Aaron v. Cooper, 16034.

Decision Date18 August 1958
Docket NumberNo. 16034.,16034.
PartiesJohn and Thelma AARON, minors, by their mother and next friend, (Mrs.) Thelma Aaron; et al., Appellants, v. William G. COOPER, et al., Members of the Board of Directors of the Little Rock, Arkansas, Independent School District, and Virgil T. Blossom, Superintendent of Schools, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Wiley A. Branton, Pine Bluff, Ark., and Thurgood Marshall, New York City (Elwood H. Chisolm, Irma Robbins Feder, Constance Baker Motley, New York City, and Spottswood W. Robinson, III, Richmond, Va., of counsel), for appellants.

Richard C. Butler and A. F. House, Little Rock, Ark., for appellees.

Before GARDNER, Chief Judge, and SANBORN, WOODROUGH, JOHNSEN, VOGEL, VAN OOSTERHOUT and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This appeal is another in a series of legal actions which followed the adoption and implementation of a plan for gradual integration of the public schools in Little Rock, Arkansas, as set up by the school board in that district, and approved by the United States District Court for the Eastern District of Arkansas, and by this Court. See Aaron v. Cooper, D.C. E.D.Ark.1956, 143 F.Supp. 855, affirmed 8 Cir., 1957, 243 F.2d 361; Thomason v. Cooper, 8 Cir., 1958, 254 F.2d 808; Faubus v. United States, 8 Cir., 1958, 254 F.2d 797.

In conformity with the plan, and under the direction of the Superintendent of Schools of the Little Rock School District (hereinafter called "District"), approximately sixty Negro students were meticulously screened prior to the opening of schools in September, 1957. Seventeen were accepted for entrance in the final two years in high school, but when eight of the students voluntarily withdrew, the nine remaining attempted to enter the school when it opened. After a series of skirmishes, resulting in the placing of troops around the Central High School building (see Faubus v. United States, supra), the nine Negro students were admitted and eight of them attended the full year. On February 20, 1958, the members of the school board (hereinafter called "Board") and the Superintendent, filed a petition in the United States District Court, Eastern District of Arkansas, Western Division, asking that the plan of integration "be realistically reconsidered in the light of existing conditions," and that it be postponed until such time as the concept of "all deliberate speed" could be clearly defined. Thereafter, the Honorable Harry J. Lemley, United States District Judge for the Eastern and Western Districts of Arkansas, was designated by the Chief Judge of this Circuit to hear and determine the issues presented by the petition. At the District Court's direction, appellees filed an amended petition in which they alleged that in light of existing conditions, they were of the opinion that a suspension of operations under the plan until January, 1961, was reasonable and advisable. Appellants attacked the petition by a motion to dismiss, contending that the petition was insufficient to state a cause for relief or a claim for relief which would be cognizant under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. They also filed a response to the petition. Following an extended trial of the issues presented by the pleadings, the District Court filed an exhaustive opinion, 163 F.Supp. 13, and entered its order granting permission to suspend the operation of the plan of integration until mid-semester of the 1960-61 school year.

From that order, plaintiffs (appellants) prosecuted an appeal to this Court. Because of the vital importance of the time element in the litigation, and in line with the suggestion of the Supreme Court in its per curiam order of June 30, 1958, on petition for certiorari, we heard the appeal on its merits on August 4, 1958.

A review of the events leading up to the present appeal, as revealed by the record, is necessary to a proper understanding of the meritorious question for decision.

On May 20, 1954, following the decision of the Supreme Court in Brown v. Board of Education on May 17, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the Board adopted a statement concerning the Brown decision, recognizing its responsibility to comply with Federal Constitutional requirements, and on May 24, 1955 — several days prior to the supplemental opinion of the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the Board approved a "Plan of School Integration," which provided for a gradual integration of all public schools, beginning with the high school level, in the fall of 1957. See Aaron v. Cooper, D.C., 143 F.Supp. 855 for the plan in its entirety, affirmed 8 Cir., 243 F.2d 361.

It was the feeling of the Board that the plan, as proposed, was the most desirable and workable under all of the circumstances, and that as the result of an active public relations program, the public generally approved of the plan. However, a systematic campaign developed which undermined whatever confidence the public might have had in the plan to integrate the public schools. In November, 1956, the people of the State of Arkansas adopted: (A) Amendment 44 to the State Constitution, which commanded the General Assembly to oppose by every constitutional method the "Un-Constitutional desegregation decisions of May 17, 1954 and May 31, 1955 (the two Brown decisions) of the United States Supreme Court" (1 Ark.Stat.1947, 1957 Supplement); (B) A resolution of interposition which, inter alia, called upon the people of the United States and the governments of all the separate states to join the people of Arkansas in securing an adoption of an amendment to the Constitution of the United States which would provide that the powers of the federal government should not be construed to extend to the regulation of the public schools of any state, or to prohibit any state from providing for the maintenance of racially separate but substantially equal public schools within such state; (C) A pupil assignment law dealing with the assignment of individual pupils to individual public schools. The 61st General Assembly of Arkansas, which convened in January, 1957, enacted Sections 80-1519 to 80-1524, Ark. Stat.1947, known as The Pupil Assignment Law; Section 80-1525, ibid, which relieves school children of compulsory attendance in racially mixed public schools; Sections 6-801 through 6-824, ibid, which established a State Sovereignty Commission; Section 80-539, ibid, which authorizes local school boards to expend district funds in employing counsel to assist in the solution of problems arising out of integration.

During the summer of 1957, anti-integration forces, pointing to the recent Arkansas enactments, petitioned for, and received from the Pulaski Chancery Court at Little Rock, an injunction directed against the Board, restraining any action towards integrating Little Rock Central High School during the school term beginning September 3, 1957. On August 29, 1957, on application of the Board, the United States District Court at Little Rock entered an order enjoining the use of the state court injunction in an attempt to block the integration plan. We affirmed this order. Thomason v. Cooper, 8 Cir., 254 F.2d 808.

From the testimony of the Superintendent, and voluminous exhibits, consisting mainly of newspaper articles and paid advertisements, it is demonstrated that pro-segregationists carried on a relentless and effective campaign during the summer of 1957. The Governor of Georgia, Marvin Griffin, and Roy V. Harris, publisher, of the same state, and Reverend J. A. Lovell, described as a "Texas Radio Minister," appeared in Little Rock and delivered speeches against integration to large audiences. The effect of these efforts may be gleaned from the Superintendent's testimony: (Mr. Blossom)"But there was a tremendous amount of opposition following the appearance of the Governor of Georgia * * * that this plan which had been developed as I explained over a long period of time, seemed to be driven out of everybody's mind. * * * In the minds of people who talked to me the thing that became prevalent was `We don't have to do this when the Governor of Georgia says nobody else has to do it.'" On July 9, 1957, what purports to be a full page paid statement appeared in the Arkansas Democrat, the first two paragraphs of which are typical, not only of the statement in its entirety, but of other articles appearing from time to time in the same publication:

"People of Arkansas vs. Race-Mixing!
Official Policy of the State of Arkansas
"`The People of Arkansas assert that the power to operate public schools in the State on a racially separate but substantially equal basis was granted by the people of Arkansas to the government of the State of Arkansas; and that, by ratification of the Fourteenth Amendment, neither the State of Arkansas nor its people delegated to the federal government, expressly or by implication, the power to regulate or control the operation of the domestic institutions of Arkansas; any and all decisions of the federal courts or any other department of the federal government to the contrary notwithstanding.\'
"Whose Statement is the Above?
"It is the statement of Gov. Orval E. Faubus of Arkansas. It is the core of the Resolution of Interposition which he personally fathered. Governor Faubus hired the solicitors who circulated the petitions to place this Resolution on the ballot. Governor Faubus filed Resolution and petitions with the Secretary of State on July 5, 1956, and the Resolution was submitted to the people in last NOVEMBER\'S GENERAL ELECTION. THE PEOPLE OF ARKANSAS BY A TREMENDOUS, OVERWHELMING MAJORITY GAVE IT THEIR THUNDERING APPROVAL.
"Sponsored by the Governor of Arkansas, adopted by a tremendous majority of Arkansas voters, THE ABOVE STATEMENT IS THE WILL OF THE PEOPLE OF ARKANSAS."

As September 3rd approached, the opposition to Negro...

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