378 F.2d 483 (8th Cir. 1967), 18528, Kelley v. Altheimer, Arkansas Public School Dist. No. 22

Docket Nº:18528.
Citation:378 F.2d 483
Party Name:Moses KELLEY, on Behalf of Himself and His Minor Children, Moses Kelley, Jr., et al., Appellants, v. The ALTHEIMER, ARKANSAS PUBLIC SCHOOL DISTRICT NO. 22, a Public Body Corporate, and The J. E. Stowers Construction Company, Appellees.
Case Date:April 12, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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378 F.2d 483 (8th Cir. 1967)

Moses KELLEY, on Behalf of Himself and His Minor Children, Moses Kelley, Jr., et al., Appellants,

v.

The ALTHEIMER, ARKANSAS PUBLIC SCHOOL DISTRICT NO. 22, a Public Body Corporate, and The J. E. Stowers Construction Company, Appellees.

No. 18528.

United States Court of Appeals, Eighth Circuit.

April 12, 1967

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Michael Meltsner, New York City, for appellants; Jack Greenberg and James M. Nabrit, III, New York City, John W. Walker, Little Rock, Ark., and Delector Tiller, Little Rock, Ark., on the brief.

Robert V. Light, Little Rock, Ark., for appellees; Herschel H. Friday, Little Rock, Ark., and E. Harley Cox, Jr., Pine Bluff, Ark., on the brief.

Before MATTHES, LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

On February 15, 1966, the appellants, Negro citizens and residents of Altheimer Public School District No. 22, Jefferson County, Arkansas, initiated a class action suit in equity pursuant to Title 42, U.S.C. § 1983. In their Complaint, they asked for a preliminary and permanent injunction enjoining the Altheimer Public School District and the J. E. Stowers Construction Company from continuing plans to construct, and from constructing, separate elementary schools for white and Negro students. 1 They also asked for a temporary and permanent injunction enjoining the School District from continuing the policy, practice, custom and usage of assigning pupils, faculty and administrative staff on a racially discriminatory basis and from continuing any policy or practice of racial discrimination in the operation of the Altheimer School District. The case was argued before the Honorable J. Smith Henley, Judge of the United States District Court for the Eastern District of Arkansas, Pine Bluff Division, on March 31, 1966. Judge Henley dismissed the Complaint in a momorandum decision handed down June 3, 1966. The decision was subsequently appealed to this Court.

The Altheimer School District includes the town of Altheimer together with a

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substantial rural area of Jefferson County in the vicinity of the town. It has a 67% Non-white population with a high concentration of poverty-stricken families-- a majority of whom are Negro. 2 The District could not be operated in its present manner without substantial federal funds. In 1965-66, the District had a total enrollment of 1,408 students, of whom 741 were elementary students and 667 were junior and senior high students.

Prior to the 1965-66 school year, the District maintained totally racially segregated schools. Negro students were taught in a complex known as the Martin School, and white students in a complex known as the Altheimer School. 3 The two building complexes are within six blocks of each other. Both sites serve students from grades one through twelve. About two-thirds of the students are transported to school by bus from outlying areas. Each school operates its own bus system with the result that the bus routes are frequently duplicated. The administrative staff of the District is entirely white except for the Negro principal of Martin High School. The faculty, before 1965-66, was completely segregated, with white students taught only by white teachers and Negro students only by Negro teachers. 4

In response to the enactment of Title VI of the Civil Rights Act of 1964 and the promulgation of guidelines by the Department of Health, Education and Welfare (H.E.W.) implementing Title VI, the Altheimer School District submitted a voluntary plan of desegregation 5 in April, 1965, which, after amendment, was finally approved by the Commissioner of Education and went into operation in September, 1965. The plan adopted was the so-called 'freedom of choice' 6

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plan under which students may express choices for assignments to a particular school, the assignments to be honored as a matter of course unless they result in overcrowding. In the event of overcrowding or a failure to exercise a choice, a student is supposed to be assigned to the school nearest his home where space is available. All grades are afforded a choice each year. The plan also requires the Board of Education to take affirmative steps to implement a desegregation plan. 7

During the first year's operation of the 'freedom of choice' plan (1965-66), two Negro elementary students and four Negro high school students requested assignment to Altheimer. No white students requested assignment to Martin. All the Negro requests were granted.

In 1966-67, twenty-three Negro students requested and were granted admittance to Altheimer Elementary School and twenty-four Negro pupils requested and were granted admittance to the Altheimer High School. No white students requested a transfer to Martin, which remained 100% Negro.

Apart from a few white teachers who teach in the all-Negro school, the faculty of the District remains segregated.

The trial court supported its dismissal of the appellants' Complaint on the following grounds:

(1) The Board of Education, by adopting a 'freedom of choice' plan under which the doors of the formerly all-white school were opened to Negroes, satisfied the requirements of the Fourteenth Amendment. If Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955) is still good law, the Commissioner of Education is going further than the Constitution requires by seeking to fully integrate public school student bodies and faculties and to eliminate dual school facilities.

(2) The H.E.W. Guidelines adopted by the School District (the Court stated it assumed they would be enforced and obeyed) are a prompt and reasonable start towards the elimination of unconstitutional racial discrimination within a reasonable time and is within the tolerance, if not beyond, the requirements of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)

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and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

(3) The responsibility for the enforcement of the guidelines rests with the Department of Health, Education and Welfare. Since the guidelines may go beyond what the Constitution requires by requiring that there be full integration of public school student bodies and faculties and the elimination of dual facilities, the Court will leave their enforcement to H.E.W.

VALIDITY OF FREEDOM OF CHOICE PLAN

The appellants do not challenge the constitutionality of 'freedom of choice' plans per se; 8 rather, they urge that the plan is inadequate to accomplish desegregation in this School District and, thus, that the lower court erred in dismissing the Complaint.

At the outset, we emphasize that this Court has rejected the Briggs approach. Judge Gibson, writing in Kemp v. Beasley, 352 F.2d 14, 21 (8th Cir. 1965), stated:

'In support of their 'freedom of choice' plan the Board places great reliance in the dicta found in Briggs v. Elliott, 132 F.Supp. 776, 777 (E.D.S.C.1955) to the effect 'the Constitution, in other words, does not require integration. It merely forbids discrimination.' Therefore, they argue that as long as the Negro is not required to attend the Negro school his constitutional rights have not been violated.

'We cannot accept the position advanced by the Board on this matter. The dictum in Briggs has not been followed or adopted by this Circuit and it is logically inconsistent with Brown and subsequent decisional law on the subject. This well known dictum may be applicable in some logical areas where geographic zones permit of themselves without discrimination a segregated school system, but must be equally inapplicable if applied to school systems where the geographic or attendance zones are bi-racially populated. * * *' See Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960).

The Briggs dictum also been rejected by the Fifth Circuit, United States et al. v. Jefferson County Bd. of Education et al., Civil No. 23345, 1966, 372 F.2d 836, rehearing held March, 1967, 380 F.2d 385; Singleton v. Jackson Municipal Separate School District 348 F.2d 729, 730, n. 5 (5th Cir. 1965); the Tenth Circuit in Board of Education of Oklahoma City Public Schools et al. v. Dowell et al., Civil No. 8523, 10th Cir., 1967 375 F.2d 158 and the Third Circuit in Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960), cert denied 364 U.S. 802, 81 S.Ct. 27, 5 L.Ed.2d 36 (1961).

Secondly, we have made it clear that a Board of Education does not satisfy its constitutional obligation to desegregate by simply opening the doors of a formerly all-white school to Negroes. 9

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Thus, in cases where we have approved the 'freedom of choice' plan, we have required (1) that students have the right to an annual choice and that if they fail to make a choice, they be assigned to a school on a non-racial basis, (2) that Boards of Education refrain from interfering with the student's 'freedom of choice,' and (3) that faculties and operating staffs be desegregated. See e.g., Kemp v. Beasley, supra; Clark v. Board of Education of Little Rock School Dist., 369 F.2d 661 (8th Cir. 1966).

Thirdly, this Court has stated that it will rely heavily on H.E.W. Guidelines. In this case, however, the record indicates that compliance has been less than complete. 10

Finally, this Court has made it clear that under their continuing responsibility to protect the constitutional rights of parties who appeal to it for protection, District Courts should retain jurisdiction in school segregation cases to insure (1) that a constitutionally acceptable plan is adopted, and (2) that it is operated in a constitutionally permissible fashion so that the goal of a desegregated, non-racially operated school system is rapidly and finally achieved. Clark v. Board of Education of Little Rock School Dist., supra 369 F.2d at 671.

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The appellee School District will not be fully desegregated nor the appellants assured of their rights under the...

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