The opinion of the court was delivered by: EISELE
The application in this case for temporary injunctive relief was heard on September 16 and 17, 1970. At the conclusion of the hearing the Court directed counsel for the various parties to file memorandum briefs not later than the 24th day of September, 1970. Those briefs were timely filed. The Court understands that an amended complaint has also been filed which adds several additional parties plaintiff and several additional parties defendant. The Court is not advised whether service has been obtained upon the amended complaint. In any event the Court will ignore the amended complaint for the purposes of passing upon the application for temporary relief.
Several distinct causes of action are set forth in the original complaint. The action against the Board of Directors of the Earle Special School District and Mr. Sam Bratton, Superintendent of the District, is based upon allegations that said defendants are "continuing their policy, practice, custom and usage of maintaining segregated classrooms for Negro and white pupils * * * and * * * a policy, practice, custom and usage of discriminating, on the basis of race against black students and faculty * * *." The other causes of action are essentially against county and city officials, more particularly the mayor of Earle, Arkansas, the chief of police of Earle, Arkansas, and the sheriff of Crittenden County. The plaintiffs ask a temporary and permanent injunction against such defendants, enjoining them "* * * from imposing curfews against black persons, arresting black persons for demonstrating in support of constitutional rights, from deputizing only white persons, and from engaging in acts with any other persons in which to deny plaintiffs the opportunity to exercise rights guaranteed under the constitution of the United States."
The Court has decided to take up the various causes of action separately and, in this first memorandum, to deal only with the issues involving the "school" case. The Court hopes to render its decision in the non-school portions of this preliminary proceeding at an early date. In handling the matter in this manner the Court is not pre-judging the question with respect to the possible severance of the various causes of action in the future handling of the case. Nor does the Court overlook the obvious factual connection between the events relating to the school problems and the other causes of action. The Court feels that there is a certain advantage in handling the applications for temporary relief in this manner and it further feels that there is slightly more urgency in connection with the "school" problem since it appears that the great majority of the black students in the Earle Special School District are out of school.
With respect to the school case, the plaintiffs allege that during the 1969-70 school year the defendant school directors operated two separate school complexes: (1) the Dunbar School, grades 1 through 12, attended only by black students, numbering approximately 1,200; and (2) the Earle School, grades 1 through 12, attended over-whelmingly by whites. It is further alleged that on August 28, 1970, the school board placed into effect a desegregation plan it had negotiated with the United States Department of Health, Education & Welfare, and that under that plan all faculties, facilities, classes, activities and programs were required to be operated without racial discrimination. It is alleged that the 1970-71 school year began on approximately August 28, 1970. As operated, plaintiffs claim that the classes within the schools are substantially segregated by race; black teachers teach substantially black classes while white teachers teach substantially white classes; activities and participation therein are operated on a racially discriminatory basis; black pupils are subjected to penalties and punishment for conduct which do not apply to white pupils; and black faculty, principals and coaches and other black administrative personnel have been demoted and/or relegated to subordinate positions solely because of their race.
The complaint also alleges that the defendant school board and school superintendent engaged in practices having the effect of suppressing black expressions of opposition to the policies, practices, customs and usages complained about.
In addition to the complaint the plaintiffs filed a "Motion For Temporary Restraining Order" on September 14, 1970, asking the Court to prohibit "defendants Twist, Morrison, Cloar, Cato, Atkins, and Bratton, (a) from maintaining segregation by classroom among faculty and student bodies in the Earle Special School District; (b) from sponsoring and maintaining activities and programs operated on a racially discriminatory basis; and, (c) from demoting or otherwise discriminating against black staff, administration and faculty." In support of their motion plaintiffs alleged that they would show:
"1. A class action to eliminate discrimination in the Earle Special School District was commenced on September 10, 1970.
"2. Defendants have maintained segregated classrooms and faculty assignments and otherwise discriminated against black students and faculty."
The Court will not make a complete statement of all the facts at this time but will attempt to make those findings which are germane to the issue of temporary relief in the school case.
Prior to this school year the defendant school district operated an essentially dual school system. The school population of the Earle Special School District is comprised of approximately 950 black students and approximately 550 whites. The Dunbar complex consisted of an elementary school, a junior high school, and a high school attended only by black students. The Earle school complex also had an elementary school, a junior high and a high school and was attended by approximately 550 whites and a nominal number of blacks.
On or about May 20, 1970, the Department of Health, Education and Welfare approved a plan for the operation of the Earle Special School District for the school year 1970-71. The basic requirements of the plan were set forth in a letter addressed to the superintendent from Lloyd R. Henderson, Education Branch Chief, Office for Civil Rights, Department of Health, Education & Welfare, on said date. I quote the basic provisions of the plan as contained in said letter:
"It is our understanding that the grade structures of your school will be fully desegregated for the 1970-71 school year:
"Grades 1-3 will be housed in the Earle Elementary School; grades 4-6 at the Dunbar Elementary School; the present Dunbar High School will house all students in grades 7-9; and grades 10-12 will be assigned to the Earle High School.
"Members of my staff have reported that the present assignment of staff does not meet the constitutional standards set forth in the United States Circuit Court of Appeals in the Singleton v. Jackson case * * *
"It is our understanding, however, that you plan to reassign some of your present teachers and to fill vacancies at the high school to meet the standards set forth above.
"In addition, we understand that students will be assigned to classes in each school so that no segregated classes will result.
"It is further understood that all other facets of the operation of the school system as outlined above will be conducted on a racially non-discriminatory, nonsegregated basis. This includes facilities, faculties, services, classes, activities, programs and transportation, but is not limited thereto."
The plan, the provisions of which were quoted above, called for dramatic changes in the manner of operating the schools of the Earle Special School District. Prior to the implementation of that plan on the last of August, 1970, the defendant school district had not only operated an essentially dual system but had operated the Dunbar complex in many ways as an inferior institution and had at least tolerated some inequities to exist in the programs and activities of that complex when compared to those of the essentially all-white Earle complex. The school board had made very little progress since the original Brown decision in bringing the operations of its schools in line with constitutional requirements. This is not to gainsay the fact, however, that the board, through good faith negotiations with representatives of the government, had voluntarily agreed to operate its schools and other facilities for this school year in accordance with a written plan which, if followed in good faith, would meet the requirements of the law. The plaintiffs do not attack the plan. Rather they contend that the defendants have departed from that plan in the implementation thereof.
The students in the system are grouped according to the results of achievement tests and assigned to classes accordingly. It appears that, even prior to this year, such test scores were used for this purpose. It further appears that this year the school officials permitted any white student who by virtue of his achievement score would fall in a predominantly black section to transfer to a predominantly white section. This has resulted, according to the evidence, in some all-black sections and some predominantly white sections at each grade level.
The plaintiffs acknowledge in their memorandum that achievement scores or intelligence scores may have some valid uses in normal educational programs but they contend that when such scores lead to racial segregation they are intolerable, especially in the early years of desegregation programs. They also contend that the disparity in achievement between blacks and whites results directly from the disparity in the quality of educational opportunities provided the blacks under the prior dual system.
The Court does not feel that it should at this time strike down the practice of assigning students on the basis of achievement tests on the strength of the evidence introduced in support of the application for a temporary injunction. The Court, however, will want this issue fully developed in the hearing on the merits. In the meantime it is clear that the defendants are granting exceptions (in applying the results of the achievement tests) on a discriminatory basis. The plaintiffs are therefore entitled to a temporary injunction requiring the defendant school officials to administer those achievement tests which they utilize on a strictly non-discriminatory basis, "across the board." The Court is really not in a position to pass upon the legitimacy of the defendants' utilization of such achievement tests until it has an opportunity to learn the effect and consequences thereof when applied without respect to race. Additionally, the black children who are members of the class represented by the plaintiffs will not be in a good position to attack the legitimacy of the use of such achievement tests until they return to school and give the defendants an opportunity to apply same in conformity with this opinion. Otherwise we must deal with the question abstractly.
The plaintiffs also complain about the assignment of the faculty, and this Court agrees that the manner in which the faculty was assigned during the first six days of school does not appear to comply with the written plan of desegregation. The evidence indicates that black teachers have been assigned to teach only all-black classes with the exception of one teacher who teaches one integrated class at the junior high level. White teachers are apparently assigned to teach all of the other integrated classes.
Under the law and under the plan, the plaintiffs are entitled to have faculty assignments made upon a non-discriminatory basis. Even though it finds that, superficially at least, the present pattern of faculty assignment appears clearly subject to attack, the Court does not feel that this finding should be the predicate for temporary injunctive relief. The attorney for the school defendants points out that the hearing on the application for temporary relief was set on exceedingly short notice and that the defendants had a wholly inadequate opportunity to prepare their case. The Court is not satisfied with the status of the evidence with respect to faculty assignment and does not feel that there is adequate proof to serve as a guide pursuant to which a temporary order might reasonably be entered at this time. The Court, however, expects the defendants to note its tentative preliminary findings with respect to faculty assignment and to reevaluate their practices and procedures in the light thereof prior to the hearing on the merits.
Plaintiffs contend that, with respect to many of the extra-curricular activities, there has been discrimination against the black students. Evidence supporting these contentions was introduced, particularly with respect to the organization of the student body government and the selection of cheerleaders. There was also evidence that for the first few days of school class attendance rolls for black and white students were kept and called separately, and in some cases that blacks and whites were generally seated in separate groupings within certain classes. The defendants, however, contend that such arrangements were not intended to be permanent and, indeed, that some were entirely accidental. They contend that they arose generally with the confusion of the opening days of school. The Court concludes that the plaintiffs are not entitled to temporary relief with respect to these charges and that the defendants are entitled to an opportunity to, in good faith, bring the operation of the extracurricular activities, the classroom rosters and seating arrangements, into conformity with the desegregation plan after the return to school of the plaintiffs and those whom they represent. This matter, too, can best be explored upon final hearing. It is also assumed during this interim period prior to the final hearing that the school officials will advise all students on a non-discriminatory basis as to their rights to participate in the various activity programs and of the manner in which they should go about exercising those rights.
In paragraph VII(A) of the original complaint the plaintiffs alleged that the defendants operated the schools on a racially discriminatory basis in that, inter alia, "black pupils are subjected to penalties and punishment for conduct which do not apply to white pupils." The proof introduced at the two-day hearing upon the application for temporary relief did not sustain the quoted allegation.
With respect to the allegations in paragraph VII(A) 5 of the original complaint that "black faculty * * * and other black administrative * * * personnel have been demoted and are relegated to subordinate positions within the school system solely because of their race or color," the proof introduced at the hearing was certainly not clear enough to warrant any temporary relief with respect to the quoted allegations. Furthermore, as indicated above, there is a question as to the standing of these plaintiffs to raise such issues. The plaintiffs, however, will be permitted to introduce additional evidence with respect to such issues at the time of the final hearing unless the Court, prior to such final hearing, rules adversely to them on the question of standing.
With respect to the allegations contained in paragraph VII(B) of the original complaint, the Court finds that the proof introduced at the preliminary hearing does not sustain the charge that the board and superintendent have engaged in practices having the effect of suppressing black expressions of opposition to school policies, although that proof does indicate that the defendant school authorities may not have attempted affirmatively to communicate with the black students or their parents, to explain school policies and programs, to provide a forum for the discussion of alleged wrongs, or otherwise to work with the black community as they have with the white community. The Court recognizes that the situation in the Earle Special School District is dramatically different this year than it was in prior years and that there have been innumerable problems which have taken the time, energy and effort of the school officials. The Court finds no reason to believe that the school officials will not, as things "settle down," make the same good faith effort to communicate with the black students and their parents as they do with the whites. The plaintiffs are not entitled to temporary relief upon the basis of the allegations in paragraph VII(B) of the original complaint and the proof submitted in support thereof.
The Court does not find sufficient evidence to warrant a conclusion that the defendant school authorities operated "in concert with" the other defendants (the mayor and the chief of police of Earle and the sheriff of Crittenden County) to make such "school" defendants subject to any of the temporary relief being sought against said other defendants.
The Court hopes to schedule a final hearing in this case early in November, but it does not feel that a final hearing would be fruitful until the defendant school officials have had an opportunity to operate the schools for at least a month prior to such a hearing with essentially full class attendance. Therefore, counsel for the parties are asked to keep the Court advised as to school attendance so that the Court will be in a position to schedule a final hearing.
MEMORANDUM OPINION NUMBER TWO
This opinion should be read in the light of, and in connection with, the Memorandum Opinion and the Order entered on October 2, 1970. As pointed out in that first memorandum, the Court decided to take up the various causes of action separately for the limited purpose of acting upon the applications for temporary injunctive relief. That first memorandum and order dealt with the "school" issues. This second memorandum will deal with the "non-school" phase of the preliminary proceeding.
The plaintiffs in the original complaint are black minor children who attended the schools of the Earle Special School District in Earle, Arkansas. They attempt to bring this action not only on their own behalf but on behalf of others "similarly situated," pursuant to Rule 23(a) and (b) 1 (B) of the Federal Rules of Civil Procedure. The defendants in the "non-school" phase of the proceeding are Mr. Jim Browder, Sheriff of Crittenden County; Mr. James H. King, Mayor of Earle, Arkansas; and Mr. Harold Annis, Chief of Police of Earle.
Paragraph II(B) of the original complaint states:
"This is also a proceeding for a preliminary and permanent injunction to enjoin defendants Browder, King and Annis from imposing curfews against black persons, arresting black persons for demonstrating in support of constitutional rights, from deputizing only white persons, and from engaging in acts with any other persons in which to deny plaintiffs the opportunity to exercise rights guaranteed under the constitution of the United States."
The allegations of the complaint relative to this part of the case are as follows:
" A. On or about August 7, 1970, a large number of black students, including some of the minor plaintiffs, sought to protest the conditions set forth in paragraph VII, supra, by withdrawing from school until the grievances complained about herein were considered and/or redressed by the school board. As a result of this protest, black pupils who withdrew from school for the purpose of peaceful protest were attacked and further provoked by unnamed and unidentified white citizens of and around the city of Earle, Arkansas, some of whom sought to run several of said minor plaintiffs off of the public streets and others of whom brandished and displayed weapons on their person and in their motor vehicles. All of said acts were, on information and belief, intended to counter protest the protest activities of the black pupils and to otherwise deprive plaintiffs and members of their class of First and Fourteenth Amendment rights to speech, equal protection, and due process under the law.
"B. Defendants Annis and Browder, although they had knowledge of said "counter protest" activities of said white persons did nothing or took no action to prevent injury or intimidation to and of plaintiffs and their class by said white citizens. Indeed, on or about September 8, 1970, defendants Annis and Browder participated and engaged with said unidentified white persons in said acts of intimidation and suppression by spraying the chemical commonly known as "mace" into the faces of several plaintiffs.
"D. As a result of said withdrawal from school approximately thirty (30) persons have been arrested and detained as will be more particularly described below.
"A. Plaintiffs and members of the class they represent have, since on or about May 21, 1970, attempted to present grievances concerning the schools, housing, employment, and acts of discrimination to school officials and to City of Earle officials.
"B. In connection with the above described presentation of grievances, plaintiffs and members of the class they represent have engaged in peaceful picketing, consumer boycotts, ...