Farmer v. Greene County Board of Education Brief for Appellants

    In the

Initio GJmtrt of Appeals
F ob the F ourth Circuit 

No. 9125

Obediah F armer, a minor, by A aron F armer and D ora Mae 
F armer, Ms parents and next friends; Cleophius E d­
wards, a minor, by L illie M. E dwards, his mother and 
next friend,

Appellants,

T he Greene County B oard of Education, et al.,
Appellees.

BRIEF FOR APPELLANTS

Conrad 0 . P earson
2031/2 E. Chapel Hill Street 
Durham, North Carolina

J ack Greenberg 
D errick A. B ell, J r.
Norman C. A maker

10 Columbus Circle 
New York 19, New York

Of Counsel
J. LeV onne Chambers

Attorneys for Appellants



I N D E X
PAGE

Statement of the Case ......................................................  1

Questions Involved  ....... ................................................. 4

Statement of F acts....... ....................................................... 5

A rgument:

I. The Denial By The Court Below Of Appellants’ 
Motion For A  Preliminary Injunction, On The 
Record In This Case, And The Law Applicable
Thereto, Was An Abuse Of Discretion ............... 9

II. The Court Below Erred In Striking Paragraphs 
9 And 10 Of The Complaint................................... 15

III. The Court Below Erred In Its Refusal To Permit 
The Introduction Into Evidence Of The Deposi­
tions Taken Of The Defendants In The Prior 
Action To Desegregate The School System And 
The Court Below Further Erred In Not Per­
mitting Counsel For Plaintiffs To Introduce The 
Transcript Of The 1959 Hearing Before The 
Board On The Applications Of The Plaintiffs
In The Prior S u it......................................................  17

Conclusion................................................................................  21

T able of Citations

Cases:

Augustus v. Board of Public Instruction of Escambia
County, 306 F. 2d 862 (5th Cir. 1962) ....................... 16

Batelli v. Kagan & Gaines Co., 236 F. 2d 167 (9th Cir. 
1956) ...................................... .............. ............................  21



11

Bradley v. School Board of City of Bichmond, 317 F.
2d 429 (4th Cir. 1963)......................................................  12

Bell v. School Board of Powhatan County, Virginia 
(4th Cir. No. 8944, June 29, 1963, not yet re­
ported) ............ ................... ..... .......... ............... 11,13,15, 20

Brown v. Board of Education, 347 U. S. 483 (1954) ..5, 9,10
Brown v. Board of Education, 349 U. S. 294 (1955) .. 9,10
Brown & Williamson Tobacco Corp. v. United States,

261 F. 2d 819 (6th Cir. 1953) ....................................... 16

Cooper v. Aaron, 358 U. S. 1 (1958) ...............................9,10

Dodson v. School Board of the City of Charlottesville,
289 F. 2d 439 (4th Cir. 1961) ................................... 10

Gibson v. Board of Public Instruction of Dade County, 
Florida, 272 F. 2d 763 (5th Cir. 1959) ............. ..10,11,13

Green v. School Board of Roanoke, 304 F. 2d 118 (4th 
Cir. 1962) ......................................................... 10,11,12,14

Hill v. School Board of City of Norfolk, 282 F. 2d 473 
(4th Cir. 1960) ..................................................................  12

Insul-Wool Insulation Corp. v. Home Insulation, Inc.,
176 F. 2d 502 (10th Cir. 1949) ....................................... 19

Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) ..10,11,13,
14,15, 20

Jones v. School Board of City of Alexandria, Vir­
ginia, 278 F. 2d 72 (4th Cir. 1960) ...........................12,14

Mapp v. Board of Education of the City of Chatta­
nooga, 319 F. 2d 571 (6th Cir. 1963) ...................15,16,17

Marsh v. County School Board of Roanoke County,
Va., 305 F. 2d 94 (4th Cir. 1962)

PAGE

13



Ill

McCoy v. Greensboro City Board of Education, 283
F. 2d. 667 (4th Cir. 1960) .......................................10,13, 20

McNeese v. Board of Education, 373 U. S. 668 (1963) ..13,14

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1962) ............. ......... 10,13,15

Rivera v. American Export Lines, 13 F. R. D. 27 (S. D.
N. Y. 1952); 17 F. R. Serv. 26d. 62, Case 1 ...........  19

Smith v. Texas, 311 U. S. 128 (1940) ........................... 10

Township of Hillsborough v. Cromwell, 326 TJ. S. 620 
(1946) ...................... ............. .... ..... ............... .................  13

Wheeler v. Durham City Board of Education, 309 F. 2d 
630 (4th Cir. 1962) .................................. .......... .............  10

Statutes:

28 U. S. C. §1292 .................................       1

28 U. S. C. §1343 ................................................................  1

42 TJ. S. C. §1981 ..............................................................  1

42 TJ. S. C. §1983 ..............................................................  1

F. R. C. P. Rule 23(a)(3) .............................................  1

F. R. C. P. Rule 26(d) (2) and 26(d) (4) .........................18,19

N. C. Gen. Stat. §§115-176 to 115-179 ............................ 10,13

Other Authorities:

4 Moore’s Fed. Prac. 1(26.33 ..............................................  19

Note, 62 Col. L. Rev. 1448 (1962) ................. .................  13

PAGE



In t h e

United States (Em irt nt A p p e a ls
F oe the F ourth Circuit 

No. 9125

Obediah F armer, a minor, by A aron F armer and D ora Mae 
F armer, his parents and next friends; Cleophius E d­
wards, a minor, by L illie M. E dwards, M s mother and 
next friend,

Appellants,

T he Greene County B oard oe Education, et al.,

Appellees.

BRIEF FOR APPELLANTS

Statement of the Case

This appeal is from an order denying appellants’ Motion 
for Preliminary Injunction against the operation of the 
public schools of Greene County, North Carolina, on a 
racially segregated basis (224a). This appeal is brought 
under 28 U. S. C. §1292.

The complaint was filed as a spurious class suit pursuant 
to Rule 23(a)(3), Federal Rules of Civil Procedure in the 
United States District Court for the Eastern District of 
North Carolina, Washington Division, on March 4, 1963. 
There was jurisdiction under 28 U. S. C. §1343 and 42 
U. S. C. §§1981 and 1983. In essence, it alleged that the 
defendants, Greene County Board of Education and the 
Superintendent of Schools, Gerald D. James, maintained 
a compulsory biracial school system, in the county via the



2

assignment of school children to public schools in the county 
on the basis of race or color and through the perpetuation 
of dual school zones or attendance lines based on race or 
color. The complaint also alleged in paragraphs 9 and 10, 
that an earlier action to desegregate the schools was filed in 
May, 1960 by the two adult plaintiffs herein, parents of the 
infant plaintiffs in this action, and another Negro parent, 
residing in the county. It was alleged that this prior action 
was dismissed by the District Court on January 21, 1963 
after the five orginal minor plaintiffs had either graduated 
or dropped out of school and the court had refused to allow 
the present adult plaintiffs to intervene their children who 
were still in attendance at the Greene County schools. It 
was further alleged that the previous action had been insti­
tuted after the five original plaintiffs had applied to the de­
fendant school board for reassignment for the 1959-60 school 
term on a racially nondiscriminatory basis pursuant to 
the provisions of the North Carolina Pupil Enrollment Act 
and regulations of the Board and had been denied reas­
signment, The complaint also averred that plaintiffs had 
not again sought to exhaust the remedies of the Enroll­
ment Act prior to bringing this action because exhaustion 
would be “ futile and useless.” Accordingly, the complaint 
prayed the issuance of a preliminary and permanent in­
junction against continued operation of a biracial school 
system in the county (la-9a).

Motion for Preliminary Injunction or, in the alterna­
tive to require the defendants to present a plan for desegre­
gation was filed on March 5, 1963 (10a-12a).

The defendant school board thereafter moved to strike 
paragraphs 9 and 10 of the complaint relating to the prior 
action and also moved to strike paragraph 6 and the por­
tion of. paragraph 12 of the complaint containing aver­
ments with respect to the election, assignment and trans­
fer of teachers, principals and other supervisory person­
nel on a racial basis (13a-20a). A Motion to Dismiss the



3

action as to him was filed by the Superintendent of Schools, 
Gerald James, on the ground of his lack of authority to 
assign or transfer either school children or teachers with­
in the Greene County system (21a-23a).

Hearing on the Motion for Preliminary Injunction began 
on April 24, 1963. At the beginning of the hearing, defen­
dants filed an Answer to plaintiffs’ Motion for Preliminary 
Injunction (37a-38a). The hearing commenced with the oral 
testimony of the adult plaintiffs Dora Mae Farmer and 
Lillie M. Edwards (39a-84a). At the conclusion of this 
testimony, the hearing was continued until further notice 
(84a).

When the hearing was resumed on May 29, 1963, plain­
tiffs examined Superintendent of Schools James and the 
Chairman of the Greene County Board of Education, H. 
Maynard Hicks. Plaintiffs also sought to put in evidence 
the depositions of the School Superintendent and Board 
Chairman taken in the earlier dismissed action, but the Dis­
trict Court did not allow their introduction (202a-208a). 
Plaintiffs’ offer of the transcripts of the hearings held be­
fore the Board on the applications for transfer of the 
five students was also rejected. At the conclusion of the 
hearing, plaintiffs orally renewed their Motion for Pre­
liminary Injunction which the court denied, indicating that 
it would file a formal written order at a later date (221a).

On June 15, 1963 the District Court, after making its 
findings of fact, issued its order denying plaintiffs’ Motion 
for Preliminary Injunction from which this appeal is taken. 
The Court retained jurisdiction of the cause for the pur­
pose of determining the motions to strike and dismiss 
(230a-231a).

On June 17, 1963, the District Court granted the defen­
dant school board’s Motion to Strike paragraphs 9 and 10



4

of the complaint, but denied their Motion to Strike para­
graph 6 and a portion of paragraph 12 relating to teacher 
segregation (232a). On the same day, the Court granted 
Superintendent James’ Motion to Dismiss the action as 
to him (233a).

Answer was filed on July 1, 1963 (234a). Plaintiffs filed 
Notice of Appeal on July 12, 1963 (261a).

Questions Involved

The following questions were raised in the complaint 
(la-9a) and proffered evidence and in plaintiffs’ objection 
to defendants’ motion to strike paragraphs 9 and 10 of the 
complaint, and were decided adversely to plaintiffs (230a, 
232a, 208a).

(1) Whether plaintiffs, Negro school children and par­
ents, are entitled to injunctive relief restraining the con­
tinued operation of the Greene County public school system 
on a racially segregated basis and an order requiring the 
school Board to admit the nominal plaintiffs to the schools 
of their choice and to submit a plan for assigning all other 
pupils in the school system to the public schools without 
regard to their race.

(2) Whether the trial court erred in granting the defen­
dants’ motion to strike paragraphs 9 and 10 of the com­
plaint showing that prior requests had been made of the 
defendants to eliminate racial segregation in the schools 
by applying the North Carolina Pupil Enrollment Act in 
a nondiscriminatory manner.

(3) Whether the trial court erred: (a) in ruling that 
defendants’ depositions taken in the prior dismissed action 
were inadmissible in this action where the introduction of



5

said depositions was for the purpose of giving evidential 
support to plaintiffs’ contention that the defendants have 
not utilized the North Carolina Pupil Enrollment Act as 
a means whereby Negro children assigned initially on a 
racial basis could obtain transfer without regard to race; 
(b) in excluding plaintiffs’ offer of the transcripts of hear­
ings held before the Board of Education in 1959 on the 
applications for transfer of five Negro applicants from the 
one all-Negro high school in Greene County to the one all- 
white high school.

Statement of Facts

The Greene County school system has approximately
5.000 pupils, approximately 3,000 of whom are Negro and
2.000 of whom are white (100a, 226a). The system has 
eight elementary and two public high schools, one high 
school (Greene County Training School) being attended 
exclusively by Negro children and one high school (Central 
High School) being attended solely by white children (93a- 
95a, 130a-131a, 226a). The Greene County Training School 
was constructed in 1951 for the purpose of bringing to­
gether all the colored high schools in the County into one 
consolidated training school (98a). The Greene Central 
High School was completed in 1961 (95a). Appellant, 
Obediah Farmer, is now enrolled in the ninth grade at 
Greene County Training School and appellant, Cleophius 
Edwards is now enrolled in the tenth grade at that school 
(228a).

There are 170 teachers in the school system of which 
95 are Negro and 75 are white (139a, 226a).

Subsequent to the decision of the United States Supreme 
Court in Brown v. Board of Education, 347 U. S. 483



6

(1954), the Greene County Board of Education was au­
thorized by the North Carolina Legislature, N. C. Gen. 
Stat., §§115-176, et seq., to assign pupils within the County. 
Pursuant to this authorization the Board has divided the 
schools into school districts and students living within the 
defined districts are assigned to the school therein. The 
Superintendent of Schools of Greene County, Gerald D. 
James, testified that pupils were assigned on the basis of 
district lines drawn by the Board; that he had not gone 
through the Board files to determine whether two district 
maps were used—one for Negroes and one for whites—but 
that no Negroes had been assigned to a school attended 
solely by white children nor had a white child been as­
signed to a school attended solely by Negroes (94a-95a, 
113a-129a).

Following the adoption of the North Carolina Pupil En­
rollment Act, the Board has continuously assigned Negro 
elementary pupils to four elementary schools attended ex­
clusively by Negroes and white students to four elementary 
schools attended exclusively by whites. Teachers and other 
school personnel are also allocated on a segregated basis 
(121a, 125a, 140a, 200a-201a). The Board has a “ feeder 
system” by which students completing the four “ Negro” 
elementary schools are assigned to the one high school at­
tended exclusively by Negroes while whites are assigned to 
the high school attended exclusively by whites (129a-131a).

The Board has also adopted regulations governing re­
assignment of pupils by which pupils who are dissatisfied 
with their assignment may apply to the Board for reas­
signment to another school, but aside from this “ assignment 
plan”  the Board has never published any kind of document 
which would indicate to a Negro parent that he could enroll 
his child in a school that was attended by white children 
(175a). The standards or criteria for arriving at a decision



7

on transfer applications are those contained in the North 
Carolina Pupil Enrollment Act but the attempt to elicit 
through the testimony of the chairman of the School Board, 
H. Maynard Hicks, the manner in which these criteria have 
been used in passing upon transfer applications came to 
naught. His testimony was that the Board considers each 
individual application separately, taking into account “all 
of the information that the Board could get” to determine 
whether a reassignment “was for the best interest of the 
child . . . (and) of the Greene County School system” 
(182a-183a). No further elucidation of this was tendered by 
the Board Chairman. When asked by plaintiffs’ counsel:

Q. Well, what would be the kind of consideration 
that would lead to a judgment as to whether or not 
the granting or denial of an application was in the best 
interest of the child ?

Chairman Hicks replied:

A. There is no way I can answer that (183a).

At any rate, whatever the use to which the standards and 
criteria have been put, no desegregation of the schools has 
resulted.

In 1959, five Negro children, members of three families, 
two of which are involved in this present proceeding, ap­
plied to the Board for assignment to the Walstonburg High 
School, the high school then attended exclusively by whites. 
Prior to the filing of the applications, the Board had decided 
to close the Walstonburg High School (180a, 228a). The 
Walstonburg High School has been closed (229a) and re­
placed by Central High School (95a). Both adult plain­
tiffs testified that they are seeking reassignment of their 
children from Greene County Training School to Central



8

High because Central is closer to their respective places of 
residence (52a, 70a).

Each application for reassignment was heard and con­
sidered separately by the Board on the basis of the cri­
teria set forth under the rules and regulations governing 
changes in assignment. Each application was denied be­
cause in the School Board’s judgment, granting them would 
not have been “ in the best interest of either the child 
involved or the school board” (183a). However, Board 
Chairman Hicks was unable to state the basis upon which 
that judgment was made or to supply a reason why the 
applicants were not assigned to the “white” high school that 
was to replace the Walstonburg School (183a).

Following the denial of their applications, these five 
pupils filed suit in Federal District Court for the Eastern 
District of North Carolina in May 1960, seeking relief 
similar to that sought here (5a). This suit was dismissed 
after two of the five pupils had graduated from school, 
one had dropped out and two had moved from the County 
(5a, 228a-229a). No subsequent petitions or applications 
for reassignment by any Negro school children, including 
appellants, have been filed with the School Board since 
that time (229a). However, the adult appellant, Dora Mae 
Farmer, testified that an application to the Board for re­
assignment of her child was not made because she felt it 
would be “a waste of time” in light of the Board’s action 
on her prior application (49a-50a).



9

A R G U M E N T

I.
The Denial by the Court Below of Appellants’ Motion 

for a Preliminary Injunction, on the Record in This 
Case, and the Law Applicable Thereto, Was an Abuse 
of Discretion.

1. The Greene County school system is completely seg­
regated (94a-95a; 121a-130a; 200a-201a). Prior to and fol­
lowing the decision of the United States Supreme Court in 
Brown v. Board of Education, 347 U. S. 483 (1954), ap­
pellee, the Greene County Board of Education, has continu­
ously assigned Negro pupils to schools attended and staffed 
exclusively by Negroes. White pupils are assigned to 
schools attended and staffed exclusively by whites (94a- 
95a; 121a-130a; 200a-201a). Such assignments are made 
irrespective of the school district in which the Negro and 
white pupils reside and irrespective of any standards or 
criteria except the race of the pupil (52a, 104a-125a). No 
Negroes have been initially assigned to a white school 
(125a). Even though Negro pupils live nearer to white 
schools, they have been and continue to be initially as­
signed to all-Negro schools (52a, 70a).

The fundamental teaching of Brown v. Board of Educa­
tion, supra is that separation of students in public schools 
on the basis of race offends the Fourteenth Amendment. 
In the second Brown opinion, 349 U. S. 294 (1955), school 
authorities were given primary responsibility for effecting 
the “transition to school systems operated in accordance 
with the constitutional principles set forth in . . . [the 
first Brown] decision.” Id. at 300. And in Cooper v. Aaron, 
358 U. S. 1, 6-7 (1958), the Supreme Court called for “ the



10

earliest practicable completion of desegregation, and . . . 
appropriate steps [by school authorities] to put their pro­
gram into effective operation . . . ” as well as for ua prompt 
start, diligently and earnestly pursued, to eliminate racial 
separation in the public schools. . . . ” The right to nondis- 
criminatory education is a personal right. Brown v. Board 
of Education, 349 U. S. 294, 300 (1955), and may not be 
denied by a state directly or indirectly through evasive, 
ingenious or ingenuous schemes. Cooper v. Aaron, supra; 
Smith v. Texas, 311 U. S. 128 (1940); Cf. McCoy v. Greens­
boro City Board of Education, 283 F. 2d 667 (4th Cir. 1960).

Nine years following the Supreme Court’s decision in 
Brown, 347 U. S. 483 (1954), the appellee School Board has 
taken no steps to eliminate its discriminatory separation 
of students in the public schools. Nor has it offered any 
plan for desegregation of its school system save the North 
Carolina Pupil Enrollment Act, N. C. General Statutes 
§115-176, et seq. Decisions of this Court and of other Cir­
cuits have consistently held that notwithstanding the 
validity of pupil assignment acts on their face, they may 
not be selectively applied. Jeffers v. Whitley, 309 F. 2d 
621 (4th Cir. 1962); Wheeler v. Durham City Board of 
Education, 309 F. 2d 630 (4th Cir. 1962); Green v. School 
Board of City of Roanoke, 304 F. 2d 118 (4th Cir. 1962); 
Dodson v. School Board of the City of Charlottesville, 289 
F. 2d 439 (4th Cir. 1961); Northcross v. Board of Educa­
tion of the City of Memphis, 302 F. 2d 818 (6th Cir. 1962); 
Gibson v. Board of Public Instruction of Dade County, 
Florida, 272 F. 2d 763 (5th Cir. 1959). Thus, even if it be 
conceded that the Pupil Enrollment Act under which ap­
pellee operates is valid on its face, the record clearly shows 
that it has been applied so as to perpetuate, rather than 
to eliminate, the discriminatory practices condemned in 
Brown, supra. As shown by the record in this case, ap­



11

pellee has continuously assigned Negro pupils to schools 
attended exclusively by Negroes, even though they may live 
nearer to a white school. That Negro and white pupils 
have been, and continue to be, assigned to separate schools 
is itself sufficient to show that appellee is actively engaged 
in perpetuating segregation. Bell v. School Board of 
Powhatan County, Virginia (4th Cir. No. 8944, June 29, 
1963, not yet reported) ; Jeffers v. Whitley, supra; Gibson 
v. Board of Public Instruction, supra.

Nor is it an answer, at least under the facts of this 
case, that Negro parents “voluntarily” enroll their children 
in all-Negro schools. This Court has held that in the 
absence of some publication by school authorities that 
pupils may freely enroll in the school of their choice, no 
question of voluntariness exists. Jeffers v. Whitley, supra 
at 626. As stated by this Court in Jeffers, “ Since the schools 
have been operated on a completely segregated basis, 
parents of preschool children cannot be said to have any 
freedom of choice, until there has been some announce­
ment that such a right exists.” Ibid. Appellee has pub­
lished no announcement of any kind informing Negro 
pupils that they could enroll in or transfer to the school of 
their choice (175a). Thus, it cannot be said that separation 
of the races in the public schools of Greene County is volun­
tary. Jeffers v. Whitley, supra; Bell v. School Board of 
Powhatan County, Virginia, supra.

Moreover, the fact that pupils dissatisfied with their 
assignment may petition the appellee for reassignment 
to another school does not justify the initial discriminatory 
assignments. Such practices were expressly condemned in 
Green v. School Board of the City of Roanoke, supra:

Every white child is initially assigned to a school 
in a section other than section II, regardless of how 
near he might reside to a section II school. Every



12

Negro child, on the other hand, is initially assigned to 
a section II school, regardless of his place of resi­
dence or any other criteria. The Negro child, if he 
desires a desegregated education, must thereafter 
run the gauntlet of numerous transfer criteria in order 
to extricate himself, if he can, from the section II 
schools. These are hurdles to which a white child, 
living in the same area as the Negro and having the 
same scholastic aptitude, would not be subjected, for 
he would have been initially assigned to the school 
to which the Negro seeks admission. In Jones v. School 
Board of City of Alexandria, Virginia, 278 F. 2d 72, 
77 (4th Cir., 1960), this practice was expressly con­
demned. . . . 304 F. 2d at 123.

Here, as in Green, white pupils living in the same area 
as Negro pupils are initially assigned to white elementary 
schools. The appellee’s “ feeder system” assigns students 
completing the four Negro elementary schools to one high 
school attended exclusively by Negroes. Only by running 
the gauntlet of appellee’s reassignment regulations will a 
Negro pupil be able to transfer to a school to which a 
white pupil, similarly situated, would have been initially 
assigned. Such practices deprive the appellants of their 
constitutional right to nondiscriminatory education even 
though the same reassignment rules might be applied to 
white pupils who desire to transfer. Bradley v. School 
Board of City of Richmond, 317 F. 2d 429 (4th Cir. 1963); 
Green v. School Boad of City of Roanoke supra; Hill v. 
School Board of City of Norfolk, 282 F. 2d 473 (4th Cir. 
1960). For as pointed out by this Court in Jones v. School 
Board of City of Alexandria, Virginia, 278 F. 2d 72, 77 
(4th Cir. 1960), because of the existing segregation pat­
tern, it will be Negro pupils, primarily, who seek transfers. 
These holdings are in complete accord with those of other



13

circuits. E.g., Northcross v. Board of Education of the City 
of Memphis, supra; Gibson v. Board of Public Instruction 
of Dade County, Florida, supra.

2. The court below denied the appellants’ motion for a 
preliminary injunction apparently on the ground that ap­
pellants failed to exhaust their administrative remedies 
(224a-231a). It is well established, however, that this rule 
presupposes the administrative remedy to be effective. 
McNeese v. Board of Education, 373 U. S. 668 (1963); 
Township of Hillsborough v. Cromwell, 326 U. S. 620 
(1946). Thus, “ administrative remedies need not be sought 
if they are inherently inadequate or are applied in such a 
manner as in effect to deny the petitioners their rights.” 
McCoy v. Greensboro City Board of Education, 283 F. 2d 
667, 670 (4th Cir. 1960); Bell v. School Board of Powhatan 
County, Virginia, supra; Jeffers v. Whitley, supra; Marsh 
v. County School Board of Roanoke County, Virginia, 305 
F. 2d 94 (4th Cir. 1962); Note, 62 Col. L. Rev. 1448 (1962).

Appellants seek by this suit to obtain complete desegre­
gation of the Greene County school system. The reassign­
ment procedures of the North Carolina Pupil Enrollment 
Act, General Statutes §§115-178 and 115-179, and the ap­
pellee’s rules and regulations (254a-258a) do not purport to 
and cannot afford the appellants the relief they seek. The 
administrative remedies to which the Court below referred 
(228a-230a) govern only reassignment of pupils who are 
dissatisfied with their particular assignments and make no 
reference whatever to elimination of discriminatory prac­
tices in initial assignments or in the appellee’s “ feeder 
system.” Nor do these rules afford any relief for eliminat­
ing discriminatory appointments of teachers and school 
personnel.



14

Appellants do not seek merely the assignment of nominal 
plaintiffs to the white high school. Rather, they seek to en­
force their constitutional right to have appellee School 
Board eliminate all practices of discrimination in its school 
system. Appellants have no administrative remedy for such 
relief and rightfully asserted their rights in the first in­
stance in the federal court. McNeese v. Board of Education, 
supra.

Moreover, the administrative remedies which the lower 
court would have appellants exhaust subject appellants to 
requirements not applied to white pupils. Appellee has 
turned to the North Carolina Pupil Enrollment Act only 
when considering transfer requests. No use is made of this 
Act in making initial assignments, or if so, the record 
clearly shows that the Act has been and continues to be 
unconstitutionally applied. As stated by this Court in 
Jeffers v. Whitley, supra, where administrators “ have dis­
played a firm purpose to circumvent the law, when they 
have consistently employed the administrative processes to 
frustrate enjoyment of legal rights, there is no longer room 
for the indulgence of an assumption that the administrative 
proceedings provide an appropriate method by which recog­
nition and enforcement of those rights may be obtained.” 
Id. at 627. Here, as in Jeffers, there is no basis for as­
suming that the discriminatory composition of appellee’s 
schools resulted from the free volition of the pupils and 
their parents. Because of racial customs and practices, 
only Negro pupils primarily will be seeking transfers. 
Clearly, therefore, to subject appellants to different re­
quirements denies them their constitutional rights. Green v. 
School Board of City of Roanoke, supra; Jones v. School 
Board of City of Alexandria, supra. Nor is there basis 
for assuming that their rights would be protected if re­
quired to first seek relief before appellee. Thus, to deny 
appellants’ request for preliminary relief against the dis­



15

criminatory practices of appellee is a clear abuse of dis­
cretion. Jeffers v. Whitley, supra; Bell v. Board of Pow­
hatan County, Virginia, supra; Northcross v. Board of 
Education of the City of Memphis, supra.

II.
The Court Below Erred in Striking Paragraphs 9 and 

10 of the Complaint.

In Mapp v. Board of Education of the City of Chat­
tanooga, 319 F. 2d 571 (6th Cir. 1963), a question similar to 
that presented here was raised. There the appellee school 
board moved to strike allegations of a complaint by individ­
ual pupils that they were injured by the board’s policy of 
assigning Negro and white school personnel on an inte­
grated basis. There, as here, the plaintiffs prayed that the 
school board be enjoined from assigning school personnel 
on the basis of race or in the alternative, that the school 
board submit a plan for reorganization of its schools on an 
integrated basis. In reversing the trial court’s order strik­
ing these paragraphs from the complaint, the Sixth Circuit 
stated:

We agree that the teachers, principals and others 
are not within the class represented by plaintiffs and 
that plaintiffs cannot assert or ask protection of some 
constitutional rights of the teachers and others, not 
parties to the cause. We, however, read the attack 
upon the assignment of teachers by race not as seek­
ing to protect rights of such teachers, but as a claim 
that continued assigning of teaching personnel on a 
racial basis impairs the students’ right to an education 
free from any consideration of race. Neither by the 
first Brown decision, nor by its later decisions has the 
Supreme Court ruled upon the question of law pre­



16

sented. None of the Circuits have ruled upon the 
question. 319 F. 2d at 576.

The Court in Mapp did attempt to rule on “ the legal ques­
tion presented as it relates to the assignment of teachers 
and principals.” It quoted from its decision in Brown & 
Williamson Tobacco Corp. v. United States, 261 F. 2d 819, 
822 (6th Cir. 1953), to the effect that:

Partly because of the practical difficulty of deciding 
cases without a factual record it is well established 
that the action of striking a pleading should be spar­
ingly used by the courts. Colorado Milling <fb Elevator 
Co. v. Howbert, 10 Cir., 57 F. 2d 769. It is a drastic 
remedy to be resorted to only when required for the 
purposes of justice. Batchelder v. Prestman, 103 Fla. 
852, 138 So. 473; Collishaw v. American Smelting & 
Refining Co., 121 Mont. 196, 190 P. 2d 673. The mo­
tion to strike should be granted only when the plead­
ing to be stricken has no possible relation to the con­
troversy. Samuel Goldwyn, Inc. v. United Artists Cor­
poration, D. C., 35 F. Supp. 633; Wooldridge Mfg. Co. 
v. R. G. La Tourneau, Inc., D. C., 79 F. Supp. 908. 
Ibid.

And applying these rules to the case before it, the court 
restored the stricken allegations to the complaint to “await 
developments in the progress of the plan approved.” Cf. 
Augustus v. Board of Public Instruction of Escambia 
County, 306 F. 2d 862, 868 (5th Cir. 1962).

Paragraphs 9 and 10 of appellants’ complaint are ma­
terial and essential to appellants’ case. As allegations 
susceptible of proof and in fact proved, they were designed 
to show not only that the defendants had been put on 
notice that desegregation of the school system was de­



17

sired, but also that attempts in this regard had been made 
including resort to the administrative remedy which resort 
had produced no results and was unlikely to produce any. 
If allegations in a pleading which pose a legal question, de­
cision as to which may be deferred, may not be stricken, 
see Mapp v. Board of Education of the City of Chattanooga, 
supra, a fortiori, allegations raising essential and material 
issues to a case are not to be stricken.

III.

The Court Below Erred in Its Refusal to Permit the 
Introduction Into Evidence of the Depositions Taken 
of the Defendants in the Prior Action to Desegregate 
the School System and the Court Below Further Erred 
in Not Permitting Counsel for Plaintiffs to Introduce 
the Transcript of the 1959 Hearing Before the Board 
on the Applications of the Plaintiffs in the Prior Suit. 1

1. As the record indicates, after denial of the applica­
tions of the five Negro children in 1959 for reassignment to 
the Walstonburg High School from the Greene County 
Training School, those individuals filed suit against the 
parties who are appellees here seeking substantially the 
same relief as asked for in the present suit. During the 
course of the prior suit, depositions of the Superintendent 
of Schools, Gerald James, and Chairman of the Board, 
H. Maynard Hicks, were taken pursuant to the discovery 
procedure of the Federal Buies of Civil Procedure. The 
suit was later dismissed after two of the five plaintiffs had 
graduated, two had moved out of the County, and one had 
dropped out of school (5a, 228a).

During the course of the resumed hearing on the motion 
for preliminary injunction on May 29, 1963, counsel for 
plaintiffs (203a) sought to introduce into evidence the depo-



18

sitions taken of the defendants in the prior dismissed action 
hut were not permitted to do so by the District Court (208a). 
The purpose of seeking to introduce the depositions was 
to place in the record of this action the admissions of the 
Superintendent of Schools and the Chairman of the Board, 
defendants in both causes, which would have supported 
plaintiffs’ contentions that the misconduct of the Board 
had persisted unabated from 1959, the time of the original 
applications, through the present time since those deposi­
tions clearly manifested a continuing course of discrim­
inatory conduct.

The court below was clearly wrong in not allowing the 
introduction of the depositions. The applicable federal 
rules are Rule 26(d )(4 )1 of the Federal Rules of Civil 
Procedure and Rule 26(d)(2) of the Rules.* 2 The former 
rule allows the use of a deposition taken in an action that

"Rule 26(d)(4) :
“ (4.  ̂ *  *  *

“ Substitution of parties does not affect the right to use 
depositions previously taken; and, when an action in any court 
of the United States or of any state has been dismissed and 
another action involving the same subject matter is afterward 
brought between the same parties or their representatives or 
successors in interest, all depositions lawfully taken and duly 
filed in the former action may be used in the latter as if 
originally taken therefor.”

2Rule 26(d)(2) :
“d) Use of Depositions. At the trial or upon the hearing 

of a motion or an interlocutory proceeding, any part or all of 
a deposition, so far as admissible under the rules of evidence, 
may be used against any party who was present or represented 
at the taking of the deposition or who had due notice thereof, 
in accordance with any one of the following provisions:

# # #
“ (2) The deposition of a party or of any one who at the 

time of taking the deposition was an officer, director, or man­
aging agent of a public or private corporation, partnership, 
or association which is a party may be used by an adverse 
party for any purpose.”



19

has been dismissed in a subsequent action involving the 
same subject matter and the same parties, their repre­
sentatives, or successors. The defendants in this action are 
exactly the same as the defendants in the prior action, the 
gravamen of the suit is exactly the same, and the only 
variance is with respect to the named plaintiffs. Yet, even 
here, two of the adult plaintiffs are identical to those in the 
former action. Rule 26(d)(4), when read in conjunction 
with Rule 26(d)(2) which permits the use by an adverse 
party of a deposition for any purpose, removes all doubt 
as to the propriety of the attempted introductions of the 
depositions at the May 29 hearing.

In addition to the language of the Rules, there is case 
law authority with which the District Court was presented 
(202a) but chose to ignore. Insul-Wool Insulation Corp. 
v. Home Insulation, Inc., 176 F. 2d 502 (10th Cir. 1949); 
Rivera v. American Export Lines, 13 F. R. D. 27 (S. D. 
N. Y. 1952), 17 F. R. Serv. 26d.62, Case 1. Gf. 4 Moore’s 
Fed. Prac. U26.33:

The deposition of a party taken in a prior dismissed 
action may be used in the federal court by an adverse 
party for any purpose, including the use as evidence 
of admissions, against the party, or the representative 
or successor in interest of the party whose deposition 
was taken.

Under the more orthodox practice, in order for the 
deposition to be admissible in the second action, the 
parties must be the same, or their privies, and the 
issues must be substantially the same. But this prac­
tice has yielded in appropriate situations to admis­
sibility where there is solely an identity of issues be­
tween the two actions. 2

2. In 1959, five Negro pupils, not involved in this pro­
ceeding, filed applications with appellee for reassignment



20

to the white high school. Following the hearing and subse­
quent denial of their applications, these pupils filed suit 
against appellee in the Federal District Court for the East­
ern District of North Carolina.

At the resumed hearing on their motion for preliminary 
injunction, appellants tried to place in evidence the minutes 
of the 1959 hearing to show the discriminatory methods 
by which appellee considered the applications for transfer 
(184a). In appellants’ view, introduction of these minutes 
would have aided presentation of its ease by giving addi­
tional support to their argument—reiterated many times 
before the trial court—that the attempt to pursue the ad­
ministrative remedy was an unavailing act. The Court re­
fused to permit this evidence on an issue which obviously 
was crucial in the court’s view (see Findings of Fact Nos. 
13,15; 228a-229a). Clearly, evidence of discriminatory con­
sideration of Negro applications for transfers was relevant 
and the trial court’s ruling prejudiced appellants in sus­
taining their burden of proving the discrimination. For, 
as held by this Court in Jeffers v. Whitley, supra, at 267, 
use of administrative processes by state officials to frus­
trate the enjoyment of constitutional rights eliminates any 
necessity for exhaustion of administrative remedies. See 
also, McCoy v. Greensboro City Board of Education, supra.

Nor is it important that appellants here were not in­
cluded among those who had made application to the Board. 
Appellants sought to show by this evidence unswerving 
maintenance of the policy of segregation under the guise 
of application of the standards of the Pupil Enrollment 
Act. They were not required to show that with respect to 
any particular application of theirs discriminatory criteria 
had been applied, cf. Jeffers v. Whitley, supra; Bell v. 
Board of Powhatan County, Virginia, supra; McCoy v.



21

Greensboro City Board of Education, supra, the view ap­
parently taken by the court below. Even if such proof were 
required, any substantial harm to appellee resulting from 
admitting such evidence was removed by Board Chairman 
Hicks’ admission (183a-184a) of the vague standards ap­
plied in considering the applications for reassignment. See 
Batelli v. Kagan & Gaines Co., 236 F. 2d 167 (9th Cir. 
1956).

CONCLUSION

W herefore, appellants respectfully pray that the judg­
ment below be reversed and the cause remanded to the 
District Court with instructions to :

1) admit appellants to the schools of their choice for 
the school semester commencing in January or February, 
1964 so that a start toward desegregation of the public 
schools of the county may be made;

2) enter an order enjoining appellees from continuing 
to maintain the unconstitutional policy and practice of 
segregation within the public schools of Greene County;

3) enter an order requiring appellees to submit a com­
plete plan for desegregation of the Greene County pub­
lic school system commencing with the 1964-65 school year;

4) enter an order restoring paragraphs 9 and 10 of the 
Complaint and permitting the introduction into evidence 
of the depositions taken in the prior dismissed action and 
the minutes of the hearing held before the Greene County



22

Board of Education in 1959 on the applications for reas 
signment of the five Negro school children who were plain 
tiffs in the prior action.

Respectfully submitted,

Conrad 0 . Pearson

2033/2 East Chapel Hill Street 
Durham, North Carolina

Jack Greenberg 
Derrick A. B ell, Jr.
Norman C. A maker 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

Of Counsel
J. L eV onne Chambers



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