Kilpatrick, Judith

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Cooper v. Aaron: Development and Implementation of the Litigation

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University of Arkansas at Little Rock Law Review Volume 30 Issue 2 Article 12 2008 Cooper v. Aaron: Development and Implementation of the Litigation Judith Kilpatrick Follow this and additional works at: https://lawrepository.ualr.edu/lawreview  Part of the Civil Rights and Discrimination Commons, and the Education Law Commons Recommended Citation Judith Kilpatrick, Cooper v. Aaron: Development and Implementation of the Litigation, 30 U. ARK. LITTLE ROCK L. REV. 355 (2008). Available at: https://lawrepository.ualr.edu/lawreview/vol30/iss2/12 This Essay is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. Cooper v. Aaron: Development and Implementation of the Litigation Cover Page Footnote In September 2007, the city of Little Rock — and the entire country — commemorated a crisis of public school integration and race relations that occurred fifty years ago at Central High School in Little Rock, Arkansas. The following is one of six essays which are products of the Ben J. Altheimer Symposium on the 50th Anniversary of the Central High Crisis, held at the University of Arkansas at Little Rock Bowen School of Law on September 20 and 21, 2007. Symposium speakers and participants included nationally-renowned civil rights activists, members of the local judiciary, and local leaders involved both fifty years ago and today in working toward equality between all races and ethnicities. This essay is available in University of Arkansas at Little Rock Law Review: https://lawrepository.ualr.edu/lawreview/vol30/iss2/12 COOPER V AARON: DEVELOPMENT AND IMPLEMENTATION OFTHE LITIGATIONJudith Kilpatrick*When Brown v. Board of Education' was decided on May 17, 1954,Wiley A. Branton was a sole practitioner in Pine Bluff, Arkansas. He alsowas president of the Pine Bluff Chapter of the National Association for theAdvancement of Colored People. He was also chair of the Legal RedressCommittee for the Arkansas State Conference of the NAACP.2Branton and his colleague, George Howard, Jr., scheduled a meeting onAugust 6 to explain the Brown decision to Pine Bluff's black community.Similar meetings were held across the state. The Legal Redress Committeebegan working with parents in various communities, including Little Rock,to prepare petitions requesting admission of their children to white schools.3Branton and other members of the committee met with the Little RockSchool Board on September 9, 1954, to present the petition and to offer theirhelp in implementing desegregation. They were told that studies would haveto be performed before any changes would be made. Their offer of help wasignored.4On May 24, 1955, the School District published a plan for desegrega-tion developed by Superintendent Virgil Blossom. Instead of providing forfull desegregation of all schools in the district, it stated that only one highschool-Central-would be integrated.Instead of admitting all black students living in the school's geographicboundaries, school officials required potential students to apply and survivea screening process before some of them would be admitted.' Over that* Professor and Associate Dean, University of Arkansas, Fayetteville, School of Law;J.S.D. 1999, L.L.M. 1992, Columbia University, J.D. 1975, B.A. 1971, University of Califor-nia-Berkley.1. Brown v. Bd. of Educ., 347 U.S. 483 (1954).2. Judith Kilpatrick, The Little Rock Crisis and the Courts: A Forum, Wiley AustinBranton and Cooper v. Aaron: America Fulfills Its Promise, LXV ARK. HIST. Q. 7, 8 (2006).3. JUDITH KILPATRICK, THERE WHEN WE NEEDED HIM: WILEY AUSTIN BRANTON, CIVILRiGHTs WARRIOR 64 (2007).4. Transcript, Hearing Before the Pulaski County School Board Wherein PetitionsWere Introduced by Attorneys Representing the Patrons of the Sweet Home and CollegeStation Schools, Regarding Integration, p. 2. Blossom Papers at Box 3, File 2.5. TONY FREYER, THE LITITLE ROCK CRISis: A CONSTITUTIONAL INTERPRETATION 16-17(1984).355UALR LAW REVIEWsummer, Blossom spoke with over a hundred white groups, emphasizingthat this plan was the least the District could do and remain within the law.6In late July 1955, the Little Rock NAACP publicly protested the li-mited nature of the plan and its failure to set a date by which other schoolswould be desegregated. When there was no response to its protest, the LittleRock chapter voted to file a lawsuit against the School Board.7Wiley Branton was asked to handle the case and filed a complaint onFebruary 8, 1956.8 The complaint was based on a model developed by theNAACP Legal Defense and Education Fund, Inc. (LDEF) for the purpose ofimplementing the Brown decision. Branton and the LDEF lawyers all signedas lawyers for the plaintiffs.9The case went to trial on August 15 before the Honorable John E. Mil-ler, judge of the United States District Court in Fort Smith, who decided theSchool Board's plan was a reasonable response to Brown. Branton and theNAACP immediately filed an appeal with the Eighth Circuit Court of Ap-peals in St. Louis, Missouri, which set a hearing for March 11, 1957.10 Bythe time of the hearing, the NAACP had recognized the importance of thecase. Attorney Robert Carter from the NAACP's New York office sharedthe presentation with Branton. They lost again.At this point, the September 1957 date for the limited integration ofCentral High School was looming. Branton and his clients decided not toappeal their case further. Instead, they waited to see how the School Dis-trict's plan would be implemented." This ended phase one of Aaron v.Cooper. If the District had proceeded with its plan and dealt summarily withthe increasingly vocal and violent segregationists objecting to any integra-tion, we might never have heard of Branton again.Instead, on September 2, Governor Faubus ordered the Arkansas Na-tional Guard to prevent entry by the Little Rock Nine (the only black stu-dents to survive the screening process and demonstrate the courage to standup to the segregationists). Angry mobs protested in the streets. The Districtpetitioned the court, asking what it should do.A newly-assigned federal judge, the Honorable Ronald N. Davies fromFargo, North Dakota, held a hearing the evening of September 3 and orderedthat the plan move forward. The students were prevented from entering Cen-tral High on September 4. A second request from the School Board to sus-6. Irving J. Spitzberg Jr., Racial Politics in Little Rock 1954-1964, in AMERiCANLEGAL AND CONSTITUTIONAL HISTORY 33 (Harold Hyman & Stuart Bruchey eds., 1987).7. KILPATRICK, supra note 3, at 67.8. KILPATRICK, supra note 3, at 71.9. Complaint, Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956) (No. 3113).10. KILPATRICK, supra note 3, at 75.11. KILPATRICK, supra note 3, at 76.[Vol. 302008] 50TH ANNIVERSARY OF THE CENTRAL HIGH CRISIS 357pend its plan was made on September 5. It was denied after a hearing onSeptember 7.It was during this period that Branton realized he needed help andasked Thurgood Marshall to join him in the fight. Branton and Marshall,who was Director-General of the NAACP Legal Defense and EducationFund, Inc., spent long days dealing with the court over the next two weeks,trying to get the Nine into school and to keep them there.Branton later recalled that during the September 1957 crisis, "we wereeither in court or in conference with people from the Justice Department andothers for 30-some-odd consecutive days, and meeting on all kinds of legalsituations, from the state court to the federal court."'"With favorable decisions from Judge Davies, including one on Sep-tember 20 ordering Governor Faubus and the National Guard not to interferewith entry of the students, Branton and Marshall succeeded. The studentsentered the school on September 23, but they were evacuated when localpolice could not maintain control over the mob outside the building. Thestudents finally entered Central and stayed after President Dwight D. Eisen-hower ordered the 101 st Airborne to Little Rock to protect them. Even afterthat, angry mobs made the black students' lives hell-both outside and in-side the school. 3 This ended the second phase of Aaron v. Cooper.In January 1958, the School District again requested the federal court'spermission to suspend its integration plan, citing the adverse treatment ofthe black students by some white students and arguing that the presence ofthe black students in the school made it impossible to provide an educationto all students.' 4 The Board's lawyers suggested that Brown only requiredthat the school district "comply with the constitutional mandate to enact aplan 'at the earliest practicable date,"' which had been done. A delay wouldnot violate the law.Under law, the "doctrine of impossibility" requires proof of two things:(1) that unforeseeable circumstances justified modifying the Order to pro-ceed with integration, and (2) that it was impossible for the Board to pro-ceed with its plan. The circumstances the Board cited as unforeseeable were"the harassment incidents against the Black students inside the school, thepresence of soldiers inside and mobs outside the school, and laws passed bythe state legislature in an effort to nullify Brown. These had 'made it diffi-cult for teachers to teach and pupils to learn.""' 5The Board asked for a delay of two-and-a-half years in implementingthe desegregation plan. They never stated what they expected to happen12. KILPATRICK, supra note 3, at 81.13. KILPATRICK, supra note 3, at 78-80.14. KILPATRICK, supra note 3, at 83.15. Kilpatrick, supra note 2, at 14.UALR LAW REVIEWduring that period to change the situation, although questioning of WayneUpton, attorney and president of the School Board, indicated that the Boarditself did not intend to do anything and was just hoping that Faubus wouldnot be re-elected. 6 The Board's lawyers had to know their arguments wereweak and overshadowed by the plaintiffs' position.The Supreme Court's opinion had stated that "these unconstitutionalprinciples cannot be allowed to yield simply because of disagreement withthem." 7 Branton and Marshall used that language to refute the Board'sstated concern about the harassment. They also said performance was notimpossible, since the Board could request the Court's help via an injunctionagainst the segregationists, as the Hoxie, Arkansas, School Board had done.The plaintiffs' lawyers acknowledged that the School Board faced bigproblems, but they argued that the problems did not relieve the Board of itsconstitutional duty to follow through on its plan. "Such a 'surrender,' theysaid, would 'thwart the Constitution of the United States and the orders ofthis Court,' leading to anarchy. And, 'such action would effectively denyplaintiffs and the class they represent constitutional rights heretofore recog-nized and guaranteed by this Court.""18After hearing arguments on June 3, the Honorable Harry T. Lenileygranted the School District a two-and-one-half year suspension of the inte-gration plan. Lemley defended his decision to newspaper reporters by sayingintegration was "counter to the pattern of Southern life."' 9Branton and Marshall immediately appealed Lemley's decision to boththe Eighth Circuit Court of Appeals and the United States Supreme Court.Judge Lemley had refused to stay his Order, preventing its effect until theappeal was heard. Little Rock students would be returning to a re-segregatedsystem in the fall unless one of the higher courts overruled Lemley's deci-sion.2"The Supreme Court refused to take the case directly from the DistrictCourt but hinted to the Court of Appeals that it should grant an early hear-ing.2 ' The Court of Appeals responded, setting a hearing date of August 4.At that hearing, Branton and Marshall argued that confirming Lemley's de-cision would support mob rule, punishing the black students who had beenthe victims of harassment. The School Board repeated its arguments at thedistrict court. The appellate court agreed with the plaintiffs and issued itsdecision overturning Lemley's order two weeks after the hearing.16. Kilpatrick, supra note 2, at 15.17. Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955).18. Kilpatrick, supra note 2, at 16.19. Court Halts Integration 2 1/2 years in Little Rock, Cites Public Opposition, N.Y.HERALD TRIBUNE, June 22, 1958, at 1.20. KILPATRICK, supra note 3, at 84-85.21. JACK GREENBERG, CRUSADERS IN THE COURTS 236 (1994).[Vol. 302008] 50TH ANNIVERSARY OF THE CENTRAL HIGH CRISIS 359In its opinion, the Court of Appeals agreed that Brown did not requirean identical desegregation plan from every school district. The Court hadallowed local school districts to tailor implementation of desegregation tolocal obstacles. The appellate court, however, noted "that the actions listedby the School Board and cited in Lemley's decision 'were the direct resultof popular opposition to the presence of the nine Negro students.' Thus, thesituation was squarely covered by Brown."22The chief judge for the Court of Appeals, Archibald K. Gardner, whowas the only dissenter from that decision, granted a stay of the appellatedecision. That meant that Lemley's order remained in effect and, unless theSupreme Court acted very quickly, the Little Rock system would be segre-gated in the fall.23This time, it was the School District that filed an appeal. A hearing be-fore the Supreme Court was scheduled for September 11. In anticipation ofan adverse decision, Governor Faubus asked the legislature to enact a num-ber of laws that gave him control over the school system. He was preparedto close Little Rock schools and allow them to reopen as private schools, ifthe Supreme Court required the desegregation plan to continue.24Hard questions were put to the School District's lawyer, Richard C.Butler, by the members of the Supreme Court. In response, Butler arguedthat it was preferable to deny constitutional rights to a few students in orderto provide "full educational opportunities" to the many. He also admittedthat the School District had no plans to change the situation for the betterduring any delay it received. He spoke of the School Board being "caughtbetween two disputing 'sovereignties."' 25The Court's decision affirming the Court of Appeals' reversal of JudgeLemley's order was announced the next day. In it, the Court noted that theSchool Board, as "an agent of the State," violated the Fourteenth Amend-ment to the Constitution if it failed to provide "equal protection of the laws."The public's confusion or ignorance of the law did not relieve the state agentof its duty.2 6The School Board's attorney, Richard Butler, walked a fine line duringhis argument. Trying not to place blame on Faubus or the legislature, hecame close to denying the supremacy of federal law in this area. When chal-lenged by the Court, he backed down.Faubus might have thrown up his hands and accepted the pronounce-ment. Instead, he closed the Little Rock high schools and scheduled a spe-22. Kilpatrick, supra note 2, at 18.23. KILPATRICK, supra note 3, at 86-87.24. Id. at 87-88.25. Kilpatrick, supra note 2, at 19.26. Id.UALR LAW REVIEWcial election for September 27, at which the voters would state whether ornot they favored integration.In the meantime, he began negotiations to turn the high schools and theteachers over to a private corporation that would operate the schools on asegregated basis. Branton and Marshall asked the district court, where JudgeMiller again was presiding over the case, for an order to prevent the transferof property to the corporation. By the time the hearing on that request oc-curred, the School District announced it had signed a contract to transfer thebuildings to the private corporation. 7Branton and Marshall immediately appealed to the Eighth Circuit, ask-ing that the lease be declared void and without legal effect. While this hear-ing was in session on September 29, the Supreme Court's written opinionconfirming its oral decision earlier in the month was delivered.The Court of Appeals granted the plaintiffs a temporary restraining or-der. The high schools remained closed. Additional hearings in the Court ofAppeals on October 6 and 15 resulted in an order to Judge Miller, requiringhim to "'take such affirmative steps' as were needed to accomplish integra-tion." 28One would have thought that this ended the dispute. It did not. JudgeMiller did not respond until January 9, 1959, at which time he gave the Dis-trict another ninety days to tell him what it intended to do to comply withthe Supreme Court's decision.29 By January, the board that had guided theSchool District for the duration of the case had resigned, and a new board,consisting half of moderates and half of segregationists, was in place.The judge had come up with another way to evade the Court of Ap-peals order. He interpreted the order as not requiring him to act affirmativelyto force the reopening of the schools, but requiring only that, if the schoolswere reopened, it be on an integrated basis.30Two weeks later, the new board asked to reopen the schools on a se-gregated basis; the judge refused pennission. It was as if the past year hadnot occurred and no Supreme Court decision applied. Frustrated, Brantonand Marshall decided to attack the laws that had given Faubus power to con-trol the schools.3After almost a year's work, the United States Supreme Court foundthose laws unconstitutional. By that time, however, several white groups hadformed to work toward reopening of the high schools. Working on publicopinion, they convinced voters to elect a new school board in May 1959,27. KILPATRICK, supra note 3, at 88-89.28. Id. at 89-90.29. Id. at 90.30. Id.31. Id. at90-91.[Vol. 302008] 50TH ANNIVERSARY OF THE CENTRAL HIGH CRISIS 361composed of moderates who promised to get the schools opened for the fallsemester.Attitudes to desegregation had not changed. There was recognition,however, that if citizens wanted high schools, those high schools wouldhave to be integrated to some extent.32In a reprise of the School Board's efforts in 1957, the screening of eli-gible black students resulted in only ten being admitted at two white highschools. None of them had been members of the Nine. Again, the plaintiffshad to appeal from a decision by Judge Miller that the school board wasacting in good faith. Although incremental gains were made over the suc-ceeding years, the issue was never resolved finally.Branton remained with the case as a consultant for the rest of his life,but he turned primary responsibility for it over to another lawyer in 1962when he went to Georgia to direct the Voter Education Project.332. Id.at9l.33. KILPATRICK, supra note 3, at 92-93.

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Cooper v. Aaron: Development and Implementation of the Litigation

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