Dove v. Parham

• Citation: 181 F. Supp. 504
• Decision Date: 19 February 1960
• Docket Number: No. 3680.,3680.
• Parties: Earnestine DOVE, A Minor, by her Father and Next Friend, William Dove, James Edwards Warfield, A Minor, by his Father and Next Friend, New James Warfield, and Corliss Smith, A Minor, by her Mother and Next Friend, (Mrs.) Sarah Smith, Plaintiffs, v. Lee PARHAM, Joe Pierce, Robert Bryant, Carl Purnell, and Orville Phillips, Respectively President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Dollarway School District Number 2, A Corporation, and Charles L. Fallis, Superintendent of Public Schools of said District, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

181 F. Supp. 504

Earnestine DOVE, A Minor, by her Father and Next Friend, William Dove, James Edwards Warfield, A Minor, by his Father and Next Friend, New James Warfield, and Corliss Smith, A Minor, by her Mother and Next Friend, (Mrs.) Sarah Smith, Plaintiffs, v. Lee PARHAM, Joe Pierce, Robert Bryant, Carl Purnell, and Orville Phillips, Respectively President, Secretary and Members of the Board of Directors, Dollarway School District Number 2, Dollarway School District Number 2, A Corporation, and Charles L. Fallis, Superintendent of Public Schools of said District, Defendants.

No. 3680.

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

February 19, 1960.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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 public school desegregation case is now before the Court on the supplemental complaint of the plaintiffs, which complaint has been heard on its merits, subject to the motion of the defendants to dismiss, or, in the alternative, for a stay of proceedings.

The plaintiffs, Negro children of school age residing within Dollarway School District No. 2, Jefferson County, Arkansas, commenced this suit originally as a class action to put an end to racial segregation in the public schools of the district, and to obtain an adjudication that the Arkansas pupil placement laws of 1956 and 1959¹ are unconstitutional as violative of the 14th Amendment to the Constitution of the United States as construed by the Supreme Court of the United States in the Brown cases. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.

In resisting the plaintiffs' original claim for relief, the defendants, the members of the board of directors of the Dollarway School District, and the Superintendent of Schools of said District, took the position that the statutes above mentioned were constitutional, that plaintiffs had not exhausted their administrative remedies under said statutes, and for that reason had no standing in this Court. While the defendants conceded that prior to the Brown decisions the public schools in the Dollarway District had been operated on a racially segregated basis, and while they conceded further that they had adopted no affirmative plan for integration of the schools, either at once or over a period of time, they asserted that they recognized the force of Brown and that they proposed to administer the assignment statutes in a racially nondiscriminatory manner.

On July 31, 1959, following a trial, this Court held that, while the Arkansas statutes were constitutional, the defendants were employing the pupil assignment laws so as to perpetuate segregation in the public schools, that recourse by the plaintiffs to the administrative procedures provided by the statutes would be futile, and that the plaintiffs should be admitted to the all-white Dollarway School at the commencement of the 1959-60 school year.² Dove v. Parham, D.C.Ark., 176 F.Supp. 242.

Both sides appealed from the rulings of the trial court. Due to the importance of the litigation and to the imminence of the 1959-60 school term, the Court of Appeals advanced the case and heard oral argument on September 21, 1959. The arguments having been concluded, the Court announced from the bench that it was affirming the decision of the District Court to the extent that said decision upheld the facial constitutionality of the Arkansas assignment statutes, but that it was reversing that part of the judgment which held that the plaintiffs were entitled to admission to the Dollarway School without exhausting the administrative remedies provided by said statutes, and particularly by Act 461 of 1959.³ The Court directed that its mandate issue forthwith, but reserved the right to file a formal opinion, and on October 8, 1959, it filed such an opinion setting forth its views. Parham v. Dove, 8 Cir., 271 F.2d 132. It is hardly necessary to say that this opinion of the Court of Appeals established the law of the case and is binding upon this Court at this time.

The mandate of the Court of Appeals, which was filed in this Court on September 23, 1959, provided, among other things, that an injunction should be issued restraining the defendants "from continuing to maintain the system of unconstitutional segregation, which has heretofore existed in Dollarway School District No. 2." It was provided further that the case should remain open upon the docket "to permit the filing of such supplemental complaint, if any, as might be entitled to be presented to the Court, in case of an unconstitutional application of the provisions of the Pupil Assignment Act of 1959 against the plaintiffs, or of other unconstitutional action on the part of the School District in relation to them."⁴

Act 461 of 1959 provides for the assignment by local school boards of particular students to particular schools in accordance with criteria prescribed by the Act.⁵ A procedure is provided whereby a student dissatisfied with his assignment may obtain a hearing before the board. The Act provides for an appeal from final board action to the circuit court of the county in which the school district involved is located and for appeal from the circuit court to the Supreme Court of Arkansas.

On August 17, 1959, the Board formally adopted regulations which included a procedure for handling applications for transfer and which adopted the criteria set forth in the statute. The regulations provided, however, that the matters considered by the Board in making assignment and transfer determinations were not necessarily limited to the statutory criteria.

Soon after the decision of the Court of Appeals, the plaintiffs, all of whom initially had been assigned to the Townsend Park School for the 1959-60 school year, applied to the Board for transfers to the Dollarway School. At the direction of the Board the plaintiffs submitted to physical examinations, were given intelligence tests, and were interviewed by a psychiatrist and an educational psychologist engaged by the Board. Thereafter, on October 8, 1959 (the same day, incidentally, that the written opinion of the Court of Appeals was filed), the Board held a hearing on plaintiffs' applications. In due course the Board made findings to the effect that when the assignment criteria provided by the statute and by the Board's regulations were applied to the respective plaintiffs, all of the requested transfers should be denied. The plaintiffs filed exceptions to the Board's determinations, as provided by the statute, which exceptions were overruled. The overruling of the exceptions constituted final Board action on plaintiffs' applications for transfer, and it was open to plaintiffs to appeal to the Circuit Court of Jefferson County, Arkansas. Instead of doing that, however, the plaintiffs filed their supplemental complaint in this Court alleging that the actions of the Board in denying their respective transfer requests were based on racial grounds and amounted to an unconstitutional application of the 1959 pupil assignment law.

The defendants moved to dismiss the supplemental complaint, or, in the alternative, for a stay of proceedings "until the plaintiffs have presented their complaint to the appropriate State Courts and the State Courts have finally determined the issues." The prayer for a dismissal was based upon the contention that the State court procedures set up by the statute were a continuation of the administrative process, and that since the plaintiffs had failed to appeal to the Circuit Court of Jefferson County, they had not exhausted their administrative remedies and had no standing in this Court. The alternative prayer for a stay was predicated upon the doctrine of "equitable abstention," recognized in cases such as Harrison v. N. A. A. C. P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; and Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, and applied from time to time by this Court. See e. g. N. A. A. C. P. v. Bennett, D.C. Ark., 178 F.Supp. 188 and 178 F.Supp. 191; see also Union Carbide & Carbon Corp v. White River Distributors, Inc., D.C.Ark., 118 F.Supp. 541.

At a pretrial conference the Court announced that it was reserving its ruling on the motion pending a hearing on the merits. The defendants then answered and, while reserving their rights under their motion, took the position that there had been no unconstitutional application of the pupil assignment law.

A hearing on the merits was held on December 16, 1959, in the course of which the Court received documentary evidence and heard testimony and oral arguments. At the conclusion of the hearing briefs were requested and the same have now been filed and considered.

I. The Failure Of The Plaintiffs To Resort To The State Court As A Failure To Exhaust Their Administrative Remedies

It is undisputed that the plaintiffs followed all of the administrative procedures before the School Board prescribed by Sections 7 and 9 of Act 461 of 1959. On the other hand, it is admitted that the plaintiffs did not pursue the remedy in the State court provided by Section 9 of the Act.

Section 9 of the Act states that the findings and actions of a local school board with respect to the assignment of a pupil to a particular school shall be final, except that where it is contended that an individual assignment is violative of the Constitution of the United States or of the Constitution or laws of the State of Arkansas, the pupil affected may appeal to the circuit court "on such ground alone," that the trial in the circuit court shall be "de...