Spriggs v The Altheimer School District Appellants Brief

    I s r  t h e

Ittttei* States dmtrt at Appeals
F oe the  E ig h th  Cikcuit

No. 18,831

J oseph S peiggs, on behalf o f  h im self and as next friend of 
infants, L inda A n n  J ohnson , D onnie E ay J ohnson , 
W anda K ay J ohnson ,

Appellants,
—v.—

T he  A ltheim ee , A rkansas S chool D isteict No. 22, a Pub­
lic Body Corporate, and J ames W alkee , Superintendent 
of Schools of the Altheimer School District No. 22,

Appellees.

ON APPEAL EBOM  TH E U N ITED  STATES DISTRICT COURT 
POE T H E  EASTERN DISTEICT OP ARKANSAS,

P IN E  B L U PP  DIVISION

APPELLANTS’ BRIEF

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

J ohn  W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

J ack  Greenberg 
M ichael M eltsner 
Gabrielle A. K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants





I N D E X
PAGE

Statement............................................................................  1

Statement of Points to Be Argued ..............................  6

A bgumektt—

I. Altheimer Has Violated Appellants’ Bights 
Guaranteed by the Equal Protection and Due 
Process of Law Clauses of the Fourteenth 
Amendment to the United States Constitution 
by Requiring That They Pay Tuition to Attend
the Public Schools in the District......................  9

A. Altheimer’s Tuition Policy Violates the 
Equal Protection and Due Process Clauses
of the Fourteenth Amendment......................  9

B. Altheimer has Applied Its Tuition Policy in
a Way Which Violates the Equal Protection 
Clause of the Fourteenth Amendment ....... 12

C. Appellants Were Charged Tuition Because 
Appellant Linda Ann Johnson Exercised a 
“Freedom of Choice” to Attend the Pre­
dominantly White School in Altheimer....... 13

II. Minor Appellants Are Residents of the Al­
theimer, Arkansas School District No. 22 ....... 16

III. Although Residency Is Determined by State 
Law, the District Court Can Apply That Law 
in an Action Where Appellants Have Raised, 
and Supported With Testimony, Substantial
Federal Claims .....................................................  19

Conclusion ....................................................................—• 20

Certificate of Service ......................................................... 21



11

T able of Cases

page

Brigham v. Brigham, 229 Ark. 967, 319 S.W.2d 844
(1959) ............................................................................... 17

Brown v. Board of Education, 347 U.S. 483 
(1954) ................................................................. .....11,13,14

Willie Earl Carthan, et al. v. Mississippi State Board 
of Education, Civil Action No. 3814 (S.D. Miss.,
October 13, 1965) ...........................................................

Central Manufacturers Mut. Ins. Co. v. Friedman, 213
Ark. 9, 209 S.W.2d 102 (1948) ......................................

Cooper v. Aaron, 358 U.S. 1 (1958) ..............................

11

17
14

Erie By. Co. v. Tompkins, 304 U.S. 64 (1938) ........... 20

Green, et al. v. The Department of Public Welfare of 
the State of Delaware, et al., Civil Action No. 3349
(D.C. Del., June 28, 1967) .......................................... 20

Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964) ......................................  9

Hurn v. Oursler, 289 U.S. 238 (1932) ........................... 19
Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 

(1938) - ............................................................................. 17

In re Watson, 99 F. Supp. 49 (W.D. Ark. 1951) .......  16

Kelley, et al. v. Altheimer, 378 F.2d 483 (8th Cir.
1967) .............................................................................. 13,14

Krone v. Cooper, 43 Ark. 547 (1884) ..........................  16

McGowan v. Maryland, 366 U.S. 420 (1961) ------------  9
McLaughlin v. Florida, 379 U.S. 184 (1964) ..................  9

Bainey v. Board of Education of the Gould School Dis­
trict, No. 18,527 (8th Cir., August 9, 1967) ............... 13



Ill

PAGE

Sherbert v. Verner, 374 U.S. 398 (1963) ......................  11
Speiser v. Randall, 357 U.S. 513 (1958) ......................  11
Stephens v. AAA Lumber Co., 238 Ark. 842, 384 S.W.2d 

943 (1964)......................................................................... 16

Thompson v. Shapiro, Civil Action No. 11,821 (D.C. 
Conn., June 19, 1967) ...................................................  20

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) .... 19

Watson v. Maryland, 218 U.S. 173 (1910) ...................... 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..................  9

S t a t u t e s  a n d  C o n s t i t u t i o n s

Ark. Stat. Ann., §80-1501 —................................................9,16

Senate Bill No. 1516, amending §6248-02, Miss. Code 
(1942) ..............................................................................  U

Ark. Constitution, Art. 14, Section 1 ..............-..... -........  10



I n  t h e

Irnteft (Eimrt of Appals
Foe th e  E ig h th  C ircuit 

No. 18,831

J oseph S priggs, on behalf o f  h im self and as next fr ien d  o f 
infants, L inda A nn  J ohnson , D onnie R ay  J ohnson , 
W anda K a y  J ohnson ,

Appellants,

T he  A ltheim er , A rkansas S chool D istrict No. 22, a Pub­
lic Body Corporate, and J ames W alker , Superintendent 
of Schools of the Altheimer School District No. 22,

Appellees.

ON APPEAL FROM  TH E  U N ITED  STATES DISTRICT COURT 
FOR T H E  EASTERN DISTRICT OF ARKANSAS,

P IN E  B L U FF  DIVISION

APPELLANTS’ BRIEF

Statement

This is an appeal from the April 22, 1967 order of the 
District Court of the Eastern District of Arkansas dis­
missing appellants’ complaint (R. 145).

During the Spring of 1966, two days after minor ap­
pellant Linda Ann Johnson, a Negro, chose to attend the 
predominantly white Altheimer High School, pursuant to 
a “Freedom of Choice Plan” introduced in 1966 as the 
first step taken by Altheimer, Arkansas School District 
No. 22 (hereinafter referred to as Altheimer) to end its



2

racially segregated schools (R. 141), her grandfather, 
Joseph Spriggs, appellant herein, was notified that Linda 
and her brother and sister, Donnie Ray and Wanda Kay, 
also appellants herein, would each be required to pay 
$20.00 per month as tuition for the ensuing school term 
and that minor appellants would be required to furnish 
their own transportation. Altheimer charged appellants 
tuition upon a determination that they were not residents 
in the school district since their mother resided in the 
adjoining distrct of Wabbesaka approxmately four miles 
from Altheimer (R. 72, 84 and 135).

Joseph Spriggs has been a long time resident of Al­
theimer. He was given Linda Ann by her father when she 
was only three days old. Linda Ann and the other minor 
appellants have lived with their grandfather, Mr. Spriggs, 
as long as they can remember (R. 137-138). Except for a 
few years spent in California and Nevada, Linda has 
always attended the public schools in Altheimer and prior 
to the Spring of 1966 had never been called upon to pay 
tuition (R. 31-32). Since Mrs. Johnson and her husband 
manage a cafe, she is unable to properly care for her 
children and for that reason all except one of her six 
children live with her father, Mr. Spriggs (R. 98 and 101). 
Except for a summer she spent with her mother in 1958 
because she wanted to attend summer school and take 
courses not offered at Altheimer, Linda has never lived 
with her mother who is now divorced from her father 
and has remarried (R. 34).

Fred Martin, principal of Martin School (predominantly 
Negro), in April 1966 conducted the enumeration for the 
bi-annual school census (R. 70). In conducting the enumera­
tion, he visited Mr. Spriggs’ home and asked the names 
and ages of his grandchildren attending the public schools 
in that district. At the time of his visit, minor appellants



3

were at their mother’s house and Mr. Spriggs indicated 
that he could get this information by calling his daughter, 
which he did (R. 62, 63 and 137). Mr. Martin testified 
that Mr. Spriggs also said that he intended to let Wanda 
Kay stay with him and go to the public schools in the 
district since her sister had attended these schools (R. 63). 
At the completion of the enumeration, Mr. Martin re­
ported this information to the Superintendent of Schools, 
Mr. James Walker. Mr. Martin testified that although 
there are no records of how many pupils attending the 
public schools in the district live with persons other 
than their parents (R. 61), he knows of other pupils who 
are in this category (R. 58). As part of the enumeration 
he visited such families; however, he did not report these 
findings to the Superintendent of Schools (R. 75). Mr. 
Martin further testified that he did not know that minor 
appellants lived with their mother (R. 66) and, in fact, 
never asked Mrs. Johnson whether her children lived 
with her (R. 67). He admitted that it is his belief that 
Linda lives with Mr. Spriggs (R. 70).

For a number of years Altheimer has maintained a 
policy of charging tuition to nonresident students but this 
policy was not reduced to writing until 1963 (R. 81). 
Robert J. Bowen, Jr., chairman of the Board of Educa­
tion of Altheimer, during the trial quoted from the 
Altheimer’s tuition policy as follows:

Children whose parents reside outside the Altheimer 
school district will pay tuition. Tuition for pupils in 
the first six grades is $14.00 per month; in grades 
seven through twelve, $16.00 [subsequently altered 
to $20.00 per month, R. 82]. A pupil who lives with 
relatives or friends but who will return to the homes 
of his parents or guardian after the school term ends 
will be required to pay tuition. (R. 22)



4

Mr. Bowen interpreted this policy as requiring children 
who come into the district solely for the purpose of at­
tending school to pay tuition, but if the pupils actually 
reside within the district, regardless of whether such resi­
dence is with a natural parent, they would be entitled to 
attend the public schools without the payment of tuition 
and would be eligible to receive the transportation pro­
vided by Altheimer (R. 23). However, Mr. James Walker, 
the Superintendent of Schools for Altheimer, interprets 
residence of the child as being the residence of the parents 
(R. 83) although he testified that “ from what I ’ve heard 
this morning they [minor appellants] reside with Joseph 
Spriggs” (R. 84).

There are approximately 1,438 children enrolled in the 
Altheimer district (R. 88). No student (except the appel­
lants) living in the district with relatives has ever been 
required to pay tuition (R. 86). Children who reside out­
side of the boundaries of Altheimer may attend its public 
schools but must pay tuition. There are approximately 
20 children presently enrolled in Altheimer in this category 
(R. 82). Children of employees of the school district may 
attend the public schools of Altheimer without paying 
tuition even if they reside outside of the district. There 
are approximately four or five white pupils in this cate­
gory attending the schools of Altheimer (R. 26).

Mr. Samuel L. Dendy, Mrs. Sylvia Mae Jamerson, Mr. 
Amos Jones, and Mr. Ernest Kearney, Negro residents 
of Altheimer, testified that they presently have children 
of relatives or friends living with them who have chosen 
to attend Negro schools and that these children have not 
been required to pay tuition and have been afforded the 
free transportation provided by Altheimer (R. 46-57).

On August 22, 1966, Joseph Spriggs, on behalf of him­
self and as next of friend of infants Linda Ann Johnson,



5

Donnie Ray Johnson and Wanda Kay Johnson, filed a 
complaint in the United States District Court for the 
Eastern District of Arkansas, in which he sought a pre­
liminary and permanent injunction enjoining Altheimer 
and James _ Walker, Superintendent of Schools of Al­
theimer, from conditioning the right of minor appellants 
to attend the public schools in that district upon the pay­
ment of tuition. A declaratory judgment was also sought. 
Mr. Spriggs alleged that the minor appellants were resi­
dents of the district; that the imposition of the tuition 
and transportation requirements upon them was for the 
purpose of punishing minor appellant Linda Ann Johnson 
for exercising her choice to attend a predominantly white 
school and for the purpose of discouraging other persons 
similarly situated from making a choice to attend 
predominantly white schools; and that Altheimer’s exact- 
ment of tuition deprived appellants of their right to free 
public education and rights of due process and equal pro­
tection guaranteed by the Fourteenth Amendment to the 
United States Constitution (R. 3). On April 20, 1967, this 
cause was tried before Honorable Oren Harris, who, on that 
same day, rendered a decision in this matter dismissing ap­
pellants’ complaint (R. 140). Notice of appeal was filed on 
April 21, 1967 (R. 2). The order of dismissal was filed on 
April 22, 1967 (R. 145). On April 28, 1967, an order for 
injunction pending appeal was entered allowing minor 
appellants to attend the public schools of Altheimer with­
out the payment of tuition (R. 154).



6

STATEMENT OF POINTS TO BE ARGUED

I.
Altheimer Has Violated Appellants’ Rights Guaran­

teed by the Equal Protection and Due Process of Law 
Clauses of the Fourteenth Amendment to the United 
States Constitution by Requiring That They Pay Tuition 
to Attend the Public Schools in the District.

Cases:

Brown v. Board of Education, 347 U.S. 483
(1954);

Willie Earl Carthan, et al. v. Mississippi State 
Board of Education, Civil Action No. 3814 
(S.D. Miss., October 13, 1965);

Cooper v. Aaron, 358 U.S. 1 (1958);
Griffin v. County School Board of Prince Ed­

ward County, 377 U.S. 218 (1964);
Kelley, et al. v. Altheimer, 378 F.2d 483 (8th 

Cir. 1967);
McGowan v. Maryland, 366 U.S. 420 (1961); 
McLaughlin v. Florida, 379 U.S. 184 (1964); 
Sherbert v. Verner, 374 U.S. 398 (1963); 
Speiser v. Randall, 357 U.S. 513 (1958);
Watson v. Maryland, 218 U.S. 173 (1910);
Tick Wo v. Hopkins, 118 U.S. 356 (1886).

Statutes:

Ark. Stat. Ann., §80-1501;
Senate Bill No. 1516, amending §6248-02 of the 

Miss. Code (1942).



7

Minor Appellants Are Residents of the Altheimer, 
Arkansas School District No. 22.

Cases:

Brigham v. Brigham, 229 Ark. 967, 319 S.W.2d 
844 (1959);

Central Manufacturers Mut. Ins. Co. v. Fried­
man, 213 Ark. 9, 209 S.W.2d 102 (1948); 

Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 
882 (1938);

In re Watson, 99 F. Supp. 49 (W.D. Ark. 1951); 
Krone v. Cooper, 43 Ark. 547 (1884); 
Stephens v. AAA Lumber Co., 238 Ark. 842, 

384 S.W.2d 943 (1964).

Statutes:

Ark. Stat. Ann., §80-1501.

II.



8

Although Residency Is Determined by State Law, the 
District Court Can Apply That Law in an Action Where 
Appellants Have Raised, and Supported With Testi­
mony, Substantial Federal Claims.

Cases:

Erie Ry. Co. v. Tompkins, 304 U.S. 64 (1938); 
Green, et al. v. The Department of Public Wel­

fare of the State of Delaware, et al., Civil 
Action No. 3349 (D.C. Del., June 28, 1967); 

Hum  v. Oursler, 289 U.S. 238 (1932); 
Thompson v. Shapiro, Civil Action No. 11,821 

(D.C. Conn., June 19, 1967);
United Mine Workers v. Gibbs, 383 U.S. 715 

(1966).

III.



9

ARGUMENT

I.
Altheimer Has Violated Appellants’ Rights Guaran­

teed by the Equal Protection and Due Process of Law 
Clauses of the Fourteenth Amendment to the United 
States Constitution by Requiring That They Pay Tuition 
to Attend the Public Schools in the District.

A. Altheimer’s Tuition Policy Violates the Equal Protection 
and Due Process Clauses of the Fourteenth Amendment.

Altheimer seems to have based its decision to charge 
minor appellants tuition on the fact that their mother did 
not reside in its school district but in the adjoining district 
of Wabbesaka. This decision was reached without a proper 
investigation and denies minor appellants the right to free 
public education afforded similarly situated pupils by 
Altheimer.

It has long been held that the policy behind the equal 
protection clause is to prevent discrimination against par­
ticular classes of persons defined on an arbitrary and un­
reasonable basis. Yick Wo v. Hopkins, 118 U.S. 356 (1886). 
Although a state (and boards of education) may make 
classifications among its citizens, such classifications can­
not be based upon race. Griffin v. County School Board of 
Prince Edward County, 377 U.S. 218, 230 (1964), and 
McLaughlin v. Florida, 379 U.S. 184 (1964).

Arbitrary classifications, even though not based on race, 
which are not reasonably related to the purpose of a stat­
ute, i.e., §80-1501, Ark. Ann. Stat., are void.1 See McGowan

1 Section 80-1501 provides:
The public schools of any school district shall be open and free to 
all persons between the ages of six [6] and twenty-one [21] years, 
residing in that district, and the directors of any district may per-



10

v. Maryland, 366 U.S. 420 (1961) and Watson v. Maryland, 
218 IT.S. 173 (1910).

For the purposes of eligibility for free public education, 
Altheimer has classified children according to their parents’ 
place of residence. If one factor which motivated this 
classification was a desire to insure that only persons who 
were taxed by Altheimer would receive the benefits of free 
public education, this classification fails to reasonably ef­
fectuate this purpose. Certainly, Mr. Spriggs and his wife 
pay taxes to Altheimer and have been doing so for 
a long time. Are they not entitled to have their grand­
children who have been living with them for most of their 
natural lives reap the benefits (and rights) of their long 
tax-paying years!

Altheimer permits children of its employees to attend the 
schools on a tuition-free basis notwithstanding the fact 
that these children’s parents reside outside of the district. 
If the insistence on parental residence is to insure that 
only those who pay taxes are allowed free public educa­
tion, again Altheimer has failed to accomplish its purpose 
since its employees residing in other districts do not assist 
in Altheimer’s tax burden. Do not children living in the 
district with their grandfather have a greater right to bene­
fit from the district’s free education than children who re­
side in another district, and are entitled to free public 
education in that district in which they reside!

mit older or younger persons to attend tlie schools under such regu­
lations as the State Board of Education may prescribe.

Article 14, Section 1 of the Arkansas Constitution provides:
Intelligence and virtue being the safeguards of liberty and the bul­
wark of a free and good government, the state shall ever maintain 
a general, suitable and efficient system of free schools whereby all 
persons in the state between the ages of 6 and 21 years may receive 
gratuitous instruction.

Altheimer’s tuition policy ignores both the state law guaranteeing free 
public education and the policy expressed by the Arkansas Constitution.



11

A similar classification of pupils based upon the resi­
dence of their parents was made by a Mississippi statute.2 
In September of 1965 a motion for a temporary restrain­
ing order was filed in the United States District Court for 
the Southern District of Mississippi3 seeking to enjoin the 
Mississippi State Board of Education from enforcing Sen­
ate Bill No. 1516 and thereby denying persons their right 
to free public education because their parents reside out­
side of the state. The United States government subse­
quently intervened and also sought a temporary restrain­
ing order. On October 13, 1965, Judge Harold Cox entered 
a temporary restraining order enjoining the defendants 
from implementing or in any way giving effect to the stat­
ute. This statute has since been repealed.

Appellants submit that Altheimer’s classification based 
upon the residence of the parents—denying free public 
education to those who reside in the district simply because 
their parents reside in another district—is likewise arbi­
trary and unreasonable and contravenes the equal protec­
tion of laws guarantee of the Fourteenth Amendment.

Brown v. Board of Education, 347 U.S. 483, 493 (1954), 
stands for the proposition that where the state has under­
taken to provide education it is a right which must be 
made available to all on equal terms. Once the govern­
ment confers advantages to some of its citizens, it must 
justify the denial of such advantages to other citizens. 
No such justification exists for Altheimer’s refusal to al­
low appellants to attend the public schools on a tuition- 
free basis. See Sherbert v. Verner, 374 U.S. 398, 405-406 
(1963), and Speiser v. Randall, 357 U.S. 513 (1958).

2 Senate Bill No. 1516, amending §6248-02 of the Mississippi Code of 
1942.

8 Willie Earl Carthan, et al. v. Mississippi State Board of Education, 
Civil Action No. 3814.



12

Altheimer’s tuition policy is itself contradictory. If all 
“ children whose parents reside outside the Altheimer School 
District”  and “a pupil who lives with relatives or friends 
but who will return to the homes of his parents or guardian 
after the school term ends” must pay tuition, what about 
the pupil who lives with relatives or friends but does not 
return to the home of his parents or guardian after the 
school term ends? Because the parents of such a child 
reside outside of the district, must he pay tuition? On the 
other hand, if he does not return to his parents’ home at 
the end of the school term, must he pay tuition? The reso­
lution of these questions depends upon which of these 
contradictory provisions of the Altheimer’s tuition policy 
is enforced.

B. Altheimer has Applied Its Tuition Policy in a Way Which 
Violates the Equal Protection Clause of the Fourteenth 
Amendment.

Testimony at trial showed that there are many other 
children residing in Altheimer with persons other than 
their parents who attend the public schools without the 
payment of tuition (R. 46-57). Mr. Martin knew of this 
situation and yet failed to advise the Superintendent of 
Schools (R. 75). Mr. Bowen testified that he “ supposes 
that there are other children physically residing in the 
district with friends and relatives but whose parents re­
side in other districts (R. 29). This testimony alone 
clearly indicates that Altheimer has failed to apply its 
tuition policy consistently. Instead, minor appellants have 
been singled out and have been required to pay tuition.



13

C. Appellants Were Charged Tuition Because Appellant Linda 
Ann Johnson Exercised a “ Freedom of Choice”  to Attend 
the Predominantly White School in Altheimer.

Broivn v. Board of Education, 347 U.S. 483, in 1954 de­
clared racial segregation in public education to be in­
herently unequal and violative of guarantees of the Four­
teenth Amendment. However, as of 1965, Altheimer op­
erated racially segregated schools (E. 141). In that year, 
eleven years after Brown, in an attempt to comply with 
the HEW guidelines so as not to forfeit federal financial 
school assistance (R. 96), it adopted the “Freedom of 
Choice” plan (R. 141). However, even as of April 12, 
1967, the Court of Appeals for the Eighth Circuit in 
Kelley, et al. v. Altheimer, Arkansas School District No. 
22, 378 F.2d 483 (8th Cir. 1967) required Altheimer to 
institute extensive corrective measures to eliminate a ra­
cially segregated school pattern which had been perpet­
uated by a racially designed school construction program 
in existence at the time Altheimer charged appellants tui­
tion and after one of them chose to attend the previously 
all white school. The facts supporting this design to per­
petuate the racial segregation were clear and convincing. 
See Rainey v. Board of Education of the Gould School 
District, No. 18,527 (8th Cir., August 9, 1967).

The choice forms were first sent out in the Spring of 
1966 for the 1966-1967 term. Linda Ann Johnson chose 
to attend the formerly all-white Altheimer High School. 
Two days later she, and her brother and sister who also 
attend the public schools of Altheimer (her brother and 
sister chose the Negro school), received a notice from 
Altheimer that they would each have to pay $20.00 per 
month to attend the public schools and would not receive 
transportation generally afforded pupils in the district 
(R. 135). This decision by Altheimer was predicated on 
a finding by it that the appellants were nonresidents of 
the district.



14

Appellants submit that the Board reached this sudden 
and unprecedented (R. 86) decision in retaliation of 
Linda’s choice to attend the white high school. This is 
just a different method of continuing the racially segre­
gated educational system which the Court of Appeals con­
demned in Kelley v. Altheimer, supra. “ [T]he Constitu­
tional rights of children not to be discriminated against in 
school admission on grounds of race or color declared by the 
court in the Brown case can neither be nullified openly 
and directly by state legislators or state executive or 
judicial officers, nor nullified indirectly by them through 
evasive schemes for segregation whether attempted ‘in­
genuously or ingeniously’.” Cooper v. Aaron, 358 IT.S. 1, 
17 (1958). (Emphasis added).

Admittedly, appellants do not have any direct proof 
that Altheimer required that they pay tuition as a conse­
quence of Linda’s choice to attend a white school—such 
proof can rarely be found in any case. No official of 
Altheimer actually told appellants that the reason they 
were being charged tuition was Linda’s choice to attend 
a formerly all-white school. However, the following cir­
cumstances surrounding the decision to charge appellants 
tuition, require that one draw the inescapable conclusion 
that the decision was in retaliation of Linda’s attempt to 
break out of Altheimer’s traditional segregated educational 
pattern and was an attempt to discourage any Negroes 
who in the future might wish to choose to attend a white 
school:

1. Appellants have lived with their grandfather in 
Altheimer as long as they can remember and have attended 
the public schools (although these schools were Negro 
schools) without the payment of tuition (R. 31-32 and 
R. 137-138);



15

2. Appellants were charged tuition two days after Linda 
exercised her choice to attend the white high school (R. 
135);

3. There are, known to officials of Altheimer, many 
other children who live in the district with persons other 
than their parents and this is the first and only time that 
Altheimer has ever charged tuition to persons living 
within the boundaries of the district (R. 29; 58 and 86);

4. Altheimer failed to conduct any real investigation to 
ascertain where the appellants resided:

a. No Altheimer official ever asked Mrs. Johnson (ap­
pellants’ mother) whether appellants resided with 
her (R. 67);

b. No Altheimer official ever asked Mr. Spriggs (ap­
pellants’ grandfather) whether appellants resided 
with him;

c. Altheimer decided to charge appellants tuition on 
the basis of a single report of Mr. Martin (Princi­
pal of Martin School) (R. 80); and

d. As had been done in the past for a white pupil 
(R. 89), Altheimer failed to advise Mr. Spriggs 
that some legal guardian relationship must be es­
tablished between him and the appellants or tuition 
would be charged them.

For these reasons, together with Altheimer’s past his­
tory of racially segregated education, manifested as late 
as April 12, 1967, appellants submit that there is ample 
evidence to show that Altheimer imposed a tuition require­
ment upon appellants and denied them transportation 
because Linda Ann Johnson chose to attend a previously 
all-white high school in the district.



16

n.
Minor Appellants Are Residents of the Altheimer, 

Arkansas School District No. 22.

The State of Arkansas guarantees a child the right to 
free public education in that district in which the child 
resides. Section 80-1501 of the Arkansas Annotated Stat­
utes provides:

The public schools of any school district shall be 
open and free to all persons between the ages of 
six [6] and twenty-one [21] years, residing in that 
district, and the directors of any district may permit 
older or younger persons to attend the schools under 
such regulations as the State Board of Education 
may prescribe. (Emphasis added)

The test is not where the child is domiciled nor where 
the parents reside, but where the child resides. Any defini­
tion of residency which would make the residence of the 
parents determinative is arbitrary, unreasonable and viola­
tive of the equal protection of law clause, as has been 
discussed.

Residence and domicile are not synonymous. Stephens 
v. AAA Lumber Co., 238 Ark. 842, 384 S.W.2d 943, 945 
(1964). It is possible for one to have more than one resi­
dence at the same time. In re Watson, 99 F.Supp. 49, 53 
(W.D. Ark. 1951). Webster’s dictionary defines residence as 
the “act or fact of abiding or dwelling in a place for some 
time; act of making one’s home in a place.” In Krone v. 
Cooper, 43 Ark. 547 (1884), one of the earliest Arkansas 
cases discussing residence, the court stated that “residence 
[in this case in contemplation of the attachment laws] 
implies an established abode fixed permanently for a



17

time for business or other purposes although there may 
be an intent existing all the time to return at some time 
or other to the true domicile . . . ” p. 551. Also see Brigham 
v. Brigham, 229 Ark. 967, 319 S.W.2d 844, 847 (1959)—resi­
dency is largely a matter of intent; Central Manufacturers 
Mut. Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W.2d 102, 103 
(1948)—residence and place of abode are synonymous; 
Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 (1938).

Minor appellants have lived with Joseph Spriggs, their 
grandfather, a long time resident of Altheimer, for most 
of their natural lives (E. 31). The fact that minor appel­
lants may visit their mother in the adjoining district oc­
casionally cannot negate their residence with their grand­
father. Certainly, this Court would not have minor children 
visit their mother only at the peril of being denied their 
right to a free public education in the district in which 
they live. The proximity (4 miles) of appellants’ mother 
makes it even more unnatural for them not to visit her 
(E. 72).

Altheimer’s tuition policy, as interpreted by the Chair­
man of its Board, is to provide free public education for 
all pupils who reside within the district regardless of 
whether such residence is with a natural parent if the 
pupil living in the district does not return to his parents’ 
home after the close of the school term (E. 23). There was 
absolutely no testimony that any of the minor appellants 
ever returned to their mother’s home at the end of the 
school term. Further, minor appellants are not in the 
district solely to avail themselves of alleged superior 
education since their mother has testified that they would 
be living with her except for the fact that she is unable 
to care for them because she is required to work (E. 102).

Finally, it has been demonstrated that no school official 
ever asked Mrs. Johnson whether her children resided with



18

her (T. 56) and neither was Mr. Spriggs asked if his 
grandchildren resided with him. Instead, based solely on 
Mr. Martin’s report to the Superintendent of Schools 
after he took the census enumeration, minor appellants 
were notified within two days after Linda chose to attend 
the previously all-white Altheimer school (E. 135) that 
they would have to pay tuition at the rate of $20.00 per 
month to attend the public schools since they had been 
found to be non-residents of the district.

Appellants submit that they have demonstrated that 
minor appellants live with their grandfather in Altheimer, 
have been living with him for a number of years, and have 
no intention of leaving his abode; therefore, minor appel­
lants are clearly residents of Altheimer School District 
and as such are entitled to attend the public schools of 
that district without the payment of tuition.

m .

Although Residency Is Determined by State Law, the 
District Court Can Apply That Law in an Action Where 
Appellants Have Raised, and Supported With Testi­
mony, Substantial Federal Claims.

The Honorable Oren Harris, in his decision dismissing 
appellants’ complaint, stated: “ [T]he state law provides 
a method of determination of the residence of the students 
within a school district.” He went on to say: “ [C]ertainly 
proper determination may be made by proper forum 
as to the legal residence of any person and there are 
legal procedures in the state for such determination” (R. 
144). If, by these statements, Judge Harris was holding 
that the question of residence since it involves an applica­
tion of state law should properly be presented to a state



19

court forum, appellants respectfully submit that such deci­
sion was erroneous.

The substance of appellants’ complaint is that they are 
residents of Altheimer, that Altheimer has deprived them 
of their right to a free public education and of their 
rights of due process and equal protection of the laws 
guaranteed by the Fourteenth Amendment to the United 
States Constitution by requiring that they pay tuition to 
attend school, and that Altheimer has imposed these tuition 
and transportation requirements upon them for the pur­
pose of punishing Linda Ann Johnson for-exercising her 
choice to attend a predominantly white school and for the 
purpose of discouraging other persons similarly situated 
from making a choice to attend predominantly white schools 
(R. 3). Although the meaning of residence must be re­
solved by an application of state law, it was an error for 
the court to refuse to apply this state law in the resolu­
tion of appellants’ essentially federal claims.

Indeed, even if appellants asserted a state law claim for 
relief along with a federal ground for relief, if these two 
distinct grounds were in support of a single cause of 
action a federal court through the application of pendent 
jurisdiction could dispose of the case upon a nonfederal 
ground though the federal ground may not have been es­
tablished. See Hum  v. Oursler, 289 U.S. 238 (1932), and 
United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

However, the appellants are not even seeking a state 
remedy but instead ask for a declaratory judgment and 
injunction enjoining Altheimer from pursuing those poli­
cies which they claim deny them federal constitutionally 
protected rights. Implicit in a decision on these claims is 
a determination of whether Altheimer’s tuition policy either 
on its face or as applied contravenes these rights as as-



serted by appellants. In rendering this decision, although 
a question of state law may have to be resolved, a federal 
court is authorized and indeed must apply the state law. 
Erie Ry. Co. v. Tompkins, 304 U.S. 64 (1938).4

CONCLUSION

W herefore, appellants pray that the judgment below be
reversed.

Respectfully submitted,

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

J ohn W . W alker
1304-B Wright Avenue 
Little Rock, Arkansas

Jack Greenberg
M ichael Meltsner
Gabrielle A. K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

4 Thompson v. Shapiro, Civil Action No. 11,821 (D.C. Conn., June 19, 
1967) and Green, et al. v. The Department of Public Welfare of the 
State of Delaware, et al., Civil Action No. 3349 (D.C. Del., June 28, 1967), 
recent district court cases invalidating residence as a requirement for the 
receipt o f welfare benefits lend support to appellants’ contention that 
the existence of a question o f residence which is normally resolved through 
the application of state law cannot deprive a federal court of jurisdic­
tion to resolve a substantial federal claim.



21

Certificate of Service

This is to certify that on the ------  day of September,
1967, I served a copy of the foregoing Appellants’ Brief 
upon C. Harley Cox, Jr., Esq., Coleman, Gantt, Ramsay, 
and Cox, Simmons National Building, Pine Bluff, Ar­
kansas, attorney for appellees, by mailing a copy thereof 
to him at the above address via United States mail, postage 
prepaid.

Attorney for Appellants



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