Kemp v. Beasley

• Citation: 352 F.2d 14
• Decision Date: 27 October 1965
• Docket Number: No. 18050.,18050.
• Parties: Dossie Wayne KEMP et al., Appellants, v. Leroy BEASLEY et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

352 F.2d 14 (1965)

Dossie Wayne KEMP et al., Appellants, v. Leroy BEASLEY et al., Appellees.

No. 18050.

United States Court of Appeals Eighth Circuit.

October 27, 1965.

Derrick A. Bell, Jr., New York City, made argument for appellants and filed brief with George Howard, Jr., Pine Bluff, Ark., and John W. Walker, Little Rock, Ark.

Herschel H. Friday, Little Rock, Ark., made argument for appellees and filed brief with Robert V. Light, Little Rock, Ark., and William I. Prewett, El Dorado, Ark.

Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.

GIBSON, Circuit Judge.

This appeal from the United States District Court for the Western District of Arkansas challenges an amended and substituted desegregation plan submitted by the school district of El Dorado, Arkansas, and approved by the District Court.

The appellants plaintiffs below (hereinafter referred as plaintiffs) are Negro children living in and attending school in El Dorado School District Number 15. This action was brought by their parents as next friends and was prosecuted as a class action purporting to represent all the Negro school children of the school district. Defendants below are the Board of Directors of the El Dorado School District Number 15, the Superintendent of the School District, and the School District as a corporate entity, and will be referred to hereafter as the Board.

Prior to and including the 1964-65 school year it was the practice of the District of El Dorado, Arkansas to operate a racially segregated school system. The white children of the community were assigned to all-white schools and the Negro children were assigned to all-Negro schools. The white schools were staffed by white teachers and the Negro schools by Negro teachers. The District also operated a racially segregated school bus system.

The El Dorado School District serves approximately 5,000 white and 2,200 Negro pupils. The system has two senior high schools, one for Negroes and one for whites. There are two junior high schools serving white students and one junior high for Negroes. Of the thirteen elementary schools seven are for whites and six are for Negroes. The system employs 314 teachers, 232 of which are white and 82 are Negro.

Both Negro and white schools are operating at less than capacity enrollment. There is some, but not a large difference in the pupil-teacher ratio between white and Negro schools. All of the Negro and white schools are fully and equally accredited, and the Negro and white teachers are on the same salary scale. It should be pointed out, however, that there is a larger percentage of white teachers with masters degrees, and the white high school offers the student a considerably broader curriculum than does the Negro high school.

All of the schools have in practice been operated on a completely segregated basis with apparent dual attendance zones.

Prior to the 1964-65 school year plaintiffs below made application to the school district for transfer from their Negro school to a white school. This request was denied. Thereafter, plaintiffs instituted this action in the Federal District Court seeking injunctive relief from this discrimination.

Following the first hearing of this case in January 1965 the trial court found that plaintiffs were entitled to relief and directed the defendants to eliminate segregation with all deliberate speed. The Court then granted defendants the right to present a plan for desegregation to the Court. A plan was duly presented to the Court, but was subsequently revised and later further amendments were added, each time making the plan more liberal. In a decree dated April 29, 1965 this revised and amended plan was approved by the trial court over objection by the plaintiffs. Plaintiffs now appeal to this Court seeking a reversal of the decree approving this plan.

The Amended and Substituted Plan for desegregation as approved by the trial court does not contemplate that the school board will on its own motion assign any Negro children to presently all-white schools or any white children to presently all-Negro schools; nor does it set up any fixed attendance areas based upon residence. Rather the School Board plans to eliminate segregation by giving students of both races an opportunity to express, through choice of their parents, schools which they desire to attend. Proper expression of this choice will be honored as a matter of course unless to honor all of such expressions would result in overcrowding of particular schools. In the event of overcrowding a particular school, it will be solved by a nondiscriminatory means with preference to be given to the students living closest to the school. Those students rejected because of overcrowding will be given a second choice which will be honored as a matter of course, unless, of course, the second choice school is likewise overcrowded.

The mechanics of the choice system is simple. Sometime prior to the closing of the school year, notice of the right to choose schools for the coming year will be made public. The parents of the children who are entitled to make a choice for the coming year will be supplied with an alphabetical listing of all the schools of their child's grade level. The parent will make a mark by the name of the school he desires his child to attend and will return the choice to the school board. Absent problems of overcrowding, the child will be assigned to the school of his choice.

When the plan is fully effective, 1968-69, this "freedom of choice" will not be given to the student every year. During a pupil's public school career he will be given three opportunities to choose his school. The student may pick his grade school, his junior high school, and his high school. More specifically, prior to entering the first grade, the student will be allowed to pick the grade school of his choice. Once he has made this choice he must attend this school for six years. He will not be given another choice until he enters junior high school. Then prior to entering the seventh grade the student will be allowed to choose where he wishes to attend school during his seventh, eighth, and ninth grade years. Then prior to entering high school, or the tenth grade, the student may choose his high school. This is the last of the three choices given a student and he will attend his chosen high school during the tenth, eleventh and twelfth grades.

During the transitional period if the right to state a choice is not exercised, the student will be assigned to school presently attended; but it is not clear what provision is made for students who fail or refuse to make a choice of schools, after the plan is fully effected.

This plan will not go into effect immediately. Rather, a three-step transitional period is provided. The first step, the 1965-66 school year, students entering the first and second grades will be given their choice of schools. Next year, 1966-67, the students entering the fourth, fifth, and sixth grades will be given their choice of grade schools, as will the entering first graders. Students in the second and third grades had been given their choice the year before and will not be given another choice at this stage. The last step, the 1967-68 school year, will give a "freedom of choice" to grades seven, eight, nine, ten, eleven and twelve as well as the entering grade one. Thus at this point everyone in the system will be attending a school of his choice. Grades two, three, four, five and six will not be given a choice this year, 1967-68, but an opportunity to choose will have been made available in one of the preceding two years.

The plan will be in full operation for 1968-69 and starting with that year students entering the first, seventh and tenth grades will be given the right to attend the school of their choice, subject to overcrowding.

The plan demands a transportation system operated on a nondiscriminatory basis, but makes no provision for desegregation of the teaching staff. The plan also provides for lateral transfer of students to different schools upon the Board's own motion; or, upon request of pupil or parent "only in the event of unusual circumstances justifying the granting of such request."

Plaintiffs' dissatisfaction with this plan is two pronged. First, plaintiffs attack the whole "freedom of choice" method of desegregation. Such a system places the burden on the Negro to desegregate the system. Whereas the burden should be placed upon the school system to desegregate the schools which they have so long maintained in an unconstitutional manner.

Second, even admitting the "freedom of choice" method as constitutionally acceptable, as used in this plan it is not proper. The minimum guidelines set up by the H.E.W. department to entitle school districts to federal funds should be strictly followed by the courts. If these guidelines are not followed, the reluctant school distict is rewarded for its failure to promptly act under its own initiative. The specific objections or points in which this plan fails to measure up to the H.E. W. standards are as follows:

1. The transitional period does not take enough grades initially. Not only should the two lower grades be given the "freedom of choice," but this freedom should have been extended to the last two grades, with a total of at least four grades every year being given the choice. Failure to do this condemns many to completing their school career in a segregated school.

2. Once in full operation the plan should provide for a "freedom of choice" at least every year. There is a natural reluctance of Negro parents to make the immediate decision to send their children to a strange school. The failure to make this choice the first year condemns the child for six years in grade school and three years in Junior and Senior High School.

3. The plan should contain a provision for desegregation of the teaching staff. This problem should not be allowed to "take...