Aaron v. Cooper

• Decision Date: 10 November 1958
• Docket Number: No. 16094.,16094.
• Citation: 261 F.2d 97
• Parties: John 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.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F.2d 97 (1958)

John 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.

No. 16094.

United States Court of Appeals Eighth Circuit.

November 10, 1958.

Thurgood Marshall, New York City, and Wiley A. Branton, Pine Bluff, Ark. (Constance Baker Motley, Elwood H. Chisolm and William L. Taylor, New York City, on the brief), for appellants.

Donald B. MacGuineas, Attorney, Department of Justice, Washington, D. C. (William P. Rogers, Atty. Gen., Malcolm R. Wilkey, Asst. Atty. Gen., and Osro Cobb, U. S. Atty., Little Rock, Ark., on the brief) for United States, amicus curiae.

John H. Haley, Little Rock, Ark. (Richard C. Butler and A. F. House, Little Rock, Ark., on the brief), for appellees.

Before WOODROUGH, JOHNSEN and MATTHES, Circuit Judges.

PER CURIAM.

This case involves events which have occurred in the Little Rock, Arkansas, school situation since our decision in Aaron v. Cooper, 8 Cir., 257 F.2d 33, and since the decision of the Supreme Court in Cooper v. Aaron, 78 S.Ct. 1399 and 78 S.Ct. 1401.

The appeal is from an order of the District Court denying and dismissing an application by appellants for a writ of injunction.

Appellants are the six remaining Negro students, of the eight referred to in the Supreme Court's opinion, 78 S.Ct. at page 1407, who were enrolled in and had continued their attendance at the Central High School of Little Rock through the last school year, and who, under the School Board's plan of integration, were to have had the right to resume their studies there for the present school year, commencing in September, 1958. Appellees are the members of the School Board and the Superintendent of Schools of the Little Rock School District.

Our decision, supra, 257 F.2d 33, was rendered on August 18, 1958, holding that the District Court had not been warranted in granting a 2½-year suspension of the integration plan for the District, as approved and ordered carried into effect, merely because of the local hostility which had developed or been engendered against the initial desegregation step taken in the school system.

Thereafter, the Legislature or General Assembly of the State of Arkansas, on call issued by the Governor, convened in extraordinary session and on August 26, 1958, enacted two measures, known as Act No. 4 and Act No. 5 of the Second Extraordinary Session of the Sixty-first General Assembly, 1958. These bills, passed with emergency clauses, were signed by the Governor on September 12, 1958, the day that the Supreme Court made announcement, 78 S.Ct. 1399, of its affirmance of our decision, with direction in its order "that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, 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".

Act No. 4, supra, § 1(A) and (B), empowered the Governor, by proclamation, to close immediately any school or all schools of a public school district, and required him in such event to call a special election, to be held within 30 days, for vote upon the alternative ballot propositions of "For Racial Integration of All Schools Within the ............ School District", or "Against Racial Integration of All Schools Within the ............ School District". Unless a majority of the qualified electors of the district voted in favor of such integration, "no school within the district shall be integrated". § 2(D). It was further provided that a school which had been closed under the authority of the Act "shall remain closed until such executive order is countermanded by proclamation of the Governor * * *". § 4.

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 such withheld funds available, on a per capita basis, to any other public school or any non-profit private school accredited by the State Board of Education (of which the Governor was a member), which should be attended by students of a closed school, with an obligation being imposed upon the State Board of Education in these circumstances to make such payments. §§ 2 and 3.

One of the grounds specified in Act No. 4, on which the Governor was authorized to close a school and call an election was, "whenever * * * (c) he shall determine that a general, suitable, and efficient educational system cannot be maintained in any school district because of the integration of the races in any school within that district". Another was, "whenever * * * (a) he shall determine that in order to maintain peace against actual or impending domestic violence in any public school district, whereof (sic) the lives or limbs of the citizens, students, teachers or other employees of any school, or the safety of buildings or other property in the school district are endangered * * *". § 1(B) (c) and (a).

Commencement of the new school year for the senior high schools of Little Rock had been set by the School Board for September 15, 1958. On September 12, 1958, the day the Supreme Court announced its decision, supra, 78 S.Ct. 1399, the Governor issued a proclamation, closing all four of such schools, on the two bases under Act No. 4 set out in the preceding paragraph hereof, and calling a referendum election in the district to be held on September 27, 1958. The Board had intended simply to continue such desegregation as had been established at Central High School during the preceding year.

In a separate statement on the situation, the Governor said that "Central High School can be operated on a private basis as a segregated school if the School Board wants to take such action". On September 18, 1958, he made telecast of his contemplated plans for effecting such a private, segregated operation of the Little Rock high schools.

In substance, he declared that, if the vote on September 27th was against integration, the high school buildings and facilities would become surplus properties; that they thus could be "found to be not needed for public school purposes" and could then be leased by the School Board to a bona fide private agency for the operation of private segregated schools; that such privately operated schools would not be subject to the decisions which had been rendered by the federal courts on integration, "even though the schools received aid from State and Federal sources"; that he was informed that a private, bona fide, non-profit corporation had already been formed, "for the purpose of being prepared to accept any offer that may be made by the Little Rock School Board to lease its unused high school facilities for private school purposes — if the vote is against integration on September 27th"; that he was confident that the vote at the election would be against integration; and that he was under the circumstances now calling upon the School Board "to demonstrate their good faith by immediately offering to a private group these unoccupied school buildings after the election".

An Arkansas statute, on the books since 1875, provides: "The directors may permit a private school to be taught in the district schoolhouse, * * * unless they be otherwise directed by a majority of the legal voters of the district". Ark.St.1947, § 80-518.

After the Governor's telecast, and four days before the scheduled election, the members of the School Board and the Superintendent of Schools petitioned the District Court, in the previous integration-plan proceeding (in which the court had reserved supplementary jurisdiction) for instructions on whether, in the situation and circumstances above detailed, they would be guilty of a violation of any of the orders which the court had made in such proceeding, if they should "lease said school properties to private institutions for conducting a high school program on a racially segregated basis". The petition expressly pointed out the fact that, "If leases are consummated with such private organizations, (these) will then, upon accreditation of the schools (by the State Board of Education) be entitled to state financing under the terms of Act 5 of 1958". The petition also frankly stated that appellees were willing to enter into such leases and would officially engage in negotiations to this end, "if in so doing they will not subject themselves to charges of contempt for having violated a directive order of this Court".

The court denied the petition for instructions, on the ground that it would be judicially improper for it to engage in rendering a mere advisory opinion in the situation. This ruling is not here involved, and the incident is referred to only because of the relation of the statements made by the Board in the setting which prompted appellants' injunction request.

The application of appellants to the District Court for an injunction was made on September 24th, the day following the filing of the School Board's petition for instructions. It alleged that the Little Rock Private School Corporation had by that time been formed, with the object of taking over and operating Central High School and other of the closed high schools, on a racially segregated basis, as "private schools", and that appellees had been giving consideration to and contemplated leasing such properties to the Corporation for such purpose, in the event that the vote in the September 27th election was against integration, so that the high schools would, insofar as their operation by the District was concerned, be required by the prescription of Act No. 4 to remain...