Clark v. Board of Education of Little Rock School Dist., 71-1409

• Decision Date: 10 September 1971
• Docket Number: No. 71-1409,71-1415.,71-1409
• Citation: 449 F.2d 493
• Parties: Delores CLARK et al., Appellants, v. 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.
• Court: U.S. Court of Appeals — Eighth Circuit

449 F.2d 493 (1971)

Delores CLARK et al., Appellants, v. 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.

Nos. 71-1409, 71-1415.

United States Court of Appeals, Eighth Circuit.

September 10, 1971.

Norman J. Chachkin, New York City, John W. Walker, Little Rock, Ark., Jack Greenberg, New York City, Philip E. Kaplan, Walker, Kaplan & Mays, P. A., Little Rock, Ark., for Delores Clark.

Robert W. Light and Herschel H. Friday, Little Rock, Ark., for The Board of Education of the Little Rock School District.

Before MATTHES, Chief Judge, and GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges, En Banc.^*

PER CURIAM.

We are again asked to review a District Court decree purporting to establish a unitary school system in Little Rock, Arkansas.¹ The court's proposed plan employs a variety of techniques, including pairing, clustering, and contiguous and noncontiguous zoning to achieve the stated objective. Under the plan, grades 6 through 12 would be integrated at the beginning of the 1971-72 school year. All students in grades 6 and 7 would be assigned to four middle school centers located in the generally white residential areas in the western section of the city; all students in grades 8 and 9 would be assigned to four junior high school centers, three of which are in the largely black residential areas in the eastern section of the city; and all students in grades 10 through 12 would be assigned to three high school centers, two in white residential areas and one — Central High School — in central Little Rock.² Substantial racial balance would be achieved in each school by assigning students to a particular school. Transportation would be provided for all students living more than two miles from their assigned school.

The disestablishment of a dual system at the elementary level would be delayed under the decree until the opening of the 1972-73 school year. By that date, however, the Board of Education would be required to "disestablish by means of pairing and grouping * * * the presently existing dual system of racially identifiable elementary schools and to replace it with a unitary system * * and to assign elementary students to the schools in such a manner that no elementary school can be identified as a school primarily intended or used for the education of students of any particular race ,and to provide such transportation of students as may be necessary to implement its disestablishment plan for the elementary schools."

The plaintiffs, black residents of the school district, contend on appeal that the decree does not meet constitutional standards because (1) it needlessly delays integration at the elementary level; (2) it places an unequal share of the burden of integrating the secondary school level on black students for impermissible reasons; (3) it is not the plan best suited to achieve lasting integration; (4) it does not require assignment of faculty and staff in accordance with objective criteria; (5) it does not enjoin construction of an addition to a west end secondary school — Henderson — and thus encourages further segregation; and (6) it does not award plaintiffs attorneys' fees.

The defendants cross appeal. They argue (1) that the court abused its discretion in rejecting an alternative plan for the secondary schools, proposed by the Board of Education, which would have retained the Gibbs-Dunbar middle-grade school with a majority of black students and would have provided for the secondary grades to be organized on a somewhat different basis;³ (2) that the board should not be required to integrate the elementary schools at the beginning of the 1972-73 school year; and (3) that the board should not be required to transport any of the students who live more than two miles from the school to which they have been assigned, particularly those who will be attending the secondary school closest to their home.

We accelerated the appeal and, shortly after oral argument, issued an order partially affirming the decision of the District Court insofar as it applies to the secondary schools. We did so because the District Court's plan in that respect is constitutionally permissible and well within the broad discretion of the District Court to impose. All of the alternatives proposed by the Board of Education involved a one-race junior high school and, under the circumstances of this case, would have been constitutionally deficient. While many secondary school students will have to be transported at the board's expense under the approved plan, no showing was made at the District Court level or here that this burden will be unreasonable or that the students will be transported unreasonable distances. Furthermore, it is conceded by both parties that if a nonracial school system is to be achieved, there is no reasonable alternative to transporting many students.

We note the plaintiffs' objection that the plan fails to designate Mann, the present black high school, as a graduating high school. While we agree that the burden of integration must be shared by blacks and whites, we do not agree that the sharing of the burden at the secondary level, when considered as a whole, is so unequal as to require upsetting the District Court's plan. Most 8th and 9th grade students will be required to attend school facilities which have heretofore been identifiably black, and all 6th and 7th grade students will be required to attend schools in facilities that have previously been identifiably white. Two of the three high schools will be in the western section of the city and are schools which have been identifiably white schools; but the third — Central — is clearly recognized as an integrated school and is centrally located to both blacks and whites. Moreover, we are reassured by the board's declaration that all secondary schools will be thoroughly integrated as to faculty, class composition and extracurricular activities, and that the school administration will be sensitive to the aspirations of black students. Finally, we note that, under this decision, transportation costs will be paid for all secondary students who live more than two miles from the school to which they are assigned, unless they attend the school closest to their home. This will help to alleviate the burden resulting from the fact that more black than white students will be required to attend schools out of their neighborhood.

THE SCHOOL CONSTRUCTION PROBLEM

We turn next to the issue raised by the proposed addition to the Henderson School. There are reasons why we should not permit this addition to be completed. The original facility was built in 1963, nine years after the Supreme Court decided Brown I. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). It was built in a white residential area far from the black neighborhoods, and was staffed with a largely white administration. The addition was started in 1970 when the board was acutely aware of its responsibilities to integrate its school system. Indeed, the District Court specifically cautioned against proceeding with the addition without its express permission The addition could be considered an uneconomical one in that there is adequate space in other school buildings in the Little Rock school system to house the 6th and 7th grade students. On the other hand, the school district had spent nearly $100,000 on the project before construction was halted by injunction. The new classrooms will replace presently used portable classrooms, and the expenditure for foundations already incurred will be largely wasted unless the building is completed. Most importantly, the school will be completely integrated under the District Court plan. We thus permit the facility to be completed in accordance with the construction contract. We do, however, instruct the District Court that it is to revise its decree to provide that no additional school facilities are to be constructed by the Little Rock School District without the express permission of the District Court. We further hold that the test to be used by that court in permitting additional construction is whether the proposed facilities will contribute to the establishment of a unitary school system. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, 569, 570 (1971); Kelley v. Altheimer, Arkansas Public School Dist. No. 22, 378 F.2d 483, 496, 497 (8th Cir. 1967).

Swann teaches that many factors must be considered in determining school locations, but it would be constitutionally difficult to justify the construction of new facilities or additions to present facilities when sound existing facilities are already available which can be used without unreasonable burdens on the students and where the new facilities are being built to avoid integration. Public pressures to the contrary cannot be permitted to prevail.⁴

FACULTY AND STAFF ASSIGNMENT

It is clear that there will be a major faculty realignment as a result of the District Court's plan. The plaintiffs complain that the District Court's plan does not adequately protect black teachers because it does not require the board to establish objective nondiscriminatory criteria to be followed in reassigning teachers. The District Court stated that it would delay the establishment of such criteria until student assignment problems had been resolved. We find this delay to be impermissible.

We set forth the standards which a board of education must follow in reassigning teachers affected by the integration of a school system in our opinion, Moore, et al. v. Board of Education of Chidester School District No. 59, et al., 448 F.2d 709 (8th Cir. 1971):

"A board of education is obligated to use objective nondiscriminatory standards in the employment, assignment and dismissal of teachers. A

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