426 F.2d 1035 (8th Cir. 1970), 19795, Clark v. Board of Ed. of Little Rock School Dist.

Docket Nº:19795, 19810.
Citation:426 F.2d 1035
Party Name:Delores CLARK et al., Appellants, v. The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Appellees. Delores CLARK et al., Appellees, v. The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Appellants.
Case Date:May 13, 1970
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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426 F.2d 1035 (8th Cir. 1970)

Delores CLARK et al., Appellants,



Delores CLARK et al., Appellees,



Nos. 19795, 19810.

United States Court of Appeals, Eighth Circuit.

May 13, 1970

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Norman J. Chachkin, New York City, and John W. Walker, Little Rock, Ark., for Clark, and others; Jack Greenberg

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and James M. Nabrit, III, New York City, and Burl C. Rotenberry, Little Rock, Ark., on the briefs.

Robert V. Light and Herschel H. Friday, Little Rock, Ark., for Board of Education of the Little Rock School Dist., and others; G. Ross Smith, Little Rock, Ark., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES, BLACKMUN, GIBSON, LAY, HEANEY and BRIGHT, Circuit Judges, En Banc. [a1]

MATTHES, Circuit Judge.

This appeal and cross-appeal from the judgment of the United States District Court for the Eastern District of Arkansas (the late and lamented Gordon E. Young), causes us again to consider whether the efforts of the Board of Education of the Little Rock, Arkansas, School District (hereinafter referred to as District or Board) to desegregate its schools satisfy the Equal Protection Clause of the Fourteenth Amendment as interpreted in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I) and subsequent decisions of the Supreme Court which have delineated the principles enunciated therein.

The process of desegregation in this District has been controversial and its long history is recorded in the decisions cited in the margin. 1 While we focus our attention on the events from 1966 to the present, it is necessary to briefly sketch the background against which these events are set. Up until 1954 and Brown I, the District, pursuant to state law, operated separate educational facilities for black and white children. After much turmoil, and the passage of several years, students were assigned to schools according to the dictates of the Arkansas pupil placement statute. When this practice was found to contravene the Fourteenth Amendment, 2 a 'freedom of choice' plan was adopted. In Clark v. Board of Education, 369 F.2d 661 (1966), we sanctioned 'freedom of choice' in principle but found the District's plan to be deficient in failing to provide adequate notice to the students and their parents and to provide a definite plan of staff desegregation. We remanded and directed the district court to retain jurisdiction to insure adoption and operation of a constitutional plan for the full desegregation of the Little Rock schools.

In August of 1966, four months prior to our decision in Clark, the Board apparently recognizing the inadequacy of its existing mode of desegregation, employed a team of experts from the University of Oregon to make a study of the system and prepare a master plan of desegregation. The team submitted its recommendations, the 'Oregon Report,' in early 1967. In brief, the recommendations called for abandonment of the neighborhood school concept and the development of an educational park system 3 through

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the institution of a capital building program and the pairing of schools. The cost of implementing the Oregon plan was estimated to be in excess of ten million dollars. In the November 1967 school board election at least one of the incumbent members of the Board who supported the 'Oregon Report' was defeated and replaced by a candidate who opposed the report. The election results were interpreted as a public rejection of the 'Oregon Report,' and it was subsequently abandoned by the Board.

Still searching for a solution, the Board directed Floyd W. Parsons, Superintendent of Schools, and his staff to prepare a comprehensive plan for desegregation of the schools. Acting accordingly, this group submitted a proposal known as the 'Parsons Plan.' The plan provided for desegregation of the high schools and two groups of grade schools. It made no provision for the junior high schools. The high schools were to be desegregated by 'strip-zoning' the District geographically, generally from east to west so as to form three attendance zones for the high school students. The Horace Mann High School, an all Negro school, was to be abolished and utilized as an elementary facility, and additions were to be made to two of the three remaining high schools. The two groups of elementary schools were to be desegregated by pairing of schools within each group. 4

The cost of implementing the 'Parsons Plan' was estimated at five million dollars, 5 and a bond issue for that amount was submitted to the voters in March of 1968. Despite active campaigning by Superintendent Parsons and several Board members, the bond issue was decisively defeated, as were two incumbent members of the Board who supported the plan. Thus, as of March, 1968, the District, although recognizing the inadequacies of the existing means of desegregation, had been unable to develop and implement an acceptable alternative. And, students were assigned for the 1968-69 school year according to 'freedom-of-choice.'

On June 25, 1968, plaintiffs moved the district court for further relief. 6 The court responded by setting a hearing for August 15, 1968, and, by letter of July 18, 1968, suggested to the Board that it devise a geographic zoning plan to correct student segregation. The Board was also admonished to devise a plan for faculty desegregation so that the racial division of the faculty in each school would approximate the racial breakdown of the faculty in the entire District. At the August 15th hearing the District presented an 'interim' zoning plan which was admittedly incomplete and required more study, and requested that the 'freedom of choice' method of pupil placement be retained for the 1968-69 school year. After the second day of testimony, the hearing was recessed to enable the District to formulate a final plan for the disestablishment of racial segregation to

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become effective at the beginning of the 1969-70 school year. Before recessing, the court reaffirmed its earlier suggestion concerning faculty desegregation and stated unequivocally that 'freedom of choice' as applied to the Little Rock schools would not satisfy the constitutional requirements. The Board was directed to file its plan not later than November 15, 1968.

During the Board's deliberations two plans were submitted for its consideration and rejected. A group of Negro citizens offered the 'Walker Plan,' so designated because John Walker, counsel for plaintiffs, was a moving force in its formulation. The 'Walker Plan' contemplated grade restructuring and pairing of schools throughout the District and at all grade levels. Substantial transportation of students would have been necessary to implement the plan. The Board also considered and rejected a proposal offered by two of its members calling for retention of 'freedom of choice' plus the reservation of space at predominantly white schools for Negro children desiring to attend them. The Board finally adopted, with two members dissenting, a plan for pupil assignment based on geographic attendance zones.

Appended to this opinion is a reduced reproduction of defendants' Exhibit 22 depicting the geographic zones proposed, and designating the location of elementary, junior high and high school buildings. The elementary zones are defined by fine lines and the junior high zones by broad lines. On the original exhibit the high school zones are identified by four different colors. Because we were unable to reproduce the colors, we have highlighted the high school zone boundaries by a crossed line, and have appropriately designated the several colors of the original exhibit. Except for this alteration, the map is an exact reproduction of the original exhibit.

As illustrated by the map, the Little Rock School District is an irregular rectangle running from east to west. Natural boundaries on the north and south and the commercial and industrial nature of the eastern portion have caused the city to expand toward the west. Generally speaking the eastern one-half of the District is inhabited predominantly by Negro citizens and the western one-half predominantly by white citizens.

At the beginning of the 1969-70 school year there were 24,248 students in the system; 15,027 white and 9,221 Negro. They attended five high schools, seven junior high schools, and thirty-one elementary schools throughout the District.

Under the District's plan, all students were to attend schools serving their grade level in their zone of residence except: (1) students attending Metropolitan High School, 7 (2) students in the 8th, 10th and 11th grades in 1969-70, who were permitted to choose between the school in their zone and the school the had previously attended 8 and (3) children of teachers in the District, who could attend the school where their parents were employed. The proposal for faculty desegregation complied with the suggestion of Judge Young. It called for the assignment of teachers so that the percentage of Negro teachers in each school ranged from a maximum of 45% To a minimum of 15%.

Pursuant to the court's direction at the conclusion of the August 16 hearing, the District submitted the plan now under consideration. On December 19, the hearing was resumed and additional evidence was introduced. On May 16, 1969, the district court filed its unreported opinion. While approving the District's plan in principle, the court amended it by: (1) redrawing the Hall High School zone to include approximately 80 additional Negro children; (2) establishing

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a 'Beta Complex'; 9 (3) providing for majority to minority transfer...

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