Borders v. Rippy Appellants' Brief
Public Court Documents
January 1, 1957

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Brief Collection, LDF Court Filings. Borders v. Rippy Appellants' Brief, 1957. b7fcb122-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3c0f13a5-717e-4ae4-83f4-2295638bff1f/borders-v-rippy-appellants-brief. Accessed April 29, 2025.
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littteii (Enart of Appeals For the Fifth Circuit No. 16,483 HILDA RUTH BORDERS, a minor, by her father and next friend, LOUIE BORDERS, ,TR., et al., Appellants, versus DR. EDWIN L. RIPPY, as President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellees. A ppeal F rom the U nited S tates D istrict Court eor the N orthern D istrict of T exas APPELLANTS’ BRIEF L ouis B edford, C. B. B unkley, J r., W . J . D u r h a m , U. S impson T ate, Dallas, Texas, R obert L. Carter, T hurgood Marshall, New York City, Attorneys for Appellants. Initefc States (Eourt nf Appeals For the Fifth Circuit No. 16,483 --------------------------------------------------- o ----------------------------------------- •— H ilda R uth B orders, a m inor, by her fa th e r and next friend , L ouie B orders, J r., et al., Appellants, versus Dr. E dwin L. R ippy , as President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellees. A ppeal F rom the U nited States D istrict Court for the N orthern D istrict of T exas — _ _ — ---------- --------------o — ------------------— — — APPELLANTS’ BRIEF For the second time this case is here on appeal from a judgment denying appellants the relief, which they sought, and dismissing the cause without prejudice. The claims of the parties and the issues raised in their pleadings are those which this Court described in its decision on the earlier appeal. 233 F. 2d 796, rev‘g 133 F. Supp. 811. On December 19, 1956, pursuant to this Court’s direc tion, the parties were afforded a full hearing. The eviden tiary facts there adduced are not in dispute: The Dallas Independent School District consists of 134 school build ings, a professional staff of 3,800 and 119,000 pupils— 2 16% percent of which are Negroes (R. 91, 95). One hun dred twelve of the school buildings (9 senior high schools, 10 junior high schools, 1 vocational school and 92 elementary schools) are operated for white pupils exclusively; the re maining 22 (3 senior high schools, 19 elementary schools) are for Negro pupils (R. 97, 98). On September 5, 1955, a regular day for registration in the Dallas public schools (R. 103), minor appellants sought admission into elementary and secondary schools-— all operated for white children only—which are the schools closest to their homes (R. 61-62, 66-67, 70-71, 74-75, 77-78, 104-105). They were refused admission by the principals of these schools, each of whom informed minor appellants’ parents that the refusals were pursuant to a directive of the Board of Trustees (R. 62, 67, 71-72, 75, 78, 105), which in July 1955, had passed a resolution ordering that neither integration nor any alteration in the existing status of the schools was to be effectuated during the 1955-56 term (R. 84-85). Subsequently, a similar resolution for the 1956-57 school year was passed by the Board (R. 90). “ Consistent with the Board of Education’s adopted policy, and pending further decrees of the court,” an uncrowded white high school was converted to an all Negro school beginning with the 1956-57 school year (R. 86) ; and an uncrowded white elementary school had been previously assigned to Negroes for the 1955-56 term (R. 89). In the text accompanying the 1955 resolution, the Board stated that months prior thereto it had instructed the Superintendent of Schools to proceed with a detailed study of the problems inherent in desegregation and that studies 3 in twelve areas1 were then in progress (R. 93-94), The Board also insisted that it would not direct any change until its study and understanding of the problems involved were completed and its plans worked out to the minutest detail (R. 94). A like statement accompanied the 1956 resolution and, in addition, reported that studies in six of the twelve areas had been completed and presented to the Board (R. 91). The Superintendent, under whose supervision these studies had been made, reported that, if there was immedi ate desegregation, integration would occur in 8 (and pos sibly 9) of the white and all 3 of the Negro senior high schools; and that there would be nonsegregated classes in about 37 of the white and 14 of the Negro elementary schools (R. 109). The effectuation of nonsegregated school ing, according to the Superintendent, would cause some overcrowding in schools serving some communities; but no 1 “1. Scholastic boundaries of individual schools with relation to racial groups contained therein.* “2. Age-grade distribution of pupils.* “3. Achievement and state of preparedness for grade-level assign ment of different pupils.* “4. Relative intelligence quotient scores.* “5. Adaptation of curriculum.* “6. The over-all impact on individual pupils scholastically when all the above items are considered. “7. Appointment and assignment of principals. “8. The relative degree of preparedness of white and Negro teachers; their selection and assignment.* “9. Social life of the children within the school. “10. The problems of integration of the Parent-Teacher Associa tion and the Dads Club organization. “11. The operation of the athletic program under an integrated system. “12. Fair and equitable methods of putting into effect the decree of the Supreme Court” (R. 93-94). * The asterisks indicate the studies which had been completed at the time of the trial (R. 108). 4 overcrowding would result elsewhere (R. 110), including the schools which had been transferred to Negro pupils (R. 114-115). He also stated that Negro students, on the average, were less mature intellectually than white students on the same grade levels (R. 111-113) and that, if Negro and white children were placed together at the grade level where they are presently enrolled, it would produce a confused instructional pattern and create learning problems (R. 111- 113). Moreover, if Negro children were placed at grade levels commensurate with their level of intellectual matur ity, they would be over-age and over-sized for their social group (R. 113)—ranging from being iy2 years older in the first grade to 3y2 years older in the last year of senior high school (R. 113). Be this as it may, the Superintendent admitted that no white children were refused admission to schools designated for them because of retardation (R. 114). Upon consideration of this evidence and the pleadings, the trial court issued an opinion and judgment immediately after both sides closed (R. 129-132). Concluding that the appellees had been seeking to integrate, but so far had not succeeded, that appellees were doing their very best to comply with the ruling of the Supreme Court of the United States, and, that there was no equity here, the District Judge denied an injunction and dismissed the suit without prejudice “ in order that the School Board may have ample time, as it appears to be doing, to work out this problem.” (R. 132). Specification of Errors Relied Upon 1. The District Court erred in refusing to apply the standards set forth by the Supreme Court and this Court to the facts in the instant case. 2. The District Court erred in dismissing the suit. 0 ARGUMENT I. The D istrict Court E rred In Refusing To Apply The S tandards Set Forth By The Suprem e Court And This Court To The Facts In The Instan t Case. In the School Segregation Cases the Supreme Court set out certain criteria for action and limitations upon the discretion of district courts considering cases involving segregation in public education. Among these criteria and limitations are: (1) that the school board “ make a prompt and reasonable start toward full compliance with our May 17, 1954 ruling” ; (2) the school board has the burden of proof in showing that time is necessary for “ good faith compliance at the earliest practicable date” ; (3) that Dis trict Courts enter such orders and decrees “ to admit to public schools on a racially nondiscriminatory basis with all deliberate speed” the parties in the cases; and (4) “ [djuring this period of transition, the courts will retain jurisdiction of these cases.” Brown v. Board of Educa tion, 349 U. S. 294, 300-301. In a case similar to the one at bar where school officials were conducting studies, holding meetings, passing resolu tions and appointing committees to work out plans for integration the lower court dismissed the case as being “ precipitate and without equitable justification.” 2 This Court reversed, Jackson v. Rawden, 235 F. 2d 93, cert, denied, 352 U. S. 925, and said at page 96: “ We think it clear that, upon the plainest princi ples governing cases of this kind, the decision ap pealed from was wrong in refusing to declare the 2 “The School Board has shown that it is making a good faith effort toward integration and should have a reasonable length of time to solve its problems and end segregation in the Mansfield Second School District. At this time this suit is precipitate and without equitable justification." Jackson v. Rawden, 135 F. Supp. 936. 6 constitutional rights of plaintiffs to have the school board, acting promptly, and completely uninfluenced by private and public opinion as to the desirability of desegregation in the community, proceed with deliberate speed consistent with administration to abolish segregation in Mansfield’s only high school and to put into effect desegregation there.” In the instant case the appellees have proceeded with a study of twelve areas 3 which they allege embrace the problems inherent in the desegregation of its school sys tem. Of these twelve studies six had not been completed at the time of trial,4 and the policy of the Board of Edu cation is to maintain a segregated school system until these studies have been completed and plans worked out to the minutest detail (R. 94). The areas of study which have been completed allegedly involve various problems related to the administration of nonsegregated schools. Although reports of the results had been submitted to the Board (R. 109), the school authorities have not formulated a plan to admit appellants to the public schools on a nondiscriminatory basis and contend that additional time is necessary to study prob lems in other areas. Since the burden rests upon the school authorities to establish that additional time is necessary to carry out the ruling of the Supreme Court, Brown v. Board of Educa tion, supra, they had the burden of showing that the areas of study to be completed were within the contemplation of the Supreme Court as justification for delay. The appel lees did not carry this burden but merely asserted that, “ it will be impractical to attempt integration until the studies have been completed” (R. 84); that, “ for the im mediate future this Board feels that any change is prema- 3 See footnote 1, supra. 4 Id. 7 ture” (R. 90); and, that “ the information gained from these analyses is indispensable for future planning” (R. 91). The appellants contend that the areas of study which have not been completed 5 do not fall within the “ prob lems ’ ’ which the court may consider 6 but are concerned with public and private considerations which are not grounds for delay. Brown v. Board of Education, supra, Jackson v. Rawden, supra, Mitchell v. Pollock, Civil Action No. 708 (W. D. Ky., Feb. 1957) unreported; Garnett v. Oakley, Civil Action No. 721 (W. I). Ky., Feb. 1957) un reported. But, even if the remaining studies were found to be of an administrative nature, a consideration of these prob lems for this period of time 7 without taking some posi tive action in the way of discontinuing segregation does not constitute “ a prompt and reasonable start” toward that objective. McSwain v. County Board of Education, 138 F. Supp. 570 (1956). In Willis v. Walker, 136 F. Supp. 177, 181 (1955) where the plans for desegregation were “ rather vague and indefinite and depended for their ultimate success upon so many varied elements” , it was said that, “ the court does not question the good faith of the defendants but good faith alone is not the test. There must be compliance at the earliest practicable date. ’ ’ Simi larly, in The. School Board of the City of Charlottesville v. Doris Marie Allen, 240 F. 2d 59 (4th Cir. 1957), cert. 5 See footnote 1, supra. 6 “ * * * the courts may consider problems related to administra tion, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas * * *, and revision of local laws and regulations. * * * They will also consider the adequacy of any plans * * * to meet these problems. * * *” Brown v. Board of Education. 349 U. S. 294, 300-301. 7 “ * * * this Board of Education months ago instructed Dr. W. T. White * * * to proceed with a detailed study of the problems inherent to desegregating a major school system. * * * ” (Emphasis added.) Minutes of the Board of Education July 13, 1955 (R. 93). 8 denied, — U. S. —, 1 L. ed. 2d 664, the Court of Appeals for the 4th Circuit said at page 64: “ It had been two years since the first decision of the Supreme Court in Brown v. Board of Education and, despite repeated demands upon them, the boards of education had taken no steps towards re moving the requirement of segregation in the schools which the Supreme Court had held violative of the constitutional rights of the plaintiffs. This was not “ deliberate speed” in complying with the law . . . but was clear manifestation of an attitude of in transigence which justified the issuance of the injunc tions to dispel the misapprehension of school authori ties as to their obligations under the law and to bring about their prompt compliance with constitutional requirements as interpreted by the Supreme Court.” II. The Court Below Erred In Dismissing The Suit. The court’s dismissal of the suit was not supported by the evidence adduced at the trial and was contrary to pre vailing authority. The assertion of the court below that “ the state statute requires separate schools for colored and white students” (E. 131) is clearly erroneous. McKinney v. Blankenship, 154 Tex. 632, 282 S. W. 2d 691. Equally erroneous is the attempt on the part of the court below to revive the doc trine of “ separate but equal” (R. 130-131) to sustain the view that appellants are not being denied a constitutional right, Brown v. Board of Education, 347 U. 8. 483. In deed, where facilities are “ equal” the administrative prob lems are minimal, and there is little or no reason for deferring desegregation. The record shows that, although some of the school buildings are completely filled, there are others which are not. (R. 110.) This indicates that the school facilities are 9 adequate to house the total student population. If, how ever, a crowded condition were to exist in some buildings, this would not justify continued segregation. Clemons v. Board of Education, 228 F. 2d 853 (6th Cir. 1956); Willis v. Walker, swpra. The change from a segregated school system to one that is nonsegregated will require the revision of school districts to achieve a system of determining admission on a non- racial basis. A study of the scholastic boundaries of indi vidual schools has been completed.8 The assignment of students pursuant to revised districts would require the transfer of some of them to schools in new attendance areas. Such reassignment, however, would be a natural result of the redistricting; and, contrary to the opinion of the court below (R. 132), does not amount to an unthinkable and unbearable wrong because some white students may have to be assigned elsewhere in order to accommodate the Negro students in the new district. The judgment of the District Court is contrary to the rules of equity and constitutes an improvident exercise of judicial power. Brown v. Board of Education, 347 U. S. 483; Clemons v. Board of Education, supra; Jackson v. Rawden, supra; Whitmore v. Stillwell, 227 F. 2d 187 (5th Cir. 1955). A trial court abuses its discretion when it fails or re fuses properly to apply the law to conceded or undisputed facts. Union Tool Go. v. Wilson, 259 IT. S. 107. In a suit of this kind where admission to public schools is being- denied plaintiffs solely on the basis of race, they have an absolute right to have their constitutional rights declared. Brown v. Board of Education, 349 IT. S. 294; Jackson v. Rawden, supra; cf. Witmore v. Stillwell, supra; Alfred Avery, Jr. v. Wichita Falls Independent School District et al., 241 F. 2d 230 (5th Cir. 1957), cert, denied, — U. S. —, April 22, 1957. See footnote 1, supra. 10 The undisputed evidence plainly shows that the board has not given serious consideration to its paramount duty to proceed with integration “ with all deliberate speed” but, quite to the contrary, has taken definite action to con tinue segregation indefinitely. Indeed, it has declined to fix or even give serious consideration to the time when it would cease, and the only reason it has given for not desegregat ing at once is the need of more time for studies. The failure of the defendants to proceed “ with all deliberate speed” toward desegregation brings the instant case squarely within the holding of this court in Jackson v. Raivden, supra. This is especially true in the light of the previous decision of this court in the instant case. Brown v. Rippy, 233 F. 2d 796. In light of the history of this case, appel lants’ only effective redress, it is respectfully submitted, is an order of this Court instructing the District Court to issue the injunction as prayed. Conclusion Wherefore, appellants pray that the judgment below be reversed and that the court below be instructed to enter an order requiring appellees to desegregate the schools under their jurisdiction “ with all deliberate speed.” Respectfully submitted, Louis B edford, C. B. B unkley, J r., W. J. D urham, U. S impson T ate, Dallas, Texas, R obert L. Carter, New York City, Attorneys for Appellants.