Correspondence from Williams to Chambers and Winner
Correspondence
June 23, 1982
Cite this item
-
Brief Collection, LDF Court Filings. Clark v. Little Rock Board of Education Brief for Appellants, 1969. 0220c692-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/35d861a5-af8c-42dd-a554-ead2cf2c77a5/clark-v-little-rock-board-of-education-brief-for-appellants. Accessed July 01, 2025.
Copied!
J V
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 71-1415
DELORES CLARK, et al..
Appellants,
vs.
BOARD OF EDUCATION OF THE
LITTLE ROCK SCHOOL DISTRICT, et al.,
Appellees.
Appeal from the United States District Court
for the Eastern District of Arkansas, Western Division
BRIEF FOR APPELLANTS
m
JACK GREENBERG
NORMAN J. CHACHKIN
10 Columbus Circle
New York, New York 10019
JOHN W. WALKER
PHILIP E. KAPLAN
WALKER, KAPLAN & MAYS, P.A.
1820 West Thirteenth Street
Little Rock, Arkansas 72202
Attorneys for Appellants
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 19795
DELORES CLARK, et al.,
Appellants,
vs.
THE BOARD OF EDUCATION OF THE LITTLE
ROCK SCHOOL DISTRICT, et al.
NO. 19810
DELORES CLARK, et al.,
Appellees,
vs.
THE BOARD OF EDUCATION OF THE LITTLE
ROCK SCHOOL DISTRICT, et al.
Appeals from the United States District Court for the Eastern
District of Arkansas, Western Division
BRIEF FOR APPELLANTS - CROSS-APPELLEES
JOHN W. WALKER
BURL C. ROTENBERRY
1820 West 13th Street
Little Rock, Arkansas 72202
JACK GREENBERG
JAMES M. NABRIT, III
NORMAN J. CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Appellants in
No. 19795
Attorneys for Appellees in
No. 19810
INDEX
Page
Table of C a s e s .......................................iii
Table of Statutes and Other A u t h o r i t i e s ...........viii
Preliminary Statement .............................. 1
Issues Presented for Review ........................ 2
Statement ........................................... 2
The Little Rock School District .............. 5
The Oregon and Parsons P l a n s .................. 13
Development of the Plan Approved Below . . . . 15
The Plan Approved Below
1. Pupil Assignment ...................... 18
2. Faculty.................................. 20
Alternatives Available to the District . . . . 23
ARGUMENT
Introduction .................................. 27
The Little Rock Zoning Plan For Pupil
Assignment Is Unacceptable Because It
Preserves The Racial Identity Given Each
School By Appellees' Own Past Policies And
Practices........................................ 29
The District's Plan For Faculty Desegregation
Is Inadequate.................................... 52
The District Court Has The Power To Require
That A Unitary School System Be Achieved Even
If The Neighborhood School Concept Must Be
Abandoned Or Provision Of Pupil Transportation
M a d e .............................................53
The District Court's Denial of Attorneys' Fees
Was An Abuse Of D i s c r e t i o n .....................61
C o n c l u s i o n ...................................... 65
►
i
Table 1 ........................................... 34
Maps:
1 Little Rock Public Schools 1956-1969 . . 7
Page
2 Sources of Racial Identities of
Little Rock S c h o o l s .....................40
3 Racial Identities of Little Rock
S c h o o l s ..................................41
4 1968-1969 Enrollment ................... 42
5 Projected Pupil Enrollment Under Zones
Approved Below .......................... 43
6 Projected Pupil Enrollment Under Zones
Approved Below .......................... 44
Appendices:
1 Defendants' Trial Exhibit No. 5 - Pupil
Enrollment 1960-61 to 1968-69 ......... 66
2 Defendants' Trial Exhibit No. 24 -
Faculty Assignments For 1969-70 In
Accordance With Defendants' Plan Of
Desegregation .......................... 77
3 Defendants' Trial Exhibit No. 25 -
Pupil Enrollment 1969-70 Projected
According to Zones Shown on Map,
Defendants' Trial Exhibit No. 22 . . . .80
4 Pp. 16 - 25 of Defendants' Trial
Exhibit No. 19 - "Walker" Plan of
Desegregation .......................... 83
5 Defendants' Exhibit No. 8 From 1965
Trial - Projection of Enrollments
Under Proposed Zoning P l a n .............93
6 Stipulation of Counsel As To Exhibits
in Aaron v. Cooper, 143 F. Supp. 855
(E.D. Ark. 1 9 5 6 ) ........................ 95
IX
Table of Cases
Page
Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957). . 2, 3, 27, 31
Aaron v. Cooper, 257 F -2d 33 (8th Cir. 1958),
aff'd sub nom. Cooper v. Aaron, 358 U.S.
1 (1958) .................................. 27
Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) . . 4
Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark.
1956) , aff'd 243 F .2d 361 (8th Cir.
1 9 5 7 ) 3, 27, 33, 37, 38
Aaron v. Cooper, 2 Race Rel. L. Rep. 934 (E.D.
Ark. 1957), aff'd 254 F .2d 808 (8th Cir.
1 9 5 8 ) ...................................3
Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark.
1957), aff'd sub nom. Faubus v. United
States, 254 F.2d 797 (8 th Cir. 1958) . . . 3
Aaron v. Cooper, 163 F. Supp. 13 (E.D. Ark. 1958),
cert, denied, 357 U.S. 566 (1958), rev'd
257 F.2d 33 (8th Cir. 1958), aff'd sub nom.
Cooper v. Aaron, 358 U.S. 1 (1958) . . . . 3
Aaron v. Cooper, 169 F. Supp. 325 (E.D. Ark.
1 9 5 9 ) .......................................4
Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark.
1959) (per curiam), aff'd sub nom. Faubus
v. Aaron, 361 U.S. 197 (1959).............4
Aaron v. Tucker, 186 F. Supp. 913 (E.D. Ark.
1960) , rev'd sub nom. Norwood v. Tucker,
287 F . 2d 798 (8 th Cir. 1961) ............. 4
Anthony v. Marshall County Bd. of Educ., 409
F . 2d 1287 (5th Cir. 1 9 6 9 ) ................. 19
Balaban v. Rubin, 40 Misc. 2d 249, 242 N.Y.S.2d
974 (Sup. Ct. 1963), rev'd 20 A.D.2d 438,
248 N.Y.S.2d 574 (2d Dept.), aff'd 14 N.Y.2d
193, 199 N.E.2d 375, 250 N.Y.S.2d 281 (1964),
cert, denied, 379 U.S. 881 (1964)........ 30
Barksdale v. Springfield School Comm., 237 F.
Supp. 543 (D. Mass. 1965), vacated without
prejudice 348 F.2d 261 (1st Cir. 1965) . . 30
ill
Page
Bell v. School City of Gary, Ind., 213 F- Supp.
819 (N.D. Ind.), aff'd 324 F.2d 209 (7th
Cir. 1963), cert, denied, 377 U.S. 924
(1964) ..................................... 30
Bivins v. Board of Public Educ. of Bibb County,
284 F. Supp. 8 8 8 (M.D. Ga. 1967) ......... 57
Blocker v. Board of Educ. of Manhasset, 226 F.
Supp. 208 (E.D.N.Y. 1 9 6 4 ) ................. 30
Board of Public Instruction of Duval County
v. Braxton, 326 F.2d 616 (5th Cir. 1964) . 57
Board of Public Instruction of Duval County
v. Braxton, 400 F.2d 900 (5th Cir. 1968) . 56
Booker v. Board of Educ. of Plainfield, 45 N.J.
161, 212 A.2d 1 (1965) ................... 30
Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960) . . 45
Braxton v. Board of Public Instruction of Duval
County, Civ. No. 4598-5 (M.D. Fla., Jan.
24, 1 9 6 7 ) .................................. 45
Brewer v. School Bd. of City of Norfolk, 397 F.2d
37 (4th Cir. 1968) ........................ 51
Brooks v. County School Bd. of Arlington County,
324 F . 2d 303 (4th Cir. 1963) ............. 45
Brown v. Board of Educ., 347 U.S. 483 (1954) . . 3
Brown v. Board of Educ., 349 U.S. 294 (1955) . . 3, 30, 56
Byrd v. Board of Directors of the Little Rock
School Dist., Civ. No. LR 65-C-142 (E.D.
Ark. 1965) ............................... 11, 12, 27
Carr v. Montgomery County Bd. of Educ., 253 F.
Supp. 306 (M.D. Ala. 1966) ............... 57
Cato v. Parham, 403 F.2d 12 (8th Cir. 1968) . . 24
Cato v. Parham, 297 F. Supp. 403 (E.D. Ark.
1 9 6 9 ) ....................................... 46-47
Cato v. Parham, Civ. No. PB 67-C-69 (E.D. Ark.
July 25, 1969) ............................ 48
Clark v. Board of Educ. of Little Rock, 369 F.2d
661 (8 th Cir. 1966)
IV
4, 5, 11, 27, 33, 37,
45, 61, 63
Page
Cooper v. Aaron, 358 U.S. 1 (1958)............. 3, 30, 56
Coppedge v. Franklin County Bd. of Educ., 404
F.2d 1177 (4th Cir. 1 9 6 8 ) ................. 64
Davis v. Board of Comm'rs of Mobile County, 3 93
F . 2d 690 (5th Cir. 1968) ................. 60
Deal v. Cincinnati Bd. of Educ., 244 F. Supp.
572 (S.D. Ohio 1965), aff'd 369 F.2d 55
(6th Cir. 1966), cert, denied, 389 U.S.
847 (1967) ................................ 30, 31
Dove v. Parham, 282 F .2d 256 (8 th Cir. 1960) . . 45, 49, 51-52, 60
Dowell v. School Bd. of Oklahoma City, 244 F.
Supp. 971 (W.D. Okla. 1965), aff'd 375
F.2d 158 (10th Cir.), cert, denied 387
U.S. 931 (1967)............................ 46, 56, 57
Dowell v. School Bd. of Oklahoma City, Civ. No.
9452 (W.D. Okla., August 8 , 1969), vacated
___ F .2d ___ (10th Cir. No. 436-69, August
27, 1969), reinstated ___ S. Ct. ___ (Mr.
Justice Brennan, Acting Circuit Justice,
August 29, 1969) .......................... 59
Downs v. Board of Educ. of Kansas City, 336 F.2d
988 (10th Cir. 1964), cert, denied, 380 U.S.
914 (1965) ................................ 30
Felder v. Harnett County Bd. of Educ., No. 12,894
(4th Cir., April 22, 1969) ............... 64
Gilbert v. Hoisting & Portable Engineers, 237 Ore.
139, 390 P.2d 320 (1964) ................. 64
Goss v. Board of Educ. of Knoxville, 373 U.S.
683 (1963) ................................ 45
Goss v. Board of Educ. of Knoxville, 406 F.2d
1183 (6th Cir. 1969) ...................... 31
Green v. County School Bd. of New Kent County,
Virginia, 391 U.S. 430 (1968)............. 4, 4-5, 30, 45
Griffin v. County School Bd. of Prince Edward
County, 377 U.S. 218 (1964)................. 45, 5 7
Haney v. County Bd. of Educ. of Sevier County,
410 F . 2d 920 (8th Cir. 1969) ............. 45, 46, 53, 56, 57
v
Page
Henry v. Clarksdale Municipal Separate School
Dist., 409 F .2d 682 (5th Cir. 1969) . . . . 46, 48
Holland v. Board of Public Instruction of Palm
Beach County, 258 F.2d 730 (5th Cir. 1958) 51
Houston Ind. School Dist. v. Ross, 282 F .2d 95
(5th Cir. 1960) ............................ 45
Jackson v. Marvell School Dist. No. 22, 389
F .2d 740 (8th Cir. 1968) ................. 53
Jackson v. Pasadena School Bd., 59 Cal. 2d 876,
31 Cal. Rptr. 606, 382 P.2d 878 (1963) . . 30
Kelley v. Altheimer, Ark. School Dist. No. 22,
378 F . 2d 483 (8 th Cir. 1967) ............. 45, 53, 57, 60
Kemp v. Beasley, 352 F .2d 14 (8 th Cir. 1965) . . 29, 53
Kemp v. Beasley, 389 F.2d 178 (8 th Cir. 1968)
Keyes v. School Dist. No. 1, Denver, Civ. No.
C-1499 (D. Colo., July 31, 1969; August
14, 1969), stay pending appeal granted,
F .2d (10th Cir. No. 432-69, August
27, 1969), stay vacated, S. Ct.
53, 55, 64
(Mr. Justice Brennan, Acting Circuit Justice,
August 29, 1969) .......................... 46, 59
Mapp v. Board of Educ. of Chattanooga, 373 F.2d
75 (6 th Cir. 1967) ........................ 31
McGhee v. Nashville Special School Dist., Civ.
No. 962 (W.D. Ark., June 22, 1967) . . . . 57
Monroe v. Board of Comm'rs of the City of Jack-
son, Tennessee, 391 U.S. 450 (1968) . . . . 5
Monroe v. Board of Comm'rs of City of Jackson,
Tennessee, 244 F. Supp. 353 (W.D. Tenn.
1 9 6 5 ) ....................................... 63
Moore v. Tangipahoa Parish School Bd., Civ. No.
15556 (E.D. La., July 2, 1969) ........... 59
Morean v. Board of Educ. of Montclair, 42 N.J.
273, 200 A.2d 97 (1964) ................... 30
Morris v. Williams, 59 F. Supp. 508 (E.D. Ark.
1944), rev'd 149 F .2d 703 (8 th Cir. 1945) . 27
vi
Page
Northcross v. Board of Educ. of City of Memphis,
333 F . 2d 661 (6 th Cir. 1964) ............. 49
Northcross v. Board of Educ. of City of Memphis,
Civ. No. 3931 (W.D. Term., May 15, 1969) . 58
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) 4, 27, 31
Plaquemines Parish School Bd. v. United States,
No. 24009 (5th Cir., August 15, 1969) . . . 56-57
Raney v. Board of Educ. of the Gould School
Dist., 391 U.S. 443 (1968) ............... 4, 5
Raney v. Board of Educ. of the Gould School
Dist., 381 F.2d 252 (8 th Cir. 1967), rev'd
391 U.S. 443 (1968)........................ 60
Ross v. Dyer, 312 F .2d 191 (5th Cir. 1963) . . . 45
Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3
(1962) ..................................... 10, 31, 32
Schine Chain Theatres v. United States, 334 U.S.
110 (1948) ................................ 57
Smith v. Board of Educ. of Morrilton, 365 F.2d
770 (8th Cir. 1 9 6 6 ) ........................ 53
Swann v. Charlotte-Mecklenburg Bd. of Educ., ___
F. Supp. ___, Civ. No. 1974 (W.D.N.C.,
April 23, 1 9 6 9 ) ............................ 49-50, 58-59
Taylor v. Board of Educ. of New Rochelle, 195 F.
Supp. 231 (S.D.N.Y.), aff'd 294 F .2d 36 (2d
Cir. 1961) ................................ 23
Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga.
1 9 6 5 ) ....................................... 57
United States v. Board of Educ. of Bessemer, 396
F . 2d 44 (5th Cir. 1 9 6 8 ) ................... 20
United States v. Greenwood Municipal Separate
School Dist., 406 F.2d 1086 (5th Cir. 1969) 46
United States v. Indianola Municipal Separate
School Dist., 410 F.2d 626 (5th Cir. 1969). 46
Vll
Page
United States v. Jefferson County Bd. of Educ.,
377 F.2d 836 (1966), aff'd on rehearing en
banc, 380 F.2d 385 (5th Cir.), cert, denied
sub nom. Caddo Parish School Bd. v. United
States, 389 U.S. 840 (1967).................. 59
United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969)....................... 20, 53
United States v. National Lead Co., 332 U.S. 319
(1947) 57
United States v. School Dist. No. 151 of Cook
County, 286 F. Supp. 786 (N.D. 111.), aff'd
404 F . 2d 1125 (7th Cir. 1 9 6 8 ) ............. 59
United States v. Standard Oil Co., 221 U.S. 1
(1910) 5 7
Walton v. Nashville Special School Dist., 401
F . 2d 137 (8 th Cir. 1968) ................. 53
Wanner v. County School Bd. of Arlington County,
357 F . 2d 452 (4th Cir. 1966) ............. 56
Yarbrough v. Hulbert-West Memphis School Dist.,
380 F . 2d 962 (8th Cir. 1967) ............. 53
Louisiana v. United States, 380 U.S. 145 (1965) 57
Table of Statutes and Other Authorities
42 U.S.C. §2000c-6 (Section 407 of the Civil
Rights Act of 1 9 6 4 ) ........................59
15 U.S.C. § 4 ........................................
8 8 Cong. Rec. 13820-21 .............................
Acts of Arkansas, 1961, No. 265 ........... 05
vfii
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 19795
DELORES CLARK, et al.,
Appellants,
vs.
THE BOARD OF EDUCATION OF THE LITTLE
ROCK SCHOOL DISTRICT, et al.
NO. 19810
DELORES CLARK, et al.,
Appellees,
vs.
THE BOARD OF EDUCATION OF THE LITTLE
ROCK SCHOOL DISTRICT, et al.
Appeals from the united States District Court for the Eastern
District of Arkansas, Western Division
BRIEF FOR APPELLANTS - CROSS-APPELLEES
Preliminary Statement
This is an appeal and cross-appeal from the unreported order
of the united States District Court for the Eastern District of
Arkansas, Western Division, the late Gordon E. Young, United States
District Judge, entered May 16, 1969.
Issues Presented for Review
1. Whether the district court erred in accepting a zoning
plan which conforms to racial residential patterns and which fails
to create a system without racially identifiable schools.
2. Whether adherence to the neighborhood school concept
excuses the failure of a school district formerly segregated by
law to implement a unitary school system.
3. Whether a district court may require a school district to
furnish bus transportation or to raise additional funds necessary
to implement a plan for a unitary system.
4. Whether a plan of faculty desegregation which places
significantly lower percentages of Negro teachers in formerly white
schools than in Negro schools, and significantly lower percentages
of white teachers in Negro schools than in formerly white schools,
was properly approved and is consistent with the achievement of a
unitary system.
Statement
This appeal is the latest chapter in litigation begun in 1956
to desegregate the public schools of Little Rock, Arkansas (A. 7).
In that year, the district court approved a plan of gradual
integration which it found would "bring about a school system not
based on color distinctions," Aaron v. Cooper, 243 F.2d 361, 362
(8 th Cir. 1957). The complete history of the litigation is set out
2
in the margin. I/
1/ After Brown v. Board of Educ., 347 U.S. 483 (1954), the
Little Rock school board adopted a plan of very gradual
integration. When that plan was not implemented, Negro students
and their parents brought suit in 1956. The initial plan,
calling for complete desegregation by 1963, was approved by
the district court that year, Aaron v. Cooper, 143 F. Supp. 855
(E.D. Ark. 1956). This court rejected arguments that more
rapid desegregation should be required, in part for the reason
that the first plan had been voluntarily adopted by the school
board even before the second Brown decision (Brown v. Board of
Educ., 349 U.S. 294 (1955)). Aaron v. Cooper, 243 F.2d 361 (8th
Cir. 1957). Subsequently, when white parents obtained a state
injunction to prevent implementation of the plan in 1957-58,
the district court restrained compliance with the order of the
Arkansas court and mandated execution of the plan. Aaron v.
Cooper, 2 Race Rel. L. Rep. 934-36, 938-41 (E.D. Ark. 1957),
aff1d 254 F.2d 808 (8th Cir. 1958). The Governor of Arkansas
then took measures to prevent Negroes from attending classes at
the previously-white Central High School, including the
stationing of National Guardsmen with fixed bayonets at the school
with orders to prevent the entry of Negro students. This conduct
was enjoined in Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark. 1957)
aff1d sub nom. Faubus v. United States, 254 F.2d 797 (8 th Cir.
1958). However, intervention by federal troops under direct
order of the president of the United States was required to
effectuate compliance with the district court's orders and with
the Constitution. Cooper v. Aaron, 358 U.S. 1, 12 (1958).
After the conclusion of the 1957-58 school year, the board
sought to delay implementation of the plan for at least three
additional years because of the extent of white opposition to
integration. The district court's order approving a delay,
Aaron v. Cooper, 163 F. Supp. 13 (E.D. Ark. 1958), cert, denied,
357 U.S. 566 (1958), was reversed by this Court, 257 F.2d 33
(8 th Cir. 1958), aff1d sub nom. Cooper v. Aaron, 358 U.S. 1 (1958).
Pursuant to emergency measures passed by the Arkansas
Legislature in special session, the Governor of Arkansas then
ordered all Little Rock high schools [the desegregation plan
at that time extended only to the high school grades] to be
closed indefinitely. Thereupon, the board undertook to lease
its high school buildings to a segregated private school
corporation. The district court denied an injunction against
the leasing of the facilities, but this court reversed and
3
The instant proceedings were formally commenced in July 1968
with the filing of a Motion for Further Relief based upon Green v.
1/ (continued)
required issuance of the decree, Aaron v. Cooper, 261 F.2d 97
(8 th Cir. 1958). However, Little Rock public high schools
remained closed during the 1958-59 school year, see Aaron v.
Cooper, 169 F. Supp. 325 (E.D. Ark. 1959), until the Arkansas
school closing legislation was declared void by a three-judge
district court in Aaron v. McKinley, 173 F. Supp. 944 (E.D.
Ark. 1959)(per curiam).aff1d sub nom. Faubus v. Aaron, 361 U.S.
197 (1959).
The board then assigned pupils during the 1959-60 school
year on the basis of regulations adopted by it pursuant to the
Arkansas Pupil Placement laws, which required consideration
of a multitude of factors other than residence (<2.c[., "the
possibility of breaches of the peace or ill will or economic
retaliation within the community"). An attack upon these laws
was rejected by the district court, Aaron v. Tucker, 186 F.
Supp. 913 (E.D. Ark. 1960), but its judgment was reversed by
this Court, Norwood v. Tucker, 287 F.2d 798, 802 (8 th Cir. 1961),
which said, "[w]hile we are convinced that assignment on the
basis of pupil residence was contemplated under the original
plan of integration, it does not follow that the school officials
are powerless to apply additional criteria in making initial
assignments and re-assignments." This court found on the record
that the board's use of the pupil placement laws was "motivated
and governed by racial considerations," _id. at 806, and noted
that the board's "obligation to disestablish imposed segregation
is not met by applying placement or assignment standards,
educational theories or other criteria so as to produce the
result of leaving the previous racial situation existing as it
was before." Id_. at 809.
The Clark plaintiffs in 1965 complained of continued
manipulation of the Pupil Placement laws to limit the movement
of Negroes into previously all-white schools. The district
court so found. See Clark v. Board of Educ. of Little Rock,
369 F.2d 661, 665 (8 th Cir. 1966). While the district court's
opinion in that case was being prepared, the board determined
to abandon the Pupil Placement laws in favor of a "freedom of
choice" plan, subsequently approved by the district court and
by this Court with certain directed modifications. Clark v. Board
of Educ. of Little Rock, supra. After the Supreme Court's
opinions in Green v. County School Board of New Kent County,
Virginia, 391 U.S. 430 (1968) and Raney v. Board of Educ. of the
Gould School Dist., 391 U.S. 443 (1968), the present proceedings,
attacking free choice as an effective method of desegregation on
the basis of its actual performance in Little Rock, were started.
4
County School Board of New Kent County, Virginia, 391 U.S. 430
(1968) and companion cases. In that Motion (A. 5a-14a),
plaintiffs below sought — and plaintiff-intervenors sought in their
Complaint (see A. 27a-31a) — an order requiring the Little Rock
School District to abandon the free choice plan of desegregation
approved with modifications by this Court in Clark v. Board of
Educ. of Little Rock, 369 F.2d 661 (8 th Cir. 1966) and to adopt
and implement a plan of desegregation which "promises realistically"
to convert now to a unitary school system. After further proceedings,
the district court approved a geographic zoning plan submitted by the
board.
The Little Rock School District
At the present time there are five high schools, seven junior
high schools, and thirty-one elementary schools (Defendants' Exhibit
3/
No. 24, pp. 77 - 79 infra) in the Little Rock School District, serving
2/ Raney v . Board of Educ. of the Gould [Arkansas] School
Dist., 391 U.S. 443 (1968); Monroe v. Board of Comm'rs. of
the City of Jackson, Tennessee, 391 U.S. 450 (1968).
3/ Because of the size of the record, counsel agreed that
trial exhibits would not be reproduced in the Appendix. It
was further agreed that either side might print any desired
exhibits as appendices to its brief. The original file of
the district court, including exhibits, will also be
transmitted to this court.
5
an estimated 1969-70 student enrollment of 15,377 white students
and 8,281 Negro students (Defendants' Exhibit No. 25, pp. 80 -82
infra). As the district court noted in its Memorandum Opinion
(A. 895), the district generally forms an irregular rectangle with
the longer side running from east to west along the Arkansas River.
The most prominent exception to this pattern is the extension of
the district in two finger-like projections at its northwest end.
These have resulted from the district's annexation, since 1956, of
the white residential subdivisions of Walton Heights and candlewood.
Between the two "fingers" lies a Negro residential area known as
Pankey (A. 485-589). See Map 1.
6
•Terry
MAPI
Little Rock Public Schools 1956-1969
.̂'cDermott
•Williams
^iall ‘Forest Heights
•BradyHenderson
•Fair Park JPulaski Height
•Jackson
•Capital Hill «Kramer •Lee -West SideCentral'
•Parkview
Nomine
Woodruff
lap
•W<
•Franklin .Stephens “Cmtenmaf of} • ’arham Stephens .Dunbar Side looker
•Garland ’Rightsell *Bush
•Oakhurst -Mitchell ‘̂ n n
•Bale *Washington
•Southwest * sh
•Carver
Wilson
•Westeaya-
Hillsf
Gillam
llefedowcliff
i
l
•Grgjnite Mountain
» •
Since 1956 the district has expanded almost exclusively to the
1/
west. Of thirteen new school facilities opened since that year,
only three have been located in the east-central section of the
city: Booker Jr. High, Ish and Gillam Elementary Schools. All were
named for prominent Negroes (A. 473, 482); all were initially opened
as Negro schools (A. 473, 477, 482) with all-Negro faculties (Ibid).
5/
On the other hand, the district built nine schools in Western
Little Rock between 1956 and 1969: Parkview High School, Henderson
Junior High and Southwest Junior High Schools, Bale, McDermott,
Romine, Terry, Western Hills and Williams Elementary Schools. In
each instance, these schools were initially filled with an all-white
faculty (A. 154) and they have remained identifiable as "white"
schools (see Table 1, p. 34 infra).
4/ Expansion of the district has not benefited both white and
Negro citizens of Little Rock. Various urban renewal projects
since 1954 have eliminated areas of Negro residences near the
present Hall High School (A. 289) , and in Pulaski Heights
(A. 290-91). Of more than one hundred and seventy-five
subdivisions developed in Little Rock between 1950 and 1968
(Plaintiffs1 Exhibit No. 4), only two — Granite Mountain and
University Park — have Negro residents (A. 746). On the other
hand, William Meeks, a member of the Little Rock School Board
and Little Rock "Realtor of the Year" in 1967, testified of
discrimination against Negroes in the sale of housing (A. 743-44)
He said that he knew of no Little Rock realtor, even up to the
time of the hearing in this case, who would knowingly sell a lot
in a "white" subdivision to a Negro (A. 294). Newspaper
advertisements reflecting listings of sale property by race were
also introduced in evidence (Plaintiffs' Exhibit No. 3).
5/ The thirteenth facility opened since 1956 was Metropolitan
High School, a vocational-technical school serving both Little
Rock and the Pulaski County Special School District. It is
located outside the district’s boundaries.
8
When all-Negro Pfeifer and Carver schools became overcrowded,
the district did not offer Negro students a second choice of schools
(A. 315-16), but moved portable classrooms to the site to expand
the capacity of the schools and contain the Negro student population
(A. 498-99). In contrast, Hall High School was declared overcrowded
under the freedom-of-choice plan, necessitating the establishment of
an attendance zone. However, when the board drew the zone it made
no attempt to maximize desegregation in the school (A. 222-23).
In addition to staffing new schools with all-white or all-Negro
faculties, the district hired teachers on a strictly racial basis
through 1964-65 (A. 28); thereafter, all attempts to achieve faculty
integration were on a purely voluntary basis only (A. 255). And
prior to July 1968, except for two white principals at Negro schools,
the district maintained a racial allocation of prinicpalships, with
white principals at traditionally white schools and Negro principals
at "Negro" schools (A. 121-22).
In 1966, the district purchased a school site in Pleasant Valley,
an exclusively white upper-middle class subdivision (Defendants'
6 7 (continued)
to the Negro schools they were assigned to
attend; and none of the white pupils in the
geographic attendance area were reassigned.
Thus, when the district court required the
school board to provide the pupils assigned
to Negro schools an opportunity to make a
choice of schools in Byrd et al. v. Board
of Directors of the Little Rock School
District, Civ. No. LR 65-C-142, the character
of the new school had become an established
fact. The board had thus created by design
another "Negro" school and had again made
clear its unwillingness to either assign white
pupils to "Negro" schools or Negro pupils to
predominantly white schools.
12
Exhibit No. 30; A. 213, 485), again without any consideration of
the racial composition of the neighborhood or the past history of
segregation (A. 486). Any school constructed on the site (there is
a sign there announcing that a school will be built on the site)
would be all-white; were Pleasant Valley, Walton Heights and Candlewood
subdivisions not within the Little Rock district, the closest school
would be a predominantly Negro school in the pankey area (A. 488-89).
Finally, — and this list is by no means exhaustive of the means
by which this district maintained the segregated character of its
system -- the school district undertook to build a new senior high
school (parkview) in the far western section of the city in 1967
despite the availability of over four hundred vacant classroom spaces
at Horace Mann High School (A. 144-45). Three high schools could
still serve the high school population of the district (A. 131); the
overcrowding at the time was in junior high schools (A. 617-18). Of
course, parkview is clearly identifiable as a "white" school while
Mann is just as clearly a "Negro" school.
The Oregon and Parsons Plans
In 1966, the school board contracted with a team from the
University of Oregon to prepare a long range plan of desegregation
for the district (A. 61-62). The findings of that team were reported
in early 1967 and became known as the "Oregon Report" (Defendants'
Exhibit No. 7). Basically, the report recommended abandonment of the
neighborhood school concept and restructuring of the district's
schools through a capital building program combined with pairing to
13
create an educational park system (Ibid). The cost of implementing
the "Oregon Report" in its entirety was estimated to be some ten
million dollars; however, as the chief author and director of the
study (Dr. Goldhammer) explained, much of this amount would have
had to be expended for building replacement and remodeling anyway
(A. 367). The Oregon Report would also have required a transportation
system for the school district (Ibid).
Following issuance of the Oregon Report, a school board
election was held in November 1967. Two incumbent members of the
board who supported the recommendations of the Oregon Report were
replaced by candidates who campaigned against it (A. 416-18), and
the vote was interpreted as an indication (a) that the public would
not support implementation of the recommendations, and (b) that the
public would not vote bond monies or tax levies sufficient to implement
them.
The school board then directed the Superintendent and his staff
to prepare their own recommendations of a desegregation plan for
Little Rock (A. 69). After considerable study (A. 73), the
Superintendent's proposals were issued; they quickly became known
as the "parsons Plan" (A. 70; Defendants' Exhibit No. 10). The
Parsons Plan proposed measures to desegregate Little Rock high
schools and two groups of elementary schools, as follows: Horace
Mann High School would be discontinued as an upper grade center and
zones for Hall, Central and Parkview drawn across the city along
east-west axes; Franklin, Garland, Lee, oakhurst and Stephens
14
Elementary Schools would be paired in the "Beta" complex; and
several east Little Rock elementary schools would be closed, with
classes relocated in the Horace Mann building(Ibid). The plan
made no proposals for other elementary schools or for junior highs.
In March 1968, the board placed a $5 million bond issue for implementing
the parsons Plan on the ballot (A. 73-74). Although the Superintendent
campaigned for his plan, the millage increase for the bonds was
rejected (A. 75) and again, candidates favoring no change in the
status quo defeated incumbents who supported the Superintendent's
plan (A. 180-81. See also, A. 417-21).
Development of the plan Approved Below
After the district had responded to the Motion for Further
Relief, the district court set a hearing for August 15, 1968 and
suggested that the Board devise a geographic zoning plan (A. 32a).
The district did present a geographic attendace zone plan at the
August hearing (A. 76). However, this plan was characterized as
an "interim" measure (A. 320) which required further study (A. 91);
the district opposed making any change from freedom-of-choice for
1968-69 and the hearing was limited to whether or not a shift ought
to be required for 1968-69. After the second day of testimony, the
hearing was recessed in order to allow the district to develop and
present a final plan to completely disestablish the dual system
effective with the 1969-70 school year (A. 403-04). That plan was
submitted November 15, 1968 (A. 408d-408g).
15
Although the two plans were essentially similar, the
Superintendent testified that in November, unlike August, the
district had considered all other alternatives before determining
to submit the zoning plan:
1. The Oregon Report was rejected because it required money
to implement it (A. 415), because its abandonment of the neighborhood
school concept was considered educationally unsound (A. 67, 416),
and because it did not have public support (A. 416-17).
2. The parsons Plan was rejected because it, too, required
money for its execution and because it lacked community support
(A. 415-16) .
3. A plan developed and submitted by a group of Negro citizens
and organizations (pp. 16-25 of Defendants' Exhibit No. 19, pp. 83
8/
- 92 infra) — which was referred to as the "Walker Plan" — was
rejected because it required the district to raise funds to provide
1/
77 The Superintendent testified that there was no material
difference between the August and November elementary zones
(A. 509). The November submission included two exceptions
to assignment by zoning not contained in the August plan: 8th,
1 0 th and 1 1 th graders were to be given a choice between their
residence school and the school previously attended; and
children of teachers were to be permitted to enroll in the
school where their parent taught (A. 434-35). Other minor
differences occurred; for example: there would be fewer whites
in the Stephens zone under the November plan (A. 510); there
would be fewer whites at Mann under the later plan (A. 520)
(due to the choice feature, see A. 522) although the Mann zone
would extend further west (A. 521).
8/ This plan combined grade restructuring, pairing and an
extensive transportation system with recommendations for
future development of more centralized larger attendance
centers.
16
feature permitting rotation of high school zones, and because it
9/
paired schools separated by considerable distances (A. 424).
4. A plan proposed by board members Meeks and Woods to
retain free choice, but to reserve space for Negro students at
predominantly white schools (to avoid, for example, closing out
Negro choices at Hall High due to overcrowding, see A. 223) , was
rejected because of the difficulty of administering it (A. 426).
5. The Board also rejected a version of high school zone
lines presented to them by the Superintendent on October 10, 1968.
This version would have extended the Hall zone further southeast;
thereby placing 80 Negro students in Hall (A. 523-26; 631-32).
Although cost was a major factor in the decision to submit a
zoning plan, no cost analysis of the various alternative approaches was
ever requested or made (A. 513-14, 548-49). When the Superintendent
was reminded of his 1965 testimony that adoption of attendance zones
10/
would have been educationally destructive he stated that the
community had turned down all educationally desirable plans so that
zoning was the only remaining alternative (A. 556-67).
In drafting the zones submitted in November, the Superintendent
was not instructed to consider "racial balance" (A. 886-87); rather,
the primary concern was to avoid any inconvenience to students caused
9/ Particularly objected to was the pairing of Meadowcliff
Elementary and Granite Mountain Elementary Schools (A. 425).
However, transportation between the two schools is made
considerably easier by the location of Interstate Highway No.
30.
10/ Compare A. 551; Defendants' Exhibit No. 8 in 1965 trial,
referred to at A. 551 and reprinted here at pp. 93 - 94 infra.
a transportation system (A. 423), because it contained an optional
17
437, 514).
The plan Approved Below
1. Pupil Assignment
The November 15th plan of the school board establishes mandatory
attendance areas for all schools except the district-wide
vocational-technical facility, Metropolitan High School. The zone
boundaries are delineated on the map introduced as Defendants'
Exhibit No. 22. All students must attend the school serving their
grade level in their zone of residence except (a) students attending
Metropolitan High (A. 434); students in the eighth, tenth and eleventh
grades in 1968-69, who may choose between the school in their zone of
residence and the school they previously attended (A. 435); and (c)
children of teachers employed by the district, who may enroll at the
school where their parent is employed (A. 434).
The zones were approved as submitted except that the district
court required (A. 912-13) that the Hall High School zone be redrawn
in accordance with the October 10th proposal of the Superintendent
putting 80 Negro students in Hall High School (which had been
rejected by the Board).
The Superintendent testified that unless Negro teachers enrolled
their children in the schools in which they taught, the board's zoning
plan would result in a greater number of all-white elementary schools
than there had been under freedom of choice (A. 529-30). Indeed, he
had estimated that the August zone plan — very similar to the
by distance or the requirement of transportation (A. 78, 323-24,
18
November plan but without the option for teachers' children —
would have resulted in all-white schools in Western Little Rock and
11/
all-Negro schools on the east side (A. 160). Fewer Negro students
would attend predominantly white schools under the zoning plan than
had been enrolled in such schools under freedom of choice (A. 534-35);
there will be "very little" integration under the zoning plan (A. 162)
since the zones were drawn in a manner that allowed schools to remain
all-white and all-Negro (see A. 434).
Most of the witnesses at the hearing agreed that the parsons
Plan was a better integration plan, at least at the high school
levels, than the board's zoning proposal (A. 129 [superintendent
parsons], 194 [Board President Barron], 298-99 [Board member Meeks],
678 [Dr. Dodson], 819 [Dr. Goldhammer, principal author of the
Oregon Report]). The Superintendent also testified that various
zones drawn in the board's plan, such as those for Gillam Elementary
and Hall High Schools, did not further the goal of integration (A. 158).
From his study of the board's proposals, Dr. Goldhammer concluded that
they did not provide for a unitary school system, and would not be an
Because the zoning plan, in its failure to integrate schools
in Western Little Rock, preserves their racial identity and
encourages accelerated resegregation by whites. See A. 669-70.
(Appellees accuse us of taking both sides of the issue of
resegregation. There is nothing inconsistent in our position:
the possibility of resegregation cannot serve as an excuse
for failure to move to a unitary system, e_.g_., Anthony v.
Marshall County Bd. of Educ., 409 F.2d 1287 (5th Cir. 1969)
but it is proper, in evaluating a plan, to consider whether
continued racially identifiable schools will act as a goad
to encourage it.)
19
improvement over the free choice plan (A. 381-82).
12/
2. Faculty
The district's proposal for faculty desegregation was drawn
up in accordance with the district judge's letter suggestion
(A. 32a) that the racial division of faculties in each school
approximate the racial breakdown among faculty in the entire
13/system.
Although the racial breakdown of faculty in the Little Rock
public schools is 82% white and 18% Negro (A. 446), the percentage
of white teachers in each of the several schools under the plan
varies from 56% to 85%, and that of Negro teachers varies from 15%
to 44% (Table 1, pp. 34 - 3 7 infra; Defendants' Exhibit No. 25,
14/
pp. 80 - 82 infra). The result of the assignment pattern thus
12/ E. C. Stimbert, Superintendent of the Memphis, Tennessee
public school system, was called as an expert witness by
appellees. He strongly supported the neighborhood school
concept, which he termed the "only valid educational theory"
(A. 622) and zoning as the only "educationally sound and
administratively feasible" method of pupil assignment (A. 586),
but he explicitly disclaimed any intention to evaluate the
zones proposed in the board's plan (A. 613). He further stated
that east-west ("strip") zoning [proposed for high schools in
the parsons Plan] which would achieve better racial balance
would be "no better or no worse” educationally than any other
zoning plan (Ibid).
13/ See United States v. Montgomery County Bd. of Educ., 395
U.S. 225 (1969); United States v. Board of Educ. of Bessemer,
396 F .2d 44 (5th Cir. 1968).
14/ The Superintendent explained that the 18% figure had been
reduced to 15% and the 82% figure increased to 85% to permit
"a three per cent flexibility" (A. 446). However, while the
20
proposed is that at each grade level, the formerly Negro schools
have a higher percentage of Negro teachers than do the formerly
white schools (A. 537-41). For example, Central, Hall and parkview
[all schools which are racially identifiable as "white" schools]
will have 15% or 16% Negro faculties, but Horace Mann will have a
29% Negro faculty. Similarly, those junior high schools which are
identifiable as white, either historically or because they were
constructed after 1956 in white neighborhoods and initially staffed
with an all-white faculty, are each to have faculties whose Negro
composition ranges from 19% to 22%. Negro Dunbar and Booker Junior
High Schools, however, will have 43% and 44% Negro faculties,
respectively. Finally, the percentage of the faculty at the district's
"white" elementary schools ranges from 27% to 33% in all schools
except Centennial, Kramer and Lee. The percentages of the faculty
at each of these three schools which will be Negro is 37% at Kramer,
14/ (continued)
projected assignments of Negro teachers vary from the actual
percentage of Negro teachers in the system only 3% downward,
they vary upward some 26%. The projected assignment pattern
for white teachers likewise varies only 3% upward from the
actual, but also some 26% downward from the actual. in
other words, had the district determined to make faculty
assignments so that the ratio of white to Negro teachers
approximated the ratio of white to Negro teachers in the
entire system, and then defined "approximate" to mean "not
varying more than three per cent from the actual percentage
ratios," then Negro teachers would make up between 15% and
2 1% of each school's faculty, and white teachers between
79% and 85% of each faculty. The "three per cent
flexibility" has in each instance been applied to only one
end of the scale.
21
38% at Lee, and 43% at Centennial. No Negro elementary school
has less than a 41% Negro faculty, however, and seven out of nine
black elementary schools will have faculties 43% or more Negro
(Table 1, pp. 34 - 37 infra; Defendants' Exhibit No. 25, pp. 80
82 infra) .
The only explanation which the Superintendent could offer
for this pattern was that the district was "attempting to develop
a plan that will fall within the guidelines which we have proposed
to the court for the first year that will prevent us from losing
any more teachers than we absolutely have to. . . . This is an
unpleasant and an uncomfortable experience for teachers. Consequently,
we have no desire to make any more of them uncomfortable and unhappy
about it than we have to." (A. 538).
The school district had not conducted a survey to determine
how many teachers would willingly transfer to schools in which
their race would be in a minority (A. 104) and had not in its program
of encouraging "voluntary" transfers across racial lines used a
similar study which had been conducted several years before (A. 107).
The Assistant Superintendent for Personnel, who was charged
with implementing the "voluntary" faculty desegregation in Little
Rock, testified that the only justification for the fact that Mann
High School and the other "Negro" schools in Little Rock would have
a substantially higher percentage of Negro teachers than each of the
15/ Centennial Elementary School, a white school under segregated
operation, became a majority Negro school in 1968-69 by
operation of the free choice plan; Kramer had a 46% Negro
enrollment in 1968-69 and Lee a 39% Negro enrollment during
that year.
15/
22
formerly white schools was because of teacher resistance to
desegregation (A. 796-97). In addition, he stated that the plan
made no provision for assignment of principals so that every Negro
school except those which had white principals in 1968-69 would
have Negro principals in 1969-70, and every formerly white
school would have white principals (A. 797).
Alternatives Available to the District
At the trial of this case, plaintiffs called two expert
witnesses to evaluate the plan submitted by the Little Rock School
District in light of educationally feasible alternatives which
appeared susceptible of implementation in Little Rock: Dr. Dan
Dodson and Dr. Goldhammer. The school district called Dr. E. C.
Stimbert, Superintendent of the Memphis school system, who
testified of his evaluation.
Dr. Dodson is Chairman of the Department of Education,
Sociology and Anthropology of the School of Education at New York
University (A. 655). His extensive qualifications are set out in
the record between pages A. 655-58. He has formulated desegregation
plans for numerous school systems, including that involved in Taylor
v. Board of Educ. of New Rochelle, 195 F. Supp. 231 (S.D.N.Y), aff'd
294 F.2d 36 (2d Cir. 1961) (A. 658). Dr. Dodson characterized a
school district operating under the zones proposed by the school
board in November 1968 as a "racist” school system, and said that
the zones freeze in the segregated character which the schools have
23
developed in the past (A. 6 8 6). He recommended implementation of
a plan not based on the neighborhood school concept (A. 673-74).
He traced the origin of the concept to the "common school" notion
at the base of public education (A. 658-59) but said that the
neighborhood school had become "a place where people who are more
privileged try to hide. . . and it's been made sacred in recent
thinking about in proportion as Negroes get close to it. It has
become an exclusive device, that is the opposite of the community
school" (A. 659). Dr. Dodson pointed out that in a city with
racially segregated housing patterns, effective desegregation could
not be accomplished if the neighborhood school concept were adhered
to (A. 673-74). Only by eliminating the racial identities of the
schools and allowing them to take on new identities as common
16/
schools could an integrated unitary system be achieved (A. 681-82).
He discussed alternative approaches used in other districts
(A. 674-76) and suggested that federal funds would be available for
transporting students (A. 676-77).
He was of the opinion that if Little Rock's high schools were
to be zoned to desegregate them, the zones should have been drawn
from east to west as in the parsons Plan (A. 678).
Dr. Goldhammer testified that the initial study of the Little
Rock School District by the team which drafted the Oregon Report
demonstrated that the district's progress in eliminating the dual
system was much slower than could have been expected; that considering
16/ See Cato v. Parham, 403 F.2d 12, 15, n. 7 (8th Cir. 1968).
24
the rapid growth in enrollment in the school system, free choice
17/
would never have worked (A. 357-58). Whereas the board's plan
proposed to zone all schools, the university of Oregon team had
concluded that in a residentially segregated community such as
Little Rock, no single approach would do the entire job of
conversion to a unitary system (A. 365). The Oregon team's
recommendations therefore incorporated several different features:
a capital construction program to develop educational parks and
larger attendance centers, pairing some schools and a bussing system
of student transportation (A. 365-67). Although the report carried
a cost estimate of $10 million, this price included considerable
replacement or modernization of facilities which would have had to
be carried out irrespective of any desegregation plan (A. 367). The
cost of coming as close to the Report as possible without abandoning
or remodeling buildings would require less than $500 thousand, for
bussing, inservice training and compensatory education programs
(A. 368-69).
Dr. Goldhammer said that the parsons Plan, the Oregon Report
and the "Walker" plan were each better means of desegregating the
schools than the board's zoning proposals (A. 399, 819). (He
estimated that the "Walker" plan would be the least expensive to
implement, A. 821) . The Board president, also, was of the opinion
that these plans would result in more integration in the Little Rock
17/ Superintendent parsons stated that he_ had never expected
white students to choose identifiably Negro schools under
freedom of choice (A. 330-31).
25
public schools than would be accomplished under the zoning plan.
They would thus eliminate the racial identifiability of the schools,
something which the zoning plan would fail to achieve (A. 762).
See also, A. 298, 636.
The district rejected these alternatives because they each
required expenditure of funds which Little Rock voters had
demonstrated, by their votes on the bond issues, that they would
not provide (A. 334, 337-40, 415-23, 428, 456, 653-54). The
Superintendent said, in fact, that the community had "turned down
every educationally desirable plan and now we are left with only
zoning as a feasible plan" (A. 556-557). Some funds were available
to the district, however, including State monies for a transportation
system (A. 341-43, 641-46) and Dr. Goldhammer suggested that funds
might have to be diverted in order to accomplish unification of the
system (A. 821).
26
ARGUMENT
Introduction
This is the oldest school desegregation case pending in this
Circuit. Its antecedents go back to 1945 when this Court required
appellee district to eliminate salary differentials between white
and black teachers. Morris v. Williams, 149 F.2d 703 (8th Cir.
1945), rev1g 59 F. Supp. 508 (E.D. Ark. 1944).
The goal of this litigation has always been what this Court
early recognized that the Constitution demanded — "a school system
not based on color distinctions." Aaron v. Cooper, 243 F.2d 361,
362 (8th Cir. 1957).
The district, however, has seized every opportunity to avoid
fulfilling the constitutional mandate. Each new scheme which it
has developed has sooner or later been declared ineffectual and
18/
invalid by the courts. This appeal presents for review the latest
18/ The district's efforts to postpone desegregation were
rejected in Aaron v. Cooper, 257 F.2d 33 (8th Cir.), aff1d
358 U.S. 1 (1958); its attempt to transfer its facilities
to private schools in Aaron v. Cooper, 361 F.2d 97 (8th Cir.
1958); its manipulation of the pupil placement laws in
Norwood v. Tucker, 287 F.2d 798 (8th Cir. 1961) and its
refusal to fairly administer its free choice plan in Byrd
v. Board of Directors of Little Rock School Dist., Civ. No.
LR 65-C-142 (E.D. Ark. 1965). The district has consistently
adopted "new plans" when it became clear that execution of
the old plans would no longer withstand judicial scrutiny.
For example, after the schools reopened in 1959 (see n. 1
supra), the district utilized the pupil placement laws to keep
Negroes out of white schools (Norwood v. Tucker, supra)
instead of continuing and accelerating the plan proposed by
the board in 1956 (see Aaron v. Cooper, 143 F. Supp. 855 (E.
D. Ark. 1956). In 1965, after further instances of
manipulation of the pupil placement laws had been demonstrated,
Clark v. Board of Educ. of Little Rock, 369 F. 2d 661, 664-65
(8th Cir. 1966), the district adopted a so-called freedom of
choice plan in the middle of pending litigation. Id. at 665.
27
proposal offered by the school district, which is to establish
designated attendance zones for every public school except the
district-wide vocational-technical facility.
The differences between appellants and appellees on the trial
of this matter can be summarized simply. In appellants' view, the
zoning plan adopted by the district in preference to better plans,
even those prepared at its request (by its Superintendent and by
a team of experts retained by it), will neither disestablish the
racial identities of its schools nor create a unitary system; the
zones were drawn so as to inconvenience as little as possible, the
district's white parents whose children attend all-white schools.
We believe the district cannot, under the Constitution, use the
neighborhood school concept to justify this intended result, we
also challenge the plan for "faculty desegregation" because it too
perpetuates the racial labelling of schools which appellees have
effected by their past actions.
The district, on the other hand, defends its plan with these
notions: (a) it satisfies its constitutional obligation by drawing
rational zones even though the racial concentrations at most schools
are unchanged, because to require zones which achieved more integration
would be to require "racial balance," which the Constitution forbids;
(b) zoning is the only feasible alternative to freedom of choice
because of community hostility manifested by failure of bond issues;
and (c) any other plan or any other pattern of zoning would necessitate
the bussing of students, which the Constitution and the Civil Rights
28
Act of 1964 prohibit the district court from requiring.
I
The Little Rock Zoning Plan For Pupil
Assignment Is Unacceptable Because It
preserves the Racial Identity Given
Each School By Appellees' Own Past
Policies and practices
The quintessential issue in this case is not "bussing" or
"racial balance" or "resegregation." It is whether a formerly
segregated school system fulfills its constitutional obligation to
establish a unitary system by adopting attendance zones which only
insignificantly alter the pattern of separate racial attendance in
its schools. This question is neither novel nor difficult. The
school district's contention — that by simply drawing "rational"
attendance zones without accomplishing desegregation, it has created
a unitary system, in spite of the fact that the same schools are
attended by the same heavy concentrations of Negro and white students
as before — is nothing more than a thinly veiled version of the
Briggs dictum. That doctrine, of course, has been long since
explicitly rejected by this Court, Kemp v. Beasley, 352 F.2d 14, 21-22
(8th Cir. 1965).
As the Supreme Court has recently said,
Brown II was a call for the dismantling of
well-entrenched dual systems tempered by an
awareness that complex and multifaceted
problems would arise which would require time
and flexibility for a successful resolution.
School boards such as the respondent then
operating state-compelled dual systems were
nevertheless clearly charged with the
affirmative duty to take whatever steps might
be necessary to convert to a unitary system
in which racial discrimination would be
eliminated root and branch.
29
Green v. County School Bd. of New Kent County, 391 U.S. 430, 437-38
W(1968) (emphasis supplied). The issue framed on this record is
whether implementation of the zoning plan approved below is an
appropriate response to the charge Brown II directed to this school
20/
district.
The harsh reality in Little Rock is that under the zoning plan,
the schools into which Negro children were shepherded (whether by
segregation law or assignment by the school board) are the same
schools which will be attended by the bulk of Negro students in the
future. Similarly, the institutions which the district built and
19/ See also, Cooper v. Aaron, 358 U.S. 2, 7 (1958), where the
court said this very district was "duty bound to devote every
effort toward initiating desegregation and bringing about the
elimination of racial discrimination in the public schools
system."
20/ This case does not involve a claim for relief from school
segregation not shown to have resulted from officially sponsored
and supported state action. Thus, the several "racial imbalance"
or so-called "de facto," cases of Bell v. School City of Gary,
Ind., 213 F. Supp. 819 (N.D. Ind. 1963), aff1d 324 F.2d 209
(7th Cir. 1963), cert. denied, 377 U.S. 924 (1964), Downs v.
Board of Educ. of Kansas City, 336 F.2d 988 (10th Cir. 1964),
cert. denied, 380 U.S. 914 (1965), Barksdale v. Springfield
School Comm., 348 F.2d 261 (1st Cir. 1965), and Deal v.
Cincinnati Bd. of Educ., 244 F. Supp. 572 (S.D. Ohio 1965),
aff1d 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847
(1967), are inapposite. As an aside, however, we might note
that the right to such relief has been sustained in Booker v.
Board of Educ. of Plainfield, 45 N.J. 161, 212 A.2d 1 (1965);
Balaban v. Rubin, 40 Misc. 2d 249,242 N.Y.S. 2d 974 (Sup. Ct.
1963), rev'd,20 A.D. 2d 438, 248 N.Y.S. 2d 574 (2d Dept.),
aff'd 14 N.Y. 2d 193, 199 N.E. 2d 375, 250 N.Y.S. 2d 281 (1964),
Cert, denied, 379 U.S. 881 (1964); Morean v. Board of Educ. of
Montclair. 42 N.J. 273, 200 A. 2d 97 (1964); Jackson v.
Pasadena School Bd.. 59 Cal. 2d 876, 31 Cal. Rptr. 606, 382
P. 2d 878 (1963); Blocker v. Board of Educ. of Manhasset, 226
F. Supp. 208 (E.D. N.Y. 1964); Barksdale v. Springfield School
Comm., 237 F. Supp. 543 (D. Mass. 1965), vacated without
prejudice, 348 F.2d 261 (1st Cir. 1965).
30
operated for white students will serve white students almost
exclusively, in other words, there is still a school system "based
on color distinctions," Aaron v. Cooper, 243 F.2d 361, 362 (8th Cir.
21/
1956) .
The lengthy record in this case documents in considerable
detail the policies and practices of the Little Rock School District
for some thirteen years. During that time, although the district was
in theory proceeding to end racial discrimination in its public
schools, it engaged in all sorts of actions which reinforced
segregation (see pp. 8 - 13 supra). It refused to assign
qualified Negroes to white schools, Norwood v. Tucker, 287 F. 2d 798
(8th Cir. 1961). It deliberately converted a school attended by
whites into a school attended solely by Negroes, through direct
reassignments, Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962).
It deliberately opened new schools as either "white" schools or
"Negro" schools — locating new facilities of limited size in the
heart of residential concentrations of one race or another, staffing
21/ Appellants take note of the Sixth Circuit's decision in Goss
v. Board of Educ, of Knoxville, 406 F.2d 1183 (1969) rejecting
the argument that continued racially identifiable schools are
inconsistent with the constitutionally required unitary system.
Insofar as the Sixth Circuit relied on Deal v. Cincinnati
Bd. of Educ., 369 F.2d 55 (6th Cir. 1966) in reaching this
conclusion in Mapp v. Board of Educ. of Chattanooga, 373 F.2d
75, 78 (6th Cir. 1967) and in Goss, id. at 1186, the decision
is inapposite. See n. 20 supra. We believe the Sixth Circuit
is wrong, and that it has completely failed to grasp the point
of the Supreme Court's decision that a unitary system was one
in which there were "just schools," not racially identifiable
"Negro" and "white" schools.
31
these new buildings with faculty members of that particular race
and assigning only students of that race to the schools (A. 17a-20a,
153-54, 464-77, 482, 486, 505-08, 637). It hired and assigned
teachers on a racial basis without exception through 1964-65 (A. 28)
and coaching staffs on that basis through 1967-68 (A. 267). It
consistently rejected opportunities to bring about more desegregation
(A. 478, 482, 498-99).
Small wonder, then, that the vestiges of segregation persist
in this school district. As a result of appellees' policies and
practices, every school in this district is plainly identifiable by
race, just as if the words "for whites" or "for Negroes" followed
22/
after its name. This is reflected in the enrollment statistics
22/ One group of schools shares an identity as Negro schools
because they were so operated prior to 1956: Dunbar, Mann,
Bush [now closed], Capital Hill [now closed], Carver, Granite
Mountain, Gibbs, Pfeifer, Washington, and Stephens.
Another group consists of schools identifiably white because
they were segregated prior to 1956: Central, East Side [now
closed], West Side, Forest Heights, Pulaski Heights, Kramer,
Parham, Centennial, Mitchell, Garland, Oakhurst, Franklin, Lee,
Jackson [now closed], Fair Park, Forest park, and Jefferson.
Schools racially identifiable as Negro schools because of
their location and initial faculty and student assignments are
Gillam (A. 473-74; Defendants' Exhibit No. 5, pp 66 - 76
infra), Booker (A. 476-79; Defendants' Exhibit No. 5, pp. 66
- 76 infra), and Ish (A. 482-83; Defendants' Exhibit No. 5,
pp. 66 - 76 infra). Rightsell Elementary School, which
was "converted" by the district from an all-white to an all-
Negro elementary school in 1961 (A. 166-67; Safferstone v.
Tucker, supra) is also placed in this category for convenience.
Finally, a fourth group of schools may be identified as
white by location, staffing and initial pupil assignment:
Terry, McDermott, Romine, parkview, Henderson, Williams, Hall,
Bale, Southwest, Wilson, Western Hills, Brady and Meadowcliff.
(The last two schools were built by the Pulaski County Special
School District and became part of the Little Rock district by
annexation).
32
contained in Table 1, following this page.
23/
23/ Defendants' Exhibit No. 25 (see A. 453; pp. 80 - 82
infra) listed 1968-69 enrollments for each school in the
system together with a projection of the 1969-70 enrollment
under the zones prepared by the board. This data has been
transferred to Table 1, which contains the following
information: (a) enrollment, by race, in Little Rock high
schools and junior high schools during 1955-56; (b) enroll
ment, by race, in all Little Rock public schools during 1960-
61; (c) enrollment, by race, in Little Rock public schools
during 1964-65; (d) enrollment, by race, in Little Rock
public schools during 1968-69; (e) projected enrollments in
Little Rock high schools and junior high schools under the
proposed zoning plan submitted by the school board in
Cooper v. Aaron, 143 F. Supp. 855 (E.D. Ark. 1956); (f)
projected enrollments in Little Rock public schools under
the proposed zoning plan discussed at the trial of Clark v.
Board of Educ. of Little Rock, 366 F.2d 661 (8th Cir. 1966)
(g) projected enrollments in Little Rock public schools
under the proposed zoning plan submitted by the board in
August 1968; (h) projected enrollments in Little Rock public
schools under the proposed zoning plan submitted by the
board in November 1968; and (i) proposed faculty allocation,
in percentages by race, to each Little Rock public school
under the plan submitted by the board in November 1968.
33
TABLE 1
(Segregation)
1956
Enrol
lment
1960-61 19614.-65 1968-69 Zones Zones
Enrol- Enrol- Enrol- 1956 1965
lment lment lment Plan Plan
(Pupil (Limited
Placement) Free Choice) (Free Choice) (Aaron) (Clark I) (Clark II)
Zones Zones
8/68 11/68
Plan Plan
Faculty
Assignments
School W N w N w N W N W N W N W N W N w N
HIGH SCHOOLS
% %
White:
o1' 337~//Central 2U75 1686 7 2206 76 151+2 512 2107 2005 210 121+9 61+1+ 11+1+7 1+81 85 15
Hall — — 8814 5 151+0 18 1U36 U 835 0 11+58 60 11+08 3 1361 1+ 81+ 16
Parkview
Negro:
----------- — — — — — 519 I46 — -------“ “ “ “ “ “ “ 863 56 729 52- 81+ 16
1
Mann
JR. HIGH SCHOOI
0
s
582 0 821 0 1239 0 801 363 I4I3 359 1065 233 912 66 978 71 29
1
White:
East Side 852 0 606 0 — — — — 355 255 — — — — — — - — —
West Side 1268 0 1006 0 9 b 7 36 657 318 807 283 252 738 1+71 398 1+95 395 80 20
Pulaski Heights 1+83 0 880 0 800 12 613 36 6I1I4 Uo 779 39 672 65 61+9 56 78 22
Forest Heights 678 0 851+ 0 975 b 10U0 8 760 0 937 1 908 0 901+ 1+ 81 19
Henderson — — — — 1+52 b 822 16 — — 683 66 808 2 813 0 79 21
Southwest
c
938 0 9 9 b 2 987 27 866 51+ 966 1+2 859 62 911+ 1+1 80 20
■tym̂n<
i p:
n
%
63
66
33
32
63
33
29
28
28
29
37
38
TABLE 1 (continued) p. 2
(Pupil (Limited
Placement) Free Choice) (Free Choice) (Aaron)
I96O-6I 1966-65 1968-69 Zones
(Clark I)
Zones
(Clark II)
Zones
Enrol- Enrol- Enrol- 1966 1966 8/68
lment_______lment_______ lment Plan Plan Plan
w N ¥ N W N W N W N w N
0 1607 0 962 0 685 283 717 289 666 79 800
0
2/
669“ 0 756 0 703 252 738 136 705
662 0 608 0 501 3
1
369 0 661 11
686
3/0“ 669 0 • 669 1 657 0 665 0
283 0 306 10 138 202 217 29 129 169
366 0 266 0 253 0 208 0 227 0
632 0 666 0 383 2 651 0 370 1
706 0 669 0 511 11 607 56 526 61
637 0 371 0 283 15 263 1 213 7
266 0 278 3 — — 250 89 — —
672 0 612 0 513 0 623 0 536 0
367 0 283 0 91 7 6 139 63 118 95
633 0 376 2 210 155 267 16 218 70
Zones
11/68
Plan
TABLE 1 (continued) P- 3
(Pupil (Limited
(Segregation) Placement) Free Choice) (Free Choice) (Aaron) (Clark I) (Clark II)
1936
Enrol
lment
1960-61
Enrol
lment
196U-63
Enrol
lment
1968-69
Enrol
lment
Zones
1936
Plan
Zones
1963
Plan
Zones
8/68
Plan
Zones
11/63
Plan
Faculty
Assignments
11/68 Plan
School W N W N W N W N W N W N W N W N W N_____.
ELEMENTARY SCHdOLS
White:
McDermott — — — — UU8 1 — — — — m b 0 hl2 0 69 31
Meadowcliff b 2 9 0* U 99 0 379 0 U83 0 533 0 333 0 73 27
Mitchell 379 0 333 27 ia 3 3 b 276 23 102 292 97 290 . 67 33
Oakhurst U73 0 396 2 281 33 » 360 31 330 2 b 330 2 b 69 31
Parham U38 0 U07 0 270 81 209 130 187 1 5 b 199 161 71 29 v
Pulaski Heights 369 0 3co 0 I4I16 3 U3o 7 333 0 333 0 69 31 .
Romine - 336 0 1*81 7 316 97 U33 86 380 100 380 100 72 28
Terry _____ ______ 267 0 U90 0 2U2 0 b b 2 0 b h 2 0 72 28
Western Hills — — 178
b /
12“ 206 6 — — 20 b 0 2 0 b 0 67 33
Williams U23 0 613 0 7U3 6 392 2 616 3 616 3 67 33 |
Wilson 8U3 0 331 10 1411 77 321 11 U37 U6 U37 U6 70 30
Woodruff 329 0 328 2 212 62 233 0 216 18 232 b 6 70 30
Negro: I
Bush 0 196 0 199 0 113 — — — — — — —
Capital Hill
c
0 U37 0 237 “ “ “ — — — — “ “ “ “ — —
>
r
t- -
TABLE 1 (continued) p. b
Segregation)
1956
Enrol
lment
(Pupil
Placement)
1960-61
Enrol
lment
(Limited
Free Choice)
196U-65
Enrol
lment
(Free Choice)
1968-69
Enrol
lment
(Aaron)
Zones
1956
Plan
(Clark I)
Zones
1965
Plan
(Clark II)
Zones
8/68
Plan
Zones
11/68
Plan
Faculty-
Assignments
11/68 Plan
School W N W N W N W N W N W N W N W N w N
ELEMENTARY SCH( OLS % %
Negro: -
5/
Carver 0 785 0 90U 0 8U2 28U 731~ 16 79U 16 79U 56 b b
Gibbs 0 839 0 U97 0 390 70 28 9 20 317 U8 389 56 U b
Gillam 0
2/
188" 0 185 0 213 — — 18 11a 18 liil 56 b b
Ish — — 0 6/587" 0 58 9 391 355 13 606 8 U8U 56
Granite Mountaj n 0 557 0 U76 0 L66 12 61 Ij. 0 U71 0 U71 59 b i ,
Pfeifer 0 136 0 178 0 190 ’ 281| 731^ lU H 41 lU 1U1 57 U3
Rightsell • 0 373 0 901 0 390 109 329 51 39U 5U 390 56 liU
Stephens 0 L86 0 582 0 369 1U5 369 83 365 3 b 313 57 b 3
Washington 0 538 0 580 0 506 b h U99 10 505 7 L83 58 b 2
i
1/ Including Te hnical High S :hool students 2/ Initial Enrollment 1 ) 6 3 - 6 k 3/ Initial Enrc .lment 1961-6 l
!
k / Initial Enro!.lment 1966-67 5/ Carver- Pfeifer 5/ Initial Enrc .lment 1965-6
Sources: Defen lants1 Exhibit No. 5, PP-4t> -7(o infra No. 12, 13, N3. 2 b , pp.17 -7<) infra; No. 25, PP-80 - 33 infra; Defendani s1 Exhibit
No. 8 in 1965 Clark trial, PP - ̂ 3 -5*/ infra; stiiulations of counsel, Aaron v. Cooper , 1U3 F. Supp. 855 (E.D. Ark. 1956. , PP- 35"- ^
infra *
•
Analysis of the Table shows the following:
1. Free choice had not, as late as 1968-69, eliminated the
racial identifiability of any Negro school. No white student had
ever chosen to attend such a school.
2. The zones proposed by the board will not eliminate schools
identifiable as Negro schools. No such school will have more than a
12.5% white enrollment, although whites outnumber Negroes in the
district.
3. The high school and junior high school zones proposed in
1956, see Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956), would
have resulted in more substantial numbers of whites attending Negro
24/
schools at those levels than the zoning plan approved below.
4. Free choice had little effect on racially identifiable
white schools as late as 1968-69. Central High Schoool, although
enrolling a significant number of Negro students, remained a white
school both because of its history and in comparison with Hall, Mann
and Parkview schools. Only Centennial, Kramer and Lee seemed to
have lost their "white only" existence; Mitchell had converted to
a heavily-Negro school. However, comparison with remaining all-white
or 95+% white schools made it clear that the system had undergone no
fundamental change and that even these schools were racially
identifiable.
5. The district's present zoning plan will not eradicate the
racial labelling of the white schools. There will be more all-white
elementary schools than under freedom of choice (A. 529-30). Fewer
24/ Counsel have been unable to determine 1956 projected
enrollments for elementary school zones.
38
Negro students, however, would be enrolled in these schools than
had been the case under the free choice regime (A. 534-35).
Some of the data in Table 1 has also been reproduced in a
25/
different form on Maps 2, 3, 4, 5 and 6, following.
%
25/ Map 2 presents the Little Rock schools divided into four
groups, based upon derivation of their racial identities, as
reflected in n. 22 supra. Map 3 summarizes this information
in two categories: white schools and Negro schools. Map 4
plots 1968-69 enrollments under free choice, separating schools
with enrollments more than or less than 50% Negro. Map 5
provides the same information pursuant to the zoning plan
approved below; Map 6 details in more categories the Negro
enrollment projections pursuant to the zones approved below.
39
*
jjTiaM°py°n
ux-cq. -tinoji eq.xm.ie. ^IIT3
~ z
uoq9uxqsT3M»
uu\j .
llsI*
XX©qolxn
ueno. II»SW STH.
n a .TBqung.
JBiN.Jt 'wkJ9
jc q o o g » epi , -ruxtaxg;,! [6Q
1 • ’V. ) sqd̂T-n *
3 X X TIIjiUeqsOjVk
uosit^
) c
»iBa*
©UXUIO •
qsjcrapiTJo,
p-amqaBc AiGTAqai.̂ ,
sueqde
.Xxjaquso
uxxqxîwt̂ '
J91T8J[>
rpejci.
ITTFi Wfdgjj
j jr a p o o j^ «
sea* I
UOŜ OGp.
UOSjepUBTT.p̂-ejcq.
^ W S tbh PISBpry; >[JBd
sqq3peu qso.ioj. IT®E«
SHTEPXXT̂ .
qqoxiui©(joi'i.
:iaT3d qseao^.
u o sjca jje p .
| o«i2o[̂
© eq.THM.
sxooqog 3[00}j ©xqqxq jo ssxqxquepx X16iT0'®H
£ dVU A
jjppojaopispvi
Ufa 4. -unoyi
B n
.rasiITO
?
UGq.?UTtTE-o;;_ >
qsi,
JOAJI33,
ucrepi.
jtqoorr. jnaqun(T*
----- i^uuaquGo.
>PTs iseM*UeUTB,r>T*
niTii
UOSpT)/*
qsojAqqnog,
oiug.
OUTUJ-O
qsurap[BO*PUT8IU1B{>
suBqdo ĝfj uTpjptrB.ij,
• ^ ue8Q1.
JAOTAqjrBJ.
T
tojT̂ jg. jjru p o o p .
sqqSTOn jp^.
txosuepuq̂
p̂-Bjg.
sqq3q©n qseao^* I - : *
surapxiTM*
n-reg qsojog.
qqouu©(PH*
m o*i3®iI JA)0I oq Ĵ OS
I D ou2©ii jfog oq j£>
u o s a e jje p •
jAopog
poAO jddy seuo2 asp ug querappoous pxdng p e q o B C o jj S'dVU
ufBq.-tinoi'f ‘ sq.xt
H oa3oj;j jtoOI oq °&>g
El oaSoja ^03 oq. ^31
m o.t3»u Jo3T oq-
s s-[ooqos s q T ^ - x i v
/aoie g pBAOjdJy souoz aapti^ q.ueuq;xojua Ifclry; poq.ooL'oaj
9 dVW
Both Table 1 and the maps illustrate that the pattern of
racially separate attendance at Little Rock public schools has
remained substantially unchanged throughout the thirteen years
of this litigation and will remain substantially unchanged by
effectuation of the zoning plan approved by the district court.
The plan, therefore, fails to meet the constitutional standards.
[T]he obligation of a school district to
disestablish a system of imposed segregation,
as the correcting of a constitutional
violation, cannot be said to have been met
by a process of applying placement standards,
educational theories, or other criteria, which
produce the result of leaving the previous
racial situation existing, just as before.
26/
Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960). Numerous
decisions of this Circuit have called for the disestablishment of
the pattern of racially identifiable schools. E_. ̂ ., Clark v.
Board of Educ. of Little Rock, supra, 369 F.2d at 669; Kelley v.
Altheimer, Ark. School District No. 22, 378 F.2d 483, 490 (8th Cir.
1967). As the Supreme Court put it, the Constitution requires that
there be not "a 'white' school and a 'Negro' school, but just
schools." Green, supra, 392 U.S. at 442.
26/ Accord, Ross v. Dyer, 312 F.2d 191, 196 (5th Cir. 1963);
Brooks v. County School Bd. of Arlington County, 324 F.2d 303,
308 (4th Cir. 1963). The test of the adequacy of a desegregation
plan is its effect rather than whether there is an actual showing
of specific purpose on the part of the school district to
retain segregation. Goss v. Board of Educ. of Knoxville, 373
U.S. 683 (1963); Griffin v. County School Bd. of prince Edward
County, 377 U.S. 218 (1964); Haney v. County Bd. of Educ. of
Sevier County, supra; Boson v. Rippy, 285 F.2d 43 (5th Cxr.
1960); Houston Ind. School Dist. v. Ross. 282 F.2d 95 (5th Cir.
I960); Braxton v. Board of Public Instruction of Duval County,
Civ. No. 4598-5 (M.D. Fla., Jan. 24, 1967).
45
This is as much a requirement of a desegregation plan based
on zoning as it is of a desegregation plan based on freedom of
choice. Otherwise "the equal protection clause would have little
meaning. Such a position 'would allow a state to evade its
constitutional responsibility by carve-outs of small units.'"
Haney v. County Bd. of Educ. of Sevier County, 410 F.2d 920, 924
(8th Cir. 1969).
[Gjeographic zoning, like any other
attendance plan adopted by a school
board in this Circuit, is acceptable
only if it tends to disestablish
rather than reinforce the dual system
of segregated schools.
United States v. Greenwood Municipal Separate School Dist., 406
F .2d 1086, 1093 (5th Cir. 1969); accord, Henry v. Clarksdale
Municipal Separate School Dist., 409 F.2d 682 (5th Cir. 1969);
United States v. Indianola Municipal Separate School Dist., 410
F. 2d 626 (5th Cir. 1969). And see, Dowell v. School Bd. of
Oklahoma City, 244 F. Supp. 971 (W.D. Okla. 1965), aff'd 375 F.2d
158 (10th Cir.), cert, denied, 387 U.S. 931 (1967); Keyes v.
School Dist. No. 1, Denver, Civ. No. C-1499 (D. Colo., July 31,
1969; August 14, 1969), stay pending appeal granted, ___ F.2d ___
(10th Cir. No. 432-69 August 27, 1969), stay vacated, S. Ct.
27/
(Mr. Justice Brennan, Acting Circuit Justice, August 29, 1969).
27/ Another district court in this Circuit has recently dealt
with these issues, and we commend its reasoning to this Court
But, the racial nature of the case cannot
be ignored. It cannot be overlooked that
the District's schools are not just "schools"
and that the inhabitants of the District are
46
The school district defended its zones as rational. its
primary concern in drawing the zones was to avoid inconvenience to
27/ (continued)
not just "people." The schools of the
District are still racially identifiable, and
the people of the District consist of whites
and Negroes who, in general, live in different
parts of the District.
It is important for school officials in a
a district such as Dollarway not to confuse
a means to a required end with the end itself.
The end required by the controlling cases is
the disestablishment of unconstitutional dual
school systems and their replacement with
unitary systems which are not unconstitutionally
discriminatory.
As in the case of freedom of choice, a system
of geographical attendance zones may be an
effective means of integrating the schools of
some districts and not an effective, or even
feasible, means of integrating the schools of
other districts. Cf. Green v. County School
Board, supra, with Raney v. Board of Education
supra; see also Kelley v. The Altheimer,
Arkansas Public School Dist. No. 22, 8 Cir.,
378 F .2d 483.
When the Board's plan is considered in light
of the principles above stated and of the
evidence in the case, the Court is not able to
say that the plan in operation will disestablish
the dual school system. Hence the plan cannot
be approved.
It is thus clear that although the numbers of
Negro and of white students are about equal,
the formerly all white schools will remain
predominantly white and that the Townsend park
complex will remain as a clearly identifiable
Negro school system only tokenly desegregated.
Cato v. Parham, 297 F. Supp. 403, 409-10 (E.D. Ark. 1969).
- 47
students which might be caused by distance or the requirement of
transportation, and to maintain the neighborhood school system
27/ (continued)
In view of the very limited assignments of white
students to the Townsend park complex, and in
view of the fact that the faculty of the Town
send park schools will be 75% Negro, it cannot
be gainsaid that the Townsend park schools will
be clearly identifiable as Negro schools this
year, and under ruling decisions that is
unconstitutional.
. . . the Court is convinced that no rational
attendance zones can be laid out that will not
leave the Townsend park schools identifiable as
Negro schools or that will achieve substantial
racial balance in the Dollarway schools and in
Pinecrest without intolerable overcrowding of
these schools accompanied by a corresponding
underuse of the Townsend park facilities.
Indeed the Court doubts that even gerrymandered
geographical zones would achieve those objectives.
This case, then, like others now pending, presents
the question of the constitutional permissibility
of geographical attendance zones in school
districts having segregated housing and where
the schools have been built in accordance with
the neighborhood school concept, and where student
assignments on the basis of zones will cause the
schools to mirror the racial make-ups of the
neighborhoods.
This Court is not bound by the decisions of Courts
of Appeals for other Circuits, but in the area of
school desegregation, . . . the Court does not know
that there is any real reason to believe that the
views of our Court of Appeals will differ substan
tially from those of the Court of Appeals for the
Fifth Circuit [Henry v. Clarksdale Municipal
Separate School Dist., supra] or from those of
other appellate courts dealing with school
integration cases. . . .
Cato v. Parham No. PB-67-C-69 (E.D. Ark., July 25, 1969) (slip
opinion at pp. 8-11) .
48-
(A. 78, 323-24, 437, 514). But these are not excuses for the
failure of the zoning plan to eliminate the dual system.
Where the Board is under a compulsion
to desegregate the schools (1st Brown
case, 347 U.S. 483) we do not think
that drawing zone lines in such a manner
as to disturb the people as little as
possible is a proper factor in rezoning
the schools.
Northcross v. Board of Educ. of City of Memphis, 333 F.2d 661, 664
(6th Cir. 1964).
Whatever the validity of the neighborhood school concept, this
Court has held that
Standards of placement cannot be devised
or given application to preserve an
existing system of imposed segregation.
Nor can educational principles and theories
serve to justify such a result.
Dove v. Parham, supra, 282 F.2d at 258. Neighborhood schooling is
of only recent importance to this district, which previously bussed
students out of their 'heighborhoods" to maintain a segregated system
(A. 171-72, 504). Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ.,
_____ F. Supp. ____ , Civ. No. 1974 (W.D.N.C., April 23, 1969) (slip
28/
opinion at pp. 14-15). Also relevant is the testimony of board
28/ Recently, the School Board has followed what it calls the
"neighborhood school" theory. Efforts have been made to
locate elementary schools in neighborhoods, within walking
distance of children. The theory has been cited to account
for location and population of junior and senior high
schools also.
"Neighborhood" in Charlotte tends to be a group of homes
generally similar in race and income. Location of
schools in Charlotte has followed the local pattern of
- 49
members and the Superintendent that Negroes were excluded from
housing in western Little Rock by racial discrimination, and that
the Board was aware of this (A. 148-49, 294, 647, 743-44; cf.
Plaintiffs' Exhibit No. 6). As the Fourth Circuit has said,
28/ (continued)
residential development, including its de facto
patterns of segregation. With a few significant
exceptions. . .the schools which have been built
recently have been black or almost completely
black, or white or almost completely white,
[cf. A. 152] and this probability was apparent and
predictable when the schools were built. . . .
. . . Putting â school in ci particular location is
the active force which creates ci temporary community
of interest among those who at the moment have
children in that school. [cf. A. 157]. . .
When racial segregation was required by law, nobody
evoked the neighborhood school theory to permit black
children to attend white schools close to where they
lived. The values of the theory somehow were not
recognized before 1965. It was repudiated by the
1955 North Carolina General Assembly and still stands
repudiated in the Pupil Assignment Act of 1955-56,
which is quoted above. The neighborhood school
theory has no standing to override the Constitution,
[emphasis in original].
50
If residential racial discrimination exists,
it is immaterial that it results from private
action. The school board cannot build its
exclusionary attendance areas upon private
racial discrimination. 11/ Assignment of
pupils to neighborhood schools is a sound
concept, but it cannot be approved if
residence in a neighborhood is denied to Negro
pupils solely on the ground of color. 12/
11/ Cf. Pennsylvania v. Board of Directors of
City Trusts of the City of Philadelphia, 353
U.S. 230 (1957); Shelley v. Kraemer, 334 U.S.
1 (1948); Marsh v. Alabama, 326 U.S. 501 (1946);
Reitman v. Mulkey, 387 U.S. 369, 378 (1967)
(dictum); Griffin v. Maryland, 378 U.S. 130,
136 (1964) (dictum); Watson v. Memphis, 373
U.S. 526, 538 (1963)(dictum). Fiss, Racial
Imbalance in the Public Schools; The
Constitutional Concepts, 78 Harv. L. Rev. 564
(1964-65).
12/ Cooper v. Aaron, 358 U.S. 1, 17 (1958) .
Brewer v. School Board of City of Norfolk, 397 F.2d 37, 41-42 (4th
Cir. 1968) . Ctf. Holland v. Board of Public Instruction of palm
Beach County, 258 F.2d 730 (5th Cir. 1958).
The district court in this case concluded very simply that
"assuming the legality of the neighborhood school concept," the
rational zones drawn by the district had to be approved. It failed
to apply the standard announced by this Court, that
Whatever may be the right of [educational
theories] to dominate student location in
a school system where the general status
of constitutional violation does not exist,
they do not have a supremacy to leave
standing a situation of such violation, no
matter what educational justification they
may provide, or with what subjective good
faith they may have been employed. As
suggested above, in the remedying of the
constitutional wrong, all this has a right
to serve only in subordinancy or adjunctiveness
to the task of getting rid of the imposed
segregated situation.
51
»
Dovs v. Paxh^ro, supra, 252 F.2d at 259. Since the zones were
admittedly not drawn with primary intent to integrate the schools,
and since their effect is to maintain substantially the same
pattern of attendance in the schools as existed under segregated
operation, the judgment ought to be reversed, and the case
remanded for the approval and implementation of a plan which will
eliminate racially identifiable schools in Little Rock and truly
establish "a school system not based on color distinctions."
II
The District's Plan for Faculty
Desegregation Is Inadequate
Table 1 includes, in addition to pupil enrollment statistics,
the projected 1969-70 faculty assignments at each school, by race,
expressed in percentages. As explained in the Statement, see pp.
20 - 23 supra, the assignments are so patterned that Negro
schools remain racially identifiable by the consistently lower
percentages of white teachers assigned to them; similarly, white
schools are identifiable because of the consistently lower
percentages of Negro teachers assigned to them.
The district court approved the plan without hesitation,
because it was an "ambitious" plan (A. 915) and the district's only
explanation of the continued racial pattern of assignments was its
desire to avoid any more reassignments than absolutely necessary
(A. 538).
52
The decisions of this Court requiring elimination of patterns
of faculty assignment based on race are well known to appellees.
Kemp I_, supra; Smith v. Board of Educ. of Morrilton, 365 F.2d 770
(8th Cir. 1966); Kelley, supra; Yarbrough v. Hulbert-west Memphis
School Dist., 380 F.2d 962 (8th Cir. 1967); Kemp II, supra; Jackson
v. Marvell School Dist. No. 22, 389 F.2d 740 (8th Cir. 1968);
Walton v. Nashville Special School Dist., 401 F.2d 137 (8th Cir.
1968); Haney, supra.
We realize that the district may be able only to approximate
29/
the district-wide ratio of white to Negro teachers at each school
but surely it can approach that ratio in some manner which does not
result in systematic racial identifiability of its schools.
Ill
The District Court Has The Power
To Require That A Unitary School
System Be achieved Even If The
Neighborhood School Concept Must
Be Abandoned Or Provision Of Pupil
Transportation Made
Three written alternatives to the zoning plan were presented
to the district court. Two of these — the Oregon Report and the
Parsons Plan — were prepared at the request of the school board
itself. The third, which was reffered to as the "Walker plan,"
was authored by Negro citizens and organizations. In addition,
there was discussion at numerous points during the trial of other
ways in which zones could have been drawn, or other means of
29/ Cf., e.g_., United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969).
53
organizing the schools in the district, which would have resulted
in greater desegregation.
For example, under the zoning plan, the Stephens Elementary
School has a substantially higher black enrollment than adjoining
elementary schools (see Map 5, p. 43 supra). in addition to
restructuring in accordance with the Beta Complex suggested in
the parsons Plan (see A. 913), Stephens could have been converted
into a junior high school (A. 86-89), or the zone lines between
schools in the area could have been drawn differently to establish
a more even racial distribution (A. 324-26) or the grades could
have been restructured on another basis (A. 516-17). The district
court rejected all such alternatives as "gerrymandering" (except
to require such "gerrymandering" at Hall High School, see A. 912-13)
for racial balance, on the basis that attendance zones drawn without
consideration of race satisfied the district's constitutional
obligation, but that the court was precluded from requiring the
adoption of different zones which would achieve greater desegregation,
because this would amount to unconstitutionally assigning students
because of race.
We have argued above that Little Rock's zoning plan should have
been rejected because it will not emancipate the schools of the
district from the racial labels affixed to them by the operation of
the dual school system. We deal here with the district court's
apprehension that consideration of race in elucidating a scheme of
54
pupil assignment that will eradicate the schools' racial identities
is constitutionally proscribed gerrymandering.
The district court said (A. 200):
. . . as I see the problem from the
legal standpoint, if there are several
constitutional approaches to achieving
a unitary school system, quote, not
colored schools, not white schools, but
just plain schools, close quote, the
school board is free to use its own
judgment as to which of those methods
it shall adopt, and without being
required to choose a constitutional
method which would produce more
desegregation for that reason alone.
With that statement we would agree, but it is not dispositive of
this litigation. To be a "constitutional method, 11 a plan of pupil
assignment must actually work to disestablish the racial duality of
the system. As we have pointed out above, it cannot be said to be
working when the same schools continue to enroll heavy concentrations
of one race or the other, as they did in the dual system. Obviously,
then, the formulation of any constitutional plan will involve
consideration of race in order to eliminate the pattern of such
30/
racial concentrations. This is not gerrymandering condemned by
the Fourteenth Amendment.
We should have thought the matter had been settled, for the
same arguments were early marshalled against the idea that
substantial racial balance among faculties was required. They were
rejected in that context, Kemp v. Beasley, 389 F.2d 178, 187-88,
30/ This case does not involve "racial balance" except as it
relates to disestablishing the dual system. Cf. Kemp v.
Beasley, 389 F.2d 178, 189-90 (8th Cir. 1968).
55
189-90 (8th Cir. 1968). They have been rejected in the context
of pupil assignment. E .£., Board of Public Instruction of Duval
County v. Braxton, 402 F.2d 900 (5th Cir. 1968); Wanner v. County
School Bd. of Arlington County, 357 F.2d 452 (4th Cir. 1966);
Dowell v. School Bd. of Oklahoma City, supra, 244 F. Supp. at 981.
The district also defended its failure to adopt alternatives
other than zoning on the ground that these alternatives required
additional funds, but the voters had shown an unwillingness to
make funds available for the purpose of desegregation. Thus the
Little Rock School District is still avoiding a commitment to
integration because of community hostility. See A. 654. Compare
Cooper v. Aaron, 358 U.S. 1 (1968).
Effective desegregation of the Little Rock public schools
cannot wait upon the time when Little Rock voters are ready to
approve a bond issue for this purpose. "The argument that 'equal
protection' rights must depend upon the majority vote has never
found foothold under our form of constitutional government," Haney
v. County Bd. of Educ. of Sevier County, supra, 410 F.2d at 925.
Similarly, the schools of the district must now be operated on a
constitutional basis, and if this requires the district court to
enter orders to ensure proper financing of the district to accomplish
31/
that purpose, such is within the power of the court. Plaquemines
31/ In the second Brown decision the Supreme Court directed that
"in fashioning and effectuating the decrees, the courts will be
guided by equitable principles." (349 U.S. at 300). Equity
courts have broad power to mold their remedies and adapt relief
to the circumstances and needs of particular cases, as
graphically demonstrated by the construction given to 15 U.S.C.
§4 in restraining violations of the Sherman Antitrust Act. The
56
parish School Bd. v. United States, No. 24009 (5th Cir., August 15,
1969) (slip opinion at pp. 29-31). Cf. Louisiana v. United States,
380 U.S. 145, 154 (1965).
There is language in the district court's opinion which
suggests that the court believed it was without power to order
implementation of any plan which required a system of student
31/ (continued)
test of the propriety of such measures is whether remedial
action reasonably tends to dissipate the effects of the
condemned actions and to prevent their continuance, united
States v. National Lead Co., 332 U.S. 319 (1947). Where a
corporation has acquired unlawful monopoly power which would
continue to operate as long as the corporation retained its
present form, effectuating of the Act has been held even to
require the complete dissolution of the corporation. United
States v. Standard Oil Co., 221 U.S. 1 (1910); Schine Chain
Theatres v. united States, 334 U.S. 110 (1948). Numerous
decisions establish that the federal courts construe their
power and duties in the supervision of the disestablishment
of state imposed segregation to require as effective relief
as in the antitrust area. So in Griffin v. County School
Bd. of Prince Edward County, 377 U.S. 218 (1964) the Supreme
Court ordered a public school system which had been closed to
avoid desegregation to be reopened. Carr v. Montgomery County
Bd. of Educ., 253 F. Supp. 306 (M.D. Ala. 1966) ordered
twenty-one small inadequate segregated schools to be closed
over a two-year period and the students reassigned to larger
integrated Schools. Dowell v. School Bd. of Oklahoma City,
supra, ordered the attendance areas of pairs of six year
junior-senior high schools in adjacent neighborhoods
consolidated, with one school in each pair to become the junior
high school and the other to become the senior high school for
the whole consolidated area. Turner v. Goolsby, 225 F. Supp.
724 (S.D. Ga., 1965) put a school district in the hands of a
receiver to carry out a desegregation order. The Fifth Circuit
has held that a district court has power to enjoin "approving
budgets, making funds available, approving employment contracts
and construction programs. . . designed to perpetuate, maintain
or support a school system operated on a racially segregated
basis." Board of Public Instruction of Duval County v. Braxton,
326 F.2d 616, 620 (5th Cir. 1964); accord, Kelley v. Altheimer,
378 F.2d 483 (8th Cir. 1967). Such construction was enjoined
in Bivins v. Board of Public Educ. of Bibb County, 284 F. Supp
888 (M.D. Ga. 1967) . This Court required by implication in
Haney v. County Bd. of Educ. of Sevier County, supra, that
deliberately created all-white and all-Negro districts be merged;
see also, McGhee v. Nashville Special School Dist., Civ. No. 962
(W.D. Ark., June 22, 1967).
57
transportation or bussing. The Court stated that it was not
aware of any case in which a federal court had required bussing.
We believe this is only because no court had ever felt it
necessary to make this explicit. Bussing is not in itself a means
of pupil assignment — it is only an adjunct. Additionally, we
know of no other case but Little Rock in which a school district
which had previously engaged in extensive bussing (A. 171-72, 340)
eliminated its system of pupil transportation entirely when it
could no longer bus to maintain segregation. In a district which
still offers transportation, the requirement that routes be
reorganized is the "bussing" requirement.
There is ample testimony on this record that adherence to the
neighborhood school pattern will not eliminate the dual system,
and that provision of transportation will be necessary in order to
eliminate racially identifiable schools (A. 358-59, 367, 375, 653,
33/
684). If the goal requires it, then it is within the power of the
district court to order it. Cf. Swann v. Charlotte-Mecklenburg Bd.
of Educ., supra, slip opinion at p. 16:
32/
32/ A substantial number of students use busses to get to their
classes now (A. 870) with funds provided by the district out
of grants under Title I of the Elementary and Secondary
Education Act of 1965.
33/ Dr. E. C. Stimbert, appellees' expert witness, testified
that the Memphis public schools followed the neighborhood
school concept and that the schools are completely desegregated
(A. 561 - 563 ). The United States District Court found
otherwise. "However, the existing and proposed plans do not have
real prospects for dismantling the state-imposed dual system
at the 'earliest practicable date.' . . . . The zones are in
need of revision for many purposes including further desegrega
tion where feasible. These zones should be reconsidered and
revised annually in the light of all relevant factors, including
the Board's affirmative duty to eliminate racial discrimination."
Northcross v. Board of Educ. of the City of Memphis, Civ. No.
3931 (W.D. Tenn., May 15, 1969).
58
The Board has the power to use school
busses for all legitimate school
purposes. Busses for many years were
used to operate segregated schools.
There is no reason except emotion
(and I confess to having felt my own
share of emotion on this subject in all
the years before I studied the facts)
why school busses cannot be used by the
Board to provide the flexibility and
economy necessary to desegregate the
schools. Busses are cheaper than new
buildings; using them might even keep
property taxes down.
The district court also referred (A. 912) to the "national
policy" expressed in Section 407 of the Civil Rights Act of 1964,
42 U.S.C. §2000c-6. That "national policy" has no application to
cases of former de jure segregation, united States v. Jefferson
County Bd. of Educ., 377 F.2d 836, 880 (1966), aff1d on rehearing
en banc, 380 F.2d 385 (5th Cir. 1967), cert. denied sub nom. Caddo
Parish School Bd. v. United States, 389 U.S. 840 (1967); United
States v. School Dist. No. 151 of Cook County, 286 F. Supp. 786
(N.D. 111.), aff'd 404 F.2d 1125 (7th Cir. 1968); Moore v.
Tangipahoa Parish School Bd., Civ. No. 15556 (E.D. La., July 2,
1969); Keyes v. School Dist. No. 1, Denver, Civ. No. C-1499 (D. Colo.,
August 14, 1969), stay pending appeal granted, ___ F.2d ____ (10th
Cir. No. 432-69, August 27, 1969), stay vacated, ___ S. Ct. ____ f
(Mr. Justice Brennan, Acting Circuit Justice, August 29, 1969);
Dowell v. School Bd. of Oklahoma City, Civil No. 9452 (W.D. Okla.,
August 8, 1969), vacated ___ F.2d ____ (10th Cir. No. 435-69,
August 27, 1969), reinstated ___ S.Ct. ____ (Mr. Justice Brennan,
Acting Circuit Justice, August 29, 1969); 88 Cong. Rec. 13820-21
(1964). The section could not be construed as a limitation upon
the power of a federal district court to fashion a remedy to enforce
59
the Fourteenth Amendment without raising serious questions of its
constitutionality.
Thus, we conclude that there are no impediments to the
district court's affording complete relief. That relief should
34/
also include scrutiny of the district's construction program. The
district court erroneously abdicated its function in this area by
assuming the primacy of the neighborhood school concept over the
achievement of desegregation (A. 918-19) — in violation of Dove v.
Parham, supra. The court's assertion that the residential pattern
would have been the same in Little Rock absent the existence of de_
jure school segregation conveniently ignores the fact that there was,
and that an affirmative duty is thereby placed upon the district to
"eradicat[e] the vestiges of the dual system and [to] eliminat[e]
the effects of segregation," Kelley, supra, 378 F.2d at 483. Accord,
Davis v. Board of Comm'rs of Mobile, 393 F.2d 690 (5th Cir. 1968).
Nowhere are the devastating effects of construction according to the
"neighborhood school theory" better demonstrated than on this record
— since Brown Little Rock has constructed, in effect, an entire new
system of segregated schools, which it justifies under that theory.
The decision below puts the burden on Negro plaintiffs to learn about
15/and intercept the district's building plans at an early enough stage
to successfully prevent perpetuation of the dual system, instead of
34/ Appellants also object to continued free choice in grades 8,
10 and 11. Whatever educational value it might have (we do not
concede it has any value) it serves only to delay the achieve
ment of a unitary system and should be stricken from the plan.
35/ Cf. Raney v. Board of Educ. of the Gould School Dist., 381
F.2d 252 (8th Cir., 1967), rev'd 391 U.S. 443 (1968).
60
requiring the board to assume its responsibility to act affirmatively
to end discrimination.
IV
The District Court's Denial
Of Attorneys' Fees Was An
Abuse of Discretion
In the long course of this litigation to enforce appellants'
constitutional rights, attorneys' fees of only $250 have ever been
awarded (Clark v. Board of Educ. of Little Rock, supra) although
the school district has consistently demonstrated its unwillingness
to seriously undertake its responsibility.
In denying an award of attorneys' fees, the district court
said (A. 920)
the Court cannot say that since the
Court of Appeals opinion in 1966 the
Board has exhibited bad faith — and
for that reason attorneys' fees are
denied.
Compare the district court's statements at A. 32a ("I consider the
answer of defendants to the motion for further relief as essentially
meaningless and an evasion of the Board1s responsibilities under the
law") (emphasis supplied) and A. 405 ("frankly, I have the impression
from what I have heard in this hearing, that at least for the last
two years the school board has not acted in good faith in desegrega
tion of the faculty").
The unparalleled record of intransigence demonstrated by this
district is apparent from the history of this case. The fact is
61
that this district has proposed plans and sought court approval
for schemes which it knew would not eliminate the dual system of
public education in Little Rock, Arkansas. The Superintendent
testified, for example, that he had never expected to desegregate
Negro schools under freedom of choice (A. 330-31). Yet the free
choice proposal was vigorously pressed before the district court
and this Court.
The district's performance with regard to faculty desegregation
is particularly worthy of note in determining whether the district
court properly denied attorneys' fees.
Until specifically directed to do so by the court (A. 32a)
Little Rock never viewed its obligation to desegregate the faculties
of its schools as requiring anything but filling vacancies "on a
nonracial basis" (A. 39-40). The district had never assigned
teachers to minority positions (A. 255). Although sufficient numbers
of teachers left the system between 1965 and 1968 to enable the
district to completely desegregate its faculties by the process of
filling vacancies (A. 107), this was not accomplished. The district
did not use a faculty attitude survey in order to assist it in
determining which teachers would willingly transfer to minority
positions (Ibid.) nor were teachers personally encouraged to
transfer (A. 254). Only experienced Negro teachers were transferred
to teach in predominantly white schools while most white teachers in
Negro schools were new to the system and inexperienced (A. 112; see
A. 722-23). Now the district proposes a racial allocation of faculty
which perpetuates white and black schools (A. 796-99).
62
This Court said of this District in 1966:
The Board is under an immediate and absolute
constitutional duty to afford non-racially
operated school programs, and it has been
given judicial and executive guidelines for
the performance of that duty, if well known
constitutional guarantees continue to be
ignored or abridged and individual pupils
are forced to resort to the courts for
protection, the time is fast approaching
when the additional sanction of substantial
attorneys fees should be seriously considered
by the trial courts. Almost solely because
of the obstinate, adamant, and open resistance
to the law, the educational system of Little
Rock has been embroiled in a decade of costly
litigation, while constitutionally guaranteed
and protected rights were collectively and
individually violated. The time is coming to
an end when recalcitrant state officials can
force unwilling victims of illegal discrimina
tion to bear the constant and crushing expense
of enforcing their constitutionally accorded
rights.
Clark, supra, 369 F.2d at 671 (emphasis supplied).
The time should be at an end now. Yet the district has never
shown the slightest hint of deviating from its obstructionist and
segregationist policies. It will only comply with the law when
36/
the price of noncompliance becomes too high.
Against this background, the district court should have rejected
37/
appellees' plan and awarded substantial counsel fees. Its failure
3 6 / The district has obviously preferred to bear its share
(consider Acts of Arkansas, 1961, No. 265) of the cost of
litigation rather than channel its funds into a unitary
school system.
37/ E_.2_., Monroe v. Board of Comm'rs of City of Jackson,
244 F. Supp. 353, 366 (W.D. Tenn. 1965).
63
to do so amounted to an abuse of discretion which this Court
should require be corrected on remand. For the same reasons,
this Court should award counsel fees on this appeal, cf. Gilbert
v. Hoisting & Portable Engineers, 237 Ore. 139, 390 P.2d 320 (1964);
Coppedge v. Franklin County Bd. of Educ., 404 F.2d 1177 (4th Cir.
1968); but see, Felder v. Harnett County Bd. of Educ., No. 12,894
(4th Cir., April 22, 1969).
38/
38/ In Kemp II, this Court declined to order an award of
counsel fees "[p]ointing toward a more cooperative
atmosphere and in balancing all circumstances. . . . "
389 F.2d at 191. Cooperation has been offered this
district (A. 144) to no avail.
64
CONCLUSION
For all of the above reasons, the judgment below should
be reversed with directions to the district court (a) to
require the formulation and implementation of a comprehensive
plan of desegregation to eliminate racially identifiable schools
in Little Rock, including assignment of faculty on a basis which
does not identify schools on the basis of race; (b) to retain
jurisdiction and to require new construction plans to be approved
by the Court; and (c) to award substantial attorneys' fees to
plaintiffs; appellants further pray that this Court award them
their costs, reasonable attorneys' fees on this appeal, and for
such other relief as to this Court may appear appropriate and just.
Respectfully submitted,
BURL C. ROTENBERRY
1820 West 13th Street
Little Rock, Arkansas 72202
JACK GREENBERG
JAMES M. NABRIT, III
NORMAN J. CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Appellants in
No. 19795
Attorneys for Appellees in
No. 19810
65
APPENDICES