Rogers v. Paul

• Decision Date: 07 May 1965
• Docket Number: No. 17870.,17870.
• Citation: 345 F.2d 117
• Parties: Janice ROGERS, a Minor, Age 16, Patricia Rogers, a Minor, Age 15, by Their Mother and Next Friend, Mrs. Corine Rogers, Appellants, v. Dr. Edgar F. PAUL, Dr. Roger Bost, John M. Yantis, Bruce Shaw, Jack Grober, Douglas G. Rogers, Board of Directors of Special School District of Fort Smith, Arkansas; Chris Corbin, Superintendent of Schools of Special School District of Fort Smith, Arkansas; Special School District of Fort Smith, Arkansas, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

345 F.2d 117 (1965)

Janice ROGERS, a Minor, Age 16, Patricia Rogers, a Minor, Age 15, by Their Mother and Next Friend, Mrs. Corine Rogers, Appellants, v. Dr. Edgar F. PAUL, Dr. Roger Bost, John M. Yantis, Bruce Shaw, Jack Grober, Douglas G. Rogers, Board of Directors of Special School District of Fort Smith, Arkansas; Chris Corbin, Superintendent of Schools of Special School District of Fort Smith, Arkansas; Special School District of Fort Smith, Arkansas, a Corporation, Appellees.

No. 17870.

United States Court of Appeals Eighth Circuit.

May 7, 1965.

Derrick A. Bell, Jr., New York City, made argument for appellants and filed brief with Jack Greenberg and John W. Walker, New York City, and George Howard, Jr., Pine Bluff, Ark.

Bruce H. Shaw, of Shaw, Jones & Shaw, Fort Smith, Ark., made argument for appellees and filed brief with John S. Daily, of Daily & Woods, Fort Smith, Ark.

Before VOGEL, MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

In Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, decided June 3, 1963, the Supreme Court held unconstitutional so-called voluntary transfer provisions incorporated in the formal desegregation plans adopted by the school boards of the Knoxville, Tennessee and the Davidson County, Tennessee School Districts. In the desegregation plan adopted by the school board of the Special School District of Fort Smith, Arkansas, a voluntary transfer provision was incorporated under which any student, upon request, was permitted, solely on the basis of his own race and the racial composition of the school to which he was assigned by virtue of the attendance area in which he resided, to transfer from such school, where he would be in racial minority to the school in which his race or color predominated.

Approximately three months after Goss was decided, Mrs. Corine Rogers, a Negro parent, filed this suit in behalf of her two minor daughters, Janice, then 16, and Patricia, then 15, and in behalf of all other Negro minors within the Special School District of Fort Smith, Arkansas, who are similarly situated because of race and color. She sought to enjoin the school board members and the District Superintendent, defendants in the action, from maintaining and operating segregated public schools in such district. Janice graduated from the twelfth grade upon completion of the 1963-1964 school term, and as to her the issues presented by this litigation are now moot. Patricia will enter the last year of high school with the advent of the 1965-1966 school year.

The allegations of the complaint upon which plaintiffs (hereinafter designated as appellants) premise their right to relief appear verbatim in the District Court's opinion (Judge John E. Miller), 232 F.Supp. 833 (1964) and need not be fully restated herein. It is sufficient to recall that appellants alleged that defendants (hereinafter sometimes designated as appellees) were maintaining and operating segregated high schools for the minor appellants and the members of the class they represent; were maintaining and operating the voluntary transfer system for assignment of pupils; were maintaining and approving budgets, programs and curricula designed to perpetuate and maintain compulsory racially segregated schools; and were assigning principals, teachers, and administrative personnel to the various high schools on the basis of their race and color, all in violation of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution.

At a pretrial conference held after the issues had been joined, the Court ruled that the voluntary transfer provision was invalid and granted appellees a reasonable time to file a revised plan of integration. On July 17, 1964, appellees, in compliance with the Court's order, filed a revised plan which also came under attack by appellants.

After a trial on August 10, 1964, the Court, on August 19, 1964 filed its opinion, and entered judgment approving and confirming the revised plan of integration. The Court, however, retained jurisdiction of the cause for a decision "of any question that might arise as to the assignment of teachers and principals."

We revert now to the original desegregation plan, the circumstances attending its adoption, its effect upon segregation, and to other pertinent facts and circumstances.

Following Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the Board of the Special School District of Fort Smith, pursuant to voluntary action on its part, announced a policy on integration of the Fort Smith public schools. The policy was enunciated in a plan which was formulated and adopted by the Board in 1956. The plan became effective at the beginning of the 1957-1958 school year, provided for the desegregation of one grade each year commencing with the first grade and progressing through the twelfth grade, and as noted, had incorporated therein the voluntary transfer provision.

There are now 30 schools in the District. In the 1963-1964 school year the total school population was slightly in excess of 14,000. The average daily attendance of Negro pupils was 1,082, and the average daily attendance of white pupils was 11,423. In that same school year 39 Negro pupils were enrolled in and attended predominantly white schools. It appears that pupils of both races took advantage of the voluntary transfer provision. Thus, by way of illustration, in the 1963-1964 year 323 white pupils and 214 Negro pupils transferred from schools located in their residential areas, which they were at liberty to attend, to other schools where their race predominated. The Superintendent testified without contradiction, that if the voluntary transfer provision had not been utilized there would have been 150 to 170 Negro pupils attending predominantly white elementary schools in the 1963-1964 year, and approximately 100 white students would have attended predominantly Negro schools in the same school year. The facts in regard to the transfer issue caused Judge Miller to observe "It seems clear that the great majority of pupils, white and Negro, do not desire to attend an integrated school." 232 F. Supp. at p. 838.

The revised plan readopted what may appropriately be referred to as the geographic school zoning system. The voluntary transfer provision was eliminated. Under the plan "all pupils will be assigned to the elementary school district in which they reside, without regard to race." However, there was excepted from the plan's operation for a period of one year the following three elementary school attendance areas having a predominantly Negro population: Howard Elementary School, having a ratio of approximately 55 white pupils to 530 Negro pupils; Dunbar Elementary School, having a ratio of approximately 22 white pupils to 60 Negro pupils; and Washington Elementary School, having a ratio of approximately 30 white pupils to 70 Negro pupils. The exception was made to permit pupils residing in the three named attendance areas to resort to the voluntary transfer provision for the stated period of one year.¹

The revised plan provides that integration was to continue on the basis of a grade each year until complete integration through the twelfth grade has been accomplished. Thus, under the plan the eighth grade was integrated during the 1964-1965 school year and four additional years will be required to fully integrate all grades.

Provisions in the revised plan, not found in the original one, are designed to effect reorganization and establish the 6-3-3 system so as to provide a basic six-year elementary school program, a three-year junior high school program, and a three-year senior high school program commencing in September 1965.²

The plan also contemplates a reorganization of the secondary schools in a manner that will better serve the community and meet the educational needs of the pupils. It is expressly provided that "Any transfer either voluntary or involuntary of a pupil from one secondary school district to another must be done hereafter for reasons that appear adequate to the administration, which reasons are neither based upon nor influenced by race or color."

The foregoing background facts bring us to the issues presented in this appeal. We will advert to other pertinent facts during our consideration and discussion of the contentions of the parties.

Summarily stated, appellants contend that the District Court erred in approving the revised plan for the reasons: (1) it unreasonably delays total desegregation for four years; (2) it unreasonably subjects the minor appellants and other Negroes similarly situated to an inferior as well as segregated education and prevents Patricia Rogers from attending the predominantly white Northside High School; (3) it deprives the minor appellants and other Negroes similarly situated of their constitutional right to instruction by teachers assigned without regard to race. The fourth and final contention brings into issue the refusal of the trial court to allow reasonable attorney's fees to appellants for the prosecution of this litigation.

We pause to observe that appellants do not attack or challenge the validity of the geographic school zoning system embraced by the revised plan. Neither is there any hint or suggestion of intentional gerrymandering of the school zones so as to confine one race to attendance at a particular school as was the situation in Taylor v. Board of Education of City School District of New Rochelle, 294 F.2d 36 (2 Cir. 1961), cert. denied 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961). Thus, we have here a case where the primary and basic complaint is that the school board has moved too deliberately and with insufficient speed in bringing about desegregation of all of the grades in the Fort Smith system. What appellants are obviously desirous of accomplishing by this litigation is desegregation of grades nine through...