Pulaski County Special School District No. 1 v. Little Rock School District Response to Petitions for Writs of Certiorari

    No. 85-1316 and No. 85-1547

3 n  tfje

Supreme Court ot tfje THnitcb S ta tes
October Term, 1985

PULASKI COUNTY SPECIAL SCHOOL DIST.,
NO. 1, ET A L .,............................................. PETITIONERS

v. No. 85-1316

LITTLE ROCK SCHOOL DISTRICT,
ET A L .,.....................................................RESPONDENTS

ARKANSAS STATE BOARD OF
EDUCATION, ET A L .,...........................PETITIONERS

V. No. 85-1547

LITTLE ROCK SCHOOL DISTRICT,
ET A L .,..................................................... RESPONDENTS

RESPONSE TO PETITIONS 
FOR WRITS OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

PHILIP E. KAPLAN*
KAPLAN, BREWER &  MILLER 
415 Main Place 
Little Rock, AR 72201 
(501) 372-0400

JOHN M. BILHEIMER 
324 West Fourteenth 
Little Rock, AR 72202 
(501) 3744944

P.A. HOLLINGSWORTH 
HOLLINGSWORTH & HELLER 
415 Main Place 
Little Rock, AR 72201 
(501) 374-3420

JANET L. PULLIAM 
350 Gazette Building 
Little Rock, AR 72201 
(501) 371-3888

*Counsel of Record

4



1

QUESTIONS PRESENTED

1. Whether the factual findings of a district court in a 
school desegregation case will be given the same 
weight and be subject to the same standards of review 
as will factual findings of trial courts in other types of 
cases.

2. Whether a district court may find racial motivation in 
a sudden hardening of school district boundary lines 
from circumstantial and other indirect evidence, 
including a forty-year history of cooperation in 
boundary changes.



11

I N D E X
Page

QUESTIONS PRESENTED ................................................ i

TABLE OF AUTHORITIES................................................ ii

STATEMENT OF THE CASE ............................................. 1

REASONS WHY THE WRITS SHOULD
NOT BE GRANTED...................................................... 4

I. The plaintiff met the standards set
forth in the Milliken case which justify 
interdistrict re lie f........................................................5

II. Certiorari should not be granted because
the lower court’s ruling is entirely consis­
tent with this Court’s recent decisions......................8

III. There is no significant conflict among 
the Circuit Courts of Appeal in the field 
of interdistrict remedies for school
segregation ................................................................15

CONCLUSION ....................................................................18

TABLE OF AUTHORITIES
Page

Anderson v. City of Bessemer City,
105 S.Ct. 1504 (1985)................................................8, 12

Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977)......................12

Armour v. Nix, 446 U.S. 930 (1980)..................................... 16

Columbus Bd. of Ed. v. Penick, 443 
U.S. 449 (1979)......................... 9



Dayton Bd. of Ed. v. Brinkman, 433 U.S.
406 (1977) (“Dayton D ............................................... 13

Dayton Bd. of Ed. v. Brinkman, 433 U.S.
526 (1979) ("Dayton I D ................................................ 13

Goldsboro City Bd. of Ed. v. Wayne 
County Bd. of Ed., 745 F.2d 324 
(4th Cir. 1984)................................................................16

Green v. New Kent County, 391 U.S. 430 (1968)............... 17

Keyes v. School Dist. No. 1, Denver, Col,
413 U.S. 189(1973)........................................................ 14

Lee v. Lee County Bd. of Ed., 639 F.2d
1243 (5th Cir. 1981)...................................................... 16

Milliken v. Bradley, 418 U.S.
718(1974)................................................... 4, 5, 6, 8, 9,13

Penick v. Columbus Bd. of Ed., 583 F.2d
787 (6th Cir. 1978)........................................................ 14

Pullman-Standard v. Swint, 456 U.S. 273 (1982)..................8

Swann v. Charlotte-Mecklenburg Bd. of Ed.,
402 U.S. 1 (1971)..............................................................7

Zinnamon v. Bd. of Ed. of Pulaski County 
School Dist., No. LR-68-C-154 
(E.D. Ark. 1973)

iii

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No. 85-1316 and No. 85-1547

3 n  tfje

Supreme Court of tfjc ©mich States!
October Term, 1985

PULASKI COUNTY SPECIAL SCHOOL DIST.,
NO. 1, ET A L „ ............................................. PETITIONERS

v. No. 85-1316

LITTLE ROCK SCHOOL DISTRICT,
ET A L .,......................................................RESPONDENTS

ARKANSAS STATE BOARD OF
EDUCATION, ET A L .,...............................PETITIONERS

V. No. 85-1547

LITTLE ROCK SCHOOL DISTRICT,
ET A L .,......................................................RESPONDENTS

RESPONSE TO PETITIONS 
FOR WRITS OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

STATEMENT OF THE CASE

This response is submitted to two petitions for certiorari, 
those filed by the Pulaski County School District and its 
members (hereafter “PCSSD” or “County District”), No. 
85-1316, and by the Arkansas State Board of Education and its 
members (“State Board”), No. 85-1547. Respondent Little Rock 
School District (“LRSD”) accepts for the most part the 
statement of facts in the petition filed by the PCSSD. There are



2

a few points omitted from PCSSD’s statement, however, and in 
a few instances that statement misstates or misrepresents the 
facts of the case. This statement will seek to supply those 
omissions and rectify those errors.

The PCSSD was created in 1927 as a result of a special • 
state legislative act allowing consolidation of a number of small 
school districts in Pulaski County outside the cities of Little 
Rock and North Little Rock. The two cities had their own 
school districts. As the two cities expanded over the years, 
their respective school districts also expanded. The Pulaski 
County Board of Education (the “County Board”), a 
governmental agency distinct from the PCSSD but also a 
defendant in this case, is the body which must approve 
transfers of territory between school districts. It did in fact 
approve many such transfers from PCSSD to LRSD and to the 
North Little Rock School District (“NLRSD”) over a period of 
decades. The County Board recognized the historical basis for 
the existence of the PCSSD as that of serving students outside 
the Cities of Little Rock and North Little Rock in 1944, in a 
formal resolution stating that the PCSSD should embrace only 
that territory located outside the two cities. All parties —the 
County Board and the three school districts — acted in 
accordance with this principle from 1927 to 1968. The two city 
districts grew as the cities themselves grew, not in absolutely 
precise lockstep, but in very nearly identical spurts. The 
County District shrank correspondingly, giving up territory 
willingly to the city districts for some forty years.

After 1968, however, during a time of substantial growth 
of the cities themselves (especially the City of Little Rock), this 
process stopped abruptly. The result is that today about forty 
per cent of the City of Little Rock lies outside LRSD and 
remains in the PCSSD. Some seven or eight thousand students 
live in this area, and thus attend PCSSD schools even though 
they are residents of the City of Little Rock.

LRSD differs with PCSSD’s statements concerning the 
status of desegregation in the PCSSD itself. PCSSD does not



3

utilize busing for desegregation purposes to any great extent, 
and the result is that a large number of its schools remain 
racially identifiable. PCSSD Appendix, A-31, A-125. [All 
references to an Appendix will be to the Appendix to PCSSD’s 
Petition for a Writ of Certiorari, and will be indicated simply by
the page designation “A-___ ”.] The faculty and staff of the
PCSSD are likewise not yet desegregated in many respects. 
A-32. PCSSD thus has not achieved “desegregation at all 
levels,” as it states that it has.

Finally, the PCSSD carefully omits any mention that 
the uncontradicted evidence shows that whites who move to 
the Pulaski County metropolitan area tend to move in 
disproportionate numbers to the PCSSD, and specifically to 
the areas served by new, identifiably-white schools recently 
constructed by the PCSSD. A-123. PCSSD’s own expert 
witness acknowledged this pattern of movement. Those 
identifiably-white schools have been built since the entry of 
the 1973 decree in PCSSD’s desegregation case, Zinnamon 
v. Bd. of Ed. of Pulaski County School Dist., No. LR-68- 
C-154 (E.D. Ark. 1973), and in violation of the school-siting 
provisions of that decree. A-30, A-31.



4

REASONS WHY THE WRITS 
SHOULD NOT BE GRANTED

There is no reason why either of these two petitions for 
certiorari should be granted, and there are three reasons 
why they should not. First, the plaintiff LRSD amply met 
the standards set by this Court in the seminal interdistrict 
school desegregation case, Milliken v. Bradley, 418 U.S 718 
(1974) (hereafter “Milliken”), for a plaintiff who seeks an 
interdistrict remedy. Second, both petitioners have ignored 
recent decisions by this Court which unequivocally support 
the rulings of the courts below. Third, there is no conflict 
among the circuit courts of appeals in the area of 
interdistrict school desegregation law, despite the claims 
made by the petitioners to the contrary.



5

I. THE PLAINTIFF MET THE STANDARDS SET FORTH 
IN THE MILLIKEN CASE WHICH JUSTIFY INTER­
DISTRICT RELIEF.

To begin with the Milliken decision itself, that case sets 
forth three distinct grounds on which interdistrict relief 
could be based in desegregation cases. Each of these three 
grounds is alone a sufficient basis for interdistrict relief. 
Each is present in this case. The three Milliken predictates 
for interdistrict relief are that such relief is warranted (a) 
where actions of the state or its constituent agencies and 
officials have caused significant interdistrict segregation; 
(b) where actions of one or more school districts have caused 
significant interdistrict segregation; or (c) where boundary 
lines between districts have been drawn on the basis of 
race. 418 U.S. at 745.

Under Milliken, the actions and omissions of a state, 
standing alone, can provide the basis for interdistrict relief. 
This point is wholly overlooked by the petitioning PCSSD. 
There are numerous actions of the State of Arkansas and its 
officials and its constituent agencies in the present case 
which were found by the district court to have contributed 
significantly to the interdistrict segregation now found in 
Pulaski County. Many of them, including the deliberately 
segregative actions of the Governor of the State, are 
detailed in the opinion of the Court of Appeals, at A-10 
through A-24. Others include the acts and omissions of the 
City of Little Rock, the City of North Little Rock, Pulaski 
County, the Arkansas Real Estate Commission, and the 
Little Rock Housing Authority, all creatures of the State, 
which combined to provide a substantial amount of black- 
occupied public housing within the LRSD but none in the 
PCSSD. A-112 through A-114.

PCSSD’s petition misrepresents the findings and the 
evidence regarding  the several housing-related 
constitutional violations. It claims that no interdistrict 
effects arose from those violations. However, the evidence



6

is uncontradicted that public housing acts as a magnet 
factor for blacks. The fact that no public housing was ever 
built in the PCSSD, although there was ample statutory 
authority for doing so and although there is a large amount 
of public housing in the LRSD, means that this magnet 
factor draws black families into the LRSD and not into the 
PCSSD. The district court so found. A-114. Yet, in the face 
of these findings, the PCSSD says or implies that there is no 
interdistrict effect attributable to the location of public 
housing.

Where states’ actions and omissions are as numerous 
and pervasive as those found in the present case, they 
would warrant substantial interdistrict relief, even if 
standing alone. The respondent LRSD need not and does 
not rely on the acts and omissions of the State of Arkansas 
alone to support the interdistrict remedy ordered below, 
since there are concurrent and extensive violations on the 
part of the PCSSD causing interdistrict effects. However, 
since Milliken clearly states that the actions of a state or of 
local school districts, which have an interdistrict 
segregative effect, can give rise to an interdistrict remedy, 
it is somewhat disingenuous of the PCSSD to ignore this 
entire alternative rationale for interdistrict relief.

The second Milliken predicate for an interdistrict 
remedy is that such a remedy is proper where actions and 
omissions of school districts themselves produce 
interdistrict segregation. There are extensive factual 
findings on the issues of PCSSD’s constitutional violations 
and resulting interdistrict segregation. Two courts have 
recited them at length, but some of them will be listed 
again: PCSSD has built new schools in locations which serve 
to promote racial separation (A-30, A-32, A-122); its busing 
practices further exacerbate the racial identification of its 
schools (A-31, A-125); it buses a disproportionately large 
number of black students (A-31); it has hired and promoted 
too few black staff members (A-32, A-125); it discriminates



7

against black students in its special education program 
(A-32, A-127, A-128); it has closed schools in black 
neighborhoods (A-30); and it has egregiously failed to 
follow the terms of its court-approved desegregation plan 
(A-30 through A-32, A-120, A-124). All these violations have 
been found to have interdistrict segregative effects.

The PCSSD once more misrepresents the evidence and 
the lower courts’ findings in regard to its having placed new 
school buildings in areas of white population distant from 
the black community, in violation of its own desegregation 
decree and of this Court’s mandate in Swann v. Charlotte- 
Mecklenburg Bd. of Ed., 402 U.S. 1 (1971). There is ample and 
uncontradicted evidence that these new schools were built 
in areas of white expansion and that they were kept white 
through the PCSSD’s student-assignment practices. 
PCSSD’s own expert witness acknowledged that whites 
moving into the overall metropolitan area tended to migrate 
toward these new schools.

The evidence is in fact virtually overwhelming as to the 
segregative, interdistrict effect of the PCSSD’s site- 
selection practices. This is not a case which deals solely with 
demographic trends, occurring in a vacuum, unrelated to 
the acts of governmental bodies; this is a case of widespread 
constitu tional violations com m itted by several 
governmental actors. All PCSSD’s acts were found by the 
two lower courts to have contributed to today’s segregated 
conditions in Pulaski County.

The third basis for interdistrict relief is that it is 
appropriate where district boundaries have deliberately 
been drawn on the basis of race. In Pulaski County, there 
was a tradition of LRSD expansion and PCSSD deannexa­
tion as the City of Little Rock expanded. That practice 
stopped abruptly after 1968. There have been conflicting 
explanations as to the reasons for the cessation of LRSD 
expansion, but the district court resolved that conflict by 
finding that the PCSSD’s “acts of freezing its boundaries to



8

discontinue the practice of allowing city and Little Rock 
School District boundaries to remain coterminous springs 
from an unconstitutional racial motive.” A -lll1 Thus we 
have in this case, instead of a drawing of boundary lines 
because of race, a failure to redraw boundary lines because 
of race. The third of the Milliken grounds for interdistrict 
relief has therefore been established. In sum, all of the three 
separate methods which Milliken sets forth as warranting 
interdistrict relief are present in this case.

II. CERTIORARI SHOULD NOT BE GRANTED 
BECAUSE THE LOWER COURT’S RULING IS 
ENTIRELY CONSISTENT WITH THIS COURT’S 
RECENT DECISIONS.

The second reason why certiorari should not be 
granted is that the petitioners’ arguments fly in the face of 
recent rulings of this Court. The petitioners completely 
ignore three such holdings. The most obvious instance of 
their avoiding mention of Supreme Court rulings is, as 
shown above, the manner in which the alternative Milliken 
bases for relief are systematically overlooked.

The second set of Supreme Court decisions which the 
petitioners disregard relates to their utter failure to 
recognize the role of a trial court as the finder of facts. This 
Court has recently emphasized the importance of this 
function, particularly in civil rights cases, recognizing the 
importance of the trial court’s role in making complex 
factual determinations. Anderson v. City of Bessemer City, 
105 S.Ct. 1504 (1985); Pullman-Standard v. Swint, 456 U.S. 
273 (1982) (hereafter “Swint”). The petitioners never 
mention either of these decisions. Instead, they quarrel at

1 Since PCSSD admits that boundary-freezing would justify 
interdistrict relief, it argues with the lower courts’ findings on this issue. 
Its arguments are discussed more fully below, in connection with the 
appropriate role of the district court in making factual determinations.



9

length with the district court’s (and the appellate court’s 
affirmance of the district court’s) findings that there were 
significant countywide, interdistrict effects flowing from 
the numerous constitutional violations, but they never 
acknowledge that those findings are factual ones. They 
imply that factual findings such as these are not really 
factual findings at all, but have somehow become 
transmuted into questions of law. Such questions will 
usually be difficult ones, but they remain questions of fact. 
Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 470-471 
(Stewart, J., concurring). The petitioners’ position on issues 
like these is rather like that of the Fifth Circuit before this 
Court’s decision in Swint, supra; they would like for 
questions of this type to be called “ultimate” questions of 
fact and to be subjected to some lesser standard of review 
than “subsidiary” or “primary” questions. They do not make 
that argument squarely, of course, because it is squarely 
foreclosed by Swint, but that is exactly what their 
argument means.

PCSSD argues that it was not guilty of refusing to 
allow the decades-old process of transfer of territory from 
PCSSD to LRSD to continue. If any district lines have been 
drawn or maintained on the basis of race, an interdistrict 
remedy is appropriate, as PCSSD admits. Milliken, 418 U.S. 
at 744-45. While grudgingly acknowledging that the district 
court found that race was a motivating factor in this 
hardening of the boundaries, and that this fact finding was 
approved by the Court of Appeals, PCSSD argues that 
there are no underlying facts upon which the district court 
could make this finding.

PCSSD asks this Court to look only at whether or not 
there had been a petition for deannexation since 1968. This 
argument is not only politically naive, but it ignores the 
evidence before the trial court and the facts from which 
inferences are drawn. All who have served on public bodies 
and most of those who have not recognize that political 
decisions are made in private meetings, executive sessions,



10

and exchanges between governmental entities. The actual 
petition for governmental action is often a mere formality 
for decisions already made. The puzzle of why the PCSSD 
suddenly hardened its boundaries was carefully focused in 
the district court at the trial of this case, and the court 
found that race was a motivating factor.

From its inception in 1927, the newly-created PCSSD 
was intended to include all the area in Pulaski County that 
lay outside the Cities of North Little Rock or Little Rock, 
and the boundaries of LRSD and NLRSD were to remain 
coterminous with their respective cities. This historic 
intention was reiterated in the statements found in a 1944 
resolution of the Pulaski County Board of Education:

It is, therefore, by the Board ordered that all of Pulaski 
County, outside the territory embraced in the cities of 
Little Rock and North Little Rock, be created and 
organized into a special school district to be named and 
known as Pulaski County Special School District.

From its creation until 1968, the PCSSD participated 
and cooperated in a practice of allowing both the NLRSD 
and LRSD to expand their boundaries as city boundaries 
expanded, to remain coterminous. On the north side of the 
river, this intention was exemplified by the PCSSD’s 
concurrence in NLRSD’s use of “natural attendance zones.” 
These were areas of new residential housing bordering the 
NLRSD. Students living in these areas were allowed to 
attend the NLRSD without tuition or any formal transfer 
procedure. This practice continued until the late 1960’s. 
Further evidence of PCSSD’s cooperation in maintaining 
coterminous boundaries was NLRSD’s placing its 
Northeast Junior/Senior High complex on land which was 
actually physically located within the PCSSD boundaries at 
the time construction was begun.

Coupled with the legislative intent and pattern of 
cooperation in allowing the school districts on both sides of



11

the river to be coterminous with their cities was PCSSD’s 
long-standing policy of advocating consolidation of the 
districts. Two major efforts to consolidate the districts took 
place in 1960 and 1967. In the midst of consolidation 
discussions, desegregation suits were filed against NLRSD 
and LRSD. Almost instantly the PCSSD froze its 
boundaries. Since that time, the PCSSD has not been 
willing to consolidate with the other two districts or to 
allow its territory to be annexed to either. As time passed 
and the student body of the LRSD became increasingly 
black, the PCSSD became more adamant about freezing its 
boundaries.

The district court found that this freezing of the 
boundaries came only after the institution of desegregation 
efforts directed toward the school districts. It further found 
that the boundary-freezing not only sprang from 
unconstitutional racial motives, but has significant 
interdistrict effects on the LRSD. A -lll.

Additional evidence underpinning the district court’s 
finding of interdistrict effects came from the actions of 
other governmental bodies which worked in concert with 
the PCSSD. Among them were the willingness of the City of 
Little Rock to allow the PCSSD’s tax base to develop at the 
expense of the LRSD. Most importantly, the court found 
that Little Rock cooperated with the PCSSD in expanding 
its city limits and extending city services to new PCSSD 
school sites, thereby assisting the PCSSD in siting new 
schools in violation of its desegregation decree. A-122, 
A-123. Thus new schools sprang up, areas of white suburban 
housing grew around them, and the city limits expanded to 
take them all in, but the boundaries of the LRSD did not 
grow.

PCSSD has received substantial tax advantages, 
having interdistrict effects on the LRSD, from agreements 
reached between the PCSSD and the City of Little Rock for 
PCSSD to receive payment from industries in lieu of taxes,



12

in connection with issuance of industrial revenue bonds. 
These agreements between the City of Little Rock and the 
PCSSD were totally volitional, not mandated by any 
statute. During this same period, the LRSD had no similar 
arrangements and received no funds whatever from 
agreements with the City of Little Rock. A -lll, A-112.

The district court’s findings of racial motive and inter­
district effects were thus based upon the history of 
maintaining coterminous boundaries, the timing of the 
abrupt change in the practice, the record of governments 
acting in concert at the expense of the LRSD, the general 
attitude of the PCSSD as reflected by its actions and its 
minutes, and the PCSSD’s abandonment of a policy 
advocating consolidation of all of the districts. To suggest 
that the findings must be based only on the simple fact of 
whether or not a formal petition for deannexation was filed, 
without an examination of the possible explanations, is not 
only politically naive; it ignores the entire record of forces 
at play in a community. The district court conducted a 
sensitive inquiry into such circumstantial and direct 
evidence of intent as was available. Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252, 266 
(1977). That intent, stemming from impermissible racial 
motives, was found, based upon all of the evidence.

It is the duty of a district court to choose between 
differing possible sets of facts which offer an explanation of 
situations such as suddenly-frozen boundaries, Anderson v. 
City of Bessemer City, supra, and this district court did so. 
It found as a fact that the PCSSD chose to freeze its 
boundaries for racial reasons. The Court of Appeals upheld 
that determination. A-28. PCSSD now attacks this finding, 
but does so without admitting that it is a finding of fact, 
without mentioning Swint or Bessemer City, and without 
any reference to the clearly erroneous standard of review.

The third, and probably the major, omission from the 
two petitions for certiorari is their complete failure to



13

discuss this Court’s decisions in Dayton Bd. of Ed. v. 
Brinkman, 443 U.S. 526 (1979) (Dayton IT) and Columbus Bd. 
of Ed. v. Penick, 443 U.S. 449 (1979). It is not surprising that 
they avoid mention of these two decisions, since the 
approach they take to the present case was explicitly 
rejected in the two cases.

When numerous and extensive violations have been 
shown in a school desegregation case, as is the case here, a 
central issue for decision becomes one of how to assess the 
present effects of constitutional violations; i.e., how much of 
a current segregative effect those violations have caused. 
One possible analytical approach is that each violation must 
be separately and discretely reviewed in isolation, with the 
effects of that particular violation traced out in minute 
detail, presumably through the researches and testimony of 
social scientists from many disciplines, and then a remedy 
declared which will rectify that narrowly-defined effect. 
This process is then repeated: another violation is 
separately identified, its effects are distinctly and 
discretely measured out in isolation, using the same sorts of 
methods, and a remedy is determined for that violation. The 
process is repeated again and again.

The Milliken decision, heavily emphasized by both 
petitioners, does not tell us how one is to approach the 
violation-and-effect analysis. Dayton II and Columbus fill in 
that gap. The petitioners’ exact argument was made in 
those two cases, and this Court rejected it. The school 
district defendants in Dayton and Columbus had argued 
against broad-based desegregation remedies and for the 
precision-of-measurement type of analysis described above. 
In Dayton II, this Court said:

Finally, [the school districts] contend that the District 
Court correctly interpreted our earlier decision in this 
litigation as requiring respondents to prove with 
respect to each individual act of discrimination precisely 
what effect it has had on current patterns of



14

segregation. This argument results from a 
misunderstanding of Dayton I  [433 U.S. 406 (1977) ] . . .

Dayton II, 433 U.S. at 540 (emphasis added). That same 
misunderstanding forms the basis for the petitioners’ claims 
now.

Using the analysis prescribed in Dayton II  and 
Columbus, both lower courts found interdistrict violations 
and substantial interdistrict effects in the present case. 
When such effects are shown, an interdistrict remedy is 
called for. Milliken, p. 745. Neither of the lower courts 
adopted the artifically segmented approach urged upon this 
Court by the petitioners in Dayton and Columbus and by 
the petitioners here. As the Sixth Circuit said:

Dayton [I] does not. . .  require each of fifty segregative 
practices or episodes to be judged solely on its separate 
impact on the system. The question posed concerns the 
impact of the total amount of segregation found —after 
each separate practice or episode has added its 
“increment” to the whole. It was not just the last wave 
which breached the dike and caused the flood.

Penick v. Columbus Bd. of Ed., 583 F.2d 787, 814 (6th Cir. 
1978) (emphasis in original).

The State Board makes the same contention as the 
PCSSD in asking to have each violation looked at in 
isolation, and then adds its own separate twist to the 
argument, since many violations of which the State is guilty 
result from its failure to act. The State of Arkansas, as a de 
jure segregation state, is of course obligated to act 
affirmatively to eliminate all remnants of segregation. 
Keyes v. School Dist. No. 1, Denver, Col, 413 U.S. 189 
(1973). Arkansas statutes give the State Board wide-ranging 
powers to review or supervise many aspects of school 
districts’ operations. A-ll, n. 4; A-158, A-159. That Board 
has never acknowledged its affirmative duty to desegregate 
at any time in this litigation. Rather, it makes an almost-



15

incredible argument about its powers: it says it has never 
“interpreted” Arkansas state statutes, which admittedly 
give it apparently “wide-ranging supervisory power” over 
local schools’ affairs, to give it such power in fact. State 
Board petition, p. 10. 2 This argument can only mean that, 
because the Board has never chosen even to try to use the 
powers it appears to hold under state statutes, it should be 
relieved of any responsibility for desegregating Arkansas’ 
schools and should be exonerated from any liability in this 
case. These numerous sins of omission, when coupled with 
the equally numerous sins of commission (e.g., the role of 
the housing authorities, which are creatures of the state, in 
concentrating black families in the LRSD), were all part of 
the flood of violations. The State Board, like the PCSSD, 
would have this Court look only at the last wave over the 
dike.

The lower courts in the present case correctly refused 
to follow an approach this Court had already rejected. That 
refusal is the only real complaint the petitioners have with 
the lower courts’ decisions, and that is the only basis for 
their seeking certiorari.

III. THERE IS NO SIGNIFICANT CONFLICT AMONG 
THE CIRCUIT COURTS OF APPEAL IN THE FIELD 
OF INTERDISTRICT REMEDIES FOR SCHOOL 
SEGREGATION.

There is no basis for granting certiorari because of 
some alleged conflict among the Circuit Courts of Appeal.

2 LRSD notes that the State Board has apparently, although 
belatedly, recognized that it does indeed possess the powers it appears on 
paper to possess but that it has never exercised. In responses to 
interrogatories received by the LRSD in April, 1986, the State Board 
states that it is in the process of adopting regulations which will help 
achieve desegregation within local school districts. If it has the power to 
adopt such regulations now, which the LRSD agrees that it has, why did it 
not have such power ten, fifteen or twenty years ago, when it had 
substantially identical regulatory authority by statute?



16

The petitioners would have this Court believe that the 
decision below is contrary to holdings of the Fourth and 
Fifth Circuits in Goldsboro City Bd. of Ed. v. Wayne County 
Bd. of Ed., 745 F.2d 324 (4th Cir. 1984), and Lee v. Lee 
County Bd. of Ed., 629 F.2d 1243 (5th Cir. 1981), and 
contrary to the decision in Armour v. Nix, No. 16708, slip 
op. (N.D. Ga. 9/24/79), affd 446 U.S. 930 (1980). There is no 
such inconsistency. Goldsboro and Lee County were both 
cases where the district court had found no significant 
interdistrict effects, basing their decisions on the 
conflicting evidence before them. Both courts of appeals 
properly accepted the trial courts’ findings, as they were 
required to do under Bessemer City, supra, and Swint, 
supra. The Eighth Circuit did the same in the present case: 
the trial court found that there were significant inter­
district effects, and the appellate court upheld that finding.

Armour v. Nix was not a decision by this Court on the 
merits of a case, but was instead a summary affirmance of a 
decision by a three-judge district court. The trial court 
there had made detailed factual findings, just as the trial 
court did here. The findings there were that no school 
district boundaries had been drawn or maintained on the 
basis of race, that all the school districts involved were 
either unitary or were being operated in accordance with a 
court-approved desegregation plan, that there were no 
interdistrict segregative effects arising from the few 
violations found, and that there was no evidence of school 
district cooperation with other governmental bodies to 
maintain racially-identifiable schools. Those findings were 
presumably accurate on the basis of the evidence before 
that court. None of those facts is true of the present case. It 
is indeed correct to say that there should be no interdistrict 
remedy where there are no interdistrict effects, no 
boundaries maintained on the basis of race, and no 
cooperative effort to maintain racially-identifiable schools, 
and where school districts are in full compliance with their 
desegregation decrees. It is quite another to say, as PCSSD 
apparently does, that there can be no interdistrict remedy 
where there are findings to the contrary.



17

Another principle ignored by both petitioners, and 
another difference between the present case and Goldsboro 
and Armour, is the duty shouldered by de jure school 
systems to eliminate all remnants of segregation from their 
former dual school systems. All three of these school 
districts are former de jure systems and all three are 
judicially-determined constitutional violators. None has 
reached unitary status; NLRSD has actually sought and 
been denied a judicial determination of unitariness. PCSSD, 
far from being unitary, has in fact been operating in 
violation of its desegregation order. PCSSD’s arguments 
about the discriminatory purpose, or lack of discriminatory 
purpose, underlying some act or omission carry little weight 
when offered by a non-unitary, former de jure school 
district which stands in violation of its own desegregation 
decree. They are reminiscent of the defenses put forward 
by the school districts and found wanting in Green v. New 
Kent County, 391 U.S. 430 (1968), and its companion cases.



18

CONCLUSION

The petitions for certiorari ignore major principles of 
school desegregation and civil rights law which have 
recently been enunciated by this Court, and they make 
arguments grounded in reasoning recently rejected by the 
Court. They argue disputed questions of fact without 
acknowledging that they are questions of fact, and the State 
Board makes a rather tortuous argument about the 
meaning of Arkansas state statutes. There is no reason 
presented in either petition why a writ of certiorari should 
be granted.

PHILIP E. KAPLAN*
KAPLAN, BREWER & MILLER 
415 Main Place 
Little Rock, AR 72201 
(501)372-0400

JOHN M. BILHEIMER 
324 West Fourteenth 
Little Rock, AR 72202 
(501)374-4944

Respectfully submitted,

P.A. HOLLINGSWORTH 
HOLLINGSWORTH & HELLER 
415 Main Place 
Little Rock, AR 72201 
(501) 374-3420

JANET L. PULLIAM 
350 Gazette Building 
Little Rock, AR 72201 
(501)371-3888

*  Counsel of Record