Kemp v. Beasley Brief for Appellees
Public Court Documents
April 29, 1965

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Brief Collection, LDF Court Filings. Kemp v. Beasley Brief for Appellees, 1965. 122df3da-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e2a25a7e-0721-47b9-9777-568eb7781755/kemp-v-beasley-brief-for-appellees. Accessed July 30, 2025.
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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.