Parham v. Dove, 16323

• Decision Date: 08 October 1959
• Docket Number: No. 16323,16327.,16323
• Citation: 271 F.2d 132
• Parties: Lee PARHAM et al., President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas; Dollarway School District Number 2, a Corporation; and Charles L. Fallis, Superintendent of Public Schools of said School District, Appellants, v. Earnestine DOVE, a Minor, Age 16, by her Father and Next Friend, et al., Appellees. Earnestine DOVE, a Minor, Age 16, by her Father and Next Friend, et al., Appellants, v. Lee PARHAM et al., President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F.2d 132 (1959)

Lee PARHAM et al., President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas; Dollarway School District Number 2, a Corporation; and Charles L. Fallis, Superintendent of Public Schools of said School District, Appellants, v. Earnestine DOVE, a Minor, Age 16, by her Father and Next Friend, et al., Appellees.

Earnestine DOVE, a Minor, Age 16, by her Father and Next Friend, et al., Appellants, v. Lee PARHAM et al., President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, et al., Appellees.

Nos. 16323, 16327.

United States Court of Appeals Eighth Circuit.

October 8, 1959.

COPYRIGHT MATERIAL OMITTED

Robert V. Light and Herschel H. Friday, Jr., Little Rock, Ark., for Lee Parham, et al.

Robert L. Carter, New York City, and George Howard, Jr., Pine Bluff, Ark., for Earnestine Dove, et al.

Bruce Bennett, Atty. Gen., for the State of Arkansas as amicus curiæ.

Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and MATTHES, Circuit Judges.

JOHNSEN, Chief Judge.

Three Negro students (16, 13 and 12 years of age) sought, on the ground of existing segregation, to have the court order their immediate admittance to a particular school, in Dollarway School District Number 2, of Jefferson County, Arkansas, without regard to the provisions of the Arkansas Pupil Assignment Law of 1956,¹ which was in effect at the time the suit was instituted, or to the provisions of the Arkansas Pupil Placement Act of 1959,² which was in effect at the time the action came to trial. Part of the relief for which the plaintiffs prayed was to have the legislative measures declared to be unconstitutional.

Because of the demand for a declaration of unconstitutionality, a three-judge district court was constituted under 28 U.S.C.A. §§ 2281 and 2284. That court, on convening, felt that both the preceding statute and the superseding statute,³ had to be legally regarded as not being unconstitutional facially, and that there was accordingly no occasion for a three-judge court to hear the matter. It therefore dissolved itself and referred the case back to the individual judge, on whose docket it had arisen, for trial and determination.

On subsequent trial, the single-judge court entered a decree, D.C., 176 F.Supp. 242, declaring both the 1956 and 1959 Acts to be constitutional on their face, but holding that, notwithstanding this fact, the legislative measures were not required to be given application in the situation on the question of the right of the plaintiffs to be admitted to the school involved. The court ordered the Board of Directors and the Superintendent of Schools of the District, and the District itself, as defendants, to admit the plaintiffs unconditionally to the school involved, at the opening of the 1959-1960 school year, but it directed that the defendants employ and apply the Pupil Placement Act of 1959, within the doctrine of the Brown v. Board of Education cases, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, as to the rest of the segregation situation of the District.

The principal contention which had been urged by the defendants on the trial was that the plaintiffs had not exhausted the administrative procedures and remedies, for which both the 1956 and the 1959 Acts made provision, as a requirement for obtaining an assignment of them to a different or a particular school, and as a basis for being able to claim a constitutional violation and discrimination; and that they therefore were not entitled to seek judicial relief.

The defendants took an appeal from the part of the court's decree which required them to make admission of the plaintiffs to the particular school involved, without regard to the provisions of the 1956 and 1959 Acts. The plaintiffs too took an appeal, from the holding of the court that the 1956 and 1959 Acts were constitutional on their face.

Because of the delay which otherwise seemed likely to result in the opening of the 1959-1960 school year of the District, we advanced the appeals for hearing, and they were argued and submitted to us on September 21, 1959. On that same day, after making determination, we announced our decision from the bench, affirming the court's holding on the plaintiffs' appeal, and reversing the court's holding on the appeal of the defendants.

An order was conformingly entered by us affirming the court's holding that the Acts of 1956 and 1959 were not unconstitutional on their face; reversing the court's holding to the effect that, notwithstanding this fact, the defendants were not entitled in the circumstances of the situation to have the use or benefit of the 1959 Act in determining to what school the plaintiffs had a right to be assigned for the current school year, and that plaintiffs could not be required to exhaust the administrative procedures and remedies provided by such Acts in relation to such assignment as the Superintendent of Schools might assume to make of them; and vacating the mandatory injunction which the court had issued directing the defendants to make admission of the plaintiffs to the school they sought to attend, without regard to the provisions and procedures of said Acts.

We made inquiry from the bench whether, and were given assurance by counsel for the defendants that, under the statute and the implementing regulations of the Board, there would be available an opportunity to the plaintiffs to make application for assignment to the school to which they sought to be admitted and have that application determined, in relation to the 1959-1960 school year. In this connection, we included a provision in our order that the proceeding would on remand of the cause be allowed to remain open on the records of the District Court, to permit of the filing of such supplemental complaint, if any, as might be entitled to be presented, in case of any unconstitutional application of the 1959 Act against the plaintiffs or of any other unconstitutional action on the part of the District against them.

To safeguard further against the possibility of delay in respect to the opening of the school year, we ordered that our mandate should be forthwith issued, with a reservation, however, of the right on our part to subsequently file this opinion, in fuller expression of our action and order. Since, however, it was clear that the District had not up to that time adopted any formal plan or taken any other steps publicly to disestablish segregation in the school system, we deemed it appropriate to require, and made our order provide that the defendants should be enjoined, and an injunction was directed to be issued to prevent them, from continuing to maintain the system of unconstitutional segregation, which had previously existed in the District.

In respect to our affirmance of the trial court's holding that the 1956 and 1959 Acts were not unconstitutional on their face, we deem it sufficient to make only a brief expression.

The Arkansas Pupil Placement Act of 1959 is identical with (except for a difference in one word), and apparently was copied from, the Alabama School Placement Law, which had precedingly been held, by a three-judge district court in Shuttlesworth v. Birmingham Board of Education, D.C.N.D.Ala.1958, 162 F. Supp. 372, not to be capable of being branded as unconstitutional on its face.

The Negro plaintiffs in that case were denied the admittance relief which they sought, as here, without having resorted to the administrative procedures of the Placement Law, on the grounds, as stated in the court's opinion, that it was "possible for the Act to be applied so as to admit qualified Negro pupils to nonsegregated schools", and that the court could not say, "in advance of its application, that the (Placement) Law would not be properly and constitutionally administered". At pages 381 and 382, of 162 F. Supp.

The court summarized its holding in a concluding paragraph, as follows: "All that has been said in this present opinion must be limited to the constitutionality of the law upon its face. The School Placement Law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner by the admission of qualified pupils upon a basis of individual merit without regard to their race or color. We must presume that it will be so administered. If not, in some future proceeding it is possible that it may be declared unconstitutional in its application." At page 384, of 162 F.Supp.

An appeal was taken by the plaintiffs to the Supreme Court, where the judgment was affirmed "upon the limited grounds on which the District Court rested its decision". 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145.

We shall not here detail the provisions of the Arkansas Pupil Placement Act of 1959, which has been set out in full in Footnote 4 of the trial court's published opinion, D.C., 176 F.Supp. 242. The factors which the Act authorizes to be taken into account in the assignment or placement of pupils among the public schools of the state as existing in the individual school districts thereof — and indeed which the Act says "shall be considered, with respect to the individual pupil" (emphasis supplied) — may be found also in the Shuttlesworth opinion, 162 F.Supp. at page 382, where the similar standards of the Alabama Placement Law are quoted.

Attention may, however, in passing, be called to the protective provisions of Section 9 of the Act, permitting "an exception before such Board to the final action of the Board as constituting a denial of any right of such minor guaranteed under the Constitution of the United States" 176 F.Supp. 246; authorizing the Board to give reconsideration to its action on this basis; and (beyond the right which exists in general to obtain judicial vindication of a personal constitutional violation) creating also a special remedy of...