United States v. Mabus Brief Amicus Curiae in Support of Petitioner
Public Court Documents
July 1, 1991

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Brief Collection, LDF Court Filings. Potts v. Flax Brief for Appellees, 1962. f6b0cb6e-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/45d73813-5893-437e-aadb-4651d1e10319/potts-v-flax-brief-for-appellees. Accessed June 01, 2025.
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I n the United ^tata (Eourt of Apjipala F or the F ifth Circuit No. 19,639 W . S. P otts, et al., —v. A rlene F lax, et al., Appellants, Appellees. appeal from the united states district court for the NORTHERN DISTRICT OF TEXAS BRIEF FOR APPELLEES L. Clifford Davis 403 East 9th Street Fort Worth, Texas W. J. D urham Universal Life Building 2600 Flora Street P. 0. Box 641 Dallas, Texas Jack Greenberg James M. Nabrit, III Derrick A . B ell, J r . 10 Columbus Circle New York 19, New York Attorneys for Appellees I N D E X Statement of the Case..................................................... 1 A rgument : I. Appellees were not required to exhaust the administrative remedy provided by either Texas Law or School Board Regulations prior to invoking the jurisdiction of the court below..................................................... 7 II. The Court granted appropriate relief for plaintiffs and others similarly situated in ordering the defendants to submit a plan of desegregation for the Fort Worth school system ............................................................. 14 III. The District Court properly declined to con vene a three-judge Court under 28 United States Code Section 2281 .............................. 17 IV. Neither the plaintiffs’ motives in bringing the suit or the fact that others are aiding plaintiffs in the expenses of litigation are relevant ......................................................... 21 Conclusion ..................................................................... 23 A ppendix : Article 2901a ........................................................... la Article 2900a........................................................... 6a PAGE 11 Table of Cases PAGE Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d sub nom. Faubus v. Aaron, 361 U. S. 197 ................................................................................ 20 Atkins v. School Board of City of Newport News, 148 F. Supp. 430 (E. D. Va. 1957), aff’d 247 F. 2d 325 (4th Cir. 1957) ..................................................... 18 Bailey v. Patterson, 369 U. S. 31, 7 L. ed. 2d 512 (1962) ......................................................................... 20 Beale v. Holcomb, 193 F. 2d 384 (5th Cir. 1951) ....... 17 Borders v. Rippy, 247 F. 2d 268 (5th Cir. 1957) ....... 16, 20 Boson v. Rippy, 275 F. 2d 850 (5th Cir. 1960) ........... 15 Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ............. 10,19 Braxton v. Board of Public Instruction of Duval County, Fla., unreported order of March 1, 1961 (S. D. Fla., No. 4598-Civ-J), mandamus and prohi bition denied, sub nom. Board of Public Instruc tion of Duval County, Fla. v. Hon. Bryan Simpson, 366 U. S. 957, 6 L. ed. 2d 1267, 81 S. Ct. 1944 (1961) 21 Brown v. Board of Education, 347 U. S. 483 (1954) ........................................................... 5,7,9,12,14,22 Brown v. Board of Education, 349 U. S. 294 .......7, 9,11, 22 Burnes v. Scott, 117 U. S. 582, 29 L. ed. 991, 6 S. Ct. 865 (1886)......................................... 22 Bush v. Orleans Parish School Board, 138 F. Supp. 336, 138 F. Supp. 337 (E. D. La. 1956), aff’d 242 F. 2d 156 (5th Cir. 1957) .......................................... 18 Bush v. Orleans Parish School Board, 187 F. Supp. 42, 188 F. Supp. 916 (E. D. La. 1960), aff’d 365 U. S. 569......................................... 20 Bush v. Orleans Parish School Board, 242 F. 2d 156 (5th Cir. 1957) 16 I l l Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956)....... 8,12 City of Newport News v. Atkins, 246 F. 2d 325 (4th Cir. 1957) ................................. .................................. 13 Cleveland v. United States, 323 U. S. 329, 65 S. Ct. 280, 89 L. ed. 274 (1945) .......................................... 19 Cooper v. Aaron, 358 U. S. 1 (1958) ................. 7,11,12, 22 Dodson v. School Board of the City of Charlottes ville, 289 F. 2d 439 (4th Cir. 1961) .......................... 10 Doremus v. Board of Education, 342 U. S. 429, 96 L. ed. 475, 72 S. Ct. 394 (1952).................................. 21 Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ....... 12 Evers v. Dwyer, 358 U. S. 202, 3 L. ed. 2d 222, 79 S. Ct. 178 (1958) ........................................................ 22 Ex parte Bransford, 310 U. S. 354, 84 L. ed. 1249, 60 S. Ct. 947 (1940) ................................................... 18 Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. ed. 990 (1938)......................... .......................................... 19 Farley v. Turner, 281 F. 2d 131 (4th Cir. 1961) ......... 9 Foremost Promotions v. Pabst Brewing Co., 15 F. R. D. 128, 19 F. R. Serv. 26b.31, Case No. 4 (N. D. 111. 1953) ......................................................... 22 German v. South Carolina State Port Authority, 295 F. 2d 491 (4th Cir. 1961) .................................. 18 Gibson v. Board of Public Instruction of Dade County, Florida, 272 F. 2d 763 (5th Cir. 1959) .....8, 9,10, 15, 20 Green v. School Board of the City of Roanoke,------ F. 2 d ------ (4th Cir., No. 8534, May 22, 1962) ....... 10,15 Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E. D. Va. 1961), aff’d 368 U. S. 515, 7 L. ed. 2d 521 (1962) ..................................................................... 20 PAGE IV Hill V. School Board of City of Norfolk, 282 F. 2d 473 (4th Cir. 1960) ........................................................... 10 Idlewild Bon Voyage Liquor Corp. v. Epstein, 30 U. S. L. Week 4599 (June 25, 1962) ........................ 19 Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F. 2d 426 (2nd Cir. 1961) .......................................... 19 James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) 20 Jones v. School Board of the City of Alexandria, Va., 278 F. 2d 72 (4th Cir. 1960) ...................................... 9,15 Lane v. Wilson, 307 U. S. 268 (1939) .......................... 12 Mannings v. Board of Public Instruction, 277 F. 2d 370 (5th Cir. 1960) ....................................8, 9,10,15, 20, 21 Mapp v. Board of Education of the City of Chatta nooga, 295 F. 2d 617 (6th Cir. 1961) ....................... 14 Marsh v. County School Board of Roanoke County, ------ F. 2d ------ (4th Cir., No. 8535, June 12, 1962) .........................................................................10,15,16 NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958), vacated on other grounds, sub nom. Harrison v. NAACP, 360 U. S. 167, 3 L. ed. 2d 1152, 79 S. Ct. 1025 .............................................................................. 21 Northcross v. Board of Education of the City of Memphis, ------ F. 2d ------ (6th Cir., No. 14642, March 23, 1962), cert, denied 30 U. S. Law Week 3398 (June 25, 1962) ..............................................10,15,16 Orleans Parish School Board v. Bush, 242 F. 2d 156 (5th Cir. 1957) ............................................................. 13,14 PAGE Plessy v. Ferguson, 163 U. S. 537 (1896) 11 y R.R. Comm, of Texas v. Pullman Co., 312 U. S. 496, 85 L. ed. 97, 61 S. Ct. 643 (1941) .............................. 12 School Board of the City of Newport News v. Atkins, 246 F. 2d 325 (4th Cir. 1957) .................................... 17 Shuttlesworth v. Birmingham Board of Education, 358 U. S. 101 (1958), aff’g 162 F. Supp. 372 (N. D. Ala. 1958) .....................................................................8, 9,17 Stark v. Brannan, 82 F. Supp. 614 (D. C. Cir. 1949), aff’d 185 F. 2d 871 (D. C. Cir. 1950), aff’d 342 U. S. 451, 96 L. ed. 497, 72 S. Ct. 433 (1952) ........... 22 Stratton v. St. Louis, Southwestern R. Co., 282 U. S. 10, 75 L. ed. 135, 51 S. Ct. 8 (1930) .......................... 18,19 Stuart v. Wilson, 282 F. 2d 539 (5th Cir. 1960) ....... 18 Turner v. Memphis, ------ U. S. ------ , 7 L. ed. 762 (1962) .......................................................................... 20 Wheeler v. Denver, 229 U. S. 342, 57 L. ed. 1219, 33 S. Ct. 842 (1913) ................................................... Wichita Falls Junior College District v. Battle, 204 F. 2d 632 (5th Cir. 1953) .......................................... Young v. Higbee Co., 324 U. S. 204, 89 L. ed. 890, PAGE 65 S. Ct. 594 (1945) ................................................... 22 Federal Statutes Involved Federal Rules of Civil Procedure, Rule 23(a)(3) .... 15 United States Code, Title 28, Section 1331................... 1 United States Code, Title 28, Section 1343(3)............. 1 United States Code, Title 28, Section 2281 ...............17,19, 20 United States Code, Title 42, Section 1981................... 1 United States Code, Title 42, Section 1983 ................... 1 22 17 I n t h e llttttrii States (Emtrt of Appeals F or t h e F i f t h C i r c u i t No. 19,639 W . S. P o t t s , et al., Appellants, —v.— A r l e n e F l a x , et al., Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS BRIEF FOR APPELLEES Statement of the Case An amended complaint was filed in this action on No vember 30, 1959, in the United States District Court for the Northern District of Texas by plaintiffs Weirless Flax, Sr. and Herbert C. Teal on behalf of their minor children (R. 1). The defendants are W. S. Potts, President of the Board of Trustees of the Fort Worth Independent School District, the Trustees, the School District itself as a corporation, its superintendent and the principals of the two schools where plaintiffs’ children were denied admission. Jurisdiction was invoked under 28 U. S. C. §1331 and §1343(3) and 42 U. S. C. §1981 and §1983 (R. 2-3). Based on allegations that the defendants operate the Fort Worth public schools on a dual racial system, plain tiffs seek relief for themselves and all other Negroes simi larly situated against defendants’ policies which require 2 minor plaintiffs to attend racially segregated schools. The defendants on November 19, 1959 filed a Motion to Dismiss and their Answer (R. 16, 21) which, in summary, denied that plaintiffs had been assigned on the basis of race, but had been assigned to schools “designed to best serve their educational needs” (R. 22). In a lengthy “ Additional An swer” (R. 28), defendants maintain that their dual racial system, followed for more than 78 years, “has become a fundamental part of the educational process in Fort Worth” (R. 29) and that a change to an integrated system “ could only lead to confusion, chaos, and a complete breakdown of the public school system . . . ” (R. 29). Moreover, defen dants referred to state statutory provisions which in the event of integration would severely penalize the school sys tem and its personnel (R. 31). Finally, defendants maintain that plaintiffs failed to pursue administrative procedures provided for transfer to any other school, which proce dures established by state statute provide adequate reme dies for the recognition of plaintiffs’ rights (R. 33). Prior to trial on April 3, 1962, defendants took the plain tiffs’ depositions in February 1960 (R. 35), obtained a con tinuance of the trial in May 1961 (R. 41), based on the ill ness of the School Superintendent and filed on November 7, 1961, a motion to assemble a 3-judge court which was refused by the district court (R. 53). The testimony and exhibits introduced at the trial of this case on November 8, 1961 (R. 69), entirely support the finding of the court below that appellant School Board has continued to operate a dual racial system of compulsory public schools in the Fort Worth Independent School District. Succinctly, the public schools in the Fort Worth Inde pendent School District for 78 years have been operated under a dual system requiring Negro pupils to attend schools operated exclusively for Negro pupils and white 3 children to attend schools operated for whites (R. 28-29, 108). This policy remains in effect, and the appellant Board has no plans to change it (R. 109, 111, 232). The dual racial system is a fundamental part of the edu cational process in Fort Worth (R. 29) and, according to school officials, both white and colored teachers are best suited by experience, training and habit to the teaching of children of their respective races (R. 226). Appellant mem bers of the Board of Trustees and the executive personnel of the School District’s administrative staff testified at the trial of their conviction that the dual system, segregated on the basis of racial color and operated under the doctrine of separate but equal teaching and facilities, was the plan best suited to the schools under their jurisdiction (R. 158, 181, 226). This conviction, which the court below found appellants held in good faith (R. 60), was reinforced by a study of the desegregation question made over a period of seven years by the Superintendent and other members of the administrative staff (R. 185). The dual system in the Fort Worth schools is made up of two classes of schools with reference to race. Negro pupils are restricted to Negro schools and white pupils are restricted to schools for whites (R, 107-108). Children are assigned to schools in accordance with a dual set of zone maps based on race (R. 121). The Fort Worth schools serve about 59,062 white pupils and 13,836 Negro children, Negroes comprising about 18.9% of the total (R. 202). During the enrollment period at the beginning of the 1959 Fall Term, Weirless Flax, an Air Force Sergeant (R. 74) and a Negro (R. 72), presented his 6 year old daughter, Arlene, for admission to the Burton-Hill Elementary School (R. 73), which school is restricted entirely to white pupils (R. 221-222). The Principal of that school said he had in structions from the school board not to enroll Negro chil 4 dren in the school, and refused to permit the Flax child to enroll there (R. 74). She was required to enroll in the Como Elementary School (R. 75), which school is restricted entirely to Negro children (R. 100). Appellee Flax lives in an apartment building on the Carswell Air Force Base (R. 71) 1% miles from the Burton- Hill School (R. 126) and about 5 miles from the Como School (R. 127). White children living in the same apart ment building on the Carswell Air Force Base as the Flax child who were presented for enrollment at the Burton- Hill School under similar conditions and during the same period in which Arlene Flax was rejected, were accepted (R. 81). In similar fashion, appellee Herbert C. Teal, a Negro resident of Texas (R. 87), presented his six children during the enrollment period at the beginning of the 1959 Fall Term for enrollment in the Peter Smith Elementary School located only 7 blocks from his home (R. 87, 91), which school is limited to white children (R. 99, 100). The Princi pal of that school, acting under instructions of his superiors, refused to admit the Teal children because they were Ne groes (R. 90), and they were required to enroll in the all- Negro George Washington Carver Elementary School (R. 99, 100), located in another geographical school area two miles further from their home than the Peter Smith School (R. 92). Previously, appellee Teal had attempted to regis ter his children in the Peter Smith School at the beginning of the terms in 1956 (R. 87) and 1957 (R. 89, 98), but was refused on both occasions. On these facts, appellees brought this suit without making an effort either to follow the transfer procedure adopted by the Board in 1948 (R. 129-131), or to use the administrative remedies set forth in Article 2901a, Texas Civil Statutes, the provisions of which law are set forth in the appendix 5 to appellees’ brief. Boai-d officials admit that unless the Boai’d abandons the dual system policy, they will have no authoi'ity to grant such transfer requests (B. 135, 136). Both appellees testified that they sought and obtained aid from the NAACP in bi’inging this suit (R. 78, 96), and not withstanding some confusion on the part of one of the parents (R. 101), the court below found that allegations in the complaint were sufficient to properly designate the suit as a class action (R. 58). The appellant Potts, President of the Board of Educa tion, stated as his belief that the dual system is “ for the best interest of all the children” (R. 148), and thinks that both the Board members and 95% of the people are in accord with this view (R. 148, 167). To suppoi’t this posi tion, the Board President quoted figures intended to show the progress Negro pupils have made in the system since 1955 when they were 2.04 years behind the average white child by the time they reached the sixth grade (R. 151). By 1960, after the Board equalized Negro teachers’ salaries and standards (R. 194, 200) and improved Negro school facilities (R. 195-200), Negro children were 1.40 years be hind the white children in the sixth grade (R. 201). The Board President stated as his contention that the Brown case does not mean that the dual system can no longer be maintained in the schools (R. 154). He said that the Board was defending this suit aimed at abolishing the dual system because Texas law (Article 2900a, Texas Civil Statutes) requires it and voluntary desegregation would mean a loss of the state appropriation, would subject the school officials to fines and imprisonment and would cost the school system its accreditation (R. 145-146). He ad mitted, however, that the Board has made no effort in the state coui't to determine the validity of the Texas law (R. 6 160), and lias not sought an opinion from the State Attorney General on its validity (R. 184). Because the Board feels that segregated schools are best for their system, in part, because “ Negro teachers are far better able to teach Negro pupils and white teachers better able to teach white pupils” (R. 158), the Board has taken no action on any desegregation plan (R. 232). At the conclusion of the trial, the court below entered appropriate findings of fact (R. 58-64), and concluded that the dual system for white and colored students in the Fort Worth public schools violates the rights of the minor plain tiffs and all eligible Negro pupils (R. 65). The court found, moreover, that the biracial policy was so firmly fixed and maintained with so much conviction that “ there is no rea sonable probability within the foreseeable future of a vol untary change” in the segregation policy (R. 61). For this reason, the trial court concluded that it would have been futile for the plaintiffs to exhaust the administrative pro cedures under Article 2901a of the Texas Civil Statutes. And since these procedures were not required of white children similarly qualified, the trial court found that pro cedures are in themselves a violation of the constitutional rights of plaintiffs and the class they represent (R. 65). The trial court also found that Article 2901a, when construed in connection with Article 2900a, Texas Civil Statutes, if not invalid on its face, does, as applied by the Fort Worth School Board, violate the Federal Constitution (R. 65-66). Finally, the court on December 14, 1961, ordered the appellants to submit within 30 days after the judgment became final “a plan for effectuating with all deliberate speed a transition to a racially nondiscriminatory school system beginning with the 1962 Fall School Term”, and retained jurisdiction during such period of transition to insure compliance (R. 66). 7 Defendants filed a motion for new trial on December 22, 1961 (R. 254), in which objections were raised to the judg ment, the findings of fact, and the court below’s failure to require plaintiffs both to exhaust their administrative reme dies, and obtain from the state courts a determination of the constitutionality of the Texas law. The trial court denied this motion on March 1, 1962 (R. 268), and on the same date issued an opinion setting forth the basis for his judgment in this case (R. 268). From this judgment, appellants appeal to this Court (R. 294). A R G U M E N T I Appellees were not required to exhaust the adminis trative remedy provided by either Texas Law or School Board Regulations prior to invoking the jurisdiction of the court below. Appellees, Negro citizens of the United States and residents of Fort Worth, Texas, brought this suit on be half of their children, and all members of the class simi larly situated, to enjoin compulsory racial segregation in public schools under the jurisdiction of the Fort Worth Independent School District, and to secure compliance with the Supreme Court’s decisions holding such segregation unconstitutional. Brown v. Board of Education, 347 U. S. 483 (1954), 349 U. S. 294 (1955); Cooper v. Aaron, 358 U. S. 1 (1958). The appellants, notwithstanding deep convictions con cerning the superiority of their dual school system, from which statements the court below concluded “ that there is no reasonable probability within the foreseeable future 8 of a voluntary change in the defendant’s policy as to racial segregation” (R. 61), nevertheless strongly contend in specification of errors 1, 2, 3, 4, and 11 (appellants’ brief, pp. 2-4) that the court below should not have en tered its order without requiring appellees to exhaust their administrative remedies. It is appellants’ contention that because the complaint does not allege that plaintiffs have sought individual re assignments to particular schools by fully pursuing the administrative procedures provided by the Fort Worth Independent School District, or those provided by the Texas pupil assignment law (Section 7, Article 2901a, Vernon’s Annotated Civil Statutes), the plaintiffs are not entitled to any relief in this action. In support of this argument defendants rely principally upon Shuttlesworth v. Birmingham Board of Education, 358 U. S. 101 (1958), affirming on “ limited grounds” 162 F. Supp. 373, 384 (N. D. Ala. 1958), and the decision by the Court of Appeals for the Fourth Circuit in Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956). It is submitted that the appellants’ argument is clearly without merit, and has been plainly rejected by this Court in cases decided subsequent to those mentioned above. Mannings v. Board of Public Instruction, 277 F. 2d 370 (5th Cir. 1960); Gibson v. Board of Public Instruction, 272 F. 2d 763 (5th Cir. 1959). In the Mannings case the Court stated the issue presented in the following manner (277 F. 2d at 372): . . . Are the plaintiffs, in a class action in a school segregation case, denied the right to have the trial court enjoin a local board of education from con tinuing to operate the local school system on a racially segregated basis, solely because the individual plain 9 tiffs have not exhausted administrative remedies made available to them to seek admission to certain desig nated schools? The Court decided the issue against the school board in that case, concluding (277 F. 2d at 373): Thus it is clear that the plaintiffs were not deprived of their right to litigate over the basic question of desegregation of the public school system, because of their failure to apply for entry into specified schools. The Court went on to observe that the plaintiffs were entitled to “ the protection of a court order making certain that the factor of race would not be a consideration in the solution of [the] . . . many intangible tests” of the pupil assignment law if they could sustain the allegations of the complaint (277 F. 2d at 375). The decision in the Shuttlesivorth case, supra, does not support the argument that the existence of the pupil as signment law is in itself a plan of desegregation or a “ reasonable start toward full compliance” with the Su preme Court’s decisions in Brown v. Board of Education, 347 U. S. 483 (1954); 349 U. S. 294 (1955). The author of that opinion (Judge Rives) made this plain in Gibson v. Board of Public Instruction, 272 F. 2d 763, 766 (5th Cir. 1959). Subsequent to Mannings, the Fourth Circuit specifically expressed its agreement with that decision, Farley v. Turner, 281 F. 2d 131, 132 (4th Cir. 1961); and has fre quently indicated its disposition to appraise the validity of a school system’s general procedures for the assignment of pupils as distinct from the problems related to the as signment of particular plaintiffs. Jones v. School Board of the City of Alexandria, 278 F. 2d 72, 76-77 (4th Cir. 10 1960); Hill v. School Board of the City of Norfolk, 282 F. 2d 473 (4th Cir. 1960); Dodson v. School Board of City of Charlottesville, 289 F. 2d 439 (4th Cir. 1961). Recently, the Fourth Circuit has apparently drawn even closer to Mannings and Gibson. In Marsh v. County School Board of Roanoke County, ------ F. 2d ------ (4th Cir., No. 8535, June 12, 1962), the Court said: Because the initial school assignments are made on a racial basis, full compliance by the plaintiffs with the transfer procedures cannot repair the discrimina tions to which they have been and are subjected. In view of the initial assignment system, the administra tive procedures for transfer are, for the most part, applied to Negroes seeking a desegregated education and not to whites similarly situated. To insist, as a prerequisite to granting relief against discriminatory practices, that the plaintiffs first pass through the very procedures that are discriminatory would be to require an exercise in futility. See also, Green v. School Board of the City of Roanoke, ------F. 2 d ------- (4th Cir., No. 8534, May 22, 1962). The Sixth Circuit in Northcross v. Board of Education of City of Memphis,------ F. 2 d -------- (6th Cir., No. 14642, March 23,1962) cert, denied 30 U. S. Law Week 3398 (June 25, 1962), saying that the Tennessee pupil assignment law “ might serve some purpose in the administration of a school system but it will not serve as a plan to convert a biracial system into a nonracial one” , did not require the exhaustion of administrative procedures provided by the act prior to reversing a lower court’s refusal to grant injunctive relief to restrain the operation of a biracial school system. In Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960), this Court had prior occasion to review a Texas case involving 11 the adequacy and validity of plans for desegregation of a school system without reference to the applications of indi vidual plaintiffs for admission to named schools. The Court indicated its familiarity with the statute relied upon by appellants (discussing it in another connection at 285 F. 2d 43, 48-50), but nevertheless proceeded to require that a desegregation plan be implemented in Dallas, Texas. Under the principles set forth in Brown v. Board of Education, 349 U. S. 294 (1955) and Cooper v. Aaron, 358 U. S. 1 (1958), it is the duty of the courts in school desegre gation cases to require local school authorities who are maintaining segregation to develop arrangements for elimi nating segregation as soon as practicable, and to require them to “ devote every effort toward initiating desegrega tion and bringing about the elimination of racial discrimina tion . . . ” (358 U. S. at 7). Clearly, these rules should apply with special force here where appellants have not abandoned their dual school system, and indeed contend that such policy may be in definitely maintained without violating the constitutional rights of appellees. The School Board asserts in Specification of Error No. 9 that it does not rely on the separate-but-equal doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), and objects to the trial court’s statement that (R. 283): They attempted to justify their dual system under the separate-but-equal doctrine formerly recognized by Plessy v. Ferguson, 163 U. S. 537, as if it had never been rejected by the Brown case. Even if we accept the Board’s statement that the evi dence concerning school construction for Negro and white schools and equal salaries for Negro and white teachers 12 and other evidence of like character was offered to show “upgrading [of] the quality of education of students, both white and colored” (Appellants’ Brief p. 34), this affords no ground for reversing the trial court’s judgment. Defen dants are admittedly continuing the segregated dual system. Under Brown v. Board of Education, 347 U. S. 483 (1954), and Cooper v. Aaron, 358 U. S. 1 (1958), this is inde fensible. The Board argues that the district court should have stayed the proceedings pending state court determination of applicable state law issues, presumably referring to the Pupil Assignment Law (Appellants’ Brief pp. 18-19). The argument is really that the plaintiffs should be required to exhaust both the administrative remedies under the statute and the state judicial remedies {Ibid.). However, it is settled that exhaustion of state judicial remedies is not a prerequisite to the grant of injunctive relief by fed eral courts in school segregation cases. Carson v. Warticle, 238 F. 2d 724, 729 (4th Cir. 1956); Lane v. Wilson, 307 U. S. 268 (1939); Dove v. Parham, 282 F. 2d 256, 262 (8th Cir. 1960). The School Board’s reliance upon R.R. Comm, of Texas v. Pullman Co., 312 U. S. 496, 85 L. ed. 97, 61 S. Ct. 643 (1941), is plainly misplaced for this case does not call for the interpretation of any state statute, for an injunc tion against an ambiguous state law, or for any preliminary guess as to the applicable state law. As indicated above, the principal issue before the court was factual, namely, whether the School Board continued to maintain a system of assigning pupils to schools on the basis of race in dis regard of Brown v. Board of Education, supra. Finally, defendants contend in specification of error No. 11 (Appellants’ Brief, p. 35) that there was no basis for the trial court’s finding that the school authorities would not voluntarily abandon their dual school policy (R. 60- 13 61), and that therefore exhaustion of the administrative procedures was futile (R. 64). But based on the testimony of appellant school officials, particularly the Chairman of the Board, the trial court could have reached no other con clusion. The Board, the Chairman testified (R. 158), defends against this suit to abolish the dual system on two main grounds: (1) Texas law requires such defense and penalizes voluntary abandonment of the dual system by subjecting school personnel to fines and imprisonment, and depriving the school system of its accreditation; (2) it is the honest conviction of the Board that the dual system will provide the best education for both Negro and white pupils. On such testimony the court below reasoned that exhaustion of the administrative procedures could provide no adequate remedy to appellees because of the fixed and definite policy of the school authorities with respect to segregation and because the provisions of Article 2900a, Texas Revised Civil Statutes provide severe penalties upon any voluntary departure from the dual policy. The court compared the situation in this case with that in Virginia where the Fourth Circuit reached a similar conclusion in City of New port News v. Atkins, 246 F. 2d 325, 326 (4th Cir. 1957). Moreover, even if the appellants were to change their fixed policy and ignore Article 2900a upon reviewing ap pellees’ individual transfer applications, even the granting of such transfer requests could not provide appellees with their requested relief, i.e., reorganization of the dual sys tem on a unitary basis, since the pupil assignment pro cedures are limited to the consideration of individual pupil transfer requests. Orleans Parish School Board v. Bush, 242 F. 2d 156, 162 (5th Cir. 1957). 14 II The Court granted appropriate relief for plaintiffs and others similarly situated in ordering the defendants to submit a plan of desegregation for the Fort Worth school system. In Specification of Errors Nos. 5 and 7 defendants argue that the court erred by ordering that “ every7 colored child in Fort Worth should be permitted to enter any white school of his choice” , and in considering the case as a class action (Appellants’ Brief p. 29). Appellees submit that the order of the court below was plainly proper. The order merely required that the defen dants submit to the court a plan of desegregation consis tent with the Brown decision. The defendants’ description of the judgment is plainly fanciful, as a simple reading of the judgment will demonstrate (R. 251-253). The record conclusively demonstrates that the Fort Worth school system is operated on a completely racially segregated basis. The School Board has never denied this. No “good faith” belief of school officials that maintenance of the dual system is in “ the best interest of all the chil dren” (R. 148) is a defense to plaintiffs’ claim for relief. The Supreme Court has held that “ in the field of public education the doctrine of ‘separate-but-equal’ has no place.” Brown v. Board of Education, 347 U. S. 483, 495. This Court has faithfully followed Brown from the start. Orleans Parish School Board v. Bush, 242 F. 2d 156 (5th Cir. 1957). The School Board has not complied with Brown by merely making a study of desegregation problems, Mapp v. Board of Education of the City of Chattanooga, 295 F. 2d 617 (6th Cir. 1961), nor does the existence of a pupil assign 15 ment law, without more, constitute a desegregation plan. Gibson v. Board of Public Instruction, 272 F. 2d 763, 766 (5th Cir. 1959). The practice of assigning pupils to schools on the basis of separate Negro and white school zones has been repeatedly and unequivocally condemned as uncon stitutional. Jones v. School Board of the City of Alexan dria, Va., 278 F. 2d 72 (4th Cir. 1960); Marsh v. County School Board of Roanoke County, Va.,------ F. 2d ------- (4th Cir. No. 8535, June 12, 1962); Green v. School Board of City of Roanoke, Va.,------ F. 2 d ------ (4th Cir. No. 8534, May 22,1962); Northcross v. Board of Education of City of Memphis,------F. 2 d -------- (6th Cir. No. 14,642, March 23, 1962), cert, denied 30 U. S. Law Week 3398 (June 25, 1962). Thus, there can be no doubt that in view of the Board’s failure to discontinue the dual system based on race, the order of the court below is appropriate. Boson v. Rippy, 275 F. 2d 850, 853 (5th Cir. 1960); Gibson v. Board of Public Instruction, supra; Mannings v. Board of Picblic Instruction, supra. The opinion of the court below adequately deals with the defendants’ objection to treating the case as a class action, including the argument with reference to one of the par ents’ testimony that he was bringing the suit only for his own children. See the opinion below (R. 275-281). The procedural aspects of the class action issue pose no difficulty, for it is really the substantive issue as to what relief may be granted that is really in dispute. The case comes within Rule 23(a)(3), Federal Rules of Civil Pro cedure, in that it involves a numerous class of persons (all Negro pupils in the system); it is obviously impracticable to bring them all before the court; and they are represented by “ one or more members of the class.” The case involves “ several” rights with common questions of law and fact and a request for a common relief for all members of the 16 class, namely, an injunction against the system of segre gation. The court below found that: The case was fairly and aggressively prosecuted. There was no indication that the plaintiffs were at tempting to make a collusive sacrifice of the right of other Negro school children. What in reality would a mere direct statement by Flax that he was prose cuting the suit for all the Negro children in the Fort Worth school district have added to this record[?] The type of action brought by the plaintiffs, ordi nary pleadings and the evidence as a whole, justify the court in determining in his discretion that the case should be treated as a class action. Even if that deci sion were incorrect, the defendants suffered no injury, in view of the nature of relief to which plaintiffs were entitled and the type of judgment entered (R. 280- 281). It is well known that numerous school segregation cases like this one have been litigated as class actions under Rule 23(a)(3). See Bush v. Orleans Parish School Board, 242 F. 2d 156, 165 (5th Cir. 1957); Borders v. Rippy, 247 F. 2d 268 (5th Cir. 1957); Northcross v. Board of Educa tion of City of Memphis, supra; Marsh v. County School Board of Roanoke County, V a.,------ F. 2 d -------- (4th Cir. No. 8535, June 12, 1962). 17 111 The District Court properly declined to convene a three-judge Court under 28 United States Code Section 2281. The appellant School Board’s claim that the district judge erred in refusing to convene a three-judge court is not supported by any citation of authority. The Board merely asserts that the judgment “ effectively held the Texas Statutes, Article 2900a and Article 2901a . . . [and the local School Board’s transfer rules] to be invalid” (Appellants’ Brief p. 26, Specification of Error No. 6). The District Court stated four grounds for its refusal to convene a three-judge court, none of which has been answered in appellants’ brief (R. 273-274). The Court held that no three-judge court was required in that: 1. There was no request for an injunction enjoining Articles 2900a and 2901a, relying upon School Board of the City of Newport News v. Atkins, 246 F. 2d 325, 327 (4th Cir. 1957). 2. The complaint sought relief against a school board’s policy of racial discrimination and this presented merely a factual issue—thus three judges were not required even though the policy originated in a state law, relying on Beale v. Holcomb, 193 F. 2d 384 (5th Cir. 1951), and Wichita Falls Junior College District v. Battle, 204 F. 2d 632 (5th Cir. 1953). 3. The unconstitutional application of the laws made it unnecessary to pass on the validity of the laws themselves, see Shuttlesworth v. Birmingham Board of Education, 162 F. Supp. 372 (N. 1). Ala. 1958), aff’d 358 U. S. 101 (1958), 18 and Ex parte Bransford, 310 U. S. 354, 84 L. ed. 1249, 60 S. Ct. 947 (1940). 4. Even if the validity of Articles 2900a and 2901a is necessarily before the court, three judges were not neces sary because the laws are patently and manifestly uncon stitutional, citing Atkins v. School Board of City of Newport News, 148 F. Supp. 430 (E. D. Va. 1957), aff’d 247 F. 2d 325 (4th Cir. 1957), and Bush v. Orleans Parish School Board, 138 F. Supp. 336; 138 F. Supp. 337 (E. D. La. 1956), aff’d 242 F. 2d 156 (5th Cir. 1957). Initially, it must be observed that the School Board has not pursued the correct remedy to challenge the district judge’s refusal to convene a court of three judges. The Board’s remedy, if any, is by application for a writ of mandamus, rather than by an appeal, as the Supreme Court plainly held in Stratton v. St. Louis, Southwestern R. Co., 282 U. S. 10, 15-16, 75 L. ed. 135, 51 S. Ct. 8 (1930). The Court held in Stratton that if a single district judge im properly granted an injunction where three judges should have been convened, no appeal would lie either to the Supreme Court or to the Court of Appeals, and that the only remedy was an application for a writ of mandamus. The Stratton case apparently has continued vitality despite the reluctance of appeals courts to apply it strictly.1 See 1 Various appeals court decisions sustaining appellate jurisdiction on the three-judge court issue, where district judges have dismissed complaints on the ground of lack of a substantiality of the federal question, are at least formally distinguishable. Such decisions in clude this Court’s opinion in Stuart v. Wilson, 282 F. 2d 539 (5th Cir. 1960), and other cases collected in German v. South Carolina State Port Authority, 295 F. 2d 491, 493-494 (4th Cir. 1961). Those cases, unlike the instant case, did not involve attempting appellate review of single judge opinions granting injunctive relief or refus ing relief on grounds other than lack of substantiality of the con stitutional question. 19 Idlewild Bon Voyage Liquor Cory. v. Rohan, 289 F. 2d 426, 429 (2nd Cir. 1961), where the court dismissed an appeal for lack of jurisdiction, though stating a strong view that three judges should have been convened. When the District Court again refused to call three judges, the Supreme Court reviewed the case and held that the District Court should have done so. The Supreme Court implicitly approved the Second Circuit’s determination that it lacked jurisdiction to reverse the refusal to convene three judges, though it observed that Stratton did not deprive circuit courts of all power to guide district courts in such matters. Idlewild Bon Voyage Liquor Gory. v. Eystein, 30 U. S. L. Week 4599 (June 25, 1962). Assuming arguendo that this Court has jurisdiction to review appellants’ contentions, they are, nevertheless, with out merit. That there would be no need for a three- judge court to invalidate the local School Board’s trans fer rules is plain since §2281 applies only to statewide laws of general applicability and does not even include municipal ordinances or state laws having only local ap plication. Ex yarte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. ed. 990 (1938); Cleveland v. United States, 323 U. S. 329, 332, 65 S. Ct. 280, 89 L. ed. 274 (1945). Actually, the court below merely held the transfer procedures were an inadequate remedy in light of the dual system of schools based on race. The District Court’s conclusion that Article 2900a presents no substantial federal question is plainly correct under prior decisions of this Court. This law7, which for bids school authorities to desegregate schools unless the electors of a district authorize it in an election, has been repeatedly disregarded by this Court in cases similar to this. See Boson v. Riyyy, 285 F. 2d 43, 45, note 11 (5th Cir. 1960) and cases collected therein. Indeed, the appel 20 lants attempt no real defense of this law in their brief. The Board apparently acknowledges that Article 2900a affords it no defense (see appellants’ brief, pp. 23-24). The Supreme Court recently stated that §2281 does not require a three-judge court when “ prior decisions make frivolous any claim that a state statute on its face is not unconstitutional.” Bailey v. Patterson, 369 U. S. 31, 7 L. ed. 2d 512, 514 (1962). See also, Turner v. Memphis, ------ U. S .------ , 7 L. ed. 2d 762 (1962). Any claim that Article 2900a can validly relieve the school authorities’ obligation to desegregate public schools or prevent court enforcement of this duty, is frivolous in light of Borders v. Rippy, supra, and the other cases cited therein. Indeed, laws of this genre have been uniformly held invalid. See James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959); Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959), aff’d sub nom. Faubus v. Aaron, 361 U. S. 197; Bush v. Orleans Parish School Board, 187 F. Supp. 42, 188 F. Supp. 916 (E. D. La. 1960), aff’d 365 U. S. 569; Hall v. St, Helena Parish School Board, 197 F. Supp. 649 (E. D. La. 1961), aff’d 368 U. S. 515, 7 L. ed. 2d 521 (1962). The argument that a three-judge court is required be cause the defendants have invoked the Texas Pupil As signment Law (Article 2901a) is equally insubstantial. This Court’s decisions in Mannings v. Board of Public Instruction, 277 F. 2d 370 (5th Cir. 1960), and Gibson v. Board of Public Instruction, 272 F. 2d 763 (5th Cir. 1959), make it plain that the discriminatory administration of a Pupil Assignment Law, such as the making of initial assignments on the basis of race under a segregated dual- racial system, can justify an injunction against the segre gated system irrespective of the apparent validity of an assignment law on its face. Any lingering doubts as to 21 the validity of this position were resolved by the United States Supreme Court in June 1961, when it rejected an argument which attacked the Mannings doctrine and was similar to that made by the Board here. See Braxton v. Board of Public Instruction of Duval County, Fla., un reported order of March 1, 1961, refusing a three-judge court (S. D. Fla., No. 4598-Civ-J), mandamus and prohibi tion denied, sub nom. Board of Public Instruction of Duval County, Fla. v. Hon. Bryan Simpson, 366 U. S. 957, 6 L. ed. 2d 1267, 81 S. Ct. 1944 (1961). IV Neither the plaintiffs’ motives in bringing the suit or the fact that others are aiding plaintiffs in the expenses of litigation are relevant. The Board’s argument in connection with Specification of Error No. 8 consists almost entirely of excerpts from the transcript relating to one of the plaintiffs’ statements that he received aid in the present lawsuit from the National Association for the Advancement of Colored People.2 The Board has made no argument and cited no cases to estab lish the relevance of this testimony to the merits of the case. It has been repeatedly held that a litigant’s motives in bringing an action to protect his rights are irrelevant if the facts bring him within the jurisdiction of the court. Doremus v. Board of Education, 342 U. S. 429, 434, 435, 2 For a judicial description of the activities of the N. A . A . C. P. and the N. A . A. C. P. Legal Defense & Educational Fund, Inc., see Judge Soper's opinion in N. A. A. C. P. v. Patty, 159 F. Supp. 503 (E. D. Va. 1958), vacated on ground of equitable abstention sub nom. Harrison v. N. A. A. C. P., 360 U. S. 167, 3 L. ed. 2d 1152, 79 S. Ct. 1025. 22 96 L. ed. 475, 72 S. Ct. 394 (1952); Young v. Higbee Co., 324 U. S. 204, 214, 89 L. ed. 890, 65 S. Ct. 594 (1945); Wheeler v. Denver, 229 U. S. 342, 351, 57 L. ed. 1219, 33 S. Ct. 842 (1913); Evers v. Dwyer, 358 U. S. 202, 204, 3 L. ed. 2d 222, 79 S. Ct. 178 (1958). The fact that others may pay the expenses of litigation does not impair a party’s standing, Wheeler v. Denver, supra, nor would even a claim of champerty be relevant or an available defense on the merits, Burnes v. Scott, 117 U. S. 582, 589-591, 29 L. ed. 991, 6 S. Ct. 865 (1886); Stark v. Brannan, 82 F. Supp. 614, 616, 617 (D. C. Cir. 1949), aff’d 185 F. 2d 871, 873 (D. C. Cir. 1950), aff’d 342 U. S. 451, 96 L. ed. 497, 72 S. Ct. 433 (1952); Foremost Promotions v. Pabst Brewing Co., 15 F. R. D. 128, 130, 19 F. R. Serv. 26b.31, Case No. 4 (N. D. 111. 1953). None of the matters argued by the School Board in this connection afford any defense for the Board’s failure to meet its constitutional obligations to bring about the elimi nation of racial segregation in the school system under Brown v. Board of Education, 347 U. S. 483 (1954); 349 U. S. 294 (1955); and Cooper v. Aaron, 358 U. S. 1 (1958). 23 CONCLUSION W herefore, for the foregoing reasons, appellees respect fully submit that the judgment of the district court should be affirmed. Respectfully submitted, L. Clifford Davis 403 East 9th Street Fort Worth, Texas W. J. Durham Universal Life Building 2600 Flora Street P. 0. Box 641 Dallas, Texas Jack Greenberg James M. Nabrit, III D errick A. B ell, Jr. 10 Columbus Circle New York 19, New York Attorneys for Appellees la A P P E N D I X Transfer and Placement of Pupils to Schools Within an Outside District, Transfer of Funds and Teachers Article 2901a Vernon’s Texas Civil Statutes (Approved May 23,1957) Section 1. The Legislature finds and declares that the rapidly increasing demands upon the public economy for the continuance of education as a public function and the efficient maintenance and public support of the public school system require, among other tilings, consideration of a more flexible and selective procedure for the establishment of units, facilities and curricula and as to the qualification and assignment of pupils. The Legislature also recognizes the necessity for a pro cedure for the analysis of the qualifications, motivations, aptitudes and characteristics of the individual pupils for the purpose of placement, both as a function of efficiency in the educational process and to assure the maintenance of order and good will indispensable to the willingness of its citizens and taxpayers to continue an educational system as a public function, and also as a vital function of the sovereignty and police power of the State. Section 2. To the ends aforesaid, the State Board of Education shall make continuing studies as a basis for general reconsideration of the efficiency of the educational system in promoting the progress of pupils in accordance with their capacity and to adapt the curriculum to such capacity and otherwise conform the system of public educa tion to social order and good will. Pending further studies 2a and recommendations by the school authorities the Legisla ture considers that any general or arbitrary reallocation of pupils heretofore entered in the public school system according to any rigid rule of proximity of residence or in accordance solely with request on behalf of the pupil would be disruptive to orderly administration, tend to invite or induce disorganization and impose an excessive burden on the available resources and teaching and administrative personnel of the schools. Section 3. Pending further studies and legislation to give effect to the policy declared by this Act, the respective district and county Boards of School Trustees hereinafter referred to as “ Local Boards,” are not required to make any general reallocation of pupils heretofore entered in the public school system and shall have no authority to make or administer any general or blanket order to that end from any source whatever, or to give effect to any order which shall purport to or in effect require transfer or initial or subsequent placement of any individual or group in any unit or facility without a finding by the Local Board or authority designated by it that such transfer or placement is as to each individual pupil consistent with the test of the public and educational policy governing the admission and place ment of pupils in the public school system prescribed by this Act. Section 4. Subject to appeal in the respect herein pro vided, each Local Board of School Trustees shall have full and final authority and responsibility for the assignment, transfer and continuance of all pupils among and within the public schools within its jurisdiction, and may prescribe rules and regulations pertaining to those functions. Subject to review by the Board as provided herein, the Board may exercise this responsibility directly or may delegate its authority to the Superintendent or other person or persons 3a employed by the Board. In the assignment, transfer or continuance of pupils among and within the schools, or within the classroom and other facilities thereof, the fol lowing factors and the effect or results thereof shall be considered, with respect to the individual pupil, as well as other relevant matters: Available room and teaching capac ity in the various schools; the availability of transportation facilities; the effect of the admission of new pupils upon established or proposed academic program; the suitability of established curricula for particular pupils; the adequacy of the pupil's academic preparation for admission to a particular school and curriculum; the scholastic aptitude and relative intelligence or mental energy or ability of the pupil; the psychological qualification of the pupil for the type of teaching and associations involved; the effect of admission of the pupil upon the academic progress of other students in a particular school or facility thereof; the effect of admission upon prevailing academic standards at a par ticular school; the psychological effect upon the pupil of attendance at a particular school; the possibility or threat of friction or disorder among pupils or others; the possi bility of breaches of the peace or ill will or economic retalia tion within the community; the home environment of the pupil; the maintenance or severance of established social and psychological relationships with other pupils and with teachers; the choice and interests of the pupil; the morals, conduct, health and personal standards of the pupil; the request or consent of parents or guardians and the reasons assigned therefor. In considering the factors and the effect or results thereof the Board or its agents shall not consider and shall not use as an element of its evaluation any matter relating to the national origin of the pupil or the pupil’s ancestral language. Local Boards may require the assignment of pupils to any or all schools within their jurisdiction on the basis of 4a sex, but assignments of pupils of the same sex among schools reserved for that sex shall be made in the light of the other factors herein set forth. Section 5. Local Boards may, by mutual agreement, pro vide for the admission to any school of pupils residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one Board to another for or on account of such attendance. Section 6. Subject to the provisions of law governing the tenure of teachers, Local Boards shall have authority to assign and reassign or transfer all teachers in schools within their jurisdiction. Section 7. A parent or guardian of a pupil may file in writing with the Local Board objections to the assignment of the pupil to a particular school, or may request by peti tion in writing assignment or transfer to a designated school or to another school to be designated by the Board. Unless a hearing is requested, the Board shall act upon the same within thirty (30) days, stating its conclusion. If a hearing is requested the same shall be held beginning within thirty (30) days from receipt by the Board of the objection or petition, at a time and place within the school district designated by the Board. The Board must conduct such hearing and such hearing shall be final on behalf of the Board. In addition to hearing such evidence relevant to the individual pupil as may be presented on behalf of the petitioner, the Board shall be authorized to conduct in vestigations as to any objection or request, including ex amination of the pupil or pupils involved, and may employ such agents and others, professional and otherwise, as it may deem necessary for the purpose of such investigations and examinations. 5a Section 8. Any other provisions of law notwithstanding, no child shall be compelled to attend any school in which the races are commingled when a written objection of the parent or guardian has been filed with the Board, if such be the decision of the Local Board. If in connection there with a requested assignment or transfer is refused by the Board, the parent or guardian may notify the Board in writing that he is unwilling for the pupil to remain in the school to which assigned, and the assignment and further attendance of the pupil shall thereupon terminate; and such child shall be entitled to such aid for education as may be authorized by law. Section 9. The action of the Board shall be final except that in the event that the pupil or the parent or guardian, if any, of any minor or, if none, of the custodian of any such minor shall, as next friend, file exception before such Board to the final action of the Board as constituting a denial of any right of such minor guaranteed under the Constitution of the United States, and the Board shall not, within fifteen (15) days reconsider its final action, an ap peal may be taken from the final action of the Board, on that ground alone, to the District Court of the county in which the School Board is located by filing with the Clerk within thirty (30) days from the date of the Board’s final decision a petition stating the facts relevant to such pupil as bearing on the alleged denial of his rights under the Constitution, accompanied by bond with sureties ap proved by the Clerk, conditioned to pay all costs of appeal if the same shall not be sustained. Section 9A. Nothing in this Act shall affect any action heretofore taken by any school district in this State covering the subject matter of this Act. Section 10. The provisions of this Act are severable, and if any section or provision of this Act shall be held 6a to be in violation of the Constitution of Texas or of the United States, such decision shall not affect the validity or enforceability of the remainder of this Act. Separate Schools Article 2900a Vernon’s Texas Civil Statutes (Approved May 23, 1957) Section 1. That no board of trustees nor any other school authority shall have the right to abolish the dual public school system nor to abolish arrangements for trans fer out of the district for students of any minority race, unless by a prior vote of the qualified electors residing in such district the dual school system therein is abolished. Section 2. An election for such purposes shall be called only upon a petition signed by at least twenty per cent (20%) of the qualified electors residing in such district. Such petition shall be presented to such office or board now authorized to call school elections. Such an election may be set for the same date as the school trustee elec tion in that district, if such petition is filed within ninety (90) days to such date, otherwise the official or board shall call such an election within sixty (60) days after filing of such petition. The election shall be conducted in a manner similar to that for the election of school trustees. No subsequent election on such issues shall be called within two (2) years of a prior election held hereunder. Section 3. School districts which maintained integrated schools for the 1956-1957 school year shall be permitted to continue doing so hereafter unless such system is abolished in accordance with the provisions of this Act. 7a No student shall be denied transfer from one school to another because of race or color. Section 4. Any school district wherein the board of trustees shall violate any of the above provisions shall be ineligible for accreditation and ineligible to receive any Foundation Program Funds during the period of time of such violation. Any person who violates any provision hereof shall be guilty of a misdemeanor and shall be fined not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000).