Houston Lawyers' Association v. Mattox Appendix to Petition for Writ of Certiorari
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September 28, 1990

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Brief Collection, LDF Court Filings. School District No. 20, Charleston, South Carolina v. Brown Brief of School District Appellants, 1963. 9f485449-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0fb4adff-c521-4d28-a618-0894f9f25840/school-district-no-20-charleston-south-carolina-v-brown-brief-of-school-district-appellants. Accessed July 18, 2025.
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BRIEF OF SCHOOL DISTRICT APPELLANTS United States Court of Appeals FOURTH CIRCUIT No. 9216 SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, a public body corporate, and CHARLES A. BROWN, Chairman of SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, and THOMAS A. CARRERE, Superintendent, LAWRENCE O'HEAR STGNEY, LEON ARD A. MACKEY, JOHN T. WELCH, MRS. EDWIN A. PEARLSTINE, MRS. W. ALLAN MOORE, JR., DR. JOHN C. HAWK, JR., Members, BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 20, CHARLES TON, SOUTH CAROLINA, and MARK ALLEN, a minor, by W. K. ALLEN, his father and next friend; BARBARA L. BELLOWS and GEORGE BELLOWS, JR., minors, by their father and next friend GEORGE BELLOWS; JULIA JEANNE CANFIELD, a minor, bv EUGENE C. CANFIELD, her father and next friend; and ELIZABETH S. STACK and WILLIAM F. STACK, JR., minors, by WILLIAM F. STACK, SR., their father and next friend, Intervenors, Appellants, versus MILLICENT F. BROWN, a minor, by J. ARTHUR BROWN, her father and next friend; and OVETA GLOVER, a minor, by B, J. GLOVER, her father and next friend; and VALARIE WRIGHT, a minor, by MAMIE WRIGHT, her mother and next friend; and CLARISSE KARAN HINES, a minor, by ELIZABETH HINES, her mother and next friend; and RALPH STONEY DAWSON, a minor, by FRED DAWSON, his father and next friend, and HENDERSON ALEXANDER, EDDIE ALEX ANDER, CASSANDRA ALEXANDER AND GERALD ALEXANDER, minors, by MARY ALEXANDER, their mother and next friend; and JACQUELINE FORD, BARBARA FORD and GALE FORD, minors, by CLARENCE FORD, their father and next friend, 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 St a t e s f o r t h e E a s t e r n D is t r ic t o f So u t h C a r o l in a a t C h a r l e s t o n SINKLER, GIBBS & SIMONS, Charleston, S. C. A. T. GRAYDON, DAVID W. ROBINSON, Columbia, S. C. Attorneys for School District Appellants. W Al T<Er" ' iiEVANS i"& doGSWELL."'CO.— pVmt“ “ ''of' 1 mlslVn,”t!o7i“ lsince'"lS2X—"dFHARLESTON. S. C. INDEX P a g e Statement of the Case_____________________________________ 1 Statement of Questions Involved___ ______________________ 4 Statement of Facts__________________________________ 4 Argument: Question No. 1_______________________•____ ___________ 7 Question No. 2______________ 9 Question No. 3________________________________________15 Question No. 4__________________________ 16 TABLE OF CASES P a g e Briggs v. Elliott, 132 F. Supp. 776 (1955) _______________ 17 Brown v. Board of Education, 349 U. S. 294 (1955), 75 S. Ct. 753; 99 L. Ed. 1083 _________ _____________ 14, 16 Brunson v. Board of Trustees of School District No. 1 of Clarendon County, 4 Cir. 311 F. 2d 107, 109 (1962) __________________________________________________11 Burford v. Sun Oil Co., 319 U. S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 ___________ 11 Carson v. Warlick, 238 F. 2d 724, cert. den. 353 U. S. 910, 77 S. Ct. 665, 1 L. Ed. 2d 664 (1956) _________ 14,16 Jeffers v. Whitley, 309 F. 2d 621 (1962) ______________11,15 McNeese v. Board of Education, 373 U. S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (June 3, 1963) ______ 11,13 Peterson v. City of Greenville, 373 U. S. 244, 83 S. Ct. 1119, L. Ed. 2 d _________________________________________ 16 Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 2d 1161 _________________________________________________16 U. S. v. Cruickshank, 92 U. S. 542 ______ __________________ 16 BRIEF OF SCHOOL DISTRICT APPELLANTS United States Court of Appeals FOURTH CIRCUIT No. 9216 SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, a public body corporate, and CHARLES A. BROWN, Chairman of SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, and THOMAS A. CARRERE, Superintendent, LAWRENCE O’HEAR STONEY, LEON ARD A. MACKEY, JOHN T. WELCH, MRS. EDWIN A. PEARLSTINE, MRS. W. ALLAN MOORE, JR., DR. JOHN C. HAWK, JR., Members, BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 20, CHARLES TON, SOUTH CAROLINA, and MARK ALLEN, a minor, by W . K. ALLEN, his father and next friend; BARBARA L. BELLOWS and GEORGE BELLOWS, JR., minors, by their father and next friend GEORGE BELLOWS; JULIA JEANNE CANFIELD, a minor, by EUGENE C. CANFIELD, her father and next friend; and ELIZABETH S. STACK and WILLIAM F. STACK, ]R „ minors, by WILLIAM F. STACK, SR., their father and next friend, Intervenors, Appellants, versus MILLICENT F. BROWN, a minor, by J. ARTHUR BROWN, her father and next friend; and OVETA GLOVER, a minor, by B. J. GLOVER, her father and next friend; and VALARIE WRIGHT, a minor, by MAMIE WRIGHT, her mother and next friend; and CLARISSE KARAN HINES, a minor, by ELIZABETH HINES, her mother and next friend; and RALPH STONEY DAWSON, a minor, by FRED DAWSON, his father and next friend, and HENDERSON ALEXANDER, EDDIE ALEX ANDER, CASSANDRA ALEXANDER AND GERALD ALEXANDER, minors, by MARY ALEXANDER, their mother and next friend; and JACQUELINE FORD, BARBARA FORD and GALE FORD, minors, by CLARENCE FORD, their father and next friend, 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 St a t e s f o r t h e E a s t e r n D is t r ic t o f So u t h C a r o l in a a t C h a r l e s t o n STATEMENT OF THE CASE This is a suit which was commenced by appellees who are or were minor Negro school pupils enrolled in the Charleston City Schools. The Complaint by its prayer sought to enjoin ( 1 ) the Charleston District No. 20 School Board from operating a compulsory bi-racial school system in Charleston County and asked the Court to direct the presentation of a plan for desegregation by the School Board. (Ap., pp. 8-9). The district involved encompasses the City of Charleston and the defendant School Board has denied that there is compulsory segregation of the races in the schools of the dis trict. As to the particular Negro appellees, the School Board averred that the procedures set out by Statute and the rules of the School Board have not been followed by several ap pellees and that four appellees who applied in 1961 had been denied the right of transfer on non-racial grounds after proper hearings. As a further defense the School Board alleged certain ethnic differences between the white and negro races which make the education of the two races on a fully integrated basis de structive of the educational system in the district. The School Board asserted this position in its Answer ( Ap., pp. 15-19) and again in its Petition for Amendment and/or Vacation of the Order of the District Court (Ap., pp. 301-308). The intervention of certain white pupils was permitted, and the intervenors filed an Answer setting out the same gen eral allegations as to ethnic differences between the races and relied on that defense alone. The testimony in this regard was presented by the intervenors and the School Board’s posi tion ( stated in the Motion to Amend the District Court’s Order) is substantially the same as that of the intervenors with reference to that issue. No separate brief will be filed by the School Board on that issue and the Court’s attention is directed to the brief of intervenors. Lengthy and exhaustive testimony was taken, principally 2 School D ist. No . 20 & M ark Allen , et a l , A ppellants, v , M illicent F. Brow n , et a l , A ppellees 3 on the ethnic issue, in hearings conducted in Columbia on August 5 and 6, 1983. The appellees’ case was based on the deposition of Thomas A. Carrere, Superintendent of the School District involved ( Ap., pp. 34-46); certain interrogatories and answers (Ap., pp. 47-57); and the testimony at the trial of Mr. Carrere (Ap., pp. 71-84), and of the chairman of the Board of School Dis trict No. 20 (Ap., pp. 84-85) and of the Supervisor of negro schools for the District ( Ap., pp. 85-91). The portion of the record relating to the administrative procedures issue is contained in pages 92-100 of the Appendix and on pages 248-276 of the Appendix. That testimony and the records will be reviewed under Point 2. On August 22, 1963, District Judge Martin issued an Order directing the enrollment of 11 of the appellees “at the white school, where a white child would normally attend . . . ” The Order restrained the Board from refusing admission, as signment or transfer of other negro children on the basis of color for the year 1964-65, enjoined the Board from “futile, burdensome or discriminatory administrative procedures” and set out specific administrative procedures to be followed. The Order also allowed the Board to file a school desegregation plan but provided for the Court-ordered plan to remain in effect until such a plan is presented and approved. The School Board defendants moved to amend and/or va cate Judge Martin’s Order, and the grounds for the appeal by these appellants ( School District No. 20, its Board of Trus tees and its Superintendent) are set out on pages 297-301 of the Appendix. An exception relating to the administrative directions contained in the order is set out in paragraph 14 of Part III of the Petition (Ap., p. 308). The petition was refused by Judge Martin on September 5, 1963, and the appeal to this Court followed. STATEMENT OF THE QUESTIONS INVOLVED 1. Was the procedure provided by the South Carolina Statutes for transfer of pupils, and the rules promulgated pursuant thereto by the Charleston County Board of Educa tion, adequate? 2. Were the procedures properly followed by the Board of Trustees of School District No. 20 and the Charleston County Board of Education? 3. Even if the procedure under the statutes and rules were found inadequate or if the same were not properly followed by school authorities, did the District Judge err in specifying and promulgating administrative rules for the operation of the schools? 4. Was there any basis for findings by the District Court that the schools were operated on a basis of compulsory segre gation enforced by the School Board? STATEMENT OF FACTS No negro child has ever presented himself for initial enroll ment at the first grade level in a school other than one at tended by negro children in the City of Charleston (Ap. 51 and 100). Prior to the applications of the plaintiffs in this suit, the first of which were in the fall of 1960, no negro stu dents had ever applied for transfer to a school other than one attended by negro children. In October of 1960, several negro pupils, including most of the plaintiffs in this suit, filed applications for transfer to schools up to that time attended only by white children. The Trustees of the School Board replied promptly to these ap 4 School D ist. N o . 20 & M ark Allen , et a l , A ppellants, v . M illicent F. Brow n , et a l , A ppellees 5 plications for transfer, advising that the time for applying for transfer under the Board’s regulations had passed and that the requested assignments could not be considered. The rules and administrative procedures under which these transfer ap plications were denied (Ap. 248) require filing of such appli cations four months in advance of the opening of school, and since the 1980-196.1 school year had already started, these applications were not timely. The applicants processed their applications pursuant to the rules and administrative pro cedures and pursuant to South Carolina law (Ap. 313 et seq.) by appeal to the County Board of Education from the School Board’s denial. The School Board filed a return to the appeal and the County Board of Education held a hearing and af firmed the School Board’s action. The County Board of Educa tion held that the four-months rule was a reasonable one and that there had been no abuse of discretion in its application. Reproduced in the Appendix, beginning at p. 251 and ending at the middle of p. 258, are the 1960 proceedings with respect to three Ford children; similar proceedings were separately had with respect to all the other 1960 applicants and sub stantially similar disposition made of their applications. Nothing further was done following the County Board of Education’s dismissal of the 1960 petitions for transfer. The 1960 proceedings involved the Alexander, Dawson, Ford, Glover, Hines, Wright, Toomer and Seabrook children. In 1961, a different Brown child but the same Dawson, Glover, Hines, Wright and Seabrook children applied for transfer, this time early in May and more than four months prior to the opening of the schools for the 1961-1962 year. All these children were given a hearing by the defendant School Board. Prior to the hearing, the Board conducted a thorough investigation into each child’s record, background and per sonality, considering all available pupil records and interview- mg the school Principal in each case, as well as their teachers wherever possible. On the basis of such investigation and hearing the Board concluded as to each applicant that it was to his or her best interests educationally to remain in the school from which transfer was being sought. The negro children appealed the Board’s determination to the County Board of Education and upon a hearing de novo that body concluded that the School Board’s action was predi cated upon the welfare and interests of the child for whom transfer was sought and that the propriety of the School Board’s denial of such transfer was abundantly supported by the rec ord. Reproduced in the Appendix, beginning at p. 258 and end ing on p. 273, are the 1961 proceedings with respect to the Wright child; similar proceedings were separately had with respect to the Brown, Dawson, Hines and Seabrook children and substantially similar disposition was made of their appli cations. The Glover child did not appeal to the County Board of Education from the defendant School Board’s denial of her transfer application. The plaintiffs in this suit accordingly comprise: (1 ) Milli- cent Brown, Valarie Wright, Clarisse Hines and Ralph Stoney Dawson, all of whom completed the South Carolina statutory administrative procedures under the defendant School Board’s rules and administrative procedure; (2 ) the Alexander and Ford children, who did not participate in the 1961 transfer applications following denial of their 1960 applications on the ground of the four-months rule; and (3 ) Oveta Glover, who only partially completed the South Carolina statutory adminis trative procedures. The Toomer and Seabrook children did not join in the suit and subsequent to the filing of the suit the plaintiff Valarie 6 School D ist. N o . 20 & M ark Allen , et a l , A ppellants, v . M illicent F. Brow n , et a l , A ppellees 7 Wright and one of the five Alexander children, Henderson Alexander, ceased to attend the Charleston schools. A factual summary of the administrative procedure in this case is contained in the discussion of Question 2 below. ARGUMENT 1. The Statutory procedure and rules promulgated by School District No. 20 were adequate. Whether the statutes and rules were adequate is not to be determined by the results obtained under those rules but by the statutory enactments and rules themselves. Improper ad ministration of the procedure would not invalidate the rules if they are adequate when properly administered. If the hearings held pursuant to the rules had resulted in the admission of one or more negroes to Charleston’s white schools, then there would be no complaint by appellees about the procedure. But that was not the case, and the District Judge has held the rules and regulations inadequate because “they fail to establish a right of choice, to a child or his parents, at the time of enrollment and the announcement of such right of choice made known to the parents of pre school children.” (Ap., p. 291). But the District Judge found that “No formal application has been made by any negro child to enter a white school at the first grade level.” All of the appellees had petitioned for transfer to a white school. What the District Judge has done is to find that the rules and regulations are inadequate because the School Board failed to grant the requests of appellees for transfer. The Statute (Section 21-230 ( 9 ) ) provides that school trus tees shall “Transfer any pupil from one school to another so 8 School D ist. No . 20 & Mark Allen , et a l , A ppellants, v . as to promote the best interests of education, and determine the school within its district in which any pupil shall enroll.” (Ap„ p. 313). Sections 21-247—21.247.6 provide a remedy for a parent who does not agree with the action of the Board of Trustees of the School District upon an application for transfer. (Ap., pp. 314-315) That procedure, in summary, is as follows: (a ) An appeal to the County Board of Education by peti tion; (b ) Separate hearings de novo by the County Board of Education; (c ) An appeal to the Court of Common Pleas upon the record below from any order of the County Board of Education; (d ) An appeal to the Supreme Court of the State. The rules and administrative procedures adopted by the School Trustees provided for: (Ap., pp. 248-250) (a ) Written applications for a request for transfer to be filed four months before the opening of the schools concerned; (b ) Reasons for the transfer set out in the application; (c ) Standards for the Board to follow in passing on such applications including “scholarship attained, age, culture, daily companions and associates, intelligence, whether the educa tion of applicant and his standing in class better fits him to the school in which he has been enrolled or the one men tioned in the application, and such further facts and standards as may be in the public interest for the promotion of educa tion and to protect the health, morals, and general welfare of the community.” M illicent F. Brow n , et a l , A ppellees 9 (d ) Written notice of the Board’s public hearing; (e ) A public hearing; ( f ) Right of appeal to the County Board of Education and the Courts. No mention of race is made in the statutes or the rules. If pupils are to be given the unquestioned right to transfer upon application, the orderly administration of the schools would end. The District Judge has not specified wherein the statutes and rules are inadequate, and we assert that the procedure is entirely reasonable and adequate. The lack of positive provisions promoting “free choice” in no wise shows that the rules are inadequate. The statute and rules were there for the use of any parent; clearly they are not inadequate as a matter of law. 2. The procedures were properly followed by the School Board in this case. The exact procedures set out by the statutes and rules and regulations of the School Board were followed in this case. The 1960 application for transfers to white schools, all of which were filed in October on behalf of 12 of the appellees, were all rejected because the 1960-1961 term was underway; the rule provided for the submission of applications four months before the opening of school. Eight of these ap plicants took no further administrative steps although the Dis trict Judge found that their applications would have been denied had they pursued the administrative relief. The primary purpose of a school system is education, and in order for there to be any reasonable chance of conveying an education to the pupils, a system is necessary—even im perative. Overcrowded conditions and disruption of orderly educational processes is destruction of education itself. There was no contention on the trial (and there can be no good faith contention) that the Board acted improperly in rejecting the applications for transfer in the middle of the school year. The District Judge recognized the danger and impracticability of wholesale transfers in 1963-1964. The Dis trict Judge recognized by his Order the impropriety of in term transfers. These denials were therefore entirely proper. W e come, therefore, to the applications for transfer which were filed in May, 1961. The four applications with which this appeal is concerned were filed as required and the fol lowing is the chronology of the handling of these applications. 1. May 1st: Applications for transfer filed. 2. May 5th: Receipt of application acknowledged by School Board. 3. July 12th: Hearing set before School Board for July 19th. 4. July 19th: Hearing held. 5. July 29th: Denial of transfers recommended by Spe cial Committee of the School Board as not being in “best interests” of children in de tailed report on each child. ( Ap. pp 260- 267). 6. July 31st: Petition for transfer denied by School Board. 7. August 10th: Petitions filed with County Board of Education. 10 School D ist . No . 20 & M ark Allen , et a l , A ppellants, v . M illicent F. Brow n , et a l , A ppellees 11 8. August 29th: Return filed by School Board asking that petition to County Board be dis missed. 9. January 18th, 1962: Appeals dismissed by the County Board of Education after hear ing de novo. The various applications have been handled in exact ac cordance with the statutory directives and procedures and there is nothing in the pleadings or in any of the record which indicates that race was the factor, or even a factor, which motivated the denials of these transfers. The various applications were handled on an individual basis, for the rights are individual, and nothing in this record would indicate a better or preferable method of treatment. In Brunson v. Board of Trustees of School District No. 1 of Clarendon County, 4 Cir. 311 F. 2d 107, 109 (1962) the Court said: “As we stated in Jeffers [v. Whitley, 4 Cir. 309 F. 2d 621 (1962)], we have held that rights under the Fourteenth Amendment are individual and are to be individually asserted only after individual exhauston of any reasonable state reme dies which may be available ® The “state remedies” referred to in Brunson are, of course, administrative and procedural, Burford v. Sun Oil Co. 319 U. S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424, and not rights given by state law in state litigation, McNeese v. Board of Education, 373 U. S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 ( June 3, 1963). The facts in the instant case distinguish it from Jeffers v. Whitley, 4 Cir. 309 F. 2d 621 (1962). Here the administrative remedies, as administered, cannot be called “ unnegotiable obstacle courses;” there has been no “invariable denial of interracial transfer requests;” they cannot be said to accord only “freedom of choice at the first grade level, without any right of choice thereafter;” and in the ad ministrative hearings held by the Board of Trustees and the County Board of Education there has been no “general disre gard by the School Board of the constitutional rights of negro pupils who do not wish to attend schools populated exclusively by members of their race.” Charleston children attend schools with other children of their own race in the absence of applications to attend specific schools. It is clear that the Board was warranted in conclud ing that such voluntary attendance did not conflict with their constitutional rights. A voluntary separation of the races in schools “is uncondemned by any provision of the Constitution,” Jeffers v. Whitley, supra, at p. 627 of 309 F. 2d, and failure to apply to attend a specific school reasonably indicates satis faction with the Board’s school “assignment” practice. The court recognized in Jeffers v. Whitley, supra, at p. 628 of 309 F. 2d, that administrative remedies “have a place in a voluntary system of racial separation,” and that in such a system “a school official might still deny a particular request upon grounds thought not to undermine the voluntary nature of the system.” “In that event,” the court said, “it would be appropriate for the state to provide the applicant effective means of administrative review, and failure to pursue an ade quate administrative remedy might foreclose judicial interven tion.” Although the court found in Jeffers that the School Board had been “obstinate in refusing to recognize the constitutional rights of Negro applicants,” it held that the plaintiffs were not entitled to an order “requiring the School Board to effect a general intermixture of the races in the schools.” 12 School D ist. No . 20 & M ark A llen , et a l , Appellants, v . M illicent F. Brow n , et a l , A ppellees 13 The applications here involved were handled by the Board of Trustees and by the County Board of Education on the basis of the educational best interests of the respective ap plicants, as found by the Boards from the showing made, and not on the basis of their race. They were all transfer applica tions, and no circumstances appeared which negatived the usual conclusion that it is educationally in the best interest of a school child to continue in the class of which he or she has become a part. It is respectfully submitted that the evidence does not show compulsive segregation, like that found in Jeffers; on the con trary, there is here a total absence of evidence of “official coercion or compulsion.” Hence, the question presented to the Court is whether the rejections of the transfer applications by the Board were sus tained by, or were unwarranted under,, the evidence adduced before it, and not whether they were assigned to schools in violation of their constitutional rights. In other words, the case made before the Court is not a Fourteenth Amendment case at all, but presents only the issue whether the transfer applications of those who petitioned the County Board of Education to review the action of Board of Trustees were properly handled. McNeese v. Board of Trustees, etc., supra does not support a contention that school children and their parents may ignore the rules of the Board of Trustees relating to school assign ments. What McNeese held, and all that it held, was that a Federal Court should not fail to act upon a claim arising under the Fourteenth Amendment because state law also afforded a right to relief maintainable in state court litigation; the Court added that the administrative remedy relied on was not suf 14 School D ist. No . 20 & M ark A llen , et a l , A ppellants, v . ficiently adequate to warrant the Court to follow the self- restraint principle, since the petitioners there did not have an absolute right to invoke the administrative procedure provided by state law. What the late lamented judge John J. Parker said in Carson v. Warlick, 238 F. 2d 724, cert. den. 353 U. S. 910, 77 S. Ct. 665, 1 L. Ed. 2d 664 (1956) puts this case in the proper perspective: “Somebody must enroll the pupils in the schools. They cannot enroll themselves; and we can think of no one better qualified to undertake the task than the officials of the schools and the school boards having; the schools in charge. It is to be presumed that these will obey the law, observe the standards prescribed by the legislature, and avoid the discrimination on account of race which the Constitution forbids. Not until they have been ap plied to and have failed to give relief should the courts be asked to interfere in school administration. As said by the Supreme Court in Brown v. Board of Education, 349 U. S. 294, 299, 75 S. Ct. 753, 656, 99 L. Ed. 1083: ‘School authorities have the primary responsibility for elucidating, assessing and solving these problems. Courts will have to consider whether the action of school authorities constitutes good faith imple mentation of the governing constitutional priciples.’ ” In the instant case all the plaintiffs are concerned with trans fer applications and no initial assignments are involved, but in any situation, whether transfer or assignment, obviously some administrative action by school officials must necessarily be involved, otherwise chaos would result in the school system from whimsical and uncontrolled assignments and transfers. M illicent F. Brow n , et a l , A ppellees 15 The factual investigation required for determination in this case is whether or not the school officials have been refusing the transfer of pupils on the basis of race. Such an investiga tion was made in Jeffers v. Whitley, supra, in which this Court held that the North Carolina Pupil Placement Act, previously approved by it, was in that particular instance being uncon stitutionally administered so as to result in discrimination and inadequate remedy. It appeared in that case that the schools of Caswell County, North Carolina, had been compulsively administered so as to result in segregation, and that the ad ministrative process had been used consistently and solely to prevent freedom of choice. Certainly no such proof is present in this case, where the plaintiffs have proved no more than a voluntarily segregated school system and where they have not sought to establish in any particular whatsoever, an in adequate or discriminatory handling of the administrative pro cess. The defendant School Board’s proof establishes a prompt and full hearing and an impartial and thorough investigation of the transfer applications, with no intimation of any racial overtones in any way affecting the final administrative determ ination. 3. Even if the procedure and rules were deemed inade quate, the District Judge erred in specifying and promulgat ing rules for the operation of the schools. While it is the position of the School Board, as set out above, that the procedures and rules were adequate ( Ques tion 1) and were properly administered (Question 2 ), the inadequacy of the statutes and rules or the improper ad ministration of adequate statutes and rules is no basis for the District Court to take over the administration of the Charles ton County School System. In the sixth paragraph of that Court’s Order (Ap. p. 294- 295) the District Judge set out and decreed the specific ad ministrative procedure and even went so far as to prescribe the notice to be given, the time for such notices to be mailed to parents of pupils. The Court even provided that variances from the methods prescribed must be done only with that Court’s approval. The United States Courts are the proper forum for the supervision of desegregation of schools which are within its area, and the propriety of using the United States District Courts for that purpose has been recognized by the Supreme Court in the Brown decision and subsequent cases involving de- segration of public schools. But this does not mean that the courts are to take over the school system and prescribe administrative procedures. For this is a function of school boards, and as Judge Parker said in Carson v. Warlick, supra'. “We can think of no one better qualified to undertake the task than officials of the schools and the school boards hav ing the schools in charge.” 4. Was there any basis for findings by the District Court that the schools were operated on a basis of compulsory segregation enforced by the School Board? The Fourteenth Amendment applies only to state action. Civil Rights Cases, 109 U. S. 3; U. S. v. Cruickshank, 92 U. S. 542; Peterson v. City of Greenville, 373 U. S. 244, 83 S. Ct. 119, L, Ed. 2d; Shelley v. Kraemer, 344 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 1161. Therefore, even though racial segregation existed, the record must show that it was compulsorily maintained and enforced by the Board. See Brown v. Board of Education, 349 U. S. 16 School D ist . N o . 20 & M ark Allen , et a l , A ppellants, v . M illicent F. Brow n , et a l , A ppellees 17 294 (1955); 75 S, Ct. 753, 99 L. Ed. 1083; Briggs v. Elliott, 132 F. Supp. 776 (1955). There is no evidence in the record of racial discrimination by the Board. The 1960 transfer requests of the plaintiffs were refused on grounds relating solely to the timeliness of the requests and the adverse effect of a mid-year transfer on the pupils. There is no evidence that race was a factor. Of the four 1961 transfer applicants who exhausted the adminis trative procedures, two would have continued in the same negro schools if all pupils in the district had then been re assigned to schools on a purely geographical basis and a third graduated in 1962. There is no evidence that race was a factor in the refusal to reassign the fourth, or that the Board’s decision was unreasonable. There is absolutely no evidence to support the findings of the District Court that the transfer requests of these plaintiffs who failed to exhaust their administrative procedures would have been denied ultimately. In each case the plaintiffs were given prompt and impartial hearings and determinations were based upon their individual educational best interests. No initial assignments were made by the Board to segre gated schools. Each parent picked a school for his child on the first day of his first school year. The school to be attend ed was not in any way controlled by the Board or by official pre-school clinics or enrollment procedures. No Negro parents ever sought to enter their pupils in white schools before the transfer attempts of these plaintiffs. The Board’s rules and the placement law had been uni formly applied by the Board. Plaintiffs’ transfer requests were the first received by the Board after the new rules were 18 School D ist. N o . 20 & M ark A llen , et a l , A ppellants, v . adopted in 1959. There is no evidence that transfer requests from white pupils would have been handled differently. On the basis of the foregoing, we respectfully submit that the administrative procedures followed by the appellant School Board were entirely adequate and reasonably implemented by the School Board without racial motivation, and that there is no basis in the record for the District Court’s finding that the Charleston schools have been operated on the basis of compulsory segregation, and lastly, that the District Court had no authority to specify and promulgate rules for the op eration of the Charleston schools, and that the Order Below should accordingly be reversed. Respectfully submitted, SINKLER, GIBBS & SIMONS DAVID W. ROBINSON A. T. GRAYDON Attorneys for Appellant School Board.