Jeffers v. Whitley Court Opinion

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 8593.

Alexander Jeffers and Sylveen Jeffers, minors, and John 
L. Jeffers and Annie L. Jeffers, their parents and next 
friends; Nathan Brown, Lunsford Brown, and Sheliah 
Brown, minors, and Jasper Brown, their father and next 
friend; and Charlie Saunders, Jr., and Fred Saunders, 
minors, and C. H. Saunders, their father and next friend,

Appellants,
versus

Thomas H. Whitley, Superintendent of the Public Schools 
of Caswell County, David L. Johnson. Chairman, C. N. 
Barber, J. A. Hodges, N. L. Oliver and J. C. Wilkins, 

Members of the School Board of Caswell County, 
Appellees.

A ppe a l  from, t h e  U n it ed  S tates  D ist r ic t  Court for 
t h e  M iddle  D ist r ic t  of N orth  Ca r o l in a , at Gr ee n s­

boro. E d w in  M. S t a n l e y , D ist r ic t  J udge.

(Reargued July 9, 1962. Decided October 12, 1962.)

Before S o beloff , Chief Judge, and H a y n sw o r t h , Bore- 
m a n , B ryan  and B e l l , Circuit Judges, sitting en banc.

Derrick A. Bell, Jr., (C. O. Pearson, William A. Marsh, 
Jack Greenberg and James M. Nabrit, III, on brief) for 
Appellants, and Robert R. Blackwell for Appellees.



2

P er C u r ia m :

This is another school case. It comes here on the appeal 
of Negro plaintiffs, two of whom the District Court 
ordered admitted to the school of their choice. They com­
plain, with justification, that there was no defensible basis 
for withholding judicial enforcement of the established 
rights of other individual plaintiffs or for the denial of 
general declarative and injunctive relief.

The action was originally instituted in December, 1956 
by forty-three Negro children, attending schools in Cas­
well County, North Carolina, and their parents. They 
sought a general order requiring the School Board to re­
organize the schools of Caswell County and to operate 
them on a nonsegregated basis. By supplemental pleadings 
filed in 1960, it was alleged that certain of the individual 
plaintiffs had applied for transfers, that the applications 
had been denied and that administrative remedies had 
been exhausted. They asked for an order requiring the 
School Board to submit a plan for desegregating the schools 
and for an injunction which would prohibit the Board, 
after submission of a desegregation plan, from requiring 
any Negro pupil to attend school on a segregated basis.

By October 1960, twenty-seven of the original pupil- 
plaintiffs were no longer students in the Caswell County 
school system. Some of them had graduated. Some had 
dropped out of school. Some had moved out of the county. 
Sixteen of them were still in Caswell County schools. Each 
of the sixteen was still assigned to and still attending a 
school in which the entire pupil population was Negro.

In December, 1959, counsel entered into a stipulation 
that plaintiffs’ counsel would furnish a list of those of the



3

nominal plaintiffs interested in a reassignment. Pursuant 
to the stipulation, the School Board was to promptly 
notify the plaintiffs of the assignments of the interested 
pupils for the 1960-61 school year and it agreed to hold 
hearings on reassignment requests.

Nine of the sixteen nominal plaintiffs, still in the Caswell 
schools, through their attorneys indicated their interest in 
reassignment for the 1960-61 school year. No one of 
the nine was reassigned. One of those has since graduated 
from high school; another has dropped out of school. It 
was with the remaining seven that the trial proceedings 
were principally concerned. They are the appellants here.

Caswell is a rural county in north-central North Caro­
lina. Its metropolis is the village of Yanceyville. Relatively 
few of its children of school age live within walking dis­
tances of the schools they attend. The great majority are 
transported to and from school in buses operated by the 
School Board. There are approximately 6,000 pupils in 
the county’s schools; approximately 53% of them are 
Negroes.

The county, through its School Board, maintains fifteen 
schools. Six of them, five elementary schools and one 
consolidated elementary and high school, are attended 
solely by Negroes. Nine of them, five elementary schools 
and four consolidated elementary and high schools, are 
attended solely by white pupils.

In denying the nine transfer applications it received in 
the summer of 1960, the Board gave no explanation of 
its action. It acknowledged no set of principles governing' 
its determinations. Board members testified that they con­
sidered all information available to them, and then each



4

member voted as his conscience dictated. Those witnesses 
declined to suggest circumstances or conditions which 
would lead them to support a Negro’s application for a 
transfer to a white school. They did refer at the trial, 
however, to facts which influenced the votes of the wit­
nesses.

Samuel Maloy Mitchell was about to enter the twelfth 
grade. He had been attending Caswell County Training 
School, the only school in the county accredited by the 
Southern Association of Colleges and Secondary Schools. 
He applied for a transfer to Bartlett Yancey, a high school 
located in the village of Yanceyville within two blocks of 
Caswell County Training School. He planned to go 
on to college. Witnesses for the Board thought it better 
for him to remain at the accredited Training School and 
continue to receive instruction in French than to transfer 
to unaccredited Bartlett Yancey where French was un­
available.

Mitchell has since graduated.

Three children of Jasper Brown, Nathan, Lunsford 
and Sheliah, sought transfers from the Caswell County 
Training School to Bartlett Yancey. Buses going to the 
Training School picked up the Brown children four-tenths 
of a mile from their home. The nearest route of a bus 
going to Bartlett Yancey was two and a half miles from the 
Brown home, and it was thought unsafe to operate two 
buses over the narrow road near the end of which the 
Browns lived. These are appropriate considerations, but 
the two schools were within two blocks of each other. It 
was admitted that there was no reason the Brown chil­
dren could not ride the Training School bus and walk 
from that school to Bartlett Yancey.



5

Alexander, Charlie1 and Sylveen Jeffers also applied for 
transfers from the Training School to Bartlett Yancey. 
Neither they nor their parents appeared at a hearing, held 
by the Board, to which they had been invited. The father 
of the Brown children reported to the Board that he had 
spoken to Jeffers and that Jeffers had said he was too 
busy to attend. This, thought members of the Board, 
showed little interest in the Jeffers’ applications.

Charlie and Fred Saunders2 * lived between New Dotmond 
School and Murphy. New Dotmond, which they attended, 
is four and two-tenths miles east of the Saunders’ home; 
Murphy is two and four-tenths of a mile west of their 
home. Buses serving each school pass in front of their 
house, going in opposite directions. Board members thought 
New Dotmond, which the Saunders boys had been at­
tending, was the better and larger school. They also 
referred to the fact that other Saunders siblings attending 
New Dotmond did not seek similar transfers.

As to all of these applications, Board members found 
further reason for their denial in the applicants’ motivation 
by racial considerations. In the Brown applications, for 
instance, the reason for the requested transfers was stated 
to be, “Request for transfer to an integrated school system 
regardless of race, creed or color.” This led a member of 
the Board to the novel contention, “* * * the reason they 
gave for wanting to transfer was race and we cannot as­
sign them on account of race.” Counsel for the Board 
makes the same contention here.

1 Later, Charlie dropped out of school. He is not an appellant.

2 The District Court later ordered the admission of these two children
to Murphy school.



6

A requirement of the School Cases3 is that transfer 
applications be not denied on grounds that are racially dis­
criminatory, but a victim of racial discrimination does 
not disqualify himself for all relief when he complains of 
it.

These applicants had been complaining, as plaintiffs in 
this action and as transfer applicants, that they were the 
victims of racial discrimination. They had not contended, 
and they did not seek to prove, for apparently they could 
not, that Bartlett Yancey was superior to Caswell County 
Training School or more accessible. In that completely 
segregated system, however, they were entitled to prefer 
Bartlett Yancey. They did contend, and they proved, they 
were not in the Training School by their volition and they 
were denied the right to attend Bartlett Yancey because 
of their race. The complaint, firmly founded on the School 
Cases, required not the deaf ear of the Board, but Board 
action to rectify its wrong.

The Board, however, denies that its practices are 
racially discriminatory.

Racial segregation in the schools was required by the 
Constitution of North Carolina until 1954 when the 
Supreme Court held similar requirements invalid under 
the Fourteenth Amendment.4 Since then the School Board

3 Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 
Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884; Brown v. 
Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.

4 In 1956, North Carolina’s Supreme Court found North Carolina’s 
constitutional requirement invalid. Constantian v. Anson County, 244 N C 
221, 93 S.E, 2d 163.



7

of Caswell County has routinely assigned each pupil to 
the school he attended the previous year.5 This practice, 
in conjunction with invariable denial of transfer applica­
tions, perpetuated the old system with no opportunity for 
escape by any pupil enrolled in the schools in 1954.

Since 1954, all first grade pupils have been segregated 
by race. The School Board contends, however, that the 
assignments of such pupils have been voluntary. It has 
routinely assigned all first grade pupils to the schools where 
they attended a preschool clinic, but, the Board says, the 
parents could select the school to which the child was 
taken for enrollment in the preschool clinic, their choice 
being limited only by the availability of transportation 
facilities.

We need not consider whether freedom of choice at 
the first grade level, without any right of choice thereafter, 
would be a sufficient interim step toward establishment of 
a constitutionally permissible, voluntary system, for the 
record does not establish the factual premise. The record 
refers to no resolution of the Board establishing a right 
of choice at the time of enrollment in the preschool clinics. 
No such right of choice was mentioned in the pleadings of 
the Board in this action. The District Court has not found 
that the Board adopted any such policy or intended to con­
fer any such right of choice. Indeed, the record indicates 
that the principal of each school controlled preschool clinic 
enrollments at that school. More importantly, there is no 
evidence that any such policy, if ever adopted, had been

5 It is not clear how pupils finishing an unconsolidated elementary school 
were assigned to high schools. The chairman of the Board testified there 
had been no occasion to assign any pupil moving into the county after at­
tending a school in another district.



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announced, or made known, to the people of Caswell County. 
Since the schools had been operated on a completely segre­
gated basis, parents of preschool children cannot be said 
to have any freedom of choice until there has been some 
announcement that such a right exists.

In an opinion, containing findings of fact and conclu­
sions of law, filed August 4, 1961,6 the District Court 
stated, “The record in this case strongly indicates that 
some of the minor plaintiffs, particularly the Sanders 
[sic] children, were denied reassignment solely on the 
basis of their race.” Nevertheless it withheld all relief. 
As to the Jeffers children, it did so because they failed to 
exhaust administrative remedies when they and their 
parents did not attend the hearing held by the Board on 
July 6, 1960. It did so as to the Saunders and Brown 
children on the ground that in their transfer applications, 
as in their pleadings in this action, they did not seek in­
dividual reassignment or individual relief, but a general 
reassignment of all pupils in the schools. It gave the 
Brown and Saunders children another opportunity to 
reapply to the School Board, on an individual basis, for 
reassignment.

These five children availed themselves of that further 
opportunity. They filed new applications for reassignment 
to particular schools. At about the same time, counsel for 
the appellants moved to amend the supplemental complaint 
to seek an order requiring the admission of the individual 
plaintiffs to the schools to which they had sought reassign­
ment.

The new Brown and Saunders transfer applications

6 197 F. Supp. 84.



9

were promptly denied by the School Board. As to the 
Brown children, the Board was of the opinion that the ap­
plications were based solely upon the race of the applicants, 
a notion we have already held to be without legal signifi­
cance. As to the Saunders children, the Board noticed an 
obvious error in the applications, for they requested trans­
fers from Murphy to New Dotmond, rather than from 
New Dotmond to Murphy. It summoned the father to 
appear before it, but he failed to attend the scheduled hear­
ing.

When the matter came again before it, the District 
Court, in an unreported opinion filed December 29, 1961, 
concluded the Saunders’ applications should have been 
granted. It found no sufficient ground for denial of the 
applications and satisfactory explanation of the father’s 
failure to appear before the Board on August 24th. As to 
the Brown children, however, after referring to the bus 
routes and the absence of a showing that any neighbor of 
the Browns attended Bartlett Yancey, the Court concluded 
they had failed to establish by a preponderance of the 
evidence that they would have been assigned to that school 
had they been white.

The principal questions, therefore, go to the justification 
of the School Board’s denial of the Brown applications 
on their merits and of the Jeffers applications because of 
their failure to exhaust administrative remedies in 1960.

The School Board takes shelter behind the North Caro­
lina Pupil Enrollment Act7.

7 N. C. Gen. Stat. 115-176—115-179 (1960).



10

We have held that Act to be constitutional upon its 
face.8 We have held that rights derived from the Fourteenth 
Amendment are individual and are to be individually as­
serted in the Federal Courts, but only after exhaustion 
of reasonable administrative remedies provided by the 
state.9 We have required exhaustion of administrative 
remedies though the School Board had initiated no abandon­
ment of discriminatory practices which antedated the 1954 
School Cases.10

Those principles, firmly established in this circuit, do not 
support the position of the School Board, or warrant 
denial of all judicial relief except to the two Saunders 
children. They presuppose a fair and lawful conduct of 
administrative procedures. They are premised upon an 
expectation that administrators will take appropriate steps 
to relieve victims of discrimination, when an unwanted 
assignment is shown administratively to have been dis­
criminatory. Until there has been a failure of the ad­
ministrative process, it should be assumed in a federal 
court that state officials will obey the law when their official 
action is properly invoked. When, however, administrators 
have displayed a firm purpose to circumvent the law, when 
they have consistently employed the administrative proc­
esses to frustrate enjoyment of legal rights, there is no 
longer room for indulgence of an assumption that the ad­
ministrative proceedings provide an appropriate method

8 Carson v. Warlick, 4 Cir., 238 F.2d 724.

9 Holt v. Raleigh City Board of Education, 4 Cir., 265 F.2d 95; Covington 
v. Edwards, 4 Cir., 264 F.2d 780; Carson v. Warlick, 4 Cir., 238 F.2d 724; 
Carson v. Board of Education of McDowell County, 4 Cir., 227 F.2d 789.

10 See particularly Covington v. Edwards, supra.



11

by which recognition and enforcement of those rights may 
be obtained.

The School Board here has turned to the North Caro­
lina Pupil Enrollment Act only when dealing wflth inter­
racial transfer requests. It has not followed that Act in 
making original assignments. Assignments on a racial basis 
are neither authorized nor contemplated by that permissive 
Act. The only possible justification for a system of racial 
assignments, as practiced in Caswell County, is the volition 
of the pupils and their parents.

Though a voluntary separation of the races in schools 
is uncondemned by any provision of the Constitution, 
its legality is dependent upon the volition of each of the 
pupils. If a reasonable attempt to exercise a pupil’s in­
dividual volition is thwarted by official coercion or com­
pulsion, the organization of the schools, to that extent, 
comes into plain conflict with the constitutional require­
ment. A voluntary system is no longer voluntary when it 
becomes compulsive.

This is not to say that when a pupil is assigned to 
a school in accordance with his wish, he must be trans­
ferred immediately if his wishes change in the middle of a 
school year. It does not mean that alternatives may not be 
limited if one school is overcrowded while others are not, 
or that special public transportation must be provided to 
accommodate every pupil’s wish. It does mean that if a 
voluntary system is to justify its name, it must, at 
reasonable intervals, offer to the pupils reasonable alter­
natives, so that, generally, those, who wish to do so, may 
attend a school with members of the other race.11

11 In other systems of assignment, as those based upon geographic school



12

Caswell County’s administration of her schools has 
been obviously compulsive. The invariable denial of in­
terracial transfer requests cannot be squared with any 
freedom of choice on the part of the applicants. There can 
be no freedom of choice if its exercise is conditioned upon 
exhaustion of administrative remedies which, as admin­
istered, are unnegotiable obstacle courses. Freedom of 
choice is not accorded if the choice of the individual may 
be disregarded unless he can prove, by a preponderance 
of the evidence, that, under some other system never 
adopted nor practiced by the School Board, he would have 
been assigned to the school of his choice. Freedom of choice 
is a vapid notion if its attempted exercise may be branded, 
condemned and ignored as racially motivated.

Administrative remedies, such as those afforded by 
North Carolina’s Pupil Enrollment Act, have a place in 
a voluntary system of racial separation. If the system in 
operation was truly voluntary, if, generally, interracial 
transfers were to be had for the asking, a school official 
might still deny a particular request upon grounds thought 
not to undermine the voluntary nature of the system. In 
that event, it would be appropriate for the state to provide 
the applicant effective means of administrative review, and 
failure to pursue an adequate administrative remedy might 
foreclose judicial intervention. When the administrative 
processes, however, are used solely to prevent all freedom 
of choice in a system dependent for its legality upon the 
volition of its pupils, the remedy is both inadequate and 
discriminatory.

zoning, the wish of the individual may be, and usually is, immaterial. It 
is the essence of a voluntary system of racial separation.



13

In other circumstances, when an administrative remedy 
respecting school assignments and transfers, however fair 
upon its face, has, in practice, been employed principally 
as a means of perpetration of discrimination and of denial 
of constitutionally protected rights, we have consistently 
held it inadequate.12 A remedy, so administered, need not 
be exhausted or pursued before resort to the courts for 
enforcement of the protected rights.

In the light of these principles, the District Court was 
clearly correct in concluding that the transfer applications 
of the Saunders children should have been granted. The 
same conclusion was required with respect to the Brown 
and Jeffers applications. Those children had withdrawn 
their consent, if they ever had consented, to their assign­
ment, because of their race, to Caswell County Training 
School. They were legally entitled to attend the school 
of their choice, under an assignment system having no 
legal justification except by their consent, unless adminis­
trative considerations dictated some other alternative, and 
nothing of the sort is suggested. The remoteness from 
the Brown residence of the route of the Bartlett Yancey 
bus is not such a reason, for, concededly, the Brown 
children could ride the Training School bus and walk the 
short distance from that school to Bartlett Yancey. The 
failure of the Jeffers children to exhaust the administrative 
remedy is an irrelevance, for, as we have held, that remedy, 
as administered, was inadequate and discriminatory.

12 Marsh v. County School Board of Roanoke County, 4 Cir., 305 F.2d 94; 
McCoy v. Greensboro City Board of Education, 4 Cir., 283 F.2d 667; 
Farley v. Turner, 4 Cir., 281 F.2d 131; School Board of the City of New­
port News v. Atkins, 4 Cir., 246 F.2d 462; School Board of the City of 
Charlottesville v. Allen, 4 Cir., 240 F.2d 59; and see, from other circuits, 
such cases as Gibson v. Board of Public Instruction, 5 Cir., 272 F.2d 
763; Northcross v. Board of Education of City of Memphis, 6 Cir., 302 
F.2d 818.



14

We think general injunctive relief is also required.

While rights derived from the Constitution are individual 
and are to be individually asserted, the record shows a 
general disregard by the School Board of the constitutional 
rights of Negro pupils who do not wish to attend schools 
populated exclusively by members of their race. Some of 
the plaintiffs exhausted administrative remedies, and in 
this action they have sought relief for others similarly 
situated as well as for themselves. Upon a proper show­
ing, such relief is available in a spurious class action, such 
as this.

Since the School Board has been obstinate in refusing 
to recognize the constitutional rights of Negro applicants, 
this case should not be closed on a basis which would 
leave the Board free to ignore the rights of other ap­
plicants, until, after long and expensive litigation, they 
were judicially declared. The duty to recognize the con­
stitutional rights of pupils in the Caswell County Schools 
rests primarily upon the School Board.13 There it should be 
placed by an appropriate order of the court, for the Dis­
trict Court has a secondary duty of enforcement of in­
dividual rights and of supervision of the steps taken by 
the School Board to bring itself within the requirements of 
the law.

In these circumstances, the duty of the court, as a court

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873; Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; 
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1399, 3 L.Ed. 2d 3.



15

of equity, is traditionally discharged through injunctive 
orders.14

We conclude, therefore, that the appellants, the Brown 
and Jeffers children, as well as the appellants, Saunders, 
are entitled to individual relief. This may be done by an 
order comparable to that of the District Court respecting 
the Saunders children. The District Court ordered their 
admission to the school of their choice if they should 
present themselves there for enrollment. The order similarly 
should require the School Board to enroll the Brown and 
Jeffers children in Bartlett Yancey, provided only, as to 
each of them, that he presents himself there for enrollment 
at the commencement of any semester.

On behalf of others, similarly situated, the appellants 
are not entitled to an order requiring the School Board 
to effect a general intermixture of the races in the schools. 
They are entitled to an order enjoining the School Board 
from refusing admission to any school of any pupil because 
of the pupil’s race. So long as the School Board follows its 
practice of racial assignments, the injunctive order should 
require that it freely and readily grant all requests for 
transfer or initial assignment to a school attended solely 
or largely by pupils of the other race. The order should

14 Marsh v. County School Board of Roanoke County, 4 Cir., 305 F.2d 
94; Green v. School Board of the City of Roanoke, 4 Cir., 304 F.2d 118; 
Farley v. Turner, 4 Cir., 281 F.2d 131; Jones v. School Board of City of 
Alexandria, 4 Cir., 278 F.2d 72; Hamm v. County School Board of 
Arlington County, 4 Cir., 263 F.2d 226; Board of Education of St. Mary’s 
County v. Groves, 4 Cir., 261 F.2d 257; School Board of City of Norfolk 
v. Beckett, 4 Cir., 260 F.2d 18; County School Board of Arlington County 
v. Thompson, 4 Cir., 252 F.2d 929; Allen v. County School Board of 
Prince Edward County, 4 Cir., 249 F.2d 462; School Board of City of 
Newport News v. Atkins, 4 Cir., 246 F.2d 325; School Board of Charlottes­
ville v. Allen, 4 Cir., 240 F.2d 59.



16

prohibit the School Board’s conditioning its grant of any 
such requested transfer upon the applicant’s submission to 
futile, burdensome or discriminatory administrative pro­
cedures. The order should further provide that, if the 
School Board does not adopt some other nondiscriminatory 
plan, it shall inform pupils and their parents that there 
is a right of free choice at the time of initial assignment 
and at such reasonable intervals thereafter as may be 
determined by the Board with the approval of the District 
Court. How and when such information shall be dis­
seminated may be determined by the District Court after 
receiving the suggestions of the parties.

The injunctive order may provide for its modification 
upon application of the School Board to the extent that 
modification may be required to enable the Board to solve 
and eliminate any administrative difficulty that may arise. 
It may contain other provisions not inconsistent with this 
opinion.

The injunctive order should remain in effect until the 
School Board, if it elects to do so, presents and, with the 
approval of the District Court, adopts some other plan 
for the elimination of racial discrimination in the opera­
tion of the schools of Caswell County.

The District Court should retain jurisdiction of the 
action for further proceedings and the entry of such 
further orders as are not inconsistent with this opinion.

Affirmed in part; reversed 
in part, and remanded.

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