Clark v. BOARD OF EDUCATION OF LITTLE ROCK SCHOOL DIST, 72-1406

• Decision Date: 21 August 1972
• Docket Number: No. 72-1406,72-1407 and 72-1438.,72-1406
• Parties: Delores CLARK et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

465 F.2d 1044 (1972)

Delores CLARK et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the LITTLE ROCK SCHOOL DISTRICT et al., Defendants-Appellees.

Nos. 72-1406, 72-1407 and 72-1438.

United States Court of Appeals, Eighth Circuit.

Submitted August 7, 1972.

Decided August 21, 1972.

John W. Walker, Little Rock, Ark., Walker, Kaplan & Mays, P. A., Little Rock, Ark., Jack Greenberg, Norman J. Chachkin, James M. Nabrit, III, New York City, for appellants.

G. Ross Smith and Robert V. Light, Little Rock, Ark., for appellees.

Before HEANEY, BRIGHT, and ROSS, Circuit Judges.

PER CURIAM.

We are asked for the eighth time to review a district court decree purporting to establish a unitary school system in Little Rock, Arkansas.¹ This time the principal question is whether the plan approved by the district court for desegregating elementary grades 1 through 5 meets constitutional standards.² We find the plan satisfactory as to grades 4 and 5, unsatisfactory in part as to grades 1 through 3.

I.

DESEGREGATION OF THE ELEMENTARY GRADES

The plan approved by the district court would:

1) Desegregate grades 4 and 5 by zoning, clustering, and pairing. In substance, students living in the relatively integrated neighborhoods of central Little Rock would attend schools in their own neighborhoods. Fourth grade children living in the predominantly white, western section of the city and those living in the predominantly black, eastern section would attend desegregated classes in the western section of the city. Fifth grade students living in both these sections would attend desegregated classes in the eastern section. Black students would comprise from 29.7 to 53.5 percent of the 4th or 5th grade students assigned to each school.³

2) Desegregate grades 1 through 3 in the central section of the city by assigning children to schools in their own neighborhoods.

3) Purport to desegregate grades 1 through 3 in the western and eastern sections by assigning students in these grades to schools in their own neighborhoods. Classes in these first three grades in the western section would be nearly all white and in the eastern section nearly all black.⁴

4) Require the school board to provide free transportation for all students living more than two miles from the school to which they are assigned.⁵

We approve the district court's plan insofar as it provides for the integration of grades 1 through 5 in the central section of the city. We do so because this aspect of the plan preserves the neighborhood school in relatively integrated neighborhoods,⁶ and there is nothing to suggest that students in these grades will not be placed in fully desegregated classrooms and school buildings.

We cannot approve the plan, however, insofar as it provides that approximately four thousand students in grades 1 through 3 living in the segregated neighborhoods of eastern and western Little Rock will continue to attend segregated classes during these important primary grades.⁷

It is argued that the plan for grades 1 through 3 in the eastern and western sections should be approved because students attending the segregated classes in these grades will be doing so in school buildings that will house integrated 4th or 5th grades. This argument is without merit. See Jackson v. Marvell School District No. 22, 425 F.2d 211 (8th Cir.1970). Cf. Moses v. Washington Par. Sch. Bd., 456 F.2d 1285, (5th Cir. 1972), petition for cert. filed, 41 U.S.L.W. 3056 (U.S., July 18, 1972, No. 72-41). It flies in the face of the clear mandate of Clark v. Board of Education of Little Rock School Dist., 449 F.2d 493 (8th Cir.1971), cert. denied, 405 U.S. 936, 92 S.Ct. 954, 30 L.Ed.2d 812 (1972) (Clark 1971), which requires the desegregation process to apply fully to all elementary grades. The argument appears to be a last ditch effort to retain a segregated school system in the primary grades contrary to the Supreme Court's mandate that segregation be eliminated "root and branch." Green v. County School Board, 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Cf. United States v. Tex. Edu. Agcy., 467 F.2d 848, (5th Cir., 1972).

Under these circumstances, we have no alternative but to remand this matter once more to the district court. In doing so, we Order:

1) That the district court's plan for the 4th and 5th grades be implemented at the beginning of the 1972-73 school year.

2) That the district court's plan for grades 1 through 3 in the central section of the city be implemented at the beginning of the 1972-73 school year.

3) That the school board's proposal relating to students attending the first three grades in the eastern and western sections of the city be disapproved for failure to meet constitutional standards.

4) That the school board submit to the district court, before January 1, 1973, a detailed plan applicable to these students which requires their attendance at desegregated classes in a desegregated school. The board is directed to make the assignment of pupils to schools in a manner similar to that utilized in desegregating the classes and schools for students living in the eastern or western sections of Little Rock and attending grades 4 or 5. Transportation shall be furnished to these students in accordance with the criteria previously established by the district court.

5) That the district court hold hearings on the detailed plan at the earliest possible date and issue its decision promptly so that any possible appeal can be taken in sufficient time to implement the plan at the beginning of the 1973-74 school year. The present plan for assignment of pupils of these first three grades in the eastern and western sections of Little Rock, as approved by the district court, of necessity will apply until the beginning of the 1973-74 school year.

We recognize that our order is quite specific, but it needs to be. We had requested the school board to produce a plan for these grades a year ago. It failed to meet that responsibility. That failure was just one in a series. The plaintiffs-appellants had suggested a different plan for desegregating the elementary grades. The district court did not accept that plan. We advise, however, that if the parties themselves can come to an agreement on an alternative plan for students attending the elementary grades, such plan will be acceptable if it meets the criteria set forth in Clark 1971, supra, 449 F.2d 493, and in this case, and receives the approval of the district court.

The additional year's delay in integrating some of the primary grades is regrettable but we feel that fairness to the children requires that the parties be given an opportunity to work out the practical details for implementing the plan that we have suggested, or to develop an alternative plan. This appeal reached us too late for the parties to have such an opportunity before the beginning of the present school year.

II. ASSIGNMENT OF TEACHERS

The school board in a cross-appeal asks us to reverse that part of the district court's order requiring the majority of the teachers in each elementary school to be of the race (black or white) different from that of the majority of the students.

Appellants do not resist this request but concede that this aspect of the district court's order "does not serve any useful purpose * * *." The appellants in their own appeal relating to teacher assignments assert that the school board has failed to promulgate any proper standards for reassignment of teachers in connection with efforts to desegregate the faculty in the elementary schools.

We consider each of these issues.

A.

The record shows that the faculty of the Little Rock School District consists of 70 percent white and 30 percent black teachers. Appellee school board notes in its brief that it is committed to providing a desegregated faculty which is no less than 18 percent nor more than 45 percent black at each school in Little Rock.

Since the appellants do not dispute the constitutional validity of this aspect of the school board's plan, which seeks to assign black and white teachers to each school in a manner substantially proportionate to the ratio of black to white teachers in the school system as a whole,⁸ we believe the district court's modification of the board's plan to be inappropriate and set aside that part of the court's order which requires assignment of faculty so that "elementary schools with a greater number of students of one race will have teachers of a greater number of the other race for that particular school."

B.

We comment briefly upon plaintiffs' assertion that the school district has promulgated vague and uncertain standards for reassigning individual faculty members. The school board's action concerning employment, retention, assignment, and discharge of teachers is governed in part by provisions of an agreement with the Classroom Teachers' Association. This agreement provides for objective as well as subjective guidelines for evaluating a teacher's quality and performance. In the area of assignment of teachers within a school or reassignment of teachers from one school to another, the personal preference of an individual teacher appears to carry substantial weight. The agreement sets out no standard accommodating this preference with constitutional requirements for a desegregated faculty at each school. Appellants argue that these faculty reassignment criteria are "vague and uncertain * * * do not contain enlightenment as to weight accorded each; nor * * * when they apply and how they may be implemented." Appellants' Brief at 15

We agree that these regulations governing assignment and reassignment provide no clear guidelines for achieving a desegregated faculty in each school on a fair and racially nondiscriminatory basis. However, no adequate record has been developed demonstrating particular constitutional inadequacies in the regulations.

We think it premature for us either to approve or to...