Broussard v. Houston Independent School District Petition for Rehearing with Suggestion for Rehearing En Banc and Brief in Support Thereof

    I n the

In itib States (Eimrt nf Appeals

F or the E ighth Circuit 
No. 18368

Delores Clark, et al.,
Appellants,

The Board of E ducation of the
L ittle R ock School District, et al.,

Appellees.

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

APPELLANTS’ REPLY BRIEF

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

H arold A nderson
Century Building, Room 205 
Ninth & Arch Streets 
Little Rock, Arkansas

J ack Greenberg 
James M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants



In the
Mniteb Gkwrt nf Kppmln

F ob the E ighth Circuit

No. 18368

Delores Clark, et al.,

-v -
Appellants,

T he B oard of E ducation of the 
L ittle R ock School District, et al.,

Appellees.
on appeal from the united states district court

FOR THE EASTERN DISTRICT OF ARKANSAS

APPELLANTS’ REPLY BRIEF

At the outset we must observe that the board’s brief 
patronizes and testifies where discussion of facts and law 
would be appropriate.1 Appellees accuse Negro appellants 
of injecting foreign elements into a court of law but their 
brief reveals that they are the abstract educational and 
social theorizors. They state dogmatically matters, such

1 Appellees speak of “ Negro leaders . . . seeking advantages”  (P. 11) 
‘“In our view the overall handling by the Fifth Circuit has left much to 
be desired”  (p. 24). “Arkansas’ record . . . has been excellent” (p. 26). 
“We are not concerned with whether Mr. Lamb as an individual had any 
other understanding (or any understanding at all) . . . ”  (p. 31). “ Actually, 
many of the Guidelines are a monstrosity from the standpoint of operating 
an educational program” (p. 33) “ to a knowledgeable educator . . . they 
sound like the first grade student telling the Superintendent how to run 
the System” (p. 35) “ the facts of life are (as any qualified educator will 
tell you) . . . ”  (p. 36) “Nine out of ten [Educators] would tell you . . . ” 
(p. 37). We mention these examples only in order that exposure will 
clarify their cumulative effect of innuendo, insinuation and self congratu­
lation.



2

as the views of unnamed educational experts, which have 
never been the subject of testimony. They seek to convert 
this controversy into a question only of the good will of 
the school board. When speaking about the 1967 school 
year we are, however, concerned with results: the con­
version of the Little Bock schools system into a fully 
integrated, nonracial, one. As Mr. Justice Clark has put 
it: “ it is of no consolation to an individual denied the 
equal protection of the law that it was done in good faith.” 2 
The board also states matters which are irrelevant and 
false, such as that this case has been brought by “Negro 
leaders . . . seeking advantages” , when the record shows 
beyond peradventure that the board’s own failure to take 
affirmative steps to desegregate and indifference to even 
its stated policies prompted suit. Over the years most 
constructive steps taken by the board have been stimulated, 
if not required, by litigation.3 See e.g. infra pp. 14a-17a, Of 
course we object to the know-it-all tone of the brief which 
suggests that the board’s concern with desegregation is 
exclusive, that Little Rock Negroes have never had cause 
to complain, and that the suit is somehow a wanton inter­
ference with the totally non-racial policies of the board.4 
We point these matters out only because the loose state­
ment, innuendo and abstraction of the brief in this regard 
distorts the posture of the case and the questions before 
this Court.

Thus, in this brief we seek to bring to the attention of 
the court a number of pertinent circumstances which are 
either omitted from, or distorted in, appellees brief. For

2 Burton v. Wilmington Parking Authority, 367 U.S. 715, 725.

3 (Tr. 386, 49, 50, 79, 81, 208, 209); Aaron v. Cooper, 261 F.2d 97, 108 
(8th Cir. 1958); Byrd v. Little Bock School District No. L.R. 65-C-142).

4 In fact, the record shows that the school staff, charged to implement 
it, knew little about the desegregation plan (Appellants’ Brief pp. 12, 13).



3

example, in the extended discussion of how zone attendance 
lines create ghetto schools in certain other cities (in con­
text appellees are telling the court that appellants do not 
want what appellants say they want) there is no grappling 
with the fact that a total of thirteen schools in Little Rock 
under the board’s desegregation plan have solely Negro 
enrollment; that no whites attend formerly Negro schools 
in Little Rock. Apparently, the board has managed to 
create Ghetto schools, notwithstanding its adoption of a 
transfer, as opposed to a zone, plan. The board’s ironic 
reliance on cases such as Bell v. School Board, City of 
Gary, Indiana, 324 F.2d 209 (7th Cir. 1963) should be 
noted. In Little Rock, segregation is a product of direct, 
affirmative, and intentional state action. In this sense, the 
past which appellees’ brief writer would like to forget 
cannot be forgotten—until the schools of Little Rock are 
operated on a totally nonracial basis. At that time, per­
haps the school board will be free from the burdens 
imposed on it by a federal court of equity. Until the 
transition is complete, however, pupil and faculty assign­
ment and transfer policies adopted by the board are to 
be construed in light of their effect on the desegregation 
process. Because the board has taken some steps in that 
direction (most of which are the product of litigation) 
does not mean that it can be considered on a par with 
school systems operating in communities where state im­
posed pupil segregation was unknown. We believe the 
statement of this court in Smith v. Board of Education, 
Morrilton School District #32, ------  F .2 d ------ (Septem­
ber 14, 1966) is apposite:

Under circumstances such as these, the application 
of the policy (although the policy is non-discriminatory 
on its face and is based upon otherwise rational con­
sideration) becomes impermissible.



4

Likewise, we fail to understand the board’s heavy reli­
ance on Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D. S.C. 
1955) for this Court has rejected it as “logically incon­
sistent with” Brown v. Board of Education; Kemp v. 
Beasley, 352 F.2d 14, 21 (8th Cir. 1965). See also Single- 
ton v. Jackson, 348 F.2d 729, 30, n. 5 (5th Cir. 1965).5 
Thus, the question with respect to the plan or plans 
adopted by the board is not whether they are nonracial 
on their face, or whether good intentions preceded their 
adoption, but whether they actually disestablish the segre­
gated system within the immediate future, Kemp, supra. 
We are more than 12 years from Brown v. Board of Edu­
cation, and the Supreme Court has stated that the time 
for delay is over. As Judge Larson (concurring) stated in 
Kemp, supra:

The bell was tolled for segregated schools more than 
a decade ago, and at this late date all discriminatory 
systems should have been eliminated. The second 
Brown decision required segregation to be phased out 
with “all deliberate speed.” After eleven years of 
deliberation, discussion and delay, the courts should 
turn a deaf ear to arguments that now is not the 
“earliest practicable date.” Whatever administrative 
difficulties may have been present at the outset could 
have been resolved by this time if compliance had

6 “ In retrospect, the second Brown opinion clearly imposes on public 
school authorities the duty to provide an integrated school system. Judge 
Parker’s well-known dictum ( ‘The Constitution, in other words, does not 
require integration. It merely forbids discrimination’.) in Briggs v. Elliott, 
E.D. S.C. 1955, 132 F. Supp. 776, 777, should be laid to rest. It is in­
consistent with Brown and the later development of decisional and statu­
tory law in the area of civil rights. This Court has come a long way from 
Avery v. Wichita Falls In i. School District, 5 Cir. 1957, 241 F.2d 230, 233, 
cert, den’d, 353 U.S. 938, 77 S. Ct. 816,1 L.Ed. 2d 761 (1957) and Holland 
v. Board of Public Instruction, 5 Cir. 1958, 258 F.2d 730. Lockett [v. 
Muskogee County, 349 U.S. 294 (5th Cir. (1965)] traces the course this 
Circuit has taken in school segregation cases.”



5

been commenced in good faith and without hesitation. 
Constitutional rights should no longer be permitted 
to remain in abeyance.

Other hard facts are strangely ignored in the brief. Thus, 
it suggests to the uninformed reader that the board has 
adopted a freedom of choice plan identical to that set forth 
in the Revised Guidelines published by the Office of Edu­
cation. This is news to appellants. The Office of Education 
requires for the 1966-67 school year that freedom of choice 
be extended to all grades and that choice be mandatory, 
but the board’s plan, as stated in its Report and Motion 
(January 27, 1966) infra p. 9a, limits free choice to grades 
1, 7, and 10.

In all grades other than 1, 7, and 10, the board offers 
not freedom of choice but only a limited right to lateral 
transfer. Thus, the board’s amended plan states that all 
students shall annually have the right to express preference 
for assignment to a school in the district by tiling a request 
for a lateral transfer. The choice shall be made by com­
pleting a form which will be available in the offices of the 
superintendent and principals. Notice of the transfer right 
is given by the classroom teacher distributing an appro­
priate notice. Transfer will be granted unless the choice 
results in overcrowding at the school chosen in which event 
a student will be permitted to attend another school “within 
a reasonable distance of his residence.” Unless transfer is 
requested each student shall continue to attend the school 
to which he is assigned.

The lateral transfer provisions are similar to, but sig­
nificantly different from, freedom of choice as set forth in 
the Guidelines and universally recognized in court deci­
sions. The differences between the two approaches are sig­
nificant because the school board’s approach in grades other



6

than 1, 7, and 10, throws the entire burden on Negro par­
ents and students. Thus, the Revised Guidelines provide 
that “ each student must be required to exercise a free 
choice of schools once annually” (§181.43) (emphasis sup­
plied) whereas the lateral transfer plan applies not to all 
students but only those who step forward and request a 
change of assignment.

The Guidelines provide that “any student who has not 
yet exercised his choice of school . . . must be assigned to 
the school nearest his home where space is available” 
(§181.45). Under lateral transfer a student remains at the 
school he presently attends.

The lateral transfer plan provides that in cases of over­
crowding the student will be permitted to attend another 
school of his choosing within a reasonable distance of his 
residence. Under the Guidelines a student is “ given his 
choice of each school in the system serving his grade level 
where space is available”  (§181.49).

The lateral transfer plan provides for completion of a 
form which may be obtained from the superintendent or a 
principal. The Guidelines provide for general notice to the 
community and for distribution by mail to every student 
of “ an explanatory notice and a choice form to the parent 
or other person acting as parent of each student together 
with a return envelope addressed to the superintendent” 
(§181.46).

If the school board has adopted the specific text of the 
Guidelines with respect to pupil assignment (and/or faculty 
assignment) this is first appellants have heard of it. Cer­
tainly, the board took no such position before the district 
court as is revealed clearly by its Report and Motion (see 
infra, p. 9a). In addition, although this is obviously not 
shown by the record, the board has not complied with the



7

specific provisions of the Guidelines subsequent to the deci­
sion of the district court. We are advised, informally, that 
the board has adopted a resolution announcing generally 
that it intends to comply with the spirit of the Guidelines. 
This resolution, however, was apparently adopted after 
notice of appeal to this Court was filed. More significantly, 
we do not believe that vague resolutions are any substitute 
for a specific and definitive plan which accomplishes pupil 
and faculty desegregation. No such plan was before the 
district court. No such plan to our knowledge has been 
provided the district court subsequent to its decision. No 
such plan is presently in operation. Under these circum­
stances, we can only ask this Court, as we have done in 
our brief, to enunciate the pertinent principles. If the 
board has adopted and effectuated these principles already, 
then we fail to see how it can object to such an order. As 
the matter now stands, however, the records fail to reveal 
them and appellants do not believe the board has adopted 
them or put them to practice subsequent to the district 
court’s opinion.6

The matter is seen clearly with respect to the board’s 
faculty desegregation plan. The plan as approved by the 
district court provided only that the board would pursue 
the matter as expeditiously as possible see infra pp. la, 7a.

6 The board refers to the Memphis, Term., desegregation experience 
about which we have no firm knowledge. However, the school district 
which surrounds the Little Eoek district known as the Pulaski County 
public school district which has approximately the same number of pupils 
as the Little Rock school district and more Negro pupils than the Little 
Rock school district began a voluntary plan of desegregation only last 
year. Under the Guidelines, it now has substantially more pupil desegre­
gation than the Little Rock school district in that approximately 1,600 
Negro pupils attend predominantly white schools. All of this was ac­
complished in a period of approximately one year. Also, approximately 
30 teachers are in desegregated situations. This district’s two year experi­
ence without court order is in marked contrast to the Little Rock district’s 
achievements over a 10 year period.



8

Negro appellants, in our brief, pointed out the absence of 
specific standards and the vagueness and unreliability of 
the board’s “ plan.” Some teachers have been assigned on 
a nonracial basis subsequent to our notice of appeal but 
as best we can ascertain (1) all Negro teachers new to the 
system are still assigned to Negro school; (2) the board 
has not adopted any definitive or specific plan for faculty 
desegregation; (3) 19 schools have no faculty desegrega­
tion whatsoever. The Court will also note that progress in 
teacher and pupil reassignment is made only after actions 
are filed or appealed. Thus, if this Court were to affirm 
the board’s vague “as expeditiously as possible” plan with­
out forcing the adoption of specific standards, the board 
is free to resist full and complete desegregation as it has 
in the past. Here again, if the board has in fact adopted 
specific standards, that is not a matter of record or known 
to us, but if the board is saying in its brief that it is willing 
to comply with them, as discussed in appellant’s brief, 
pp. 25-31, then we fail to see why it would object to this 
Court ordering same.

We believe that this Court should order the board to up­
grade its plan by adopting the Guidelines in addition to the 
standards adopted by those district courts which require 
that the percentage of Negro teachers assigned to each 
school will approximate the percentage of Negro teachers 
to white teachers in the system. See the discussion of Kiev 
v. County School Board of Augusta, 249 F. Supp. 239, 247 
(W.D. Va. 1966); Dowell v. School Board of City of Okla­
homa City, 244 F. Supp. 971 (W.D. Okla. 1965); Beckett v. 
School Board of Norfolk, Civil No. 2214 (E.D. Va. 1966) in 
appellant’s brief, pp. 26-28.

The failure of the district court to retain continuing- 
jurisdiction over this case is no mere formality. The courts, 
of course, are always open to Negro school children and



9

their parents but initiation of a new suit is a far more cum­
bersome and time consuming matter than moving for fur­
ther relief in a pending suit. The dismissal of the case by 
the district court, moreover, reflects that court’s conclusion 
that annual supervision of the board’s plans and perform­
ance is not required. Compare the monitoring of compli­
ance required by the Revised Guidelines. School systems 
are required to submit detailed information concerning 
every aspect of their administration of the desegregation 
process. (§§181.18, 19, 55) Provisions requiring the school 
board to file similar reports with the district court are ap­
propriate especially where, as here, a vague faculty de­
segregation plan has been offered. Unless the court and 
the class for which this action has been maintained are 
formally apprised of the plans and performance of the 
board in an orderly and systematic fashion it is difficult for 
the court and appellants to insure that the desegregation 
plan is in fact desegregating the system. It is because of 
the district court’s continuing responsibility to supervise 
transition to a fully desegregated system that from Brown 
v. Board of Education to the present, district courts have 
invariably maintained such cases on their docket. We see 
no reason why the court below is unable to “keep an orderly 
docket” as contended by the school board (p. 40) if all other 
district courts have been able to do so. Continuing super­
vision requires continuing attention and this Court should 
require both of district courts.

With respect to appellants’ prayer for reasonable counsel 
fees we wish only to note that this case is fundamentally 
different from Kemp v. Beasley, supra. Here, the district 
court determined that an award of counsel fees was ap­
propriate but awarded only a token amount. We believe 
that once the propriety of a counsel fee award has been 
established that the amount taxed should be meaningful.



10

Award of a token amount is totally inconsistent with the 
finding of the district court that the school board thwarted 
the desegregation process and failed to follow its own 
transfer policy.

Respectfully submitted,

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

Harold A nderson
Century Building, Room 205 
Ninth & Arch Streets 
Little Rock, Arkansas

J ack Greenberg
J ames M. Nabrit, III
Michael Meltsner

10 Columbus Circle 
New York, New York

Attorneys for Appellants



APPENDIX

Supplemental Report on Desegregation Procedures 

(April 23, 1965)
* *
VI. Teachers and Staff

The Board of Directors assumes the responsibility of 
undertaking and completing as expeditiously as possible 
the desegregation of teachers and staff with the end in 
view of recruitment and assignments without regard to 
race. There are many problems involved in this matter, 
hut the Board and the administrative staff will proceed 
diligently and in good faith toward a satisfactory and 
non-discriminatory solution.

As has been heretofore related to the Court, some 
progress has already been made in this regard, and during 
the 1965— 1966 school year faculty meetings, teachers’ 
meetings, principals’ meetings and in-service workshops 
will be desegregated and conducted on a nonracial basis.



2a

IN THE UNITED STATES DISTRICT COURT 

E astern D istrict oe A rkansas 

W estern D ivision 

No. LR-64-C-155 

(January 14, 1966)

Memorandum Opinion

Delores Clark, R oosevelt Clark, J une Clark, Sharon 
Clark, infants, by their father and next friend, Roose­
velt Clark, and E thel L amar Moore, an infant, by her 
mother and next friend, Mrs. Dazzle Mott Moore,

Plaintiffs,

T he B oard of E ducation of the Little Rock School District, 
R ussell Matson, Jr., P resident, E verett T ucker, J r., 
W. T. McD onald, J ohn H arrell, W arren K. Bass and 
J ames Coates, Directors of the Little Rock School 
District,

Defendants.

On November 4, 1964 five Negro school children, joined 
by their parents, filed their complaint in this case seeking 
to enjoin the defendants, who comprise the Board of Edu­
cation of the Little Rock School District, from denying 
them admission to certain of the Little Rock schools because 
of their race and color. The plaintiffs brought the action 
not only for themselves, but on behalf of all Negroes in 
the City of Little Rock who are similarly situated. This 
is a proper class action.



3a

Aside from their own inability to attend the schools of 
their choice, the principal attack in the complaint was 
directed against the Little Rock Board’s alleged unconsti­
tutional administration of the Arkansas Pupil Assignment 
Law. Complaint was also made that teachers and other 
school personnel were employed and assigned on a racial 
basis.

The case was tried January 5 and 6, 1965.
On April 23, 1965, during the time that the parties were 

in the process of briefing the legal questions involved, the 
defendant School Board filed a motion to which was at­
tached a “ Supplementary Report” asking that the desegre­
gation procedures embodied in that report be approved by 
the Court.

These proposed new procedures would result in the 
abandonment of the School Board’s use of the Arkansas 
Pupil Assignment Law and the adoption of a “ Freedom 
of Choice” plan. Generally this freedom of choice plan is 
similar to that of the El Dorado, Arkansas school system 
described in Kemp v. Beasley, 352 F.2d 14 (8th Cir. October 
27, 1965), with this exception: in El Dorado the school 
system was completely segregated prior to the submission 
of the plan by the school board in response to suit insti­
tuted in the federal district court and the plan proposed 
a three-year period for desegregation of all the grades. In 
Little Rock desegregation of the school system was begun 
by the School Board in 1957. By 1963, under the Arkansas 
Pupil Assignment Law, all of the grades had been deseg­
regated. Thus, unlike El Dorado, in Little Rock the pro­
posed plan would be effective as to all grades immediately.

Under the proposal those pupils entering the first grade, 
the seventh grade (junior high), and the tenth grade 
(senior high), as well as all pupils newly enrolled in the

Memorandum Opinion



4a

district, would be given and even required to exercise a 
choice of schools, such choice being absolute unless over­
crowding would result in that school; if so, those residing 
closer to the school would be given preference and the 
others whose choice was not allowed would be given a sec­
ond choice under the same circumstances.

As to pupils in the other grades, near the close of the 
year they would be reassigned to the same school. Pupils 
might apply for reassignment, but it is a stated policy of 
the Board that such lateral transfers would be granted only 
in unusual circumstances.

The revised plan embodied in the supplemental report 
contains the following in reference to teachers and staff:

“VI. TEACHERS AND STAFF

“ The Board of Directors assumes the responsibility 
of undertaking and completing as expeditiously as 
possible the desegregation of teachers and staff with 
the end in view of recruitment and assignments with­
out regard to race. There are many problems involved 
in this matter, but the Board and the administrative 
staff will proceed diligently and in good faith toward 
a satisfactory and non-discriminatory solution.

“ As has been heretofore related to the Court, some 
progress has already been made in this regard, and 
during the 1965-1966 school year faculty meetings, 
teachers’ meetings, principals’ meetings and in-service 
workshops will be desegregated and conducted on a 
non-racial basis.”

Plaintiffs’ response to the defendants’ motion and sup­
plemental report containing the revised plan attacked the 
freedom of choice approach and opposed certain details

Memorandum Opinion



of the freedom of choice plan as proposed. Plaintiffs ask 
that the Court require the Little Rock School Board to 
generally reassign all pupils to the schools nearest their 
residence; reassign all teachers on a nonracial basis; em­
ploy or upgrade competent Negro persons to responsible 
administrative staff positions and initiate inter-school ex­
tracurricular activities between all schools at the respective 
divisional levels.

On August 27, 1965 the defendant School Board filed an 
additional supplemental report stating that pursuant to 
its commitment in Article VI, Teachers and Staff (set 
out above verbatim), the Board has assigned four white 
teachers to teach in schools attended by a predominately 
Negro student body, and four Negro teachers to teach in 
schools attended by a predominately white student body.

As heretofore stated, Kemp v. Beasley, supra, dealt with 
a desegregation plan similar in a number of respects to the 
one under consideration here.

The Court there found “that the ‘Freedom of Choice’ 
plan is a permissible method at this stage.” It held, how­
ever, that the pupils must be given an annual “ freedom of 
choice” rather than only at school level changes. It also 
said bi-racial attendance zones must be eliminated.

In the case here we are not concerned with a transitional 
period because some integration exists throughout the 
system in Little Rock. It is true, however, that the Negro 
students now attending the twelfth grade have not had a 
choice since they entered the tenth grade, and such choice 
as they had then was conditional because of the Arkansas 
Pupil Placement Law.

On January 11,1966, at the Court’s request, the defendant 
Board furnished additional information relative to progress 
of integration since it began in 1957, a current report on

5a

Memorandum Opinion



6a

the faculty and staff, and the extent of integration in 
extracurricular activities.

Such information shows Negroes attending formerly all- 
white schools:

Memorandum Opinion

Y ears Numb

1957-58 9
1958-59-—During this school year the 

Little Kook Schools were 
closed.

1959-60 9
1960-61 12
1961-62 44
1962-63 72
1963-64 124
1964-65 220
1965-66 621

The Board had used freedom of choice in the school term 
beginning in September 1965 with the Court’s permission, 
subject to the Court’s final order at the conclusion of this 
case, at the first, seventh, and tenth grade levels.

It will be noted that the number of Negro children in 
integrated schools increased from 220 in 1964-65 to 621 in 
1965-66 with freedom of choice restricted to those grade 
levels.

The latest report also shows that Negro pupils are par­
ticipating in considerable numbers in athletic and other 
extracurricular activities.

The Faculty and Staff

One Negro teacher is presently employed in each of five 
schools formerly staffed by all-white teachers.



7a

Memorandum Opinion

Four white teachers are presently assigned to three 
schools which were formerly staffed by all-Negro teachers.

As shown by the report of the Board dated January 11, 
1966, this number will be increased in the last semester of 
this school year.

All in-service meetings for teachers, principals, and 
supervisors are on an integrated basis.

The announced purpose of the Board as stated in the 
plan to pursue the solution of this problem as expeditiously 
as possible, coupled with the tangible progress made thus 
far, leads the Court to believe that for the present, at least, 
no additional order of the Court is required.

Bi-racial Attendance Zones

An unrestricted annual freedom of choice would seem to 
eliminate any possibility of bi-racial attendance zones as 
referred to in Kemp, although it may be true that at least 
for some period of time some schools may be predominantly 
white or colored, or all white or colored.

Conditional Approval of Plan

The proposed freedom of choice filed with the Court 
April 23, 1965 will be approved, provided that within fiffi 
teen days the Board will amend such plan to provide:

1. A choice to all students of the class represented 
by plaintiffs in the twelfth grade to transfer to another 
high school at the end of the school semester in Janu­
ary 1966;

2. Annual “freedom of choice” to be exercised under 
reasonable regulations and conditions promulgated by 
the Board and sufficiently publicized to acquaint all



Memorandum Opinion

interested parties with the simple mechanics of exer­
cising their right of choice of schools—subject, of 
course, to the availability of classroom facilities and 
the overcrowding of classrooms.

Dated: January 14, 1966.

/ s /  Gobdon E. Y oung 
United States District Judge



9a

Report and Motion 

(January 27, 1966)

IN THE UNITED STATES DISTRICT COURT 

Eastern D istrict of A rkansas 

W estern Division

Delores Clark, R oosevelt Clark, J une Clark, Sharon 
Clark, infants, by their father and next friend, Roose­
velt Clark, and E thel L amar Moore, an infant, by her 
mother and next friend, Mrs. Dazzle Mott Moore,

— v.—
Plaintiffs,

T he B oard o f  E ducation of the Little Rock School District, 
R ussell Matson, Jr., P resident, E verett T ucker, Jr. 
(replaced by Mrs. Frank Gordon), W. T. McD onald, 
J ohn H arrell, W arre-n K. Bass and James Coates, 
D irectors of the Little Rock School District,

Defendants.

Come the Defendants and for their Report and Motion, 
state:

1.

As directed by the Court, a choice has been afforded to 
all students of the class represented by the Plaintiffs in 
the twelfth grade to transfer to another high school at the 
end of the school semester in January, 1966.



10a

Report and Motion

2.

Article V of the Desegregation Plan of the District has 
been amended to read as follows:

“V. LATERAL TRANSFERS

All students shall annually have the right to express 
preference for assignment to a school in the District by 
filing a request for a lateral transfer. Lateral transfer 
means the assignment of a student to a school of the same 
level (that is elementary, junior high or senior high) other 
than the one he currently attends. Students shall be lat­
erally transferred as follows:

A. Any student who will attend a grade at the same 
school level the next school year shall have the right during 
the applicable period prior to the end of each school year 
(being the period within which students in Grades 6 and 9 
are to exercise a choice as to the school to attend in Grades 
7 and 10) to laterally transfer to another school at the 
same level for the next school year under the following 
conditions:

1. The choice shall be made by completing a form which 
will be readily available in adequate numbers in the office 
of the superintendent and the office of the principal of 
each school and which may be picked up at any time during 
school hours.

2. Notice shall be given of the annual lateral transfer 
right by the classroom teacher distributing to the affected 
students an appropriate notice.

3. Lateral transfers will be made as requested unless 
the choice results in over-crowding at the school chosen,



11a

Report and Motion

in which event the student will be permitted to attend 
another school of his choosing within a reasonable distance 
of his residence.

4. The right to request a lateral transfer is granted to 
the student and the parents or guardians. Teachers, prin­
cipals and other school personnel are not to advise, rec­
ommend or otherwise influence the decision, and such school 
personnel are not to favor or penalize any student because 
of any such request.

B. Any student may request lateral transfer at any 
other time and for any other reason and the Board shall 
approve or disapprove the request within thirty (30) days 
after receipt in the office of the superintendent. Notice 
shall be given by mailing the same to the parents or guard­
ians of the student at the address reflected on School Dis­
trict records.

C. Each student shall continue to attend the school to 
which he is assigned until the Board assigns the student 
to another school.

D. All standards applied by the Board in acting on 
lateral transfers and assigning students to other schools 
shall be uniformly applicable to all students and there shall 
be no discrimination on the basis of race, color or national 
origin.”

3.

Defendants will take the necessary steps to sufficiently 
publicize its Desegregation Plan, as amended, to acquaint 
all interested parties with their rights thereunder.



12a

Report and Motion

W herefore, Defendants move the Court for an Order 
approving the action taken by the Defendants, embodied in 
this Report, as complying with the Order of this Court set 
forth in its Memorandum Opinion entered January 14,1966.

Smith, W illiams, F riday & B owen 
11th Floor Boyle Building 

Little Rock, Arkansas

By / s /  H erschel H. F riday 
Herschel H. Friday



13a

Order

IN THE UNITED STATES DISTRICT COURT 
Eastern D istrict op A rkansas 

W estern D ivision 
No. LR-64-C-155

D elores Clark, R oosevelt Clark, June Clark, Sharon 
Clark, infants, by their father and next friend, Roose­
velt Clark, and Ethel L amar Moore, an infant, by her 
mother and next friend, Mrs. Dazzle Mott Moore,

Plaintiffs,

T he B oard of Education of the Little Rock School District, 
R ussell Matson, J r., P resident, E verett T ucker, J r. 
(replaced by Mrs. Frank Gordon), W. T. McD onald, 
J ohn H arrell, W arren K. Bass and James Coates, 
Directors of the Little Rock School District,

Defendants.

In the Court’s opinion filed January 14, 1966, the pro­
posed Freedom of Choice Plan filed with the Court April 
23, 1965, was conditionally approved, subject to the defen­
dants filing certain amendments thereto within 15 days.

The defendants have now filed proposed amendments to 
such plan as required by the Court’s opinion, and, as 
amended in their report and motion dated January 27, 1966, 
the proposed plan filed April 23, 1965 is hereby approved.

There being no remaining issues in the case, the cause 
is dismissed, at the cost of the defendants.

Dated: February 4, 1966.
/ s /  Gordon E. Y oung 

United States District Judge



14a

IN THE UNITED STATES DISTRICT COURT 

Eastern D istrict of A rkansas 

W estern D ivision 

LR-65-C-142 

(August 26, 1965)

Ruling of the Court

Carl Byrd, J r. and Marion B yrd, by their mother and next 
friend, Mrs. R osine B yrd; R eba P earl Gaines, by her 
mother and next friend, Mrs. W illye B ell Gaines; 
and Gwendolyn R hodes, by her father and next friend, 
A lbert R hodes,

Plaintiffs,
v.

T he B oard of E ducation of the L ittle R ock 
School D istrict, a Public Body Corporate,

Defendant.

B e i t  r e m e m b e r e d  that the above entitled and numbered 
cause came on for hearing before Honorable Gordon E. 
Young, United States District Judge, at Little Rock, 
Arkansas on August 26, 1965, wherein the following pro­
ceedings, in part, were had:

P R O C E E D I N G S

The Court: I assume there’s nothing further from either 
side, the record is closed as far as testimony or statements, 
except for the exhibits, which will be supplied later.



15a

I think this is very unfortunate. I think first, that the 
School Board, and the Executive staff of the Schools, did 
not comply effectively with the freedom of choice procedure, 
which is the plan they have tiled with the Court. It seems 
instead of making the additional assignments themselves, 
to be consistent with the plan, they should have given these 
students who had to he laterally transferred because of 
the exceptional circumstances, an opportunity to exercise 
a preference and not to have to go through the procedure 
of applying for reassignment, which was one of the bur­
dens of the pupil assignment plan.

Any way we correct this now, it is going to result in 
disrupting the start of school for a week at least under the 
proposal by the Board. A pupil will not know whether he 
is going to stay in that school or not, except for those who 
voluntarily decide to stay there. They don’t know actually 
which school they may attend because of the possibility of 
overcrowding; and, as I say, it is going to affect adversely, 
to a degree at least, the school year of these students; and 
I think, to he frank with you, it should have been avoided.

I can’t say, Mr. Friday, that counsel for the plaintiffs or 
the plaintiffs ought to have to go to the School Board or 
its attorney—I think they ought to feel free to—but the 
School Board has adopted this freedom of choice plan. 
There may be a better plan, but they chose it, and they 
have to follow it and have to do it consistently and with­
out regard to race; and I don’t think the procedure—I will 
not say that they intended to disregard the plan, I wouldn’t 
say that, but I think the effect was not in compliance with 
the plan.

Now, as I say, these people, individuals of this school 
district ought not to have to take the initiative to go to 
the system or its attorney or be forced to file a lawsuit.

Ruling of the Court



16a

I realize that this plan was new and this was an unusual 
problem but I honestly don’t see any excuse for the course 
the Board took on it. I say the Board—I ’m aware of the 
fact that counsel has stated the matter has never come to 
the Board, and it may be the blame is purely on the execu­
tive staff; but, of course, the Board is responsible for that 
just like any other employee. Since I think that plaintiff’s 
should not have had to resort to this action or any other 
action, I ’m going to award them a special attorney’s fee 
as costs in the sum of $—00.00.

Now, I ’m going to approve the report of the Board, 
which will give each student who has been transferred on 
account of the Board’s action a complete freedom of choice 
in accordance with their plan, which will result in each 
student being able to attend any grammar school in Little 
Rock that he or she wants to, subject, of course, to the 
overcrowding provision in the plan; and then if he or she 
cannot go to that school No. 1 choice, then, of course, they 
are to have a second choice.

I will make that cost assessment here in the presence 
of the Clerk—no provision need to be made in the decree, 
it will just be taxed as cost.

I would suggest, Mr. Friday, that a final decree be pre­
pared, preferably, I believe by you, and submitted to Mr. 
Walker, so we can close this case up. Of course, if any 
administrative or practical problem arises at the opening 
of school you can always come back in this same case.

Now, let me make this statement, Mr. Parson, I will make 
it to you, Mr. Parson, and I don’t want you to take it 
harshly, I don’t mean it in that spirit. I was impressed 
very much with your testimony in the other case by your 
frankness and directness. I know that you are a skilled 
and able administrator. Hereafter in the conduct of school

Ruling of the Court



17a

affairs I want this understood. I know how a school board 
operates. I know its members have very little or nothing 
to do in the every day administration of the system. I also 
know that you have to carry out their orders, but what 
I ’m coming to is this: I ’m going to hold you responsible, 
as well as the Board, for carrying out the policy of the 
district, realizing, of course, that any time that they in­
struct you to do something you have to do it. I realize 
that, but if the administration of the school violates this 
plan without orders from the School Board I think the 
administrative staff should accept the responsibility of 
that action. In other words, I expect the executive and 
administrative staff of the school, which is headed by you, 
to accept responsibility just like the School Board.

Now, is there anything further?
All right, Court will be adjourned.

Ruling of the Court



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