City of Norfolk School Board v. Alston Memorandum Brief in Opposition to Petition for Certiorari

    g>uprpmp (Unurt nf %  Irntpfc States
O ctober T erm , 1940

IN THE

No. 429

S chool B oard of the  C ity  of N orfolk and C. W . M ason, 
S uperintendent  of S chools of N orfolk, 

Petitioners,

v.

M elvin  0 .  A lston and the  N orfolk T eachers ’ A ssociation,
Respondents

MEMORANDUM BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI

L eon A . R ansom
1512 Girard Street, N.E. 
Washington, D. C.

T hurgood M arshall
Baltimore, Md.

Counsel for Respondents
W illiam  H . H astie

Washington, D. C.
O liver W. H ill  

Richmond, Va.
B e n jam in  K aplan

New York, N. Y.
W . R obert M ing , J r .

Chicago, 111.
Of Counsel

Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.



SUBJECT INDEX
PAGE

Statement of Facts___________________________________  1

Questions Involved___________________________________  3

Argument
I. The decision that the alleged salary discrimination

is a denial of equal protection of the laws is so 
clearly sound and consistent with precedent that 
it should not be reviewed______________________ 3

A. There is no conflict in the federal decisions
on this proposition_____________________  3

B. There is no conflict between the decision
of the Circuit Court of Appeals and ap­
plicable local decisions________________  4

C. The decision of the Circuit Court of Appeals
is consistent with the course of decisions 
of this court construing the Fourteenth 
Amendment to the Constitution of the 
United States_________________________  5

II. The issue of waiver should not be reviewed upon
the present record____________________________  6

Conclusion ____________________________________ ____ _ 9



TABLE OF CASES
PAGE

Black v. School Board of the City of Norfolk (Unre­
ported) ___________________________________________  5

Buchanan v. Warley, 245 U. S. 60______________________  6
Ex parte Virginia, 100 U. S. 339_______________________  6
Gaines v. Missouri, 305 U. S. 337_______________________  6
Gilbert v. Highfill, — Fla. —, 190 So. 813______________  5
Lane v. Wilson, 307 U. S. 268__________________________  6
McCabe v. A. T. & Santa Fe Ry. Co., 235 U. S. 151_______  6
Mills v. Anne Arundel County Board of Education, et al.,

30 F. Supp. 245____________ __ _____________________  4
Mills v. Lowndes, et ah, 26 F. Supp. 792_______________  4
Nixon v. Condon, 286 U. S. 73_________________________  6
Pierre v. Louisiana, 306 U. S. 354_______________ _______  6
Strauder v. West Virginia, 100 U. S. 303____________   6
Truax v. Raich, 239 U. S. 33_________ ....________________  6
Yick Wo v. Hopkins, 118 U. S. 220_____________________  6
Yu Cong Eng v. Trinidad, 271U. S. 500_________________ 6

STATUTES AND RULES CITED 

Virginia Code:
Section 664 ____________________________________  7
Section 786 ____________________________________  7

Federal Rules of Civil Procedure:
Rule No. 7 (a )__________________________________ 8
Rule No. 8 (c )__________________________________ 8



IN THE

Supreme (Emtrt of tl}2 Imtpfr Binits
O ctober T eem , 1940

No. 429

S chool B oaed of th e  Cit y  of N orfolk and C. W . M ason, 
S uperintendent  of S chools of N orfolk, 

Petitioners,

v.

M elvin  0 .  A lston  and th e  N orfolk T eachers ’ A ssociation,
Respondents

MEMORANDUM BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI

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

In opposing the petition for certiorari filed by petitioners 
herein, respondents respectfully show:

STATEMENT OF FACTS

Petitioners seek review of a judgment rendered upon 
pleadings. The judgment does not accomplish a final dis­
position of the case but merely decides that the complaint 
is legally sufficient and orders a trial of the controversy for 
the first time on its merits.

Respondents as plaintiffs in the District Court of the 
United States for the Eastern District of Yirginia filed their 
complaint against the defendant School Board and the 
defendant Superintendent of Schools seeking a permanent



2

injunction against, and a judgment declaratory of, alleged 
unconstitutional racial discrimination in administratively 
established schedules of salaries for white and colored 
teachers in the City of Norfolk and in the salaries actually 
paid pursuant to such schedules. The essence of the com­
plaint appears in paragraphs 11 and 12 thereof where it 
is alleged that:

“ 11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of pay­
ing Negro teachers and principals in the public schools 
of Norfolk less salary than white teachers and prin­
cipals in said public school system possessing the same 
professional qualifications, certificates and experience, 
exercising the same duties and performing the same 
services as Negro teachers and principals. Such dis­
crimination is being practiced against the plaintiffs and 
all other Negro teachers and principals in Norfolk, 
Virginia, and is based solely upon their race or color.”

‘ ‘ 12. The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and 
principals in public schools in the City of Norfolk are 
teachers by profession and are specially trained for 
their calling. By rules, regulations, practice, usage 
and custom of the Commonwealth acting by and through 
the defendants and its agents and agencies, the plain­
tiff Alston and all of the members of the plaintiff asso­
ciation and all other Negro teachers and principals in 
the City of Norfolk are being denied the equal protec­
tion of the laws in that solely by reason of their race 
and color they are being denied compensation from 
public funds for their services as teachers equal to the 
compensation provided from public funds for and being 
paid to white teachers with equal qualifications and 
experience for equivalent services pursuant to rules, 
regulations, custom and practice of the Commonwealth 
acting by and through its agents and agencies, the 
School Board of the City of Norfolk and the Superin­
tendent of Schools of Norfolk, Virginia. ’ ’ (Record, 
pp. 7, 8.)



3

As appears in the judgment of the District Court (Record, 
pp. 30-31), the cause came on, at the suggestion of the Dis­
trict Judge, for preliminary hearing solely upon the issue 
of the legal sufficiency of the complaint as raised by so much 
of the answer as was in the nature of a motion to dismiss. 
Upon such hearing the District Court entered a final order 
sustaining the motion to dismiss the complaint. From that 
order the respondents appealed. The Circuit Court of Ap­
peals for the Fourth Circuit reversed the judgment of the 
District Court and remanded the cause for trial (Record, 
p. 45).

QUESTIONS INVOLVED

I. THE DECISION THAT THE ALLEGED SALARY 
DISCRIMINATION IS A DENIAL OF EQUAL PRO­
TECTION OF THE LAWS IS SO CLEARLY SOUND 
AND CONSISTENT W ITH PRECEDENT THAT IT 
SHOULD NOT BE REVIEWED.

II. THE ISSUE OF W AIVER SHOULD NOT BE 
REVIEWED UPON THE PRESENT RECORD.

ARGUMENT

I

The Decision That the Alleged Salary Discrimination Is a 
Denial of Equal Protection of the Laws Is So Clearly 

Sound and Consistent With Precedent That 
It Should Not Be Reviewed

A. There Is No Conflict in the Federal Decisions on This
Proposition

On the three other occasions that federal courts have 
passed on this question the decisions have been in accord 
with the conclusion reached by the Circuit Court of Appeals 
that:



4

“Plaintiffs, as teachers qualified and subject to employ­
ment by the state, are entitled to apply for the posi­
tions and to have the discretion of the authorities exer­
cised lawfully and without unconstitutional discrimina­
tion as to the rate of pay to be awarded them, if their 
applications are accepted.”  (Record, p. 43.)

Even the District Court conceded that:

“ The authorities are clear—that there can be no dis­
crimination in a case of this kind, if such discrimina­
tion is based on race or color alone.”  (Record, p. 24.)

The only other federal court in which the question has 
been raised is that of the United States District Court for 
the District of Maryland. That court twice reached the 
same conclusion.

Mills v. Lowndes et al., 26 P. Supp. 792 (1939);
Mills v. Anne Arundel County Board of Education et 

al., 30 F. Supp. 245 (1939).

In the latter case the Court said:

“ . . . As already stated, the controlling issue of fact 
is whether there has been unlawful discrimination by 
the defendants in determining the salaries of white 
and colored teachers in Anne Arundel County solely 
on account of race or color, and my finding from the 
testimony is that this question must be answered in the 
affirmative, and the conclusion of law is that the plain­
tiff is therefore entitled to an injunction against the 
continuance of this unlawful d is cr im in a tio n (Italics 
supplied.) (30 Fed. Supp. at 252.)

B. There Is No Conflict Between the Decision of the Circuit 
Court of Appeals and Applicable Local Decisions

Although no question of local law is here presented since 
the right claimed by the respondents is one guaranteed by 
the Constitution of the United States, actually there is no



5

decision of a state court in conflict with that of the Circuit 
Court of Appeals here.

In the only reported state case, Gilbert v. Highfill, Fla. 
—, 190 So. 813 (1939), mandamus was sought to compel the 
adoption of an equal salary schedule for white and Negro 
teachers. The Supreme Court of Florida held that manda­
mus would not lie to compel the adoption of any salary 
schedule, expressly stating however, at page 815:

“ We fully agree with counsel for the relator and the 
authorities cited in their brief on the question of dis­
crimination and an equal protection of the law as guar­
anteed by the 14th Amendment to the Constitution of 
the United States, U. S. C. A. We do not think either 
of these questions is presented by the record.”  (Italics 
supplied.)

In the unreported case of Aline Black v. The School Board 
of the City of Norfolk et al., the Circuit Court of the City 
of Norfolk considered a demurrer to a similar petition for 
mandamus and ruled that mandamus was not the proper 
remedy. No mention was made of the substantive question 
here involved. (Record, p. 23.)

Similar actions filed in the Maryland counties of Mont­
gomery, Prince George’s and Calvert were made moot 
before trial by equalization of salaries pursuant to agree­
ment.

Thus the state courts upon whose decisions petitioners 
rely have passed only on the procedural question and have 
not adjudicated the substantive question involved here.

C. The Decision of the Circuit Court of Appeals Is Con­
sistent With the Course of Decisions of This Court 
Construing the Fourteenth Amendment to the Con­
stitution of the United States.

It is submitted that certiorari should not be granted be­
cause the judgment of the Circuit Court of Appeals is clearly



6

sound, consistent with, and follows closely a long line of 
precedents established by this Court.

A  general effect of the Fourteenth Amendment to the Con­
stitution of the United States is to prohibit arbitrary and 
unreasonable classification by state agencies.

Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926);
Truax v. Raich, 239 U. S. 33 (1915);
Tick Wo v. Hopkins, 118 U. S. 220 (1886).

Discrimination because of race or color is clearly arbi­
trary and unreasonable. This Court has repeatedly so held 
in cases arising out of a variety of factual situations.

Lane v. Wilson, 307 U. S. 268 (1939);
Pierre v. Louisiana, 306 U. S. 354 (1939) ;
Gaines v. Missouri, 305 U. S. 337 (1938);
Nixon v. Condon, 286 U. S. 73 (1932);
Buchanan v. Warley, 245 U. S. 60 (1917);
McCabe v. A. T. & Santa Fe By. Co., 235 U. S. 151 

(1914);
Strauder v. W. Virginia, 100 U. S. 303 (1879);
Ex parte Virginia, 100 U. S. 339 (1879).

By the motion to dismiss petitioners have admitted that 
the existing salary differentiation is based solely on the race 
and color of the respondents and that it is adopted, main­
tained and enforced by petitioners acting for the Common­
wealth of Virginia.

The Circuit Court of Appeals has logically applied the 
doctrine established by this Court to the facts of the instant 
case.

II

The Issue of Waiver Should Not Be Reviewed Upon the 
Present Record

Respondents agree with petitioners that it is an impor­
tant Federal question whether Negroes who accept employ­
ment as public school teachers thereby waive their right to



7

complain that they are denied the equal protection of the 
laws by salary discrimination based solely upon race and 
imposed and required by rule, regulation and practice of 
an agency of the State. However, neither the present state 
of the record upon that issue nor the scope of the decision 
of the Circuit Court of Appeals warrants the granting of 
certiorari.

Paragraph 10 of the complaint (Record, p. 7) alleges that 
defendants, petitioners here, are under a statutory duty to 
employ teachers and to provide for the payment of their 
salaries, citing, inter alia, Section 786, of the Virginia Code 
of 1936 which provides in part that

“ The City school board of every city shall . . . have 
the following powers and duties . . . Third. To em­
ploy teachers . . . Twelfth. To . . . provide for the 
pay of teachers . . . ”

It is further provided in Section 664 that

“ Written contracts shall be made by the school board 
with all public school teachers before they enter upon 
their duties, in a form to be prescribed by the Superin­
tendent of Public Instruction.”

Paragraph 15 of the complaint (Record, p. 9) alleges that 
plaintiff Alston, respondent here,

“ is being paid by the defendants for his services this 
school year as a regular male high school teacher as 
aforesaid an annual salary of $921.”

Thus, from the complaint and the above quoted language 
of applicable Virginia statutes it seems a proper conclusion 
that respondent Alston is employed during the current year 
pursuant to a contract of hire and at an annual salary of 
$921. Moreover, in a preliminary proceeding in the nature 
of a hearing on motion to dismiss the complaint it was 
proper that the court determine whether any conclusion of



law fatal to the respondents’ ease followed from the facts 
outlined above. To that extent, and to that extent only, the 
question of waiver was before the District Court and the 
Circuit Court of Appeals.

It is to be noted that so much of the “ Second Defense”  
in the answer as raises the issue of waiver is in form 
a defense in law in the nature of a motion to dismiss, but 
in substance it combines a challenge to the sufficiency of the 
complaint with an introduction of new matter in the nature 
of an affirmative defense. Thus, the sub-paragraphs num­
bered (4) and (5) (Record, p. 19) go beyond an allegation 
that acceptance of employment by the respondent is a 
waiver of the rights asserted in his complaint. These sub- 
paragraphs refer to the specific contract of the respondent 
and incorporate by reference an attached document de­
scribed as a copy of his contract. In thus going beyond the 
fact of employment pursuant to a contract of hire as already 
revealed by the complaint and pertinent statutes, and in 
attempting to put in issue the terms of a particular con­
tract, the circumstances of its execution and any legal con­
clusions that may depend upon such terms and circum­
stances, the petitioners introduced an affirmative defense. 
Under Rule 8(c) of the Federal Rules of Civil Procedure, 
such new matter is deemed to be denied without reply. 
Indeed, no reply is permitted except by order of the Court. 
See Rule 7(a). Therefore, the new matter alleged in the 
answer was not before the court on a motion to dismiss 
and is not material at the present stage of this litigation.

In brief, the question before the Circuit Court of Appeals 
was whether the facts (1) that respondent’s status had been 
created by a contract of hire and (2) that he had been em­
ployed for a definite salary, operated as a matter of law to 
preclude this suit.

With the issue thus defined and restricted the Circuit 
Court of Appeals concluded that no waiver had been shown 
and remanded the case for trial.



9

The petition for certiorari neither comprehends the issue 
thus outlined nor suggests any reason for the review of the 
decision thereon. None of the parties will suffer any legal 
detriment from the order of the Circuit Court of Appeals 
requiring a trial of the entire cause on its merits. Questions 
of law can then be considered in the light of all material 
facts. Whatever the event of such a trial may be, the dis­
satisfied party or parties will be in position to ask that the 
issue of waiver be reviewed, along with any other matters in 
controversy, upon the complete record.

CONCLUSION

In such circumstances neither public interest nor the 
interests of the litigants will be served by the granting of 
certiorari as now prayed; but, on the other hand, orderly 
and complete disposition of this litigation can best be accom­
plished by remanding the cause for trial as ordered by the 
Circuit Court of Appeals.

Wherefore, we respectfully submit that the petition for 
certiorari should be denied.

L eon A . R ansom
1512 Girard Street, N.E. 
Washington, D. C.

T hiibgood M abshall 
Baltimore, Md.

Counsel for Respondents
W illiam  H . H astie 

Washington, D. C.
Oliveb W . H ill 

Richmond, Va.
B e n ja m in  K aplan  

New York, N. Y.
W . R obebt M ing , Jb.

Chicago, 111.
Of Counsel