Morris v. Williams Reply Brief for Appellants

    IN' THE

lintUb BUtm (ftfmrit (tart of Kppmlz
F oe the E ighth  Cibcuit

Civil Action No. 12,887

Susie Morris, for herself and others similarly situated, 
Frances B, K ibbler, Intervener,

Appellant,

Robert M. W illiams, Chairman; Murray O. Reed, Secre­
tary; Mrs. W . P. McDermott; Mrs. W . F. Rawlings; 
Dr. R. M. Blakely and E. F. Jennings, Constituting 
the Board of Directors of the Little Rock Special School 
District and Russell T. Scobee, Superintendent of 
Schools,

Appellees.

a p p e a l  f r o m  t h e  d is t r ic t  c o u r t  o f  t h e  u n it e d  s t a t e s

FOR THE EASTERN DISTRICT OF ARKANSAS.

REPLY BRIEF FOR APPELLANTS.

♦

Edward R. Dudley,
New York, New York,

Myles A. K ibbler,
Little Rock, Arkansas,

Of Counsel.

J. R. Booker,
Little Rock, Arkansas,

T hurgoqd Marshall,
New York, New York,

W illiam H. Hastie, 
Washington, D. C.

Counsel for Appellants.





I N D E X

PAGE

Preliminary Statement _____________________________  1

I. Proof Required in the Case____________________  2

II. The District Court Erred in Its Finding That No 
Discriminatory Salary Schedule Existed_________  3

III. The Trial Court Erred in Finding That No Dis­
criminatory Policy Was Followed in the Fixing
of Salaries ______________________________    8

Differences in Salaries____________________   10
General Salary Adjustment in 1940__________  11
Bonus Payment _________________________ 12

IV. Appellees’ Tables and Matter De Hors the Record 13

Conclusion _______________________________________  15

CITATIONS.

Cases:

Mills v. Board of Education, 30 F. Supp. 245 (1940) .. 4

Roles v. School Board of City of Newport News, Civil 
Action No. 6 (1943), U. S. District Court for Eastern 
District of Virginia, unreported_________________  4

Smith v. Allwright, 321 U. S. 649, 88 L. Ed. 987 (1944) 12

Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497 (1944).___ 12



11

PAGE

Southern Pacific Terminal Co. v. Interstate Commerce 
Commission, 219 U. S. 298, 31 S. Ct. 279, 55 L. Ed.
310 (1910) ______________________________ ■________ 14

Thomas v. Hibbitts, 46 F. Supp. 368 (1942)__________  4

United States v. Trans-Missouri Freight Assoc., 166 
U. S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1896) 14

Yarnell v. Hillsborough Packing Co., 70 F. (2d) 435 
(1934)_____________________ _____________________  14

\

Miscellaneous:

Educational Directory (U. S. Office of Education 
[1942])______________________  10



IN THE

Imtefc States (Eirntit GJmirt at Appeals
F oe the E ighth Circuit

Civil Action No. 12,887

Susie Morris, for herself and others similarly situated, 
F rances B. K ibbler, Intervener,

Appellants,
v.

R obert M. W illiams, Chairman; Murray O. R eed, Secre­
tary; Mrs. W. P. M cD ermott; Mrs. W. F. R awlings; 
D r. R. M. B lakely and E. F. J ennings, Constituting 
the Board of Directors of the Little Rock Special School 
District and R ussell T. S cobee, Superintendent of 
Schools,

Appellees.

REPLY BRIEF FOR APPELLANTS.

Preliminary Statement.

Much of the material in the brief for appellees is irrele­
vant and there is a sharp dispute as to interpretation of 
evidence produced at the trial. No effort is made herein to 
answer all of the material set forth in brief for appellees. 
Most of the argument in the original brief for appellants 
remains unanswered. This reply brief is directed solely at 
material in appellees’ brief which was not raised in appel­
lants’ original brief.



2

I.
Proof Required in the Case.

The appellees deny any visible connection between ap­
pellants’ claim of discrimination and those cases involving 
exclusion of Negroes from jury service. The analogy here 
is a simple one. There is no statute setting up one minimum 
salary scale for white teachers in the system and one mini­
mum salary scale for colored teachers in the system, nor 
do appellees admit that they have adopted such a schedule. 
If these were the facts the question as to the constitution­
ality of such state action would present no difficulties. In 
the jury cases few statutes excluding Negroes from jury 
service were enacted subsequent to the passage of the 
Fourteenth Amendment and practically all of the cases of 
discrimination on this point revolved around the action of 
judicial or administrative officials who denied that they 
intentionally discriminated against Negroes in the selection 
of jurors. The difficulty of proving discrimination became 
apparent. It was here that the United States Supreme 
Court recognized the difficulty of proof and adopted rules 
which created the presumption of exclusion of Negroes from 
jury service.

In both instances the Courts were faced with the propo­
sition that state officials denied having violated the United 
States Constitution. In the jury cases a showing that over 
a period of years there were no Negroes accepted for jury 
service was considered proof of a policy of discrimination 
on the basis of race. In the present case the record clearly 
shows that over a period of years all Negro teachers have 
received less salary than white teachers of equivalent quali­
fications and experience and performing the same duties. 
Appellees’ contention that there was no written salary 
schedule is no answer to the presumption created that dis­
crimination did exist by virtue of all Negro teachers being 
paid less salary than white teachers for performing substan­



3

tially the same duties. Nor is the answer of Superintendent 
Scobee that in his opinion no Negro teachers were worth 
more than they were being paid a sufficient rebuttal to the 
appellants’ case. It is this type of grouping by race which 
is prohibited by the Fourteenth Amendment. In fact, it is 
no more nor less than an example of arbitrary treatment 
designed to classify one group in a category wholly unequal 
to another solely on account of race. The Fourteenth 
Amendment forbids such discrimination.

II.

The District Court Erred in Its Finding That 
No Discriminatory Salary Schedule Existed.

None of the appellees were able to satisfactorily explain 
the provision of the minutes of the Board for January 31, 
1938, that the “ schedule for new teachers shall be: ele­
mentary $810, junior high $910, senior high $945”  (R. 576). 
Although this provision was adopted prior to the appoint­
ment of Superintendent Scobee, and although he denied that 
he was directed by anyone to follow the recommendations, 
he nevertheless admitted that all of the white teachers ap­
pointed by him were paid salaries in excess of the $810 
minimum, while at the same time all Negro teachers new 
to the system were employed at either $615 or 630.

The testimony by the appellees is that: (1) there is no 
written salary schedule, and (2) that all Negro teachers 
new to the system are paid a salary below the minimum 
salary paid to all white teachers new to the system. It is 
also the testimony of each of the appellees that this has been 
true as long as they have been in their present positions 
as Superintendent or members of the Board of Directors of 
the Little Rock Special School District.

The theory of appellees is that there can be no racial 
discrimination in the absence of a written salary schedule.



4

In doing this appellees ignore the true basis of the decisions 
in the cases cited as well as their own testimony at the hear­
ing of this case. In the cases of Mills v. Board of Education/  
Thomas v. Hibbitts,1 2 3 and Roles v. School Board3 relief was 
granted upon a showing that in the actual payment of sal­
aries the Superintendent and School Board fixed salaries 
for Negroes at a lower amount than for white teachers. In 
the case of Mills v. Board of Education, supra, there was 
a statutory minimum salary schedule providing less salary 
for Negroes than for white teachers. However, the county 
board had a salary schedule higher than the state schedule 
and did not follow either of these schedules, but paid all of 
its teachers salaries higher than provided in either of the 
schedules. Judge Chesnut considered all of the testimony 
and reached the conclusion that in the payment of salaries 
to teachers the defendants had made a distinction because of 
race or color and their action was therefore unconstitutional. 
In the Roles case, supra, the salary schedule made no men­
tion of race or color. The theory of appellees that dis- 
criminiation because of race in the payment of teachers’ 
salaries can be shown only by the production of a written 
salary schedule is fallacious.

In adopting this theory appellees at pages 34-46 of their 
brief cite testimony of many witnesses directed to the 
proposition that there was no written schedule for white 
and colored teachers in this case. Appellees, however, fail 
to point out that these same witnesses, although denying 
the existence of a written schedule as such do testify that in 
fact the policy of the Superintendent was to pay all colored 
teachers new to the system the minimum of $615-$630., while 
paying all white teachers new to the system the minimum 
of $810. Whether or not a written schedule as such was 
adopted and physically present is totally unimportant in 
view of the actual salaries tendered these teachers.

1 30 F. Supp. 245 (1940).
2 46 F. Supp. 368 (1942).
3 Brief for appellants, pp. 74-77.



5

Appellees on page 32 of their brief in discussing other 
cases involving the payment of less salary to Negro teach­
ers because of race or color make the following admission: 
“ One salary range was applied to white teachers and an­
other and lower range was applied to Negro teachers. It 
would be difficult to imagine a situation which would furnish 
a more clear cut example of racial discrimination than a 
case in which such a schedule was used.”

Each of the appellees admitted that in the actual pay­
ment of salaries to public school teachers in Little Rock, 
Arkansas,

“ one salary range was applied to white teachers, 
and another and lower range was applied to Negro 
teachers’ ’ :

Mr. Scobee:

“ Q. And isn’t it a fact Negro teachers you have 
hired for the elementary schools have all been hired 
at the figure of $615.00. A. Practically all. Q. 
Practically all? A. Yes. Q. And you remember 
yesterday the minutes of the School Board of 1937, 
the statement that the minimum salary shall be 
$810.00. Do you remember reading that yesterday? 
A. I remember reading the minutes. I am not able 
to identify the exact date. Q. And is it not true that 
since you have been here that all white teachers who 
are new to the system in the elementary schools have 
been paid not less than $810.00? A. That’s true”  (R. 
316).

Mrs. McDermott:

“ Q. And isn’t it true, Mrs. McDermott, that since 
May, 1938, or rather June, 1938, it has been the policy 
to pay white teachers a minimum of $810.00? A. I 
think so. Q. And it has been the policy to pay Negro 
teachers less than that minimum? A. Yes, sir. Q. 
And that has been the policy since 1938? A. I think 
so. Q. That is the policy as late as that last Board 
meeting? A. I think so”  (R. 68-69).



6

Mrs. Rawlings:

“ Q. And during that time on the Board, is it not 
true that as to new teachers to the system you paid 
white teachers new to the system more than Negro 
teachers new to the system! A. No, not in all cases. 
It depended on the individual. Q. Well, since 1938, 
is it not true that all of the Negro teachers employed 
have ranged between $615.00 and $630.00? A. Yes, 
sir. Q. And is it not true that during that same time 
no white teachers have been employed at less than 
$810.00? A. I could not say, but I think you are 
correct. Q. Somewhere from $800.00 up, at least? 
A. Yes, sir”  (R. 84).

Robert M. Willimns:

“ Q. Well, in passing upon the recommendations 
of the Superintendent, you have had occasion to 
notice the Negro teachers began at the salary, in the 
elementary schools, of $615.00 and $630.00, haven’t 
you? A. I don’t know as I ever noticed it before 
I got here in this courtroom. Q. You have noticed it 
since you come into the courtroom? A. Oh, yes. 
Q. And you also noticed that the salary of teachers 
in the Negro High School began at $630.00? A. Yes, 
from the testimony here. Q. You also noticed the 
white teachers in the white schools began at a salary 
of $810.00? A. Yes. Q. And in the Little Rock 
Senior High School at $900? A. I haven’t got that 
in mind. Q. That has been the policy of the Board 
ever since you have been a member of the Board? 
A. I would say so, yes”  (R. 359).

Murray O. Reed:

“ Q. Do you know that all the Negro teachers are 
paid between $615.00 and $630.00, with one exception 
$675.00? Do you remember that? A. All between 
$615.00 and $630.00 you say? Q. Yes, sir. A. No, I 
didn’t know that. Q. Is it clear in your mind that 
Negro teachers new to the system are paid less than 
white teachers new to the system? A. I think most 
of them are”  (R. 99). “ Q. And yet practically all 
of the white teachers get over $810.00 to $900.00 a



7

year. How can and how is it that they all fall in 
the same category! A. I think I can explain that 
this way: the best explanation of that, however, is 
the Superintendent of the Schools is experienced in 
dealing and working wtih teachers, white teachers 
and colored. He finds that we have a certain amount 
of money, and the budget is so much, and in his deal­
ing with teachers he finds he has to pay a certain 
minimum to some white teachers qualified to teach, 
a teacher that would suit in the school, and he also 
finds that he has to pay around a certain minimum 
amount in order to get that teacher, the best he can 
do about it is around (fol. 208) $800.00 to $810.00 to 
$830.00, whatever it may be he has to pay that in 
order to pay that white teacher the minimum amount, 
qualified to do that work. Now, in his experience 
with colored teachers, he finds he has to pay a cer­
tain minimum amount to get a colored teacher quali­
fied to do the work. He finds that about $630.00, 
whatever it may be”  (R. 120).

Dr. R. M. Blakely:

“ Q. Ho they not run in the average between 
$615.00 and $630.00 for Negro teachers that have 
been appointed since you were on the Board? A. 
Yes. Q. And the white teachers run above $810? A. 
Run from $810.00 up? Q. Yes, sir. A. Yes. Q. Can 
you give the reason for that? A. I thought that was 
their qualifications, and we decided to pay that salary. 
Q. Did you ever check their qualifications, of any of 
these teachers? A. No, that wasn’t one of my func­
tions. I would not put myself as being in a position 
of knowing the qualifications of a teacher. Q. As 
a matter of fact, you don’t know how it happens ? A. 
No, except qualifications, that is my understanding 
about the salary schedule, the salary— ”  (R. 75).

E. F. Jennings:

“ Q. You do not know of any, do you, of any Negro 
teacher (fol. 47) new to the system that has been 
given as much as the least paid white teacher? A. 
No, I don’t ”  (R. 27).



8

It is therefore clear that “ one salary range was applied 
to white teachers and another and lower range was applied 
to Negro teachers” .4

III.

The Trial Court Erred in Finding That No Dis­
criminatory Policy W as Followed in the 

Fixing of Salaries.

The appellees in their brief at page 43 in referring to 
sections of appellants’ original brief quoting- excerpts from 
the minutes of the Board of Education from 1926 to 1929, 
add that “ It is difficult to see how the Board’s actions at 
a time when only one of these defendants had a voice in its 
affairs and nine years before the plaintiff was employed can 
have much bearing even on policy” . The point is that many 
of the teachers employed by the appellees at the time this 
case was tried had been employed since 1926 and some 
prior thereto. Superintendent Scobee testified that although 
there had been a few adjustments since he had been Superin­
tendent, in the main salaries of older teachers remained the 
same as when he was employed (R. 183). He did not know 
what basis was used for the fixing of salaries prior to his 
employment. He testified further:

“ Q. I will ask you if it is not a fact if prior to 
your coming into the system, the difference was based 
solely on the grounds of race the same difference 
would be carried on today? A. It would be so in 
many cases”  (R. 183).

Later in his testimony on being questioned concerning 
individual teachers, Mr. Scobee testified:

“ Q. Can you deny that these salaries are set up 
on race? A. So far as I am concerned they are not 
set up on race. Q. You don’t know how these figures 
were arrived at? A. I do not. Q. All you’re doing

4 This quotation appears in appellees’ brief in commenting upon 
similar cases in other jurisdictions (appellees’ brief, p. 32).



9

is carrying on as you found it? A. So far as the total 
of money spent, I  am trying to do that. Q. You made 
none or very few changes? A. Very few. Q. You 
don’t know any place where you raised one up to the 
white level? A. I don’t recall any”  (R, 189).

One of the Negro teachers mentioned by the appellees 
in the group who were employed at $90 per month in 1926 
is Miss Gwendolyn McConico (R. 515). The interesting 
thing about Miss McConico is that at the present time, after 
fifteen years of service in the Little Rock School System, 
she is only receiving $842.25 per year (R. 777). It should 
also be pointed out that after sixteen years of service she 
is receiving less salary than white teachers new to the 
system with no experience whatsoever. Although she re­
ceived a fating of “ 3”  (R. 777) she receives less salary 
than any white teacher in similar circumstances, such as 
Dixie D. Speer, who while employed in the white high school 
and rated as “ 3” , was paid $900 with no experience in Little 
Rock or any place else and Mrs. Guy Irby with an AR de­
gree and no experience teaching in the junior high school 
as a substitute teacher was paid $900 a year, yet rated 
as “ 3” .

The example of Miss McConico is typical of the type of 
discrimination being practiced against Negro teachers in 
Little Rock, Arkansas, as a result of a combination of 
circumstances pointed out in appellants’ original brief.

Appellees in their brief commenting upon the salary 
cuts 1932-1933, reached the conclusion that Negro teachers 
were not discriminated against because it was provided that 
white and colored janitors received the same salary.

Although the salary cuts immediately after 1929 were 
made on a percentage basis as pointed out by appellees in 
their brief, the discrimination against Negroes is apparent 
by the fact that the so-called salary restorations were made 
on a basis of race or color. All white teachers were placed 
in one group and given increases in salary larger than were



10

given Negro teachers all of whom were placed in another 
group. The provisions of the minutes of the appellees on 
the question of salary cuts and restorations are fully set 
out in appellants’ original brief (pp. 8-11).

Differences in Salaries.

There is a sharp conflict in the testimony as to the teach­
ing ability of Susie Morris, original plaintiff in the case. 
The person best qualified to judge the teaching ability of 
Mrs. Morris was her principal who testified in detail as 
to his opinion as to Mrs. Morris’ ability as a teacher (R. 
164-165). Mr. Scobee’s appraisal of Mrs. Morris’ ability 
was based on but one ten-minute visit to her class (R. 133). 
Her other rating was by Mr. Hamilton, who was a part-time 
supervisor of the Dunbar High School. It is obvious from 
the record that Mr. Lewis is better qualified to rate his 
teachers than Mr. Hamilton. In the first place, Mr. Lewis 
has several degrees from accredited colleges and many 
years of experience as an administrator of both high schools 
and colleges (R. 162). Mr. Hamilton, on the other hand, 
is a graduate of Wilmington College in Ohio, which is only 
accredited by the American Association of Teachers’ Col­
leges.5

If there were any doubt as to Mrs. Morris’ ability as a 
teacher, it is immediately dispelled by the undisputed testi­
mony that during the summer prior to the trial of this case, 
she attended the University of Chicago as a graduate 
student and one of the subjects involved the use of methods 
of teaching English exactly as taught by her in the Little 
Rock School System. Her methods and outlines were given 
for the purposes of criticism by other students and faculty. 
At the conclusion of this course Mrs. Morris attained the 
grade of “ A ”  (the highest possible grade which could have 
been obtained) (R. 506).

5 Educational Directory, published by the United States Office of 
Education (1942).



11

Appellees throughout the brief repeatedly emphasize the 
statement that a majority of the Negro teachers are gradu­
ates of unaccredited colleges. In doing this they ignore the 
fact that of the 38 teachers, including the principal in Dun­
bar High School 23 have Bachelor degrees from accredited 
colleges and 5 have Master degrees from accredited colleges 
(R. 653).6 No college appears beside the name of Bernice 
Bass, who has a Bachelor degree and her name was not 
counted in the figures above.7

General Salary Adjustment in 1940.

In the salary adjustment of 1940 appellees make much 
of the fact that in the adjustment of salaries of two white 
teachers, Mr. Axtell and Miss Litzke, no accurate basis was 
used. Without going through the entire list of salaries, 
certain facts should be pointed out. In the first place there 
is apparently no evidence of rating being used as a basis 
for the adjustment. The only items appearing on the list 
with the exception of the salaries are training and experi­
ence. With the exception of the isolated case mentioned in 
appellees’ brief the adjustment for white teachers goes 
along the line of experience and training and the Negro 
salary adjustments go along the line of training and ex­
perience with the additional factor that despite the factors 
of training and experience all of the Negro salaries are 
lower in each bracket. For example, the highest salary of 
any Negro teacher in the Dunbar High and Junior College, 
after the adjustment was $756.75 for a teacher with an AB 
degree and 30 years of experience as compared with the 
lowest salary of any teacher in the white senior or junior 
high schools which was $924.75 for a teacher with one 
year’s experience in Little Rock and none elsewhere. As

6 The list of accredited colleges appears in Educational Directory 
published by United States Office of Education (1942).

7 In addition there is one teacher with four years, one with three, 
one with two and one with two and a half years’ training in accredited 
colleges.



12

a matter of fact the so-called salary adjustment shows that 
the highest paid Negro teacher received before and after 
the adjustment less salary than the lowest paid white 
teacher (R. 590-594).

Bonus Payment.

The only defense appellees have to the question of the 
discriminatory bonus payments of 1941 and 1942 is that 
“ the testimony clearly shows, however, that this feature of 
the plan devised by these teachers was not understood by 
the board members, who thought that proportionate equality 
was being achieved”  (appellees’ brief, p. 59). It should be 
pointed out that the committee that worked out the plan 
was composed solely of white teachers (R. 89) and that 
Superintendent Scobee testified he did not even consider the 
question of putting some Negro teachers on the committee 
(R. 197). The plea of innocence of any deliberate discrim­
ination is nullified by the testimony of Superintendent 
Scobee, who testified that after the 1941 distribution of the 
bonus Negro teachers protested to him against the inequal­
ity in the method of distribution, yet, despite this plea the 
1942 payment was subsequently made on the same basis as 
the 1941 payment (R. 197). Appellees relying upon the 
case of Snowden v. Hughes, 321 U. S. 1, take the position 
that a scheme prepared by a group of teachers and adopted 
by the board “ under a mistake of fact”  is not state action 
within the meaning of the Fourteenth Amendment. This 
argument completely ignores, not only the factual material 
in the record, but likewise ignores many Supreme Court 
decisions as to state action. There can no longer be any 
doubt as to what constitutes “ state action”  since the case of 
Smith v. Allwright, 321 U. S. 649 (1944).



13

IV.

Appellees’ Tables and Matter De Hors
the Record.

The appellees in their brief set out tables of salaries 
purporting to be the salaries of some of the teachers in the 
public school system of Little Rock showing changes in the 
salaries since the trial of this case. This material de hors 
the record is not properly before this Court and should not 
be considered. This matter is presented without an oppor­
tunity of confrontation of witnesses or cross examination 
by appellants. The evil inherent in such a practice is 
apparent when we consider a portion of the salaries are 
produced without explaining, for example, the reasons why 
many of the Negro teachers are out of the system and 
without explaining that the reason appellant, Susie Morris, 
is no longer employed is because of the fact that ap­
pellees refused to renew her contract after the trial of 
this case. No explanation is given for the other Negro 
teachers who are no longer teaching so that appellees can 
now make the statement in their brief that “ tables 3, 4 and 
5 are omitted because the only Negroes included are no 
longer employed by the District” . Nor does the informa­
tion de hors the record presented by appellees show that 
Mr. Hamilton is no longer employed as a “ supervisor”  but 
is now relegated to the position “  Census, Attendance and 
Health Officer” .

The substantial increase in the salary of Mrs. Hibbler, 
appellant-intervener, and other Negro teachers, according 
to the tables in appellees’ brief, merely substantiate the 
position taken by appellants that there has been a policy 
of discrimination because of race in the fixing of salaries of 
teachers in Little Rock.

The issues in this case are not moot. Even if appellees 
had produced admissible evidence of a change of circum­
stances since the trial of the case, the issues would not be 
moot.



14

In the United States v. Trans-Missouri Freight Associ­
ation, 166 U. S. 290, 308,17 8. Ct. 540, 41 L. Ed. 1007 (1896), 
there was an action by the United States to enjoin the 
operation of an agreement among certain railroads as in 
violation of the Sherman Act. The lower Court dismissed 
the complaint and the government appealed. The defen­
dants filed a motion in the Supreme Court for dismissal on 
the ground that the Association had been dissolved. The 
motion was denied by Mr. Justice P eckham  in an opinion 
for the Supreme Court.

In Southern Pacific Terminal Company v. Interstate 
Commerce Commission, 219 U. S. 498; 31 S. Ct. 279, 55 L. 
Ed. 310 (1910), the Southern Pacific Terminal brought an 
action to enjoin the enforcement of an I. C. C. order. The 
order was limited to two years and the time expired while 
the case was being appealed. On the question as to whether 
or not the ease was moot, Mr. Justice McK enna, speaking 
for the U. S. Supreme Court, stated:

“ In the ease at bar the order of the Commission may 
to some extent (the exact extent it is unnecessary 
to define) be the basis of further proceedings. But 
there is a broader consideration. The question in­
volved in the orders of the Interstate Commerce 
Commission are usually continuing (as are mani­
festly those in the case at bar), and these considera­
tions ought not to be, as they might be, defeated, by 
short-term orders, capable of repetition, yet evading 
review, and at one time the government, and at an­
other time the carriers, have their rights determined 
by the Commission without a chance of redress”  
(219 U. S. at p. 515).

In both of the above cases the question arose after trial 
and pending appeal. There is, however, another case direct­
ly in point on this question.

In Yarnelly. Hillsborough Packing Company, 70 P. (2d) 
435 (1934), appellees were two Florida citrus fruit corpora­
tions.. Appellants composed the Florida Control Committee 
selected pursuant to AAA. Appellants, having been served



15

with notice of the application for a temporary injunction, 
on the day before the hill was filed revoked the prorate 
orders of which complaint was made. The injunction was 
issued. The Circuit Court of Appeals for the Fifth Circuit 
held that:

“  # * # As the control committee did not admit the 
illegality of the orders they revoked on the eve of the 
hearing, nor disclaim an intention to issue similar
orders in the immediate future, the ease is not moot# # * ??

The law in the federal courts on this matter seems clear. 
The instant case is even weaker than the Tarnell case 
(supra) because in the instant case there is no actual proof 
of the discontinuance of the discriminatory policy.

Conclusion.
This case marks an important step in the line of cases 

which have had for their purpose the removal of the prac­
tice, custom and usage of paying Negro teachers less salary 
than white teachers because of their race.

W herefore, it is respectfully submitted that the judg­
ment of the District Court should be reversed.

Respectfully submitted,

, J. R. B ooker,
Little Rock, Arkansas,

T hurgood M arshall,
New York, New York,

W illiam H. H astie, 
Washington, D. C.,

Counsel for Appellants.
E dward R. D udley,

New York, New York,
M yles A. H ibbler,

Little Rock, Arkansas,
Of Counsel.



I

/

-

\





Lawyers Press, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300