LETTERS Rf!: On Ws (sic) Anniversary, A Look Back at
Brown v. Board of Education
I am troubled by much of the content of the above referenced article which appeared in your Summer 1994 edition. I also question the propriety of the author's decision to include in the article references to, and speculation about, pending litigation over which his spouse is currently presiding. Of greatest concern to me, however, is the failure of Professor Robert R Wright to convey ...liable racts regardmg busing in Little Rock.
Although Professor Wright implies the contrary. the ract is: OT ONE WHITE CHILD IN THE LfITLE ROCK PUBLiC SCHOOLS IS I VOLU TARILY BUSED FOR SCHOOL DESEGREGA110 PURPOSES; nor is there a requirement of "racial balance" in the LRSD.
Those in Little Rock who choose to send their children to private and parochial schools in order to avoid busing for desegregation are acting in reliance upon misinformation. It is unfortunate Professor Wright chooses to foster race conscious antibusing feelings by conveying inaccurate information. Further, I question Professor Wright's understanding of the feelings of "a substantial part of the black community" about busing. He does not inform us how he acquired his ability to make unequivocal statements about the preferences of blacks or how he arrived at a conclusion that "crime" is a by-product of the "disintegration of the black community." Is there no other crime; no other cause of crime, anywhere? For reasons other than those he cited, I do agree with Professor Wright that the desegregation plans submitted by the parties in the case involving Little Rock, orth Little Rock, and Pulaski County have no chance of succeeding. I made my reasons clear in my report to Judge Henry Woexls in 1990. Those reasons were based upon an examination of the facts as applied to the law, not on philosophical speculation or unsupported assumptions. Judge Woods found the plan of the parties unacceptable. The Eighth Circuit reversed. I withdrew and Judge Woods recused himself. For an accurate recounting of events, I invite your readers to read carefully the excellent article "Reflections on the Little Rock School Case". Woods ÂŤ< Dee.... 44 Arkansas Law Reuino 4 (1991) pp 971-1106. It is clear that Professor Wright's article does not reflect accurately what the District Court must do in Little Rock: nor is his article Ita look back at Brown v. Board of Education." I suspect Professor Wright would have failed any student who wrote as he did about either subject. My closeness to the school desegregation events in Little Rock and my reading of the latest United States Supreme Court school
TO
THE
EDITOR
desegregation cases (i.e., Freeman v. Pitts; Oklahoma City v Dowell) allow me to definitively state, contrary to Professor Wright, that the role of the District Court has much to do about what desegregation is intended to accomplish. The United States Supreme Court continues to expect the District Court to retain jurisdiction until all vestiges of prior segregatory acts have been eliminated. My active involvement in school desegregation cases across the United States provides me first hand knowledge that high quality educational services in desegregated school settings is still the promise of Brown. "Busing" is not and has never been the appropriate focus of concern. -Aubrey V. McCutcheon, Jr. Former Special Master to Judge Henry Woods. LRSD v PCSSD. 740 FSupp 632 (E.D.Ark. 1990)
Responsf! to Mr. McCutcheon
Mr. McCutcheon questions the "propriety" of my commenting on the school desegregation case which seems to pend forever in this county. The First Amendment to the U.S. Constitution does not contain a clause excluding me from its freedom of speech provision. Therefore, I believe that I have every right to make use of it. The fact that my spouse is the Judge in the case does not serve to alter that fact. What was printed in The Arkansas Lawyer was written for a Presidential Showcase program on Brown v. Board of Education at the midyear meeting of the American Bar Association in Kansas City. I was on a panel composed largely of prominent black lawyers. This program, with a somewhat different foonat, was repeated at the annual meeting of the ABA in ew Orleans. The evaluations of my presentation from a racially mixed audience were quite favorable. What I sought to do is what academics often do, and that is to consider the law as it exists, the ramifications of it, and then to project how things ought to be to achieve a desired goal. It should be obvious to anyone connected with this case that much of what I wrote or said cannot be done by my wife or any other Judge sitting on this case because before she was ever assigned the case, the ground rules were established by the order of the Eighth Circuit panel which approved the settlement. The Court has only a limited amount of discretion and is otherwise subject to complying with the goals and guidelines established by the Eighth Circuit in that order and in subsequent orders. Now some of what Mr. McCutcheon said is falacious. He states, in apparently emotional capital letters, that white children are not involuntarily bused for school desegregation purposes. In fact, recent testimony in this case
focused on the enormous amount of money expended on transportation. Testimony was given to the effect that except for desegregation, there would be no busing of elementary school children in North Little Rock. In Little Rock, children are assigned to schools as close to home as possible, in most cases, and they may choose other options, such as the magnet schools, which may be some distance away If these schools are a substantial distance away, the child must be bused. If the school first assigned to the child is more than a certain distance away, the child must be bused. This does not just apply to white children; it also applies to black children, and in fact, there are more black children bused than white children. Mr. McCutcheon does not understand the basis for my statement that a substantial part of the black community does not like busing. That fact periodically crops up in the newspapers and on television. The Eighth Circuit periodically sends out clippings from newspapers in the circuit pertaining to local federal cases. One of those clippings from about a year ago indicated that black school leaders in SI. Louis were critical of busing and preferred neighborhood schools. This is nothing new and is nothing that was invented byrne. As a matter of fact, a law review article by Professor Lino Graglia of the University of Texas Law School indicated that prior to Green v. County School Board of ew Kent County, decided in 1968, the position of the NAACP was in favor of freedom of choice in the public schools. Their position changed with that case, and after that, came the Swann case and Milliken U. Those cases laid the basis for the problem that exists today. It is pleasing that Mr. McCutcheon maintains an interest in this case and is one of the readers of The Arkansas Lawyer. It is a difficult case and is one in which I largely agreed with Judge Henry Woods. In fact, I believe that the reversal of Judge WCKXIs' order, which led to his recusal, set the case back severely. However, if you look at it from the standpoint of the Eighth Circuit panel, the Little Rock School District and the other districts were telling them that the approval of these plans were essential to desegregation. The intervenors agreed. So the appeUate judges gave them what they asked for. Now, the District Court must seek, and is seeking, to carry out what these school districts begged the Eighth Circuit to give them. That fact that r speak or write about what I think will ultimately transpire does not alter anything with respect to the duty of the Court. Apparently, Mr McCutcheon does not understand that either. - Robert R. Wright Donaghey Distinguished Professor of Law
7 ARKANSAS LAWYER
FALL 1994