Dove v. Parham, 3680.

• Decision Date: 25 August 1961
• Docket Number: No. 3680.,3680.
• Citation: 196 F. Supp. 944
• Parties: Earnestine DOVE et al., Plaintiffs, v. Lee PARHAM et al., Defendants, Charles Henry Dove et al., Interveners.
• Court: U.S. District Court — Eastern District of Arkansas

196 F. Supp. 944

Earnestine DOVE et al., Plaintiffs, v. Lee PARHAM et al., Defendants, Charles Henry Dove et al., Interveners.

No. 3680.

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

August 25, 1961

George Howard, Jr., Pine Bluff, Ark., Robert Carter, New York City, for plaintiffs.

Herschel H. Friday, Jr., Robert V. Light, Little Rock, Ark., for defendants.

HENLEY, Chief Judge.

This litigation involving the elimination of compulsory racial segregation in the public schools of Dollarway Independent School District No. 2, Jefferson County, Arkansas, has now reached another stage.¹ On May 12, 1961, this Court having considered the reports of the Board of Directors of the defendant District, which reports are referred to in the margin, rendered an opinion and entered an order approving on its face the transitional plan of desegregation incorporated in those reports and authorizing the Dollarway School Board to proceed under said plan in making school assignments for the 1961-62 school year. The Board was directed, however, to report to the Court not later than July 15, 1961, as to the assignments actually made by it of Negro students who might manifest a desire to attend the formerly all-white Dollarway School. Dove v. Parham, D.C.E.D.Ark., 194 F.Supp. 112.

Following the entry of the order of May 12, 1961, the Board in due course made its assignments for the 1961-62 school year and, as directed, filed a report of its actions. The original plaintiffs herein have excepted to said report, and, in addition, five Negro pupils who applied for assignment to the formerly all-white Dollarway School have intervened herein as individual party plaintiffs. The cause is now before the Court upon the Board's report, the exceptions thereto, the intervention filed by the Negro students just mentioned, and the Board's response to said intervention. The principal question for determination is whether the Board's plan in operation can be approved as a permissible transitional plan calculated to end compulsory segregation in the defendant District within a reasonable time.

The plan to which facial approval was given in May 1961 may be summarized as follows:

The parents of all pre-school children, both white and Negro, about to enter school in the Dollarway District at the first grade level, were to be given an opportunity at a pre-school registration to indicate their preference as to which of the two schools in the District² they desired their children to attend. Thereafter and before the opening of the school in September 1961 all of such children, regardless of race, were to be given standard aptitude tests, and all of such children scoring at least in the average range of such tests under nationally uniform grading were to be assigned, in general, to the school for which a preference had been expressed. That general assignment policy for prospective first graders was subject to the qualifications that the assignments would be consistent with available room and teaching capacity and would not be "clearly contrary to applicable and non-discriminatorily applied standards and criteria" contained in the Arkansas Pupil Assignment Law, Act 461 of 1959, and in the Board's regulations adopted pursuant to that statute.

As pointed out in earlier opinions, the Board has adopted a general policy against "lateral transfers" of students already in school from Townsend Park to Dollarway in other than "exceptional circumstances" defined by the Board. However, as part of its present plan the Board expressed an intention to enforce that policy with less rigor at the lower grade levels than at the higher.

The plan having been presented and argued pro and con, the Court, while pointing out certain objections to which the plan was subject,³ gave the plan tentative approval, and authorized the Board to undertake to make 1961-62 assignments under it. While the Court was willing to give tentative approval to the plan as being valid and sufficient on its face as a transitional step, it was not willing to approve the plan finally in advance of seeing what actions the Board would in fact take under it. The Board was directed to report to the Court as to assignments actually made so that the Court would be "in a better position to judge whether the defendants have in fact and in good faith initiated a period of transition which will lead ultimately to the establishment of a non-discriminatory school system." 194 F.Supp. at page 116.

As to pre-school students who will enter the first grade in September, the Board reported that 158 of such students of both races were registered during late spring. Eighty-one of those students were white and were assigned automatically to the Dollarway School at which school they had been presented for registration.⁴ Of the 77 Negro students who were registered, only two were presented at Dollarway, the remaining 75 being presented at Townsend Park. All 75 of the students presented at Townsend Park were automatically assigned to that school.

All of the children were administered the Metropolitan Readiness Tests and the California Test of Mental Maturity, Pre-primary. Of the 75 Negroes who had registered at Townsend Park, 22 scored average or better on the tests, but the two Negro children who had applied for admission to Dollarway made scores which were well below average.⁵ On the basis of the test results and upon impressions formed in the course of interviews with the children, the Board concluded that the educational program of the District and the educational needs of the two Negro children in question would be served best by assigning them to Townsend Park, which was done. A number of white students made lower scores on the tests than did the two Negro applicants for enrollment in the first grade at Dollarway, but since the tests were not used as assignment criteria for white students, the grades made by the white children just mentioned did not affect their assignment to Dollarway.

In accordance with the Board's regulations, all students who were enrolled in school during the 1960-61 school year and who did not graduate from high school were assigned for the 1961-62 term to the school which they had attended the preceding term.⁶ Those initial assignments having been made, there were four applications for lateral transfers by Negro students at the lower grade levels. Two of such students applied for transfer at the second grade level, one at the third, and one at the fourth. One of those applications was granted, three were denied.

The application which was granted was that of a Negro boy who desired to transfer at the second grade level. In granting his request the Board took into consideration the fact that he was a good student, had done satisfactory work at Townsend Park, was well adjusted, neat, clean and industrious, and possessed certain qualities of leadership.

The other application for transfer at the second grade level was that of a Negro girl who had applied originally in 1960 for enrollment in Dollarway as a first grader. This applicant had failed to pass the first grade at Townsend Park and is to be retained in that grade. She was found to be somewhat of a problem from the standpoint of discipline and to be of rather low mentality. She was not considered to have actually reached mental maturity requisite for enrollment in the first grade until the ninth month of the school term just passed.

The student who applied for transfer at the third grade level had done satisfactory work at Townsend Park in the first grade, but less than satisfactory work in the second grade, and was considered to be of average intelligence or less. The third grade student who applied for transfer at the fourth grade level is a shy person who needs constant encouragement and who did satisfactory to less than satisfactory work in the third grade.

In passing on the applications for lateral transfers the Board, in accordance with its established procedures, interviewed all of the applicants and their parents and considered all relevant material before it. As to the rejected applications, it was the judgment of the Board that the best interests of the applicants and the best interests of the overall program of the District required that the students involved be retained at Townsend Park.

I.

Ruling appellate decisions, commencing with the Brown cases, establish that compulsory racial segregation in the public schools of a State is unconstitutional and must be eliminated either at once or over a period of transition. While this does not necessarily require the Dollarway Board affirmatively to assign Negro students to the Dollarway School, or even to invite such students to attend that school, it does mean that the Board, which has elected to proceed under a transitional plan, must make it possible within a reasonable time for any Negro student who desires to attend Dollarway, and who is otherwise qualified, to do so without regard to his race, and without being subjected to the application of assignment criteria and procedures which are not applied to white students. That is the ultimate result which the Board must achieve, and no transitional plan can be approved unless it is designed to achieve and is capable of achieving that result.

Further, as this Court said in its opinion of February 19, 1960, Dove v. Parham, D.C.E.D.Ark., 181 F.Supp. 504, 514, 515:

"It should be emphasized * * * that the very concept of a transitional period implies a movement away from a school system characterized by compulsory segregation toward a system free therefrom. Once there is a demand on the part of interested students to attend nonsegregated schools, the burden is upon the local

...