Aaron v. McKinley

• Decision Date: 18 June 1959
• Docket Number: Civ. A. No. 3113.
• Citation: 173 F. Supp. 944
• Parties: John AARON et al., Plaintiffs, v. Ed I. McKINLEY, Jr., President, and Everett Tucker, Jr., Ben D. Rowland, Sr., Russell H. Matson, Jr., Robert W. Laster and Ted L. Lamb, Members of the Board of Directors, Little Rock School District, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

173 F. Supp. 944

John AARON et al., Plaintiffs, v. Ed I. McKINLEY, Jr., President, and Everett Tucker, Jr., Ben D. Rowland, Sr., Russell H. Matson, Jr., Robert W. Laster and Ted L. Lamb, Members of the Board of Directors, Little Rock School District, et al., Defendants.

Civ. A. No. 3113.

United States District Court E. D. Arkansas, W. D.

June 18, 1959.

Wiley A. Branton, Pine Bluff, Ark., and Thurgood Marshall, New York City, for plaintiffs.

Herschel H. Friday, Jr., and Robert V. Light, Little Rock, Ark., for defendants Ed I. McKinley, Jr., President, and Everett Tucker, Jr., Ben D. Rowland, Sr., Russell H. Matson, Jr., Robert W. Laster and Ted L. Lamb, Members of the Board of Directors, Little Rock School District; and Terrell E. Powell, Superintendent, Little Rock Public Schools.

Walter L. Pope, Little Rock, Ark., Kay Matthews, Little Rock, Ark., and Thomas Harper, Fort Smith, Ark., for defendant Orval E. Faubus, Governor of the State of Arkansas.

Bruce Bennett, Atty. Gen. of Arkansas, Ben J. Harrison, Asst. Atty. Gen. of Arkansas, and Bill J. Davis, El Dorado, Ark., for defendants Marvin Bird, Allen Lynch, John G. Rye, M. P. Jones, Tom Whiteside, W. D. McKay, T. C. Cogbill, Jr., Dr. John Cole and Rabie Rhodes, Members State Board of Education of Arkansas; Arch W. Ford, Commissioner of Education of Arkansas; Harvey Z. Snell, Budget Director of the State Department of Education; Joe Hudson, Disbursing Officer of the State Department of Education; Orvel M. Johnson, State Legislative Auditor; Jimmie Jones, State Auditor; and J. Vance Clayton, State Treasurer.

Osro Cobb, U. S. Atty., Little Rock, Ark., and St. John Barrett, Atty., Dept. of Justice, Washington, D. C., for the United States of America, amicus curiae.

Before SANBORN, Circuit Judge, and MILLER and BECK, District Judges.

PER CURIAM.

This case was tried and argued to this statutory three-judge court on May 4, 1959, upon the issues raised by the supplemental complaint of the plaintiffs and the answers of the defendants. The action is a class action brought by school-age children of the Negro race and their parents and guardians, all residents of Little Rock, Arkansas. Declaratory and injunctive relief is sought against the defendants, State officers of the State of Arkansas, upon the claim that Act No. 4 of the Second Extraordinary Session of the Sixty-first General Assembly, 1958, of that State, pursuant to which the Governor on September 12, 1958, closed the four senior public high schools of Little Rock, both Negro and white, is unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, and that Act No. 5 of the same Session, as later amended, by virtue of which state funds allocable to the Little Rock School District for the maintenance and operation of its public schools have been withheld from the District and diverted to other schools, is likewise unconstitutional and void.

The defendants are the Governor of Arkansas, the State Commissioner of Education, the members of the State Board of Education, the Superintendent of the Little Rock Public Schools, the members of the Board of Directors of the Little Rock School District, and other State officers asserted to have a relation to the case.

In their supplemental complaint, the plaintiffs allege:

"Acts No. 4 and 5, as amended by Act 151 of the Arkansas Acts of 1959, are part of a studied plan devised by the Governor and General Assembly of Arkansas to preserve racial segregation in the public schools and thus evade or frustrate compliance with the decision of the Supreme Court of the United States in the School Segregation Cases and, more specifically, the decrees of this Court, the Court of Appeals and the Supreme Court in the instant case. Each order of the federal courts to implement the constitutional rights of plaintiffs and others similarly situated to an unsegregated education has been met by action of the legislative and executive departments of Arkansas designed to nullify those orders. (Report of the Governor's Committee to Make Recommendations for Official Action, February 24, 1956; Constitutional Amendment No. 44 to the Constitution of Arkansas, adopted Nov. 6, 1956; Arkansas Statutes 1947, §§ 6-801 to 6-824; Arkansas Statutes 1947, §§ 80-1519 to 80-1525, Acts No. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 of the General Assembly of Arkansas, 2nd Extraordinary Session 1958, approved September 12, 1958.)

"The State of Arkansas has undertaken as a state function to provide a system of free public schools for the education for all persons between the ages of six and twenty-one years. Arkansas Constitution Article 14, § 1.

"Acts No. 4 and 5 as amended by Act No. 151 of the Arkansas Acts of 1959, in authorizing the closing of the public high schools of the Little Rock School District, the withholding of funds from them because they were in the process of being desegregated pursuant to Court order, and the payment of said funds to `nonprofit private' schools which enroll pupils who formerly attended the schools now closed, is designed to nullify the orders of this Court and to condition the maintenance of public schools upon their operation in an unconstitutional manner and upon the waiver by plaintiffs of rights secured to them by the Constitution of the United States, all in violation of rights, privileges and immunities guaranteed to plaintiffs by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States."

The plaintiffs ask this Court to declare Act No. 4 and Act No. 5, as amended, unconstitutional; to enjoin the defendants and those in concert with them from enforcing or seeking to enforce the Acts in question; to enter a judgment ordering that the public schools in Little Rock be opened, operated and maintained on a nonsegregated basis in accordance with the previous orders of the United States Courts in that regard; and to enjoin the defendants from further acts to prevent the carrying out of such federal court orders.

The complete history of this controversy from its inception to September 12, 1958, has been stated by the Supreme Court of the United States in its opinion in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, unanimously affirming the United States Court of Appeals for the Eighth Circuit, 257 F.2d 33, in reversing an order of the United States District Court, 163 F.Supp. 13, suspending the approved plan of gradual integration for the period of two and one-half years.

The Supreme Court had on September 12, 1958, in that case, entered an order reading as follows, at page 5 of 358 U.S., at page 1403 of 78 S.Ct.:

"It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F.2d 33 reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F.Supp. 13 be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, see 143 F.Supp. 855 and September 3, 1957, enforcing the School Board's plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.

"The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas."

Upon the entry of that order, the Little Rock School Board and the Superintendent of Schools were again under mandate to carry out the approved plan of integration of the schools of Little Rock.

The further history of this litigation and its factual background is to be found in the opinion of the Court of Appeals for the Eighth Circuit, of November 10, 1958, in Aaron v. Cooper, 261 F.2d 97. That court points out that after its opinion of August 18, 1958 (257 F.2d 33), holding to be legally unwarranted the 2½-year suspension of the approved plan of integration granted by the District Court in 163 F.Supp. 13, the Governor of Arkansas called the General Assembly into extraordinary session; that on August 26, 1958, it passed, with emergency clauses, the two Acts in question, which, however, were not signed by the Governor until September 12, 1958, the day the Supreme Court of the United States entered its order in Cooper v. Aaron, affirming the decision of the Court of Appeals for the Eighth Circuit, 257 F.2d 33; that on the same day, acting under the authority purportedly conferred upon him by Act No. 4, the Governor issued a proclamation closing all of the senior high schools of Little Rock, and called for an election in the School District, to vote on the alternative ballot proposition of "For Racial Integration of All Schools Within the ____ School District" or "Against Racial Integration of All Schools Within the ____ School District"; that Act No. 4 provided that, unless a majority of the qualified electors of the District voted in favor of integration, "no school within the district shall be integrated," and that a school closed by executive order authorized by the Act "shall remain closed until such executive order is countermanded by proclamation of the Governor"; and that the vote at the election was about 19,000 against, and 7,500 for, racial integration of all schools in the Little Rock School District (page 101 of 261 F.2d).

Speaking of Act No. 5, the Court of Appeals said, on page 99 of 261 F.2d:

"Act No. 5 was complementary to Act No. 4, in its provisions for withholding from a school district, in which the Governor had ordered a school closed, a pro rata share of the State funds otherwise allocable to such district and of the funds allocable from the County General School Fund, and making

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