Clark v. Little Rock Board of Education Appellants' Petition for Rehearing En Banc or By The Panel
Public Court Documents
January 13, 1967

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Brief Collection, LDF Court Filings. Clark v. Little Rock Board of Education Appellants' Petition for Rehearing En Banc or By The Panel, 1967. 2f7ab8a4-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/de40b457-c087-4d07-b5e0-1814014d9674/clark-v-little-rock-board-of-education-appellants-petition-for-rehearing-en-banc-or-by-the-panel. Accessed May 13, 2025.
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In the Imfrft States (Emtrt of Appals F ob the E ighth Circuit No. 18368 Delores Clark, et al., -v.- Appellants, T he B oard oe E ducation of the L ittle Rock School District, et al., Appellees. o n a p p e a l f r o m t h e u n it e d s t a t e s d is t r ic t c o u r t FOR THE EASTERN DISTRICT OF ARKANSAS APPELLANTS’ PETITION FOR REHEARING EN BANC OR BY THE PANEL John W alker 1304-B Wright Avenue Little Rock, Arkansas H arold A nderson Century Building, Room 205 Ninth & Arch Streets Little Rock, Arkansas Jack Greenberg James M. Nabrit, III Michael Meltsner H enry A ronson 10 Columbus Circle New York, New York 10019 Attorneys for Appellants In t h e Ittttefc (Hiwrt nl Appeals F ob the E ighth Circuit No. 18368 Delobes Clark, et al., —v.- Appellants, T he B oard of E ducation oe the Little B ock S chool District, et al., Appellees. on appeal from the united states district court FOR THE EASTERN DISTRICT OF ARKANSAS APPELLANTS’ PETITION FOR REHEARING EN BANC OR BY THE PANEL Appellants respectfully petition this Court for rehearing en banc, or in the alternative by a panel of the Court, of the Court’s approval of the lateral transfer provision in the Little Bock, Arkansas school desegregation plan. This provision denies mandatory, annual freedom of choice as signment (except during the First, Seventh and Tenth grades) by which all students must express a preference for assignment which is granted absent overcrowding, in which case all students are assigned on the basis of resi dential proximity to school. Appellants seek rehearing because (1) subsequent to the Clark decision (December 15, 1966) a conflict has developed between constitutional 2 standards for desegregation prevailing in this circuit and those prevailing in the Fifth Circuit by the decision of the later court in United States v. Jefferson County Board of Education, et al, No. 23345 (Dec. 29, 1966) and (2) the Clark decision rests on a demonstrably false factual prem ise as to the burden of Negro students under the lateral transfer plan. I. The Fifth Circuit has adopted as constitutionally re quired minimum standards in free choice plans applicable to all districts within that circuit a mandatory free-choice provision in all grades which conflicts directly with the lateral transfer provision approved in Clark v. Board of Education (pp. 10-13 of slip opinion). As of December 29, 1966, the Fifth Circuit requires school boards to comply with the following provision: (b) Annual Exercise of Choice. All students, both white and Negro, shall be required to exercise a free choice of schools annually. (c) Choice Period. The period for exercising choice shall commence on March 1 and end on March 31 pre ceding the school year for which the choice is to be exercised. No student or prospective student who exercises his choice within the choice period shall be given any preference because of the time Avithin the period when such choice was exercised. (d) Mandatory Exercise of Choice. A failure to exercise a choice within the choice period shall not preclude any student from exercising a choice at any time before he commences school for the year with respect to which the choice applies, but such choice may be subordinated to the choices of students who exercised choice before the expiration of the choice period. Any student who has not exercised his choice of school within a week after school opens shall be assigned to the school nearest his home where space is available under standards for determining avail able space which shall be applied uniformly through out the system, (slip opinion App. A, p. 2a, United States v. Jefferson County Board of Education). The Court in United States v. Jefferson County School Board in requiring annual, mandatory choice reasoned as follows: “In place of permissive freedom of choice there must be a mandatory annual free choice of schools by all students, both wrhite and Negro. ‘If a child or his parent is to be given a meaningful choice, this choice must be afforded annually.’ Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 22. The initial assignment, within space limitations, should be made by a parent or by a child over fifteen without regard to race. This mandatory free choice system would govern even the initial assignment of students to the first grade and to kindergarten. At the minimum, a freedom of choice plan should proved that: (1) All students in desegregated grades shall have an opportunity to exercise a choice of schools. Bradley v. School Board Richmond, Va., 4 Cir., 1965, 345 F.2d 310, vacated and remanded, 1965, 382 U.S. 103; (2) where the number of applicants applying to a school exceeds available space, preferences will be deter mined by a uniform non-racial standard, Stell v. Savanna.lt- Chatham County Board of Education, 5 Cir. 1964 333 F.2d 55, 65; and (3) when a student fails to exercise his choice, he will be assigned to a school under a uniform non-racial standard, Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 22. (emphasis supplied)” (slip opinion pp. 49, 50)1 The conflict between the decision in Clark, supra, and the Fifth Circuit ruling in United States v. Jefferson County Board of Education merits reconsideration by the Court. The seriousness of a conflict with the Fifth Cir cuit is plan for it means that the constitution is to mean different things in different states. Only the United States Supreme Court can resolve such a conflict but before a matter of such sensitivity, involving the constitutional rights of so many, is presented to the Supreme Court, every opportunity for resolution should be explored. Re-examination of Clark, supra, in light of United States v. Jefferson County Board of Education, is also supported by the paiticular circumstances of that case. The opinion disposes of seven cases argued and extensively briefed during the summer of 1966 by attorneys for numerous Negro students and parents, the United States and school boards from three states. The opinion of the court with footnotes, runs to over 100 pages and includes the most far ranging review and discussion of the theory and prac tice of school desegregation in recent years. The decision includes a comprehensive, specific, decree which district courts are to adopt in order to insure uniformity and regularity. (Significantly, one of the reasons for the draft ing of this decree with standards no lower than those of the Department of Health, Education and Welfare, is the actual experience of the Fifth Circuit that school boards faced with lower judicial standards than those set forth by the Guidelines of the Department have managed to 1 It should be noted that the Fifth Circuit relied, in part, on language in an earlier decision of this Court, Kemp v. Beasley, 352 F.2d 14, 22 which appears inconsistent with the approval of lateral transfer by a different panel of the Court in Clark. 5 obtain decrees in federal court providing for only minimum desegregation efforts.)2 Tbe critical passage in thfi Court’s opinion in Clark upholds lateral transfer and rejects a mandatory annual free choice requirement, as follows: In the plan before us the students are required to choose before entering the first, seventh and tenth grades. They are not, however, “locked” to their initial choice. They are afforded an annual right to transfer schools if they so desire. The failure to exercise this right does not result in the student being assigned to a school on the basis of race. Rather, the student is assigned to the school he is presently at tending*, by reason of a choice originally exercised solely by the student, (emphasis in original.) (P. 11 of slip opinion.) 5 Facts overlooked by the Court render the last sentence of the quoted passage inaccurate/ The Court has concluded that the annual voluntary “right” to request and obtain transfer constitutes a suffi cient desegregation plan because it permits Negro students to seek annual placement in a desegregated school on similar terms to the mandatory free choice which takes place in the first, seventh, and tenth grades, the only dis tinction between the two being that in the first, seventh, and tenth grades all students choose schools rather than only those seeking transfer. In short, the premise is that .. 2 “ In Louisiana alone twenty school boards obtained quick decrees providing for desegregation according to plans greatly at variance with the Guidelines.” ( United States v. Jefferson County Board of Education, p. 17 of Slip Opinion). II a real, unencumbered and not illusory opportunity for admission to a desegregated school exists for those who desire it. Contrary to the assumption of the Court, however, Negro students are “ locked” to their initial choice and seriously burdened in escaping from “ Negro” schools be cause under this plan they can only exercise their lateral transfer “ right” to the extent that the school they choose is not overcrowded. “Lateral transfers will be made as requested unless the choice results in overcrowding at the school chosen.” (Report and Motion, see pp. 10a, 11a of Appellants Reply Brief.) As the lateral transfer request will be granted only to the extent there are vacancies, the difference between the capacity of each school and the number of students presently attending such schools sets the ceiling for the successful exercise of the lateral transfer provision. I f a school is enrolled up to its capacity no lateral transfer is possible. In fact, white students are also “ locked in” in the sense that they are protected in retaining their original assignment. As the lateral transfer “ right” is necessarily limited by capacity of the school applied to, it is a fundamentally different “ right” than that granted under the mandatory freedom of choice provision (operat ing during the first, seventh and tenth grades) because in those grades all students choose school assignments and when a school will be overcrowded assignment is deter mined for all students (not just those seeking a change in assignment) solely on the basis of residential proximity to the school.3 To show that this is no abstract difference (between operation of mandatory, annual free choice and lateral transfer) we call the court’s 7 Secondly, the Little Hock Plan approved by this Court was not adopted until April 23, 1965. (See Opinion, p. 3a of Appellants’ Eeply Brief.) The first year in which the present combination freedom of choice—lateral transfer plan operated was the 1966-1967 school year. Previously, the Board employed the Arkansas Pupil Assignment Lawr, an assignment system which this Court has condemned, to assign students initially on the basis of race (see pp. 3, 4, of slip opinion in Clark v. School Board)} Necessarily then students presently in the second, third, fourth, fifth and sixth grades, and the eighth and ninth grades will not have an unburdened choice of schooling if they determine to seek desegregation until they reach either the seventh and tenth grades, respectively. In the case of students in the eleventh grade they will never have an unburdened choice. These Negroes are “ locked in” to the extent there is not sufficient classroom space avail able in schools to which they desire to attend as discussed above. In addition, they are presently attending particular schools by reasons of their race for they were all assigned * 4 * attention to the fact that under the transfer plan in operation in 1965, 53 Negro transfer applications out o f 188 were rejected (Brief of appellees, p. 29). 4 There may be some question as to whether the freedom o f choice—• lateral transfer plan first went into operation during the 1965-66 school year or during the 1966-67 school year, and therefore, whether students in the second, eighth and eleventh grades have been assigned on the basis of the Arkansas Pupil Placement Act or subsequent to a mandatory choice. Appellants believe the record shows that 1966-67 was the first year of legitimate free choice but resolution of this question does not effect their challenge to the assumption on which approval of the trans fer plan rests for the fact remains that Negro students in other grades are “ locked in” and burdened because they were initially assigned on the basis o f race and can only transfer to the extent space is available. In this regard it is relevant that in Clark, supra, Slip Opinion p. 13, the eourt found the notice provisions of the Little Eoek plan defective and, therefore, no students presently attending publie school in Little Rock has really been given a constitutionally adequate free choice. 8 under the old, unconstitutional pupil assignment approach prior to approval of the present freedom of choice—lateral transfer plan by the district court in 1965. They are by reason of their initial assignment and the “overcrowding” restriction on successful transfer in the same position as the students in Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965), who were forced to use burdensome transfer provi sions to extricate themselves from initial racial assign ment.6 It is erroneous to say of these students as the Court premised, see supra, p. 5, that they are “ assigned to the school [they are] presently attending by reason of a choice originally exercised solely by the student.” This Court does not need to be told of the significance of the Little Rock School case to desegregation of the schools of Arkansas and, indeed, the nation as a whole. Because of the clear conflict between the Fifth Circuit and this Court and because the reasoning in Clark, supra, rests on factual assumptions as to the kind of choice avail able to Negro students which we believe are incorrect, plenary reconsideration of this appeal is appropriate and serves the interests of justice. 6 In recent months, lateral transfer provisions, having the effect of limiting transfer rights of Negro students by the capacity of the schools to which assignment is sought have been approved in several Arkansas school districts. See e.g., Marks v. The Nero Edinburg School District, No. FB 66 C-71 (E.D. Ark. Dec. 22); Jackson v. Marvell School District, No. N66 C-35 (E.D. Ark. Dec. 22, 1966). The public importance of the validity of lateral transfer is magnified by the fact that in these cases, as here, Negro students presently attending school will not have a choice, uninfluenced by capacity limitations, to leave their racially assigned “Negro” schools until they reach the seventh and tenth grades. 9 Wherefore, granted. appellants pray that the petition be Respectfully submitted, John W alker 1304-B Wright Avenue Little Rock, Arkansas H arold A nderson Century Building, Room 205 Ninth & Arch Streets Little Rock, Arkansas Jack Greenberg James M. Nabrit, III M ichael Meltsner Henry A ronson 10 Columbus Circle New York, New York 10019 Attorneys for Appellants 10 Certificate of Counsel This is to certify that this petition is submitted in good faith and that I believe it to be meritorious. M ichael Meltsnek Attorney for Appellants Certificate of Service This is to certify that copies of the foregoing were mailed to Herschel Friday, Esq., attorney for appellees, at his office this 13th day of January, 1967, air mail, postage prepaid. Attorney for Appellants MEILEN PRESS INC. — N. Y. 219