Norwood v. Tucker

• Decision Date: 02 March 1961
• Docket Number: No. 16586.,16586.
• Citation: 287 F.2d 798
• Parties: William Henry NORWOOD et al., Appellants, v. Everett TUCKER, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

287 F.2d 798 (1961)

William Henry NORWOOD et al., Appellants, v. Everett TUCKER, Jr., et al., Appellees.

No. 16586.

United States Court of Appeals Eighth Circuit.

March 2, 1961.

Wiley A. Branton, Pine Bluff, Ark., for appellants and Thurgood Marshall and James M. Nabrit, III, New York City, were with him on the brief.

Herschel H. Friday, Jr., Little Rock, Ark., for appellee, and Robert V. Light, and Howard Cockrill, Little Rock, Ark., were with him on the brief.

Before WOODROUGH, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

The plan for integration of the public schools in Little Rock, Arkansas, which was adopted by the Board of Education May 24, 1955, approved by the United States District Court in Aaron v. Cooper, 143 F.Supp. 855, on August 27, 1956, and affirmed by this Court April 26, 1957, 243 F.2d 361, is once more the subject before us on appeal.¹

Appellants are several of the original plaintiffs in Aaron v. Cooper, 143 F.Supp. 855, supra, a class action, and a number of Negro students who, upon motion in the trial court, were allowed to intervene. It appears that one of the intervenors has not joined in this appeal. Hereinafter, appellants will be referred to as "plaintiffs." The appellees are the Little Rock School District, Mr. Powell, Superintendent of Schools, and members of the Little Rock School Board serving during the 1959-60 school year, who were substituted for the members made defendants in the original action. For history and discussion of the tenure of various members of the Board, see opinion of the trial court, Aaron v. Tucker, D.C., 186 F.Supp. 913, at page 920. The appellees will hereinafter be referred to collectively as "defendants," or "the Board."

On August 8, 1959, plaintiffs filed a "motion for further relief" on behalf of themselves and all members of the class which they represent. Therein it was alleged that Negro students registered at Central, Technical and Hall High Schools for attendance at those schools during the 1959-60 school year, in accordance with school zones or attendance areas prescribed by defendants, but were notified on August 3, 1959, that they would not be admitted to those schools, but had been assigned to the Horace Mann High School.

In summary, the motion averred that plaintiffs, because of their race or color, were denied admission to the schools they are entitled to attend under a plan of desegregation presented by the Board and affirmed by court decree, thereby being denied equal protection of the laws in violation of the Fourteenth Amendment. The motion incorporated the legal proceedings to which we have already alluded in the margin under footnote 1, and alleged that the defendants are required to desegregate the schools in Little Rock in accordance with the court-approved plan, which fixes no qualifications for attendance other than the requirements which apply to all students, i. e., that they live within the school attendance zones or area of the schools which they desire to enter and attend.

Relief was sought to restrain defendants from refusing to admit plaintiffs and intervenors and all other Negro students who present themselves for admission to such Little Rock senior high schools as they may be entitled to enter pursuant to the prescribed school attendance areas.

Defendants' response to the motion is incorporated in the trial court's opinion, Aaron v. Tucker, D.C., 186 F.Supp. at pages 915-919. Therein, and at the trial, defendants advanced the position that after the action closing the schools had been declared unconstitutional (Aaron v. McKinley, D.C., 173 F.Supp. 944, supra), the high schools in Little Rock have been operated on a non-discriminatory basis, and in accordance with the pupil assignment laws of Arkansas (§§ 80-1519 through 80-1534, and 80-1234, Ark. Stats., 1947, Vol. 7, 1960 Replacement)² and Regulations adopted pursuant thereto.

After a trial of the issues on March 22 and 23, 1960, plaintiffs were denied any relief, their motion was dismissed, and the trial court found there was no reason for the court to retain jurisdiction of the cause since enforcement of the asserted rights is personal to those who may claim a violation thereof. Aaron v. Tucker, D.C., 186 F.Supp. at page 933.

Plaintiffs present two basic contentions: (1) that denial of injunctive relief permits defendants to unjustifiably modify the court-approved desegregation plan and impairs rights of plaintiffs secured by the plan and the Fourteenth Amendment; (2) that denial of injunctive relief permits continuation of racially discriminatory policies and procedures which tend to preserve segregation in violation of rights protected by the Fourteenth Amendment. We discuss these in the order presented.

In substance, the basic plan for integration of the Little Rock schools provides for a three-step program. Phase 1, encompassing the senior high school level, grades 10 to 12, was scheduled to begin in the fall of 1957. Because of a building program then in progress, it was estimated that two to three years would be required to complete segregation at this level. Phase 2, at the junior high school level, grades 7 to 9, was to start upon completion of the first phase of integration, and the third step, at the elementary level, grades 1 to 6, was to start after successful completion of phases 1 and 2, with integration to be completed not later than 1963.

The main point of disagreement is whether the plan contemplated that the Little Rock School District would be divided into separate attendance areas and that attendance would depend on residence alone. The original plan, together with the record of trial proceedings leading to court approval thereof, conclusively demonstrate that the district was to be divided into attendance areas. On May 20, 1954, three days after the Supreme Court rendered its decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the school board formally stated that it would "(d)evelop school attendance areas consistent with the location of white and colored pupils with respect to present and future physical facilities in Little Rock School District." In approving the plan, the district court observed, Aaron v. Cooper, D.C., 143 F.Supp. at page 861, supra:

"In accord with this plan the Board has completely reorganized its attendance areas. At present Central and Technical High Schools have a city-wide attendance area for white students, and Horace Mann High School has a city-wide attendance area for Negro students. Under the new plan Technical High School would remain a city-wide school for all students, but Central and Horace Mann High Schools, together with the new West End High School (Hall), would each have separate attendance areas. At this time there are no Negro students residing in the West End High School attendance area, but there are both Negro and white students residing in the Central and Horace Mann High School districts."

If any question existed as to whether the established attendance areas were within the contemplation of the plan, it was completely dispelled by school board action. Following approval of the plan, the school board divided the district into four senior high school attendance areas as follows: Technical High School, limited to teaching trades, was given a city-wide attendance area; Area 1, Horace Mann High School, an all-Negro school, was assigned a territory composed generally of the eastern part of the district; Area 2, Central High School, formerly an all-white institution, was assigned an area generally in the central part of the district, and Area 3, Hall High School, the new school, was assigned a territory composed generally of the northern and northwestern parts of the district. In this setting, plaintiffs' position, succinctly stated, is, every Negro child has the unqualified right to attend the high school situated in the area of his residence, e. g., a Negro child living in the Central High area is entitled to attend Central, without application of assignment or placement criteria.

While we are convinced that assignment on the basis of pupil residence was contemplated under the original plan of integration, it does not follow that the school officials are powerless to apply additional criteria in making initial assignments and re-assignments. We recognized in Aaron v. Cooper, 257 F.2d at page 34, supra, that implicit in the plan was consideration of criteria other than residence.

It must be remembered that following the approval of the original plan, the State of Arkansas enacted two pupil assignment or placement statutes, one in 1956 and the Act of 1959 under which the Board is now proceeding. This legislation is clearly designed to invalidate the practice of enrollment according to residence alone. Section 80-1525 (Acts 1959 No. 461) provides in part:

"The legislature also recognizes the necessity for a procedure for the analysis of the qualifications, motivations, aptitudes and characteristics of the individual pupils for the purpose of placement, both as a function of efficiency in the educational process and to assure the maintenance of order and good will indispensable to the willingness of the citizens and taxpayers of the State of Arkansas to continue a public educational system as a necessary public function, and also a vital part of the sovereignty and police power of the State of Arkansas. * * *

"Pending further studies and recommendations by the school authorities the legislature considers that any general or arbitrary reallocation of pupils heretofore entered in the public school system according to any rigid rule of proximity of residence or in accordance solely with request on behalf of the pupil would be disruptive to orderly administration, tend to invite or induce disorganization and impose an excessive burden on the available resources and teaching and administrative personnell personnel of the schools."

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