Dove v. Parham

• Decision Date: 30 August 1960
• Docket Number: No. 16437,16487.,16448,16437
• Citation: 282 F.2d 256
• Parties: Earnestine DOVE et al., Appellants, v. Lee PARHAM et al., Appellees (two cases). Lee PARHAM et al., Appellants, v. Earnestine DOVE et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F.2d 256 (1960)

Earnestine DOVE et al., Appellants, v. Lee PARHAM et al., Appellees (two cases).

Lee PARHAM et al., Appellants, v. Earnestine DOVE et al., Appellees.

Nos. 16437, 16448, 16487.

United States Court of Appeals Eighth Circuit.

August 30, 1960.

Robert V. Light and Herschel H. Friday, Jr., Little Rock, Ark., for Parham, et al.

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

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and DELEHANT, District Judge.

JOHNSEN, Chief Judge.

These appeals are from orders made by the District Court, 181 F.Supp. 504 and 183 F.Supp. 389 in a transition by Dollarway School District No. 2, Jefferson County, Arkansas, from a segregated to a desegregated school system. Involved are the things which have occurred in the situation since our remand in Parham v. Dove, 8 Cir., 271 F.2d 132.

One of the directions in our mandate, 271 F.2d at page 135, was that an injunction should be entered against the District and its officers to prevent them from continuing to maintain, as against the student plaintiffs and the class represented by them, the system of unconstitutional segregation to which the District had been subjecting them in their educational process.

This direction was made because the school board had up to that time taken no steps, even of a transitional nature, to bring about the disestablishment of the existing unlawful status — which a recognition of the responsibility made clear by the Brown cases, Brown v. Board of Education etc., 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, ought by then to have prompted.

We held, however, that, in view of the enactment of a state pupil placement or assignment statute, Act No. 461 of 1959, Ark.Stats. § 80-1525 et seq., the District would not be summarily required to make admission of the three individual plaintiffs involved to the school they sought to attend, but should be afforded the opportunity to make use of the provisions of the statute as a means or an aid in effecting an orderly location of pupils generally, in relation to the various factors which could be involved as to distribution in its school system, except those of purely racial consideration. 271 F.2d at page 137.

The recognition of facial validity which we thus gave to the statute was on the basis of it constituting a "legislative non-racial scheme", intended to serve in effecting student location through "overall pattern", instead of by promiscuous result. Id., at page 138. But we cautioned that "the statute cannot * * * be made to serve through artificial application, as an instrument for maintaining * * * a system of racial segregation". Id., at page 136.

Judicial persuasion would not normally tend to be produced that a placement or assignment statute was being used as an auxiliary in effecting an orderly solution of a school district's integration problems, where the district had refrained from adopting any program to disestablish its previous racial discrimination, where the only application of the statute engaged in by it was to Negro students seeking to escape their segregated status, and where the only result brought about thereby was to leave the racial situation in the school system remaining exactly as before.

Standards of placement cannot be devised or given application to preserve an existing system of imposed segregation. Nor can educational principles and theories serve to justify such a result. These elements, like everything else, are subordinate to and may not prevent the vindication of constitutional rights. An individual cannot be deprived of the enjoyment of a constitutional right, because some governmental organ may believe that it is better for him and for others that he not have this particular enjoyment. The judgment as to that and the effects upon himself therefrom are matters for his own responsibility.

In summary, it is our view that the obligation of a school district to disestablish a system of imposed segregation, as the correcting of a constitutional violation, cannot be said to have been met by a process of applying placement standards, educational theories, or other criteria, which produce the result of leaving the previous racial situation existing, just as before. Such an absolute result affords no basis to contend that the imposed segregation has been or is being eliminated. If placement standards, educational theories, or other criteria used have the effect in application of preserving a created status of constitutional violation, then they fail to constitute a sufficient remedy for dealing with the constitutional wrong.

Whatever may be the right of these things to dominate student location in a school system where the general status of constitutional violation does not exist, they do not have a supremacy to leave standing a situation of such violation, no matter what educational justification they may provide, or with what subjective good faith they may have been employed. As suggested above, in the remedying of the constitutional wrong, all this has a right to serve only in subordinancy or adjunctiveness to the task of getting rid of the imposed segregation situation.

That was the basis on which we held in our previous opinion, 271 F.2d at page 137, that the District was entitled to a use of the placement or assignment statute in relation to its desegregation task, when we stated that the statute was being accorded recognition "only as an implement or adjunctive element * * * for effecting an orderly solution to its (the District's) desegregation difficulties, in proper relationship to its other school-system problems, but with a subservience to the supreme-law declaration of the Brown cases as to all imposed segregation and the obligation owed to get rid thereof within the tolerance entitled to be allowed play under these decisions for accomplishing that result".

What has been said up to this point is foundational to our dealing with the questions presented by these appeals. Three appeals are before us. The first one, No. 16,437, involves a determination of whether the trial court was entitled to dismiss the complaint of the plaintiffs and deny them relief from the school board's refusal to admit them to the school they sought to attend. The second case, No. 16,448, is a cross-appeal by the District and the school board from the holding of the court that it had jurisdiction to deal with the complaint of the plaintiffs on its merits and was not required to make dismissal thereof on the basis that the plaintiffs had not exhausted their administrative remedies under the placement or assignment statute in respect to the board's action of denial against them. The third appeal, No. 16,487, is by the plaintiffs from the approval granted by the court to the transitional plan and program filed by the District after the other decisions here involved, in response to a requirement of the court that it submit "an affirmative statement of its plans and policies designed to bring about an end to compulsory racial segregation in (its) public schools".

I.

It is, we think, quite generally recognized that a solution to the problem of effecting desegregation will in most instances have to come through a series of progressive, transitional steps. And the Brown decisions appear to permit of the handling of a situation in this manner, provided the school district engages in making a "reasonable start toward full compliance" and continues to move forward with "all deliberate speed".

The question here as to the propriety of the court's approval of the school board's plan and program for bringing about an end to the compulsory segregation existing in the District's school system thus is in its overall significance the most important one before us, and it will accordingly be first considered.

The approval order was made on the basis of the court's expressed view "that the plan provides a start toward the elimination of racial discrimination, and that it is sufficient to initiate a transition period". 183 F.Supp. at page 393. Our difficulty with this is that what the school board has said it intends to do does not seem to us to contain any demonstrable objectivity, of either effort or aim, so as realistically to be appraisable as a "reasonable start" — not in subjectivity, but in affirmative effort.

In substance, the plan states generally that the school board intends to use the provisions of the Arkansas pupil placement or assignment statute in respect to any application made for admission to a school, other than the one which the student is now attending. Application of the provisions of the statute will be made, the plan states, in relation to such policies as that "it is undesirable and unsound educationally to transfer a child from the school which he is presently in attendance (at) to a different school"; that "the Board...