Cooper v. Aaron Brief for Respondents

    IN  TH E

Bnptrnt (Slantt at tty Imteft §>tatPB
A ugust Special T eem 1958 

Misc. No. 1

W illiam G-. Cooper, et al., Members of the Board of Direc­
tors of the Little Rock, Arkansas Independent School 
District, and V iegil T. Blossom, Superintendent of 
Schools,

Petitioners,
-v -

J ohn A aron, et al.,
Respondents.

BRIEF FOR RESPONDENTS

T hubgood Maeshall 
10 Columbus Circle 
New York 19, N. Y.

W iley A. B ranton
119 East Barraque Street 
Pine Bluff, Arkansas

Attorneys for Petitioners
Of Counsel

E lwood H. Chisolm 
W illiam Coleman, J e.
Iema R obbins F eder 
J ack Greenberg 
L ouis H. P ollak 
W illiam Tayloe



I N D E X
PAGE

Preliminary Statement ....................................................  1

Questions Presented ........................................................  2

Summary of Argument....................................................  3

Argument ......     4

I—Overt public resistance including mob protests 
is not sufficient cause to nullify federal court 
orders requiring gradual desegregation of pub­
lic schools ................................................................ 5

II—Any suspension of petitioners’ original plan of 
gradual desegregation would subvert rather than 
preserve the fundamental objective of public 
education ................................................................ 8

Conclusion ................................................................................ 12

T a b l e  of  C a s e s :

Allen v. County School Board of Prince Edward 
County, 249 F. 2d 462 (4th Cir., 1957) ...................... 7

Beatty v. Citibanks, L. R. 9 Q. B. Div. 314, 51 L. J.
Mag. Cas. N. S., 117, 47 L. T. N. S. 194, 31 Week 
Eep. 275, 15 Cox, C. C. 138, 46 J. P. 789 ..............  7

Brown v. Board of Education, 347 U. S. 483 (1954),
349 U. S. 294 (1955) .............................................4, 5, 7, 8

Buchanan v. Warley, 245 U. S. 60 ..........................   5

City of Birmingham v. Monk, 185 F. 2d 859 (5th Cir. 
1950), cert, denied 341 U. S. 940 .............................  6



11
PAGE

Ex parte Endo, 323 U. S. 283 ......................................... 6

Faubus v. United States, 254 F. 2d 797 (8th Cir., 1958) 11

Hoxie School Dist. No. 46 of Lawrence Co., Ark. v. 
Brewer, 137 F. Snpp. 364 (E. D. Ark. 1956), aff’d 
Brewer v. Hoxie School Dist. No. 46, 238 F. 2d 91 
(8th Cir., 1956) ............................................................2,11

Jackson v. Rawdon, 235 F. 2d 93 (5th Cir., 1956), cert, 
denied 352 U. S. 925 ....................................................  7

Kasper v. Brittain, 245 F. 2d 92 (6th Cir., 1957) .......2,11

Mitchell v. Pollack, 1 Race Rel. L. Rep. 1038 (D. C.
Ky., 1956) ......................     7

Moore v. Dempsey, 261 U. S. 8 6 .................. ...................  6

Orleans Parish School Board v. Bush, 242 F. 2d 156 
(5th Cir., 1957), cert, denied 354 U. S. 921..............  7

Pugsley y. Sellmeyer, 158 Ark. 247, 250 S. W. 538 
(1923) ............................................................................. 10

School Board of Charlottesville, Va. v. Allen, 240 F. 2d
59 (4th Cir., 1956), cert, denied 353 U. S. 910........... 7

Strutwear Knitting Co. v. Olson, 13 F. Supp. 384 
(D. Minn. 1936) ............................................................ 6

Thomason v. Cooper, 254 F. 2d 808 (8th Cir., 1958) .. 11

West Virginia State Board of Education v. Barnette,
319 U. S. 624 .................    9

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 6



I l l

Other A uthorities:
page

Cremin, Lawrence A. and Borrowman, Merle L., Pub­
lic Schools In Our Democracy 88-102, 204-216 
(1956) ...........................................................   10

Grieder, Calvin and Eosenstengel, William E., Public 
School Administration 89-98 (1954) ............................ 10

Griffiths, Daniel E., Human Relations in School Ad­
ministration 14-20, 152-161, 240, 307-309 (1956) .... 10

Hobbes, De Cive I, 12 (1651) ..................................... 6

Koopman, G. Robert; Miel, Alice; and Misner, Paul 
J., Democracy in School Administration 225-276 
(1943) ..........................................................   10

Newlon, Jessie H., Education for Democracy in Our 
Time 168-169 (1939) ..................................................  10

Richards, Edward A., Ed., Midcentury White House 
Conference on Children and Youth, Washington,
D. C. 1950, passim (1951) ............................................. 10



IN  TH E

i ’nprrnti' QInitrt ai liir Mnitefc t̂atrii
A ugust Special T eem 1958 

Misc. No. 1

W illiam G. Coopee, et al., Members of the Board of Direc­
tors of the Little Rock, Arkansas Independent School 
District, and V ibgil T. B lossom, Superintendent of 
Schools,

Petitioners,

J ohn A aron, et al.,
Respondents.

BRIEF FOR RESPONDENTS

Preliminary Statement

Briefs for petitioners and respondents being filed simul­
taneously we have not seen the “ Statement of the Case” 
in petitioners’ brief. We assume that such statement will 
be accurate and adequate. In any event, the Opinion of the 
Court of Appeals adequately sets forth the facts. We, 
however, call this Court’s attention to one paragraph of 
the Opinion of the Court of Appeals which states as fol­
lows :

It is not the province of this Court in this proceed­
ing to advise the Board as to the means of implementing 
integration in the Little Rock Schools. We are directly 
concerned only with the legality of the order under



2

review. We do observe, however, that at no time did 
the Board seek injunctive relief against those who 
opposed by unlawful acts the lawful integration plan, 
which action apparently proved successful in the Clin­
ton, Tennessee and Hoxie, Arkansas situations. See 
Kasper v. Brittain, 245 F. 2d 92 (6 Cir. 1957), certi­
orari denied 355 U. S. 834, rehearing denied 355 U. S. 
886; Hoxie School District v. Brewer (E. D. Ark.), 137 
F. Supp. 364, aff’d Brewer v. Hoxie School District 
(8 Cir. 1956), 238 F. 2d 91. The evidence also affords 
some basis for belief that if more rigid and strict 
disciplinary methods had been adopted and pursued in 
dealing with those comparatively few students who 
were ring leaders in the trouble making, much of the 
turmoil and strife within Central High School would 
have been eliminated.

Questions Presented

The questions presented by the Petition for Certiorari 
are:

(1) Whether a court of equity may postpone the enforce­
ment of the respondents’ constitutional rights if the con­
tinued enforcement thereof will result in an intolerable 
situation and great disruption of the educational process to 
the detriment of the public interest, the schools, and the 
students including the respondents.

(2) Whether a school district has a duty and obligation, 
by invoking extraordinary legal processes and otherwise, 
to quell violence, disorder and organized resistance to 
desegregation.



3

Summary of Argument

I

Neither overt public resistance, nor the possibility of it, 
constitutes sufficient cause to nullify the orders of the 
federal court directing petitioners to proceed with their 
desegregation plan. This Court and other courts have con­
sistently held that the preservation of public peace may 
not be accomplished by interference with rights created by 
the Federal Constitution.

Applying this familiar rule, this Court held in the School 
Segregation Cases, that delay could not be predicated on 
opposition to desegregation.

The sustension of this principle is all the more impera­
tive where, as here, the forces at work to frustrate the 
Constitution and the authority of the federal courts were 
deliberately set in motion by the Governor of a state whose 
school system is under mandate to achieve conformity with 
the Constitution. Here one state agency, the School Board, 
seeks to be relieved of its constitutional obligation by 
pleading the force majeure brought to bear by another 
facet of state power. To solve this problem by further 
delaying the constitutional rights of respondents is unthink­
able.

II

Hardship to petitioners is no excuse for abrogating the 
Rule of Law, but even if it were, petitioners here cannot 
validly claim it.

Petitioners had at their disposal and still have available 
to them a legal remedy to prevent interference with the 
performance of their constitutional duties.



4

There is no ground for a presumption that the authori­
ties charged with the duty of enforcing the law will refuse 
or be unable to perform this duty. In fact, the federal 
government stands ready to perform this duty.

Even if it be claimed that tension will result which will 
disturb the educational process, this is preferable to the 
complete breakdown of education which will result from 
teaching children that courts of law will bow to violence.

Argument

The decision of the Court of Appeals setting aside Judge 
Lemley’s two and one-half years suspension of desegrega­
tion was correct and should be sustained. Indeed, the 
decision is so eminently sound, so clearly in harmony with 
decisions of this Court and other federal courts, that the 
questions presented by the Petition for Certiorari could 
hardly even be characterized as substantial, were it not for 
two factors:

First, the legal controversy over the obligation of the 
Little Rock School Board to proceed with the desegregation 
of Central High School, and other schools it manages, pur­
suant to the original, and judicially approved, schedule 
has now become a national test of the vitality of the prin­
ciples enunciated in Brown v. Board of Education.

Second, the principal ground urged for overruling the 
Court of Appeals’ decision is, in essence, that unless peti­
tioners’ obligation to proceed with desegregation of the 
Little Rock schools is suspended, ruffians with or without 
support from state officials will resume their attempts 
forcibly to block the execution of valid federal court orders. 
Acquiescence in any such argument would subvert our 
entire constitutional framework.



5

In short, this case involves not only vindication of the 
constitutional rights declared in Brown, but indeed the 
very survival of the Rule of Law. This case affords this 
Court the opportunity to restate in unmistakable terms 
both the urgency of proceeding with desegregation and the 
supremacy of all constitutional rights over bigots—big 
and small.

I

Overt public resistance including mob protests is not 
sufficient cause to nullify federal court orders requiring 
gradual desegregation of public schools.

The Petition for Certiorari herein filed seeks a reversal 
of the decision of the Court of Appeals for the Eighth 
Circuit complaining:

The Circuit Court of Appeals for the Eighth Circuit 
agreed with the findings of the District Court that the 
evidence is appalling but that great additional ex­
pense, disruption of normal educational procedures, 
tension and nervous collapse of the school personnel, 
turmoil, bedlam, and chaos, are not a legal basis for 
suspension of the plan since this would be an accession 
to the demands of insurrectionists.

The Court of Appeals defined the issue in the case as: 
“whether overt public resistance, including mob protest, 
constitutes sufficient cause to nullify an order of the federal 
court directing the Board to proceed with its integration 
plan.” There has never been a suggestion that the rule is 
other than as stated in Buchanan v. Warley, 245 U. S. 60, 
81:

It is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts. De­
sirable as this is, and important as is the preserva­



6

tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights created 
or protected by the Federal Constitution.

This principle has been reiterated in connection with 
housing in the City of Birmingham which faced threats of 
bombing because Negroes had purchased in a zone for­
bidden to their race, City of Birmingham v. Monk, 185 
F. 2d 859 (5th Cir. 1950), cert, denied 341 U. S. 940; in 
reversing an order of the United States District Court for 
the Eastern District of Arkansas which dismissed a writ 
of habeas corpus submitted by petitioners who had been 
convicted of murder after a promise of “ leading officials” 
to a lynch mob “ that, if the mob would refrain . . . they 
would execute those found guilty in the form of law . . . 
Moore v. Dempsey, 261 U. S. 86, 88-89; in holding a gov­
ernor forbidden to close a factory beset by rioters during 
a strike, Strutwear Knitting Co. v. Olson, 13 F. Supp. 384 
(D. Minn. 1936); in rejecting a claim of the government 
that an American citizen of Japanese ancestry should have 
been confined because “community hostility towards the 
evacuees . . . has not disappeared,” Ex parte Endo, 323 
U. S. 283, 297; and in holding, that notwithstanding a 
national military emergency the constitutional rights of 
steel producers could not be abridged by presidential 
seizure. Youngstown Sheet & Tube Co. v. Sawyer, 343 
U. S. 579.

The imperviousness of the Buie of Law to arguments of 
this sort is, after all, the underlying foundation of equal 
justice under law. For if criminal defendants, home owners, 
manufacturers, and others can be routed from their lawful 
rights by a transient emergency, then we have returned to 
a state prior to civil society, when there was the Hobbesian 
state of “a war of all men against all men.” 1

1 Hobbes, De Cive I, 12 (1651).



7

This Court reaffirmed this premise of lawful government 
in Brown v. Board of Education, 349 IT. S. 294, 300:

. . .  it should go without saying that the vitality 
of these constitutional principles cannot he allowed to 
yield simply because of disagreement with them.

The federal judiciary (with the exception of Judge Lem- 
ley whom the Court of Appeals reversed herein) has uni­
formly followed this rule. See Jackson v. Rawdon, 235 
F. 2d 93, 96 (5th Cir., 1956), cert, denied 352 U. S. 925; 
School Board of Charlottesville, Va. v. Allen, 240 F. 2d 
59, 64 (4th Cir., 1956), cert, denied 353 U. S. 910; Orleans 
Parish School Board v. Bush, 242 F. 2d 156, 163-164 (5th 
Cir., 1957), cert, denied 354 U. S. 921; Allen v. County 
School Board of Prince Edward County, 249 F. 2d 462, 
465 (4th Cir., 1957); Mitchell v. Pollack, 1 Race Eel. L. 
Rep. 1038 (D. C. Ky., 1956).2

Therefore, the court below acted in consonance with all 
lawful precedent and the best traditions of constitutional 
government when it said:

The issue plainly comes down to the question of 
whether overt public resistance, including mob pro­
test, constitutes sufficient cause to nullify an order of 
the federal court directing the Board to proceed with 
its integration plan. We say the time has not yet come 
in these United States when an order of a Federal 
Court must he whittled away, watered down, or shame­
fully withdrawn in the face of violent and unlawful 
acts of individual citizens in opposition thereto.

2 A like rule was long ago recognized at English common law. 
Beatty v. Gillhanks, L. R. 9 Q. B. Div. 314, 51 L. J. Mag. Cas. N. S., 
117, 47 L. T. N. S. 194, 31 Week Rep. 275, 15 Cox, C. C. 138, 46 
J. P. 789.



8

II
Any suspension of petitioners’ original plan of gradual 

desegregation would subvert rather than preserve the 
fundamental objective of public education.

Throughout, petitioners’ argument is that education at 
Central High School has been seriously impaired by law­
less acts and the only solution is to revert to segregated 
education as terms for peace with the lawless elements. 
This plea is predicated on the argument that unless this 
is done the total educational system at Central High School 
will be seriously impaired or destroyed.

In the first Brown opinion this Court, however, made the 
following declaration as to the position of education in our 
modern day life, 347 U. S. 483, 493:

Today, education is perhaps the most important 
function of state and local governments. Compulsory 
school attendance laws and the great expenditures 
for education both demonstrate our recognition of the 
importance of education to our democratic society. It 
is required in the performance of our most basic public 
responsibilities, even service in the armed forces. It is 
the very foundation of good citizenship. Today it is a 
principal instrument in awakening the child to cultural 
values, in preparing him for later professional train­
ing, and in helping him to adjust normally to his en­
vironment.

Applying these principles to this case the Solicitor Gen­
eral effectively disposed of the School Board’s contention 
in his argument before the Court on August 28:

But when you talk about a deterioration of the edu­
cational process in this school, it seems to me that one



9

of the things that all educators, certainly teachers, 
would recognize, is that part of the educational process 
is the attitude and conduct of the teachers, the per­
sonnel of the school and the children themselves, and 
part of their responsibility is to get across to these 
teachers and for the teachers to get across to the chil­
dren and those that are in the educational process, the 
responsibility to enforce the laws; that we do live 
in a country where we seek to maintain law and order 
for the benefit of all the people, that the Constitution 
and each of the rights that every citizen has under it, 
is precious to every one of us, not just the rights that 
I like and want for me, or that you like and want for 
you, but all of them for every man and woman.

And that if you teach these children in Little Rock 
or any other place in the country that as soon as you 
get some force and violence, the courts of law in this 
country are going to bow to it, they have no power 
to deal with it, they will give way to it, will change 
everything to accommodate that, I think that you de­
stroy the whole educational process then and there. 
Transcript of Argument, Aug. 28, 1958, p. 107.

This Court recognized as much in West Virginia State 
Board of Education v. Barnette, 319 U. S. 624, in which 
Justice Jackson wrote, at p. 637:

The Fourteenth Amendment, as now applied to the 
States, protects the citizen against the State itself and 
all of its creatures—Boards of Education not excepted. 
These have, of course, important, delicate, and highly 
discretionary functions, but none that they may not 
perform within the limits of the Bill of Rights. That 
they are educating the young for citizenship is reason 
for scrupulous protection of Constitutional freedoms 
of the individual, if we are not to strangle the free



1 0

mind at its source and teach youth to discount impor­
tant principles of our government as mere platitudes.

Indeed, the Supreme Court of Arkansas has embraced 
the same principle in a case in which it upheld the right 
of a. school board to expel a student who had disobeyed 
school regulations. While the board was upheld in its 
enforcement of the particular regulation (concerning the 
wearing of cosmetics) as reasonable, the language of the 
court may properly be quoted here: “ It will be remembered 
also that respect for constituted authority, and obedience 
thereto, is an essential lesson to qualify one for the duties 
of citizenship, and that the schoolroom is an appropriate 
place to teach that lesson.” Pugsley v. Sellmeyer, 158 Ark. 
247, 253, 250 S. W. 538, 539 (1923).3

Petitioners have a duty to accord respondents the equal pro­
tection of law and should have sought injunctions against the 
unlawful interferences with their performance thereof.

Petitioners, in the second of the questions presented in 
their application for a writ of certiorari, ask whether they 
have “a duty and obligation, by invoking extraordinary 
legal processes and otherwise, to quell violence, disorder 
and organized resistance to desegregation.”

Assuming the question is properly before the Court, it 
cannot be gainsaid that petitioners could have invoked

3 See Cremin, Lawrence A. and Borrowman, Merle L., Public 
Schools In Our Democracy 88-102, 204-216 (1956); Grieder, Calvin 
and Rosenstengel, William E., Public School Administration 89-98 
(1954) ; Griffiths, Daniel E., Human Relations in School Adminis­
tration 14-20, 152-161, 240, 307-309 (1956); Koopman, G. Robert; 
Miel, Alice; and Misner, Paul J., Democracy in School Administra­
tion 225-276 (1943) ; Newlon, Jessie H., Education for Democracy 
in Our Time 168-169 (1939); Richards, Edward A., Ed., Mid­
century White House Conference on Children and Youth, Wash­
ington, D. C. 1950, passim (1951).



1 1

“ extraordinary legal processes” to restrain interference 
with the performance of their duty to accord respondents 
nonsegregated public education. See Thomason v. Cooper, 
254 F. 2d 808 (8th Cir., 1958); Faubus v. United States, 254 
F. 2d 797 (8th Cir., 1958), pending on petition for a writ 
of certiorari, No. 212, Oct. Term, 1958.

In addition, petitioners certainly had and have a duty 
to preserve discipline and order in and about the premises. 
And where, as here, third parties seek, to upset discipline 
and order in attempts “ to deprive (among others) Negro 
pupils of their constitutional rights, then it would seem 
proper for [the School Board], so closely related as they 
were to victims in this case, to bring a restraining suit. 
They were officials of a great state and an omission by 
them would, in effect, be a deprivation of rights under the 
color of law.” Eoxie School Dist. No. 46 of Lawrence Co., 
Ark. v. Brewer, 137 F. Supp. 364, 367 (E. D. Ark. 1956), 
affirmed Brewer v. Hoxie School Dist. No. 46, 238 F. 2d 91, 
100 (8th Cir., 1956); Kasper v. Brittain, 245 F. 2d 92, 94 
(6th Cir., 1957).



1 2

CONCLUSION

To prevent further disorder, petitioners have urged this 
Court to approve Judge Lemley’s order, the purpose of 
which is not to repress the lawless violence, but to give 
the sanction of law to the motives which inspired it. The 
answer can only be: not “ while this Court sits.”

Wherefore, respondents respectfully urge this Court to 
affirm the judgment of the Court of Appeals, reinstate the 
prior order of Judge Davies and order its mandate to 
issue forthwith.

Respectfully submitted,

T hubgood Marshall 
10 Columbus Circle 
New York 19, N. Y.

W iley A. B raxton
119 East Barraque Street 
Pine Bluff, Arkansas

Attorneys for Petitioners

Of Counsel

E lwood H. Chisolm 
W illiam Coleman, Jb. 
Ibma R obbins F edeb 
J ack Greenbebg 
L ouis H. P ollak 
W illiam T aylob



38