Cato v. Parham, PB-67-C-69

• Decision Date: 15 September 1970
• Docket Number: No. PB-67-C-69,PB-67-C-69
• Citation: 316 F. Supp. 678
• Parties: Samuel Wayne CATO et al., Plaintiffs, v. Lee PARHAM et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

316 F. Supp. 678

Samuel Wayne CATO et al., Plaintiffs, v. Lee PARHAM et al., Defendants.

No. PB-67-C-69

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

September 15, 1970.

George Howard, Jr., Pine Bluff, Ark., for plaintiffs.

Robert V. Light and G. Ross Smith, Smith, Williams, Friday & Bowen, Little Rock, Ark., for defendants.

Memorandum Opinion

HENLEY, Chief Judge.

On July 25, 1969, this Court filed the most recent of its long line of opinions in this protracted case involving the racial integration of the public schools of the Dollarway Public School District No. 2, Jefferson County, Arkansas. Cato v. Parham, E.D.Ark., 302 F.Supp. 129. On the same day the Court filed its opinion in the case involving the public schools of North Little Rock, Arkansas. Graves v. Board of Education, E.D.Ark., 302 F.Supp. 136. Appropriate decrees were entered in both cases.

The decree entered in this case provided in substance that the Dollarway School District would be required with respect to the 1970-71 school year and subsequent years to disestablish completely its historically established and maintained dual system of racially identifiable schools and to replace it with a single unitary school system. Integration was to extend to students, faculty, staff, transportation, facilities, and services. The plan that the District had submitted was disapproved in general, but the District was permitted with certain provisos spelled out in the decree to operate under that plan during the 1969-70 school year.

The District appealed to the Court of Appeals, but the appeal was not pressed. On May 13, 1970, the Court of Appeals handed down its latest decision in the Little Rock School case reversing the action of the late Judge Gordon E. Young approving an integration plan submitted by the Little Rock School Board. Clark v. Board of Education, 8 Cir., 426 F.2d 1035.

Thereafter the District dismissed its appeal and on August 7 filed a new plan for 1970-71 and subsequent years. On August 20 plaintiffs filed objections to the plan, and the matter is now before the Court for determination.

There is no dispute about controlling facts, and the Court has deemed a formal evidentiary hearing to be unnecessary. However, before reaching any decision with respect to the plan, the Court conferred with counsel on both sides and obtained from them certain information about present conditions at Dollarway.

For reasons beyond the control of both Court and counsel the Court was not able to dispose of this phase of the Dollarway controversy prior to the date set by the Dollarway School Board for the opening of school. No effort was made to prevent the opening of the schools, and they opened on schedule and are now operating under the Board's present plan.

As far as student bodies are concerned, the Court is satisfied that the new plan has effectively integrated the junior and senior high grades, and there is no reason to suppose that they will not remain integrated in the future.

As to faculty, the Court has always been convinced that at Dollarway faculty desegregation would take care of itself when the student bodies were integrated. The Court does not understand that plaintiffs are complaining seriously about faculty desegregation at the secondary school level, at least at this time, and the Court will assume that the secondary school faculties are satisfactorily integrated at least for the time being.

A quite different picture is presented at the elementary school level. There are three elementary schools: Dollarway Elementary (formerly all white); Pinecrest Elementary (formerly all white); and Townsend Park Elementary (formerly all Negro). Dollarway and Pinecrest are located in predominantly white neighborhoods; Townsend Park is located in a neighborhood that is almost exclusively Negro. All three schools are comparatively close to each other. Townsend Park is located east of U. S. Highway 65 and the tracks of the Missouri Pacific and St. Louis-Southwestern Railroad Companies; Dollarway and Pinecrest are located west of the tracks and the highway.

The tracks and the highway run roughly north and south throughout the District. The majority of black elementary school students live east of the highway and tracks, and the majority of white students live west of them.

With certain minor qualifications, elementary students have been assigned to schools on the basis of geographical zones geared to the neighborhood school concept and which naturally reflect the racially segregated housing pattern of the District. It might be pointed out that Dollarway Elementary and Townsend Park Elementary were both built prior to the Brown decisions in 1954 and 1955 so that Dollarway was originally a legally established "white" school and so that Townsend Park was originally a legally established "Negro" school. Pinecrest was built substantially after the Brown cases were decided but was located in an almost exclusively white neighborhood.

Subject to one exception, which is not important, the present plan for the elementary schools is exactly the same as the plan which the Court permitted the Board to use during 1969-70 but the use of which in later years was expressly disapproved by the Court.

The Court has obtained from counsel the following enrollment data for the elementary schools. There are 1566 elementary students in the District of whom 55 percent are black. The enrollment at Dollarway is 77 percent white; the enrollment at Pinecrest is 71 percent white. There are 648 students enrolled at Townsend Park. Of those students only 15 (less than 2.5 percent) are white, and it is doubtful that they will remain enrolled there unless reenforced substantially by other members of their race.

As to faculty, the plan states that at the elementary level no more than 75 percent of the teachers assigned to each school will be of the same race. The Court has no figures on actual elementary faculty assignments, but the Court understands that the Townsend Park faculty is very predominantly black, and that the faculties of the other two elementary schools are predominantly white.

There was nothing ambiguous about the Court's 1969 decree. The Board was mandatorily enjoined to completely desegregate its staff and faculties by the beginning of the current school year and to keep them integrated in future years. And the Board was also mandatorily and specifically ordered to integrate its elementary schools by the beginning of this year and to keep them integrated. Further, in a letter to counsel the Court suggested certain feasible combinations of elementary grades that would effectively disestablish the dual elementary school system.

Manifestly, the Board has not complied with the Court's decree and its plan will not be approved.¹ The Court would be justified in ending this opinion with the statement just made and would not be averse to doing so. However, the Court believes that some additional comment may be in order.

I.

This Court has been dealing with the Dollarway District ever since the suit was filed as "Dove v. Parham" in 1959, 176 F.Supp. 242, and has acquired a good deal of knowledge about the District. Generally speaking, the District's population is divided about equally between whites and Negroes although the white population may have declined somewhat in recent years. Despite the nearly equal division of the population racially, the white community of the District has always been in effective control of the District's affairs, and in the past that community has been violently opposed to the whole idea of desegregation even as that term was understood by many in the days prior to the 1968 decisions of the Supreme Court in the New Kent County, Virginia Case, the Gould, Arkansas Case, and the Jackson, Tennessee Case.²

It is the recollection of the Court, although the Court is not positive, that when the litigation was commenced and for some years thereafter all five members of the School Board were white. Then for a substantial period of time there was one Negro member on the Board, and at the present time there are two. The defendant, Lee Parham, has been President of the Board during the entire period, and up until very recently Mr. Charles Fallis served as Superintendent of Schools.

The white members of the Board, assisted by Mr. Fallis, and counselled by able lawyers who are specialists in this field of litigation, have fought integration by every legal device available to them. They have been before this Court and before the Court of Appeals time and time again. The more recent opinions dealing with Dollarway are: 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; and, of course, the 1969 opinion of this Court heretofore cited.

Up until very recently the Board, despite judicial reversals, enjoyed a rather high degree of success in holding integration to a minimum, but when "freedom of choice" was disapproved for Dollarway in 1968, and when residential zoning for the District was disapproved in principle in March 1969, the death knell had sounded for segregation, whether de jure or de facto, in the District, and the sands of time have now run out.

II.

Although the integration of a school district cannot be made to yield to popular opposition to it, whether that opposition comes from whites or blacks, the Court thinks that when integration of the schools of a district like Dollarway is categorically ordered, the patrons of the district have a right to have the Court's action explained, and particularly they have a right to know why such action is being taken in their district if it is not being taken in some other district or districts. The federal courts have no more right to discriminate invidiously between school districts than school boards have to discriminate invidiously between students or teachers. Those observations lead the Court to refer to the...