

<ll>

- 12 -



essentially the same as the provisions of Rule 65(c) which 
deals with the initial issuance of an injunction by a district 
court. In each case action "may be conditioned upon the filing 
of a bond" (Rule 8(b), F.R.A.P.) "upon such terms. . . as [the
court] considers proper," (Rule 62(c), F.R.C.P.) and "in such 
sum as the Court deems proper" (Rule 65(c), F.R.C.P.).

It has long been established that not only the amount of 
a bond but also whether a bond should be required at all is in 
the discretion of the court. Continental Can Co. v. Frontier 
Refining, 338 F.2d 780 (10th Cir. 1964); Urbain v. Knapp Bros. 
Mfg. Co., 217 F .2d 810 (7th Cir. 1954), cert, denied, 349 U.S. 
930 (1955). In particular, the requirement of posting security 
has been dispensed with where to do otherwise would frustrate 
attempts at judicial review of government action claimed to be 
illegal, Powelton Civil Home Ass'n. v. Department of Housing & 
Urban Development, 284 F. Supp. 809 (E.D. Pa. 1968); Tennessee 
Public Service Commission v. united States, 275 F. Supp. 87, 91
(W.D. Tenn. 1967), and where an injunction is necessary to 
preserve the jurisdiction of the court, Dealtry v. Posse School, 
100 F .2d 470 (1st Cir. 1938); Swift v. Black panther Oil & Gas 

Co., 244 Fed. 20 (8th Cir. 1917).
Both of these considerations obtain here. Petitioners have 

raised a substantial question as to the constitutionality of the 
school district's proposed expansion of Henderson Junior High 
School. If that construction is not enjoined, the issue will 
become moot and the lower courts will either lose effective 
jurisdiction over the issue or will be greatly circumscribed in 
developing a remedy necessary to fully protect constitutional 
rights. Ĉ f. Federal Trade Commission v. Dean Foods Co.,
384 U.S. 597, 600 (1966), where this Court held that 26 U.S.C. 
§1651 (a) empowered the federal courts to enjoin a merger pending

- 13 -



!

I

I

a determination of its legality by the Commission, since 
"consummation of the agreement would 'prevent the Commission
from devising, or render it extremely difficult to devise,

1/
any effective remedy after its decision on the merits.'"

It was in light of these considerations that a Georgia 
district court granted an injunction prohibiting the proposed 
construction of a high school without requiring a bond.
Bivins v. Board of Public Education & Orphanage for Bibb County, 
284 F. Supp. 888, 898-99 (M.D. Ga. 1967). See also order of 
Judge Merhige in Bradley v. School Board of City of Richmond 
(E.D. Va.), No. 3353-R, Jan. 29, 1971, attached hereto as Ex. J, 
in which the court enjoined school construction without requiring 

a bond.
Next, even if in some circumstances the requiring of a 

bond would not be an abuse of discretion, it cannot be justified 
here, where it has been shown that the plaintiffs in a school 
desegregation case are financially unable to supply the required 
security. Petitioners here filed uncontradicted affidavits 
demonstrating their inability to furnish the cash security 
required by bonding companies (see Ex. G). Thus, a bond 
requirement has the effect of conditioning the vindication of 
petitioners' constitutional rights on their ability to pay for 
those rights. But this Court has consistently held that 
constitutional rights cannot be denied because of the financial 
condition of those seeking to assert them. Harper v. Virginia 
Board of Elections, 383 U.S. 663 (1966); Williams v. Illinois,

5/ See Kelly v. Altheimer, Arkansas Public School Dist.,
378 F.2d 483 (8th Cir. 1967), where because school construction 
was not enjoined pending appeal, the Eighth Circuit found itself 
unable to correct what it found to be an unconstitutional action 
See also, , Johnson v. Stevenson, 335 U.S. 801; Natural Gas
Co. v. Public Service Co., 294 U.S. 698, where injunctions were 
granted for similar reasons.

- 14 -

tl
li



399 U.S. 235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956)
(and, cf. the concurring opinion of Mr. Justice Stone in Hague v
C ■I,Q., 307 U.S. 496, 527 (1939), where it was pointed out that | 
constitutional rights "are of such a nature as not to be 
susceptible of valuation in money"). To construe the federal 
rules as requiring or even allowing a penal bond in these cir­
cumstances would raise serious questions as to the rules1 
constitutionality. As a district court has said recently, in 
rejecting the federal government's argument that an injunction

I
against proposed disbursal of urban renewal funds could not 
issue without a bond; "We cannot accept the proposition that 
Rule 65(c) was intended to raise virtually insuperable financial 
barriers insulating the agency's decisions from effective 
judicial scrutiny." Powelton Civic Home Ass'n. v. H.U.D., 
supra, at 840-841.

I
Finally, under the facts of this case it would be )

manifestly unjust to require petitioners to indemnify the 
school officials against any loss that they might suffer if an 
injunction issue. Simply stated, if the district does suffer 
any loss it will be because of its own acts. As pointed out 
by the dissenters below, the respondents had been warned not to 
go ahead with construction at Henderson without court approval 
(see Ex. I). If they had announced their intentions before 
letting the contract, the issues could have been litigated in 
the district court and an injunction sought in the Court of 
Appeals before any funds were committed and spent. Instead, 
respondents chose to proceed without following the district 
court's suggestion and entered into a contract before 
petitioners could bring the matter to the court's attention.

WHEREFORE, for the foregoing reasons, petitioners pray 
that this matter be expedited and that a stay injunction issue j

I

/ '•is-

15



immediately enjoining respondents, and each of them, from 
carrying out any further construction at the Henderson Junior 
High School in Little Rock, Arkansas, pending the decision of 
the appeal in this matter presently before the United States 
Court of Appe*als for the Eighth Circuit.

Respectfully submitted.

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

JOHN W. WALKER 
PHILIP E. KAPLAN

1820 West Thirteenth St. 
Little Rock, Arkansas 72202

Attorneys for Petitioners

By

- 16 -



IN THE
SUPREME'COURT OF THE UNITED STATES 

OCTOBER TERM, 1970 

No. ____

DELORES CLARK, et a l . ,
Petitioners,

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

RESPONSE TO APPLICATION FOR STAY INJUNCTION

HERSCHEL H. FRIDAY,
ROBERT V. LIGHT,
G. ROSS SMITH

1100 Boyle Building 
Little Rock, Arkansas 72201

Attorneys for Respondents



STATEMENT OF THE CASE

On July 30, 1970, the petitioners herein presented to the United 

States District Court for the Eastern District of Arkansas, Western Division, 

a Motion for Injunction Pendente Lite, in connection with the litigation then 

in progress concerning the desegregation plan which would be implemented 

by the Little Rock School District in the 1970-1971 and subsequent school years, 

requesting that the district court enjoin certain construction projects of the 

Little Rock School District. Among the projects specifically mentioned in 

the petitioners' motion was the addition to the Henderson Junior High School 

which petitioners now ask this Court to enjoin. In its August 17, 1970 opinion, 

which principally dealt with the substance of the integration plan to be imple­

mented, the district court referred to the motion seeking to restrain construction, 

but did not grant the requested relief.

In a subsequent opinion on September 24, 1970, again dealing 

principally with the substance of the desegregation plan of the district, the 

district court discussed the construction issue in more detail. At page 9 of 

its opinion, the district court responded to the expressed fear of counsel for 

petitioners that the Henderson project would hamper integration,* as follows:

" The Court is not persuaded that the fear of counsel 
is so well grounded as to move the Court to enjoin the 
construction of the improvements at Henderson at this 
time, assuming that the Court has jurisdiction to do so 
in the present posture of the case, or in terms to dis­
approve the construction in the course of evaluating the 
junior high school plan. The Court thinks, though, that 
the Board would be well advised not to commence work 
without the prior approval of this Court or of the Court of 
Appeals." Clark v. Board of Education, 316F.-Supp. 1029 
at 1215 (E.D. Ark. 1970).

*lt was this concern, and not an expressed fear that construction would be 
initiated during the pendency of the litigation as suggested at page 5 of 
petitioners' statement, to which the district court referred.



Thereafter, while the issue of the adequacy of the district's desegre­

gation plan was pending on appeal in the Eighth Circuit Court of Appeals, 

petitioners moved for a limited remand for the purpose of enabling the district 

court to decide whether the school district should be prohibited from proceed­

ing with the Henderson construction project. The district joined in the motion.

Following a remand for the limited purpose of considering the 

construction issue, the district court received evidence in the matter and 

on December 1, 1970, denied the request for injunction. A memorandum 

opinion was entered on December 8, 1970.

Because of the urgent need to complete the Henderson construction 

project before the opening of school for the 19 71-72 school year, school 

district officials had, prior to the district court's December ruling, begun 

the preliminary steps involved in letting a contract for the construction work.

The district advertised for bids; the bids were opened on October 27, 1970 

and the Board approved the substance of a proposed contract to be let to the 

successful bidder. However, the contract was not executed by the school 

district, nor a work order issued, until after the district court had refused to 

enjoin the project. Construction was commenced shortly thereafter (Exhibit A 

to Application, p. 4; Exhibit A hereto).

On December 28, 1970, the court of appeals, in response to a 

motion filed by the petitioners, issued an order authorizing the grant of an 

injunction restraining the Henderson project upon the filing by the petitioners 

of a bond in the amount of $25,000.00 to indemnify the school district in the 

event that the injunction was ultimately determined to have been improvidently 

granted. No time limit was set for the filing of the bond. As of January 8,

1971, the petitioners had not posted the bond but the district had ordered con­

struction halted in an effort to minimize damages in the event that such a

-2-



bond should be posted and an injunction issued. On the latter date, the 

district filed in the court of appeals a motion urging either a reconsideration 

of the authorization for the injunction, the setting of a specific time within 

which the petitioners should post bond or an increase in the amount of the 

bond to be required, the principal purpose of the motion being to alleviate the 

plight of the district which resulted in its being unable to continue the con­

struction project because of the possibility that a bond would be posted at 

any time, and bearing the heavy expense of the construction interruption with­

out the protection of a bond (Memorandum in Support of respondents' January 8, 

1971, Motion). In response to the district's motion, the court of appeals 

entered an order on January 20, 1971, specifying that unless the petitioners 

filed a sufficient bond on or before February 1, 1971, its previous order 

authorizing the issuance of an injunction would be vacated. No such bond 

was presented and on or about February 1, the district resumed construction 

at the Henderson site. Because of the delay involved in the stoppage of con­

struction, the district was required to execute a contract change order which 

required an additional expenditure by the district of the sum of $8,735.93, 

which amount directly resulted from the delay (Exhibit B hereto).



STATEMENT Or TACTS

The construction project sought to be enjoined was conceived in 

1961 as the second phase of a two-phase plan to construct the Henderson 

Junior High School in the Little Rock, Arkansas school district as a facility 

which would ultimately accommodate approximately 1,250 students. The 

initial phase of construction was completed in 1965 with the result that 

the classroom capacity at the school was adequate to house 750 students, 

while the auditorium, laboratories, bandroom, library, e tc ., would serve 

an additional 500 students, the classroom space for which would be provided by 

the second phase of construction. The present enrollment at the facility is 

approximately 1,100 students and 52 faculty members, resulting in a serious 

overcrowding condition to both students and faculty. Four portable classrooms 

are in use to provide additional classroom space and teaching stations. How­

ever, these facilities are inadequate to provide teaching stations for all of the 

faculty members at the site with the result that eight teachers have no assigned 

teaching station. The proposed construction project will eliminate the need 

for these portable facilities and will increase the overall capacity of the facility 

in accordance with the initial conception of its size (See generally Exhibit A 

to Application).

The district's desegregation plan now before the Eighth Circuit 

Court of Appeals provides that Henderson Junior High School will in 1971-72 

serve seventh and eighth grade students and is projected to be a "racially 

balanced" school with an enrollment of approximately 900 white students and 

300 black students (Id p. 6; See Table III of Ex. 1 to September 1 Revised 

Desegregation Plan, filed in the district.court September 1, 1970, a copy of 

which is attached hereto as Exhibit C).

On
-4 -



After hearing the evidence on this construction issue, the district 

court found, as fact, that "(T)he contemplated improvements at Henderson 

will not affect the integration of that facility one way or another provided 

that racial balance within the school is maintained. " (Exhibit A to Applica­

tion, p. 10.) As has been noted, the district has committed to achieve racial 

balance at Henderson for the 1971-72 school year.

The granting of petitioners' Application would subject the respondents 

to the risk of substantial monetary loss (in excess of the already incurred 

expense of $8,735.93 which is attributable solely to the previous delay in 

construction) and seriously impair their ability to complete the proposed con­

struction in time to minimize the disruption of classes during the first part of 

the 1971-72 school year when the project will be needed to adequately house 

students and faculty members at the Henderson campus. The need for addi­

tional capacity will exist regardless of the type of desegregation plan which 

the district ultimately implements at the junior high school level in 1971-72 

(Exhibit A to Application p. 7; Exhibit D hereto).

The petitioners' description at page 8 of the Application of the 

present status of construction is not entirely accurate. Although the con­

struction of walls has not yet begun, the entire foundation is complete, the 

underground plumbing, consisting of sewer, water and gas lines, is essentially 

complete, and the construction crew has only recently been able to resume 

operations at the normal pace, after a delay of approximately thirty days 

(Exhibit A hereto).

-5-



REASONS WHY RELIEF SOUGHT BY PETITIONERS 
SHOULD NOT BE GRANTED

Respondents submit that the circumstances involved in the 

construction plans for the addition to Henderson Junior High School by the 

Little Rock School District, when construed in light of applicable decisions, 

are not such as to warrant the intervention, through the grant of injunctive 

relief, of the federal judiciary. Certainly, officials of a school district 

Involved in the desegregation process are constitutionally obliged to fully 

consider the effects of its construction programs on the desegregation process, 

to refrain from adopting and implementing projects which would frustrate or 

interfere with the district's obligation to achieve a unitary system, and, to 

the extent consistent with the proper operation of the educational system as 

a whole, devise and implement its construction plans for the affirmative 

purpose of furthering the disestablishment of a dual school system. See e . g . , 

United States v. Board of Public Instruction of Polk County. Florida. 395 F.

2d 66 (5th Cir. 1968); Lee v. Macon County Board of Education. 267 F. Supp. 

458, 481 (M.D. Ala. 1967). Thus, where no consideration has been given by 

district officials to the effect on desegregation of a construction project.

United States v. Board of Public Instruction of Polk County, Florida, supra. 

where the need for the proposed facility will not be known until the adoption 

of a new desegregation plan, Davis v. Board of School Commissioners of 

Mobile County, 414 F. 2d 609 (5th Cir. 1969), where a proposed new school 

is clearly intended by district officials to be identifiable as a Negro facility, 

Bivins v. Board of Public Education. 284 F. Supp. 888 (M.D. Ga. 1967), and 

where construction plans are found to be based on a desire to preserve the 

dual school system, Kelley v. Altheimer, Arkansas Public School District No. 22.

-6-
o-



None of the circumstances involved in the foregoing cases are 

present in the construction project involved in the Application. The 

proposed addition to Henderson will, in the opinion of the professional 

educators of the district, be needed for the 1971-72 school year regardless of 

the type of desegregation plan then in effect and such need has been determined 

upon the basis of sound educational and administrative considerations with 

due regard given to the effects of the project upon the desegregation program 

(Exhibit D hereto). The district court found that the proposed projects would 

not impede or frustrate the achievement of a unitary system (Exhibit A to 

Application p . 10).

It must be recognized that even school districts involved in the 

desegregation process must at times embark upon construction activities 

which are supported by sound educational and administrative considerations 

but which may have neither a frustrating nor promoting effect upon desegre­

gation activities. In such "neutral" projects, which the district court found 

the Henderson project to be, the federal courts should not interfere with the 

considered determinations of elected school district officials and their 

administrative personnel, particularly where the disruptive effects, both 

educational and financial, of federal intervention are substantial. Moreover, 

to the extent that the additional classrooms will enable the district to 

accommodate the 900 white students and 300 black students which are pro­

jected to be attending Henderson in 1971-72, the construction will facilitate 

integration.

Petitioners' assertion that the district's present desegregation plan 

for the junior high schools will achieve integration at the sole expense of

378 F .2 d  483 (8th C ir . 1967), the construction programs are properly en jo in ed .

-7 -



black students Is simply not accurate. For example, all children in the 

district in grade nine (except those residing in the attendance area for the 

Booker-Mann Complex, an innovative compensatory education center) will 

attend either Dunbar or Pulaski Heights School, the former being located in 

the eastern section of the City and surrounded principally by black residential 

areas. Most of the 720 white students who are projected to be attending 

Dunbar next year will also have to travel substantial distances from their 

homes to attend this facility (Exhibit A hereto). Nor is the petitioners' 

discussion of the existence of a proposal for building an additional junior 

high school which would be more centrally located between white and black 

residential areas accurate. The school district presently has no plans for 

construction of such a facility; Superintendent Parsons merely indicated that 

"the ultimate construction of such a school is not beyond the thinking of 

the Board;" that such construction is not imminent and that in any event, 

the possibility of such a school being built does not obviate the necessity 

for continuing with the addition to Henderson Junior High School (Exhibit A 

to Application p. 8-9).

Respondents attach hereto Affidavits of Floyd Parsons, Superintendent 

of Little Rock School District (Exhibit D) , John Stowers, the contractor 

employed to accomplish the Henderson project (Exhibit E), and Lynn W assell, 

the architect retained by the Little Rock School District in connection with 

the Henderson project (Exhibit F). It is respectfully submitted that these 

Affidavits, which were presented to the Court of Appeals in connection with 

the district's January 8, 1971 Motion, clearly demonstrate that the Court of 

Appeals correctly conditioned the petitioners' right to injunctive relief upon 

the filing of a bond.

-8-



The purpose of security requirements imposed as a condition to

the issuance of injunctive relief is of course to provide " . . .  for the payment 

of such costs and damages as may be incurred or suffered by any party who 

is  found to have been wrongfully enjoined or restrained. " See Fed. R. Civ.

P. 65 (c). Recoverable damages under such bonds are those directly attrib­

utable to the injunction and which are incurred or suffered as a result of the 

wrongful restraint. 7 Moore Federal Practice. 65.10(1)

At the time of the respondents' January 8, 1971 Motion in the court 

of appeals, the types of expenses and damages directly related to an injunction

prohibiting further construction in the Little Rock district at the Henderson 
2

School were as follows:

A. Increases in the labor costs of the contractor because of 

the deferral of construction activities until dates on which applicable 

collective bargaining agreements call for wage rate increases. Stowers 

Affidavit p. 1, 2-3.

B. Increases in material costs because of inability to place 

firm purchase orders before dates on which price increases become effective. 

Stowers Affidavit p. 2 and Exhibit 2 thereto.

C. Expense involved in the installation and subsequent dis­

mantling upon dissolution of the injunction, of temporary protective measures 

which"must be installed at the job site to insure the safety of students,

Article 14.1.1 of the contract applicable to the Henderson project 
provides as follows:

" If the Work is stopped for a period of thirty days under 
an order of any court or other public authority having juris­
diction, through no act or fault of the Contractor or a Sub­
contractor or their agents or employees or any other persons 
performing any of the Work under a contract with the Con­
tractor . . . then the Contractor may, upon seven days' 
written notice to the Owner and the Architect, terminate the 
Contract and recover from the Owner payment for all Work 
executed and for any proven loss sustained upon any materials, 
equipment, tools, construction equipment and machinery, in­
cluding reasonable profit and damages. "

-9 -



Stowers Affidavit p.3; Was sell Affidavit p .l.

D. Damages and a reasonable profit which may be claimed 

from the district by the contractor upon the latter's termination of the 

contract. (See note 2 supra.)

E. Expense to the district of providing other facilities during 

the 1971-72 school year for those students who were intended to be housed 

in the addition to Henderson. Parsons Affidavit (Exhibit D) p. 1-2.

Petitioners' contention on page 15 of their Application that 

"respondents chose to proceed (with preparations for the Henderson con­

struction) without following the district court's suggestion and entered into 

a contract before petitioners could bring the matter to the court's attention," 

is simply an erroneous distortion of the record. Because of the urgent need 

to complete the proposed addition before the commencement of the 1971-72 

school year, the district did advertise for bids, and after the bids were opened 

on October 27, a contract for the construction work was signed by the success­

ful bidder, John E. Stowers, Inc. of Little Rock (Exhibit A to Application p.4). 

However, the school district did not execute the construction contract, did 

not issue a work order and did not commence construction, until after the 

district court had refused to enjoin the project (Ibid; Exhibit A hereto). Before 

taking any of these steps, notwithstanding the critical need to start construction, 

the school district filed a Motion in the district court seeking approval of the 

project and joined petitioners in a Motion for limited remand in the court of 

appeals in order to vest the district court with jurisdiction to pass on the matter.

teach ers and other in d iv idu als in the v ic in ity  of the construction  s i t e .

-10-



CONCLUSION

As was noted in Freeman v. Gould. 405 F.2d 1153 (8 Cir. , 1969)

cert, denied 396 U.S. 843 by a panel of the court of which the Circuit Justice 

to whom this Application is addressed was a member:

School boards are representatives of the people, and 
should have wide latitude and discretion in the operation 
of the school district, including employment and rehiring 
practices. Local autonomy must be maintained to allow 
continued denocratic control of education as a primary 
state function, subject only to clearly enunciated legal 
and constitutional restrictions."

Intervention by the federal judiciary into the operations and

administrative decisions of the public schools has been with us for over a 

decade and a half. However, as noted by the court in Freeman, unless some 

limitations are observed the risk is great of destroying the institution of 

public education in this nation.

It is submitted that the district court correctly recognized these

limitations when it declined to enter an injunction. While we think the Court 

of Appeals erred when it ordered an injunction entered on the facts reflected 

by the record in this case, it clearly was a sound exercise of its discretion 

to mitigate the damage occasioned by its order to require a bond that would at 

least partially protect against the certain monetary loss the school district

Respondents respectfully urge that the Application be denied.

would sustain.

Respectfully submitted,

HERSCHELH. FRIDAY 
ROBERT V. LIGHT 
G. ROSS SMITH 
1100 Boyle Building 

'Lit

By

-11-



OFFICE OF THE CLERK 

SUPREME COURT OF THE UNITED STATES 

WASHINGTON. D C.. 205-43

E. R O B E R T  SHAVER March 22, 1971
CLCKK or TH* COUHT

Jtobert V. Light, Esq.
Snith, tfllllans, Friday & B o m  
1100 Boy la Bldg.
Llttla Rock, Ark. 72201

REl BD. OF EDUCATION OF TUB LITTLE ROCK 
SCHOOL DISTRICT, ET AL. v. CALRK. ET

The Court today entered the following order in

The application for a stay restraining tha respondents 
fro« continuing any construction at Henderson Junior High 
School in Little Rock, Arkansas, pending final disposition 
of all issues presented in case Mo. 20485 now 
before the united States Court of Appeals for tbs Eighth 
Circuit, which application was presented to Ur. Justice 
Blnck, and by bin referred to the Court, is granted. Mr. 
Justice Blackwun took no part in the consideration or 
decision of this application.

Dear Sir:

the above-entitled case:

cc t Clerk
U.S. Court of Appeals Very truly yoursfor the Eighth Circuit 
530 U.S. Courthouse 
St. Louie, Mo. 83101

/

cc: 'kernes m .
Suite 2030
10 Co limbus Circle
New York, N.Y. 10019



March 23. 1971

Hon. Carl W. Reuss. Clark 
United States Court of Appeals

for the Sixth Circuit 
Cincinnati. Ohio 45202

Re> No. 71-1174
Northcross. et al. v.
Board of Educ. of Memphis, et al

Dear Mr. Reuss:
On March 22. 1971. the Supreme court of

the United States granted an application for an 
injunction restraining certain construction by the 
Little Rock. Arkansas School District.

relevant to the Motion for Injunction Pending Appeal 
[Motion to Enjoin School Site Purchase and Construc­tion] now under submission in this cause.

letter as well as three additional copies of the 
Supreme Court's order and related orders of the 
United States Court of Appeals for the Eighth Circuit. 
I would greatly appreciate your distributing this 
material to the mesfeers of the panel considering 
the motion.

This action by the Supreme Court is very

I enclose three additional copies of this

Thank you for your consideration.

cc» Jack Petree. Esq.
Louis R Lucas. Esq.

I O  C O L U M B U S  C I R C L E N E W  Y O R K  1 9 .  N .  Y .



71-1174

CARL W. REUSS
C L E R K

O F F I C E  O F  T H E  C L E R K

UNITED STATES COURT OF APPEALS
F O R  T H E  E IX T H  C I R C U I T  

CINCINNATI. O HIO  4 9 2 0 2

March 25, 1971

Mr. Norman J. Chachkin 
10 Columbus Circle 
New York, New York

Re: Northcross, et al vs.Board of Education of Memphis, 
et al 71-1174

Dear Mr. Chachkin:
Your letter dated March 23 and the copies of papers 

attached thereto were received today. I return these copies 
for the reason that this Court has denied the motion of 
appellants for an injunction and has ^ ^ " o fof the District Court by order entered March 24. A copy 
that order was mailed to your office and apparently the 
enclosed papers crossed in the mails.

Yours very truly,

(L jl o . *Carl W. Reuss, Clerk
CWR:psp 
EncIs.CC: Mr. Jack Petree

900 Memphis Bank Bldg. 
Memphis, Tenn. 38103
Mr. Louis R. Lucas 
Ratner, Sugarmon & Lucas 
525 Commerce Title Bldg. 
Memphis, Tenn. 38103

/ :>