Burleson v. COUNTY BD. OF ELECTION COM'RS OF JEFFERSON CO., PB-69-C-65.

• Decision Date: 22 January 1970
• Docket Number: No. PB-69-C-65.,PB-69-C-65.
• Citation: 308 F. Supp. 352
• Parties: William BURLESON, Father of Billy Wayne, Jimmy, and John Burleson et al., Plaintiffs, v. COUNTY BOARD OF ELECTION COMMISSIONERS OF JEFFERSON COUNTY et al., Defendants, Frank M. Shue, Jr., et al., Intervenors.
• Court: U.S. District Court — Eastern District of Arkansas

308 F. Supp. 352

William BURLESON, Father of Billy Wayne, Jimmy, and John Burleson et al., Plaintiffs, v. COUNTY BOARD OF ELECTION COMMISSIONERS OF JEFFERSON COUNTY et al., Defendants, Frank M. Shue, Jr., et al., Intervenors.

No. PB-69-C-65.

United States District Court E. D. Arkansas, Pine Bluff Division.

January 22, 1970.

Jack L. Lessenberry, Little Rock, Ark., for plaintiffs.

Robert V. Light, Little Rock, Ark., R. A. Eilbott, Jr., George Howard, Jr., Pine Bluff, Ark., for defendants.

Bert N. Darrow, Little Rock, Ark., for intervenors.

Memorandum Opinion

HENLEY, Chief Judge.

This cause, which has been tried to the Court, presents the question of whether white inhabitants of a geographically isolated portion of an Arkansas public school district faced with an obligation to integrate its schools may validly employ the Arkansas school and election laws so as to secede from the parent district and establish an autonomous district of their own. The case seems to be one of first impression.

While the suit is an independent action, it is an outgrowth of the protracted desegregation litigation involving the schools of Dollarway School District No. 2, Jefferson County, Arkansas. Cato v. Parham, E.D.Ark., 297 F.Supp. 403.¹ The portion of the District involved is known as the Hardin Area. The Area is located some miles west of the District proper along U. S. Highway 270 which runs from Pine Bluff to Sheridan, Arkansas. The Area is separated from the District proper by a portion of the Whitehall School District of Jefferson County.

The population of the Area is almost exclusively white. In the fall of 1969 270 students residing in the Area were in attendance in the schools of the District, and only five of those students were Negroes.

In 1968 and 1969 this Court issued a number of decrees having for their purpose the elimination of the dual school system that the District had operated historically and the establishment of a unitary integrated public school system as required by ruling decisions of the Supreme Court of the United States. Specifically, the Court enjoined the use of the freedom of choice method of assigning students to schools and disapproved certain residential zoning plans submitted by the District's Board of Directors. Cato v. Parham, E.D.Ark., 293 F.Supp. 1375, aff'd 8 Cir., 403 F.2d 12; Cato v. Parham, E.D.Ark., 297 F. Supp. 403; Cato v. Parham, E.D.Ark., 302 F.Supp. 129, appeal pending.

As of the present time the student bodies of the junior and senior high grades of the District's schools have been essentially integrated, but integration of the elementary grades is less complete; and full staff and faculty desegregation has not been achieved.

A report filed with the Court by the Board on October 1, 1969, reflects that the District's total enrollment as of that time was 2,968 with about 55 percent of the students being Negroes. The report also reflects that 1,737 students were enrolled in the elementary grades or in special education classes at the elementary grade level.

According to the report, 772 white students were enrolled in the formerly all white elementary schools, and 194 Negroes were enrolled in those schools. The enrollment in the formerly all Negro elementary school was nine white students and 762 Negro students.

After the Court had entered its latest decrees in the Dollarway case in March and July, respectively, of last year residents of the Hardin Area formed a committee to circulate petitions throughout the District calling for an election on the question of whether the Area should be permitted to withdraw from the District proper and be constituted as an independent school district to be known as the Hardin District.

The efforts of the Committee were successful, and the Jefferson County Election Commission called an election to be held on September 11, 1969. On September 8 white parents and students residing in both the Area and the District proper commenced this action against the Election Commission seeking to enjoin the holding of the election. It was alleged in substance that the secession of the Area from the District would frustrate the decrees of this Court in the Dollarway case and would deprive the minor plaintiffs of their alleged right to attend racially integrated schools.

The Court declined to enjoin the holding of the election. The election was held, and the secession measure carried by a small majority. It would not have carried if a number of Negro voters residing in the District proper had not cast their votes in favor of secession.²

After the election was held, the complaint was amended so as to name as defendants the members of the Jefferson County Board of Education, the agency charged with the responsibility of implementing the election by setting up the new district and naming a temporary board of directors for it. Setting up the new district would involve a distribution of assets and liabilities of the original district and an allocation of revenues between the two districts.

Plaintiffs sought both a preliminary and a permanent injunction against the County Board of Education restraining it from performing the functions above mentioned. A hearing was held on plaintiff's motion for a preliminary injunction, and the motion was granted on September 23. When it became evident that the election would not be contested, an order was entered dismissing the complaint as against the election commission.

At the hearing on the motion for a preliminary injunction it became apparent to the Court that neither the proponents of the secession, nor the Dollarway Board, nor the Negro community in the District would be adequately represented by the County Board of Education which, not improperly, assumed a position of complete neutrality. Accordingly, the Court directed counsel for the plaintiffs to bring the District into the case and also to bring in known proponents of the secession and the Negro plaintiffs in Cato v. Parham as representatives of the Negro community.

Proponents of the secession did not wait to be joined as defendants; they filed an intervention in their own behalf. Plaintiffs did bring in the District and the plaintiffs in Cato, and the Court finds that all interested factions are now before it.

The position of the intervenors is that the proposed secession is not intended to, and will not, frustrate the Decrees of this Court, that it will not deprive plaintiffs of any federaly protected rights, and that it is perfectly legal and proper.³ Both the District and the Negro representatives, like the County Board, have taken a neutral stand so that the real controversy here is between the plaintiffs and the intervenors.⁴

The case was tried on the merits on January 7 of the current year, and this memorandum incorporates the Court's findings of fact and conclusions of law. At the commencement of the trial it was agreed that the Court might consider certain facts appearing in the record in the Cato case and might also consider the evidence introduced at the hearing on the motion for a preliminary injunction.

The Court's jurisdiction is predicated upon 28 U.S.C.A. § 1343(3) and (4) and upon 42 U.S.C.A. § 1983. While all of the plaintiffs are white people, they, like Negroes, have a right to attend and to have their children attend a public school system that is free from racial discrimination as ordered by this Court, and in the Court's estimation they have standing to attack the proposed secession in this action and to secure injunctive relief if the secession would frustrate or seriously interfere with the implementation of the Court's decrees.

As stated, the Hardin Area is physically separated from the District proper. The District proper and all of its schools are located on the northern outskirts of the City of Pine Bluff. U. S. Highway 65 and certain railroad tracks run through the District proper from north to south. Residential housing in the District proper is segregated; most white residents live west of the highway and the tracks, and most of the Negro residents live east of the highway; some live between the highway and the tracks which are east of the highway.

The schools of the District now consist of Dollarway High School, Dollarway Junior High School, Dollarway Elementary School,⁵ Pinecrest Elementary School, and Townsend Park Elementary School.⁶ Hardin Area Students, including elementary grade students, who do not have private transportation are carried to and from school each day on busses owned by the District. The busses pick the children up around seven o'clock in the morning and return them to their homes between four and four-thirty o'clock in the afternoon.

Prior to April 1948 the Hardin Area was and had been for many years an independent school district. Its school plant consisted of two school buildings, one more modern than the other, and a teacherage. It offered instruction in its own schools to students in Grades 1-9; high school students residing in the Area were sent to high schools in other districts on a tuition basis. As of that time the Dollarway District did not have a high school, and Dollarway students in Grades 9-12 attended school at the Pine Bluff High School, which was a school superior to high schools operated in neighboring districts.

In 1947 or 1948 the more modern of the school buildings owned by the Hardin District was destroyed by fire and was not rebuilt. At that time the District was probably under some pressure to merge into a larger district;⁷ in any event, the Hardin Board...