Haney v. County Board of Education of Sevier County, 19899.

Decision Date29 June 1970
Docket NumberNo. 19899.,19899.
Citation429 F.2d 364
PartiesLela Mae HANEY et al., Appellants, v. COUNTY BOARD OF EDUCATION OF SEVIER COUNTY et al., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

Norman J. Chachkin, New York City, for appellants; Jack Greenberg, New York City, and John W. Walker, Philip E. Kaplan, and John T. Lavey, of Walker, Rotenberry, Kaplan, Lavey & Hollingsworth, Little Rock, Ark., on the briefs.

Boyd Tackett, of Shaver, Tackett, Young & Patton, Texarkana, Ark., for appellees; Nicholas H. Patton, Texarkana, Ark., on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

This is an appeal concerning the specifics of a proposed school integration plan. In Haney v. County Board of Education of Sevier County, Ark., 410 F.2d 920 (8th Cir. 1969), we found "as a matter of law that the school district lines of Sevier County were created to reflect racial separation by schools" and charged the defendant School Board and officials "with the affirmative duty fully and effectively to integrate their schools, faculties and transportation facilities." Id. at 926. On May 9, 1969 we remanded that case to the District Court "with directions that the County Board of Education of Sevier County present a workable plan to effectuate a completely non-racial school system in Sevier County for the school term of 1969-70." Id. at 926-927.

The Honorable Paul X. Williams of the District Court, by order dated June 24, 1969, required the County Board of Education to present such a plan to the court by July 15, 1969. On July 14 the County Board of Education filed a Response to Order setting forth a plan.1

On July 24 the District Court held a hearing on the plan at which the plaintiffs and Lockesburg School District submitted proposed alternatives2 to the plan submitted by the County School Board. The District Court expressly refused to make the Lockesburg School Board's plan3 either a part of the record or the court's official file.

A further hearing was scheduled for August 7 and the District Court circulated a draft decree to the parties prior thereto. The Court's proposal suggested that Sevier County School District No. 1 be annexed to the Lockesburg School District No. 16 and that the County Board of Miller County should appoint one to three, preferably three, school directors from the annexed district to Lockesburg School Board, increasing its number of directors to eight.

The final Order of the Court dated August 7, 1969 in pertinent part provided:

1. Sevier County School District No. 1 is hereby annexed by Lockesburg School District No. 16; 2. Three of the school board members of the Sevier County District No. 1 are named to the school board of Lockesburg District No. 16 (thereby increasing the board's membership to eight) to serve terms as provided in The Arkansas Quality Education Act of 1969.

3. The existing contracts for teachers employed by the Sevier County School District No. 1 are declared to be obligations of Lockesburg School District No. 16 and the Lockesburg District will utilize the services of five named teachers from the former Sevier County School District and of any other teacher of the former Sevier District at the discretion of the Lockesburg School Board.

4. The present Lockesburg School District No. 16 facilities will be utilized and only if they prove inadequate will the facilities of Sevier County School District No. 1 be used; if the Lockesburg facilities prove inadequate, grades 7-9 will use the Sevier No. 1 facilities.

The District Court did not expressly retain jurisdiction over the implementation of the Order. Appellants filed their Notice of Appeal on August 9.

The appellants, who were the plaintiffs in the remanded Haney case, contend that the District Court, in complying with this Court's mandate "to effectuate a completely non-racial school system in Sevier County for the school term 1969-70," erred in its initial premise by assuming that it was bound by Arkansas law, The Quality Education Act of 1969, Ark.Stat.Anno. § 80-4601 to 4615 (1969 Supp.). We agree. Appellees' assertion that the District Court for the District of Arkansas is bound to adhere to Arkansas law, unless the state law violates some provision of the Constitution, is not constitutionally sound where the operation of the state law in question fails to provide the constitutional guarantee of a non-racial unitary school system. The remedial power of the federal courts under the Fourteenth Amendment is not limited by state law. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). Therefore, it was not mandatory that the District Court model its Order dealing with annexation and the composition of the new school board after a state law which merely required the annexation of all school districts with less that "A" rated schools no later than June 1, 1979.

In Brown II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) the Supreme Court reversed and remanded the cases to local federal district courts "to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." Id. at 301, 75 S.Ct. at 757. The Court's rationale is clear:

"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power." Id. at 300, 75 S.Ct. at 756 (footnotes omitted).

See also United States v. Montgomery County Board of Education, 395 U.S. 225, 227, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). It is also appropriate to note that in Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965), in which the Supreme Court affirmed a district court's "holding that the provisions of the Louisiana Constitution and statutes which require voters to satisfy registrars of their ability to `understand and give a reasonable interpretation of any section' of the Federal or Louisiana Constitution violate the Fifteenth Amendment to the Constitution," the Court clearly stated that a federal district court "has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Id. at 154, 85 S.Ct. at 822.

Consequently, we can only conclude that regardless of the constitutionality of The Arkansas Quality Education Act, it in no way limits the equity power of a federal district court in fashioning a decree which will effectuate "a completely non-racial school system in Sevier County." While there is possible merit in the appellants' contention that a unitary school system for Sevier County should have been achieved by the consolidation of Sevier County District No. 1 and Lockesburg District No. 16, we do not find constitutional error in ordering the larger more populous former white school district to annex the smaller less populous former black school district if that annexation does in fact accomplish a unitary nonracial school system.

It is clear that the part of the District Court's Order which enlarges the Lockesburg School District board from five to eight members and names three members of the former Sevier County District No. 1 board to this enlarged board is violative of the Equal Protection Clause of the Fourteenth Amendment. The Order states that the three black board members' terms are to be governed by The Quality Education Act and § 13 of that Act states that such directors shall serve until the next regular school election, at which time an election for these three additional director positions will be held. Ark. Stat.Anno. § 80-4613 (1969 Supp.). However, under Arkansas Statute Anno. § 80-502.6 (1969 Supp.), the terms of the five white directors holding office at the time of the Order do not end at the time of the next regular school election, rather their terms (not to exceed four years) are to be established by resolution of two-thirds of the board's membership. Thus, not only does the Court's Order name but three of the five black members of the former Sevier County District No. 1 school board to the new board while retaining all five white members of the Lockesburg school board, but it also provides for the expiration of the three black members' terms at the next regular school election, whereas the five white holdover members' terms are to be established by a two-thirds resolution of the board and can be set for as long as four years.

Since the Boards of Directors of Arkansas school districts are elected officials exercising general governmental powers over the entire geographical area served by their districts, we feel that the District Court in structuring its equitable relief should order a popular election of the new school board so that each qualified voter in the district as now constituted has an equal opportunity to participate in the election of these local governmental officials. See Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970).

The appellants also charge that the portion of the Order which calls for paying the contract salaries of all teachers of the former Sevier County School District No. 1 while using only five of the black teachers in instructional positions is directly contrary to Smith v. Board of Education of Morrilton School Dist. No. 32, 365 F.2d 770 (8th Cir. 1966), and will make objective evaluation of all teachers most difficult when faculty reduction begins next school year. Although no teachers will have their contracts terminated until the...

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