Faubus v. United States, 15904.

• Decision Date: 28 April 1958
• Docket Number: No. 15904.,15904.
• Citation: 254 F.2d 797
• Parties: Orval E. FAUBUS, Governor of the State of Arkansas, General Sherman T. Clinger, Adjustant General of the State of Arkansas, and Lt. Col. Marion E. Johnson, Unit Commander of the Arkansas National Guard (Respondents), Appellants, v. UNITED STATES of America (Amicus Curiæ, Petitioner), and John Aaron, a minor, and Thelma Aaron, a minor, by their mother and next friend (Mrs.) Thelma Aaron, a feme sole, et al. (Plaintiffs), and William G. Cooper, M. D., as President of Board of Trustees, Little Rock Independent School District, et al. (Defendants), Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

254 F.2d 797 (1958)

Orval E. FAUBUS, Governor of the State of Arkansas, General Sherman T. Clinger, Adjustant General of the State of Arkansas, and Lt. Col. Marion E. Johnson, Unit Commander of the Arkansas National Guard (Respondents), Appellants, v. UNITED STATES of America (Amicus Curiæ, Petitioner), and John Aaron, a minor, and Thelma Aaron, a minor, by their mother and next friend (Mrs.) Thelma Aaron, a feme sole, et al. (Plaintiffs), and William G. Cooper, M. D., as President of Board of Trustees, Little Rock Independent School District, et al. (Defendants), Appellees.

No. 15904.

United States Court of Appeals Eighth Circuit.

April 28, 1958.

Kay L. Matthews, Little Rock, Ark., and Thomas Harper, Fort Smith, Ark. (Walter L. Pope, Little Rock, Ark., was with them on the brief), for appellants.

Donald B. MacGuineas, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Osro Cobb, U. S. Atty., Little Rock, Ark., and Samuel D. Slade, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellee United States of America, amicus curiae.

Thurgood Marshall, New York City (Wiley A. Branton, Pine Bluff, Ark., was with him on the brief), for appellees John Aaron, et al.

Hansel Proffitt, Sevierville, Tenn., amicus curiae.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court made September 20, 1957 (filed September 21, 1957), in the action of Aaron v. Cooper, 143 F.Supp. 855, to which the appellants on September 10, 1957, had been made additional parties defendant. The order enjoined the appellants, and others under their control or in privity with them, from using the Arkansas National Guard to prevent eligible Negro children from attending the Little Rock Central High School, and otherwise obstructing or interfering with the constitutional right of such children to attend the school. The order expressly preserved to Governor Faubus the right to use the Arkansas National Guard for the preservation of law and order by means which did not hinder or interfere with the constitutional rights of the eligible Negro students.

The appellants assert that the order appealed from must be reversed because the District Judge erred in rejecting an affidavit of prejudice and in refusing to disqualify himself. They assert also that the Court erred: (1) in overruling the motion of the appellants to dismiss the petition of the United States asking that the appellants be made additional defendants in the Aaron case and be enjoined from using the Arkansas National Guard to prevent eligible Negro students from attending the Little Rock Central High School; (2) in overruling appellants' motion to dismiss the petition for failure to convene a three-judge court; and (3) in entering the preliminary injunction.

A statement of the events and proceedings which constitute the background of this controversy seems necessary to a full understanding of the questions presented and to show how they arose.

The Supreme Court of the United States on May 17, 1954, decided in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, that segregation of white and Negro children in the public schools of a State solely on the basis of race, under state laws permitting or requiring such segregation, denied to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States, even though the physical facilities and other tangible factors of white and Negro schools were equal. The case was restored to the Supreme Court's docket to await the formulation of decrees and for further argument on questions not then decided.

On May 31, 1955, in 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the Supreme Court announced its supplemental opinion and final judgments in the Brown case. We quote some of the pertinent excerpts from the opinion (349 U.S. at pages 298, 299, 300, 75 S.Ct. at page 755):

"These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. * * *

* * * * *

"Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. * * *

"* * * At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date."

On May 23, 1955, the School Board of the Little Rock School District had adopted and published a statement to the effect that it was the Board's "responsibility to comply with Federal Constitutional Requirements" and that it "intended to do so when the Supreme Court of the United States outlines the method to be followed," and that in the meantime the Board would make the needed studies "for the implementation of a sound school program on an integrated basis." At pages 858-859 of 143 F. Supp.

The Superintendent of the Little Rock schools, upon instructions from the School Board, prepared a plan for the gradual integration over a period of about seven years of the public schools in Little Rock, commencing at the senior high school level in the fall of 1957. The plan was adopted by the Board on May 24, 1955, and is fully set forth in the opinion of the District Court in Aaron v. Cooper, supra, 143 F.Supp. at pages 859-860, and need not be restated in this opinion.

On February 8, 1956, John Aaron and other minor Negroes of school age brought a class action in the United States District Court for the Eastern District of Arkansas against the members of the Little Rock School Board, for the purpose of bringing about the immediate integration of the races in the public schools of Little Rock. The School Board answered the complaint and submitted to the court its plan for integration which it asserted would best serve the interests of both races (at page 858 of 143 F.Supp.). It alleged that a hasty integration would be unwise and would retard the accomplishment of the integration of the Little Rock schools. United States District Judge John E. Miller, who heard the case, filed a comprehensive opinion on August 27, 1956 (143 F.Supp. 855), in which it was determined that the defendants, the school authorities, had acted in the utmost good faith and with the sole objective "to faithfully and effectively inaugurate a school system in accordance with the law as declared by the Supreme Court." The District Court ordered that the plan of the defendants be approved as adequate; denied the plaintiffs any declaratory or injunctive relief; and retained jurisdiction of the case for the entry of such other and further orders as might be necessary for the effectuation of the approved plan. (At page 866 of 143 F. Supp.)

The plaintiffs appealed. They urged in this Court, as they had in the District Court, that there were no valid reasons why integration in the public schools of Little Rock should not be completely accomplished by September, 1957. On appeal, this Court held, on April 26, 1957, that "in the light of existing circumstances the plan set forth by the Little Rock School Board and approved by the District Court is in present compliance with the law." Aaron v. Cooper, 8 Cir., 243 F.2d 361, 364. The judgment of the District Court was affirmed, with its retention of continued jurisdiction.

On September 2, 1957, the appellants, Orval E. Faubus, Governor of the State of Arkansas, and Sherman T. Clinger, Adjutant General of the State, stationed units of the Arkansas National Guard, under the command of Lt. Col. Marion E. Johnson, at the Little Rock Central High School. The order of Governor Faubus to General Clinger was as follows:

"You are directed to place off limits to white students those schools for colored students and to place off limits to colored students those schools heretofore operated and recently set up for white students. This order will remain in effect until the demobilization of the Guard or until further orders."

As a result of this order, nine Negro school children who, under the School Board's approved plan of integration, had been found eligible to attend the high school, were not, by request of the school authorities, in attendance on September 3, 1957, the opening day of the fall term.

The court, by United States District Judge Ronald N. Davies, sitting by assignment, on September 3, 1957, issued an order directing the members of the School Board and the Superintendent of the...