Kemp v. Beasley Brief for Appellees

    UNITES STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

IN THE

No. 18050 
CIVIL

D ossie W ayne K e m p , a m in o r, M a r jo r ie  Ke m p , a 
m in o r, Betty  L ou Ke m p , a m in o r, by  th e ir  m o th e r 
a n d  n e x t frien d , M rs. G. L. Ke m p ; L oretta  J oyce 
L ockhart , a m in o r, by h e r  m o th e r an d  n e x t frien d ,
M rs. E xie  L ock h a rt ; M ary L ee  D orch , a m in o r, 
a n d  J o h n n ie  L ee  D orch , a m in o r, by  th e ir  fa th e r
and n e x t friend, J udge D o r c h __________-__ T.—-— Appellants

vs.
L eroy Beasley , M rs. Ken n eth  W ie m e r , J r ., W .
M. P aul , M rs. J ack C law son , Dr. P aul  H endley  
and W. A. Stark , Board of Directors of the El 
Dorado School District Num ber 15 of El Dorado,
Arkansas,
G. A. Stu bblefield , Superintendent of the El Do­
rado School District Num ber 15 of El Dorado,
Arkansas,
T h e  E l D orado Sch o o l  D istrict  N um ber  15 of 
El Dorado, Arkansas, A corporation ___ _— ------Appellees

APPEAL FROM  ORDER OF T H E  U N ITED  STATES 
D IST R IC T  C O U R T  FO R T H E  W ESTERN D IST R IC T  

OF ARKANSAS, EL DORADO DIVISION

BRIEF FO R APPELLEES

W illia m  I. P rew itt  
423 N orth  W ashington  
E l D orado, Arkansas 
H erschel  H . Friday 
R obert V. L ight  
1100 Boyle Building  
L ittle  R ock, A rkansas 
Attorneys for Appellees

PARKtN PTQ. & STA. CO. ,  LITTLE ROCK



I N D E X

Page

Statement of the Case _________________________________  1

Statement of Points to be A rg u ed _______________________  5

Argument
I. Appellees’ desegregation plan approved by dis­

trict court is consistent with the standards 
prescribed by the Supreme court and is not 
in conflict with the Civil Rights Act of 1964---------  6

II. Appellants are not entitled to the award of
attorneys’ fees „  _______________________________  18

Conclusion _________________________________________ 20

Appendix ____________________________________________  21

Table of Cases
Bell v. School Board, 321 F.2d 494 (4 Cir., 1963) .... -....... . 18

Bradley v. School Board of City of Richmond, 345
F.2d 310 (4 Cir., 1965) ....-_________ ___-..~ 9, 15, 19

Briggs v. Elliott, 132 F. Supp. 776 (1955) ________________  6

Brown v. Board of Education of Topeka, 349 U.S.
294 (1955) _________ __________________  4,6, 10, 16, 17

Calhoun v. Latimer, 377 LI.S. 263 (1964) ______________   9

Cooper v. Aaron, 358 U.S. 1 (1958) _________________  10, 14

Dove v. Parham, 282 F.2d 256 (8 Cir., 1960) _____________  13

Downs v. Board of Education of Kansas City, 336 F.2d
988 (10 Cir., 1964) cert d e n ie d ___U .S .______________ 7

Goss v. Board of Education of Knoxville, 373 U.S.
683 (1963) _______________________________________ 9



Page

Plessy v. Ferguson, 163 U.S. 537 (1896) ------------------------ - 2

Rogers v. Paul, 345 F.2d 117 (8 Cir., 1965)____ 7, 11, 13, 14, 19

Rogers v. Paul, 232 F.Supp. 833 (1964) --------------------------- 8

Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473
(4 Cir., 1951) _____________________________________ 18

Text Books
Barron & Holtzoff, Federal Practice & Procedure, Vol.

3, §1197__________________________________________  19

Statutes
Civil Rights Act of 1964 (42 U.S.C. §2000a,

et seq) _____________________________________ 16, 17, 19



IN THE

IIJITEB STATES COURT I F  APPEALS
FOR THE EIGHTH CIRCUIT

No. 18050 
CIVIL

D ossie W ayne K e m p , a m in o r, M a r jo r ie  Ke m p , a 
m in o r, Betty  L ou Ke m p , a m in o r, by th e ir  m o th e r 
a n d  n e x t frien d , M rs. G. L. Ke m p ; L oretta  J oyce 
L ockhart , a m in o r, by h e r  m o th e r an d  n e x t frien d ,
M rs. E xie  L ockhart ; M ary Lee  D orch , a m in o r, 
and J o h n n ie  L ee  D orch , a m in o r, by th e ir  fa th e r 
and next friend, J udge D o r c h ___________________Appellants

vs.
L eroy Beasley , M rs. Ken n eth  W ie m e r , J r ., W .
M. P a u l , M rs. J ack C law son , Dr. P aul  H endley  
and W. A. Stark , Board of Directors of the El 
Dorado School District Num ber 15 of El Dorado,
Arkansas,
G. A. Stu bblefield , Superintendent of the El Do­
rado School District Num ber 15 of El Dorado,
Arkansas,
T he  E l D orado School  D istrict N um ber  15 of 
El Dorado, Arkansas, A co rpora tion______________ Appellees

APPEAL FROM  ORDER OF T H E  U N ITED  STATES 
D IST R IC T  C O U R T  FOR T H E  W ESTERN D IST R IC T  

OF ARKANSAS, EL DORADO DIVISION

BRIEF FO R APPELLEES

STA TEM EN T OF T H E  CASE 
This is another school desegregation case. After thorough 

exposition of the issues in the district court, the School Board’s 
plan for desegregation of the school system was found to con­



2

stitute “a prom pt and reasonable start toward ending compul­
sory segregation” and was approved.1 O n this appeal the ap­
pellants assert that the three-year period comprehended by 
the plan to complete the transition from a segregated to a de­
segregated system is not fast enough, that the plan is not cal­
culated to discharge the Board’s legal obligations, and that the 
fees of appellants’ counsel should be assessed against the school 
district.

By selective omission of pertinent facts in the record ap­
pellants imply in their statement of the case that the Board has 
been operating a grossly unequal educational program for 
white and Negro students that would not pass muster even 
under the test of Plessy v. Ferguson, 163 U.S. 537. T he record 
does not support the implicaton. For example, they point out 
that there are several courses offered in the high school a t­
tended by white students that are not offered in the Negro 
school. They neglect to m ention that elective courses are 
selected on the basis of demand from the students of each 
school, and that if as many as ten students request a particular 
course the administration endeavors to offer it. (T r. 106-108) .2 
Nor do they mention that courses are offered in the Negro 
school that are unavailable in the white school. (Interrogatory 
No. 33 (c) propounded by plaintiffs). Latin, one of the 
courses not offered at the Negro school at the time of the trial, 
had previously been offered there and had been dropped due 
to lack of demand for it. (Tr. 145). There is no indication 
that any of the m inor plaintiffs had made any inquiry about 
the unavailability at their school of the courses in which they 
professed an interest at trial. (T r. 81).

1 T h e  m em orandum  opinion of the District C ourt filed A pril 29, 1965 is 
unreported. It is reproduced herein as Appendix.

8 T r. refers to the transcript of hearing on January  25, i965. T r. II  refers 
to the transcript of hearing on April 12, 1965.



3

Appellants point out that enrollment in the Negro ele­
mentary schools is 97 per cent of capacity while it is only 70 
per cent of capacity at the white elementary schools. Cer­
tainly as long as enrollm ent does not exceed capacity in  either 
group of schools the comparison is not meaningful with respect 
to any issue on this appeal. In  this connection it should be 
noted, however, that the white high school is the most over­
crowded building in the system (Tr. 108), and that white 
students occupy the three oldest buildings in the District (Tr. 
101).

Appellants cite a pupil-teacher ratio of 21 in the white 
schools compared to 25 in  the Negro schools. T he difference 
is obviously minimal, bu t to the extent that instructional qual­
ity can be measured statistically it should be noted that the 
white high school has a pupil-teacher ratio of 21 and the 
Negro high school attended by all bu t one of the m inor plain­
tiffs has the more favorable ratio of 16. (Def. Ex. 3).

However, reference to a more meaningful evaluation than 
simply counting either teachers’ noses or degrees reveals that 
both the Negro and white high schools and junior high schools 
have the highest ratings that are conferred by the accrediting 
agencies (Tr. 106) and that the salary scales for Negro and 
white teachers are identical (Tr. 118) as is the expenditure 
per pupil on libraries, supplies, and things of that sort. (Tr. 
119).

In  summary, the record abundantly supports the proposi­
tion that while the schools had been operated on a segregated 
basis (there having been no demand from any of the patrons 
of the District indicating a contrary desire), the Board and ad­
m inistration conscientiously had pursued a policy of providing



4

equal facilities and educational oportunities to all of the stu­
dents.

Appellants’ assertion that the Board had taken no steps 
to comply with the Brown decision until July, 1964 simply re­
flects a misconception of the nature of the legal obligations of 
school boards growing out of Brown. This will be fully de­
veloped in the argument and it will suffice to say at this 
point that the school board has no affirmative legal obliga­
tion to mix the races; its obligation is to refrain from dis­
crim ination in the form of compulsory segregation based on 
race. There is no unlawful discrimination so long as stu­
dents choose to voluntarily attend schools, churches or social 
functions with others of their own race, and the complete 
lack of demand for any desegregation in  the El Dorado School 
District until July, 1964 reflects that this was essentially the 
situation there prior to that date. This is confirmed by para­
graph 4 of the district court’s findings of fact filed January 28, 
1965.



5

STA TEM EN T OF PO IN TS T O  BE ARGUED

I .

APPELLEES’ DESEGREGATION PLAN APPROVED BY 
D IST R IC T  C O U R T IS CO NSISTENT W IT H  T H E  
STANDARD PRESCRIBED BY T H E  SUPREME C O U R T 
AND IS N O T  IN CO N FLIC T W IT H  T H E  CIVIL R IG H TS

A CT OF 1964.

BRADLEY V. SCHOOL BOARD OF CITY OF RICHMOND, 
345 F.2d 310 (4 Cir., 1965)

Briggs v. Elliott, 132 F.Supp. 776 (1955)
Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) 
Calhoun v. Latimer, 377 U.S. 263 (1964)
Cooper v. Aaron, 358 U.S. 1 (1958)
Dove v. Parham, 282 F.2d 256 (8 Cir., 1960)
DOWNS V. BOARD OF EDUCATION OF KANSAS CITY, 

336 F.2d 988 (10 Cir., 1964) cert denied ____ U.S. ____
Goss v. Board of Education of Knoxville, 373 U.S. 683 (1963) 
ROGERS v. PAUL, 345 F.2d 117 (8 Cir., 1965)
Rogers v. Paul, 232 F.Supp. 833 (1964)
Civil Rights Act of 1964

II.

APPELLANTS ARE N O T  E N TIT LED  T O  T H E  AWARD
OF A TTORNEY S’ FEES.

Bell v. School Board, 321 F.2d 494 (4 Cir., 1963)
BRADLEY V. SCHOOL BOARD OF CITY OF RICHMOND, 

345 F.2d 310 (4 Cir., 1965)
ROGERS v. PAUL, 345 F.2d 117 (8 Cir., 1965)
Relax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4 Cir., 1951) 
Civil Rights Act of 1964
Barron & Holtzoff, Federal Practice & Procedures, Vol. 3, §1197



6

A R G U M EN T

I.

APPELLEES’ DESEGREGATION PLAN APPROVED BY 
D IST R IC T  C O U R T  IS CO N SISTEN T W IT H  T H E  
STANDARD PRESCRIBED BY T H E  SUPREM E C O U R T 
AND IS N O T  IN C O N FLIC T W IT H  T H E  CIVIL R IG H TS

A CT OF 1964.

T he recurrent theme of appellants’ argument is that the 
Board has been derelict in failure to take affirmative action 
to desegregate the school system at an earlier date and that it 
is therefore to be penalized or punished in this proceeding. 
T he penalty suggested is that the appellants be perm itted to 
usurp the authority of the Board to assess and solve the prob­
lems of desegregation in this District. T h a t this responsibil­
ity and authority is vested in the school authorities was ex­
pressly recognized in  Brown v. Board of Education of Topeka, 
349 U.S. 294. T he principle was perhaps best expressed in 
Briggs v. E lliott, 132 F. Supp. 776 when the three judge dis­
trict court said:

“Having said this, it is im portant that we point out exact­
ly what the Supreme Court has decided and what it has 
not decided in this case. It has not decided that the fed­
eral courts are to take over or regulate the public schools 
of the states.”

T hus appellants’ basic premise is faulty. T he only charge 
of which the Board could be found guilty on this record is 
that it failed to take action to affirmatively mix the races prior 
to July, 1964, and it was certainly under no legal obligation to 
do that. Most courts have considered this point settled since 
Judge John J. Parker, one of the giants of American jurispru­
dence, said in Briggs v. E lliott, supra, with respect to the 
Supreme Court’s in tent in Brown:



7

“It has not decided that the states must mix persons of dif­
ferent races in the schools or must require them to attend 
schools or must deprive them of the right of choosing the 
schools they attend. * * # if the schools which it maintains 
are open to children of all races, no violation of the Con­
stitution is involved even though the children of different 
races voluntarily attend different schools, as they attend 
different churches. # # # It (the Constiution) does not 
forbid such segregation as occurs as the result of voluntary 
action.”

T he better reasoned decisions have consistently followed this 
view, and as recently as Downs v. Board of Education of Kansas
City, 336 F.2d 988 (10 Cir., 1964), cert d e n ie d ___U .S .___ , it
was said:

“W hile there sems to be authority to support that conten­
tion,3 the better rule is that although the Fourteenth 
Amendment prohibits segregation, it does not command 
integration of the races in the public schools and Negro 
children have no consitutional right to have white chil­
dren attend school with them .”

This language was quoted by this Court with approval in 
Rogers v. Paul, 345 F.2d 117 (8 Cir., 1965).

Paragraph 4 of the district court’s findings of fact filed 
January 28, 1965 to the effect that there had been no demand 
on the present or prior members of the Board for any change 
in the method of school assignments prior to July, 1964 is 
supported by the undisputed proof. W ith total community 
acceptance of the school attendance practices, and with no 
disorder or even discord to interfere with the orderly conduct 
of the school program, the Board would have been chargeable 
with dereliction on better grounds than those advanced by ap- 
pelants if it had unilaterally undertaken a program of mixing 
the races in the schools.

8 In  Downs appellants contend that the Board had “a positive and affirm ­
ative duty to elim inate segregation in fact as well as segregation by in tention .”



8

However, it should be noted that the Board members had 
discussed the potential desegregation of the District many times 
prior to July, 1964, and as expressed by the president of the 
Board: “We recognized this problem, and simply were groping 
for an answer as to how to im plem ent the 1954 decision of the 
Supreme Court.” (Tr. II 39). T he Board moved promptly 
after demand for desegregation was made, and there is ample 
support in the record for these findings set out in the district 
court’s memorandum  opinion:

“* * * the Court finds that the present plan has been 
adopted in good faith and in recognition of the fact that 
the Board is required to proceed with diligence and in 
good faith to pu t an end to racial segregation in the 
schools w ithin a reasonable time. As a m atter of fact, 
the evidence discloses that the Board was giving serious 
consideration to the form ulation of a transitional plan 
prior to the filing of this suit.”

W hile there is no suggestion in  the record that a demand 
for desegregation did not develop earlier because of fears of 
any nature on the part of the Negro parents, appellants do 
assert that concept in their attack on the freedom of choice 
plan, claiming that such fears will lim it the exercise of choices. 
In either context the argum ent is entirley unrealistic and ig­
nores the patterns of school desegregation that have evolved 
in recent years. T he desire to attend school with members of 
another race is not universally held, either among Negroes or 
whites. In  one school district after another only a small m i­
nority of the Negro students avail themselves of the opportun­
ity to attend with white sudents although they are given a 
free and unfettered choice in the matter. I t  is such a situa­
tion that prompted Judge M iller to rem ark in Rogers v. Paul, 
232 F. Supp. 833, 838 (1964) :



9

“It seems clear that the great majority of pupils, white and 
Negro, do not desire to attend an integrated school.”

In  the case at bar, only 4 Negro students in the first grade, and 
7 in the second grade, chose to attend previously all white 
schools, although the Board’s plan approved by the district 
court gave all Negro students in those grades the right to do so.

Counsel who prosecute these cases against school boards 
are also aware of the vast num ber of Negroes who prefer vol­
untarily to attend schools with children of their own race. In  
Bradley v. School Board of City of R ichm ond, 345 F.2d 310 
(4 Cir., 1965) they attacked a freedom of choice assignment 
plan because of the substantial num ber of Negroes who, when 
given such a choice, elected to attend schools with other Ne­
groes. T he Court summarized their position at page 315:

“ # # # plaintiffs insist that there are a sufficient num ber 
of Negro parents who wish their children to attend schools 
populated entirely, or predominantly, by Negroes to re­
sult in the continuance of some schools attended only by 
Negroes. T o  that extent, they say that, under any freedom 
of choice system, the state ‘perm its’ segregation if it does 
not deprive Negro parents of a right of choice.”

This absurd contention was, of course, rejected by the Court 
of Appeals for the Fourth Circuit, sitting en banc. T o  the ex­
tent that the attack of appellants in  the case at bar is directed 
to the freedom of choice plan as an appropriate device to dis­
charge the Board’s obligation in this field, Bradley is cited as a 
well-reasoned, contemporaneous and authoritative decision sus­
taining such plans. In so doing, the court understandably draws 
support for its conclusion from the language of the Supreme 
Court in Goss v. Board of Education of Knoxville, 373 U.S. 
683, and from that C ourt’s rem and of Calhoun v. Latimer, 377 
U.S. 263.



10

Respecting the other alleged insufficiencies of the plan, 
it should be rem embered in  the second Brown decision (349 
U.S. 294) the Supreme Court recognized that im plem entation 
of its prior decision would require the “elim ination of a variety 
of obstacles in making the transition to school systems oper­
ated in  accordance with the constitutional principles” it had 
enunciated in the earlier decision. In  Cooper v. Aaron, 358 
U.S. 1 it said:

“On the other hand, a District Court, after analysis of the 
relevant factors (which, of course, excludes hostility to 
racial desegregation), m ight conclude that justification 
existed for not requiring the present nonsegregated ad­
mission of all qualified Negro children.”

I t is clear from these decisions that the district courts are 
vested with discretion to be exercised with “practical flexibil­
ity” in  passing on the sufficiency of desegregation plans in 
light of local circumstances. Obviously, there is no set pat­
tern, plan or procedure that will guarantee a successful transi­
tion w ithin a particular period of time in all localities and 
under all circumstances. Thus the determ ination of the dis­
trict courts made against a background of intimate knowledge 
of the extent to which the “variety of obstacles” exist in a par­
ticular school district should be given great weight on appeal.

T he record reflects, and the district judge was no doubt 
influenced in approving the plan by, a m ultitude of serious 
obstacles to immediate and complete desegregation in this 
District. In  response to Interrogatory No. 13 propounded by 
appellants, the Board named some of these difficulties4, and

d W hat obstacles are there, if any, which will prevent the racially non- 
discrim inatory assignment of all students to the El Dorado public  schools for 
the  Septem ber 1965 school term  and how?
Such obstacles are innum erable. In the judgm ent of the Board the personal p re ­
ference of the vast m ajority of the  students of the El Dorado School District, 
and of their parents, to attend schools where their own race is in the m ajority,



11

listed the disparity between the achievement levels of Negro 
and white students at the same grade level as im portant among 
them.

T he Superintendent testified respecting this achievement 
differential. T he National M erit Scholarship Qualifying Test, 
a nationally recognized achievement test, is administered to 
eleventh grade students in both high schools each year. (Tr. 
110). He testified that the most recently administered tests 
reflected a composite score for students in the El Dorado High 
School to fall in the 93rd percentile, and a like score for the 
students in W ashington High School to fall in the 44th per­
centile. (T r. 115). T he difficulties incident to sudden whole­
sale mixing of students with such a great disparity of achieve­
m ent must be as obvious to the layman as it was to the Super­
intendent who testified that it would be wrong from an edu­
cational standpoint. (Tr. 127-29). T here can be no doubt as 
to his competence to express such an opinion in  view of his 
service as Superintendent in this District for 21 years. See 
Rogers v. Paul, supra.

T he president of the Board testified (Tr. II 36) :
“One of the real problems probably is the lack of achieve­
m ent on the part of the m inority race; the record is com­
plete—I am not in position to evaluate the cause of the 
lack of achievement. It m ight be social, it m ight be eco­
nomic, bu t the record indicates that the achievement of 
the two races is not equal, and that is one of the truly dif­
ficult problems we must solve; and it seems to me by giv­
ing these youngsters an opportunity to start at the lower

and the disparity between the achievement levels of negro and white students 
at the same grade level, are im portant obstacles in this respect. Also, the ad­
m inistrative burden involved in changing the m anner in which students have 
been assigned for many years imposes a lim itation upon the extent to which 
changes can be made w ithin a given period w ithout disruption  of the  educa­
tional program . Disciplinary problem s peculiar to the negro students, difference 
in socio-economic levels of the white and negro students, and lack of support 
from m any negro parents for the school program  also furnish obstacles to hasty 
desegregation.



12

grade they will be better prepared to compete when they 
get into the upper grades.”

O n these facts, the conclusion of the witness is inescapable. 
It would be a gross injustice to the children of both races to 
start the desegregation process anywhere except at the lower 
grades.5

» T h e  district court recognized the significance of the achievement differ­
ential, and the resulting difficulties as evidenced by this exchange with counsel 
for appellants (T r. II  48-50):

“T H E  C OU RT: Mr. Howard, let me see if I  can shorten this pa rt of it a 
little  for you. Of course, the C ourt has no access to any tests, and has no idea 
as to w hat the scores m ight be. I ’ve been sitting in this Division, in this Court 
since late 1959 or early 1960. I see - I'm  speaking now of negro citizens - I see 
some very fine negro citizens here on our juries, people obviously above aver­
age in  intelligence and achievement. I ’m  talking about coming from  w ithin the 
City of El Dorado and its environments, the  County. I see also standing at the 
bar in this C ourt some negro citizens, who are almost unbelieveably ignorant. 
Now, you’d  have a very difficult time, in view of w hat I ’ve seen here, in  con­
vincing me th a t there is no t a  wide disparity, a very wide disparity between 
your better educated, professional or semi-professional groups here among the 
negro citizens and these people I ’m talking about who are unbelievably ignor­
ant. I just know th a t common sense teaches th a t children th a t come from these 
homes, th a t latter class of people, will be found to be low in achievement in 
their early years because of the background. On the  o ther hand, common sense 
would teach that the children in  the homes of the o ther folks of whom Iv e  
spoken ought to achieve in  any place they were. Now, you can testify all day 
about this. I don’t want to be a rb itrary  about it, b u t I  think I ’ve seen enough 
to know of th a t wide disparity th a t exists here among the negro people. I ’m 
no t talking about between the negro and white races, but I think it is clear 
from what comes, the parade th a t passes in this very Courtroom, th a t the chil­
dren of the one group of which I ’ve spoken w ill achieve at a satisfactory level 
in any situation; the children th a t come out of the o ther group of people could 
no t be expected to.

Isn’t th a t about w hat the situation is?
MR. HOW ARD: If Your H onor please, let me say this: Here is our point. 

T h e  fact that there may be generally speaking a low achievement accomplish­
m ent, say with the negro children. T h a t would not ru le ou t some negro who 
is eligible to attend, and, of course, the p lan  of the defendants here is simply 
one grade, I mean starting a t the lower grade it would rub  out even one of the 
plaintiffs here who may have scored high on a test.

T H E  COURT: T h a t no doubt is true, bu t what the Court thought you
were talking about a t this time, and the witness was talking about, was the 
m atter of the adm inistrative problem s in  m aking the change. T h a t is he was 
talking about, and I thought you were talking about, adm inistrative problems 
in the desegregation at this point, ra ther than  whether or not it is hard  on one 
group or h ard  on another, and the C ourt can very well see th a t there would be, 
as the witness has testified, problems, particularly  w ith this subcultural  ̂group 
of whom I ’ve spoken, hard  to transfer them  any place. I ’m  not saying it isn’t 
harder on the o ther negro children, to go to school w ith them  too, I  suspect 
it is, bu t I can see th a t it would present adm inistrative problems, and num er­
ous ones, if you tried to undo the whole m ishmash in one fell-stroke.”



13

T he president of the Board also testified that differences 
in  the degree of disciplinary problems encountered among 
white and Negro students, and the poorer attendance practices 
of the Negro students, would present administrative problems 
in the desegregation program. (Tr. II 36-7).

As an additional significant factor m itigating against de­
segregation of the high school grades at this time it should be 
rem embered that the high school attended by white students 
is presently the most over-crowded building in the system, 
while enrollm ent at W ashington High School is less than the 
building’s capacity. (Def. Ex. 3).

It is submitted that the plan adopted by the Board is a 
much more certain vehicle to insure that those students who 
desire desegregation will obtain it than previous procedures 
and plans employed by school districts in  Arkansas with the 
approval of this Court involving the Pupil Assignment Law 
and geographic zoning. U nder the plan here, the Board does 
not retain the right to select among qualified applicants as 
was the case under the Pupil Assignment Law in Dove v. Par­
ham, 282 F.2d 256 (8 Cir., 1960). Here, the pupil whose grade 
is desegregated has an absolute right to attend the school of 
his choice, subject only to the lim itation of over-crowding the 
facility. In the event of overcrowding at the school of his first 
choice, he is perm itted to make a second choice.

Nor does the plan here present the potential re-segregation 
inherent in  geographic zoning plans such as approved in Rogers 
v. Paul, supra, resulting in de facto segregation.

Appellants assert that due to their present grade levels, 
only one of the m inor appellants will have an opportunity to 
attend a desegregated school under the plan. As the district



14

court observes in its opinion, this is not an unusual concomitant 
of any transitional plan. T he basic concept of a transitional 
plan is the extension of desegregation to a part of the group 
or system while temporarily denying it to the whole, in  the 
interest of achieving an orderly transition. T his result was 
expressly recognized and approved in  Cooper v. Aaron, 358 
U.S. 1.

Objection is also made that the plan affords a choice of 
schools to the student only when he enters the school system 
for the first time, and again when he is promoted to the next 
higher school, i.e. to junior high school and then to high 
school. We are confident that this Court will have no more 
difficulty than did the district court in concluding that sound 
educational and administrative principles require that once a 
child has enrolled in a school and become acclimated to its 
rules, customs, facilities, faculty and to his fellow students, he 
should not be transferred to another school except in over­
riding circumstances such as moving his residence nearer an­
other school, (provision for this contingency is made in  the 
Board’s plan) N either should any school district be saddled 
with the overwhelming burden on its planing and adminis­
trative functions that would result from wholesale transfers 
available to every student in the district as a m atter of right 
at least once a year as advocated by appellants.

Appellants further objected to the plan because it makes 
no provision for desegregation of the teachers, l i r e  district 
court, noting that the problem was addressed to its discretion 
and that were were no teachers who were parties to the suit, 
declined to withhold approval of the plan on this ground. This 
action was clearly w ithin its discretion recognized by this Court 
in Rogers v. Paul, supra. In  further support of the district 
court’s action we note that the question of teacher assignment



15

was only incidentally touched upon in  the hearings in the dis­
trict court and the undeveloped record provides no more basis 
for judicial action here than it did in  Bradley v. School Board 
of City of Richm ond, supra. In affirming the district court’s 
discretionary refusal to enjoin consideration of race in the 
assignment of teachers, that court observed:

“W hen all direct discrimination in the assignment of pu­
pils has been eliminated, assignment of teachers may be 
expected to follow the racial patterns established in  the 
schools.”

Objections are made to the plan because of its failure to 
treat the questions of budgets, contracts, school construction 
sites or plans, extra-curricular activities, and the like. Of 
course, it would be impossible to draw a plan that would cover 
every conceivable potential problem in this field. T he as­
surance that the constitutional rights of all parties will be pro­
tected in such matters lies in the action of the district court in 
retaining jurisdiction of the cause for the purpose of entertain­
ing further proceedings if necessary in the Decree of April 29, 
1965.

Appellants also argue that the courts should adopt the 
guidelines and policies published by the Office of Education 
of the Departm ent of Health, Education and Welfare. Cited 
in support of this suggestion are two recent decisions of the 
Court of Appeals for the Fifth Circuit which are not yet re­
ported and are unavailable to counsel at the time of prepara­
tion of this brief. We will comment on those decisions more 
fully at the time of oral argument, however it should be noted 
now that it is quite clear from those portions quoted by ap­
pellants that the Court did not regard such guidelines or poli­
cies to be in any way binding upon it. Certainly such adm in­



16

istrative guidelines are not in any way binding upon any court 
in a case like this.

T he Civil Rights Act of 1964 (Act of July 2, 1964, Pub. 
L. 88-352, 42 U.S.C. § 2000a.) did not purport to alter the ob­
ligations of school boards, or the rights of students, with re­
spect to the principles of Brown and the subsequent cases. 
T itle  IV of the Act entitled Desegregation of Public Education 
authorizes the Attorney General to institute suits in  the district 
courts under certain circumstances, bu t this is simply to en­
force rights already spelled out and defined by Brown and its 
progeny. T he other provisions of T itle  IV authorize a survey, 
technical assistance and grants, relating to desegregation and 
discrimination in public education, bu t do not purport to af­
fect the substantive law as to the obligation of school authori­
ties.

T itle  VI of the Act (under which the guidelines and poli­
cies heretofore referred to were published) is entitled N on­
discrimination in  Federally Assisted Programs and provides:

“Sec. 601. No person in the U nited States shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefit of, or be subjected 
to discrimination under any program, or activity receiving 
Federal financial assistance.” (emphasis supplied)

T he rem ainder of the T itle  deals with the methods of w ith­
drawing Federal funds in the event of such discrimination. 
T hus it is quite clear that the function of the Office of Edu­
cation in the Departm ent of Health, Education and W elfare 
involving the sufficiency of desegregation plans of the public 
schools relates only to the availability of Federal funds to the 
various school districts and other educational facilities.



17

T he guidelines or policies published by that Office are 
directed solely to that problem —they don’t purport to usurp 
the authority of the courts to determine the constitutional 
rights of the interested parties in disputes arising out of the 
interpretation of the Constitution in Brown. In  that decision 
the Supreme Court made it clear that this was a question for 
the courts. T he Congress did not undertake to change that 
in the Civil Rights Act of 1964. It is still a question for the 
courts.

Appellants recognize this at page 17 of their brief where 
they say:

“However, with the enactment of the Civil Rights Act 
of 1964, the necessity that all school boards comply with 

.the mandate and spirit of the Brown decision became so 
clear * # (emphasis supplied).

T hus it is the constitutional principle of Brown, not any new 
duty imposed by the Act, with which the school boards must 
comply.

W hat may be sufficient as a desegregation plan to satisfy 
the courts of good faith im plem entation of Broivn in any par­
ticular set of circumstances may not satisfy an administrative 
officer in the Office of Education as meeting his Office’s re­
quirem ents to qualify for Federal funds. Conversely, a plan 
that might qualify a school district for funds in the judgment 
of such an adm inistrator may fall far short of meeting consti­
tutional standards when tested in the traditional m anner for 
the resolution of such issues in the courts.

T he discussion of this point is not expanded because of 
confidence that this Court will not abdicate its judicial re­
sponsibility in this field concerned with constitutional rights



18

and the vital public interest to administrative employees in 
the Departm ent of Health, Education and Welfare.

II.

APPELLANTS ARE N O T  E N T IT L E D  T O  T H E  AWARD 
OF A TTO R N EY S’ FEES.

At the first hearing in the district court appellants moved 
orally for the award of attorneys’ fees, and after calling for 
briefs on the question the district court entered an O rder on 
February 26, denying the M otion because “the Court is not 
persuaded that the conduct of the defendants up to this time 
has been such as to justify the award of a fee.”

In support of their application for attorneys’ fees appel­
lants cite only two cases, both distinguishable here. In  Bell v. 
School Board, 321 F.2d 494 (4 Cir., 1963) attorneys’ fees were 
awarded to punish conduct and tactics of defendants that the 
court regarded as “discreditable.” Exam ination of the conduct 
ascribed to the school officials there which, if believed, indi­
cates an active program of resistance directed at defeating the 
efforts of Negroes seeking admission to previously all white 
schools, reveals that there is no parallel to the case at bar.

In  Rolax v. Atlantic Coast L ine R. Co., 186 F.2d 473 (4 
Cir., 1951) the award of attorneys’ fees was in favor of Union 
members against a labor organization that was their bargain­
ing agent required to protect their rights, and while in that 
capacity entered into a collective bargaining agreement which, 
in  effect, deprived them of their seniority rights. T he U nion’s 
conduct was characterized by the court as “* * * discriminatory 
and oppressive.” But, even while holding that the district 
court had not abused its discretion in allowing attorneys’ fees, 
Judge Parker noted: “Ordinarily, of course, attorneys’ fees ex­



19

cept as fixed by statute, should not be taxed as a part of the 
costs recovered by the prevailing party; * * *".

Appellants note that the Civil Rights Act of 1964 provides 
for the award of attorneys’ fees in suits brought under its public 
accommodations provisions. It is more significant for the pu r­
poses of this case to note that it contains no such provisions for 
suits brought against public school districts.

There can be no quarrel with the general proposition 
that in this country it has been thought desirable to require 
the litigant for whom legal services are rendered to assume 
the burden of paying for those services and that ordinarily at­
torneys’ fees are not taxable as costs. See Barron & Holtzoff, 
Federal Practice & Procedure, Vol. 3, §1197, p. 65 et seq. Cer­
tainly this court is committed to this view as evidenced by 
Rogers v. Paul, supra, where the district court’s exercise of dis­
cretion in  refusing to award attorneys’ fees in  a school desegre­
gation case was sustained.

T he recent observations of the Court of Appeals for the 
Fourth Circuit, sitting en banc, in Bradley v. School Board of 
City of R ichm ond, supra, are an excellent summary of current 
judicial views on the point:

“ It is only in the extraordinary case that such an award of 
attorneys’ fees is reqtiisite. In school cases throughout the 
country, plaintiffs have been obtaining very substantial 
relief, bu t the only case in which an appellate court has 
directed an award of attorneys’ fees is the Bell case in  this 
Circuit. Such an award is not commanded by the fact 
that substantial relief is obtained. Attorneys’ fees are ap­
propriate only when it is found that the bringing of the 
action should have been unnecessary and was compelled by 
the school board’s unreasonable, obdurate obstinacy. 
W hether or not the board’s prior conduct was so unreason­
able in that sense was initially for the District Judge to



20

determine. Undoubtedly he has large discretion in that 
area, which an appellate court ought to overturn only in 
the face of compelling circumstances.”

T he discretion of the district court was clearly not abused 
in  the case at bar.

CONCLUSION

Appellees submit that the Decree of district court of April 
29, 1965 approving appellees’ plan of desegregation, and its 
denial of appellants’ application for an award of attorneys’ fees, 
should be affirmed in all respects.

Respectfully submitted,

W il l ia m  I. P r ew itt  
423 N orth  W ashington  
E l D orado, Arkansas

H erschel  H . F riday 
R obert V. L ight  
1100 Boyle Building  
L ittle  R ock , Arkansas

Attorneys for Appellees



21

A PPEND IX

IN T H E  U N IT ED  STATES D IST R IC T  C O U R T  
W ESTERN D IST R IC T  OF ARKANSAS 

EL DORADO DIVISION

DOSSIE WAYNE KEMP, A Minor, M ARJO RIE^ 
KEMP, A Minor, BETTY LOU KEMP, A Minor, 
by their m other and next friend, Mrs. G. L. KEMP; 
L O R E T T A  JOYCE LO CK H A RT, A Minor, by 
her mother and next friend, MRS. EXIE LOCK­
H A R T; MARY LEE DORCH, A M inor, and 
JO H N N IE  LEE DORCH, A M inor, by their father 
and next friend, JUDGE D O R C H ______Plaintiffs

v.

LEE ROY BEASLEY, MRS. K EN N ETH  W IEM- 
ER, JR ., W. M. PAUL, MRS. JACK CLAWSON,
DR. PAUL HENLEY and W. A. STARK, Board of 
Directors of the El Dorado School District Num ber 
15 of El Dorado, Arkansas
G. A. STUBBLEFIELD, Superintendent of the El 
Dorado School District Num ber 15 of El Dorado,
Arkansas
T H E  EL DORADO SCHOOL D IST R IC T  N U M ­
BER 15 of EL DORADO, ARKANSAS, A Cor­
poration ------------ ----------------------------  Defendants

M EM ORANDUM  O PIN IO N

This desegregation case involves the public schools of El 
Dorado, Arkansas.1 T he cause is now before the Court on 
the School Board’s amended, substituted, and revised transi­
tional plan of desegregation and the objections of plaintiffs 
thereto. T he case has been tried to the Court, and this

1 Defendants are Independent School District No. 15, El Dorado, Arkansas, 
the members of the Board of Directors of said District, and the Superintendent 
of Schools.

CIVIL 
> NO. 
E.D.I048



22

mem orandum  incorporates the C ourt’s findings of fact and 
conclusions.

T he  El Dorado Schools have always been operated on a 
racially segregated basis with separate schools being provided 
for white students and Negro students. T he schools for white 
students have been staffed exclusively by white principals and 
teachers, and the faculties of the Negro have been composed 
entirely of Negroes. T he administrative staff of the system 
has been made up entirely of white persons, and the school 
bus system of the District has been operated on a racially segre­
gated basis.

In  July 1964 parents of certain of the individual plaintiffs 
requested that their children be assigned to schools for white 
students for the current school year. T he Board after giving 
those requests careful consideration denied them, and this suit 
was commenced. T he object of the suit is to bring about 
compete desegregation throughout the entire school system, 
including desegregation of the faculty and administrative 
staff and the bus service.

Following a hearing held at El Dorado on January 25, of 
the current year, the Court entered a decree on January 28 
declaring that the existing system of racially segregated schools 
being m aintained by the District is unconstitutional in the 
light of the holding of the Supreme Court in Brown v. Board 
of Education, 349 U.S. 294, and enjoining the defendants 
“from m aintaining and operating racially segregated schools 
in the defendant District.” T he defendants were also enjoined 
mandatory “to eliminate with all deliberate speed and within 
a reasonable time the existing racial segregation of students 
in  the public schools.” However, the decree provided that if 
the defendants should desire to submit a transitional plan for



23

the elim ination of segregation, a proposed plan might be sub­
m itted not later than March 1, 1965.

W ithin due time the Board filed its original plan, and the 
plaintiffs objected to it on a num ber of grounds. T he m atter 
was set down for hearing on April 12. At the opening of 
Court on that day the Board tendered an amended and sub­
stituted plan which was more liberal in certain respects than 
the original plan, and which met, at least to some extent, 
some of the objections of plaintiffs to that plan.2 T he hearing 
proceeded as scheduled with plaintiffs being given leave to 
file formal objections to the new plan w ithin a few days after 
the conclusion of the hearing, and they did so.

T he plan presented to the Court on April 12, while per­
haps ambiguous in certain respects, provided in substance for 
the elim ination of segregation over a period of six years starting 
with grades 1 and 2 at the commencement of the 1965-66 term. 
W hen the plaintiffs renewed their objections, the Board re­
vised the plan again, and now proposes to eliminate segrega­
tion of the student body in a m anner to be described over a 
three year transitional period. It is this particular revised 
plan which is now before the Court.

T he plan provides that public notice of its provisions is 
to be given by publication in a newspaper once a week for 
two consecutive weeks with the first publication to be at least 
14 days prior to pre-school registration of first grade students 
and 14 days prior to the distribution of school preference 
forms for assignments in the first grade for the approaching 
school year. O ther portions of the plan provide that the pre­

2 For example, the amended and substituted plan  provides for the elim ina­
tion of segregation in connection with the school buses commencing with the 
1965-66 session which begins late in August or early in September of this year. 
T h is particu lar m atter will not be m entioned further.



24

school registration for children who will enter school at the 
first grade level this fall will be held during May, and that 
the assignment preference forms for students who are now in 
the first grade are to be mailed out during that month.

T he  Court thinks it proper that the pre-school registration 
be held and the assignment preference forms be mailed out in 
May, and also thinks that the notice provisions of the plan 
are adequate. However, that schedule creates a time problem 
of which all interested parties are aware, and renders it neces­
sary for the Court to pass upon the plan expeditiously.

T he plan does not contemplate that the Board will on its 
motion assign any Negro children to presently all-white schools 
or any white children to presently all-Negro schools; nor does 
it set up any fixed attendance areas based on residence, an ac­
tion which would or might automatically integrate certain 
schools. Rather, the Board plans to eliminate segregation by 
giving students of both races at varying times and at varying 
grade levels an opportunity to express, or to have expressed for 
them, a choice of the schools which they desire to attend. 
Proper expressions of choice will be honored as a m atter of 
course unless to honor all of such expressions would result in 
the overcrowding of particular schools. In  the event a prob­
lem of overcrowding a particular school arises, it will be solved 
by non-discriminatory means with preference to be given to the 
students living closest to the school. Those students whose 
choices are rejected because of overcrowding will be given a 
second choice which will be honored as a m atter of course 
unless to do so would result in overcrowding of the school of 
second choice, in  which case the problem  will be solved in a 
racially non-discriminatory m anner with preference being 
given to the applicants living closest to the school.



25

W ith respect to the 1965-66 school year choices will be 
given to all students who are entering the schools of the Dis­
trict for the first time at the first grade level and to those 
who are now in the first grade and who will be promoted to 
the second grade.

Before the end of the 1965-66 school year students who 
are enrolled for that year in  Grades 3, 4, and 5 and wTho will 
be promoted, respectively, to Grades 4, 5, and 6, will be given 
a choice with respect to the 1966-67 school year. I t  will be 
observed that students who will be promoted to Grade 3 for 
the 1966-67 session will already have had a choice.

Before the end of the 1966-67 session students enrolled in 
Grades 6, 7, 8, 9, 10, and 11, and who are being promoted, re­
spectively, to the 7th, 8th, 9th, 10th, 11th, and 12th grades for 
the 1967-68 session, will be given a choice for that session.

W ith respect to the 1968-69 session and subsequent ses­
sions every child entering school for the first time at the first 
grade level, and every child being promoted from the 6th to 
the 7th grade, and every child being promoted from the 9th 
to the 10th grade, will be given a preferential choice.

Under the plan students who are now enrolled in the 10th, 
11th, and 12th grades will not be given a preferential choice, 
bu t all other students now enrolled in the District or who 
hereafter enter school at the first grade level will at some 
stage have a choice of spending at least one year of their pub­
lic school education in an integrated school. Desegregation of 
the elementary grades will be completed in  the 1966-67 session, 
and the jun io r and senior high school grades will be de­
segregated in the 1967-68 session.



26

Students who at the end of the 1965-66 session are en­
rolled in  the 1st, 2nd, 7th, 8th, 10th, and 11 grades, and stu­
dents enrolled in the 6th, 9th, and 12th grades and who are 
not promoted or graduated, will be assigned initially for the 
1966-67 session to the same school which they attended 
during the 1965-66 session. Each student enrolled during the 
1965-66 session in  the 6th grade and who is promoted to the 
7th grade will be assigned initially for the 1966-67 session to 
the jun ior high school in the District to which the students 
graduating from the elementary school involved have cus­
tomarily attended in  years past. Likewise, students being pro­
moted from the 9th to the 10th grade at the end of the 1965-66 
session will be assigned initially to the high school which stu­
dents being promoted from the junior high school in question 
have customarily attended in past years. This simply means 
that the jun ior and senior high grades will not be desegre­
gated by means of preferential choices until the commence­
m ent of the 1967-68 session.

A student who does not exercise a choice when his grade 
level is reached in  the course of the transition will not have 
another choice until he is promoted from the sixth to the 
seventh grade or from the n inth  to the tenth grade as the case 
may be. This is in line with the Board’s announced policy 
against “lateral tranfers” from one school to another at the 
same school level in circumstances other than exceptional, al­
though the Board reserves the right in its discretion and for 
valid cause to transfer a student from one school to another at 
any grade or school level.3

8 T o  be specifiic a “lateral transfer” is a transfer from one elementary 
school to another, or from one junior high school to another, o r from one senior 
high school to another. A “prom otional transfer” is one resulting from  prom o­
tion from an elem entary school to a ju n io r high school, or from a jun ior high 
school to a senior high school.



27

It will thus be seen that when the transitional period has 
been completed at the end of the 1967-68 session a student who 
is entering school for the first time as a first grader will have 
three opportunities to express a preference; a student who at 
that time is in the elementary grades will have two opportuni­
ties; and a student who is in  jun ior high school will have one 
opportunity.

A student who transfers into the District from elsewhere 
during the transition period will have a choice if at the time 
of his transfer his grade has been desegregated under the plan.

From the record before it, including the evidence pro­
duced at the hearing held in January and the testimony of Mr. 
Lee Roy Beasley, President of the Board, taken in the course 
of the April 12 hearing, the Court finds that the present plan 
has been adopted in  good faith and in recognition of the fact 
that the Board is required to proced with diligence and in 
good faith to put an end to racial segregation in  the schools 
w ithin a reasonable time. As a m atter of fact, the evidence 
discloses that the Board was giving serious consideration to the 
form ulation of a transitional plan prior to the filing of this 
suit.

T he Court further finds that it is appropriate for the 
District to eliminate compulsory and discriminatory segrega­
tion in  the schools by means of a transitional plan designed to 
and capable of bringing such segregation to an end w ithin a 
reasonable time and within what has been term ed the “tol­
erance” of the Brown decision.

And the Court is persuaded that the present plan of the 
Board constitutes a prom pt and reasonabe start toward ending 
compulsory segregation and that it should be approved, sub­
ject, of course, to the power of the Court to enter such further



28

orders, if any, with respect to the desegregation of the District’s 
schools as future developments may justify or necessitate.

In  appraising the plan it should be recognized at the out­
set that although in  theory preferential choices will be extended 
to all students from time to time with regard to race, neverthe­
less from a practical standpoint the really significant expres­
sions of choice, at least for a time, will be those made by or on 
behalf of Negro students who desire, or whose parents desire 
for them, an integrated education.

It has been held frequently that the Brown decision does 
not require affirmative integration of the schools; it simply 
prohibits compulsory racial segregation. And the constitu­
tional right of a student to a desegregated education is, in the 
C ourt’s estimation, satisfied if he is not excluded from the 
school of his choice on account of his race.

It is the prim ary function of the local school officials and 
not that of the federal courts to assign students to particular 
schools, and local school boards are free to adopt such methods 
of assignment as they deem best, provided that the methods 
chosen are not such as to create, foster, or perpetuate compul­
sory racial segregation. A school board is not required by the 
Fourteenth Amendment to adopt any particular m ethod of as­
signment, and the Court is of the opinion, and now holds, that 
it is permissible for a board to eliminate segregation either at 
once or in a proper case over a period of transition by employ­
ing a preferential choice m ethod of assignment, as the El 
Dorado Board proposes to do, whereby Negro students who 
desire to do so will be allowed to enter formerly all-white 
schools.

T he Court is also of the opinion that a Negro student 
need not be given an opportunity to exercise a choice each and



29

every year of his public school education. From a purely edu­
cational and administrative standpoint there is a good deal 
to be said for a policy against lateral transfers, provided that 
such policy is applied nondiscriminatorily. If any student is 
given a free choice of schools when he first goes into the system, 
and again when he moves from the elementary to the junior 
high grades, and again when he moves on to the senior high 
grades, no constitutional problem would appear to be in ­
volved. Those choices the defendant District proposes to give, 
and the plan makes clear that the choices are to be those of 
the students and their parents, and that the school authorities 
are not to attem pt to influence the exercises of choice. Nor is 
any student to be rewarded or penalized because of the choice 
made.

It is true, of course, that an expression of choice involves 
the exercise of initiative by a Negro student or his parents, bu t 
the initiative called for is minimal, and to require its exercise 
is not unreasonable in the eyes of the Court. As stated, subject 
to the qualification relative to overcrowding, expressions of 
choice will be honored as a m atter of course. N either the stu­
dents nor their parents will be required to go through burden­
some administrative procedures, nor will the assignment of 
students be governed by the application of detailed and techni­
cal “assignment criteria.”

T he three year period of transition contemplated by the 
Board is not unreasonably long. W hen the plan goes into 
effect this fall, it is capable of bringing into the present all 
white system substantial num ber of Negro students at the first 
and second grade levels, and as the plan proceeds, it is capable 
of introducing into that system substantial numbers of Ne­
groes at the higher grade levels. If during or after the transi­
tional period so many Negro students apply for admission to



30

the present all white system as to create conditions of over­
crowding, then, as stated, the problems are to be solved in a 
m anner which is racially nondiscriminatory.

As has been pointed out, the plan does not contemplate 
that all of the Negro students who are now enrolled in  the 
system will be given a preferential choice to complete all or 
any part of their education under integrated conditions. Stu­
dents who are now in high school, including some of the 
plantiffs, will be required to finish their public school work 
in  segregated facilities unless they can persuade the Board 
that their circumstances are so exceptional as to justify lateral 
transfers notwithstanding the general policy of the Board 
against such transfers. But that situation is not an unusual 
comcomitant of any transitional plan which is to operate pro­
gressively through the lower to the higher grades and over a 
period of years. T he Court does not say that the denial to 
certain students in the El Dorado District of any opportunity 
to express a preferential choice of school assignment is not dis­
criminatory. But, in the circumstances the Court finds the dis­
crim ination involved is tolerable.

One objection of plaintiffs to the plan is that it makes 
no provision for the desegregation of the administrative staff 
and faculty. Assuming without deciding that a Negro student, 
as a student, is entitled to such desegregation and has standing 
to seek it in a suit of this kind to which no member of the 
faculty is a party, the Court, in the exercise of its discretion, is 
not willing to withhold approval of the plan because of its 
failure to deal with the staff and faculty.

T he Court takes judicial notice and the Board is presum­
ably cognizant of the relevant provisions of the Civil Rights Act 
of 1964. T he Court is not blind to matters of general knowledge



31

in Arkansas, and knows that many school districts all over the 
State, doubtless including the El Dorado District, are endeavor­
ing to bring themselves w ithin the Act so that the flow of fed­
eral funds to them in aid of education will not be cut off. T he 
Court thinks it quite probable that if and when the Board 
brings itself into compliance with the Act and the regulations 
promulgated thereunder, the problem of staff and faculty de­
segregation will take care of itself. In  any event, the Court is 
not inclined to order the Board at this time to take any steps 
in that area.

T he Court has not undertaken in  this opinion to state or to 
discuss in detail all of the objections of the plaintiffs to the 
plan. Suffice it to say that the Court has considered all of 
such objections in coming to its conclusion that the plan as 
finally revised should be approved.

An appropriate decree will be entered.

Dated this 29th day of April, 1965.

J. S m i t h  H e n l e y  

United States District Judge.