381 F.2d 252 (8th Cir. 1967), 18527, Raney v. Board of Ed. of Gould School Dist.

Docket Nº:18527.
Citation:381 F.2d 252
Party Name:Arthur Lee RANEY et al., Appellants, v. The BOARD OF EDUCATION OF the GOULD SCHOOL DISTRICT, Appellee.
Case Date:August 09, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 252

381 F.2d 252 (8th Cir. 1967)

Arthur Lee RANEY et al., Appellants,

v.

The BOARD OF EDUCATION OF the GOULD SCHOOL DISTRICT, Appellee.

No. 18527.

United States Court of Appeals, Eighth Circuit.

Aug. 9, 1967

Rehearing Denied Sept. 18, 1967.

Page 253

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

Robert V. Light, Little Rock, Ark., for appellee; Herschel H. Friday, Little Rock, Ark., on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and GIBSON, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This timely appeal is taken from final judgment dismissing a class action brought by plaintiffs as parents and next friends of sixteen minor Negro students attending grades five, ten and eleven of the defendants' district Negro school against the Board of Education of the Gould School District pursuant to 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. § 1983, seeking injunctive relief. The prayer of the original complaint is to enjoin the defendant Board from:

'(1) requiring minor plaintiffs and all other similarly situated to attend the all-Negro Field School for the 1965-66 School term;

(2) providing public school facilities for Negro pupils in Gould, Arkansas which are inferior to those provided for white pupils;

(3) expending any funds for operation or improvement of the predominantly white Gould Public Schools until and unless the Field School is made substantially equal in facilities, equipment, curriculum, advantages, opportunities,

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etc. to the predominantly white Gould schools; and

(4) otherwise operating a racially segregated school system.'

At the close of all of the evidence, plaintiffs amended their complaint by striking item (3) above set out and substituting in lieu thereof:

'the prayer to have any future high school facilities in the Gould School System constructed on or near the premises of the present Gould high school, which is now attended predominantly by white pupils, * * *.'

Upon appeal, plaintiffs again altered their position and urged that the Board be restrained from using the new building construction as a replacement for the Field High School and than instead, the building be converted into a unit of a completely integrated grade school. The issue last stated is raised for the first time upon appeal and was not presented to the trial court and no opportunity was afforded the parties to offer evidence on the feasibility of such a plan, nor was the trial court given any opportunity to pass thereon. It is fundamental that issues not presented to or considered by the trial court cannot be considered upon appeal.

The trial court, in our view, states the issues properly raised by this appeal as follows:

'The question before the Court is actually two pronged. First, is this Court authorized to tell the school board where to build or not to build a new school building, and second, should the Court do so under the circumstances in this case?'

The trial court on the first issue recognized that under appropriate circumstances a constitutionally discriminatory construction program could be enjoined, stating:

'However, this Court is not prepared to state that there might not be circumstances under which the Court would be justified in taking action such as that the plaintiff is asking for in this case. Assuming without deciding that this is an area of school policymaking which the Court could enter to protect the civil rights of the school district's citizens, this Court does not feel that the circumstances of this case merit such action.'

Our recent decision in Kelley v. Altheimer, 8 Cir., 378 F.2d 483 (April 12, 1967), recognizes that a court may enjoin a construction program which is designed to perpetuate segregation. The supporting facts in Altheimer are far stronger than those in our present case. We recognized in Altheimer that injunctive relief against construction could not be effective after building is constructed. Such appears to be the situation here. 1

The trial court as a basis for its refusal to exercise its equitable powers to grant the injunction requested states:

'Here the school board has begun a desegregation program for all twelve grades without having been ordered to do so by a court. The delay in the program for the three grades involved in this case is temporary and future plans call for complete integration. The fact that the Negro children who are attending the previously all-white schools are participating in the school's curricular and extra-curricular activities seems to indicate that this plan is more than a pretense or sham to meet the minimum requirements of the law.

'The availability of campus area in one place and not the other, the lack of funds to procure more land, and the necessity of locating the new high school near the existing gymnasium designed to accommodate the high school students are all valid reasons for the administration's decision as to the location of the new high school. There is no reason to assume that only

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Negro students will attend the new high school. In fact, it is a virtual certainty with the progress of integration, building space limitations alone will insure that the new school will be integrated. Certainly these reasons, coupled with the school board's recent initiative toward integrating the schools, do not indicate that the board's plans are solely motivated by a desire to perpetuate or maintain or support segregation in the school system. Therefore, the Court will not usurp the normal managerial prerogative of the school board to the extent of determining where the new building will be located.'

We note that the Field High School which was being replaced is the oldest building in the school system. The bulk of the evidence in this case is directed at its many deficiencies and dilapidated condition. The Negro segment of the community had for years been insisting that a replacement of such building be made and continued to assert such position throughout the trial and at least until the amendment made at the close of all of the evidence hereinabove set out. Reference is made in plaintiffs' testimony to an alleged prior action which purported to require the Board to give priority to the upgrading of the Field High School and the Board's commitment so to do. The evidence discloses that the district is weak financially and that prior construction was largely prevented by statutory limitations upon bonded indebtedness. It would appear that such obstacle would be cleared up by the completion of payments on prior bonded indebtedness by 1967. There is absolutely nothing in the record to indicate the nature of the plans for...

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