Wichita Falls Independent School District v. Avery Petition for Writ of Certiorari

    In the

Supreme Court of the United States
OCTOBER TERM, 1956

No.

W ichita Falls Independent School District, et al,
Petitioners,

v.

Alfred Avery, Jr., A Minor, by His Mother and Next 
Friend, (Mrs.) Alfred Avery, et al,

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

R. Marvin Pierce,
600 Oil & Gas Building, 
Wichita Falls, Texas, 

Counsel for Petitioner.
Clyde W. Fillmore,

400 Oil & Gas Building, 
Wichita Falls, Texas,

Of Counsel.

W A R L 1 C K  L A W , IN C .-----1 2 0 7  H O R D  S T R E E T — -D A L L A S ----- R I 1 -6 7 1 1



I N D E X
Page

Opinions Below ..............................................................  1
Jurisdiction ..............................................................    2
Questions Presented ......................................................   2
Statement.........................................................................  3
Reasons for Granting the Writ............................    10
Conclusion ....................................................................... 15
Appendix .........................................................  17-60

Opinion of Court of Appeals (R. 106-115)...........  17
Dissent of Justice Cameron (R. 117-143).............  27
Affidavit of Joe B. McNiel— Appellees Exhibit 

in Court of Appeals...............................     55



1 1 CITATIONS
Page

Cases
Brown, et al. v. Board of Education of Topeka,

349 U. S. 294; 99 L. Ed. 1083........................... 2, 3, 9,11
Brown, et al. v. Rippy, et al., 233 F. 2d 796..........  13
Brownlow v. Schwartz, 261 U. S. 216.......................  9
Carson, et al. v. McDowell County, 227 P. 2d 789.... 12
Carson v. Warlick, 238 F. 2d 724...............................  12
Far East Conference v. United States,

342 U. S. 570..............................................................  12
General American Tank Car Corp. v. El Dorado

Terminal Co., 308 U. S. 422-433...............................  12
Hecht Co. v. Bowles, 321 U. S. 321.............................13,14
Hood, et al. v. Sumter County, 232 F. 2d 636,

352 U. S. 870................................................................  12
Jackson, et al. v. Rawdon, 235 F. 2d 93.......................  13
Martinez v. Maverick Co. Water Control Imp.

Dist., et al., 219 F. 2d 666........................................ 15
McKinney v. Blankenship, 282 S. W. 2d 691...............  5
Porter v. Warner Holding Co., 328 U. S. 395...........  13
Railroad Commission v. Pullman Co.,

312 U. S. 496................................................................  12
Thomas v. The Pick Hotels Corp.,

224 F. 2d 664-666......................................................  11
United States v. Moore, 340 U. S. 616...........................  13
United States v. Western Pacific Railroad Co.,

25 L. W. 4028............................................................  12
United States v. W. T. Grant Co., 345 U. S. 633 9
Whitmore, et al. v. Stilwell, et al., 227 F. 2d 187 ... 13



Page
Miscellaneous

Federal Rules of Civil Procedure:
Rule 23(a) ................................................................... 15
Rule 54(c) ..................................................................  11
Rule 57 ..............................................................    3

CITATIONS— (Continued) iii



In the

Supreme Court of the United States
OCTOBER TERM, 1956

No.

W ichita Falls Independent School District, et al.,
Petitioners,

v.

Alfred Avery, Jr., A Minor, by His Mother and Next 
Friend, (Mrs.) Alfred Avery, et al,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fifth Circuit entered in the above cause on January 
9, 1957.

OPINIONS BELOW

The opinion of the District Court for the Northern Dis­
trict of Texas (R. 94-96) is not reported, but appears in 
the Transcript of the printed record on appeal at pages



2

94-96. The opinion (R. 101-115) and dissent (R. 117-143) 
in the Court of Appeals for the Fifth Circuit is not yet 
reported, but is reprinted in the Appendix hereto at pages 
17 and 27, respectively.

JURISDICTION

The judgment of the Court of Appeals for the Fifth 
Circuit was entered on January 9, 1957 (R. 106-115), and 
is reprinted in the Appendix at pages 17-26. The jurisdic­
tion of this Court is invoked under 28 U. S. C. 1254(1).

QUESTIONS PRESENTED

1. Whether, after a school board has in good faith taken 
positive steps to comply with the Brown decision of this 
Court and the Negro plaintiffs sought no tangible relief 
that had not previously been granted them by the board 
itself, the District Court may be required nonetheless to 
retain the case on its docket indefinitely so that any future 
complaints which these or other Negro school children or 
their parents may have about the board’s conduct of school 
administration may be heard in this suit?

2. Whether the District Court may be compelled to retain 
jurisdiction of a controversy that has become moot for the 
sole purpose of acting as a super school board in overseeing 
the day-to-day administrative action of the duly elected 
board in the conduct of the public school system.



3

STATEMENT

This suit was brought by the families of several colored 
children early in December of 1955 (R. 15), who had 
applied for admission to the Barwise School operated by 
Petitioners, and were refused admittance on or about Sep­
tember 7, 1955 (R. 18, 25 & 36). The complaint sought a 
declaratory judgment and injunctive relief, temporary and 
permanent. It asked that Defendants (Petitioners here) be 
restrained from discriminating against all Negro minors 
of public school age in depriving them their right to 
register, enroll and receive instruction in the free public 
elementary school in their community and nearest their 
respective homes1 without any distinctions being made as 
to them on the basis of their race and color, etc. (R. 11).

Petitioners here admitted the applicability of Brown v. 
Board of Education of Topeka, 3b9 U. S. 29b, to their 
school district (R. 16-17). They had chosen to comply (R. 
20); had made a start (R. 21) ; and had definite plans to 
effect desegregation of all schools operated by them within 
a matter of months (R. 21) ; and they admitted the author­
ity of the court to grant any injunctive relief to which 
plaintiffs might prove themselves entitled.

Defendants (Petitioners here) denied the right of plain­
tiffs to declaratory judgment under Rule 57 (R. 16)1 2; 
defendants also denied that the named plaintiffs might

1 (Emphasis added.) See R. 11.
Petitioner contended and contends that all Plaintiff’s propositions 

were already determined by the school segregation cases which are stare 
decisis thereto.



4

properly represent all other Negro minors categorized “as 
all other colored children” 3 (R. 17-18).

The basic facts which are not in dispute are as follows:
The schools operated by the Wichita Falls Independent 

School District opened on September 7, A. D. 1955 (R. 5). 
Complainants, or presumably some of them, were among 
the families of several colored children who applied for 
admission to Barwise School that day and were referred to 
Booker T. Washington School (R. 18, 25 & 36). They were 
told why they could not be admitted to Barwise until the 
completion of the Sunnyside Heights School (named Lamar 
School) (R. 18, 25, 36 & 37).

Of the schools operated by the Wichita Falls Independent 
School District, only the Sheppard Air Force Base School 
was opened on a non-segregated basis (R. 5, 21, 43, 54, 55, 
61, 62, 65, 67, 72 & 76) and was attended by both colored 
and white students (R. 43). This was pursuant to the 
action of the School Board on July 11, 1955, rescinding its 
former action of January 21, 1955, and electing to operate 
Sheppard Air Force Base Elementary School on a non- 
segregated basis for the school year of 1955-56. The Board 
gave as its reasons for doing so this Court’s decree on 
segregation together with the pronouncement of the State 
Board of Education of Austin, Texas, as to the eligibility 
of integrated schools to receive state funds (R. 46, 55, 63 
& 64).

3Petitioner contended and contends that no legal rights or relations of 
the actual parties in controversy existed because individual Plaintiffs, 
as well as all the actual class they might conceivably have represented, 
had already been admitted in the school to which they sought admission.



5

Sunnyside Heights Addition is a new addition situated 
a considerable distance south of the Barwise School, but in 
the old Barwise School District (R. 20). A new elementary 
school called Lamar School was under construction in such 
addition (R. 80). During the summer of 1955, the bound­
ary lines had been re-drawn dividing old Barwise District 
in anticipation of the opening of Lamar School in Septem­
ber (R. 81). The old Barwise School had been re-named 
A. E. Holland School at the recommendation of a commit­
tee of Negro citizens. This was prior to the notification by 
the State Board of Education that the payment of State 
School aid might be applied to integrated schools (R. 63 ).4 
Due to rains and shortage of materials, the completion of 
the Sunnyside Heights Addition Elementary School (Lamar 
School) was delayed and all white students in the old Bar- 
wise District (including the new Sunnyside Addition) had 
to attend Barwise School temporarily (R, 80 & 81). It was 
very crowded (R. 76).

Lamar School was completed December 29, 1955, and on 
January 4, 1956, all students then attending the old Bar- 
wise School were transferred to Lamar School to attend 
classes while the Barwise School building was re-condi- 
tioned to receive students beginning January 23, 1956 (R. 
20 & 27).

Complainants filed this suit in December of 1955 (R. 15) 
and Defendants answered on January 6, 1956.

4The case of McKinney v. Blankenship, 282 S. W. 2d 691, declaring 
unconstitutional certain sections of the state laws and constitutions re­
quiring segregated schools was not entered until October 12, 1955.



6

On January 23, 1956, all qualified applicants, colored or 
white, who applied for admission to Barwise School, re­
named A. E. Holland School, were admitted (R. 28 & 35) 
and it was opened on a desegregated basis (R. 28, 50, 74 
& 76). No white children registered in the school (R. 65).

On or about March 22, 1956, Petitioners here, as Defend­
ants in such cause, filed a Motion to Dismiss Complaint or 
for Summary Judgment in the alternate with affidavits 
attached (R. 22, 28 & 29) to which on or about the 26th day 
of March, 1956, Complainants responded with a Motion to 
Strike Defendants’ Motion to Dismiss or for Summary 
Judgment (R. 29-31).

At the time of the hearing in the United States District 
Court on April 3, 1956, there were known to be white 
families living in the A. E. Holland District (R. 64 & 75), 
but there were no white children going to A. E. Holland 
(Barwise) School (R. 64-65). It was not known whether 
the white families had any children of school age (R. 50 & 
65), but if they did, such children could have attended 
Holland School (R. 43 & 65). Although there is a liberal 
transfer policy (R. 64 & 71-72), in January, 1956, no white 
children had come to the superintendent and asked to be 
transferred out of the A. E. Holland (Barwise) District 
(R. 75). They might have transferred automatically to 
Lamar School (in the Sunnyside District) earlier in Janu­
ary to permit renovation of the Barwise building, and failed 
thereafter to return to A. E. Holland (R. 27, 43 & 65).5

5It is noted per Appendix page 59 that in September of 1956 when all 
schools were opened on a desegregated basis only one white student re­
quested and was granted transfer from A. E. Holland District while six 
colored students requested and were granted transfers therefrom.



7

The District Court, on April 3, 1956, overruled Com­
plainants’ Motion to Strike Defendants’ Motion to Dismiss 
or for Summary Judgment (R. 32), but, nevertheless, did 
not perfunctorily grant Defendants’ Motion to Dismiss or 
for Summary Judgment. Rather, the Court allowed Com­
plainants to introduce their evidence in support of their 
case (R. 33). After hearing the pleadings, the testimony of 
witnesses, and argument of counsel, the Court requested of 
counsel for the Complainants (Respondents here), “What 
relief do you contend your case seeks in behalf of these 
individual Plaintiffs?” (R. 82). Thence, followed a colloquy 
between the Court and Counsel (R. 83-93) wherein Counsel 
for Complainants insisted on a declaration and restatement 
of the law (R. 83); injunctive relief (R. 83 & 87) in sub­
stantial accordance with their prayer (R. 84 & 87) ; that 
“ this is not a suit for a ruling as to how one Barwise 
School shall be administered; it is a suit for the determi­
nation of how all the schools in this district shall be 
administered”  (R. 85) ; that it was his opinion that as far 
as the law is concerned, they (complainants) would be in 
a much better position if they had been excluded (from 
A. E. Holland School on January 23, 1956). Throughout 
this colloquy the Court repeated his efforts to determine 
what specific relief Complainants sought in behalf of them­
selves, and apparently, in behalf of other colored students 
in the A. E. Holland District (old Barwise School) (R. 83, 
84, 86, 89, 92 & 93).

The District Court concluded (R. 94) that the School 
Boards have the primary responsibility for compliance and



8

that while he felt the Courts “ have a responsibility and if 
it becomes necessary that the Courts intervene with all the 
sanctions and coercions at law, that will have to take 
place,”  but that he thought it would be premature for the 
Court to interfere at this time (R. 94 & 95). He felt that 
progress had already been made (R. 96) and that the 
schools had a declared purpose and policy to carry out 
desegregation in the schools of the district during the next 
school term, and that the specific grievance alleged by the 
Plaintiffs from being denied entrance to Rarwise School 
had now become moot (R. 96). This was followed by Plain­
tiffs’ (Respondents herein) Motion to Amend Judgment 
and enter specific findings of fact and conclusions of law 
on April 6, 1956, and the Court’s Order of April 19, 1956, 
denying such motion.

On appeal, the Court of Appeals for the Fifth Circuit, 
with benefit of the full record of proceedings below (R. 
103), made the following observations and conclusions:

That Defendants (Petitioners herein) administering 
schools enrolling more than 13,000 pupils, had not com­
pletely desegregated such schools at the time of the trial 
in the District Court (R. 109) ; that Plaintiffs may main­
tain a class action (R. 110); that the District Court had 
not abused its discretion in declining to enter a decree 
declaring the rights of the parties or enjoining against 
discrimination (R. 112) ; that the School Board had the 
primary responsibility and the District Court, the discre­
tion, to withhold action when convinced that the Board had



9

made a prompt and reasonable start and was proceeding 
toward good faith compliance (R. 113); that at the time 
of the judgment in the District Court, the case had not 
become moot and that it was error to dismiss the action 
(R. 113); that the voluntary cessation of illegal conduct6 
does not make a case moot unless the Court also finds that 
there is no reasonable probability of return of illegal con­
duct, etc.,7 and that it can not be claimed that appeal has 
become moot through compliance with the proper decree 
(R. 114); although it is true that as far as the law is 
concerned, no question is presented on appeal which has not 
already been settled by the school segregation cases (R. 
114) ; that the facts may be subject to more than one inter­
pretation, and that Appellants (Respondents herein) have 
questioned whether the desegregation existing in most 
schools is in fact voluntary8 (R. 114) ; that at the time of 
trial in the District Court, what the school board had done 
were steps, but no more than steps toward compliance (R. 
114); that this Court in Brown v. Topeka, 31±9 U. S. 29i, 
had directed that during the transition period the District 
Court should retain jurisdiction (R. 114).

eThe Court apparently presumes that Petitioners’ conduct up until 
the time that all its schools became desegregated was illegal. Petitioners 
question this where school boards acknowledged their obligation to de­
segregate and are acting in good faith with all deliberate speed (em­
phasis added).

7The Circuit Court cited United States v. W. T. Grant Co., 3U5 U. S. 
633, and Brownlow v. Schwartz, 261 U. S. 216, in support of its stated 
version of the holdings of such cases. Petitioners note that such version 
is inverted and not only presumes illegality of the administrative actions 
of the school board, but bad faith and the probability of the return to 
such illegal conduct (emphasis added).

Petitioners find no reference to the word “voluntary” in the Brown v. 
Topeka case. Presumably, its use was intended to have some bearing on 
good faith or the cessation of illegal conduct pending appeal. In either 
event, it hardly seems a proper measure for the discretionary responsi­
bilities of public administrative bodies.



10

Thence, the Judgment of the District Court was reversed 
with directions that “ the District Court should retain 
jurisdiction for the entry of all judgments and orders 
necessary to ascertain, or else to require, good faith com­
pliance.”

REASONS FOR GRANTING THE WRIT

The decision below should be reviewed because a divided 
Court of Appeals in the circuit most immediately concerned 
with the problems of segregation in public schools has, 
although upholding the District Court’s lawful discretion 
to determine the need for application of equitable remedies, 
nevertheless, remanded the cause to such District Court 
to be retained on the docket indefinitely. It was not re­
manded in such a manner as to afford Complainants relief 
beyond that which had already been granted them by 
administrative action of the School Board. It was remanded 
in such a manner as to afford a forum for Negro people 
to seek constant judicial review of daily acts of the school 
administrators. The District Judge had found the cause 
moot as to the individual Complainants9 and premature in 
its prayer for judicial intervention in school affairs in 
behalf of other colored students. He now finds this cause

9Although the Court used the term moot, the complaint was obviously 
dismissed because the Court was unable to find any practical equitable 
relief to grant the individual complaints or even the actual class (other 
colored students eligible to attend Barwise). See colloquy, Page 8, supra 
(R. 88-93). (Emphasis added.)



11

on his docket for inquisitorial10 determinations that can 
result only in his judicial supervision of the discretions of 
the administrative agency created by the laws of the State 
of Texas to conduct public schools.

1. The decision of the Court of Appeals erroneously inter­
prets the holding of this Court in the case of Brown, et al. 
v. Board of Education of Topeka, et al., 3J+9 U. S. 291* so 
as to disrupt the orderly administration of the schools by 
the School Boards that are lawfully and necessarily charged 
with the responsibility for their management. By such 
interpretation, the case at bar has ceased to be concerned 
with the particular wrongs involved in the specific facts 
alleged and presented in the District Court,11 and has been 
transformed into an open forum to which may be directed 
all present and future complaints by, presumably, any col­
ored pupil in the Wichita Falls public schools. In this case, 
the Defendants (Petitioners herein) have taken all lawful 
steps available to them12 to effect desegregation of the 
schools operated by them. The District Court, with no 
guidance whatsoever from the Court of Appeals, is now 
obligated to make future determinations and exercise fu­
ture discretions in its retained jurisdiction (R. 114) over

“ This term was referred to by Justice Ben F. Cameron in his Dissent 
in this cause, filed January 25, 1957 (R. 123). The Court’s own words 
would seem to imply that the District Court should order some type 
hearing and investigation for the purpose of ascertaining whether Peti­
tioners have in good faith complied with this Court’s mandate in the 
segregation cases (R. 115). (Emphasis added.)

11 Rule 54(c) F. R. C. P. enlarges the relief which may be granted 
beyond the askings of prayer for relief; but it does not permit relief to 
be granted beyond that justified by the facts pleaded and proved. Thomas 
v. The Pick Hotels Corporation, 10 Cir., 1955, 224 F. 2d 664, 666.

“ Other than to attempt to require mandatory attendance by colored 
children into schools in districts in which they reside despite their written 
requests for transfer. (App. 60.)



12

matters not covered by the pleadings, proof, affidavits, or 
exhibits, and which by their very nature must be based on 
future rights of persons within an alleged and undesig­
nated class seeking relief. Inevitably, this must include 
matters which properly should be considered by the School 
Board in exercising its discretions and performing its ad­
ministrative function in the operation of the public 
schools.18

The net effect of the opinion of the Court of Appeals in 
these respects is clearly in conflict with the holdings of this 
Court in the cases of Railroad Commission v. Pullman Co., 
312 U. S. 196, and more recently, United States v. Western 
Pacific Railroad Co., 25 L. W. 1028, and cases cited there­
in,13 14 as well as with segregation cases decided by the Court 
o f Appeals for the Fourth Circuit.15 The Court of Appeals 
for the Fifth Circuit makes no mention of the Federal 
Court’s obligations not to intervene in administrative af­
fairs unless and until bad faith is shown, or available 
administrative remedies have been exhausted. Rather, bad 
faith appears to be presumed, in school segregation cases, 
for purposes of such intervention. This matter was graph­
ically pointed out by Justice Ben F. Cameron in his Dis­

13Apparently the District Court must hear complaints of whatever 
nature, e.g., note court’s reference to “voluntary” (R. 114) per footnote 
8, supra. It can be reasonably anticipated that Plaintiffs’ attorney will 
attempt to use the pending case as a place in which to lodge complaints 
which properly should be made to the school board. Note questions and 
testimony in connection with teachers’ salaries (R. 59).

14See e.g., General American Tank Car Corp. v. El Dorado Terminal 
Co., 308 U. S. 422, 433, and Far East Conference v. United States, 342 
U. S. 570.

15See e.g., Carson, et al. v. McDowell County (N. C.), 4 Cir., 1955, 
227 F. 2d 789; and Hood, et al. v. Sumter County (S. C.), 4 Cir., 1956, 
232 F. 2d 636, cert. den. 352 U. S. 870; and Carson v. Warlick, 238 F. 
2d 724, cert. den. Mar. 25,1957.



13

sent (R. 117 & 143), who also comments that such con­
flict exists not only in the case at bar but in all other 
recent Fifth Circuit opinions pertaining to segregation 
matters.16
2. The Court of Appeals, as its authority for requiring that 
the District Court retain jurisdiction, cited this Court’s 
opinion in Brown, et al. v. Board of Education of Topeka, 
et al., 31*9 U. S. 291* (quoting the last sentence of Headnote 
10 of the 99 L. Edition 1083 citation thereof). To assume 
that this Court intended thereby to require mandatory 
retained jurisdiction in such a situation as that ordered 
by the Court of Appeals in the case at bar would appear 
to presume some type illegality during the transitional 
period as well as to ignore the good faith of Petitioners 
in commencing and carrying forward the program of 
desegregation and in declaring their intention to desegre­
gate all schools in good faith and with deliberate speed 
(R. 94, 95 & 96).

The Supreme Court, in the Brown case, supra, cited 
Hecht Co. v. Bowles, 321 U. S. 321, as a guide for determi­
nation of traditional equitable principles. In such case, this 
Court considered whether the legislature, by the use of the 
term “other order,” 17 had directed that the District Court

lfiSee e.g., Whitmore, et al. v. Stilwell, et a l (Texarkana), 1955, 227 
F 2d 187; Brown, et al. v. Rippy, et al. (Dallas), 1956, 233 F. 2d 796; 
and Jackson, et al. v. Rawdon, et al. (Mansfield), 1956, 235 F. 2d 93— 
all with certiorari denied.

^Section 205(a) of the Emergency Price Control Act of 1942 provided 
that “ a permanent or temporary injunction, restraining order, or other 
order” be granted. Even the subsequent cases of Porter v. Warner 
Holding Co., 328 U. S. 395 and United States v. Moore, 3A0 U. S. 616, 
in defining additional equitable remedies contemplated by Congress as 
“ other orders” did not appear to contemplate retained or continuing juris- 
ictioyi as one of the remedies. (Emphasis added.)



14

should have issued an order “ retaining jurisdiction.”  But 
this Court appeared to feel that the utilization of retained 
jurisdiction would have been a matter for the discretion 
of the District Court,18 whether authorized by such statute 
or not, and was a coercive remedy in itself. Even assuming 
that this Court in the case of Brown v. Board of Education 
of Topeka, et al., 349 U. S. 294 intended to confer the 
“ retained or continuing jurisdiction” remedy as an addi­
tional discretionary equitable remedy (by citing Hecht Co, 
v. Bowles, 321 TJ. S. 321) on the one hand, it is unlikely 
that it intended to direct its use mandatorially until com­
plete integration is achieved on the other (emphasis added) 
except in the specific circumstances therein set out.

3. These are questions of grave and national concern and 
the jurisdictional and procedural problems raised by this 
petition are not merely interesting legal questions. They 
involve the very essence of the manner and means of deseg­
regation of the public schools pursuant to the principles 
promulgated in Brown v. Board of Education of Topeka, 
34,9 U. S. 294. The opinion of the Court of Appeals for the 
Fifth Circuit has modified or hypothecated accepted and 
established legal and equitable principles in relation to

isit is noted in the case at bar that the District Court was not unmind­
ful of the versatility of the remedies available to him for after referring 
to the Brown v. Topeka cases, the Court stated (R. 94-95), “ The Courts, 
of course, have a responsibility and if it becomes necessary that the 
Courts intervene with all the sanctions and coercions of the law, that 
will have to take place.” Note also the indication of future use in the 
event of specific complaints after a reasonable period. (Emphasis 
added.)



15

mootness19 and class actions20 in such a manner that they are 
apparently inapplicable to school segregation actions. The 
need for maintaining a proper relationship between the 
federal courts and public school authorities has been disre­
garded and discretions of the school board have been made 
servient to equitable coercions. Even the federal district 
courts are apparently no longer the determiners of the 
facts in segregation matters whenever equitable interfer­
ence in school board administration is involved, although 
the law may be settled (R. 114).

CONCLUSION

In efforts to effectuate and/or protect newly declared 
rights of a minority, appellate courts must not, through 
inadvertence, or for expediency, disregard or materially 
alter and extend accepted jurisdictional and equitable prin­
ciples and court procedural practices. In efforts to protect 
the equality of a minority class, we must not create, in the 
Fifth Circuit, a special class not bound by conventional 
principles which require maintenance of a proper and re­
spectful relationship between courts and administrative 
agencies. These matters are of such far-reaching import­
ance that they deserve serious consideration by this court.

For these reasons, it is respectfully submitted that this 
Petition for a Writ of Certiorari should be granted, that 
the opinion of the Court of Appeals for the Fifth Circuit

19See Footnote 7, Page 10, supra.
20Martinez v. Maverick County Water Control Imp. Dist., 219 F. 2d 

666. Rule 23(a) F. R. C. P.



16

should be in these respects reversed and that the opinion 
of the District Court for the Northern District of Texas
should be affirmed.

R. Marvin Pierce,
600 Oil & Gas Building, 
Wichita Falls, Texas,

Counsel for Petitioner.



17

APPENDIX 

[R-106] In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 16,148

Alfred Avery, Jr., A Minor, by his Mother and Next 
Friend, (Mrs.) Alfred Avery, et al,

Appellants,
v.

W ichita Falls Independent School District, et al,
Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

(January 9, 1957.)

Before RIVES, TUTTLE and CAMERON, Circuit. Judges.

RIVES, Circuit Judge: This action was brought by 
twenty negro children of public school age, residents of 
the Wichita Falls Independent School District, as a class 
action, the complaint averring,

“4. Minor plaintiffs bring this action by their next 
friends in their own behalf, and on behalf of [R-107] all 
other Negro minors who are similarly situated because



18

of race or color within the defendant Wichita Falls In­
dependent School District. They allege that they are 
members of a general class of persons who are segre­
gated and discriminated against by order of the de­
fendant board of trustees of the defendant Wichita 
Falls Independent School District because of their race 
and color; that the members of the class are so numer­
ous as to make it impracticable to bring all of them 
before this Court; that they, as members of the class, 
can and will fairly represent all of the members of the 
class; that the character of the right sought to be 
enforced and protected for the class is several and that 
there is a common question of fact and law affecting 
the several rights of all and a common relief is sought, 
and that they bring this action by their next friends 
as a class action pursuant to Rule 23(a) (3), of the 
Federal Rules of Civil Procedure.”

The prayer was for a declaratory judgment as to the 
rights and privileges of the class, and that the defendants 
be enjoined from denying to the minor plaintiffs and the 
members of the class of persons they represent the right 
and privilege of attending the public elementary school 
nearest their respective homes “ under the same conditions 
and circumstances and without any distinctions being made 
as to them on the basis of their race or color.”

The defendants moved to dismiss the complaint and in 
the alternative for a summary judgment, and the court dis­
missed the complaint stating in its order of dismissal that:

“ taking into consideration all of the proof, the declared 
purpose and policy of the defendants to [R-108] carry 
out desegregation in the schools of the District during 
the next school term, the progress already made and 
the definite prospect that such voluntary adjustment 
will be accomplished within a matter of months, it



19

appears to the Court that judicial intervention under 
the equity powers at this time would be premature or 
inadvisable, and the Court is also of the opinion that 
the specific grievance alleged by the plaintiffs, from 
being denied entrance at the Barwise School, has now 
become moot,”

The negro population in the Wichita Falls Independent 
School District lived largely in one single concentrated 
area. At the time the action was filed, some fourteen to 
sixteen negro children along with 680 white children at­
tended the Sheppard Air Force Base Elementary School 
which was operated on a non-segregated basis,3 and nearly 
all other negro pupils in the Wichita District, slightly over 
a thousand, attended the Booker T. Washington School, a 
school operated for negroes only. The answer admitted that,

“ Present statistics indicate that there are approxi­
mately 140 colored students who should be admitted 
to Barwise school if the district comprises a compact 
unit situated within its natural access boundaries.”

In addition there were still other negro children of school 
age, about seventeen in number, residing within the areas 
served by various other schools in the Wichita District, but 
who were “automatically” transferred to the [R-109] 
Booker T. Washington School. Altogether more than 13,000 
pupils were enrolled in the schools of the Wichita Falls 
Independent School District. No negro child was going to 
any school other than the Booker T. Washington School 
and Sheppard Air Force Base School.

ilt had been desegregated at the request of the United States Depart­
ment of Health, Education and Welfare.



20

The plaintiffs lived in the area served by the Barwise 
School. At the opening of the school term in September, 
1955, they applied for admission to that school and it is 
admitted that they were refused on racial grounds. The 
Barwise School was then being attended by white children 
only, but a new school was under construction in Sunny- 
side Heights, a white section of the town, to which it was 
planned to transfer the white pupils. The new school had 
been scheduled for completion by September, 1955, but was 
not actually completed until January, 1956, after the 
present suit had been filed. The white pupils were then 
transferred from Barwise to the new school; Barwise was 
renamed the A. E. Holland School after a former negro 
principal of the Booker T. Washington School, and was 
opened on a nominally desegregated basis though only 
negro pupils, including the minor plaintiffs, registered.

The Superintendent of Schools testified that a start had 
been made toward desegregating the schools because the 
Sheppard Air Force Base School had been desegregated 
and was attended by white children and by some fourteen 
to sixteen negro children, and because the A. E. Holland 
School was legally desegregated though actually attended 
by negro children only, and, further, that it was the inten­
tion of the Board to completely desegregate [R-110] the 
entire district “ at the earliest feasible moment,” that “by 
the beginning in September of this, of 1956, we will have 
a very good beginning; and by midterm of 1957 it’s alto­



21

gether possible that the entire school system could be 
desegregated.”

Clearly plaintiffs seeking judicial relief from racial dis­
crimination applied against the members of a numerous 
class may maintain a class action.2

At the time the district court dismissed the complaint, 
a part of the plaintiffs’ prayer had been met, that is they 
were attending the public school nearest their homes, but 
it is by no means certain that they had the same free 
privilege of transfer to or attendance on any school of their 
choice as was accorded the white children. Admittedly 
desegregation of the schools of the district had not then 
been completed, though the defendants professed such a 
purpose, and the court thought that it would be accom­
plished “within a matter of months.”

Upon this appeal, the appellees have attached as an 
exhibit to their brief an affidavit of the‘Superintendent of 
Schools to the effect that the 1956 summer session of 
the Wichita Falls Senior High School was non-segregated 
and was actually attended by 411 white and 15 negro 
children; that, on September 5, 1956, all pupils were ad- 
[R - l l l ]  mitted to the schools to which they applied for 
admission without any discrimination because of their

2Rule 23, F. R. C. P.; The School Segregation Cases, 347 U. S. 483, 
495; Beal v. Holcombe, 5th Cir., 193 F. 2d 384; Frasier v. Board of 
Trustees of University of North Carolina, 134 F. Supp. 589, 593, affirmed 
per curiam 350 U. S. 979; Holmes v. City of Atlanta, N. D. Ga., 124 F. 
Supp. 290, 293, affirmed 5th Cir., 223 F. 2d 93, modified and remanded 
350 U. S. 879; Kansas City, Mo. v. Williams, 8th Cir., 205 F. 2d 47, 51, 
52; Wilson v. Board of Supervisors, E. D. La., 92 F. S. 986, a ff’d per 
curiam, 340 U. S. 909.



22

color, though no negro children applied for admission to 
any school except Sheppard Air Force Base School, Booker
T. Washington School and A. E. Holland School. The appel­
lees urge upon us that, if not moot at the time the district 
court dismissed the complaint, the cause has now become 
moot and that the appeal should be dismissed or that the 
judgment of the district court should be affirmed.

The appellants, on their part, deny that the public schools 
within the Wichita Falls Independent School District have 
actually and in good faith been desegregated, and insist 
that, it being undisputed that when the complaint was filed 
the defendants had denied to the plaintiffs solely on ac­
count of their race the right to attend the school of their 
choice, a claimed cessation of such unlawful conduct would 
not render the action moot nor justify its dismissal.3

The Constitution as construed in the School Segregation 
Cases, Broivn v. Board of Education, 347 U. S. 483, 349
U. S. 294, and Bolling v. Sharpe, 347 U. S. 497, forbids 
any state action requiring segregation of children in public 
schools solely on account of race; it does not, however, 
require actual integration of the races. As was well said 
in Briggs v. Elliott, E. D. So. Carolina, 132 F. Supp. 776, 
777:

“ * * * it is important that we point out exactly what 
the Supreme Court has decided and what it [R-112]

3For this position, the appellants cite and rely on the following cases: 
United States v. Freight Ass’n., 166 U. S. 290; United States v. U. S. 
Steel Corp., 251 U. S. 417; Trade Comm’n v. Goodyear Co., 304 U. S. 
257; Walling v. Helmerich & Payne, 323 U. S. 37; United States v. 
Oregon Med. Soc., 343 U. S. 326; United States v. W. T. Grant Co., 345 
U. S. 629.



23

has not decided in this case. It has not decided that the 
federal courts are to take over or regulate the public 
schools of the states. It has not decided that the states 
must mix persons of different races in the schools or 
must require them to attend schools or must deprive 
them of the right of choosing the schools they attend. 
What it has decided, and all that it has decided, is that 
a state may not deny to any person on account of race 
the right to attend any school that it maintains. This, 
under the decision of the Supreme Court, the state may 
not do directly or indirectly; but if the schools which 
it maintains are open to children of all races, no viola­
tion of the Constitution is involved even though the 
children of different races voluntarily attend different 
schools, as they attend different churches. Nothing 
in the Constitution or in the decision of the Supreme 
Court takes away from the people freedom to choose 
the schools they attend. The Constitution, in other 
words, does not require integration. It merely forbids 
discrimination. It does not forbid such segregation as 
occurs as the result of voluntary action. It merely for­
bids the use of governmental power to enforce segrega­
tion. The Fourteenth Amendment is a limitation upon 
the exercise of power by the state or state agencies, 
not a limitation upon the freedom of individuals.”

Keeping that principle in mind, we cannot say that the 
district court abused its discretion in declining to enter 
a decree declaring the rights of the parties or enjoining 
against discrimination. The primary responsibility rested 
upon the Board, and the district court had the dis- [R-113] 
cretion to withhold action when convinced that the Board 
had made “a prompt and reasonable start” and was pro­
ceeding to a “good faith compliance at the earliest prac­
ticable date.” 4 Such start and continuation were steps, but

4Brown v. Board of Education, 349 U. S. 294, 300.



24

no more than steps, toward compliance, and, until that goal 
was reached, the plaintiffs and the class represented by 
them would be denied their constitutional right to be free 
from state imposed discrimination because of their race or 
color. In the Brown Case, supra, it appeared that,

“ The presentations * demonstrated that substantial 
steps to eliminate racial discrimination in public 
schools have already been taken, not only in some of 
the communities in which these cases arose, but in 
some of the states appearing as amici curiae, and in 
other states as well. Substantial progress has been 
made in the District of Columbia and in the communi­
ties in Kansas and Delaware involved in this litiga­
tion.”  349 U. S. at p. 299.

The Court nevertheless directed that, “ During this period 
of transition, the courts will retain jurisdiction of these 
cases.” 349 U. S. at p. 301. See also, Brown v. Rippy, 5th 
Cir., 233 F. 2d 796.

We are of the clear opinion that, at the time of the ren­
dition of judgment by the district court, the case had not 
become moot and that it was error to dismiss the action.

The cases relied on by appellants establish the propo­
sition that voluntary cessation of illegal conduct does 
[R-114] not make the case moot. If, however, in addition, 
the court finds that there is no reasonable probability of a 
return to the illegal conduct, and that no disputed ques­
tion of law or fact remains to be determined, that no 
controversy remains to be settled, then it should not ad-



25

judieate a cause which no longer exists. United States v. 
W. T. Grant Co., supra, 345 U. S. at 633; Brotvnlow v. 
Schwartz, 261 U. S. 216. It cannot be claimed that the 
appeal has become moot through compliance with a proper 
decree. Instead, the claim is that the entire case has be­
come moot through cessation of the unlawful conduct. Ordi­
narily, such a claim should be considered by the trial 
court in the first instance. It is said, however, that in 
so far as the law is concerned no question is now pre­
sented which has not already been settled by the School 
Segregation Cases, supra, and that is true. The facts, on 
the other hand, may be subject to more than one inter­
pretation. The appellants question whether the actual 
segregation existing in most of the schools is, in fact, 
voluntary. Events which have occurred since the judg­
ment of dismissal, or which may occur in the future may 
constitute “good faith compliance,”  but, in the present cir­
cumstances, that question should not be determined by 
this Court on the basis of ex parte affidavits; such an 
issue depending largely on the good faith of the defend­
ants can be better decided by the district court after a 
full and fair hearing. “ Because of their proximity to local 
conditions and the possible need for further hearings, the 
courts which originally heard these cases can best perform 
this judicial appraisal.”  Brown v. Board of Education, 
supra at p. 299. The district court should retain jurisdic­
tion for the entry of all judgments and orders [R-115]



26

necessary to ascertain, or else to require, “good faith 
compliance.”

The judgment is, therefore, reversed and the cause
remanded.

REVERSED AND REMANDED.

JUDGE CAMERON DISSENTS. 

A  True Copy:
Teste:

JOHN A. FEEHAN, JR., Clerk

By / s /  Clara R. James
Clerk of the United States Court of 

Appeals for the Fifth Circuit.



27

APPENDIX 

[117] In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 16,148

Alfred Avery, Jr., A Minor, by his Mother and Next 
Friend, (Mrs.) Alfred Avery, et al,

Appellants,
v.

W ichita Falls Independent School District, et al,
Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

(January 25, 1957.)

Before RIVES, TUTTLE and CAMERON, Circuit Judges. 

CAMERON, Circuit Judge, Dissenting:

I concur in much which is said in the majority opinion 
and think its reasoning ought to lead to an affirmance of 
the act of the Court below in dismissing the complaint 
following its decision on the merits by summary judg-



28

[R-118] ment. But I cannot go along with the majority’s 
action in remanding the case with instructions that it re­
main on the docket. The inevitable result of such a course 
is to thrust back into the field of controversy a problem 
which can, in my opinion, move towards real solution only 
in an atmosphere of repose and harmony. I am constrained 
to set down some of the reasons for my dissent because 
they are based upon fundamental disagreement with the 
thinking of my colleagues as to the mission and true com­
petence, in segregation cases, of federal courts generally 
and of this Court in particular.

Historical principles of equity combine with recent 
Supreme Court decisions to establish these basic tenets:
(a) that school boards and local officials, as administrative 
agencies, should be given full primary responsibility and 
authority with the unfettered and unembarrassed oppor­
tunity to work out problems in the light of local conditions;
(b) that federal district courts should intervene only after 
the exhaustion of the administrative remedy; and should 
grant injunctions only in those cases where it is demon­
strated that the general good of the public, including the 
litigants, will be served; and (c) that this Court should set 
aside judgment based upon the superior knowledge by dis­
trict judges of local conditions only in rare instances where 
it is clear that they have misconceived or misapplied the 
law or have been guilty of plain abuse of discretion. This 
decision, and others like it recently rendered by this Court 
do not, in my judgment apply these fundamental and defi­
nitely established principles.



29

[R-119] I.

(a) It cannot, in my judgment, be doubted that the main 
hope of solving the difficult problems before us rests with 
local school boards. The Supreme Court recognized this1 
and gave expression to this postulate in the second Brown 
decision: “ Full implementation of these constitutional prin­
ciples may require solution of varied local school problems. 
School authorities have the primary responsibility for 
elucidating, assessing and solving these problems * * 
[Emphasis added.]

It is our duty, under authorities which will be discussed, 
to assume that school boards are constituted of men of 
wisdom, judgment and dedication; and to view their actions 
in a spirit of trust and tolerance, not tinctured with sus­
picion. Dean Griswold, of the Harvard Law School has 
said:2 “ The courts do not have the sole responsibility for 
the proper conduct of our government.”  And Mr. Justice 
Stone expressed the same idea:3 “ Courts are not the only 
agency of government that must be assumed to have capac­
ity to govern.” So much of the business of the country is 
conducted by administrative bodies that courts commit, in 
my opinion, egregious error when they do not credit their 
actions as the product of an equal co-ordinate branch of 
government equally devoted to the public service. The Su­
preme Court has said of the rela- [R-120] tionship between

1The Segregation Cases, as morally referred to by the Supreme Court, 
are Brown, et al. v. Board of Education of Topeka, et al., May 17, 1954, 
347 U. S. 483 (known as first decision); and same case, May 31, 1955, 
349 U. S. 294 (known as second decision).

2The Fifth Amendment Today, p. 40.
3297 U. S., p. 87.



30

the courts and administrative bodies4 that “neither can 
rightly be regarded by the other as an alien intruder, to be 
tolerated if must be, but never to be encouraged or aided 
by the other in the attainment of the common aim.”

(b) The findings of administrative bodies have uniform­
ly been held by the courts in great respect and considered 
presumptively correct.5 This Court has heretofore been dis­
posed to adhere strictly to the proposition that school and 
similar boards should be invested with full and unshackled 
power to act and that courts should not intervene until 
exhaustion of their administrative functions.6

(c) In dealing with administrative action by State Offi­
cers it is helpful to keep in view constantly the much-quoted 
language of the Supreme Court in Railroad Commission 
v. Pullman Co., 1941, 312 U. S. 496, 500-501:

“ The history of equity jurisdiction is the history 
of regard for public consequence in employing the 
extraordinary remedy of injunction. * * *. Few public 
interests have a higher claim upon the discretion of 
a federal chancellor than the avoidance of needless 
friction with state policies. * * *.These cases reflect 
a doctrine of ab- [R-121] stention appropriate to our 
federal system whereby the federal courts, ‘exercising

4Hecht Co. v. Bowles, irifra, p. 330.
5Consider, e.g., Aircraft etc. Corp. v. Hirsch, 1947, 331 U. S. 752, 767; 

Myers v. Bethlehem Ship Building Corp., 1938, 303 U. S. 41, 50-51, and
United States v. Western Pacific R. R. Co., Dec., 1956, .....U. S ........, 25
L. W. 4028, 4029.

eCook v. Davis, 5 Cir., 1949, 178 P. 2d 595, cert. den. 340 U. S. 811; 
Bates v. Batte, 1951, 187 F. 2d 142; Peay v. Cox, 5 Cir., 1951, 190 F. 2d 
123, cert. den. 342 U. S. 896.

This phase of the question is discussed more fully infra, part V (c) 
and (d).



31

a wise discretion’ restrain their authority because of 
‘scrupulous regard for the rightful independence of 
the state governments’ and for the smooth working 
of the federal judiciary.” [Emphasis added.]

II.

It is important, also, to refresh our minds as to the duty 
here imposed upon United States District Courts and the 
character and ingredients of their discretion.

(a) There can be no doubt that the Supreme Court 
recognized that the responsibility for legal action in these 
cases should be vested in the judges of the District Courts 
who had intimate knowledge of local conditions. “ * * * be­
cause of the great variety of local conditions, the for­
mulation of degrees in these cases presents problems of 
considerable complexity.” 7 In the second Brown opinion the 
Court said: “ Because of their proximity to local conditions 
and the possible need for further hearings, the Courts 
which originally heard these cases can best perform this 
judicial appraisal * * [Emphasis supplied.] And in the 
series of Segregation Cases pending at the time of the 
second Brown decision8 orders were entered sending the 
cases back to District Courts for consideration in the light 
of “ conditions that now prevail.”

(b) In acknowledging the fact of District Court dis­
cretion and spelling out the factors which govern that 
[R-122] discretion, under our constitutional system, the 
Supreme Court stressed not only the local character of the

7First Brown opinion, p. 495.
sCf. Board of Supervisors v. Trueaud and allied cases, 347 U. S. 971.



32

problem, but the inherently public nature of it. In the first 
Brown decision (p. 347), it noted that, at the time the 
Fourteenth Amendment was adopted, “ In the South, the 
movement toward free common schools, supported by gen­
eral taxation, had not yet taken hold. * * * Education of 
Negroes was almost non-existent, and practically all of the 
race were illiterate.”  It then proceeded to discuss some of 
the cases in which efforts had been made to eliminate the 
disparity existing between schools in the South and those in 
the North. Fundamental differences were frankly recog­
nized while adverting, at the same time, to the fact that the 
South had not been alone in practicing the discrimination 
at which the current decisions were aimed. The important 
sentences9 in which it pointed out some of the distinguish­
ing characteristics of the discretion admittedly residing in 
District Courts read thus:

“ In fashioning and effectuating the decrees, the Courts 
will be guided by equitable principles. Traditionally, equity 
has been characterized by a practical flexibility in shaping 
its remedies and by a facility for adjusting and reconcil­
ing public and private needs.'”  The most important aspect 
of the principle enunciated in this quotation, and the one 
which my colleagues seem to leave out of consideration, is 
the case10 cited as authority for it and as setting up the 
standard by which District Courts should be governed in 
making this adjustment and reconciliation between “public 
and private needs.”

9Second Brown decision, 349 U. S. 300.
10Hecht Co. v. Bowles, 1944, 321 U. S. 321, 329-330.



33

[R-123] (c) Since Hecht is the decision cited by the
Supreme Court as illustrating the principles by which Dis­
trict Courts are governed in the exercise of discretion, it 
ought to be examined in some detail. It began as an injunc­
tion proceeding under the Emergency Price Control Act. 
Government operatives had spot-checked seven out of more 
than one hundred departments in the large store of the 
Hecht Company, and had found in excess of 4,500 violations 
of price regulations.11 Nevertheless, the District Court12 
thought that Hecht has manifested good faith and was not 
likely to commit, in the future, anything more than inad- 
verted violations, and it felt that the public interests 
would be served better by refusing an injunction than by 
granting one: “ If in such circumstances an injunction is 
asked the Court is not deprived of its inherent powers, by 
calling it a statutory injunction. The Court in such case 
retains its implied powers, exercised in a sound discretion. 
* * * As generally understood judicial discretion includes 
the propriety of granting appropriate relief. All rules in 
equity must necessarily be sufficiently elastic to do justice 
in the case under consideration. Courts of equity are not 
inquisitorial but remedial.

“ * * * each case must be determined upon its facts and 
on equitable principles. In a case such as this an injunction 
should not issue unless thereby better compliance with law 
may be enforced. Such consideration is addressed to the 
sound discretion of the Court. * * * It is elementary that

11 See 137 F 2d 689.
1249 F. Supp. 528, 532.



34

the purpose of an injunction is to deter rather than to 
punish. * * * The attitude of the defendant company is 
not antagonistic but cooperative, and in my judgment an 
injunction would not be in the public interest. * * * I con- 
[R-124] elude that a just result requires a dismissal of 
plaintiff’s complaint * * [Emphasis supplied.] The 
Court of Appeals for the District of Columbia13 felt that 
the District Court had misconceived the purposes of the 
statute and had given too wide a sweep to traditional equity 
powers, and it set aside the order of the District Court 
which had refused the injunction. The Supreme Court 
granted certiorari14 and reversed,15 approving the action of 
the District Court in basing its denial of injunction on the 
balancing of public interest versus private needs. Here is 
its language:

“We are dealing here with the requirements of 
equity practice with a background of several hun­
dred years of history. * * *. The historic injunctive 
process was designed to deter, not to punish. The 
essence of equity jurisdiction has been the power of 
the chancellor to do equity and to mold each decree 
to the necessities of the particular case. Flexibility 
rather than rigidity has distinguished it. The qualities 
of mercy and practicality have made equity the instru­
ment for nice adjustment and reconciliation between 
the public interest and private needs as well as be­
tween competing private claims. (P. 329.)

13Brown v. Hecht Co., 1943, 137 F. 2d 689.
“ 320 U. S. 727.
“ Hecht Co. v. Bowles, 1944, 321 U. S. 321.



35

“ * * * We repeat what we stated in United States 
y. Morgan,16 supra, respecting judicial review of ad­
ministrative action:

“ ‘* * * court and agency are not to be regarded 
as wholly independent and unrelated instrumentalities 
of justice, each acting in the perform- [R-125] ance of 
its prescribed statutory duty without regard to the 
appropriate function of the other in securing the 
plainly indicated objects of the statute. Court and 
agency are the means adopted to attain the prescribed 
end, and so far as their duties are defined by the 
words of the statute, those words should be construed 
so as to attain that end through coordinated action. 
Neither body should repeat in this day the mistakes 
made by the courts of law when equity was struggling 
for recognition as an ameliorating system of justice; 
neither can rightly he regarded by the other as an alien 
intruder, to be tolerated if must be, but never to be 
encouraged or aided by the other in the attainment of 
the common aim.’ The administrator does not carry 
the sole burden of the war against inflation. The courts 
also have been entrusted with a share of that responsi­
bility. * * * For the standards of the public interests, 
not the requirements of private litigation, measure 
the propriety and need for injunctive relief in these 
cases”  [pp. 330-331; emphasis added.]17

(d) Here, then, is the blueprint suggested by the Supreme 
Court for the guidance of District Courts in passing upon 
applications for injunctive relief and in deciding whether 
the best interest of the public and the private litigant will

«307 U. S. 183, 191.
if The same idea was expressed in Virginia Ey. Co. v. System Federa­

tion etc., 1937, 300 U. S. 515, 552: “ More is involved that the settlement 
of a private controversy without appreciable consequences to the public. 
The peaceable settlement of labor controversies, * * * is a matter of 
public concern. * * * Courts of equity may, and frequently do, go much 
farther both to give and withhold relief in furtherance of the public 
interest than they are accustomed to go when only private interests are 
involved. [Emphasis added.]



36

be served by prolongation of litigation. There can be no 
doubt that the Supreme Court rec- [R-126] ognized the 
paramount public nature of this problem and the duty of 
the District Courts to decide questions of policy as well as 
questions of law.

Ordinarily discretion is lodged in a trial judge because he 
is present and obtains the “ feel” of the trial. This includes 
the attitudes of the parties and their counsel as revealed in 
the give and take of the courtroom encounter, the advan­
tage of observing the witnesses as they testify and of 
appraising from their looks and demeanor the weight and 
probative value of the words they speak.

But the discretion committed to the trial judge in segre­
gation cases has the added ingredient arising from his 
proximity to and knowledge of local conditions. His judg­
ment is based upon what he knows from his experience as 
well as what he hears from the witness stand. The broad 
and comprehensive terms used in the discussed cases are 
bound to embrace the manifold intangibles and imponder­
ables which necessarily play such an important part in 
assessing what is the public good and in balancing public 
interest against private needs.

III.

(a) This Court has always aligned itself with the uni­
versal rule that findings of the trial court must stand 
unless clearly erroneous, and that exercised discretion 
should not be disturbed unless plainly illegal or unsupport­



87

ed by the evidence.18 This same disposition to lean [R-127] 
heavily upon the district court was manifested in the first 
decision of this Court applying the Segregation Cases: 
“ A large measure of discretion, coupled with recognition of 
judicial knowledge, must be vested in the district judge.” 19 
But in more recent cases, this Court has apparently been 
unwilling to accept the findings and approve the discretion 
of the district courts in such cases.20

(b) This apparent change of attitude reflects, in my 
opinion, a definite departure from the established rules of 
law recognized as controlling by the Supreme Court in the 
Segregation Cases as amplified by its decision in the Hecht 
case. I think it is a mistake for us to attempt to sit in too 
close chaperonage upon what the district judges do. Unless 
we are to be given some peculiar powers of divination, we 
cannot possibly approach the insight which is theirs by 
reason of their intimate contact with the conditions con­
fronting them.21

18E.g\ Mutual Life v. Ellison, 1955, 223 F. 2d 686; Indiana Mutual 
Ins. Co. v. Jones, 1956, 230 F. 2d 500; United States v. Stewart, 1953, 
201 F. 2d 135; Bruce v. McClure, 1955, 220 F. 2d 330; and United States 
v. Smith, 1955, 220 F. 2d 548. And see United States v. W. T. Grant Co., 
1953, 345 U. S. 629, 633, where the Supreme Court said a chancellor’s 
“ discretion is necessarily broad and a strong showing of abuse must be 
made to reverse it.”

19Concurring opinion of Judge Rives in Board of Superintendents v. 
Trueaud, 5 Cir., 1955, 225 F. 2d 434, 446-447, adopted by the Court en 
banc in the same case, 1956, 228 F. 2d 895, 896.

20E.g. Whitmore, et al. v. Stilwell, et al. (Texarkana), 1955, 227 F. 2d 
187; Brown, et al. v. Rippy, et al. (Dallas), 1956, 233 F. 2d 796; and 
Jackson, et al. v. Rawdon, et al. (Mansfield), 1956, 235 F. 2d 93.

®For example, the action of the District Judge in the Mansfield 
School case was based, in my opinion, on a clear comprehension of the 
many-sided problem with which he was dealing and he exercised wisdom 
and discretion in fashioning the decree to accomplish what was best for 
the public as well as the litigants. Three Negro boys had applied for ad- 

(Footnote Continued on Next Page)



38

[R-128] (c) The Court below in this case, alive to local
conditions, acquainted with local needs and with the human 
beings bearing primary responsibility with respect to them; 
and observing the demeanor, as witnesses, of the public 
servants entrusted with the operation of a public school 
system for the good of all of the people, felt that more 
would be accomplished if the cudgels of conflict should be 
dropped, and men of good will should be encouraged to 
discuss and compose their differences in an atmosphere

(Footnote Continued from Preceding Page) 
mission to the Mansfield High School a month after classes had been 
begun. The District Judge, acting in obedience to the teachings of the 
Supreme Court in the Hecht case, denied the injunction because he felt 
that more good could be acomplished by so doing than by granting in­
junction. Here, in part, are the reasons assigned by him for denying the 
injunction:

“ In finding the equities between the parties I see on the one hand, 
the situation of this rural school board composed primarily of farmers, 
agents of the State of Texas * * * opening their meeting with prayer 
for solution; studying articles in magazines and papers; holding numer­
ous meetings, passing resolutions and appointing a committee to work 
on a plan for integration—making the start towards obeying the law 
which their abilities dictate. Further, the trustees now assure the Court 
that they are continuing their efforts and will work out desegregation. 
Their committee conferred with these plaintiffs in the presence of plain­
tiff ’s parents, and accepted and fulfilled the requests made by plaintiffs 
with their attorney in August, 1955 for certain administrative steps as 
a solution for this period of transition, * * *. After the accomplishment 
of these administrative steps taken at the request of plaintiffs and after 
school had been in session more than a month, this action was filed.

“ After the accomplishment of the above mentioned administrative 
processes at plaintiffs’ request, and after school had begun, it appears 
to the Court that the issuance of an injunction to effect entrance into 
Mansfield High School at this time would be unjust to the school trustees 
and the students alike. * * *,

“ It is impossible, however, simply to shut your eyes to the instant need 
for care and justice in effectuating integration. The directions of the 
United States Supreme Court allowed time for achieving this end. While 
this does not mean that a long or unreasonable time shall expire before 
a plan is developed and put into use, it does not necessitate the heedless 
and hasty use of injunction which once issued must be enforced by the 
officers of this Court regardless of consequences to the students, the 
school authorities and the public. This school board has shown that it 
is making a good faith effort towards integration, and should have a 
reasonable length of time to solve its problems and . end segregation in 
the Mansfield Independent School District.” [Emphasis added.]



39

permeated as little as might be by animosities. He [R-129] 
concluded apparently that an ounce of cultivated mag­
nanimity and forebearance might be worth more than a 
pound of coercion.

IV.

Projected against this background of legal principles, 
this case seems to me quite simple and easy of solution. I 
think the Court below handled it well, decided it correctly, 
and that we should uphold its wise action in all respects.

(a) A group of Negro children desired to enter Barwise 
School and, at the beginning of the school year, presumably 
went there to matriculate. They were told that they would 
be permitted to enter this school as soon as the pupils then 
attending it could be moved to Sunnyside Heights School, 
then in course of construction. It was estimated that this 
shift could take place in about six weeks.22 Announcement 
of the completion was made on Christmas Day and all of 
plaintiffs were admitted to the Barwise School (its name 
having been changed to Holland) upon convening of the 
second term in January.

(b) Meantime, about two weeks before the announce­
ment was made, this civil action was begun. It was pre­
dicated solely upon the fact alleged in the complaint that 
Barwise was the school nearest plaintiffs’ homes. Alfred 
Avery, the only plaintiff concerning whom proof was made,

22Shortage of steel resulting from the steel strike, together with heavy- 
rains and two floods, brought about a delay in the completion of the new 
school.



40

lived about six blocks from the school. Plain- [R-130] tiffs 
and their attorney knew when the action was begun that 
all of the relief sought would be given administratively 
without litigation long before the case could possibly be 
brought on for hearing.

This action was begun solely because plaintiffs’ attorney 
did not trust the school board, and did not think it was pro­
ceeding in good faith. Appellants’ brief and oral argument 
abundantly demonstrate this, and the frequent colloquies 
between their attorney and the Court bring it into bold 
relief.23

Barwise was a small school with ten classrooms and a 
capacity of less than three hundred pupils. There were one 
hundred forty Negroes whose residences would entitle them 
to claim admittance to Barwise. All of them could not be 
accommodated and the school board could not practice dis­
crimination in favor of plaintiffs and against the residue, 
or against the pupils already enrolled therein.

(c) The Trial Judge considered the affidavits and had 
the benefit of the testimony of one of plaintiffs’ parents 
and of members of the school board. He found that it was 
not unreasonable to defer the applications of plaintiffs for 
a few weeks until the physical plants of the school could 
be altered to meet the new demands; and felt, too, that the 
school board had wrestled with its vexing problems in a

23At one point the Court said to plaintiffs’ attorney: “ You have mis­
givings, I am sure, from what has been said * * * *[but] personally I have 
strong faith in the good intentions and good faith of the school board.
*  %  ❖  »



41

spirit of fairness and good faith and that an injunction or 
the continued pendency of the suit [R-131] would serve no 
good purpose, but would do harm. The following quotation 
from the Judge’s opinion sets forth what was behind his 
judgment:

“ The Supreme Court * * * has recognized very 
clearly the practical reality that the primary responsi­
bility in this progress of desegregation rests on the 
local school boards, those nearest to its problems in its 
local aspects, and that’s where it should be properly, 
so long as local officials demonstrate the attitude to 
solve the transition * * * with reasonable dispatch. 
It is of supreme importance that the work should pro­
ceed peaceably in this undertaking * * *.

“ But the impression I have from what has been 
presented during the hearing today is that the Board 
and officials of this School District seem to be men of 
good will and have set their policy toward the inte­
gration of this new educational policy and with that 
attitude in mind I think it would be premature for 
courts to interfere. Impatience and precipitancy of 
spirit are not, I am convinced, nearly so reliable a 
course as that of depending upon these authorities, 
once you have substantial evidence that they are acting 
in good faith and with a real and honest purpose to go 
ahead and without dragging the plans by any unneces­
sary or vexatious breaks along the way.

“ I have the faith in this School Board that they 
will measure up to the responsibilities and the plans 
that have been declared in their behalf here today 
through their Superintendent and Secretary of the 
Board and the recorded minutes and by the words of 
their counsel. * * * I believe it would be a disservice 
to step in at this time and [R-132] undertake to com­
pel and direct the business of these men under the 
power of the Court.”



42

The judge who spoke these words had seen the witnesses 
as they testified, had acquired the “ feel” of the case as it 
unfolded before him; and he demonstrated in his grasp of 
the problem a wisdom, a patience and a tolerance which 
invest his words with commanding convictive force. More 
than that, he was born and had spent his days in close 
proximity to the locale of this controversy and had an inti­
mate acquaintance with the conditions with which he was 
dealing. We, who assume to pass upon the wisdom of his 
discretion, have lived our lives hundreds of miles away 
from that locale. The trial judge, following the holdings of 
Brown and Hecht, felt that more would be accomplished by 
denying the injunction and removing the case as a constant 
irritant than by granting the injunction or retaining the 
case. When we substitute our judgment for his, a lack of 
perspective is demonstrated along with a definite disson­
ance with the teachings of the Supreme Court.

y .

It remains, therefore, but to examine the majority opin­
ion to test the reasons upon which the reversal is predicated.

(a) While conceding that the Court below did not err 
in refusing declaratory and injunctive relief, the opinion 
intimates that the school board was guilty of some illegal 
action.24 In fact, what is said concerning mootness [R-133] 
is predicted necessarily on the assumption of illegal action 
and on doubt concerning the good faith of the school

24Such phrases occur in the opinion as “voluntary cessation of illegal 
conduct,” and “ no reasonable probability of a return to the illegal con­
duct.”



43

authorities. The opinion does not point to any facts which 
would furnish the basis for a charge of illegal conduct. 
Every plaintiff who applied for admission to the Barwise 
School had gained that admission by administrative action 
before the trial and there never had been any doubt about 
the purpose of the school board to comply with the re­
quested admission as soon as physical properties could be 
changed to meet the new conditions. The timing and other 
details of the transfers were matters committed to admin­
istrative action and the Court was without jurisdiction to 
intervene in any event unless and until bad faith was 
shown. United States v. Western Pac. R. Co., supra.

(b) The opinion takes note of the suspicions voiced by 
plaintiffs’ counsel that the school board did not intend to 
do in the future what they solemnly swore they were going 
to do. The opinion states, “but it is by no means certain 
that they [i.e. the Negroes] had the same free privilege of 
transfer to or attendance on any school of their choice as 
were accorded the white children.” Such a reference tends 
to give substance to the suspicions voiced by plaintiffs 
which, in my opinion, were without the slightest foundation 
in the evidence. The fact is that the school board had gone 
“ the second mile”  both in action and in purpose in the dis­
charge of its duties and the Trial Judge so thought.

(c) This disposition of the majority to characterize the 
actions of the school board as illegal because the board 
[R-134] did not practice precipitate action to grant the 
plaintiffs the piecemeal relief they sought the minute it



44

was demanded, based upon its concept that it must look to 
the public interest as well as plaintiffs’ and must deal with 
the problem in its larger aspect; and to sanction court 
intervention before the administrative function had been 
given opportunity to express itself, calls for further dis­
cussion of this feature of the problem.

(d) There seems little doubt that the scheme approved 
by the Supreme Court contemplates that school boards shall 
have exclusive jurisdiction in making the adjustments 
brought about by the Segregation Decisions, i.e. in “eluci­
dating, assessing and solving these problems” ; and that 
courts have jurisdiction to intervene only after the admin­
istrative process has been exhausted (We leave out of view 
for the moment the question of bad faith, which certainly 
is not present here). The Supreme Court has, at the current 
term, reiterated the rule:25 “ The doctrine of primary juris­
diction, like the rule requiring exhaustion of administrative 
remedies, is concerned with promoting proper relationships 
between the courts and administrative agencies charged 
with particular regulatory duties. ‘Exhaustion’ applies 
where a claim is cognizable in the first instance by an 
administrative agency alone; judicial interference is with­
held until the administrative process has run its course”  
(Emphasis added.)

This Court has declared unequivocally that this principle 
applies to school boards dealing with charges of discrimi­

25United States v. The Western Pacific R. R. Co., et al., supra.



45

nation based upon assertion of Fourteenth Amend- [R-135] 
ment rights, Bates, v. Batte, supra, 1951, 187 F. 2d 142, 
et seq:

“ The defendants moved to dismiss * * * because 
plaintiffs had not first exhausted their administra­
tive remedies provided by Mississippi administrative 
statutes governing education and controversies arising 
in and about schools. This motion was denied * * *. 
After the case had been tried, but before it was decided 
below this Court, in Cook v. Davis, 5 Cir., 178 F, 2d 595, 
a Negro school teacher salary case * * * held, in a 
thoroughly considered and carefully reasoned opinion, 
that until plaintiffs had exhausted their administra­
tive remedies provided by Georgia laws governing edu­
cation and controversies arising under school laws, 
they could not maintain their suit.

“ The District Judge, of the opinion * * * that the 
present suit could not be maintained until the avail­
able remedies provided by state law had not [sic] 
been first exhausted, said so in an opinion * * * [and] 
a judgment dismissing the complaint without preju­
dice was entered * * *. (p. 143.)

“ * * * it is sufficient for us to say that we regard 
the case of Cook v. Davis as thoroughly considered 
and well decided and that the statutes of the two 
states are sufficiently alike to make the decision in 
Cook’s case dispositive of the appeal. The judgment 
of dismissal for failure to exhaust administrative 
remedies was right, it is affirmed.”

The Cook case had held (p. 600) : “ The broad principle 
that administrative remedies ought to be exhausted be- 
[R-136] fore applying to a court for extraordinary relief, 
and especially where the federal power impinges on state 
activities under our federal system, applies to this case



46

‘No one is entitled to judicial relief for a supposed or 
threatened injury until the prescribed administrative rem­
edy has been exhausted.’ Myers v. Bethlehem Ship Building 
Corp., 303 U. S. 41 at pp. 50, 58 * * * citing many cases 
relating to relief by injunction. We held in Bradley Lumber 
Co. v. National Labor Relations Board, 5 Cir., 84 F. 2d 
97, that the same principle applies to relief by declaratory 
decree.” 26

(e) In my opinion, what the majority orders to be done 
here, as well as what this Court ordered in the cases listed 
in fn. 20, supra, offends directly against these recognized 
principles. By putting this Court in conflict with the 
Supreme Court in the respect discussed— in which attitude, 
in my opinion, we have exhibited less sympathetic under­
standing of the complex problems facing school boards in 
the South than that shown by the Supreme Court—we 
invite the District Judges, under oath “ to support and 
defend the Constitution,” to base their decisions on their 
own conscientious convictions of what is constitutional and 
right under the facts of the cases coming before them.

VI.

(a) The action of the majority in sending this civil 
action back with instructions to keep it open on the [R-137] 
docket is, in my opinion, without warrant in law or in fact. 
The idea seems to be that it may serve as a rallying point

mother Courts of Appeal are currently applying this principle to segre­
gation cases coming before them. See, e.g., Carson, et al. v. McDowell 
County (N. C.), 4 Cir., 1955, 227 F. 2d 789; and Hood, et al. v. Sumter 
County (S. C.), 4 Cir., 1956, 232 F. 2d 636, cert. den. 352 U. S. 870.



47

for plaintiffs or others if their distrust of the school board 
should prove well founded— that other situations in other 
schools may be dealt with in this suit. The obvious answer 
to this attitude is that relief which may be granted in this 
suit can never rise above the facts pleaded as the basis for 
that relief.27

The sole factual predicate for action here was the asser­
tion that plaintiffs were entitled to attend Barwise School 
because it was nearest their homes. That right was vouch­
safed them long before the case was tried, and there is 
nothing to be litigated under the facts alleged. No life can 
be breathed into the case by seeking to tack onto it claims 
for different relief based upon different facts which may 
arise in the future.

Much was said in the argument about the right to trans­
fer from one school to the other. Of course, the right to 
transfer is single, belonging to each individual. A court 
would not have jurisdiction to intervene until such indi­
vidual had exhausted administrative remedies. This rule is 
made clear in the decision of the Court of Appeals for the 
Fourth Circuit in Carson v. Warlick, Nov., 1956, 25 Law 
Week 2252. “ There is no question as to the right of these 
school children to be admitted to the schools of [R-138] 
North Carolina without discrimination on the grounds of

27Cf. Indemnity Ins. Co. v. Moses, 5 Cir., 1929, 36 F. 2d 219; 6 Moore, 
Par. 54.62, p. 1208, and 2 Moore, Par. 3.13, p. 1653 and 1954 Cumulative 
Supplement, p. 107; and cf. Beach v. Kock, 8 Cir., 1944, 140 F. 2d 852, 
861-862.

Buie 54(c) enlarges the relief which may be granted beyond the ask­
ings of prayer for relief; but it does not permit relief to be granted 
beyond that justified by the facts pleaded and proved. Thomas v. The 
Pick Hotels Corporation, 10 Cir., 1955, 224 F. 2d 664, 666.



48

race. They are admitted, however, as individuals, not as 
a class or group; and it is as individuals that their rights 
under the Constitution are asserted * * *. It is the state 
school authorities who must pass in the first instance on 
their rights to be admitted * *

(b) The majority opinion seems to infer that, because 
plaintiffs alleged that they were bringing a class action, 
other undisclosed persons might utilize the present suit to 
bring up new facts and ask new relief. That would not be 
possible even if this were in any proper sense a class action, 
which, in my opinion, it is not.

In the first place, plaintiffs never purported to represent 
anybody but persons having a claim to attend Barwise 
School based solely upon their contiguity thereto. It is true 
that they made the general assertion that they spoke for 
others of their class. But the defendants in their pleadings 
denied that there was any such class, or that plaintiffs 
qualified as spokesmen for any class. This created an issue 
of fact with respect to which plaintiffs bore the burden and 
no proof at all was offered. The mere ipse dixit of the 
author of the complaint can, of course, avail plaintiffs 
nothing.28

(c) The majority opinion seems further to treat the 
action as a “ true”  class action, and to invest it with an 
outreach broad enough to encompass all of the rights of 
[R-139] all of the pupils in all of the schools in the Wichita

28Lion "Bonding Co. v. Karatz, 1923, 262 U. S. 77; Hansberry v. Lee, 
1940 311 U. S. 32; McLellan v. Rose, 5 Cir., 1918, 247 Fed. 721, 724; 
3 Moore’s Federal Practice, pp. 3418 et seq., 3422 and 3423; and 39 Am. 
Jur., Parties, §53, pp. 926, et seq.



49

Falls Independent School District.39 But plaintiffs have 
never in their complaint aspired to the maintenance of a 
“ true” class action, categorically limiting by specific aver­
ments, the class action they sought to bring to that provided 
[R-140] in Rule 23(a) (3) F. R. C. P., commonly referred 
to as the “ spurious class suit.”  3 Moore, pp. 3442 et seq., 
and 3456. 29

29The only possible source of such an idea is the statement of plain 
tiffs’ counsel to the Trial Court: “ This is a broader suit than just these 
twenty-four plaintiffs. This is a class action . . . for a determination of 
how all the schools in this district shall be administered . . .”  But there 
is no syllable of proof tending to establish that counsel had any authority 
to speak for such a class or even for any plaintiff except the one who 
testified. And the Court would not be tempted, if otherwise justified, to 
indulge any presumptions in favor of the authority of plaintiffs’ counsel 
in view of his recent experience in a District Court in Texas.

He had filed a motion on behalf of two minors by their parents to 
intervene for the purpose of citing the defendants for contempt of court 
in Civil Action No. 366, D. C. E. D. Texas, Texarkana Div., Wilma Dean 
Whitmore, et al v. H. W. Stilwell, President of the Texarkana Junior 
College, et al, (see fn. 20, supra) and his authority to represent the two 
complaining intervenors had been challenged.

When called to the witness stand in that case he admitted that he had 
never been employed by the complaining minors or their parents, had 
never seen them until the day of the trial, and that his authority to 
represent them had come exclusively through intermediaries essaying to 
speak for them. A portion of the colloquy following his testimony and 
that of the two minors at the hearing of September 27, 1956 follows:

“ Mr. Tate: May it please the Court, I would like to move the Court to 
dismiss this suit with respect to this petitioner and ask that they both 
be dismissed without prejudice so if they want to hire another lawyer, 
they may.

The Court: You mean you are disqualifying yourself?
Mr. Tate: Yes, sir.
The Court: Your motion will be granted. * * * Now, just a minute, 

there has been some testimony here that this Court cannot overlook. 
And in making this statement that I am going to make, I want to say 
that as far as this Court is concerned, this type of lawsuit stands on the 
same basis as any other lawsuit filed in this Court and there are certain 
rules and demeanor that the attorneys of this bar must follow. I would 
suggest to you, Mr. Tate, that in the future if you expect to appear in 
this Court in connection with any of these cases or any lawsuit, regard­
less of what it is, that you be sure that you are properly employed in 
the case. * * *.

Mr. Tate: I want the Court to know I appreciate very much the situ­
ation. * *



50

The distinction is quite important as, in a true class suit, 
all members of the class are bound by the judgment.30 On 
the other hand, the spurious class action is merely a per­
missive joinder device, and the judgment binds only “those 
parties actually before the Court.”  Martinez, et al. v. 
Maverick County Water Control etc. District, 5 Cir., 1955, 
219 F. 2d 666.

(d) The majority, in my opinion, misconceives the char­
acter of this proceeding. The judgment rendered by the 
Court below was a summary judgment on the merits and 
completely disposed of all of the issues raised by the plead­
ings and the testimony. After filing their answer defining 
all of the issues raised in the case, defendants had moved 
the Court “ to dismiss the action because the complaint 
fails to state a claim against defendant upon which relief 
can be granted, or in the alternative to grant summary 
judgment for defendant under Rule 56, * * *.”  The motion 
was supported by affidavits.

Plaintiffs moved to strike that motion because it was 
in the alternative (which motion the Court below denied), 
but requested “ the right to take testimony on these issues 
and particularly to examine the defendants Joe B. McNeil 
and Leroy Stone with respect to the allegations made in 
their affidavits.” The matter proceeded to hearing upon 
full oral testimony and all parties considered it as a hear­
ing on the merits as is clearly reflected in the arguments 
[R-141] and in the colloquies between the Court and coun­

30Hansberry v. Lee, supra; Weeks v. Bareco, 7 Cir., 1941, 125 F. 2d 
84, 93, and cf. Troup v. McCart, et al, 5 Cir., 1956, ..... F. 2d ......



51

sel. The Court entered detailed findings of fact on every 
issue presented, and there is no room for the contention 
that there was any dispute in the testimony, or any mate­
rial issue as to the facts. The order entered by it, regard­
less of the label put upon it, was an order for summary 
judgment31 which is a final disposition of the case on the 
merits and there is nothing left to remand.

VII.

In my opinion, even if we were vested with a discretion, 
we ought to follow the course so clearly sanctioned in the 
Supreme Court decisions, by approving the conciliatory 
action of the Court below in what appears to me to be a 
wise, tolerant and educated judgment. The net result of the 
course the majority now commends is to leave the whole 
delicate problem in the realm of controversy, to invest the 
participants with the trappings of combat, and to invite 
prolongation of the struggle. It arms one party with a 
weapon carefully leveled at the other, inviting one to put 
the weapon into operation, compelling the other to engage 
itself in protective measures.

This course represents, in my opinion, a strategic mis­
take of real magnitude. Practically every responsible [R-

31Rule 12(b), F. R. C. P. provides:
“ 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 Rule 56, * *

And see Slagle v. United States, 5 Cir., 1956, 228 F. 2d 673, and 
authorities therein cited; and 2 Moore’s Federal Practice, p. 2256, and 
1954 Cumulative Supplement, p. 148.



52

142] person in a place of public leadership has stated that 
this problem will be solved only as men’s hearts are reached 
and touched. Weapons have never changed the human 
spirit, or fomented good will, and the threat of force they 
carry has never nurtured brotherhood. To tempt one liti­
gant to keep his eyes glued to the gunsight, thus provoking 
the other inevitably to divert most of its energies from 
constructive and probably generous action to preparations 
for defense, is to perform a distinct disservice to both and, 
more important, to the public.

The Supreme Court has recognized as imposed upon the 
District Courts responsibilities of statesmanship in addi­
tion to the duty to pass upon legal points. Judicial fiats are 
not self-executing. It would be well if we should pause to 
ponder upon these words written by Mr. Justice Jackson 
in the last days of his life :32

“ It is not idle speculation to inquire which comes 
first, either in time or importance, an independent 
and enlightened judiciary or a free and tolerant 
society. Must we first maintain a system of free politi­
cal government to assure a free judiciary, or can we 
rely on an aggressive, activist judiciary to guarantee 
free government? While each undoubtedly is a sup­
port for the other, and the two are frequently found 
together, it is my belief that the attitude of a society 
and of its organized 'political forces, rather than its 
legal machinery, is the controlling force in the char­
acter of free institutions. * * *.

“Judicial functions, as we have evolved them, can 
be discharged only in that kind of society [R-143]

32The Supreme Court in the American System of Government, by 
Robert H. Jackson, pp. 81 and 82-3.



53

which is willing to submit its conflicts to adjudica­
tion and to subordinate power to reason. * * [Em­
phasis supplied.]

Those words fit well into the admonition of the Supreme 
Court in Hecht that co-ordinated action between adminis­
trative body and Court is an absolute essential to the 
successful functioning of either; and that it is of supreme 
importance that neither shall look upon the other,— and 
that the public shall look upon neither,— as an “ alien in­
truder.” By leaving the problem before us in litigation, we 
contribute towards reducing it to a level which assumes 
that it posseses only a horizontal dimension. The truth is 
that the vertical dimension is of transcendent importance.

A True Copy: 
Teste:

(Seal)

/ s /  Edward W. Wadsworth

Clerk of the United States Court of 
Appeals for the Fifth Circuit.





55

APPENDIX

APPELLEES EXHIBIT 

IN

CAUSE NO. 16,148

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

CONTENTS

AFFIDAVIT OF JOE B. McNIEL 

SUPERINTENDENT OF SCHOOLS 

WICHITA FALLS, TEXAS 

DATED SEPTEMBER 12, 1956*

*Included in Appellees’ Brief as an Appendix for convenience o f court.



56

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

*  *  * *  *

CAUSE NO. 16,148

ALFRED AVERY, JR., a minor, by his Mother 
and Next Friend (Mrs.) ALFRED AVERY, et al.,

Appellants,
v.

WICHITA FALLS INDEPENDENT SCHOOL 
DISTRICT, et al., Appellees.

* * * * *

Appeal from the United States District Court for 
Northern District of Texas

* * * * *

APPELLEE’S EXHIBIT A

Affidavit as to Matters Occurring After Trial in the 
District Court and Prior to Appeal, Material to 

Issue of Mootness.

STATE OF TEXAS 
COUNTY OF WICHITA, ss:

Joe B. McNiel, being duly sworn, deposes and says:

1. I am superintendent of public schools for the Wichita 
Falls Independent School District, one of the above named 
defendants, and I have served in such capacity for the past



57

nine years. I have attended all board meetings of the School 
District during the past two years and am personally 
familiar with the files and records of the Board of Trus­
tees, and with their executive and administrative functions. 
I have personal knowledge of the matters herein referred 
to, and make this affidavit to be filed as an exhibit by 
Appellee in the Cause of Alfred Avery, Jr., a minor, by his 
Mother and Next Friend (Mrs.) Alfred Avery, et ah, 
Appellants, v. Wichita Falls Independent School District, 
et ah, Appellees, in Cause No. 16,148, in the United States 
Court of Appeals for the Fifth Circuit.

2. That during the period of time since April 3, 1956, 
the following things have occurred and the facts exist and 
existed, all of which are matters of common knowledge in 
the Wichita Falls area, having been widely publicized:
A. That on April 4, 1956, Mr. Floyd Randel, President of 
the Wichita Falls Independent School District, issued a 
public statement which was carried as a front page story 
in the Wichita Falls Record News on April 5, 1956, and 
which statement announced that all schools of the Wichita 
Falls Independent School District would be completely 
desegregated by September of 1956, or January of 1957 
at the latest.
B. That on June 1, 1956, the Wichita Falls Senior High 
School was opened for its summer session on a non-segre- 
gated basis and that 426 students enrolled therein, of which 
15 were Negroes.
C. On August 3, 1956, an announcement was made by the 
Wichita Falls Independent School District and was carried



58

as a front page story by the Wichita Falls Daily Times and 
as a front page story by the Wichita Falls Record News 
on August 4, 1956, and which story referred to the action 
of the Board of Trustees of the Wichita Falls Independent 
School District on July 26, 1956, and announced that all 
schools in the Wichita Falls Independent School District 
would be opened on a non-segregated basis for the fall 
semester beginning September 5, 1956.

D. On September 5, 1956, 13,812 pupils enrolled in the 
schools of the Wichita Falls Independent School District 
and were admitted to the schools to which they applied for 
admission without any discrimination as to them because 
of their color. No Negro children enrolled or applied for 
admission or reported for attendance to any school except 
Sheppard Air Force Base school, Booker T. Washington 
school, and A. E. Holland school.

E. The school census, taken in February of 1956, upon 
being received by the School District, reflected that there 
were 30 colored students of school age residing in school 
districts other than the Booker T. Washington School Dis­
trict which had formerly been a colored segregated school, 
and the A. E. Holland School District which had formerly 
been opened to all students within the district on a non- 
segregated basis but in which no white students had been 
enrolled during the spring semester of 1956. The census 
showed such students to reside in the following districts:

Alamo Elementary School— 7
Austin Elementary School— 1



59

Ben Franklin Elementary School— 6 
Fannin Elementary School—2 
Sheppard Air Force Base Elementary School— 14

F. The Superintendent of Schools and his staff have ap­
proved 564 written transfers to date from one School Dis­
trict area operated by them to another. Many of these 
include transfers arising out of a re-districting wherein 
numbers of students who had formerly attended two or 
three years in one school were placed in another School 
District by such re-districting, but who desired to complete 
their elementary education in the elementary schools which 
they had previously attended. Of these, 200 transfers were 
from the Booker T. Washington District to the Travis 
School District lying north thereof, and included students, 
primarily of Latin American descent, who had formerly 
attended Travis School and for whom available classroom 
space remained as opposed to more crowded conditions in 
the Washington School. Except for one transfer from A. E. 
Holland School District to Austin School by a white child, 
and except for the 17 transfers applied for by colored 
children as hereinafter set out, the balance of the transfers 
involved white students transferring between schools other 
than the A. E. Holland Elementary School, Booker T. 
Washington School, Sheppard Air Force Base School, and 
Travis School:

6 from Holland School to Booker T. Washington 
School

1 from Sheppard Air Force Base School to Booker T. 
Washington School



60

6 from Alamo School to A. E. Holland School 
2 from Ben Franklin School to Booker T. Washington 

School
2 from Fannin School to A. E. Holland School

17 Total transfers of colored children

All written transfers requested to date have been granted.
G. It is not known whether the other colored children living 
in the other school districts at the time of the census in 
February of 1956 still reside there. It is not known whether 
they may have “automatically” applied for admission to 
the schools they attended previously. Preliminary surveys 
are being made at the present time to determine these 
matters.

The School Superintendent has asked the counsel for the 
School District for an opinion as to the District’s obliga­
tions, if any, in connection with requiring such colored 
students to transfer back into the schools of the district of 
their residence, and is awaiting an opinion.

/ s /  JOE B. McNIEL

Sworn and subscribed before me this 12th day of Sep­
tember, A.D. 1956.

/ s /  CARL HIGHTOWER
(SEAL) Notary Public, Wichita County, Texas



61

PROOF OF SERVICE

I, R. Marvin Pierce, attorney for Petitioners herein, and 
a member of the Bar of the Supreme Court of the United 
States, hereby certify that, on the 6th day of April, 1957, 
I served copies of the foregoing Petition for Writ of 
Certiorari to the United States Court of Appeals for the 
Fifth Circuit on the several parties thereto by mailing 
two (2) copies thereof in a duly addressed envelope with 
air mail postage prepaid, via certified mail, to each of 
their respective attorneys of record as follows: Louis Bed­
ford, 1831 Singleton Blvd., Dallas, Texas; Robert L. Car­
ter, Thurgood Marshall, 107 West 43rd Street, New York, 
New York; U. Simpson Tate, 2600 Flora Street, Dallas,
Texas.

600 Oil & Gas Building, 
Wichita Falls, Texas,

Attorney for Petitioners.