369 F.2d 661 (8th Cir. 1966), 18368, Clark v. Board of Ed. of Little Rock School Dist.

Docket Nº:18368.
Citation:369 F.2d 661
Party Name:Delores CLARK et al., Appellants, v. The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Appellees.
Case Date:December 15, 1966
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 661

369 F.2d 661 (8th Cir. 1966)

Delores CLARK et al., Appellants,

v.

The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Appellees.

No. 18368.

United States Court of Appeals, Eighth Circuit.

December 15, 1966

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[Copyrighted Material Omitted]

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Henry M. Aronson, New York City, for appellants. John W. Walker and Harold Anderson, Little Rock, Ark., and Jack Greenberg, James M. Nabrit, III, and Michael Meltsner, New York City, were on the printed brief.

Herschel H. Friday, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for appellees and filed printed brief.

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Before VOGEL, Chief Judge, GIBSON, Circuit Judge, and REGISTER, District Judge.

GIBSON, Circuit Judge.

This appeal presents another of a long series of complaints against the operation of the Little Rock School system and specifically concerns the constitutionality of a school desegregation plan submitted by the Board of Education and approved by the United States District Court for the Eastern District of Arkansas. The appellants are five Negro children acting for themselves and as representatives of a class of children similarly situated. The desegregation plan is known generally as a 'freedom of choice' plan.

The present case has numerous ancestors that have preceded it before this and other courts. The litigation began ten years ago with the filing of a class action seeking the desegregation of the public schools of Little Rock, Arkansas, Aaron v. Cooper, 143 F.Supp. 855 (E.D.Ark.1956). The Board in that case proposed a gradual desegregation plan, to be fully implemented by 1963, based upon geographical attendance zones. We approved that plan in Aaron v. Cooper, 243 F.2d 361 (8 Cir. 1957), with the understanding that the District Court would retain jurisdiction to insure the effectuation of the transition to a racially nondiscriminatory school system. The attempted implementation of the plan, however, resulted in the well-known difficulties at Central High School in 1957. Continued official resistance to the law resulted in the enjoining as part of the original Aaron case of various persons, including the Governor of Arkansas, from interfering with the desegregation steps. Thomason v. Cooper, 254 F.2d 808 (8 Cir. 1958); Faubus v. United States, 254 F.2d 797 (8 Cir. 1958), cert. denied 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68. We were then forced to deny an attempt to place a two and one-half year moratorium on integration. Aaron v. Cooper, 257 F.2d 33 (8 Cir. 1958), affd. 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. An 'emergency session' of the Arkansas legislature in August 1958 resulted in the enactment of legislation under which the Governor closed the Little Rock schools for the 1958-1959 school year, which closing was subsequently held unconstitutional. Aaron v. McKinley, D.C., 173 F.Supp. 944 (3-judge Court 1959), affd. sub nom. Faubus v. Aaron, 361 U.S. 197, 80 S.Ct. 291, 1 L.Ed.2d 237. Thereafter, the Board sought to lease the public school facilities to a private school system operating on a racially segregated basis. This Court enjoined that transfer Aaron v. Cooper, 261 F.2d 97 (8 Cir. 1958).

The Board continued to fight on. The 1959-1960 school year found the Board assigning students to schools on the basis of criteria found in an Arkansas pupil assignment law. §§ 80-1519 through 80-1547 and 80-1234 Ark.Stats., 1947, Vol. 7 (1960 Replacement). We held in Parham v. Dove, 271 F.2d 132 (8 Cir. 1959) that this statute was not unconstitutional on its face. Thereafter, a number of students challenged the deviation from the geographical boundaries, and we then held that since the deviations were due to racial discrimination the application of this plan was unconstitutional; and we again called the Board and its representatives' attention to the continuing injunction in the first Aaron case requiring them to "take affirmative steps, on their own initiative' to facilitate and accomplish operation of the school district on a nondiscriminatory basis.' Norwood v. Tucker, 287 F.2d 798, 809 (8 Cir. 1961).

Thereafter, the Board adapted its use of the pupil assignment law to give total consideration to choices, which were given to students at certain grade levels. During the spring of 1964 a choice was given to grades one, four, seven, and ten. Over 180 Negro pupils made choices of assignment to former all-white schools. Most of the requests were granted, but the request of plaintiff Moore was denied.

Shortly before the beginning of school in September 1964 Roosevelt Clark moved his family to Little Rock and sought to enroll his four children in nearby predominately white schools. Clark's wife initially was advised in a telephone conversation

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with the Board's administrative staff to enroll her children in a named white elementary school and a named white junior high school in her general residential area. Upon attempting to do so, she was refused and her four children assigned to 'Negro' schools near their home.

Because of the denial of their choices, the Clark and Moore children sought to intervene in the Norwood v. Tucker action, which was still within the jurisdiction of the District Court. Intervention was denied because of the presentation of different issues. Thereafter, this suit was filed. The Clark children were, after this trial was concluded (January 6, 1966) but before judgment on their complaint, voluntarily assigned to the schools of their choice; and, by Order of the District Court the Moore child was allowed to transfer to the school she desired to attend.

The Board formally abandoned use of the pupil assignment law on April 22, 1965 and adopted a 'freedom of choice' type plan. During the litigation the plan was amended on November 26, 1965 in an attempt to make the final plan conform with the requirements set forth in Kemp v. Beasley, 352 F.2d 14 (8 Cir. 1965). It was approved as amended by the District Court. With the individual plaintiffs attending the schools of their choice and the Board's adoption of a plan deemed by the Court to be constitutional, the action was dismissed.

Plaintiffs are attacking the approval of the Board's plan and the dismissal of the action. As we understand plaintiffs' argument they are challenging the constitutionality of a 'freedom of choice' plan under the circumstances of this case. It is their position that a 'freedom of choice' plan is, at most, a transitional plan. Owing to the Board's prior commitment to a geographical boundary plan and its failure to use 'deliberate speed' in the implementation of the Brown decision, they contend a 'freedom of choice' plan should not be approved. Further they point to statistics which indicate that a 'freedom of choice' plan is, in fact, not achieving an integrated school system.

Plaintiffs also attack the particulars of this plan. Plaintiffs object to the lack of provisions for notice. They object to the 'lateral transfer' provision because it fails to require the student to make an annual choice, and they object to the lack of positive guidelines set up to implement staff desegregation.

THE CONSTITUTIONALITY OF THE 'FREEDOM OF CHOICE' METHOD

We do not believe that a general attack on the constitutionality of the 'freedom of choice' method of ending school segregation is well taken at this time. This method has been tentatively accepted by this and other courts as well as the Department of Health, Education, and Welfare (H.E.W.). Kemp v. Beasley, supra. Of course, this is not to say that such a system is not open to unconstitutional abuse in its individual application, nor is it to say that should the future prove this method incapable of fully and adequately implementing the requirements of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) it may not be cast aside by the courts. Out approval of a 'freedom of choice' plan in Kemp was necessarily provisional; the proviso being that the plan be so conceived and so operated by the Board that it would in fact as well as theory afford full constitutional rights to every Negro child to attend a school in a school system operated on a nonracial basis. An adequate 'freedom of choice' plan that accords with the H.E.W. guidelines and provides a meaningful annual choice, easily indicated, we think, could prove useful in achieving a nonracially operated school system. Of course, the Board must actually in good faith adhere to the spirit as well as the letter of this type of plan and affirmatively take all steps necessary to afford the constitutional guarantee of equal protection to all pupils under the Court's sanction of immediately setting up single geographic school zones on a completely

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non-racial basis as was originally contemplated in the Board's proposed and approved plan in the first Aaron case. Dual attendance zones have no place in a constitutionally operated school district under the rulings of Brown and its progeny. We reiterate, as stated in Kemp at page 22 of 352 F.2d: 'Finally, the fully effective plan must eliminate bi-racial attendance zones and the assignment of students to schools operated on such a segregated basis.' At this point in time, however, we do not believe that this 'freedom of choice' plan has proved a failure.

The end of segregation in Little Rock has been marked by anything but 'deliberate speed.' Attempts to end segregation have been countered by tactics of delay, evasion, legislative and executive interference, and disobedience to the law. Nonetheless, we do not believe the Board's past history unalterably bound it to the continued use of geographical boundaries, Norwood v. Tucker, 287 F.2d 798, 802 (8 Cir. 1961), nor should it prevent initiation of a plan that would presently remove all the constitutionally objectionable barriers to attendance of schools on a non-segregated basis. Many of the problems encountered are not of the...

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