North Carolina Teachers Association v. Asheboro City Board of Education Appendix to Appellant's Brief

    Hutted States OJuurt uf Appeals
F oe t h e  F if t h  C ir c u it

D arrell K enyatta  E vees, et al.,
Appellants,

-v -
J ackson M unicipal Separate S chool D istrict,

et al,,
Appellees.

D ian H udson, et al.,
Appellants,

L eake County School B oard, et al.,
Appellees.

Gilbert R. M ason, J r ., et al.,
Appellants,

T he B iloxi Municipal Separate School 
D istrict op B iloxi, M ississippi,

Appellees.

No. 20824

No. 20825

No. 20826

BRIEF FOR APPELLANTS

JACK H. YOUNG
llSi/o N. Earish Street 
Jackson, Missisippi

R. JESS BROWN
1251/; N. Parish Street 
Jackson, Mississippi

JACK GREENBERG
CONSTANCE BAKER MOTLEY
DERRICK A. BELL, JR.

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



I N D E X

Statement of the C ase...... .................................................  1

General Summary ..... ........................................................  1

I. Evers, et al. v. Jackson Municipal Separate 
School District ........................................................  3

II. Hudson, et al. v. Leake County School Board .... 5

III. Mason, et al. v. Biloxi Municipal Separate
School District .........................    6

Specifications of Error ......................................................  8

Argument

I. The Appellees Maintain Racially Segregated 
Schools in Conformance With Mississippi Laws 8

II. Appellants Are Entitled to the Relief Sought 
Without Exhausting Remedies in Mississippi’s 
Pupil Assignment Act ..........................................  12

III. Appellants Are Entitled to Orders Reversing 
the Dismissal of These Cases and Other Ap­
propriate Relief in Accordance With the Deci­
sions of This Court ................................................  14

Conclusion ............................................................................ 18

T able  of Ca s e s :

Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark.
1959), aff’d sub nom. Faubus v. Aaron, 361 IT. S.
197

PAGE

9



ii

Allen v. County School Board of Prince Edward 
County, 198 F. Supp. 497 (E. D. Va. 1961) ........ ......  9

Armstrong v. Board of Education of Birmingham,
------ F. 2 d -------- (5th Cir. Jul. 12, 1963) ........... 12,14,17

Brown v. Board of Education, 347 U. S. 483 (1954) ....8,11,
14,16

Brown v. Board of Education, 349 U. S. 294 (1955) .... 17
Bush v. Orleans Parish School Board, 187 F. Supp. 42 

(E. D. La. 1960), aff’d 365 TJ. S. 569; 308 F. 2d 491- 
501 (5th Cir. 1962) ..........................................................9; 13

Davis v. School Commissioners of Mobile County,------
F. 2 d ------  (5th Cir. Jul. 9, 1963) .............................. 14,17

Fowler v. Curtis Pub. Co., 78 F. Supp. 303, aff’d 182 
F. 2d 377 (D. C. Cir. 1950) ..........................................  16

Gibson v. Board of Public Instruction of Dade County,
246 F. 2d 913 (5th Cir. 1957); 272 F. 2d 763 (5th 
Cir. 1959) ........................................................................

Goss v. Board of Education of City of Knoxville, 373 
U. S. 683 (1963) ............................................................

Hall v. St. Helena Parish School Board, 197 F. Supp.

PAGE

649 (E. D. La. 1961), aff’d 368 H. S. 515................... 9
Holland v. Board of Public Instruction of Palm Beach,

Florida, 258 F. 2d 730, 732 (5th Cir. 1958) ............... 13
Holmes v. Danner, 5 Eace Eel. Law Eep. 1092 (1961) 9

James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959), 
appeal dismissed, 359 U. S. 1006 .................

13

17

9



I l l

McNeese v. Board of Education, 373 U. S. 668, 671 
(1963) ..................................................... ..........................  12

Mannings v. Board of Public Instruction, 277 F. 2d 
370, 372 (5th Cir. 1960) ........................... .................. 13,15

Meredith v. Fair, 199 F. Supp. 754 (S. I). Miss. 1961), 
aff’d 298 F. 2d 696, 701; 305 F. 2d 343, 344-45 (5th 
Cir. 1962) .... ........... ............ .............. ...................... .......  11

Monroe v. Pape, 365 TJ. S. 167, 183 ..............................  12

Nelson v. Grooms, 307 F. 2d 76 (5th Cir. 1962) ...........  2

Orleans Parish School Board v. Bush, 242 F. 2d 156,
166 (5th Cir. 1957), cert. den. 354 U. S. 948 ...........12,17

Potts v. Flax, 313 F. 2d 284, 290 (5th Cir. 1963) ____ 13

Shuttlesworth v. Birmingham Board of Education,
162 F. Supp. 372 (N. D. Ala. 1958), aff’d 358 U. S.
101 (1958) ............................... ..................... ......... ...... .. 13

Smoot v. State Farm Mutual Automobile Insurance 
Co., 299 F. 2d 525 (5th Cir. 1962) ............. ....... .........  16

Stell v. Savannah-Chatham County Board of Educa­
tion, 318 F. 2d 425 (5th Cir. 1963) ..........................  17

Watson v. City of Memphis, 373 U. S. 526 (May 27, 
1963) ................................................................... .............  17

PAGE

O t h e r  A u t h o r it ie s :

28 United States Code, §1983 ....................................... . 12

Mississippi Constitution
Art. 8, Sections 201, 205, 207, 213-B ....................... 9



1Y

Miss. Code (1942) Annot.
§3841.3 .....     10
§4065.3 ...........................    10
§6220.5 .....................................   10
§6232-21 to 6232-43 ......................... .................. .........  9
§6328-01 to 6328-117 ............................... ........... ......  9
§6328-03 ..............          9
§6334-01 to 6334-07 ................... ..........................2, 4, 7,14
§6334-11 ............     10

Federal Rules of Civil Procedure, Rule 12(b) .............  15

6 Race Rel. Law Reps. 314 (1961-62) ................................. 9

2 Moore’s Federal Practice 2255-2257 .....................    16

PAGE



Mnxteb Btutva GImtrt rtf KppmilB
F ob th e  F if t h  C iechit

D arrell K enyatta  E vers, et al.,
Appellants,

■—v.—
J ackson M unicipal Separate School D istrict, 

et al.,
Appellees.

D ian  H udson, et al.,
Appellants,

L eake County School B oard, et al.,

Appellees.

Gilbert R. Mason, Jr., et al.,

■—v.—
Appellants,

T pie B iloxi M unicipal Separate S chool 
D istrict of B iloxi, M ississippi,

Appellees.

No. 20824

No. 20825

No. 20826

BRIEF FOR APPELLANTS

Statement o f the Case

General Summary

Nine years after the United States Supreme Court de­
clared segregated schools unconstitutional, Negro parents 
in three Mississippi communities, Jackson, Leake County



2

and Biloxi, having petitioned their respective Boards of 
Education without success to comply with the law of the 
land and initiate desegregation of the public schools, tiled 
these actions in the United States District Court, Southern 
District of Mississippi, seeking injunctive relief to compel 
the termination of policies of racial segregation main­
tained by the Boards in clear violation of the constitu­
tional rights of appellants and the class they represent. 
Motions for preliminary injunction seeking relief in the 
1963-64 school year were filed with the complaints.

In phrasing now familiar to virtually every district 
court in this Circuit, and relying on decisions so numerous 
that in the words of one member of this Court they “ are 
an affectation to cite” ,1 appellants prayed for an end to 
the biracial public school system operated by the Boards 
under color of state law and pursuant to a policy, custom 
and practice sanctioned by state law. In this regard, the 
complaints referred to provisions in the Constitution and 
Statutes of the State of Mississippi expressly requiring the 
segregation or aiding in the maintenance of segregation 
in the public schools.

In response, the three appellee Boards filed almost 
identical motions to dismiss. The Boards did not deny 
that the public schools under their jurisdictions are oper­
ated on a racially segregated basis, but each maintained 
that the failure of any appellant to apply to a particular 
school or seek individual reassignment in accordance with 
a state pupil assignment law adopted in 1954, Miss. Code 
Annot., §§6334-01 to 6334-07, required dismissal of the 
suits.

The court below reviewed the pleadings and facts con­
tained in affidavits filed with the City of Jackson and

1 Judge Brown concurring in Nelson v. Grooms, 307 F. 2d 76 
(5th Cir. 1962).



3

Leake County cases, and dismissed them because appel­
lants had failed to exhaust administrative remedies pro­
vided by state law. Upon ascertaining that the City of 
Biloxi case was similar to the other two, the court below 
dismissed it without opinion.

Still seeking to initiate desegregation of their school 
systems at the start of the 1963-64 school year, appellants 
on July 16, 1962 appealed and filed motions for injunctions 
pending appeal or in the alternative motions to advance 
the appeals and oral arguments in these cases. These 
motions were denied by this Court on July 22, 1963, and 
a subsequent motion to consolidate the cases for appeal 
was also denied although permission to file single briefs 
was granted which right is being exercised by appellants 
here.

I.

In Evers, et al. v. Jackson Municipal Separate School 
District, suit was filed March 4, 1963 on behalf of 10 Negro 
children, and all other Negro children similarly situated in 
Jackson, Mississippi. This action followed the appellee 
Board’s failure to respond to a petition calling for desegre­
gation of the schools mailed to it in August 1962 by the 
appellants and other Negro citizens of Jackson, Mississippi 
(R. 25).

The complaint alleged that the Jackson Public School 
system is wholly segregated pursuant to state law and 
Board policy, custom and practice (R. 4-7). Schools are 
limited to attendance by white students only or Negro 
students only (R. 5), and teachers, principals and other 
professional personnel are assigned to such schools on 
the basis of race (R. 6). Budgets, school construction 
plans, and other aspects of school administration are 
adopted and executed in accordance with the operation of 
a compulsory biracial system of schools (R. 6). Appel­



4

lants did not apply for individual transfers nor did they 
seek to exhaust the administrative remedies provided by 
the Mississippi pupil assignment act, alleging that such 
exhaustion, in view of the state policy and the policy of 
the appellees, would have been futile and inadequate to 
provide the relief which they seek (R. 8).

Appellees’ motion to dismiss (R. 15) includes allegations 
that the complaint fails to state a claim upon which relief 
can be granted, that plaintiffs have not been denied any 
personal rights, lack standing to seek relief for themselves 
and for others, that the court lacks jurisdiction, and that 
appellants failed to exhaust administrative remedies under 
Mississippi Pupil Assignment Laws §§6334-01 to 6334-07.

In support of the motion, appellees filed a lengthy affi­
davit signed by Superintendent of Schools, Kirby P. 
Walker (R. 17-33). The affidavit states that in August 
1954, the appellee Board abolished all attendance areas 
and since that time has assigned all students individually 
after receiving applications prepared by the students 
(R. 17-18), that none of the appellants have ever sought 
reassignment to a school other than those to which they 
were assigned (R. 19-20), and that no child would know 
the school to which he would be assigned for the 1963-64 
school year until after application has been made for 
enrollment and temporary assignment is made by the 
superintendent, after which, applications for change in 
such temporary assignments would be received (R. 21). 
The affidavit and exhibits attached in support (R. 24) do 
not indicate that the superintendent could make assign­
ments on other than a biracial basis.

The appellee Board acknowledged receipt of appellants’ 
desegregation petition in the superintendent’s affidavit 
without indicating whether any consideration was given to 
it (R. 21). Six of the appellants, according to the affidavit,



have submitted applications for enrollment and assign­
ment for each scholastic year (R. 22), but the application 
forms provide no opportunity for the student to select 
the school where he is to be assigned (R. 27-32). Each 
applicant is required by state law to sign a certificate in­
dicating non-affiliation in secret societies (R. 33), but such 
signature has no apparent effect on school assignment.

Following a hearing on appellees’ motion to dismiss in 
April 1963 (R. 34), the Court took the ease under advise­
ment until June 24, 1963, at which time all counsel were 
advised in a letter opinion of the court below’s decision to 
dismiss the complaint because none of the appellants had 
exhausted the remedies provided by the State Pupil 
Assignment Act (R. 35-37). An order to this effect was 
signed on June 29, 1963 (R. 40), from which order appel­
lants bring this appeal (R. 41).

II.

Hudson, et al. v. Leake County School Board, was 
brought on behalf of 28 Negro children, and other Negroes 
similarly situated. The complaint, filed March 7, 1963, 
set forth the by now familiar details of a biracial school 
system manifested by the complete racial segregation of 
all students, teachers, budgets and other appropriated 
funds (R. 6). In February and again in August 1962, 
appellants and other Negro parents petitioned the Board 
to desegregate the schools, but received no official response 
from the Board (R. 6-7).

The appellees’ policy of maintaining segregated schools 
is in accord with state law (R. 7-8) which so expressly 
requires such policy as to render futile and useless the 
exhaustion of provisions of the State Pupil Assignment 
Act (R. 9). Appellants alleged these policies violate rights 
guaranteed them by the Fourteenth Amendment, and,



6

seeking immediate relief, they filed a motion for a pre­
liminary injunction (R. 11).

A motion to dismiss filed by appellees (R. 15) contained 
inter alia an allegation that the complaint fails to state 
a claim upon which relief can be granted, and also re­
ported appellants’ failure to exhaust administrative rem­
edies under Mississippi’s pupil assignment act. An 
affidavit by School Superintendent, I). C. Ware, filed with 
the motion indicates that each of the minor appellants 
was assigned to the schools they are now attending in 
accordance with their request or the request of their par­
ents, and that none have sought transfers (R. 17-18).

As in the City of Jackson case above, the court below 
heard the appellees’ motion to dismiss on April 5, 1963 
(R. 20), and reported its decision to grant same in a letter 
dated June 24, 1963. The lower court’s letter opinion 
found that the Mississippi pupil assignment act, while it 
does not “ compel integregation,” authorizes a child or 
parent “ to request assignment to a school of his choice 
and provides a full and adequate remedy to redress any 
wrong if it occurs” (R. 23).

An order dismissing the action was signed on July 5, 
1963 (R. 25), from which this appeal was filed (R. 26).

III.

Mason, et al. v. Biloxi Municipal Separate School Dis­
trict, as with the City of Jackson and lueake County suits, 
was filed by Negro parents on behalf of their children 
and other similarly situated children following the appel­
lee Board’s failure to respond to two written requests to 
initiate desegregation of the public schools.

With the complaint, appellants filed a Motion for Pre­
liminary Injunction (R. 14), which motion was set for



7

hearing on June 26, 1963, by the district court (R. 17). 
Appellees however filed a motion to dismiss (R. 17), which 
was set for hearing on June 19, 1963 (R. 18).

On June 19, 1963, appellants filed an affidavit signed by 
one of them, Dr. Gilbert R. Mason (R. 14), which affidavit 
attests to allegations in the complaint (R. 1-13) and avers 
that the Biloxi public schools are racially segregated 
(R. 19), that the Negro schools are clearly inferior (R. 20), 
and that on March 18, 1963, a petition requesting the 
appellee Board to desegregate the schools was presented at 
a meeting of the Board (R. 22). The Board promised to 
take the petition under consideration (R. 21), but having 
received no response, appellants again petitioned the Board 
by telegram on May 20, 1963 (R. 23A).

Appellees’ motion to dismiss (R. 17) states inter alia, 
that “ the complaint fails to state a claim upon which 
relief can be granted,” and adds, “ None of the plaintiffs 
has exhausted any of the administrative remedies avail­
able under Chapter 260 of the Mississippi Laws of 1954, 
Sections 6334-01 to 6334-07, inclusive” (R. 17).

At the outset of the hearing on the motion to dismiss 
held June 19, 1963 (R. 18), the court below requested and 
was informed by both counsel that the City of Biloxi suit 
was similar, to the City of Jackson and Leake County 
cases. The court then announced that it had decided to 
grant the motion to dismiss filed in those cases, would 
examine all pleadings and briefs filed in the Biloxi case, 
and if it found the case similar to the Jackson and Leake 
County cases, would adhere to those rulings in the Biloxi 
case.

Without further opinion, an order of dismissal was sub­
sequently signed by the court below on July 5, 1963, and 
appellants filed a Notice of Appeal (R. 24).



8

Specifications of Error

I. The court below erred in finding that Mississippi 
statutes providing for racial segregation in the public 
schools have been repealed or declared unconstitutional.

II. The court below erred in finding that appellants 
must exhaust administrative remedies provided by state 
law as a prerequisite to seeking federal court aid to enjoin 
the infringement of their constitutional rights.

III. The court below erred in granting the motions to 
dismiss, which at least as to the Jackson and Leake County 
cases were in effect motions for summary judgment.

A R G U M E N T

I.

The Appellees Maintain Racially Segregated Schools 
in Conformance With Mississippi Laws.

There is now at least token compliance with the United 
States Supreme Court’s decision in Brown v. Board of 
Education, 347 U. S. 483 (1954) in every state in the Union 
with the exception of the State where these three cases 
were brought.

This is not mere chance. As set forth in the complaints 
(Jackson, R. 7; Leake Co., R. 7-8; Biloxi, R. 9), several 
provisions of Mississippi’s Constitution and statutes ex­
pressly require segregated schools. These provisions have 
not been repealed or declared unconstitutional as found 
by the court below (City of Jackson, R. 36).



9

Art. 8, Sec. 207 of the Mississippi Constitution states: 
“ Separate schools shall be maintained for children of the 
white and colored races.” 2

2 This old provision has not been amended or repealed. Indeed, 
it has been strengthened by a 1960 amendment to sections 201 and 
205 of Art. 8 which make it discretionary with the legislature 
whether free public schools will be maintained by taxation or other­
wise. Under the prior provisions, the maintenance of public schools 
was a duty (§201), with at least four months of schooling required 
during each scholastic year (§205). See 6 Race Rel. Law Rep. 314 
(1961-62).

In addition, Art. 8 §213-B, enacted in 1954, empowers the legis­
lature to abolish the public schools in the state or in any county 
or school district. Sections 6232-21 to 6232-43 Miss. Code of 1942 
Annot. empower the Legislature, the Governor and Boards of Trus­
tees to close public schools when a determination is made that such 
closure is in the best interest of a majority of the educable children 
involved, or in the best interests of the school or school district.

Other southern states have attempted to use similar provisions 
to close schools placed under federal court order to desegregate. 
Hall v. St. Helena. Parish School Board, 197 P. Supp. 649 (E. D. 
La. 1961), aff’d 368 U. S. 515; James v. Almond, 170 P. Supp. 
331 (E. D. Ya. 1959), appeal dismissed, 359 U. S. 1006; Aaron v. 
McKinley, 173 P. Supp. 944 (E. D. Ark. 1959), aff’d sub. nom. 
Eaubus v. Aaron, 361 U. S. 197; Bush v. Orleans Parish School 
\Board, 187 P. Supp. 42 (E. D. La. 1960), aff’d, 365 U. S. 569; 
Allen v. County School Board of Prince Edward County, 198 P. 
Supp. 497 (E. D. Va. 1961); Holmes v. Danner, 5 Race Rel. Law 
Rep. 1092 (1961).

A legislative program enacted in 1953 and apparently intended 
for the consolidation and reorganization of school districts, 
§§6328-01 to 6328-117 Miss. Code (1942) Annot., nevertheless con­
tains a provision, §6328-03 titled, “ Equalization of facilities be­
tween races”  providing that all school districts reorganized under 
the act shall include the educable children of all races, and prior to 
approval of such reorganization, a satisfactory plan of “equali­
zation of facilities between the races shall be submitted and 
approved . . . ”



10

§3841.3 Miss. Code 1942 Annot. authorizes the state 
Attorney General to represent any school official in suits 
challenging the validity under the constitution and laws 
of the United States of a state law determining inter alia 
what persons shall attend or be enrolled in state colleges 
and schools. It was enacted in 1958.

§4065.3 Miss. Code 1942 Annot. requires the entire 
executive branch of the state government:

“ to prohibit, by any lawful, peaceful and constitutional 
means, the implementation of or the compliance with 
the integregation decisions of the United States 
Supreme Court of May 17, 1954 (347 U. S. 483, 74 
S. Ct. 686, 98 L. ed. 873) and of May 31, 1955 (349 
U. S. 294, 75 S. Ct. 753, 99 L. ed. 1083), and to pro­
hibit by any lawful, peaceful and constitutional means, 
the causing or mixing or integration of the white 
and Negro races in public schools, . . .  by any branch 
of the federal government. . . . ”

§6220.5 Miss. Code 1942 Annot., enacted in 1955 sub­
jects any white person attending a school receiving state 
funds of high school level or below with a Negro to prose­
cution and upon conviction to a jail term of up to six 
months, or a fine of up to $25.00 or both.

§6334-11 Miss. Code 1942 Annot,., enacted in 1960, for­
bids the enrollment or attendance of a child in any school 
except the school district of his residence, unless the child 
is transferred to another school district in accord with 
state statutes.

Under this broad legislative umbrella, the public schools 
throughout the state of Mississippi, including those under 
appellees’ control, have continued to function on a segre­
gated basis without apparent regard for the many decisions 
of this Court and the United States Supreme Court requir­



11

ing a prompt and reasonable start toward school desegre­
gation.

The court below found that the Mississippi statutes 
which prior to the Brown case in 1954, required segrega­
tion in public schools “ have been repealed or declared un­
constitutional, . . . ” (City of Jackson, R. 36). But the 
statutory provisions set forth in the complaints and re­
viewed above have not been repealed nor expressly declared 
unconstitutional. There has been, moreover, no repudia­
tion of these provisions by appellees, and no indication 
that they will not continue to maintain segregated schools 
in conformance with these statutes unless this Court 
orders otherwise.

The intent of these provisions is clearly the maintenance 
of racial segregation in Mississippi’s public schools. This 
Court has taken judicial notice that “ the state of Missis­
sippi maintains a policy of segregation in its schools and 
colleges.” Meredith v. Fair, 298 F. 2d 696, 701 (5th Cir. 
1962); 305 F. 2d 343, 344-45 (5th Cir. 1962). The appellee 
Boards are following this policy. Any other conclusion 
would fly in the face of “what everybody knows . . . ” 
Meredith v. Fair, 305 F. 2d 343, 344 (5th Cir. 1962).



1 2

II.

Appellants Are Entitled to the Relief Sought Without 
Exhausting Remedies in Mississippi’s Pupil Assignment 
Act.

Assuming, arguendo, a serious question as to whether 
appellants must exhaust administrative procedures estab­
lished by state law prior to utilizing the provisions of 28 
United States Code, §1983 to enjoin appellee school boards 
from denying their constitutional rights to a desegregated 
education, that question is now settled by the Supreme 
Court’s decision in McNeese v. Board of Education, 373 
U. S. 668 (19<?3). There, the Court said, . . relief under 
the Civil Rights Act may not be defeated because relief was 
not first sought under state law which provided a remedy.” 
The federal remedy is supplementary to the state remedy 
said the Court quoting its opinion in Monroe v. Pape, 365 
U. S. 167, 183, and the state remedy need not be sought and 
refused before the federal one is invoked. 373 U. S. at 671.

But, as this Court said in Armstrong v. Board of Educa­
tion of Birmingham,------F. 2d------- (5th Cir. Jul. 12,1963),
in which the McNeese case, supra, is followed, there has 
never been any doubt concerning this Court’s position on 
the necessity of exhaustion of pupil assignment law reme­
dies. In Orleans Parish School Board v. Bush, 242 F. 2d 
156 (1957) cert. den. 354 U. S. 948, the first appeal here of a 
case involving a state pupil assignment law, a state con­
stitutional provision and state statutes required separate 
assignments based on race. See 242 F. 2d at 159. This 
Court, while basing its ruling on other grounds, stated that 
it would be unfair to remit thousands of minor Negro chil­
dren to thousands of administrative hearings before the 
school board for relief, “ so long as assignments could be 
made under the Louisiana Constitution and Statutes only



13

on a basis of separate schools for white and colored chil­
dren. . . .” 242 F. 2d at 162.

Acknowledging the existence of the Florida Pupil Assign­
ment Law of 1956 in Gibson v. Board of Public Instruction 
of Dade County, 246 F. 2d 913 (5th Cir. 1957), this Court 
held that exhaustion of its provisions was not necessary so 
long as racial segregation was required throughout the 
school system. It is true that Shuttlesworth v. Birmingham 
Board of Education, 162 F. Supp. 372 (N. D. Ala. 1958), 
aff’d 358 U. 8. 101 (1958) held that the Alabama Pupil 
Assignment Act was not invalid on its face, but Judge 
Rives, who had written the opinion in Shuttlesworth pointed 
out in Holland v. Board of Public Instruction of Palm 
Beach, Florida, 258 F. 2d 730, 732 (5th Cir. 1958), that this 
decision did not alter the courts’ position that the remedies 
provided by pupil assignment laws need not be exhausted 
prior to the filing of a school desegregation suit.

This point was re-emphasized in the second appeal of the 
Gibson case. 272 F. 2d 763 (5th Cir. 1959), where Judge 
Rives, again speaking for the Court, found that the as­
signment of all students according to race under the Florida 
Pupil Assignment Act did not constitute a sufficient plan 
of desegregation even when accompanied by an “ Implemen­
tation Resolution.” Subsequently in Mannings v. Board of 
Public Instruction, 277 F. 2d 370 (5th Cir. 1960), this Court 
explained again that the exhaustion of administrative reme­
dies is not a prerequisite to a suit to enjoin segregated 
schools. Similar statements and holdings are found in 
Augustus v. Board of Public Instruction, 306 F. 2d 862, 
869 (5th Cir. 1962), Bush v. Orleans Parish School Board, 
308 F. 2d 491, 499-501 (5th Cir. 1962); and Potts v. Flax, 
313 F. 2d 284, 290 (5th Cir. 1963).

In recent months, this Court has granted injunctions 
pending appeals in ordering immediate relief for appellants



14

seeking to desegregate schools in Birmingham and Mobile, 
Alabama. Davis v. School Commissioners of Mobile 
County, ------  F. 2d ------  (5th Cir. Jul. 9, 1963); Arm­
strong v. Board of Education of Birmingham, ------  F. 2d
------  (5th Cir., Jul. 12, 1963). In neither case did plaintiffs
attempt to exhaust administrative remedies under the Ala­
bama Pupil Assignment Act prior to filing suit.

Appellants submit that there is no reason why the rules 
as to exhaustion of administrative remedies, uniformly ap­
plied by this Court since 1956 to Pupil Assignment Acts in 
Louisiana, Florida, Alabama, and Texas should not apply 
with special force on the Mississippi Act, §§6334-01 to 
6334-07, Miss. Code (1942) Annot. which is similar to those 
considered in the other states, particularly since the policy 
of school segregation in Mississippi is more deeply en­
trenched in that state’s laws today than in the period prior 
to Brown v. Board of Education, 347 F. S. 483 (1954).

III.

Appellants Are Entitled to Orders Reversing the Dis­
missal o f These Cases and Other Appropriate Relief in 
Accordance With the Decisions o f This Court.

The relief here sought is neither novel, unique or extraor­
dinary. Appellants ask merely that this Court provide 
them with rulings similar to those already handed down in 
countless other school desegregation cases where all the 
defenses raised here by appellees have been considered and 
rejected. Appellants respectfully suggest that the court be- 
low’s opinions, when reviewed in the light of these cases, 
necessitates reversal of the orders of dismissal with in­
structions to grant appellants their requested relief in at 
least two of the cases.



15

There is in Mississippi simply no basis for a finding 
that the state no longer enforces a policy of racial segrega­
tion in its public schools and colleges. To the contrary, 
since 1954 there are more provisions in the State Constitu­
tion and Statutes aimed at maintaining school segregation 
than ever. None of the provisions requiring segregation 
have been repealed, and the appellee boards have operated 
the schools under their control in complete conformance 
with them. The Boards have totally ignored appellants’ pe­
titions to initiate desegregation even though this method 
of notice has been frequently approved by this Court and 
have adopted transfer standards which, administered in ac­
cordance with a continuing policy of initial assignments 
based on race, result in the appellee school systems being as 
segregated by race now as they ever were.

These are the facts and the precedents which were avail­
able to the court below and from which its decisions in these 
cases were made. Not only were the orders of dismissal 
final and appealable, Mannings v. Board of Public Instruc­
tion, 277 F. 2d 370, 372 (5th Cir. 1960) but, at least as to the 
City of Jackson and Leake County cases, they were deci­
sions based on the merits.

Under Buie 12(b), Federal Buies of Civil Procedure:

“ If, on a motion asserting the defense numbered (6) 
to dismiss for failure of the pleading to state a claim 
upon which relief can be granted, matters outside the 
pleading are presented to and not excluded by the 
court, the motion shall be treated as one for summary 
judgment and disposed of as provided in Buie 56, . .  .”

The motions to dismiss filed by appellees in all three 
cases asserted as the first defense: “The complaint fails to 
state a claim upon which relief can be granted.”  In the 
City of Jackson and Leake County cases, appellees pre­



16

sented affidavits in support of these motions, which affi­
davits were “ not excluded by the court” , but were expressly 
referred to by the court in its opinions (City of Jackson, R. 
36; Leake County, R. 23).

Applying this settled rule to these two cases, justifies a 
conclusion that the orders of dismissal were based on the 
merits of the cases. Smoot v. State Farm Mutual Automo­
bile Insurance Co., 299 F. 2d 525 (5th Cir. 1962); Fowler v. 
Curtis Pub. Co., 78 F. Supp. 303, aff’d 182 F. 2d 377 (D. C. 
Cir. 1950). See 2 Moore’s Federal Practice 2255-2257. This 
being so, appellants submit that the City of Jackson and 
Leake County decisions should be reversed and returned to 
the district court with instructions to promptly initiate de­
segregation of the public schools.

In the City of Biloxi case, appellees filed no affidavit to 
support their motion to dismiss. Appellants had filed an 
affidavit in support of their motion for preliminary injunc­
tion (Biloxi, R. 19), but the court entered no opinion with 
its order to dismiss the Biloxi case, and the record on ap­
peal does not indicate whether the court considered appel­
lants’ affidavit or matters outside the pleadings in reaching 
its decision. Thus, appellants submit that the decision in 
the City of Biloxi case should be reversed with directions 
to promptly hear and decide appellants’ motion for a pre­
liminary injunction.

In conclusion, the records in these appeals are evidence 
that appellees and other Mississippi officials are probably 
less willing to comply with the Brown case now than they 
were in 1954. Thus, whatever the problems in effectuating 
the desegregation of the appellees’ schools, it is unlikely 
that more time will prove helpful in their solution. More­
over, as this Court has said, “ The vindication of rights 
guaranteed by the Constitution cannot be conditioned upon



17

the absence of practical difficulties.” Orleans Parish School 
Board v. Bush, 242 F. 2d 156, 166 (5th Cir. 1957).

The Supreme Court in Watson v. City of Memphis, 373 
U. S. 526 (1963), and Goss v. City of Knoxville, 373 U. S. 
683 (1963) placed a new urgency on its earlier decision in 
Brown v. Board of Education, 349 U. S. 294 (1955), requir­
ing school boards to make a prompt and reasonable start 
toward school desegregation.

This Court’s recent decisions in Armstrong v. Birming­
ham Board of Education, — — F. 2d ——  (July 12, 1963);
Davis v. Mobile School Board,------F. 2d --------  (July 9,
1963); and St ell v. Savannah-Chatham County Board of 
Education, 318 F. 2d 425 (5th Cir. 1963), also signify that 
lengthy litigation delays will no longer be permitted to de­
lay to the point of denial the constitutional right of Negro 
children to obtain a desegregated education in the public 
schools of their home towns. That appellants are entitled 
to such an education is as apparent from the cases as their 
presence here is reflective of their desire.



18

CONCLUSION

W h e r e fo r e , for all the foregoing reasons, appellants re­
quest that the orders of the court below dismissing these 
cases be reversed with directions in the City of Jackson and 
Leake County cases to enter orders requiring the appellee 
school boards to promptly initiate school desegregation in 
accordance with the orders of this Court, and with direc­
tions in the City of Biloxi case to promptly hear and decide 
appellants’ motion for a preliminary injunction.

Respectfully submitted,

J a c k  H. Y o ung
1151/2 N. Farish Street 
Jackson, Mississippi

R. J ess B r o w n
125% N. Farish Street 
Jackson, Mississippi

J a c k  G reen berg
C o n sta n c f  B a k e r  M o tley
D er r ic k  A. B e l l , Jr.

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellants