Aaron v. Tucker, Civ. A. No. 3113.

• Decision Date: 02 September 1960
• Docket Number: Civ. A. No. 3113.
• Citation: 186 F. Supp. 913
• Parties: John AARON et al., Plaintiffs, v. Everett TUCKER, Jr., et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

186 F. Supp. 913

John AARON et al., Plaintiffs, v. Everett TUCKER, Jr., et al., Defendants.

Civ. A. No. 3113.

United States District Court E. D. Arkansas, W. D.

September 2, 1960.

Thurgood Marshall, James M. Nabrit, III, New York City, and Wiley A. Branton, Pine Bluff, Ark., for plaintiffs.

Mehaffy, Smith & Williams (by Herschel H. Friday, Jr., and Robert V. Light), and Howard Cockrill, Little Rock, Ark., for defendants.

JOHN E. MILLER, District Judge, sitting by assignment.

This is another of the many controversies that have stemmed from the judgment of this court approving a plan for desegregation of the Little Rock, Arkansas, public schools on August 27, 1956. Aaron et al. v. Cooper et al., D.C. E.D.Ark., 143 F.Supp. 855.¹

On August 8, 1959, the plaintiffs, for themselves and all other members of the class whom they claim to represent, filed their motion for further relief in which it was alleged that Thelma Mothershed and Melba Pattillo are two of the nine Negro students who were admitted to and attended Central High School in Little Rock during the 1957-58 school term; that in July 1959 they registered at Central High School with other students who lived in the Central High School attendance zone; that on or about August 3, 1959, they were notified that they would not be admitted to Central High School during the 1959-60 school term, and that they would be assigned to attend the Horace Mann High School, which is a racially segregated school maintained by defendants for Negro pupils.

On August 21, 1959, the defendants filed a response to the motion of plaintiffs for further relief, in which they alleged:

"(1) Immediately after the decision of the Three Judge Court in this action holding Act 4 of the Second Extraordinary Session of the General Assembly for the year 1958 unconstitutional and void, the defendants, in accordance with and as commanded by existing court orders, assumed full control and operation of all the public schools of the District. As specified by the applicable Pupil Assignment Laws of the State of Arkansas, the Board of Directors adopted Assignment Regulations, a copy of which is attached hereto and made a part hereof,² and undertook the assignment procedure set forth therein and in the applicable laws, all within the framework of existing court orders. All students have been given their initial assignments, the high schools are open and are being operated on a non-discriminatory basis, and the Board of Directors is now engaged in processing all applications for reassignments. These applications are being and will be processed expeditiously and action taken thereon in good faith and on a non-discriminatory basis. The administrative procedure has not been completed.

"(2) Thelma Mothershed and Melba Pattillo were initially assigned to Horace Mann High School and each has filed application for reassignment to Central High School. These applications are pending, and if and as long as each pursues her administrative remedies in compliance with the regulations of the Board, the Board will process the applications in good faith and in a non-discriminatory manner. The same procedure will be followed as to any student who so acts. In particular, these plaintiffs have not exhausted their administrative remedies.

"(3) The assignment and reassignment of each student is necessarily handled and to be handled on an individual basis and the class proceeding attempted by plaintiffs in this motion is improper. A court proceeding could be proper only after all administrative remedies are exhausted and only on an individual basis.

"(4) Since the public schools, under applicable law and court orders, are to be, and must be, operated by the School Boards, and not by the courts, no student can acquire a vested right to attend any particular school any more than he or she can acquire a vested right to receive, regardless of ability, progress and attitude, a particular grade. The circumstances, facts and factors governing assignments, of which residence proximity is only one of many, and education, many of which change from time to time, necessarily require flexibility and an area of conscientious discretion on the part of the Board. Only in this way can the best interests of the educational system, the public and the children be served. Thus, none of the plaintiffs, or any other student, has been granted by court order or has acquired any vested right to attend any particular school.

"(5) The existing court orders have only called for desegregation, or actually non-discriminatory operation, of the schools at the high school level at this time and the acts of the defendants, and the procedures followed and being followed by them, have clearly been within the framework of the governing court orders and decisions.

"(6) All allegations of the motion for further relief are denied except those expressly admitted above and those that require no comment because they pertain to court orders and decisions that speak for themselves."

On the same date, August 21, 1959, the defendants filed an amendment to the response, in which they alleged:

"In paragraph II (2) of their response, the defendants stated that Thelma Mothershed and Melba Pattillo had filed applications for reassignment. To date 65 white and Negro students have filed applications for reassignment, but a recheck of the records of the District reveals that neither Thelma Mothershed nor Melba Pattillo has filed an application. Therefore, they have refused to comply with the regulations of the Board and have not exhausted or made any attempt to exhaust their administrative remedies. By reason thereof, they are barred from pursuing any judicial remedies they might otherwise have had, and this motion must be dismissed. With reference to those students who have filed applications for reassignment and all other students who pursue their administrative remedies in compliance with the regulations of the Board and applicable assignment laws, the Board is proceeding and will proceed to hear and process the applications expeditiously, in good faith and in a non-discriminatory manner. Hearings on applications for reassignment are being scheduled with the first hearings already set for August 28, 1959."

On September 19, 1959, fourteen Negro students filed their motion to be allowed to intervene, which motion was granted September 23, 1959. In the intervention, it was alleged:

"1. The minor applicants for intervention herein are some of the `other Negro students who are members of the class represented by the named plaintiffs in this cause' referred to in paragraph 1b of the Plaintiffs' Motion for Further Relief which was filed in this court on August 8, 1959.

"2. Applicants for intervention are among those generally classified as Negroes, are citizens of the United States and of the State of Arkansas, and are residents of and domiciled in the City of Little Rock, Arkansas. The minor applicants for intervention are within the statutory age limits of eligibility to attend the public schools of said City and possess all qualifications and satisfy all requirements for admission thereto. The adult applicants for intervention are the parents, or persons standing in loco parentis, of the minor applicants for intervention, and are taxpayers of the United States and of said State and City.

"3. Applicants for intervention should be permitted to intervene as parties-plaintiff in this action upon the following grounds:

"a. They are members of the class on behalf of which the original action is brought;

"b. They have substantial interest in the subject matter of the action;

"c. They are and will be bound by and benefit from any judgment, decree, or order entered or to be entered in this action;

"d. Their complaint and the original action have questions of law and fact in common;

"e. Their intervention will not to any extent delay or prejudice the further adjudication of the rights of the original parties."

This cause proceeded to trial to the court on March 22-23, 1960. The response of the defendants to the original motion for further review was treated as a response to the intervention heretofore set forth.³

In the consideration of the contentions of the parties certain undisputed background facts should be borne in mind.

The Board of Directors in charge of the schools on August 27, 1956, when the plan for operating the schools on a nondiscriminatory basis was approved, Aaron et al. v. Cooper et al., D.C., 143 F.Supp. 855, resigned, and in December 1958 the present members, Messrs. Tucker, Matson, and Lamb, were elected along with Messrs. Ed. I. McKinley, Jr., Ben D. Rowland and R. W. Laster. At that time the high schools were closed and had been since September 12, 1958, by proclamation of the Governor issued under Act 4 of the Second Extraordinary Session of the General Assembly of Arkansas. There was also an entirely new administrative staff and an entirely new group of attorneys representing the School District. Mr. Terrell E. Powell had replaced Mr. Virgil Blossom as Superintendent, and Mr. Paul Fair had become the new Assistant Superintendent. The new Board elected in December 1958 qualified, and the first event in sequence of time was a hearing before this court on January 6, 1959, 169 F.Supp. 325, for the purpose of determining and fixing the provisions and terms of the decree of the court in accordance with the mandate of the United States Court of Appeals for the Eighth Circuit, issued December 2, 1958, and filed herein December 4, 1958, 261 F.2d 97. The new Board was confronted with the duty of familiarizing itself with all the proceedings that had occurred prior to its election. On January 9, after the hearing on January 6, the court entered the order hereinbefore referred to, giving the defendants 30 days in which to file its report. The report was filed, but at that time the high schools were still closed by the action taken by the Governor of the ...