Eilers v. Carpenter Brief for Intervening Petitioner, George F. Eilers, Father

    Ittifpfi (Emtrt of A*ijn>als
F ob the F ourth Circuit

No. 8727

I n  th e

B obby B runson, et al., 

—v.—•
Appellants,

B oard of T rustees of S chool D istrict No. 1 of 
Clarendon County, S outh Carolina, et al.,

Appellees.

APPEAL FROM  T H E  U N ITED STATES D ISTRICT COURT FOR T H E  

EASTERN DISTRICT OF SOU TH  CAROLINA 

CH ARLESTON DIVISION

BRIEF AND APPENDIX FOR APPELLANTS

J ack Greenberg 
J ames M. Nabrit, III 
M ichael Meltsner

10 Columbus Circle 
New York 19, New York

L incoln C. J enkins 
Matthew  J. P erry

1107% Washington Street 
Columbia, South Carolina

Attorneys for Appellants



INDEX TO BRIEF
PAGE

Statement of the Case ............................................    1

Statement of Facts ........................................................ 5

Questions Involved ........................................................ 7

A bgument :

Negro School Children and Their Parents Are 
Entitled to Join Together, on Behalf of Them­
selves and Others Similarly Situated, in Order 
to Seek Injunctive Relief Against the Mainte­
nance of Discriminatory Pupil Assignment Pro­
cedures .....................................................................  8

Conclusion .........................................................................  12

T able op Cases

Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955) .. 11,12 

Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959) 11

Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960) ......... 10

Gibson v. Board of Public Instruction, 272 F. 2d 763
(5th Cir. 1959) .............................................................  10

Green v. School Board of the City of Roanoke,------
F. 2 d ------  (4th Cir. May 22, 1962) .......................9,10,12

Jones v. School Board of City of Alexandria, 278 
F. 2d 72 (4th Cir. 1960) ..... '...................................... 10



11

PAGE

Mannings v. Board of Public Instruction, 277 P. 2d
370 (5th Cir. 1960) ....        10

Marsh v. County School Board of Roanoke County,
—  F. 2 d ------  (4th. Cir. June 12, 1962) ...............9,11,12

Northeross v. Board of Education of the City of 
Memphis, 302 F. 2d 818 (6th Cir. 1962) ................  10

INDEX TO APPENDIX

Relevant Docket Entries ..............................................  la

Complaint .......................................................................  2a

Motion to Strike .............................................................. 12a

Motion to Dismiss .........................................................  13a

Opinion and O rder.............    14a

Notice of Appeal ...........................................................  20a



I n  th e

Hutted (ta r t nf Appeals
F ob the F ourth Circuit 

No. 8727

B obby B runson, et al.,
Appellants,

B oard oe T rustees of S chool D istrict No. 1 of 
Clarendon County, South Carolina, et al.,

Appellees.

appeal from the united states district court for the

EASTERN DISTRICT OF SOUTH CAROLINA 
CHARLESTON DIVISION

APPELLANTS’ BRIEF

Statement of the Case

This is an appeal from an order (lla -lT a)1 entered May 
31, 1962 striking the names of all the plaintiffs from the 
complaint save one minor plaintiff and striking all the 
allegations of the complaint inappropriate to a personal 
action by said one minor plaintiff (19a).

This is an action for injunctive relief brought by the 
plaintiff-appellants, Negro school children and parents in 
Clarendon County, South Carolina, against the Board of 
Trustees of School District No. 1 of Clarendon County, 
South Carolina, the County Superintendent of Education

1 Citations are to the appendix to this brief.



2

and the District Superintendent of Education. This appeal 
is brought under 28 U. S. C. §1291.

The complaint was filed on April 13, 1960 by 42 Negro 
school children eligible to attend the public schools of 
School District No. 1 of Clarendon County, South Carolina, 
and their parents (2a-lla) as a class action on behalf 
of themselves and on behalf of other adults and minors 
similarly situated, pursuant to the provisions of Rule 
23(a)(3) of the Federal Rules of Civil Procedure (4a). 
Jurisdiction was invoked pursuant to 28 U. S. C. §1343(3), 
the action being authorized by 42 IT. S. C. §1983 to redress 
the deprivation of rights secured by the Fourteenth Amend­
ment to the Constitution of the United States and by 42 
U. S. C. §1981 providing for the equal rights of citizens 
(4a).

The complaint identified appellees, the Board of Trustees 
of School District No. 1, the County Superintendent of 
Education and the District Superintendent of Education, 
as generally maintaining and supervising the public schools 
of School District No. 1 pursuant to the direction of the 
Constitution and laws of the State of South Carolina (6a).

The complaint alleged that the defendants had main­
tained and continued to maintain a biracial school system 
in which school attendance and assignment of school per­
sonnel was determined by race and color and that certain 
schools were restricted to white school children and per­
sonnel and others to Negro school children and personnel 
(7a). Appellants alleged that the maintenance of a biracial 
school system resulted in injury to appellants and the class 
which they represented in violation of rights guaranteed 
by the Constitution and laws of the United States (7a-10a). 
Appellants sought a permanent injunction enjoining ap­
pellees from operating a biracial school system, maintain­
ing dual school zones, assigning students and subjecting



3

students to assignment transfer or admission standards 
on the basis of race (10a). In the alternative, appellants 
prayed that appellees be directed to submit a plan for the 
reorganization of the school system of Clarendon County 
on a nonracial basis (11a).

On May 3, 1960, appellees filed a Motion to Strike (12a) 
“ (1) from the caption of the complaint the names of all 
of the plaintiffs except ‘Bobby Brunson’ and (2) from the 
body of the complaint all of the allegations unrelated to 
the cause of action in behalf of ‘Bobby Brunson’ as sole 
plaintiff” on the ground that “ no class action within the 
meaning of Rule 23(a)(3) is alleged and therefore if any 
cause of action is stated in behalf of any plaintiff it is one 
for individual relief, which may be entertained only if all 
immaterial allegations and all nonessential parties are 
eliminated from the action” .

Also on May 3, 1960, appellees filed a Motion to Dismiss 
on the ground that the Court lacks jurisdiction and the 
complaint fails to state a claim upon which relief can be 
granted in that the complaint does not allege a class action 
within the meaning of Rule 23(a)(3) of the Federal Rules 
of Civil Procedure (13a).

On May 14, 1962, two years after the filing of the motion 
to strike and motion to dismiss, the Court held a hearing 
on both motions. On May 31, 1962, the Court, Judge C. C. 
Wyche (sitting by Designation), filed its opinion and 
ordered that the names of all of the appellants other 
than Bobby Brunson be stricken from the complaint as well 
as all of the allegations of the complaint inappropriate 
to a personal action by Bobby Brunson (19a). In con­
cluding that this action was not properly brought as a 
class action under Rule 23(a)(3), the Court determined 
that there was no common question of fact or unresolved



4

common question of law and, therefore, a class action was 
inappropriate (18a).

As to a common question of law, the Court had this to 
say:

. [DJecisions make it clear that any common 
question of law has been settled. The defendant may 
not deny to any plaintiff on account of race the right 
to attend any school which it maintains. That law has 
been established not only in controlling decisions of 
the Fourth Circuit but also in an action involving 
this very school district to which several of the plain­
tiffs here were parties and in which the School Board 
was a defendant. Briggs v. Elliot, 132 F. Supp. 776, 
777” (17a).

In passing to the issue of a common question of fact the 
Court stated:

• In determining the school to which a pupil is 
entitled to go, a School Board must consider a great 
many factors unrelated to race, such as geography, 
availability of bus transportation, availability of class­
room space, and scholastic attainment in order to 
perform the Board’s duty to promote the best interests 
of education within the district and insofar as possible 
place the child in the school where he has the best 
chance to improve his education. ‘School authorities 
have the primary responsibility for elucidating, as­
sessing and solving these problems.’ Briggs v. Elliott, 
349 U. S. 294. There is no allegation in the complaint 
showing that the factual situation with reference to 
each of the plaintiffs is the same. Undoubtedly the 
plaintiffs reside in different places, they are of dif­
ferent ages, they are of different scholastic attainment. 
South Carolina has provided a pupil placement statute



5

which permits any child desiring to attend a school 
other than the one to which he has been assigned to 
proceed through administrative channels to obtain 
placement in a different school of his choice. This 
statute provides that the case of each child shall be 
considered individually. 1952 Code, Sections 21-230, 
21-247; Hood v. Board, 232 F. 2d 626, 286 F. 2d 236. 
This statute is similar to the North Carolina statute, 
the validity of which was sustained in Carson v. Board 
of Education of McDowell County, 227 F. 2d 789 
(1955), and in Carsonv. Warlick, 238 F. 2d 724 (1956)” 
(18a).

On June 21, 1962, plaintiffs filed Notice of Appeal from 
the order of May 31, 1962 (20a).

Statement of the Facts

The forty-two Negro school children and their parents 
and guardians who brought this action on behalf of them­
selves and other adults and minors similarly situated are 
all Negro citizens of the United States and residents of 
the State of South Carolina, residing in School District 
No. 1, Clarendon County (5a).

After the decision of the United States Supreme Court 
in the School Segregation Cases, the United States District 
Court for the Eastern District of South Carolina, on 
July 15, 1955, issued its decree in the case of Briggs v. 
Elliott, 132 F. Supp. 776 (E. D. S. C. 1955) providing 
that the officials of what is now School District No. 1, 
Clarendon County, comply with the decision and mandate 
of the United States Supreme Court in the School Segre­
gation Cases, namely, that they operate them on a non- 
discriminatory basis, with race no longer as a standard of



6

school assignment. Plaintiff-appellants here allege in their 
complaint that appellees have failed and refused to take 
any steps to eliminate racial segregation in the school 
system in accordance with the decree in Briggs v. Elliott, 
supra and have steadfastly failed and refused to employ 
a plan for the reorganization of the school system into 
a unitary, nonracial school system as required by decisions 
of the United States Supreme Court (7a).

It is alleged that appellants have each made written 
application to defendants requesting reassignment to a 
public school limited to attendance by white students only 
to no avail (8a). Adult plaintiffs, some of whom were 
plaintiffs in the aforementioned case of Briggs v. Elliott, 
supra and all of whom by reason of their residing in 
School District No. 1, would have benefited by the proper 
implementation of the decree entered in that case on July 
15, 1955, requiring that schools be operated on a non- 
discriminatory basis, waited for over four years for the 
defendants to begin complaince with the order of this 
Court. On August 27, 1959, the appellants, through their 
attorney, Lincoln C. Jenkins, Jr., wrote to appellee W. C. 
Sprott, Chairman, Board of Trustees, School District No. 
1, requesting assignment of their children to a school to 
which a white child similarly situated to them would at­
tend (8a). They received no reply to this request (8a). 
Subsequently, on October 8, 1959, the adult plaintiffs called 
upon appellee W. C. Sprott in writing to institute a plan 
for the complete desegregation of the schools within his 
jurisdiction. A  reply from defendants dated October 13, 
1959, indicated that appellants’ request came too late for 
consideration by the Board, although the deadline referred 
to in the Board’s reply had never been previously publicly 
announced (8a).



7

It is alleged that the appellants have not exhausted the 
administrative remedy provided by the South Carolina 
School laws for the placement of pupils by trustees for the 
reason that the remedy there provided is inadequate to 
provide the relief sought by appellants in this case (9a). 
Appellants alleged they have not exhausted the remedy 
provided by the aforesaid pupil placement laws for the 
further reason that the criteria set forth in these laws 
for assigning children to school have been and are applied 
by appellees only to Negro children seeking admission, as­
signment or transfer (7a-10a). Furthermore, by the use 
of a previously unannounced cutoff date, appellees have 
prevented plaintiffs from employing the purported reme­
dies under said law (8a-10a). Appellants alleged that act­
ing under color of the authority conferred upon them by 
the South Carolina laws for the placement of pupils by 
trustees, defendants have continued to maintain and oper­
ate a biracial school system in School District No. 1 of 
Clarendon County; have used the provisions of these laws 
to deny admission of Negro children to certain schools 
solely because of race and color; and have used these laws 
to defeat rather than attain full compliance with the deci­
sions of the United States Supreme Court in the School 
Segregation Cases (9a-10a). Plaintiffs alleged that defen­
dants have not employed the pupil placement laws as a 
means of abolishing state imposed race distinctions, nor 
have they offered to plaintiffs, by means of the pupil as­
signment, a genuine means of securing attendance at non- 
segregated public schools (7a-10a).

Question Involved

Whether the Court below erred in determining that 
forty-two Negro school children and their parents seeking 
injunctive relief against the racially discriminatory policies



8

of a school board and its administrators on behalf of them­
selves and others similarly situated could not join in a single 
suit and maintain a class action under Rule 23(a)(3) of 
the Federal Rules of Civil Procedure when plaintiffs al­
leged discriminatory application and administration of 
pupil assignment laws in a biracial school system.

ARGUMENT

Negro School Children and Their Parents Are En­
titled to Join Together, on Behalf of Themselves and 
Others Similarly Situated, in Order to Seek Injunctive 
Relief Against the Maintenance of Discriminatory Pupil 
Assignment Procedures.

Appellants alleged in the complaint that they had not 
exhausted the administrative remedies provided by the 
South Carolina pupil placement laws for the reason that 
the criteria set forth in these laws for assigning children 

to school have been and are applied by defendants only 
to Negro children seeking admission, assignment or trans­
fer ’ (9a). Appellants alleged that the appellees maintained 
a biracial school system under color of the authority con­
ferred by the South Carolina pupil placement laws; em­
ployed unannounced cutoff dates in order to prevent plain­
tiffs from exhausting the remedies under the placement 
laws; and employed said laws as a means to defeat rather 
than to comply with the decisions of the United States 
Supreme Court in the School Segregation Cases (10a).

Appellants prayed the court grant the following relief:

1. Enter a decree enjoining defendants, their agents, 
employees and successors from operating a biracial 
school system in School District No. 1 of Clarendon 
County;



9

2. Enter a decree enjoining defendants, their agents, 
employees and successors from maintaining a dual 
scheme or pattern of school zone lines based upon race 
and color;

3. Enter a decree enjoining defendants, their agents, 
employees and successors from assigning students to 
schools in Clarendon County on the basis of the race 
and color of the students;

4. Enter a decree enjoining defendants, their agents, 
employees and successors from subjecting Negro chil­
dren seeking assignment, transfer or admission to the 
schools of Clarendon County, to criteria, requirements 
and prerequisites not required of white children seek­
ing assignment, transfer or admission to the schools 
of Clarendon County.

In the alternative, plaintiffs pray that this Court 
enter a decree directing defendants to present a com­
plete plan, within a period of time to be determined 
by this Court, for the reorganization of the school 
system of Clarendon County, South Carolina, on a 
unitary, nonracial basis which shall include the as­
signment of children on a nonracial basis, the drawing 
of school zone lines on a nonracial basis, and the 
elimination of any other discriminations in the opera­
tion of the school system based solely upon race and 
color. Plaintiffs pray that if this Court directs defen­
dants to produce a desegregation plan that this Court 
will retain jurisdiction of this case pending approval 
and full implementation of defendants’ plan (lOa-lla).

This case is, therefore, like Green v. School Board of the
City of Roanoke,------F. 2 d -------  (No. 8534, May 22, 1962),
and Marsh v. County School Board of Roanoke County, 
____. F. 2 d ____ (No. 8535, June 12, 1962), in which this



10

Court condemned the operation of pupil assignment laws 
in school systems with dual racial zones. The complaint 
raises the very issues the Court decided in Green when it 
said: “Because the initial school assignments are made on 
a racial basis, full compliance by the plaintiffs with the 
transfer procedures cannot repair the discrimination to 
which they have been and are subjected.”

Appellants, therefore, are under no obligation to pursue 
administrative remedies. “ To insist, as a prerequisite to 
granting relief against discriminatory practices that the 
plaintiffs first pass through the very procedures that are 
discriminatory would be to require an exercise in futility,” 
Green, supra. See Jones v. School Board of City of Alexan­
dria, 278 F. 2d 72, 77 (4th Cir. 1960); Farley v. Turner, 
281 F. 2d 131 (4th Cir. 1960) ;  Norther oss v. Board of 
Education of the City of Memphis, 302 F. 2d 818 (6th Cir. 
1962); Mannings v. Board of Public Instruction, 277 F. 2d 
370, 372-75 (5th Cir. 1960); Gibson v. Board of Public 
Instruction, 272 F. 2d 763, 766-67 (5th Cir. 1959).2

This Court has already decided that appellants, faced 
with a pupil assignment law administered in a manner 
offensive to their constitutional rights, may join together 
in one proceeding to obtain relief on behalf of themselves 
and others similarly situated pursuant to the provisions of 
Buie 20(a) and Buie 23(a)(3) of the Federal Buies of 
Civil Procedure.

In Green, supra, the Court stated:

. . .  the individual appellants are entitled to relief 
and also they have the right to an injunction on behalf 
of the others similarly situated.

2 Sood v. Board of Trustees of Sumter County School District, 286 F. 2d 
236 (4th Cir. 1961); Carson v. Board of Education of McDowell County, 277 
F. 2d 789 (4th Cir. 1955) and similar eases are, therefore, inapplicable.



11

In Marsh, supra, the Court held that:

. . . the plaintiffs are entitled to a declaratory judg­
ment that the defendants are administrating the Pupil 
Assignment Act in an unconstitutional manner and to 
an injunction against the further use of racially dis­
criminatory criteria in the assignment of pupils to 
school.

The most explicit approval of this procedure appears 
in Covington v. Edwards, 264 F. 2d 780, 783 (4th Cir. 1959). 
In Covington, this Court affirmed a motion to dismiss on 
the ground that plaintiffs had failed to exhaust their 
administrative remedies and had not shown that the Pupil 
Assignment Law had been utilised so as to perpetuate 
segregated schools. In discussing the rights of Negro 
school children when subjected to discriminatory assign­
ment criteria, the Court said:

If after the hearing and final decision he is not 
satisfied and can show he has been discriminated 
against because of his race, he may then apply to the 
federal court for relief. In the pending case, however, 
that course was not taken . . . and the decision of the 
District Court in dismissing the case was therefore 
correct. This conclusion does not mean that there 
must be a separate suit for each child on whose behalf 
it is claimed that an application for reassignment has 
been improperly denied. There cam, be no objection to 
the joining of a number of applicants in the same suit 
as has been done in other cases. (Emphasis added.)

The decree in Briggs v. Elliott, 132 F. Supp. 776 (E. D.
S. C. 1955), in which some of the adult appellants in the 
instant suit were plaintiffs, did not adjudicate the ques­
tion of the constitutionality of appellees’ administration 
of the South Carolina pupil placement laws. Nor did it



12

grant the specific relief which appellants seek here. The 
decree in Briggs v. Elliott, supra, was but a general injunc­
tion prohibiting racial discrimination in the administration 
of the schools and not a final determination of the legality 
of the assignment and transfer practices appellants chal­
lenge.

Appellants have alleged that the appellees have ad­
ministered pupil placement laws unconstitutionally. They 
have been denied the opportunity to make the required 
showing of discriminatory application delineated by Marsh 
v. County School Board of Roanoke County, supra, and 
Green v. Roanoke City School Board, supra. Appellants, 
on behalf of themselves and the class they represent, have 
a common legal interest in proving they are subject to 
unconstitutional racial zoning and racial assignment and 
transfer criteria by reason of appellees’ administration 
of the South Carolina pupil placement laws.

CONCLUSION

W herefore, for the foregoing reasons, appellants pray 
the judgment below be reversed.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

L incoln C. Jenkins 
Matthew J. Perry

1107% Washington Street 
Columbia, South Carolina

Attorneys for Appellants



APPENDIX



Relevant Docket Entries

Civil Action No. 7210

---------------------------------------
B obby B runson, et al.,

Appellants,

B oard of T rustees of S chool D istrict No. 1 of 
Clarendon County, S outh Carolina, et al.,

Appellees.

Bate Proceedings
1960
4-13 Summons and Complaint.
4-13 7 copies to Marshal for Service.
4-14 Marshal’s Returns (6) of Service on L. Richard­

son, J. W. Sconyers, W. A. Brunson, C. N. Plow- 
den, W. C. Sprott, and L. B. McCord on 4-14-60.

4- 19 Marshal’s Return of Service on C. E. Buttes on
4-15-60.

5- 3 Defendants’ Motion to Strike.
5-3 Defendants’ Motion to Dismiss.

5-14-62 Hearing on motion to dismiss and to strike. Coun­
sel to file briefs and case taken under advisement.

5-31-62 Opinion and Order that names of all of the plain­
tiffs other than Bobby Brunson be stricken from 
caption and that plaintiff Bobby Brunson shall 
have 20 days from date from order to file an 
amended complaint.

5- 31-62 Copies to counsel.
6- 21-62 Notice of Appeal.
6-21-62 Appeal Bond.
6- 21-62 Designation of Record on Appeal.
7- 24-62 Appeal Record to USCA.



2a

I n the

UNITED STATES DISTRICT COURT 
F or the E astern D istrict oe S outh Carolina 

Charleston D ivision

(Filed: April 13,1960)

Complaint

B obby Brunson, E lizabeth Brunson and E llis Brunson, 
by McQueen Brunson, their father and next friend,

— and—
T isbia E. Delaine, a Minor by Leo Delaine, her father 

and next friend,
— and—

Eloise F elder, a Minor, by Nora Felder, her mother 
and next friend,

— and—
Blease C. Gibson, Jr., T homas Gibson, Evelyn M. Gibson 

and F rancis E. Gibson, by Frances Gibson, their mother 
and next friend,

— and—
J oseph Gipson, F rancina Gipson, and Calvin Gipson, by 

Johnnie Gipson, their father and next friend,
—and—

Susan J. H ilton, Bessie I. H ilton, Edward P. H ilton and 
Charles M. H ilton, by W illiam H ilton, their father 
and next friend,

—and—
H arry G. McDonald and R itta McDonald, 

their father and next friend,
— and—

J eremiah Oliver, Jr. and Mary Oliver, their mother 
and next friend,

— and—



3a

V idel P earson, Deleware P earson, Harold Pearson and 
Carrie A. Pearson, by Levi P earson, their father and 
next friend,

— and—
Cleola R agin, R obert L. R agin, Moses Ragin, H enry J. 

R agin, L ucretia R agin and W illie J. R agin, by Minnie 
R agin, their mother and next friend,

—and—
Glenn R agin, a Minor by W illiam Ragin, his father 

and next friend,
—and—

Jackson D. R ichardson and J ohnnie F. Richardson, 
by L ee R ichardson, their father and next friend,

—and—
T helma Stukes, E thel Stukes, L ionel Stukes, Marion 

Stukes, A bel Stukes, R ochelle Stukes and Marcia 
Stukes, by L adson Stukes, their father and next friend,

—and—
Della T indal, a Minor, by L awrence T indal, 

her father and next friend,
—and-—

E manuel R ichardson, a Minor by Luchresher R ichardson, 
his father and next friend,

Plaintiffs,

B oard of Trustees of School District No. 1 of Clarendon 
County, South Carolina.; L. B. McCord, County Super­
intendent of Education; C. E. Buttes, District Super­
intendent of Education; W. C. Sprott, Chairman, Board 
of Trustees; C. N. Plowden, W. A. Brunson, J. W. 
Sconyers and L. R. R ichardson, Members of the Board 
of Trustees,

Defendants.

Complaint



4a

1. The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, §1343(3), this being an action 
which is authorized by law, Title 42, United States Code, 
§1983, to be commenced by any citizen of the United States 
to redress the deprivation under color of state law, statute, 
ordinance, regulation, custom or usage of rights, privileges 
and immunities secured by the Constitution and laws of the 
United States. The rights here sought to be redressed are 
rights guaranteed by the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States and by Title 42, United States Code, 
§1981.

2. This is a proceeding for a permanent injunction en­
joining defendants from continuing to pursue the policy, 
practice, custom and usage of operating a biracial school 
system in School District No. 1, Clarendon County, South 
Carolina, in violation of rights secured to plaintiffs by the 
Constitution and laws of the United States referred to 
above.

3. This is a class action brought by the adult plaintiffs 
for the minor plaintiffs on behalf of themselves and on be­
half of other adults and minors similarly situated, pursu­
ant to the provisions of Rule 23(a)(3) of the Federal Rules 
of Civil Procedure. The members of this class are all adult 
Negro citizens and their minor children of the State of 
South Carolina who reside in School District No. 1, Claren­
don County. The minors are all eligible to attend the public 
schools in School District No. 1 of Clarendon County, South 
Carolina, and the members of the class are all similarly 
affected by the action of the defendants in maintaining and 
operating the public school system of School District No. 1, 
Clarendon County, on a racially segregated basis. There

Complaint



5a

are involved common questions of law and fact affecting 
tlie rights of all other Negro children eligible to attend the 
public schools of School District No. 1, Clarendon County, 
and their respective parents and guardians, who are so 
numerous as to make it impracticable to bring all before 
the Court, but whose interests are adequately represented 
by plaintiffs.

4. The adult plaintiffs in this ease are all citizens of the 
United States and of the State of South Carolina, residing 
in School District No. 1, Clarendon County. Each adult 
plaintiff is the parent of one or more minor children who 
are eligible to attend the public schools in District 1 of 
Clarendon County. Each minor plaintiff is likewise a citi­
zen of the United States and of the State of South Caro­
lina, residing in District No. 1, Clarendon County.

5. The plaintiffs in this case are Bobby Brunson, Eliza­
beth Brunson and Ellis Brunson, minors, by their father 
and next friend, McQueen Brunson; Tisbia E. Delaine, a 
minor, by her father and next friend, Leo Delaine; Eloise 
Felder, a minor, by her mother and next friend, Nora 
Felder; Blease C. Gibson, Jr., Thomas Gibson, Evelyn M. 
Gibson and Francis E. Gibson, minors, by their mother and 
next friend, Frances Gibson; Joseph Gipson, Francina 
Gipson and Calvin Gipson, minors, by their father and next 
friend Johnnie Gipson; Susan J. Hilton, Bessie I. Hilton, 
Edward P. Hilton and Charles M. Hilton, minors, by their 
father and next friend, Charles M. Hilton; Harry G. Mc­
Donald and Ritta McDonald, minors, by their father and 
next friend, John McDonald; Jeremiah Oliver, Jr. and Mary 
Oliver, minors, by their mother and next friend, Mary J. 
Oliver; Videl Pearson, Deleware Pearson, Harold Pearson 
and Carrie A. Pearson, minors by their father and next

Complaint



6a

Complaint

friend, Levi Pearson; Cleola Ragin, Robert L. Ragin, Moses 
Ragin, Henry J. Ragin, Lueretia Ragin and Willie J. Ragin, 
minors, by their mother and next friend, Minnie Ragin; 
Glenn Ragin, a minor, by his father and next friend, 
William Ragin; Jackson D. Richardson and Johnnie F. 
Richardson, minors, by their father and next friend, Lee 
Richardson; Thelma Stakes, Ethel Stukes, Lionel Stukes, 
Marion Stakes, Abel Stakes, Rochelle Stakes and Marcia 
Stakes, minors, by their father and next friend, Ladson 
Stakes; Della Tindal, a minor, by her father and next friend, 
Lawrence Tindal, and Emanael Richardson, a minor, by 
his father and next friend, Lnchresher Richardson.

6. Defendant L. B. McCord is County Snperintendent of 
Edacation of Clarendon Coanty, Soath Carolina, inclading 
School District No. 1, and holding office parsaant to the 
laws of the State of Soath Carolina.

7. Defendant C. E. Battes is District Superintendent of 
Edacation in School District No. 1 of Clarendon Coanty. 
Defendant W. C. Sprott is Chairman of the Board of 
Trastees of School District No. 1. Defendants C. N. Plow- 
den, W. A. Branson, W. W. Sconyers and L. Richardson 
are members of the Board of Trastees of School District 
No. 1.

8. The defendants maintain and generally sapervise, as 
indicated by their titles, the pablic schools in School Dis­
trict No. 1 of Clarendon Coanty, Soath Carolina, acting 
parsaant to the direction and anthority contained in state 
constitational provisions and statates, and as snch are 
officers of the State of Soath Carolina enforcing and exer­
cising state laws and policies. This sait is broaght against 
the defendants in their official and individnal capacities.



7a

9. Acting under color of the laws of the State of South 
Carolina, the defendants have pursued and are presently 
pursuing a policy, practice, custom and usage of operating 
a biracial school system in District No. 1 of Clarendon 
County. The biracial school system operated by defendants 
consists of a system of elementary and high schools limited 
to attendance by white children only. Said schools are 
staffed by white teachers, white principals, and while lo­
cated in various parts of the district, may be attended by 
white children only. The defendants also maintain a sys­
tem of schools limited to attendance by Negro children 
only. These schools, likewise located in various parts of 
the district, are staffed entirely by Negro personnel: the 
teachers are all Negroes and the principals are all Negroes. 
Attendance at the various schools is determined by race 
and color and the assignment of personnel is determined 
by race and color of the children and the race and color of 
the personnel.

10. After the decision of the United States Supreme 
Court in the School Segregation Cases, the United States 
District Court for the Eastern District of South Carolina, 
on July 15, 1955, issued its decree in the case of Briggs v. 
Elliott providing that the officials of School District No. 1, 
Clarendon County, comply with the decision and mandate 
of the United States District Court in the School Segrega­
tion Cases, namely, that they operate them on a nondis- 
criminatory basis, with race no longer as a standard of 
school assignment. Defendants have failed and refused 
to take any steps to eliminate racial segregation in the 
school system and have steadfastly failed and refused to 
employ a plan for the reorganization of the school system 
into a unitary, nonracial school system as required by said 
decisions.

Complaint



8a

11. Plaintiffs residing in School District No. 1 have each 
made written application to the appropriate defendant re­
questing reassignment to a public school limited to at­
tendance by white students only, to no avail. Adult plain­
tiffs, some of whom were plaintiffs in the aforementioned 
case of Briggs v. Elliott, and all of whom by reason of their 
residing in School District No. 1, would have benefited by 
the proper implementation of the decree entered in that 
case on July 15,1955, requiring that schools be operated on 
a nondiscriminatory basis, waited for over four years for 
the defendant to begin compliance with the order of this 
court. On August 27, 1959, the plaintiffs, through their 
attorney, Lincoln C. Jenkins, Jr., wrote to defendant W. C. 
Sprott, Chairman, Board of Trustees, School District No. 
1, requesting assignment of their children to a school to 
which a white child similarly situated to them would attend. 
They received no reply to this request. Subsequently, on 
October 8, 1959, the adult plaintiffs in writing called upon 
defendant W. C. Sprott to institute a plan for the complete 
desegregation of the schools within his jurisdiction. A 
reply from defendants dated October 13,1959, indicated that 
plaintiffs’ request came too late for consideration by the 
Board, although the deadline referred to in the Board’s 
reply had never been previously publicly announced.

12. Plaintiffs, and the members of the class which they 
represent, are injured by the operation of a biracial school 
system for the Negro and white children in School District 
No. 1, Clarendon County. The biracial school system is 
predicated upon the theory that Negroes are inherently 
inferior to white persons and, consequently, may not at­
tend the same public schools attended by white children 
who are superior. The plaintiffs, and members of their 
class, are injured by the policy of assigning teachers, prin­

Complaint



9a

cipals and other school personnel on the basis of the race 
and color of the children attending a particular school and 
the race and the color of the person to be assigned. Assign­
ment of school personnel on the basis of race and color is 
also predicated on the theory that Negro teachers, Negro 
principals and other Negro school personnel are inferior 
to white teachers, white principals and other white school 
personnel and, therefore, may not teach white children.

13. The injury which plaintiffs and members of their 
class suffer as a result of the operation of the biracial 
school system in School District No. 1 of Clarendon County, 
and as a result of the policy of assigning school personnel 
on the basis of race is irreparable and will continue until 
enjoined by this court. Any other relief to which the plain­
tiffs and those similarly situated could be remitted would 
be attended by such uncertainties and delays as to deny sub­
stantial relief, would involve a multiplicity of suits, cause 
further irreparable injury and occasion damage, vexation 
and inconvenience, not only to plaintiffs and those similarly 
situated, but to defendants as public officials.

14. The plaintiffs have not exhausted the administrative 
remedy provided by the South Carolina School laws for the 
placement of pupils by trustees for the reason that the 
remedy there provided is inadequate to provide the relief 
sought by plaintiffs in this case. Plaintiffs have not ex­
hausted the remedy provided by the aforesaid pupil place­
ment laws for the further reason that the criteria set forth 
in these laws for assigning children to school have been 
and are applied by defendants only to Negro children 
seeking admission, assignment or transfer. Furthermore, 
by the use of a previously unannounced cutoff date, de­
fendants have prevented plaintiffs from employing the

Complaint



10a

purported remedies under said law. Plaintiffs allege that 
acting under color of the authority conferred upon them by 
the South Carolina laws for the placement of pupils by 
trustees, defendants have continued to maintain and oper­
ate a biracial school system in School District No. 1 of 
Clarendon County, have used the provisions of this law 
to deny admission of Negro children to certain schools 
solely because of race and color, and have used this law to 
defeat rather than attain full compliance with the decisions 
of the United States Supreme Court in the School Segre­
gation Cases. Defendants have not employed the pupil 
assignment law as a means of abolishing state imposed race 
distinctions, nor have they offered to plaintiffs by means 
of the pupil assignment law a genuine means of securing 
attendance at nonsegregated public schools.

Wherefore, plaintiffs respectfully pray that this Court 
advance this cause on the docket and order a speedy hear­
ing of this action according to law and after such hearing:

1. Enter a decree enjoining defendants, their agents, 
employees and successors from operating a biracial school 
system in School District No. 1 of Clarendon County;

2. Enter a decree enjoining defendants, their agents, 
employees and successors from maintaining a dual scheme 
or pattern of school zone lines based upon race and color;

3. Enter a decree enjoining defendants, their agents, 
employees and successors from assigning students to schools 
in Clarendon County on the basis of the race and color of 
the students;

4. Enter a decree enjoining defendants, their agents, 
employees and successors from subjecting Negro children 
seeking assignment, transfer or admission to the schools of

Complaint



11a

Clarendon County, to criteria, requirements and prerequi­
sites not required of white children seeking assignment, 
transfer or admission to the schools of Clarendon County.

In the alternative, plaintiffs pray that this Court enter 
a decree directing defendants to present a complete plan, 
within a period of time to be determined by this Court, for 
the reorganization of the school system of Clarendon 
County, South Carolina, on a unitary, nonracial basis which 
shall include the assignment of children on a nonracial 
basis, the drawing of school zone lines on a nonracial basis, 
and the elimination of any other discriminations in the 
operation of the school system based solely upon race and 
color. Plaintiffs pray that if this Court directs defen­
dants to produce a desegregation plan that this Court will 
retain jurisdiction of this case pending approval and full 
implementation of defendants’ plan.

Plaintiffs pray that this Court will allow them their 
costs herein and grant such further, other, additional or 
alternative relief as may appear to the Court to be equitable 
and just.

L incoln C. Jenkins 
1107% Washington Street 

Columbia, South Carolina

Matthew J. P erry 
371% South Liberty Street 

Spartanburg, South Carolina

T hurgood Marshall
Jack Greenberg 

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

Complaint



12a

UNITED STATES DISTRICT COURT

Foe the E astern D isteict oe South Carolina 

Ch arleston D ivision 

C /A  7210

Motion to Strike

(Filed: May 3,1960)

[ same title]

Reserving their rights under a Motion to Dismiss, here­
tofore filed, the defendants move the Court to strike (1) 
from the caption of the complaint the names of all of the 
plaintiffs except “ Bobby Brunson” and (2) from the body 
of the complaint all of the allegations unrelated to the cause 
of action in behalf of “ Bobby Brunson” as sole plaintiff, 
including but not limited to the allegations of paragraphs 
3, 4, and 5 and to portions of paragraphs 11, 12, 13 and 14, 
and (3) those portions of the prayer not applicable to the 
cause of action in favor of Bobby Brunson upon the ground 
that no class action within the meaning of Rule 23(a)(3) 
is alleged and therefore if any cause of action is stated in 
behalf of any plaintiff, it is one for individual relief, which 
may be entertained only if all immaterial allegations and 
all non-essential parties are eliminated from the action.

David W. R obinson 
R obinson, MoF adden & Moose

Attorneys for the Defendants



13a

UNITED STATES DISTKICT COURT 
F ob the E astern D istrict of South Carolina 

Charleston Division

C /A  7210

Motion to Dismiss

(Filed: May 3,1960)

{ same title}
----------------- -- --------------—— --- ------

The Defendants move the Court:

1. To dismiss the action on the ground that the Court 
lacks jurisdiction in that the complaint fails to allege a 
class action within the meaning of Rule 23(a)(3).

2. To dismiss the action because the complaint fails to 
state a claim against the defendants upon which relief can 
be granted in that a class action within the meaning of 
Rule 23(a)(3) is not alleged.

David W. R obinson 
R obinson, McF adden & Moore

Attorneys for the Defendants



14a

I n the

UNITED STATES DISTRICT COURT 

F or the E astern District of South Carolina 

Charleston D ivision 

C /A  7210

Opinion and Order

(Filed: May 14,1962)

[ same title]

This cause is before me on the defendants’ motion to 
dismiss upon the ground that the complaint fails to allege 
a class action and on their alternate motion to strike from 
the complaint all of the parties-plaintiff other than the 
first named plaintiff and all of the allegations which are 
unrelated to the first plaintiff’s cause of action upon the 
ground that no class action is alleged.

These motions require an analysis of the complaint to 
ascertain whether these allegations in the light of ap­
plicable law allege a proper class action under Rule 
23(a)(3).

The complaint is brought in behalf of a large number 
of negro school children by their respective parents against 
the Trustees of School District No. 1 of Clarendon County, 
the Clarendon County Superintendent of Education, and 
the District Superintendent of Education. The complaint 
alleges that it is a class action under Rule 23(a) (3) brought 
to protect rights under the 14th Amendment to the Con­
stitution of the United States and under the Civil Rights 
Statute, 42 U. S. C. A. 1981. They allege that the defen­
dants are operating a bi-racial school system in School 
District No. 1 of Clarendon County; that the plaintiffs are



15a

being denied admission to certain schools solely on account 
of race; and that the plaintiffs have not exhausted the 
administrative remedy provided by the South Carolina 
school laws because that remedy is inadequate. The com­
plaint also alleges that some of the plaintiffs are the same 
parties who were parties in Briggs v. Elliott (98 F. Supp. 
529, 103 F. Supp. 920, 347 U. S. 483, 349 IT. S. 294, 132 
F. Supp. 776), which action is still pending in this Court 
before a Three-Judge Court. In effect, the complaint is 
brought for the purpose of securing the admission of each 
of the plaintiffs to one of the several white schools being 
operated by the defendants in School District No. 1.

Rule 23 of the Rules of Civil Procedure of this Court 
provides in pertinent part: “ Class Actions (a) Representa­
tion. I f persons constituting a class are so numerous as 
to make it impracticable to bring them all before the court, 
such of them, one or more, as will fairly insure the ade­
quate representation of all may, on behalf of all, sue or 
be sued, when the character of the right sought to be 
enforced for or against the class is * * * (3) several, and 
there is a common question of law or fact affecting the 
several rights and a common relief is sought.”

Moore, in his Federal Practice (2nd Edition), Vol. 3, 
page 3442, designates the class of action referred to in 
Rule 23(a)(3) as “ spurious class suits” . Spurious as here 
used does not mean that such a suit may not be maintained 
as a class action but it does mean that this group does not 
fall within the traditional class action. Each plaintiff has 
a “ several” cause of action. Joinder is permitted merely 
because there is a “ common question of law or fact” . There 
is a similarity between this type of class and the practice 
of consolidating for trial two independent suits where there 
is a similar legal or factual situation. For instance, tort

Opinion and Order



16a

actions on behalf of two occupants of an automobile in­
jured in a single collision with a truck are frequently tried 
together though neither plaintiff has any legal interest on 
the damage to the other.

The inquiry here is to determine whether there is a 
“ common question of law or fact” justifying the use of the 
class procedure of Rule 23(a)(3). Turning first to the 
question of whether there is present in this case any 
unresolved common question of law, I should look to the 
controlling decisions to ascertain whether there is now any 
unresolved question of law.

In Briggs v. Elliott, 132 F. Supp. 776, 777 (1955), the 
Three-Judge District Court in interpreting the Supreme 
Court decision in 347 U. S. 483, 349 U. S. 294, had this to 
say about the legal issue: “Having said this, it is im­
portant that we point out exactly what the Supreme Court 
has decided and what it has not decided in this case. It 
has not decided that the federal courts are to take over 
or regulate the public schools of the states. It has not 
decided that the states must mix persons of different races 
in the schools or must require them to attend schools or 
must deprive them of the right of choosing the schools 
they attend. What it has decided, and all that it has de­
cided, is that a state may not deny to any person on ac­
count of race the right to attend any school that it main­
tains. This, under the decision of the Supreme Court, 
the state may not do directly or indirectly; but if the 
schools which it maintains are open to children of all 
races, no violation of the Constitution is involved even 
though the children of different races voluntarily attend 
different schools, as they attend different churches. Nothing 
in the Constitution or in the decision of the Supreme Court 
takes away from the people freedom to choose the schools

Opinion and Order



17a

they attend. The Constitution, in other words, does not 
require integration. It merely forbids discrimination. It 
does not forbid such segregation as occurs as the result 
of voluntary action. It merely forbids the use of govern­
mental power to enforce segregation. The Fourteenth 
Amendment is a limitation upon the exercise of power by 
the state or state agencies, not a limitation upon the free­
dom of individuals.” (Emphasis added.)

This interpretation of the Supreme Court decision has 
been followed consistently in the Fourth Circuit. School 
Board of City of Charlottesville, Va. v. Allen (C. A. 4), 
240 F. 2d 59, 62 (1956); School Board of City of Newport 
News, Va. v. Atkins (C. A. 4), 246 F. 2d 325, 327 (1957). 
These decisions make it clear that any common question 
of law has been settled. The defendants may not deny 
to any plaintiff on account of race the right to attend any 
school which it maintains. That law has been established 
not only in the controlling decisions of the Fourth Circuit 
but also in an action involving this very school district 
to which several of the plaintiffs here were parties and in 
which the School Board was a defendant. Briggs v. Elliott, 
132 F. Supp. 776, 777.

There being no unresolved common question of law, I 
shall next consider whether there is a common question 
of fact. In determining the school to which a pupil is en­
titled to go, a School Board must consider a great many 
factors unrelated to race, such as geography, availability 
of bus transportation, availability of classroom space, and 
scholastic attainment in order to perform the Board’s duty 
to promote the best interests of education within the dis­
trict and insofar as possible place the child in the school 
where he has the best chance to improve his education. 
“ School authorities have the primary responsibility for

Opinion and Order



18a

elucidating, assessing and solving these problems.” Briggs 
v. Elliott, 349 U. S. 294. There is no allegation in the 
complaint showing that the factual situation with reference 
to each of the plaintiffs is the same. Undoubtedly the 
plaintiffs reside in different places, they are of different 
ages, they are of different scholastic attainment. South 
Carolina has provided a pupil placement statute which 
permits any child desiring to attend a school other than 
the one to which he has been assigned to proceed through 
administrative channels to obtain placement in a different 
school of his choice. This statute provides that the case of 
each child shall be considered individually. 1952 Code, 
Sections 21-230, 21-247; Hood v. Board, 232 P. 2d 626, 
286 F. 2d 236. This statute is similar to the North Carolina 
statute, the validity of which was sustained in Carson v. 
Board of Education of McDowell County, 227 P. 2d 789 
(1955), and in Carson v. Warlich, 238 F. 2d 724 (1956).

It is the individual who is entitled to the equal protection 
of the law and if he is denied a facility which under the 
same circumstances is furnished to another citizen, he 
alone may complain that his constitutional privilege has 
been invaded. He has the right to enforce his constitu­
tional privilege or he has the right to waive it. No one 
else can make that decision for him. McCabe v. A., T. £  
S. F. By. Co., 235 U. S. 151; Williams v. Kansas City, Mo., 
194 F. Supp. 848, 205 F. 2d 47, c.d. 346 U. S. 826. Cf. 
Machinists v. Street, 367 U. S. 740, 774 (1961).

Therefore, it is my conclusion that this action is not 
properly brought as a class action under Rule 23(a)(3).

I have not found and the parties have not called to my 
attention any precedent dealing with the disposition of a 
complaint brought as a class action but where a cause of 
action may exist in favor of an individual plaintiff. The

Opinion and Order



19a

defendants have moved to dismiss or, in the alternative, to 
strike all of the parties-plaintiff except the first plaintiff 
allowing the case to continue as an individual action in 
behalf of that plaintiff. In my view the latter is the ap­
propriate relief.

It is, therefore, Ordered and A djudged, (1) That the 
names of all of the plaintiffs other than Bobby Brunson 
are hereby striken from the caption of the complaint and 
all of the allegations inappropriate to a personal action 
by Bobby Brunson are striken from the complaint; (2) 
That the plaintiff Bobby Brunson shall have twenty days 
from the filing of this order in which to file an amended 
complaint consistent with the provisions of this order. The 
defendants shall have twenty days in which to plead to 
such an amended complaint.

Opinion and Order

C. C. W ychb
United States District Judge 

(Sitting by Designation)

Dated:
Spartanburg, South Carolina,

May 30,1962.



20a

Notice of Appeal

(Filed: June 21,1962)

UNITED STATES DISTRICT COURT 
F oe the E astern D istrict of South Carolina 

Charleston D ivision 

C /A  No. 7210

[ same title]

Notice of A ppeal to the United States Court of A ppeals 
F or the F ourth Circuit

Notice is hereby given that the plaintiffs in this action 
hereby appeal to the United States Court of Appeals for 
the Fourth Circuit from the Order (1) striking the names 
of all the plaintiffs other than Bobby Brunson from the 
caption of the complaint and striking from the complaint 
all of the allegations inappropriate to a personal action 
by Bobby Brunson, and (2) giving the plaintiff Bobby 
Brunson twenty (20) days from the filing of said Order in 
which to file an amended complaint consistent with the 
provisions of said order, signed by the Court on May 30, 
1962 and filed herein on May 31, 1962.

Dated: ...... ........ June, 1962.

L incoln C. J enkins, Jr.
Matthew J. Perry

1107% Washington Street 
Columbia, South Carolina

Jack Greenberg
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants