Spriggs v The Altheimer School District Appellants Brief
Public Court Documents
September 1, 1967

27 pages
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Brief Collection, LDF Court Filings. Spriggs v The Altheimer School District Appellants Brief, 1967. 1e5354ec-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d2e05152-3b46-4493-a188-ed5c73502389/spriggs-v-the-altheimer-school-district-appellants-brief. Accessed April 27, 2025.
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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 MEILEN PRESS INC. — N. Y. C .« @ * > 2 1 9