Borders v. Rippy Appellants' Brief

    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).



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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.