Dove v. Parham, Civ. A. No. 3680.

Decision Date08 October 1959
Docket NumberCiv. A. No. 3680.
Citation176 F. Supp. 242
PartiesEarnestine DOVE, A Minor, Age 16, by her Father and Next Friend, William Dove, James Edwards Warfield, A Minor, Age 13, by his Father and Next Friend, New James Warfield, Corliss Smith, A Minor, Age 12, by her Mother and Next Friend (Mrs.) Sarah Smith, Plaintiffs, v. Lee PARHAM, President of Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, Joe Pierce, Secretary, Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, Robert Bryant, Member of Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, Carl Purnell, Member of Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, Orville Phillips, Member of Board of Directors, Dollarway School District Number 2, Jefferson County, Arkansas, Charles L. Fallis, Superintendent of Public Schools, Dollarway School District Number 2, Jefferson County, Arkansas, and the Dollarway School District Number 2, A Corporation, Defendants.
CourtU.S. District Court — Eastern District of Arkansas

Robert L. Carter, New York City, and George Howard, Jr., Pine Bluff, Ark., for plaintiffs.

Mehaffy, Smith & Williams, Herschel H. Friday, Jr., and Robert V. Light, Little Rock, Ark., for defendants.

Affirmed in Part and Reversed in Part October 8, 1959. See 271 F.2d 132.

BECK, District Judge.

This is a class action1, in equity, brought by school-age children of the Negro race and their parents and others similarly situated, as plaintiffs, against the members of the Board of Directors of the Dollarway School District No. 2, Jefferson County, Arkansas, and that district, a corporation, with jurisdiction invoked under 28 U.S.C.A. §§ 1331 as amended and 1343(3) and 42 U.S.C.A. §§ 1981-1983.

The controversy, in main, raises the question as to the merits of the plaintiffs' claims, that the acts and deeds of the defendants while acting or purporting to act pursuant to the laws of Arkansas, (1) in providing public schools for the plaintiffs and the class of persons they represent, on a segregated and separate basis because of race and color alone, and (2) assigning and compelling them to attend and denying them the right to enter, enroll, register and receive instructions in the schools open to all other children of school-age in that district, constitutes a denial of rights and privileges secured and guaranteed to them as citizens under the Constitution and laws of the United States. As remedies, they seek (1) injunctive relief against enforcement, execution or operation of the statutes, rules and regulations of which they complain and (2) a declaratory judgment answering the following questions:

"Whether the acts and deeds of defendants, or either of them, while acting or purporting to act pursuant to the laws of the State of Arkansas, or while acting under color of Arkansas laws, of providing public schools for plaintiffs on a separate and segregated basis because of the race and color of plaintiffs and assigning plaintiffs to separate and segregated public schools on the classification of race alone and of forcing and compelling plaintiffs to enroll in and attend such separate and segregated schools because of their race and color, deny to plaintiffs and the class of persons that they represent, their privileges and immunities as citizens of the United States, and the equal protection of the laws secured to them by the Fourteenth Amendment to the Constitution of the United States, or rights and privileges secured to them by Sections 1981 or 1983, of Title 42, United States Code, and are, for those reasons, unconstitutional and void?
"Whether the acts and deeds of defendants, or either of them, while acting or purporting to act pursuant to the laws of the State of Arkansas, or while acting under color of Arkansas laws, of denying and refusing minor plaintiffs and the members of the class of persons that they represent, the right and privilege of registering, enrolling, entering, attending classes and receiving instruction in the public schools within the Dollarway School District Number 2 and under their supervision and control at the same time and under the same terms and conditions that all other minor residents of said district are permitted to register, enroll, enter, attend classes and receive instruction without any distinctions, restrictions, limitations or deprivations being made as to them because of, or on the basis of classification of, race or color, deny to minor plaintiffs and the members of the class of persons that they represent, privilege and immunities guaranteed to them as citizens of the United States, or the equal protection of the laws secured to them by Sections 1981 and 1983, of Title 42, United States Code, and are, for those reasons, unconstitutional and void?"2

Other questions to be settled and determined are those which arise (1) on defendants' motion challenging the court's jurisdiction, (2) on another for summary judgment, (3) on one to reassign to a three-judge district court under 28 U.S.C.A. §§ 2281 and 2284, should constitutional questions of a substantial nature be raised, and (4) on one more to dismiss the plaintiffs' complaint on the ground that the plaintiffs prior to the time of the commencement of the suit failed to exhaust administrative remedies under the Arkansas Pupil Enrollment Act of 1956.3

As to (1) suffice it to say that the case clearly is within one or more of 28 U.S.C.A. § 1331 as amended and 42 U.S.C.A. § 1983 and that the motion, therefore, must be denied. Shuttlesworth v. Birmingham Board of Education, D.C., 162 F.Supp. 372, affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145.

The Arkansas Pupil Assignment Act of 19594, which repeals the Arkansas Pupil Enrollment Act of 1956, insofar as its provisions are in conflict therewith and which as to terms is in all material respects identical to the School Placement Law of Alabama, is constitutional on its face, since its provisions assure equal rights to all children in any Arkansas school district, as pupil assignments are made. Like conclusion as to constitutionality on its face, is also reached as to the Arkansas Pupil Enrollment Act of 1956, since its terms and provisions conform substantially to those in the Alabama and the other Arkansas Act. Shuttlesworth v. Birmingham Board of Education of Jefferson County, Alabama, D. C.1958, 162 F.Supp 372, affirmed 358 U.S. 101, 79 S.Ct. 221.

Against that conclusion, the plaintiffs, mainly on the authority of Atkins v. School Board of City of Newport News, D.C.1957, 148 F.Supp. 430, affirmed 4 Cir., 1957, 246 F.2d 325, certiorari denied 1957, 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed. 2d 63, contend that the Pupil Assignment Laws of Arkansas, even without its Acts 4 and 5—both having been declared unconstitutional and void on June 18, 19595 — were a part of a plan and a scheme by the people of that state and its duly authorized representatives to maintain its traditional system of racial segregation in its public schools and to nullify the decisions in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and that they for that reason were unconstitutional and void.

Such a contention is not supported by the Atkins v. School Board of City of Newport News case, supra. The Virginia Pupil Placement Laws were held unconstitutional and void under that decision, not because they were a part of a plan for maintaining of segregation and eventual nullifying of the Supreme Court directives against racial discrimination in public schools, but because that plan embraced an Act6 in direct conflict with those directives, as it provided for the closing of all public schools, in any school district, and withdrawing of all public support therefrom if and when any racial integration in any school in such a district should take place or be permitted.

It is true that the court in that case regarded the various anti-racial integration acts in Virginia initiated and sponsored by its Governor, its General Assembly, other duly authorized legal representatives and its people, as a plan and a scheme to circumvent the decision in the Brown cases, yet, the court concluded that background as not fatal on the question of the constitutionality of the Virginia Pupil Placement Act, as it observed:

"* * * Virginia took the additional fatal step of providing for the automatic closing of all schools of the same class in the particular political subdivision as well as the cutoff of funds for such schools, irrespective of whether any child was assigned to another school pursuant to an administrative remedy or court order." Atkins, supra, 148 F.Supp. at page 445.

and it gave emphasis to the point as it added:

"In Carson v. Warlick, supra 4 Cir., 238 F.2d 724, the appellate court has held that the Pupil Placement Act of North Carolina is not unconstitutional on its face. North Carolina has not provided for either the automatic closing of any schools or the cut-off of state or local funds. Obviously the remedies afforded by North Carolina do not lead to a complete `blind alley' such as Virginia has prescribed." Atkins, supra, 148 F.Supp. at page 445.

In Shuttlesworth v. Birmingham Board of Education, supra, the court as it considered the constitutionality of the Alabama Pupil Assignment Law, had before it in the record a resistance plan to racial integration in the public schools of that state which included: (1) a report of the legislative interim committee, recommending an amendment to its state's constitution under which racial integration would be prohibited in the public schools; (2) enactment of a pupil placement law; (3) adoption of a Resolution of Interposition and Nullification7, and (4) under the theory of judicial notice, all other acts and...

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