Brown v. Board of Education Brief for the United States on the Further Argument of the Questions of Relief

    IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 8727

BOBBY BRUNSON, et al., A ppellants,
versus

BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 
OF CLARENDON COUNTY, SOUTH CAROLINA, 
et al, A ppellees.

A ppeal from the United States District Court for the 
Eastern District of South Carolina, 

Charleston Division

BRIEF AND APPENDIX FOR APPELLEES 
MOTION TO DISMISS APPEAL

F I L E D
SEP 13 1362

R, Rg. F. WILL!AMS, JR. 
CLERK

DAVID W. ROBINSON 
ROBINSON, McFADDEN & MOORE 

Columbia, South Carolina 
Attorneys for the Appellees

TH E STATE 1C CO.



TABLE OF CONTENTS

Page
Statement of the Case_______________________________ 1

I. The Order of the District Court is Not Appealable 1
II. The Suit is Not a Proper Class A ction___________  5
Conclusion _________________________________________  12
Appendix __________________________________________  21a
Motion to Dismiss Appeal__________________________  lb



Cases Page
All-American Airways v. Eldred, 209 F 2d 247

(2nd Cir.) _____________________________________  2, 3
American Broadcasting Co. v. Wahl, 121 F. 2d 412

(2nd Cir.) _____________________________________  4
Atwater v. North American Coal Co., I l l  F. 2d 125

(2nd Cir.) _____________________________________  4
Baltimore Contractors v. Bodinger, 348 U. S. 176___ 5
Bedser v. Horton, 122 F. 2d 406 (4th Cir. 1941) ___ 9
Briggs v. Elliott, 98 F. Supp. 529 (1951), 342 U. S.

350 (1952) ; 103 F. Supp. 920 (1952) ; 347 U. S.
483 (1954; 349 U. S. 294 (1955) ; 132 Supp 776
(1955) ----------------------------------------------------- 6 ,7 ,8 ,9 ,1 0

Brown v. Board, 347 U. S. 483 (1954) ; 349 U. S. 294
(1955) _________________________________________  7-9

Carson v. Board, 227 F. 2d 789 ____________________  8
Carson v. Warlick, 238 F. 2d 724, c.d. _____________  8
Clark v. Kansas City, 172 U. S. 334 (1899) _________ 4
Collins v. Metro-Goldwyn, 106 F. 2d 8 3 _____________  9
Collins v. Miller, 252 U. S. 364 __ ______ __________  5
Covington v. Edwards, 264 F. 2d 780 _______________  8
Davis v. Prince Edward, 142 F. Supp. 616 _________  8
Davis v. Yellow Cab Co., 220 F. 2d 790 (5th Cir.

1955) ___________________________________________  9
Gillette v. Northern Oklahoma, 179 F. 2d 711 (10th

Cir. 1950) ______________________________________  9
Henderson v. U. S., 339 U. S. 8 1 6 _________________ 7
Hohorst v. Hamburg, 148 U. S. 261__________ _____ 4
Holt v. Raleigh, 265 F. 2d 98, c .d .__________________  8
Hood v. Board. 232 F. 2d 626, 286 F. 2d 236 ______ _ 8, 9
International Machinists v. Street, 367 U. S. 740 ___ 7
Joham v. Roger, 296 F. 2d 119 12nd Cir.) _______  4
Jumps v. Leverone, 150 F. 2d 876 (7th Cir.) _______  2
Kansas City v. Williams, 205 F. 2d 47 (8th Cir.) c.d. 9

TABLE OF CITATIONS

ii



TABLE OF CITATIONS— Continued 
Cases Page

Kennedy v. Bethlehem Steel Co., 102 F. 2d 141
(3rd Cir.) _____________________________________  5

Markham v. Kasper, 152 F. 2d 270 (7th Cir.) ______  4
Martinez v. Maverick, 219 F. 2d 666 (5th C ir.)__  9
Metropolitan v. Banion, 86 F. 2d 886 ( 10th Cir.) __  4
McCabe v. Atcheson, 235 U. S. 151_________________  7
McLaurin v. Oklahoma, 339 U. S. 637 _______________  7
Missouri, ex rel. Gaines v. Canada, 305 U. S. 337 ___ 7
Mitchell v. U. S., 313 U. S. 8 0 ______________________  7
Oppenheimer v. Young, 144 F. 2d 387, 3 F.R.D.

(2nd Cir.) _____________________________________  2
Reddix v. Lucky, 252 F. 2d 930 (5th Cir. 1958) ____  8
Rogers v. Alaska Steamship Lines, 249 F. 2d 646

(9th Cir.) ______________________________________ 2
Shultz v. Manufacturers & Traders, 103 F. 2d 771

(2nd Cir.) _____________________________________  4
Shuttleworth v. Birmingham, 358 U. S. 101 (1958)__ 8
Skirvin v. Mesta, 141 F. 2d 668 (10th Cir.) _________ 4
U. S. v. Shaughnessy, 178 F. 2d 756 (2nd Cir.) ____  4
U. S. Plywood Corp. v. Hudson, 210 F. 2d 462

(2nd Cir.) _____________________________________  5
Whiteman v. Pitrie, 220 F. 2d 914 (5th Cir. 1955) __ 9
Statutes
Fair Labor Standards A c t _________________________  3
South Carolina Code 1952

Section 21-230 ________________________________ 21a
Section 21-230(9) _____________________________8-21a
Section 21-230.2 _____________________________  21a
Section 21-247 ________________________________ 8-21a
Section 21-247.2 _____________________________  22a
Section 21-247.3 _____________________________  22a
Section 21-247.4 _____________________________  22a
Section 21-247.5 _____________________________  22a

28 U.S C A. 1291__________________________________  2-5
28 U.S.C.A. 1292__________________________________ 2

iii



IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 8727

BOBBY BRUNSON, et al, A ppellants,
versus

BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 
OF CLARENDON COUNTY, SOUTH CAROLINA, 
et al., A ppellees.

A ppeal from the United States District Court for the 
Eastern District of South Carolina, 

Charleston Division

STATEMENT OF THE CASE
The plaintiffs appeal from the order of the District Court 

in which it determined that “ this action is not properly- 
brought as a class action under Rule 23 (a) 3.”  It there­
fore struck from the complaint the names of all of the 
plaintiffs except the one first named and all allegations 
in the complaint inappropriate to a personal cause of action 
in behalf of that plaintiff. The plaintiff was given leave 
to file an amended complaint. (18a-19a) I

I
The Order of the District Court is Not Appealable 

It is our position that the order of the District Court is 
not a final decision from which an appeal is authorized



2 Bobby Brunson, et al. v. Board of T rustees, et al.

under Title 28 Section 1291.1 Since the appellate jurisdic­
tion of this Court is statutory, the appeal does not lie un­
less this Court concludes that the District order is a final 
judgment. Orders striking the class character of pleadings 
are not final decisions within the meaning of Section 1291. 
Oppenheimer v. Young, 144 F. 2d 387, 3 F.R.D. (2nd Cir.) ; 
Jumps v. Leverone, 150 F. 2d 876, 877 (7th Cir.) ; All- 
American Airways v. Eldred, 209 F. 2d 247 (2nd Cir.) ; 
Rogers v. Alaska Steamship Lines, 249 F. 2d 646 (9th 
Cir.).

In Oppenheimer the Court stated the facts of that case 
and the applicable law in these words:

This suit was brought as a spurious class action 
and is sought to be sustained under Federal Rule 
23(a) (3) 28 U.S.C.A. following section 723c. The 
plaintiffs, after two unsuccessful attempts to set forth 
their claim in the form of a spurious class action, filed 
a second amended complaint which was dismissed by 
the District Court on the ground that the plaintiffs 
and the parties whom they sought to represent had 
divergent interests, with leave, however, to serve a 
further amended complaint in their own behalf; but, 
because of failure to amend, as permitted, a judgment 
was entered dismissing the second amended complaint 
in its entirety. The plaintiffs have appealed from 
both the order and the judgment. Inasmuch, however, 
as the order provided for an amendment, it did not 
dispose of the litigation and it was not final. The in­
dividual claims of the tivo plaintiffs asserted in the 
second amended complaint, and sustained by the inter­
locutory order, arose out of the same matters as those 
upon which the class action was founded, and there 
must be finality in the disposition of both in order that 
an appeal may lie.1 2 Audi Vision, Inc. v. RCA Mfg.

1 While appeals from some interlocutory orders are permitted, the order 
here in issue does not come within the purview of 28 U. S. C. A. 1292.

2 Emphasis supplied in this brief.



Bobby Brunson, et al. v. Board of T rustees, et al. 3

Co., 2 Cir., 136 F. 2d 621, 147, A.L.R. 574; Western 
Elec. Co. v. Pacent Reproducer Corp., 2 Cir., 37 F. 2d 
14. The appeal from the interlocutory order must, 
therefore, be dismissed.

In the Jumps case the five plaintiffs sued for themselves 
and as representatives of a great number of other 

employees to recover wages and overtime under the provi­
sions of the Fair Labor Standards Act. The Seventh Cir­
cuit in dismissing an appeal questioning the District 
Court’s order striking from the complaint “ all reference 
to other establishments and to employees therein,”  said:

Whether the proceeding be looked upon as a statu­
tory proceeding to liberalize the joinder of parties un­
der Section 16 of the Fair Labor Standards Act, or 
as a spurious class suit pursuant to the Federal Rules 
of Civil Procedure, Rule 23(a) (3), the District Court 
had a wide discretion in shaping up the limits of the 
suit.

Congress intended to liberalize and relax the pro­
cedure for bringing suits to enforce the sanctions of 
the Act. The procedure was left to the Court’s discre­
tion in order that they might control the limits of such 
suits in the interest of justice to the parties under the 
Act. When one contemplates the scope of the suit en­
visaged by the attorneys for the plaintiffs, and the 
ramifications of a suit of that size, purporting to affect 
the rights of thousands of persons in ten or more 
states, we think that where the Court attempted to 
reasonably limit the scope of the suit it was exercising 
its discretion and the order made and sought to be 
appealed from is interlocutory and not final, and 
therefore is not appealable. The motion of the defend­
ants to dismiss this appeal is sustained and the appeal 
is dismissed.

In the All-American Airways case ten airlines sued the 
officials of the town of Cedarhurst to have its ordinance



4 Bobby Brunson, et al. v . Board of T rustees, et al.

prohibiting low flying of planes taking off and landing at 
Idlewild declared invalid and for appropriate injunctive 
relief. These town officials in behalf of themselves indi­
vidually as property owners and in behalf of other property 
owners counterclaimed to enjoin low flying by the plain­
tiffs.

The District Court granted the plaintiffs’ motion “ to dis­
miss the counterclaims as to the so-called ‘related defend­
ants’ and order the answer amended accordingly, i.e., by 
the elimination of all allegations of a class suit.”  From a 
reading of the opinion it is obvious that the Court of Ap­
peals disagreed with the merits of the District order. How­
ever the Court held: “ In any event the non-appealability of 
the order in this type of class action is apparent.”

These decisions as to the non-appealability of orders re­
lating to class actions are consistent with the holding of the 
various circuits that orders granting motions to dismiss 
with leave to plead anew are not appealable. (Atwater v. 
North American Coal Co., I l l  F. 2d 125 (2nd Cir.) ; Amer­
ican Broadcasting Co. v. Wahl, 121 F. 2d 412 (2nd Cir.) ; 
U. S. v. Shaughnessy, 178 F. 2d 756, 757 (2nd Cir.) ; Clark 
v. Kansas City, 172 U.S. 334 (1899).) An order dismissing 
a complaint unless the plaintiff produced its managing of­
ficer for examination within ninety davs is not an appeal- 
able final judgment even at the end of the ninety-day pe­
riod. (Joham v. Roger, 296 F. 2d 119 (2nd Cir.).)

Orders granting or denying consolidation under Rule 
42 (a) where there is a common question of law or fact are 
not appealable. Skirvin v. Mesta, 141 F. 2d 668, 671 (10th 
Cir.). Orders striking allegations of a complaint are not 
appealable since they are not final judgments. (Metro­
politan v. Banion, 86 F. 2d 886 (10th Cir.) ; Shultz v. Man­
ufacturers & Traders, 103 F. 2d 771 (2nd Cir.) ; Markham 
v. Kasper, 152 F. 2d 270 (7th Cir.).) Unappealable are 
orders determining the issues as to some but not all of the 
parties. (Atwater v. North American Coal, 111 F. 2d 
125 (2nd Cir.) ; Hohorst v. Hamburg, 148 U. S. 261.) An



Bobby Brunson, et al. v. Board of T rustees, et al. 5

order granting summary judgment for the plaintiff on the 
defendant’s counterclaim is not appealable. ( U. S. Ply­
wood Corp. v. Hudson, 210 F. 2d 462 (2nd C ir.).) An order 
dismissing a petition to intervene is not appealable. [Ken­
nedy v. Bethelhem Steel Co., 102 F. 2d 141, 142 (3rd C ir.).) 
There Circuit Judge Maris pointed out that, “ Not only is 
it a discretionary order but it leaves the petitioner at full 
liberty to assert his rights in any other appropriate form 
of proceeding.”

Section 22 of the Judiciary Act of 1789, 1 Stat., 73, 
84 provided that appeals in civil actions should be 
taken to the circuit courts only from final decrees and 
judgments. That requirement of finality has remained 
a part of our law ever since, and now appears as Sec­
tion 1291 of the Judicial Code.

Baltimore Contractors v. Bodinger, 348 U. S. 176, 178. Cf. 
7ollins v. Miller, 252 U. S. 364, 370.

When we consider the district order in the light of these 
Gcisions it is clear that it lacks the finality contemplated 
b Section 1291. The cause has not been terminated. The 
piintiff Bobby Brunson is still in court with the right to 
fil an amended complaint. The order does two things: (1) 
It'trikes from the body of the complaint certain allega- 
tios. Such an order is clearly not appealable. (2) It 
str-es from the caption and the body of the complaint eer- 
taimamed plaintiffs. Since these plaintiffs are free to 
purie an appropriate remedy in another action and since 
Bobr Brunson’s cause is still before the court, the order 
is indocutory. Therefore the appeal should be dismissed.

II
The Suit Is Not a Proper Class Action

Theefendant School District No. 1 (Summerton) of 
Clarentn County is a rural school district in lower South 
Carolinlying along the Santee-Cooper reservoir and the



6 Bobby Brunson, et al. v. Board of T rustees, et al.

lower Santee River. The latest available figures of school 
enrollment (1961-1962) showed 326 white pupils, 2,572 
Negro.

It is the same school district before the Court in Briggs v. 
Elliott.3 Brunson v. Board is a companion case to Briggs. 
The defendants in both are the school authorities in the 
Summerton District. The complaint in Brunson alleges 
that some but not all of the plaintiffs are the same. (8a ). 
Both Briggs and Brunson seek relief from alleged discrimi­
nation in the providing of school facilities. While Briggs 
is still on the district calendar the issue as to whether a 
class action under Rule 23(a) (3) is presented here in 
Brunson. On that issue, however, it is important to see 
what the Court has said in Briggs.

On remand from the Supreme Court, the District Court 
thus stated the “governing constitutional principles”  for 
the guidance of the Summerton trustees:

Having said this, it is important that we point ou' 
exactly what the Supreme Court has decided and wha 
it has not decided in this case. It has not decided ths 
the federal courts are to take over or regulate the pu- 
lic schools of the states. It has not decided that te 
states must mix persons of different races in te 
schools or must require them to attend schools or mst 
deprive them of the right of choosing the sch>ls 
they attend. What it has decided, and all iat 
it has decided, is that a state may not deny tomy 
person on account of race the right to attend any siool 
that it maintains. This, under the decision othe 
Supreme Court, the state may not do directly oindi- 
rectly; but if the schools which it maintains aropen 
to children of all races, no violation of the Constfition 
is involved even though the children of differerffaces 
voluntarily attend different schools, as they attd dif-

8 Briggs V. Elliott, 98 F. Supp. 529 (1951); 342 U. S. 350 (195,103 F.
Supp. 920 (1952); 347 U. S. 483 (1954); 349 U. S. 294 (1955); i f 7- Supp.
776 (1955).



Bobby Brunson, et al. v. Board of T rustees, et al.

ferent 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 in­
tegration. It merely forbids discrimination. It does 
not forbid such segregation as occurs as the result of 
voluntary action. It merely forbids the use of govern­
mental power to enforce segregation. 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. 132 F. Supp. 766, 767 
(1955).

Admittedly the constitutional right of equal protection 
is a personal individual right which the person entitled 
thereto may enforce or waive as he sees fit. No one else 
can enforce it for him. “ It was as an individual that he 
was entitled to the equal protection of the laws. . . .” Mis­
souri, ex rel. Gaines v. Canada, 305 U. S. 337, 351; Mc- 
Laurin v. Oklahoma, 339 U. S. 637, 642. McCabe v. Atche- 
son, 235 U. S. 151, Mitchell v. U. S., 313 U. S. 80, Hender­
son v. U. S., 339 U. S. 816, International Machinists v. 
Street, 367 U. S. 740, 774. Indeed the “ spurious”  class 
action authorized by the third subdivision of Rule 23 (a) 
which the plaintiffs here invoke applies only where the right 
of each member of the class is “ several.”  The class action 
joinder is allowed only when there is “ a common question 
of law or fact.”

When the Supreme Court in the companion cases (of 
which Briggs v. Elliott was one), generally cited as Brown 
v. Board, 347 U. S. 483 (1954); 349 U. S. 294 (1955), de­
cided that a state could not satisfy its obligation to provide 
equal protection by requiring pupils of different races to 
seek education in separate public schools, it invalidated 
South Carolina laws to the contrary. In so doing it resolved 
any question of law common to the several plaintiffs. In 
fact, in limiting relief to the “ parties to these cases”  (349 
U. S. 301), the Court ended the availability of the spurious



8 Bobby Brunson, et al. v. Board of T rustees, et al.

class action insofar as this school district is concerned. 
There is left for decision only the factual question of 
whether the school trustees have, in assigning one of the 
plaintiffs, deprived him of equal protection. This factual 
question depends on many non-racial criteria and must be 
resolved separately as to each pupil asking reassignment. 
Shuttleworth v. Birmingham, 358 U. S. 101 (1958).4

On remand the District Court held that the common ques­
tion of law had been resolved in the Briggs litigation and 
since this last order of the District Court spelled out the 
rights and obligations of the parties there is no unresolved 
common question of law present in the Brunson case. (17a). 
Briggs v. Elliott, 132 F. Supp. 776-777 (1955). Confirma­
tion is found in the order dissolving the three-judge district 
court in Davis v. Prince Edward, 142 F. Supp. 616, 619.

As we read plaintiffs’ brief it does not question the cor­
rectness of our view that the common question of law (sep­
arate schools vel non) has been resolved by the decisions in 
Briggs v. Elliott, supra. Seemingly it claims that the ade­
quacy of the administrative remedy provided in South Car­
olina raises a common question of law justifying a spurious 
class action.

In order to assure to every child aggrieved by his assign­
ment to a particular school an adequate administrative 
remedy for the resolution of his request for a different as­
signment, South Carolina provides an appropriate proce­
dure. 1952 Code 21-230 (9), 21-247. (21a-22a) Hood
v. Board, 232 F. 2d 626, 286 F. 2d 236.5 The plaintiffs’ 
brief seems to recognize that this procedure is fair and ade­

4 Circuit Judge Tuttle recognized the applicable principle in Reddix v. 
Lucky, 252 F. 2d 930, 938 (5th Cir 1958), where he said: “We think this 
is not a proper case for a class action. Obviously the right of each voter 
depends upon the actions taken with respect to his own case.”

'T h e  South Carolina procedure is similar to that of North Carolina which 
has been sustained here in numerous cases. Carson v. Board, 227 F 2d 789 
Carson v. Warlick, 238 F. 2d 724, c. d., Covington v. Edwards, 264 F. 2d 78o’, 
Holt v. Raleigh, 265 F. 2d 98, c. d. The Supreme Court has found that such 
administrative procedures are valid in the field of pupil placement Shuttle- 
worth v. Birmingham, 358 U. S. 101 (1958) affirming 162 F. Supp. 372.



Bobby Brunson, et al. v . Board of T rustees, et al. 9

quate on its face and that this Court has so ruled in Hood.
(Brief 10, footnote 2.)

The question of whether school trustees will fairly admin­
ister such a statute cannot be reached under a complaint 
asserting that the plaintiffs “have not exhausted the admin­
istrative remedy provided by the South Carolina School 
L a w s ....”  (9a)

In the administration of the Buies of Civil Procedure it 
was contemplated that the District Courts would exercise 
broad discretion in applying these rules and that discretion 
will not be disturbed here unless there is an abuse. This 
policy of leaving the application of the rules to district 
courts is particularly appropriate in the field of permissive 
joinder contemplated by Rule 23(a) (3). Martinez v. Mav­
erick, 219 F. 2d 666, 673 (5th Cir.) ; Kansas City v. Wil­
liams, 205 F. 2d 47 (8th Cir.), c. d.®

Finally, it should be borne in mind that it is the District 
Court to whom the Supreme Court entrusted the review of 
school board action in applying the principles of Briggs v. 
Elliott, 349 U. S. 294, 299. This is so because “ of their 
proximity to local conditions.”  It is obvious that the gov­
erning constitutional principles must be applied differently 
to a rural school district where the Negro school children 
are a majority of eight to one, than in a cosmopolitan com­
munity like Norfolk or Baltimore or New Orleans or to an 
area where the Negro is a small minority.

The reasoning of the Court in Brown v. Board, 347 U. S. 
483, 493-4, is that state law requiring the racial minority 
to go to a school separate from the majority may create in 
the members of this minority an inferiority complex, there­
fore such law deprives the members of the minority of equal 
protection. Here we have members of the majority race 
attempting through the prayer of this class action to force

_8 The District Court’s discretion here is similar to that exercised under 
kindred rules 42, 20, 22, 24. Collins v. Metro-Goldwyn, 106 F. 2d 83, 85, 
Bedser v. Horton, 122 F. 2d 406, 407 (4th Cir. 1941), Gillette v. Northern 
Oklahoma, 179 F. 2d 711 (10th Cir. 1950), Davis v. Yellow Cab Co., 220 
F. 2d 790 (5th Cir. 1955), Whiteman v. Pitrie, 220 F. 2d 914 (5th Cir. 1955).



10 Bobby Brunson, et ai. v . Board of T rustees, et al.

the minority to be engulfed in the eight to one majority. 
Such relief ( lOa-lla) would necessarily injure the person­
ality of the minority and so deprive them of equal protec­
tion.

As stated above, this is the school district before the 
Court in Briggs v. Elliott, supra. 347 U. S. 495. In the 
opinion filed May 31, 1955, the Court stated:

Full implementation of these constitutional principles 
may require solution of varied local school problems. 
School authorities have the primary responsibility for 
elucidating, assessing and solving these problems; 
courts will have to consider whether the action of school 
authorities constitutes good faith implementation of 
the governing constitutional principles. 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 ap­
praisal. 349 U. S. 249.

On remand the three judge District Court, on July 15, 
1955, in an opinion intended for the guidance of the trus­
tees of the school district here involved, after observing 
that “ no violation of the Constitution is involved even 
though the children of different races voluntarily attend 
different schools,”  and that the Constitution [and, of course, 
the Court] “ does not forbid such segregation as occurs as 
the result of voluntary action,”  but “merely forbids the use 
of governmental power to enforce segregation,”  filed an 
order pursuant to the mandate from the Supreme Court in 
which the defendants were “ enjoined from refusing on ac­
count of race to admit to any school under their supervision 
any child qualified to enter such school.”  132 F. Supp. 
777, 778.

The problem of desegregation in this school district, while 
not unique, was and is as difficult of solution as any in the 
country. Without the understanding and cooperation of 
the parents of both races in the district, it appeared in­



Bobby Brunson, et al. v. Board of Trustees, et al. 11

surmountable. There was no immediate crisis because the 
parents of the district continued to send their children to 
the schools which they were attending, and to enroll new 
students in the schools in which they would formerly have 
been enrolled.

It thus appears that the trustees were warranted in per­
mitting the parents of the district to continue voluntarily to 
patronize its schools as they had in the past. In the mean­
time, the placement procedure amended in 1956 provided 
an efficient remedy to any who claimed the personal right 
to attend a different school.

The three schools which the Negro children continued to 
attend were and are the largest, the last constructed, and 
most modern in the district. In location they cover the dis­
trict’s area. By means of these schools the Negro school 
children of the district have been receiving educational ad­
vantages apparently still satisfactory to the overwhelming 
majority of the Negro parents. The one white school is 
smaller, older and located in the town of Summerton. The 
majority of the white school children live in the town, and 
nearer this school. The other three are more conveniently 
located for the greater number of the Negro children.

Under the three judge Court’s order dated July 15, 1955, 
the district’s school authorities were warranted in contin­
uing to operate the schools as they had theretofore been 
operated, in accordance with the demonstrated wishes of 
the parents, and in relying upon the State’s placement pro­
cedure legislation to afford an effective remedy for any 
who claimed the right to attend another school. Such rem­
edy has not as yet been invoked by a single school child or 
parent, not even by the plaintiffs.

The District Judge, under these circumstances, was not 
required to entertain another class action attack upon the 
district’s school system; and his holding that the personal 
rights claimed by the several plaintiffs should be asserted 
by them severally and not jointly finds abundant support 
in the history of the past litigation.



12

CONCLUSION
We submit that this cause is not a final judgment now 

i eviewable here. Therefore the appeal should be dismissed. 
In the alternative we ask affirmance.

DAVID W. ROBINSON 
ROBINSON, McFADDEN & MOORE 

Columbia, South Carolina 
Attorneys for the Appellees

September 1962

Bobby Brunson, et al. v. Board of T rustees, et al.



21a

APPENDIX
Code of Laws of South Carolina 1952

Section 21-230. General powers and duties of school trus­
tees.

The board of trustees shall also:
# * • * # * #

(9) Transfer pupils and designate schools attend. 
Transfer any pupil from one school to another so as to 
promote the best interests of education and determine the 
school within its district in which any pupil shall enroll.

Section 21-230.2 Rules and regulations; hearings.
The boards of trustees of the several school districts may 

prescribe such rules and regulations not inconsistent with 
the statute law of this State as they may deem necessary 
or advisable to the proper disposition of matters brought 
before them. This rulemaking power shall specifically 
include the right, at the discretion of the board, to desig­
nate one or more of its members to conduct any hearing 
in connection with any responsibility of the board and to 
make a report on this hearing to the board for its deter­
mination.

Section 21-247. May appeal decision of trustees to county 
board of education.

Subject to the provisions of §21-230, any parent or per­
son standing in loco parentis to any child of school age, 
the representative of any school or any person aggrieved 
by any decision of the board of trustees of any school dis­
trict in any matter of local controversy in reference to the 
construction or administration of the school laws or the 
placement of any pupil in any school within the district 
may appeal the matter in controversy to the county board 
of education by serving a written petition upon the chair­
man of the board of trustees, the chairman of the county 
board of education and upon the adverse party within ten



22a

days from the date upon which a copy of the order or 
directive of the board of trustees was delivered to him by 
mail or otherwise. The petition shall be verified and shall 
include a statement of the facts and issues involved in the 
matter in controversy.

Section 21-21*7.2. Hearing; dispose of each school age 
child separately.

The parties shall be entitled to a prompt and fair hearing 
by the county board of education which shall try the matter 
de novo and in accordance with its rules and regulations. 
The county board of education may designate one of its 
members to conduct the hearing and report the matter to 
it for determination. When individual children of school 
age are involved in the matter in controversy, the case of 
each child shall be heard and disposed of separately.

Section 21-21*7.3. Appearance of parties; evidence.
At any such hearing the parties may appear in person 

or through an attorney licensed to practice in this State and 
may submit such testimony, under oath, or other evidence 
as may be pertinent to the matter in controversy.

Section 21-21*7.1*. Decision of board; service.
After the parties have been heard, the county board of 

education shall issue a written order disposing of the mat­
ter in controversy, a copy of which shall be mailed to each 
of the parties at interest.

Section 21-21*7.5. Appeal from decision of board to circuit 
court.

Any party aggrieved by the order of the county board 
of education may appeal to the court of common pleas of 
the county by serving a written verified petition upon the 
chairman of the county board of education and upon the 
adverse party within ten days from the date upon which 
copy of the order of the county board of education was 
mailed to the petitioner. The parties so served shall have



23a

twenty days from the date of service, exclusive of the date 
of service, within which to make return to the petition or 
to otherwise plead, and the matter in controversy shall be 
tried by the circuit judge de novo with or without reference 
to a master or special referee. The county board of edu­
cation shall certify to the court the record of the proceed­
ings upon which its order was based and the record so cer­
tified shall be admitted as evidence and considered by the 
court along with such additional evidence as the parties 
may desire to present. The court shall consider and dis­
pose of the cause as other equity cases are tried and dis­
posed of, and all parties at interest shall have such rights 
and remedies, including the right of appeal, as are provided 
by law in such cases.



lb

IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 8727

BOBBY BRUNSON, et al, A ppellants,
versus

BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 
OF CLARENDON COUNTY, SOUTH CAROLINA, 
et A ppellees.

A ppeal from the United States District Court for the 
Eastern District of South Carolina, 

Charleston Division

MOTION TO DISMISS APPEAL

The defendants move that this appeal be dismissed be­
cause the order from which the appeal is taken is not a 
final decision within the meaning of 28 U. S. C. A. 1291 
and is not the type of interlocutory order from which an 
appeal may be taken under 28 U. S. C. A. 1292. 
September 1962

DAVID W. ROBINSON 
ROBINSON, McFADDEN & MOORE 

Columbia, South Carolina 
Counsel for the Defendants