Correspondence from Lani Guinier to Clerk (Middle District of Alabama District Court) Re: Wilder v. Lambert

    BRIEF OF APPELLANTS

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9286

Avis M. Pettaway, et al, 
Appellants,

vs.

County School Board of Surry 
County, Virginia, et al, 

Appellees.

S. W. T u c k e r

H e n r y  L. M a r s h , III

214 East Clay Street 
Richmond 19, Virginia

Attorneys for Appellants

The Press of Lawyers Printing Company, Incorporated, Richmond 7, Virginia



STATEM EN T OF T H E  C A S E .....................................  1

STATEM EN T OF TH E  F A C T S ................................. 2

TH E QLESIONS IN V O L V E D .....................................  8

ARGUM ENT ........................................................   9

I. The State Is Involved In The Establishment And 
Maintenance Of The Foundation School........................  9

II. The Local Boards And Their Members Caused 
Surry School To Be Closed To Prevent Its Being At­
tended By Children O f Both Races..... ........................... 14

III. Both The Closing O f Surry School And State In­
volvement In The Foundation School Violate Plaintiffs’ 
Rights Under The Fourteenth Amendment....................  16

IV. This Case Presents No Basis For Abstention.......  17

TABLE OF CONTENTS
Page

CONCLUSION 20



TABLE OF CITATIONS
Page

Cases

Brown v. Board of Education, 347 U.S. 483 (1954) ....

Brown v. Board of Education, 349 U. S. 294 (1955) ....

Bush v. New Orleans Parish, 190 F. Supp. 861 (ED  La.

1960) affirmed 365 U.S. 569 .........................................

Cooper v. Aaron, 358 U.S. 1 (1958) .............................

Duckworth v. James, 267 F. 2d 224 (4th Cir. 1959) .. 9,

Gomillion v. Lightfoot, 364 U' S. 339 .............................

Griffin v. Board of Supervisors of Prince Edward
County,....... F. 2 d ........  (4th Cir. No. 8837, August
12, 1963) .........................................................................

Harrison v. Day, 200 Va. 439 (1959) .................... .........

James v. Almond, 170 F. Supp. 331 (ED  Va. 1959)

Jordan v. Hutcheson, .....  F. 2d .......... (4th Cir. No.
8834, September 17, 1963) .............................................

McNeese v. Boafd of Education, .......  U.S’ ........, 31
U.S.L.W 4567 (decided June 3, 1963) ......................

Monroe v. Pape, 365 U.S. 167 (1961) ............................

Simkins, etal v. The Moses H. Cone Memorial Hospital,
etc., et al, ....... F. 2d ........ (4th Cir., November 1,
1963) .................................................................................

Stapleton v. Mitchell, 60 F. Supp. 51 .............................

Watson v. City of Memphis, 373 U ’S. 526 (1963) ........

16

16

17

16

17

20

19

10

17

18

18

18

9

18

17



Other

Acts of the General Assembly:

Extra Session 1956:
Chapter 56 .............    9
Chapter 57 ............    9
Chapter 58 .....  10

Extra Session 1959:
Chapter 1 ....................................................................  10
Chapter 49 ......................   10
Chapter 50 ..................................................................  11
Chapter 53 ..................................................................  11
Chapter 64 .............          12
Chapter 80 ...........................................................    11

Regular Session 1960:
Chapter 448 ................................................................  12
Chapter 461 ..........................................................    12

Code of Virginia 1950, as amended:
Section 15-527 ................................................................  15
Title 22, Chapter 7.2 .......................... .................... ...... 12
Section 22-21.1 ................................................................  11
Sections 22-115.29 through 22-115.35 ........................  12
Sections 22-115.36 and 22-115.37 ................................. 12
Sections 22-215 and 22-216 .........................................  15
Section 23-38.1 .............    11
Title 51, Chapter 3.2, § § 51-111.9, et seq..................  13
Sections 51-111.38 through 51-111.38:3 ....................  12

Page



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9286

Avis M. Pettaway, et al, 
Appellants,

vs.

County School Board of Surry 
County, Virginia, et al, 

Appellees.

BRIEF OF APPELLANTS

STATEM EN T OF TH E CASE

In their complaint filed on September 3, 1963 the plain­
tiffs prayed, inter alia, a motion for an interlocutory injunc­
tion to restrain certain of the defendants from paying 
State or County scholarships or tuition grants to any person 
residing in Surry County; to restrain the School Board 
from failing to operate Surry School or any other school 
under its jurisdiction during the 1963-64 session; and to re­
strain the Board of Supervisors from refusing to appro­
priate for the operation of public schools during the 1963-64 
session funds at least equal to those appropriated for the 
previous session (A . 13, 14).



2

On September 25, 1963 the Court heard evidence and 
argument pertaining to the motion for such interlocutory 
injunction. In its Memorandum Opinion filed on September 
30, the Court found facts substantially as alleged in the 
complaint. However, considering the issue pertaining to 
tuition grants as paramount, the District Court was of 
opinion that under this Court’s decision in Griffin v. Board 
o f Supervisors of Prince Edward County (No. 8837, 4th 
Cir., August 12, 1963), it was required to abstain pending 
the decision of the Supreme Court of Appeals of Virginia, 
in County School Board of Prince Edward County, et al, 
v. Leslie Francis Griffin, et al. The Order denying the 
motion for interlocutory injunction was entered on Septem­
ber 30. This appeal is from the decision to abstain and from 
the denial of the interlocutory injunction.

STATEM EN T OF FACTS

I.

During the month next following the historic May 17, 
1954 school desegregation decision, the Board of Super­
visors of Surry County and the County School Board of 
Surry County held a joint meeting and passed a resolution 
which stated, in part:

“ F IR S T : That it is our considered judgment that 
the best interest of public education for both the White 
and Negro children in Surry County, and the only way 
to maintain an efficient system, of public education as 
required by the Constitution of Virginia, is through 
the continuation of a segregated school system and to 
that end we express our unalterable opposition to inte­
gration of the races in the public schools to any degree,



3

•now or at any time in the future, and pledge to the 
people of this County our best efforts to continue our 
present educational system.”

Neither Board has rescinded this resolution. This meeting 
was attended by Ernest W. Goodrich, then and now the 
Commonwealth’s Attorney, E. F. Huber and J. L. White, 
then and now two members of the three member School 
Board, and M. B. Joyner, then and now the Division 
Superintendent of Schools. It is not clear from this record 
whether Clifton M. Ellis, then the chairman of the Board 
of Supervisors, is the same person as Clifton M. Ellis, Jr., 
who presently serves as a member of that Board.

At no time has the School Board considered or formulated 
a plan to desegregate the public schools of Surry County 
(A . 36).

II.

Prior to and during the 1962-63 school session, the de­
fendant County School Board maintained and operated 
three schools, viz: (1 ) Surry School wherein grades one 
through twelve were taught, (2 ) New Lebanon School 
wherein grades one through seven were taught, and (3 ) 
L. P. Jackson School wherein grades one through twelve 
were taught. All of the county’s white public school children, 
431 in number, attended Surry School wherein twenty-two 
white persons were employed as teachers and one as princi­
pal. A  fleet of ten school buses (each designed to carry a 
maximum of 54 children) transported white children to 
Surry School. Some of the county’s Negro elementary 
school children, 443 in number, attended Lebanon Elemen­
tary School where twelve Negroes were employed as



4

teachers and one as principal. The others of the county’s 
Negro elementary school children, 521 in number, attended 
the elementary department of the L. P. Jackson School 
where fifteen Negroes were employed as teachers. The 
county’s Negro high school students, 306 in number, at­
tended the high school department of the L. P. Jackson 
School where twelve classroom teachers, a teacher of Home 
Economics, a teacher of Agriculture, and a principal (all 
Negroes) were employed. A  fleet o f fifteen buses (each 
designed to carry a maximum of 54 children) transported 
the Negro school children to Lebanon School and L. P. 
Jackson School (A . 9, 29).1

The formula by which the State Board of Education 
distributes the States’ share of the funds necessary for 
the operation of public schools in the county is based on 
thirty pupils per teacher in elementary schools, and twenty- 
three pupils per teacher in high schools (A . 36).

III.

On May 27, 1963 the School Board discussed at some 
length the applications of three Negro pupils for placement 
in Surry School and directed the Superintendent to delay 
forwarding the applications to the Pupil Placement Board 
pending a thorough study (A . 17). On June 11, 1963 the 
School Board discussed at some length similar applications 
from four additional Negro pupils and authorized the 
Superintendent of Schools to forward both sets of applica­
tions (seven in all) to the State Pupil Placement Board 
(A . 18). On June 24, 1963 the State Pupil Placement 
Board assigned the infant plaintiffs to Surry School.

1 A  comparison between Negro and white schools is as follows:
White Negro

43 85
19.5 32.5

Average pupils per bus ........
Average pupil-teacher ratio



5

Shortly thereafter a mass meeting of the white citizens 
of Surry County convened at the Community Center. Mr. 
Ernest W. Goodrich, Commonwealth’s Attorney of Surry 
County, presided at this meeting. The three members of 
the Board of Supervisors attended this meeting (A . 59).

The situation concerning the assignment o f the Negro 
students to Surry School was discussed and the possibility 
o f a private school for the white students was mentioned. 
Those present at the meeting decided to call another mass 
meeting.

A  second mass meeting of the white citizens of the county 
was called soon. The attendance was large. Mr. Frank 
Lawrence presided. This meeting was attended by some, 
but not all, o f the members of the School Board and Board 
of Supervisors. The persons attending the meeting decided 
to organize a private school and made preliminary arrange­
ments to accomplish this. They also recommended to the 
School Board that public schools be continued (A . 72). A 
member of the School Board, in response to a question, 
stated that all teachers were under contracts that could be 
terminated on a month’s notice (A. 78). At that meeting 
there was a discussion relating to a reduction of taxes by 
reason of the proposed operation of the private school 
(A . 60).

Mr. Goodrich was authorized to prepare articles of in­
corporation of the Surry County Educational Foundation 
(A . 49). He was named registered agent of the corpora­
tion. On July 15, 1963 the State Corporation Commission 
of the Commonwealth o f Virginia issued the certificate of 
incorporation. The Board of Directors of the corporation 
was organized in such a manner that five persons were 
selected from each magisterial district in the county (Tr. 
50).



6

At the time this action was filed, Mr. Ernest W. Goodrich 
(the Commonwealth’s Attorney) was a member of the 
Board o f Directors of the Foundation and Mr. A. T. 
Sowder (County Treasurer) was Treasurer of the Founda­
tion (A . 46). The officers and directors of the Foundation 
organized and established a school.

The officers of the Foundation prepared forms by which 
the students or their parents could notify the School Board 
that the children were withdrawing from the public school 
and enrolling in the private school. These forms were trans­
mitted to the Board by the parents or by officers of the 
Foundation.

All o f the white pupils who formerly attended Surry 
School enrolled in the Foundation’s school. Negro pupils 
who had been assigned to the Surry School sought admis­
sion to the Foundation’s school and were denied. Enroll­
ment in the school is by invitation of the officers of the 
Foundation. No white child who has applied for admission 
has been denied. No Negro child who has applied for ad­
mission has been enrolled (A . 40, 50-51).

The tuition at the Foundation’s elementary school is 
$375 and its high school $380. State and County tuition 
grants made available by § 22-115.29 et seq. of the Code 
o f  Virginia, 1950, as amended, provide $250 for elementary 
school children and $275 for high school children. The 
balance of the cost is being paid by the parents of the indi­
vidual students upon various terms.

IV.

During the latter part o f July the president of the Foun­



/

dation requested the Superintendent of Schools to release 
the teachers from their contracts to teach at Surry School. 
The Superintendent declined to do so at that time (A . 56).

On August 15, 1963 the School Board submitted to the 
County Board of Supervisors an estimate that $37,000 
would be required for the operation of public schools for 
the month of September. Noting that a private school 
for white children would be organized, the Board of 
Supervisors postponed action on the estimate until August 
29 (A . 18, 19).

At its August 23 meeting the School Board was informed 
that the county’s 431 white pupils had been registered at 
the Foundation school and that the Foundation had re­
quested transcripts of the students’ records (A . 20). The 
Superintendent presented the resignations of fourteen o f the 
twenty-three teachers under contract to teach at Surry 
School. No action was taken on the resignations at this 
time (A. 20, 21), but the meeting was adjourned until the 
next day.

When the School Board reconvened on the next day, the 
Superintendent had contacted the other nine teachers. 
Resignations of three were in hand, and the Superintendent 
had been informed that three more would be sent to the 
Board (A . 22). Then the Board accepted the seventeen 
resignations thus far received and instructed the Superin­
tendent to accept the other six resignations as and when they 
would be obtained. At this meeting the decision to close 
Surry School was made the formal action o f the School 
Board (A . 22). The School Board’s estimate of funds 
needed for September was reduced from $37,000 to $26,000 
and, on August 29, the Board of Supervisors made appro­
priation of the latter sum (A . 24).



8

The teachers who had been under contract for Surry 
School were employed by the Foundation (A . 55).

The School Board sold three surplus buses to a motor 
vehicle dealer and purchased three new school buses. The 
Foundation purchased from a motor vehicle dealer surplus 
school buses to provide transportation for its school. Ten 
school buses formerly used for Surry School are still 
owned by the School Board and are not in use at the present 
time.

This action was commenced on September 3, 1963. The 
public schools opened on September 5, 1963. As late as 
September 13, when the depositions were taken, there 
were classes with the following numbers of (Negro) 
students in attendance; one with forty, two with forty-three, 
two with forty-six, one with fifty and one with fifty-three 
(A . 34,35,36). At the hearing on September 25, the Negro 
principals testified that the crowded conditions were some­
what relieved; however, photographs taken on September 
23 (just two days prior to the hearing) reveal that at that 
time severely overcrowded conditions still existed. (See 
PI. Ex. Nos.. 8 through 21.)

TH E  QUESTIONS INVOLVED

I .

Is The State Involved In The Establishment And 
Maintenance O f The Foundation School?

II.

Did The Local Boards And Their Members Cause Surry
School To Be Closed To Prevent Its Being Attended 

By Children of Both Races ?



9

III.

Does The Closing Of Surry School Or The State 
Involvement In The Foundation School Violate 

Plaintiffs’ Rights Under The Fourteenth Amendment?

IV.
Does This Case Present Any Basis For Abstention?

ARGUM ENT

I .

The State Is Involved In The Establishment And 
Maintenance Of The Foundation School.

The scholarship aid program had its inception in the 
‘ ‘plan of massive resistance” adopted by the General 
Assembly of Virginia at its Extra Session of 1956 “ to 
retain segregation in the public schools o f the State.” (Cf. 
Duckworth v. James, 267 F. 2d 224 (4th Cir. 1959). 
Chapter 56 of the Acts of the Extra Session of 1956 
contemplated that when public schools in any county, city 
or town would be closed to avoid racial mixing, the public 
funds would be diverted from those schools to “nonsectarian 
private schools” and provided that state and local funds 
(up to $350.00 per pupil) would be available “ in furtherance 
of the elementary and/or secondary education of the chil­
dren of such county, city or town in nonsectarian private 
schools.”

Chapter 57 of the Acts authorized localities with closed 
schools to raise sums of money by a tax on property to be 
used as grants for the furtherance of the elementary or 
secondary education of the children of the locality. Chapter



10

58 required the inclusion in school budgets of amounts 
sufficient for the payment of such grants, provided for local 
governing bodies the authority to raise and appropriate 
money for such purpose, made mandatory the payment of 
state and local funds for children attending “ nonsectarian 
private schools” whose parents objected to their attending 
desegregated public schools.

Certain key phases of the 1956 plan of massive resistance 
having been declared unconstitutional ( Harrison v. Day, 
200 Va. 439 (1959)), the General Assembly at the Extra 
Session 1959 repealed the above mentioned Chapters 56, 
57 and 58 (Chapters 1 and 53, Acts of Assembly, Extra 
Session 1959) and enacted:

Chapter 1: “ An Act . . . relating to the payment of 
tuition grants by counties, cities and towns, for the 
furtherance of elementary and secondary education 
so as to provide that funds shall be provided for such 
grants, for the education of children in public schools 
located outside of the county, city or town making such 
grant, as well as in nonsectarian private schools; to 
redefine the persons entitled to' and the conditions 
under which such grants shall be paid; and to redefine 
the method by which the State shall be reimbursed for 
grants made on behalf o f the county, city and town

Chapter 49: “ An Act to permit school boards to pro­
vide transportation for children attending nonsectarian 
private schools; or in lieu thereof to allot funds to as­
sist in paying the costs of such transportation, to pro­
vide for State assistance in the payment of costs 
thereof; and to provide that local governing bodies 
may make appropriations therefor.”



11

Chapter 50: “An Act to permit teachers to repay 
State scholarships by teaching in nonsectarian private 
schools” , which is codified as Code Section 23-38.1, 
viz: “ Any recipient of a scholarship from the Board 
of Education, out o f funds appropriated for teacher 
education and teaching scholarships under an agree­
ment whereby the obligation to repays the amount of 
the grant or loan may be cancelled by teaching one year 
in the public schools of this State, may satisfy his 
obligation to repay the amount of the grant or loan 
by teaching one year in a nonsectarian private school 
approved by the Board of Education.”

Chapter 53: “An Act to encourage the education of 
the children of the Commonwealth by providing schol­
arships for the education of such children in non­
sectarian private schools and in public schools located 
outside of the locality in which they reside; to provide 
for the manner in which such scholarships shall be 
made available and the extent of State and local 
participation in the payment of such scholarships; and 
to make unlawful the improper obtaining or expending 
of funds provided for such scholarships . . . ”

Chapter 80: “An Act to authorize any person, firm 
or corporation to use any existing building" for the 
purpose of operating a private elementary or high 
School notwithstanding the provisions of any other 
statute, city charter, or ordinance” , the effect of which 
is to provisionally exempt “ private” schools from 
local zoning ordinances, plumbing and building codes, 
or other requirements. This chapter is presently 
§ 22-21.1 of the Code of Virginia.



12

At its 1960 Session, the Legislature enacted Chapter 448 
of the Acts of Assembly 1960, which repealed Chapter 53 
of the Acts o f the Extra Session 1959 and Chapter 7.2 of 
Title 22 of the Code (derived from Chapter 53 of the Acts 
of 1959, Extra Session). The title to this Act reads, in part: 
“ An Act to encourage the education of the children of the 
Commonwealth by providing State scholarships and author­
izing the governing bodies of counties, cities and towns to 
provide local scholarships for the education of such children 
in nonsectarian private schools located in or outside, and 
in public schools located outside, the locality in which they 
reside; to provide for the manner in which such scholarships 
shall be made available; to make unlawful the improper 
obtaining or expending of funds provided for such scholar­
ships ; to provide for the manner in which local scholarships 
shall be available under certain circumstances, and the 
minimum amount of such scholarships . . This Chapter 
is presently § § 22-115.29 through 22-115.35 of the Code of 
Virginia.

In addition, the Legislature enacted Chapter 461 of the 
Acts of Assembly 1960, the title of which reads: “ An Act 
to encourage the education of the children of the Common­
wealth by authorizing the governing body of any county, 
city, or town to appropriate and expend funds for educa­
tional purposes in furtherance of the elementary and second­
ary education of children residing in the county, city, or 
town.” This Chapter is § § 22-115.36 and 22-115.37 o f the 
Code of Virginia.

Sections 51-111.38: through 51-111.38:3 (derived from 
Chapter 64 of the Acts of the Extra Session 1956) provide 
that any corporation organized after December 2, 1956 for 
the purpose of providing elementary or secondary educa­



13

tion may by resolution duly adopted elect to have teachers 
employed by it become eligible h> participate in the Virginia 
Supplemental Retirement System (Code of Virginia, Title 
51, Chapter 3.2, § § 51-111.9, et seq.).

Thus we see that the Commonwealth encouraged the 
formation of the Surry County Educational Foundation by 
the 1956 legislation which assured the teachers under con­
tract for Surry School that their state retirement benefits 
would not be lost should they resign and accept employ­
ment by the Foundation. In addition the Commonwealth 
encouraged the formation of the Foundation by the 1959 
legislation which permits graduating recipients of State 
Teaching Scholarships to repay their obligation to the State 
by teaching in the Foundation school instead of teaching in 
a school operated by a local school board. Furthermore the 
Commonwealth encouraged the formation of the Founda­
tion by the 1959 legislation which permits the Foundation 
for the first year or two to use substandard buildings and 
otherwise to ignore other safety requirements. And, by 
legislation which was first enacted in 1956 and takes its 
present form in Chapter 448 of the Acts o f 1960, the 
Commonwealth makes possible the operation of the Founda­
tion’s school by providing public funds, state and local, in 
annual sums of $250.00 to $275.00 per pupil conditioned 
upon the school’s meeting “ minimum academic standards” 
prescribed by the State Board of Education.



14

II.

The Local Boards And Their Members Caused Surry
School To Be Closed To Prevent Its Being Attended 

By Children Of Both Races.

On June 30, 1954, the Board of Supervisors and the 
School Board expressed their “unalterable opposition to 
integration of the races in the public schools to any degree, 
now or at any time in the future.” In 1963, after Negro 
parents had applied for the enrollment of their children at 
Surry School, these boards and the county’s chief legal 
officer proceeded to fulfill their 1954 “pledge to the [white] 
people” of the county to devote their best efforts to continue 
the racially segregated aspect of public education in Surry 
County.

This record shows the Commonwealth’s Attorney presid­
ing, and the three members of the Board of Supervisors 
in attendance, at a mass meeting of white people of the 
county, discussing the possibility of a “ private” school for 
white children (A . 59). At a second mass meeting, called 
pursuant to a decision reached at the first and attended by 
some of the members of the School Board and the Board 
of Supervisors, a decision was made to organize a Foun­
dation, the directors of which would be selected five from 
each magisterial district (A . 50). (School Board mem­
bers are selected one from each magisterial district.) It 
was also decided that the schools attended by Negro chil­
dren would not be closed and that the teachers under con­
tract for Surry School would be employed by the Founda­
tion.

The county’s legal officer was the guiding hand in the 
formation of the Foundation, was one of its incorporators,



15

prepared its Articles of Incorporation, was its registered 
agent, and was one of its directors. Yet that same officer 
had a statutory duty to advise the Board of Supervisors 
on all legal questions arising before it (Code of Virginia 
§ 15-527) and a further duty to institute and conduct 
actions against local school authorities who shall by mal­
feasance, misfeasance or nonfeasance offend against the pro­
visions of the school laws of the State (Code of Virginia 
§ § 22-215, 22-216). The inconsistencies of these duties 
presented no problem inasmuch as all agencies were com­
mitted to the same goal, v iz : to continue the racially segre­
gated aspect o f public education in Surry County.

The School Board and the Board of Supervisors adopted 
and facilitated the execution of the decisions of the mass 
meeting. The teachers had to be induced to surrender their 
contracts with the School Board and accept employment 
by the Foundation which was chartered on July 15, 1963. 
The Commonwealth’s Attorney served the Foundation as 
its attorney and as one of its directors and the County 
Treasurer served as the treasurer for the Foundation. As 
late as August 15, the School Board estimated a need for 
$37,000.00 to operate schools during September, this figure 
apparently contemplating its operation of all schools. By 
postponing action on the estimate, the Board of Super­
visors gave teachers and parents cause to question whether 
Surry would follow the lead of Prince Edward County by 
closing public schools. By the time the School Board next 
met on August 23, the Foundation had “ invited” and 
obtained the registration of every white child; fourteen of 
the white teachers had submitted resignations to the School 
Board. Not enough! When the School Board convened the 
next day, the Superintendent had contacted nine other 
teachers and had obtained resignations of three and prom­



16

ises from three others. Obviously three were still holding 
out. By accepting the resignations of the seventeen, the 
School Board committed itself not to operate Surry School 
and thus forced the other white teachers to resign and 
made all twenty-three of them available to the Foundation. 
Then, on August 29, the School Board requested, and the 
Board of Supervisors appropriated, $26,000.00 to operate 
the Negro schools during September.

III.

Both The Closing Of Surry School And State 
Involvement In The Foundation School Violate 

Plaintiffs’ Rights Under The Fourteenth Amendment.

What has happened in Surry County is merely the 
execution of a scheme of evasion of the Constitutional 
doctrine 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 (1954)), and that “ [a]ll provi­
sions of federal, state, or local law requiring or permitting 
such discrimination must yield to this principle” ( Brown v. 
Board of Education, 349 U.S. 294 (1955)).

“ * * * State support of segregated schools through 
any arrangement, management, funds, or property can­
not be squared with the Amendment’s command that 
no state shall deny to any person within its jurisdiction 
the equal protection of the laws. The right o f a student 
not to be segregated on racial grounds in schools so 
maintained is indeed so fundamental and pervasive 
that it is embraced in the concept of due process of 
law.” Cooper v. Aaron, 358 U.S. 1 (1958).



17

“ * * * While the State of Virginia, directly or in­
directly, maintains and operates a school system with 
the use of public funds, or participates by arrangement 
or otherwise in the management of such a school 
system, no one public school or grade in Virginia may 
be closed to avoid the effect o f the law of the land as 
interpreted by the Supreme Court, while the state 
permits other public schools or grades to remain open 
at the expense of the taxpayers. * * * W e . . . point 
out that the closing o f a public school, or grade therein, 
for the reasons heretofore assigned violates the right 
o f a citizen to equal protection of the laws and, as to 
any child willing to attend a school with a member or 
members of the opposite race, such a school-closing is 
a deprivation o f due process of law.” James v. Almond, 
170 F. Supp. 331 (ED  Va. 1959) (Sobeloff and 
Haynsworth, Circuit Judges, and Hoffman, District 
Judge). See, also, Duckworth v. James 267 F. 2d 224 
(4th Cir. 1959); Bush v. New Orleans Parish, 190 
F. Supp. 861 (ED La. 1960) affirmed 365 U. S. 569; 
Simkins, et al v. The Moses H. Cone Memorial Hos­
pital, etc., et a l,.....  F. 2d ......  (4th Cir., November
1, 1963).

IV.

This Case Presents No Basis For Abstention

“The basic guarantees of our Constitution are warrants 
for the here and now and, unless there is an overwhelmingly 
compelling reason, they are to be promptly fulfilled.” 
Watson v. City of Memphis, 373 U. S. 526 (1963).

The “ concept of federalism; i.e., federal respect for state 
institutions, will not be permitted to shield an invasion of 
the citizen’s constitutional rights. . . .  It remains the duty



18

of the federal courts to protect the individual’s constitu­
tional rights from invasion either by state action or under 
color thereof especially . . .  in the sensitive areas of First 
Amendment rights and racial discrimination.”  Jordan v.
Hutcheson,....... F. 2 d ____  (4th Cir. No. 8834, September
17,1963).

Continuing, and specifically finding “ no basis for absten­
tion” , the Court said:

“The statute, 42 U.S.C. § 1983, under which plain­
tiffs sue, involved federal rights. The federal courts 
are provided for the accommodation of these rights 
and the fact that the state courts are also available for 
the protection of plaintiffs’ constitutional rights does 
not require the federal courts to abstain.

“  ‘ It is no answer that the state has a law which 
if enforced would give relief. The federal remedy is 
supplementary to the state remedy, and the latter 
need not be first sought and refused before the 
federal one is invoked.’ Monroe v. Pape, 365 U.S. 
167, 183 (1961).

“ McNeese v. Board of Education, ........ U 'S.......... ,31
U.S.L.W. 4567 (decided June 3, 1963); . . .”

In McNeese, at footnote 6, the Court quoted with ap­
proval an eloquent statement o f the controlling doctrine by 
Judge Murrah in Stapleton v. Mitchell, 60 F. Supp. 51, 55, 
v iz :

“ We yet like to believe that wherever the Federal 
courts sit, human rights under the Federal Constitution 
are always a proper subject for adjudication, and that



19

we have not the right to decline to exercise o f that 
jurisdiction simply because the rights asserted may 
be adjudicated in some other forum.”

The District Court should not have abstained by reason 
of this Court’s decision in Griffin v. Board of Supervisors
of Prince Edward County, ........F. 2 d .........  (4th Cir. No.
8837, Aug. 12, 1963). The determination of the instant 
case does not depend on whether Virginia’s schools are 
operated locally or statewide. It is absolutely immaterial 
whether the Virginia tuition grant program is constitu­
tional or not. This case cannot possibly be affected in any 
degree by any rule of state law. The plaintiffs here are 
asserting a federal right which the District Court had a 
duty to enforce.

The Griffin opinion was based on the premise that Prince 
Edward County had completely withdrawn from the school 
business. There, as if anticipating this case, the Court said:

“ If Prince Edward County has not completely with­
drawn from the school business, then it cannot close 
some schools while it continues to operate others on a 
segregated basis.”

The Griffin opinion was also premised on the fact that 
(unlike Surry) neither state nor local officials had partici­
pated in the formation of the private school. The Court 
said:

“ The plaintiffs do not contend that Prince Edward 
County or Virginia had a hand in the Prince Edward 
School Foundation.”



20

Thus the Court could assume the validity of all of the 
Virginia laws which might reasonably apply to the evidence 
produced in the instant record. Still there would exist ample 
evidence of state (or local) authority being utilized in an 
arbitrary manner to defeat plaintiffs’ protected constitu­
tional rights. ( Gomillion v. Lightfoot, 364 U.S. 339.)

CONCLUSION

Wherefore, it is respectfully submitted that the judgment 
of the District Court be reversed and the cause remanded 
with instructions to the District Court to grant to the 
plaintiffs the relief requested in prayers (B) ,  (C) ,  (D ) ,  
(E ) ,  and (F )  of the complaint and to retain the cause on 
the docket to insure to the plaintiffs such other relief as 
is necessary to do justice in this case.

Respectfully submitted,

S. W. T u c k e r

H e n r y  L. M a r s h , III

214 East Clay Street 
Richmond 19, Virginia

Attorneys for Appellants