Boson v. Rippy Appellants' Brief

    Mmteb Stairs (timvt of Kppmlz
F or the F ifth  Circuit 

No. 18,046

S andra Craig B oson, et al.,

versus
Appellants,

Dr. E dwin L. R ippy , as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 
County, Texas, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS

APPELLANTS’ BRIEF

W. J. D urham ,
C. B. B unkley , J r.,

Dallas, Texas,

T hurgood Marshall,
New York, New York,

Attorneys for Appellants.

E lwood H. Chisolm ,
New York, New York,

Of Counsel.



I n xtvh States (Emtrt nt Appeals
F or the F ifth  Circuit 

No. 18,046

S andra Craig Boson, et al., 

versus
Appellants,

Dr. E dwin L. R i p p y , as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 
County, Texas, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS

APPELLANTS’ BRIEF

Statement of the Case

For the fourth time since it was initiated in July 1955 
(R. 6), this cause is here on appeal. The previous proceed­
ings are reported sub nom. Brown v. Rippy, 233 F. 2d 796, 
reversing Bell v. Rippy, 133 F. Supp. 811, cert, denied 352 
U. S. 878; Borders v. Rippy, 247 F. 2d 268, reversing Bell 
v. Rippy, 146 F. Supp. 485; Rippy v. Borders, 250 F. 2d 690 
(R. 6-8).

On remand from the last cited decision, the District 
Court, conformably with this Court’s directions and man­
date, entered a “final judgment” on April 16, 1958, which 
“restrained and enjoined [appellees] from requiring and 
permitting segregation of the races in any school under



2

their supervision, from and after such time as may be 
necessary to make arrangements for admission of children 
to such schools on a racially non-discriminatory basis, as 
required by the decision of the Supreme Court in Brown v. 
Board of Education of Topeka, 348 U. S. 294, and retaining 
jurisdiction of the cause for such further hearings and 
proceedings and the entry of such orders and judgments 
as may be necessary or appropriate to require compliance 
with such judgment” (R. 2-3).

Some thirteen months thereafter, on May 20, 1959 (R. 
5), appellants, alleging that they still were being denied 
their constitutional rights to matriculation on a racially 
nonsegregated basis and that appellees by positive action 
and inaction continued to require and permit the schools 
under their supervision to be operated on a racially segre­
gated basis for a period of time longer than necessary to 
make arrangements for admission of children to such 
schools on a racially nondiscriminatory basis, moved for 
further relief in the form of an order requiring appellees 
to comply forthwith with the judgment of April 16, 1958, 
by immediately operating their public school system on a 
nonracial, nondiscriminatory basis and specifically direct­
ing appellees to permit appellants and all others similarly 
situated to matriculate in such schools without regard to 
race or color (R. 8-9).

On July 27, 1959, appellees filed a reply which denied 
these allegations and, specially answering, asserted that 
at all times they have believed in appellants’ constitutional 
rights and done their best to comply with federal and state 
law as well as the decisions and orders of this Court and 
the Supreme Court; that they have been, and are, conduct­
ing litigation with respect to the state law which, under 
penalty of a withdrawal of state funds, forbids desegre­
gation in any Texas school district without voter approval



3

in a local referendum; that it was physically impossible 
and impracticable to desegregate immediately, at the be­
ginning of the 1959 fall term, or at the middle of the 1959- 
GO school year; that they have been and are keeping abreast 
with desegregation elsewhere and considering these devel­
opments as they seek to formulate their desegregation 
plan; that they have been studying the problem continu­
ously since its inception and, pending final determination 
of the above mentioned litigation and final formulation of 
a desegregation plan, appellants have been and will be 
enjoying separate but equal educational facilities; and, 
therefore, that not only has a prompt and reasonable start 
been made toward desegregation in good faith compliance 
with all orders of the federal courts but appellees have 
acted and proceeded with all deliberate speed as required 
in the Brown decision (R. 12-16).

The hearing on appellants’ motion was held on July 30 
(R. 17), whereupon statements were made by counsel and 
testimony produced by both sides. In the course of the 
opening statement of counsel for appellants, the relief 
sought on their behalf was modified to pray in the alterna­
tive for an order directing appellees “to bring in a plan 
for desegregation within a reasonable time, which would 
provide for desegregation beginning September, 1960” (R. 
22) .

The evidential facts adduced from the testimony of the 
President of the School Board, Superintendent of Schools 
and an assistant superintendent in charge of administra­
tion are not in dispute: On June 25, 1958 (Rf 34), the 
School Board instructed the Superintendent of Schools 
that there would “be no alteration of the present status 
regarding segregation of the races within the schools of 
this district for the school year beginning September, 
1958” (R. 33). No similar official statement or policy had



4

been made for the school year beginning September 1959, 
“but it [was] not anticipated that there should be a change 
in the status for the ensuing school year” (R. 39).

It is not physically impossible to integrate at any time 
(R. 54) and the major reason why the School Board hasn’t 
desegregated in Dallas is because of the conflict in state 
and federal law (R. 59). To integrate beginning in Sep­
tember 1959 in compliance with the mandate of federal law 
would invoke application of state law; and, resultingly, it 
would cut off over $2,620,000 in state funds from the Dallas 
school district and have a catastrophic effect on the opera­
tion of public schools (R. 54, 55, 71). However, should 
desegregation be effectuated in September, 1960, appellees 
could fix the budget for the 1960-61 school year despite 
the loss of state funds and it would not be a problem 
(R. 62).

Appellees have studied and considered at least five alter­
native plans for effectuating desegregation (R. 56, 78-79) 
and the Board particularly favored the stair-step plan— 
a plan which it could put in operation at any time or in 
due time (R. 60). But the Board has not formally adopted 
any plan nor has it taken any action at all toward starting 
actual desegregation at any time in the future (R. 59, 60) 
except—as a preliminary to and in aid of the final plan 
when adopted (R. 16)—to change several schools from 
white to colored because of population shifts and changes 
in the scholastic census (R. 26, 37, 81).

Meanwhile appellees have been pursuing their legal 
efforts to find out whether the state withdrawal-of-funds 
law applies to them (R. 40, 47); have been keeping abreast 
of desegregation developments elsewhere by visiting other 
communities and reading the current periodical publica­
tions and other literature in the subject (R. 51-52, 57, 71- 
73, 74, 77-78); have been trying to explain to the public



5

the problems which face the Board in resolving the prob­
lem. of desegregation (R. 52-53); have been continuing the 
annual scholastic census and study of the age-grade dis­
tribution of pupils (R. 58, 66, 71-72); have been consulting 
on an informal basis with teachers and administrative staff 
on how to meet the problem of desegregation (R. 74-75) 
and discovered that there are a number of teachers who 
would prefer not teaching mixed classes (R. 68, 82-83).

Finally, appellees professed a willingness to initiate the 
local referendum on desegregation provided for under 
state law if the Court or appellants desired it (R. 48).

Having heard this evidence the District Court rendered 
an opinion from the bench (R. 93-105), denying appellants 
any further relief. Subsequently, on August 4, the court 
below entered an order which set forth findings that ap­
pellees had not only made a prompt and reasonable start 
but have proceeded toward good faith compliance at the 
earliest practicable date with the May 17, 1954, ruling of 
the Supreme Court and the judgments of this Court, as 
well as the orders entered pursuant thereto (see pp. 1-2, 
supra) ; that appellees’ actions constituted good faith im­
plementation of all governing constitutional principles; 
that some further time should elapse before the District 
Court decides on a definite date for desegregation, but 
that appellees should initiate the local referendum as pro­
vided by state law and take such other steps and studies 
as are possible to comply with the present decisions of the 
Federal Courts (R. 108-109); and thereupon it specifically 
denied appellants’ prayer for an order directing and re­
quiring immediate desegregation, but retained jurisdiction 
for the proceedings which are to be resumed on April 4, 
1960 (R ,110).



6

Specification of Errors

1. The court below erred in finding and concluding as a 
matter of law that appellees had made a prompt and 
reasonable start and have proceeded toward good faith 
compliance at the earliest practicable date with the May 
17, 1954, ruling of the Supreme Court and the judgments 
of this Court, as well as the orders entered pursuant 
thereto, and that appellees’ actions constituted good faith 
implementation of all governing constitutional principles.

2. The court below erred in denying appellants’ alter­
native prayer for further relief on the ground that some 
further time should elapse before the District Court de­
cides on a definite date for desegregation and that mean­
while appellees should initiate the local referendum as 
provided by state law and take such other steps and studies 
as are possible to comply with the present decisions of the 
Federal Courts.

Argument

Simply stated, the two specifications of error relied upon 
present a single question: Does the order entered by the 
court below on the record of these proceedings square 
with the decisions and directions of this Court on previous 
appeals in this case, other apposite rulings of this Court, 
courts of coordinate jurisdiction and the Supreme Court? 
Appellants submit that this question must be answered in 
the negative.

In Borders v. Rippy, 247 F. 2d 268 (1957), this Court, 
on evidence strikingly similar to that in this record, held 
that appellees must desegregate the public schools in the 
Dallas Independent School District. See Dallas Independ-



7

ent School District v. Edgar, 255 F. 2d 455, 456-457 (5th 
Cir. 1958). The Court in Borders v. Rippy also made it 
clear that appellees must make the necessary arrange­
ments to promptly meet their responsibility in the prem­
ises, that the court below must ascertain whether appellees 
have failed in any respect and that, if they have, it must 
require actual good faith compliance with the mandate to 
desegregate. 247 F. 2d, at 272; Rippy v. Borders, 250 F. 
2d 690, 693, 694 (1957). See Cooper v. Aaron, 358 IT. S. 
1, 7; Allen v. County School Bd. of Prince Edward Cty., 
Va., 266 F. 2d 507, 510-11 (4th Cir. 1959), cert, denied 4 
L. ed. 2d 72, and 249 F. 2d 462, 465 (1957), cert, denied
355 U. S. 953; Aaron v. Cooper, 261 F. 2d 97, 107 (8th Cir. 
1958); County School Board of Arlington County, Va. v. 
Thompson, 252 F. 2d 929, 930 (4th Cir. 1958), cert, denied
356 U. S. 958; School Board of City of Charlottesville v. 
Allen, 240 F. 2d 59, 64 (4th Cir. 1956), cert, denied 353 
U. S. 910, 911; Avery v. Wichita Falls Independent School 
District, 241 F. 2d 230, 233, 234 (5th Cir. 1957), cert, denied 
353 U. S. 938; Jackson v. Rawden, 235 F. 2d 93, 95-96 (5th 
Cir. 1956), cert, denied 352 IT. S. 925.

The opinion in Borders v. Rippy was rendered almost 
two and a half years ago; Rippy v. Borders was decided 
less than six months later; and on April 16, 1958, the 
District Court pursuant thereto enjoined appellees from 
requiring and permitting racial segregation in the Dallas 
public schools from and after such time as may be neces­
sary to make arrangements to effectuate racially non- 
discriminatory admission of children to such schools (R. 
2-3). More than a year had elapsed after entry of this 
order, during which appellees had taken no effective action 
toward actual compliance with it, and contemplated none 
in the future (R. 33, 39), before appellants, agreeably with 
this Court’s admonition in the last cited decision that “the 
school authorities should be accorded a reasonable further



8

opportunity to meet their primary responsibility in the 
premises,” 250 F. 2d, at 694, sought an order requiring 
immediate compliance. Under these circumstances, we sub­
mit, the order of the court below in the proceedings now 
under consideration is inconsonant with its obligation 
under applicable decisions and the constitutional mandate. 
See Cooper v. Aaron, 358 U. S. 1, 7; Allen v. County School 
Bel. of Prince Edward County, Va., supra, 266 F. 2d 507, 
510-511; School Board of City of Charlottesville, Va. v. 
Allen, supra, 240 F. 2d 59, 64.

So far as can be gleaned from the opinion delivered by 
the District Judge from the bench (R, 93-105) and the 
order entered thereafter (R. 108-110), the reasons which 
guided him in denying appellants the original as well as 
amended prayers for relief and in deferring decision on 
setting a definite date for desegregation until April 1960, 
if then, were findings that the appellees believe in constitu­
tion and laws and courts of the United States and Texas; 
that they have not only made a prompt and reasonable start 
but are also proceeding toward a good faith compliance at 
the earliest practicable date with the first ruling of the 
Supreme Court in the School Segregation Cases and. the 
judgments of this Court, as well as the judgment last 
entered below pursuant thereto; and that appellants’ 
actions, i.e., their litigation to find out whether the Texas 
withdrawal-of-state funds law applies to them and their 
continuing study of the problem of desegregation, con­
stitute good faith implementation of all governing con­
stitutional principles (R. 104-105, 108-109).

But this Court has already ruled in this case that such 
actions by appellees do not constitute good faith imple­
mentation of the controlling constitutional principles, 
cannot operate as a defense for unlimited delay, and can­
not relieve either appellees or the court below of their



9

constitutional duties and responsibilities. Borders v. 
Rippy, 247 F. 2d 268, rehearing denied 247 F. 2d 272.* 
See Dallas Independent School District v. Edgar, 255 F. 
2d 455; Rippy v. Borders, 250 F. 2d 690. See also Jackson 
v. Raw den, supra, 235 F. 2d 93; McSwain v. County 
Board of Education, 138 F. Supp. 570 (E. D. Tenn. 1956); 
Willis v. Walker, 136 F. Supp. 177, 181 (E. D. Ky. 1955).

Similarly in a previous decision in this case, this Court 
has already rejected as “insufficient” a finding that ap­
pellees have made “a prompt and reasonable start” and 
are proceeding toward “a good faith compliance at the 
earliest practicable date” with the May 17, 1954, ruling 
in the School Segregation Cases where the record then, 
as now (R. 33, 39), revealed that appellees had approved 
an official statement sanctioning no alteration in the pres­
ent segregation of the races within the schools and one 
of them testified categorically that no change in this 
status was contemplated for the future. Borders v. Rippy, 
247 F. 2d 268, 271-72. What the Court said in Borders 
v. Rippy may for emphasis be repeated here: “Faith by 
itself, however, without works, is not enough.”

Finally, as for the finding that appellees believe in law 
and courts, appellants suggest that such belief is of a piece 
with good faith and is also “insufficient.”

* Both the court below and appellees appear to read this per curiam on 
petition for rehearing as encouraging, if  not directing, the school authorities 
to pursue their legal remedies in litigation such as Dallas Independent School 
District v. Edgar, 255 F. 2d 455 (5th Cir. 1958) and the similar action now 
pending in the state courts. Bather this Court’s advice was: “If, however, 
it should be [that this Act is enforced against the Dallas Independent School 
District], then the Board of Trustees of the School District and the persons 
carrying out the order to be issued by the district court [to require actual 
desegregation] are not without their legal remedies.” And for vindication see 
Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d 28 U. S. L. 
Week 3188 (December 11, 1959) (Nos. 458 & 471) ; James v. Duckworth, 170 
F. Supp. 342 (E. D. Va. 1959), aif’d 267 F. 2d 224 (4th Cir. 1959), cert, 
denied 4 L. ed. 2d 76; Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 (1959) ; 
James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959); Soxie School District 
No. 46 of Lawrence County, Ark. v. Brewer, 137 F. Supp. 364 (E. D. Ark. 
1956), aff’d 238 F. 2d 91 (8th Cir. 1956).



10

CONCLUSION

W herefore appellants pray that the judgment below be 
reversed and that the court below be instructed to enter an 
order requiring appellees to bring in a plan for desegrega­
tion within a reasonable time, which would provide for 
desegregation beginning in September 1960.

Respectfully submitted,

W. J. D urham ,
C. B. B unkley , J r.,

Dallas, Texas,

T hurgood Marshall,
New York, New York,

Attorneys for Appellants.

E lwood H. Chisolm ,
New York, New York,

Of Counsel.