Cook v. Davis Petition for Rehearing

    PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS
FOR THE FIFTH  CIRCUIT

No. 12,727

E. S. COOK et al., Constituting the Board of Education 
of the City of Atlanta,

Appellants,

versus

SAMUEL L. DAVIS, Individually and On Behalf of 
Others Similarly Situated,

Appellees.

A. T. W alden 
200 Walden Building 
Atlanta, Georgia
Oliver W. H ill  
623 North Third Street 
Richmond 19, Virginia
Thingood Marshall 
Robert L. C arter 
20 West 40th Street 
New York 18, New York

Attorneys for Petitioner.

Lawyers Publishing Co., Inc.—Richmond. Va.



UNITED STATES COURT OF APPEALS
FOR THE FIFTH  CIRCUIT

No. 12,727

E. S. COOK et ah, Constituting the Board of Education 
of the City of Atlanta,

Appellants,

versus

SAMUEL L. DAVIS, Individually and On Behalf of 
Others Similarly Situated,

Appellees.

PETITION FOR REHEARING

On July 2, 1943, petitioner brought this action in the 
United States District Court for the Northern District 
of Georgia on behalf of himself and other Negro teachers 
and principals similarly situated, praying for a declar­
atory judgment and injunction against the Superintend­
ent of Schols of Atlanta and the Board of Education 
forbidding them to continue to pay Negro teachers and 
principals less salary than is paid to white teachers and 
principals solely on the basis of race and color in viola­
tion of rights secured and protected under the Four­
teenth Amendment to the Federal Constitution.

Commencing November 10, 1947 a trial was com-



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menced in the lower court. On September 28, 1948 that 
court entered findings of fact and conclusions of law, 
and on December 16, 1948 entered final judgment in 
favor of petitioner. Appeal was taken to this Court, and 
on December 28, 1949 this Court reversed and remand­
ed the judgment. The main basis for the reversal appears 
to be the opinion of this Court that the petitioner has 
failed to exhaust his administrative remedies before 
applying for relief in the federal court. The cause is 
to remain pending in the lower court for a reasonable 
time to permit an appeal to the Board of Education 
of the City of Atlanta and then to the State Board 
of Education. Petitioner on January 12, 1950 was grant­
ed until January 28, 1950 to file his petition for rehear­
ing.

THE BASIS FOR THE PETITION FOR REHEARING

Petitioner believes for the following reasons that this
Court was in error in reversing the judgment of the
court below:

1. In finding that petitioner failed to appear to the 
Atlanta Board of Education, this Court apparently over­
looked paragraph 15 of the complaint, which is set out 
on page 10 of the record, and paragraph 15 of appel- 
ants’ answer set out on page 34 of the record, both of 
which clearly show that two petitions were filed with 
the Atlanta Board of Education on January 30, 1941, and 
on November 26, 1941, on behalf of petitioner and all 
other Negro teachers and principals employed in the 
Atlanta School System, requesting that appellants dis­
continue their policy, practice and usage of paying 
Negro teachers and principals, solely because of race



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and color, less salary than is paid white teachers and 
principals performing substantially the same duties.

2. A new scheme for classification, advancement 
and salary, adopted in 1944, continued the discrim­
inatory policies and practices existing at the filing of 
this action. It did not necessitate, therefore, the filing 
of new petition with the Superintendent of Schools 
and the Atlanta Board of Education, after suit had 
already been instituted.

3. Defendants below were fully aware of the nature 
of the action and of the issues involved and could have 
abandoned the discriminatory practices which the 
lower court found to exist. Failing to do this they can­
not now complain that the matter was not brought to 
their attention.

4. The Supreme Court of Georgia has construed ap­
plicable state statutes providing for an appeal to County 
and State Boards of Education as not barring direct 
resort to courts to compel proper discharge of official 
duty, Coutij Board o f Education of Richmond County 
v. Young, i87 Ga. 664, 1 S. E. (2d) 739 (1939); King 
v. Wells, 190 Ga. 776, 10 S. E. (2d) 832 (1940); Bry­
ant v- Board of Education, 156 Ga. 688, 119 S. E. 601.

5. This Court’s opinion, therefore, as to the nec­
essity for exhaustion of administrative remedies being 
contrary to the law as construed by the highest state 
of Georgia contravenes the principles of Erie Railroad 
Co. v. Tompkins, 304 U. S. 64.

6. Section 32-414 of the Georgia Code Annotated, 
Acts 1937, pp. 864, 867, which provides for appeals to 
the State Board of Education are concerned with con­



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troversies between various school districts and county 
boards of education with regard to an interpretation 
or administration of the school law. Fordham School 
Trustee et al. v. Harrell, 197 Ga. 135, 28 S. E. (2d) 
463 (1943) and Davis et al v- H addock et al, 191 Ga. 
639, 13 S. E. (2d) 657. Further, Section 32-10, 1010 
of the Georgia Code Annotated, Acts 1919 p. 352; 1947- 
pp. 1189, 1191, specifically provides for an appeal by 
teachers to the State Board of Education from the de­
cision of a county superintendent of schools suspend­
ing such teacher “under his supervision for non per­
formance of duty, incompetency, immorality or in­
efficiency and for other good and sufficient causes”. 
Section 32-1010 clearly demonstrates that Section 32- 
414, supra, was not intended to provide an administra­
tive remedy for such general and far reaching nature 
as interpreted by this Court.

7. Even if this petition is deemed to necessitate the 
pursuit of State remedies prior in coming into the courts 
since the statute specifically says that such an appeal 
may be pursued and not must be pursued, it is a per­
missive remedy and not a mandatory one and hence 
need not be pursued before resorting to the courts 
for relief. Moore v. Illinois Central Railroad Company, 
312 U. S. 630 (1941). Smithmeyer v. United States, 
147 U. S. 342, (1893).

8. Even if it were assumed that the Georgia laws 
providing for an appeal to the State Board of Educa­
tion established an administrative remedy to redress 
petitioners rights, they have not established any new 
rights. In the absence of such statute, plaintiff’s right 
to seek relief in the federal courts is clear. Alston v. 
School Board, 112 Feel.992 (C. C. A. 4th, 1940). This



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statute could neither enlarge nor reduce the remedial 
right to proceed in the federal courts. Railroad W are­
house Commission v. Duluth, 273 U. S. 625 (1927).

9. This case does not involve any questions requir­
ing expert knowledge, nor is any question of admin­
istrative discretion involved. Hence the principle of 
the exhaustion of administrative remedies is not ap­
plicable. Trans Pacific Airlines v. Hawaiian Airlines, 
174 Fed, 63 (C. C. A, 9th, 1949). This court is clearly 
in a much better position to determine whether alleged 
discrimination violates the Fourteenth Amendment 
than would be any State administrative agency.

10. Even if the petitioner appealed to the State Board 
of Education as required in this Court’s opinion, that 
Board could not grant complete relief. The State Board 
of Education apportions state funds to the Atlanta 
Board for the payment of a minimum number of teach­
ers in the Atlanta School System. It has established a 
minimum salary scale for teachers with specified class­
ifications, and it has set the scale for the payment of 
Negro teachers lower than the scale for the payment 
of whites. If discrimination were eliminated in this 
schedule, the discrimination of which petitioner com­
plains would not be ended thereby.

11. The presence of a constitional question and an 
inadequate administrative remedy and impending harm 
to petitioner as here, warrants the by passing of the 
administrative remedy and the allowance of immediate 
resort to the courts. Aircraft and Deisel Equipment 
Corp. v. Hirsh, 331 U. S. 752.

12. The drastic limitation on oral argument of this 
cause prevented full and complete discussion of this



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question, and this petition should be granted so that 
full argument may be devoted to whether Georgia stat­
utes provide an administrative remedy and its exhaus­
tion before resort may be had to the courts.

CONCLUSION

WHEREFORE, it is respectfully submitted that this 
petition for rehearing should be granted.

A. T. W alden 
Oliver W. H ill  
Tbskgood Marshall 
Robert L. Carter

CERTIFICATE

It is hereby certified that copies of this petition were 
this day served on attorneys for appellant by mailing 
same to their Atlanta addresses.

A. T. W alden 
Oliver W . H ill

Dated: January 2 l-/ 1950.