Houston Lawyers' Association v. Mattox Appendix to Petition for Writ of Certiorari

    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.