BOARD OF MANAGERS OF ARK. TR. SCH. FOR BOYS v. GEORGE

LAY, Circuit Judge.

This action comes to us as an interlocutory appeal under Tit. 28 U.S.C. § 1292 (b), from an order overruling appellants' motion to dismiss. The district court granted the appeal since our decision may advance the ultimate termination of the litigation. We granted leave to file the appeal and have heard oral arguments from the respective parties.

Plaintiffs, Mrs. Nona Mae George and her minor son, Roy Lee Lewis, are Negro citizens who reside in Gould, Lincoln County, Arkansas. The complainants seek relief under the Civil Rights Statutes, 28 U.S.C. § 1981 and § 1983. The suit was brought as a class action for all persons similarly situated pursuant to Fed.R.Civ.P. 23(a) (3). An interlocutory and permanent injunction under Tit. 28 U.S.C. § 1343(3) and (4) is sought against the respective Board of Managers of the Arkansas Training School for Boys at Wrightsville and at Pine Bluff from the maintenance of a separate "training" school for white and Negro juveniles. Similarly, an injunction is sought against Lincoln County, Juvenile Court Judge, E. G. Brockman and all other "juvenile court" judges similarly situated from assigning or sentencing minor Negro juveniles to the Training School at Wrightsville on the basis of race or color.

The two training schools, Wrightsville, known as the Negro Boys Industrial School, and Pine Bluff, known as the White Boys School, are set up and operated pursuant to § 46-301-360 of the Arkansas Statutes Annotated. Relevant portions of the Arkansas Statutes1 read as follows:

Section 301:

Section 305:

Section 306:

Section 321:

Section 330:

Commitment to one school or another is limited to adjudication of a juvenile being "dependent or delinquent." Plaintiffs allege that Roy Lee Lewis was adjudged by Judge Brockman to be delinquent and was sent to the "Negro Boys School." The commitment was pursuant to "the state law" above set forth.

It is alleged that plaintiffs have been deprived of their equal right to equal treatment, privileges and opportunities by the State of Arkansas solely because of their race or color; it is alleged these rights are in violation of the due process and equal protection clauses of the Fourteenth Amendment.2

Appellants assert that the statutes of Arkansas cannot be properly attacked in the present proceeding since (1) they are not pleaded or specifically attacked in plaintiffs' complaint, and (2) they cannot be declared unconstitutional without involving a three-judge court under Tit. 28 U.S.C. § 2281.

Rule 8(f) Fed.R.Civ.P. requires us to construe "[a]ll pleadings * * * to do substantial justice." The complaint alleges that the Arkansas juvenile judges have acted pursuant to "state law." The complaint thus necessarily incorporates the statutes by reference. Likewise, the motion to dismiss raises the validity of the statutes since appellants rely on the statutes in their brief to support their motion. Cf. Bynum v. Schiro, E.D.La., 219 F.Supp. 204. It would clearly be a "contradiction of reason" to attempt to enjoin the state from enforcement of a statute and at the same time not pass upon the constitutionality of the statute. Cf. United States ex rel. McNeill v. Tarumianz, 3 Cir., 242 F.2d 191. Moreover it is not necessary to attack statutes by specific pleading which on their face are unconstitutional. Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762.

We are also mindful that the present appeal comes to us on a motion to dismiss with a limited record. Appellant has not even filed its answer. We adhere to the proposition that it would be improper to consider "grave constitutional questions" where there exists "reasonable likelihood" that further proceedings could help clarify the issues. Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, at 213, 55 S.Ct. 187, 79 L. Ed. 281. However, in the present proceeding no further pleadings or evidence is necessary for "refinement or clarification of issues." United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; United States v. Fabro, Inc., M. D.Ga., 206 F.Supp. 523. And we should dispose of all controversies "as expeditiously as is consistent with proper judicial administration." Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762.

Section 2281 requiring a three-judge court is not mandatory where the statute invokes clear governmental discrimination. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. Segregation of public institutions or facilities is no longer a substantial constitutional question. United States v. Guest, 383 U.S. 745, see n. 6 at 754, 86 S.Ct. 1170, 16 L.Ed.2d 239; Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195.

However, it is initially urged that appellees have not stated a claim for relief since the Arkansas training schools are not "educational" but "penal" institutions, and therefore the "policy" of federal court non-interference with "penal" institutions should be applied.

Although we do not base our decision upon a determination that these training schools are educational institutions, we only comment that it is the legislative declaration of the Arkansas people that these schools are not to be considered as "penal" in nature. Ark.Stats. Anno. §§ 46-305, 46-321.3 By legislative fiat these schools are an integral part of the educational system in the State of Arkansas. Their responsibilities are equal to any other public institutions of learning in educating young people to assume useful roles in society. "* * * [I]n the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal." Brown v. Board of Education, 347 U.S. 483, at 495, 74 S.Ct. 686, at 692, 98 L.Ed. 873.

However, to adopt the appellants' pernicious brand that these institutions are "penal" in nature leads nowhere. Penal institutions are public institutions and are not exempt from constitutional limitations. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. Our holdings in Lee v. Tahash, 8 Cir., 352 F.2d 970, and Harris v. Settle, 8 Cir., 322 F.2d 908, do not authorize discrimination in violation of constitutional prohibitions.

Wholesale and arbitrary discrimination by state statutes is far removed from disciplinary administrative matters by prison officials.4 As was stated in the recent decision of Washington v. Lee, M.D.Ala., 263 F.Supp. 327, at 331:

See, also, Singleton v. Board of Comms. of State Institutions, 5 Cir., 356 F.2d 771; Bolden v. Pegelow, 4 Cir., 329 F.2d 95; Dixon v. Duncan, E.D.Va., 218 F.Supp. 157; Ferguson v. Buchanan, S.D. Fla., 10 R.R.L.R. 795 (1965). See also, Edwards v. Sard, D.D.C., 250 F.Supp. 977.

To the extent that §§ 46-301-46-360 of the Arkansas statutes require segregation of juveniles to white schools or colored schools, based solely upon the race of the individual involved, the statutes are clearly unconstitutional; to the extent that the statutes require commitment to segregated facilities, they are clearly unconstitutional; to the extent that the statutes require maintenance of segregated facilities they are clearly unconstitutional. No injunction need issue to an individual judge,6 board manager or any person in light of our holding at the present time. The statutes are not void in their entirety and commitment of juveniles for dependency and delinquency may still be enforced thereunder. However, under no circumstance should race become a determinative factor in assignment. All children, white or colored, must be assigned to either school in accordance with any approved plan of desegregation. The Board of Managers shall prepare a plan for desegregation of the facilities and present it to the district court for approval. Such plan should be filed within a reasonable time as set by the district court and should set forth a reasonable time within which said institutions will become completely desegregated. The trial court shall retain jurisdiction until the desegregation plans have been fulfilled.

Judgment is affirmed, the case is remanded for further proceedings in accordance with this opinion.