United States v. Lovett

• Decision Date: 31 October 1969
• Docket Number: No. 19601.,19601.
• Parties: UNITED STATES of America, Appellant, v. Dale LOVETT, Norm Polk, Loyd McDougald and Jack Cornelius; Warren School District No. 1, James M. Hughes, Superintendent; John N. Scobey, Director; Charles A. Milton, Director; Gerald C. Sangster, Director; Weldon McWhirter, Director; and James Hurley, Director, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

416 F.2d 386 (1969)

UNITED STATES of America, Appellant, v. Dale LOVETT, Norm Polk, Loyd McDougald and Jack Cornelius; Warren School District No. 1, James M. Hughes, Superintendent; John N. Scobey, Director; Charles A. Milton, Director; Gerald C. Sangster, Director; Weldon McWhirter, Director; and James Hurley, Director, Appellees.

No. 19601.

United States Court of Appeals Eighth Circuit.

October 2, 1969.

Rehearing Denied October 31, 1969.

Gary J. Greenberg, Atty., Dept. of Justice, Washington, D. C., for appellant; Jerris Leonard, Asst. Atty. Gen., and David L. Norman, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D. C., and Robert E. Johnson, U. S. Atty., Fort Smith, Ark., with him on the brief and reply brief.

G. Ross Smith, Little Rock, Ark., for appellees; Robert V. Light and Herschel H. Friday, Little Rock, Ark., with him on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES, BLACKMUN, GIBSON, LAY, HEANEY and BRIGHT, Circuit Judges, En Banc.^*

PER CURIAM.

District 1 is a School District in Warren, Arkansas, with some 1,400 white students and 900 Negro students. Notwithstanding Brown I, Brown II, and their progeny, it continued to operate a totally segregated school system through the 1964-65 school year. In order to maintain eligibility for federal funds, after the passage of the Civil Rights Act of 1964, see, Green v. County School Board of New Kent County, 391 U.S. 430, 433, n. 2, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the District adopted a "freedom of choice" desegregation plan for the 1965-66 school year. The plan contemplated the continued operation of the District's two elementary and two high schools.

Progress towards desegregation under "freedom of choice" was minimal for the first three years. In the first year, eight Negro students chose to transfer to the previously all-white school in Grades 1 through 4. In the second year, 1966-1967, forty-four Negro students made a similar choice in Grades 1 through 8. In the third year, 1967-68, 110 Negro students elected to transfer to the previously all-white schools in Grades 1 through 12. During the three-year period, no white students chose the previously all-Negro schools and not more than eight of ninety teachers were assigned to schools in which their race was a minority.

In the Spring of 1967, HEW advised District 1 that unless further progress was made toward eliminating the dual structure, HEW would conduct a compliance review of the District. The review was subsequently conducted and the District informed that the "free choice had failed to adequately desegregate your dual system."

In February of 1968, HEW informed the District that it was to submit an adequate plan to eliminate the dual school system by the opening of the 1968-69 school year, unless there were administrative reasons why a unitary, nonracial school system could not be established until the 1969-70 school year. HEW further advised the District that noncompliance would result in administrative proceedings to terminate federal financial assistance.

On May 24, in response to continued prodding by HEW, District 1 adopted a revised plan. Its essential provisions were as follows:

(1) A new high school would be constructed during the 1969-70 school year, to be financed by a $600,000 bond issue to be submitted to the voters on March 11, 1969. All students in Grades 9 through 12 would attend this new high school beginning with the 1970-71 school year. All students in these grades would continue to have "freedom of choice" until the school was constructed.

(2) All students in Grades 6 through 8 would attend the formerly all-white high school beginning with the 1970-71 school year. "Freedom of choice" would continue in these grades until the specified date.

(3) All transportation furnished by the District would be operated on a desegregated basis effective September 1, 1968.

(4) Students in Grades 1 through 5 would continue to have "freedom of choice" for an indefinite period of time.

The plan was presented to HEW officials at a meeting in Warren on May 27. The HEW officials orally rejected the plan and informally advised the District that on the basis of Green v. County School Board of New Kent County, supra, decided that day, the proposed plan was unacceptable because "freedom of choice" would be continued in part.

In early June, the District submitted a revised version of the March 24 plan.¹ Both the revised plan and the earlier plan were formally rejected by HEW in mid-June because they failed to provide for a unitary school system at the elementary level and because the District failed to justify the postponement of a unitary system in Grades 7 through 12 beyond the 1968-69 school year.

The District adopted another plan and submitted it to HEW on June 27, 1968. It was rejected on the grounds that it too delayed the establishment of a unitary system without sufficient reason.

The District was then notified that its file was being forwarded to Washington with recommendations to begin administrative proceedings for the termination of federal assistance. The Superintendent of Schools subsequently reopened negotiations with Washington officials of HEW. During a telephone conversation on July 31, 1969, a HEW official outlined a plan which he believed would be acceptable to HEW. Later the same day, the District submitted a plan embodying the features suggested by HEW.² This plan was accepted by HEW in a letter dated August 13, 1968.³ It provided for a unitary system in all grades no later than September of 1970 if the bond issue passed and for such a system in September, 1969, if it did not.

On August 7, 1968, a group of white parents brought an action in the Chancery Court of Bradley County, Arkansas, seeking to enjoin the District officials from implementing the July 31 plan. On August 14, 1968, the Chancery Court issued a temporary injunction enjoining enforcement of the HEW-approved plan pending a hearing on the motion for a permanent injunction set for September 4, 1968.

On August 21, 1968, the United States commenced this action by filing a complaint in the United States District Court for the Western District of Arkansas against the Warren School District, its officials and the plaintiffs in the state court proceeding. It sought to obtain an order declaring the state court decree null and void, enjoining the private defendants from interfering with enforcement by school officials of the HEW-approved desegregation plan, and requiring school officials to enforce the HEW-approved plan for the 1968-69 school year.

The government also filed an application for a temporary restraining order and a motion for a preliminary injunction. The District Court refused to enter the temporary restraining order and set the hearing on the motion for the preliminary injunction for August 28, 1968.

The District Court determined, after the hearing, that it had jurisdiction over both the parties and the subject matter and that the government had standing to bring the action. It entered an order:

(1) Relieving the District of its obligation to follow the temporary injunction entered by the State Chancery Court.

(2) Directing the District to file "a plan for a complete transition forthwith to a unitary school system" including the plans for the new high school no later than November 1, 1968, and providing for a hearing on the proposed plan.

(3) Granting permission to the District to commence classes under either the "freedom of choice" plan or such other plan which would "accommodate the opening of the school toward a unitary school system."

(4) Finding it unnecessary to enter a mandatory injunction requiring the School Board to implement either the HEW plan or the "freedom of choice" plan, to enjoin any of the parties to the action from interfering with the School Board in its operation of the school system or to require HEW by specific order to continue its financial assistance to the District.

(5) Retaining jurisdiction.

The United States filed a notice of appeal on October 28, 1968. The following day, the private defendants filed a notice of cross appeal. They contended that the government did not have standing to sue to set aside the state court order. They contended alternatively that the District Court erred in granting the requested relief. (This Court subsequently dismissed the cross appeal upon the motion of the individual appellants.)

Pursuant to the court's directive, the District filed a desegregation plan with the court on November 1, 1968, which proposed to continue a "freedom of choice" plan in the 1969-70 school year, or, alternatively, to implement the HEW-approved plan as of September, 1969. The government filed objections to the District's proposals and asked for early implementation of the HEW-approved plan. The court set a hearing for January 15, 1969, but on that day, the court deferred decision until April 1, 1969, when the results of the bond election would be known. It was defeated. At the April 1 hearing, the court ordered the District to file an alternative plan within twenty days. A revised plan was filed with the court by the District on April 22, 1969. It deviated from the HEW-approved plan in that it failed to provide for a unitary system in Grades 9 through 12 in the event that the bond issue was defeated in a second election scheduled for March, 1970.

No further order has been entered by the District Court.

This Court was advised at oral argument that a system, similar to that recommended by HEW, has been established for Grades 1 through 8 for the current school year. All students in Grades 1 through 4 attend the Eastside Elementary School, previously a predominately white school. All students in Grades 5 and 6 attend the Westside Elementary School, previously an all-Negro school. All students in Grades 7 and 8 attend the Warren Junior High School, previously a predominately white school. Assignment of students within the...