Petition — Morrilton School District No. 32 v. United States
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TOVeTverts We
A Re
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
No.@9-718
MorrRILTON SCHOOL District No. 32, TERRY A. HUMBLE,
Superintendent; W. O. Byrp, Dr. H. B. Wuite, HUGH LOVE,
WILLIAM CHEEK, Members; Peextervitre- SCHOOL DISTRICT NU.
NT TT WILLIAM P. Evans, JACK
GORDON, FRANK DEAVER, CHARLES TOWNSLEY, BILLY GARRETT,
Members
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
FELVER A. ROWELL, JR.
196 South Chestnut
Morrilton, Arkansas 72110
Attorney for Petitioners Plumerville
School District No. 39, et al.
ROBERT V. LIGHT
2000 First National Building
Little Rock, Arkansas 72201
Attorney for Petitioners Morrilton
School District No. 32, et al.
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
al
TABLE OF CONTENTS
Page
ESE i OED SR REE l
EE ae 2
ee ea ace ake ek Ko abs eda ere see's 2
De ic aed ia cst aoeseneccs 2
Constitutional Provision Involved ................... 3
ee eau nds gwb ese scsesescccesne 3
Reasons for Granting the Writ .............ececesees 6
The Remedy Eee 12
EE LEE AE OTE TERETE ER TEE Te 16
ee eA ha dbp dé is 4.000006 A-1—A-60
A. Order of Court of Appeals of June 13,1979... = A-!1
B. Order of Court of Appeals of June 18,1979... A-3
C. Opinion of Court of Appeals of August 30,
ang gag win w0ai-se eee A-5
D. Opinion of district court of July 26, 1973 ..... A-21
E. Decree of district court of July 26, 1973....... A-4)
F. Supplemental order and decree of district court
ES re A-43
G. Oral decision of district court of March 2, 1979 A-50
H. Order of district court of March 6, 1979 ...... A-60
ii
Table of Cases Cited
Page
Arlington Heights v. Metro Housing Corp., 429 U.S.
NS iii en ha ens pare eine hoc ee 9
Bradley v. Milliken, 540 F.2d 22% (6 Cir. 1976) ........ 10
Bradley v. Richmond, 426 F.2d 1058 (4 Cir. 1972) ..... 6,9
Columbus Board of Education v. Penick, 61 L.Ed.2d
EN eck cues sh eveneeekabtennnes th. Ms
Dayton Board of Education v. Brinkman, 433 U.S. 406
EE as Gk us ons Wen en Renee waren nen geass 11,14
Dayton Board of Education v. Brinkman, 61 L.Ed.2d
ae is senha skdebs ede oak uns G
Estes v. Metropolitan Branches of Dallas NAACP, 99
Ss ek nb Kae ewha pees Ose sae 6,11
Milliken v. Bradley, 418 U.S. 92 (1974)............. 6,7,8,9,12
Swann v. Charlotte-Mecklenburg Board of Education,
ee INS 5 his a meee o xce beens cekbenes 12
Tasby v. Estes, 412 F. Supp. 1185 (N.D. Tex.1975)..... 10,11
Tasby v. Estes, 572 F.2d 1010 (5 Cir. 1978)............ 6,11
United States v. Board of School Commissioners, 573
eof | Ce rer ere er rrr rer rer 6,11
United States v. State of Missouri, 515 F.2d 1365 (8 Cir.
PSRs ia ae aera forearms Tarr ae Oe 6,9
University of California v. Bakke, 57 L.Ed.2d 750
EE CDRs ak uk sacs Chie MERG WAN eae how es 9
Washington v. Davis, 426 U.S. 229 (1976) ............ 9
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
No.
MorRILTON SCHOOL District No. 32, TERRY A. HUMBLE,
Superintendent; W. O. Byrp, Dr. H. B. WHITE, HUGH PLUMER-
VILLE SCHOOL District No. 39, DoyLE BORDER, Superintendent;
WILLIAM P. EvANs, JACK GORDON, FRANK DEAVER, CHARLES
TOWNSLEY, BILLY GARRETT, Members
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioners pray that a writ of certiorari issue to review the
order of the United States Court of Appeals for the Eighth Cir-
cuit entered in this case on June 13, 1979, as amended by its
order entered June 18, 1979, and as amplified by its opinion fil-
ed August 30, 1979.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Eighth Circuit is not yet reported. It is set forth in the Appendix,
pp. A-1 A-20. The decision and decree of the United States
District Court for the Eastern District of Arkansas entered July
26, 1973, supplemental order and decree entered August 23,
1973, decision orally delivered from the bench on March 2, 1979,
and order entered March 6, 1979 are unreported. They are set
forth in the Appendix, pp. A-21 A-59.
JURISDICTION
The orders of the United States Court of Appeals for the
Eighth Circuit were entered June 13, 1979 and June 18, 1979.
On September 3, 1979 Mr. Justice Blackmun entered an order
granting an extension of time for filing this petition to
November 9, 1979. The jurisdiction of this Court is invoked
under 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
I. Is a federal district court authorized to require public
school districts, operating racially unitary systems, to con-
solidate with another district found to be operating a
racially unconstitutional system which the former districts
did not participate in establishing or maintaining?
II. Did the courts below err in resting their findings of
jurisdiction to order public school districts to be con-
solidated on an inference of intent to discriminate and im-
puting that intent to petitioners based only on a pattern of
school district consolidation in the 1920’s, 1930’s, and
1940’s resulting in some isolated non-continguous areas
and one district with a larger proportion of black students
than the other five districts in the county?
III. If the district court was correct in its conclusion that
it had jurisdiction to require the Morrilton and Plumerville
districts to participate in a compelled remedy for the situa-
tion found to be unconstitutional in the East Side District,
did it err in selecting and imposing the most drastic and
disruptive of the proposed plans before it when other plans
before it would have achieved the same constitutional ends
_ with significantly less intrusion by the federal court into
local affairs and less abrogation of valid state laws?
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Equal Protection Clause of the Four-
teenth Amendment to the Constitution of the United States.
STATEMENT
Petitioners are two Arkansas public school districts and their
managing officials. This suit was brought in 1972 in the United
States District Court for the Eastern District of Arkansas by the
Attorney General against multiple State and local school entities
and authorities alleging that two local entities had been
established and maintained as all-Negro elements of a dual
school system by the State in violation of the Fourteenth
Amendment and Title IV of the Civil Rights Act of 1964. In-
junctive relief was sought to correct the alleged situation. Mo-
tions of the ‘‘State defendants’’ to dismiss as to them were
granted and the case was tried in 1973. Thereafter, Judge J.
Smith Henley entered orders holding the East Side School
District to be unconstitutional and effectively abolishing the
other local entity concerning which complaint was made. As re-
quired by the court, all local defendants submitted plans to cure
the situation in East Side found unconstitutional.
The district court took no further significant action until 1979
when Judge G. Thomas Eisele (to whom the case was assigned
after Judge Henley’s appointment to the Court of Appeals) con-
ducted a trial on March 1 and 2, 1979 limited to the issue of a
remedy. At the conclusion of that trial he ordered adoption of a
plan sponsored by the government involving consolidation of
three of the defendant school districts over the objection of each
of them. Petitioners, two of the school districts ordered con-
solidated, filed a petition in the Court of Appeals to appeal
from the district court’s orders under the provisions of 28
U.S.C. §1292(b) which was granted. Argument to the Court of
Appeals en banc was presented on June 12, 1979 and on June
13, 1979 that court’s order (amended June 18, 1979 to correct
typographical errors) which petitioners seek to have reviewed
was entered.
While it was conceded in the district court that petitioners
were each operating unitary school systems, Judge Eisele did
not undertake to reexamine Judge Henley’s 1973 opinion in
light of the intervening decisions of this Court and ordered an
essentially immediate consolidation of petitioners and East Side
School District. In the Court of Appeals the government again
conceded that petitioners had each operated unitary school
systems for many years and the record clearly demonstrated that
neither petitioners, nor their predecessors, had participated in
any way in the creation or maintenance of East Side School
District. The government’s submission in the Court of Appeals,
apparently accepted by that court, was that since the ultimate
power of the State was involved in fixing the boundaries of the
East Side School District the federal courts can involve any state
agency found to be convenient to formulating a remedy. That
position was stated in this language in the government’s Brief in
the Court of Appeals:
**Thus, the controlling question is not, as defendants con-
tend, which group of state agents established the East Side
District, but whether it was established by state agents as a
part of a dual school system which included the defendant
school districts.’’
In his 1973 decision Judge Henley found petitioners to have
been innocent of any unconstitutional acts contributing to the
formation of the East Side District. The Court of Appeals ap-
parently accepted that finding but held that State laws pertain-
ing to school consolidation, although racially neutral, had been
employed by the East Side District to bring about its unconstitu-
tional existence and this ‘‘State action’’ provided the jurisdic-
tional basis for ordering the consolidation.
Petitioners assert that these constitutional decisions of the
courts below are in conflict with the applicable decisions of this
Court and other Courts of Appeals. Petitioners further assert
that even if this record did furnish jurisdictional support for im-
position against them by the district court of an injunction to
participate in some degree in a solution of the situation in the
East Side District it found unconstitutional, the extreme sanc-
tion of coerced consolidation it did impose is impermissible
under the applicable teachings of this Court.
REASONS FOR GRANTING THE WRIT
This case merits review by this Court to settle the recurring
question of what constitutes a jurisdictional basis for a federal
district court to make the ultimate intrusion into local affairs in
a school desegregation context of coerced consolidation of
school districts. Many had thought the question to be settled by
Milliken v. Bradley, 418 U.S. 92 (1974). The Fourth Circuit in
Bradley v. Richmond, 462 F. 2d 1058 (4 Cir. 1972) affirmed by
an equally divided court in Bradley v. Richmond, 412 U.S. 92
(1973) and the Fifth Circuit in Tasby v. Estes, 572 F. 2d 1010 (5
Cir. 1978) cert. granted sub nom., Estes v. Metropolitan Bran-
ches of Dallas NAACP, 9 S.Ct. 1212 (1979) are in agreement
that an intentional constitutional violation with a casual nexus
to unconstitutional situation sought to be remedied must be
demonstrated in order to provide a jurisdictional basis to re-
quire an inter-district remedy. The judges of the Seventh Circuit
agree with this statement of constitutional principle, but are
disagreed among themselves on the nature and scope of the
proof of discriminatory intent required in this regard. United
States v. Board of School Commissioners, 573 F.2d 400 (7 Cir.
1978). However, the Eight Circuit, first in United States v. State
of Missouri, 515 F.2d 1365 (8 Cir. 1975) cert. denied 423 U.S.
951 (1975), and again in the case at bar has ordered consolida-
tion of school districts innocent of any participation in creating
an unconstitutional situation in a nearby school district on the
apparent theory, rejected in Milliken, that since racially neutral
State laws were used to create the unconstitutional result any
convenient State instrumentality (i.e. nearby school districts)
may be ordered to participate in a remedy.
The historic principle of local control of the public schools is
too important to permit this rule to prevail in the Eighth Circuit
and to survive as perhaps inviting and persusasive precedent in
other jurisdictions.
The courts below failed to give effect to this Court’s holding
in Milliken that in order for a federal court to coerce involve-
ment of a unitary school district in a remedy involving another
district found to be guilty of constitutional violation the former
must be found guilty of a constitutional violation proximately
causing the unconstitutional situation in the latter. The failure
to make such a showing in Milliken, except in isolated instances
and except for discrimination not regarded by this Court to be
proximately related to the Detroit school system’s unconstitu-
tionality, led to reversal of the lower courts’ announced course
of involving the districts surrounding Detroit in such a remedy.
While Judge Henley stated in his 1973 opinion, a year prior to
the decision in Milliken, that ‘‘some of the defendant districts in
this case did transfer pupils from district to district in order to
preserve segregation in the schools,’’' the cornerstone upon
which he rested his decision was that he possessed authority to
require restructuring of the State subdivisions before him with-
out a finding of constitutional violation. At page 13 of the
opinion he stated:
'There was no such proof pertaining to Morrilton. For decades it
has been common to permit students to transfer rather freely from the
district of their residence for many non-discriminatory reasons in-
cluding convenience of travel and access to more comprehensive
educational opportunities, but there is no proof in this record that
would support a finding that such transfers were accomplished ‘‘in
order to preserve segregation in the schools.’’ Moreover, this Court in
Milliken regarded an arrangement whereby Negro students of one
district were sent to a predominantly Negro high school in another
district to be a ‘‘comparatively isolated’’ situation which would not
support the relief ordered by the trial court. This Court also rejected
the argument that since all of the school districts involved were sub-
divisions of the State, the State was derivatively responsible for the ac-
tions of each and this would warrant imposition of inter-district relief.
The Court concluded that the boundaries of the school districts in-
volved were established pursuant to ‘‘neutral legislation’’ and the fact
that the ultimate result of operation under such legislation was heavy
concentration of blacks in the Detroit School District did not
authorize inter-district relief, saying:
‘** * * the Court does not consider the ‘innocence’ of the
defendant districts to be of controlling importance.’’
(A. 35)
However, the teachings of Milliken are to the effect that ‘‘in-
nocence’’ in this context does indeed place a school district
beyond the remedial power of a federal court dealing with con-
stitutional violations in other districts. The Court noted at 418
U.S. 745:
**Conversely, without an inter-district violation and inter-
district effect, there is no constitutional wrong calling for
an inter-district remedy.”’
The most that can be said on this record is that the East Side
defendants, and their predecessors, employed neutral State
legislation to achieve an end result that is arguably unconstitu-
tional.’ Petitioners had nothing whatever to do with that course
of conduct. Neither do the facts in the record afford any basis
for an inference that the petitioners have acted to exclude Negro
students from their boundaries. From the earliest data introduc-
ed at trial to the present they have had significant numbers of
Negro students and have discharged their obligation of
educating them.
After the publication of Milliken Judge Henley requested,
and received, briefs dealing with the impact of that decision on
this litigation but made no further ruling. Judge Eisele accepted
“Where the schools of only one district have been affected,
there is no constitutional power in the courts to decree relief
balancing the racial composition of that district’s schools with
those of the surrouding districts.’’ 418 U.S. 749.
«* * * the mere fact of different racial compositions in contiguous
districts does not itself imply or constitute a violation of the Equal
Protection Clause * * *.’’ 418 U.S. 756
Judge Henley’s decision, saying at the 1979 hearing that
*‘Judge Henley declared this system unconstitutional’’ and
ruled that the 1979 proceedings before him would be analogous
“*to a sentencing procedure, as opposed to a trial.’’ The Court
of Appeals accepted the derivative liability concept adopted by
Judge Henley, and urged by the government in the courts
below, in square conflict with this Court’s decision in Milliken.
Other decisions of this Court subsequent to Judge Henley’s
1973 opinion confirm that in order to establish an equal protec-
tion violation by State officials or agencies a ‘‘racially
discriminatory purpose’’ or a ‘‘purpose and intent to segregate’
must be proved. Columbus Board of Education v. Penick, 61
L.Ed.2d 666 (1979), Dayton Board of Education v. Brinkman,
61 L.Ed.2d 720 (1979), University of California v. Bakke, 57
L.Ed.2d 750 (1978) fn. 27 of Mr. Justice Powell’s opinion, Ar-
lington Heights v. Metro. Housing Corp., 429 U.S. 252 (1977)
and Washington v. Davis, 426 U.S. 229 (1976). The courts
below have entirely disregarded this principle in connection with
imposition of onerous injunctive sanctions on petitioners not-
withstanding their ‘‘innocence’’ as established by the record.
The decisions of the Eighth Circuit Court in United States v.
State of Missouri. supra, and the case at bar are in clear conflict
with the decisions of the Fourth and Fifth Circuits with respect
to what Milliken requires. In Bradley v. School Board of City of
Richmond, 462 F.2d 1058 (4 Cir. 1972) it was held that the
federal courts were without authority to order consolidation of
unitary school districts in order to bring about a greater degree
of racial balance absent a showing of invidious discrimination in
the establishment or maintenance of these local governmental
units. This Court, equally divided, affirmed notwithstanding -
proof of territorial exchanges between the districts and multiple
findings of the district court of both official and private
discrimination contributing to the existing racial concentrations
of populations within the districts. 412 U.S. 92 (1973). The
—
judgment of the Fourth Circuit Court of Appeals was thereafter
fully vindicated upon publication of this Court’s decision in
Milliken.
A perceptive application of Milliken,’ subsequently affirmed
by the Court of Appeals for the Fifth Circuit is Tasby v. Estes,
412 F.Supp. 1185 (N.D. Tex. 1975) where the Court declined to
include Highland Park Independent School District (HPISD) in
a plan to eliminate the unconstitutionally dual school system of
Dallas, Texas. Summarizing its jurisdictional limits imposed by
Milliken in the matter it observed that to include HPISD in the
Dallas remedy would require a finding:
*““(1) the HPISD is or was operating a dual school system
which is or was a substantial cause of the segregation
found to exist within the DISD, or
(2) the HPISD has committed unconstitutionally
discriminatory acts of an inter-district nature which have
had a significant effect on the DISD.”’
412 F. Supp. 1188.
The Texas court also noted the elements the post-Milliken
decisions required to justify inter-district relief by the federal
courts in this language:
“**Thus, interdistrict remedies have been ordered where
school district boundaries were altered with significant
segregative effect, where the constitutional violations of
adjoining school districts currently contributed to segrega-
tion within each district, where transfers having a signifi-
cant segregative effect were continuing at the time of trial,
and where ‘white flight’ from an urban district guilty of
*In Bradley v. Milliken, 540 F.2d 229 (6 Cir. 1976) the Sixth Circuit
Court of Appeals undertook to explain at length that its earlier deci-
sion had been ‘misunderstood and reported erroneously’’ asserting
that neither it nor the district judge ever had ‘‘any intention to con-
solidate any school districts.’ 540 F.2d at 235.
a
constitutional violations to outlying districts guilty of con-
stitutional violations was occurring.”’
412 F. Supp. 1191.
The Court of Appeals affirmed the district court’s refusal to
include the Highland Park District in the desegregation remedy
prescribed for the DISD.‘ Tasby v. Ellis, 572 F.2d 1010 (5 Cir.
1978) cert. granted sub nom., Estes v. Metropolitan Branches of
NAACP, 99 §.Ct. 1212 (1979). The parties seeking inclusion of
the Highland Park District did not seek review of that portion
of the decision of the Court of Appeals and it is not an issue in
that appeal now pending here.
As heretofore noted the judges of the Seventh Circuit Court
are in disagreement as to the nature of proof that would be suf-
ficient to support a finding of discriminatory intent that would
warrant inter-district relief under Milliken. In United States v.
Board of School Commissioners, supra, the author of the
panel’s decision expresses his views on this subject at some
length, the concurring judge states that he is in partial disagree-
ment in the matter, and the dissenting judge says at page 416:
““* * * T do not think we make the district judge’s task any
easier by providing him with an advisory interpretation of
Supreme Court decisions (which he can read as well as we
“The district court found that the Highland Park Independent
School District has not maintained a policy of school segregation since
1958. This finding is supported by the record and, as it is not clearly
erroneous, is accepted by this court. Fed. R. Civ. P. 52(a). Given this
twenty year history of nondiscrimination and the negligible effect that
the system’s prior policy of segregation had on the DISD or its own
system, we find that the district court did not err in refusing to include
the Highland Park Independent School District in the student assign-
ment plan for the DISD. See Dayton Board of Education v.
Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 2775-76, 53 L.Ed.2d 851
(1977); Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d
1069 (1974).’” 572 F.2d 1016.
sien Te ei
can) when we cannot agree among ourselves how they
should be interpreted.”’
The Remedy Imposed
The district court made no findings identifying the specific
unconst: tional conduct of the defendant school districts upon
which it predicated its jurisdiction or when and by whom it had
been committed. It did refer to the unconstitutional situation it
found with reference to the East Side District. (A. 32)
The guidelines for the district court’s remedial power were
defined in Swann v. Charlotte-Mecklenburg Board of Educa-
tion, 402 U.S. 1 (1971) and reconfirmed in Milliken, supra. In
this connection the Court said in Milliken:
‘*In further refining the remedial process, Swann held, the
task is to correct, by a balancing of the individual and col-
lective interests, ‘the condition that offends the Constitu-
tion.” A federal remedial power may be exercised ‘only on
the basis of a constitutional violation’ and, ‘(a)s with any
equity case, the nature of the violation determines the
scope of the remedy.’ ’’ 418 U.S. 740-41.
The Milliken court also renewed the teaching of Swann that
desegregation ‘‘does not require any particular racial balance in
each ‘school, grade or classroom.’ ”’’ 418 U.S. 740-41.
All of defendant school districts, under coercion of court
orders, submitted at least one plan of reorganization to cure the
situation that the court had found constitutionally offensive in
the East Side District. The government submitted two such
plans but at the time of trial elected to support its Plan B which
generally comprehended consolidating the Morrilton, Plummer-
ville and East Side Districts and leaving the Nemo Vista and
Wonderview Districts largely unaffected.
The plans advocated by Plummerville and East Side at trial
were essentially the same and comprehended consolidation of
)
those two districts and the acquisition by the consolidated
district of territory of the Morrilton district to provide sufficient
additional white students to achieve what they regarded to be a
desirable racial balance.
The Morrilton defendants had presented two plans in 1973 in
response to the court’s order, and when it became evident that
the district court would not reconsider the 1973 decision before
proceeding with the 1979 trial presented a third plan at that
trial.’ Like the Plummerville and East Side plans, this one com-
prehended consolidating those two districts. Unlike those plans
it provided for Morrilton to acquire enough of the territory of
those districts (and the Negro students residing in that territory)
to permit the consolidated district to operate schools that were
not racially identifiable.
The Superintendents of each of these three districts testified
in support of their respective plans,* and each asserted that his
plan was superior to government Plan B (adopted by the court)
because it would retain community identity with the existing
schools, support of the patrons and students, local control of
the educational program and would minimize any increase in
the cost of transportation. Dr. Fullerton testified that in addi-
tion to these desirable features Morrilton Plan 3 (the one
presented at trial) would avoid an almost intolerable feature of
the Plummerville, East Side and government plans—i.e.,
transferring large numbers of students from the superior school
system operated by Morrilton (including the only high school in
‘Like the earlier plans this one was tendered with the express reser-
vation that it did not waive the Morrilton defendants’ position that the
court was without jurisdiction as to them.
*While the Nemo Vista and Wonderview Districts were represented
at the trial by their respective counsel and superintendents, they of-
fered no evidence.
=
the county accredited by the North Central Association of Col-
leges and Schools) to schools offering substantially less educa-
tional opportunity. Morrilton Plan 3 would reverse that feature.
Under it every student being displaced from his present district
(approximately 158 black students) would be transferred to a
school offering educational opportunity superior to that of his
present school.
In overriding the manifest educational advantages of the
plans offered by Morrilton, Plummerville and East Side, and
selecting government Plan B, Judge Eisele was obviously preoc-
cupied with achieving racial balance with precision. He required
the Nemo Vista and Wonderview Districts to draw their bound-
aries so as to produce a racial composition of not less than 22%
Black, and imposed a requirement on all five of the districts to
establish and maintain a racial balance in each school and each
grade not less than 13% nor more than 33% Black. (A. 54)
Of course the district court, before formulating any remedy
was obligated to make the findings prescribed in Dayton Board
of Education v. Brinkman, 433 U.S. 406, 420 (1977):
**The duty of both the District Court and the Court of Ap-
peals in a case such as this, where mandatory segregation
by law of the races in the schools has long since ceased, is
to first determine whether there was any action in the con-
duct of the business of the school board which was intend-
ed to, and did in fact, discriminate against minority pupils,
teachers, or staff. Washington v. Davis, supra. * * * If
such violations are found, the District Court in the first in-
stance, subject to review by the Court of Appeals, must
determine how much incremental segregative effect these
violations had on the racial distribution of the Dayton
school population as presently constituted, when that
distribution is compared to what it would have been in the
absence of such constitutional violations. The remedy
must be designed to redress that difference, and only if
ED SEA ne rE RE Aa SD
—
there has been a systemwide impact may there be a system-
wide remedy. Keyes, 413 US, at 213, 37 L. Ed.2d 548, 93 S.
Ct. 2686.’’
There is nothing in the written or oral decisions of Judge Henley
or Judge Eisele that would remotely pass for such findings, nor
does the record provide any basis for such findings. Certainly
there is no finding that but for past racially motivated decisions
the Morrilton, Plummerville and East Side Districts would have
elected to consolidate. To the contrary, the conduct of these
districts (reflecting the will of their patrons) both before and
after this suit was filed evidences a strong commitment to main-
taining local autonomy, and the proposed plans submitted by
each, including the East Side District, were consistent with that
concern.
Our stress in this application for review is not that these small
rural school districts have been the victims of a rather summari-
ly imposed injustice. Although we do strongly assert that to be
true. We seek to invoke this Court’s review because the basis
upon which the courts in the Eighth Circuit are now mandated
to order school district consolidation and otherwise intrude into
local school affairs is entirely out of step with the controlling
decisions of this Court and the decisions of the other Courts of
Appeals.
This case does indeed reflect ‘‘one rule in Athens, and
another rule in Rome.’’
—
CONCLUSION
For the foregoing reasons it is submitted that the petition for
certiorari should be granted to review the orders and judgment
of the United States Court of Appeals for the Eighth Circuit.
Respectfully submitted,
FELVER A. ROWELL, JR.
196 South Chestnut
Morrilton, Arkansas 72110
Attorney for Petitioners
Plumerville School District
No. 39, et al.
ROBERT V. LIGHT
2000 First National Building
Little Rock, Arkansas 72201
Attorney for Petitioners
Morrilton School District
No. 32, et al.
—_———S mee
APPENDIX
pe
APPENDIX A
United States Court of Appeals
For the Eighth Circuit
No. 79-1293
Morrilton School District No. 32, ‘
Terry A. Humble, Superintendent;
W. O. Byrd, Dr. H. B. White, Hugh
C. Jones, W. C. Maxwell, Earle Love,
William Cheek, Members;
Plummerville School District No. 39,
Doyle Border, Superintendent;
William P. Evans, Jack Gordon,
Frank Deaver, Charles Townsley,
Billy Garrett, Members,
Appeal from the
United States
> District Court for
the Eastern District
Appellants, of Arkansas.
vs.
United States of America,
Appellee. J
Submitted: June 12, 1979
Filed: June 13, 1979
Before GIBSON, Chief Judge, LAY, HEANLEY, BRIGHT, ROSS,
STEPHENSON and McMILLIAN, Circuit Judges, en banc.
ORDER
This matter came before the Court en banc on oral argument
and briefs of the parties in St. Paul, Minnesota, on June 12,
—-
1979; upon hearing and review of the briefs and the record, the
Court orders that:
1) the order of this Court entered on June 13, 1979 partially
staying the District Court’s order of March 5, 1979 is hereby
vacated;
2) the District Court’s order of March 5, 1979, which inter
alia ordered the consolidation of the East Side, Plummerville
and Morrilton school districts is hereby reinstated and affirmed,
with the following modifications:
a) The consolidation of school districts at the high
school level shall be accomplished so as to be effective at
the beginning of the school year commencing in August,
1979.
b) The consolidation of school districts at the elemen-
tary and grade school level shall be accomplished so as to
be effective at the beginning of the school year commenc-
ing in August, 1980.
The Court, recognizing that much of the delay involved in the
disposition of this case was not the responsibility of the school
districts, finds that a two-step implementation of the District
Court’s order will result in a more orderly and effective
desegregation of the school districts.
The opinion of this Court will be filed at a later date.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
APPENDIX B
United States Court of Appeals
For the Eighth Circuit
No. 79-1293
Morrilton School District No. 32,
Terry A. Humble, Superintendent;
W. O. Byrd, Dr. H. B. White, Hugh
C. Jones, W. C. Maxwell, Earle Love,
William Cheek, Members;
Plummerville School District No. 39, Appeal from the
Doyle Border, Superintendent; United States
William P. Evans, Jack Gordon, > District Court for
Frank Deaver, Charles Townsley, the Eastern District
Billy Garrett, Members, of Arkansas.
Appellants,
VS.
United States of America,
Appellee.
4
Submitted: June 12, 1979
Filed: June 18, 1979
Before GIBSON, Chief Judge, LAY, HEANEY, BRIGHT, ROSS,
STEPHENSON and McMILLIAN, Circuit Judges, en banc.
Amended Order
This matter came before the Court en banc on oral argument
and briefs of the parties in St. Paul, Minnesota, on June 12,
a
1979; upon hearing and review of the briefs and the record, the
Court orders that:
1) the order of this Court entered on May 23, 1979, partially
staying the District Court’s order of March 5, 1979 is hereby
vacated;
2) the District Court’s order of March 5, 1979, which inter alia
ordered the consolidation of the East Side, Plummerville and
Morrilton school districts is hereby reinstated and affirmed,
with the following modifications:
a) The consolidation of school districts at the high
school level shall be accomplished so as to be effective at
the beginning of the school year commencing in August,
1979.
b) The consolidation of school districts at the elemen-
tary and junior high school levels shall be accomplished so
as to be effective at the beginning of the school year com-
mencing in August, 1980.
The Court, recognizing that much of the delay involved in the
disposition of this case was not the responsibility of the school
districts, finds that a two-step implementation of the District
Court’s order will result in a more orderly and effective
desegregation of the school districts.
The opinion of this Court will be filed at a later date.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
—* Pe
APPENDIX C
United States Court of Appeals
For the Eighth Circuit
No. 79-1293
Morrilton School District No. 32,
Terry A. Humble, Superintendent;
W. O. Byrd, Dr. H. B. White, Hugh
C. Jones, W. C. Maxwell, Earle Love,
William Cheek, Members;
Plummerville School District No. 39,
Doyle Border, Superintendent;
William P. Evans, Jack Gordon,
Frank Deaver, Charles Townsley,
Billy Garrett, Members,
Appeal from the
United States
. District Court for
the Eastern District
Appellants, of Arkansas.
VS.
United States of America,
Appellee.
4
Submitted: June 12, 1979
Filed: August 30, 1979
Before GIBSON, Chief Judge, LAY, HEANEY, BRIGHT,
ROSS, STEPHENSON and McMILLIAN, Circuit Judges,
en banc.
HEANEY, Circuit Judge.
The United States brought this civil action on December 27,
1972, pursuant to Section 407 of the Civil Rights Act of 1964, 42
jk. lle oa
U.S.C. §2000c-6, to desegregate the public schools of Conway
County, Arkansas. Named as defendants were the State of
Arkansas, the Arkansas State Board of Education and its
members, the Director of Education of Arkansas, the Conway
County Board of Education and its members and secretary, and
each of the six school districts of Conway County’ and their
governing boards and chief administrative officers.
Conway County is a predominantly rural county. At the time
the complaint was filed, total enrollment of the County’s
schools was 3,915 students. The racial composition of the stu-
dent body and faculty of each of the six school districts was as
follows:
Student Body Faculty
# White # Black # White # Black
Morrilton 2,067 315 96 5
East Side 1 313 1 17
Plumerville 235 151 13 2
Conway County 79 93 6 5
Nemo Vista 282 26 13 0
Wonderview 314 39 18 0
2,978 937 147 29
Of the 172 Conway County District students, eighty-one
black and four white students attended the Center School and
were taught by four black and two white teachers. The govern-
ment alleged that the East Side School District aid the Center
School of the Conway County District were established by the
State of Arkansas as black components of a dual school system
in Conway County and had been maintained as all-black
vestiges of that dual system.
: Conway County No. 1, Wonderview No. 2, East Side No. 5,
Nemo Vista No. 8, Morrilton No. 32 and Plumerville No. 39.
The District Court agreed. Relying primarily on the history of
the development of the school districts, and on the nature of the
boundaries of each school district, it concluded that the racial
segregation present in the East Side District and the Center
School of the Conway County District
is a continuing result of State imposed racial segregation,
and that its present existence is the result of inertia and of
lack of State machinery to bring about a change in the
situation in a context other than consensual.
The court ordered immediate correction of the racial segrega-
tion of the Conway School District.? It further ordered the
defendants to file a plan, or plans, for the elimination of the un-
constitutionality of the East Side District.
The Morrilton, Plumerville, East Side and Nemo Vista
School Districts filed proposed plans. After analysis of those
plans, and upon compilation of additional information, the
United States submitted alternate plans.
A hearing was held by the District Court on the merits of the
various proposals on March 1 and 2, 1979. The court entered an
order on March 6, 1979, adopting the basic outline of Govern-
ment Plan B, which provides for the retention of the Wonder-
view and Nemo Vista Districts with little change and the con-
solidation of the Morrilton, Plumerville and East Side Districts.
Morrilton and Plumerville appeal.
The first issue on appeal is the correctness of the District
Court’s finding of purposeful segregation and the propriety of
? The court ordered that one of the two schools in that district be
closed and one transferred to the Wonderview District. Students
residing in the Hickory Hill portion of the County District, which was
bounded on three sides by the Morrilton District, were ordered
transferred to Morrilton. The Conway County District has not
operated public schools since 1973, and its disestablishment has not
been appealed.
its order of interdistrict relief to remedy that segregation. Mor-
rilton and Plumerville argue that the all-black condition of the
East Side District is not the result of discriminatory action. They
further argue that, even assuming the unconstitutionality of the
segregation in the East Side District, since the government made
no showing that either Morrilton or Plumerville participated in
the development of the East Side District as a segregated
district, the District Court’s imposition of interdistrict relief was
unwarranted.
At one time, there were over 3,000 school districts in Arkan-
sas. The state gradually required smaller districts to consolidate
in an effort to eliminate inefficiency and to insure every child a
twelfth-grade education. The school districts of Conway Coun-
ty are the result of a series of three major consolidations, the
first occuring in the 1920’s, the second in the 1930’s and the
final one in 1949 under the Initiated Act No. 1 of 1948, Ark.
Stat. Ann. §§80-426 to -429 (Repl. 1960). The last consolidation
was designed to eliminate districts having fewer than 350
students.
The Arkansas laws paving the way for consolidations were
racially neutral on their face; there was no requirement written
into the statutes that districts be consolidated along racial lines.?
However, from 1868 until the Supreme Court issued its opinion
in Brown v. Board of Education, 347 U.S. 483 (1954) [Brown I],
Arkansas law required that separate schools ‘‘for white and col-
ored persons’’ be established by the board of directors of each
school district. Ark. Stat. Ann. §80-509. Prior to the three ma-
jor consolidations, there were at least ninety-two school districts
in Conway County. Most, if not all, were one-school districts
and had to be either white or ‘‘colored.’’ The requirement that
districts maintain separate schools clearly influenced the con-
solidations which occurred in Conway County in the 1920’s,
* Initiated Act No. 1 of 1948 [Ark. Stat. Ann. §§80-426 to -429
(Repl. 1960) }; 1931 Ark. Acts, Act 169; 1927 Ark. Acts, Act 152.
1930’s and 1940’s. Black districts tended to consolidate with
black districts, and white with white, at least in part to avoid the
expense of maintaining separate schools.‘ The influence of
§80-509 is starkly visible on the map showing the boundary lines
of the six school districts as they existed in 1972.
* Morrilton and Plumerville operated dual school systems in com-
pliance with this statute; the other school districts transferred their
black students to black schools in other districts. Some years after
Brown I, Morrilton and Plumerville ceased operating dual school
systems and interdistrict transfers ceased.
- te — =)
The District Court based its finding of purposeful segregation in
large part on those boundary lines, saying
The geographical arrangement of the Conway County
districts resembles a crazy quilt, and the resemblance
results from the gerrymandering of district lines in years
past in deference to the requirement of segregation; there
can be no other explanation for it.
The school district map introduced in evidence shows
that the Menifee District [East Side], while centered at
Menifee, is scattered in fragments all over the eastern
and central parts of the County. Parts of it are sur-
rounded by the Nemo Vista, Morrilton, and Plumerville
Districts. At one point it is cut in two by Morrilton. The
fragments of the Menifee District surrounded by parts
of other districts are enclaves of Negroes residing in
generally white neighborhoods, and the predecessors of
Menifee students residing in those enclaves were explicit-
ly assigned to Menifee on the basis of the fact that they
were Negroes.
We agree that the pattern of consolidations shows the im act
of §80-509. The Nemo Vista District was the result of the con-
solidation of fourteen all-white school districts; Wonderview of
the consolidation of seventeen all-white districts. East Side was
a 5 the product of the consolidation of twelve all-black districts.
s bis | ee 2 That race was a factor in the pattern of consolidation is evident
; 33 fel seg in the history of one of the older districts: in 1924, S.D. #5 split
ize Fi! | ez into four sections, the all-black Union Special #87 consolidated
es pe | 3s , with East Side, while the all-white Austin #72 and Center Ridge
8 . $ HW #2 consolidated with Nemo Vista, an all-white district. As a
Ex result of this and other consolidations of the black districts into
— ry on the East Side District, some black children now travel twenty-
z five miles by bus in each direction, passing predominantly white
schools in the process.
— A-12 —
We recognize that consolidations in three of the six school
districts did not occur along strictly racial lines: Morrilton was
the result of the consolidation of sixteen white districts, ten
mixed districts and one black district; Plumerville, the con-
solidation of four white districts, one black district and one
mixed district; and Conway County, the consolidation of seven
white districts and two black districts. However, the map clearly
shows that absent racial considerations, several areas would
have consolidated with Morrilton, Nemo Vista or Plumerville
instead of East Side.
The case closest on its facts to this case is Haney v. County
Board of Education of Sevier County, Arkansas, 410 F.2d 920
(8th Cir. 1969). There, fourteen school districts consolidated in
1949 to form one black district (Sevier County) and one mixed
district (Lockesburg). Black children from the Lockesburg
District attended the Sevier County schools until 1954 and 1955,
when, at the initiative of the Superintendent of the Lockesburg
District, the Sevier County Board of Education approved the
transfer of the property of black property owners to the Sevier
County District. This resulted in the Sevier School District
having irregularly shaped and noncontiguous areas. We held
under the circumstances that
[s}chool district reorganization took place under the
color of state law that then required segregated schools.
Under these circumstances, when the resulting district lines
drawn reflect a discriminatory pattern, de jure segregation
is established.
410 F.2d at 924.
The district lines in Conway County similarly reflect a
discriminatory pattern. Furthermore, there has been no effort
on the part of the public officials responsible to correct the
segregation. Present day evidence of a continuing racial segrega-
tion in Conway County is manifest in the racial composition of
— A-13 —
the faculty of the various school districts. Nemo Vista and
Wonderview had no black faculty members at the time the com-
plaint was filed. Plumerville had only two black faculty
members, whereas East Side had only one white teacher. Mor-
rilton, by far the largest district, had only five black teachers out
of a faculty of 101. For these reasons, we hold thai the Disirict
Court correctly found unlawful segregation to exist in Conway
County.
We turn to the question of the propriety of interdistrict relief.
The Supreme Court, in Milliken v. Bradley, 418 U.S. 717,
744-745 (1974) [Milliken I], held that
[t]he controlling principle consistently expounded in our
holdings is that the scope of the remedy is determined by
the nature and extent of the constitutional violation.
Swann, 402 U.S., at 16. Before the boundaries of separate
and autonomous school districts may be set aside by con-
solidating the separate units for remedial purposes or by
imposing a cross-district remedy, it must first be shown
that there has been a constitutional violation within one
district that produces a significant segregative effect in
another district. Specifically, it must be shown that racially
discriminatory acts of the state or local school districts, or
of a single school district have been a substantial cause of
interdistrict segregation. Thus an interdistrict remedy
might be in order where the racially discriminatory acts of
one or more school districts caused racial segregation in an
adjacent district, or where district lines have been
deliberately drawn on the basis of race. In such cir-
cumstances an interdistrict remedy would be appropriate
to eliminate the interdistrict segregation directly caused by
the constitutional violation. Conversely, without an inter-
district violation and interdistrict effect, there is no con-
stitutional wrong calling for an interdistrict remedy.
— so
The violation here is clearly interdistrict in nature. East Side is
almost entirely black and includes territory that would properly
have been absorbed by the surrounding districts were it not for
racial considerations. The boundaries of the East Side District,
and consequently, the boundaries of the other school districts in
Conway County, were not neutrally drawn. Thus, the prohibi-
tion against interdistrict relief pronounced in other cases, see,
e.g., Milliken I, id; Bradley v. School Board of City of Rich-
mond, Va., 462 F.2d 1058 (4th Cir. 1972), aff’d without opinoin
by an equally divided court, 412 U.S. 92 (1973); Tasby v. Estes,
412 F.Supp. 1185 (N.D. Tex. 1975), aff’d, 572 F.2d 1010 (Sth
Cir. 1978), cert. granted sub nom., Estes v. Metropolitan
Branches of Dallas NAACP, 99 S.Ct. 1212 (1979), is not ap-
plicable here. Interdistrict relief is appropriate and necessary to
remedy the constitutional violation. See Haney v. County
Board of Education of Sevier County, Ark., supra; United
States v. State of Missouri, 515 F.2d 1365 (8th Cir.), cert.
denied sub nom., Ferguson Reorganized School Dist. v. United
States, 423 U.S. 951 (1975); Newburg Area Council, Inc. v.
Board of Education of Jefferson Co., Kentucky, 510 F.2d 1358
(6th Cir. 1974), cert. denied, 421 U.S. 931 (1975).
Morrilton and Plumerville argue that since there was no
evidence implicating them in a direct way with the establishment
of the East Side District,’ the court has no authority to order
them to remedy the state’s wrong. This argument is clearly
without merit since the effects of the unconstitutional state ac-
tion are felt in both districts. As the Court stated in United
States v. Board of School Commissioners, 573 F.2d 400, 410
(7th Cir.), cert. denied sub nom., Bowen v. United States, 99
S.Ct. 93 (1978):
* The government stipulated that neither Morrilton School District,
nor its Board of Directors, nor its administration, participated in the
formation or establishment of East Side subsequent to 1939 within the
period of time subject to discovery. The government also stipulated
that there was no transfer or exchange of territorial jurisdiction be-
— A-15 —
[S]chool officials may not maintain that their districts
should be excluded from an} interdistrict remedy if they
are found innocent of committing any constitutional viola-
tions because they should not be held responsible for the
acts of the state legislators or other state subdivisions such
as a local housing authority or a zoning board. The com-
mands of the Fourteenth Amendment are directed at the
state and cannot be avoided by a fragmentation of respon-
sibility among various agents. Cooper v. Aaron, 385 U.S.
1, 15-17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). If the state has
contributed to the separation of the races, it has the ob:iga-
tion to remedy the constitutional violations. That remedy
may include school districts which are its instrumentalities
and which were the product of the violation.
The final issue is whether the remedy ordered by the District
Court is too broad. Morrilton and Plumerville argue that the
District Court ordered the most intrusive and complicated
desegregation plan offered, and that the nature of the relief ex-
ceeds the scope of the constitutional violation.
The basic principles applicable in determining the scope of
relief have been clearly set forth by the Supreme Court. The
goal is the elimination of all vestiges of state-imposed segrega-
tion. E.g., Brown I, supra; Brown v. Board of Education, 349
U.S. 294 (1955) [Brown IT]; Green v. County School Board, 391
U.S. 430 (1968); Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971). A district court has broad
equitable powers in ordering the elimination of the vestiges of
state-imposed segregation; however, those powers are limited by
the principles that (1) the nature of the desegregation remedy is
tween Morrilton School District and the East Side School District. The
evidence does show that the Plumerville District regularly sent its .
black students to the East Side high school, that both Morrilton and
Plumerville operated dual school systems until the 1960’s and that
faculty segregation persisted at least through trial.
—
to he determined by the nature and the scope of the constitu-
tional violation, id. at 16; Milliken v. Bradley, 433 U.S. 267, 280
(1977) [Milliken IT]; (2) the remedy must, to the greatest degree
possible, be designed ‘‘to restore the victims of discriminatory
conduct to the position they would have occupied in the absence
of such conduct.’’ Milliken I, supra, 418 U.S. at 746; and (3) in
devising the remedy, federal courts must take into account the
interest of state and local authorities in managing their own af-
fairs, consistent with the constitution. Milliken II, supra, 433
U.S. at 280-281.
Here, the nature of the violation was the consolidation of
school districts on the basis of race. As a study of the map of the
school district boundaries indicates, the effects of that con-
solidation were manifested primarily in the boundaries and
racial composition of the Morrilton, Plumerville and East Side
Districts. East Side is almost all black, and Morrilton is
disproportionately white. All three districts have highly ir-
regular boundaries. The remedy ordered by the District Court
reflected these facts. It provided for the retention of the boun-
daries of the Wonderview District, slight enlargement of the
-Nemo Vista District, and consolidation of the Morrilton,
Plumerville and East Side Districts. Desegregation of the East
Side District could not be accomplished unless either consolida-
tion or a major shift in the boundaries of the Morrilton,
Plumerville and East Side Districts occurred. No viable plan
utilizing the latter alternative was offered. In light of these facts,
we cannot agree with the appellants that the remedy exceeds the
scope of the violation. The consolidation order was consistent
with our holdings in Haney v. County Board of Education of
Sevier County, Ark., supra, and the United States v. State of
Missouri, supra.
* Most of the plans submitted by parties called for some type of
consolidation. The controversy generally was whether the consolida-
tion should be fairly broad in scope, as the government suggested, or
whether, at most, only East Side and Plumerville should be con-
solidated.
— A-17 —
Nor can we agree that the remedy was unduly intrusive. The
defendants had known since the District Court’s 1973 order that
the unconstitutional segregation of the East Side District would
have to be remedied. They were unable to agree upon a suitable
remedy. Instead, each district offered a plan suited to its own
best interests. Extensive expert testimony was offered in support
of the various plans submitted by the parties. After hearing the
evidence, the District Court chose the government’s plan, which
was unbiased and which was favored by two of the districts over
the plans submitted by the other districts. The government plan
also compared favorably to the plans initially offered by the
other parties in an analysis undertaken by the Arkansas State
Board of Education. The court found that Government Plan B
would result in the most complete and equitable integration of
the students of Conway County, would be the most likely to
prevent future resegregation, would be the most consistent with
educational objectives and would result in the possibility of the
most efficient use of existing personnel and facilities.
We must give deference to the District Court’s findings of
fact, which can be set aside only if clearly erroneous.
Fed.R.Civ.P. 52 (a); United States v. State of Missouri, supra,
515 F.2d at 1371. As Mr. Justice Stewart pointed out in his con-
curring Opinion in Columbus Board of Education v. Penick, 47
U.S.L.W. 4924 , 4929 (1979),
[t]he development of the law concerning school segrega-
tion has not reduced the need for sound factfinding by the
district courts, nor lessened the appropriateness of
deference to their findings of fact. To the contrary, the
elimination of the more conspicuous forms of governmen-
tally ordained racial segregation over the last 25 years
counsels undiminished deference to the factual adjudica-
tions of the federal trial judges in cases such as these, uni-
quely situated as those judges are to appraise the societal
forces at work in the communities where they sit.
— A-18 —
Morrilton and Plumerville have not convinced us that the
District Court’s findings are clearly erroneous. They argue that
the remedy is defective because of all the proposed remedies, it
results in the greatest loss of local autonomy. It is true that
‘local autonomy of school districts is a vital national
tradition.’’ Dayton Board of Education v. Brinkman, 433 U.S.
406, 410 (1977) Milliken I, supra, 418 U.S. at 741-742.
However, as the Court stated in Milliken I, id. at 744,
{[s]chool district lines and the present laws with respect to
local control, are not sacrosanct and if they conflict with
the Fourteenth Amendment federal courts have a duty to
prescribe appropriate remedies.
The consolidation of Morrilton, Plumerville and East Side
was necessary to cure the constitutional violations. Loss of local
autonomy is insufficient justification standing alone to overturn
the remedy ordered by the District Court.
Morrilton and Plumerville also attack certain details of the
remedy ordered by the District Court. They argue, initially, that
the court’s order imposes a requirement on all five of the
districts to establish and maintain a racial balance in each school
and grade of not less than thirteen percent nor more than thirty-
three percent black. Morrilton and Plumerville argue that this
order is in conflict with the teachings of Swann v. Charlotte-
Meckleburg Board of Education, supra, and Milliken I, supra,
that racial balance is not constitutionally required and that tran-
sitional requirements imposed are not to be continued in
perpetuity.
The District Court ordered that
[iJn creating attendance zones, or if assignment policies
are used other than zones, you must keep the percentage of
blacks in each school and each grade at not less than 13
percent or greater than 33%. This requirement, I should
point out to the people at Wonderview and Nemo Vista, is
required in their districts also.
— A-19 —
We do not construe this order of the District Court as requir-
ing, as a matter of constitutional right, a particular racial
balance. Swann v. Charlotte-Mecklenburg Board of Education,
supra, 402 U.S. at 24. The court acted within its discretion in
ordering the districts to assure a certain racial composition, with
a variation permitted among schools and grades. Likewise, we
do not read the District Court’s order as requiring the districts
to permanently maintain a certain racial balance. The court’s
order was primarily concerned with integrating the districts and
prohibiting discriminatory acts in the future. It did not require
that the racial balance it set forth be maintained in perpetuity.
Finally, Morrilton and Plumerville argue that compliance
with the District Court’s order that implementation of the plan
be accomplished by the beginning of the school year commenc-
ing in August, 1979, is impossible. This appeal was not argued
until June 12, 1979, less than three months before the beginning
of the 1979 school year. The Court recognizes that much of the
delay involved in the disposition of this case was not the respon-
sibility of the school districts,’ and finds that a two-step im-
plementation of the District Court’s order will result in the more
orderly and effective integration of the school districts.
Therefore, the court affirms the District Court’s order requiring
integration of the Morrilton, Plumerville and East Side Districts
but modified the order to provide that
(a) The integration of the high schools within the newly con-
solidated district shall be accomplished so as to be effective at
the beginning of the school year commencing in August, 1979;
’ The case was originally assigned to the Honorable J. Smith
Henley. Upon his appointment to this Court, it was assigned to the
Honorable Terry Shell, who died before taking any action on the case.
The case was then assigned to the Honorable Garnett Thomas Eisele,
who heard it as promptly as an impossible caseload would permit.
— see
(b) The integration of the elementary and junior high schools
shall be accomplished so as to be effective at the beginning of
the school year commencing in August, 1980; and
(c) The school board shall consist of the members designated
by Judge Eisele through the school year or until such time as the
schools have been fully integrated in accordance with the order
of the District Court and of this Court. The election for school
board members in the new consolidated district shall be held at
the first date after the integration is complete and the school
board elections are regularly scheduled in the State of Arkansas.
The board shall be elected and constituted in accordance with
constitutional standards and on the basis of a plan submitted by
the district to the District Court for its approval.
Affirmed in part and reversed in part. Costs will be taxed to
the appellants.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
— A-21 —
APPENDIX D
In the United States District Court
Eastern District of Arkansas
Western Division
United States of America, 1
Plaintiff,
v. - LR-72-C-290
State of Arkansas et al.,
Defendants.
Memorandum Opinion
(Filed July 26, 1973)
This is an action brought by the United States pursuant to Ti-
tle IV of the Civil Rights Act of 1964, 42 U.S.C.A., section
2000c-6, to compel the elimination of alleged racial discrimina-
tion against Negro public school students attending the school
complex operated by East Side School District No. 5 of Conway
County, Arkansas, and the Center School operated by Conway
County School District No. 1.
The complaint names two groups of defendants, the ‘‘State
defendants’’ and the ‘‘local defendants.’’ The State defendants
originally named were the State of Arkansas itself, the State
Department of Education, the members of the Arkansas State
Board of Education, and the Arkansas Director of Education.
The local defendants named are: Conway County School
District No. 1; Wonderview School District No. 2; East Side
School District No. 5, which the Court will refer to as the
Menifee District because its school complex is located in the
Menifee community in southeastern Conway County; Nemo
Vista School District No. 8; Morriiton School District No. 32;
Plumerville School District No. 39; the members of the Conway
— A-22 —
County Board of Education; and the members of the Boards of
Directors and the Superintendents of Schools of the respective
school districts.
The complaint alleges, and the Court finds, that the Menifee
District was organized in 1930 as a result of the consolidation of
eight one school all black districts, and that a ninth all black
district was added in 1949 pursuant to a consolidation required
by the operation of Arkansas Initiated Act No. 1 of 1948, Ark.
Stats., Ann, section 80-426. It is further alleged that the Menifee
District has remained an essentially all black district ever since,
notwithstanding desegregation decisions of the Supreme Court
of the United States and other courts.
With respect to the Center School operated by the County
District it is alleged in substance that that school is racially in-
dentifiable as a school designed and used for the education of
black elementary school students.
The Government says that the situations above described are
the direct result of Arkansas’ pre-Brown' requirement of racial
segregation in the public schools; that those situations are un-
constitutional; and that the State and its subdivisions are under
an obligation to eliminate the alleged unconstitutionalities and
should be required to do so, and that the action to be required
may and in all probability will affect all of the operating school
districts in Conway County.
After process was served, answers were filed by all of the local
defendants, except Morrilton District? which filed a motion to
dismiss the complaint. That motion was overruled, and Mor-
rilton then filed its answer.
‘Brown v. Board of Education, 1954, 347 U.S. 483, and Brown v.
Board of Education, 1955, 349 U.S. 294.
At times the Court will refer to the Morrilton District simply as
Morrilton. When the Court uses that term, it refers to the District and
not to the City of Morrilton where the District has its headquarters
and which is the County Seat of Conway County.
— A-23 —
The State defendants moved to dismiss the complaint as to
them, taking the position that under Arkansas law they have
nothing to do with the local school organization which is a mat-
ter left to County Boards of Education, local school districts,
and local voters. The Court granted the motion as to the State
itself and as to the State Department of Education. The Court
denied the motion as to the individual members of the State
Board of Education and as to the State Director of Education,
and they then filed an answer.
In that pleading the remaining State defendants take essen-
tially the same position that they took in their motion to
dismiss. The Court finds that their position is well taken to a
point, but adheres to its view that they should remain in the
case. The Government argues that the State and the Department
of Education should be brought back into the litigation. The
Court is persuaded, however, that if it turns out ultimately that
the Government is entitled to relief at the State level such relief
will be obtainable by the operation of the Court’s decree on the
State defendants who are now before the Court.
In their answer the County District and the members of the
County Board of Education allege that they are operating the
Center School and Jerusalem School, both elementary schools,
with the approval of the Department of Health, Education and
Welfare. As far as the overall structuring of the Conway County
Schools is concerned, they allege that there have never been any
territorial exchanges between or among the districts which are
defendants here; and they deny that students have ever been
transferred from one district to another on account of race.
Wonderview, Nemo Vista, Morrilton, and Plumerville take
the position that they had nothing to do with the formation of
the Menifee District or the County District; that they have not
ceded territory to either of those districts or received cesssions
of territory from them; that their own districts are satisfactorily
integrated; and that their own territorial integrity should not be
—
impaired for the purpose of correcting racial imbalances in
other districts. Largely in reliance on Bradley v. School Board
of the City of Richmond, 4 Cir., 1972, 462 F. 2d 1058, affirmed
without opinion by an equally divided Supreme Court, 1973,
U.S. , they say that this Court is neither constitu-
tionally required nor empowered to grant the relief sought by
the Government to the extent that the Government is seeking a
restructuring of the overall public school organization in Con-
way County.
As will more fully appear, the Menifee District is essentially
an all black district, and the members of its Board of Directors
and its Superintendent of Schools are black. Those defendants
are in a somewhat anomalous and perhaps difficult position.
They do not want to appear to be defending racial discrimina-
tion. On the other hand, they do not want to see their district
destroyed, and they particularly do not want to see the Menifee
school complex, which has been in existence for many years,
eliminated.
The case has been tried to the Court and submitted on the
pleadings, oral testimony, and documentary evidence. At the
conclusion of the trial the Court invited the parties to file briefs.
Briefs have been filed by the State defendants, by the Morrilton
District, and by the County District. The other defendants have
not filed briefs.’
The Court finds ultimately that the Government is entitled to
relief. The Government’s brief contains detailed requests for
findings of fact and conclusions of law. The Court now adopts
as subsidiary findings of its own those requested findings of the
Government which set out historical facts and which refer to
*No briefs were filed by Wonderview, Nemo Vista, Plumerville, or
Menifee. The Court assumes that the position of the first three of the
defendants just mentioned is the same as that taken by Morrilton.
— A-25 —
specific provisions of the public school laws of Arkansas. The
Court prefers to state its own conclusions of law and to discuss
the issues in its own terms.
The underlying legal principles that are applicable to this case
are too well settled by now to require any detailed discussion or
any list of citations of decisions of the Supreme Court, of the
several Courts of Appeals, or of the District Courts dealing with
public school integration.
State imposed racial segregation in public schools, whether
ingenious or ingenuous, is unconstitutional as violative of the
Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. Where it exists the States and
their political subdivisions are under an affirmative duty to
disestablish it and prevent its recurrence. If they do not do so
voluntarily, the federal courts have jurisdiction to do so and are
required to do so by appropriate means available to them.
The issues in the case must be considered against their
historical back-drop.
Articie 14, Section 1 of the Arkansas Constitution of 1874 re-
quires the State to maintain a system of free public education; as
indicated, that system must be operated in a racially non-
discriminatory manner. The public policy of Arkansas has
always favored maximum local control of public schools, and
the local school district, such as the one involved here, is the
basic unit of the Arkansas system. Arkansas local school
districts are governed by elected directors who lay down local
school district policies and who emplcy the local superintendent
of schools and other district employees. The local districts are
agencies of the State.
Each of the 75 counties of Arkansas has an elected County
Board of Education. The County Board has primary jurisdic-
tion in such areas as the organization of local school districts,
the changing of district boundaries, and consolidation of
— A-26 —
districts. It also must approve transfers of students from one
district to another. [With regard to consolidation of districts it
may be said generally that a consolidation may not be effected
in Arkansas without the approval of a majority of the voters in
both districts.] The County Boards of Education are State
agencies.
The State Board of Education, the members of which are
before the Court, is also an agency of the State, and certain
rather broad powers have been conferred upon it by statute. It
performs a number of important public school functions, in-
cluding certain fiscal functions, and by Ark. Stats., Ann., sec-
tion 80-113, it has been given, among other things, ‘‘general
supervision of the public schools‘of the State.’’ However, the
State Board has nothing to do with the structuring of local
school districts.
Between 1868, when Arkansas first established a rudimentary
system of free public schools, and 1954 when Brown I was
decided, Arkansas law imposed racial segregation on its
schools. The law did not require segregation by districts, and
many larger districts in the State maintained dual systems of
‘*separate but equal’’ schools for the education of white and
Negro students. [However, there were a great many districts
organized in Arkansas, including districts organized in Conway
County, which had only one school.} Since such a school could
be attended only by children of the same race, a one school
district was automatically either a ‘‘white district’’ or a ‘‘black
district,’” and with respect to such a district ‘‘segregation by
school’’ and ‘‘segregation by district’? amounted to the same
thing.
The development of public education in Arkansas has been
characterized by school consolidations designed to eliminate
small and inefficient districts and to create a situation in which
every district in the State will be able to offer its students a 12
— Ad —
grade education. And all of the districts with which the Court is
concerned, except the County District, have school systems or
complexes extending from Grade 1 through 12.
The six districts before the Court are the end result of a series
of consolidations which started out when Conway County had
90 or more separate school districts, many of which were one
school racially identifiable districts. According to the testimony
of Education Director A. W. Ford, there have been three waves
of consolidation in Arkansas. The first took place in the ‘20’s,
the second in the ‘30’s, and the final one occurred in 1949 under
the impetus of Initiated Act No. 1 of 1948 which was designed
to eliminate districts having less than 350 students.
In the consolidation process in Conway County, as elsewhere
in the State, there was a tendency to consolidate white districts
with white districts and black districts with black districts. That
was done in deference to the Arkansas requirement of within
district segregation, and it spared the consolidated district the
expense of maintaining and operating a dual school system.
As heretofore stated, the Menifee District was formed by con-
solidations of all black districts. Nemo Vista and Wonderview
resulted from consolidations of all white districts. Menifee,
Nemo Vista, and Wonderview never operated dual school
systems, but such systems were operated by Morrilton and
Plumerville.
The County District was formed as a result of the operation
of Initiated Act No. 1 of 1948. That statute required districts
having less than 350 students to consolidate or merge into larger
districts. If a small district affected by Act 1 was unable to con-
solidate with or merge with another district, it automatically
was placed, with other districts in the county similarly situated,
in a ‘County District’? operated by the County Board of
Education.
— A-28 —
The Conway County District resulted from the consolidation
of Center School District No. 79 (Negro), Lord School District
No. 9 (white), Hickory Hill School District No. 7 (Negro),
Jerusalem School District No. 28 (white), and Catholic Point
School District No. 7 (white).
The Act | consolidations affected other districts in the Coun-
ty as follows: Menifee annexed North View School District No.
10 (Negro); Wonderview annexed St. Vincent School District
No. 48 (white); Nemo Vista annexed Van Buren School District
No. 63 (white); and Morrilton annexed St. Elizabeth School
District No. 14 (white).
The Court has talked to some extent about racially iden-
tifiable one school districts. With regard to such districts it is
not to be supposed that their territories were necessarily oc-
cupied entirely by blacks in the case of black districts or entirely
by whites in the case of white districts. That situation did not
prevail in many one school districts. Where the number of
students of the minority race, whether white or black, living in a
particular district was very small, it was obviously unfeasible for
the district to operate two school systems. The problem was
solved by transferring students from one district to another;
white children would be transferred to white districts, and black
children would be transferred to black districts.
The record here reflects that that practice was followed
religiously in Conway County for years before and after the
1949 consolidations and both before and after the Brown deci-
sion outlawed de jure segregation in Arkansas and elsewhere. In
the course of the trial the Court was somewhat surprised to
learn that not only were students transferred from district to
district but also that the school taxes paid by their parents were
transferred with them. The legality of that practice under
Arkansas law may be questionable. Arkansas law provides for
the transfer of students, but the Court has not been aware that it
permitted corresponding transfers of tax money.
— A-29 —
An examination of a map of Conway County showing school
district lines and a consideration of other evidence make it clear
that the pre-Brown de jure segregation requirement of Arkansas
law deeply impressed the structuring of the schools of Conway
County, and that impression is still clearly visible today.
In point of fact the Brown decisions of the Supreme Court
and decisions of the Court of Appeals for this Circuit and of
this Court in early school desegregation cases were simply ig-
nored in Conway County until about the mid-60’s when some
degree of intra-district integration was achieved largely under
pressure from the Department of Health, Education and Wel-
fare. However, nothing approaching ‘‘racial balance’’ has been
achieved in any of the six districts with the possible exception of .
the Plumerville District.
Figures of record reveal that during the 1972-73 school year
just past the total enrollment in the County’s schools was 3783
students. 932 of those students, a little more than 24 percent,
were black. 331 of those black students, 35.5 percent of the total
black enrollment, attended the Menifee school. Another 15 per-
cent of them, 139, were enrolled at Plumerville. Of the remain-
ing 462 black students 95 were enrolled in the Jerusalem School
and the Center School operated by the County District, and
they made up a substantial majority of the County District’s
student body. 298 of them were enrolled in the Morrilton
District, 26 were enrolled at Nemo Vista, and 43 were enrolled
at Wonderview. Only five white students were enrolled at
Menifee.
Bearing in mind the fact that Negroes make up about 24 per-
cent of the County’s total student population, the same figures
reveal that blacks made up less than 10 percent of the enroll-
ment at Nemo Vista, about 12.5 percent of the enrollment at
Wonderview, and about 13 percent of the enrollment at Mor-
rilton. At Plumerville, on the other hand, blacks made up about
36 percent of the total enrollment last year.
— A-30 —
Last year’s faculty figures are also of interest. While blacks
made up about 13 percent of Morrilton’s enrollment, only five
~ members of Morrilton’s faculty of 106 were black. At Menifee,
on the other hand, 19 members of the District’s faculty of 20
were black. There were no black teachers at either Nemo Vista
or Wonderview. At Plumerville there were only two black facul-
ty members notwithstanding the relatively large black enroll-
ment. At the Center School last year where no white students
were enrolled, there were four black teachers and one white
teacher; and at the Jerusalem School attended by 59 white and
10 black students, there were four white teachers and one black
teacher.
The geographical arrangement of the Conway County
districts resembles a crazy quilt, and the resemblance results
from the gerrymandering of district lines in years past in
deference to the requirement of segregation; there can be no
other explanation for it.
The school district map introduced in evidence shows that the
Menifee District, while centered at Menifee, is scattered in
fragments all over the eastern and central parts of the County.
Parts of it are surrounded by the Nemo Vista, Morrilton, and
Plumerville Districts. At one point it is cut in two by Morrilton.
The fragments of the Menifee District surrounded by parts of
other districts are enclaves of Negroes residing in generally
white neighborhoods, and the predecessors of Menifee students
residing in those enclaves were explicitly assigned to Menifee on
the basis of the fact that they were Negroes.
The County District has three distinct segments, two of which
are substantially separated from the segment in which the two
schools operated by the District are located. One of those
segments is surrounded by Nemo Vista and fragmented parts of
Menifee; access by road from that segment to the District’s
schools is not good. The other segment is entirely surrounded by
‘ Wonderview and Morrilton.
— A-3] —
Another map in evidence shows certain school bus routes in
the County. That map reveals that Negro students living in the
more northern fragments of the Menifee District are
transported practically from one end of the County to the other
in going to and from school. The route turns and twists from its
northern terminus to the Menifee school; it passes through parts
of the Nemo Vista, Morrilton, and Plumerville Districts and
passes in close proximity to if not directly by both the Nemo
Vista and the Plumerville schools before it reaches Menifee. The
same map shows that students residing in one of the detached
segments of the County District are transported to school com-
pletely across the southern part of the Wonderview District and
in close proximity to the Wonderview school.
What has been said to this point brings into focus the two
questions which the Court must decide: First, does the overall
situation that prevails in Conway County amount to unconstitu-
tional racial discrimination against Negroes residing in the
Menifee District and those attending the Center School in the
County District?‘ Second, if it does, then what remedy should
be prescribed to eliminate the discrimination?
The Government argues that the decision of the Court of Ap-
peals in Haney v. County Board of Education of Sevier County,
Arkansas, 8 Cir., 1969, 410 F. 2d 920, requires an affirmative
answer to the first question, and suggests the answer to the sec-
ond. The local defendants would distinguish Haney from this
case, and also, as indicated, rely largely on Bradley v. School
Board of the City of Richmond, supra.
‘From its reading of the complaint, the Government’s requests for
findings and conclusions, and the Government’s brief, the Court does
not understand that the Government claims in this action that the ex-
isting situation discriminates against Negroes residing or attending
school in the other districts or those attending the Jerusalem school.
Nor does the Court understand that the Government is attacking the
County District, as such, in the sense that it is attacking the Menifee
district.
—*
The Court finds it convenient first to dispose of the defen-
dants’ contention based on Bradley. In that case the United
States District Court for the Eastern District of Virginia ordered
the consolidation of three unitary Virginia school districts for
the purpose of achieving racial balance in the schools of all three
districts. Bradley v. School Board, E.D.Va., 1972, 338 F.Supp.
67. The Court of Appeals, one Judge dissenting, reversed.
When the case reached the Supreme Court, Mr. Justice Powell
did not participate in its consideration, and the vote of the Chief
Justice and seven Associate Justices split 4-4 which automatical-
ly affirmed the decision of the Court of Appeals.
This Court will assume without deciding that the decision of
the majority of the Court of Appeals will remain the law on the
state of facts presented by the record in the Bradley case. But
the Court is of the opinion that the facts of Bradley are not the
facts of this case. The three districts involved in that case were
not formed as either white districts or black districts, whereas’
the Menifee District involved here was established from the
beginning as a black district, and other districts in Conway
County were formed as white districts. In the Court’s estimation
that distinction takes Bradley out of the case.
Taking up, first, the Menifee situation, there can be no ques-
tion that it was formed as a black district, and that it remains an
identifiable black district today. As has been seen its Board of
Directors is made up of Negroes, its Superintendant of Schools
is a black man, 19 of its 20 faculty members last year were
black, and 331 of its 336 students last year were black. As has
also been seen the territory of the district is highly fragmented
due to gerrymandering of district lines in the interest of preserv-
ing segregation.
The Court finds that the Menifee District today is a continu-
ing result of State imposed racial segregation, and that its pres-
ent existence is a result of inertia and of lack of State machinery
to bring about a change in the situation in a context other than
consensual.
— A-33 —
The constitutional question presented by the Menifee District
is essentially the same as that presented in Haney v. Board of
Education, supra, which case involved an ‘‘Act 1”’ school
district formed in Sevier County in the western part of Arkansas
in 1949. The case involved Sevier County School District No. 1,
which had been formed under theterms of Act 1 when three all
black school districts did not consolidate with other districts and
thus automatically were placed in a ‘‘County District.’’ That
district was adjacent to and practically surrounded by
Lockesburg School District No. 16, an all white district. Suit
was filed in federal court by a Negro plaintiff in 1967 to compel
a consolidation of the two districts.
The facts in Haney were essentially as follows: When Act 1
became effective, there were 14 school districts in Sevier Coun-
ty, including the Lockesburg District which was centered in the
City of Lockesburg. Some of those districts were all white, and
some were all black. Following the general pattern that has been
mentioned, the districts were consolidated along racial lines.
Five all white districts were annexed to larger white districts with
two of them being annexed to the Lockesburg district. Two all
black districts were annexed to all black districts in an adjoining
county. That left four all white districts which kept their identi-
ty, and three black districts which were merged into the County
District. It appears that some Negroes lived and owned property
in Lockesburg, and that property was transferred by agree-
ment to the all black County District.
That arrangement appears to have been satisfactory to all
concerned, except the plaintiff who filed the suit. The District
Court denied relief. Haney v. County Board of Education,
W.D., Ark., 1968, 284 F.Supp. 916. That Court reasoned that
the existing situation was not unconstitutional because Act 1
was not passed to promote or preserve racial segregation. The
District Court also felt that it was powerless to order consolida-
—
tion because under Arkansas law two school districts cannot or-
dinarily be consolidated without the approval of a majority of
the voters of both districts, and it was evident that the black
voters in the County District would not vote in favor of con-
solidation.
The Court of Appeals reversed the decision of the District
Court and ordered that the two districts be consolidated not-
withstanding any impediments presented by Arkansas law. The
Court of Appeals found that it was no coincidence that the
County District was formed as an all black district, and that the
reason that it was so formed was the desire to comply with the
State’s requirement that its public schools be racially
segregated.
In the course of its opinion the Court of Appeals said (410 F.
2d at 924-925, citations omitted):
“if segregation in public schools could be justifed
simply because of pre-Brown geographic structuring of
school districts, the equal protection clause would have lit-
tle meaning. Such a position ‘would allow a state to evade
its constitutional responsibility by carve-outs of small
units.’ . . . More ingenious methods have been tried and
have failed... .
“*State legislative district lines, congressional districts
and other state political subdivisions have long ago lost
their mastery over the more desired effect of protecting the
equal rights of all citizens. .. .
e**e#*# 28
**Political subdivisions of the state are mere lines of
convenience for exercising divided governmental respon-
sibilities. They cannot serve to deny federal rights. . . .”’
rot
IBGE AT tae ee sn sense
— A-35 —
The Court recognizes that the local districts involved in this
case did not transfer territory to the Menifee District as the
Lockesburg District transferred territory to the Sevier County
District, but, as has been observed, some of the defendant
districts in this case did transfer pupils from district to district in
order to preserve segregation in the schools. Aside from that,
however, the Court does not consider the ‘‘innocence’’ of the
defendant districts to be of controlling importance.
As the Court reads it, Haney teaches that if a pre-Brown
school district was formed, by consolidation or otherwise, on
the basis of race and by reason of a State requirement that
public schools be segregated, the continuation of such a district
to the present day as a racially identifiable district is unconstitu-
tional even though its continued existence is countenanced by
State law. And that is exactly the situation that the Menifee
District presents.
It is clear that neither the State of Arkansas itself nor any of
its educational agencies in Conway County has any compelling
legitimate interest in preserving Menifee as it is or in preserving
the status quo as far as other districts are concerned. On the
contrary, it appears to the Court that the existing geography of
the districts works directly against an efficient system of public
education in the County, and the present school organization
would never have come into existence but for the presence of a
substantial Negro minority in parts of the County and the pre-
Brown segregation requirement, and that it remains in existence
today simply because school officials in the County and
presumably a majority of the people have not wanted to change
it.
On this phase of the case the conclusion of the Court is that
the Menifee District as presently constituted is unconstitutional,
and that the unconstitutionality must be eliminated. This does
not mean necessarily that the Menifee District must cease to ex-
— A-36 —
ist, but it does mean that it cannot continue as a district devoted
primarily, if not exclusively, to the education of Negro students.
As far as remedy is concerned, the Court agrees with the
Government that such restructuring of Conway County school
districts as may be necessary to eliminate the unconstitutional
situation existing with respect to Menifee should be conducted
insofar as possible in conformity with existing State law. It
should be emphasized, however, that deficiencies or obstacles to
be found in the Arkansas school laws must not stand in the way
of the discharge of the constitutional duty of the State and its
subdivisions.
The Government would have the Court direct the State Board
of Education to come forward with a plan to solve the Menifee
problem. The Court thinks that in deference to the legitimate
policy of the State that favors local control of public school
organization the plan should be formulated at the local level,
but with the State Board being expected to afford to the local
authorities such advice and assistance as they may request and
as the State Board and the Director of Education may be in a
position to provide.
As the Court sees it, the duty to eliminate racial discrimina-
tion in the Menifee District is the common duty of the County
Board of Education and of the several individual districts in the
County, and they should work together to devise a common
plan. If they can do so, well and good. Otherwise, separate
plans may be submitted. If the Government desires to suggest a
plan, it may do so, as may any group of interested citizens of the
County.
Turning now to the problem of the Center School and regard-
ing that problem separate and apart from the larger problem
presented by the Menifee situation, the Court finds that the
County District is operating two schools, one of which is a clear-
ly identifiable Negro school.
— =:
While it appears from the complaint that a few white students
were assigned to the Center School during the 1971-72 school
year, no white students attended that school during the 1972-73
school year, and there is no reason to believe that in the future
any substantial number of white students will attend that school
voluntarily or by virtue of assignment by the County Board of
Education, assuming that the County District remains in ex-
istence.
It is clear that this dual school system must be eliminated by
one means or another as of the beginning of the 1973-74 school
year, regardless of what may be done with respect to overall
restructuring of school districts in the County to solve the
Menifee problem.
The record reflects that the 1972-73 enrollment of the County
District was 154 students, a number probably in excess of the
capacity of either the Jerusalem or the Center School standing
alone. It would thus appear that there are two methods of
eliminating the dual school system in the County District. The
schools could be paired, with students in certain grades being
assigned to one school without regard to race and with students
in other grades being assigned to the other school without
regard to race. The other method would be to close the Center
School and assign the students of that school to Nemo Vista or
Wonderview or both. If the County Board should decide on the
latter course, the other schools affected will be expected to ac-
cept the Center School students without regard to any im-
pediments imposed by State law.
Another approach, and perhaps the best one from the stand-
point of efficiency and quality of education, would be for the
County District simply to close both the Jerusalem School and
the Center school and thus go out of business as an operating
district. Should such a course be followed, the affected students
could be assigned appropriately to other districts.
—~ oe
It goes without saying that any plan the County Board may
adopt to solve the Center School problem must not be tainted
with racial discrimination with regard to faculty members. As
counsel will recall, the Morrilton District had trouble in that
area when it integrated its own schools. Smith v. Board of
Education, Morrilton School District No. 32, 8 Cir., 1966, 365
F. 2d 770.
There remains to be considered the question of timing. As
already indicated, the County Board of Education will be re-
quired to eliminate the existing dual school system in the County
District as of the commencement of the 1973-74 school year,
and the Board is now directed to advise the Court not later than
August 15, 1973, as to what it intends to do to accomplish that
end.
The Government asks that a plan be devised for Menifee to
go into effect as of the opening of school this year. The Court
thinks that that request is unrealistic, and that more time will be
required to formulate and implement a feasible plan for
Menifee and the other districts that may be affected by that
plan.
In the first place, the time between now and the opening of
school in September is relatively short. Local school ad-
ministrators who will need to participate in the formulation of a
workable plan may not be readily available during what is left of
the vacation season.
More basically, the solution of the Menifee problem may be a
complex one. More is involved than counting heads and draw-
ing lines on a map. There are a number of factors to be con-
sidered, including matters of finance, taxation, bonded in-
debtedness, and allocation of physical school properties. Proper
consideration of those factors may require an additional hearing
or additional hearings before the Court.
— A-39 —
The Court is of the opinion that those concerned should be
allowed until October 1 of this year to submit a plan or plans.
When that is done, the Court will set a relatively short period of
time for the filing of objections, and will hold such hearing on
the objections as may be necessary.
A decree in accordance with the foregoing will be entered.
Dated this 26th day of July, 1973.
/s/ J. SMITH HENLEY
United States District Judge
—
APPENDIX E
In the United States District Court
Eastern District of Arkansas
Western Division
United States of America,
Plaintiff,
v. . LR-72-C-290
State of Arkansas et al.,
Defendants.
DECREE
(Filed July 26, 1973)
Pursuant to Memorandum Opinion this day filed herein it is
by the Court CONSIDERED, ORDERED, ADJUDGED, and
DECREED:
1. The term ‘‘State defendants,’’ as herein used, means the
members of the Arkansas State Board of Education and the
Director of Education of the State of Arkansas, and their suc-
cessors, agents, and employees.
The term ‘‘locak defendants,’’ as herein used, means the
County Board of Education of Conway County, Arkansas, the
members of said Board, and the Board’s chief executive officer,
and their successors, agents, and employees; and the term
**local defendants’’ also includes the six public school districts
now operating in Conway County, Arkansas, and identified in
the opinion of the Court, the members of the Boards of Direc-
tors of each of said Districts, the Superintendent of Schools of
each of said Districts, and the successors, agents, and employees
of all of said Districts, Directors, and Superintendents.
2. The Court now finds and adjudges:
— A-41 —
(a) That East Side School District No. 5 of Conway County,
Arkansas, referred to in the opinion as the ‘‘Menifee District,”’
is a school district which is clearly identifiable as a district
designed and used primarily, if not exclusively, for the educa-
tion of Negro students, and that its continued existence is a
result of racial segregation in public schools imposed Originally
by State law, and that the continued existence of said District as
now constituted is violative of the Equal Protection Clause of
the Fourteenth Amendment to the Constitution of the United
States.
(b) That the Center School operated by Conway County
School District No. 1 of Conway County, Arkansas, is an
elementary school which is clearly identifiable as a school
designed and operated exclusively or primarily for the education
of Negro students, and that its continued operation as such a
school is violative of the Equal Protection Clause of the Four-
teenth Amendment to the Constitution of the United States.
(c) That the Conway County Board of Education, the
Members of its Board of Directors, its Superintendent of
Schools or Chief Executive Officer, and their successors,
agents, and employees be, and they hereby are, permanently en-
joined from continuing to operate the present dual system of ra-
cially identifiable elementary schools in Conway County School
District No. 1; and that they be, and they hereby are, man-
datorily enjoined and directed by whatever means may appear
to be necessary and desirable, and notwithstanding obstacles or
deficiencies to be found in existing Arkansas State law, to
disestablish said unconstitutional dual school system effective as
of the beginning of the 1973-74 school year, and to report to this
Court not later than August 15, 1973, what they propose to do
to effect said disestablishment.
(d) That the plan adopted by the County Board may require
the transfers of students now attending the schools of the Coun-
ty District to other Districts within Conway County; and, if so,
— ee
the transferee District or Districts will be, and they hereby are,
mandatorily enjoined to accept the transfers without regard to
obstructing or deficient provisions of existing Arkansas public
school laws relating to the transfers of students from district to
district.
(e) That the local defendants, above defined, will be, and
they hereby are, permanently enjoined and restrained from con-
tinuing to permit the continuation of the existing unconstitu-
tionality of East Side School District No. 5 of Conway County,
Arkansas; and that they will be, and hereby are, mandatorily
enjoined to file with this Court not later than October 1, 1973, a
plan or plans for the elimination of said unconstitutionality
without regard to obstacles or deficiencies that may be found in
existing Arkansas school laws relating to the formation, altera-
tion, merger, or consolidation of public school districts.
(f) That in connection with the formulation of the plan or
plans mentioned in the preceding paragraph hereof the State
defendants, as above defined, will be, and they hereby are,
mandatorily enjoined to afford to the local defendants upon re-
quest such advice and assistance as the State defendants may be
in a position to afford.
3. The Court retains jurisdiction of this cause and of the par-
ties hereto for all appropriate purposes including the holding of
such further hearings and the entry of such further orders or
decrees as may appear necessary or proper.
Dated this 26th day of July, 1973.
/s/ J. Smith Henley
United States District Judge
Ads —
APPENDIX F
In the United States District Court
Eastern District of Arkansas
Western Division
United States of America, ‘
Plaintiff,
Vv. > LR-72-C-290
State of Arkansas et al.,
Defendants. /
Supplemental Opinion and Decree
(Filed August 23, 1973)
Reference is made to the Memorandum Opinion and the
Decree of this Court filed in subject case on July 26, 1973. Par-
ticular reference is made to Paragraph 2(b) (c) and (d) of the
Decree which deal with Conway County School District No. 1
and its officials who are defendants in the case.
The Court found that the Center School operated by the
County District is an elementary school which is clearly iden-
tifiable as a school designed and operated exclusively or
primarily for the education of Negro students and that its con-
tinued operation as such a school is violative of the Equal Pro-
tective Clause of the Fourteenth Amendment to the Constitu-
tion of the United States, and the Court enjoined the County
Board of Education, and its members, officials, agents, and
employees from continuing to operate the present dual system
of racially identifiable elementary schools in the County
District, and the Court mandatorily ordered that the County
District by whatever means might appear to be necessary and
desirable, notwithstanding obstacles or deficiencies to be found
in existing Arkansas State law, disestablish the unconstitutional
dual school system effective as of the beginning of the 1973-74
— ee
school year, and report to this Court not later than August 15,
1973, what the District proposed to do to effect the mandated
disestablishment.
The Court recognized that any plan adopted by the County
Board might require the transfers of students currently attend-
ing the schools of the County Districts to other Districts within
Conway County. And the Court’s decree specifically provided
that if the District’s plan involved such transfers of students, the
‘transferee District or Districts will be, and they hereby are,
mandatorily enjoined to accept the transfers without regard to
obstructing or deficient provisions of existing Arkansas public
school laws relating to the transfers of students from district to
district.’’
The County District did not file any formal report with the
Clerk of this Court or with the Court itself. However, under
date of August 14, 1973, counsel for the District wrote a letter to
the Court which will be made part of the record. In that letter
counsel stated that the County Board felt that ultimately it
should follow one of the suggestions appearing in the Court’s
opinion, namely, that both of the schools operated by the
District be closed and the students assigned to other districts in
Conway County. However, counsel stated that the Board
desired to continue to operate through the 1973-74 session or at
least until an overall plan designed to eliminate racial segrega-
tion in the East Side School District No. 5 could be worked out
and approved.
Counsel’s letter did not include any undertaking to eliminate
the unconstitutional condition existing within the County
district, and in fact a few days ago the County District opened
its two schools on a defacto segregated basis which cannot be
tolerated, and which must be eliminated not later than Tuesday,
September 4, 1973.
When the Court wrote its original opinion, it thought that if
the District chose to do so, it could eliminate segregation within
—
its borders by pairing grades in the Center School and in the
Jerusalem School. The Court finds from its investigations and
from conferences with counsel since receiving the letter above-
mentioned that it is not realistic to pair the two schools since the
degree of racial balance achieved would not justify the extensive
transportation burden imposed.
The best solution to the problem would be to close both of the
County District’s schools and assign most or all of the students
to Wonderview School District No. 2. The Court has deter-
mined, however, that at this time the Wonderview District simp-
ly does not have the capacity to receive the number of students
that would be transferred to it should that solution be adopted.
After careful consideration the Court has come to the conclu-
sion that the following steps, which will involve the County
District, the Wonderview District, and Morrilton School
District No. 32, must be taken:
1. As of September 4, 1973, the Center School must be
closed.
2. Students presently enrolled in Grades 1, 2, 3, 5, and 8 at
the Center School must be transferred to the Wonderview
District.
3. Students presently enrolled in Grades 4, 6, and 7 at the
Center School must be transferred to the Jerusalem School.
4. The administration of the Jerusalem School is to be taken
over by the Wonderview District. As far as the current school
year is concerned, officials of the Wonderview District must
assign the teachers now employed by the County District to
either the Wonderview school complex or to the Jerusalem
School, and must deal with those teachers in a racially non-
discriminatory manner.
5. The black students from the Hickory Hill community or
area who are now attending the Jerusalem School or the. high
school operated by the Wonderview District must be transferred
—
to Morrilton School District No. 32, except that such black
students who are in the 11th and 12th grades at Wonderview
may complete their high school education there if they desire to
do so; however, any such student who wished to be transferred
to Morrilton is to be transferred.
6. The County District is to pay all of the expenses of
transporting transferred students to and from school, and is
also to pay the salaries of the teachers whom it has employed for
the current year.
7. While the County District will cease to function as an
operating district, it will retain its existence as a conduit of
funds to the Wonderview District and to the Morrilton District.
Generally speaking, the funds of the County District are to be
so administered that the funds follow the students, and in any
event Wonderview and Morrilton are to be reimbursed for ex-
penses incurred by them in educating the students assigned to
them.
There are two general observations that the Court desires to
make at this point.
The Court’s investigation leads it to conclude that the County
District has more teachers than it needs; those teachers, of
course, are to be retained by the Wonderview District for the re-
mainder of the current school year. As to future years, it ap-
pears to the Court that all of the students who will attend the
Jerusalem School this year after the steps above outlined have
been taken will probably be assigned ultimately to the Wonder-
view District, and the additional space for them will have to be
provided. It occurs to the Court that when those assignments
are made, the Wonderview District may find itself overstaffed
as far as teachers are concerned, and that it may be able to
recoup in large measure, if not entirely, and over a comparative-
ly short period of time the cost of providing additional space by
a reduction in the teaching force. It goes without saying that if a
reduction in force takes place, it must not be tainted with racial
discrimination.
oats esses
Alt Nae eet ee we em _ ad wee
— A-47 —
The Court is aware that the steps that it is ordering to be
taken will not be approved by all of the patrons of all of the
three Districts to be affected by the taking of those steps. That
cannot be helped. The County District has operated a de facto
segregated elementary school system for nineteen years since the
Brown decisions of the Supreme Court of the United States; the
continuation of such a system in the current school year simply
cannot be tolerated. The elimination of segregation in the
County District necessarily, in the existing circumstances, af-
fects the Wonderview School District and the Morrilton School
District, and, as indicated in the Court’s original opinion, those
Districts cannot avoid the impact by referring to Arkansas
statutes dealing with local school district organization.
In view of what has been said the original Decree of this
Court in this cause will be, and hereby is, supplemented as
follows:
1. The Conway County Board of Education and the
members thereof will be, and they hereby are, Ordered to close
the Center Elementary School now operated by Conway County
School District No. 1 not later than September 4, 1973, and as
of that date to turn over to Wonderview School District No. 2
the administration of the Jerusalem Elementary School current-
ly being operated and administered by the County District. The
Wonderview District and its officials will be, and they hereby
are, Ordered to accept the administration of the Jerusalem
School. If the Wonderview District desires to make racially non-
discriminatory use of the physical facilities at the Center School,
it may do so.
2. The Conway County Board of Education and the
members thereof will be, and they hereby are, Ordered to
transfer to the Wonderview District students now enrolled in
Grades 1, 2, 3, 5, and 8 at the Center School, and the Wonder-
view District and its authorities will be, and they hereby are,
Ordered to accept the transfers of those students. The Conway
County Board of Education and its authorities will be, and they
— A-48 —
hereby are, Ordered to transfer students now enrolled in Grades
4, 6, and 7 at the Center School to the Jerusalem School.
3. The Conway County Board of Education and its members
will be, and they hereby are, Ordered to transfer to Morrilton
School District No. 32 all Negro students residing in the
Hickory Hill community or area who are now attending the
Jerusalem School or Wonderview High School, provided that
any of such Negro students who are in the 11th or 12th grades
and who desire to complete their high school education at
Wonderview High School may do so. The Board of Education
of Morrilton School District No. 32, and the members thereof,
will be, and they hereby are, Ordered to accept the transfers of
the Negro students just mentioned.
4. The transfers above ordered are to be effective as of the
opening of school on September 4, 1973, and are to be carried
out without regard to obstacles or deficiencies to be found in the
public school laws of the State of Arkansas.
5. The Wonderview District and its authorities will be, and
they hereby are, Ordered to honor the contracts of all teachers
currently employed by the County District, and to assign those
teachers either to the Wonderview School or to the Jerusalem
School. The Wonderview District and its authorities and
employees will be, and they hereby are, enjoined and restrained
from discriminating against any faculty member on the basis of
race.
6. The County District will remain in existence as a political
entity for the purpose of administering public funds coming into
its hands, and to serve as a conduit of such funds to the
Wonderview District and the Morrilton District. The County
District and its authorities will be, and they hereby are, Ordered
to pay the salaries of teachers currently employed by the District
as called for by the present contracts of those teachers, and to
pay the expenses of transporting all transferred students to and
from the school. The County District and its authorities will be,
ow enticement
et ee ae Pee een eee ee rere
— A-49 —
and they hereby are, further Ordered to administer insofar as
possible funds coming into its hands and allocable to students
transferred out of the District in such manner that the funds
follow the students into the transferee districts, and to reim-
burse the Wonderview District and the Morrilton District for ex-
penses incurred in educating transferred students.
The Court retains jurisdiction of this cause and of the parties
hereto for all appropriate purposes.
Dated this 23rd day of August, 1973.
/s/ J. Smith Henley
United States District Judge
— A-50 —
APPENDIX G
In the United States District Court
Eastern District of Arkansas
Western Division
United States of America,
Plaintiff,
Vv. ' No. LR-72-C-290
State of Arkansas, et al.,
Defendants.
U.S. District Courtroom,
U.S. Post Office & Courthouse,
Little Rock, Arkansas,
Friday, March 2, 1979.
see ee 88
Excerpted Findings
**e*e 2 2 & &
APPEARANCES:
On behalf of plaintiff:
NATHANIEL DOUGLAS, Esq.,
Department of Justice,
Washington, D.C.
On behalf of Defendant State of Arkansas:
LONNIE POWERS, Esq.,
Deputy Attorney General,
Justice Building,
Little Rock, Arkansas.
eal
eT ee eee on
Matisse
— A-51 —
On behalf of Defendant Morrilton School District:
ROBERT V. LIGHT, Esq., of
Friday, Eldredge & Clark,
First National Building,
Little Rock, Arkansas.
On behalf of Defendant Nemo Vista School District:
EUGENE R. WARREN, Esq.,
P.O. Box 1510,
Little Rock, Arkansas.
On behalf of Defendant Plumerville Schooi District:
FELVER A. ROWELL, JR., Esq.,
106 South Chestnut Street,
Morrilton, Arkansas.
On behalf of Defendant Wonderview School District:
CHARLES MOTT, JR., Esq.,
4120 West Markham,
Little Rock, Arkansas.
On behalf of Defendant East Side School District:
CHRISTOPHER C. MERCER, JR., Esq.,
2901 High Street,
Little Rock, Arkansas.
PROCEEDINGS
THE COURT: In 1973 Judge Henley determined that the
situation in Conway County with respect to the East Side
District was unconstitutional. His opinion clearly implicates the
State and each of the school districts in Conway County both in
the creation of the situation and in the fostering and
maintenance of that situation to the present day. He made it
clear that all parties might be involved in working out the
remedy.
— A-52 —
Six years later we find that no agreement has been reached,
and this intolerable situation with respect to the East Side
District remains essentially unchanged. It is obvious that the
Court has been too lenient in attempting to provide an adequate
opportunity for the parties to effectuate an essentially locally-
determined solution. The Court, therefore, intends to act
promptly to bring the situation in Conway County into com-
pliance with the Constitution.
After reviewing the plans and listening to the evidence which I
find sufficiently reliable to make the essential decisions required
here today, the Court is convinced that the basic concept of
Government’s Plan B should be approved and adopted by the
Court.
We need a plan which will disestablish the East Side District
and fully integrate all of the resulting districts and a plan which
is likely to continue to work effectively in the future.
Government Plan B results in the most complete and in the
most equitable integration of the students and the children of
Conway County. It is the plan which the Court believes is most
likely to prevent future resegregation. I also believe it to be the
plan which is most consistent with educational objectives. I
believe that it results in the possibility of the greatest and most
efficient use of existing personnel and facilities. It has been
designated as the second choice of most of the parties to the
action.
The final plan will have to be fully implemented by the begin-
ning of the August-September 1979 school year. Now although
the Court is adopting the fundamental philosophies of Govern-
ment Plan B, it will retain a certain amount of flexibility with
respect to the details. In other words, the Court approves the
three-district county structure and will require, therefore, as the
first order of business, that definite boundary lines be estab-
lished between the new district and the Wonderview and Nemo
Vista districts.
— A-53 —
Now let me ask first Mr. Mott and Mr. Warren. | am going
to insist, of course, that the boundaries be drawn so that the
racial composition of those two school districts will have not
less than 22 percent blacks. That allows a little margin for error
over what has been presented here. Let me ask you both: have
the lines been drawn or are they still a speculative issue to ac-
complish the result that has been represented in essentially every
plan that has been presenied here today? Mr. Mott?
MR. MOTT: If the Court please, the lines of Wonderview as
they exist presently do accomplish the Court’s designated pur-
pose. Our ratio now is approximately 24 percent.
THE COURT: I hear nobody saying that is not so, so I
assume that as between the new district to be formed and
Wonderview the line is established.
MR. MOTT: Right.
THE COURT: Now let me ask Mr. Warren.
MR. WARREN: I think, Your Honor—and I’m told by Mr.
Adams—f the line is drawn as we suggested to take in the Holly
Springs, that six sections down there, our ratio will be, I believe,
24 percent.
THE COURT: Weil, what I want done as the first order of
business, I want that line established and I want then the results
to be able to be reported to the Court that it does result in the
ratio of not less than 22 percent black.
Now that the basic structure has been determined, I am going
to ask the parties connected with the Morrilton District, the
Plumerville District, and the East Side District to meet again to
work out all details concerning pupil assignment zones, the in-
tegration of existing faculties and administrative staffs, the
utilization of existing facilities, the transportation of students,
the structure of the new school board, the name possibly to be
given to the new district, the best procedures for implementa-
tion of the Court’s order.
—_—
In creating attendance zones, or if assignment policies are
used other than zones, you must keep the percentage of blacks
in each school and each grade at not less than 13 percent or
greater than 33 percent. This requirement, I should point out to
the people at Wonderview and Nemo Vista, is required in their
districts also.
I am going to direct that the appropriate officials of the State
Board of Education work with the parties in the preparation of
this detailed plan, and I am hopeful that arrangements can be
made so that Drs. Field and Buford can assist in the project and
possibly other experts.
I am at this time going to appoint a committee consisting of
the presidents of each of the three school boards involved in the
formation of the new district, the three superintendents of each
of those districts, the principals of the three high schools in
those districts, and I am going to ask that they decide among
themselves on a method of supplementing that committee by
bringing in one teacher from each of the districts and one parent
or representative of parents’ organizations. So there will be
three teachers and three parents, and that will be the committee.
The parties will advise the Court on the identity of the
members of the committee within one week of this date—that
is, by March 9th.
The officials of the State Department of Education and the
other experts, if available, will work with the committee and
provide them with data and professional assistance. The
primary responsibility for submitting the plans to the Court,
however, is with the committee. Their plan will be submitted
within 40 days of this date.
Now every plan that has been submitted has its advantages
and disadvantages. The Government plan carries with it the
disadvantage—which I look upon as a disadvantage—of
diminishing local control, local identity, local autonomy. I was
we net,
— A-55 —
impressed with Mr. Chambers’ testimony. He argued for a plan
which would preserve that identity and preserve what he hoped
to be a broader participation and control over local affairs by
essentially local people, and I think that was the sentiment of
many of the witnesses.
The Court is sympathetic with that idea and agrees generally
with the quotation from the booklet ‘‘Economy, Efficiency and
Equality’’ that there is no magic in consolidation, especially
when you get into the larger districts. We are, however, dealing
with essentially a small community, Conway County. That
should be a community, 16, 18,000 people. I don’t see that what
is lost will not be greatly offset by what is gained, but I am going
to be insistent that only what has to be lost is lost. In other
words, I want this planning committee to take it as one of their
objectives to preserve in their detailed plans as much local par-
ticipation, availability of resources that it can. And I think
perhaps, except at the high school level, that this can be ac-
complished.
In any event, it is going to be a concern of the Court that par-
ticularly East Side and the blacks do not bear the full burden of
this desegregation problem. I am telling you that ahead of time,
and I am hoping that this committee will take it as an article of
faith that they need to consider and to plan carefully to see that
the burdens and the benefits are spread equally among the
citizens of the county.
Now, of course, the degree of which the remaining problems
are solved by local people will depend upon the extent of their
own efforts, their fairness, their objectivity, their goodwill, and
the quality and content of their recommendations, and their
consistency with what is required and has been stated here
today.
Obviously there is going to be needed a predisposition to ac-
complish the goal. It is easy to destroy. It is easy to put
— A-56 —
roadblocks in the way of what must be done. It takes people of
stature to really go against their own best judgment perhaps but
work in good faith to accomplish goals that are required by the
Constitution and the law.
So I am hoping that now the parties are no longer speculating
about the basic structure of what will be required that they can
sit down and come up with something that is satisfactory to
everybody in the three districts.
Now that is a big order. I may file a supplementary opinion
giving more direction, but I am not inclined to because I want
the Stat*Department of Education and the experts to have max-
imum flexibililty in recommending to the committee suggestions
about how we should proceed from here.
It may even be that part of their recommendation will be that
the mechanics of implementation perhaps follow the structure
of existing state law in the context of annexation or consolida-
tion, the election of board members, the structuring of future
authority and control. I want you to give a lot of thought to
your faculty, your staff, and the superintendents and the people
who have the jobs and how best to utilize their talents.
Although I have not adopted the details of the Government
plan, there are obviously some suggestions they made a part of
their plan that might be considered in further efforts to work
this thing out. I greatly appreciate the Department of Educa-
tion’s contribution to this project. I hope they will continue to
work in close harmony with local people to effectuate the orders
of the Court.
I want them to look into these questions that they mentioned
in their report at the end: the problem of the timing, the tax
rates, the new board, the staffing, and so forth; matters which
they pointed out appropriately would require some further
study.
— A-57 —
Dr. Field has indicated his lack of confidence in some of the
data and so have some of the other parties. The generality of the
Court’s ruling is such that it doesn’t build upon the complete ac-
curacy of those reports but on the overall effect of them. It may
be that better data will indicate better solutions when you are
talking about transportation, school zones, and so forth.
Any other questions?
MR. LIGHT: Your Honor, I inquire only because I know the
clients who have a lawyer here representing the school district
will make this inquiry before we leave the courthouse. Does the
Court intend to enter a final appealable order next week?
THE COURT: I think it might not be bad if—and if you can
maybe help me and see whether I can help you. If your principal
argument as to the remedy is the involvement of your district
and other districts in the solution, the multi-county solution,
then I think I can enter a final order which could be appealable
and which would not interfere with the ongoing preparations
for the August-September school term but yet might proceed in-
to the Court of Appeals and be over with in time for us all to
know whether we are right or wrong. Is that what you have in
mind?
MR. LIGHT: That and the jurisdictional question itself.
THE COURT: In other words, I guess I could decree that
there be in a sense the three-district plan as adopted and all fur-
ther solutions will be made within that context. That more or
less can be the decree from which you can appeal.
Do you think that would be adequate, that type of decree?
MR. LIGHT: I think so, Your Honor, if you are indicating
that you retain jurisdiction to effectuate—
THE COURT: I can certify it as an order that I felt to be ap-
pealable and reserve and make it clear that we are going to pro-
ceed with the planning and implementation of the program.
— A-58 —
MR. LIGHT: I think that will give every party the oppor-
tunity.
THE COURT: We will try to get that in early next week.
MR. WARREN: Your Honor, what time levy do we have on
getting the mechanics of establishing the southern boundary of
Nemo Vista?
THE COURT: It is such an important first decision I hope
you might get it resolved by the end of next week. Before this
committee has its first meeting—and I am going to have their
identity by the end of next week—they should have it in hand to
Start to work because that will be the premise upon which their
work will be based.
MR. WARREN: We will have it to you, a specific designation
of the boundary.
THE COURT: I want to thank the attorneys and the parties.
It is a difficult case and I know you have people back home that
have very strong feelings, perfectly understandable, and the
Court knows of no way to satisfy everybody; but it does know
its duty—thinks it does.
MR. MERCER: Your Honor, may I inquire? Does the Court
envision a necessity for school board elections to continue on
the second Tuesday in March?
THE COURT: The election is the second Tuesday in March?
MR. MERCER: All school board elections across the state.
THE COURT: Which is what date?
MR. MERCER: The 13th.
THE COURT: I would assume they would go forward and
should because essentially those boards will still have, through
their presidents and otherwise, an input into all of this. They
will be essentially being called upon by constituents to make in-
— A-59 —
put, and should, into the committee’s work and presentations. I
am not going to enjoin the elections, I’ll put it that way, so I
assume it will go forward under state law.
Court is in recess.
(Whereupon, at 6:45 p.m., the above-entitled matter was
concluded.)
CERTIFICATE
I, Carolyn S. Fant, Official Court Reporter for the United
States District Court for the Eastern District of Arkansas, ap-
pointed pursuant to the provisions of Title 28, United States
Code, Section 753, do hereby certify that the foregoing is a full,
true and correct transcript of proceedings had in the within-
entitled and numbered cause on the date hereinbefore set forth;
and I do further certify that the foregoing transcript has been
prepared by me or under my direction.
/s/ CAROLYN S. FANT
Carolyn S. Fant, Official reporter
—~—. ee
APPENDIX H
In the United States District Court
Eastern District of Arkansas
Western Division
United States of America
Plaintiff
Vv. No. LR-72-C-290
State of Arkansas, et al.,
Defendants
ORDER
(Filed March 6, 1979)
Pursuant to the findings of fact made in open court on March
2, 1979, it is Ordered that the remedy to be effected in this
desegregation suit will essentially take the form of the Govern-
ment Plan B. Wonderview School District will remain un-
changed. Nemo Vista School District will be slightly enlarged,
as outlined at the hearing, to bring in enough black students to
make its overall percentage of black students not less than 22
percent. The present East Side, Plumerville, and Morrilton
school districts will then be combined into one district. A de-
tailed plan effecting this overall scheme will be submitted by
April 11, 1979, in accordance with the Court’s instructions to
the parties on March 2. Full implementation will be accomplish-
ed in ample time to make same effective at the beginning of the
school year commencing in August, 1979.
To the extent that any motions seeking relief from Judge
Henley’s judgment in this case are still pending on behalf of
defendant Morrilton School District, each of such motions is
hereby denied.
Dated this Sth day of March, 1979.
GARNETT THOMAS EISELE
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.