Brown v. Rippy Appellees' Brief

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No. 15,872

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Charles Brown, a minor, by his father and next friend, 
Walter Brown, Jr., et al.,

Appellants,
v.

Dr. Edwin L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 

County, Texas, et al.,
Appellees.

APPELLEES’ BRIEF

A. J. Truss, Jr.,
Attorney for Defendant.

W A R L I G K  L A W  P R I N T I N G  C O . L A W  B R I E F  P R I N T I N G  - D A L L A S R 1 - 6  7  11



No. 15,872

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Charles Brown, a minor, by his father and next friend, 
Walter Brown, Jr., et al.,

Appellants,
v.

Dr. Edwin L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 

County, Texas, et al.,
Appellees.

APPELLEES’ BRIEF

I .

The appellants in the trial court asked for a preliminary 
injunction which would have had the effect of immediately 
admitting all negro children of scholastic age to any and 
all schools where white children were admitted.

The motion for preliminary injunction in part stated 
(Transcript of Record, pages 25-26) :

“ from assigning plaintiffs, or any member of the class 
of Persons that they represent because of race and



2

color, to any public free school within the Dallas Inde­
pendent School District, or from refusing and deny­
ing Plaintiffs, or any member of the class of persons 
that they represent, because of race or color, the right 
and privilege of registering at, entering and attend­
ing classes, and receiving instruction in the public 
free school nearest to their respective homes, at the 
same time, and under the same conditions and circum­
stances that all other public free school pupils regis­
ter, enter and attend classes and receive instruction 
without any distinctions being made as to plaintiffs 
and members of the class of persons that they repre­
sent, on the basis of race or color.”

The show cause order in part recited (Transcript of 
Record, page 28) :

“ The Court having considered the Complaint * * *, 
and, the Application for Temporary Injunction, * * * 
the Clerk of this Court is directed to issue Notice to 
the Defendants, * * * to be, and appear before this 
Court at 10 o’clock, A. M., on the 16th day of Septem­
ber, 1955, * * * and show cause, if any they have, why 
said Temporary Injunction should not be issued.”

II.

The Defendants filed a verified Answer stating in sub­
stance : 1 2

(1) The budget fo r  school expenditures and assign­
ment of teachers and students had been made for the 
school year 1955-56. (R. 30-32.)

(2) Confusion would result if any rearrangement 
was attempted in September, 1955. (R. 32.)



3

(3) Studies had been initiated July 13, 1955, pre­
paring for the eventualities of a desegregated school 
system.1

(4) Confusion, chaos and a complete breakdown in 
public school education will result unless the present 
system is continued until the Board has had sufficient 
time to obtain adequate information and statistical 
data to find a way to convert the system to an edu­
cational operation which protects the civil and educa­
tional rights of all citizens under a new concept just 
announced by the United States Supreme Court. (R. 
36.) 1

1 (Transcript of Record, page 32, et seq.)
“ The distribution of students to school buildings is related both to 

the budget expenditures and estimated costs and also to available physi­
cal facilities and calls for the study of many other problems. Accord­
ingly, on July 13, 1955, the President of the Board issued a statement 
regarding desegregation and outlined twelve problems for study, which 
are;

“  ‘In order to be prepared for eventualities in this connection, this 
Board of Education months ago instructed Dr. W. T. White, the Superin­
tendent of Schools of this District, to proceed with a detailed study of 
the problems inherent to desegregating a major school system, and these 
studies are in progress in the following areas:

“  ‘1. Scholastic boundaries of individual schools with relation to racial 
groups contained therein.

“  ‘2. Age-grade distribution of pupils.
“ ‘3. Achievement and state of preparedness for grade-level assign­

ment of different pupils.
“ ‘4. Relative intelligence quotient scores.
“  ‘5. Adaptation of curriculum.
“ ‘6. The overall impact on individual pupils scholastically when all 

the above items are considered.
“  ‘7. Appointment and assignment of principals.
“  ‘8. The relative degree of preparedness of white and Negro teachers; 

their selection and assignment.
“ ‘9. Social life of the children within the school.
“  ‘10. The problems of integration of the Parent-Teacher Association 

and the Dads Club organization.
“ ‘11. The operation of the athletic program under an integrated 

system.
“ ‘12. Fair and equitable methods of putting into effect the decree of 

the Supreme Court’ .”



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The case was submitted on an agreed statement of facts :

(1) The Board of Education had acted in good 
faith. (R. 51.)

(2) The Court said the pleadings were agreed to. 
(R. 52.)

There was no contention made in the trial court, and 
none is made here, that the measure of responsibility of 
the Board of Education extended only to the duty of pro­
viding separate but equal educational facilities and oppor­
tunities.

The trial court recognized the necessity of the situation 
and the often repeated admonition of the many decisions 
that local authorities must be given a reasonable measure 
of discretion to work out their problem, keeping in mind 
the ultimate results fixed by the principles announced by 
the Supreme Court of the United States. The trial judge 
stated (R. 62):

“To grant an injunction in this case would be to 
ignore the equities that present themselves for recog­
nition and to determine what the Supreme Court itself 
decided not to determine. Therefore, I think it appro­
priate that this case be dismissed without prejudice 
to refile it at some later date.

“Give them some time to see what they can work 
out, and then we will pass upon that equity.”

III.



5

ARGUMENT

The Court did not approve of or dispose of this case on 
the doctrine that equal facilities available to negro children 
was compliance with constitutional mandate.

The trial court followed the principle announced by the 
U. S. Supreme Court2 that:

Full implementation of these constitutional prin­
ciples may require solution of varied local school 
problems. School authorities have the primary re­
sponsibility for elucidating, assessing and solving 
these problems; courts will have to consider whether 
the action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples.”

The trial court having found the appellees needed time 
to work out the problem in good faith to accomplish con­
stitutional mandate, properly dismissed the case without 
prejudice to later refiling. The trial judge stated (R. 61) :

“ The facts show, as I have already recited, that 
equal school opportunities are furnished to both col­
ored and white. The direction from the Supreme Court 
of the United States requires that the officers and 
principals of each institution, and the lower Courts, 
shall do away with segregation after having worked 
out a proper plan. That direction does not mean that 
a long time shall expire before that plan is agreed 
upon.”

The school authorities have a heavy duty. They must 
facilitate a transition from the separate but equal system

2Bro'wn v. Board of Education, 349 U. S. 294, 99 L. Ed. 1083.



6

to the desegregated system, taking into review all of the 
factors, facts and emotions of people.

The learned District Judge with incomparable exactitude 
in Bush v. Orleans Parish School District (U. S. District 
Court, Eastern District of Louisiana) had occasion to note:

“ The problem of changing a people’s mores, par­
ticularly those with an emotional overlay, is not to 
be taken lightly. It is a problem which will require 
the utmost patience, understanding, generosity and 
forbearance from all of us, of whatever race. But the 
magnitude of the problem may not nullify the prin­
ciple.”

The Dallas School authorities have not been recalcitrant 
in facing up to a drastic change. The Appellants make no 
challenge on the good faith of the Board. Not one word of 
negation has been uttered against the Board except they 
have not abruptly made a change where patience is needed 
on all sides.

The Courts wanted the governing authorities to follow 
a reasonably cautious course, having the needs of the situa­
tion in mind, yet not neglecting the end result— the judi­
cial mandate.

There should be no change in the trial court’s judgment. 
Even an ambiguous, indeterminate order would under the 
facts of this case create the implication the Appellees have 
not performed their separate and several duties.

The Court can take judicial notice of the surrounding 
conditions in Dallas, Texas, the large scholastic popula­



7

tion, the percentage of whites to negroes, and the tradi­
tional concept of education drastically and dramatically 
changed.

A consciousness of the timing is most important as when 
and what steps must be taken to desegregate. Precipitous 
action can be worse than over caution.

CONCLUSION

Appellees pray that the Judgment below be affirmed.
Respectfully submitted,

A. J. Thuss, Jr.,
Attorney for Defendant.



W A R L I C K