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ROGERS v. PAUL

August 19, 1964

JANICE ROGERS, A MINOR, AGE 16, PATRICIA ROGERS, A MINOR, AGE 15, BY THEIR MOTHER AND NEXT FRIEND, MRS. CORINE ROGERS, PLAINTIFFS,
v.
DR. EDGAR F. PAUL, DR. ROGER BOST, JOHN M. YANTIS, BRUCE SHAW, JACK GROBER, DOUGLAS G. ROGERS, BOARD OF DIRECTORS OF SPECIAL SCHOOL DISTRICT OF FORT SMITH, ARKANSAS, CHRIS CORBIN, SUPERINTENDENT OF SCHOOLS OF SPECIAL SCHOOL DISTRICT OF FORT SMITH, ARKANSAS, SPECIAL SCHOOL DISTRICT OF FORT SMITH, ARKANSAS, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On September 12, 1963, plaintiffs filed their complaint against the Directors and the Superintendent of the Special School District of Fort Smith, Arkansas, and against the District, in which they alleged that the defendants, and each of them, while acting in their official capacities have denied in the past, are now, and threaten to continue to deny to minor plaintiffs and the members of the class of persons that they represent, their rights, privileges and immunities as citizens of the United States and the State of Arkansas by engaging in the following:

    "A. By maintaining and operating segregated public
  high schools within the Special School District of
  Fort Smith, Arkansas for minor plaintiffs and the
  members of the class of persons that they represent
  and assigning minor plaintiffs and the members of the
  class of persons that they represent to segregated
  public high schools in said district because of their
  race and color contrary and in violation of the equal
  protection and due process clauses of the Fourteenth
  Amendment to the federal Constitution; and,
    "B. By maintaining and operating a dual scheme of
  attendance areas based solely on race with the
  assignment of high school pupils to schools in the
  district on the basis of their attendance areas in
  which they live, except that Negro high school pupils
  who do not reside in the Negro attendance area are
  required to attend the high school in the Negro
  attendance area, and the white high school pupils
  residing in

  the Negro attendance are required to attend high
  school in a white attendance area, all of which
  violate the equal protection and due process clauses
  of the Fourteenth Amendment to the United States
  Constitution; and,
    "C. By maintaining and approving of budgets making
  available funds, school construction programs and
  curricula designed to perpetuate and maintain
  compulsory racially segregated schools, all of which
  violate the Fourteenth Amendment to the Constitution
  of the United States; and,
    "D. By the assignment of teachers, principals and
  other administrative personnel to the various high
  schools within the Special School District of Fort
  Smith, Arkansas on the basis of their race and color
  and on the basis of the race and color of the pupils,
  all of which is being done to the detriment of the
  plaintiffs and the members of the class of persons
  they represent and in violation of the Fourteenth
  Amendment to the Constitution of the United
  States."

That after conferring with defendants in an effort to persuade them to cease and discontinue the alleged unlawful and discriminatory practices, the minor plaintiffs tried to enroll at one of the white high schools in the District but were refused admission; that in June 1963 the plaintiffs invoked rights under the Arkansas Pupil Assignment Law by filing a written request for transfer from the all-Negro high school to the Northside white high school and requested a hearing before the Board; that "defendants have refused to enroll or admit minor plaintiffs to the Northside white school because of their race and color, contrary to and in violation of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States."

That the minor plaintiffs, and each of them, and the members of the class of persons that they represent, have been and are now being greatly harmed, damaged and injured by the unlawful, wrongful and knowing acts of the defendants.

The prayer of the complaint is that the cause be advanced on the docket and be set for a speedy hearing; that a temporary injunction be issued to enjoin and restrain defendants from further denying and depriving minor plaintiffs, and the members of the class of persons that they represent of their rights, privileges and immunities as citizens of the United States, or the equal protection of the laws secured to them by the Constitution and laws of the United States on the basis or classification of race or color; that upon a final hearing the temporary injunction be made permanent, and that the defendants and their successors in office be enjoined and restrained "from assigning teachers, principals and other administrative personnel to the schools within the Special School District of Fort Smith, Arkansas, or any public school that is under the supervision or control of the defendants, on the basis of their race and color and on the basis of the race and color of the pupils in said district."

On October 7, 1963, defendants filed their joint answer, in which they specifically denied that they have discriminated against the plaintiffs or the class of persons whom plaintiffs represent, because of race and color.

The defendants incorporated in their answer a motion to strike sub sub-paragraph D of sub-paragraph 9 of paragraph IV of the complaint on the ground that the facts therein alleged are insufficient to state a claim upon which plaintiffs are entitled to or can be granted any relief.

Paragraph III of the answer is as follows:

    "Defendants further allege that said Plan of
  desegregation was placed in full effect by the
  defendants and their predecessors in office upon the
  commencement of the school term in September 1957, at
  which term the First Grade in all of the elementary
  schools administered and maintained by the defendants
  was fully desegregated under said Plan and at which
  time the defendants cancelled and voided all
  pre-existing separate geographical districts for
  white and Negro pupils applicable to the First Grade
  in all of the defendants' schools.
    "Thereafter these defendants and their predecessors
  as members of the Board of Directors of the Special
  School District of Fort Smith have, each year at the
  commencement of the September term of the schools of
  the district, likewise desegregated the next highest
  grade in said schools and cancelled and voided all
  pre-existing separate geographical districts for
  white and Negro pupils applicable to each successive
  higher grade, thus progressing through September,
  1963, to full desegregation through the Seventh
  Grade, abolishing all pre-existing separate
  geographical districts for white and Negro pupils
  applicable to Grades One to Seven inclusive.
    "Defendants allege that said Plan is in full
  conformity with the decision of the United States
  Supreme Court in Brown v. Board of Education,
  349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; is fully
  consistent therewith and with the test of `all
  deliberate speed' prescribed in said decision under
  the facts and circumstances then and thereafter and
  now existing in the community served by the Special
  School District of Fort Smith; that the
  administration of said Plan by the defendants as
  above set forth is in conformity with and not
  violative of the equal protection and due process
  clauses of the Fourteenth Amendment to the United
  States Constitution as heretofore interpreted by the
  Supreme Court of the United States and other Courts
  of Appeal of the United States.
    "That the plaintiffs and the class whom they
  represent have acquiesced in the administration of
  said Plan by the defendants as consistent with the
  equal protection and due process clauses of the
  Fourteenth Amendment to the Constitution of the
  United States, as interpreted by the courts of the
  United States, from its inception in 1957 down to the
  filing of this action.
    "That said Plan, as voluntarily adopted and
  administered by the defendants and their predecessors
  in office, has proved workable, beneficial and
  non-discriminatory for all of the patrons of the Fort
  Smith Special School District and the inhabitants of
  the community which it serves, regardless of race or
  color.
    "That said Plan is non-discriminatory on the basis
  of race or color upon its face and as in fact
  administered by the defendants from September, 1957,
  down to the present.
    "That there still exist administrative problems of
  various natures involved in the continued transition
  from segregated schools to desegregated schools, some
  of which are peculiar to the presently remaining
  segregated grades Eight through Twelve, which grades
  the defendants in all good faith intend to continue
  to desegregate in accordance with the Plan, a grade
  each year; and a continuance of the Plan in its
  present form will foster the orderly, peaceful and
  harmonious solution of such administrative problems.
  Disruption or material alteration of the Plan at this
  stage of its progress will aggravate and accentuate
  the administrative problems confronting the
  defendants and peculiarly affecting the desegregation
  of grades Eight through Twelve, and will thereby
  cause a deterioration and down grading of the
  educational opportunities that can be afforded by the
  defendants to all of the patrons of the defendant
  District over the course of the next five years, to
  the detriment of all of the students of the defendant
  District, both Negro and white.
    "That the progression of the Plan of desegregation,
  as adopted and placed in effect by the Special School
  District of Fort Smith, presently constitutes a
  desegregation with `all deliberate speed', in
  compliance with the equal protection and due process
  clauses of the Fourteenth Amendment to the United
  States Constitution as interpreted and declared by
  the United States Courts."

The cause was set for trial on its merits on November 21, 1963, but it developed that facilities for holding court would not be available on that date, and the case was stricken ...


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