Davis v. Cook Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit and Brief and Appendix in Support Thereof

    IK  THE

Supreme Court of the United States
October Term, 1949

No. .

SAMUEL L. DAVIS, Individually and on Behalf 
of Others Similarly Situated,

Petitioner,
vs.

E. S. COOK, et at., Constituting the Board of 
Education of the City of Atlanta.

PETITION FOR W RIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 
AND BRIEF AND APPENDIX IN SUPPORT THEREOF.

A. T. W alden,
Oliver W . H ill,
T hurgood Marshall,
R obert L. Carter,

Attorneys for Petitioner.

H oward J enkins, J r .
J ames M. Nabrit,

Of Counsel.



I N D E X

PAGE

P etition for W rit of Certiorari:

Summary Statement of the Matter Involved ----------  2

Statement of Facts _____________________________  4

The Opinion of the Court of Appeals --------------------  12

Jurisdiction ______________________    13

Question Presented ______________________________ 14

Reasons Relied Upon for Allowance of the W rit__  14

Conclusion_______________________________________  19

Brief in Support T hereof:

Opinions of the Courts Below____________________  21

Jurisdiction______________________________________ 21

Statement of the Case ___________________________  22

Errors Relied U pon_____________________________  22

A rgument :

I. Administrative remedies need not be pursued 
prior to resort to federal courts unless manda­
tory in nature_______________________________ 23



11
PAGE

II. The nature of petitioner’s cause is such as to 
require dispensing with the pursuit of admin­
istrative remedies and immediate judicial de­
termination —

III. The State Board of Education is without statu­
tory jurisdiction or authority to grant petitioner 
the relief he seeks------  --------------------------------

IV. The procedure provided for appeal to the Atlanta
Board of Education is in the nature of a peti­
tion for rehearing or reconsideration by the 
Board and, hence, need not be exhausted prior 
to resort to the federal courts-------------------------

V. The procedure provided for appeal to the 
Atlanta Board of Education fails to satisfy 
the minimum requirements of due process of
law--------------- --------- ------------------------------------ 32

VI. The opinion of the Court of Appeals in this case 
is in apparent conflict with the Court of Appeals 
of the Ninth Circuit-------------------------------------

40

Conclusion 

Appendix —



I l l

Table of Cases
PAGE

Aircraft & Diesel Equipment Corp. y. Hirseh, 331 U. S.
752 ___________ ..___________ __- _  —   — 17, 26

Alston v. School Board, 112 P. 2d 992 (C. C. A. 4th 
1940); cert. den. 311 IT. S. 693 __________ _______  25

Boney v. County Board of Education, 45 S. E. 2d 442 
(1947) _____________________ ___________________  30

Bryant v. Board of Education, 156 Ga. 688, 119 S. E.
601 (1923) ________________________ —_______..-16, 23

Carter v. Johnson, 186 Ga. 167, 197 S. E. 258 
(1938) _____________________________________15,28,37

Colyer v. Skeffington, 265 Fed. 17 (D. Mass. 1920) ___ 18, 36
County Board of Education v. Young, 187 Ga. 664, 1 

S. E. 2d 739 (1939) ____________ _________16,23,24,25

Downer v. Stevens, 22 S. E. 2d 139 (1942) ....—.15,25,29

Fordham v. Harrell, 197 Ga. 135, 28 S. E. 2d 463 
(1943) ___________________________ _—15,25,28,30,37

Kansas City So. By. Co. v. Ogden Levee Dist., 15 F. 2d 
637 (C. C. A. 8th 1926) ____ ____________ ________ 18,36

Levers v. Anderson, 326 IT. S. 219 ______  ________ 15, 31
Londoner v. Denver, 210 IT. S. 373 __________________  35

Moore v. Illinois Central Railway Co., 312 IT. S. 630__ 16, 24
Morgan v. United States, 304 U. S. 1 ______________ 18, 35
Munn v. Des Moines National Bank, 18 F. 2d 269 

(C. C. A. 8th 1927) _________________________ 17,18,34

Ohio Bell Telephone Co. v. Public Utilities Commission,
301 U. S. 292 __________________________________18, 36

Oklahoma Natural Gas Co. v. Bussell, 261 U. S. 290__ 17, 25



IV

Pacific Telephone & Telegraph Co. v. Kuykendall, 265
PAGE

U. S. 196 ______________________________________17, 36
Porter v. Investors Syndicate, 286 U. S. 461------------17, 36
Shelley v. Kraemer, 334 U. S. 1 -------------------------------  38
Steele v. Louisville & N. B. Co., 323 U. S. 192---------- 15, 36

Trans-Pacific Airlines v. Hawaiian Airlines, 174 F. 2d 
63 (C. C. A. 9th 1949)------------ ---------------------------- 16, 38

Tunstall v. Brotherhood of Locomotive Firemen & 
Enginemen, 323 IT. S. 210----------------------------------15, 36

United States v. Carolene Products Co., 304 U. S.
444 ____________________________________________  38

United States v. Morgan, 298 U. S. 468 --------------------18, 35

Yick Wo v. Hopkins, 118 U. S. 356 --------------------------  25



V

Constitutional and Statutory Authorities

Constitution of the State op Georgia o f  1945
PAGE

A rticle VIII
Section II, Chap. 2-65, § 2-6501 _________________  40
Section III, Chap. 2-66, § 2-6601 ________________  41
Section VII, Chap. 2-70, § 2-7001 _______________ 5,42
Section VIII, Chap. 2-71, § 2-7101 ______________  42
Section XI, Chap. 2-74, § 7401, § 7402 __________42,43

Georgia Code A nnotated

Section 32-401 (Acts 1937, p. 864; Acts 1943, pp.
636, 638) ______________________ ____________  43

Section 32-402 (Acts 1937, pp. 864, 865; Acts 1943, 
pp. 636, 637, 638) ___________________________ _ 43

Section 32-403 (Acts 1937, pp. 864, 865; Acts 1943 
pp. 636, 638) ________________________________ _ 44

Section 32-404 (Acts 1937, pp. 864, 865) _________ 44
Section 32-405 (Acts 1937, pp. 864, 865) ________44, 45
Section 32-406 (Acts 1937, pp. 864, 865) ________  45
Section 32-407 (Acts 1937, pp. 864, 866) ________  45
Section 32-408 (Acts 1937, pp. 864, 866) ________45, 46
Section 32-409 (Acts 1937, pp. 864, 866) _____...___  4q

Section 32-410 (Acts 1937, pp. 864, 866) ________  46
Section 32-411 (Acts 1937, pp. 864, 866) ________  46
Section 32-411.1 (Acts 1947, pp. 668, 669) ______46,47
Section 32-412 (Acts 1937, pp. 864, 867) ________  47
Section 32-414 (Acts 1937, pp. 864, 867) _______ 30,47
Section 32-504 (Acts 1937, pp. 864, 867) ________  47



V I

Section 32-601 (Acts 1937, pp. 882, 883) ---------5, 27, 48
Section 32-602 (Acts 1937, pp. 882, 883) ---------5,14,48
Section 32-603 (Acts 1937, pp. 882, 883) -------------- 48
Section 32-604 (Acts 1937, pp. 882, 883) ---------- -27, 48
Section 32-605 (Acts 1937, pp. 882, 883) --------------5,15,

30, 37, 48

Section 32-606 (Acts 1937, pp. 882, 883) -------------- 49
Section 32-608 (Acts 1937, pp. 882, 884) ------------ 27,49
Section 32-609 (Acts 1937, pp. 882, 884; Acts 1947,  ̂

pp. 668, 669) ---------------------------------------5,14, 2/,o0
Section 32-610 (Acts 1937, pp. 882, 885) ---------5,27,51
Section 32-611 (Acts 1937, pp. 882, 886) ------------ 27,51
Section 32-612 (Acts 1937, pp. 882, 886) ------------51, 52
Section 32-613 (Acts 1937, pp. 882, 886) — 6,14, 27, 52
Section 32-614 (Acts 1937, pp. 882, 886) — 6, 28, 52, 53
Section 32-615 (Acts 1937, pp. 882, 887; Acts 1946, 

pp. 201, 216; Acts 1947, pp. 668, 670) — 6,14, 28, 53
Section 32-616 (Acts 1937, pp. 882, 883) — 6,14, 28, 54
Section 32-622 (Acts 1937, pp. 882, 890) -------------- 54
Section 32-910 (Acts 1919, p. 324; Acts 1947, pp. 

1189, 1190) __________________________ 14,23,30,54
Section 32-1010 (Acts 1919, p. 352; Acts 1947, pp. 

1189, 1191) ______________________________15,30,55
Section 32-1111 (Acts 1919, p. 340; Acts 1946, pp.

206, 211) ___________________________________29>55

PAGE



11ST T H E

Supreme Court of the United States

PETITION FOR W RIT OF CERTIORARI TO THE  
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT.

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme of the 
United States:

Petitioner respectfully prays that a writ of certiorari 
issue to review the judgment of the United States Court of 
Appeals for the Fifth Circuit, reversing the judgment of 
the District Court of the United States for the Northern 
District of Georgia which had entered judgment, enjoining 
and restraining the respondents from paying petitioner and 
other Negro teachers and principals in the public schools of 
Atlanta less salary than is paid white teachers and prin­
cipals of equal qualifications and experience, and perform­
ing substantially the same duties, solely on account of race 
and color, in violation of the equal protection clause of the 
Fourteenth Amendment.

October Term, 1949 

No. ____

Samuel L. D avis, Individually and on 
Behalf of Others Similarly Situated,

Petitioner,

E. S. Cook, et al., Constituting the Board 
of Education of the City of Atlanta.

vs.



2

Summary Statement of the Matter Involved.

This ease has a long history. Until some time in 1942, 
teachers and principals in the Atlanta public schools were 
paid pursuant to a dual salary schedule—one for Negro 
teachers and principals and one for white teachers and prin­
cipals. These schedules admittedly discriminated against 
Negro teachers and principals (R. 36, 42).

On January 30, 1941, a petition, on behalf of a teachers’ 
association representing all Negro teachers employed in the 
Atlanta public school system, was filed with the Atlanta 
Board of Education alleging discrimination in the payment 
of salaries, and requesting that Negro teachers and prin­
cipals be paid the same salary as other teachers of equal 
qualifications and experience and performing substantially 
the same duties, without regard to race and color (R. 10). 
On November 26, 1941, a second petition of the same nature 
was filed, but respondents took no action (R. 10).

On February 17, 1942, William Reeves, a Negro teacher 
employed in the school system, brought suit in the United 
States District Court against the respondents seeking to 
enjoin the practice, custom and usage of paying Negro 
teachers and principals less salary than is paid white teach­
ers and principals. After the filing of the Reeves ’ suit, re­
spondents announced that they were abolishing the dual 
schedule of salaries and ordered the institution of a new 
single salary schedule which would be free of discrimina­
tion on account of race and color (R. 42, 43). (The Board’s 
resolution authorizing this action is set out on page 43 of the 
Record.)

On July 2,1943, the instant complaint of the present peti­
tioner was filed in the United States District Court (R. 2- 
14). On July 20, 1943, a motion to dismiss was filed (R. 14- 
17). No allegation was there made that petitioner had



3

failed to exhaust any state administrative remedies. On 
June 29, 1944, the motion was overruled (R. 17-30). On 
July 8, 1944, the answer was filed (R. 30-38). Here, again, 
respondents did not allege as a defense to this action failure 
on petitioner’s part to exhaust administrative remedies.

The trial on the merits did not take place until November, 
1947, three years later. Additional argument was heard in 
July, 1948 (R. 53), and on September 28, 1948, the trial 
court issued findings of fact and conclusions of law (R. JO- 
64). It found that the wide differential between the salaries 
of Negro and white teachers could only be the result of the 
discrimination based upon race and color in violation of the 
Fourteenth Amendment (R. 61). It further found that the 
State Board of Education fixed the state’s contribution to 
the educational fund of Atlanta (R. 42). That on the salary 
schedule which the State Board prescribes the minimum 
rate of pay for Negro teachers is less than the minimum 
rate of pay prescribed for white teachers (R. 42). That 
the funds contributed by the State Board do not fix the rate 
of pay of the teachers, since the Atlanta Board provides 
additional funds secured through local taxation which deter­
mine the salary of teachers in the system (R. 42). The 
trial court’s findings of fact and conclusions of law are re­
ported in 80 F. Supp. 443.

On December 16, 1948, the final judgment and decree of 
the court was issued in which the court enjoined and re­
strained the respondents from discriminating in the pay­
ment of salaries against petitioner and other Negro teachers 
in the public school system and gave the Atlanta Board of 
Education until September 1, 1949, to readjust their salary 
schedules in accordance with the decree (R. 64, 65).

Notice of appeal was filed on December 30,1948 (R. 66). 
The appeal was argued before the United States Court of



4

Appeals for the Fifth Circuit on October 17, 1949 (R. 69), 
and that court reversed and remanded the judgment of the 
lower court on December 28,1949 (R. 86). The main ground 
of reversal was that the petitioner had failed to exhaust 
administrative remedies (R. 80-85). It was, therefore, 
ordered that the cause be remanded to the District Court 
to remain there pending for a reasonable time to permit- 
petitioner to avail himself of the administrative remedies 
which the court felt must be pursued before the cause was 
ripe for the intervention of the federal courts (R. 86). A 
motion to extend the time for filing the petition for rehear­
ing was granted on January 11, 1950 (R. 88). Petition for 
rehearing was filed on January 27, 1950 (R. 89-94), and was 
denied on February 6, 1950 (R. 95). Whereupon, petitioner 
brings the cause here by this petition for writ of certiorari.

Statement of Facts.

This suit was begun by petitioner in the United States 
District Court on July 2, 1943, almost seven years ago. It 
is to be remembered, however, that the efforts of petitioner 
and the class he represents—Negro teachers and principals 
in the Atlanta public school system—to have the discrimi­
nation in the payment of salaries on the basis of race and 
color removed, date back to the filing of the petition with the 
Atlanta Board on January 30,1941, over nine years ago (R. 
10, par. 15). A second petition was filed on November 26, 
1941, and a suit by a William Reeves was commenced in 
1942 because of the failure of the respondents to remove 
the discrimination in the payment of salaries (R. 43, 72).

The findings of fact of the District Court, beginning at 
page 40 of the record and reported in 80 F. Supp. 443, are 
adopted and accepted by the petitioner as a correct state­
ment of the facts of the case, and these findings were not 
disputed by the Court of Appeals.



5

Petitioner is a Negro teacher employed by the Atlanta 
Board of Education. He brings this action as a class suit, 
pursuant to Rule 23 of the Federal Rules of Civil Procedure, 
as the representative of all the Negro teachers and prin­
cipals employed by the Atlanta Board of Education. He 
alleges that the Atlanta Board is paying to him, and to all 
other Negro teachers employed in the school system, a 
salary less than is being paid to white teachers and prin­
cipals with equal qualifications and experience solely on the 
basis of race and color (R. 9, 40, 41).

The City of Atlanta, pursuant to Article VIII, Chapter 
2-70, Section 2-7001 of the Constitution of the State of 
Georgia of 19451 is permitted to maintain and support an 
independent school system. All teachers and principals are 
employed by the Atlanta Board of Education on the recom­
mendation of its Superintendent of Schools, all respondents 
in this action (§32-605, Ga. Code Ann., Acts 1937, pp. 882, 
883).

Pursuant to the public policy of the state to provide equal 
educational advantages to all children of public school age 
(§ 32-601, Ga. Code Ann., Act 1937, pp. 882,883), the state has 
established certain uniform minimum standards with regard 
to the employment and payment of teachers in public schools 
throughout the state. All teachers must hold state certifi­
cates (§32-610, Ga. Code Ann., Acts 1937, pp. 882, 885). All 
public schools must be operated at least seven months per 
year (§32-602, Ga. Code Ann., Act 1937, pp. 882, 883). The 
State Board is authorized to determine the minimum num­
ber of teachers the various school systems may employ for 
the minimum seven-month school year (§ 32-609, Ga. Code 
Ann., Acts 1937, pp. 882, 884; Acts 1947, pp. 668, 669). The

1 All constitutional and statutory provisions referred to here and 
in the supporting brief may be found in the Appendix.



6

State Board is required to fix a schedule of minimum salaries 
to be paid to various classes of teachers prescribed by them 
out of the public school funds of the state (§32-613, Ga. 
Code Ann., Acts 1937, pp. 882, 886). The public school fund 
is to be used to pay all teachers “ for not less than seven 
months each year in accordance with the salary schedule 
prescribed by the Board”  (§32-614, Ga. Code Ann., Acts 
1937, pp. 882, 886). Prior to the beginning of each school 
term, the State Board is required to fix the minimum sched­
ule of teachers’ salaries, and the minimum number of teach­
ers which each school system must employ for the ensuing 
year (§32-616, Ga. Code. Ann., Acts 1937, pp. 882,883). Each 
school system is permitted to operate its schools more than 
a minimum of seven months, supplement the state’s sched­
ule of salaries and employ teachers in addition to those re­
quired in Section 32-616, Ga. Code Ann. All teachers em­
ployed during the school term must receive at least the 
minimum rate of pay prescribed in the state’s schedule 
(§32-615, Ga. Code Ann., Acts 1937, pp. 882, 887; Acts 1946, 
pp. 206-216; Acts 1947, pp. 668, 670).

The State Board of Education each year establishes a 
minimum schedule of salaries payable in the Atlanta school 
system (Exhibits 12 and 30). These schedules prescribe 
lower minimum rates of pay for Negro teachers than those 
prescribed for white teachers (Exhibits 12 and 30). The 
state contributes to the Atlanta Board funds sufficient to 
pay the minimum number of teachers which the state re­
quires it to employ at the minimum rate prescribed in the 
schedule of the State Board of Education (Exhibits 12 and 
30). All Atlanta teachers receive considerably more than 
the minimum prescribed by the state’s salary schedule (Ex­
hibits 13, 12 and 30). The Atlanta Board fixes the actual 
salaries payable to its teachers pursuant to its own rules 
and regulations (Exhibits 13, 14 and B. 42). The funds



7

raised locally and the funds contributed by the state are 
commingled into one general fund, out of which the Atlanta 
School Board pays the salaries of teachers and principals 
in its public schools.

The present salary schedule and scheme, under which 
the Atlanta Board is now operating, was not put into effect 
until September, 1944, over a year after the institution of 
this suit (R. 47). Adoption of the present scheme resulted 
in an average increase for the Negro teachers over the old 
scale of approximately $8 per month and of slightly under 
$2 per month for white teachers (R. 47), and, therefore, as 
the Court of Appeals stated in its opinion, the differential 
in the minimum rate of pay of Negro and white teachers 
which the salary schedule of the State Board of Education 
prescribed was eliminated (R. 79).

The new salary scheme of the Atlanta Board of Educa­
tion established four separate categories—high school prin­
cipals, elementary school principals, junior and senior high 
school teachers and elementary school teachers (R. 45, 46). 
In each category there are three to four Tracks, and on 
each Track there are sixteen to nineteen steps (R. 45, 46). 
As the trial court found, initial placement on the Track is 
of vital importance because this determines the number of 
years required to attain the “ maximum placement where 
his salary is frozen unless in exercise of official discretion 
based upon subjective qualifications, he is placed on another 
track”  (R. 48). Thus, the ultimate salary of a high school 
principal placed upon Track I is $250 per month, while his 
ultimate salary if placed on Track IV is $375 per month 
(R. 45). Similarly, an elementary school principal who is 
placed on Track I, Step 12 receives a salary of $215 per 
month, and it will take him eight years to obtain his ulti­
mate maximum salary of $230 (R. 45). On the other hand, 
a principal placed on Track IV, Step 2 receives a salary



8

of $207 per month. After three years he will receive more 
than the maximum obtainable on Track I, and his ultimate 
salary is $305 per month, which he can obtain in 18 years 
(R. 45). Therefore, if discrimination is to be avoided, it 
is essential that it be eliminated in the initial placement on 
the schedule (R. 48).

Placement on the new schedule was recommended to the 
Superintendent by separate committees—one for white 
teachers and one for Negro teachers. Each committee 
operated independently with a Dr. Hunter serving on both 
committees (R. 47). The present placement on the schedule 
was approved, after some changes, by the Superintendent 
of Schools (R. 47). Initial placement on the schedule is 
determined by the Atlanta Board of Education in accord­
ance with certain objectives and certain subjective criteria 
which are set out in paragraph I of Exhibit 14—Procedures 
for Applying the New Salary Schedules for Elementary and 
High School Teachers. Advancement on the schedule is 
also determined by the Atlanta Board of Education based 
upon certain objective and subjective criteria which are set 
out in paragraph 2, subsection 4 of Exhibit 14. The regu­
lations provide that any teacher dissatisfied with her place­
ment on the schedule may appeal to the Superintendent for 
reconsideration (see par. 4, Exhibit 14). A Committee on 
Appeals, advisory to the Superintendent, is given original 
jurisdiction in any appeal, but its services are not avail­
able to the aggrieved teacher (par. 4, Exhibit 14 and R. 
82).

Appeal to the Atlanta Board to review the action of the 
Superintendent is provided in paragraph 5, Exhibit 14. 
Such appeal must be made in writing to the Atlanta Board 
of Education within ten days of the action of the Superin­
tendent (par. 5, Exhibit 14). There is no provision for a 
hearing before the Atlanta Board of Education, for repre­



9

sentation by counsel, for the presentation of evidence or 
witnesses (par. 5, Exhibit 14).

Petitioner was placed on the new salary scale at the 
same salary he had received under the old dual and admit­
tedly discriminatory salary schedule (R. 47).

Although the findings of the trial court on the merits 
were not disputed by the Court of Appeals, and the cause 
is here solely on the question of whether petitioner’s suit 
was premature in that he failed to exhaust certain state 
administrative remedies, a brief review of the findings of 
the trial court will be helpful to the Court, we submit, in 
determining whether the writ herein sought should be 
granted.

At the trial voluminous testimony was taken. The trial 
court found that while the operation of the schedule 
adopted by the Atlanta Board was “ complicated and their 
provisions overlapping, and, as shown by the evidence, little 
understood by defendants or teachers, they * * * are not 
on their face discriminatory and only become so, if ad­
ministered in a discriminatory manner”  (R. 48). Both 
petitioner and respondents employed the services of quali­
fied statisticians. Petitioner’s statistician, in reaching his 
conclusions, took a percentage of the Negro teacher popu­
lation and compared it with a percentage of the white. This 
is called the sampling method. Respondents objected to 
the bases from which the statistician for the petitioner 
worked. The court concluded, however, that if the methods 
used by the latter had materially and erroneously affected 
the conclusions reached, the discrepancies could easily have 
been pointed out Avith tables asserted to be correct by the 
respondents on an analysis of the whole population (R. 
52). No such tables were presented and, therefore, the 
court found that the statistics of the petitioner were “ rea­
sonably correct”  and presented “ conclusions which, after



10

allowing for a considerable margin of error and for reason­
able scope in the exercise of a fair discretion based upon 
subjective qualifications * # * , may be properly used in 
the consideration and determination of the issue as to 
whether or not discrimination because of race or color has 
been shown”  (E. 52).

The white teacher is 4.6 percent years older than the 
colored teacher. Eighty-three percent of the white teachers, 
as compared to 76 percent of the Negro teachers, have been 
elected to tenure. The white teacher has 17.83 years of edu­
cation, while the Negro teacher has 17.67 years. The median 
total teaching experience in the Atlanta School System of 
the white teachers was 18.5 years, and the Negro teachers 
15.4 years. Total average teaching experience was 20.2 
years for the whites and 16.8 years for Negroes (E. 59-60).

The trial court found that 78.1 percent of the white high 
school teachers received more than $189 per month basic 
salary, and 21.9 percent received $189 or less; whereas 1.5 
percent of the Negroes received more, and 98.5 percent re­
ceived less than $189 per month 2 (E. 57). That 54.2 percent 
of the Negro high school teachers are on Track I, 16.6 per­
cent on Track II, 25 percent on Track III and 4.2 percent on 
Track IV ; whereas, 4.4 percent of the white teachers are on 
Track 1 ,12.4 percent are on Track II, 14.3 percent on Track 
III and 68.9 percent are on Track IV. Thus, the majority of 
the Negro teachers are in Track I (E. 57) with an ultimate 
maximum salary of $165 per month (E. 46), and the ma­
jority of the white teachers are on Track IV (E. 57) with an 
ultimate maximum salary of $231 per month (E. 46). In 
terms of comparative qualifications, the record shows that 
58 percent of the white teachers have Masters degrees and

2 The findings were 99.5 percent, but this, apparently is in error 
and would amount to more than 100 percent.



11

36 percent have A.B. degrees; whereas 41 percent of the 
Negroes have Masters degree and 50 percent have A.B. 
degrees (R. 57).

The court also found that all the colored principals in 
the elementary schools received less than $214 per month, 
whereas only 17.1 percent of the white teachers received as 
little as $214 per month. The rest received more, up to a 
maximum of $314 per month. All the Negro principals are 
on Tracks I and I I ; whereas only 16.7 percent of the white 
elementary principals are on Track II, 25 percent on Track 
III, 58.3 percent on Track IV and none on Track I (R. 58). 
As to their comparative qualifications, the court found that 
66.7 percent of the white elementary principals have Mas­
ters degrees, while 80 percent of the Negro teachers hold 
such degrees; 33.3 percent of the white principals have 
A.B. degrees, while 20 percent of the Negroes hold such 
degrees (R. 58).

With regard to elementary school teachers, 71.5 percent 
of the white teachers receive over $139 per month, but not 
over $214, while 28.5 percent receive less than $140 per 
month. 95.2 percent of the Negro teachers receive less than 
$140, while 4.8 percent receive between $140 and $164. 96.5 
percent of the Negro elementary school teachers are on 
Tracks I and II, 3.5 percent on Tracks III and I V ; while 
25.6 percent of the white teachers are on Track II, 18.1 per­
cent on Track III and 56.4 percent on Track IV and none on 
Track I (R. 58). With respect to their academic qualifica­
tions, 26 percent of the white teachers have Masters degrees. 
42 percent A.B. degrees and 29 percent two years normal 
training. As to Negroes, 5 percent have Master degrees, 73 
percent have A.B. degrees and 21 percent have two years 
normal training (R. 58). With respect to experience, 23 
percent of the white high school teachers have had five years



12

experience or less, while 41 percent of the Negro high 
school teachers have five years or less experience. As to 
the white elementary teachers, 35 percent have five years 
or less, while 53 percent of the Negro teachers have five 
years or less experience (E. 59).

With regard to study increments: 87.8 percent of the 
white elementary principals and 75 percent of Negroes have 
earned increments; 36.6 percent of the white principals and 
50 percent of the Negro principals have earned five incre­
ments; 42.4 percent of the white elementary teachers have 
increments, 20 percent of them having as many as five; while 
29.3 percent of the colored elementary teachers have earned 
increments, 16.9 percent as many as five. Each increment 
entitles the teacher to a $5 per month permanent increase 
(R. 59).

The court concluded that making allowances for error 
and for the operation of subjective qualifications which de­
termine the fitness of the teacher that discrimination had 
been proved, and, therefore, ordered the writ to issue.

The Opinion of the Court of Appeals.

The United States Court of Appeals for the Fifth Cir­
cuit in reversing the judgment of the trial court based 
its decision on the existence of a state administrative 
remedy which had not been pursued (R. 70, 80, et seq.). 
The court was of the opinion that petitioner should have ap­
pealed both to the Atlanta Board and to the State Board of 
Education (R. 83). The court further found that the appeal 
to the State Board existed at the time the suit was filed, and 
that appeal to the Atlanta Board was first created in June,



13

1944 (R. 83),3 after institution of the present suit. Since 
relief sought related to discrimination at the time of the de­
cree, the court concluded petitioner should have been re­
quired to have pursued the administrative remedy available 
at that time (R. 84). The Court, however, did not feel that 
petitioner’s failure to exhaust administrative remedies 
ousted the trial court of jurisdiction warranting dismissal, 
of this action (R, 84), because the failure to appeal to the 
State Board was not raised in the respondent’s motion to 
dismiss, and appeal to Atlanta Board of Education, pur­
suant to regulations now in effect, was not made available 
until after institution of this suit (R. 84). The cause was 
remanded to the district court to there remain pending for 
a reasonable time to permit the exhaustion of administra­
tive remedies (R. 85). The opinion of the Court of Appeals 
has not as yet been officially reported.

Petition for rehearing was filed on January 27, 1950 
(R. 94), and overruled on February 6, 1950 (R. 95).

Jurisdiction.

The jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1254, this being a case involv­
ing rights secured under the Fourteenth Amendment to the 
Constitution of the United States. In his complaint and 
throughout the entire proceedings petitioner has asserted 
that the action of respondents in paying him and other 
Negro teachers and principals a lower salary than is paid 
to white teachers and principals of equal qualifications and 
experience is a denial of the equal protection of the laws 
guaranteed by the federal constitution.

3 Actually the new schedule did not go into effect until September, 
1944 as found by the trial court when the classification had been 
completed (R. 47, 37).



14

Question Presented.

I.

Does the state provide an administrative remedy 
which is required to be exhausted prior to restort to the 
federal courts for relief and which necessitates the 
setting aside of the judgment of the trial court pending 
petitioner’s appeal to the Atlanta and State Boards of 
Education?

Reasons Relied Upon for Allowance of the Writ.

I.

The principle of exhaustion of administrative remedies 
does not require petitioner to pursue the suggested remedy 
of appeal to the State Board of Education for the reason 
that the State Board is without statutory jurisdiction or 
authority to grant petitioner the relief sought in this action. 
The relief which petitioner seeks is from the discriminatory 
practices of the Atlanta Board of Education which cannot 
be corrected by the State Board of Education in view of 
the autonomous structure of the Atlanta School System and 
the limited authority of the State Board with respect to the 
payment of salaries of school teachers in the Atlanta public 
school system. Final authority to fix the salary of petitioner 
and the class he represents rests not within the State Board 
of Education but solely with the Atlanta Board of Edu­
cation (§32-609, Ga. Code Ann., Acts 1947, pp. 882, 884; 
Acts 1947, pp. 668, 669; §32-602, Ga. Code Ann., Acts 1937, 
pp. 882, 883; §32-613, Ga. Code Ann., Acts 1937, pp. 882, 
886; § 36-615, Ga. Code Ann., Acts 1937, pp. 882, 887; Acts 
1947, pp. 206, 216; Acts 1947, pp. 668, 670; §32-616, Acts 
1937, pp. 882, 888; §32-910, Acts 1919, p. 324; Acts 1947,



15

pp. 1189, 1190; § 32-1010, Acts 1919, p. 352, Acts 1947, pp. 
1189, 1191. See also Fordham v. Harrell, 197 Ga. 135, 28 
S. E. 2d 463 (1943); Downer v. Stevens, 22 S. E. 2d 139 
(1942); Carter v. Johnson, 186 Ga. 167, 197 S. E. 258 
(1938).)

II.

The procedure provided for appeal to the Atlanta Board 
of Education, as set out in paragraph 5 of Exhibit 14 (Pro­
cedure for Applying the New Salary Schedules for Elemen­
tary and High School Teachers), at best provides a pro­
cedure for rehearing or reconsideration since the Board 
determines, in the first instance, the teacher’s salary and 
his placement on the schedule. (See Exhibit 14, pars. 1, 2; 
§32-605, Ga. Code Ann., Acts 1937, pp. 882, 883.) There­
fore, to require petitioner to follow the remedy provided in 
paragraph 5 of Exhibit 14 prior to seeking judicial relief 
is in direct conflict with the decision of this Court in Levers 
v. Anderson, 326 U. S. 219.

III.

The procedure provided for appeal to the Atlanta Board, 
as the trial court pointed out (R. 61), does not provide for 
an appeal to a disinterested party, but to the very agency 
guilty of effectuating the wrong complained of. Petitioner, 
and all the Negro teachers and principals in the school sys­
tem of Atlanta, complained to the Atlanta Board and it has 
failed to discontinue these discriminatory practices. The 
principle that administrative remedies must be pursued 
prior to resort to the courts does not require an appeal to 
be taken to the very body which perpetuates the wrong on 
which the cause of action is based. Steele v. Louisville & 
Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of 
Locomotive Firemen and Enginemen, 323 U. S. 210.



16

IV.
Under Georgia law, as defined by the highest court of 

the state, the statutory provisions for appeal to county and 
state boards of education have been construed as not bar­
ring direct resort to courts to compel the proper discharge 
of official duty. County Board of Education v. Young, 187 
Ga. 666, 1 S. E. 2d 739 (1939); Bryant v. Board of Educa­
tion, 156 Ga. 688, 119 S. E. 601 (1923). Hence, the adminis­
trative remedy provided is, under Georgia law, at best a 
permissive and not a mandatory remedy. Therefore, the 
decision of the Court of Appeals requiring the exhaustion 
of this remedy is in direct conflict with the opinion of this 
court in Moore v. Illinois Central Railroad Co., 312 U. S. 
630, where the pursuit of administrative remedy was 
deemed to be required only where the statute made such 
pursuit mandatory. Where the remedy provided was a 
permissive one, this Court there held that it need not be 
pursued prior to the institution of action in the federal 
courts.

V.
The opinion of the Court of Appeals is in apparent con­

flict with the principles enunciated by the Court of Ap­
peals for the Ninth Circuit in Trans-Pacific Airlines v. Ha­
waiian Airlines, 174 F. 2d 63 (C. C. A. 9th 1949). In that case 
the Ninth Circuit held that the exhaustion of administrative 
remedies was required only where the question to be deter­
mined required expert knowledge and administrative dis­
cretion. In this case the sole question presented is whether 
the Atlanta Board of Education discriminated against Negro 
teachers in the payment of salaries solely on the basis of 
race and color in violation of the Fourteenth Amendment. 
The federal courts are better equipped to determine that 
question than any administrative agency of the state.



17

VI.
The opinion of the Court of Appeals conflicts with the 

principles of this Court announced in Oklahoma Natural 
Gas Co. v. Russell, 261 U. S. 290; Pacific Telephone and 
Telegraph Co. v. Kuykendall, 265 U. S. 196; Porter v. In­
vestors Syndicate, 286 U. S. 461; Aircraft & Diesel Equip­
ment Corporation v. Hirsch, 331 U. S, 752, to the effect 
that the presence of constitutional questions coupled with 
a sufficient showing of the inadequacies of the prescribed 
administrative remedy and threat of irreparable injury 
flowing from the delay incident to following the prescribed 
procedure were sufficient to dispense with exhausting the 
administrative process before instituting judicial action.

VII.
The procedure provided in paragraph 5, Exhibit 14 for 

appeal to the Atlanta Board of Education for review of 
the teacher’s placement on the salary schedule is not con­
sistent with requirements of due process of law. The time 
limit for effecting such review is unreasonably short and 
is, apparently, designed to prevent rather than to permit 
adequate opportunity for a full and fair hearing. The pro­
cedure provides a period of only ten days for taking an 
appeal to the Atlanta Board of Education. Since the very 
nature of petitioner’s grievance is based upon a practice 
of racial discrimination, it would be necessary for him to 
have access to the voluminous files and records of the At­
lanta Board; to study and analyze these files and records; 
and to make other investigation in order to be in a position 
to submit adequate proof of his claim of discriminatory 
treatment. This was amply demonstrated by the vol­
uminous evidence which was presented at the trial on the 
merits to prove discrimination in the administration of 
the new salary schedule. Obviously ten days is too short a 
time within which to make such preparation. Munn v. Des 
Moines National Bank, 18 F. 2d 269 (C. C. A. 8th 1927).



18

The remedy provided is inadequate for the reason that 
the so-called right of appeal from an unjust classification 
of the Superintendent falls short of the requirements of 
due process under the Fourteenth Amendment. There is 
no clear right to a hearing. No provision is made in the 
Board’s appeal procedure for the presentation of evidence 
by the aggrieved teacher, nor for disclosure by the Super­
intendent of the basis for the action taken. There is a 
complete absence of the other procedural safeguards re­
quired by due process. No provision is made for the re­
butting of evidence or representation by counsel. In short, 
the prescribed administrative remedy which petitioner is 
told to exhaust does not afford him an opportunity to pro­
tect his constitutional right here asserted, but constitutes 
an opportunity for the Board to make a decision without 
evidence and without a ‘ ‘ hearing ’ ’ in the due process sense. 
United States v. Morgan, 298 U. S. 468; Morgan v. United 
States, 304 U. S. 1 (1938); Ohio Bell Telephone Co. v. Public 
Utilities Comm., 301 U. S. 292; Kansas City So. Ry. Co. v. 
Ogden Levee Dist., 15 F. 2d 637 (C. C. A. 8th 1926); Munn 
v. Des Moines National Bank, supra; Colyer v. Skeffington, 
265 Fed. 17 (D. Mass. 1920).

IX.
The new scheme and schedule, now employed by the At­

lanta Board of Education, is an attempt to continue the 
policy, custom and usage, practiced under the old dual 
salary schedule, of paying to Negro teachers and principals 
of equal qualifications and experience less salary than is 
paid to white teachers and principals solely on account of 
race and color, under a device so ingenious and complicated 
as to avoid the reach of the Fourteenth Amendment.

VIII.



19

Conclusion.

W herefore, it is respectfully submitted that this peti­
tion for writ of certiorari to review the judgment of the 
Court of Appeals for the Fifth Circuit should be granted.

A. T. W alden,
Oliver W. H ill,
T hurgood Marshall,
R obert L. Carter,

Attorneys for Petitioner.

H oward J enkins, J r .,
J ames M. Nabrit,

Of Counsel.

Dated: May 5,1950.



IN  T H E

Supreme Court of the United States
October Term, 1949

N o............

Samuel L. Davis, Individually and on 
Behalf of Others Similarly Situated,

Petitioner,
vs.

E. S. Cook, et al., Constituting the Board 
of Education of the City of Atlanta.

BRIEF IN SUPPORT OF PETITION FOR W R IT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT.

Opinions of the Courts Below.

The opinion of the United States Court of Appeals for 
the Fifth Circuit may be found at page 70 of this record 
and is not yet officially reported. The findings of fact and 
conclusions of law and judgment of the United States Dis­
trict Court for the Northern District of Georgia begin at 
page 40 of the record and is officially reported in 80 F. 
Supp. 443.

Jurisdiction.

Jurisdiction of this Court rests upon Title 28, United 
States Code, Section 1254. The United States District 
Court for the Northern District of Georgia entered judg-

21



22

ment for petitioner on December 16, 1948. Judgment was 
reversed by the United States Court of Appeals for the 
Fifth Circuit on December 28, 1949. Petition for rehearing 
was filed on February 27, 1950 (E. 89) and was overruled 
February 6, 1950 (E. 95).

Statement of the Case.

The pertinent facts involved in this case have been set 
out in the petition itself and, therefore, will not be restated 
at this time.

Errors Relied Upon.

The United States Coart of Appeals for the Fifth 
Circuit erred in reversing the judgment of the United 
States District Court for the Northern District of 
Georgia, which had entered a decree enjoining and 
restraining respondents from discriminating in the pay­
ment of salaries against petitioner and other Negro 
teachers and principals in the public schools in Atlanta, 
Georgia, and from paying petitioner and other Negro 
teachers and principals in said schools less salary than 
is paid to white teachers and principals of equal quali­
fications and experience solely on account of race and 
color.

The Court erred in reversing the judgment of the 
trial court on the grounds that petitioner should have 
appealed to the Atlanta Board of Education prior to 
seeking relief in the federal courts.

The Court erred in reversing the judgment of the 
trial court on the grounds that petitioner should have 
appealed to the State Board of Education prior to seek­
ing relief in the federal courts.



23

A R G U M E N T .

I.

Administrative remedies need not be pursued prior 
to resort to federal courts unless mandatory in nature.

In County Board of Education v. Young, 187 Ga. 664, 1 
S. E. 2d 739 (1939) the Supreme Court of Georgia had be­
fore it the question whether a direct proceeding against the 
County Board of Education could be maintained by a 
teacher for restoration of her former status as principal and 
for her back salary. Under Section 32-910 Georgia Code 
Annotated, county boards of education are made tribunals 
for hearing and determining local controversies with respect 
to the construction and administration of school laws, with 
a right of appeal to the State Board of Education. The 
Court held that even if the statute were to be construed as 
reaching the instant controversy, such construction would 
not preclude a direct judicial proceeding against the Board 
to compel a proper discharge of official duty. (To the same 
effect see Bryant v. Board of Education, 156 Ga. 688, 119 
S. E. 601 (1923).) Counsel for petitioner has discovered 
no subsequent decision of the state court limiting, restrict­
ing or repudiating the views expressed in this case.

Thus, prior to seeking judicial intervention to compel a 
proper discharge of official duty, one is not required under 
Georgia law to follow statutory procedures providing for 
appeal to county and state boards of education. This case 
raises a more fundamental question concerning proper 
official conduct than was presented in the Young case, supra. 
Petitioner, therefore, is not required to pursue any appeals 
to the Atlanta or State Board of Education, which may be 
provided, before his cause becomes ripe for judicial deter­
mination.



24

In Moore v. Illinois Central Railway C o 312 U. S. 630, 
this Court held that use of the administrative machinery 
provided under the Railway Labor Act for the settlement 
of disputes was not a necessary prerequisite to court action. 
In County Board of Education v. Young, supra, statutory 
appeals to county and state boards of education are simi­
larly construed. Even if the Court of Appeals is correct in 
concluding that an administrative machinery is available to 
redress the wrongs of which petitioner complains, since 
utilization of this machinery is not a necessary prerequisite 
to court action, petitioner was entitled to federal relief 
without being required to first avail himself of the admin­
istrative process. We submit, therefore, that the judgment 
of the trial court was correct and should be affirmed.

II.
The nature of petitioner’s cause is such as to require 

dispensing with the pursuit of administrative remedies 
and immediate judicial determination.

Petitioner is here complaining of irreparable injury. 
He instituted this suit in equity seeking a declaration of 
his rights and a decree enjoining and restraining respon­
dents from discriminating against him and other Negro 
teachers and principals solely because of race and color 
in the payment of salaries. The discriminatory treatment 
on which his cause of action rests has continued since be­
fore 1941 when a petition requesting the Atlanta Board of 
Education to cease its discriminatory practices was filed 
on behalf of the Negro teachers and principals in the At­
lanta school system.

The Atlanta Board of Education cannot pay to Negro 
teachers and principals less salary than is paid to white 
teachers and principals of equal qualifications and ex­



25

perience without violating the guarantees of the Fourteenth 
Amendment. Alston v. School Board, 112 F. 2d 992 (C. C. A. 
4th 1940); cert, denied, 311 TJ. S. 693; Yick Wo v. Hopkins, 
118 U. S. 356.

The relief, which the trial court granted, does not reach 
the past conduct of the Atlanta Board of Education, but 
relates only to future action. Further delay in the settle­
ment of this dispute will prolong the harm which petitioner 
and other Negro teachers have suffered over a long period 
of years. Petitioner has conclusively proved that he and 
other Negro teachers and principals are being discrimi­
nated against in the administration of the salary scheme 
and schedule under which the Atlanta Board of Education 
is now operating. He is entitled, therefore, to judgment 
declaring the Board’s action to be a denial of the equal 
protection of the laws', Yick Wo v. Hopkins, supra, and to 
a decree enjoining further discrimination. Alston v. State 
Board, supra.

Under Georgia law, as we have pointed out above, statu­
tory provisions providing for appeal to county and state 
boards of education do not bar direct court action. County 
Board of Education v. Young, supra. In view of the auton­
omy given independent school systems and the limited 
statutory authority which the State Board of Education 
may exercise with respect to teachers’ salaries, its au­
thority to grant relief is extremely dubious at best. See 
Downer v. Stevens, 22 S. E. 2d 139 (1942); Fordham v. 
Harrell, 197 Ga. 135, 28 S. E. 2d 463 (1943). In fact, we 
believe that the statutes and cases necessitate the conclu­
sion that the State Board of Education is without jurisdic­
tion and authority to grant petitioner relief herein sought.

Under these circumstances, we submit, the rule which 
this Court applied in Oklahoma Natural Gas Co. v. Bussell, 
261 U. S. 290; Pacific Telephone £  Telegraph Co. v. Kuy­



2 6

kendall, 265 U. S. 196; Porter v. Investors Syndicate, 286 
U. S. 461, and restated with approval in Aircraft & Diesel 
Equipment Corp. v. Hirsch, 331 IT. S. 752 governs this action. 
In those cases, this Court established the principle that the 
requirement that administrative remedies be exhausted 
prior to resort to federal courts would be dispensed with 
where there was present a constitutional question, a show­
ing of the inadequacy of the prescribed administrative re­
lief and a threat of irreparable injury flowing from the 
delay incident to a pursuit of the administrative procedure. 
In Aircraft & Diesel Equipment Corp v. Hirsch, supra, note 
38, at page 773, it was pointed out that this rule had been 
most frequently applied with respect to state administra­
tive action. We submit that this case presents all factors 
requiring application of that rule and that the judgment 
of Court of Appeals in requiring petitioner to utilize the 
administrative process before seeking the intervention of 
the federal court was in error and should be reversed.

III.

The State Board of Education is without statutory 
jurisdiction or authority to grant petitioner the relief 
he seeks.

The opinion of the Court of Appeals, that petitioner 
should have invoked the aid of the State Board of Educa­
tion before being permitted to seek relief in the federal 
court, we submit, wTas based upon an erroneous view of the 
law of the State of Georgia. The State Board of Educa­
tion has no jurisdiction or authority to order the Atlanta 
Board of Education to discontinue its policy, custom and 
usage of paying Negro teachers less salaries than it pays 
white teachers of equal qualifications and experience and 
performing substantially the same functions.



27

Section 32-601, Ga. Code Ann. (Acts 1937, pp. 882, 883) 
empowers the State Board of Education to equalize the 
educational opportunities of all children of school age 
throughout the State of Georgia.

Section 32-604, Ga. Code Ann. (Acts 1937, pp. 882, 883) 
establishes several county and independent school systems 
as local units of administration through which the State 
Board is to operate in equalizing educational advantages.

Section 32-608, Ga. Code Ann. (Acts 1937, pp. 882, 884) 
directs the State Board of Education to divide the various 
local units of administration into five groups on the basis 
of population.

Section 32-609, Ga. Code Ann. (Acts 1937, pp. 882, 884; 
Acts 1947, pp. 668, 669) empowers the State Board of Edu­
cation to determine for each group the minimum number 
of teachers to be employed for the minimum school term 
of seven months per year required under Section 32-602, 
Ga. Code Ann. (Acts 1937, pp. 882, 883).

Section 32-610, Ga. Code Ann. (Acts 1937, pp. 882, 885) 
provides that all teachers employed in the public school 
system of the state shall hold a state’s certificate issued 
by the State Board.

Section 32-611, Ga. Code Ann. (Acts 1937, pp. 882, 886) 
expressly states that local school units are not prohibited 
from providing educational advantages in addition to those 
prescribed or that may be prescribed by the State Board of 
Education or from making rules for the government of such 
local systems not in conflict with the rules prescribed by 
the State Board.

Section 32-613, Ga. Code Ann. (Acts 1937, pp. 882-886) 
directs the State Board of Education to annually fix a sched­
ule of the minimum salaries to be paid to the teachers of



2 8

the various classes prescribed by them out of the public 
school funds of the state; and further provides that the 
salary schedule shall be uniform for each of the classes of 
teachers fixed by the State Board.

Section 32-614, Ga. Code Ann. (Acts 1937, pp. 882, 886) 
provides that the common school funds of the state shall be 
used by the State Board to pay to teachers in the public 
schools of the state for not less than seven months in each 
school year in accordance with the salary schedule pre­
scribed by the State Board of Education.

Section 36-615, Ga. Code Ann. (Acts 1937, pp. 882, 887; 
Acts 1942, pp. 206-216; Acts 1947, pp. 668-670) empowers 
each local unit to operate its school for a period longer than 
the seven month school year established by statute and to 
supplement the state schedule of salaries and employ teach­
ers in addition to the minimum number prescribed by the 
State Board of Education. It further expressly states that 
the rate of pay of all teachers must not be less than the 
minimum salaries set by the State Board of Education.

Section 32-616, Ga. Code Ann. (Acts 1937, pp. 882-888) 
empowers the State Board to fix at the beginning of each 
year the minimum schedule of teachers’ salaries for the en­
suing year and to determine the minimum number of teach­
ers which may be employed for each local unit.

Pursuant to this statutory authority, the State Board 
of Education classifies teachers in the Atlanta School Sys­
tem on the basis of their types of certificates and years of 
training (see Exhibits 12 and 30). It determines the mini­
mum number of teachers which the Atlanta Board of Edu­
cation may employ and prescribes a minimum rate of pay 
and allocates state funds to the Atlanta Board on this basis. 
The Atlanta Board of Education has exclusive authority to 
employ teachers (see Fordham. v. Harrell, supra; Carter



29

v. Johnson, supra), and the salaries it pays are considerably 
higher than the minimum rate prescribed by the State 
Board of Education (compare Exhibits 12 and 30, State 
Salary Schedule for Teachers, and Exhibit 13 and B. 45, 46, 
Salary Schedule in Atlanta Public Schools). Funds to pro­
vide these additional advantages are raised locally pursuant 
to authority granted in Section 32-1111, Ga. Code Ann. 
(Acts 1919, p. 340; Acts 1946, pp. 206, 211). The Atlanta 
Board and it alone is in sole and exclusive control of these 
funds. Downer v. Stevens, supra. In addition the Atlanta 
Board of Education provides for a teacher classification 
considerably different from that which the State Board 
prescribes. The Atlanta Board of Education determines 
actually and finally the salaries which each teacher is to 
receive.

Under the statute all that the State Board can require 
is that the teachers employed in the Atlanta School System 
do not receive a rate of pay less than the minimum which 
has been prescribed in the state salary schedules. Statutory 
authority is expressly given to the Atlanta Board of Edu­
cation to pay to the teachers higher salaries, and as long 
as its rate of pay meets the minimum standard which the 
State Board of Education prescribes, that Board is without 
jurisdiction or statutory authority to tell the Atlanta Board 
of Education what salary it must pay the teachers in its 
employ.

Thus, it is difficult to perceive how petitioner could ob­
tain relief from the State Board of Education since he 
and the other Negro teachers and principals employed in 
the Atlanta School System are paid more than the minimum 
which the state requires. It is, therefore, submitted that 
the State Board of Education cannot grant petitioner the re­
lief which he seeks and, therefore, an appeal to the State 
Board of Education would be futile.



30

Further, Section 32-910 (Acts 1919, p. 324; Acts 1947, 
pp. 1189,1190) and Section 32-1010 (Acts 1919, p. 352; Acts 
1947, pp. 1189, 1191) which provide for appeal to the State 
Board of Education in general controversies determined by 
county boards of education and specific controversies in­
volving the suspension of teachers would appear to negate 
an intent on the part of the state legislature to give the 
State Board of Education under Section 32-414 such overall 
authority over local school systems which the Court of Ap­
peals believed it to have. The State Board’s role is merely 
to supervise generally the public school systems of the state 
and to require them to meet certain uniform minimum 
standards. Except for this limited authority, power and 
responsiblity for the conduct of the schools rest with the 
local school systems. See Boney v. County Board of Edu­
cation, 45 S. E. 2d 442 (1947); Fordham v. Harrell, supra. 
Thus, it is clear that the State Board cannot grant petitioner 
relief herein sought, and to require him to appeal to that 
agency is to require him to do a useless and futile act.

IV.

The procedure provided for appeal to the Atlanta 
Board of Education is in the nature of a petition for 
rehearing or reconsideration by the Board and, hence, 
need not be exhausted prior to resort to the federal 
courts.

Section 32-605, Ga. Code Ann. (Acts 1937, pp. 882-883) 
provides that teachers are to be elected by the Atlanta 
Board of Education on the recommendation of the Super­
intendent of Schools. The procedure outlined in Exhibit 
14 for the application of the salary schedule now in effect 
in the Atlanta Public School System further provides that 
the Board of Education shall determine the salaries to be 
paid and the group in which the teacher shall advance in



31

the schedule on the recommendation of the Superintendent. 
(See par. 1, subsection 2, par. 2, subsection 1 of Exhibit 
14—Procedure for Applying the New Salary Schedule for 
Elementary and High School Teachers.) Thus, the Atlanta 
Board of Education is required by statute and by its own 
regulations to hire the teacher, determine his salary and 
his placement on the salary schedule in the first instance. 
It is incorrect, therefore, to conclude as apparently the 
Court of Appeals concluded, that the determination of the 
teachers’ salaries and his placement on the salary schedule 
is made by the Superintendent of Schools independent of 
the Atlanta Board of Education. The Superintendent of 
Schools merely recommends. The determination and place­
ment is and must be made by the Atlanta Board of Educa­
tion. Thus, to require petitioner to pursue the remedy pro­
vided in paragraph 5 of Exhibit 14 prior to seeking judicial 
relief is to require him to go to the Atlanta Board of Edu­
cation and ask them to reconsider their initial action in 
fixing his salary and his placement on the schedule. At 
best this would be a procedure in the nature of a petition 
for rehearing. This Court in Levers v. Anderson, 326 U. S. 
219 at p. 222 said the rule that “ no one is entitled to judicial 
relief for a supposed or threatened injury * * * does not 
automatically require that judicial review must always be 
denied where rehearing is authorized but not sought.”  
There is no statutory or constitutional requirement of the 
State of Georgia which makes it mandatory for petitioner 
to seek a rehearing before the Atlanta Board of Education 
prior to seeking judicial intervention. There is no con­
stitutional or statutory authority to indicate that this was 
the intent of the legislature. It would therefore follow that 
the principle of Levers v. Anderson, supra, should apply to 
this case, and that petitioner would not be required to fol­
low the procedure outlined in Exhibit 14 for seeking a re­
view by the Atlanta Board of Education prior to seeking 
relief in the federal courts.



32

V.
The procedure provided for appeal to the Atlanta 

Board of Education fails to satisfy the minimum re­
quirements of due process of law.

1.
The remedy provided under paragraph 5, Exhibit 14 for 

appeal to the Atlanta Board of Education is inadequate for 
the reason that the time limit for perfecting such an appeal 
is unreasonably short and is designed to prevent rather 
than permit adequate opportunity for a full and fair 
hearing.

The Atlanta Board of Education is not subject to the 
control of the State Board of Education with respect to fix­
ing the total compensation payable to teachers in the At­
lanta school system, except that it cannot pay less than the 
minimum which the State Board prescribes. Thus, the pro­
cedure outlined in paragraph 5, Exhibit 14 provides the 
only administrative remedy under which petitioner may 
conceivably obtain the relief which he now seeks. It is to 
be remembered that this procedure was not available to 
petitioner at the time this suit was filed in July, 1943, but 
became available one year after institution of this action.

Under the procedure described in Exhibit 14, which may 
be utilized when a teacher is dissatisfied with his classifi­
cation and placement on the salary schedule, a Committee 
on Appeals, advisory to the Superintendent, is given au­
thority to consider appeals referred to it by the Superin­
tendent (see par. 4 of Exhibit 14). However, as the Court 
of Appeals correctly indicated (B. 82), since the dissatisfied 
teacher cannot invoke the services of this committee, it is 
not a part of the machinery to be considered in the appli­
cation of the doctrine of exhaustion of administrative 
remedies.



33

Paragraph 5, Exhibit 14 provides that a teacher “ who is 
dissatisfied with the action of the Superintendent on appeal 
may request the Board of Education to review the same. 
Such request shall be made in writing within ten days from 
the action of the Superintendent” . This procedure allow­
ing only ten days for taking an appeal to the Atlanta Board 
of Education is totally inadequate.

In this case, for example, petitioner alleges discrimina­
tory conduct on the part of the Atlanta Board in paying to 
him and other Negro teachers and principals less salary 
than is paid to white teachers and principals of equal quali­
fications and experience. It would be necessary for him to 
have access to the files and records of the Atlanta Board 
for the purpose of study and analysis in order to compare 
his position and the position of other Negro teachers and 
principals on the scale with that of white teachers and prin­
cipals of equal qualifications and experience. To sustain Ms 
claim of discriminatory treatment on appeal to the Atlanta 
Board of Education, it would be necessary for petitioner to 
follow the same method which was used to prove discrimina­
tion in the trial court, that is, the employment of a qualified 
statistician with access to the records of the Board for study 
and analysis. Only then will he be able to submit adequate 
proof of his claim of discriminatory treatment.

As the trial court found, the operation of the salary 
schedule is complicated and little understood by either the 
respondents or the teachers (R. 48). To obtain factual proof 
within the short time limit of ten days prescribed, sufficient 
to prove the discriminatory treatment herein alleged, would 
be virtually impossible. To require petitioner to pursue such 
a remedy is, in fact, to deprive him of a right to a full and 
fair hearing within the meaning of the due process clause 
of the Fourteenth Amendment.



34

The principle here enunciated is illustrated by Munn v. 
Des Moines National Bank, 18 F. 2d 269 (C. C. A. 8th 1927). 
In that case the court had before it the problem of deciding 
whether a suit could be entertained in equity against the 
application of a discriminatory state tax statute prior to 
the exhaustion of administrative remedies. The gravamen 
of the complaint asserted by the taxpayers was that the 
records from which they would be able to obtain proof of 
discrimination was not made available until a few days 
prior to the scheduled hearing before the administrative 
agency. The court entertained the suit because it concluded 
that the shortness of time available to the taxpayers to 
properly prepare for the administrative hearing made the 
administrative remedy totally inadequate. There the court 
said, at page 271, that an adequate “ remedy which will pre­
vent the maintenance in this court of equity of these suits 
must be ‘ as practical and efficient to the ends of justice and 
its prompt administration as the remedy in equity’ ” .

In view of the fact that the ten days prescribed for ap­
peal to the Atlanta Board of Education does not afford suf­
ficient time for petitioner to assemble evidence essential to 
prove the claimed discrimination, in effect, no administra­
tive remedy is available to him. The rule requiring exhaus­
tion of administrative remedies, therefore, does not apply 
to the procedures set out in Exhibit 14 prescribing the 
method of appeal to the Atlanta Board of Education.

2.

The many procedural shortcomings relating to peti­
tioner’s opportunity to obtain a full and fair hearing under 
the procedure presented in Exhibit 14, make it clear that 
the machinery which respondents have established fails to 
satisfy the minimum requirements of due process of law. 
The regulations promulgated by the Board of Education 
fail to indicate what rights a dissatisfied teacher has with



35

respect to the fundamental question of notice and oppor­
tunity for a hearing. All that the regulations contemplate, 
and all that the regulations provide is that in some manner 
there may be a review by the Board of Education of the 
action taken by the Superintendent at the request of a dis­
satisfied teacher. No clear right to a hearing is set forth 
or spelled out. Under the regulations no hearing, in fact, 
is required.

There is a complete absence of other procedural safe­
guards which this Court has said are essential to an ade­
quate hearing before an administrative agency. No pro­
vision is made for the presentation of evidence by the ag­
grieved teacher, for the rebutting of evidence, nor for repre­
sentation by counsel. There is no procedure prescribed 
whereby the teacher can be advised of the bases of the 
action taken by the Superintendent in placing him in one 
position on the scale as compared with placing another 
teacher of equal qualifications and experience and perform­
ing the same duty on another position on the scale. The 
regulations do not require that the Superintendent make a 
record of the bases for her findings in the first instance. 
In short, the regulations permit an ex parte determination 
of the salary to be made without evidence, without disclosure 
of the bases for making such a determination, without con­
sultation with the teacher and without affording the teacher 
an opportunity to be heard. Moreover, the Board is not 
required to grant the aggrieved teacher a hearing, and 
though it is charged with the responsibility of reviewing 
the action of the Superintendent on an appeal by the 
teacher, no procedural steps governing such review are set 
forth in the regulations. It is clear, therefore, that this 
procedure fails to meet the minimum requirements of due 
process as understood and interpreted by this court. See 
Londoner v. Denver, 210 U. S. 373; United States v. Morgan, 
298 U. S. 468; Morgan v. United States, 304 U. S. 1; Ohio



36

Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 
292. See also Kansas City So. Ry. Co. v. Ogden Levee Dist., 
15 F. 2d 637 (C. C. A. 8th 1926); Colyer v. Skeffington, 265 
Fed. 17 (D. Mass. 1920).

There is no necessity for the administrative hearing to 
be governed by strict rules of courts of law, but reasonable 
standards of justice and fair play must be assured. In the 
light of the procedural shortcomings pointed out above, no 
such safeguards are provided under the regulations which 
respondents have promulgated.

In short, the administrative remedy which the Court of 
Appeals states that petitioner is required to exhaust does 
not afford him an opportunity to protect the constitutional 
rights here asserted, but on the contrary constitutes an 
opportunity for the Board to make its decision without evi­
dence and without affording petitioner a hearing within the 
meaning of due process of the law. The remedy being in­
adequate petitioner was entitled to seek direct judicial inter­
vention.

3.

As pointed out by the trial court, to require petitioner 
to appeal to the Atlanta Board of Education would be to 
require him to appeal not to a disinterested agency but to 
the very body whose actions he is now seeking to have cor­
rected (R. 61). This Court in Steele v. Louisville & N. R. 
Co., 323 U. S. 192, and Tunstall v. Brotherhood of Locomo­
tive Firemen & Enginemen, 323 U. S. 210 concluded that it 
was not an essential prerequisite to federal action that a 
complainant seek redress from the administrative agency 
guilty of the wrong upon which his cause of action is based. 
Therefore even if appeal to the Atlanta Board can be con­
sidered adequate, since petitioner would be required to ap­
peal to the very party guilty of the wrong upon which peti­
tioner bases his complaint, petitioner is not barred from 
proceeding directly in the federal courts.



37

Under Section 32-605, Ga. Code Ann. (Acts 1937) the 
Atlanta Board has full authority and responsibility for the 
hiring* of teachers in the Atlanta School System. The At­
lanta Board is responsible for determining the teacher’s 
salary and his placement on the salary schedule. The regu­
lations themselves set out in Exhibit 14 expressly and speci­
fically recognize and provide for the exercise of this au­
thority in the Atlanta Board of Education (see pars. 1 and 
2, Exhibit 14). All the Superintendent may do is to 
recommend. Responsibility rests solely with the Atlanta 
Board.

As the Court of Appeals has construed, these regula­
tions, initial placement on the schedule and determination 
of the teachers’ salary is made by the Superintendent of 
Schools independent of the Atlanta Board of Education. 
This the Superintendent of Schools is not empowered to do 
under the statute. Section 32-605, Ga. Code Ann. (Acts 
1937); Fordham v. Harrell, supra; Carter v. Johnson, 
supra; and if the regulations provide for such independent 
action on the part of the Superintendent of Schools then 
such regulations are invalid.

For these reasons, we submit, the Court of Appeals was 
in error in holding that petitioner was required to appeal to 
the Atlanta Board under the procedure prescribed.

VI.
The opinion of the Court of Appeals in this case is 

in apparent conflict with the Court of Appeals of the 
Ninth Circuit.

In this case the Court of Appeals for the Fifth Circuit 
held that the granting of federal relief was premature in 
view of the fact that petitioner had failed to avail himself



of the state administrative remedies. Petitioner is here 
seeking a declaration of his right to be free of discrimination 
in the payment of salaries by the Atlanta Board solely be­
cause of his race and color. He further seeks to enjoin and 
restrain respondents from continuing their policy, custom 
and usage of discriminating against him and other Negro 
teachers and principals. The question presented does not 
involve the application of administrative discretion. Nor 
does it require for its determination any special or expert 
knowledge with which the administrative agency may be 
peculiarly equipped. Where racial discrimination exists it 
is violative of the Federal Constitution. Hence, questions 
of administrative discretion cannot be determinative of a 
problem of that nature.

Racial discrimination in the payment of teachers’ sal­
aries has been proved by petitioner in the trial court. It is 
within the special province of the federal courts to deter­
mine whether discriminatory treatment is practiced by state 
officials and to grant appropriate relief from such wrongful 
conduct. See United States v. Carotene Products Co., 304 
U. S. 144; Shelley v. Kraemer, 334 U. S. 1. Yet the Court 
of Appeals construed the rule requiring the exhaustion of 
administrative remedies prior to resort to federal courts as 
being automatically applicable in this case without regard 
to these factors.

In Trans-Pacific Airlines v. Hawaiian Airlines, 174 F. 2d 
63 (C. C. A. 9th 1949), the Court of Appeals for the Ninth 
Circuit held that the rule requiring exhaustion of adminis­
trative remedies is applicable only in those cases where solu­
tion of the problem requires familiarity with complicated 
factual situations peculiar to the field in which the adminis­
trative agency operates, or where decision rests on exercise 
of administrative discretion. In all other instances, it was



39

stated, failure to pursue administrative remedy was not a 
barrier to the intervention of federal courts. Had the Court 
below applied this rule on appeal in this case, the judgment 
of the trial court would have been affirmed.

It is therefore apparent that the two courts are ap­
proaching the problem from two different and conflicting 
points of view, and the petition for writ of certiorari herein 
sought should be granted to resolve this conflict.

Conclusion.

W e submit that for the reasons hereinabove 
stated, the judgment of the trial court was correct 
and should have been affirmed by the Court of 
Appeals. There are no available administrative 
remedies which petitioner can utilize to obtain the 
relief herein sought. Respondents are still practic­
ing the discrimination herein complained of under 
a complicated machinery designed to protect their 
illegal actions from the reach of the Fourteenth 
Amendment. Wherefore, it is respectfully submitted 
that this petition for writ of certiorari should be 
granted, and the judgment of the Court of Appeals
should be reversed.

A. T. W alden,
Oliver W. H ill,
T htjrgood Marshall,
R obert L. Carter,

Attorneys for Petitioner.

H oward J enkins, J r. 
James M. Nabrit,

Of Counsel.

Dated: May 5,1950.



40

A P P E N D I X .

Constitution of the State of Georgia of 1945.

Article VIII.
* * * * * * * * * *

Section II.

Chapter 2-65. State Board of Education.
* * * * * * * * * *  

2-6501. Paragraph I. Appointment; personal; terms of 
office; vacancies; eligibility; powers and duties.—There 
shall be a State Board of Education, composed of one 
member from each Congressional District in the State, 
who shall be appointed by the Governor, by and with the 
advice and consent of the Senate. The Governor shall not 
be a member of the State Board of Education. The first 
State Board of Education under this Constitution shall 
consist of those in office at the time this Constitution is 
adopted, with the terms provided by law. Thereafter, all 
succeeding appointments shall be for seven year terms from 
the expiration of the previous term. Vacancies upon said 
Board caused by expiration of term of office shall be simi­
larly filled by appointment and confirmation. In case of a 
vacancy on said Board by death, resignation, or from any 
other cause other than the expiration of such member’s 
term of office, the Board shall by secret ballot elect his suc­
cessor, who shall hold office until the end of the next session 
of the General Assembly, or if the General Assembly be 
then in session to the end of that session. During such 
session of the General Assembly the Governor shall ap­
point the successor member of the Board for the unexpired 
term and shall submit his name to the Senate for confirma­
tion. All members of the Board shall hold office until their 
successors are appointed and qualified. The members of



41

the State Board of Education shall be citizens of this State 
who shall have resided in Georgia continuously for at least 
five years preceding their appointment. No person em­
ployed in a professional capacity by a private or public 
education institution, or by the State Department of Edu­
cation, shall be eligible for appointment or to serve on said 
Board. No person who is or has been connected with or 
employed by a school book publishing concern shall he 
eligible to membership on the Board, and if any person 
shall be so connected or employed after becoming a mem­
ber of the Board, his place shall immediately become va­
cant. The said State Board of Education shall have such 
powers and duties as provided by law and existing at the 
time of the adoption of this Constitution, together with 
such further powers and duties as may be hereafter pro­
vided by law.
# * # * * # # # # *

Section III.

Chapter 2-66. State School Superintendent.
* # * # * # * # # #  

2-6601. (6577) Paragraph I. Election; term of office; 
qualifications; compensation.—There shall be a State School 
Superintendent, who shall be the executive officer of the 
State Board of Education, elected at the same time and in 
the same manner and for the same term as that of the Gov­
ernor. The State School Superintendent shall have such 
qualifications and shall be paid such compensation as may 
be fixed by law. No member of said Board shall be eligible 
for election as State School Superintendent during the 
time for which he shall have been appointed. 
* # # * # # # # # #

Appendix



42

Appendix 

Section VII.

Chapter 2-70. Independent School Systems.
# * * * * * * * * * 

2-7001. Paragraph I. Maintenance of existing systems; 
new systems prohibited.—Authority is hereby granted to 
municipal corporations to maintain existing independent 
school systems, and support the same as authorized by 
special or general law, and such existing systems may add 
thereto colleges. No independent school system shall here­
after be established.
* * * * * * * * * *

Section VIII.

Chapter 2-71. Meetings of Boards of Education.
* * * * * * * * * *  

2-7101. Paragraph I. Meetings open to the public.—
All official meetings of County Boards of Education shall 
be open to the public.
# # # # * # # * = * *

Section XI.

Chapter 2-74. Grants, Bequests, and Donations.
# * # * * * * # # *

2-7401. (6581) Paragraph I. State Board of Education 
and Regents of University System.—The State Board of 
Education and the Regents of the University System of 
Georgia may accept bequests, donations and grants of land, 
or other property, for the use of their respective systems 
of education.



43

2-7402. Paragraph II. County boards of education and 
independent school systems.—County Boards of Education 
and independent school systems may accept bequests, dona­
tions and grants of land, or other property, for the use of
their respective systems of education. 
# # # # # # # # # #

Georgia Code Annotated.
* * * * * * * * * *

32-401. Board created; members; appointment.—-The 
State Board of Education, hereby created, shall be com­
posed of one member from each congressional district in 
this State, who shall be appointed by the Governor, by and 
with the advice and consent of the Senate. The Governor 
shall not be a member of the State Board of Education. 
The said State Board of Education provided for by this 
Chapter shall have the powers and duties now provided by 
law for the State Board of Education, and such as may be 
hereafter provided; and shall be subject to all provisions 
of law with respect to the State Board of Education, not in­
consistent with this Chapter. (Acts 1937, p. 864; 1943, pp. 
636, 638.)

32-402. Terms of office.—The first State Board of Edu­
cation appointed hereunder shall hold office as follows: two 
for three years; four for five years; and four for seven 
years. All of said terms shall date from January 1, 1943. 
The Governor in making said appointments shall designate 
the holders of the respective terms. Successors to persons 
so appointed shall hold terms of office of seven years from 
the expiration of the previous term. All members of the 
Board appointed for a first or succeeding full term shall 
hold office until their successors are appointed and qualify. 
Any appointment of a member of the Board for a full term,

Appendix



44

made when the Senate is not in session, shall be effective 
until the same is acted on by the Senate. (Acts 1937, pp.
864, 865; 1943, pp. 636, 637, 638.)

32-403. Vacancies.—In case of a vacancy on said Board, 
by a death or resignation, or from any other cause other 
than such member’s term of office, the Board shall by secret 
ballot elect his successor, who shall hold office until the end 
of the next session of the General Assembly, or if the Gen­
eral Assembly be then in session, to the end of that session, 
and such election shall be effective for such interim. During 
such session of the General Assembly, the Governor shall 
appoint the successor member of the Board for the unex­
pired term and submit his name to the Senate for confir­
mation. (Acts 1937, pp. 864, 865; 1943, pp. 636, 638.) 
* * * * * # # # # #  

32-404. Eligibility for membership.—The members of 
the State Board of Education shall be citizens of this State 
who have resided in Georgia continuously for at least five 
years preceding their appointment. No person employed 
in a professional capacity by a private or public educational 
institution, or by the State Department of Education, shall 
be eligible for appointment or to serve on said Board. No 
person who is or has been connected with or employed by a 
schoolbook publishing concern shall be eligible to member­
ship on the Board, and if any person shall be so connected 
or employed after becoming a member of the Board, his 
place shall immediately become vacant. (Acts 1937, pp. 864,
865. )
* * * * # * * ? ■ # #  

32-405. Oath; meeting for organization; officers.—The
members of the Board of Education shall take an oath of 
office for the faithful performance of their duties and the

Appendix



45

oath of allegiance to the Federal and State Constitutions 
and enter upon the discharge of same on the effective date 
of this Chapter. They shall meet at the State capitol in the 
Department of Education, or at such place in the capitol as 
may be designated by the Governor for that purpose. They 
shall elect one of their members as chairman, and shall fix 
the term of office of the chairman. (Acts 1937, pp. 864, 865.)

32-406. Meetings.—The Board shall meet quarterly in 
regular session, at such time as they may by regulation pro­
vide, and may hold additional meetings at the call of the 
chairman: Provided, that upon the written request of a 
majority of the members of the Board the State Superin­
tendent of Schools shall call a meeting at any time. (Acts 
1937, pp. 864, 865.)

32-407. Per diem and mileage of members.—The mem­
bers of the Board shall receive the sum of seven dollars for 
each day of actual attendance at the meetings of the Board, 
and as actual cost of transportation to and from the place 
of meeting and their respective homes by the nearest prac­
ticable route the mileage allowed by law to State officers and 
employees. Such per diem and mileage shall be paid by the 
State Department of Education. (Acts 1937, pp. 864, 866.)

32-408. Rules and regulations for supervision of schools; 
courses of study; curriculum revision; administration of 
school funds.—The State Board of Education shall provide 
rules and regulations for the supervision of all public 
schools of this State; they shall provide a course of study 
for all common and high schools receiving State aid and 
may, in their discretion, approve additional courses of study 
set up by the local units of administration; provide for 
curriculum revisions and for the classification and certifi­

Appendix



46

cation of teachers. They shall make such rules and regula­
tions as may be necessary for the operation of the common 
schools and for the administration of the common school 
fund. (Acts 1937, pp. 864, 866.)

32-409. Estimate of funds needed—The Board shall 
prepare and submit to the Governor and General Assembly 
of the State of Georgia an estimate of the funds necessary 
for the operation of the State public school system. (Acts 
1937, pp. 864, 866.)

32-410. Control of employees.—The Board shall have 
general supervision of the State Department of Education 
and shall employ and dismiss, upon the recommendation of 
the State Superintendent of Schools, such clerical em­
ployees, supervisors, administrators, and other employees 
as may be necessary for the efficient operation of the com­
mon school system. (Acts 1937, pp. 864, 866.) 
* * * * * * * * * *

32-411. Set aside funds for maintenance of Depart­
ment.— The Board shall set aside the necessary funds for 
the maintenance of the office of the State Department of 
Education and the State Superintendent of Schools, the 
amount and sufficiency of said funds to be in the discretion 
of the State Board of Education, said funds to be disbursed 
by the State Superintendent of Schools in the payment of 
salaries and travel expense of employees; for printing, com­
munication, equipment, repairs and other expenses inci­
dental to the operation of the State Department of Educa­
tion. (Acts 1937, pp. 864, 866.)

32-411.1. Elementary and high school grades.—For the 
purpose of operation of the common schools of this State, 
and the participation therein by the State, the elementary 
grades of the common schools shall embrace grades one

Appendix



47

through seven, inclusive, and no other; and the high school 
grades shall embrace eight through 12, inclusive, and no 
other. (Acts 1947, pp. 668, 669.) 
* # * * # * # # * *

32-412. Powers of old Board.—Except as provided by 
this Chapter, the State Board of Education shall also have 
all the powers conferred by law upon the State Board of 
Education created by section 32-401 of the Code, and abol­
ished by section 32-419, and shall perform all the duties now 
required by law of said State Board of Education as now 
constituted. (Acts 1937, pp. 864, 867.) 
# # # # * * * # # *

32-414. Appeals to State Board.—The State Board of 
Education shall have appellate jurisdiction in all school mat­
ters which may be appealed from any county or city board 
of education, and its decisions in all such matters shall be 
final and conclusive. Appeals to the Board must be made 
in writing through the county superintendents of schools, 
or the secretary of the Official Board of Independent Sys­
tems, and must distinctly set forth the question of law, as 
well as the facts in the case. The Board shall provide by 
regulation for notice to the opposite party and for hearing 
on the appeal. (Acts 1937, pp. 864, 867.) 
# * # * # # # # * *

32-504. Secretary and agent of State Board of Educa­
tion.—The State Superintendent of Schools shall be the 
executive secretary of the State Board of Education, and 
the administrative officer of the State Department of Edu­
cation. He shall enforce and administer the regulations 
adopted by the State Board of Education. (Acts 1937, pp. 
864, 867.)
# # # # # # # * # #

Appendix



48

32-601. State’s policy to equalize opportunities.—It is
hereby declared to be the public policy of the State of 
Georgia that educational opportunities for all of the chil­
dren of school age in this State shall be equalized through­
out the State by the State Board of Education, so far as 
possible. (Acts 1937, pp. 882, 883.)

32-602. Seven months’ operation. Twenty days a month.
—From and after July 1, 1937, the public schools of this 
State, including the public high schools, shall be operated, 
upon the basis hereinafter provided, for a period of not less 
than seven school months during each school year. Twenty 
school days shall constitute a school month. (Acts 1937, 
pp. 882, 883.)

32-603. School year.—The school year shall begin on 
the first day of July and end on the thirtieth day of June of 
each year. (Acts 1937, pp. 882, 883.)

32-604. Units of administration.—For the purpose of 
this Chapter, the several counties of the State, and the 
various independent school systems established by law, shall 
he the local units of administration. (Acts 1937, pp. 882, 
883.)

32-605. Election of principals and teachers.—In the local 
units of administration, the several teachers and principals 
shall be elected by the boards of education on the recom­
mendation of the respective superintendents: Provided, that 
principals and teachers in local tax districts, not operated 
as independent systems, shall be recommended by the board 
of trustees of such school district and by the county super­
intendent. (Acts 1937, pp. 882, 883.)

Appendix



49

32-606. Superintendents and boards to execute Chapter.
—The superintendents and the boards of education of the 
respective local units referred to shall execute the provi­
sions of this Chapter under such rules and regulations as 
may be adopted by the State Board of Education. (Acts 
1937, pp. 882, 883.)
* # # # # # # # # #

32-608. Local units to be divided into five groups.—The
State Board of Education shall divide the various local 
units of administration provided for by section 32-604 into 
five groups, on the basis of the most recent United States 
census, and shall regroup said locals units as early as prac­
ticable after each United States census.

(a) Group 1 shall embrace independent school systems in 
cities of more than 10,000 population, counties having one 
or more cities of more than 10,000 population, exclusive of 
independent systems, and counties having a population 
density of more than 200 per square mile.

(b) Group 2 shall embrace all independent school sys­
tems not included in Group 1 and all counties having a popu­
lation density of not less than 875 and not more than 200 
per square mile.

(c) Group 3 shall embrace counties having a population 
density of 45 or more and less than 75 per square mile.

(d) Group 4 shall embrace counties having a population 
density of 19 or more and less than 45 per square mile.

(e) Group 5 shall embrace counties having a population 
density of less than 19 per square mile. (Acts 1937, pp. 
882, 884.)

Appendix



50

32-609. Annual determination of teachers to be em­
ployed in each group—The State Board of Education shall 
annually determine, subject to such variations as in its 
discretion may be necessary, the number of teachers to be 
employed for the minimum term prescribed by section 32- 
601, upon the basis of average daily attendance for the pre­
ceding school year, as follows:

(a) For school systems in Group 1 there shall he allowed 
one teacher for each 40 pupils and major fraction thereof 
in the elementary grades, and one teacher for each 35 pupils 
and major fraction thereof in the high school grades.

(b) For school systems in Group 2, there shall be al­
lowed one teacher for each 35 pupils and major fraction 
thereof in the elementary grades, and one teacher for each 
30 pupils and major fraction thereof in the high school 
grades.

(c) For school systems in Group 3, there shall be al­
lowed one teacher for each 30 pupils and major fraction 
thereof in the elementary grades, and one teacher for each 
25 pupils and major fraction thereof in the high school 
grades.

(d) For school systems in Group 4, there shall be al­
lowed one teacher for each 25 pupils and major fraction 
thereof in the elementary grades, and one teacher for each 
20 pupils and major fraction thereof for the high school 
grades.

(e) For school systems in Group 5, there shall be al­
lowed one teacher for each 20 pupils and major fraction 
thereof in the elementary grades, and one teacher for each 
15 pupils and major fraction thereof in the high school 
grades.

Appendix



51

For the purpose o f this section, grades one through 
seven, inclusive, and no others shall be considered elemen­
tary grades, and grades eight through 12, and no others, in­
clusive, shall he considered high school grades. (Acts 1937, 
pp. 882, 884; 1947, pp. 668, 669.) 
# # # # # # # # * *

32-610. Certifying and classifying of teachers.—The
State Board of Education shall provide, by regulation, for 
certifying and classifying the teachers in the public schools 
of this State. No teacher, principal, supervisor, or super­
intendent, other than county school superintendents, shall 
be employed in the public schools unless such person shall 
hold a certificate from the State Board of Education, cer­
tifying to his or her qualifications as such teacher, principal, 
supervisor, or superintendent, or a county license issued by 
a county board of education pursuant to the rule and regu­
lations of the State Board of Education. (Acts 1937, pp. 
882, 885.)

32-611. Local units may provide additional advantages.
—Nothing in this Chapter shall operate to prevent any local 
school unit from providing for local fund educational ad­
vantages in addition to those herein prescribed or that may 
be prescribed by the State Board of Education or from mak­
ing rules for the government of such local systems not in 
conflict with those prescribed by the State Board. (Acts 
1937, pp. 882, 886.)

32-612. Basis of classification of teachers.—The State 
Board of Education shall provide, by regulation, for the 
classification of all of the teachers in the public schools of 
this State, except county school superintendents, upon the

Appendix



52

basis of academic and professional training and experience, 
and the certificate or license issued to each such teacher by 
the State Board of Education, or pursuant to its authority, 
shall indicate the classification of such teacher. (Acts 1937,
pp. 882, 886.)

32-613. Schedules of minimum salaries.—The State 
Board of Education shall annually fix a schedule of the 
minimum salaries which shall be paid to the teachers of 
the various classes prescribed by them out of the public 
school funds of the State, which salary schedule shall be 
uniform for each of the classes of teachers fixed by the 
State Board of Education: Provided, however, that the 
State Board of Education, in its discretion, may authorize 
or provide for variations from such schedules whenever, 
in its discretion, such variations may be necessary. (Acts 
1937, pp. 882, 886.)
# # # * * * # * # *  

32-614. Common school fund and appropriations, how 
used.—The common school fund and such appropriations 
as may have been, or may hereafter be made by the Gen­
eral Assembly for common school purposes, shall be used 
by the State Board of Education to carry out the provisions 
of this Chapter and for the following purposes:

(1) To pay all teachers in the public schools of the State 
except county superintendents, salaries for not less than 
seven months in each school year, in accordance with the 
salary schedules prescribed by the State Board of Educa­
tion : Provided, that no teacher shall receive less than the 
minimum salary prescribed by the State Board of Educa­
tion for the class to which such teacher belongs, unless the 
State Board of Education, in the exercise of its discretion, 
shall otherwise direct.

Appendix



53

(2) To pay the salaries of county school superintendents 
as now provided by law.

(3) To pay to each local unit of administration, as here­
inbefore defined, for the purpose of meeting local adminis­
trative expenses, the cost of operating and maintaining 
school plants, meeting fixed charges, the expense of auxil­
iary agencies, the expenses of transportation, and other 
administrative expenses, a sum sufficient, when added to 
the total amount which may be raised by such local unit 
of administration, by a local tax levy of five mills, to equal 
one-third of the amount allotted to such local unit of ad­
ministration for salaries.

(4) To pay the administrative expenses of the State 
Department of Education, the compensation and expenses 
of the State Board of Education, and the State Superin­
tendent of Schools, and such other salaries and adminis­
trative expense of the Department of Education as may be 
authorized by the State Board of Education and approved 
by the State Superintendent of Schools. (Acts 1937, pp. 
882, 886.)
* * * * * * * * * *

32-615. Operation beyond seven months; supplementing 
salaries; additional teachers.—The board of education of 
any local unit of administration, as defined by this Chapter, 
may operate the schools of such county, or city, or school 
district, for a longer period than seven months during any 
school year, or may, in its discretion, supplement the State 
schedule of salaries, and employ additional teachers not 
provided for in this Chapter: Provided, however, that
teachers in such schools shall receive not less than the mini­
mum salary prescribed by the State Board of Education on 
the State schedule for any period during which the school

Appendix



54

term may be extended, unless the State Board of Educa­
tion, in its discretion, shall otherwise direct: Provided,
further, that any such local unit as herein defined may op­
erate kindergartens or grades above the twelfth solely from 
local funds. (Acts 1937, pp. 882, 887; 1946, pp. 206, 216; 
1947, pp. 668, 670.)
* * * * * * * * * *  

32-616. Board to fix minimum salaries and number of 
teachers each year.—The State Board of Education shall, 
on or before the beginning of each school year, or as soon 
thereafter as may be practicable, fix the minimum schedule 
of teachers’ salaries for the ensuing school year, and deter­
mine the minimum number of teachers which may be em­
ployed by each local unit of administration under the classi­
fication of local units prescribed by this Chapter. This in­
formation shall be furnished to the board of education of 
each local unit as soon as the same is available. (Acts 1937,
pp. 882, 888.)
* * * * * * * * * *  

32-622. State Board to administer; Superintendent as 
secretary.—The State Board of Education shall administer 
this Chapter, and enforce its provisions. The State Super­
intendent of Schools shall be the executive and adminis­
tration secretary of the State Board of Education for that 
purpose. (Acts 1937, pp. 882, 890.) 
# # * # # * # * * *

32-910. Powers of county boards as school court.—The
county board of education shall constitute a tribunal for 
hearing and determining any matter of local controversy in 
reference to the construction or administration of the school 
law, with power to summon witnesses and take testimony 
if necessary; and when they have made a decision, such

Appendix



55

decision shall be binding upon the parties. Either of the 
parties shall have the right of appeal to the State Board of 
Education, and such appeal shall be made through the 
county superintendent of schools in writing and shall dis­
tinctly set forth the question in dispute, the decision of the 
county board and testimony as agreed upon by the parties 
to the controversy, or if they fail to agree upon the testi­
mony as reported by the county superintendent of schools: 
Provided, that this section shall not apply to any public 
school system established prior to the adoption of the Con­
stitution of 1877. (Acts 1919, p. 324; 1947, pp. 1189, 1190.) 
* * # * # # * * # *

32-1010. Examination and suspension of teachers.—The
county superintendent of schools shall superintend exami­
nations of all teachers of his county as provided by law. He 
shall suspend any teacher under his supervision for non­
performance of duty, incompetency, immorality or ineffi­
ciency, and for other good and sufficient causes. From Ms 
decision the teacher may appeal to the county board of edu­
cation, and either the superintendent or the teacher, being 
dissatified with the decision of the board, may appeal to the 
State Board of Education, the decision of which shall be 
final: Provided, that this section shall not apply to any 
public school system established prior to the adoption of 
the Constitution of 1877. (Acts 1919, p. 352; 1947, pp. 1189, 
1191.)
* * * * # * # * # #

32-1111. Local school systems.—Authority is given by 
the Constitution to municipalities now authorized by law to 
operate independent school systems to maintain public or 
common schools in their respective units by local taxation. 
(Acts 1919, p. 340; 1946, pp. 206, 211.)

Appendix



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