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

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