This class action to effect pupil and faculty desegregation of
the Fort Smith, Arkansas, high schools was brought several years
ago by petitioners, two Negro students. The courts below refused to
order respondents to transfer petitioners or to order immediate
desegregation of the high schools, and it was also held that
petitioners had no standing to challenge racial faculty allocation.
Since one of the students had graduated during the pendency of the
suit, and the other had reached the 12th grade, two other Negro
students, one in the 10th grade and the other in the 11th grade,
moved in this Court to be added as party plaintiffs.
Held:
1. The motion to add parties is granted.
2. The assignment of petitioners to a Negro high school on the
basis of race is constitutionally prohibited, both for the reasons
stated in
Brown v. Board of Education, 347 U.
S. 483, and because petitioners are prevented from
taking courses offered only at another school limited to white
students. Pending immediate desegregation of the high schools
according to a general plan, petitioners and those similarly
situated shall be allowed immediate transfer to the high school
from which they were excluded because of race, and which has the
more extensive curriculum.
3. Under two theories, the first of which plainly applies,
students not yet in desegregated grades would have standing to
challenge racial faculty allocation: such allocation (a) of itself
denies them equality of educational opportunity, and (b) renders
inadequate an otherwise constitutional pupil desegregation plan
soon to be applied to their grades.
Certiorari granted; 345 F.2d 117, vacated and remanded.
PER CURIAM.
The petition for writ of certiorari to the Court of Appeals for
the Eighth Circuit and the motion to add
Page 382 U. S. 199
parties are granted. The judgment of that court is vacated, and
the case is remanded to the District Court for the Western District
of Arkansas for further proceedings consistent with this
opinion.
1. This class action to desegregate the public high schools of
Fort Smith, Arkansas, was commenced several years ago in the name
of two Negro students. One of the students has since graduated, and
the other has entered the last high school grade. A motion to add
parties is made on behalf of two additional Negro students. It is
alleged therein, and not denied by respondents, that these students
are in the 10th and 11th grades of high school, and that they are
members of the class represented, seeking the same relief for all
the reasons offered by the original party plaintiffs. That motion
is accordingly granted.
2. The desegregation plan adopted in 1957 desegregates only one
grade a year, and the 10th, 11th and 12th high school grades are
still segregated. The students who are petitioners here were
assigned to a Negro high school on the basis of their race.
* Those
assignments are constitutionally forbidden not only for the reasons
stated in
Brown v. Board of Education, 347 U.
S. 483, but also because petitioners are thereby
prevented from taking certain courses offered only at another high
school limited to white students,
see Missouri ex rel. Gaines
v. Canada, 305 U. S. 337;
Sipuel v. Board of Regents, 332 U.
S. 631;
Sweatt v. Painter, 339 U.
S. 629. Petitioners are entitled to immediate relief; we
have emphasized that "[d]elays in desegregating school systems are
no longer tolerable."
Bradley v. School Board, ante, p.
382 U. S. 103, at
382 U. S. 105.
Pending the desegregation of the public high
Page 382 U. S. 200
schools of Fort Smith according to a general plan consistent
with this principle, petitioners and those similarly situated shall
be allowed immediate transfer to the high school that has the more
extensive curriculum and from which they are excluded because of
their race.
3. From the outset of these proceedings, petitioners have
challenged an alleged policy of respondents of allocating faculty
on a racial basis. The District Court took the view that
petitioners were without standing to challenge the alleged policy,
and accordingly refused to permit any inquiry into the matter. The
Court of Appeals sustained this ruling, holding that only students
presently in desegregated grades would have the standing to make
that challenge. 345 F.2d 117, 125. We do not agree, and remand for
a prompt evidentiary hearing on this issue.
Even the Court of Appeals' requirement for standing would be met
on remand, since petitioners' transfer to the white high school
would desegregate their grades to that limited extent. Moreover, we
reject the Court of Appeals' view of standing as being unduly
restrictive. Two theories would give students not yet in
desegregated grades sufficient interest to challenge racial
allocation of faculty: (1) that racial allocation of faculty denies
them equality of educational opportunity without regard to
segregation of pupils, and (2) that it renders inadequate an
otherwise constitutional pupil desegregation plan soon to be
applied to their grades.
See Bradley v. School Board,
supra. Petitioners plainly had standing to challenge racial
allocation of faculty under the first theory, and thus they were
improperly denied a hearing on this issue.
Vacated and remanded.
MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE WHITE and MR.
JUSTICE FORTAS would set the case down for argument and plenary
consideration.
* The constitutional adequacy of the method chosen for assigning
students to the schools for purpose of desegregating the lower
grades is not before us, and the method contemplated for the high
schools is not part of the record.
