Dove v. Parham

• Decision Date: 12 May 1961
• Docket Number: Civ. A. No. 3680.
• Citation: 194 F. Supp. 112
• Parties: Earnestine DOVE et al., Plaintiffs, v. Lee PARHAM et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

194 F. Supp. 112

Earnestine DOVE et al., Plaintiffs, v. Lee PARHAM et al., Defendants.

Civ. A. No. 3680.

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

May 12, 1961.

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

Herschel H. Friday, Jr., Robert V. Light, Little Rock, Ark., for defendants.

HENLEY, Chief Judge.

This matter is now before the Court on a report filed on November 19, 1960, by the defendants, school directors and officials of Dollarway School District No. 2, Jefferson County, Arkansas, hereinafter called the Board, and a supplemental report filed on March 11, 1961, by means of which reports the Board seeks approval of its plan for the elimination of compulsory racial segregation of the public schools in the Dollarway district over a period of transition.¹

The validity and sufficiency of the plan incorporated in those two reports are challenged by the plaintiffs.

As part of its present plan the Board reiterates its recognition of the binding force of the Brown decisions and of the decisions of the Court of Appeals in this case, and reaffirms its good faith intention to move with all deliberate speed toward the elimination of compulsory segregation in the Dollarway district. The Board proposes to discharge its obligations through the utilization of a permissible period of transition, and through the application in a valid manner of the pupil assignment criteria set up in the Arkansas Pupil Assignment Law, Act 461 of 1959, and in the rules and regulations promulgated by the Board prior to the April 1960 decision of this Court in this case (183 F.Supp. 389).

Obviously, in assigning pupils to particular schools the Board is concerned, on the one hand, with students who have already entered school, and, on the other hand, with students who at the beginning of any school year are enrolling for the first time at the first grade level. With regard to students falling into the former category, the Board in its original plan announced a general policy against "lateral transfers" of students except in exceptional circumstances and set up a rather rigid definition of such circumstances. In its present plan the Board adheres in general to its policy against lateral transfers, but in deference to certain warnings contained in this Court's opinion approving its original plan, the Board states that said policy will not be enforced as rigidly at the lower grade levels as it will be with respect to students in the higher grades.

As to students entering school for the first time at the first grade level, the Board's original plan contained, to quote the Court of Appeals, "some general softening language," but in that Court's view the plan did not "set forth any definitive program or step on the board's part for so effecting desegregation, or hold forth any promise of such a result, as a `reasonable start' at this level." 282 F.2d at page 260.

The report filed on November 19, 1960, also contained some language indicative of a more liberal or lenient attitude toward the assignment of Negro children to the first grade at Dollarway, and in argument counsel emphasized the fact that the Board had assigned one Negro girl to the Dollarway school for the 1960-61 school year. This Court, however, was unable to find in the November plan a sufficiently affirmative and objective statement of the Board's future intentions with regard to first grade students to justify approval of that plan as a prompt and reasonable start toward the elimination of compulsory segregation.

In its supplemental report the Board states that at the first grade level a pre-school registration will be conducted so as to give every registering student and his or her parents the opportunity to indicate a preference as to the school in the district which they desire the registering student to attend;² that all of such students will be given nationally recognized tests, namely the California Short-Form Test of Mental Maturity and the Metropolitan Readiness Test dealing with reading and numbers;³ and that each student registering for the first grade who scores at least in the average range of such tests under nationally uniform grading will be assigned, subject to certain qualifications to be mentioned, to the school for which a preference is indicated. This means that a Negro child who expresses or for whom there is expressed a preference for attendance at Dollarway will, in general, and subject to qualifications, be assigned to that school. And, as pointed out in an earlier opinion (183 F.Supp. 389), once such a child is so assigned to Dollarway, the Board's policy against lateral transfers will tend to keep him there.

The qualifications to the general rule of assigning to the school of their choice first graders who score at least within the average range on the tests mentioned are that such assignments are to be consistent with available room and teaching capacity, and not "clearly contrary to applicable and nondiscriminatorily applied standards and criteria of the Pupil Assignment Law and the Board's Regulations under and pursuant thereto."

Students who score below the average range on the tests will be assigned initially "to the school at which, in the judgment of the Board, they will be afforded the greatest opportunities to develop their educational capacities."

Giving due weight to the arguments against the plan advanced by plaintiffs, the Court is persuaded that the plan is sufficient on its face to meet initial requirements, and that if actually carried out objectively and with a good faith intent to end ultimately the system of segregation which has existed traditionally in the Dollarway district, it will constitute an adequate start toward the elimination of such segregation and will initiate a permissible transition period.⁴

An affected school district is permitted during a transition period some freedom of selection in designating the Negro students who are to attend formerly segregated schools, and in that connection they may employ legitimate assignment criteria, and may even give some limited consideration to race. See Dove v. Parham, supra, 282 F.2d at page 262. And the Court feels that...