Cato v. Parham, PB-67-C-69.

• Decision Date: 26 March 1969
• Docket Number: No. PB-67-C-69.,PB-67-C-69.
• Citation: 297 F. Supp. 403
• Parties: Samuel Wayne CATO et al., Plaintiffs, v. Lee PARHAM et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

297 F. Supp. 403

Samuel Wayne CATO et al., Plaintiffs, v. Lee PARHAM et al., Defendants.

No. PB-67-C-69.

United States District Court E. D. Arkansas, Pine Bluff Division.

March 26, 1969.

George Howard, Jr., Pine Bluff, Ark., Barbara A. Morris, New York City, for plaintiffs.

Robert V. Light, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

HENLEY, Chief Judge.

This school desegregation case involving Dollarway School District No. 2, Jefferson County, Arkansas, is before the Court on the School Board's latest plan to desegregate the District's schools. The Board now proposes to assign students on the basis of residential attendance zones to be described. The plaintiffs, Negro students and patrons of the District, object to the Board's proposal contending that it will perpetuate de facto racial segregation. Plaintiffs urge that the District's schools be restructured so that all students in the elementary grades, 1-6, will receive instruction at the formerly all white Dollarway School complex and so that all students in the secondary grades, 7-12, will receive instruction in the still all Negro Townsend Park school complex. Plaintiffs further propose that the Pinecrest Elementary School be used as a facility for providing special instruction to students in need thereof. Defendants contend that the proposals of plaintiffs are not feasible.

The matter has been tried to the Court, and this memorandum incorporates the Court's findings of fact and conclusions of law.

On July 25, 1968, the Court filed a memorandum opinion and entered a decree permitting the District to continue to operate throughout the current school year on the freedom of choice method of student assignments. However, the Court found that freedom of choice had not proved and would not prove effective as a method of disestablishing the unconstitutional dual system of racially identifiable schools which has existed in the District and replacing it with a unitary system of schools not racially identifiable. And the Court ordered the Board to come up with a plan for a unitary system to go into effect in September of the current year. Cato v. Parham, E.D.Ark., 293 F.Supp. 1375.

Plaintiffs appealed from so much of the Court's decision as permitted the District to continue to operate under freedom of choice during the 1968-69 school year. On November 8, 1968, the Court of Appeals affirmed the ruling of this Court but made it clear that the dual system would have to come to an end with the opening of school in September 1969. Cato v. Parham, 8 Cir., 403 F.2d 12.

In connection with the appeal counsel for the District assured the Court of Appeals that the Board was considering a geographical zoning plan which would be free from "gerrymandering," and that the Board would produce a plan for a unitary system. The Court of Appeals accepted that assurance. 403 F.2d at 16.

On November 29, 1968, the District filed a report setting forth the plan now under consideration and accompanied that report with maps showing the proposed attendance zones for secondary school students and the proposed zones for elementary school students. On December 10, 1968, plaintiffs filed their objections to the plan and their counterproposals which have been described.

Before setting out and discussing the Board's plan it is necessary to describe the District and the racial distribution of its residents.

The Dollarway District which is located in the Dollarway community on the northern outskirts of the City of Pine Bluff consists of the District proper and the so-called Hardin Area which is located some miles to the northwest of the District proper. The Hardin Area takes its name from the Hardin community located on U. S. Highway No. 270 which runs between Pine Bluff and Sheridan. The Hardin Area is separated from the Dollarway District proper by portions of the White Hall School District. The history of the inclusion of the Hardin Area in the Dollarway District is that in 1948 the school or a school operated by the then Hardin School District was destroyed by fire; the patrons of the Hardin District decided to dissolve that District and asked that its territory be incorporated into the Dollarway District, which was done.

The Dollarway community derives its name from the old Dollarway Road which ran from Pine Bluff to Little Rock and which later became U. S. Highway No. 65. Highway 270 and Highway 65 unite in the northwestern part of the District and run together to the District's southern boundary. The parties have referred to the combined highways as "Highway 65," and the Court will so refer to them.

When Highway 65 reaches a point at which it intersects Blake Street, it turns due south and runs along that street to the southern boundary of the District. Blake Street itself runs along a north-south half section line. If that line is extended northward from the point where Highway 65 comes into Blake Street to the Arkansas River, the line, as extended, roughly bisects the District proper.

Highway 65 is an arterial thoroughfare bordered on both sides by commercial establishments of various kinds. It forms a logical boundary between what are roughly the east and west halves of the District proper. Somewhat to the east of the Highway are the tracks of the main line of the Missouri Pacific Railroad running from Little Rock to New Orleans. According to the Court's understanding, there are grade crossings over the railroad tracks but no overpasses or underpasses. It is recognized that both the Highway and the railroad tracks constitute hazards for young children going to and from school on foot.

Negroes residing in the District, including Negroes of public school age, slightly outnumber the white residents of the District, including white students. The residential pattern of the District is, and historically has been, racially segregated. The bulk of the white population resides west of Highway 65, and the bulk of the Negro population resides east of the Highway and east of the railroad tracks, and as one proceeds east in the direction of the Townsend Park schools the concentration of Negroes in comparison to whites becomes greater. There are small enclaves of Negroes who live west of the Highway, and small enclaves of whites who live to the east thereof; it is clear, however, that there are more Negroes living west of the Highway than there are whites living east of the Highway. The population of the Hardin Area is made up almost entirely of white people.

Prior to the Brown decisions of 1954 and 1955 the District was required by Arkansas law to establish and operate separate schools for white and Negro students, and students were required to attend the schools set aside for members of their race.

Apart from that requirement, public schools in Arkansas, particularly elementary schools, have been located traditionally in accordance with the "neighborhood school" concept; that is to say, schools have been located in the vicinity of the homes of the children to be served. And that concept was followed generally in establishing racially segregated schools in districts in which the population was in fact racially segregated with identifiable Negro neighborhoods and identifiable white neighborhoods. The result was that in such a district Negro schools would tend to be established in Negro neighborhoods and white schools would tend to be established in white neighborhoods.

The schools of the defendant District were located in accordance with the concept and practice just mentioned. The Dollarway High School and the Dollarway Elementary School for white students were located on a single campus abutting Highway 65 on the west. The Townsend Park High School and the Townsend Park Elementary School for Negro students were located substantially to the east of the Highway. The two complexes are about a mile apart.

In later years, and apparently after this litigation had its genesis in 1959, the Pinecrest Elementary School was built on a site some distance west of the Dollarway School complex.¹

From 1959 through 1966 the Board undertook to comply with the mandate of Brown by applying assignment criteria to Negro students desiring to attend formerly all white schools; that application brought about a token desegregation of the Dollarway complex, but no white students ever expressed any desire to go to Townsend Park and none were ever sent there.

Under pressure engendered by the Civil Rights Act of 1964 the Board reluctantly adopted a limited freedom of choice plan for the assignment of students which this Court rejected on sight. The Board then adopted the plan under which it is presently operating. That plan has brought about a minimum of desegregation in the Dollarway complex and in the Pinecrest School, but the Townsend Park schools are still attended by Negroes only and are still identifiable as Negro schools.² It was in those circumstances that the Court struck down freedom of choice in 1968.

The Board's present plan sets up five attendance zones which the Court finds it convenient to identify as follows:

Zone 1: Dollarway High School (Grades 7-12).

Zone 2: Townsend Park High School (Grades 7-12).

Zone 3: Dollarway Elementary School (Grades 1-6).

Zone 4: Townsend Park Elementary School (Grades 1-6).

Zone 5: Pinecrest Elementary School (Grades 1-5).³

Under the plan, the boundary between Zone 1 and Zone 2 and between Zone 3 and Zone 4 is the north-south line of Highway 65 as extended north to the Arkansas River. Everything west of that line is in Zone 1 and 3, and everything east of the line is in Zone 2 and 4.

Zone 5 is itself a rectangular enclave within Zone 3 and lies, of course, west of Highway 65. Zone 5 is bounded on the south by the south line of the District, on the west by the west line of the District, and on the north by the north line of the District. The east line of the zone consists of Hutchinson Street from Cheatham Street to the south line of the...