Clark v. Little Rock Board of Education Appellants' Petition for Rehearing En Banc or By The Panel

    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



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