Coppedge v. Franklin County Board of Education Brief for the United States

    United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 19,795.

Delores Clark, et al.,
Appellants,

v.

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

Appellees.

No. 19,810.

Appeals from the 
United States Dis- 

„ trict Court for the 
Eastern District of 
Arkansas.

Delores Clark, et al.,
Appellees,

v.

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

Appellants.

[May 13, 1970.]

Before V an  O o sterh o u t , Chief Judge; M a t t h e s , B l a c k - 
m u n , G ibso n , L a y , H e a n e y  and B r ig h t , Circuit Judges, 
En Banc.*

* Judge Mehaffy took no part in the consideration or decision of 
these appeals.



Matthes, Circuit Judge.

This appeal and cross-appeal from the judgment of the 
United States District Court for the Eastern District of 
Arkansas (the late and lamented Gordon E. Young) causes 
us again to consider whether the efforts of the Board of 
Education of the Little Rock, Arkansas, School District 
(hereinafter referred to as District or Board) to desegre­
gate its schools satisfy the Equal Protection Clause of the 
Fourteenth Amendment as interpreted in Brown v. Board 
of Education, 347 U.S. 483 (1954) (Brown I) and subse­
quent decisions of the Supreme Court which have deline­
ated the principles enunciated therein.

The process of desegregation in this District has been 
controversial and its long history is recorded in the deci­
sions cited in the margin.1 While we focus our attention 
on the events from 1966 to the present, it is necessary to 
briefly sketch the background against which these events 
are set. Up until 1954 and Brown I, the District, pursuant 
to state law, operated separate educational facilities for 
black and white children. After much turmoil, and the 
passage of several years, students were assigned to schools 
according to the dictates of the Arkansas pupil placement 
statute. When this practice was found to contravene the 
Fourteenth Amendment,2 a “ freedom of choice’ ’ plan was 
adopted. In Clark v. Board of Education, 369 F.2d 661

1 Aaron v. Cooper, 143 F.Supp. 855 (E.D. Ark. 1956), aff’d 243 F.2d 
361 (8th Cir. 1957); Aaron v. Cooper, 2 Race Rel. L. Rep. 934-36, 938-41 
(E.D. Ark. 1957), aff’d Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); 
Aaron v. Cooper, 156 F.Supp. 220 (E.D. Ark. 1957), aff’d sub nom, Faubus 
v. United States, 254 F.2d 797 (8th Cir. 1958); Aaron v. Cooper, 163 
F.Supp. 13 (E.D. Ark.) rev’d 257 F.2d 33 (8th Cir.), aff’d sub nom. 
Cooper v. Aaron, 358 U.S. 1 (1958) ; Aaron v. Cooper, 26'1 F.2d 97 (8th 
Cir. 1958); Aaron v. Cooper, 169 F.Supp. 325 (E.D. Ark. 1959); Aaron 
v. McKinley, 173 F.Supp. 944 (E.D. Ark. 1959), aff’d sub nom, Faubus v. 
Aaron, 361 U.S. 197 (1959); Aaron v. Tucker, 186 F.Supp. 913 (E.D. 
Ark. 1960) rev’d Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961); Clark 
v. Board of Education of Little Rock, 369 F.2d 661 (8th Cir. 1966),

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



(1966), we sanctioned “ freedom of choice”  in principle 
but found the District’s plan to be deficient in failing to 
provide adequate notice to the students and their parents 
and to provide a definite plan of staff desegregation. We 
remanded and directed the district court to retain juris­
diction to insure adoption and operation of a constitutional 
plan for the full desegregation of the Little Rock schools.

In August of 1966, four months prior to our decision in 
Clark, the Board apparently recognizing the inadequacy 
of its existing mode of desegregation, employed a team of 
experts from the University of Oregon to make a study 
of the system and prepare a master plan of desegregation. 
The team submitted its recommendations, the “ Oregon 
Report,”  in early 1967. In brief, the recommendations 
called for abandonment of the neighborhood school con­
cept and the development of an educational park system8 
through the institution of a capital building program and 
the pairing of schools. The cost of implementing the 
Oregon plan was estimated to be in excess of ten million 
dollars. In the November 1967 school board election at 
least one of the incumbent members of the Board who 
supported the ‘ ‘ Oregon Report’ ’ was defeated and replaced 
by a candidate who opposed the report. The election re­
sults were interpreted as a public rejection of the “ Oregon 
Report,”  and it was subsequently abandoned by the Board.

Still searching for a solution, the Board directed Floyd 
W. Parsons, Superintendent of Schools, and his staff to 
prepare a comprehensive plan for desegregation of the 3

3 The educational park concept, as applied to the Little Rock District, 
called for a single attendance zone coextensive with the school district 
boundaries. One high school was to be established drawing students 
from the entire District. Similarly, fewer middle schools and elementary 
schools would be operated, and those operated would be concentrated 
near the center of the District. Some pairing was contemplated at the 
elementary level. Obviously, implementation of such a plan would neces­
sitate transportation of some students from their homes to the schools.



4

schools. Acting accordingly, this group submitted a pro­
posal known as the “ Parsons Plan.”  The plan provided 
for desegregation of the high schools and two groups of 
grade schools. It made no provision for the junior high 
schools. The high schools were to be desegregated by 
“ strip-zoning”  the District geographically, generally from 
east to west so as to form three attendance zones for the 
high school students. The Horace Mann High School, an 
all Negro school, was to abolished and utilized as an 
elementary facility, and additions were to be made to two 
of the three remaining high schools. The two groups of 
elementary schools were to be desegregated by pairing of 
schools within each group.4

The cost of implementing the “ Parsons Plan”  was esti­
mated at five million dollars,5 and a bond issue for that 
amount was submitted to the voters in March of 1968. 
Despite active campaigning by Superintendent Parsons 
and several Board members, the bond issue was decisively 
defeated, as were two incumbent members of the Board 
who supported the plan. Thus, as of March, 1968, the 
District, although recognizing the inadequacies of the exist­
ing means of desegregation, had been unable to develop 
and implement an acceptable alternative. And, students 
were assigned for the 1968-69 school year according to 
‘ ‘ f  reedom-of-choice. ’ ’

4 The “Parsons Plan” called for the creation of two floating zones— 
the Alpha Complex in the northeastern corner of the District and the 
Beta Complex in the south central portion of the District. Within these 
two complexes there existed a number of elementary schools, some of 
which were predominantly black and others predominantly white. Under 
Mr. Parsons’ plan these elementary schools would be paired in order to 
achieve a “reasonable racial ratio” in each of the schools. Some re­
modeling of existing facilities was contemplated in implementing the 
two complexes.

5 However, less than 40% of this sum was directly related to achieving 
desegregation. The remaining 60% of the cost arose from needs of the 
system apart from efforts to desegregate.



On June 25, 1968, plaintiffs moved the district court for 
further relief.6 The court responded by setting a hearing 
for August 15, 1968, and, by letter of July 18, 1968, sug­
gested to the Board that it devise a geographic zoning 
plan to correct student segregation. The Board was also 
admonished to devise a plan for faulty desegregation so 
that the racial division of the faculty in each school would 
approximate the racial breakdown of the faculty in the 
entire District. At the August 15th hearing the District 
presented an “ interim”  zoning plan which was admittedly 
incomplete and required more study, and requested that 
the “ freedom of choice”  method of pupil placement be 
retained for the 1968-69 school year. After the second day 
of testimony, the hearing was recessed to enable the Dis­
trict to formulate a final plan for the disestablishment of 
racial segregation to become effective at the beginning of 
the 1969-70 school year. Before recessing, the court re­
affirmed its earlier suggestion concerning faculty desegre­
gation and stated unequivocally that “ freedom of choice”  
as applied to the Little Rock schools would not satisfy the 
constitutional requirements. The Board was directed to 
file its plan not later than November 15, 1968.

During the Board’s deliberations two plans were sub­
mitted for its consideration and rejected. A group of 
Negro citizens offered the “ Walker Plan,” so designated 
because John Walker, counsel for plaintiffs, was a moving 
force in its formulation. The “ Walker Plan”  contem­
plated grade restructuring and pairing of schools through­
out the District and at all grade levels. Substantial trans­
portation of students would have been necessary to 
implement the plan. The Board also considered and re-

6 Several parties sought to interevene. A group of Negro children 
by their parents, were permitted to intervene as parties plaintiff The 
Little Rock Classroom Teachers Association was also permitted to inter­
vene.



—  6 —

jected a proposal offered by two of its members calling 
for retention of “ freedom of choice”  plus the reservation 
of space at predominantly white schools for Negro children 
desiring to attend them. The Board finally adopted, with 
two members dissenting, a plan for pupil assignment based 
on geographic attendance zones.

Attached to this opinion is a reduced reproduction of 
defendants’ Exhibit 22 depicting the geographic zones pro­
posed, and designating the location of elementary, junior 
high and high school buildings. The elementary zones are 
defined by fine lines and the junior high zones by broad 
lines. On the original exhibit the high school zones are 
identified by four different colors. Because we were unable 
to reproduce the colors, we have highlighted the high 
school zone boundaries by a crossed line, and have appro­
priately designated the several colors of the original ex­
hibit. Except for this alteration, the map is an exact re­
production of the original exhibit.

As illustrated by the map, the Little Rock School Dis­
trict is an irregular rectangle running from east to west. 
Natural boundaries on the north and south and the com­
mercial and industrial nature of the eastern portion have 
caused the city to expand toward the west. Generally 
speaking the eastern one-half of the District is inhabited 
predominantly by Negro citizens and the western one-half 
predominantly by white citizens.

At the beginning of the 1969-70 school year there were 
24,248 students in the system; 15,027 white and 9,221 
Negro. They attended five high schools, seven junior high 
schools, and thirty-one elementary schools throughout the 
District.

Under the District’s plan, all students were to attend 
schools serving their grade level in their zone of residence



—  7 —

except: (1) students attending Metropolitan High School,7 
(2) students in the 8th, 10th and 11th grades in 1969-70, 
who were permitted to choose between the school in their 
zone and the school they had previously attended8 9 and (3) 
children of teachers in the District, who could attend the 
school where their parents were employed. The proposal 
for faculty desegregation complied with the suggestion 
of Judge Young. It called for the assignment of teachers 
so that the percentage of Negro teachers in each school 
ranged from a maximum of 45% to a minimum of 15%.

Pursuant to the court’s direction at the conclusion of the 
August 16 hearing, the District submitted the plan now 
under consideration. On December 19, the hearing was 
resumed and additional evidence was introduced. On May 
16, 1969, the district court filed its unreported opinion. 
While approving the District’s plan in principle, the court 
amended it by: (1) redrawing the Hall High School zone 
to include approximately 80 additional Negro children; 
(2) establishing a “ Beta Complex” ;0 (3) providing for 
majority to minority transfer of students.10

Both parties have appealed from the district court’s 
judgment.

A brief summary of the contentions urged upon us will 
suffice. Plaintiffs submit that the geographical zones as

7 Metropolitan High School is a vocational school which serves the
entire District. No segregation exists as to this facility. ........ .

8 This departure from geographical attendance zones was an effort to 
minimize disturbance of the extra-curricular patterns established by 
students in these grades.

9 The court adopted in part Mr. Parsons’ concept calling for the pair­
ing of certain elementary schools within a floating zone. See note 4 supra.

10 This provision of the court’s modification permitted students at­
tending schools in which their race was in the majority to transfer to 
schools in which their race rvas in the minority, subject to the availability 
of space in the transferee school.



drawn merely serve to perpetuate the previously estab­
lished segregated attendance patterns of the students in the 
District. Neither the neighborhood school concept nor the 
possible necessity of busing, according to plaintiffs, ex­
cuses the District’s failure to achieve a unitary system 
devoid of racially identifiable schools. Lastly, they argue 
that the faculty assignment approved by the district 
court continues to preserve the racial identity of certain 
schools.11

Conversely, the District is of the firm conviction that 
the plan that it submitted to the district court is constitu­
tionally faultless. It reasons that the geographical zones 
were drawn without regard to race, and that, as such, the 
plan established a unitary system within the constitutional 
requirements. It is further asserted that the constitution 
does not require transportation of children outside the 
area of their residence in order to achieve racial balance 
in the schools, and indeed the assignment of pupils ac­
cording to race would itself be a violation of the Four­
teenth Amendment. According to the District, the neigh­
borhood school concept is educationally sound, and, in 
view of community attitudes, the only feasible means of 
operating the Little Rock system.

On cross-appeal the District objects to the district 
court’s departure from the geographical zoning scheme it 
submitted. It is argued that the gerrymandering of the 
Hall zone to include more Negro students and the ma­
jority to minority transfer provision are violative of the 
Fourteenth Amendment since they require racial distinc­
tions to be made. A similar objection is made to the 
“ Beta Complex.”

11 Plaintiffs also assert that the district court erred in refusing to 
allow them attorney fees.



—  9 —

THE FACULTY

For the 1969-70 school year there were 1053 teachers 
employed by the District—29% Negro and 71% white. 
Under the plan adopted by the District and approved by 
the district court, the percentage of Negro teachers in each 
of the schools varies from 14% to 50%.12 Plaintiffs com­
plain that even under the approved plan there is a general 
pattern throughout the system whereby schools with a 
high proportion of Negro students (“ Negro schools” ) 
have a higher percentage of Negro teachers. They argue 
that this pattern tends to reinforce the racial identity of 
those schools.

Just as schools may be racially identified by the makeup 
of their student body, so may they be identified by the 
character of their faculty, and school boards are obligated 
to correct any previous patterns of discriminatory teacher 
assignment. One means of correcting such patterns is to 
assign teachers so that the ratio of Negro teachers to 
white teachers in each school approximates the ratio for 
the District as a whole. United States v. Montgomery 
County Board of Education, 395 U.8. 225 (1969); Yar­
brough v. Hulbert— West Memphis School District, 380 
F.2d 962 (8th Cir. 1967). However, the ultimate goal is the 
assignment of teachers solely on the basis of educationally 
significant factors, wherein race in and of itself is irrele­
vant.

The plan adopted by the District provides for the non- 
discriminatory assignment of teachers and affirmative steps 
to correct the existing imbalance. The experts agreed that 
the District’s plan was ambitious, and in fact some doubt

12 The district court judge, on the basis of projected figures thought 
the percentages would range from 15% to 45%. Because of resignations 
attrition, etc. these figures proved slightly incorrect.



—  10

was expressed as to whether it could be carried out. How­
ever, to a remarkable degree it has been implemented, and 
its implementation has radically changed the complexion 
of faculties throughout the district. Where before Negro 
teachers were heavily concentrated in those schools long 
identified as Negro, they are now distributed throughout 
the District so that no school has more than 50% Negro 
teachers. Indeed, and particularly at the elementary level, 
in most of the schools the percentage of Negro teachers 
in any particular facility varies only slightly from the 
percentage of Negro teachers in the District as a whole.

Therefore, we affirm the district court’s approval of the 
District’s plan with respect to faculty.13 See Kemp v. 
Beasley, . . .  F.2d . . .  (8th Cir. 1970) (Kemp III). The 
plan as implemented has corrected the exaggerated racial 
imbalance of teachers in the system. Faculty desegrega­
tion through teacher assignment is a dynamic process. The 
District has committed itself to the non-discriminatory as­
signment of teachers and the correction of previous segre­
gation, and has for the 1969-70 school year evidenced its 
good faith in fulfilling these commitments. We are con­
fident that any remaining vestiges of faculty segregation 
will be corrected by the District’s continuing efforts.

STUDENTS

After deliberate consideration, we are driven to the con­
clusion that the proposal for student desegregation does 
not comport with the recent pronouncements of the Su­

13 Compare the order of Judge Johnson in Carr v. Montgomery County 
Board of Education, 289 F.S'upp. 647 (M.D. Ala. 1968). In a district 
where the faculty ratio was 3 to 2, the order required that in the coming 
school year only 1 of every 6' members of each school’s faculty be from 
the race which was in the minority in that particular faculty." This was 
approved in United States v. Montgomery County Board of Education 
395 U.S. 225 (1969).



11

preme Court, hence it must he rejected. We hasten to 
add, however, that significant progress has been made by 
the District. For example, Central High School, the scene 
of so much turmoil in 1956, is now desegregated—1,542 
white, 512 Negro. So too are several other previously all­
black or all-white schools. However, as we recognized in 
Kemp 111, supra, the finding of some progress does not 
end the inquiry whether the particular District has satis­
fied its constitutional obligations.

It is, of course, axiomatic that the operation of separate 
schools for black and white children under sanction of 
state law is violative of the Fourteenth Amendment. As 
the Court observed in Brown I, supra, in the field of educa­
tion "separate facilities are inherently unequal.”  And in 
Brown II, 349 U.S. 294 (1955), school districts which had 
previously operated "separate”  schools were ordered to 
take the necessary action to eradicate this constitutional 
violation. The question now before us is whether the 
District has fulfilled its constitutional obligation to convert 
what admittedly was a segregated school system to a 
"unitary system in which racial discrimination would be 
eliminated root and branch.”  Green v. County School 
Board of New Kent County, 391 U.S. 430, 438 (1968).

Principal guidance from the Supreme Court as to this 
issue is to be found in the trilogy of cases decided in 1968. 
Green v. County School Board of New Kent County, supra; 
Raney v. Board of Education of Gould School District, 391 
U.S. 443 (1968); Monroe v. Board of Commissioners of 
City of Jackson, 391 U.S. 450 (1968). Each of the school 
districts there involved had adopted "freedom of choice”  
plans (or modifications thereof) for pupil assignment. In 
general the "freedom of choice”  plans under consideration 
had not significantly altered attendance patterns which



—  12 —

had been established by pre-Brown I state segregation 
laws. “ Negro schools”  continued to be attended by Negro 
students and “ white schools”  by white students. For ex­
ample, in Green 85% of the Negro children continued to 
attend the all Negro school. Despite the School Board’s 
contention in Green that it had “ fully discharged its obli­
gation by adopting a plan by which every student, regard­
less of race, may ‘ freely’ choose the school he will attend.”  
391 U.S. at 437, the Court found that “ freedom of choice”  
as applied to these three districts did not meet the com 
stitutional requirements.

The thrust of all three opinions is that the manner in 
which desegregation is to be achieved is subordinate to 
the effectiveness of any particular method or methods of 
achieving it. The following language is instructive:

“ The burden on a school board today is to come for­
ward with a plan that promises realistically to work, 
and promises realistically to work noiv.

The obligation of the district courts, as it always 
has been, is to assess the effectiveness of a proposed 
plan in achieving desegregation. There is no universal 
answer to complex problems of desegregation; there 
is obviously no one plan that will do the job in every 
case. The matter must be assessed in light of the cir­
cumstances present and the options available in each 
instance. It is incumbent upon the school board to 
establish that its proposed plan promises meaningful 
and immediate progress toward disestablishing state- 
imposed segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts at hand 
and in light of any alternatives which may be shown 
as feasible and more promising in their effective­
ness . . . .

We do not hold that ‘ freedom of choice’ can have 
no place in such a plan. We do not hold that a ‘ free­
dom of choice’ plan might of itself be unconstitutional,



—  13 —

although that argument has been urged upon us. 
Rather all we decide today is that in desegregating a 
dual system a plan utilising ‘ freedom of choice’ is not 
an end in itself.”  391 U.S. at 439-40. (emphasis in the 
second and third paragraphs supplied).

More recent pronouncements by the Court are consistent 
with this pragmatic approach. In Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969), the Court 
ordered the “ immediate”  termination of dual school sys­
tems and the operation of “ unitary school systems within 
which no person is to be effectively excluded from any 
school because of race or color.”  Id. at 20. (emphasis 
supplied).

Review of desegregation decisions from this circuit re­
veals that we too have tested proposed plans of desegre­
gation by their effectiveness. For instance, ten years ago 
we held that the Arkansas pupil placement statute, on its 
face a non-discriminatory and educationally rational means 
of pupil placement, could not be used to assign students, 
if it failed to correct the segregated character of the sys­
tem. Dove v. Parham, 282 F.2d 256 (8th Cir. I960).14 In 
1968, prior to the Green trilogy, we were faced with a 
“ freedom of choice”  plan. Kemp v. Beasley, 389 F.2d 178 
(8th Cir. 1968) (Kemp II). It too was asserted to be edu­
cationally sound and devoid of racial considerations. How­
ever, we tested “ freedom of choice”  as applied in that 
particular instance and found it lacking; not by viewing it 
in the abstract, but rather by considering whether it ef­
fectively advanced the desegregation process. Our analysis 
in Kemp II  was, of course, approved by the Green 
trilogy.15 And, only very recently we again found “ free­
dom of choice”  to be constitutionally deficient in Kemp III,

14 See also, Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961).
15 Indeed Kemp II was cited with approval. 391 U.S. at 440.



supra. Although desegregation had been accomplished at 
the high school level by pairing and the junior high level 
by “ freedom of choice,”  application of “ freedom of 
choice”  to the elementary grades left 5 of the 10 schools 
racially identifiable. We ordered the District to take the 
necessary steps to correct the segregated character of 
those 5 elementary schools.

Thus, as of this date, it is not enough that a scheme for 
the correction of state sanctioned school segregation is 
non-discriminatory on its face and in theory. It must also 
prove effective. As the Court observed in Green-.

“ In the context of the state imposed pattern of long 
standing, the fact that in 1965 the Board opened the 
doors of the former ‘ white’ school to Negro children 
and of the ‘ Negro’ school to white children merely 
begins, not ends, our inquiry whether the Board has 
taken steps adequate to call for the dismantling of 
a well-entrenched dual system.”  391 IJ. S. at 437.

We believe that geographic attendance zones, just as the 
Arkansas pupil placement statutes, “ freedom of choice”  
or any other means of pupil assignment must be tested by 
this same standard.16 In certain instances geographic zon­
ing may be a satisfactory means of desegregation. In 
others it alone may be deficient. Always, however, it must 
be implemented so as to promote desegregation rather

— 14 —

16 The Board’s reliance on language in Green for the proposition that 
geographic zoning in and of itself is constitutionally mandated is mis­
placed. In two places in the Green opinion the Court did refer to geo­
graphic zoning as a possible alternative to “freedom of choice.” How­
ever, it is clear when considered in context, that the Court was limiting 
its suggestion to the Kent district, a district without residential segre­
gation. Indeed footnote 6 quotes with approval a paragraph from the 
concurring opinion in Bowman v. County School Board, 382 F.2d 326 
(4th Cir. 1967), in which it is stated, “ . . . a geographical formula is 
not universally appropriate.” Id. at 332. Any other reading of the 
Green decision would be entirely inconsistent with the Court’s declara­
tion that the ultimate test is effectiveness and many plans may or may 
not prove effective in a particular instance. See also the footnote ap­
pearing at 391 U.S. 460.



—  15 —

than to reinforce segregation. See United States v, In- 
dianola Municipal Separate School District, 410 F.2d 626 
(5th Cir. 1969) • Henry v. Clarlcsdale Municipal Separate 
School District, 409 F.2d 682 (5th Cir. 1969); United 
States v. Greenwood Municipal Separate School District, 
406 F.2d 1086 (5th Cir.), cert, denied, 395 U. S. 907 (1969).

When viewed in context of the above principles, the plan 
approved by the district court is constitutionally infirm. 
For a substantial number of Negro children in the Dis­
trict, the assignment method merely serves to perpetuate 
the attendance patterns which existed under state man­
dated segregation, the pupil placement statute, and “ free­
dom of choice” 17—all of which were declared unconstitu­
tional as applied to the District. In short the geographical 
zones as drawn tend to perpetuate rather than eliminate 
segregation.18 Several examples are illustrative. During 
the 1968-69 school year, under “ freedom of choice”  Mann 
High School, located in the eastern portion of Little Rock 
and historically an all Negro school, was attended by all 
Negroes. In this school year it is attended by 838 Negroes 
and 4 whites. Parkview High and Hall High, historically 
white schools,19 have 45 Negro and 793 white and 40 Negro 
and 1,415 white students, respectively. Prior to this year 
both Booker Junior High20 and Dunbar Junior High21

17 Under "freedom of choice” in 1968-69 approximately 75% of the 
Negro students attended schools in which their race constituted 90% or 
more of the student body. The plan adopted by the district court re­
duces this percentage by only 6%.

18 It was agreed by all the experts that zone lines for the District 
would have to be drawn from east to west if previously established at­
tendance patterns were to be broken.

19 Both of these schools were constructed after 1956.
20 This school, named after a prominent Negro, was constructed in 

1963. Only Negro children were assigned to it and it was staffed by 
Negro teachers.

21 Prior to 1954, Dunbar was the Negro junior high school for the 
District.



—  16

were all Negro. Now they are attended by 733 Negro and 
20 white and 685 Negro and 18 white students, respec­
tively. Two junior high schools located in the western por­
tion of the city are attended by similar proportions of 
students with white students predominating. At the ele­
mentary level, Carver, Gillam, Granite Mountain, Ish, 
Pfeifer, Rightsell, Stephens, and Washington all have 95% 
or more Negro students.22 In a number of other elementary 
schools the reverse is true. All of the foregoing schools 
are racially identifiable.

While it is true that the majority to minority transfer 
provision has the potential for alleviating the situation to 
an extent, it is in large part an illusory remedy. No trans­
portation is provided for those children choosing to take 
advantage of it. And, it requires little insight to recognize 
that the children who are most likely to desire transfer 
are those least able to afford their own transportation. 
Moreover, there is no assurance that space will be avail­
able in the schools to which most of the transfers would 
probably occur.23

Alternative means of pupil assignment which would pro­
vide more effective desegregation were and are available 
to the District. Indeed, several such means were embodied 
in plans submitted to and considered by the Board. We 
point this out not as an endorsement of any particular

22 Carver, Granite Mountain, Pfeifer, and Washington were operated 
as “Negro schools” under state-imposed segregation. Rightsell was con­
verted to a “Negro school” in 1961. Gillam and Ish, named after promi­
nent Negroes and located in Negro neighborhoods, were constructed in 
1963 and 1965, respectively. They were staffed by Negroes and have 
always been attended almost solely by Negro students.

23 Compare the transfer provision adopted in Ellis v. Board of Public 
Instruction of Orange County, . . .  F.2d . . .  (5th Cir. Feb. 17, 1970), 
which provided transportation for children choosing to transfer and in­
sured that space would be available in the transferee schools.



—  17 —

plan, but merely to emphasize that alternatives are avail­
able. Of particular significance is the “ Parsons Plan,”  
which was developed by a group of educators closely af­
filiated with the District and presumably quite sensitive 
to the educational needs and problems of the community. 
It was long ranged and comprehensive. If implemented, it 
would have cured the isolation of Mann High School as a 
Negro facility. The “ Parsons Plan”  also would have 
erased the racial identity of several elementary schools 
which exists under the plan now before us. It enjoyed the 
support of the Board and the professional staff of the 
system.

Because of community opposition to the plan, as mani­
fested in the defeat of a millage increase necessary to 
finance its implementation, the “ Parsons Plan”  was not 
adopted. Similarly, community opposition was a substan­
tial factor in rejection of other promising plans. We are 
not unmindful of the difficult nature of the Board’s duties 
in this District.24 However, it has long been the law of the 
land that community opposition to the process of desegre­
gation cannot serve to prevent vindication of constitutional 
rights. Monroe v. Board of Commissioners of the City of 
Jackson, supra; Aaron v. Cooper, 358 U.S. 1 (1958); Jack- 
son v. Marvell School District No. 22, 416 F.2d 380 (8th 
Cir. 1969). Accordingly, we are not at this time prepared 
to hold that the geographical zoning plan adopted by the 
lower court is the only “ feasible”  means of assigning- 
pupils to facilities in the Little Rock School System. Green 
v. County Board of Education of New Kent County, 391 
U.S. at 439.

24 Aaron v. Cooper, 257 F.2d 33, 39 (1958).



— 18 —

GROSS-APPEAL

By way of cross-appeal defendants challenge those pro­
visions of the district court’s order departing from the 
geographical zoning plan submitted by the Board. Since 
we have found the plan adopted by the district court to be 
deficient in the aforementioned particulars thereby requir­
ing remand for adoption of an entirely new plan, defend­
ants’ objections become somewhat academic. Nevertheless, 
we briefly address ourselves to the contention that any 
consideration of race in the placement of pupils is a 
violation of the Fourteenth Amendment.

This argument is not new and has been previously heard 
and rejected by this court. Kemp II, 389 F.2d at 187-88. 
See also United States v. Jefferson County Board of Edu­
cation, 372 F.2d 836, 876-78 (5th Cir. 1966); Wanner v. 
County School Board, 357 F.2d 452, 454-55 (4th Cir. 1966); 
Fiss, Racial Imbalance in the Public Schools: The Con­
stitutional Concepts, 78 Harv. L. Rev. 564, 577-78 (1965). 
As the Wanner court observed it would be somewhat 
anomolous to prevent correction of previous segregation 
under the guise that the remedy impermissibly classifies 
by race. Accordingly, we are not persuaded by defendants’ 
contention that the Fourteenth Amendment prohibits the 
drawing of geographic zones to promote desegregation, 
the majority to minority transfer plan, or any other con­
sideration of race for the purpose of correcting uncon- 
stutionally imposed segregated education.

REMEDY

This court has long recognized that it should not en­
deavor to devise a plan of desegregation for any school 
district. Kemp III, supra; Yarbrough v. Hulbert— West



— 19 —

Memphis School District, supra; Clark v. Board of Educa­
tion of Little Bock, supra; Kemp v. Beasley, 352 F.2d 14 
(8th Cir. 1965); Aaron v. Cooper, 257 F.2d 33 (8th 
Cir. 1958). This task is basically within the province 
of the school board under the supervision of the district 
court. We continue to adhere to this philosophy. In light 
of the size and complexity of the Little Eock School Dis­
trict it is additionally important that the Board be af­
forded ample opportunity to formulate a comprehensive 
plan of desegregation. Nor do we believe it proper to 
direct the Board to adopt a particular means of school 
desegregation. As was observed in Green v. County Board 
of Education of New Kent County, supra, there are a 
variety of methods of desegregation, and no particular 
method is universally appropriate. Considering the unique 
problems facing the District any one of several different 
methods, or a combination thereof, may be deemed ap­
propriate. We leave this decision to the school board and 
the sound discretion of the district court. We do, how­
ever, strongly suggest that the Board consider enlisting 
the services of the Department of Health, Education and 
Welfare in developing an acceptable scheme of deseg­
regation.

Consistent with these above views we consider several 
questions either implicitly or explicitly raised in the 
parties’ briefs and oral arguments.

As in Kemp III, supra, we do not hold that precise 
racial balance must be achieved in each of the several 
schools in the District in order for there to be a “ unitary 
system”  within the meaning of the constitution. Nor do 
we hold that geographical zoning or the neighborhood 
school concept are in and of themselves either constitu­
tionally required or forbidden. See Kemp III. We merely



—  20 —

hold that as employed in the plan now before us they do 
not satisfy the constitutional obligations of the District. 
By so holding we express no opinion as to the relative 
merits or demerits of the neighborhood school.

Lastly, we do not rule that busing is either required or 
forbidden. As Judge Blackmun stated in Kemp 11I, “ Bus­
ing is only one possibe tool in the implementation of uni­
tary schools. Busing may or may not be a useful factor in 
the required and forthcoming solution of the . . . prob­
lem which the District faces.”  . . .  F.2d . . . .  We obeserve 
in passing, however, that busing is not an alien practice 
in the state of Arkansas or this District. Some busing was 
employed by the District in the past to preserve segre­
gated schools. Presently the District, through the use of 
federal funds, aids some children in eastern Little Bock 
who use public transportation to travel to schools, and 
some private busing occurs in the western portion of the 
city. Of course, busing of school children is a common 
practice in many less urban areas of the state and is par­
tially subsidized with state funds.

The case is remanded to the district court with direc­
tions to require the school district to file in the district 
court on or before a date designated by it a plan consistent 
with this opinion for the operation of the system “ within 
which no person is to be effectively excluded from any 
school because of race or color.”  Alexander v. Holmes 
County Board of Education, 396 TT.S. at 20. The plan shall 
be fully implemented and become effective no later than 
the beginning of the 1970-71 school year. The district court 
shall retain jurisdiction to assure that the plan approved 
by it is fully executed.

Because of the urgency of formulating and approving 
an appropriate plan, our mandate shall issue forthwith



—  21 —

and will not be stayed pending petitions for rehearing or 
certiorari.

Costs are allowed to plaintiffs. On remand the question 
of attorney fees may again be presented to the district 
court.

V a n  O o stebh o u t , Chief Judge, and G ibson , Circuit Judge, 
dissenting in part.

Judge Matthes’ carefully prepared majority opinion 
fairly sets out the pertinent facts and issues presented by 
the appeal and cross-appeal in this case. We are in agree­
ment with his determination that the plan should be ap­
proved as to the faculty desegregation, and also with his 
affirmance on the cross-appeal. Wre likewise agree that 
the court properly retained jurisdiction of the case.

With reluctance, we find it necessary to dissent from the 
holding of the majority that the plan for student desegre­
gation should be rejected. The late Judge Young, a very 
able and conscientious judge, heard this case. He advised 
the Board that the existing freedom of choice plan, which 
was being fairly administered, did not meet standards for 
desegregation set by the Supreme Court and he directed 
the Board to present a geographical zoning plan. After 
much study, the Board presented such a plan. An exten­
sive evidentiary hearing was held at which school experts 
testified on behalf of each of the parties. The cause was 
well tried by able counsel for all parties. In due course, 
Judge Young filed a well-considered opinion setting forth 
the law, the evidence and his conclusions. Included in his 
findings of fact is the following:

“ As shown by Defendants’ Exhibit 22, the Board’s 
plan for geographical attendance zones, assuming the



—  22

legality of the neighborhood school concept, seems 
fairly and equitably drawn. There is no indication of 
gerrymandering. ’ ’

Such finding is not contested by plaintiffs. It is supported 
by substantial evidence and is not clearly erroneous.

Judge Young modified the plan in the manner set forth 
in the majority opinion. The principal effect of the modifi­
cation was to impose upon the geographical zoning a 
freedom of choice option which would allow any student 
whose race was in the majority in any school to transfer 
to a school where his race was in the minority. As stated 
by Judge Young, this modification would permit Negro 
students who would otherwise be locked into predominantly 
Negro schools to transfer to predominantly white schools. 
Other modifications made, which Judge Young conceded 
were gerrymandering, were designed to further racial bal­
ance in the schools. The Board’s plan as modified was 
approved. The court in its decree retained jurisdiction 
over the case and required the Board to report further 
upon the operation of the plan.

For the reasons assigned by Judge Young in his well- 
considered opinion, we believe the modified plan as ap­
proved meets constitutional standards. Everything has 
been done that could be done short of abandonment of the 
neighborhood school system to eliminate segregation. Plain­
tiffs have pointed to no existing state law that prevents 
desegregation or integration and we find no such law. It 
can no longer be fairly said that the desegregation process 
is impeded by state law.

Geographic attendance zones fairly laid out without 
racial discrimination by a unitary system should meet 
the constitutional standards set forth in Brown I and sub­



—  23

sequent Supreme Court cases commanding a racially non- 
discriminatory school system. There is no question here 
of dual attendance zones or of a state imposed pattern of 
segregation.

The neighborhood school concept, as shown by expert 
testimony in the record, is a well-established and accept­
able means of providing a proper educational program 
in all sections of the country for people of all nationalities 
and races. President Nixon in a recent public statement 
has said neighborhood schools “ will be deemed the most 
appropriate base”  for an acceptable school system, and 
“ transportation of pupils beyond normal geographical 
school zones for the purpose of achieving racial balance 
will not be required.” 1

The basic issue presented on this appeal appears to be 
whether upon the facts disclosed by the record a fairly 
established geographical zoning system for neighborhood 
schools must be abolished in order to attain racial balance 
and if so, whether such balance in each school must closely 
approach the percentage of each race in the district.

It would appear from the record before us that such 
racial balance could only be accomplished by pairing white 
and Negro districts, a considerable distance from each 
other. On this issue, Judge Young states:

l The Gallup poll published in many papers on April 5, 1970, includes 
the following conclusions:

“By the lopsided margin of eight to one, parents vote in opposition 
to busing, which has been proposed as a means of achieving racial 
balance in the nation’s classrooms.

“Opposition to busing arises not from racial animosity but from 
the belief that children should attend neighborhood schools and 
that busing would mean higher taxes. This is seen from a compari­
son of attitudes on busing with those on mixed schools.
* * * * *

“When Negro parents are asked the same series of questions, the 
weight of sentiment is found to be against busing.”



24 —

“  [T]he plaintiffs attack the neighborhood school prin­
ciple, saying it has no validity and that the geographic 
attendance zones should run lengthwise the District. 
This, as they admit, would involve compulsory trans­
portation of students by bus for distances at least six 
to eight miles. This is so because the schools in the 
central part of the City, including Central High, are 
largely integrated, and the great disparity between 
the races exists in the extreme eastern and western 
parts. Therefore, transportation of pupils would con­
sist largely of transportation from the extreme east-to- 
west and vice versa, traversing the crowded traffic 
conditions of the middle section, including the down­
town district. Thus, high school pupils from Horace 
Mann in the east would have to be transported past 
Central to Hall High in the west, or vice versa. The 
same would be true in a lesser degree with the junior 
high and elementary schools.”

The District Courts and the Courts of Appeals are 
divided upon the constitutional validity of retaining geo­
graphical school zones fairly drawn without discrimina­
tion. Such issue can only be authoritatively answered by 
the Supreme Court. While broad language in some of the 
Court’s opinions could arguably be subject to an inter­
pretation that some degree of racial balance is required, 
it is our view that the Supreme Court has not decided this 
issue. See Chief Justice Burger’s concurring opinion in 
Northcross v. Board of Education, . . . H.S. . . . (March 9, 
1970).

The exhibits in the record reflect that in northern states 
as well as in the south, the Negro population is frequently 
concentrated in certain geographical areas and that as a 
result in many northern metropolitan areas some neighbor­
hood schools serve predominantly only Negro students. 
Absent state law forcing segregation, as is the situation



__9,5__ _------ *j O ------

here, we see no racial discrimination or violation of equal 
protection. The Constitution should be applied uniformly 
in all sections of this country.

The approved plan has been in operation only a short 
time. Particularly in light of the freedom of choice option 
superimposed upon the geographical zoning, no reliable 
prediction can be made as to the effect of the plan on 
desegregation.

Moreover, any resident of a geographical school zone is 
entitled to attend the school serving his zone regardless 
of race. Federal law now prohibits racial discrimination 
in the sale of homes. It is quite possible that acquisition 
of homes by Negroes in predominantly white zones will 
promote racial balance in the schools. The approved 
teacher desegregation plan should also produce more racial 
balance.

The busing issue is siibsidiary to the neighborhood 
school issue. Busing is of course, frequently provided to 
transport pupils living at a substantial distance from the 
schools, particularly in sparsely settled areas. Here a 
neighborhood school is at hand. Judge Young states that 
the evidence shows that the annual cost of busing in event 
of the proposed pairing of districts is $500,000, which ap­
parently is exclusive of required capital expenditure. The 
busing issue presents the additional problem of whether 
such a substantial outlay could not be better used for 
educational purposes.

Absent authoritative guide lines from the Supreme Court 
as to the constitutional status of neighborhood schools in 
metropolitan districts, the Board upon remand would be 
at a loss to know what course to take in devising a desegre-



—  26 —

gation plan. The remand for the proposal and considera­
tion of a new plan for desegregation, absent more specific 
guide lines, would only create confusion and lack of sta­
bility in the Little Rock school system.

We would affirm the order and judgment of the trial 
court in its entirety.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.



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