Calhoun v. Latimer Petitioners' Response to Brief in Opposition to Petition for Writ of Certiorari
Public Court Documents
January 1, 1963
Cite this item
-
Brief Collection, LDF Court Filings. Alston v. Norfolk Records and Briefs, 1940. a95a11d4-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/888950f8-b53f-408f-bad8-69ed3bcf40d4/alston-v-norfolk-records-and-briefs. Accessed April 06, 2025.
Copied!
ifi
p
\
.1 /»
f 4
United States Circuit Court of Appeals
for the Fourth Circuit
, -
M e l v in 0 . A l st o n , and the N orfolk
T e a c h e r s ’ A ssociation , an Unincorpo
rated Association,
Appellants,
vs. File No. 4623
S chool B oard of t h e C it y of N o rfo lk , a
Body Corporate, and C. W. M ason ,
Superintendent of Schools of Norfolk,
Appellees.
BRIEF OF APPELLANTS
%
O liver W . H il l ,
T hurgood M a r s h a ll ,
L eo n A. R a n s o m ,
W il l ia m H . H astie ,
Counsel for Appellants.
117 E. Leigh Street,
Richmond, Ya.
Printed by Law Reporter Ptgr. Co., 518 5th St., Washington, D. C.
SUBJECT INDEX
Statement of the Case----------------------- 1
Questions Involved_____________ 2
Statement of Facts----------------------------------------------------- 3
P art O ne : Legislative Background of Appellants ’ Case 5
I. Virginia Has Undertaken the Duty of Providing
Free Public Education as a State Function----------- 5
A. General Supervision of the Virginia Public
School System is Vested in the State Board
of Education------------ 5
B. The Counties and Cities are the Units for Edu
cation in Virginia__________________ ______ 5
C. The Public School System of Virginia is Fi
nanced Jointly by State and Local Public Funds 5
P art T w o : Appellants’ Substantive Case......... -.......... 8
I. The Racial Discrimination in Salary Schedules and
in Actual Salaries as Alleged in the Complaint is a
Denial of Constitutional Right to the Equal Protec
tion of the Law s________________________________ - 8
A. The Teachers’ Salary Schedule Being Enforced
by Appellees on its Face Provides and Requires
a Differential in Teachers’ Salaries Based Soley
on Race or Color_____________________________ 10
B. The Salaries Paid to All Teachers and Princi
pals Reveal a Racial Differential Imposed Pur
suant to a General Practice of Unconstitutional
Discrimination___________________________ ___- 13
C. The Equal Protection Clause of the Fourteenth
Amendment Prohibits Such Racial Discrimina
tion Against Appellants as Teachers by Occu
pation and Profession . ----------------- -------------- 14
PAGE
II
1. The Fourteenth Amendment Prohibits All
Arbitrary and Unreasonable Classifica
tions by State Agencies--------- ---- 14
2. Discrimination Because of Race or Color is
Clearly Arbitrary and Unreasonable With
in the Meaning of the Fourteenth Amend
ment________________________ 15
D. The Equal Protection Clause of the Fourteenth
Amendment Prohibits Such Discrimination
Against Appellant Alston as a Taxpayer______ 19
II. The Facts Alleged in Appellant Alston’s Pleading
Do Not Constitute a Waiver of His Right to the
Relief for Which He Prays______________________ 22
Scope of Present Waiver Issue___________________ 22
A. The Contract of Hire is not Affected by the Re
lief Sought________ 24
B. The Doctrine of Waiver Has Been Held Inap
plicable to Analogous Dealings with Public
Authorities __________________________________ 26
Rationale of the Decisions___________ 28
C. Decision on the Waiver Was Erroneously Based
Upon Facts not Before the District Court_____ 32
III. There Is No Merit in the Other Purported De
fenses of Law Raised by the Answer and Not
Relied Upon in the Argument________________ 35
A. An Amount in Controversy to Exceed $3,000
Is Not Required to Confer Jurisdiction in This
Case_______________________________________ 35
B. Appellants Have No Full, Adequate and Com
plete Remedy at Law_______________________ 37
C. The Plea of Res Judicata Is an Affirmative
Defense and Not Now Before the Court____ _ 38
Conclusion___________________________________________ 39
PAGE
Ill
TABLE OF CASES
American Union Telegraph Co. v. Bell Telephone Co.,
1 Fed. 698_________________________________________ 38
Anderson v. Fuller, 51 Fla. 380,11 So. 684-------------------- 21
Black v. Ross, 37 Mo. App. 250—---- ------------------------------ 22
Board of Education v. Arnold, 112 111. 11-------------- — 21
Broom v. Wood, 1 F. Supp. 134, 136----------------------------- 36
Buchannan v. Warley, 245 U. S. 60-------------------------------- 17
Chaires v. City of Atlanta, 164 Ga. 755,139 S. E. 559 17
Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 27 ̂ - 27
City of Cleveland v. Clements Bros. Construction Co.,
67 Ohio St. 197, 65 N. E. 885 _______________________ 28
Claybrook v. City of Owensboro, 16 F. 297----- --------------- 20
Davenport v. Cloverport, 72 Fed. 689----- — 17-20-36
Di Giovanni v. Camden Ins. Association, 296 IT. S. 64 ..... 37
Ex parte Virginia, 100 U. S. 339------------------------------ 12-16
Frost Trucking Co. v. Railroad Commission, 271 U. S.
583_________________________________________________ 29
Gaines v. Missouri, 305 U. S. 337---------------------------------- 17
Gibbs v. Buck, 307 U. S. 66_______________ ____________ 34
Glavey v. United States, 182 U. S. 595 -------------------------- 27
Glenwood Light and Water Co. v. Mutual Light, Heat
and Power Co., 239 U. S. 121 ---------- -----....... — 36
Gulf C. & S. F. R. Co. v. Ellis, 165 U. S. 150__________ 15
Hague v. Committee for Industrial Organization, 307
| U. S. 496__________________________________________ 36
Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 29
Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E.
109_________________________________________________ 27
Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818_________ 18-26
International News Service v. Associated Press, 248
U. S. 215__________________________________________ 36
Joyner v. Browning, 30 F. Supp. 512--------------- ------------ 34
Juniata Limestone Co. Ltd. v. Fagley, et ah, 187 Pa. 193,
40 Atl. 977_________________________________________ 15
Knapp v. Lake Shore, etc. Ry Co., 197 U. S. 536 ___ ___ 38
Lane v. Wilson, 307 U. S. 268_______________ 17
PAGE
IV
Lukens v. Nye, 156 Cal. 498, 105 Pac. 593______________ 28
McCabe v. Atchison, Topeka & Santa Fe Rv. Co., 235
U. S. 151_____________________________ ______________ 17
Miller v. United States, 103 Fed. 413___________________ 27
Mills v. Anne Arundel County Board of Education, et al,
30 Fed. Supp. 245________ ___ _______________ 13-25-36
Mills v. Lowndes, et al 26 Fed. Supp. 792______________ 12
Minnesota ex rel Jennison, v. Rogers, 87 Minn. 130, 91
N. W. 438 _______ __________ ______ __ ________ _______ 28
M ’Intire v. Wood, 7 Cranch. 504________________ ___ __ 38
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S.
265, rev’d, 245 N. Y. 106___________________________ 26
Nixon v. Condon, 286 U. S. 73___ _____________________ 17
O ’Brien v. Moss, 131 Ind. 99, 30 N. E. 894______________ 22
Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760 __ 21
Opinion of the Justices, In re, — Mass. -—, 22 N. E.
(2d) 4 9 ____________________________________________ 18
Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 1031______ 27
People ex rel Fursman, v. Chicago, 278 111., 318, 116
N. E. 158__________________________________________ 18
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716..... 28
People ex rel Satterlee v. Board of Police, 75 N. Y. 38__ 27
Petroleum Exploration Inc. v. Public Service Commis
sion, 304 U. S. 209__________________________________ 38
Pierre v. Louisiana, 306 U. S. 354______________________ 17
Polk v. Glover, 305 U. S. 5________ ___________________ 34
Puitt v. Commissioner of Gaston County, 94 N. C. 709,
55 Am. Rep. 638_________________ 20
Railroad Tax Cases, 13 Fed. 722_____________________ _ 15
Rockwell v. Board of Education, 125 Misc. 136, 210
N. Y. S. 582; rev’d, 214 App. Div. 431, 212 N. Y. S. 281 26
Roper v. McWhorter, 77 Va. 214_______________ _____ 20
School District v. Teachers’ Retirement Fund Assn., —
Ore —, 95 P. (2d) 720; 96 P. (2d) 419________ ____ 27-31
Seattle High School, etc. v. Sharpless, 159 Wash. 424, 293
Pac. 994___________________________________________ 18
Settle v. Sterling, 1 Idaho, 259_________________________ 27
Simpson v. Geary, et al 204 Fed. 507___________________ 15
PAGE
V
Smith v. Bourbon County, 127 U. S. 105------------------------ 38
Southern Railway Co. v. Greene, 216 U. S. 400------- -------- 15
Strauder v. West Virginia, 100 U. S. 303-------------- 15-16-17
Swafford v. Templeton, 185 U. S. 487--- ------------- ~-------- 36
Truax v. Raich, 239 U. S. 33------------------------------------------ 15
Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 12------------ -------- 21
Union Pacific Railway v. Public Service Corporation,
248 U. S. 67________________________ -— .................... 30
Whiteley County Board of Education v. Rose, 267 Ivy.
283,102 S. W. (2d) 28___________________________ 27-29
Wiley v. Sinkler, 179 U. S. 58-------------------------------------- 36
Yu Cong Eng v. Trinidad 271 U. S. 500------------------------- 15
CONSTITUTIONS, STATUTES AND RULES
CONSTITUTIONS CITED
PAGE
United States Constitution, Amendment Fourteen..... 2
Virginia Constitution, Article I X :
Section 129------------------ 5-31
131_____________________________________ - 6
133__________ _____________________ -........ - 6
135 ___________________________ 7
136 _____________________________________ 7
PRINCIPAL STATUTES CITED
United States Code:
Title 28, Sec. 41 (1 ) ............................. .......... ........ ...... 36
Title 28, Sec. 41 (14)______ ______- ....... ....... 36
Virginia Code:
Sections 611-718-649-653-777 . 6
Section 786 _______ 7-22-31
Section 646 ------------------------- 7
Section 664 ________________ ______ . ----- 22-23
Section 680 _____________________ — ---- --------------- 32
Virginia Acts of 1928, cli. 471, p. 1186.. - 5
RULES CITED
Federal Rules of Civil Procedure:
Rule No. 7 (a )______ _____________ _________.._ 24-34
Rule No. 8 ( c ) ________________ 24-38
*
United States Circuit Court o f Appeals
for the Fourth Circuit
M elvin 0 . A l st o n , and the N orfolk
T e a c h e r s ’ A ssociation , an Unincorpo
rated Association,
Appellants,
vs. File No. 4623
S chool B oard of t h e C it y of N o rfo lk , a
Body Corporate, and C. W. M aso n ,
Superintendent of Schools of Norfolk,
Appellees.
BRIEF OF APPELLANTS
STATEMENT OF THE CASE
This is an appeal from a final judgment of the District
Court of the United States for the Eastern District of
Virginia in a case arising under the Constitution and laws
of the United States, wherein appellants, plaintiffs below,
are seeking a declaratory judgment and a permanent
injunction.
On November 2, 1939, appellants filed a complaint chal
lenging the system, practice and custom of the School Board
of the City of Norfolk, (1) of establishing schedules and
rates of pay for all Negro public school teachers substan
tially lower than those established for white public school
2
teachers similarly situated, and (2) in actually paying to
all Negro teachers, pursuant to such schedules, substan
tially less than is paid to white teachers similarly situated,
all solely because of race or color and in violation of the
equal protection clause of the Fourteenth Amendment and
paragraph 14 of Section 41 of Title 28 of the United States
Code. Appellants prayed for a declaratory judgment assert
ing the existence and unconstitutionality of this racial
discrimination and for an injunction restraining its con
tinuance.
On November 21, 1939, the appellees, defendants below, A
filed an answer containing four separate defenses. There
after, the Court suggested that inasmuch as defenses in
law were raised in the portions of the answer denominated
‘ ‘ First Defense ” , “ Second Defense ’ ’ and ‘ ‘ Third Defense ’ ’,
the hearing and disposition of the case might be facilitated
if argument could be made upon these defenses in advance
of trial, treating the said defenses as a motion to dismiss
the bill of complaint for alleged legal insufficiency.
Thereafter, pursuant to the said suggestion of the Court,
the case was argued on February 12, 1940, as upon the ap
pellees’ motion to dismiss the bill of complaint. No testi
mony was taken. On February 29, 1940, the Court entered
a final order dismissing the complaint.
QUESTIONS INVOLVED
1. Is the racial discrimination in salary schedules and in
actual salaries as alleged in the complaint a denial of con
stitutional right to equal protection of the laws?
2. Has the appellant Alston, by accepting employment
as a matter of law on the facts alleged by his pleading,
waived his right to the relief for which he prays?
3. Is there any substance to the defenses of res judicata,
lack of jurisdiction, and adequacy of remedy at law, pleaded
by the defendants but not relied upon in the argument or
in the decision of the District Court?
STATEMENT OF FACTS
At the hearing on the motion to dismiss the only facts
before the Court were the facts as alleged in the complaint.
Briefly summarized, the basic facts set out in the complaint
are as follows:
Appellant, Melvin 0. Alston, is a citizen of the United
States, and a citizen and resident of the State of Virginia.
He is a Negro, a taxpayer of the City of Norfolk and the
State of Virginia, and is a regular teacher in a public high
school maintained and operated by the School Board of the
City of Norfolk. Appellant Alston brings this action (1) as a
teacher by profession and occupation, (2) as a taxpayer, and
(3) as a representative of all other Negro teachers and
principals in the public schools of Norfolk, Virginia, simi
larly situated and affected. (Appendix, p. 41.)
Appellant, Norfolk Teachers’ Association, a voluntary
unincorporated association, is composed of Negro teachers
and principals in the public schools of Norfolk, Virginia,
organized for the mutual improvement and protection of
its members in their profession as teachers and principals
in the public schools of Norfolk, Virginia. (Appendix,
p. 41.)
Appellant Alston and all of the members of the appellant
association and all other Negro teachers and principals in
the public schools of the City of Norfolk are teachers by
profession and are specially trained for their calling.
(Appendix, p. 44.)
The appellee, School Board of the City of Norfolk, is an
administrative department of the Commonwealth of Vir
ginia having the direct control and supervision of the public
schools of Norfolk, Virginia, and is charged with the duty
of maintaining an efficient system of public schools includ
ing the employment of teachers and the fixing of teachers’
salaries. Appellee, C. W. Mason, is the administrative and
executive official of the public school system in Norfolk and
is sued in his official capacity. (Appendix, pp. 41, 43.)
4
All public school teachers in Virginia, including appel
lants and all other teachers in Norfolk, are required to hold
teaching certificates in accordance with the rules of cer
tification established by the State Board of Education.
Negro and white teachers and principals alike must meet
the same requirements to receive teachers’ certificates from
the State Board of Education, and upon qualifying do re
ceive identical certificates. (Appendix, pp. 42, 43.)
The appellees over a long period of years have consist
ently pursued and maintained and are now pursuing and
maintaining the policy, custom, and usage of paying Negro A
teachers and principals in the public schools of Norfolk less
salary than white teachers and principals possessing the
same professional qualifications, certificates and experience,
exercising the same duties and performing the same serv
ices as Negro teachers and principals. Such discrimination
is being practiced against the appellants and all other
Negro teachers and principals in Norfolk solely because of
their race or color. (Appendix, p. 43.)
Pursuant to the policy, custom and usage, set out above,
the appellees acting as agents and agencies of the Common
wealth of Virginia have established and maintained a salary
schedule used by them to fix the amount of compensation
for teachers and principals in the public schools of Norfolk.
This salary schedule (set out in full in the complaint—
Appendix, p. 46), on its face, provides and requires a dif- >
ferential in teachers’ salaries based solely on race or color.
The practical application of this salary schedule has
been, is, and will be to pay Negro teachers and principals
of qualifications, certification and experience equal to that
of white teachers and principals, less salary than is paid
white teachers and principals solely because of race or color.
(Appendix, p. 46.)
In order to qualify for his position as teacher, appellant
Alston has satisfied the same requirements as those exacted
of all other teachers, white as well as Negro, qualifying for
similar positions, and he is charged with the same duties
and performs services equivalent to those of all other teach
ers holding these certificates, white as well as Negro. Never
theless, all white male teachers receive salaries much larger
than the salary paid this appellant. White male high school
teachers employed by appellees whose qualifications, cer
tification, duties and services are the same as appellant’s
are paid a minimum annual salary of $1200 while appellant
Alston is paid $921. (Appendix, p. 45.)
As a taxpayer, appellant Alston has contributed to the
fund set out of which all teachers’ salaries are paid. As a
taxpayer he complains of discrimination against him, solely
on account of race or color in the distribution of the public
fund to which he contributes. (Appendix, pp. 48-49.)
PART ONE
LEGISLATIVE BACKGROUND OF APPELLANTS’
CASE
I
Virginia Has Undertaken the Duty of Providing Free
Public Education as a State Function
The Commonwealth of Virginia realizing that free public
education was an essential function of government author
ized the establishment of an adequate educational system
by placing the following mandate in the Constitution of
Virginia:
* ‘ Free schools to be maintained.— The general assembly
shall establish and maintain an efficient system of public
free schools throughout the State.” Article IX, Section
129, Virginia Constitution.
Chapter 471 of the Acts of 1928, page 1186, revised, con
solidated, amended and codified the school laws and certain
laws relating to the State Board of Education; the act
6
repealed certain sections and substituted others in their
place; and the new school code is codified as sections 611-718,
inclusive, of the Virginia Code. Section 611 provides that:
“ An efficient system of public schools of a minimum
school term of one hundred and sixty school days, shall
he established and maintained in all of the cities and
counties of the State. The public school system shall
be administered by the following authorities, to-wit:
A State board of education, a superintendent of public
instruction, division superintendent of schools and
county and city school boards.” £
A. General Supervision of the Virginia Public School
System Is Vested in the State Board
of Education
Article IX of the Constitution of Virginia established
a State Board of Education and defined its powers and
duties. General supervision is vested in this board and the
members thereof are appointed by the Governor subject
to the approval of the General Assembly.
Section 131 of Article IX of the Constitution provides
for the appointment of a Superintendent of Public Instruc
tion by the Governor subject to confirmation of the General
Assembly.
B. The Counties and Cities Are the Units for Education |
in Virginia
Section 133 of Article IX of the Constitution provides
that: “ The supervision of schools in each county and city
shall be vested in a school board, to be composed of trustees
to be selected in the manner for the term and to the number
provided by law.” The local school boards are declared to
be bodies corporate with power to sue and be sued in their
corporate names (Va. Code, Sections 653, 777).
By Section 649 of the Virginia Code each school board
is authorized and required to appoint a division superin
7
tendent of schools. By Section 786, the city school boards
are required to:
. establish and maintain therein a general system
of public free schools in accordance with the require
ments of the Constitution and the general educational
policy of the Commonwealth for the accomplishment
of which purpose it shall have the following powers
and duties . . . :
“ Third. To employ teachers from a list or lists of
eligibles to be furnished by the division superintendents
and to dismiss them when delinquent, inefficient or in
anywise unworthy of the position . . .
“ Twelfth. To manage and control the school funds
of the city, to provide for the pay of teachers and of
the Clerk of the board, . . . . ”
C. The Public School System of Virginia is Financed
Jointly by State and Local Public Funds
Section 135 of Article IX of the Virginia Constitution
provides for the distribution of state funds for school pur
poses and Section 136 authorizes each county, city and town
to raise additional funds for local school purposes.
Section 646 of the Virginia Code provides:
“ Of what school fund to consist.— The fund applicable
annually to the establishment, support and maintenance
of public schools in the Commonwealth shall consist o f :
“ First. State funds embracing the annual interest
on the literary fund; all appropriations made by the
general assembly for public school purposes; that por
tion of the capitation tax required by the Constitution
to be paid into the State treasury and not returnable
to the localities, and such State taxes as the general
assembly, from time to time, may order to he levied.
“ Second. Local funds embracing such appropriations
as may be made by the board of supervisors or council
for school purposes, or such funds as shall be raised
by levy by the hoard of supervisors or council, either
8
or both, as authorized by law, and donations or the
income arising therefrom, or any other funds that may
be set apart for local school purposes.”
Realizing that the efficiency of the school system depended
upon an efficient teaching staff which can only be secured
by adequate pay, the General Assembly, by Section 701,
provided:
‘ ‘ All moneys appropriated by the State for local schools,
unless otherwise specifically provided, shall be used
exclusively for teachers’ salaries.”
PART TWO
APPELLANTS’ SUBSTANTIVE CASE
I
The Racial Discrimination in Salary Schedules and in
Actual Salaries as Alleged in the Complaint Is a Denial
of Constitutional Right to the Equal Protection of
the Laws
The gravamen of this action is clearly set out in the
eleventh and twelfth paragraphs of the complaint which
allege that:
‘ ‘ Defendants over a long period of years have consist
ently pursued and maintained and are now pursuing
and maintaining the policy, custom, and usage of paying
Negro teachers and principals in the public schools
of Norfolk less salary than white teachers and princi
pals in said public school system possessing the same
professional qualifications, certificates and experience,
exercising the same duties and performing the same
services as Negro teachers and principals. Such dis
crimination is being practiced against the plaintiffs
and all other Negro teachers and principals in Norfolk,
Virginia, and is based solely upon their race or color.
(Italics added.)
“ The plaintiff Alston and all of the members of the
plaintiff association and all other Negro teachers and
principals in public schools in the City of Norfolk are
teachers by profession and are specially trained for
their calling. By rules, regulations, practice, usage
and custom of the Commonwealth acting by and through
the defendants as its agents and agencies, the plaintiff
Alston and all of the members of the plaintiff associa
tion and all other Negro teachers and principals in the
City of Norfolk are being denied the equal protection
of the laws in that solely by reason of their race and
color they are being denied compensation from public
funds for their services as teachers equal to the compen
sation provided from public funds for and being paid
to white teachers with equal qualifications and experi
ence for equivalent services pursuant to rules, regu
lations, custom and practice of the Commonwealth
acting by and through its agents and agencies, the
School Board of the City of Norfolk and the Superin
tendent of Schools of Norfolk, Virginia.” (Appendix,
pp. 43-44.)
The District Judge, in his opinion, recognized the prin
ciple that these allegations, accepted as true on a motion to
dismiss, established unconstitutional discrimination against
Negroes. It is readily apparent from the opinion that he
had no doubt that the practice, custom, and usage of pay
ing Negro teachers and principals less salary than white
teachers and principals of the same professional qualifi
cations, certification, and experience solely because of race
or color violates the Fourteenth Amendment. We quote:
“ . . . . The authorities are clear, I think however, that
there can be no discrimination in a case of this kind,
if such discrimination is based on race or color alone.
Under our constitution, particularly the fourteenth
amendment, all citizens stand upon equal footing before
the law and are entitled to equal benefits and privileges
where state action is involved; or, to state the propo
sition another way, a state can not, through its consti
tution, statutes, or rules and regulations, or through
one of its administrative bodies, arbitrarily discrimi-
10
nate against persons within its jurisdiction. In the
words of the fourteenth amendment, a state cannot
deny to any person within its jurisdiction the equal
protection of the law. That principle is firmly estab
lished, and, if and when a case of discrimination based
on race or color is presented, the person discriminated
against will be granted appropriate relief.
“ The view that I take of the plaintiff’s case, with some
hesitation I will admit, does not render it necessary
for the Court to pass on the unconstitutional discrimi
nation charged in the complaint to have been practiced
against the plaintiff, other than to observe that the
complaint charges in clear and explicit language that
the discrimination in compensation is based on race or
color alone.” (Italics added.) (Appendix pp. 60-61.)
This cause of action is based upon a system of racial dis
crimination set up by administrative rulings of the appellees
acting as administrative agencies of the Commonwealth of
Virginia. It involves the question of the distribution of
public funds by state agencies pursuant to a system which
discriminates against Negroes solely because of race or
color.
The discriminatory practice, usage and custom of the
appellees consist o f: (1) a salary schedule which on its
face provides and requires a differential in teachers’ sal
aries based solely on race or color, and, (2) the practice
of fixing teachers ’ salaries pursuant to this schedule in such
a manner as to provide less salary for Negro teachers and
principals than for white teachers and principals with equal
qualifications and experience solely because of race or color.
A. The Teachers’ Salary Schedule Being Enforced by Ap-
lees on Its Face Provides and Requires a Differential in
Teachers’ Salaries Based Solely on Pace or Color
Pursuant to the policy, custom and usage set out above
the appellees acting as agents and agencies of the Common
wealth of Virginia have established and maintained a salary
schedule used by them to fix the amount of compensation
for teachers and principals in the public schools of Norfolk.
; salary schedule provides
Negro—
Elementary
as follows:
S a la r ie s n o w
b e in g p a id
te a c h e r s n e w
t o th e s y s te m
M a x im u m s a la r y
b e in g p a id
(a f fe c t in g o n ly
th o s e in s y s te m
b e fo r e in cr e m e n t
p la n w a s
d is co n t in u e d )
Normal Certificate $ 597.50 $ 960.10
Degree
High School
611.00 960.00
Women 699.00 1,105.20
Men
White
Elementary
784.50 1,235.00
Normal Certificate 850.00 1,425.00
Degree
High School
937.00 1,425.00
Women 970.00 1,900.00
Men 1,200.00
(Appendix,
2,185.00
p. 46.)
This salary schedule is a basic factor of the discrimina
tory system. The evil in the schedule is two-fold: first, it
provides a lower minimum for Negro teachers new to the
system than for white teachers with equal professional
qualifications and new to the system; and, second, it pro
vides a higher maximum for white teachers than for Negro
teachers. Under this schedule appellant Alston and other
Negro teachers can never receive more than the maximum
of $1235 for Negroes which is but $35 more than the mini
mum for white male high school teachers, and $950 less
than the maximum for white male high school teachers.
Under this schedule a Negro teacher must start at a
lower salary than a white teacher and no matter how long
he teaches or how well, how many degrees he obtains at
college or how proficient he may become he can never re
ceive as much as the maximum for white teachers solely
12
because of his race or color. This system of racial dis
crimination destroys the opportunity of Negro teachers
to bargain freely for their salaries. Their freedom of con
tract is limited to the figures on the schedule which are
lower than the corresponding figures for white teachers.
Two decisions of similar cases in this circuit clearly rec
ognize that such discrimination as this is a denial of con
stitutional rights. In the first case, Mills v. Lowndes, et al.,
26 Fed. Supp. 792 (D. C. Md. 1939), a Negro public school
teacher in Maryland challenged the constitutionality of a
state statute which provided a higher minimum salary for f
white teachers than for colored teachers. The Court de
clared that this type of schedule was unconstitutional:
“ . . . The plaintiff is a qualified school teacher and
has the civil right as such to pursue his occupation
without discriminatory legislation on account of his
race or color. While the State may freely select its
employees and determine their compensation it would,
in my opinion, be clearly unconstitutional for a state
to pass legislation which imposed discriminatory bur
dens on the colored race with respect to their qualifi
cations for office or prescribe a rate of pay less than
that for other classes solely on account of race or
color . . . ” (26 Fed. Supp. at 801.)
In the Mills case, supra, the schedule provided for mini
mum salaries only—in the instant case the discrimination
is not only as to minimum salaries but maximum salaries
as well. In the Mills case there was a statutory salary
schedule—in the instant case there is a salary schedule
established by administrative ruling of an administrative
agency of the state.
There can be no question but that the prohibitions of the
Fourteenth Amendment apply with full vigour to the acts
of such agencies. Ex parte Virginia, 100 U. S. 339 (1879).
13
B. The Salaries Paid to all Teachers and Principals Reveal
a Racial Differential Imposed Pursuant to a General
Practice of Unconstitutional Discrimination
Using the salary schedule set out above as a basis, the
appellees fix the salaries of the Negro teachers in the public
schools of Norfolk who are new to the system at a lower
rate than white teachers new to the system who have identi
cal state teachers’ certificates, years of experience, exer
cising the same duties and performing essentially the same
services (Appendix, p. 46). Similarly Negro teachers in
intermediary salary status are paid less than white teachers
with equivalent intermediate status (Appendix, p. 46). The
discrimination in maximum salaries had already been set
forth. It is further alleged in the complaint that the dis
crimination in salaries is based solely on race or color (A p
pendix, p. 47). White male high school teachers employed
by appellees whose qualifications, certification, duties and
services are the same as appellants’ are paid a minimum
annual salary of $1200 while appellant Alston is paid $921.
The second Mills case, Mills v. Anne Arundel County
Board of Education, et al., 30 Fed. Supp. 245 (D. C. Md.
1939), involved the policy, custom and usage of paying
Negro teachers in Anne Arundel County, Maryland, less
salary than white teachers solely because of race or color.
In granting a declaratory judgment and an injunction to the
Negro teacher, District Judge Chestnut stated:
“ . . . . As already stated, the controlling issue of fact
is whether there has been unlawful discrimination by
the defendants in determining the salaries of white and
colored teachers in Anne Arundel County solely on
account of race or color, and my finding from the testi
mony is that this question must be answered in the
affirmative, and the conclusion of law is that the plaintiff
is therefore entitled to an injunction against the contin
uance of this unlawful discrimination. (Italics added.)
(30 Fed. Supp. at 252.)
14
C. The Equal Protection Clause of the Fourteenth Amend
ment Prohibits Such Racial Discrimination Against Appel
lants as Teachers by Occupation and Profession
Virginia has no tenure of office statute covering teachers
and there are no civil service provisions applicable to them.
The question in this case is not of the right to teach but of
the right of Negroes, teachers by training and occupation
not to be discriminated against because of color in the fixing
of salaries for public employment by the appellees.
In the employment of teachers and the fixing of salaries ^
the appellees are acting as an administrative department
of the Commonwealth of Virginia distributing public funds
and not as a private employer distributing his own funds.
A significant difference between the individual employer
and the state at once suggests itself. The federal Constitu
tion does not require individuals to accord equal treatment
to all. It does not forbid individuals to discriminate against
individuals. It does, however, expressly declare that no
state shall deny to any person within its jurisdiction the
equal protection of the laws. Thus state action is prohibited
by the federal Constitution where individual action is not
prohibited.
(1 ) T h e F o u r t e e n t h A m e n d m e n t P ro h ibits a l l A rbitrary
an d U n reason able C lassificatio n s b y S tate A gencies
While a state is permitted to make reasonable classifica
tions without doing violence to the equal protection of the
laws, such classification must be based upon some real and
substantial distinction, bearing a reasonable and just rela
tion to the things in respect to which such classification is
imposed; and classification cannot be arbitrarily made with
out any substantial basis.
This protection of the Fourteenth Amendment has been
applied in numerous types of cases in which the courts con
cluded that unreasonable classification and resultant dis
crimination were held to be arbitrary and unlawful.
15
Railroad Tax Cases, 13 Fed. 722 (1882);
Southern Railway Co. v. Greene, 216 U. S. 400 (1910);
Gulf C. and S. F. R. Co. v. Ellis, 165 U. S. 150 (1896);
Juniata Limestone, Ltd. v. Fagley, et al., 187 Pa. 193,
40 Atl. 977, (1898);
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926).
This doctrine has been invoked to prohibit unlawful dis
crimination in employment. An Arizona statute which pro
vided that all employers of more than five employees must
employ not less than eighty percent qualified electors or
native-born citizens of the United States was held unconsti
tutional in a suit by an alien.
Truax v. Raich, 239 U. S. 33 (1915).
“ The right to contract for and retain employment in a
given occupation or calling is not a right secured by
the Constitution of the United States, nor by any
Constitution. It is primarily a natural right, and it
is only when a state law regulating such employment
discriminates arbitrarily against the equal right of
some class of citizens of the United States, or some
class of persons within its jurisdiction, as, for example,
on account of race or color, that the civil rights of such
persons are invaded, and the protection of the federal
Constitution can be invoked to protect the individual
in his employment or calling.”
Simpson v. Geary, et al., (D. C. Ariz. 1913) 204 Fed.
507, 512.
(2) D isc r im in a tio n B ecause of R ace or C olor Is C learly
A rbitrary and U n reasonable W it h in t h e M e a n in g of
t h e F o u r t e e n t h A m e n d m e n t
It is clear that, under the Fourteenth Amendment, officers
of a state cannot discriminate against Negro citizens solely
because of race or color. The purpose of the Fourteenth
Amendment has been clearly set out by Mr. Justice Strong
of the United States Supreme Court in the case of Strauder
v. West Virginia, 100 U. S. 303 (1879):
16
“ . . . What is this (amendment) but declaring that
the law in the States shall be the same for the black
as for the white; that all persons, whether colored or
white, shall stand equal before the laws of the States
and, in regard to the colored race, for whose protection
the Amendment was primarily designed, that no dis
crimination shall he made against them by law because
of their color? The words of the Amendment, it is true,
are prohibitory, but they contain a necessary implica
tion of a positive immunity, a right, most valuable to
the colored race—the right to exemption from un
friendly legislation against them distinctively as col
ored; . . . ” Strauder v. West Virginia {supra, at
_ p . 307).
The Fourteenth Amendment is in general terms and does
not enumerate the rights it protects:
“ The Fourteenth Amendment makes no attempt to
enumerate the rights it is designed to protect. It speaks
in general terms, and those are as comprehensive as
possible. Its language is prohibitory; but every pro
hibition implies the existence of rights and immunities,
prominent among which is an immunity from inequality
of legal protection, either of life, liberty, or property.
Any State action that denies this immunity to a colored
man is in conflict with the Constitution.” /yo °'^
Strauder v. West Virginia {supra, at p. 310.) ^#3,3®
The United States Supreme Court in the case of Ex parte
Virginia, 100 U. S. 339, 344 (1879), declared:
“ One great purpose of the Amendment was to raise
the colored race from that condition of inferiority and
servitude in which most of them had previously stood
into perfect equality of civil rights with all other per
sons within the jurisdiction of all the States. They
were intended to take away all possibility of oppression
by law because of race or color . . . ”
In consistent application of this interpretation to a great
variety of situations the courts have condemned all forms
of state action which impose discriminatory treatment upon
Negroes because of their race or color.
17
Exclusion from petit jury—Strauder v. West Virginia,
swpra.
Exclusion from grand jury—Pierre v. Louisiana, 306
U. S. 354 (1939).
Exclusion from voting at party primary—Nixon v. Con
don, 286 U. S. 73 (1932).
Discrimination in registration privileges—Lane v. Wil
son, 307 U. S. 268 (1939).
Ordinance restricting ownership and occupancy of
property—Buchannan v. Warley, 245 U. S. 60 (1917).
Ordinance restricting pursuit of vocation—Chaires v.
City of Atlanta, 164 Ga. 755,139 S. E. 559 (1927).
Refusal of pullman accommodations—McCabe v. At.
chison, Topeka & Sante Fe Ry. Co., 235 U. S. 151
(1914).
Discrimination in distribution of public school fund—
Davenport v. Cloverport, 72 Fed. 689 (D. C. Kv.
1 8 9 6 ).
Discrimination in public school facilities—Gaines v.
Missouri, 305 U. S. 337 (1938).
It is clear from the cases set out above that: (1) state
agencies, such as appellees, cannot make classifications on
an arbitrary or unreasonable basis, and (2) race or color
alone cannot be used as a basis for discrimination against
Negroes. There is, therefore, complete legal justification
for the decisions in the two Mills cases, supra, and the con
clusion of the District Judge on this point in this instant
case that: “ . . . there can be no discrimination in a case of
this kind, if such discrimination is based on race or color
alone” . (Appendix, p. 60.)
As a general proposition, local school boards, in employ
ing teachers, may make reasonable classifications which can
be justified as having a direct connection with the proper
administration of the school system. There is even some
authority that local school boards have the power to require
all new teachers to take an oath that they are not members
18
of a teachers’ union. (Seattle High School, etc. v. Sharpless,
159 Wash. 424, 293 Pac. 994 (1930), and People ex rel.
Fursman v. Chicago, 278 111. 318, 116 N. E. 158 (1917)).
However, this power of local school boards must be con
sidered in connection with the concurring opinion of two
Justices in the Fursman case, supra, that: “ . . . This power
does not, however, include the power to adopt any kind of
an arbitrary rule for the employment of teachers it chooses
to adopt; for a rule can easily be imagined the adoption of
which would be unreasonable, contrary to public policy,
and on the face of it not calculated to promote the best m
interests and welfare of the schools. In our opinion, courts
would have the power, in the interest of the public good, to
prohibit the enforcement of such an arbitrary rule . . . ” .
The correctness of the limitation thus declared by the con
curring justices is well illustrated by two other cases in
which discriminations against public employees upon the
basis of unreasonable classifications have been held to he
invalid.
In In re Opinion of the Justices,—Mass.— , 22 N. E. (2d)
49 (1939), the Supreme Judicial Court of Massachusetts
held that discrimination against married women in the pub
lic service, solely because of their marital status, is invalid
as a denial of equal protection of the laws guaranteed by
the State Constitution:
“ . . . the General Court cannot constitutionally enact a S
law, even with respect to employment, in the public
service, that arbitrarily discriminates against any class
of citizens by excluding it from such service. This con
clusion results from . . . the guarantees in Articles 1,
6 and 7 of the Declaration of Eights ‘ for equal protec
tion of equal laws without discrimination or favor based
upon unreasonable distinctions.’ ” (22 N. E. (2d)
at 58).
In Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937), a
salary differential between married and unmarried teachers
was held to he an unreasonable classification, and thus to
be void. The situation in that case was closely analagous
to that in the case at har, and the language of the Indiana
Court is directly applicable here:
“ So, if the legislative intent, . . . was to authorize the
School Board to classify its teachers, it necessarily fol
lows that such classification must be reasonable, nat
ural, and based upon substantial difference germane to
the subject . . . The compensation of appellge was
fixed by the board, partly at least upon the fact that she
was married. This, in our opinion, was unlawful and
arbitrary, and formed no rational basis of classifica
tion. It had no reasonable relation to the work assigned
to her, as the fact that appellant was a married woman
did not affect her ability to impart knowledge or per
form her duties in the school room. It is conceded that
her marriage status has no such effect and, if not, there
could be no just or reasonable basis for the school board
classifying her as far as compensation is concerned, in
a different and lower class than an unmarried female
teacher having like qualifications and doing like work. ’ ’
(8 N. E. (2d) at 820.)
A fortiori, discrimination based on race or color is arbi
trary and unreasonable, and therefore is unconstitutional.
D. The Equal Protection Clause of the Fourteenth Amend
ment Prohibits Such Discrimination Against Appellant
Alston as a Taxpayer
In addition to his right as a citizen of the United States
and a teacher by occupation and profession to maintain this
action, appellant Alston also bases his right to the relief
prayed for upon the fact that he is a taxpayer. As a tax
payer he is required to contribute to the public tax fund,
a portion of which is used for public schools. As a teacher
in the public schools he has a right to share in this fund
without discrimination because of his race or color. Any
illegal action on the part of the appellees in the distribution
of this fund directly affects appellant Alston and is an
injury peculiar to him as a taxpayer who is also a teacher.
20
The right of a citizen, resident and taxpayer to attack
the unconstitutional distribution of public funds has been
clearly established. In the case of Claybrooh v. City of
Owensboro, 16 F. 297 (D. C. Ky., 1883), the General As
sembly of Kentucky passed an act authorizing a municipal
corporation to levy taxes for school purposes and to dis
tribute taxes from white people to the white schools, and
taxes from the colored people to colored schools. Residents
of the City of Owensboro filed a petition for an injunction
in the District Court restraining the distribution of these
taxes on this basis. The Court in granting the injunction
prayed for stated that:
“ The equal protection of the laws guaranteed by this
Amendment means and can only mean that the laws of
the states must be equal in their benefit as well as equal
in their burdens, and that less would not be ‘ equal pro
tection of the laws. ’ This does not mean absolute equal
ity in distributing the benefits of taxation. This is im
practicable; but it does mean the distribution of the
benefits upon some fair and equal classification or
basis.” (16 Fed. at 302)
See also: Davenport v. Cloverport, 72 Fed. 689, (D. C.
Ky. 1896); Puitt v. Commissioner of Gaston County, 94 N. C.
709, 55 Am. R. 638 (1886).
The law sustaining this case is well established and was
recognized in Virginia in 1883 by the case of Roper v. Mc
Whorter, 77 Va. 214 (1883):
“ . . . In this country the right of property-holders or
taxable inhabitants to resort to equity to restrain mu
nicipal corporations and their officers, and quasi cor
porations and their officers from transcending their
lawful powers or violating their legal duties in any
way which will injuriously affect the taxpayers, such
as making an unauthorized appropriation of the cor
porate funds, or an illegal disposition of the corpo
rate property, . . . has been affirmed or recognized in
numerous cases in many of the states. It is the prevail
ing doctrine on the subject.” (77 Va. at p. 217.)
21
This rule of law as applied in Virginia is the prevailing
doctrine today as to public schools:
“ Except as relief may be denied where the act com
plained of does not affect the taxpayer with an injury
peculiar to himself, it has been held that the authorities
of a school district may be enjoined at the suit of tax
payers from making any illegal or unauthorized appro
priation, use, or expenditure of the district funds, as
where there is a threatened use or expenditure of funds
for an illegal or unauthorized purpose, or a threatened
diversion of funds. ” 56 C. J., Schools and School Dis-
tricts, sec. 906, page 764.
In the case of Oehler v. City of St. Paul, 174 Minn. 410, 219
N. W. 760 (1928), the court upheld an injunction restraining
the appointment to a civil service position without meeting
civil service requirements, stating:
“ It is well settled that a taxpayer may, when the situ
ation warrants, maintain an action to restrain unlawful
disbursement of public moneys . . . as well as to restrain
illegal action on the part of public officials.” (219 N. W.
at p. 763.)
In the case of Tuttle v. Beem, 144 Ore. 145, 24 P. (2d)
12 (1933), taxpayers were granted an injunction to enjoin
the local school district from unauthorized use of public
funds for digging a well.
I In the case of Anderson v. Fuller, 51 Fla. 380, 41 So. 684
(1906), it was held that taxpayers may sue to enjoin public
officers from paying money under an illegal contract. In
this case the contract was let without competitive bidding.
In Board of Education v. Arnold, 112 111. 11 (1884), an
action by a taxpayer, an injunction was granted preventing
the payment of a teacher who had no certificate from the
county superintendent.
And a taxpayer was held entitled to an injunction against
a school district to prevent the employment of a teacher
whose employment was voted down by a majority of the
22
district. O’Brien v. Moss, 131 Ind. 99, 30 N. E. 894, (1892).
A taxpayer was held entitled to maintain an injunction
to restrain the payment of a warrant for a school teacher’s
salary which was illegal. Black v. Ross, 37 Mo. App. 250
(1889). The court said:
“ If the defendants, as directors of the school dis
trict, were about to make an unlawful and unauthorized
disposition of the public school fund, an injunction was
the only adequate remedy afforded the individual tax
payer, to prevent the illegal diversion.”
The Facts Alleged in Appellant Alston’s Pleading Do Not
Constitute a Waiver of His Right to the Relief
for Which He Prays
In considering the issue of waiver it is and must be as
sumed that racial discrimination in fixing the salaries of
public school teachers violates the equal protection clause
of the Fourteenth Amendment. But admitting such un
constitutionality the District Court concluded that appellant
Alston had waived his right to complain of the unconstitu
tional discrimination.
Scope of Present Waiver Issue
Paragraph 10 of the complaint (Appendix, p. 43) alleges
that appellees are under a statutory duty to employ teachers
and to provide for the payment of their salaries, citing,
inter alia, Section 786 of the Virginia School Laws which
provides in part that,
“ The City school board of every city shall . . . have
the following powers and duties. . . . Third. To em
ploy teachers . . . Twelfth. To . . . provide for the
pay of teachers . . . ”
It is further provided in Section 664 that
23
“ Written contracts shall be made by the school board
with all public school teachers before they enter upon
their duties, in a form to be prescribed by the Super
intendent of Public Instruction.”
Paragraph 15 of the complaint (Appendix, p. 45) alleges
that appellant Alston
“ is being paid by the defendants for his services this
school year as a regular male high school teacher as
aforesaid an annual salary of $921.”
Thus, from the complaint and the above quoted language
of applicable Virginia statutes it seems a proper conclusion
that appellant Alston is employed during the current year
pursuant to a contract of hire and at an annual salary of
$921. Moreover, in a preliminary proceeding in the nature
of a hearing on motion to dismiss the complaint it seems
proper that the court determine whether any conclusion of
law fatal to the plaintiff’s case follows from the facts out
lined above. To that extent, and to that extent only, the
question of waiver was before the District Court and is in
issue upon the present appeal.
It is to be noted that so much of the “ Second Defense”
in the answer as raises the issue of waiver is in form a
defense in law in the nature of a motion to dismiss, but in
substance it combines a challenge to the sufficiency of the
complaint with an introduction of new matter in the nature
of an affirmative defense. Thus, the sub-paragraphs num
bered (4) and (5) (Appendix, p. 55) go beyond an allega
tion that acceptance of employment by the appellant is a
waiver of the rights asserted in his complaint. These
sub-paragraphs refer to the specific contract of the appellant
and incorporate by reference an attached document de
scribed as a copy of his contract. In thus going beyond the
fact of employment pursuant to a contract of hire as already
revealed by the complaint and pertinent statutes, and
in attempting to put in issue the terms of a particular
contract, the circumstances of its execution and any legal
24
conclusions that may depend upon such terms and cir
cumstances, the appellees have introduced an affirmative
defense. Under Rule 8(c) of the Federal Rules of Civil
Procedure, such new matter is deemed to be denied without
reply. Indeed, no reply is permitted except by order of the
court. See Rule 7(a). Therefore, the new matter alleged
in the answer was not before the court on a motion to dis
miss and is not material to the present appeal.
In brief, the question now at issue is whether the facts
(1) that appellant’s status was created by a contract of
hire and (2) that he has been employed for a definite salary,
operate as a matter of law to preclude this suit. Clearly the
answer to this question is in the negative and, therefore,
the appellants contend that the judgment of the District
Court cannot be sustained. Even if the answer to this ques
tion should be—and the appellants do not concede the cor
rectness of such an assumption—that the circumstances of
the particular hiring must be considered before the issue
of waiver can be decided, the judgment of the District Court
is in error because such an issue can be determined only
by a hearing on the merits.
A. The Contract of Hire Is Not Affected hy the Relief
Sought
No modification of the contract of hire is sought in this
case. The appellants ask for declaratory relief in the
form of a decree that the policy, custom and usage of dis
crimination in salary schedules solely on the basis of race
and the actual discrimination against them solely on ac
count of their race are a denial of equal protection of the
laws. Injunctive relief is sought in the form of a decree
restraining the appellees from applying the discrimina
tory salary schedule and from continuing the practice of
racial differentials in teachers’ salaries.
It is to be emphasized that under the prayers of the com
plaint the appellees would be left free to determine the
actual salary of each teacher on any basis other than race.
Certainly the Court is not asked to amend any contract or
to determine the wage to be paid to any teacher.
Moreover, although the appellants seek immediate relief
they complain of a continuing wrong. They have a very
real interest in protection against the continuation of this
discrimination from year to year in the future. It is within
the discretion of a court administering equitable relief to
determine whether its injunctive decree shall impose an
immediate restraint or whether the decree shall become
operative at some other date determined in the light of
the equities of the case before it. Thus, in Mills v. The
Board of Education, supra, under prayers essentially simi
lar to those in the present case, the court declared the un
constitutionality of a racial salary differential and re
strained its continuance as of the beginning of the next
school year.
The value of such a prospective decree and the interest
of the appellants in obtaining such prospective relief, if
the court in its discretion should thus postpone the oper
ation of its decree, are apparent. A teacher has a reason
able expectancy of reemployment from year to year, par
ticularly such a teacher as the appellant Alston, who has
been employed continuously for the past five (5) years
(Appendix, p. 44). Yet his opportunity to bargain for and
to obtain compensation for the next year is impeded by the
existing salary schedule and by the custom and practice of
paying colored teachers less than white teachers solely
because of their race. That this impediment is an effective
barrier is shown by appellees ’ denial of appellant Alston’s
petition for the discontinuance of the racial salary differ
ential at the beginning of the present school year (A p
pendix, p. 50) and by the denial of a similar petition of
another Negro school teacher at the beginning of the
preceding year. (Appendix, p. 50.)
Thus, the waiver argument is but colorable at best since
the court is not asked to modify any contract; and with
26
reference to possible prospective relief for the next school
year the waiver argument has no basis whatever. Yet, the
contention of appellees and the holding of the District Court
seem to be that the appellant Alston is precluded from ob
taining immediate relief because he is under a contract of
employment for the current school year, and that he is pre
cluded from obtaining any prospective relief which will
benefit him in bargaining for compensation for next year
because he is not now under contract for that year. In
brief, the decision below puts him in the dilemma of being
unable to acquire such a status and interest as will give him *
standing to challenge a constitutional wrong without
waiving his objection to that wrong.
B. The Doctrine of Waiver Has Been Held Inapplicable to
Analogous Dealings with Public Authorities
The cases generally hold that the acceptance of public
employment at a particular salary is no waiver of the right
subsequently to object to the unconstitutionality of unlaw
ful conduct of public administrative officers in fixing that
salary. Cases involving various contractual relations with
agencies of the state are in accord. In the cases which
follow, courts have gone far beyond any relief sought in the
present case and have actually modified contracts of public
employment and other contracts with public agencies.
Courts have granted relief against discrimination be
tween salaries of men and women teachers, or between the
salaries of married and single women, imposed by public
authority contrary to law, despite the complainants ’ agree
ments to accept a discriminatory salary.
Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937);
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S.
265; rev’d on other grounds, 245 N. Y. 106 (1927);
Rockwell v. Board of Education, 125 Misc. 136, 210
N. Y. S. 582; rev’d on other grounds, 214 App. Div.
431, 212 N. Y. S. 281 (1925).
27
Cf.: Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d)
27 (1933).
To the same effect are the cases in which a teacher has
complained of an illegal retirement deduction or other de
nial of benefits incidental to his employment accomplished
by imposition of the school authorities, but ivitli his formal
consent.
Minnesota ex rel. Jennison v. Rogers, 87 Minn. 130,
91 N. W. 438 (1902)
Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E.
109 (1901)
School District v. Teachers’ Retirement Fund Assn.,
Ore. —, 95 P. (2d) 720, 96 P. (2d) 419 (1939).
The same conclusion is reached in the long line of cases
involving agreements to accept less than the statutory sal
ary of a particular office.
Glavey v. United States, 182 U. S. 595 (1901)
Miller v. United States, 103 Fed. 413 (1900)
Settle v. Sterling, 1 Idaho 259 (1869)
Whiteley County Board of Education v. Rose, 267 Ky.
283, 102 S. W. (2d) 28 (1937)
People ex rel Satterlee v. Board of Police, 75 N. Y. 38
(1878)
Cf.: Pederson v. Portland, 144 Ore. 437, 24 P. (2d)
1031 (1933) (Alleged waiver of double compensation
for overtime)
Courts have not hestitated to invalidate bargains between
public officers and independent contractors upon the com
plaints of such contractors that the contracts signed by them
contained terms which the public authorities had imposed
in violation of some constitutional or other legal right.
28
Lukens v. Nye, 156 Cal. 498, 105 Pac. 593 (1909)
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E.
716 (1901)
City of Cleveland v. Clements Bros. Construction Co.,
67 Ohio St. 197, 65 N. E. 885 (1902)
R atio n ale of t h e D ecisions
Considerations of equity and public policy underlie the
refusal of courts to recognize any waiver or estoppel in
these cases. fi
Where a statute or administrative order or regulation
requires the discriminatory or otherwise illegal action in
question, the person dealing with the public agency has no
such choice or freedom of bargaining with reference to
that phase of the transaction as will on equitable principles
create an estoppel. The subject matter in question has been
removed from the area of free bargaining by the illegal
conduct of the state or its agents. The illegal element in
the transaction is present not because of voluntary agree
ment of the parties that it be there but because govern
mental authority has required that it be there.
See Minnesota ex rel. Jennison v. Rogers, supra
City of Cleveland v. Clements Bros., supra
Whiteley County Board of Education v. Rose, supra
The fact that appellants are met at the threshold of their
transaction with the state by a schedule and a practice of
race discrimination in salaries leaves them only the alter
natives of foregoing employment altogether or accepting
employment under conditions of discrimination. This situ
ation is emphasized by the fact, pleaded by the appellants
(Appendix, p. 50) that a petition filed by a Negro school
teacher on behalf of herself and the other Negro teachers
of Norfolk in October, 1939, requesting the elimination of
racial salary differentials was denied. In such circum
stances submission to discrimination cannot be said to be
29
voluntary in the sense in which a choice must be voluntary
to constitute a waiver of objection to the imposed condition.
“ Were the rule otherwise it would be comparatively an
easy matter for the governing authorities to take ad
vantage of an officer dependent upon his salary for a
livelihood and virtually compel him to forego his con
stitutional right.” Whiteley County Board of Educa
tion v. Rose, 102 S. W. (2d) at p. 30.
A comparable and analogous situation arises when a state
imposes upon a foreign corporation, as a condition of con
tinuation in business within its borders, the payment of a
tax which denies the corporation equal protection of the
laws. The corporation may remain in the state and resist
the tax.
Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926)
Similarly, when the privilege of using the public highway
as a private carrier for hire is conditioned upon the assump
tion of the obligations of a public carrier the entrepreneur
may use the highway in his business as a private carrier
and at the same time resist the unconstitutional condition.
Frost Trucking Co. v. Railroad Commission, 271 U. S.
583 (1926)
“ Having regard to form alone, the act here is an offer
to the private carrier of a privilege, which the state
may grant or deny, upon a condition, which the carrier
is free to accept or reject. In reality, the carrier is
given no choice, except a choice between the rock and
the whirlpool—an option to forego a privilege which
may be vital to his livelihood or submit to a require
ment which may constitute an intolerable burden.”
(271 U. S. at 593)
The court continues with language peculiarly apposite to
the contention of waiver in the present case:
30
“ It is not necessary to challenge the proposition that,
as a general rule, the state, having power to deny a
privilege altogether, may grant it upon such conditions
as it sees fit to impose. But the power of the state in
that respect is not unlimited; and one of the limitations
is that it may not impose conditions which require the
relinquishment of constitutional rights. If the state
may compel the surrender of one constitutional right
as a condition of its favor, it may, in like manner, com
pel a surrender of all. It is inconceivable that guaran
tees embedded in the Constitution of the United States
may thus be manipulated out of existence.” (271 U. S.
at p. 593-4)
Again, the Supreme Court has held in Union Pacific Rail
way v. Public Service Corporation, 248 U. S. 67 (1918), that
in applying for and obtaining a certificate which was a
statutory prerequisite to the issuance of certain bonds, the
corporation did not waive its right to contest the consti
tutionality of the condition thus imposed on it.
“ The certificate was a commercial necessity for the
issue of the bonds. . . . Of course, it was for the in
terest of the company to get the certificate. It always
is for the interest of a party under duress to choose
the lesser of two evils. But the fact that a choice was
made according to interest does not exclude duress. It
is the characteristic of duress properly so called.”
(248 U. S. at p. 70)
The common element of duress resulting from imposition
of economic pressure characterizes the action of the public
authorities in all of these cases as in the case at bar. The
state leaves the constrained person merely a choice be
tween accepting an unconstitutional and otherwise illegal
arrangement on the one hand or suffering serious loss on
the other. No doctrine of waiver founded on equitable
principles can have application in such a situation. ‘ ‘ Guar
antees imbedded in the Constitution of the United States
(cannot) thus be manipulated out of existence.”
In addition to the considerations above presented, the
question of public policy is emphasized in a large number
of decisions against alleged waiver of advantages incidental
to public employment. The courts have reasoned that the
deprivation of rights to salary or other benefits incidental
to public employment, or incidental to some other public
relationship, involves not only the individual interest of
the person immediately effected, but also the public interest
in the public activity in which that person is engaged.
Thus, in the already cited cases of statutory salaries the
courts agree that there is a controlling public interest in
the protection of the public service against the demoralizing
effect of salary reductions below the amount legislatively
determined to be adequate, and that no waiver by the in
dividual employee can be effective in such circumstances.
To the same effect is School District v. Teachers’ Retirement
Fund Assn., supra, where a teacher’s express waiver of
his right to certain disability compensation was held to he
against public policy and therefore ineffective.
The case at bar involves the very important public in
terest in maintaining an effective public school system and
in providing equal educational opportunities for white and
colored children. Express declarations of such interest and
policy appear in Section 129 of Article IX of the Constitu
tion of Virginia and in Sections 680 and 786 of the School
Code of Virginia.
“ The general assembly shall establish and maintain
an efficient system of public free schools throughout
the State.” Va. Const., Art. IX, Sec. 129.
City school boards are required to
“ . . . establish and maintain . . . a general system
of public free schools in accordance with the require
ments of the constitution and the general educational
policy of the Commonwealth.” Va. School Code, Sec.
786.
32
‘ ‘ White and colored children shall not be taught in the
same school, but shall be taught in separate schools,
under the same general regulations as to management,
usefulness and efficiency.” Va. School Code, Sec. 680.
While colored teachers are held to the same professional
standards as white teachers and many colored teachers
manage to continue their professional studies so as to
achieve efficiency beyond the requirement of their classi
fication, it cannot be denied that the general effect of sub
stantial salary discrimination is to impose a barrier of
economic disadvantage which impedes the professional and
scholarly advancement of those who teach colored children.
The imposition of such a handicap upon the whole body of
teachers in colored schools is in plain derogation of the
legislative policy of maintaining an efficient school system
and the more specific policy of equality in educational facili
ties for white and colored children. It is also noteworthy
that, since on the record race and color are admitted to be
the sole basis of the unlawful discrimination, there is not
even a design to promote any public interest through this
discrimination.
For these reasons, public policy alone is a sufficient basis
for judicial refusal to impose any estoppel or waiver upon
a teacher who complains of unconstitutional salary dis
crimination against Negro teachers.
C. Decision on the Waiver Issue Was Erroneously Based
Upon Facts Not Before the District Court
The foregoing discussion of waiver presupposes that a
decisive answer on the question of waiver or estoppel can
be given on the appellants’ complaint and applicable stat
utes. Appellants, for the reasons hereinbefore presented,
contend that it is clear that no waiver results from the con
duct of appellant Alston. Appellees, on the other hand,
contend that employment pursuant to a contract of hire
results as a matter of law in waiver of the rights herein
asserted. But the District Court took an intermediate posi
tion,—that waiver is a question to be determined upon the
facts of the particular hiring. The following excerpts from
the opinion of the District Court show that court’s approach
and analysis:
“ A defense set up in the answer . . . and which stands
out in the record as an undisputed fact, is that some
time before this suit was instituted the plaintiff entered
into a contract with the defendant school board, which
contract covers the subject matter of this litigation. . . .
“ A copy of that contract is in the record before the
court. There is an absence of any claim that I can find
in the complaint to the effect that the plaintiff was in
duced to enter into the contract by fraud, misrepre
sentation or that it was entered into under duress or
that any unfair means were employed by defendants
in that behalf, or that it was ever made or signed under
protest. . . . I am fully aware of the fact that in situ
ations of this kind it sometimes happens that the em
ployee is at a distinct disadvantage, is not in a position
boldly to assert what he conceives to be his rights, and
does not, in fact, therefore, contract freely with the
other party. But I do not find in the record any facts
that have been pleaded by way of explanation that could
reasonably justify the court in reaching the conclu
sion that it ought to disregard the written contract and
further proceed in the case in spite of the fact that
the plaintiff voluntarily entered into such contractual
relation with the defendants. ’ ’ (Appendix, pp. 61-62.)
The error of this analysis, in addition to the mistaken
premise that the issue of waiver in this type of case cannot
be dismissed without consideration of the details of the
particular hiring, is that new matter, pleaded in the answer
and an exhibit to the answer, is used as the factual basis of
decision on a motion to dismiss the complaint. It is beyond
question, both before and since the adoption of the present
Rules of Civil Procedure, that such pleadings and exhibits,
extrinsic of the complaint, cannot be considered on a motion
to dismiss.
34
Cf.: Polk v. Glover, 305 U. S. 5 (1938)
Gibbs v. Buck, 307 U. S. 66 (1939)
Joyner v. Browning, 30 F. Supp. 512 (D. C. W. D.
Tenn., 1939)
As heretofore pointed out, the terms and circumstances
of hiring pleaded in the answer represent an attempt to as
sert an affirmative defense, and under Civil Rule No. 7(a)
such new matter is deemed denied without reply. If the
terms of the particular hiring are material, or if the con
duct of the parties prior to and at the time of the particular t
hiring have any legal significance in a case of this char
acter, then decision on the issue of waiver should have been
for the appellants on preliminary hearing, with ultimate
decision on the issue reserved for determination after a
final hearing on the merits.
At such a hearing the appellants would have been prepared
to show, in addition to the petitions of Aline Black and the
appellant Alston in 1938 and 1939 for removal of racial
discrimination in salaries, and such other matters as are
already pleaded in the complaint, the following facts:
(1) That at the time he signed the contract in question
appellant Alston knew that Aline Black, a teacher in
the same building with him, very recently had been
denied reemployment because of her efforts to have
racial discrimination in salaries discontinued.
(2) That appellant Alston is dependent upon his salary
as a teacher for his livelihood and faced the prospect
of destitution if he should not have been reemployed.
(3) That the appellees had caused appellant Alston
to believe, and reasonably so, that any protest made
by him before the execution of his contract would re
sult in his being denied reemployment.
35
(4) That the contract of the appellant Alston contains
a clause which is properly construed as giving the
appellee school board an absolute right to increase or
decrease his salary for any reason on one month’s
notice.
(5) That before the tender of teachers’ contracts for
the year 1939-40 the appellee school board by formal
resolution fixed the precise salary to be stipulated in
the contract of each teacher, including appellant Alston.
(6) That the aforesaid action of the board left appel
lant Alston and the person tendering a contract to him
on behalf of the board powerless to change or bargain
with reference to the terms of hiring.
(7) That before receiving any salary or other benefit
under his contract appellant Alston, seasonably and
at the first reasonable opportunity petitioned the board
to reconsider its action in fixing salaries on a discrimi
natory basis.
Thus, even on the District Court’s analysis of the waiver
issue, appellants were denied their lawful opportunity and
valuable right to contest an affirmative defense on its
merits.
I l l
There Is No Merit in the Other Purported Defenses of Law
Raised by the Answer and Not Relied Upon
in the Argument
A. An Amount in Controversy to Exceed $3,000 Is Not
Required to Confer Jurisdiction in This Case
At the hearing on the Motion to Dismiss the appellees
properly disclaimed any reliance upon the contention raised
by paragraph (a) of their “ First Defense” (see Appendix,
p. 54).
The federal courts have repeatedly asserted that in a
suit to vindicate the denial of civil rights guaranteed under
36
the Constitution and laws of the United States no monetary
value, in terms of exact measurement, can be placed upon
such rights, and they will therefore be presumed to have
a value in excess of the jurisdictional amount, if such valu
ation be necessary.
Glenwood Light and Water Co. v. Mutual Light, Heat
and Power Co., 239 U. S. 121 (1915)
Wiley v. Sinkler, 179 U. S. 58 (1900)
Swafford v. Templeton, 185 U. S. 487 (1902)
International News Service v. Associated Press, 248
U. S. 215 (1918)
However, it has likewise been repeatedly asserted, by the
federal courts, that in actions for the deprivation of civil
rights and liberties the statutes of the United States confer
jurisdiction upon the federal courts irrespective of the
amounts in controversy or whether any amount of damage
is averred. Section 24 (1) of the Judicial Code (28 U. S. C.,
Sec. 41 (1)) is followed by a series of situations excepted
from the requirements of the jurisdictional amount. Among
these is the 14th subdivision upon which appellants rely:
“ Suits to redress deprivation of civil rights. Four
teenth. Of all suits at law or in equity authorized by
law to be brought by any person to redress the depriva
tion, under color of any law, statute, ordinance, regu
lation, custom, or usage, of any State, or any right,
privilege, or immunity, secured by the Constitution
of the United States, or of any right secured by any
law of the United States providing for equal rights of
citizens of the United States, or of all persons within
the jurisdiction of the United States.”
The courts have without hesitancy applied this section,
and stated that the amount in controversy is not material.
Davenport v. Cloverport, supra.
Broom v. Wood, 1 F. Supp. 134,136 (1931)
Mills v. Board of Education, etc., supra.
Hague v. Committee for Industrial Organization, 307
U. S. 496, 519 (1939)
37
In the last cited case, the most recent opinion of the
Supreme Court on the subject, Mr. Justice Stone said:
‘ ‘ As will presently appear, the right to maintain a suit
in equity to restrain state officers, acting under a state
law, from infringing the rights of freedom of speech
and of assembly guaranteed by the due process clause,
is given by Act of Congress to every person within the
jurisdiction of the United States, whether a citizen or
not, and such a suit may be maintained in the district
court without allegation or proof that the jurisdictional
amount required by section 24 (1) of the Judicial Code
Jl is involved. . . .” (Italics added.)
B. Appellants Have No Full, Adequate and Complete
Remedy at Law
Presumably appellees, in asserting the existence of a
complete remedy at law, intended to rely upon the proposi
tion that appellants have a legal remedy by mandamus in
the state courts. While this was not argued below, and
therefore, may be deemed to have been abandoned, it is
not considered improper to direct the court’s attention to
two recent cases by the Supreme Court of the United States
which clearly establish that such contention is without
merit. In Di Giovanni v. Camden Ins. Association, 296 U. S.
64, 69 (1935), the court said:
“ It is true, as this Court has often pointed out, that
the inadequacy prerequisite to relief in a federal court
of equity is measured by the character of the remedy
afforded in a federal rather than a state court of law.
(Citing cases) If a plaintiff is entitled to be heard in
in the federal courts he may resort to equity when the
remedy at law there is inadequate, regardless of the
legal adequacy of the legal remedy the state courts may
afford. Otherwise the suitor in the federal courts might
be entitled to a remedy in equity which the federal
courts of law are not competent to give, or, on the other
hand, be obliged to forego his right to be heard in the
38
federal courts in order to secure an equitable remedy
which the state courts of law do but the federal courts
of law do not give. ’ ’
In Petroleum Exploration Inc. v. Public Service Com
mission, et al., 304 U. S. 209, 217 (1937), the court said:
“ It is settled that no adequate remedy at law exists,
so as to deprive federal courts of equity jurisdiction,
unless it is available in the federal courts.”
It is well settled by a long course of judicial decisions that
an original writ of mandamus does not lie within the juris
diction of the federal courts conferred by Section 24 (1)
Judicial Code (28 U. S. C. A. 41 (1)).
Knapp v. Lake Shore, etc. Ry. Co., 197 U. S. 536 (1905)
American Union Telegraph Co. v. Bell Telephone Co.,
1 F ed .698 (1880)
M ’Intire v. Wood, 7 Cranch 504, (1813)
Smith v. Bourbon County, 127 U. S. 105, (1888)
Lacking an adequate remedy at law in the federal courts
appellants cannot be denied their right to resort to that
sovereignty for equitable relief because some other sov
ereign offers aid of a different sort.
C. The Plea of Res Judicata Is an Affirmative Defense and
Not Now Before the Court
The plea of res judicata was properly ignored by the
court below. Res judicata is an affirmative defense (Civil
Rules 8 (c)) and the District Court did not have the opin
ion or pleadings in the Black case before it. A document
purporting to be the final order therein is attached as an
exhibit to the answer, but, under the rules, was not before
the court for consideration.
At the proper time, upon a hearing on the merits, the
defense will fail (a) because the Black case was not decided
upon the merits but on a question of availability of man
damus as a remedy under Virginia law, and (b) because
the appellants here were neither party nor privy to that
litigation.
CONCLUSION
A constitutional issue of great importance to the parties
and to the public is presented by this litigation. The effect
of the decision of the trial court is to place material damage
resulting from violation of Constitutional right beyond judi
cial cognizance. No conduct of appellants requires or war
rants such a result. While justice remains the end of law,
such a decision as is here challenged cannot be consistent
with law.
Respectfully submitted,
O liver W . H il l ,
T hurgood M a r sh a ll ,
L eon A. R a n so m ,
W il l ia m H . H a stie ,
Counsel for Appellants.
117 E. Leigh Street,
Richmond, Va.
40
APPENDIX
[Caption]
Complaint
1. The jurisdiction of this court is invoked under Judicial
Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a
suit in equity which arises under the Constitution and/or
laws of the United States, viz., the Fourteenth Amendment
of said Constitution and/or Sections 41 and 43 of Title 8
of the United States Code, wherein the matter in contro
versy exceeds, exclusive of interest and costs, the sum of
$3000. The jurisdiction of this court is also invoked under
Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14),
this being a suit in equity authorized by law to be brought
to redress the deprivation under color of law, statute, regu
lation, custom and usage of a State of rights, privileges and
immunities secured by the Constitution of the United
States, viz., the Fourteenth Amendment to said Constitu
tion, and of rights secured by laws of the United States
providing for equal rights of citizens of the United States
and of all persons within the jurisdiction of the United
States, viz., Sections 41 and 43 of Title 8 of the United
States Code.
2. Plaintiffs show further that this is a proceeding for a
declaratory judgment and an injunction under Section 274D
of the Judicial Code for the purpose of determining a ques
tion in actual controversy between the parties, to-wit, the
question of whether the practice of the defendants, in
adopting, enforcing and maintaining the policy, custom
and usage by which plaintiffs and other Negro teachers and
principals in the public schools of the City of Norfolk are
uniformly paid lower salaries than white teachers and prin
cipals in the City of Norfolk possessing the same profes
sional qualifications and certificates, exercising the same
duties and performing the same services, solely on account
of their race and color is unconstitutional and void being a
41
violation of the Fourteenth Amendment to the United
States Constitution and the laws of the United States and
the Constitution and Laws of the Commonwealth of Vir
ginia, all of which will appear more fully hereafter.
3. All parties to this action, both plaintiffs and defend
ants, are citizens of the United States and of the State of
Virginia and are resident and domiciled in said State.
Defendant School Board of the City of Norfolk at all times
mentioned herein was and is by law declared a body cor
porate.
4. Plaintiff, Melvin 0. Alston, is colored, a person of
African descent and of Negro blood. He is a tax payer of
the City of Norfolk and the State of Virginia. He is a
regular teacher in the Booker T. Washington High School,
a public high school located in Norfolk, Virginia, main
tained and operated by the School Board of the City of
Norfolk. This suit is brought on his own behalf and also
on behalf of other persons, citizens and residents of the
State of Virginia, namely, teachers and principals in the
colored schools of Norfolk, Virginia, similarly situated and
affected, as will hereinafter more fully appear.
5. Plaintiff, Norfolk Teachers’ Association, a voluntary
unincorporated association, is composed of Negro teachers
and principals in the public colored schools of Norfolk, V ir
ginia, organized for the mutual improvement and protection
of its members in their profession as teachers and principals
in the public schools of Norfolk, Virginia.
6. Defendant School Board of the City of Norfolk exists
pursuant to the laws of Virginia as an administrative de
partment of the State of Virginia discharging governmental
functions (Constitution of Virginia, Article IX, Section
133; Code of Virginia, Chapter 35, Sections 774-776).
Defendant C. W. Mason is Superintendent of Schools of
Norfolk and holds office pursuant to the Constitution and
laws of Virginia as an administrative officer of the public
42
free school system of Virginia (Constitution of Virginia,
Article IX, Section 133; Code of Virginia, Chapter 34, Sec
tion 774). C. W. Mason is made a defendant herein and is
sued in his official capacity.
7. The State of Virginia has declared public education a
State function. The Constitution of Virginia, Article IX,
Section 129, provides:
“ Free schools to be maintained.—The general assem
bly shall establish and maintain an efficient system of
public free schools throughout the State.” 4
Pursuant to this mandate the General Assembly of Virginia
has established a system of free public schools in the State
of Virginia according to a plan set out in Chapters 34 and
35 of the Virginia Code of 1936, and supplement thereto
of 1938. Provision has been made for the establishment of
separate schools for white and colored persons with the
positive duty of maintaining these separate schools under
the same general regulations as to management, usefulness
and efficiency (Virginia School Code, Section 680). The
establishment, maintenance and administration of the pub
lic school system of Virginia is vested in a State Board of
Education, a Superintendent of Public Instruction, division
superintendent of schools and county and city school hoards
(Constitution of Virginia, Article IX, Sections 131-133; ,
Virginia School Code, Chapter 33, Section 611A).
8. All teachers in Virginia, including plaintiffs and other
teachers in Norfolk are required to hold teaching certifi
cates in full force in accordance with the rules of certifica
tion laid down by the State Board of Education (Virginia
School Code, Chapter 33, Section 660). The duty of en
forcing this system is imposed upon the several county and
city school boards including the defendant School Board of
the City of Norfolk (Virginia School Code, Chapter 33, Sec
tion 660.) Negro and white teachers and principals alike
43
must meet the same requirements to receive teachers’ cer
tificates from the State Board of Education, and upon
qualifying are issued identical certificates.
9. The public schools of the City of Norfolk, Virginia, are
under the direct control and supervision of the defendants
acting as an administrative department or division of the
Commonwealth of Virginia (Virginia School Code, Chapter
34, Sections 774-786); the defendants are under a duty to
maintain an efficient system of public schools in Norfolk
(Virginia School Code, Chapter 33, Section 611); Chapter
36, Section 786); and to enforce the school laws of the
Commonwealth of Virginia (Virginia School Code, Chap
ter 33, Section 660; Chapter 35, Section 786).
10. The defendants are under a duty to employ teachers
(Virginia School Code, Chapter 33, Section 660; Chapter 35,
Section 786); and to provide for the payment of teachers’
salaries (Virginia School Code, Chapter 33, Section 656;
Chapter 35, Section 786); including the salaries of the plain
tiffs herein and all other teachers and principals employed
by defendants. The defendants are under a positive duty
to enforce regulations for the employment, remuneration
and dismissal of teachers in Norfolk (Chapter 48, Section
754 of the Charter and General Ordinances of the City of
Norfolk—1920).
11. Defendants over a long period of years have con
sistently pursued and maintained and are now pursuing
and maintaining the policy, custom, and usage of paying
Negro teachers and principals in the public schools of Nor
folk less salary than white teachers and principals in said
public school system possessing the same professional quali
fications, certificates and experience, exercising the same
duties and performing the same services as Negro teachers
and principals. Such discrimination is being practiced
against the plaintiffs and all other Negro teachers and prin
cipals in Norfolk, Virginia, and is based solely upon their
race or color.
44
12. The plaintiff Alston and all of the members of the
plaintiff association and all other Negro teachers and prin
cipals in public schools in the City of Norfolk are teachers
by profession and are specially trained for their calling.
By rules, regulations, practice, usage and custom of the
Commonwealth acting by and through the defendants as its
agents and agencies, the plaintiff Alston and all of the
members of the plaintiff association and all other Negro
teachers and principals in the City of Norfolk are being-
denied the equal protection of the laws in that solely by
reason of their race and color they are being denied com
pensation from public funds for their services as teachers
equal to the compensation provided from public funds for
and being paid to white teachers with equal qualifications
and experience for equivalent services pursuant to rules,
regulations, custom and practice of the Commonwealth act
ing by and through its agents and agencies, the School
Board of the City of Norfolk and the Superintendent of
Schools of Norfolk, Virginia.
13. Plaintiff, Melvin 0. Alston, has been employed as a
regular male teacher by the defendants since September,
1935, and is in his fifth year of experience as a regular
teacher in the Booker T. Washington High School, a public
high school maintained and operated under the direct con
trol, supervision, rules and regulations of the defendants.
He successfully completed the course of instruction pro
vided at Virginia State College for Negroes, an accredited
college maintained and operated by the State of Virginia
for the instruction and preparation of Negroes as teachers
in the public schools of the State. He holds a Collegiate
Professional Certificate, the highest certificate issued by
the Virginia State Board of Education for teaching in the
public high schools of Virginia. In order to qualify for this
certificate plaintiff has satisfied the same requirements as
those exacted of all other teachers, white as well as Negro,
qualifying therefor, and he exercises the same duties and
performs services substantially equivalent to those per-
45
formed by other holders of the said certificate, white as well
as Negro, yet all white male teachers in Norfolk who hold
the said certificate with equal and less experience receive
salaries much larger than the salary paid the plaintiff.
14. White male high school teachers employed by de
fendants whose qualifications, certification, duties and serv
ices are the same as plaintiff’s are being paid by defendants
a minimum annual salary of Twelve Hundred ($1200.00)
Dollars.
|! 15. Plaintiff Alston is being paid by the defendants for
his services this school year as a regular male high school
teacher as aforesaid an annual salary of Nine Hundred and
Twenty-one ($921.00) Dollars, being the amount fixed by
defendants for Negro male high school teachers in their
fifth year of teaching experience and solely because of the
practice, usage and custom complained of in paragraph 11
of this complaint, and by the operation of the discriminatory
salary schedule described in paragraphs 16 and 17 of this
complaint the plaintiffs have been, are, and unless relief
shall be granted by this Honorable Court as hereinafter
prayed, will continue to be denied, solely by reason of race
and color the opportunity to receive a higher salary equal
to that paid to any white teachers similarly situated.
16. Pursuant to the policy, custom and usage set out in
* paragraph 12 the defendants acting as agents and agencies
of the Commonwealth of Virginia have established and
maintained a salary schedule used by them to fix the amount
of compensation for teachers and principals in the public
schools of Norfolk which discriminates against plaintiffs
solely because of their race or color. All teachers and prin
cipals in the public schools of Norfolk, including the plain
tiffs, have been, are being and will continue to be paid by
defendants pursuant to the following salary schedule
adopted, maintained and being enforced by the defendants
for the school year 1939-1940:
46
Negro—
Elementary
S a la r ie s n o w
b e in g p a id
te a c h e r s n e w
t o th e s y s te m
M a x im u m s a la r y
b e in g p a id
(a f fe c t in g o n ly
th o s e in s y s te m
b e fo r e in cr e m e n t
p la n w a s
d is c o n t in u e d )
Normal Certificate $ 597.50 $ 960.10
Degree
High School
611.00 960.00
Women 699.00 1,105.20
Men
White
Elementary
784.50 1,235.00
Normal Certificate 850.00 1,425.00
Degree
High School
937.00 1,425.00
Women 970.00 1,900.00
Men 1,200.00 2,185.00
The practical application of this salary schedule has been,
is, and will be to pay Negro teachers and principals of equal
qualifications, certification and experience with white teach
ers and principals less compensation from public funds
solely on account of their race or color.
17. The salary schedule set out in paragraph 16 by which
plaintiffs and other teachers and principals in Norfolk are
being paid and are to be paid provides for a higher salary
for Avhite teachers new to the system than for Negro teach
ers new to the system with identical state certificates, exer
cising the same duties and performing essentially the same
services; and a higher maximum salary for white teachers
than for Negro teachers with identical state certificates,
exercising the same duties and performing essentially the
same services; and pursuant to and because of said maxima
and minima white teachers in intermediate salary status are
paid higher salaries than Negro teachers with equivalent
intermediate status and experience, holding identical state
certificates, exercising the same duties and performing es
47
sentially the same services. The said discriminations in and
pursuant to the schedule of salaries being paid and to be
paid are based solely on race or color and amount to an
unlawful discrimination which constitutes a denial of due
process of law and equal protection of the laws guaranteed
by the Fourteenth Amendment to the United States Con
stitution, and is therefore unconstitutional and void.
18. In enforcing and maintaining the policy, regulation,
custom, and usage by which plaintiffs and other Negro
teachers and principals in the public schools of Norfolk are
uniformly paid lower salaries than white teachers and
principals possessing the same professional qualifications
and certificates, having the same experience, exercising the
same duties and performing essentially the same services,
solely on account of the race or color of the plaintiffs, de
fendants, as administx-ative agents of the Commonwealth
of Virginia, have violated and are continuing to violate the
equal protection of the laws and due process clauses of the
Fourteenth Amendment to the United States Constitution,
and Sections 41 and 43 of Title 8 of the United States Code.
To the extent that defendants in enforcing said discrimina
tory system are acting under color of statute, regulation,
policy, custom or usage, said statute, regulation, policy,
custom or usage is void and unconstitutional, and to the
extent that defendants may he acting without benefit of
statute, regulation, policy, custom or usage, their acts are
nevertheless acts of the State, similarly void and unconsti
tutional.
19. The salaries of all teachers and principals in the pub
lic schools of the City of Norfolk, including the salaries of
petitioners, are paid out of the public school fund. This
fund derives from two sources: The Commonwealth of Vir
ginia and the City of Norfolk (Virginia School Code, Chap
ter 33, Section 646); all of said public school fund is raised
by means of taxation upon the inhabitants of Virginia and
their property (Constitution of Virginia, Article IX, Sec
48
tions 135, 136; Virginia School Code, Chapter 33, Sections
657, 698, 699; Chapter 35, Section 782). Pursuant to these
statutes all that portion of the public school fund which de
rives directly from the state is used exclusively for the pay
ment of teachers’ salaries (Virginia School Code, Chapter
33, Section 701).
20. Plaintiff Melvin 0. Alston is an owner of property
jointly with other members of his family, a citizen and a
resident of the City of Norfolk, and the Commonwealth of
Virginia, and is a taxpayer in said City and Commonwealth
contributing directly thereby to the creation of said public
school fund and the payment of teachers’ and principals’
salaries, including his own. The property of plaintiff Al
ston is taxed equally and in the same proportion as that of
all other citizens, residents and property owners of the
City of Norfolk and the Commonwealth of Virginia; no
discrimination is made in the rate of taxes he is required to
pay into the said public school fund on account of his race
or color. Under the Constitution of Virginia said public
school fund is to be administered for the equal benefit of all
the people of the State (Constitution of Virginia, Article
IX, Section 135.)
21. By virtue of the discriminatory salary schedule for
teachers established and maintained by the defendants,
hereinbefore set forth in paragraph 16, and the custom set
out in paragraph 12, the plaintiff is denied an equal and
proportionate participation in the benefit derived from that
portion of his taxes devoted to the public school fund and
the payment of teachers’ salaries therefrom; he is denied
said equal and proportionate participation in said benefit
and return solely on account of his race and color, con
trary to the provisions of the Fourteenth Amendment to
the Constitution of the United States and thereby suffers
and sustains special and particular damage from the dis
crimination practiced against him in the distribution of the
fund which his taxes helped to create; and he is Avithout
remedy save this Honorable Court issue its writ of in
49
junction restraining the defendants from distributing on
an unconstitutional basis, and according to the discrimina
tory and unconstitutional salary schedule hereinbefore de
scribed and set forth at paragraph 16, the public school
fund, to which plaintiff contributes, and which is used for
the payment of teachers ’ salaries.
22. The defendants have the official authority and duty
of maintaining the public schools within the corporate limits
of the City of Norfolk (Chapter 48, Section 754 of the
Charter and General Ordinances of the City of Norfolk—
1920); the defendant School Board is required on or before
the first day of October of each year to submit to the City
Manager of the City of Norfolk, Virginia, a detailed esti
mate of its budget for the ensuing school year (Charter of
the City of Norfolk, Section 109, Acts of Assembly of 1918).
The City Manager of the City of Norfolk is required to
submit all estimates, including the estimate of the public
school budget for annual appropriations to the City Council
at least sixty days before the end of the fiscal year (Charter
of the City of Norfolk, Section 67, Acts of Assembly, 1918).
Beginning with January 1, 1920, the fiscal year for Norfolk
begins with January 1 and ends with December 31 of each
year (Charter of the City of Norfolk, Section 69, Acts of
Assembly 1918.) The City Council is required to pass the
annual appropriations at least thirty days prior to the end
of the fiscal year (Charter of the City of Norfolk, Section
68, Acts of Assembly, 1918). The section of the estimate of
the budget for the year 1940 for the public schools of Nor
folk on teachers’ salaries is based upon the discriminatory
salary schedule set out in paragraph 16 of this complaint
and the practice, policy, custom and usage set out in para
graph 12 of this complaint. Unless this Honorable Court
intervenes and grants the relief prayed in this complaint,
the defendants will continue to distribute the public school
fund for the City of Norfolk on the illegal and unconstitu
tional basis set out above to the irreparable injury of the
plaintiffs and others on whose behalf they file this suit.
50
23. A petition on behalf of Aline Elizabeth Black, indi
vidually and on behalf of the Negro teachers and principals,
including the present plaintiffs, was filed with the defend
ants on or about October 27, 1938, requesting that the sal
aries of Negro teachers and principals be equalized with
those of white teachers and principals with equal qualifica
tions and experience and performing essentially the same
duties; the petition was denied and on September 28, 1939,
a similar petition was filed on behalf of the plaintiffs with
the defendant School Board of the City of Norfolk; this
petition requested that present salary schedule be abolished
and that plaintiffs and other Negro teachers and principals
be paid compensation equal to that paid white teachers and
principals with essentially equivalent qualifications and ex
perience and performing essentially equivalent duties; this
petition on or about the 26th of October, 1939, was likewise
refused.
24. Plaintiffs and those similarly situated and affected
on whose behalf this suit is brought are suffering irrepa
rable injury and are threatened with irreparable injury in
the future by reason of the acts herein complained of. They
have no plain adequate or complete remedy to redress the
wrongs and illegal acts herein complained of other than
this suit for a declaration of rights and an injunction. Any
other remedy to which plaintiffs and those similarly situated
could be remitted would be attended by such uncertainties
and delays as to deny substantial relief, would involve mul
tiplicity of suits, cause further irreparable injury, and oc
casion damage, vexation and inconventience not only to the
plaintiff and those similarly situated, but to defendants as
governmental agencies.
25. There is between the parties an actual controversy as
hereinbefore set forth.
WHEREFORE, plaintiffs respectfully pray the Court
that upon filing of this complaint, as may appear proper
and convenient to the Court, the Court advance this cause
51
on the docket and order a speedy hearing of this action ac
cording to law, and that upon such hearings:
(1) That this Court adjudge and decree, and declare
the rights and legal relations of the parties to the sub
ject matter here in controversy, in order that such
declaration shall have the force and effect of a final
judgment or decree.
(2) That this Court enter a judgment or decree de
claring that the policy, custom or usage of the defend
ants in adopting, enforcing, or maintaining a salary
schedule fixing the salaries of the plaintiffs and other
Negro teachers and principals at a rate lower than
that paid to white teachers and principals of equal
qualifications and experience, and performing essen
tially the same duties and services, solely because of
their race or color, is a denial of the equal protection of
the laws guaranteed by the Fourteenth Amendment of
the United States Constitution and is therefore uncon
stitutional and void.
13) That this Court enter a judgment or decree de
claring that the distribution by the defendants of that
portion of the public school fund for teachers’ salaries
on a basis whereby plaintiff Alston and other Negro
teachers and taxpayers receive less salary than white
teachers and taxpayers with equal qualifications and
experience, and performing essentially the same duties
and services solely because of their race or color denies
to plaintiff Alston and others similarly situated the
equal protection of the law and due process of law
guaranteed by the Fourteenth Amendment of the
United States Constitution and is therefore uncon
stitutional and void.
(4) That this Court issue a permanent injunction
forever restraining and enjoining the defendants and
each of them from making any distinction solely on the
grounds of race or color in the fixing of salaries paid
white and colored teachers and principals employed in
the public schools of the City of Norfolk.
52
(5) That this Court issue a permanent injunction
forever restraining and enjoining the defendants and
each of them from paying to plaintiff Alston or mem
bers of plaintiff Norfolk Teachers’ Association or any
other colored teacher or principal employed by them a
less salary than they pay any white teacher or principal
employed by them with equal qualifications, certifica
tion, experience and filling an equivalent position in the
public schools of the City of Norfolk.
(6) Plaintiffs further pray that the Court will allow
them their costs herein and such further, other, addi
tional or alternative relief as may appear to the Court
to be equitable and just.
(Signed) By M e l v in 0 . A l st o n ,
M e l v in 0 . A lsto n
N o rfolk T e a c h e r s ’ A ssociation
(Signed) By M e l v in 0 . A l st o n ,
M e l v in 0 . A l st o n , President
Plaintiffs
53
C o m m o n w e a l t h of V irg in ia
C it y of N orfolk
I, Melvin 0. Alston, having been first sworn according to
law, depose and say upon oath that I am one of the plaintiffs
named in the foregoing complaint; that I have read said
complaint and that the matters and facts set forth therein
are true to the best of my information, knowledge and
belief.
M e l v in 0 . A lsto n
Subscribed and sworn to before me th is------ day of No
vember, 1939, in the City and Commonwealth aforesaid.
My commission expires
Notary Public
J. T h o m as H e w in , Jr.
327 North First Street,
Richmond, Virginia
O liver W . H il l
117 East Leigh Street,
Richmond, Virginia
L eon A . R an som
)■ 1512 Girard Street, N. E.,
Washington, D. C.
W il l ia m H . H a stie ,
1221 Fairmont Street, N. W.,
Washington, D. C.
T hurgood M a r s h a l l ,
69 Fifth Avenue,
New York, N. Y.
Attorneys for Plaintiffs
54
[Caption]
Answer of Defendants
First Defense
The Court lacks jurisdiction over the subject matter, be
cause :
(a) The matter in controversy does not exceed, ex
clusive of interest and costs, the sum of Three Thou
sand Dollars.
(b) There are no grounds upon which to invoke the 4
jui’isdiction of the Court under Judicial Code, Section
24 (14), 28 U. S. C. A. Section 41 (14).
(c) No constitutional rights of the plaintiffs have
been violated.
(d) Plaintiffs have full, complete and adequate rem
edy at law if they have any remedy at all.
(e) For the reasons alleged in the Second Defense
herein.
Second Defense
1. The plaintiffs fail to state a claim upon which relief
can be granted, because:
(1) There is no controversy between the plaintiffs
and defendants that is embraced within the declaratory
judgment Act referred to in the complaint.
(2) The Norfolk Teachers’ Association is an unin
corporated organization and as such is not within the
constitutional provisions referred to in the bill of com
plaint.
(3) The plaintiff, Melvin 0. Alston, as an employee
of the School Board, has no vested rights to any posi
tion to teach in the public schools and a claim in the
55
premises is not within the provisions of the Constitu
tion and Acts of Congress alleged.
(4) By reason of contract in writing dated June 12,
1939, between the plaintiff, Melvin 0. Alston, and said
School Board, a copy of which is attached hereto as a
part hereof, covering his services as a teacher in said
public schools, he is estopped from proceeding in this
cause and has waived any rights, if any he has, in the
premises.
(5) By reason of the contract aforesaid, to grant the
relief requested, the Court would be making a contract,
which the law vests the School Board with the discretion
to make, and would further be impairing the obligation
of the contract heretofore made.
(6) Even if the Court has jurisdiction of the subject
matter involved, nevertheless it has no jurisdiction in
this particular case.
(7) The plaintiff, Melvin 0. Alston, has no vested
right to teach in the public schools of the City of Nor
folk and therefore no rights to be protected by this
Court.
(8) Under the laws of the State of Virginia the said
School Board is authorized and empowered to employ
teachers and fix their compensation, and such being the
l case they have the right to employ them for such salary
as said Board is willing to pay and the teacher to accept.
(9) The operation of the public schools of the State
of Virginia is a State function, and to grant relief in
this case the Court would be interfering with the op
eration of the State in such function.
2. The plaintiffs cannot proceed on behalf of others who
are not named in the complaint.
3. For the reasons alleged in the First Defense.
56
Third Defense
Heretofore, Aline Elizabeth Black, a Negro teacher in
said public schools, brought a writ of mandamus in the Cir
cuit Court of the City of Norfolk against said defendants
seeking the same relief alleged in this complaint, “ in her
own right and on behalf of all such other persons similarly
situated,” and by order of said Court entered on the First
day of June, 1939 (a certified copy of which is attached
hereto and made a part of this answer), such relief was
denied. No appeal was taken from this decree, and under
the laws of the State of Virginia for such cases made and i
provided, the said decree has become final, thereby fully and
completely adjudicating the matters and things set forth
and contained in this complaint.
[Copy]
Contract With Teachers
This Article of Agreement, between the School Board of
Norfolk, Virginia, State of Virginia, of the first part, and
M. 0. Alston, of the second part:
Witnesseth, That the said party of the second part sub
ject to the authority of the said school board under the
supervision and control of the division superintendent
agrees to teach in the schools administered by said school
board under the following conditions; to-wit:
1. The said teacher or party of the second part shall
open and close school on regular school days at such
hours as the school board may designate, and shall give
daily recess with appropriate supervision in accordance
with the recess schedule adopted by the school board,
provided the school day consists of not less than five
hours or more than six and one-half exclusive of the
noon hour recess, when such is provided.
2. The said teacher shall obey all school laws and
regulations and all rules made in accordance with the
57
law by the said school board and shall make promptly
and accurately all reports required by the superin
tendent of schools.
3. Said teacher shall exercise care in the protection
and upkeep of the school property, furniture and fix
tures and shall promptly report to the superintendent
needed repairs or necessary added facilities or supplies.
4. In schools in which no regular janitor is employed
the arrangement for keeping the school clean and in
sanitary condition is stipulated below under special
covenant, number 1.
5. The said teacher hereby swears or affirms alle
giance and loyalty to the Government of the United
States.
6. The school board or party of the first part shall
deduct monthly from the salary of the said teacher a
sum equal to one per centum of the salary, to be placed
to the credit of the Retired Teachers’ Fund and to be
applied as provided by law.
7. The said teacher may be changed from one teach
ing position to a different teaching position by the dh
vision superintendent when the efficiency of the school
system requires such change, and provided proper ex
planation be made to the school board.
8. The said board reserves the right to discuss the
teacher or party of the second part for just cause, an
opportunity on request being granted for a hearing,
paying for services rendered in accordance with this
agreement to date of dismissal. In case schools are
closed temporarily on account of an epidemic or for
other necessary cause the board may pay the teacher for
time lost, or may extend the school term.
9. The said school board or party of the first part
agrees to pay said teacher or party of the second part,
$92.10 per school or calendar month for a term of ten
(10) school or calendar months, beginning on Septem-
58
ber 7, 1939 for a lawful school, for services rendered,
payable on the last day of each school or calendar month
or as soon thereafter as possible. (See special cove
nant, number 3).
SPECIAL COVENANT.
1. With reference to care and cleanliness of school
building and out buildings in which no janitor is em
ployed.
2. With reference to time lost by teacher on account
of sickness or for other cause.
Deduction from salary subject to Rides and Regu
lations of the School Board numbered 25.
3. With reference to shortening the school term in
case funds are exhausted.
The right is reserved to the School Board to in
crease or decrease the salary herein specified for
any month or months immediately after notice to
that effect.
4. Other covenants.
In witness whereof, the parties hereunto have set their
hands and seal, this 12th day of June, 1939.
(Signed) A. H . F o r e m a n ,
Chairman of the Board L.S.
L ea h a H aller
Clerk of the Board L.S.
(Signed) M e l v in 0. A lto n
Teacher L.S.
[Copy]
V I R G I N I A :
In the Circuit Court of the City of Norfolk, on the 1st day
of June, in the year, 1939.
59
Aline Elizabeth Black,
Petitioner
vs.
School Board of the City of Norfolk,
A body corporate, and C. W. Mason,
Superintendent, Defendants
This day came the petitioner and filed her written ex
ception to the ruling of the Court continuing this cause from
April 20, 1939, to May 31, 1939; and came also the defend
ants and filed their separate demurrers and answers to said
petition; and came the petitioner further and filed her
joinder in said demurrers and her replications and joinder
of issues to the separate answers of each of the defendants.
And this cause then came on this day to be heard upon
the petition of the petitioner and the exhibits filed therewith
and upon the demurrers of the defendants filed thereto, and
upon argument of counsel.
Upon consideration of which the Court, for reasons stated
in its opinion which is filed as a part of the record in this
cause, being of opinion that said demurrers should be sus
tained, doth hereby adjudge that the same be sustained, and
that said petition be and the same is hereby dismissed, to
which said ruling of the Court the petitioner, by her counsel,
duly excepted on the ground that the same is contrary to
the law.
And it is further ordered that the defendants recover of
the petitioner their costs in this behalf expended.
A COPY T E ST E :
C ecil M. R obertson , Clerk
By Sue B. Goforth D.C.
[Caption]
Opinion From the Bench
I feel that the Court ought to announce its conclusions
now in the presence of those directly interested in the litiga
tion, rather than defer the decision until a later time. The
60
Court has had the benefit of the briefs for about ten days
and the opportunity to study the pleadings and the briefs
and to make an independent investigation of the law deemed
applicable. I desire to compliment counsel for both sides
upon the able and exhaustive briefs which they have filed and
on the oral arguments made today. The questions presented
and particularly that with respect to the alleged discrimi
nation on account of race or color, are very important.
They are questions which concern this section of the coun
try especially and which must he faced and finally solved in
accordance with the mandates of the Constitution, without
regard to the outcome of this pending case. These conclu
sions can not be doubted by any serious-minded citizen who
has given careful thought to the subject.
As pointed out in the course of the argument today, one
of the questions raised in both the complaint and the an
swer relates to the amount involved in the controversy.
The defendants have very properly conceded that this is not
the type of case which requires the allegation and proof of
any particular amount in order to establish jurisdiction in
this court. The right asserted in the complaint is a civil
right, guaranteed by the Constitution, is excepted from the
provisions of the Act of Congress conferring jurisdiction
based upon the amount in controversy. Consequently no
amount is required to be alleged or proved in order to main
tain a suit based upon an alleged violation of such right,
I do not think that the Court is required, in the view that
it takes of the right of the plaintiff to maintain his suit in
the face of the written contract, to express an opinion in
regard to the most important question involved in cases of
this type. I do not know what facts the proofs would finally
establish, if the case proceeded that far, with respect to the
charge of unconstitutional discrimination against the plain
tiff on account of his race or color. The authorities are
clear, I think however, that there can be no discrimination
in a case of this kind, if such discrimination is based on race
or color alone. Under our Constitution, particularly the
61
Fourteenth Amendment, all citizens stand upon equal footing-
before the law and are entitled to equal benefits and privi
leges where state action is involved; or, to state the proposi
tion another way, a state can not, through its constitution,
statutes, or rules and regulations, or through one of its ad
ministrative bodies, arbitrarily discriminate against per
sons within its jurisdiction. In the words of the Fourteenth
Amendment, a state can not deny to any person within its
jurisdiction the equal protection of the law. That principle
is firmly established, and, if and when a case of discrimina
tion based on race or color is presented, the person discrim
inated against will be granted appropriate relief.
The view that I take of the plaintiff’s case, with some
hesitation I will admit, does not render it necessary for the
Court to pass on the unconstitutional discrimination charged
in the complaint to have been practiced against the plaintiff,
other than to observe that the complaint charges in clear
and explicit language that the discrimination in compensa
tion is based on race or color alone. Under well-established
rules on a motion to dismiss, the court must accept those
allegations as true, because they are well pleaded, as an
examination of the complaint will disclose. That is to say,
when matters are well pleaded in the complaint and a mo
tion to dismiss is filed, based upon the alleged ground that
the complaint fails to show that the plaintiff is entitled to
any relief, the court must assume that the facts well pleaded
in the complaint are true. That, of course, does not mean
that in the event the case proceeds to the taking of testi
mony, that such allegations will still be assumed to be true.
In that event the parties alleging facts will have to establish
their existence by the required degree of proof, but this
case, however, has been heard today upon motion to dismiss
and upon such motion, as already observed, the facts alleged
in the complaint have to be taken as true for the purposes
of the hearing.
A defense set up in the answer which gave me serious con
cern from the first in the examination of the pleadings and
62
briefs, and which stands out in the record as an undisputed
fact, is that some time before this suit was instituted the
plaintiff entered into a contract with the defendant school
board, which contract covers the subject matter of this liti
gation. For the purposes of a decision of this case I think
that the plaintiff Alston and the defendant school board may
very properly be regarded as the persons who are essentially
interested as parties in the outcome.
A copy of that contract is in the record before the court.
There is an absence of any claim that I can find in the com
plaint to the effect that the plaintiff was induced to enter
into the contract by fraud, misrepresentation or that it was
entered into under duress or that any unfair means were
employed by defendants in that behalf, or that it was ever
made or signed under protest. There was the general
charge in the oral arguments today that the plaintiff was
afraid to assert his rights against the defendants, and had
to accept what the defendants offered him or forego follow
ing the profession for which he had prepared himself in life.
And I do not think that this is a suggestion that should be
lightly disregarded by the court. I am fully aware of the
fact that in situations of this kind it sometimes happens
that the employee is at a distinct disadvantage, is not in a
position to boldly assert what he conceives to be his rights,
and does not therefore, in fact, contract freely with the
other party. But I do not find disclosed in the record any
facts that have been pleaded by way of explanation that
could reasonably justify the court in reaching the conclu
sion that it ought to disregard the written contract and fur
ther proceed in the case in spite of the fact that the plaintiff
voluntarily entered into such contractual relation with the
defendants.
It does appear that the plaintiff is a man of intelligence
and excellent education, that he is experienced, that he has
been teaching in the public schools of this City for some
years and was entirely familiar with the alleged unconsti
tutional discrimination against the members of his race
63
long before be accepted the written contract tendered to
him by defendant. Of those facts there can not be the
slightest doubt. Now, there is some persuasiveness in the
argument that he feared to assert his rights, feared that he
might be punishd by the loss of his position, having before
him the unhappy example of another teacher who had
sought to enforce what she conceived to be her constitutional
rights. I say, those matters caused me to hesitate, but I am
satisfied that this plaintiff, and others similarly situated,
each in his individual right, have a remedy if they are here
after unconstitutionally discriminated against, without the
necessity of signing a contract with the Board, a remedy by
which they can go into a court of competent jurisdiction and
have the cases heard and their constitutional rights vindi
cated, if the latter have been violated or are threatened to
be violated in the immediate future.
I do not think a court ought to be quick in any case,
whether it is a case of colored citizens or white citizens, or
individuals or corporations, whether the case relates to
contracts of this kind or contracts in general, to disregard
and set aside the solemn obligations of a contract. On the
contrary, I think it is the duty of the Court, unless it is
clearly shown that the contract is invalid because contrary
to law or other cause, to uphold it, and, as far as it is within
its jurisdiction, to protect its obligations. I do not see, after
a careful study of the authorities relied on by both sides on
that particular point, how the plaintiff can have a valid,
binding contract which he can enforce against the defendant
Board and at the same time be in a position to repudiate
that contract insofar as it is not favorable to him and come
into a court of equity and ask the court to make a different
contract.
Whatever may be the law in other states, there is no
doubt that in Virginia a person can not under the law as it
now exists and has existed for many years, acquire a status
as a teacher, which gives him certain rights that must be
respected, independently of a contract with the Board as a
64
teacher. In Virginia the relation is not a continuing one,
but can be created only by a contract with the School Board
in a particular jurisdiction. It continues for only one
school year at a time, with the absolute right on the part of
the School Board not to contract again with the particular
person. The Board may decline to contract again with such
person without rhyme or reason for such refusal and in that
particular part of the Board’s procedure there manifestly
has been no discrimination on account of race or color, for
the simple reason that the Board can, after the expiration
of the school year, decline to have any further contractual
relations with an applicant to teach, whether such applicant
be white or colored.
But I do not think that even that broad discretion in the
Board would give it the right, after the qualifications of an
applicant had been favorably passed on, found acceptable
and the applicant tendered a written contract to teach, to
say if the applicant then insisted that he be not discrimi
nated against on account of his race or color, that such
applicant was without any remedy because he did not have a
written contract with the Board. In other words, the Board
could hardly be heard to say, as it now does, that a man
had entered into a contract binding upon him and had
thereby waived his right to protest against unconstitutional
discrimination, and later say to an applicant with the
proper qualifications, who had been approved and tendered
a contract, that he had no right because he did not have a
written contract with the Board.
My conclusion, therefore, is that this contract has not
been shown to be invalid in any particular; that it is binding
upon the plaintiff, as well as upon the defendant Board,
plaintiff having signed and entered upon the performance
of the contract two or three months (I do not recall the
exact time) before this suit was instituted; that if the
plaintiff intended to contest the action of the Board with
respect to compensation, it was his duty to take prompt and
appropriate action to that end after he was accepted as an
65
applicant and before he entered into a contract with the
Board for another year. I think that by signing the con
tract and entering upon its performance, he waived the
constitutional right which he now asserts in the complaint.
I think that in principle the case is very much like the case
of the colored man in Missouri (Missouri ex rel Gaines v.
Canada, 305 U. S. 337) would have been if he, instead of
insisting on his constitutional right as he did, had accepted
the substitute offered by the State of Missouri, and had gone
to a university in one of the designated adjoining states to
► study law. In other words, had he accepted the substitute
offered by the State of Missouri, he could not thereafter
have insisted upon his original rights. By declining to ac
cept the substituted privilege he remained in a position to
demand that to which he was originally entitled. That right
was personal to him and it lay within his power alone to de
termine whether he would insist on that right or would
accept a substitute therefor.
In numerous instances citizens understandingly waive
constitutional rights, not necessarily expressly but by their
conduct. For instance, it is fundamental law in this country
that private property can not be condemned for private use,
even for just compensation, yet there are many instances
in which corporations possessing the power of eminent do
main, have condemned private property for private use, or
r in which corporations not possessing the power of eminent
domain have nevertheless condemned private property, and
yet in these cases the condemnor has acquired good title to
the property. The owners had a constitutional right to
object to their property being taken by corporations not
possessing the power of eminent domain or to its being taken
for a private use, yet when they failed to insist upon their
constitutional rights and accepted the compensation
awarded for the property taken, they could not thereafter
deny the title of the condemnor.
Unfortunately, there have been instances in which colored
people have been indicted in courts in which colored citizens
6 6
were systematically excluded from the grand and petit
juries, but I do not recall at this time any instances where
that practice prevailed and a defendant, with knowledge of
the situation, made no appropriate objection to the grand
and petit juries, but stood trial on the merits and was con
victed, that the conviction was set aside because of the viola
tion of the defendant’s constitutional rights in that respect.
It is true that it has been held in many cases, where the de
fendant made timely objection to the grand and petit juries
on the ground that he was being discriminated against be
cause of his race or color, that the convictions were set aside
by the appellate courts. In those instances the conviction
was set aside because the accused had insisted upon his con
stitutional right. An outstanding illustration of the waiver
of constitutional rights may be found in the recently adopted
Rules of Civil Procedure. Nothwithstanding the fact that
the Seventh Amendment to the Constitution preserves the
right of trial by jury in certain classes of cases, under the
express provision of the Rules, unless a party to a civil ac
tion makes timely written demand for trial by jury, he is
deemed to have waived that right. (Rule 38)
It is regretable, in a sense, that the Court can not finally
dispose of all matters in the suit, but will have to dismiss
the case because of what may by some be thought to be a
technicality. A solemn written contract entered into be
tween parties, whether it be between a citizen and an arm of
the state, or between two individuals, or betwen individuals
and a corporation, or between corporations, can in no
proper sense be regarded as a technicality.
[Caption]
Judgment
The Court having suggested, after examination of the
bill of complaint and answer herein that insofar as
defenses in law are raised in the portions of the answer
denominated “ First Defense” , Second Defense” and
“ Third Defense” , the hearing and disposition of the case
67
might be facilitated if argument was made in advance of
trial upon defendant’s motion to dismiss the bill of com
plaint for alleged legal insufficiency and upon that part of
the answer which challenges the legal sufficiency of the
complaint upon the ground that plaintiff had waived his
asserted constitutional right by entering into a contract
with defendant;
And by consent of the parties the case thereafter, on Feb
ruary 12, 1940, came on to be heard upon the defendant’s
motion to dismiss the bill of complaint on the ground of
k legal insufficiency and also so much of the answer as chal
lenges the legal sufficiency of the complaint because of al
leged waiver by entering into said contract, and was fully
argued by counsel, counsel for the respective parties having
theretofore filed their written briefs with the Court;
And the Court being of the opinion that the plaintiff,
Melvin 0. Alston, and the defendant, School Board of the
City of Norfolk, are the only necessary parties to this cause,
and being further of the opinion that plaintiff, Melvin 0.
Alston, having entered into said written contract with the
defendant, School Board of the City of Norfolk, to teach,
wdiich contract is a part of the record in this cause, and
having prior to the institution of this suit entered upon
the performance and partly performed the said written con
tract, has for the reasons stated in the opinion of the Court,
delivered orally at the close of the arguments, waived such
► constitutional rights, if any he has, that he seeks to enforce,
doth so ADJUDGE and DECREE;
And it is accordingly ADJUDGED, ORDERED AND
DECREED that this action be and the same hereby is dis
missed, to which ruling of the Court in dismissing the com
plaint, plaintiff, by counsel, duly objected and excepted.
And it is further ORDERED that the defendants recover
of the plaintiffs their costs in this behalf expended.
(Signed) L u t h e r B. W ay
Norfolk, Virginia, United States District Judge
February 29, 1940.
*
$nttr& £>tate Circuit Court of Appeal*
FOR THE FOURTH CIRCU IT.
M e l v i n O. A l s t o n , and the N o r f o l k
- T e a c h e r s ’ A s s o c ia t io n , an Unincor
porated Association,
Appellants,
vs.
S c h o o l B o a r d o f t h e C it y o f N o r f o l k ,
a Body Corporate, and C. W. M a s o n ,
Superintendent of Schools of Norfolk,
Appellees.
File No.
4623.
BRIEF OF APPELLEES.
A l f r e d A n d e r s o n ,
J o n a t h a n W . O l d , Jr .,
W il l ia m C . C o u p l a n d ,
Counsel for Appellees.
Room 207, City Hall,
Norfolk, Virginia.
JU N
LT D El
SUBJECT INDEX.
Page
Statement of the Case...................................................... 1
Questions Involved........................................................ 3
Statement of Facts........................................................ 4
I. The Appellant Melvin 0 . Alston and the
School Board of the City of Norfolk are the
Only Proper Parties to this Cause.................. 5
II. No Constitutional Rights Violated................. 6
A. School Teacher in Virginia an Employee
of School Board........................................... 6
B. Equal Protection Clause of Fourteenth
Amendment not Applicable........................ 14
C. Appellant Alston has no Standing in the
Case as a Taxpayer....................................... 20
III. Appellant Alston, by Entering into a Con
tract with School Board of City of Norfolk
and Accepting Employment Thereunder,
Has Waived Such Constitutional Rights, if
Any he Has, that he Seeks to Enforce.—...... 21
A. Decision on Waiver Issue by District
Court Properly Based............... 30
IV. Differentiation of the Maryland Cases from
the Instant Case.................................................. 31
A. The Equal Protection Clause of the
Fourteenth Amendment Has No Ap
plication to the Instant Case.................. 32
B. The Appellant Alston has Waived Any
Rights to the Relief for which he Prays.. 34
V. A Mandatory Court Order Does not Lie to
Control a Discretionary Act_______ ______ ~~ 35
VI. Authorities Cited by Appellants...................... 40
Conclusion...............................................-...................... 40
TABLE OF CITATIONS.
Adams, Receiver v. Nagle, 303 U. S. 532, 82 L. Ed.
999................................... ._........................................... 37
American Jurisprudence, Vol. 11, pp. 1170 and 1171..15-22
American Law Reports, Vol. 75, p. 1352................... 10
Bon Ton Cleaners & Dyers, Inc. v. Cleaning, Dye
ing & Pressing Board, 176 Sou. 55.... .................... 24
Broaddus v. Supervisors, 99 Va. 370............. ............ 37
Claybrook v. City of Owensboro, 16 Fed. 297......... 20
Cooley on Constitutional Limitations, Vol. 1, pp.
368 and 369........................... ..................... .............22-23
Corpus Juris, Vol. 12, pp. 769, 770, 744; Vol. 56,
pp. 382, 387, 422.............. __.................. .....11-12-21-22
Davenport v. Cloverbrook, 72 Fed. 689........................ 20
Eustis v. Bolles, 150 U. S. 361, 37 L. Ed. 1111....... 26
Heath v. Johnson, 15 S. E. 980................................... 10
Louisiana v. McAdoo, Secretary, 234 U. S. 627,
58 L. Ed. 1506............. ............................................... 38
Miguel v. McCarl, Comptroller General, 291 U. S.
442, 78 L. Ed. 901..................................................... 36
Mills v. Lowndes, et al., 26 Fed. Supp. 792.............. 31
Mills v. Anne Arundel County Board of Education,
et al., 30 Fed. Supp. 245....................................... .31-34
Mootz v. Belyea, 236 N. W. 358..._____________12-32-34
Mo. ex rel Gaines v. Canada, 305 U. S. 337, 83 L.
Ed. 208____________________ 5-21
Palumbo v. Fuller Company, 122 Atl. 63..... ........ . 25
People ex rel Fursman v. Chicago, 116 N. E. 158.... 17
Pierce v. Somerset Railway, 171 U. S. 641, 43 L.
Ed. 316...................... 26
Pierce Oil Corp. v. Phoenix Refining Company,
259 U. S. 125, 66 L. Ed. 855......................... .........
Page
2 8
Ill
TABLE OF CITATIONS—Continued.
Page
Puitt v. Commissioner of Gaston County, 94 N. C.
709.................. .............................................................. 20
Ruling Case Law, Vol. 24, p. 613.... .......................... 10
Seattle High School, etc. v. Sharpless, etc., 293 Pac.
994, 72 A. L. R. 1215.........................................13-15-32
Shepard, et als. v. Barron, 194 U. S. 553, 48 L. Ed.
1115............................................................................... 28
I- Simon v. Military Board, 99 Va. 390........................ 36
State ex rel Gumm, et als. v. Albritton, et als., 224
Pac. 511.......................... 18
State v. Martin, 163 S. E. 850..... ,.............................. 10
United States v. Gale, 109 U. S. 65, 27 L. Ed. 857._. 24
Wall v. Parrott Silver & Copper Co., 244 U. S. 407,
61 L. Ed. 1229-.......................................................... 27
Warner Valley Stock Company v. Smith, 165 U. S.
28, 41 L. Ed. 621....................... ............................... 35
Washington v. State of Florida, 116 Sou. 470, 278
TJ. S. 599, 73 L. Ed. 528........................................... 23
White y . State of Oklahoma, 214 Pac. 202................. 24
Wilbur, Secretary v. United States, 281 U. S. 206,
74 L. Ed. 809.............................................................. 38
Federal Rules of Civil Procedure, Rule 38.............. 29
Norfolk City Charter (Acts of Assembly of Vir
ginia, 1918, p. 31), Section 114............................... 8
Virginia Code— Section 611........ ................................ 6
Section 680—........................ ............ 7
Section 786...... 7
Section 664......................................... 8
Virginia Constitution, Article IX — Section 130....... 6
Section 133____ 6
Section 140....... 7
<
1
(Etrrmt (Eourt of Appeals
FOR THE FOURTH CIRCU IT.
M e l v i n O. A l s t o n , and the N o r f o l k
T e a c h e r s ’ A s s o c ia t io n , an Unincor
porated Association,
Appellants,
vs. File No.
4623.
S c h o o l B o a r d o f t h e C it y o f N o r f o l k ,
a Body Corporate, and C. W. M a s o n ,
Superintendent of Schools of Norfolk,
Appellees.
BRIEF OF APPELLEES.
STATEMENT OF THE CASE.
This cause was not heard on its merits by the
District Court. The appellees, in the Fourth Defense
of their answer, expressly denied any and all acts of
discrimination on account of race or color alleged by
appellants in their complaint. (Appendix, p. 41.)
The judge of the District Court suggested that the
hearing of the cause would be facilitated by taking
up the defenses raised by the First Defense, Second
Defense and Third Defense of the answer in advance
of the trial on the merits. It was on these defenses only
that the cause was heard by the District Court.
2
The judgment from which this appeal has been
taken adjudicated two questions in the language of
the court as follows, (1) “ And the court being of the
opinion that the plaintiff, Melvin 0 . Alston, and the
defendant, School Board of the City of Norfolk, are
the only necessary parties to this cause,” and (2)
“ and being further of the opinion that plaintiff, Melvin
O. Alston, having entered into said written contract
with the defendant, School Board of the City of i
Norfolk, to teach, which contract is a part of the
record in this cause, and having prior to the institu
tion of this suit entered upon the performance and
partly performed the said written contract, has for
the reasons stated in the opinion of the court, delivered
orally at the close of the arguments, waived such con
stitutional rights, if any he has, that he seeks to en
force, doth so Adjudge and Decree;” . (Appellants’
Brief, p. 67.)
The appellant Melvin O. Alston alleged in the
complaint that he is a “ regular teacher in the Booker
T. Washington High School, a public high school
located in Norfolk, Virginia, maintained and operated
by the School Board of the City of Norfolk.” (Ap
pellants’ Brief, p. 41.) The answer to the complaint
admitted this allegation and as under the school laws
of Virginia he could only be such a teacher by virtue
of an annual contract in writing, his contract with
the School Board of the City of Norfolk under which
he was and is teaching was filed as an exhibit with the
answer. This contract was admitted and considered
by The District Court without objection. (Appellants’
Brief, p. 56.)
The legal relations between the appellant Melvin
3
O. Alston and the School Board of the City of Norfolk
being that of employer and employee, the School
Board claimed among other defenses (Appellants’
Brief, pp. 54, 55 and 56) that no constitutional rights
of the appellant have been violated; that even if he
had such rights, he had waived them; that he had no
vested right to teach; that the salaries paid are not
fixed by law but at what the School Board can pay
and the teacher is willing to accept; and that the
court would not make a contract for the parties differ
ent from that which they were capable of making and
had made for themselves. A full recital of the defenses
raised will not be set out here since they are set forth
in full in the appendices to the appellants’ and ap
pellees’ briefs.
QUESTIONS INVOLVED.
1. Are the said Melvin O. Alston and the School
Board of the City of Norfolk the only necessary parties
to this cause?
2. Have any constitutional rights of the appellant
Alston been violated?
3. If any constitutional rights of the appellant
Alston have been violated, have they been waived?
4. Does a mandatory Court order lie to control a
discretionary act?
4
STATEMENT OF FACTS.
The appellees did not file a motion to dismiss
but filed an answer in which all questions of law and
fact were raised to be considered by the court in
determining the issues involved. It was at the sugges
tion of the court that the questions raised in the First
Defense, Second Defense and Third Defense of the
answer be argued in advance of the trial on the merits.
In this connection the Learned Judge of the District
Court, in his opinion, says: “ The court has had the
benefit of the briefs for about ten days and the oppor
tunity to study the pleadings and the briefs and to
make an independent investigation of the law deemed
applicable.” (Appellants’ Brief, pp. 59 and 60.)
The only fact which was alleged and supported
Q>y proof Jin the District Court was that the appellant
Alston is a teacher in the Booker T. Washington High
School of the City of Norfolk, pursuant to the con
tract between him and the School Board of the City
of Norfolk, filed as an exhibit with the answer and
set forth on page 56 of appellants’ brief. Appellants
admit that no evidence was taken before the court
and therefore the judgment of the court was based on
the admitted fact that the appellant Alston executed
the said contract, accepted employment as a teacher
thereunder, and had taught school thereunder prior
to the institution of this suit and was teaching there
under at the time of the hearing of the cause. Hence,
the Learned Judge of the District Court, in the judg
ment, says:
“ . . . and being further of the opinion
that plaintiff, Melvin O. Alston, having entered
5
into said written contract with the defendant,
School Board of the City of Norfolk, to teach,
which contract is a part of the record in this
cause, and having prior to the institution of this
suit entered upon the performance and partly
performed the said written contract, has for the
reasons stated in the opinion of the Court,
delivered orally at the close of the arguments,
waived such constitutional rights, if any he
_ has, that he seeks to enforce, doth so Adjudge
v and Decree;” (Appellants’ Brief, p. 67.)
I .
The Appellant Melvin O. Alston and the School Board
of the City of Norfolk Are the Only Proper Parties
To This Cause.
The Norfolk Teachers’ Association, an unincor
porated association, is named as party complainant
and joins in the allegations and prayer of the com
plaint. The rights asserted are personal ones. It is
the individual who is entitled to the equal protection
of the laws (Mo. ex rel Gaines v. Canada, 305 U. S.
337, 83 L. Ed. 208). Since under the Virginia School
I Laws as hereinafter set forth, only qualified indi
viduals, under individual annual contracts, can teach
in the public schools of the City of Norfolk, it is mani
fest that this association as such is not a proper party
to this proceeding, and the Judge of the District Court
so held.
C. W. Mason, Superintendent of Schools of the
City of Norfolk, is named as party defendant to the
cause. From the School Laws of Virginia hereafter
set forth in this brief, it will be seen that there is no
6
authority vested in the Superintendent of Schools to
employ teachers, fix their salaries or make contracts
with them to teach. These laws specifically provide
that this shall be done by the School Board.
II.
No Constitutional Rights Violated.
A. School Teacher in Virginia an Employee of School
Board.
Sec. 130 of Article IX of the Virginia Constitu
tion, relating to education and public instruction,
provides:
“ The general supervision of the school
system shall be vested in a State Board of
Education, to be appointed by the Governor,
subject to confirmation by the General As
sembly, and to consist of seven members.”
Sec. 133 of the same Article of the Virginia
Constitution provides:
“ The supervision of schools in each county
and city shall be vested in a school board, to
be composed of trustees to be selected in the
manner, for the term and to the number pro
vided by law.”
In furtherance of the above provisions, Sec. 611
of the Virginia Code provides:
“ An efficient system of public schools of a
minimum school term of one hundred and sixty
school days, shall be established and main
7
tained in all of the cities and counties of the
State. The public school system shall be ad
ministered by the following authorities, to-wit:
A State board of education, a superintendent
of public instruction, division superintendent of
schools and county and city school boards.”
Sec. 140 of Article IX of the Virginia Constitu
tion provides:
“ White and colored children shall not be
taught in the same school.”
Sec. 680 of the Virginia Code provides:
“ White and colored persons shall not be
taught in the same school, but shall be taught
in separate schools, under the same general
regulations as to management, usefulness and
efficiency.”
Neither of the above provides that the teachers in
the schools for white children shall be white and those
in the schools for colored children shall be colored.
There is no provision in either the Virginia Con
stitution or the Virginia Code prescribing what salaries
teachers in the public schools shall receive. This is
left to the discretion of the School Board.
The School Board has a very wide discretion in
the management of the public schools.
Sec. 786 of the Virginia Code, relating to the
powers and duties of the School Board, provides, in
so far as is material to this case, as follows:
8
“ The city school board of every city shall
establish and maintain therein a general system
of public free schools in accordance with the
requirements of the Constitution and the gen
eral educational policy of the Commonwealth
for the accomplishment of which purpose it
shall have the following powers and duties.
a
“ Third. To employ teachers from a list
or lists of eligibles to be furnished by the divi
sion superintendent and to dismiss them when
delinquent, inefficient or in anywise unworthy
of the position. . . .
“ Twelfth. To manage and control the
school funds of the city, to provide for the pay
of teachers and of the clerk of the board, for
the cost of providing school houses .
Sec. 664 of the Virginia Code relating to contracts
with teachers provides, in so far as is material to this
case, as follows:
“ Written contracts shall be made by the
school board with all public school teachers,
before they enter upon their duties, in a form
to be prescribed by the superintendent of
public instruction. Such contracts shall be
signed in duplicate, each party holding a copy
thereof. . . .”
The State of Virginia has no tenure of office act
covering teachers. They are expressly excluded from
the civil service classification of city employees by
Sec. 114 of the Norfolk Charter, which provides:
9
“ Officers who are elected by the people
. . . the teachers in the public schools and
all other persons employed by the school board
. . . shall not be included in such classified
service . . (Acts of Assembly of Virginia,
1918, pp. 31, 85.)
The teachers in the public schools have no vested
right in the positions they hold. Each year they are
selected by the School Board in May or June to
teach for the school term beginning in September
following. Their term of service is not fixed by any
law but by the provisions of the contract required by
law. They have no special right or privilege to teach
in the public schools of the city. These contracts are
entered into between the School Board and the teacher
each year, regardless of whether the teacher has taught
in the public schools for prior years or is a beginner.
The contract specifies the time for which employed,
the rate of compensation, their duties, that they may
be changed from one teaching position to another,
and other phases of their employment. Under the
Virginia law the School Board could, at the term
beginning next September, contract with an entire
) new corps of teachers for all of the public schools of
the City of Norfolk and none of the present teachers
would have any legal redress in the matter.
The appellant Alston, by such a contract in
writing (Appellants’ Brief, p. 56), voluntarily executed
by him and the School Board under date of June 12,
1939, agreed to teach in the public schools of the City
of Norfolk for ten (10) school months beginning
September 7, 1939, for $92.10 per school month. At
the time of the execution of this contract the appellant
10
knew, or with reasonable diligence could have ascer
tained, the exact salary paid any other teacher in
the public schools for the same term.
From the foregoing provisions of Virginia law
it is clear that public school teachers are not officers
of the State or political subdivisions wherein they
teach but are employees of the School Board.
In the case of Heath v. Johnson, (W. Va. 1892),
15 S. E. 980, which involved a mandamus by a pub
lishing company against a teacher in the public schools
to require the teacher to use a certain text book, the
same was refused, and the court, at p. 982 of the opinion,
said:
“ What we do decide is that a teacher in
this State is not a public officer but is an em
ployee . .
To the same effect is the decision in the case of
State v. Martin, (W. Va.), 163 S. E. 850.
In 75 A. L. R., p. 1352, under the Annotation
“ Status of teacher as an officer or employee,” the
following appears, with a long citation of cases to
support it:
“ The courts are almost unanimous in hold
ing that the position of teacher is that of an
employee, resting on the contract of employ
ment, and not that of public officer.”
In Ruling Case Law, Vol. 24, p. 613, under the
subject of “ Schools,” the following appears:
“ Under the general powers usually reposed
in loeal school boards is included the power to
11
enter into contracts with teachers and fix their
compensation and term of employment.
“ The discretion of a school board in this
respect is very broad, and the courts will not
interfere to aid one whom the board does not
choose to employ.
“ The board has the absolute right to de
cline to employ any applicant for any reason
whatever or for no reason at all.
“ It is no infringement on the constitutional
rights of anyone for the board to decline to
employ him as a teacher in the schools and it is
immaterial whether the reason for the refusal
to employ him is because the applicant is
married or unmarried, of fair complexion or
dark, is or is not a member of a trade union,
or whether no reason is given for such refusal.”
In 56 C. J., p. 422, under “ Schools and School
Districts,” the following appears:
“ The amount or rate of compensation which
a teacher is entitled to receive for his services
depends upon the terms of the contract under
which he is employed.”
and at p. 382:
“ A teacher, who has been appointed to the
position and accepted it, from the time of his
acceptance stands in a contract relation as
distinguished from the tenure or holding of a
public officer. He holds his position by con
tract and not at the will of the sovereign
power.”
12
and at p. 387:
“ Except in so far as they be restricted or
limited by statute, or by a rule or regulation
of the school board, a school board of officers
authorized to contract with teachers have the
power to fix the salaries to be paid them, free
from interference by other municipal authori
ties.”
In the case of Mootz v. Belyea, et als., (N. D.),
236 N. W. 358, a written contract between the teacher
and the School Board had been executed. Thereafter
the School Board refused to let the teacher teach
and employed another in her place. The teacher
brought a mandamus against the School Board to
require it to install her as a teacher in the public
schools, claiming that she had been denied the use and
enjoyment of a right or office. The court denied the
mandamus, stating that her remedy in the case was
for the recovery of her salary under the contract and
as to that she had an adequate remedy at law, and in
the course of its opinion, stated:
“ It is the claim of the appellant that she
is being denied the ‘use and enjoyment of a
right or office’ to which she is entitled. Whether
her contract gives her a right or office depends
upon her relationship to the school board and
her right under her contract. The duty of
employing teachers is vested in the school
board, and this is done by contract. The rela
tionship is purely contractual in this State.
There is no fixed tenure of office when a teacher
is employed other than the pension set forth
in the contract. In this State the profession is
not under civil service rules. When a teacher is
13
employed by a school district she is not em
ployed as an officer and she does not become
an officer. Her rights are measured by the
terms of her contract.”
In the case of Seattle High School, etc. v. Sharp
less, etc., (Wash.), 293 Pae. 994, 72 A. L'. R. 1215,
which involved the employment of a teacher, and
from which it appears that the statutes relating to
such are similar to those in Virginia, the court, in
defining the relationship between the School Board
and the teacher, said:
“ The employment of teachers is a matter
of treaty or voluntary contract. Both parties
must consent and be mutually satisfied and
agreed. On the part of each it is a matter of
choice and discretion. However, though quali
fied, no teacher has the legal right to teach in
the schools until the directors willingly enter
into a contract for that purpose. Unless limited
by statute in some way, the board is entitled
to the right of freedom of contract as much as
the teachers are.”
In the Opinion of the Judge of the District Court,
the following appears:
“ Whatever may be the law in other States,
there is no doubt that in Virginia a person
can not under the law as it now exists and has
existed for many years, acquire a status as a
teacher, which gives him certain rights that
must be respected, independently of a con
tract with the board as a teacher. In Virginia
the relation is not a continuing one, but can
be created only by a contract with the school
14
board in a particular jurisdiction. It con
tinues for only one school year at a time, with
the absolute right on the part of the school
board not to contract again with the particular
person. The board may decline to contract
again with such person without rhyme or
reason for such refusal and in that particular
part of the board’s procedure there manifestly
has been no discrimination on account of race
or color, for the simple reason that the board
can, after the expiration of the school year,
decline to have any further contractual rela
tions with an applicant to teach, whether such
applicant be white or colored.” (Appellants’
Brief, p. 63.)
B. Equal Protection Clause of Fourteenth Amendment
not Applicable.
The Virginia Constitution and Code as set out
above provide that an efficient system of public free
schools shall be established and maintained throughout
the State.
The object of this is to afford educational advan
tages to the children of the State, not to afford oppor
tunities for persons to follow their vocation as teachers.
The gist of the equal protection clause of the Four
teenth Amendment is to extend to all citizens sub
stantially equal treatment in facilities provided from
public funds.
The school facilities provided from public funds
are the right to attend school, not the right to teach
in a public school. While it may be incumbent on
the School Board to maintain schools for the education
1 5
of children, it is not incumbent on them to maintain
a place for one to follow his vocation as a teacher.
In American Jurisprudence, Vol. 11, at page 1171,
under “ Constitutional Law,” the following appears:
“ In those cases which have considered
employment contracts from the standpoint of
the employer, the courts have held that it is
clear that the right of an employer to employ
labor is necessarily included in the constitu
tional guaranty of the right to property. The
employer may, generally speaking, enter into
labor contracts with such individuals as he
chooses. Thus, the refusal of the board of
directors of a school district empowered to
employ teachers to engage a certain person, for
any reason or no reason at all, is in no sense a
denial of the constitutional right, guaranteed
by the due process of law provision, of that
person to follow his chosen profession.”
In the case of Seattle High School, etc. v. Sharpless,
etc., 1930, Washington State, 293 Pac. 994, 72 A. L. R.
1215, the school directors adopted a resolution:
“ That no person be employed hereafter,
or continued in the employ of the District as
a teacher while a member of the American
Federation of Teachers, or any local thereof
The plaintiff claimed the resolution was uncon
stitutional. The court held the same valid.
The laws of the State of Washington governing
the operation of public schools were similar to those of
Virginia in this respect and authorize the school
directors:
16
“ First: To employ for not more than one
year, and for sufficient cause to discharge
teachers, and to fix, alter, allow and order paid
their salaries and compensation . .
The court, in its opinion sustaining the resolution
of the board, said with reference to the status of
teachers:
“ The employment of teachers is a matter
of treaty or voluntary contract. Both parties
must consent and be mutually satisfied and
agreed. On the part of each it is a matter of
choice and discretion. However, though quali
fied, no teacher has the legal right to teach in
the schools until the directors willingly enter
into a contract for that purpose. Similarly the
directors have no legal right to the services of
any teacher until the teacher voluntarily enters
into a contract for that purpose. Unless limited
by statute in some way the board is entitled
to the right of freedom of contract, as much so
as the teachers are.”
It was also claimed by the plaintiff that the
resolution violated the Constitution of Washington
State and the Fourteenth Amendment to the Con
stitution of the United States. As to this the court
said:
“ Quoting Article 1, See. 3, of the State
Constitution, viz., ‘No person shall be deprived
of life, liberty, or property without due process
of law’ , and also the Fourteenth Amendment
to the Constitution of the United States on
the same subject, it is argued on behalf of
appellants that thereunder the right of a teacher
to follow his chosen profession is too elementary
17
to require any discussion. Granted, but there
is no question of that kind in this case. The
right of freedom of contract as it exists in this
case to refuse for any reason or no reason at
all to engage the professional services of any
person is in no sense a denial of the constitu
tional right of that person to follow his chosen
profession. . . . Nor can the courts be suc
cessfully invited into a consideration of the
policy of the resolution, for that would lead
to supervisory control of judgment and dis-
scretion in the selection and employment of
teachers which the statute has given exclusively
to the board of directors.”
In the case of People ex rel Fursman v. Chicago,
(1916), 116 N. E. 158, the issue was whether the Board
of Education had the right in the selection of teachers
to discriminate between those who were members of
a federation or union and those who were not members
of any such federation or union, and whether its
action in such regard violated any constitutional or
statutory provision.
The court held the Board of Education had such
right and that no such constitutional provision was
violated.
From the opinion it appear that the Illinois school
laws were similar to those of Virginia. At page 160
the court said:
“ By the statute the Board of Education
in cities having a population of 100,000 or
more is given complete control of the schools
of the city. Among its powers is that of em
ploying teachers and fixing the amount of their
compensation . . . The Board has no power
18
to make contracts for the employment of
teachers to extend beyond the ensuing school
year, . . . A new contract must be made
each year with such teachers as it desires to
retain in its employ. No person has a right to
demand that he or she shall be employed as a
teacher. The Board has the absolute right to
decline to employ or to re-employ any applicant
for any reason whatever or for no reason at all.
The Board is responsible for its action only to t
the people of the city, from whom, through
the mayor, the members have received their
appointments. It is no infringement upon the
constitutional rights of anyone for the Board
to decline to employ him as a teacher, in the
schools, and it is immaterial whether the reason
for the refusal to employ him is because the
applicant is married or unmarried, is of fair
complexion or dark, is or is not a member of a
trades union, or whether no reason is given for
such refusal. The Board is not bound to give
any reason for its action. It is free to contract
with whomsoever it chooses. Neither the Con
stitution nor the statute places any restriction
upon this right of the Board to contract, and
no one has any grievance which the courts will
recognize simply because the Board of Educa-
cation refuses to contract with him or her.
Questions of policy are solely for determination
of the Board, and when they have once been
determined by it the courts will not inquire
into their propriety.”
In the case of State ex rel Gumm, et als. v. Albritton,
et als., (Okla. 1923), 224 Pac. 511, it appears that the
county superintendent discharged the negro members
of the School Board of the School District in which
19
a majority of the population was of the colored race,
and appointed white persons on the Board.
The action was brought to oust the white mem
bers of the Board and have colored members adjudged
the lawful members of said School Board. This the
court refused to do.
’ At p. 512 of the opinion, the Court said:
“ It is contended by plaintiff in error that
the said action of the county superintendent in
the instant case violates the Fourteenth Amend
ment to the Constitution of the United States,
in that such action of said county superintend
ent, in discharging the colored members and
appointing defendants in error, was a denial of
the equal protection of the law to the colored
children. However, no authorities are cited
thereunto. It does not appear, nor did plaintiff
in error offer to show, that by the action of
said county superintendent in designating the
colored school as the separate school, or by
the change of the personnel of the said board,
the facilities or accommodations for the colored
children of such district were not rendered
I impartial, as compared with those of the white
children.”
and at p. 513:
“ However arbitrary the action of such
superintendent may seem, it cannot be said
that the equal protection clause of said Four
teenth Amendment is violated, because it is
now shown that accommodations of facilities
equal, though not identical, with those of white
children, are afforded to the colored children.”
20
C. Appellant Alston Has No Standing in the Case as a
Taxpayer.
This suit is brought under the equal protection
clause of the Fourteenth Amendment. The funds pro
vided for the public schools are for the purpose of
furnishing educational facilities to the children in the
City of Norfolk. The funds are not for any distribu
tion among the teachers. The teachers are employed,
as well as stenographers, janitors and others, for the
purpose of operating the schools. There is no require
ment in the law that the same amount of money per
capita or otherwise should be expended for the opera
tions of the schools for colored children as for the
operation of the schools for white children. The only
requirement is that the educational facilities afforded
for the two races shall be equal. There is no complaint
that they are not equal.
In the cases of ClaybrooJc v. City of Owensboro,
16 Fed. 297, Davenport v. Cloverbrook, 72 Fed. 689,
and Puitt v. Commissioner of Gaston County, 94 N. C.
709, cited by appellants (Appellants’ Brief, p. 20) the
facts and principles involved were entirely different
from the instant case. They related to the levying
of taxes and maintenance of schools for the different
races. The other cases cited by appellants to support
their claim in this regard (Appellants’ Brief, pp. 20,
21 and 22) are from State courts and in none of them
was the Fourteenth Amendment involved. Further
more, they all relate to some unlawful or illegal ex
penditure of public funds. The funds under the con
trol of the School Board may be lawfully used for the
operation of the schools. Appellants do not claim
they are used for any other purpose. So long as used
21
for the purpose permitted they are not used for any
illegal or unauthorized purpose. If they were, ap
pellants’ remedy would be in a State court under
State law and not in the Federal court under the
Fourteenth Amendment.
III.
Appellant Alston, By Entering Into a Contract With
School Board of City of Norfolk and Accepting
Employment Thereunder, Has Waived Such
Constitutional Rights, If Any He Has,
That He Seeks to Enforce.
The appellant’s rights, if he has any, are personal
to him as an individual. It is as an individual that
he is entitled to the equal protection of the laws.
(Mo. v. Canada, 305 U. S. 337, 83 L. Ed. 208.)
The appellant, as stated above, has voluntarily
contracted in writing with the School Board to teach
for the current school term for a stipulated salary.
This contract antedates the filing of these proceedings
by him. There is no complaint that the School Board
has breached any part of its contract.
While we do not consider, for reasons set forth
above, that any constitutional rights of the appellant
have been denied, yet, in any event, he has waived
the same, and is accordingly estopped to prosecute
this cause.
In 12 C. J., at p. 769, under the heading “ Con
stitutional Law,” the following appears:
“ A person may by his acts, or omission to
act, waive a right which he might otherwise
have under the provisions of the Constitution.”
22
and at p. 770:
“ The waiver of a Constitutional provision
precludes the party waiving it from afterwards
claiming protection under it, even though it
was adopted solely for his benefit, and such a
waiver is binding as to both past and future
transactions.”
and at p. 774:
“ But those Constitutional guaranties, which
are in the nature of personal privileges of the
accused, may be waived by him and therefore
he may not question the Constitutionality of
the statute under which he has made such a
waiver.”
In 11 American Jurisprudence, at p. 1170, under
“ Constitutional Law,” appears the following:
“ It has repeatedly been held that the right
of a laborer to enter into contracts for his ser
vices is property within the meaning of the
Constitutional guaranties.”
In Cooley on Constitutional Limitations, Vol. 1,
p. 368, the author says:
“ Where a Constitutional provision is de
signed for the proection solely of the property
rights of the citizen, it is competent for him to
waive the protection and to consent to such
action as would be invalid if taken against his
will.”
and at p. 369:
“ On this ground it has been held that an
act appropriating the private property of one
23
person for the private purpose of another, on
compensation made, was valid if he whose
property was taken assented thereto and that
he did assent and waive the Constitutional
privilege, after he received the compensation
awarded or brought an action to recover it.”
and again at p. 368:
“ There are cases where a law in its appli
cation to a particular case must be sustained
because the party who makes the objection has
by his prior action precluded himself from being
heard against it.”
The case of Washington v. State of Florida, 116
Southern 470, in which a writ of certiorari was denied
by the Supreme Court of the United States, 278 U. S.
599, 73 L. Ed. 528, involved the exclusion of negroes
from juries. Herein the accused claimed he had been
denied equal protection of the laws guaranteed him
by the Fourteenth Amendment to the Federal Con
stitution.
The Florida Supreme Court in this case held:
“ While an unlawful discrimination against
negroes because of their race or color practiced
by an officer in sommoning jurors may render
the act of summoning illegal, the panel of
jurors may not be illegal.”
“ Where a jury that is competent under
the law and that is impartial as is required by
the Constitution has been tendered it may be
accepted by the accused who thereafter waives
his right to object to the panel on the ground
that in summoning the jurors members of his
24
race were discriminated against, there being
no duress or other improper influence to em
barrass or injure the accused.”
In the case of United States v. Gale, 109 U. S. 65,
27 L. Ed. 857, which was a criminal case wherein there
was an irregularity in selecting the grand jury which
found the indictment, the accused plead not guilty
and went to trial without making any objection as to
the grand jury selection, and after conviction raised
the Constitutionality of the same. The court said:
“ The second question, as to the Con
stitutionality of the 820th Section of the revised
statutes . . . is not an essential one in this
ease inasmuch as by pleading not guilty to
the indictment and going to trial without
making any objection to the mode of selecting
the grand jury, such objection was waived.”
In the case of Bon Ton Cleaners and Dyers, Inc. v.
Cleaning, Dyeing and Pressing Board, February, 1937,
Florida, 176 Southern 55, certain parties who signed
a specific agreement with all other parties in a certain
area to observe price fixing regulations of said Clean
ing, Dyeing and Pressing Board in the County, prior
to the time order prescribing regulations was entered,
were held precluded from questioning the constitu
tionality of the statute authorizing price fixing for
such business.
In the case of White v. State of Oklahoma, 214
Pac. 202, which was a criminal case, the jury was
sworn and the County attorney then asked leave to
amend the information. The information was amended
and the defendant asked for and was given twenty-
four hours to plead to the amended information. The
25
jury then impaneled was without objection on the
part of the defendant discharged. Several days there
after when the case came to trial on the amended in
formation the accused filed a plea in bar claiming for
mer jeopardy. The court held the plea was properly
overruled by the lower court on the ground that the
accused had waived his rights in the matter and, at
p. 205 of the opinion, said:
“ Where a Constitutional right is for the
sold benefit of the accused, in the nature of a
privilege, that right may be waived by express
consent, or by implication from conduct in
dicative of consent, or by failure to claim or
assert the right in seasonable time.”
In Palumbo v. Fuller Co., Conn., 122 Atl. 63,
the employer appealed from an award for claimant.
One of the grounds assigned was the alleged uncon
stitutionality of the Workmen’s Compensation Act.
The court, at p. 65, said:
“ A ground of appeal that is fundamental
is a claim that the Commissioner erred in not
holding that Section 5345 is unconstitutional;
as this question is independent of the finding
it may be considered at the outset.
“ The acceptance of Part B of the Act is
voluntary on the part of an employer. When
he so accepts the Act, he cannot thereafter
urge that its provisions are ineffective in whole
or in part because of any impairment of the
constitutional rights of an employer. This
reason of appeal cannot be sustained.”
2 6
In the case of Pierce v. Somerset Railway, 171
U. S. 641, 43 L. Ed. 316, which involved a railroad
mortgage and whether a State statute impaired the
obligation of the contract, the court, at p. 648, said:
“ A person may by his acts or omission to
act waive a right which he might otherwise
have under the Constitution of the United
States, as well as under a statute, and the
question whether he has or has not lost such
right by failure to act, or by his action, is not a
Federal one.”
In the case of Eustis v. Bolles, 150 U. S. 361, 37
L. Ed. 1111, the validity of insolvency proceedings
had under a Massachusetts statute was involved.
The court said:
“ The defendants in the trial court de
pended on a discharge obtained by them under
regular proceedings, under the insolvency stat
utes of Massachusetts. This defense the plain
tiffs met by alleging that the statutes, under
which the defendants had procured their dis
charge, had been enacted after the promissory
note sued on had been executed and delivered,
and that, to give effect to a discharge obtained
under such subsequent laws, would impair the
obligation of a contract, within the meaning
of the Constitution of the United States. Upon
such a state of facts, it is plain that a Federal
question, decisive of the case, was presented,
and that if the judgment of the Supreme
Judicial Court of Massachusetts adjudged that
question adversely to the plaintiffs, it would
be the duty of this court to consider the sound
ness of such a judgment.
27
“ The record, however, further discloses
that William T. Eustis, represented in this
court by his executors, had accepted and
receipted for the money which had been awarded
him, as his portion, under the insolvency pro
ceedings, and that the court below, conceding
that his cause of action could not be taken from
him, without his consent, by proceedings under
statutes of insolvency passed subject to the
vesting of his rights, held that the action of
Eustis, in so accepting and receipting for his
dividend in the insolvency proceedings, was a
waiver of his right to object to the validity of
the insolvency statutes, and that, accordingly,
the defendants were entitled to the judgment.”
The Supreme Court of the United States did not
disturb the aforesaid ruling of the Massachusetts court.
In the case of Wall v. Parrott Silver & Copper Co.,
244 U. S. 407, 61 L. Ed. 1229, the court said:
‘There remains the contention that the
statutes of Montana which we have epitomized,
if enforced, will deprive the appellants of their
property without due process of law because
they provide that sale may be made of all the
assets of the corporation when authorized by
not less than two-thirds of the outstanding
capital stock of the corporation, and that the
plaintiffs must accept either the payment for
their shares which this large majority of their
associates think sufficient, or, if they prefer,
the value in money of their stock, to be deter
mined by three appraisers, or, still at the
election of the appellants, by a court and jury.
“ This record does not call upon us to
examine into this challenge of the validity of
these statutory provisions, similar as they are
2 8
to those of many other States and of a seem
ingly equitable character, for the reason that
the appellants, by their action in instituting a
proceeding for the valuation of their stock,
pursuant to these statutes, which is still pend
ing, waived their right to assail the validity
of them.”
In the case of Pierce Oil Corporation v. Phoenix
Refining Company, 259 U. S. 125, 66 L. Ed. 855,
which involved the making of a pipe line company a
common carrier, the court held:
“ The right of a foreign corporation to be
secure against the imposition of conditions
upon its right to do business which amount to
a taking of its property without due process of
law may be waived, or the right to claim it
barred, by deliberate election, or by conduct
inconsistent with the assertion of such right.”
In the case of William Shepard, et als. v. Barron,
194 U. S. 553, 48 L. Ed. 1115, the constitutionality of
an act regarding assessments against abutting property
owners for improvements was assailed because the
act provided that the assessments should be made on a
front foot basis and not according to the special bene
fits derived.
The plaintiffs had by petition requested the work
and impliedly agreed to pay for the same on the front
foot assessment basis.
The court held that they had waived any con
stitutional rights they might have, and at p. 566 of the
opinion said:
29
“ It is, therefore, upon these facts, im
material that the law under which the pro
ceedings were conducted was unconstitutional,
because the work was done at the special re
quest of the owners, under the provisions of
the act, and upon a contract, both implied
and in substance expressed, that the bonds
would be paid, and the assessment to be im
posed for the raising of a fund to pay them
would be legal and proper.”
and at p. 568 said:
“ Provisions of a constitutional nature, in
tended for the protection of the property owner,
may be waived by him, not only by an instru
ment in writing, upon a good consideration,
signed by him, but also by a course of conduct
which shows an intention to waive such pro
vision. . . .”
One of the most sacred personal rights is that of
trial by jury. The Seventh Amendment to the United
States Constitution provides that in suits at common
law the right of trial by jury should be preserved. The
rules of civil procedure promulgated for the District
Courts by the Supreme Court of the United States
provide that the failure of a party to demand a jury
as required by the Rules shall constitute a waiver by
him of trial by jury (Rule 38). If one can waive his
right to trial by jury by his mere inaction, surely the
appellant Alston can waive his rights in the Four
teenth Amendment, if any he has, by a contract in
writing voluntarily executed by him.
The cases cited by appellant dealing with the
question of waiver in matters of compensation relate
30
to salaries the amount of which are definitely fixed
and prescribed by law, the courts holding in such
cases that an acceptance of any less amount would
be contrary to public policy and place the positions for
said salaries in the category of barter and exchange.
In the instant case the salaries are not fixed by law
but are left as a matter of contract between the
teachers and the School Board.
A. Decision on Waiver Issue by District Court Properly
Based.
Appellants allege in their brief (p. 32) that
the decision on the waiver issue was erroneously
based on facts not before the District Court.
Appellants alleged in the complaint (Appellants’ Brief,
p. 44) that appellant Alston had been employed as a
regular teacher by the School Board since 1935 and
was in his fifth year of teaching experience. That on
September 28, 1939, (Appellants’ Brief, p. 50), he
filed the petition therein mentioned with the School
Board. Appellees, in paragraph (4) of the Second
Defense of their Answer (Appellants’ Brief, p. 55)
alleged that by reason of contract of June 12, 1939,
appellant Alston had waived any rights, if any he had,
in the premises. Appellants filed no reply to the
answer. There is no allegation in the complaint that
his teaching was other than a voluntary engagement
between him and the School Board. He voluntarily
executed the contract on June 12, 1939, to teach for
ten school months beginning September 7, 1939
(Contract— Appellants’ Brief, p. 56). He had been
teaching for five years in the public schools of the city.
At the time of the execution of the contract he knew,
3 1
or could have known, what salaries were paid all the
teachers in the public schools of the city. He has con
tinued to teach since the beginning of the school term
beginning September 7, 1939, and is now teaching in
the public schools of the city and has received and
accepted the salary provided for by the contract.
Furthermore, while such does not appear in the
record, the matters alleged in paragraphs 1 to 7 on
pages 34 and 35 of appellants’ brief, to support their
contention in this regard, were all argued by counsel
for appellants at the hearing of this case in the District
Court.
IV.
Differentiation of the Maryland Cases From the
Instant Case.
T h e M a r y l a n d C a s e s .
The two cases of Mills v. Lowndes, et al., 26 Fed.
Supp. 792, (D. C., Md. 1939), and Mills v. Anne
| Arundel County Board of Education, et al., 30 Fed.
Supp. 245, (D. C., Md. 1939), are quoted from and
cited with such frequency by appellants as being
directly in point with the instant case that appellees
are prompted to deal with the same at some length
and apply the facts and conclusions of those cases to
the issues of constitutional rights and waiver as
raised herein.
32
A. The Equal Protection Clause of the Fourteenth
Amendment Has No Application to the Instant Case.
The plaintiff Mills, pursuant to Maryland school
laws, was employed under a continuing contract which
required an oath of office to be taken and subscribed.
He further, after the expiration of a probationary
period, became possessed of a right of property in his
teaching position by virtue of tenure and could only
be dismissed for stated cause, and after opportunity
to be heard in his own defense. The appellant Alston,
on the other hand, is employed only on an annual
basis and having no tenure of office, is possessed of no
vested interest therein.
The case of Mootz v. Belyea, supra, discusses fully
the rights accruing to and the differences existing
between a teacher with a fixed tenure of office and a
teacher whose relationship of employment is purely
contractual, how, if improperly dismissed, the former
could proceed by mandamus for reinstatement but
the latter would be relegated to an action for damages
under the contract.
It is the contention of appellees that appellants,
having no rights to employment (Seattle High School,
etc. v. Sharpless, supra) and having no vested interests
in their positions after employment, are therefore
without rights to be protected by the equal protection
clause of the Fourteenth Amendment. The plaintiff
Mills, however, while not possessing any right to
employment, subsequent thereto, did acquire a vested
right in his position and consequently a fixed property
right therein to protect.
33
District Judge Chesnut distinguishes between the
plaintiff Mills as a public employee and as a teacher
by occupation in holding that the action could be
maintained for violation of constitutional rights,
stating:
“ I conclude therefore that the plaintiff
does have a status, not as a public employee,
but as a teacher by occupation, which entitles
him to raise the constitutional question.”
Early in his opinion, however, he recognized the
question as being one on which there is little available
judicial authority and makes this pertinent observa
tion:
“ In view of the fact that the amendment
has been in force for 75 years, the absence of
authority on the point is itself rather significant
in the indication that it has not heretofore been
thought the amendment applied to such a
case.”
It is submitted that the conclusion reached by
Judge Chesnut is predicated upon the status of the
plaintiff Mills and is only intended to embrace those
teachers by occupation who possess a fixed tenure of
office.
Correlated with the question of whether con
stitutional rights have been violated, is the factor of
discretion in employment and salary fixing by the
local board in the instant case. Judge Chesnut stresses
the Maryland statutes prescribing minimum rates of
pay and their application, stating:
34
“ Each County Board in cooperation with
the County Commissioner as to the tax rate is
free to determine the amount and quality of
its educational facilities and has power to
select its teachers and determine their com
pensation. It may, in the exercise of its lawful
discretion, decide whether to employ white or
colored teachers for the colored schools; nor is it
required to employ any particular teacher, whether
white or colored, although duly qualified. And
it may he observed that if the minimum salary
schedules were written out of the law as uncon
stitutional, the local Boards will have unlimited
discretion as to the amount to be paid the teachers.”
(Italics ours.)
It is also to be noted that an injunction was denied
to the extent prayed for that colored teachers and
principals shall not receive less salaries than white
teachers and principals filling equivalent positions in
the public schools.
The State of Virginia has no statute prescribing
rates of pay, minimum or maximum, for teachers and
principals in the public schools, but leaves the deter
mination thereof entirely within the discretion of the
local board to be incorporated in voluntary contracts.
B. The Appellant Alston has Waived Any Rights to the
Relief for Which He Prays.
In the two Mills cases the contract of employment
does not fix or designate the rate of pay but provides
only that it shall not be less than the minimum salary
provided by law. There is, therefore, no agreement as
to salary and consequently no basis for waiver therein.
35
In addition tlie plaintiff Mills was the principal of a
colored elementary school, the minimum salary for
which is not prescribed by the State of Maryland’s
minimum statutes.
In the instant case the actual rate of pay is fixed
by agreement in the contract of employment.
A Mandatory Court Order Does Not Lie to Control
a Discretionary Act.
This phase of the case was fully treated in the
brief of appellees submitted to the Judge of the District
Court. As he decided the case on the matter of waiver
he did not go into this phase of it. As the Virginia
laws place the entire matter of the employment of
teachers in the discretion of the School Board, as
above set forth in this brief, it is submitted that a
mandatory court order does not lie to control such
discretion.
In the absence of mandamus, now abolished by
the Federal Rules of Civil Procedure, the appellant
asks for a mandatory court order in the form of an
injunction. The effect, however, is the same, and
the same rules of law apply with respect to granting it.
It is well settled by the authorities, both Federal and
State, that mandatory orders of our courts do not lie
to control discretionary acts.
In the case of Warner Valley Stock Company v.
Smith, 165 U. S. 28, 33, 41 L. Ed. 621, 623, which
involved a mandatory injunction, the court said:
36
“ The main object of the present bill was
to compel the defendant, Hoke Smith, as Secre
tary of the Interior, to prepare patents to be
issued to plaintiff for the lands in question.
The mandatory injunction prayed for was in
effect equivalent to a writ of mandamus to
him.”
In the case of Miguel v. McCarl, Comptroller
General, 291 U. S. 442, 452, 78 L. Ed. 901, 907, in <
which it appears a suit was brought to enjoin the de
fendant from interfering with the Chief of Finance to
prevent payment to complainant of returned pay, and
also to command the Chief of Finance to pay the
retired pay claim, the court said:
“ The mandatory injunction here prayed
for is in effect equivalent to a writ of mandamus
and governed by like considerations.
With the foregoing well settled rule in mind,
we turn to the pertinent legislation.”
In the case of Simon v. Military Board, 99 Ya.
390, which involved the refusal of the Board to approve
a certain claim for military services, in which a writ
of mandamus therefor was sought but refused, the
Supreme Court of Appeals of Virginia said, at p. 392:
“ One of the marked characteristics of a
proceeding by mandamus is that if the func
tionary whose conduct is complained of is by
law to exercise any discretion, that discretion
will not be controlled by a writ of mandamus,
for that would be to transfer the discretion
which the law commits to the functionary to
the court which undertakes to award the writ.”
37
In the ease of Broaddus v. Supervisors, 99 Va. 370,
the court, at page 372, quotes with approval from
High on Extra Remedies as follows:
“ Wherever such officers or bodies are
vested with discretionary power as to the per
formance of any duty required at their hands,
or where, in reaching a given result of official
action, they are necessarily obliged to use some
degree of judgment and discretion, while man
damus will lie to set them in motion and to
compel action upon the matters in controversy,
it will in no manner interfere with the exercise
of such discretion, nor control or dictate the
judgment or decision which shall be reached.
But if, upon the other hand, a clear and specific
duty is positively required by law of any
officer, and the duty is of a ministerial nature,
involving no element of discretion, and no
exercise of official judgment, mandamus is the
appropriate remedy. . . .”
In the case of Adams, Receiver v. Nagle, et als.,
303 U. S. 532, 542, 82 L. Ed. 999, 1006, which involved
a suit by stockholders to enjoin the receiver of two
national banks from enforcing assessments ordered by
the Comptroller of the Currency, the court ordered
the bill dismissed, and in discussing injunctions, said:
“ Where a statute vests no discretion in an
executive officer but to act under a given set
of circumstances, or forbids his acting except
upon certain named conditions, a court will
compel him to act or to refrain from acting if
he essays wholly to disregard the statutory
mandate; but if a discretion is vested in him,
and he is to act in the light of the facts he ascer
tains and the judgment he forms, a court can-
38
not restrain him from acting on the ground
that he has exceeded his jurisdiction by reason
of an error either of fact or law which induced
his conclusion.”
In the case of Wilbur, Secretary of the Interior v.
United States ex rel Kadrie, et al., 281 U. S. 206, 218,
74 L. Ed. 809, 816, a writ of mandamus was sought
commanding the Secretary of the Interior to restore
the realtors to the rolls of certain Indian Tribes and
to pay them a share of all future distributions made
from a certain fund. The court held that the case
was not one in which mandamus would lie, and said:
“ Mandamus is employed to compel the
performance, when refused, of a ministerial duty,
this being its chief use. It also is employed to
compel action, when refused, in matters involv
ing judgment and discretion, but not to direct
the exercise of judgment or discretion in a
particular way nor to direct the retraction or
reversal of action already taken in the exercise
of either.”
In the case of State of Louisiana v. McAdoo,
Secretary of the Treasury, 234 U. S. 627, 633, 58 L. Ed.
1506, 1509, a motion was made by the State of Louisi
ana to file in the United States Supreme Court a peti
tion against the Secretary of the Treasury to review
his official judgment as to the rate of duty to be
exacted on importations of Cuban sugar. The court
refused to allow the petition to be filed, and in the
course of the opinion said:
“ The duties imposed upon the Secretary
of the Treasury in the collection of sugar tariffs
39
are not ministerial. They are executive, and
involve the exercise of judgment and discretion.
“ There is a class of cases which hold that
if a public officer be required by law to do a
particular thing, not involving the exercise of
either judgment or discretion, he may be re
quired to do that thing upon application of
one having a distinct interest in the doing of
the act. Such an act would be ministerial
only. But if the matter in respect to which the
action of the official is sought is one in which
the exercise of either judgment or discretion is
required, the courts will refuse to substitute
their judgment or discretion for that of the
official intrusted by law with its execution.”
The laws of Virginia authorize the School Board
to employ teachers for the public schools of the city
and to fix their compensation. The employment of
teachers and the fixing of their compensation is within
the discretion of the School Board. In the case of such
discretionary duties injunction should not lie to con
trol the same. To do so the Court would be exercising
a discretion which the law places with the School
Board. Courts should not legislate or invade the
provinces of the other departments of government.
Injunction in such cases would be interfering with
the orderly functions of government.
The School Board of the City of Norfolk operates
the public schools in the city as an agency of the
State. It is a governmental function it performs.
The Board is given by law wide discretion in the
matter. To grant the relief prayed for would be to
control the discretion vested in the School Board in
the performance of the essential governmental func
tion of operating the public schools of the City of
Norfolk.
VI.
Authorities Cited by Appellants.
The limit of this brief will not permit an analysis
of the numerous cases cited in appellants’ brief but
they may well be classified into three general divisions,
viz.:
1. Jury cases in which negroes were left off.
When objections thereto were first made after the
trial the courts, including the Supreme Court of the
United States, are unanimous in denying relief on the
grounds that the constitutional right to have negro
juries had been waived. The instant case is a waiver
by voluntary contract executed and performed.
2. Denial of equal accommodations or facilities
and segregation ordinances. This is not the instant
case, which is a matter of a voluntary employment.
3. Salaries fixed by statutes. In these cases
where effort is made to pay a lower salary than those
specifically fixed by statute, the court allowed re
covery of the statutory amount. In the instant case
no salaries are fixed by statute but are left in the dis
cretion of the School Board and fixed by contract
between the School Board and the teacher.
CONCLUSION.
Appellees content that this is a proceeding between
the appellant Melvin O. Alston and the appellee
4 1
School Board of the City of Norfolk, that no con
stitutional rights of the said Melvin O. Alston have
been violated, that if he had any such constitutional
rights as alleged he has waived them, that there is no
error in the judgment of the District Court, and that
the same should be affirmed.
Respectfully submitted,
A l f r e d A n d e r s o n ,
J o n a t h a n W . O l d , J r .,
W il l ia m C . C o u p l a n d ,
Counsel for Appellees.
Room 207, City Hall,
Norfolk, Virginia.
APPENDIX.
(Caption)
Answer of Defendant.
(First, Second and Third Defenses are set forth in
Appellants’ Brief).
Fourth Defense.
The plaintiffs are not entitled to invoke the juris
diction of this court in this case as alleged in paragraph
“ 1” of the complaint, for the reasons set forth in the
First, Second and Third Defenses herein; and the
defendants deny the allegations of paragraph “ 1” of
said complaint.
The defendants deny the allegations of paragraph
“ 2” of said complaint.
42
The defendants admit that the defendant School
Board is by law of the State of Virginia a body cor
porate, but they are without knowledge and infor
mation sufficient to answer the other allegations of
paragraph “ 3” of the complaint.
The defendants are without sufficient knowledge
and information to answer the allegations of para
graphs “ 4” and “ 20” of the complaint.
As heretofore stated, the Norfolk Teachers’ Asso
ciation is an unincorporated organization, and as such
is not within the constitutional provisions referred to
in the bill of complaint and therefore not properly a
party to this proceeding. Other than this the defend
ants are without sufficient information and knowledge
to answer the allegations of paragraph “ 5” of the com
plaint.
The defendants admit the provisions of the school
laws referred to in paragraphs “ 6,” “ 7,” “ 8,” “ 9,”
“ 10” and “ 19” under proper construction, but speci
fically deny the conclusions and deductions made
therefrom as alleged in said paragraphs of the com
plaint.
The defendants deny the allegations of paragraph
“ 11” of the complaint.
The defendants deny such portions of paragraphs
“ 1 2 ,” “ i g ” “ 16” and “ 22” of the complaint as allege
discrimination because of race or color, a discriminatory
salary schedule, denial of the equal protection of the
laws and distribution of public funds on an illegal and
unconstitutional basis.
43
The defendants deny the allegations contained in
paragraph “ 13” of the complaint, except so much
thereof as recites the qualifications and experience of
plaintiff Melvin 0 . Alston, in respect to which they
allege they are without knowledge or information
sufficient to form a belief as to the truth thereof.
The defendants deny the allegations of para
graphs “ 14,” “ 17,” “ 18,” and “ 21” of the complaint.
^ The defendants admit the filing of the petitions
as alleged in paragraph “ 23” of the complaint. The
requests contained in the petitions were denied because
the salaries of the respective teachers and principals
are matters which are governed by individual con
tracts voluntarily accepted and executed by the
individual teachers and principals.
The defendants deny the allegations of para
graphs “ 24” and “ 25” of the complaint.
The aforesaid defenses and denials apply not only
to the said plaintiffs, but to the others on whose
behalf plaintiffs allege they are proceeding, if they
can proceed on their behalf, which defendants deny.
̂ The defendants also deny that the plaintiffs are
entitled to the prayer of said complaint.
(Signed) A l f r e d A n d e r s o n ,
Attorney for Defendants.
City Hall, Norfolk, Va.
(Signed) A l f r e d A n d e r s o n ,
(Signed) J o n a t h a n W. O l d , J r .,
Attorneys for Defendants.
t
§
f
United States Circuit Court of Appeals
for the Fourth Circuit
M elvin 0 . A lsto n , and the N obfolk
T e a c h e r s ’ A ssociation , an Unincorpo
rated Association,
Appellants,
vs. File No. 4623
S ch ool B oard of t h e C it y of N o rfolk , a
B ody C orporate, and C. W. M ason ,
Superintendent of Schools of Norfolk,
Appellees.
REPLY BRIEF OF APPELLANTS
O liver W . H il l ,
T hurgood M a r sh a ll ,
L eon A. R a n so m ,
W il l ia m II. H astie ,
Counsel for Appellants.
117 E. Leigh Street,
Richmond, Va.
Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.
/
"
SUBJECT INDEX
PAGE
P a r t i e s _________________________________________________________ 1
S im il a r it y of M arylan d C ases to t h e I n st a n t C ase------ 3
A ppe n d ix
Findings of Fact in Mills v. Bd. of Education--------- 6
Conclusions of Law in Mills v. Bd. of Education------ 12
Final Judgment and Decree______________________ 13
i
United States Circuit Court of Appeals
fo r the Fourth Circuit
M e l v in 0 . A l st o n , and the N orfolk
T e a c h e r s ’ A ssociation , an Unincorpo
rated Association,
Appellants,
vs. File No. 4623
S ch ool B oard of t h e C it y of N o rfolk , a
B ody C orporate , and C. W. M ason ,
Superintendent of Schools of Norfolk,
Appellees.
REPLY BRIEF OF APPELLANTS
APPELLANTS’ REPLY BRIEF
Most of the questions raised by the appellees in their
brief filed herein are fully covered either in appellants’
brief or in the record of the case filed as an appendix
therein. There are however two points raised by appellees
which are not specifically covered in our original brief.
PARTIES
Appellees contend that appellant, Norfolk Teachers’ As
sociation, is not a proper party because: (1) the rights are
personal ones, and, (2) only qualified individuals, under in-
2
dividual contracts, can teach in the public schools of the
City of Norfolk. (Appellees’ brief p. 5)
The Norfolk Teachers’ Association sues in its common
name pursuant to the authority of Section 17-B of the
Federal Buies, because it would be too cumbersome to this
proceeding to name each individual member of the said
Norfolk Teachers’ Association. The appellant associa
tion according to the complaint is a voluntary unincor
porated association and “ is composed of Norfolk teachers
and principals in the public schools of Norfolk, Virginia,
organized for the mutual improvement of its members in
their profession as teachers and principals in the public \
schools of Norfolk, Virginia.” (Appellants’ brief, p. 41)
There seems to be no doubt that each member of the asso
ciation could maintain this action. Filing this action in the
name of the unincorporated association is a mere procedural
device fully authorized by the New Federal Buies.
It is also contended that appellee C. W. Mason, Superin
tendent of Schools of the City of Norfolk, is not a proper
party because there is no authority vested in the Superin
tendent of Schools to employ teachers, fix their salaries or
make contracts with them to teach. In paragraphs 9-12
of the complaint it is alleged and admitted by the appellees,
on a motion to dismiss, that the discriminatory practice,
custom, and usage complained of is being maintained by the
defendants, including appellee Mason. (Appellants’ brief
p. 43-44). (
C. W. Mason is made a party defendant in his official
capacity. Under the laws of the Commonwealth of V ir
ginia, it is provided that:
‘ ‘ The public school system shall be administered by the
following authorities, to w it: a state board of education,
a superintendent of public instruction, division superin
tendent of schools, and county, and city school boards.”
(Virginia Code, sec. 611; italics ours)
3
Under Section 657 of the Virginia Code, it is provided that:
“ It shall be the duty of the division superintendent of
schools, on or before the first day of April of each year
to prepare with the advice of the school board, an esti
mate of the amount of money which will be needed
during the next scholastic year for the support of the
public schools of the counties and cities. . . . On
the basis of this estimate the division superintendent
of schools shall require the board of supervisors of the
county or council of the city to fix such school levy as
will net an amount of money necessary for the opera
tion of the schools . . .”
By section 660 of the Virginia Code, it is provided that:
“ The school board shall employ teachers and place
them in appropriate schools on recommendation of the
division superintendent, and shall dismiss teachers
when delinquent, inefficient or otherwise unworthy.’ ’
(Italics ours)
It is clear that under these statutes, C. W. Mason, is one
of the administrative agents of the Commonwealth of Vir
ginia, operating the public school system of Norfolk,
charged with the duty of preparing the budget including
teachers salaries and with the general administration of the
school system.
SIM ILARITY OF MARYLAND CASES TO THE
INSTANT CASE
There are two cases from Maryland on the points raised
in this case. The first case was filed against state officials
and attacked the statutory salary schedule, (Mills v. Lown
des, et al, 26 Fed. Supp. 792). The second case was filed
against the local school board and superintendent and at
tacked the policy, custom, and usage of enforcing a local
4
salary schedule adopted by them and of paying Negro
teachers less salary than white teachers of equal qualifica
tions and experience, (Mills v. Board of Education of Anne
Arundel County, 30 Fed. Supp. 245). In order that there
may be no question as to the similarity of that case with
the instant case, we are including in the Appendix of this
brief a certified copy of the Findings of Fact, Conclusions
of Law and Final Judgment and Decree in the second Mills
case.
Appellees attempt to distinguish these cases from the
instant case on the ground that while Mills had tenure, ap
pellant Alston does not have tenure. The question of ten
ure is not fundamental in either the Mills case or this case.
Tenure is only material in a case where there is a question
as to whether a teacher is to be discharged without cause.
The right of a teacher to maintain this type of action while
he is employed cannot be affected by the question of whether
or not he has tenure. Appellant Alston has been teaching
in Norfolk continuously for five years and has a reasonable
expectation of being rehired from year to year in the future.
Effort is also made to distinguish both of the Maryland
cases on the grounds that Virginia does not have a statutory
salary schedule. The second Mills case was not based upon
the statutory schedule but a county schedule and a discrim
inatory system maintained by the local school board similar
to the one in the instant case.
Although the injunction was not granted in the exact
language prayed for, the District Judge in his final order
enjoined the local school hoard from: “ . . . paying
plaintiff and any other colored teachers and principals in
the public school system of Anne Arundel County less than
the salary paid white teachers of the same qualifications and
experience, on account of race or color.” (Appendix p. 14)
Further effort is made to distinguish the Maryland cases
on the ground that in the Mills case the contract of employ
ment does not fix the rate of pay. It is true that the original
5
contract of employment did not fix the rate of pay because
the rate is fixed each year. In the “ Findings of Fact” in
the second Mills case, supra, the District Judge found as a
fact that . . The annual salary for plaintiff for the
present year has been set at $1058, or $103 more than the
minimum provided by the county scale; . . (Appen
dix p. 10). In Maryland, although the contract of em
ployment is a continuing contract, the question of the
amount of salary per year is determined each year between
the local school board and the individual teacher.
The relief prayed for in the instant case is merely to re
strain the appellees from making any distinction in the pay
ment of teachers salaries on the basis of race or color in vio
lation of the Fourteenth Amendment to the United States
Constitution and section 43 of Title 8 of the U. S. Code. No
effort is made to control the lawful discretion of the appel
lees to fix salaries of teachers.
Respectfully submitted,
O liver W . H il l ,
T hurgood M a r sh a ll ,
L eon A. R a n so m ,
W il l ia m H . H astie ,
Counsel for Appellants.
117 E. Leigh Street,
Richmond, Ya.
6
APPENDIX
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF MARYLAND
W alter M il l s ,
Plaintiff,
v.
Civil Docket-
B oard of E d u catio n of A n n e A r u n d e l No. 170
C o u n t y , a corporation, and G eorge F ox ,
as County Superintendent of Schools
of Anne Arundel County,
Defendants.
T h e C ourt M ak es t h e F o llo w in g F in d in g s of F act :
1. Plaintiff Walter Mills is a Negro, a citizen of the
United States, and a resident of Anne Arundel County,
State of Maryland. Plaintiff is a teacher by profession and
occupation, and is employed by the defendants herein as
teacher-principal of the Parole Elementary School, a public
elementary school for colored children located in Anne
Arundel County.
2. Plaintiff brings this suit on his own behalf and also
on behalf of all other teachers and principals in the colored
public schools of Anne Arundel County similarly circum
stanced.
3. Defendant Board of Education of Anne Arundel
County is a corporation existing pursuant to the laws of the
State of Maryland as an administrative department of the
7
State of Maryland discharging governmental functions.
Defendant George Fox is County Superintendent of Schools
of Anne Arundel County and the executive officer and the
secretary and treasurer of defendant Board of Education
of Anne Arundel County, and is sued in his official capacity.
4. Plaintiff is a graduate of Bowie State Normal School,
a normal school maintained hy the State of Maryland under
the supervision of the State Board of Education for the in
struction and preparation of Negroes as teachers in the
public schools of the State. He is in his twelfth year of
teaching experience in the Maryland public schools, and
holds a first-grade teacher’s certificate and an elementary
principal’s certificate issued by the State Board of Edu
cation.
5. The certification and rating of all teachers and prin
cipals in the public schools of Maryland, both white and
colored, is determined by the State Board of Education,
based upon uniform requirements and standards, and is
certified by said State Board of Education to the County
Boards of Education, including the defendant Board of
Education of Anne Arundel County.
6. At the present time and for many years last past all
teachers and principals in the white public schools of Mary
land are and have been white, and all teachers and princi
pals in the colored public schools of Maryland are and have
been Negroes.
7. The State of Maryland has by its statutes provided a
minimum salary schedule for white teachers and principals;
and also a minimum salary schedule for teachers in colored
schools. Each of these schedules is graduated to profes
sional qualifications and years of experience. While pro
vision is made for a minimum salary for white elementary
school principals, no provision is made for a minimum sal
ary for colored elementary school principals.
8
8. There is a difference which has existed for many years
in the State minimum salary schedules in that the minima
for white teachers have been uniformly higher than the
minima for colored teachers of comparable qualifications
and experience.
9. Taking, for simplicity of statement and for purposes
of comparison, the case of white and colored teachers re
spectively who have a first grade certificate and nine years
or more of experience: In 1904 the first minimum salary act
for white teachers (there being none at all for colored teach
ers prior to 1918) prescribed a minimum for white teachers
of $300 per annum; in 1908 and 1910 this was increased (for
a teacher in white elementary schools having a first class
rating and more than eight years’ experience) to $450; in
1916 to $550; in 1918 to $600; in 1920 to $950; in 1922 to
$1150; and in 1939, (on a slightly different basis as to pro
fessional qualifications and experience) to $1250, and, if the
teacher held an academic degree, to $1450. By comparison
the minimum for colored elementary teachers of similar
professional qualifications and experience has been uni
formly less. Their salaries have been fixed by statute not
on a yearly but a monthly basis, and for some of the time
heretofore, colored schools have been in session and colored
teachers have been paid for seven months of the year only.
In 1918 the minimum was $280 per year, increased in 1920
to $455 per year; in 1922 to $595, and in 1939 (by reason of
increase in the duration of the school year) to $765 per year.
At the present time, therefore, the respective minima are
$1250 for white teachers and $765 for colored teachers with
comparable professional qualifications and experience.
10. The County Boards of Education, including the de
fendant Board of Education of Anne Arundel County, have
general supervisory control of the public schools within
their respective jurisdictions, and employ and pay the sal
aries of teachers and principals within their respective jur
9
isdictions. Said Boards are required by State statutes to
pay not less than the statutory minimum salaries.
11. The County is the unit for public education in Mary
land and the County Board of Education, including the de
fendant Board of Education of Anne Arundel County have
authority and discretion as to the actual amount to be paid
to their teachers, both white and colored, and are at liberty
to pay higher salaries than the minima fixed by State
statute.
12. In practice most of the counties of Maryland (includ
ing Anne Arundel County) have maintained for many years
a differential in the salaries actually paid white and colored
teachers by which the salaries paid white teachers have been
uniformly higher than those paid comparable colored teach
ers. The annual average salary for white and colored ele
mentary teachers in Maryland counties for the period of
1921 to 1939 is in the ratio of nearly two to one in favor of
the white teachers.
13. However, several of the twenty-three counties of
Maryland, and Baltimore City, now pay equal salaries to
white and colored teachers of equal professional qualifica
tions and experience.
14. For some years past the defendant Board of Edu
cation of Anne Arundel County has paid to both white and
colored teachers more than the respective minima pre
scribed by State statutes.
15. The scales of salaries for teachers and principals in
Anne Arundel County established by the defendants in 1937
are still in force. The scales provide, for white elementary
school teachers with more than nine years’ experience,
$1250 per year, (the comparable State statutory minimum
being then $1150); and for colored elementary school teach-
1 0
ers, $700, (the comparable State statutory minimum being
then $680).
16. The Anne Arundel County scale for white teachers
and principals provides a minimum salary of $1550 an
nually for white principals of elementary schools with the
same qualifications and experience as plaintiff and with
two to four assistants, (the comparable State statutory
minimum being $1550). The county’s scale for colored
teachers and principals provides a minimum yearly salary
of $995 for colored elementary school principals with plain
tiff’s qualifications and experience and with two to four
assistants, (there being no State statutory minimum for
colored principals of elementary schools.)
17. In practice the defendant Board of Education of Anne
Arundel County in many cases actually pays higher salaries
than the county scale to the principals of schools, in consid
eration of particular conditions and capacities of the re
spective principals.
18. Plaintiff Mills is employed by the defendants under
a written contract which provides in part that: 1 ‘ The salary
of said teacher shall be fixed by the County Board of Edu
cation, which salary shall be not less than the minimum
salary provided by law.” The annual salary for plaintiff
for the present year has been set at $1058, or $103 more than
the minimum provided by the county scale; and in the case
of the three white principals of elementary schools with
comparable professional qualifications and experience, the
salary is set at $1800 per year, or $250 more than the county
scale.
19. The materially higher salaries of the three white
principals mentioned in the evidence, with comparable pro
fessional qualifications and experience with the plaintiff,
are not due solely to their superior professional attainments '
and efficiency; while these personal qualifications might ex
plain greater compensation to the particular individuals
than the minimum county scale for the particular position,
they do not account for the difference between the $1058
received by plaintiff and the minimum of $1550 which would,
according to the County scale, have to be paid any white
principal of a comparable school. If plaintiff were a white
principal he would necessarily receive, according to the
county scale, not less than $1550 as compared with his actual
salary of $1058.
20. By the Anne Arundel County scale the salaries of
teachers and principals of white high schools is somewhat
higher than the salaries for the white elementary schools,
the differences ranging from $300 to $400. There is also a
differential in favor of high school teachers as against ele
mentary school teachers in the County scale for colored
teachers, the difference in favor of the high school teacher
being about $300. There is also a salary differential be
tween elementary and high school teachers in colored
schools in the State statutory minimum schedule. The case
of Frank Butler, a colored principal of the Bates High
School at Annapolis may be taken for illustration. He re
ceives an annual salary of $1600. A white principal of a
comparable white high school would receive a minimum of
$2600.
21. In Anne Arundel County there are 243 white teachers
and 91 colored teachers; but no one colored teacher receives
as much salary as any white teacher of similar qualifications
and experience.
22. The very substantial differential between the salaries
of white teachers and principals and colored teachers and
principals of Anne Arundel County is due to discrimination
on account of race or color.
1 2
23. The amount needed to raise the colored teachers’ pay
to the minimum schedules for white teachers is $45,000
annually.
24. There is an existing, actual controversy herein.
January 11, 1940.
CONCLUSIONS OF L A W
1. The Court has jurisdiction over this suit under Sec
tion 24 (1) of the Judicial Code (28 U.S.C., Section 41 (1),
and under Section 24 (14) of the Judicial Code (28 U.S.C.,
Section 41 (14)).
2. Plaintiff as a teacher by occupation has a legal right to
maintain this suit.
3. Plaintiff has established and proved a cause of action
against the defendants Board of Education of Anne Arun
del County and George Fox as County Superintendent, etc.,
under the equal protection clause of the Fourteenth Amend
ment of the Constitution of the United States, and under
Sections 41 and 43 of Title 8 of the United States Code.
4. The official policy and official acts of the defendants
in respect to salary payments, including their official policy
and official acts in providing higher minimum salaries for
white teachers and principals than for colored teachers and
principals of comparable qualifications and experience, dis
criminate against plaintiff and those on whose behalf he
brings this suit in the practice of their profession and the
pursuit of their livelihood and occupation, solely on account
of their race or color, and their policy and acts are to that
extent unconstitutional under the equal protection clause
of the Fourteenth Amendment of the Constitution of the
United States, and to that extent are also violative of Sec- .
tions 41 and 43 of Title 8 of the United States Code.
13
5. Plaintiff has no adequate remedy at law in this Court.
This case comes within the rule of Section 43 of Title 8 of
the United States Code authorizing an injunction as an ap
propriate remedy in this type of case.
6. The third-party complaint heretofore tiled herein by
the defendants Board of Education of Anne Arundel County
and George Fox as County Superintendent, etc., does not
state any cause of action against the third party defendants
named therein, nor does the proof entitle said defendants to
any relief against the third-party defendants, and the third-
party complaint should accordingly be dismissed.
7. Plaintiff is entitled to a declaratory judgment pursuant
to Section 247d of the Judicial Code (28 U.S.C., Section
400) and to a permanent injunction against said defendants
in terms and forms as in the subjoined judgment and decree.
Dated Baltimore, Maryland, January 11,1940.
FINAL JUDGMENT AND DECREE
It is this 11th day of January, 1940, ORDERED, DE
CREED a n d ADJUDGED as follows:
Pursuant to Section 247d of the Judicial Code (28 U.S.C.,
Section 400), it is DECLARED a n d ADJUDGED:
That the official policy and official acts of the defendants
Board of Education of Anne Arundel County and George
Fox, as County Superintendent of Schools of Anne Arundel
County, in paying the plaintiff and all other colored teachers
and principals in the public school system of Anne Arundel
County smaller salaries than are paid by said defendants to
white teachers and principals with similar professional
qualifications and experience, in so far as such differentials
14
are predicated solely on race or color, are unlawful and un
constitutional, and are in violation of the equal protection
clause of the Fourteenth Amendment of the Constitution of
the United States of the Sections 41 and 43 of Title 8 of the
United States Code.
And it is ORDERED, ADJUDGED an d DECREED:
1. That the third-party complaint heretofore filed herein
be and the same is hereby dismissed.
2. That the defendants Board of Education of Anne
Arundel County and George Fox, as County Superintendent
of Schools of Anne Arundel County, and the agents of said
defendants and each of them, be and they are hereby per
petually enjoined and restrained from discriminating in
the payment of salaries, against the plaintiff and any other
colored teachers and principals in the public school system
of Anne Arundel County, and in favor of any white teachers
or principals in the public school system of Anne Arundel
County, solely on account of race or color; and from paying-
plaintiff and any other colored teachers and principals in the
public school system of Anne Arundel County less than the
salary paid wThite teachers of the same qualifications and
experience, on account of race or color.
Provided, that the operative effect of the foregoing judg
ment and decree be and the same hereby is postponed until
the scholastic year beginning September, 1940.
The taxable court costs to be paid by the original de
fendants.
W . C a l v in C h e s n u t ,
United States District Judge
T hurgood M a r s h a ll ,
Attorney for Plaintiff
1 5
U n ited S tates of A m e rica ,
D istrict of M ary lan d , to w it :
I, A r t h u r L. S p a m e r , Clerk of the District Court of the
United States for the District of Maryland, do hereby cer
tify that the aforegoing is a true copy of the Findings of
Fact, Conclusions of Law and Final Judgment and Decree,
which was entered and filed on the 11th day of January,
1940, in the therein entitled case of Walter Mills vs. Board
of Education of Anne Arundel County, et al., No. 170 Civil
Docket, in said District Court.
I n T e st im o n y W h e reo f , I hereunto set my hand and affix
the Seal of the said District Court, this 15th day of January,
1940.
A r t h u r L. S p a m e r ,
Clerk of said District Court.
By C h a s . M . J a m ie , Deputy
[ seal ]
I
>
I
i
*
■
991F A U L K N E R v. C O M M IS S IO N E R O F IN T E R N A L R E V E N U E
112 F.2d »87
that an organization initially outside of sec
tion 23fo) (2) because not “organized” for
purposes exclusively charitable, etc., cannot
thereafter bring itself within section 23(o)
(2) by anything short of a formal amend
ment of its constitution, eliminating the
non-exempt purposes.
[3] We do not think the statute makes
so rigid a requirement, at least so far as
concerns informal unincorporated associa
tions like the one here involved. Cochran
v. Commissioner, 4 Cir., 78 F.2d 176, 178.
Under Article VI of the constitution of the
League “ the Executive Board shall have
full power to determine the policies and
initiate the work and activities of the Birth
Control League of Massachusetts” . The
Board has found as a fact that “ early in
1935, or- shortly before that time” , the Ex
ecutive Committee of the League decided
to abandon political or legislative objects
and to limit its activities to the operation
of the Mothers’ Health Offices. Apparently
this abandonment was acquiesced in by the
. common consent of the members for the
reason that the League had received a
legal opinion that a'change in the Massachu
setts statute was not necessary to legalize
the operation of the Mothers’ Health Offices
under the guidance of licensed physicians
prescribing birth control measures only to
those women whose physical or mental
condition indicated that further or im
mediate pregnancy would be perilous to
health. Considering the informal way these
unincorporated associations are run, we con
clude that after the legislative objectives
had thus been abandoned, the League
ceased to be “organized” for purposes other
than those set forth in section 23(o) (2).
The exemption of income devoted to charity
was a liberalization of the law in the tax
payer’s favor .“ begotten from motives of
public policy” and “ not to be narrowly con
strued” . Helvering v. Bliss, 293 U.S. 144,
150, 151, 55 S.Ct. 17, 20, 21, 79 L.Ed. 246,
95 A.L.R. 207.
The Government relies heavily on Slee
v. C ommissioner, 2 Cir., 42 F.2d 184, 72 A.
L.R. 400, for the proposition that the cur
rent existence of declared non-exempt pur
poses in the constitution and by-laws during
the taxable year inescapably takes the or
ganization outside the provisions of the
statute and consequently results in non-de-
ductibility. As we read that case, it implies
quite the contrary. The court there was
dealing with a gift to the American Birth
Control League. In 42 F.2d at pages 185,
186, 72 A.L.R. 400, the court says: “ In
deed the charter [o f the American Birth
Control League] does not mention the clinic
or anything of the sort; it speaks only of
the League’s scientific projects, its general
purpose to secure the repeal of laws which
deal with preventing conception, and the
publication of the magazine. This is not
indeed conclusive; in practice the League
might have abandoned all such efforts ex*
ccpt as they conduced to a relief o f t!¥ j
clinic. The evidence passes somewhat light-""
ly over this feature of the work, for ob
vious reasons, but it does not disclaim the
charter, and, if it did, the Board was not
obliged to conclude that the abandonment of
what had been so formally declared was
final.” [Italics ours.]
The implication seems to be that the
aims for which an association is “ organ
ized” can be redefined, at least for purposes
of section 23(o) (2), without a formal
amendment of the charter or constitution.
In the Slee case the court held that the
Board was “ not obliged to conclude” that
there had been an abandonment of the
original stated purposes; in the case at bar
we have an express finding by the Board
that the legislative objects had been aban
doned at the time of the gift. 4B|
As an alternative ground o f decision th<2r
Board added briefly that in Commonwealth
v. Gardner, 1938, 300 Mass. 372, 15 N.E.2d
222, thp Mothers’ Health Offices were held
to be in violation of Mass.G.L., c. 272, §
21. s “ In these circumstances” , the Board
said, “ we think that a contribution to the
Health Offices could not be allowed as a
deduction under the provisions of the Fed
eral statute. It would be contrary to pub
lic policy, if not directly contrary to the in
ti “ W hoever sells, lends, gives aw ay, e x
hibits, or offers to sell, lend or give aw ay
an instrum ent or other article intended to
he used for self-abuse, or any drug, m edi
cine, instrum ent or article w hatever fo r
the prevention o f conception or for caus
ing unlaw ful abortion , or advertises the
same, or w rites, prints or causes to be
w ritten or printed a card, circu lar, book,,
pam phlet, advertisem ent or notice o f any
kind stating when, where, how , o f whom
or by w hat means such article can be
purchased or obtained, or m anufactures
or makes any such article, shall be pun
ished by im prisonm ent in the state prison
fo r not m ore than five years or in ja il
or the house o f correction for not more
than tw o and one h a lf years or by a fine
o f not less than one hundred nor more
than one thousand dollars.”
112 FETlERAT. RFPORTFR 2d RFRTES■ $ 2
—J
i'Tention of Congress, to construe the Federal
Tfiaxmg statute as granting privileges to tax
payers which would lend encouragement to
the support of activities inimical to the laws
of the several states.”
[4 1 The Board makes no findings of
Tact as to activities deemed to be illegal in
e the operation of the three Mothers’ Health
Offices which were in existence in 1935.
It rests its conclusion of law as to illegality
p upon Commonwealth v. Gardner, supra. In
that case the defendants were convicted of
violating the Massachusetts statute upon
|. their admission'that they had sold and given
Haway articles and medicine for the preven-
P?tion of conception. The defendants made
r an offer of proof that they were employed’
Kby the North Shore Mothers’ Health Office
Salem (which was not in existence at
t t i m e of the gift now in question); that
||Hhey had given the contraceptive articles to
B; patients pursuant to doctors’ prescriptions
jj? in cases where the health of the patients
r would be endangered by further preg-
y nancies. The court ruled that the offer of
proof constituted no defense; that no ex-
s ception could be read into the statute in
| favor of doctors’ prescriptions on grounds
j«_(>f health. This decision is hardly con
i') elusive on the question whether the Health
j. Offices in Brookline, Springfield and Wor-
f cester were lawfully conducted in 1935.
ii They could have been operated lawfully,
i even under the strict interpretation of the
l law laid down in Commonwealth v. Gard-
| ner. Tt cannot be assumed, in the absence
, of a finding o f fact by the Board, that the
'-TJJealth Offices in existence in 1935 were
i/O^gaged in selling, giving away or exhibit-
i big contraceptive articles.
[5, 61 Furthermore, even if such a find
ing had been made, it would not necessarily
r follow that the deduction should be dis-
allowed. Interpretation of the word “ chari-
? table” in a federal revenue act is a matter
£ of federal, not local, law. Cf. Lyeth v.
I lloev, 305 U.S. 188, 193, 194, 59 S.Ct. 155,
83 L.Ed. 199, 119 A.L.R. 410; Eagan v.
) Commissioner, 5 Cir., 43 F.2d 881, S83, 71
f A.L.R. 863. Illegality aside, we have held
| that'the League in 1935 was organized and
operated exclusively for charitable, scien
tific and educational purposes. This being
su, we find no warrant in the language of
L. section 23fo) (2) for the conclusion that
a gift to the League in that year is ren-
;; dered non-deductible because some feature
| of. the League’s activities, undertaken in
good faith on advice of counsel, later turns
out to have been in violation o f a local
penal law. If a hospital had similarly dis
pensed contraceptive articles in its free
clinic, one would scarcely have suggested
that a gift to the hospital was not deducti
ble under section 23(a) (2). That the gift
was to the Birth Control League would not
seem to call for a different conclusion.
Cases holding that expenditures made in
payment of fines for violation of penal law
cannot be deducted from gross income, are
based on the view that Congress could not
have intended such expenditures to be in
cluded within the meaning o f ‘‘ordinary and
necessary expenses paid or incurred during
the taxable year in carrying on any trade or
business” . Chicago, R. I. & P. R. Co. v.
Commissioner, 7 Cir., 47 F.2d 990, 991 ;
Great Northern R. Co. v. Commissioner,
8 Cir., 40 F.2d 372; Burroughs Building
Material Co. v. Commissioner, 2 Cir., 47
F.2d 178. They are not controlling on the
construction of section 23(c) (2).
The decision of the Board of Tax Ap
peals is reversed and the case remanded to
the Board with directions to enter an order
that there is no deficiency.
A L S T O N et al. v. S C H O O L B O A R D O F
C I T Y O F N O R F O L K et al.
No. 4623.
Circuit Court of Appeals, Fourth Circuit.
June 18, 1940.
1. Constitutional law <3=254
The fixing by local school hoard of
salary schedules for teachers is “ action by
the state” which is subject to limitations
prescribed by Fourteenth Amendment.
Code Va. 1936, §§ 656, 660, 786; Const.
Va. § 129; U.S.C.A. Const. Amend. 14.
See W ord s and P hrases, Perm anent
E dition , fo r ail other definitions of
“ A ction B y the S ta te".
2. Pleading <S=360(4)
The allegations of complaint, though
denied in the answer, would be taken as
true on motion to dismiss.
993ALSTON v. SCHOOL BOARD OF CTTY OF NORFOLK
112 f .:
3. Constitutional law <©=215, 275(1)
Fixing salaries of negro teachers in pub
lic schools at a lower rate than that paid
to white teachers of equal qualifications and
experience, and performing the same duties
on the sole basis of race and color, is vio
lative of the “ due process” and “ equal
protection” clauses of the Fourteenth
Amendment. Code Va. 1936, §§ 656, 660,
786; Const.Va. § 129; U.S.C.A. Const.
Amend. 14.
gee W ord s and Phrases, Perm anent
E dition , fo r all other definitions of
"D u e P rocess” and "E qu a l P rotection ” .
4. Constitutional law @=215
Negroes holding certificates qualify
ing them to teach in public schools of Nor
folk were entitled to have compensation
:^j|tteaching positions for which they might
l^ply fixed without unconstitutional dis
crimination on account of race, and as
such holders had rights entitling them to
seek relief from alleged discrimination, not-
■ withstanding selection of particular teach
ers was in discretion of the school authori
ties. Code Va. 1936, §§ 656, 660, 786;
Const.Va. § 129; U.S.C.A.Const. Amend. 14.
5. Constitutional law @ =43(l)
Negro school teachers who had entered
into contract with school board for current
year at discriminatory salary rate were not
thereby precluded from seeking declaratory
and injunctive relief for the future. Code
Va. 1936, §§ 656, 660, 786; Const.Va. §
129; U.S.C.A. Const.Amend. 14.
5. Action @=6
• ^ ^ p u r t s @=343
K cs A voluntary unincorporated association
composed of negro teachers in the public
schools of Norfolk was a “ proper party”
plaintiff in action for declaratory and in-
? junctive relief from unconstitutional dis-
* crimination against colored school teachers
in fixing of salaries. Code Va. 1936, §§
656, 660, 786; Const.Va. .§ 129; U.S.C.A.
Const.Amend. 14; Rules of Civil Pro
cedure for District Courts, rule 17(b), 28
U.S.C.A. following section 723c.
See W ord s and Phrases, Perm anent
E dition, fo r all other definitions o f
"P rop er P a rty ” .
r 7. Action @=6
Courts @=343
■ The superintendent of schools of Nor-
Ef folk was a “ proper party” defendant in
j action by colored school teachers of the
- _______________________
d 992
city for declaratory and injunctive relief
from unconstitutional discrimination against
colored school teachers in fixing of salaries.
Code Va. 1936, £§ 611, 656, 657, 660, 786;
Const.Va. § 129; U.S.C.A.Const.Amend.
14; Rules of Civil Procedure for District
Courts, rule 17(b), 28 U.S.C.A. following
section 723c.
Appeal from the District Court of the
United States for the Eastern District of
Virginia, at Norfolk; Luther B. Way,
Judge.
Action by Melvin O. Alston and another
against the School Board of the City of
Norfolk and another to obtain a declaratory
judgment that fixing of salaries of negro
teachers at a lower rate than that paid to
white teachers of equal qualifications and
experience is violative of due process and
the equal protection clauses of the Constitu
tion, and to obtain an injunction restraining
defendants from making any distinctions
on ground oi race or color in fixing salaries
of public school teachers in Norfolk.
From a judgment dismissing the action,
plaintiffs appeal.
Reversed, and cause remanded.
Thurgood Marshall, o f New York City,
and William II. Hastie, of Washington,
D. C. (Oliver W. Hill of Richmond, Va.
and Leon A. Ranson, of Washington, D. C.,
on the brief), for appellants.
Alfred Anderson and Jonathan W. Old,
Jr., both o f Norfolk, Va. (William C.
Coupland, of Norfolk, Va., on the brief),
for appellees.
Before PARKER, SOPER, and DOBIE,
Circuit Judges.
PARKER, Circuit Judge.
This is an appeal in a suit instituted by
Melvin O. Alston, a ’Negro school teacher
of Norfolk, Va., and the Norfolk Teach
ers’ Association, an association composed
of the Negro school teachers of that city,
against the School Board and the Super
intendent of Schools of the city. The
purpose of the suit is to obtain a declaratory
judgment, to the effect that the policy of
defendants in maintaining a salary schedule
which fixes the salaries of Negro teachers
at a lower rate than that paid to white
teachers of equal qualifications and ex
perience, and performing the same duties
and services, on the sole basis of race
and color, is violative oi the due process
994 112 FEDERAL REPORTER, 2d SERIES
and equal protection clauses o f the 14th
amendment, and also to obtain an injunc
tion restraining defendants from making
any distinction on the ground of race
or color in fixing the salaries of public
school teachers in Norfolk. The suit was
dismissed by the court below on the ground
that Alston and the School Board were the
only necessary parties to the cause and that
Alston had waived such constitutional
rights as he was seeking to enforce by hav
ing entered into a written contract with
the School Board to teach for a year at the
price fixed in the contract. On the appeal
presented by the plaintiffs three questions
arise: (1) whether upon the face of the
complaint an unconstitutional discrimina
tion is shown in the fixing of school teach
ers’ salaries by the defendants; (2) wheth
er rights of plaintiffs are infringed by such
discrimination; and (3) whether plaintiffs
have waived their right to complain of the
discrimination by entering into contracts
with the School Board for the current year.
[1] On the first question, there can be
no doubt but that the fixing of salary sched
ules for the teachers is action by the state
which is subject to the limitations pre
scribed by the 14th Amendment. The Con
stitution of Virginia provides that the
General Assembly shall establish and main
tain an efficient system of public free
schools throughout the state. Article IX^
sec. 129. The General Assembly has estab
lished such a system. Virginia Code of
1936, chs. 33 and 35. The public schools
of the City o f Norfolk are under the direct
control and supervision o f the defendants,
whose duty it is to employ teachers and pro
vide for the payment of teachers’ salaries.
Virginia Code, ch. 33, secs. 656, 660, and
ch. 35, sec. 786. While provision is made
in the law for separate schools for white
and colored persons, the positive duty is
enjoined of maintaining these separate
schools under the same general regula
tions as to management, usefulness and
efficiency. Virginia Code, sec. 680. All
teachers are required to hold teaching
certificates in accordance with the rules of
certification of the State Board of Educa
tion. Virginia Code, ch. 33, sec. 660 and
ch. 35, sec. 786. White and Negro teachers
must meet the same requirements to receive
teachers certificates from the Board of
Education and upon qualifying are issued
identical certificates.
[ 2 ] The allegations o f the complaint as
to discrimination, which are denied in the
answer, but which must be taken as true on,
the motion to dismiss, are as follows: 4
“ 11. Defendants over a long period ofj
years have consistently pursued and main
tained and are now pursuing and main
taining the policy, custom, and usage of
paying Negro teachers and principals in!
the public schools in Norfolk less salary;
than white teachers and principals in said'
public school system possessing the same
professional qualifications, certificates and
experience, exercising the same duties and
performing the sqme services as Negro
teachers and principals. Such discrimina
tion is being practiced against the plain
tiffs and all other Negro teachers-and prin
cipals in Norfolk, Virginia, and is based
solely upon their race or color.
“ 12. The plaintiff Alston and all of th
members of the plaintiff association
all other Negro teachers and principiS
in public schools in the City of Norfolk
are teachers by profession and are specially
trained for their calling. By rules, regula- I
tions, practice, usage and custom of the j
Commonwealth acting by and through the I
defendants as its agents and agencies, the/
plaintiff Alston and all o f the members of/
the plaintiff association and all other Negrc
teachers and principals in the City ok
Norfolk are being denied the equal protec
tion of the laws in that solely by reason of j
their race and color they are being denied ]
compensation from public funds for their
services as teachers equal to the compen- j
sation provided from public funds for ami
being paid to white teachers with equal i
qualificatiohs and experience for equiva
lent services pursuant to rules, regulatj^k
custom and practice of the CommonwsBtl
acting by and through its agents and agen- 1
cies, the School Board of the City of Nor
folk and the Superintendent of Schools of
Norfolk, Virginia.
“ 13. Plaintiff, Melvin O. Alston, has
been employed as a regular male teacher
by the defendants since September,. 1935,
and is in his fifth year of experience as a
regular teacher in the Booker T. Washing
ton High School, a public high school
maintained and operated under the direct
control, supervision, rules and regulations
of the defendants. Ide successfully com
pleted the course of instruction provided
at Virginia State College for Negroes, an a
accredited college maintained and operated j
by the State, o f Virginia for the instruction!
and preparation of Negroes as teachers in :
the public schools of the State. He holds ;
ALSTON v. SCHOOL BOARD OF CITY OF NORFOLK W Z
112 F.2U 992
a Collegiate Professional Certificate, the
; highest certificate issued by the Virginia
: State Board of Education for teaching
| in the public high schools o f Virginia. In
l order to qualify for this certificate plain-
i tiff has satisfied the same requirements as
those exacted of all other teachers, white as
r well as Negro, qualifying therefor, and he
, exercises the same duties and performs
I services substantially equivalent to those
performed by other holders o f the said
certificate, white as well as Negro, yet all
white male teachers in Norfolk who hold
the said certificate with equal and less
experience receive salaries much larger than
the salary paid the plaintiff. *
"14. White male high school teachers
employed by defendants whose qualifica-
/^ jn s , certification, duties and services are
hISs same as plaintiff’s are being paid by de
fendants a minimum annual salary of
Twelve Hundred ($1200.00) Dollars.
“ 15. Plaintiff Alston is being paid by
the defendants for his services this school
year as a regular male high school teacher
as aforesaid an annual salary of Nine
Hundred and Twenty-one ($921.00) Dol
lars, being the amount fixed by defendants
for Negro male high school teachers in
their fifth year of teaching experience and
solely because of the practice, usage and
custom complained o f in paragraph 11 of
this complaint, and by the operation of the
discriminatory salary schedule described in
paragraphs 16 and 17 of this complaint the
plaintiffs have been, are, and unless relief
shall be granted by this Honorable Court
as hereinafter prayed, will continue to be
/jgV'jed, solely by reason o f race and color
opportunity to receive a higher salary
equal to that paid to any white teachers
similarly situated.
“ 16. Pursuant to the policy, custom and
usage set out in paragraph 12 the defend
ants acting as agents and agencies of the
Commonwealth of Virginia have established
and maintained a salary schedule used by
them to fix the amount o f compensation
for teachers and principals in the public
schools of N&rfolk which discriminates
against plaintiff's solely because of their
race or color. All teachers and princi
pals .in the public schools o f Norfolk,
including the plaintiffs, have been, are
being and will continue to be paid by de
fendants pursuant to the following salary
schedule adopted, maintained and being en
forced by the defendants for the school
year 1939-1940:
Maximum salary
being paid (af-
Negro
Salaries now
being paid
teachers new
to the system.
fectlng only those
In system before
Increment plan
was discontinued.)
Elementary
Normal Cer
tificate % 597.50 8 960.10
Degree 611 00 960 00
High School
Women 699.00 1,105.20
Men 794.50 1,235.00
White
Elementary
Normal Cer
tificate 850.00 1,425.00
Degree 937.00 1,425 00
High School
Women 970.00 1,900.00
Men 1,200.00 2,185.00
The practical application o f this salary
schedule has been, is, and will be to pay
Negro teachers and principals o f equat
qualifications, certification and experience
with white teachers and principals less com
pensation from public funds solely on ac
count of their race or color.”
“ 19. The salaries of all teachers and
principals in the public schools of the
City of Norfolk, including the salaries
of petitioners, are paid out of the public
school fund. This fund derives from two
sources: The Commonwealth o f Virginia
and the City o f Norfolk (Virginia School
Code, Chapter 33, Section 646): all of
said public school fund is 'raised by means
of taxation upon the inhabitants o f Vir
ginia and their property (Constitution of
Virginia, Article IX, Sections 135, 136;
Virginia School Code, Chapter 33, Sec
tions 657, 698, 699; Chapter 35, Section
782). Pursuant to these statutes all that
portion of the public school fund which
derives directly from the state is used
exclusively for the payment of teachers’
salaries (Virginia School Code, Chapter 33,
Section 701).” " *■?
[3] That an unconstitutional discrimin- I
ation is set forth in these paragraphs hardly J
admits of argument. The allegation is that
the state, in paying for public services of
the same kind and character to men and
women equally qualified according to stan
dards which the state itself prescribes, arbi
trarily pays less to Negroes than to white
persons. This is as clear a discrimination
on the ground of race as could well be
imagined and falls squarely within the
inhibition.>of both the due process and the
equal protection clauses o f the . 14th
096 112 FEDERAL REPORTER, 2d SERIES
Amendment. As-was said by Mr. Justice
Harlan in Gibson v. Mississippi, 162 U.S.
565, 591, 16 S.Ct. 904, 910, 40 L.Ed. 1075:
“ Underlying all o f those decisions is the
principle that the constitution] >of the
United States, in its present form, forbids,
so far as civil and political rights are con
cerned, discrimination by the general gov
ernment, or by the states, against any
citizen because of his race. All citizens
are equal before the law. The guaranties
o f life, liberty, and property are for all
persons, within the jurisdiction of the
United States, or of any state, without dis
crimination against any because of their
race. Those guaranties, when their viola
tion is properly presented in the regular
course of proceedings, must be enforced in
the courts, both of the nation and of the
state, without reference to considerations
based upon race.”
^ Dealing with the precise question here
involved, Judge Chesnut, in Mills v.
Lowndes, D„ C., 26 F.Supp. 792, 801, said:
“ While the State may freely select its em
ployes and determine their compensation
it would, in my opinion, be clearly uncon
stitutional for a state to pass legislation
which imposed discriminatory burdens on
the colored race with respect to their quali
fications for office or prescribe a rate of pay
less than that for other classes solely on
account of race or color. If therefore
the state laws prescribed that colored teach
ers of equal .qualifications with white
teachers should receive less compensation
on account of their color, such a law would
•clearly be unconstitutional.”
In the later case of Mills v. Board of
Education of Anne* Arundel County, D.C,
30 F.Supp. 245, Judge Chesnut applied the
principle so stated in holding that a dis
crimination as to pay of teachers in white
and colored schools was violative of the
constitutional provision, and that a colored
teacher might invoke the power of the court
so to declare. This we think is in accord
with a long line of decisions which condemn
discrimination on account of race in the
exercise o f governmental power by a state
or its agencies. Thus, in Strauder v. West
Virginia, 100 U.S. 303, 25 L.Ed. 664, ex
clusion of colored persons from service on
petit juries was condemned as violative
of the constitutional provision. In Pierre
v. Louisiana, 306 U.S. 354, 59 S.Ct. 536,
83 L.Ed. 757, the same holding was made
with respect to grand juries. In Nixon
v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76
L.Ed. 984, 88 A.L.R. 458, and Nixon v .l
Herndon, 273 U.S. 536, 47 S.Ct. 446, 711
L.Ed. 759, discriminations with respect to ;
participating in party primaries were con-|
demned. In Lane v. Wilson, 307 U.S. 268,]
59 S.Ct. 872, 83 L.Ed. 1281, and Guinn v.'
United States, 238 U.S. 347, 35 S.Ct. 926, 59
L.Ed. 1340, L.R.A.1916A, 1124, like hold
ings were made with respect to discrimina
tion relating to the right to participate in
elections. Discriminations with respect to
the right to own and occupy property were
condemned in Buchanan v. Warley, 245 U.
S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918
C, 210, Ann.Cas. 1918A, 12U1; with respect
to Pullman accommodations on railroads,
in McCabe v. Atchison, Topeka & S. F.
R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.
Ed. 169; with respect to educational fa
cilities, in Missouri ex rel Gaines v. Can.d^
305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 2<ff?
with respect to the division of school funds
in Davenport v. Cloverport, D. C., 72 F.
689; and with respect to the pursuit of
a trade or vocation, in Chaires v. City
of Atlanta, 164 Ga. 755, 139 S.E. 559, 55
230.
r[4]_ We come, then, to the second ques
tion, i. e., do plaintiffs as Negro teachers
holding certificates qualifying them to teach
in the public schools of Norfolk have rights
which are infringed by the discrimination
o f which they complain? The answer to
this must be in the affirmative. As teachers
holding certificates from the state, plain
tiffs have acquired a professional status.
It is true that they are not entitled by
reason of that fact alone to contracts to
teach in the public schools of the st^Mf
for whether any particular one of t".“
shall be employed to teach is a matter rest
ing in the sound discretion of the school
authorities; but they are entitled to have
the compensation for positions for which
they may apply, and which will unques
tionably be awarded to some of them, fixed
without unconstitutional discrimination on
account of race. As pointed out by Judge
Chesnut, in Mills v. Lowndes, supra, they
are qualified school teachers and have the
civil right, as such, to pursue their pro
fession without being subjected to dis
criminatory legislation on account of race
or color. It is no answer to this to say
that the hiring of any teacher is a matter
resting in the discretion of the school au
thorities. Plaintiffs, as teachers qualified
and subject to employment by the state, are
entitled to apply for the positions and to
997A L S T O N v. S C H O O L B O A R D O F C IT Y O F N O R F O L K
1 1 ’ F.2<1 992
ha'r the discretion o f the authorities exer-
cisefl lawfully and without unconstitutional
discrimination as to the rate of pay to
*be awarded them, if their applications are
facCepte .̂ OS)
year, in any event, and the relief asked is
for the declaration and protection of rights
which extend beyond any present employ
ment.
[6,7] We should say, too, that we have
[5] ^Nor do we. think that tITefact that no doubt as to the Norfolk Teachers As-
plaintiffs have entered into contracts with
the school board for the current year at
the rate fixed by the discriminatory prac
tice precludes them from asking relief.
What the effect of such contracts may be
s on right to compensation for the current
year, we need not decide, since plaintiffs
are not insisting upon additional compen
sation for the current year and their prayer
for relief asks a broad declaration o f
rights and injunctive relief for the future.
As qualified teachers holding certificates,
tjtfy have rights as above indicated which
"y ln o t confined to the contract for the
current year, i. e, the right to apply for po-
sociation’s being a proper party to the suit.
According to the complaint, it is a volun
tary unincorporated association and “ is
composed of Negro teachers and principals
in the public colored schools of Norfolk” ;
and the right of such an association to sue
in its common name for the purpose of
enforcing substantive rights under the Con
stitution of the United States is provided
for under the Rules of Civil Procedure.
Rule 17(b), 28 U.S.C.A. following section
723c. The point is not important, however,
as the suit is brought as a class suit and
the members of the association belong Lo
the same class as the plaintiff Alston. Like-
sitions in the future and to have the Board- wise, there can be no question as to the
propriety o f joining the Superintendent
o f Schools with the Board as a party
defendant, as teachers are employed on
the recommendation of the Superintendent
(Va. Code sec. 660); he requests the City
Council to fix the tax levy so as to net the
amount necessary for the operation of the
schools (Va. '‘'"Code sec. 657); and he is
named by the statute as one o f those
charged with the administration o f the
schools (Va. Code sec. 611).
For the reasons stated, the order ap
pealed from will be reversed and the cause
will be remanded for further proceedings
not*inconsistent herewith. If the allega
tions of the complaint are established,
plaintiffs will be entitled to a declaratory
Bfftions which require the relinquishment judgment to the effect that the discrimina-
of constitutional rights. If the state may t°r>' policy complained of is violative of
award the positions without unconstitution
al discrimination as to the rate of pay.
The defendants take the position that no
one but a teacher holding a contract with
the Board has any such interest in the rate
of pay as would give him standing to sue
concerning it, and that he cannot sue be
cause he has waived the unconstitutional
discrimination by entering into the contract.
If this were sound, there would be no
practical means of redress for teachers sub
jected to the unconstitutional discrimina
tion. But it is not sound. As pointed
out in Frost Trucking Co. v. Railroad
Comm., 271 U.S. 583, 594, 46 S.Ct. 605,
607, 70 L.Ed. 1101, even in the granting
privilege, the state “ may not impose
compel the surrender of one constitutional
right as a condition of its favor, it may, in
like manner, compel a surrender of all. It
is inconceivable that guaranties embedded
in the Constitution of the United States
may thus be manipulated out of existence.”
See, also, Union Pac. R. Co. v. Public
Service Comm., 248 U.S. 67, 69, 70, 39
S.Ct. 24, 63 L.Ed. 131; Hanover Ins. Co.
v. Harding 272 U.S. 494, 507, 47 S.Ct. 179,
71 L.Ed. 372, 49 A.L.R. 713. But as stated
above, the waiver could not extend beyond
the terms o f the contract for the current
their rights under the Constitution and to
an injunction restraining defendants from
making any discrimination on the grounds
of race or color in fixing salaries to be
paid school teachers after the current fiscal
year. To avoid confusion and inconveni
ence in the preparation of the budget and
the making of contracts for the ensuing
year, we have given immediate consid
eration to the case. The mandate will
issue forthwith, to the end that prompt
action may be taken by the court below.
Reversed.
112 FEEER.1 T. REPORTER, 2d SERIES
S A N C H O , Trea surer, v. N A T IO N A L C I T Y
B A N K O F N E W Y O R K .
No. 3538.
C ircu it C ou rt o f A p p ea ls , F ir s t C iren it,
J u n e 28, 1940.
998
536, 538; 12 U.S.C.A. § 604 ; 48 U.S.G.A]
§ 872.
See W ords and Phrases, Permanent
E dition , fo r all other definitions f of
".Special and E xtraord in ary Circata- 5;
stan ce".
1. Courts <§=262(4)
Under statute providing that no suit
for purpose o f restraining assessment or
collection of any tax imposed by laws of
Puerto Rico shall be maintained in District
Court o f United States for Puerto Rico,
the prohibition against injunction is not
limited to cases where in the court’s view
the tax is properly owing. 48 U.S.C.A.
§ 872.
2. Courts <§=262(4)
Where Puerto Rican statute provided
procedure by which taxpayer could have
paid taxes for years 1930 to 1934, inclusive,
and sued Treasurer of Puerto Rico to re
cover them back, but taxpayer sought to
set off against income tax liability for years
1937 and 1938 amount for which taxpayer
claimed to be entitled to credit by reason of
erroneous payments for the prior years,
District Court o f United States for Puerto
Rico was without jurisdiction, under statute
providing that no suit for purpose of re
straining collection of any tax imposed by
laws of Puerto Rico shall be maintained in
District Court, of action to restrain threat
ened attachment by Treasurer of Puerto
Rico of taxpayer's property. Income Tax
Act Puerto Rico 1924, §§ 22, 35, 54-57,*60,
62, 64(b), 75, 76(a, b), Laws Puerto Rico
1925, pp. 460, 484, 512, 514, 520, 522, 526,
536, 538; 12 U.S.C.A. § 604; 4S U.S.C.A. §
872.
3. Courts <®=262(4)
Under statute providing that no suit
for purpose of restraining collection of tax
imposed by laws o f Puerto Rico shall be
maintained in District Court of United
States for Puerto Rico, even if taxpayer’s
failure to follow statutory procedure for
contesting tax resulted in taxpayer being
without remedy for recovery of taxes
erroneously paid for years 1930 to 1934,
the result was not such a "special and
extraordinary circumstance” as would
justify District Court in issuing an injunc
tion against collection of income taxes for
years 1937 and 1938. Income Tax Act
Puerto Rich 1924, §§ 22, 35, 54-57, 60,
62, 64(b), 75, 76(a, b), Laws Puerto Rico
1925, pp. 460, 484, 512, 514, 520, 522, 526,
Appeal from the District Court of the]
United States for Puerto Rico; Robert A.1
Cooper, Judge.
Action for injunction by the National
City Bank o f New York against Rafael
Sancho Bonet, Treasurer o f Puerto Rico.
From an adverse judgment, defendant ap
peals.
Judgment vacated, and case remanded,
with directions.
William Cattron Rigby, o f Washing<lB||
D. C. (George A. Malcolm, of San Jut§f
P. R., and Nathan R. lMargold, o f Washing
ton, D. C., on the brief), for appellant.
E. T. Fiddler, o f San Juan, P. R., and
Andrew Kirkpatrick, of Larchmont, N.Y.
(H. S. McConnell and Fiddler, McConnell
& Gonzalez, all o f San Juan, P. R,, on the
brief), for appellee.
Before MAGRUDER and MAHONEY
Circuit Judges, and PETERS, District
Judge.
, MAGRUDER, Circuit Judge.
The Butler Act o f March 4, 1927 (44
Stat. 1421, 48 U.S.C.A. § 872) amended
Section 48 of the Organic Act of Puerto
Rico by adding the following:
“ That no suit for the purpose o f re
straining the assessment or collectio' S 5
any tax imposed by the laws of PutWo
Rico shall be maintained in the District
Court o f the United States for Puerto
Rico.”
This provision was inserted in the bill
by amendment on the floor offered by
Senator Bingham, who thus explained its
purpose (68 Cong.Rec., p. 5025):
“ I will state that the change in the exist
ing law is this: The Organic Act o f Porto
Rico does not carry to Porto Rico the
general statutes of the United States.
Consequently, it has been possible and has
proved an extremely dangerous thing in
the government of Porto Rico for tax
payers to secure an injunction against pay
ing Porto Rican taxes in the court of the
United States, in the district court of the
United States for Porto Rico; and there
by^ instead o f following our practice—
TRANSCRIPT OF RECORD
Supreme Court of the United States
OCTOBER TERM, 1940
N o.
SCHOOL BOARD OF THE CITY OF NORFOLK AND
C. W. MASON, SUPERINTENDENT OF SCHOOLS
OF NORFOLK, PETITIONERS,
vs.
MELVIN 0. ALSTON AND THE NORFOLK TEACH
E RS’ ASSOCIATION
O N P E T IT IO N FO B A W R IT OF C E R T IO R A R I TO T H E U N IT E D ST A TE S
C IR C U IT C O U R T OF A P P E A L S FO R T H E F O U R T H C IR C U IT
FILED , 194 .
c
SUPREME COURT OF THE UNITED STATES
SCHOOL BOARD OF THE CITY OF NORFOLK AND
C. W. MASON, SUPERINTENDENT OF SCHOOLS
OF NORFOLK, PETITIONERS,
vs.
MELVIN 0. ALSTON AND THE NORFOLK TEACH-
ON PETITION FOR A W RIT OF CERTIORARI TO T H E U N ITED STATES
CIRCUIT COURT OF APPEALS FOR TH E FOURTH CIRCUIT
OCTOBER TERM, 1940
No.
OP NORFOLK, PETITIONERS,
VS.
ELVIN 0. ALSTON AND THE NO]
E R S ’ ASSOCIATION
IN D E X .
Original Print
S tip u la tio n a s to r e co r d f o r u se on a p p lica t io n f o r a w r it o f
c e r t io r a r i ................................................................................................................ 1 1
A p p e n d ix to b r ie f o f a p p e l la n t s ..................................................................... 2 3
C om p la in t ......................................................................................................... 3 4
A n sw e r o f d e fe n d a n ts ............................................................................. 17 18
C o n tra c t w ith te a ch e r s ...................................................................... 19 20
O rd er o f C ircu it C ou rt o f C ity o f N o r fo lk in ca se o f B la c k
y . S c h o o l B o a rd , e t c .......................................................................... 21 23
O p in ion fr o m th e b e n c h ...................................................................... 22 23
J u d g m en t o f D is t r ic t C o u r t .............................................................. 29 30
A p p e n d ix to b r ie f o f a p p e lle e s ................................................................. 32 32
A n sw e r o f d e fe n d a n t ................................................................................ 32 32
P ro ce e d in g s in U n ited S ta tes C ir c u it C ou rt o f A p p e a ls ............ 36 35
A p p e a ra n ce f o r a p p e lla n ts ........................................................................ 36 35
A p p e a r a n ce f o r a p p e llees ................................................................................ 36 35
A rg u m e n t o f ca u se on m e r it s ................................................................... 37 36
O p in ion ...................................................................................................................... 38 36
D e cr e e ......................................................................................................................... 50 45
Is su a n ce o f m a n d a te ....................................................................................... 51 45
C le rk ’s ce rt ific a te ............................................................................. 51 46
Judd & D etweileb ( I nc. ) , P rinters, W ashington, D. C., A ugust 5, 1940.
<
1
[fol. 1] U nited States Circuit Court op A ppeals, F ourth
C ir cu it
No. 4623
S tip u la tio n as to R ecord for U se on A pplicatio n for a
W rit of C ertiorari— Filed July 24, 1940
M elvin 0. A lston and the N orfolk T e a c h e r s ’ A ssociation ,
an unincorporated association, Appellants,
v.
S chool B oard of t h e C it y of N o rfo lk , a body corporate,
and C. W. M aso n , Superintendent of Schools of Norfolk,
Appellees
Appeal from the District Court of the United States for the
Eastern District of Virginia, at Norfolk
It is hereby stipulated between the Appellants, by their
attorney, and the Appellees, by their attorney, that the
transcript of the record for use in the Supreme Court of the
United States on an application for a writ of certiorari in
this case shall consist of the appendices to the briefs of the
respective parties filed in this Court plus the proceedings
of this case in this Court.
Alfred Anderson, Attorney for Appellants. Oliver
W. Hill, Attorney for Appellees.
1- 9161
APPENDIX TO BRIEF OF APPELLANTS.
Filed May 21, 1940.
APPENDIX
[Caption]
Complaint
1. The jurisdiction of this court is invoked under Judicial
Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a
suit in equity which arises under the Constitution and/or
laws of the United States, viz., the Fourteenth Amendment
of said Constitution and/or Sections 41 and 43 of Title 8
of the United States Code, wherein the matter in contro
versy exceeds, exclusive of interest and costs, the sum of
$3000. The jurisdiction of this court is also invoked under
Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14),
this being a suit in equity authorized by law to be brought
to redress the deprivation under color of law, statute, regu
lation, custom and usage of a State of rights, privileges and
immunities secured by the Constitution of the United
States, viz., the Fourteenth Amendment to said Constitu
tion, and of rights secured by laws of the United States
providing for equal rights of citizens of the United States
and of all persons within the jurisdiction of the United
States, viz., Sections 41 and 43 of Title 8 of the United
States Code.
2. Plaintiffs show further that this is a proceeding for a
declaratory judgment and an injunction under Section 274D
of the Judicial Code for the purpose of determining a ques
tion in actual controversy between the parties, to-wit, the
question of whether the practice of the defendants, in
adopting, enforcing and maintaining the policy, custom
and usage by which plaintiffs and other Negro teachers and
principals in the public schools of the City of Norfolk are
uniformly paid lower salaries than white teachers and prin
cipals in the City of Norfolk possessing the same profes
sional qualifications and certificates, exercising the same
duties and performing the same services, solely on account
of their race and color is unconstitutional and void being a
4
4 0
5
violation of the Fourteenth Amendment to the United
States Constitution and the laws of the United States and
the Constitution and Laws of the Commonwealth of Vir
ginia, all of which will appear more fully hereafter.
3. All parties to this action, both plaintiffs and defend
ants, are citizens of the United States and of the State of
Virginia and are resident and domiciled in said State.
Defendant School Board of the City of Norfolk at all times
mentioned herein was and is by law declared a body cor
porate.
y 4. Plaintiff, Melvin 0. Alston, is colored, a person of
African descent and of Negro blood. He is a tax payer of
the City of Norfolk and the State of Virginia. He is a
regular teacher in the Booker T. Washington High School,
a public high school located in Norfolk, Virginia, main
tained and operated by the School Board of the City of
Norfolk. This suit is brought on his own behalf and also
on behalf of other persons, citizens and residents of the
State of Virginia, namely, teachers and principals in the
colored schools of Norfolk, Virginia, similarly situated and
affected, as will hereinafter more fully appear.
/ 5. Plaintiff, Norfolk Teachers’ Association, a voluntary
unincorporated association, is composed of Negro teachers
and principals in the public colored schools of Norfolk, Vir
ginia, organized for the mutual improvement and protection
of its members in their profession as teachers and principals
in the public schools of Norfolk, Virginia.
6. Defendant School Board of the City of Norfolk exists
pursuant to the laws of Virginia as an administrative de
partment of the State of Virginia discharging governmental
functions (Constitution of Virginia, Article IX, Section
133; Code of Virginia, Chapter 35, Sections 774-776).
Defendant C. W. Mason is Superintendent of Schools of
Norfolk and holds office pursuant to the Constitution and
laws of Virginia as an administrative officer of the public
41
free school system of Virginia (Constitution of Virginia,
Article IX, Section 133; Code of Virginia, Chapter 34, Sec
tion 774). C. W. Mason is made a defendant herein and is
sued in his official capacity.
7. The State of Virginia has declared public education a
State function. The Constitution of Virginia, Article IX,
Section 129, provides:
“ Free schools to be maintained.— The general assem
bly shall establish and maintain an efficient system of
public free schools throughout the State.”
Pursuant to this mandate the General Assembly of Virginia
has established a system of free public schools in the State
of Virginia according to a plan set out in Chapters 34 and
35 of the Virginia Code of 1936, and supplement thereto
of 1938. Provision has been made for the establishment of
separate schools for white and colored persons with the
positive duty of maintaining these separate schools under
the same general regulations as to management, usefulness
and efficiency (Virginia School Code, Section 680). The
establishment, maintenance and administration of the pub
lic school system of Virginia is vested in a State Board of
Education, a Superintendent of Public Instruction, division
superintendent of schools and county and city school boards
(Constitution of Virginia, Article IX, Sections 131-133;
Virginia School Code, Chapter 33, Section 611A).
8. All teachers in Virginia, including plaintiffs and other
teachers in Norfolk are required to hold teaching certifi
cates in full force in accordance with the rules of certifica
tion laid down by the State Board of Education (Virginia
School Code, Chapter 33, Section 660). The duty of en
forcing this system is imposed upon the several county and
city school boards including the defendant School Board of
the City of Norfolk (Virginia School Code, Chapter 33, Sec
tion 660.) Negro and white teachers and principals alike
6
42
7
must meet the same requirements to receive teachers’ cer
tificates from the State Board of Education, and upon
qualifying are issued identical certificates.
9. The public schools of the City of Norfolk, Virginia, are
under the direct control and supervision of the defendants
acting as an administrative department or division of the
Commonwealth of Virginia (Virginia School Code, Chapter
34, Sections 774-786); the defendants are under a duty to
maintain an efficient system of public schools in Norfolk
(Virginia School Code, Chapter 33, Section 611); Chapter
36, Section 786); and to enforce the school laws of the
Commonwealth of Virginia (Virginia School Code, Chap
ter 33, Section 660; Chapter 35, Section 786).
10. The defendants are under a duty to employ teachers
(Virginia School Code, Chapter 33, Section 660; Chapter 35,
Section 786); and to provide for the payment of teachers’
salaries (Virginia School Code, Chapter 33, Section 656;
Chapter 35, Section 786); including the salaries of the plain
tiffs herein and all other teachers and principals employed
by defendants. The defendants are under a positive duty
to enforce regulations for the employment, remuneration
and dismissal of teachers in Norfolk (Chapter 48, Section
754 of the Charter and General Ordinances of the City of
Norfolk—1920).
11. Defendants over a long period of years have con
sistently pursued and maintained and are now pursuing
and maintaining the policy, custom, and usage of paying
Negro teachers and principals in the public schools of Nor
folk less salary than white teachers and principals in said
public school system possessing the same professional quali
fications, certificates and experience, exercising the same
duties and performing the same services as Negro teachers
and principals. Such discrimination is being practiced
against the plaintiffs and all other Negro teachers and prin
cipals in Norfolk, Virginia, and is based solely upon their
race or color.
43
/
12. The plaintiff Alston and all of the members of the
plaintiff association and all other Negro teachers and prin
cipals in public schools in the City of Norfolk are teachers
by profession and are specially trained for their calling.
By rules, regulations, practice, usage and custom of the
Commonwealth acting by and through the defendants as its
agents and agencies, the plaintiff Alston and all of the
members of the plaintiff association and all other Negro
teachers and principals in the City of Norfolk are being-
denied the equal protection of the laws in that solely by
reason of their race and color they are being denied com
pensation from public funds for their services as teachers
equal to the compensation provided from public funds for
and being paid to white teachers with equal qualifications
and experience for equivalent services pursuant to rules,
regulations, custom and practice of the Commonwealth act
ing by and through its agents and agencies, the School
Board of the City of Norfolk and the Superintendent of
Schools of Norfolk, Virginia.
13. Plaintiff, Melvin 0. Alston, has been employed as a
regular male teacher by the defendants since September,
1935, and is in his fifth year of experience as a regular
teacher in the Booker T. Washington High School, a public
high school maintained and operated under the direct con
trol, supervision, rules and regulations of the defendants.
He successfully completed the course of instruction pro
vided at Virginia State College for Negroes, an accredited
college maintained and operated by the State of Virginia
for the instruction and preparation of Negroes as teachers
in the public schools of the State. He holds a Collegiate
Professional Certificate, the highest certificate issued by
the Virginia State Board of Education for teaching in the
public high schools of Virginia. In order to qualify for this
certificate plaintiff has satisfied the same requirements as
those exacted of all other teachers, white as well as Negro,
qualifying therefor, and he exercises the same duties and
performs services substantially equivalent to those per
8
4 4
formed by other holders of the said certificate, white as well
as Negro, yet all white male teachers in Norfolk who hold
the said certificate with equal and less experience receive
salaries much larger than the salary paid the plaintiff.
14. White male high school teachers employed by de
fendants whose qualifications, certification, duties and serv
ices are the same as plaintiff’s are being paid by defendants
a minimum annual salary of Twelve Hundred ($1200.00)
Dollars.
15. Plaintiff Alston is being paid by the defendants for
his services this school year as a regular male high school
teacher as aforesaid an annual salary of Nine Hundred and
TAventy-one ($921.00) Dollars, being the amount fixed by
defendants for Negro male high school teachers in their
fifth year of teaching experience and solely because of the
practice, usage and custom complained of in paragraph 11
of this complaint, and by the operation of the discriminatory
salary schedule described in paragraphs 16 and 17 of this
complaint the plaintiffs have been, are, and unless relief
shall be granted by this Honorable Court as hereinafter
prayed, will continue to be denied, solely by reason of race
and color the opportunity to receive a higher salary equal
to that paid to any white teachers similarly situated.
16. Pursuant to the policy, custom and usage set out in
paragraph 12 the defendants acting as agents and agencies
of the Commonwealth of Virginia have established and
maintained a salary schedule used by them to fix the amount
of compensation for teachers and principals in the public
schools of Norfolk which discriminates against plaintiffs
solely because of their race or color. All teachers and prin
cipals in the public schools of Norfolk, including the plain
tiffs, have been, are being and will continue to be paid by
defendants pursuant to the following salary schedule
adopted, maintained and being enforced by the defendants
for the school year 1939-1940:
9
45
10
46
Negro—
Elementary
S a la r ie s n o w
b e in g p a id
te a c h e r s n e w
t o th e s y s te m
M a x im u m s a la r y
b e in g p a id
(a f fe c t in g o n ly
th o s e in s y s te m
b e fo r e in cr e m e n t
p la n w a s
d is co n t in u e d )
Normal Certificate $ 597.50 $ 960.10
Degree
High School
611.00 960.00
Women 699.00 1,105.20
Men
White
Elementary
784.50 1,235.00
Normal Certificate 850.00 1,425.00
Degree
High School
937.00 1,425.00
Women 970.00 1,900.00
Men 1,200.00 2,185.00
The practical application of this salary schedule has been,
is, and will be to pay Negro teachers and principals of equal
qualifications, certification and experience with white teach
ers and principals less compensation from public funds
solely on account of their race or color.
17. The salary schedule set out in paragraph 16 by which
plaintiffs and other teachers and principals in Norfolk are
being paid and are to be paid provides for a higher salary
for white teachers new to the system than for Negro teach
ers new to the system with identical state certificates, exer
cising the same duties and performing essentially the same
services; and a higher maximum salary for white teachers
than for Negro teachers with identical state certificates,
exercising the same duties and performing essentially the
same services; and pursuant to and because of said maxima
and minima white teachers in intermediate salary status are
paid higher salaries than Negro teachers with equivalent
intermediate status and experience, holding identical state
certificates, exercising the same duties and performing es-
«
l i
47
sentially the same services. The said discriminations in and
pursuant to the schedule of salaries being paid and to be
paid are based solely on race or color and amount to an
unlawful discrimination which constitutes a denial of due
process of law and equal protection of the laws guaranteed
by the Fourteenth Amendment to the United States Con
stitution, and is therefore unconstitutional and void.
18. In enforcing and maintaining the policy, regulation,
custom, and usage by which plaintiffs and other Negro
teachers and principals in the public schools of Norfolk are
uniformly paid lower salaries than white teachers and
principals possessing the same professional qualifications
and certificates, having the same experience, exercising the
same duties and performing essentially the same services,
solely on account of the race or color of the plaintiffs, de
fendants, as administrative agents of the Commonwealth
of Virginia, have violated and are continuing to violate the
equal protection of the laws and due process clauses of the
Fourteenth Amendment to the United States Constitution,
and Sections 41 and 43 of Title 8 of the United States Code.
To the extent that defendants in enforcing said discrimina
tory system are acting under color of statute, regulation,
policy, custom or usage, said statute, regulation, policy,
custom or usage is void and unconstitutional, and to the
extent that defendants may be acting without benefit of
statute, regulation, policy, custom or usage, their acts are
nevertheless acts of the State, similarly void and unconsti
tutional.
19. The salaries of all teachers and principals in the pub
lic schools of the City of Norfolk, including the salaries of
petitioners, are paid out of the public school fund. This
fund derives from two sources: The Commonwealth of Vir
ginia and the City of Norfolk (Virginia School Code, Chap
ter 33, Section 646); all of said public school fund is raised
by means of taxation upon the inhabitants of Virginia and
their property (Constitution of Virginia, Article IX, Sec-
tions 135, 136; Virginia School Code, Chapter 33, Sections
657, 698, 699; Chapter 35, Section 782). Pursuant to these
statutes all that portion of the public school fund which de
rives directly from the state is used exclusively for the pay
ment of teachers’ salaries (Virginia School Code, Chapter
33, Section 701).
20. Plaintiff Melvin 0. Alston is an owner of property
jointly with other members of his family, a citizen and a
resident of the City of Norfolk, and the Commonwealth of
Virginia, and is a taxpayer in said City and Commonwealth
contributing directly thereby to the creation of said public
school fund and the payment of teachers’ and principals’
salaries, including his own. The property of plaintiff Al
ston is taxed equally and in the same proportion as that of
all other citizens, residents and property owners of the
City of Norfolk and the Commonwealth of Virginia; no
discrimination is made in the rate of taxes he is required to
pay into the said public school fund on account of his race
or color. Under the Constitution of Virginia said public
school fund is to be administered for the equal benefit of all
the people of the State (Constitution of Virginia, Article
IX, Section 135.)
21. By virtue of the discriminatory salary schedule for
teachers established and maintained by the defendants,
hereinbefore set forth in paragraph 16, and the custom set
out in paragraph 12, the plaintiff is denied an equal and
proportionate participation in the benefit derived from that
portion of his taxes devoted to the public school fund and
the payment of teachers’ salaries therefrom; he is denied
said equal and proportionate participation in said benefit
and return solely on account of his race and color, con
trary to the provisions of the Fourteenth Amendment to
the Constitution of the United States and thereby suffers
and sustains special and particular damage from the dis
crimination practiced against him in the distribution of the
fund which his taxes helped to create; and he is without
remedy save this Honorable Court issue its writ of in
12
48
junction restraining the defendants from distributing on
an unconstitutional basis, and accoi'ding to the discrimina
tory and unconstitutional salary schedule hereinbefore de
scribed and set forth at paragraph 16, the public school
fund, to which plaintiff contributes, and which is used for
the payment of teachers ’ salaries.
22. The defendants have the official authority and duty
of maintaining the public schools within the corporate limits
of the City of Norfolk (Chapter 48, Section 754 of the
Charter and General Ordinances of the City of Norfolk—-
1920); the defendant School Board is required on or before
the first day of October of each year to submit to the City
Manager of the City of Norfolk, Virginia, a detailed esti
mate of its budget for the ensuing school year (Charter of
the City of Norfolk, Section 109, Acts of Assembly of 1918).
The City Manager of the City of Norfolk is required to
submit all estimates, including the estimate of the public
school budget for annual appropriations to the City Council
at least sixty days before the end of the fiscal year (Charter
of the City of Norfolk, Section 67, Acts of Assembly, 1918).
Beginning with January 1, 1920, the fiscal year for Norfolk
begins with January 1 and ends with December 31 of each
year (Charter of the City of Norfolk, Section 69, Acts of
Assembly 1918.) The City Council is required to pass the
annual appropriations at least thirty days px-ior to the end
of the fiscal year (Charter of the City of Norfolk, Section
68, Acts of Assembly, 1918). The section of the estimate of
the budget for the year 1940 for the public schools of Nor
folk on teachers’ salaries is based upon the discriminatory
salary schedule set out in paragraph 16 of this complaint
and the practice, policy, custom and usage set out in para
graph 12 of this complaint. Unless this Honorable Court
intervenes and grants the relief prayed in this complaint,
the defendants will continue to distribute the public school
fund for the City of Norfolk on the illegal and unconstitu
tional basis set out above to the irreparable injury of the
plaintiffs and others on whose behalf they file this suit.
13
49
23. A petition on behalf of Aline Elizabeth Black, indi
vidually and on behalf of the Negro teachers and principals,
including the present plaintiffs, was filed with the defend
ants on or about October 27, 1938, requesting that the sal
aries of Negro teachers and principals be equalized with
those of white teachers and principals with equal qualifica
tions and experience and performing essentially the same
duties; the petition was denied and on September 28, 1939,
a similar petition was filed on behalf of the plaintiffs with
the defendant School Board of the City of Norfolk; this
petition requested that present salary schedule be abolished
and that plaintiffs and other Negro teachers and principals
be paid compensation equal to that paid white teachers and
principals with essentially equivalent qualifications and ex
perience and performing essentially equivalent duties; this
petition on or about the 26th of October, 1939, was likewise
refused.
24. Plaintiffs and those similarly situated and affected
on whose behalf this suit is brought are suffering irrepa
rable injury and are threatened with irreparable injury in
the future by reason of the acts herein complained of. They
have no plain adequate or complete remedy to redress the
wrongs and illegal acts herein complained of other than
this suit for a declaration of rights and an injunction. Any
other remedy to which plaintiffs and those similarly situated
could be remitted would be attended by such uncertainties
and delays as to deny substantial relief, would involve mul
tiplicity of suits, cause further irreparable ijijury, and oc
casion damage, vexation and inconventience not only to the
plaintiff and those similarly situated, but to defendants as
governmental agencies.
25. There is between the parties an actual controversy as
hereinbefore set forth.
WHEREFORE, plaintiffs respectfully pray the Court
that upon filing of this complaint, as may appear proper
and convenient to the Court, the Court advance this cause
14
50
on the docket and order a speedy hearing of this action ac
cording to law, and that upon such hearings:
15
51
(1) That this Court adjudge and decree, and declare
the rights and legal relations of the parties to the sub
ject matter here in controversy, in order that such
declaration shall have the force and effect of a final
judgment or decree.
(2) That this Court enter a judgment or decree de
claring that the policy, custom or usage of the defend
ants in adopting, enforcing, or maintaining a salary
\ schedule fixing the salaries of the plaintiffs and other
Negro teachers and principals at a rate lower than
that paid to white teachers and principals of equal
qualifications and experience, and performing essen
tially the same duties and services, solely because of
their race or color, is a denial of the equal protection of
the laws guaranteed by the Fourteenth Amendment of
the United States Constitution and is therefore uncon
stitutional and void.
(3) That this Court enter a judgment or decree de
claring that the distribution by the defendants of that
portion of the public school fund for teachers’ salaries
on a basis whereby plaintiff Alston and other Negro
teachers and taxpayers receive less salary than white
teachers and taxpayers with equal qualifications and
experience, and performing essentially the same duties
and services solely because of their race or color denies
to plaintiff Alston and others similarly situated the
equal protection of the law and due process of law
guaranteed by the Fourteenth Amendment of the
United States Constitution and is therefore uncon
stitutional and void.
(4) That this Court issue a permanent injunction
forever restraining and enjoining the defendants and
each of them from making any distinction solely on the
grounds of race or color in the fixing of salaries paid
white and colored teachers and principals employed in
the public schools of the City of Norfolk.
/ (5) That this Court issue a permanent injunction
forever restraining and enjoining the defendants and
each of them from paying to plaintiff Alston or mem
bers of plaintiff Norfolk Teachers’ Association or any
other colQred teacher or principal employed by them a
less salary than they pay any white teacher or principal
employed by them with equal qualifications, certifica
tion, experience and filling an equivalent position in the
public schools of the City of Norfolk.
(6) Plaintiffs further pray that the Court will allow
them their costs herein and such further, other, addi
tional or alternative relief as may appear to the Court
to be equitable and just.
(Signed) By M e l v i n 0. A l s t o n ,
M e l v i n O . A l s t o n
N o r f o l k T e a c h e r s ’ A s s o c i a t i o n
(Signed) By M e l v i n 0. A l s t o n ,
M e l v i n O . A l s t o n , President
Plaintiffs
16
52
17
53
C o m m o n w e a l t h o p V i r g i n i a
C i t y o f N o r f o l k } ss
I, Melvin 0. Alston, having been first sworn according to
law, depose and say upon oath that I am one of the plaintiffs
named in the foregoing complaint; that I have read said
complaint and that the matters and facts set forth therein
are true to the best of my information, knowledge and
belief.
M e l v i n 0 . A l s t o n
Subscribed and sworn to before me th is------ day of No
vember, 1939, in the City and Commonwealth aforesaid.
My commission expires
Notary Public
, J. T h o m a s H e w i n , Jr.
327 North First Street,
Richmond, Virginia
O l i v e r W . H i l l
117 East Leigh Street,
Richmond, Virginia
L e o n A . R a n s o m
1512 Girard Street, N. E.,
Washington, D. C.
W i l l i a m H . H a s t i e ,
1221 Fairmont Street, N. W.,
Washington, D. C.
T h u r g o o d M a r s h a l l ,
69 Fifth Avenue,
New York, N. Y.
Attorneys for Plaintiffs
[Caption]
Answer of Defendants
First Defense
The Court lacks jurisdiction over the subject matter, be
cause :
(a) The matter in controversy does not exceed, ex
clusive of interest and costs, the sum of Three Thou
sand Dollars.
(b) There are no grounds upon which to invoke the
jurisdiction of the Court under Judicial Code, Section
24 (14), 28 U. S. C. A. Section 41 (14).
(c) No constitutional rights of the plaintiffs have
been violated.
(d) Plaintiffs have full, complete and adequate rem
edy at law if they have any remedy at all.
(e) For the reasons alleged in the Second Defense
herein.
18
54
Second Defense
1. The plaintiffs fail to state a claim upon which relief
can be granted, because:
(1) There is no controversy between the plaintiffs
and defendants that is embraced within the declaratory
judgment Act referred to in the complaint.
(2) The Norfolk Teachers’ Association is an unin
corporated organization and as such is not within the
constitutional provisions referred to in the bill of com
plaint.
(3) The plaintiff, Melvin 0. Alston, as an employee
of the School Board, has no vested rights to any posi
tion to teach in the public schools and a claim in the
premises is not within the provisions of the Constitu
tion and Acts of Congress alleged.
(4) By reason of contract in writing dated June 12,
1939, between the plaintiff, Melvin 0. Alston, and said
School Board, a copy of which is attached hereto as a
part hereof, covering his services as a teacher in said
public schools, he is estopped from proceeding in this
cause and has waived any rights, if any he has, in the
premises.
(5) By reason of the contract aforesaid, to grant the
relief requested, the Court would be making a contract,
which the law vests the School Board with the discretion
to make, and would further be impairing the obligation
of the contract heretofore made.
(6) Even if the Court has jurisdiction of the subject
matter involved, nevertheless it has no jurisdiction in
this particular case.
(7) The plaintiff, Melvin 0. Alston, has no vested
right to teach in the public schools of the City of Nor
folk and therefore no rights to be protected by this
Court.
(8) Under the laws of the State of Virginia the said
School Board is authorized and empowered to employ
teachers and fix their compensation, and such being the
case they have the right to employ them for such salary
as said Board is willing to pay and the teacher to accept.
(9) The operation of the public schools of the State
of Virginia is a State function, and to grant relief in
this case the Court would be interfering with the op
eration of the State in such function.
2. The plaintiffs cannot proceed on behalf of others who
are not named in the complaint.
3. For the reasons alleged in the First Defense.
19
55
Third, Defense
Heretofore, Aline Elizabeth Black, a Negro teacher in
said public schools, brought a writ of mandamus in the Cir
cuit Court of the City of Norfolk against said defendants
seeking the same relief alleged in this complaint, “ in her
own right and on behalf of all such other persons similarly
situated,” and by order of said Court entered on the First
day of June, 1939 (a certified copy of which is attached
hereto and made a part of this answer), such relief was
denied. No appeal was taken from this decree, and under
the laws of the State of Virginia for such cases made and
provided, the said decree has become final, thereby fully and
completely adjudicating the matters and things set forth
and contained in this complaint.
[Copy]
Contract With Teachers
This Article of Agreement, between the School Board of
Norfolk, Virginia, State of Virginia, of the first part, and
M. 0. Alston, of the second part:
Witnesseth, That the said party of the second part sub
ject to the authority of the said school board under the
supervision and control of the division superintendent
agrees to teach in the schools administered by said school
board under the following conditions; to-wit:
1. The said teacher or party of the second part shall
open and close school on regular school days at such
hours as the school board may designate, and shall give
daily recess with appropriate supervision in accordance
with the recess schedule adopted by the school board,
provided the school day consists of not less than five
hours or more than six and one-half exclusive of the
noon hour recess, when such is provided.
2. The said teacher shall obey all school laws and
regulations and all rules made in accordance with the
20
56
law by the said school board and shall make promptly
and accurately all reports required by the superin
tendent of schools.
3. Said teacher shall exercise care in the protection
and upkeep of the school property, furniture and fix
tures and shall promptly report to the superintendent
needed repairs or necessary added facilities or supplies.
4. In schools in which no regular janitor is employed
the arrangement for keeping the school clean and in
sanitary condition is stipulated below under special
covenant, number 1.
5. The said teacher hereby swears or affirms alle
giance and loyalty to the Government of the United
States.
6. The school board or party of the first part shall
deduct monthly from the salary of the said teacher a
sum equal to one per centum of the salary, to be placed
to the credit of the Retired Teachers’ Fund and to be
applied as provided by law.
7. The said teacher may be changed from one teach
ing position to a different teaching position by the dh
vision superintendent when the efficiency of the school
system requires such change, and provided proper ex
planation be made to the school board.
8. The said board reserves the right to discuss the
teacher or party of the second part for just cause, an
opportunity on request being granted for a hearing,
paying for services rendered in accordance with this
agreement to date of dismissal. In case schools are
closed temporarily on account of an epidemic or for
other necessary cause the board may pay the teacher for
time lost, or may extend the school term.
9. The said school board or party of the first part
agrees to pay said teacher or party of the second part,
$92.10 per school or calendar month for a term of ten
(10) school or calendar months, beginning on Septem-
21
57
22
58
ber 7, 1939 for a lawful school, for services rendered,
payable on the last day of each school or calendar month
or as soon thereafter as possible. (Bee special cove
nant, number 3).
SPECIAL COVENANT.
1. With reference to care and cleanliness of school
building and out buildings in which no janitor is em
ployed.
2. With reference to time lost by teacher on account
of sickness or for other cause.
Deduction from salary subject to Rides and Regu
lations of the School Roard numbered 25.
3. With reference to shortening the school term in
case funds are exhausted.
The right is reserved to the School Board to in
crease or decrease the salary herein specified for
any month or months immediately after notice to
that effect.
4. Other covenants.
In witness whereof, the parties hereunto have set their
hands and seal, this 12th day of June, 1939.
(Signed) A. H . F o rem an ,
Chairman of the Roard L.S.
L e a h a H aller
Clerk of the Roard L.S.
(Signed) M elvin 0. A lto n
Teacher L.S.
[Copy]
V I R G I N I A :
In the Circuit Court of the City of Norfolk, on the 1st day
of June, in the year, 1939.
23
59
Aline Elizabeth Black,
Petitioner
vs.
School Board of the City of Norfolk,
A body corporate, and C. W. Mason,
Superintendent, Defendants
This day came the petitioner and filed her written ex
ception to the ruling of the Court continuing this cause from
April 20, 1939, to May 31, 1939; and came also the defend
ants and filed their separate demurrers and answers to said
petition; and came the petitioner further and filed her
joinder in said demurrers and her replications and joinder
of issues to the separate answers of each of the defendants.
And this cause then came on this day to be heard upon
the petition of the petitioner and the exhibits filed therewith
and upon the demurrers of the defendants filed thereto, and
upon argument of counsel.
Upon consideration of which the Court, for reasons stated
in its opinion which is filed as a part of the record in this
cause, being of opinion that said demurrers should be sus
tained, doth hereby adjudge that the same be sustained, and
that said petition be and the same is hereby dismissed, to
which said ruling of the Court the petitioner, by her counsel,
duly excepted on the ground that the same is contrary to
the law.
And it is further ordered that the defendants recover of
the petitioner their costs in this behalf expended.
A COPY T E ST E :
C ecil M. B obertson , Clerk
By Sue B. Goforth D.C.
[Caption]
Opinion From the Bench
I feel that the Court ought to announce its conclusions
now in the presence of those directly interested in the litiga
tion, rather than defer the decision until a later time. The
Court has had the benefit of the briefs for about ten days
and the opportunity to study the pleadings and the briefs
and to make an independent investigation of the law deemed
applicable. I desire to compliment counsel for both sides
upon the able and exhaustive briefs which they have filed and
on the oral arguments made today. The questions presented
and particularly that with respect to the alleged discrimi
nation on account of race or color, are very important. *
They are questions which concern this section of the coun
try especially and which must be faced and finally solved in
accordance with the mandates of the Constitution, without
regard to the outcome of this pending case. These conclu
sions can not be doubted by any serious-minded citizen who
has given careful thought to the subject.
As pointed out in the course of the argument today, one
of the questions raised in both the complaint and the an
swer relates to the amount involved in the controversy.
The defendants have very properly conceded that this is not
the type of case which requires the allegation and proof of
any particular amount in order to establish jurisdiction in
this court. The right asserted in the complaint is a civil
right, guaranteed by the Constitution, is excepted from the
provisions of the Act of Congress conferring jurisdiction
based upon the amount in controversy. Consequently no
amount is required to be alleged or proved in order to main
tain a suit based upon an alleged violation of such right.
I do not think that the Court is required, in the view that
it takes of the right of the plaintiff to maintain his suit in
the face of the written contract, to express an opinion in
regard to the most important question involved in cases of
this type. I do not know what facts the proofs would finally
establish, if the case proceeded that far, with respect to the
charge of unconstitutional discrimination against the plain
tiff on account of his race or color. /The authorities are
clear, I think however, that there can be no discrimination
in a case of this kind, if such discrimination is based on race
or color alone. Under our Constitution, particularly the
24
60
Fourteenth Amendment, all citizens stand upon equal footing
before the law and are entitled to equal benefits and privi
leges where state action is involved; or, to state the proposi
tion another way, a state can not, through its constitution,
statutes, or rules and regulations, or through one of its ad
ministrative bodies, arbitrarily discriminate against per
sons within its jurisdiction. In the words of the Fourteenth
Amendment, a state can not deny to any person within its
jurisdiction the equal protection of the law. That principle
is firmly established, and, if and when a case of discrimina
tion based on race or color is presented, the person discrim
inated against will be granted appropriate relief.
The view that I take of the plaintiff’s case, with some
hesitation I will admit, does not render it necessary for the
Court to pass on the unconstitutional discrimination charged
in the complaint to have been practiced against the plaintiff,
other than to observe that the complaint charges in clear
and explicit language that the discrimination in compensa
tion is based on race or color alone. Under well-established
rules on a motion to dismiss, the court must accept those
allegations as true, because they are well pleaded, as an
examination of the complaint will disclose. That is to say,
when matters are well pleaded in the complaint and a mo
tion to dismiss is filed, based upon the alleged ground that
the complaint fails to show that the plaintiff is entitled to
any relief, the court must assume that the facts well pleaded
in the complaint are true. That, of course, does not mean
that in the event the case proceeds to the taking of testi
mony, that such allegations will still be assumed to be true.
In that event the parties alleging facts will have to establish
their existence by the required degree of proof, but this
case, however, has been heard today upon motion to dismiss
and upon such motion, as already observed, the facts alleged
in the complaint have to be taken as true for the purposes
of the hearing.
A defense set up in the ansAver which gave me serious con
cern from the first in the examination of the pleadings and
25
61
62
briefs, and which stands out in the record as an undisputed
fact, is that some time before this suit was instituted the
plaintiff entered into a contract with the defendant school
board, which contract covers the subject matter of this liti
gation. For the purposes of a decision of this case I think
that the plaintiff Alston and the defendant school board may
very properly be regarded as the persons who are essentially
interested as parties in the outcome.
A copy of that contract is in the record before the court.
There is an absence of any claim that I can find in the com
plaint to the effect that the plaintiff was induced to enter
into the contract by fraud, misrepresentation or that it was
entered into under duress or that any unfair means were
employed by defendants in that behalf, or that it was ever
made or signed under protest. There was the general
charge in the oral arguments today that the plaintiff was
afraid to assert his rights against the defendants, and had
to accept what the defendants offered him or forego follow
ing the profession for which he had prepared himself in life.
And I do not think that this is a suggestion that should be
lightly disregarded by the court. I am fully aware of the
fact that in situations of this kind it sometimes happens
that the employee is at a distinct disadvantage, is not in a
position to boldly assert what he conceives to be his rights,
and does not therefore, in fact, contract freely with the
other party. But I do not find disclosed in the record any
facts that have been pleaded by way of explanation that
could reasonably justify the court in reaching the conclu
sion that it ought to disregard the written contract and fur
ther proceed in the case in spite of the fact that the plaintiff
voluntarily entered into such contractual relation with the
defendants.
It does appear that the plaintiff is a man of intelligence
and excellent education, that he is experienced, that he has
been teaching in the public schools of this City for some
years and was entirely familiar with the alleged unconsti
tutional discrimination against the members of his race
26
long before he accepted the written contract tendered to
him by defendant. Of those facts there can not be the
slightest doubt. Now, there is some persuasiveness in the
argument that he feared to assert his rights, feared that he
might be punishd by the loss of his position, having before
him the unhappy example of another teacher who had
sought to enforce what she conceived to be her constitutional
rights. I say, those matters caused me to hesitate, but I am
satisfied that this plaintiff, and others similarly situated,
each in his individual right, have a remedy if they are here
after unconstitutionally discriminated against, without the
necessity of signing a contract with the Board, a remedy by
which they can go into a court of competent jurisdiction and
have the cases heard and their constitutional rights vindi
cated, if the latter have been violated or are threatened to
be violated in the immediate future.
I do not think a court ought to be quick in any case,
whether it is a case of colored citizens or white citizens, or
individuals or corporations, whether the case relates to
contracts of this kind or contracts in general, to disregard
and set aside the solemn obligations of a contract. On the
contrary, I think it is the duty of the Court, unless it is
clearly shown that the contract is invalid because contrary
to law or other cause, to uphold it, and, as far as it is within
its jurisdiction, to protect its obligations. I do not see, after
a careful study of the authorities relied on by both sides on
that particular point, how the plaintiff can have a valid,
binding contract which he can enforce against the defendant
Board and at the same time be in a position to repudiate
that contract insofar as it is not favorable to him and come
into a court of equity and ask the court to make a different
contract.
Whatever may be the law in other states, there is no
doubt that in Virginia a person can not under the law as it
now exists and has existed for many years, acquire a status
as a teacher, which gives him certain rights that must be
respected, independently of a contract with the Board as a
27
63
teacher. In Virginia the relation is not a continuing one,
but can be created only by a contract with the School Board
in a particular jurisdiction. It continues for only one
school year at a time, with the absolute right on the part of
the School Board not to contract again with the particular
person. The Board may decline to contract again with such
person without rhyme or reason for such refusal and in that
particular part of the Board’s procedure there manifestly
has been no discrimination on account of race or color, for
the simple reason that the Board can, after the expiration
of the school year, decline to have any further contractual
relations with an applicant to teach, whether such applicant
be white or colored.
But I do not think that even that broad discretion in the
Board would give it the right, after the qualifications of an
applicant had been favorably passed on, found acceptable
and the applicant tendered a written contract to teach, to
say if the applicant then insisted that he be not discrimi
nated against on account of his race or color, that such
applicant was without any remedy because he did not have a
written contract with the Board. In other words, the Board
could hardly be heard to say, as it now does, that a man
had entered into a contract binding upon him and had
thereby waived his right to protest against unconstitutional
discrimination, and later say to an applicant with the
proper qualifications, who had been approved and tendered
a contract, that he had no right because he did not have a
written contract with the Board.
My conclusion, therefore, is that this contract has not
been shown to be invalid in any particular; that it is binding
upon the plaintiff, as well as upon the defendant Board,
plaintiff having signed and entered upon the performance
of the contract two or three months (I do not recall the
exact time) before this suit was instituted; that if the
plaintiff intended to contest the action of the Board with
respect to compensation, it was his duty to take prompt and
appropriate action to that end after he was accepted as an
2 8
6 4
29
65
applicant and before he entered into a contract with the
Board for another year. I think that by signing the con
tract and entering upon its performance, he waived the
constitutional right which he now asserts in the complaint.
I think that in principle the case is very much like the case
of the colored man in Missouri (Missouri ex rel Gaines v.
Canada, 305 U. S. 337) would have been if he, instead of
insisting on his constitutional right as he did, had accepted
the substitute offered by the State of Missouri, and had gone
to a university in one of the designated adjoining states to
study law. In other words, had he accepted the substitute
& offered by the State of Missouri, he could not thereafter
have insisted upon his original rights. By declining to ac
cept the substituted privilege he remained in a position to
demand that to which he was originally entitled. That right
was personal to him and it lay within his power alone to de
termine whether he would insist on that right or would
accept a substitute therefor.
In numerous instances citizens understandingly waive
constitutional rights, not necessarily expressly but by their
conduct. For instance, it is fundamental law in this country
that private property can not be condemned for private use,
even for just compensation, yet there are many instances
in which corporations possessing the power of eminent do
main, have condemned private property for private use, or
in which corporations not possessing the power of eminent
domain have nevertheless condemned private property, and
yet in these cases the condemnor has acquired good title to
the property. The owners had a constitutional right to
object to their property being taken by corporations not
possessing the power of eminent domain or to its being taken
for a private use, yet when they failed to insist upon their
constitutional rights and accepted the compensation
awarded for the property taken, they could not thereafter
deny the title of the condemnor.
Unfortunately, there have been instances in which colored
people have been indicted in courts in which colored citizens
30
66
were systematically excluded from the grand and petit
juries, but I do not recall at this time any instances where
that practice prevailed and a defendant, with knowledge of
the situation, made no appropriate objection to the grand
and petit juries, but stood trial on the merits and was con
victed, that the conviction was set aside because of the viola
tion of the defendant’s constitutional rights in that respect.
It is true that it has been held in many cases, where the de
fendant made timely objection to the grand and petit juries
on the ground that he was being discriminated against be
cause of his race or color, that the convictions were set aside
by the appellate courts. In those instances the conviction ̂
was set aside because the accused had insisted upon his con
stitutional right. An outstanding illustration of the waiver
of constitutional rights may be found in the recently adopted
Rules of Civil Procedure. Nothwithstanding the fact that
the Seventh Amendment to the Constitution preserves the
right of trial by jury in certain classes of cases, under the
express provision of the Rules, unless a party to a civil ac
tion makes timely written demand for trial by jury, he is
deemed to have waived that right. (Rule 38)
It is regretable, in a sense, that the Court can not finally
dispose of all matters in the suit, but will have to dismiss
the case because of what may by some be thought to be a
technicality. A solemn written contract entered into be
tween parties, whether it be between a citizen and an arm of
the state, or between two individuals, or betwen individuals .
and a corporation, or between corporations, can in no
proper sense be regarded as a technicality.
[Caption]
Judgment
The Court having suggested, after examination of the
bill of complaint and answer herein that insofar as
defenses in law are raised in the portions of the answer
denominated “ First Defense” , Second Defense” and
“ Third Defense” , the hearing and disposition of the case
might be facilitated if argument was made in advance of
trial upon defendant’s motion to dismiss the bill of com
plaint for alleged legal insufficiency and upon that part of
the answer which challenges the legal sufficiency of the
complaint upon the ground that plaintiff had waived his
asserted constitutional right by entering into a contract
with defendant;
And by consent of the parties the case thereafter, on Feb
ruary 12, 1940, came on to be heard upon the defendant’s
motion to dismiss the bill of complaint on the ground of
legal insufficiency and also so much of the answer as chal
lenges the legal sufficiency of the complaint because of al
leged waiver by entering into said contract, and was fully
argued by counsel, counsel for the respective parties having
theretofore filed their written briefs with the Court;
And the Court being of the opinion that the plaintiff,
Melvin 0. Alston, and the defendant, School Board of the
City of Norfolk, are the only necessary parties to this cause,
and being further of the opinion that plaintiff, Melvin 0.
Alston, having entered into said written contract with the
defendant, School Board of the City of Norfolk, to teach,
which contract is a part of the record in this cause, and
having prior to the institution of this suit entered upon
the performance and partly performed the said written con
tract, has for the reasons stated in the opinion of the Court,
delivered orally at the close of the arguments, waived such
constitutional rights, if any he has, that he seeks to enforce,
doth so ADJUDGE and DECREE;
And it is accordingly ADJUDGED, ORDERED AND
DECREED that this action be and the same hereby is dis
missed, to which ruling of the Court in dismissing the com
plaint, plaintiff, by counsel, duly objected and excepted.
And it is further ORDERED that the defendants recover
of the plaintiffs their costs in this behalf expended.
(Signed) L u t h e r B. W ay
Norfolk, Virginia, United States District Judge
February 29, 1940.
31
67
32
APPENDIX TO BRIEF OF APPELLEES.
Filed June 5, 1940.
APPENDIX.
(Caption)
Answer of Defendant.
(First, Second and Third Defenses are set forth in
Appellants’ Brief).
Fourth Defense.
The plaintiffs are not entitled to invoke the juris
diction of this court in this case as alleged in paragraph
“ 1” of the complaint, for the reasons set forth in the
First, Second and Third Defenses herein; and the
defendants deny the allegations of paragraph “ 1” of
said complaint.
The defendants deny the allegations of paragraph
“ 2” of said complaint.
33
42
The defendants admit that the defendant School
Board is by law of the State of Virginia a body cor
porate, but they are without knowledge and infor
mation sufficient to answer the other allegations of
paragraph “ 3” of the complaint.
The defendants are without sufficient knowledge
and information to answer the allegations of para
graphs “ 4” and “ 20” of the complaint.
As heretofore stated, the Norfolk Teachers’ Asso
ciation is an unincorporated organization, and as such
is not within the constitutional provisions referred to
in the bill of complaint and therefore not properly a
party to this proceeding. Other than this the defend
ants are without sufficient information and knowledge
to answer the allegations of paragraph “ 5” of the com
plaint.
The defendants admit the provisions of the school
laws referred to in paragraphs “ 6,” “ 7,” “ 8,” “ 9,”
“ 10” and “ 19” under proper construction, but speci
fically deny the conclusions and deductions made
therefrom as alleged in said paragraphs of the com
plaint.
The defendants deny the allegations of paragraph
“ 11” of the complaint.
The defendants deny such portions of paragraphs
“ 12,” “ 15,” “ 16” and “ 22” of the complaint as allege
discrimination because of race or color, a discriminatory
salary schedule, denial of the equal protection of the
laws and distribution of public funds on an illegal and
unconstitutional basis.
34
43
The defendants deny the allegations contained in
paragraph “ 13” of the complaint, except so much
thereof as recites the qualifications and experience of
plaintiff Melvin 0 . Alston, in respect to which they
allege they are without knowledge or information
sufficient to form a belief as to the truth thereof.
The defendants deny the allegations of para
graphs “ 14,” “ 17,” “ 18,” and “ 21” of the complaint.
The defendants admit the filing of the petitions
as alleged in paragraph “ 23” of the complaint. The
requests contained in the petitions were denied because
the salaries of the respective teachers and principals
are matters which are governed by individual con
tracts voluntarily accepted and executed by the
individual teachers and principals.
The defendants deny the allegations of para
graphs “ 24” and “ 25” of the complaint.
The aforesaid defenses and denials apply not only
to the said plaintiffs, but to the others on whose
behalf plaintiffs allege they are proceeding, if they
can proceed on their behalf, which defendants deny.
The defendants also deny that the plaintiffs are
entitled to the prayer of said complaint.
(Signed) A l f r e d A n d e r s o n ,
Attorney for Defendants.
City Hall, Norfolk, Va.
(Signed) A l f r e d A n d e r s o n ,
(Signed) J o n a t h a n W. O l d , J r .,
Attorneys for Defendants.
V V ffCsflEa
35
[ fo l . 36] P roceedings in t h e U n ited S tates C ir cu it C ourt
of A ppeals for t h e F o u rth C ircu it
No. 4623
M elvin 0. A lston and the N orfolk T e a c h e r s ’ A ssociation ,
an unincorporated association, Appellants,
versus
S chool B oard of t h e C it y of N o rfolk , a body corporate,
and C. W. M ason , Superintendent of Schools of Norfolk,
Appellees
Appeal from the District Court of the United States for the
Eastern District of Virginia, at Norfolk
March 19, 1940, the transcript of record is filed and the
cause docketed.
Same day, the appearance of Oliver W. Hill, William ID
Hastie, Tliurgood Marshall and Leon A. Ransom is entered
for the appellants.
March 22, 1940, the appearance of Alfred Anderson,
Jonathan W. Old, Jr., and William C. Coupland is entered
for the appellees.
April 12, 1940, statement of parts of the record appel
lants propose to print with their brief is filed.
Same day, notice of and motion of appellants to advance
cause for hearing are filed.
Same day, objections of appellees to motion of appellants
to advance cause for hearing are filed.
[fol. 37] April 12, 1940, (April term, 1940) cause came
on to he heard on the motion of the appellants to advance
for hearing and the objections of appellees thereto, before
Parker, Dobie and Northcott, Circuit Judges, and is argued
by counsel and submitted.
May 21, 1940, brief and appendix on behalf of appellants
are filed.
June 5, 1940, brief and appendix on behalf of appellees
are filed.
June 10, 1940, reply brief on behalf of appellants is filed.
2—9161
36
A r g u m e n t of C au se on M erits
June 13, 1940, (June term, 1940) cause came on to be
beard on the merits before Parker, Soper and Dobie, Cir
cuit Judges, and is argued by counsel and submitted.
U n ited S tates C ir cu it C ourt of A ppe als , F o u rth C ir cu it
M e l v in 0 . A l st o n , and the N orfolk T e a c h e r s ’ A ssocia
t io n , an Unincorporated Association, Appellants,
S ch oo l B oard of t h e C it y of N o rfo lk , a Body Corporate,
and C. W. Mason, Superintendent of Schools of Norfolk,
Appellees
Appeal from the District Court of the United States for the
Eastern District of Virginia, at Norfolk
(Argued June 13, 1940. Decided June 18, 1940)
Before Parker, Soper and Dobie, Circuit Judges
Thurgood Marshall and William H. Hastie (Oliver W.
Hill and Leon A. Ransom on brief) for Appellants, and
Alfred Anderson and Jonathan W. Old, Jr. (William C.
Coupland on brief) for Appellees.
[ fo l . 39] P a r k e r , Circuit Judge:
This is an appeal in a suit instituted by Melvin O. Alston,
a Negro school teacher of Norfolk, Va., and the Norfolk
Teachers’ Association, an association composed of the
Negro school teachers of that city, against the School
Board and the Superintendent of Schools of the city. The
purpose of the suit is to obtain a declaratory judgment, to
the effect that the policy of defendants in maintaining a
salary schedule which fixes the salaries of Negro teachers
at a lower rate than that paid to white teachers of equal
qualifications and experience, and performing the same
O p in io n — Filed June 18, 1940
No. 4623
versus
37
duties and services, on the sole basis of race and color, is
violative of the due process and equal protection clauses
of the 14th amendment, and also to obtain an injunction
restraining defendants from making any distinction on the
ground of race or color in fixing the salaries of public
school teachers in Norfolk. The suit was dismissed by the
court below on the ground that Alston and the School
Board were the only necessary parties to the cause and
that Alston had waived such constitutional rights as he was
seeking to enforce by having entered into a written contract
with the School Board to teach for a year at the price fixed
in the contract. On the appeal presented by the plaintiffs
three questions arise: (1) whether upon the face of the
complaint an unconstitutional discrimination is shown in
the fixing of school teachers’ salaries by the defendants;
(2) whether rights of plaintiffs are infringed by such dis
crimination; and (3) whether plaintiffs have waived their
right to complain of the discrimination by entering into
contracts with the School Board for the current year.
On the first question, there can be no doubt but that the
fixing of salary schedules for the teachers is action by the
state which is subject to the limitations prescribed by the
14th Amendment. The Constitution of Virginia provides
[fol. 40] that the General Assembly shall establish and
maintain an efficient system of public free schools through
out the state. Article IX, sec. 129. The General Assembly
has established such a system. Virginia Code of 1936, chs.
33 and 35. The public schools of the City of Norfolk are
under the direct control and supervision of the defend-
̂ ants, whose duty it is to employ teachers and provide for
the payment of teachers’ salaries. Virginia Code, ch. 33,
secs. 656, 660, and ch. 35, sec. 786. While provision is
made in the law for separate schools for white and colored
persons, the positive duty is enjoined of maintaining these
separate schools under the same general regulations as
to management, usefulness and efficiency. Virginia Code,
sec. 680. All teachers are required to hold teaching cer
tificates in accordance with the rules of certification of
the State Board of Education. Virginia Code, ch. 33, sec.
660 and ch. 35, sec. 786. White and Negro teachers must
meet the same requirements to receive teachers certificates
from the Board of Education and upon qualifying are
issued identical certificates.
3—9161
38
The allegations of the complaint as to discrimination,
which are denied in the answer, but which must be taken
as true on the motion to dismiss, are as follows:
“ 11. Defendants over a long period of years have con
sistently pursued and maintained and are now pursuing
and maintaining the policy, custom, and usage of paying
Negro teachers and principals in the public schools of
Norfolk less salary than white teachers and principals in
said public school system possessing the same professional
qualifications, certificates and experience, exercising the
same duties and performing the same services as Negro
teachers and principals. Such discrimination is being
practiced against the plaintiffs and all other Negro teach
ers and principals in Norfolk, Virginia, and is based solely
upon their race or color.
“ 12. The plaintiff Alston and all of the members of the
plaintiff association and all other Negro teachers and prin
cipals in public schools in the City of Norfolk are teachers
[fol. 41] by profession and are specially trained for their
calling. By rules, regulations, practice, usage and custom
of the Commonwealth acting by and through the defend
ants as its agents and agencies, the plaintiff Alston and
all of the members of the plaintiff association and all other
Negro teachers and principals in the City of Norfolk are
being denied the equal protection of the laws in that solely
by reason of their race and color they are being denied
compensation from public funds for their services as
teachers equal to the compensation provided from public
funds for and being paid to white teachers with equal quali
fications and experience for equivalent services pursuant
to rules, regulations, custom and practice of the Common
wealth acting by and through its agents and agencies, the
School Board of the City of Norfolk and the Superintendent
of Schools of Norfolk, Virginia.
“ 13. Plaintiff, Melvin 0. Alston, has been employed as
a regular male teacher by the defendants since September,
1935, and is in his fifth year of experience as a regular
teacher in the Booker T. Washington High School, a
public high school maintained and operated under the
direct control, supervision, rules and regulations of the
defendants. He successfully completed the course of in
struction provided at Virginia State College for Negroes,
39
an accredited college maintained and operated by the
State of Virginia for the instruction and preparation of
Negroes as teachers in the public schools of the State. He
holds a Collegiate Professional Certificate, the highest cer
tificate issued by the Virginia State Board of Education
for teaching in the public high schools of Virginia. In
order to qualify for this certificate plaintiff has satisfied
the same requirements as those exacted of all other teach
ers, white as well as Negro, qualifying therefor, and he
exercises the same duties and performs services substan
tially equivalent to those performed by other holders of
the said certificate, white as well as Negro, yet all white male
teachers in Norfolk who hold the said certificate with equal
and less experience receive salaries much larger than
the salary paid the plaintiff.
“ 14. White male high school teachers employed by de
fendants whose qualifications, certification, duties and serv
ices are the same as plaintiff’s are being paid by defendants
[fol. 42] a minimum annual salary of Twelve Hundred
($1200.00) Dollars.
“ 15. Plaintiff Alston is being paid by the defendants for
his services this school year as a regular male high school
teacher as aforesaid an annual salary of Nine Hundred
and Twenty-one (921.00) Dollars, being the amount fixed
by defendants for Negro male high school teachers in their
fifth year of teaching experience and solely because of the
practice, usage and custom complained of in paragraph
11 of this complaint, and by the operation of the discrimina
tory salary schedule described in paragraphs 16 and 17 of
this complaint the plaintiffs have been, are, and unless re
lief shall be granted by this Honorable Court as hereinafter
prayed, will continue to be denied, solely by reason of race
and color the opportunity to receive a higher salary equal
to that paid to any white teachers similarly situated.
“ 16. Pursuant to the policy, custom and usage set out
in paragraph 12 the defendants acting as agents and agen
cies of the Commonwealth of Virginia have established and
maintained a salary schedule used by them to fix the amount
of compensation for teachers and principals in the public
schools of Norfolk which discriminates against plaintiffs
solely because of their race or color. All teachers and prin
cipals in the public schools of Norfolk, including the plain
40
tiffs, have been, are being and will continue to be paid by
defendants pursuant to the following salary schedule
adopted, maintained and being enforced by the defendants
for the school year 1939-1940:
Maximum salary be
ing paid (affecting
Salaries now only those in sys-
b e i n g paid tern before incre-
teachers n e w ment plan was dis-
to the system, continued).
Negro
Elementary
Normal Certificate. . . . $597.50 $960.10
Degree ......................... 611.00 960.00
High School
Women ....................... 699.00 1,105.20
Men ............................. 784.50 1,235.00
[fol. 43] White
Elementary
Normal Certificate. . . . 850.00 1,425.00
Degree ......................... 937.00 1,425.00
High School
Women ....................... 970.00 1,900.00
Men ............................. 1,200.00 2,185.00
The practical application of this salary schedule has been,
is, and will be to pay Negro teachers and principals of equal
qualifications, certification and experience with white teach
ers and principals less compensation from public funds
solely on account of their race or color.”
“ 19. The salaries of all teachers and principals in the
public schools of the City of Norfolk, including the salaries
of petitioners, are paid out of the public school fund. This
fund derives from two sources: The Commonwealth of Vir
ginia and the City of Norfolk (Virginia School Code, Chap
ter 33, Section 646); all of said public school fund is raised
by means of taxation upon the inhabitants of Virginia and
their property (Constitution of Virginia, Article IX, Sec
tions 135, 136; Virginia School Code, Chapter 33, Sections
657, 698, 699; Chapter 35, Section 782). Pursuant to these
statutes all that portion of the public school fund which
41
derives directly from the state is used exclusively for the
payment of teachers’ salaries (Virginia School Code,
Chapter 33, Section 701.”
^ That an unconstitutional discrimination is set forth in
these paragraphs hardly admits of argument. The allega
tion is that the state, in paying for public services of the
same kind and character to men and women equally quali
fied according to standards which the state itself prescribes,
arbitrarily pays less to Negroes than to white persons. This
is as clear a discrimination on the ground of race as could
[fol7l5T~well be imagined and falls squarely Avithin the
inhibition of both the due process and the equal protection
clauses of the 14th Amendment. As was said by Mr. Jus
tice Harlan in Gibson v. Mississippi, 162 U. S. 565, 591:
“ Underlying all of those decisions is the principle that
the Constitution of the United States, in its present form,
forbids, so far as civil and political rights are concerned,
discrimination by the General Government, or by the States,
against any citizen because of his race. All citizens are
equal before the law. The guarantees of life, liberty and
property are for all persons, within the jurisdiction of the
United States, or of any State, without discrimination
against any because of their race. Those guarantees, when
their violation is properly presented in the regular course
of proceedings, must be enforced in the courts, both of the
Nation and of the State, without reference to considerations
based upon race.”
Dealing with the precise question here involved, Judge
Chesnut, in Mills v. Lowndes 26 F. Supp. 792, 801, said:
̂ “ While the State may freely select its employes and de
termine their compensation it would, in my opinion, be
clearly unconstitutional for a state to pass legislation which
imposed discriminatory burdens on the colored race with
respect to their qualifications for office or prescribe a rate
of pay less than that for other classes solely on account of
race or color. If therefore the state laws prescribed that
colored teachers of equal qualifications with white teachers
should receive less compensation on account of their color,
such a law would clearly be unconstitutional.” /
In the later case of Mills v. Board of Education of Ann
Arundel County 30 F. Supp. 245, Judge Chesnut applied
42
the principle so stated in holding that a discrimination as
to pay of teachers in white and colored schools was viola
tive of the constitutional provision, and that a colored
teacher might invoke the power of the court so to declare.
This we think is in accord with a long line of decisions
[fol. 45] which condemn discrimination on account of race
in the exercise of governmental power by a state or its
agencies. Thus, in Strauder v. West Virginia 100 U. S. 303,
exclusion of colored persons from service on petit juries
was condemned as violative of the constitutional provision.
In Pierre v. Louisiana 306 U. S. 354, the same holding was
made with respect to grand juries. In Nixon v. Condon,
286 U. S. 73 and Nixon v. Herndon 273 U. S. 536, discrimina
tions with respect to participating in party primaries were
condemned. In Lane v. Wilson 307 U. S. 268 and Guinn v.
United States 238 U. S. 347 like holdings were made with
respect to discrimination relating to the right to participate
in elections. Discriminations with respect to the right to
own and occupy property were condemned in Buchanan v.
Warley 245 U. S. 60; with respect to Pullman accommoda
tions on railroads, in McCabe v. Atchison, Topeka and
S. F. R. Co. 235 U. S. 151; with respect to educational facili
ties, in Missouri ex rel Gaines v. Canada 305 U. S. 337; with
respect to the division of school funds in Davenport v.
Cloverport 72 F. 689; and with respect to the pursuit of a
trade or vocation, in Chaires v. City of Atlanta 164 Ga. 755,
139 S. E. 559.
We come, then, to the^second question, i. e. do plaintiffs
as Negro teachers holding certificates qualifying them to
teach in the public schools of Norfolk have rights which are
infringed by the discrimination of which they complain1?
The answer to this must he in the affirmative. As teachers
holding certificates from the state, plaintiffs have acquired
a professional status.. It is true that they are not entitled
by reason of that tact alone to contracts to teach in the
public schools of the state; for whether any particular one
of them shall be employed to teach is a matter resting in
the sound discretion of the school authorities; but they are
entitled to have compensation for positions for which they
may apply, and which will unquestionably he awarded to
some of them, fixed without unconstitutional discrimination
on account of race. As pointed out by Judge Chesnut, in
-[To06J Mills v.'~Lowndes, supra, they are qualified school
teachers and have the civil right, as such, to pursue their
43
profession without being subjected to discriminatory legis
lation on account of race or color. It is no answer to this
to say that the hiring of any teacher is a matter resting
in the discretion of the school authorities. ̂ Plaintiffs, as
teachers qualified and subject to employment by the state,
are entitled to apply for the positions and to have the dis
cretion of the authorities exercised lawfully and without
unconstitutional discrimination as to the rate of pay to he
awarded them, if their applications are accepted. 1
Nor do we think that the fact that plaintiffs have en
tered into contracts with the school board for the current
year at the rate fixed by the discriminatory practice pre
cludes them from asking relief. What the effect of such
contracts may be on right to compensation for the current
year, we need not decide, since plaintiffs are not insisting
upon additional compensation for the current year and
their prayer for relief asks a broad declaration of rights
and injunctive relief for the future.^ As qualified teachers
holding certificates, they have rights as above indicated
which are not confined to the contract for the current year,
i. e. the right to apply for positions in the future and to
have the Board award the positions without unconstitu
tional discrimination as to the rate of pay.
The defendants take the position that no one but a
teacher holding a contract with the Board has any such
interest in" the rate of pay as would give him standing to
sue concerning it, and that he cannot sue because he has
waived the unconstitutional discrimination by entering into
the contract./1 If this were sound, there would be no practical
means of redress for teachers subjected to the unconstitu
tional discrimination. But it is not sound. As pointed
out in Frost Trucking Co. v. Railroad Com. 271 U. S. 583,
594, even in the granting of a privilege, the state “ may not
impose conditions which require the relinquishment of con
stitutional rights. If the state may compel the surrender
[fol. 47] of one constitutional right as a condition of its
favor, it may, in like manner, compel a surrender of all.
It is inconceivable that guaranties embedded in the Con
stitution of the United States may thus be manipulated,
out of existence.” See also Union Pac. R. Co."vT Public
Service UbmT'248 U. S. 67, 69, 70; Hanover Ins. Co. v.
Harding 272 U. S. 494, 507. But as stated above, the
waiver could not extend beyond the terms of the contract
for the current year, in any event, and the relief asked is
44
for the declaration and protection of rights which extend
beyond any present employment.
We should say, too, that we have no doubt as to the
'Norfolk Teachirs Association being a proper party to the
suit. According to the complaint, it is a voluntary un
incorporated association and “ is composed of Negro teach
ers and principals in the public colored schools of Norfolk” ;
.and the right of such an association to sue in its common
name for the purpose of enforcing substantive rights
under the Constitution of the United States is provided for
under the Rules of Civil Procedure. Rule 17(b). The
point is not important, however, as the suit is brought
as a class suit and the members of the association belong .
to the same class as the plaintiff Alston. Likewise, there
can be no question as to the propriety of joining the
Superintendent of Schools with the Board as a party de
fendant, as teachers are employed on the recommendation
of the Superintendent (Va. Code sec. 660); he requests
the City Council to fix the tax levy so as to net the amount
necessary for the operation of the schools (Ya. Code sec.
657); and he is named by the statute as one of those
charged with the administration of the schools (Va. Code
sec. 611).
For the reasons stated, the order appealed from will
be reversed and the cause will be remanded for further
proceedings not inconsistent herewith. If the allegations
of the complaint are established, plaintiffs will be entitled
to a declaratory judgment to the effect that the discrimina-
[fols. 48-49] tory policy complained of is violative of their
rights under the Constitution and to an injunction restrain- (
ing defendants from making any discrimination on the
grounds of race or color in fixing salaries to be paid school
teachers after the current fiscal year. To avoid confusion
and inconvenience in the preparation of the budget and the
making of contracts for the ensuing year, we have given
immediate consideration to the case. The mandate will
issue forthwith, to the end that prompt action may be taken
by the court below.
Reversed.
45
[fol. 50] U n ited S tates C ir c u it C ourt of A p pe a ls ,
F o u rth C ir cu it
No. 4623
D ecree . Filed and Entered June 18, 1940
M elvin 0 . A l st o n , an d t h e N orfolk T e a c h e r s ’ A ssocia
t io n , an unincorporated association, Appellants,
vs.
S chool B oard of t h e C it y of N o rfolk , a body corporate,
and C. W. M ason , Superintendent of Schools of Norfolk,
Appellees.
Appeal from the District Court of the United States for
the Eastern District of Virginia.
This Cause came on to be heard on the transcript of the
record from the District Court of the United States for the
Eastern District of Virginia, and was argued by counsel.
On Consideration Whereof, It is now here ordered, ad
judged, and decreed by this Court that the order of the
said District Court appealed from, in this cause, be, and the
same is hereby, reversed with costs; and that this cause
be, and the same is hereby, remanded to the District Court
of the United States for the Eastern District of Virginia,
at Norfolk, for further proceedings in accordance with the
[fol. 51] opinion of the Court filed herein. Let mandate
issue forthwith.
June 18, 1940.
• John J. Parker, Senior Circuit Judge.
On another day, to-wit, June 24, 1940, the mandate of
this Court in this cause is issued and transmitted to the
District Court of the United States for the Eastern District
of Virginia, at Norfolk, in due form.
July 24, 1940, stipulation as to record for use on appli
cation for writ of certiorari is filed. Note: This stipula
tion appears at page 1 of the transcript of record.
46
C l e r k ’s C ertificate
U n ited S tates op A m e r ic a ,
Fourth Circuit, ss:
I, Claude M. Dean, Clerk of the United State Circuit
Court of Appeals for the Fourth Circuit, do certify that
the foregoing is a true copy of Appendix to brief of appel
lants; Appendix to brief of appellees, and of the proceed
ings in the said Circuit Court of Appeals in the therein
entitled cause, as the same remain upon the records and
files of the said Circuit Court of Appeals, and constitute
and is a true transcript of the record and proceedings in
the said Circuit Court of Appeals, made up in accordance
with the stipulation of counsel for the respective parties,
for use in the Supreme Court of the United States on an
[fol. 52] application of the appellees for a writ of certiorari.
In Testimony Whereof, I hereto set my hand and affix
the seal of the said United States Circuit Court of Appeals
for the Fourth Circuit, at Richmond, Virginia, this 25th
day of July, A. D., 1940.
Claude M. Dean, Clerk, U. S. Circuit Court of Ap
peals, Fourth Circuit. (Seal)
(9161)
Supreme M of me Onlieii M s
O c t o b e r T e r m , 1940.
N o . . ^ yj
SCHOOL BOARD OF TH E C ITY OF NORFOLK
a n d C. W. MASON, SU PERIN TEN D EN T OF
SCHOOLS OF NORFOLK,
vs.
Petitioners,
M ELVIN O. ALSTON a n d t h e
NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES CIRCUIT COURT OF
APPEALS FOR THE FOURTH CIRCUIT
AND SUPPORTING BRIEF.
R. M. H u g h e s , J r .,
A l f r e d A n d e r s o n ,
J o n a t h a n W. O l d , J r .,
W. C . C o u p l a n d ,
Counsel for Petitioners.
1
/
SUBJECT INDEX.
Page
Petition for Writ of Certiorari................................... 1
Summary and Contents of Brief............................... 9
Brief in Support of Petition....................................... 10
n
11
TABLE OF AUTHORITIES.
Page
Alston, et al. v. School Board of City of Norfolk,
et al., 112 Fed. 2d, p. 992........................................ 3
American Jurisprudence, Vol. 11, pp. 1170 & 1171.19-26
American Law Reports, Vol. 75, p. 1352.................. 15
Bon Ton Cleaners & Dyers, Inc. v. Cleaning, Dye
ing & Pressing Board, 176 Sou. 55....................... 28
Cooley on Constitutional Limitations, Vol. 1, pp.
368 and 369................................................................ 26
Corpus Juris, Vol. 12, pp. 769, 770, 744; Vol. 56,
pp. 382, 387, 422.......................................................16-25
Eustis v. Bolles, 150 U. S. 361, 37 L. Ed. 1111. . . 29
Heath v. Johnson, 15 S. E. 980.................................. 15
Mills v. Lowndes, et al., 26 Fed. Supp. 792.............. 33
Mills v. Anne Arundel County Board of Education,
et al,, 30 Fed. Supp. 245.......................................... 33
Mootz v. Belyea, 236 N. W. 358...............................17-34
Mo. ex rel Gaines v. Canada, 305 U. S. 337, 83 L.
Ed. 208..........................................................................5-24
Palumbo v. Fuller Company, 122 Atl. 63................. 28
People ex rel Fursman v. Chicago, 116 N. E. 158. . 7-22
Pierce v. Somerset Railway, 171 U. S. 641, 43 L.
Ed. 316........................................................................ 29
Pierce Oil Corp. v. Phoenix Refining Company,
259 U. S. 125, 66 L. Ed. 855.................................. 31
Ruling Case Law, Vol. 24, p. 613.................................. 15
Seattle High School, etc. v. Sharpless, etc., 293 Pae.
994, 72 A. L. R. 1215...................................... 7-17-20-34
Ill
TABLE OF AUTHORITIES—Continued.
Page
Shepard, et als. v. Barron, 194 U. S. 553, 48 L. Ed.
1115.............................................................................. 32
State ex rel Gumm, et als. v. Albritton, et als., 224
Pac. 511........................................... 23
State v. Martin, 163 S. E. 850.................................... 15
^ United States v. Gale, 109 U. S. 65, 27 L. Ed. 857.. 5-27
Wall v. Parrott Silver & Copper Co., 244 U. S. 407,
61 L. Ed. 1229........................................................... 31
Washington v. State of Florida, 116 Sou. 470, 278
U. S. 599, 73 L. Ed. 528...........................................5-26
White v. State of Oklahoma, 214 Pac. 202............... 28
Federal Rules of Civil Procedure, Rule 38 ............. 33
Norfolk City Charter (Acts of Assembly of Vir
ginia, 1918, p. 31), Section 114.......................... 13
Virginia Code— Section 611...................................... 11
Section 680...................................... 12
Section 786...................................... 12
Section 664...................................... 13
Virginia Constitution, Article IX — Section 130. . . 11
Section 133. . . 11
Section 140. . . 12
United States Code Annotated, Title 28, Sec. 347. 7
I
f
Supreme Gouri or lire Diittf Stales
O ctober T er m , 1940.
No.
SCHOOL BOARD OF THE C ITY OF NORFOLK
a n d C. W. MASON, SU PERIN TEN D EN T OF
SCHOOLS OF NORFOLK,
vs.
Petitioners,
M ELVIN O. ALSTON a n d t h e
NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.
O N A P P L I C A T I O N F O R A W R I T O F C E R T I O R A R I T O T H E U N I T E D
S T A T E S C I R C U I T C O U R T O F A P P E A L S , F O U R T H C I R C U I T .
PETITION .
To the Honorable, the Chief Justice, and the Associate
Justices of the Supreme Court of the United States:
The petition of the School Board of the City of
Norfolk, Virginia, a body corporate, and C. W. Mason,
Superintendent of Public Schools of the City of Nor
folk, Virginia, respectfully shows to this Honorable
Court as follows:
1. The above entitled cause was a suit insti
tuted in November, 1939, in the District Court of
the United States for the Eastern District of Virginia,
at Norfolk, against your petitioners by the respond
ents, Melvin O. Alston, a negro teacher in the Public
Schools of the City of Norfolk, and the Norfolk
Teachers’ Association, an unincorporated association
composed entirely of negro teachers in said Public
Schools, for the purpose of obtaining a judgment de
claring that the petitioners, in maintaining, as alleged,
a salary schedule for teachers in the Public Schools of
the City of Norfolk which fixes the salaries of negro
teachers at lower rates than those paid white teachers,
solely on account of race and color, violate the due
process and equal protection clauses of the Fourteenth
Amendment; and also to obtain an injunction to re
strain petitioners from making any distinction solely
on account of race and color in salaries of public school
teachers.
2. In the answer filed by your petitioners, legal
questions were presented under “ First,” “ Second” and
“ Third” defenses, which petitioners claim preclude
respondents from the relief asked. These legal defenses
were (a) that neither C. W. Mason, Superintendent of
Schools, nor the Norfolk Teachers’ Association, were
proper parties to the suit, (b) that no constitutional
rights of the respondent Melvin O. Alston had been
violated, and (e) that he had waived such constitutional
rights, if any he had, by voluntarily entering into and
accepting employment under a written contract with
said School Board to teach for ten school months
beginning September 7, 1939 at a salary of $92.10 per
month. (R. 20.)
Under the “ Fourth” defense of said answer, peti
tioners expressly denied that the differences between
salaries paid negro teachers and white teachers were
solely on grounds of race and color, as alleged in the
complaint, but that they are determined by annual
written contracts voluntarily entered into between the
School Board and the individual teachers, and also
denied that any eonsitutional rights had been violated.
At the suggestion of the District Court, the legal
questions raised by the “ First,” “ Second” and “ Third”
defenses of the answer were considered and disposed of
in advance of a trial of the case on its merits, and the
District Court held (1) that the said Melvin 0 . Alston
and the School Board of the City of Norfolk were the
only necessary parties to the suit; (2) that the said
Melvin O. Alston having voluntarily entered into a
contract with the said School Board to teach and
having taught thereunder prior to the institution of
this suit, had waived such eonsitutional rights, if any
he has, which he seeks to enforce in this suit; and (3)
dismissed the complaint. (R. 23, 30). All of the
teachers in the respondent association were under
similar contracts and their status with reference to
employment is the same as that of the said Melvin O.
Alston.
3. From the judgment of the District Court the
respondents appealed to the Circuit Court of Appeals
for the Fourth Circuit. On June 18, 1940, a decision
was handed down reversing the decision of the District
Court, the cause having been heard before Circuit
Court Judges Parker, Soper and Dobie, Judge Parker
having written the opinion. (R. 36). This opinion is
reported in 112 Fed. 2d. at p. 992. The mandate was
4
issued forthwith, and before your petitioners could
ask for a stay. When they received notice of the
decision and asked for a stay of the mandate, in order
to afford them an opportunity to apply to this Honor
able Court for a writ of certiorari, they were advised
to either ask this Honorable Court for a stay, or else
file a petition for a recall of the mandate.
Your petitioners, therefore, ask that this Honor
able Court enter the necessary order for the purpose of
staying the mandate until this, its petition can be con
sidered.
4. A transcript of the Record is herewith filed.
The complaint is found at p. 4. The answer to the
complaint is found at pp. 18 and 32. The opinion of
the District Court is found at p. 23. The judgment of
the District Court is found at p. 30, and the decision of
the Circuit Court of Appeals is found at p. 36.
5. The legal questions involved are:
(1) Whether any constitutional rights of
the respondents have been violated.
(2) Whether respondents have waived such
constitutional rights, if any they have, in the
premises.
m*
The merits of these questions will be discussed in
the brief herewith filed in support of this petition, and
no attempt will be made to elucidate these issues at
this point.
6. We shall now undertake to state reasons why
we contend that this is a case in which a writ of certior
ari should be issued by the Supreme Court.
These reasons are:
A. The Appellate decision in this case has decided
a Federal question, in a way probably in con
flict with applicable decisions of this Honorable
Court.
It is the individual who is entitled to the
equal protection of the laws (Mo. ex rel Gaines
v. Canada, 305 U. S. 337; 83 L. Ed. 208). This
Court has consistently held that these indi
vidual rights can be waived. Washington v.
State of Florida, 278 U. S. 599; 73 L. Ed. 528;
United States v..Gale, 109 U. S. 65; 27 L. Ed.
857; and others cited in the supporting brief
herewith.
The District Court applied these decisions
to the respondents who voluntarily entered into
contracts and taught thereunder without objec
tion, and dismissed the complaint. The Appel
late decision reversed this ruling.
B. The Appellate decision decides an important
question of Federal law, which has not been,
but should be settled by this Court.
This Court has decided the right of negroes
to equal State facilities. (Mo. ex rel Gaines v.
Canada, Supra). But it has not decided the
important question of the right of voluntary
contract between a School Board, a body cor
porate under State laws, and teachers in the
Public Schools of the State whereby the salaries
of the teachers are agreed upon and determined.
The Appellate decision in this case holds
in effect that such contracts are invalid unless
the salaries of white and negro teachers sim
ilarly situated are equal. The State is required
to provide equal school facilities, but it does not
6
follow that salaries in Public Schools must be
equal when determined by voluntary contracts.
The Constitution and Laws of Virginia
provide for a system of Public Schools through
out the State. They are operated and controlled
by a State Board of Education and a School
Board in each locality. The School Board of
the City of Norfolk, as are other local School
Boards, is controlled in its functions by State
laws. The State Law and Constitution pro- ^
vide that separate schools shall be maintained
to afford educational facilities to the children
of the State and not for the purpose of affording
anyone an opportunity to follow his vocation
as a teacher. The teachers in Public Schools
of Virginia are not under Civil Service and have
no tenure of office. The School Boards of the
respective localities are required by the State
law to employ the teachers and to enter into
annual written contracts with each in form
prescribed by the State Board of Education,
covering the service to be performed and the
compensation to be received by the teacher.
Briefly stated, the relations between the School
Board and the teacher is that of employer and
employee. The applicable school laws are M
quoted in the supporting brief and will not be
quoted at this point.
C. The Appellate decision decides a question of
local law in a way probably in conflict with
applicable local decisions.
Prior to the institution of this suit counsel
for the respondents here instituted a suit in the
Circuit Court of the City of Norfolk under the
style of Aline Elizabeth Black v. your petitioners,
School Board of the City of Norfolk, a body cor
porate, and C. W. Mason, Superintendent of
7
Schools of Norfolk, in ^hich the same allega
tions and prayers were made as in the instant
suit. The Court in that case dismissed the
complaint. (R. 22). No appeal was taken and
the judgment has become final. It is most
probable that the Supreme Court of Appeals
of Virginia would have affirmed this judgment.
School laws similar to those of Virginia have
been upheld in the cases of Seattle High School,
% etc. v. Sharpless, etc., (Wash.), 293 Pac. 994;
72 A. L. R. 1215, and People ex rel Fursman v.
Chicago, 1916, 116 N. E. 158. These are more
fully considered in the supporting brief here
with.
7. The jurisdiction of this Court is invoked
under Section 240-a of the judicial code as amended
by the Act of February 13, 1925, c. 229, Sec. 1, 43
Stat. 938 (28 U. S. C. A., Sec. 347). The judgment of
the Circuit Court of Appeals was entered on June 18,
1940.
Wherefore, upon due consideration of this petition
and the annexed brief and the certified copy of the
record of the Circuit Court of Appeals for the Fourth
Circuit filed herewith, the defendants and petitioners
respectfully pray "That a stay of the mandate from the
Circuit Court of Appeals of the Fourth Circuit in this
case may be orderednhat a writ of certiorari be issued
under the seal of this Court, directed to the United
States Circuit Court of Appeals for the Fourth Circuit,
commanding that Court to certify and send to this
Court a full and complete transcript of the record of
all proceedings had in this cause, to the end that the
same may be reviewed and determined by this Honor
8
able Court. And petitioners pray that upon a final
consideration of this cause the said judgment of the
Circuit Court of Appeals be reversed by this Honor
able Court and that the judgment of the United States
District Court be affirmed and judgment rendered in
favor of the defendant.
Petitioners further pray for such other, equitable
and general relief as may appertain to this case and as
may be competent for this Honorable Court to grant.
R. M. H u g h e s , Jk.,
A lfred A n d e r so n ,
Jo n ath a n W . Old , Jr .,
W. C. C o u p la n d ,
Counsel for Petitioners.
State op V ir g in ia ,
C it y of N o rfo lk , to-w it:
Before me, the undersigned Notary Public, per
sonally appeared R. M. Hughes, Jr., who being duly
sworn, deposes and says: That he is a member of the
bar of the Supreme Court of the United States, and is
of counsel for petitioners herein; that he has read the
foregoing application for a writ of certiorari; and that
all of the facts therein stated are true and correct to
the best of his knowledge and belief.
R. M. H u g h e s , Jr .
Subscribed and sworn to before me
this 4th day of September, 1940.
Ju lia K . G off ,
(Seal) Notary Public.
M y commission expires February 7, 1943.
9
SUMMARY AND CONTENTS OF BRIEF.
Page
I. No Constitutional Rights Violated............... 11
A. School Teachers in Virginia are Em
ployees of School Board........................... 11
B. Equal Protection Clause of Fourteenth
Amendment not Applicable..................... 19
II. Respondents by Entering Into Contracts
with School Board of City of Norfolk and
Accepting Employment Thereunder, Waived
Such Constitutional Rights, if any They
Have, That They Seek to Enforce.................. 24
III. Differentiation of the Mills Cases from the
Instant Case........................................................ 33
A. The Equal Protection Clause of the
Fourteenth Amendment Has No Appli
cation to the Instant Case..................... 34
B. The Respondents Have Waived Any
Rights to the Relief for Which They
Pray............................................................... 37
10
Court of me United stales
O ctober T er m , 1940.
No.
SCHOOL BOARD OF THE C ITY OF NORFOLK
a n d C. W. MASON, SU PERIN TEN D EN T OF
SCHOOLS OF NORFOLK,
Petitioners,
vs.
M ELVIN 0 . ALSTON a n d t h e
NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.
O N A P P L I C A T I O N F O R A W R I T O F C E R T I O R A R I T O T H E U N I T E D
S T A T E S C I R C U I T C O U R T O F A P P E A L S , F O U R T H C I R C U I T .
BRIEF IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI.
In our petition we have briefly stated the legal
questions involved. We will now consider these ques
tions more fully and in the order named:
11
I .
No Constitutional Rights Violated.
♦
A. School Teachers in Virginia are Employees of School
Board.
Sec. 130 of Article IX of the Virginia Constitu
tion, relating to education and public instruction,
% provides:
“ The general supervision of the school
system shall be vested in a State Board of
Education, to be appointed by the Governor,
subject to confirmation by the General As
sembly, and to consist of seven members.”
Sec. 133 of the same Article of the Virginia
Constitution provides:
“ The supervision of schools in each county
and city shall be vested in a school board, to
be composed of trustees to be selected in the
manner, for the term and to the number pro
vided by law.”
%
In furtherance of the above provisions, Sec. 611
of the Virginia Code provides:
“ An efficient system of public schools of a
minimum school term of one hundred and sixty
school days, shall be established and main
tained in all of the cities and counties of the
State. The public school system shall be ad
ministered by the following authorities, to-wit:
A State Board of Education, a superintendent
of public instruction, division superintendent of
schools and county and city School Boards.”
See. 140 of Article IX of the Virginia Constitu
tion provides:
“ White and colored children shall not be
taught in the same school.”
Sec. 680 of the Virginia Code provides:
“ White and colored persons shall not be
taught in the same school, but shall be taught
in separate schools, under the same general
regulations as to management, usefulness and
efficiency.”
Neither of the above provides that the teachers in
the schools for white children shall be white and those
in the schools for colored children shall be colored.
There is no provision in either the Virginia Con
stitution or the Virginia Code prescribing what salaries
teachers in the public schools shall receive. This is
left to the discretion of the School Board.
The School Board has a very wide discretion in
the management of the public schools.
See. 786 of the Virginia Code, relating to the
powers and duties of the School Board, provides, in
so far as is material to this case, as follows:
“ The city school board of every city shall
establish and maintain therein a general system
of public free schools in accordance with the
requirements of the Constitution and the gen
eral educational policy of the Commonwealth
for the accomplishment of which purpose it
shall have the following powers and duties.
“ Third. To employ teachers from a list
or lists of eligibles to be furnished by the divi
sion superintendent and to dismiss them when
delinquent, inefficient or in anywise unworthy
of the position. . . .
“ Twelfth. To manage and control the
school funds of the city, to provide for the pay
of teachers and of the clerk of the board for
the cost of providing school houses . . .” .
Sec. 664 of the Virginia Code relating to contracts
with teachers provides, in so far as is material to this
case, as follows:
“ Written contracts shall be made by the
School Board with all public school teachers,
before they enter upon their duties, in a form
to be prescribed by the superintendent of
public instruction. Such contracts shall be
signed in duplicate, each party holding a copy
thereof. . . .”
The State of Virginia has no tenure of office act
covering teachers. They are expressly excluded from
the civil service classification of city employees by
Sec. 114 of the Norfolk Charter, which provides:
“ Officers who are elected by the people
. . . the teachers in the public schools and
all other persons employed by the school board
. . . shall not be included in such classified
service . . .” . (Acts of Assembly of Virginia,
1918, pp. 31, 85.)
The teachers in the public schools have no vested
rights in the positions they hold. Each year they are
selected by the School Board in May or June to
teach for the school term beginning in September
following. Their term of service is not fixed by any
law but by the provisions of the contract required by
law. They have no special right or privilege to teach
in the public schools of the city. These contracts are
entered into between the School Board and the teacher
each year, regardless of whether the teacher has taught
in the public schools for prior years or is a beginner.
The contract specifies the time for which employed,
the rate of compensation, their duties, that they may
be changed from one teaching position to another,
and other phases of their employment. Under the
Virginia law the School Board could, at the term
beginning next September, contract with an entire
new corps of teachers for all of the public schools of
the City of Norfolk and none of the present teachers
would have any legal redress in the matter.
The respondent Alston, by entering into such a
contract, in writing, voluntarily executed by him and
the School Board under date of June 12, 1939, agreed
to teach in the public schools of the City of Norfolk
for ten (10) school months beginning September 7,
1939, for $92.10 per school month. At the time of the
execution of these contracts respondents knew, or with
reasonable diligence could have ascertained, the exact
salary paid any other teacher in the public schools for
the same term. The members of the Norfolk Teachers’
Association were all similarly situated.
From the foregoing provisions of Virginia law
it is clear that public school teachers are not officers
of the State or political subdivisions wherein they
teach but are employees of the School Board.
15
In the case of Heath v. Johnson, (W. Va. 1892),
15 S. E. 980, which involved a mandamus by a pub
lishing company against a teacher in the public schools
to require the teacher to use a certain text book, the
same was refused, and the Court, at p. 982 of the
opinion, said:
“ What we do decide is that a teacher in
this State is not a public officer but is an em
ployee . .
To the same effect is the decision in the case of
State v. Martin, (W. Va.), 163 S. E. 850.
In 75 A. L. R., p. 1352, under the Annotation
“ Status of teacher as an officer or employee,” the
following appears, with a long citation of cases to
support it:
“ The Courts are almost unanimous in hold
ing that the position of teacher is that of an
employee, resting on the contract of employ
ment, and not that of public officer.”
In Ruling Case Law, Vol. 24, p. 613, under the
subject of “ Schools,” the following appears:
“ Under the general powers usually reposed
in local school boards is included the power to
enter into contracts with teachers and fix their
compensation and term of employment.
“ The discretion of a school board in this
respect is very broad, and the Courts will not
interfere to aid one whom the board does not
choose to employ.
“ The board has the absolute right to de
cline to employ any applicant for any reason
whatever or for no reason at all.
“ It is no infringement on the constitutional
rights of anyone for the board to decline to
employ him as a teacher in the schools and it is
immaterial whether the reason for the refusal
to employ him is because the applicant is
married or unmarried, of fair complexion or
dark, is or is not a member of a trade union,
or whether no reason is given for such refusal.”
In 56 C. J., p. 422, under “ Schools and School
Districts,” the following appears:
“ The amount or rate of compensation which
a teacher is entitled to receive for his services
depends upon the terms of the contract under
which he is employed.”
and at p. 382:
“ A teacher, who has been appointed to the
position and accepted it, from the time of his
acceptance stands in a contract relation as
distinguished from the tenure or holding of a
public officer. He holds his position by con
tract and not at the will of the sovereign
power.”
and at p. 387:
“ Except in so far as they be restricted or
limited by statute, or by a rule or regulation
of the school board, a school board of officers
authorized to contract with teachers have the
power to fix the salaries to be paid them, free
from interference by other municipal authori
ties.”
In the case of Mootz v. Belyea, et als., (N. D.),
236 N. W. 358, a written contract between the teacher
and the School Board had been executed. Thereafter
the School Board refused to let the teacher teach
and employed another in her place. The teacher
brought a mandamus against the School Board to
require it to install her as a teacher in the public
schools, claiming that she had been denied the use and
enjoyment of a right or office. The Court denied the
mandamus, stating that her remedy in the case was
for the recovery of her salary under the contract and
as to that she had an adequate remedy at law, and in
the course of its opinion, stated:
“ It is the claim of the appellant that she
is being denied the ‘use and enjoyment of a
right or office’ to which she is entitled. Whether
her contract gives her a right or office depends
upon her relationship to the school board and
her right under her contract. The duty of
employing teachers is vested in the school
board, and this is done by contract. The rela
tionship is purely contractual in this State.
There is no fixed tenure of office when a teacher
is employed other than the pension set forth
in the contract. In this State the profession is
not under civil service rules. When a teacher is
employed by a school district she is not em
ployed as an officer and she does not become
an officer. Her rights are measured by the
terms of her contract.”
In the case of Seattle High School, etc. v. Sharp
less, etc., (Wash.), 293 Pac. 994, 72 A. L. R. 1215,
which involved the employment of a teacher, and
from which it appears that the statutes relating to
such are similar to those in Virginia, the Court, in
defining the relationship between the School Board
and the teacher, said:
“ The employment of teachers is a matter
of treaty or voluntary contract. Both parties
must consent and be mutually satisfied and
agreed. On the part of each it is a matter of
choice and discretion. However, though quali
fied, no teacher has the legal right to teach in
the schools until the directors willingly enter
into a contract for that purpose. Unless limited
by statute in some way, the board is entitled
to the right of freedom of contract as much as
the teachers are.”
In the Opinion of the Judge of the District Court,
the following appears:
“ Whatever may be the law in other States,
there is no doubt that in Virginia a person
can not under the law as it now exists and has
existed for many years, acquire a status as a
teacher, which gives him certain rights that
must be respected, independently of a con
tract with the board as a teacher. In Virginia
the relation is not a continuing one, but can
be created only by a contract with the school
board in a particular jurisdiction. It con
tinues for only one school year at a time, with
the absolute right on the part of the school
board not to contract again with the particular
person. The board may decline to contract
again with such person without rhyme or
reason for such refusal and in that particular
part of the board’s procedure there manifestly
has been no discrimination on account of race
or color, for the simple reason that the board
can, after the expiration of the school year,
decline to have any further contractual rela
tions with an applicant to teach, whether such
applicant be white or colored.” (R. 27.)
B. Equal Protection Clause of Fourteenth Amendment
not Applicable.
The Virginia Constitution and Code as set out
above provide that an efficient system of public free
schools shall be established and maintained throughout
the State.
The object of this is to afford educational advan
tages to the children of the State, not to afford oppor
tunities for persons to follow their vocation as teachers.
The gist of the equal protection clause of the Four
teenth Amendment is to extend to all citizens sub
stantially equal treatment in facilities provided from
public funds.
The school facilities provided from public funds
are the right to attend school, not the right to teach
in a public school. While it may be incumbent on
the School Board to maintain schools for the education
of children, it is not incumbent on them to maintain
a place for one to follow his vocation as a teacher.
In American Jurisprudence, Vol. 11, at page 1171,
under “ Constitutional Law,” the following appears:
“ In those cases which have considered
employment contracts from the standpoint of
the employer, the Courts have held that it is
clear that the right of an employer to employ
labor is necessarily included in the constitu
tional guaranty of the right to property. The
20
employer may, generally speaking, enter into
labor contracts with such individuals as he
chooses. Thus, the refusal of the board of
directors of a school district empowered to
employ teachers to engage a certain person, for
any reason or no reason at all, is in no sense a
denial of the constitutional right, guaranteed
by the due process of law provision, of that
person to follow his chosen profession.”
In the case of Seattle High School, etc. v. Sharpless,
etc., Supra, the school directors adopted a resolution:
“ That no person be employed hereafter,
or continued in the employ of the District as
a teacher while a member of the American
Federation of Teachers, or any local thereof
11
The plaintiff claimed the resolution was uncon
stitutional. The Court held the same valid.
The laws of the State of Washington governing
the operation of public schools were similar to those of
Virginia in this respect and authorize the school
directors: 0
“ First: To employ for not more than one
year, and for sufficient cause to discharge
teachers, and to fix, alter, allow and order paid
their salaries and compensation . . .”
The Court, in its opinion sustaining the resolution
of the board, said with reference to the status of
teachers:
“ The employment of teachers is a matter
of treaty or voluntary contract. Both parties
21
must consent and be mutually satisfied and
agreed. On the part of each, it is a matter of
choice and discretion. However, though quali
fied, no teacher has the legal right to teach in
the schools until the directors willingly enter
into a contract for that purpose. Similarly the
directors have no legal right to the services of
any teacher until the teacher voluntarily enters
into a contract for that purpose. Unless limited
by statute in some way the board is entitled
to the right of freedom of contract, as much so
as the teachers are.”
It was also claimed by the plaintiff that the
resolution violated the Constitution of Washington
State and the Fourteenth Amendment to the Con
stitution of the United States. As to this the Court
said:
‘ ‘Quoting Article 1, Sec. 3, of the State
Constitution, viz., ‘No person shall be deprived
of life, liberty, or property without due process
of law,’ and also the Fourteenth Amendment
to the Constitution of the United States on
the same subject, it is argued on behalf of
appellants that thereunder the right of a teacher
to follow his chose profession is too elementary
to require any discussion. Granted, but there
is no question of that kind in this case. The
right of freedom of contract as it exists in this
case to refuse for any reason or no reason at
all to engage the professional services of any
person is in no sense a denial of the constitu
tional right of that person to follow his chosen
profession. . . . Nor can the Courts be suc
cessfully invited into a consideration of the
policy of the resolution, for that would lead
to supervisory control of judgment and dis
2 2
cretion in the selection and employment of
teachers which the statute has given exclu
sively to the board of directors.”
In the case of People ex rel Fursman v. Chicago,
(1916), 116 N. E. 158, the issue was whether the Board
of Education had the right in the selection of teachers
to discriminate between those who were members of
a federation or union and those who were not members
of any such federation or union, and whether its
action in such regard violated any constitutional or
statutory provision.
The Court held the Board of Education had such
right and that no such constitutional provision was
violated.
From the opinion it appears that the Illinois school
laws were similar to those of Virginia. At page 160
the Court said:
“ By the statute the Board of Education
in cities having a population of 100,000 or
more is given complete control of the schools
of the city. Among its powers is that of em
ploying teachers and fixing the amount of their
compensation . . . The Board has no power
to make contracts for the employment of
teachers to extend beyond the ensuing school
year, . . . A new contract must be made
each year with such teachers as it desires to
retain in its employ. No person has a right to
demand that he or she shall be employed as a
teacher. The Board has the absolute right to
decline to employ or to re-employ any applicant
for any reason whatever or for no reason at all.
The Board is responsible for its action only to
the people of the city, from whom, through
23
the mayor, the members have received their
appointments. It is no infringement upon the
constitutional rights of anyone for the Board
to decline to employ him as a teacher, in the
schools, and it is immaterial whether the reason
for the refusal to employ him is because the
applicant is married or unmarried, is of fair
complexion or dark, is or is not a member of a
trades union, or whether no reason is given for
such refusal. The Board is not bound to give
any reason for its action. It is free to contract
with whomsoever it chooses. Neither the Con
stitution nor the statute places any restriction
upon this right of the Board to contract, and
no one has any grievance which the Courts will
recognize simply because the Board of Educa-
cation refuses to contract with him or her.
Questions of policy are solely for determination
of the Board, and when they have once been
determined by it the Courts will not inquire
into their propriety.”
In the case of State ex rel Gumm, et als. v. Albritton,
et als., (Okla. 1923), 224 Pac. 511, it appears that the
county superintendent discharged the negro members
of the School Board of the School District in which
a majority of the population was of the colored race,
and appointed white persons on the Board.
The action was brought to oust the white mem
bers of the Board and have colored members adjudged
the lawful members of said School Board. This the
Court refused to do.
At p. 512 of the opinion, the Court said:
“ It is contended by plaintiff in error that
the said action of the county superintendent in
24
the instant case violates the Fourteenth Amend
ment to the Constitution of the United States,
in that such action of said county superintend
ent, in discharging the colored members and
appointing defendants in error, was a denial of
the equal protection of the law to the colored
children. However, no authorities are cited
thereunto. It does not appear, nor did plaintiff
in error offer to show, that by the action of
said county superintendent in designating the
colored school as the separate school, or by
the change of the personnel of the said board,
the facilities or accommodations for the colored
children of such district were not rendered
impartial, as compared with those of the white
children.”
and at p. 513:
“ However arbitrary the action of suc^
superintendent may seem, it cannot be said j
that the equal protection clause of said Four
teenth Amendment is violated, because it is
now shown that accommodations of facilities
equal, though not identical, with those of white
children, are afforded to the colored children.”
Respondents By Entering Into Contracts With School
Board of City of Norfolk and Accepting Employ=
ment Thereunder, Waived Such Constitutional
Rights, If Any They Have, That They
Seek to Enforce.
The respondents’ rights, if they have any, are
personal to them as individuals. It is as individuals
that they are entitled to the equal protection of the
laws. (Mo. v. Canada, 305 U. S. 337, 83 L. Ed. 208.)
II.
The respondents, as stated above, have voluntarily
contracted in writing with the School Board to teach
for the current school term for a stipulated salary.
This contract antedates the filing of these proceedings
by them. There is no complaint that the School Board
has breached any part of its contract.
While we do not consider, for reasons set forth
above, that any constitutional rights of the respond
ents have been denied, yet, in any event, they have
waived the same, and are accordingly estopped to
prosecute this cause.
In 12 C. J., at p. 769, under the heading “ Con
stitutional Law,” the following appears:
“ A person may by his acts, or omission to
act, waive a right which he might otherwise
have under the provisions of the Constitution.”
and at p. 770:
“ The waiver of a Constitutional provision
precludes the party waiving it from afterwards
claiming protection under it, even though it
was adopted solely for his benefit, and such a
waiver is binding as to both past and future
transactions.”
and at p. 774:
“ But those Constitutional guaranties, which
are in the nature of personal privileges of the
accused, may be waived by him and therefore
he may not question the Constitutionality of
the statute under which he has made such a
waiver.”
In 11 American Jurisprudence, at p. 1170, under
“ Constitutional Law,” appears the following:
“ It has repeatedly been held that the right
of a laborer to enter into contracts for his ser
vices is property within the meaning of the
Constitutional guaranties.”
In Cooley on Constitutional Limitations, Vol. 1,
p. 368, the author says:
“ Where a Constitutional provision is de
signed for the protection solely of the property
rights of the citizen, it is competent for him to
waive the protection and to consent to such
action as would be invalid if taken against his
will.”
and at p. 369:
“ On this ground it has been held that an
act appropriating the private property of one
person for the private purpose of another, on
compensation made, was valid if he whose
property was taken assented thereto and that
he did assent and waive the Constitutional
privilege, after he received the compensation
awarded or brought an action to recover it.”
and again at p. 368:
“ There are cases where a law in its appli
cation to a particular case must be sustained
because the party who makes the objection has
by his prior action precluded himself from being
heard against it.”
The case of Washington v. State of Florida, 116
Southern 470, in which a writ of certiorari was denied
by the Supreme Court of the United States, 278 U. S.
27
599, 73 L. Ed. 528, involved the exclusion of negroes
from juries. Herein the accused claimed he had been
denied equal protection of the laws guaranteed him
by the Fourteenth Amendment to the Federal Con
stitution.
The Florida Supreme Court in this case held:
“ While an unlawful discrimination against
negroes because of their race or color practiced
^ by an officer in summoning jurors may render
the act of summoning illegal, the panel of
jurors may not be illegal.”
“ Where a jury that is competent under
the law and that is impartial as is required by
the Constitution has been tendered it may be
accepted by the accused who thereafter waives
his right to object to the panel on the ground
that in summoning the jurors members of his
race were discriminated against, there being
no duress or other improper influence to em
barrass or injure the accused.”
In the case of United States v. Gale, 109 U. S. 65,
27 L. Ed. 857, which was a criminal case wherein there
was an irregularity in selecting the grand jury which
found the indictment, the accused plead not guilty
and went to trial without making any objection as to
the grand jury selection, and after conviction raised
the Constitutionality of the same. The Court said:
“ The second question, as to the Con
stitutionality of the 820th Section of the revised
statutes . . . is not an essential one in this
case inasmuch as by pleading not guilty to
the indictment and going to trial without
making any objection to the mode of selecting
the grand jury, such objection was waived.”
In the case of Bon Ton Cleaners and Dyers, Inc. v.
Cleaning, Dyeing and Pressing Board, February, 1937,
Florida, 176 Southern 55, certain parties who signed
a specific agreement with all other parties in a certain
area to observe price-fixing regulations of said Clean
ing, Dyeing and Pressing Board in the County, prior
to the time order prescribing regulations was entered,
were held precluded from questioning the constitu
tionality of the statute authorizing price-fixing for
such business.
In the case of White v. State of Oklahoma, 214
Pac. 202, which was a criminal case, the jury was
sworn and the County attorney then asked leave to
amend the information. The information was amended
and the defendant asked for and was given twenty-
four hours to plead to the amended information. The
jury then impaneled was without objection on the
part of the defendant discharged. Several days there
after when the case came to trial on the amended in
formation the accused filed a plea in bar claiming for
mer jeopardy. The Court held the plea was properly
overruled by the lower court on the ground that the
accused had waived his rights in the matter and, at
p. 205 of the opinion, said:
“ Where a Constitutional right is for the
sole benefit of the accused, in the nature of a
privilege, that right may be waived by express
consent, or by implication from conduct in
dicative of consent, or by failure to claim or
assert the right in seasonable time.”
In Palumbo v. Fuller Co., Conn., 122 Atl. 63,
the employer appealed from an award for claimant.
29
One of the grounds assigned was the alleged uncon
stitutionally of the Workmen’s Compensation Act.
The Court, at p. 65, said:
“ A ground of appeal that is fundamental
is a claim that the Commissioner erred in not
holding that Section 5345 is unconstitutional;
as this question is independent of the finding
it may be considered at the outset.
*
“ The acceptance of Part B of the Act is
voluntary on the part of an employer. When
he so accepts the Act, he cannot thereafter
urge that its provisions are ineffective in whole
or in part because of any impairment of the
constitutional rights of an employer. This
reason of appeal cannot be sustained.”
In the case of Pierce v. Somerset Railway, 171
U. S. 641, 43 L. Ed. 316, which involved a railroad
mortgage and whether a State statute impaired the
obligation of the contract, the Court, at p. 648, said:
^ “ A person may by his acts or omission to
act waive a right which he might otherwise
have under the Constitution of the United
States, as well as under a statute, and the
question whether he has or has not lost such
right by failure to act, or by his action, is not a
Federal one.”
In the case of Eustis v. Bolles, 150 U. S. 361, 37
L. Ed. 1111, the validity of insolvency proceedings
had under a Massachusetts statute was involved.
The Court said:
30
“ The defendants in the trial court de
pended on a discharge obtained by them under
regular proceedings, under the insolvency stat
utes of Massachusetts. This defense the plain
tiffs met by alleging that the statutes, under
which the defendants had procured their dis
charge, had been enacted after the promissory
note sued on had been executed and delivered,
and that, to give effect to a discharge obtained
under such subsequent laws, would impair the
obligation of a contract, within the meaning ™~~
of the Constitution of the United States. Upon
such a state of facts, it is plain that a Federal
question, decisive of the case, was presented,
and that if the judgment of the Supreme
Judicial Court of Massachusetts adjudged that
question adversely to the plaintiffs, it would be
the duty of this Court to consider the sound
ness of such judgment.
“ The record, however, further discloses
that William T. Eustis, represented in this
Court by his executors, had accepted and
receipted for the money which had been awarded
him, as his portion, under the insolvency pro
ceedings, and that the Court below, conceding
that his cause of action could not be taken from Jfc
him, without his consent, by proceedings under
statutes of insolvency passed subject to the
vesting of his rights, held that the action of
Eustis, in so accepting and receipting for his
dividend in the insolvency proceedings, was a
waiver of his right to object to the validity of
the insolvency statutes, and that, accordingly,
the defendants were entitled to the judgment.”
The Supreme Court of the United States did not
disturb the aforesaid ruling of the Massachusetts Court.
31
*
In the case of Wall v. Parrott Silver & Copper Co.,
244 U. S. 407, 61 L. Ed. 1229, the Court said:
“ There remains the contention that the
statutes of Montana which we have epitomized,
if enforced, will deprive the appellants of their
property without due process of law because
they provide that sale may be made of all the
assets of the corporation when authorized by
not less than two-thirds of the outstanding
capital stock of the corporation, and that the
plaintiffs must accept either the payment for
their shares which this large majority of their
associates think sufficient, or, if they prefer,
the value in money of their stock, to be deter
mined by three appraisers, or, still at the
election of the appellants, by a court and jury.
“ This record does not call upon us to
examine into this challenge of the validity of
these statutory provisions, similar as they are
to those of many other States and of a seem
ingly equitable character, for the reason that
the appellants, by their action in instituting a
proceeding for the valuation of their stock,
pursuant to these statutes, which is still pend
ing, waived their right to assail the validity
of them.”
In the case of Pierce Oil Corporation v. Phoenix
Refining Company, 259 U. S. 125, 66 L. Ed. 855,
which involved the making of a pipe line company a
common carrier, the Court held:
“ The right of a foreign corporation to be
secure against the imposition of conditions
upon its right to do business which amount to
a taking of its property without due process of
law may be waived, or the right to claim it
32
barred, by deliberate election, or by conduct
inconsistent with the assertion of such right.”
In the case of William Shepard, et als. v. Barron,
194 U. S. 553, 48 L. Ed. 1115, the constitutionality of
an act regarding assessments against abutting property
owners for improvements was assailed because the
act provided that the assessments should be made on a
front foot basis and not according to the special bene
fits derived.
The plaintiffs had by petition requested the work
and impliedly agreed to pay for the same on the front
foot assessment basis.
The Court held that they had waived any con
stitutional rights they might have, and at p. 566 of the
opinion said:
“ It is, therefore, upon these facts, im
material that the law under which the pro
ceedings were conducted was unconstitutional,
because the work was done at the special re
quest of the owners, under the provisions of
the act, and upon a contract, both implied and
in substance expressed, that the bonds would
be paid, and the assessment to be imposed for
the raising of a fund to pay them would be
legal and proper.”
and at p. 568 said:
“ Provisions of a constitutional nature, in
tended for the protection of the property owner,
may be waived by him, not only by an instru
ment in writing, upon a good consideration,
signed by him, but also by a course of conduct
which shows an intention to waive such pro
vision. . .
r
One of the most sacred personal rights is that of
trial by jury. The Seventh Amendment to the United
States Constitution provides that in suits at common
law the right of trial by jury should be preserved. The
rules of civil procedure promulgated for the District
Courts by the Supreme Court of the United States
provide that the failure of a party to demand a jury
as required by the Rules shall constitute a waiver by
him of trial by jury (Rule 38). If one can waive his
right to trial by jury by his mere inaction, surely the
respondents can waive their rights in the Fourteenth
Amendment, if any they have, by a contract in writing
voluntarily executed by them.
The cases cited by respondents in the lower courts
dealing with the question of waiver in matters of com
pensation relate to salaries the amount of which are
definitely fixed and prescribed by law, the Courts hold
ing in such cases that an acceptance of any less amount
would be contrary to public policy and place the posi
tions for said salaries in the category of barter and
exchange. In the instant case the salaries are not
fixed by law but are left as a matter of contract between
the teachers and the School Board.
III.
Differentiation of the Maryland Cases From the
Instant Case.
T h e M a r y l a n d C a s e s .
The two cases of Mills v. Lowndes, et al., 26 Fed.
Supp. 792, (D. C., Md. 1939), and Mills v. Anne
Arundel County Board of Education, et al., 30 Fed.
Supp. 245, (D. C., Md. 1939), were quoted from and
cited with such frequency by respondents in the lower
courts as being directly in point with the instant case
that petitioners are prompted to deal with the same at
some length and apply the facts and conclusions of
those cases to the issues of constitutional rights and
waiver as raised herein.
A. The Equal Protection Clause of the Fourteenth
Amendment Has No. Application to the Instant Case.
The plaintiff, Mills, pursuant to Maryland school
laws, was employed under a continuing contract which
required an oath of office to be taken and subscribed.
He further, after the expiration of a probationary
period, became possessed of a right of property in his
teaching position by virtue of tenure and could only
be dismissed for stated cause, and after opportunity
to be heard in his own defense. The respondent Alston,
as are all other teachers in the public schools of Norfolk,
on the other hand, is employed only on an annual
basis and having no tenure of office, is possessed of
no vested interest therein.
The case of Mootz v. Belyea, Supra, discusses
fully the rights accruing to and the differences existing
between a teacher with a fixed tenure of office and a
teacher whose relationship of employment is purely
contractual, how, if improperly dismissed, the former
could proceed by mandamus for reinstatement but
the latter would be relegated to an action for damages
under the contract.
It is the contention of petitioners that respondents
having no rights to employment (Seattle High School,
etc. v. Sharpless, Supra) and having no vested interests
35
in their positions after employment, are therefore
without rights to be protected by the equal protection
clause of the Fourteenth Amendment. The plaintiff
Mills, however, while not possessing any right to
employment, subsequent thereto, did acquire a vested
right in his position and consequently a fixed property
right therein to protect.
District Judge Chestnut distinguishes between the
^ plaintiff Mills as a public employee and as a teacher
by occupation in holding that the action could be
maintained for violation of constitutional rights,
stating:
“ I conclude, therefore, that the plaintiff
does have a status, not as a public employee,
but as a teacher by occupation, which entitles
him to raise the constitutional question.”
Early in his opinion, however, he recognized the
question as being one on which there is little available
judicial authority and makes this pertinent observa
tion:
“ In view of the fact that the amendment
has been in force for 75 years, the absence of
authority on the point is itself rather significant
in the indication that it has not heretofore been
thought the amendment applied to such a
case.”
It is submitted that the conclusion reached by
Judge Chestnut is predicated upon the status of the
plaintiff Mills and is only intended to embrace those
teachers by occupation who possess a fixed tenure of
office.
3 6
Correlated with the question of whether con
stitutional rights have been violated, is the factor of
discretion in employment and salary fixing by the
local board in the instant case. Judge Chesnut stresses
the Maryland statutes prescribing minimum rates of
pay and their application, stating:
“ Each County Board in cooperation with
the County Commissioner as to the tax rate is
free to determine the amount and quality of
its educational facilities and has power to
select its teachers and determine their com
pensation. It may, in the exercise of its lawful
discretion, decide whether to employ white or
colored teachers for the colored schools; nor is it
required to employ any particular teacher, whether
white or colored, although duly qualified. And \
it may be observed that if the minimum salary
schedules were written out of the law as uncon
stitutional, the local Boards will have unlimited
discretion as to the amount to be paid the teachers.”
(Italics ours.)
It is also to be noted that an injunction was denied
to the extent prayed for that colored teachers and
principals shall not receive less salaries than white
teachers and principals filling equivalent positions in
the public schools.
The State of Virginia has no statute prescribing
rates of pay, minimum or maximum, for teachers and
principals in the public schools, but leaves the deter
mination thereof entirely within the discretion of the
local board to be incorporated in voluntary contracts.
37
B. The Respondents Have Waived Any Rights to the
Relief for Which They Pray.
In the two Mills cases the contract of employment
does not fix or designate the rate of pay but provides
only that it shall not be less than the minimum salary
provided by law. There is, therefore, no agreement as
to salary and consequently no basis for waiver therein.
In addition the plaintiff Mills was the principal of a
colored elementary school, the minimum salary for
which is not prescribed by the State of Maryland’s
minimum statutes.
In the instant case the actual rate of pay is fixed
by agreement in the contract of employment.
Respectfully submitted,
R. M. H u g h e s , Jr .,
A l f r e d A n d e r s o n ,
J o n a t h a n W. O l d , J r .,
W. C . C o u p l a n d ,
Counsel for Petitioners.
0
I
£
f *
m
*
i
IN THE
Court of tfyr Unttrfo States
O ctober T e r m , 1940
No. 429
S chool B oard of t h e C it y of N orfolk and C . W . M ason ,
^ S u p e r in t e n d e n t of S chools of N o rfo lk ,
* Petitioners,
v.
M e l v in 0 . A lston and t h e N orfolk T e a c h e r s ’ A ssociation ,
Respondents
MEMORANDUM BRIEF IN OPPOSITION TO PETITION
FOR CERTIORARI
L eon A . R an som
1512 Girard Street, N.E.
"Washington, D. C.
T hurgood M arsh a ll
Baltimore, Md.
Counsel for Respondents
W il l ia m H . H astie
'Washington, D. C.
O liver W . H il l
Richmond, Va.
B e n j a m in K a p l a n
New York, N. Y.
AY. R obert M in g , J r .
Chicago, 111.
Of Counsel
Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.
t
/*
SUBJECT INDEX
PAGE
Statement of Facts----------------------------------------------------- 1
Questions Involved----------------------------------------------------- 3
Argument
I. The decision that the alleged salary discrimination
is a denial of equal protection of the laws is so
clearly sound and consistent with precedent that
it should not be reviewed______________________ 3
A. There is no conflict in the federal decisions
on this proposition-------------------------------- 3
B. There is no conflict between the decision
of the Circuit Court of Appeals and ap
plicable local decisions_________________ 4
C. The decision of the Circuit Court of Appeals
is consistent with the course of decisions
of this court construing the Fourteenth
Amendment to the Constitution of the
United States_________________________ 5
II. The issue of waiver should not be reviewed upon
the present record-------------------------------------------- 6
Conclusion ___________________________________________ 9
TABLE OF CASES
PAGE
Black v. School Board of the City of Norfolk (Unre-
ported) ------------------------------------------------------------------ 5
Buchanan v. Warley, 245 U. S. 60---------------------------------- 6
Ex parte Virginia, 100 U. S. 339----------------------------------- 6
Gaines v. Missouri, 305 U. S. 337----------------------------------- 6
Gilbert v. Highfill, — Fla. —, 190 So. 813---------------------- 5
Lane v. Wilson, 307 U. S. 268__________________________ 6
McCabe v. A. T. & Santa Fe By. Co., 235 U. S. 151----------- 6
Mills v. Anne Arundel County Board of Education, et al.,
30 F. Supp. 245_____________________________________ 4
Mills v. Lowndes, et al., 26 F. Supp. 792------------------------ 4
Nixon v. Condon, 286 U. S. 73--------------------------------------- 6
Pierre v. Louisiana, 306 U. S. 354______________________ 6
Strauder v. West Virginia, 100 U. S. 303------------------------ 6
Truax v. Raich, 239 U. S. 33------------------------------------------ 6
Yick Wo v. Hopkins, 118 U. S. 220_____________________ 6
Yu Cong Eng v. Trinidad, 271U. S. 500_________________ 6
4
STATUTES AND RULES CITED
Virginia Code:
Section 664 ____________________________________ 7
Section 786 ____________________________________ 7
Federal Rules of Civil Procedure:
Rule No. 7 (a )_____________________________ 8
Rule No. 8 (c )__________________________________ 8
IN THE
^u prp m p ( t a r t o f tljr lln ttrii S ta te s
O ctober T e r m , 1940
No. 429
S ch ool B oard of t h e C it y of N orfolk an d C. W . M aso n ,
S u p e r in t e n d e n t of S chools of N o rfo lk ,
Petitioners,
v.
M e l v in 0 . A lsto n an d t h e N orfolk T e a c h e r s ’ A ssociation ,
Respondents
MEMORANDUM BRIEF IN OPPOSITION TO PETITION
FOR CERTIORARI
To the Honorable, the Chief Justice, and the Associate
Justices of the Supreme Court of the United States:
In opposing the petition for certiorari filed by petitioners
herein, respondents respectfully show:
STATEMENT OF FACTS
Petitioners seek review of a judgment rendered upon
pleadings. The judgment does not accomplish a final dis
position of the case but merely decides that the complaint
is legally sufficient and orders a trial of the controversy for
the first time on its merits.
Respondents as plaintiffs in the District Court of the
United States for the Eastern District of Virginia filed their
complaint against the defendant School Board and the
defendant Superintendent of Schools seeking a permanent
2
injunction against, and a judgment declaratory of, alleged
unconstitutional racial discrimination in administratively
established schedules of salaries for white and colored
teachers in the City of Norfolk and in the salaries actually
paid pursuant to such schedules. The essence of the com
plaint appears in paragraphs 11 and 12 thereof where it
is alleged that:
“ 11. Defendants over a long period of years have con
sistently pursued and maintained and are now pursuing
and maintaining the policy, custom, and usage of pay
ing Negro teachers and principals in the public schools
of Norfolk less salary than white teachers and prin
cipals in said public school system possessing the same
professional qualifications, certificates and experience,
exercising the same duties and performing the same
services as Negro teachers and principals. Such dis
crimination is being practiced against the plaintiffs and
all other Negro teachers and principals in Norfolk,
Virginia, and is based solely upon their race or color.”
‘ ‘ 12. The plaintiff Alston and all of the members of the
plaintiff association and all other Negro teachers and
principals in public schools in the City of Norfolk are
teachers by profession and are specially trained for
their calling. By rules, regulations, practice, usage
and custom of the Commonwealth acting by and through
the defendants and its agents and agencies, the plain
tiff Alston and all of the members of the plaintiff asso
ciation and all other Negro teachers and principals in
the City of Noi'folk are being denied the equal protec
tion of the laws in that solely by reason of their race
and color they are being denied compensation from
public funds for their services as teachers equal to the
compensation provided from public funds for and being
paid to white teachers with equal qualifications and
experience for equivalent services pursuant to rules,
regulations, custom and practice of the Commonwealth
acting by and through its agents and agencies, the
School Board of the City of Norfolk and the Superin
tendent of Schools of Norfolk, Virginia.” (Record,
pp. 7, 8.)
3
As appears in the judgment of the District Court (Record,
pp. 30-31), the cause came on, at the suggestion of the Dis
trict Judge, for preliminary hearing solely upon the issue
of the legal sufficiency of the complaint as raised by so much
of the answer as was in the nature of a motion to dismiss.
Upon such hearing the District Court entered a final order
sustaining the motion to dismiss the complaint. From that
order the respondents appealed. The Circuit Court of Ap
peals for the Fourth Circuit reversed the judgment of the
District Court and remanded the cause for trial (Record,
p. 45).
QUESTIONS INVOLVED
I. THE DECISION THAT THE ALLEGED SALARY
DISCRIMINATION IS A DENIAL OF EQUAL PRO
TECTION OF THE LAWS IS SO CLEARLY SOUND
AND CONSISTENT WITH PRECEDENT THAT IT
SHOULD NOT BE REVIEWED.
II. THE ISSUE OF W AIVER SHOULD NOT BE
REVIEWED UPON THE PRESENT RECORD.
ARGUMENT
I
The Decision That the Alleged Salary Discrimination Is a
Denial of Equal Protection of the Laws Is So Clearly
Sound and Consistent W ith Precedent That
It Should Not Be Reviewed
A. There Is No Conflict in the Federal Decisions on This
Proposition
On the three other occasions that federal courts have
passed on this question the decisions have been in accord
with the conclusion reached by the Circuit Court of Appeals
that:
4
“Plaintiffs, as teachers qualified and subject to employ
ment by the state, are entitled to apply for the posi
tions and to have the discretion of the authorities exer
cised lawfully and without unconstitutional discrimina
tion as to the rate of pay to be awarded them, if their
applications are accepted.” (Record, p. 43.)
Even the District Court conceded that:
“ The authorities are clear—that there can be no dis
crimination in a case of this kind, if such discrimina
tion is based on race or color alone.” (Record, p. 24.)
The only other federal court in which the question has
been raised is that of the United States District Court for
the District of Maryland. That court twice reached the
same conclusion.
Mills v. Lowndes et al., 26 F. Supp. 792 (1939);
Mills v. Anne Arundel County Board of Education et
al., 30 F. Supp. 245 (1939).
In the latter case the Court said:
“ . . . As already stated, the controlling issue of fact
is whether there has been unlawful discrimination by
the defendants in determining the salaries of white
and colored teachers in Anne Arundel County solely
on account of race or color, and my finding from the
testimony is that this question must be answered in the
affirmative, and the conclusion of law is that the plain
tiff is therefore entitled to an injunction against the
continuance of this unlawful discrimination.” (Italics
supplied.) (30 Fed. Supp. at 252.)
B. There Is No Conflict Between the Decision of the Circuit
Court of Appeals and Applicable Local Decisions
Although no question of local law is here presented since
the right claimed by the respondents is one guaranteed by
the Constitution of the United States, actually there is no
5
decision of a state court in conflict with that of the Circuit
Court of Appeals here.
In the only reported state case, Gilbert v. Highfill, — Fla.
—, 190 So. 813 (1939), mandamus was sought to compel the
adoption of an equal salary schedule for white and Negro
teachers. The Supreme Court of Florida held that manda
mus would not lie to compel the adoption of any salary
schedule, expressly stating however, at page 815:
“ We fully agree with counsel for the relator and the
authorities cited in their brief on the question of dis
crimination and an equal protection of the law as guar
anteed by the 14th Amendment to the Constitution of
the United States, U. S. C. A. We do not think either
of these questions is presented by the r e c o r d (Italics
supplied.)
In the unreported case of Aline Black v. The School Board
of the City of Norfolk et al., the Circuit Court of the City
of Norfolk considered a demurrer to a similar petition for
mandamus and ruled that mandamus was not the proper
remedy. No mention was made of the substantive question
here involved. (Record, p. 23.)
Similar actions filed in the Maryland counties of Mont
gomery, Prince Geoi'ge’s and Calvert were made moot
before trial by equalization of salaries pursuant to agree
ment.
Thus the state courts upon whose decisions petitioners
rely have passed only on the procedural question and have
not adjudicated the substantive question involved here.
C. The Decision of the Circuit Court of Appeals Is Con
sistent With the Course of Decisions of This Court
Construing the Fourteenth Amendment to the Con
stitution of the United States.
It is submitted that certiorari should not be granted be
cause the judgment of the Circuit Court of Appeals is clearly
6
sound, consistent with and follows closely a long line of
precedents established by this Court.
A general effect of the Fourteenth Amendment to the Con
stitution of the United States is to prohibit arbitrary and
unreasonable classification by state agencies.
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926);
Truax v. Raich, 239 U. S. 33 (1915);
Yick Wo v. Hopkins, 118 U. S. 220 (1886).
Discrimination because of race or color is clearly arbi
trary and unreasonable. This Court has repeatedly so held
in cases arising out of a variety of factual situations.
Lane v. Wilson, 307 U. S. 268 (1939);
Pierre v. Louisiana, 306 U. S. 354 (1939);
Gaines v. Missouri, 305 U. S. 337 (1938);
Nixon v. Condon, 286 U. S. 73 (1932);
Buchanan v. Warley, 245 U. S. 60 (1917);
McCabe v. A. T. & Santa Fe Ry. Co., 235 U. S. 151
(1914);
Strauder v. W. Virginia, 100 U. S. 303 (1879);
Ex parte Virginia, 100 U. S. 339 (1879).
By the motion to dismiss petitioners have admitted that
the existing salary differentiation is based solely on the race
and color of the respondents and that it is adopted, main
tained and enforced by petitioners acting for the Common
wealth of Virginia.
The Circuit Court of Appeals has logically applied the
doctrine established by this Court to the facts of the instant
case.
II
The Issue of Waiver Should Not Be Reviewed Upon the
Present Record
Respondents agree with petitioners that it is an impor
tant Federal question whether Negroes who accept employ
ment as public school teachers thereby waive their right to
7
complain that they are denied the equal protection of the
laws by salary discrimination based solely upon race and
imposed and required by rule, regulation and practice of
an agency of the State. However, neither the present state
of the record upon that issue nor the scope of the decision
of the Circuit Court of Appeals warrants the granting of
certiorari.
Paragraph 10 of the complaint (Record, p. 7) alleges that
defendants, petitioners here, are under a statutory duty to
employ teachers and to provide for the payment of their
salaries, citing, inter alia, Section 786, of the Virginia Code
of 1936 which provides in part that
‘ ‘ The City school board of every city shall . . . have
the following powers and duties . . . Third. To em
ploy teachers . . . Twelfth. To . . . provide tor the
pay of teachers . . . ”
It is further provided in Section 664 that
“ Written contracts shall be made by the school board
with all public school teachers before they enter upon
their duties, in a form to he prescribed by the Superin
tendent of Public Instruction.”
Paragraph 15 of the complaint (Record, p. 9) alleges that
plaintiff Alston, respondent here,
)
“ is being paid by the defendants for his services this
school year as a regular male high school teacher as
aforesaid an annual salary of $921.”
Thus, from the complaint and the above quoted language
of applicable Virginia statutes it seems a proper conclusion
that respondent Alston is employed during the current year
pursuant to a contract of hire and at an annual salary of
$921. Moreover, in a preliminary proceeding in the nature
of a hearing on motion to dismiss the complaint it was
proper that the court determine whether any conclusion of
law fatal to the respondents’ case followed from the facts
outlined above. To that extent, and to that extent only, the
question of waiver was before the District Court and the
Circuit Court of Appeals.
It is to be noted that so much of the “ Second Defense”
in the answer as raises the issue of waiver is in form
a defense in law in the nature of a motion to dismiss, but
in substance it combines a challenge to the sufficiency of the
complaint with an introduction of new matter in the nature
of an affirmative defense. Thus, the sub-paragraphs num
bered (4) and (5) (Record, p. 19) go beyond an allegation
that acceptance of employment by the respondent is a
waiver of the rights asserted in his complaint. These sub
paragraphs refer to the specific contract of the respondent
and incorporate by reference an attached document de
scribed as a copy of his contract. In thus going beyond the
fact of employment pursuant to a contract of hire as already
revealed by the complaint and pertinent statutes, and in
attempting to put in issue the terms of a particular con
tract, the circumstances of its execution and any legal con
clusions that may depend upon such terms and circum
stances, the petitioners introduced an affirmative defense.
Under Rule 8(c) of the Federal Rules of Civil Procedure,
such new matter is deemed to be denied without reply.
Indeed, no reply is permitted except by order of the Court.
See Rule 7(a). Therefore, the new matter alleged in the
answer was not before the court on a motion to dismiss
and is not material at the present stage of this litigation.
In brief, the question before the Circuit Court of Appeals
was whether the facts (1) that respondent’s status had been
created by a contract of hire and (2) that he had been em
ployed for a definite salary, operated as a matter of law to
preclude this suit.
With the issue thus defined and restricted the Circuit
Court of Appeals concluded that no waiver had been shown
and remanded the case for trial.
9
The petition for certiorari neither comprehends the issue
thus outlined nor suggests any reason for the review of the
decision thereon. None of the parties will suffer any legal
detriment from the order of the Circuit Court of Appeals
requiring a trial of the entire cause on its merits. Questions
of law can then be considered in the light of all material
facts. Whatever the event of such a trial may be, the dis
satisfied party or parties will be in position to ask that the
issue of waiver be reviewed, along with any other matters in
controversy, upon the complete record.
CONCLUSION
In such circumstances neither public interest nor the
interests of the litigants will be served by the granting of
certiorari as now prayed; but, on the other hand, orderly
and complete disposition of this litigation can best be accom
plished by remanding the cause for trial as ordered by the
Circuit Court of Appeals.
Wherefore, we respectfully submit that the petition for
certiorari should be denied.
L eon A. R an som
1512 Girard Street, N.E.
Washington, D. C.
T hubgood M absh a ll
Baltimore, Md.
Counsel for Respondents
W il l ia m H . H astie
Washington, D. C.
O liv e s W . H il l
Richmond, Va.
B e n j a m in K a p l a n
New York, N. Y.
W . R obeet M in g , J b .
Chicago, 111.
Of Counsel
*