Buchanan v. Evans Petition for Writ of Certiorari

    Office-Supreme Court, i l s T j  
P I L E D

A U G  6  1958

JO H N  T , F E Y , Clerk
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IN  T H E

Supreme Court of the United States
O c t o b e r  T e r m , 1958

MADELINE BUCHANAN, CLAYTON A. BUNTING, 
BYARD V. CARMEAN, et al.,

Petitioners

BRENDA EVANS, an Infant, by Charles Evans, Her Guardian ad litem; 
OKLYN BROWN, JR., an Infant, by Oklyn Brown, His Guardian ad 
litem; MARY ANN EVANS, an Infant, by Helen Evans, Her Guardian 
ad litem; et al.,

Respondents

And six consolidated cases.

Petition for a Writ of Certiorari to the United States Court of Appeals 
for the Third Circuit.

Jo se p h  D on ald  C raven ,
Attorney General of Delaware,

Wilmington, Delaware,

Fr a n k  O ’D o n n e l l , Jr .,
Chief Deputy Attorney General,

F. A lt o n  T y bo u t ,
Deputy Attorney General, 

Counsel for Petitioners.



1

INDEX
Page

Citations to Opinions Below — ...... ........-..............................  4

Jurisdiction ------- ------------------ ---------- -------------- -----------  5

Questions Presented....... ............... .............. ...... ........ ....... 5

Statutes Involved_____________ _______________ _____  5

Basis for Federal Jurisdiction..... ............ ......................— 5

Statement of the Case................................................ ....... 6

Reasons for Granting the Writ ________ ___ _________ _ 10

Conclusion  ......................... ............... ............... ...............  15

Appendix: A. Opinions Below ________________ ____ 1(a)

CITATIONS

Brown v. Board of Education of Topeka
347 U. S. 483, 74 S. Ct. 686 (1954) ...................................................

Brenda Evans, et al., v. Members of the State Board of Education, et al 
145 F. Supp. 873 (D. C. Del., 1956) ..................................................

Brenda Evans, et al. v. State Board, et al.
149 F. Supp. 376 (D. C. Del., 1957) .......................................... .......

Brenda Evans, et al. v. State Board, et al.
152 F. Supp. 886 (D. C. Del., 1957) ...................................................

Brenda Evans, et al. v. State Board, et al.
........F. 2 d ........ , Appendix, p. 15a (C. A., 3rd, 1958) .....................

Stiener v. Simmons
........Del............, 111 A. 2d 574 (1955) at 582 ...................................

STATUTES

14 Delaware Code §101, §105, §107, §108, §121, §122, §141, §301, §302, 
§305, §505, §702, §741, §742, §746, §902, §941, §944, §976, §1401,
§1410...................................................................................................................... 5

28 U. S. C. §1343, §1331. .........................................................................................  5

6

7, 10 

7, 11 

9, 13 

13 

12



3

IN THE
SUPREME COURT OF THE UNITED STATES 

NO. _______

O ctober  T e r m , 1958

MADELINE BUCHANAN, CLAYTON A. BUNTING, 
BYARD V. CARMEAN, et al,

Petitioners
v.

BRENDA EVANS, an Infant, by Charles Evans, Her 
Guardian ad litem; OKLYN BROWN, JR., an Infant, 
by Oklyn Brown, His Guardian ad litem; M ARY ANN 
EVANS, an Infant, by Helen Evans, Pier Guardian 
at litem; et al.,

And six consolidated cases.
Respondents

PETITION FOR A W R IT OF CERTIORARI TO  
THE UNITED STATES COURT OF APPEALS 

FOR THE TH IRD CIRCUIT
Petitioners pray that a writ of certiorari issue to review 

the judgment of the United States Court of Appeals for the 
Third Circuit entered in each of these cases on May 28, 
1958.

The cases below involved seven suits brought by vari­
ous Negro minor children to secure admission to schools in 
seven different school districts in Delaware. For purposes of 
brevity, only the first of these cases is listed in the caption to 
this case. The remaining cases are:

Madeline Buchanan, et al., Petitioners 
v.

Madeline Staten, et al., Respondents 
Madeline Buchanan, et al., Petitio7iers

v.



4

Julie Coverdale, et al., Respondents 
Madeline Buchanan, et al., Petitioners 

v.
Eyvonne Holloman, et al., Respondents 
Madeline Buchanan, et al., Petitioners 

v.
David Creighton, et al., Respondents 
Madeline Buchanan, et al., Petitioners 

v.
Marvin Denson, et al., Respondents 
Madeline Buchanan, et al., Petitioners 

v.
Thomas J. Oliver, Jr., et al., Respondents

The cases were consolidated both in the District Court and 
in the Court of Appeals for the Third Circuit. They were 
briefed and argued together. The decision in the Third Cir­
cuit was the decision in all cases and, at this time, the State 
Board of Education is seeking a petition for the writ of 
certiorari in all of these cases.

CITATIONS TO  OPINIONS BELOW
The first opinion of the District Court, (R .sb p. 15a- 

19a)* which was upon the motion of the present respondents
in Case No____ in this Court, printed in Appendix hereto,
page la, is reported in 145 F. Supp. 873. The second de­
cision of the District Court in the same case, printed in Ap­
pendix hereto, page 6a, is reported in 149 F. Supp. 376. The 
third opinion of the District Court, printed in Appendix 
hereto, page 10a, is reported at 152 F. Supp. 886. The 
opinion of the Court of Appeals, which is in the Record and

* Hereafter “ R.sb”  refers to that part of the record which is the appendix of the State 
Board’s brief in the Court of Appeals. “ R.pb”  refers to appendix to plaintiff’ s brief.



is printed in Appendix p. 15a, hereto, is reported in ........F.
2d ____

JURISDICTION

The judgment of the Court of Appeals was entered on 
May 28, 1958 and is a part of the record. Rehearing was 
denied on June 20, 1958. The jurisdiction of this Court is 
invoked under 28 U. S. C., Section 1254 (1).

QUESTIONS PRESENTED

1. Whether a United States Court can, in furtherance 
of certain civil rights of the respondents guaranteed by the 
United States Constitution, alter the organization of the 
administration of education in Delaware and interpret the 
education administration statutes of Delaware and increase 
or decrease the responsibility and authority of the various 
school boards contrary to the law of Delaware.

2. Whether the Court of Appeals properly determined 
the responsibility of the Delaware State Board of education 
to draw plans of desegregation of Delaware schools.

STATUTES INVOLVED

The statutes involved are those of Title 14 of the Dela­
ware Code. No one statute is in issue but all of those which 
go to the administration of Delaware schools. These statutes 
are set out at length in the Record and are specifically, Title 
14, Delaware Code, Sections 101, 105, 107, 108, 121, 122, 
141, 301, 302, 305, 505, 702, 741, 742, 746, 902, 941, 944, 
976, 1401, 1410. (R .s b , p. 32a)

BASIS FOR FEDERAL JURISDICTION

Jurisdiction in the Court originally was invoked under 
28 U. S. C. §1343 and §1331. The District Court, Wright J.,

5



6

(Appendix, p. la) considered jurisdiction under each sec­
tion and determined that, since jurisdiction existed under 28 
U. S. C. §1343, it was unnecessary to determine whether the 
jurisdiction also existed under 28 U. S. C. §1331.

STATEMENT OF THE CASE.
After the United States Supreme Court decision in 

Brown v. Board of Education of Topeka, 347 U. S. 483, 74 
S. Ct. 686 (1954), the State Board of Education of Delaware 
promptly moved to comply with that decision. Regulations 
were instituted requiring local boards to submit plans for 
desegregation to the State Board. In many school districts 
there was prompt compliance. The State Board approved 
the plans submitted, and by 1956 over one-half of the State’s 
population was living in areas with desegregated schools.

In many areas, however, the local boards failed to sub­
mit, or refused to submit, plans for desegregation. In these 
areas, when Negro students demanded admission to segre­
gated schools, the State Board was forced to answer that 
such admission could not be granted by the State Board 
alone.

On May 2, 1956, seven actions were filed in the Federal 
District Court for the District of Delaware. In each action 
Negro students who were residents of one of Delaware’s 
segregated school districts, filed suit against the members 
of the State Board of Education, the State Superintendent 
of Public Instruction, and the members of the local school 
district board for the district in which they lived. The 
prayer for relief in each case was that the various rules, 
regulations, laws, etc., by which segregation was maintained 
be declared unconstitutional and that the Court issue an 
injunction requiring the defendants to admit, on a racially 
non-discriminatory basis, the plaintiffs and others similarly



7

situated to the school within the district of the defendant 
local board.

In one of the present actions, defendant local board 
members moved to dismiss as to them. In Brenda Evans 
et al. v. Members of the State Board of Education, et al., 
145 F, Supp. 873 (D. C. D el, 1956), Judge Wright ruled 
that the local board was properly a defendant in the action, 
that the local boards are a legislative creation of the State 
of Delaware, that the rules and regulations of the State 
Board have the force and effect of law and that the State 
Board had requested of local boards that they prepare a 
plan of desegregation.

The other six local boards answered the complaints in 
an essentially similar manner; in each case alleging over­
crowding in the “ white” schools in the local district and 
alleging that all communities in Delaware south of Dover 
are substantially a single community; that they should be 
integrated as a whole and that the local boards are not 
competent to deal with the problem. In each case, the 
plaintiffs moved to strike the “ single community” defense. 
The matter was extensively briefed by the defendant local 
boards and by the plaintiffs. The Court has not ruled on 
this motion.

On January 21, 1957, the plaintiffs in one of the present 
actions filed a motion for summary judgment against all of 
the defendants. In Evans et al. v. State Board et ah, 149 
F. Supp. 376 (D. C. D el, 1957), Chief Judge Leahy made 
findings of fact that the State Board, immediately after the 
First Brown decision, made regulations calling for desegre­
gation plans from local boards and that the State Board 
made several attempts to get these plans from the local 
boards. The Court further found that the local board 
refused to act, and that, even assuming the local board only



acts in an advisory capacity, nevertheless, since the State 
Board has charged the local boards with the duty to submit 
a plan, both boards are properly before the Court. The 
Court proceeded to find that while the State Board was 
attempting to secure desegregation, the local board was 
making no prompt or reasonable start toward desegregation. 
Judge Leahy noted the State Board’s suggestion that the 
plan be submitted by the local board directly to the Court; 
however, the Court ruled that such procedure did not seem 
to be necessary at that time. The local board was ordered 
to submit a plan of desegregation to the State Board within 
30 days and the State Board to submit its plan to the Court 
within 60 days.

Defendant Local Board of Clayton School District took 
an appeal from this order. The appeal was never prose­
cuted and on July 5, 1957, the record on appeal was re­
turned to the District Court. The Clayton Board has not 
complied with the order.

On June 25, 1957, plaintiffs in all actions moved to 
consolidate the actions and moved for summary judgment 
against the State Board of Education and the State Super­
intendent of Public Instruction asking that these defend­
ants be required to submit to the Court a plan of desegrega­
tion providing for admittance of Negro students at the 
beginning of the next school term in all public school dis­
tricts of the State of Delaware which heretofore have not 
admitted Negroes under plans of desegregation approved 
by the State Board. No evidence was taken, nor were affi­
davits filed. The Plaintiffs submitted briefs arguing that the 
plaintiffs had been unable to get their rights to desegre­
gated education from the local boards and noting generally 
the refusal of the defendant local boards to cooperate with 
the State Board. The State Board filed a brief urging that



9

no reason had been shown for varying the ruling previously 
made by the Court that the local boards must submit plans 
to the State Board.

On July 15, 1957, the Court issued a Memorandum and 
Order, printed in Appendix, page 10a, reported in 152 F. 
Supp. 886, making certain findings of fact and law and 
ordering the State Board to restrain from refusing admission 
of Negro plaintiffs and all other children similarly situated 
to the public school in the named school districts, and 
further, to submit to the Court within 60 days, a plan of 
desegregation providing for the admittance for the Fall 
term of 1957, of Negro students in all public school districts 
which heretofore have not admitted Negroes under a plan 
of desegregation approved by the State Board.

The Court then ruled that to further “ obtain and 
effectuate” admittance to school in the seven named dis­
tricts and “ defendant Members of the State Board of 
Education, having general control and supervision of the 
public schools of the State of Delaware and having the duty 
to maintain a uniform, equal, and effective system of public 
schools throughout the State of Delaware,” and the State 
Superintendent are ordered to submit a plan for the “ ad­
mittance, enrollment and education on a racially non- 
discriminatory basis, for the Fall term of 1957” of all 
segregated school districts in Delaware.

The State Board of Education and the State Super­
intendent of Public Instruction took an appeal from this 
order on August 7, 1957.

The opinion from the Third Circuit, by Chief Judge 
Biggs, was delivered on May 28, 1958. Therein, it was ruled 
that the rights of the respondents are paramount, that this 
Court has ruled upon the rights of the Negro children, that



10

the State Board has the authority to adopt a plan of desegre­
gation, and that the Court would not assume that the local 
boards would not follow the plan.

The petitioners’ motion for reargument was denied on 
June 20, 1958, and the mandate was sent to the lower court 
on June 30, 1958.

REASONS FOR GRANTING THE W RIT

It seems beyond question that the local boards must be 
a party to any suit to gain admission to a school in Delaware. 
Such is the opinion of the District Court in the first of three 
opinions concerning these cases, arising on a motion by one 
of the Boards to dismiss as to it. Brenda Evans, et al., v. 
State Board, 145 F. Supp. 873. Appendix la. Judge Wright 
said:

“The local school boards are a legislative creation of 
the State of Delaware. The State Board of Education 
has determined as a matter of general policy (1) ‘that 
any steps toward integration must be embodied in a 
plan to be devised by the local board,’ and (2) ‘that 
any such plan must be submitted to the State Board for 
consideration and approval.’ Regulations of the State 
Board of Education have the force and effect of law. A 
plan of integration cannot be formulated by the defend­
ants as individuals. Any action taken by the individual 
defendants relative to the integration problems of Clay­
ton School District No. 119 is possible only because by 
virtue of State law they are the duly and legally con­
stituted Board of Trustees of the Clayton School Dis­
trict. Thus, the defendants’ alleged failure to formulate 
a plan for integration must be considered to be done 
under color of State law.” (Appendix, p. 5a)
On a motion for summary judgment against the local 

and State boards, the District Court again ruled that, under 
the Delaware law, the local board must submit a plan to the



11

State Board before the State Board would be required to 
submit a plan to the Court. Brenda Evans, et al., v. State 
Board, et al., 149 F. Supp. 376. Appendix, p. 6a. Judge 
Leahy said:

“ [ 1 ] The Local Board answers on several grounds. 
They contend they are improper parties to this action 
since they are not vested with the power to make or 
determine educational policy, but function only in ad­
visory capacity, and this power can not be delegated by 
the State Board or altered by orders originating therein. 
However, the mere fact the Local Board is required 
only to recommend educational policy does not make 
the Local Board an improper party to this action. The 
State Board having charged the Local Board with the 
duty to submit a plan for desegregation, both boards 
are now properly before the Court. (Appendix, p. 7a- 
8a)
“ Summary judgment is granted and an order should be 
submitted directing the Board of Trustees of the Clay­
ton School District No. 119 to submit a plan for the in­
tegration of the public school to the State Board of 
Education, in accordance with their existing rules and 
regulations. Such plan by the Local Board shall be sub­
mitted to the State Board within a period of 30 days. 
Within 60 days, the State Board of Education shall sub­
mit its plan to the Court for further instructions.” (Ap­
pendix, p. 9a).

The reason for these two opinions is found in the curi­
ous nature of the Delaware school system. Administrative 
and policy making is divided between the State and local 
boards.

One of the areas in which decision making and the exe­
cution of the decision is divided between local boards and 
the State Board is necessarily the area presently in issue. The 
Supreme Court of Delaware has given what must be con-



12

sidered the only authoritative statement as to the relation­
ship between the State and local boards in Delaware.

This statement was made in Stiener v. Simmons, .......
Del-------- , 111 A. 2d 574 (1955), at page 582:

“ No attempt is made by the State Board to force im­
mediate desegregation upon any local board. Joint ac­
tion is required. The somewhat loosely-knit educational 
system of the State, with administrative and policy 
making powers divided between state and local authori­
ties, and the system of elective local boards prevailing 
in Kent and Sussex Counties (and in a few districts in 
New Castle County), obviously make such joint action 
advisable— if not, indeed, necessary.”

In the Stiener case, as in the very case now before the 
Supreme Court, the question was not one of desegregation 
but rather of how desegregation was to be administered un­
der the Delaware school organization. It is this question 
which the Delaware Supreme Court concluded could only 
be answered by bringing before the Court both the State and 
the local boards. The issue was not before the Delaware 
Court precisely because only the local board had acted, and 
the Delaware Court found that the action was invalid be­
cause the local board had failed to submit its plan to the 
State Board before proceeding to attempt to integrate schools 
in Milford, Delaware. On this basis alone, the Delaware 
Court ruled improper the action of the local board and, at 
that point, proceeded to state that “ joint action” is cer­
tainly advisable and very likely “necessary.”

It cannot be emphasized too strongly by the State 
Board that the question now before the Court, the question 
before the Court of Appeals below, and the question finally 
decided by the District Court is not one of desegregation at 
all. The entire record and history of this case, from its initia-



13

tion, indicates that the State Board at no time has questioned 
the right of the Negro children to attend desegregated 
schools. Only the local boards have actually fought the prin­
ciples of desegregation. The State Board has sought only to 
secure the assistance of the Court in requiring the local 
boards to cooperate with it in securing desegregation to the 
respondents in these cases. In seeking to do so, the State 
Board has, at least at the beginning, been in agreement with 
the respondents in these cases themselves who actually 
joined the local boards and each member of the local boards 
in these actions, and also in the District Court itself which 
declines to strike the local boards from the action in the 
first opinion in the District Court (Appendix, p. la) and, 
in the second decision in the District Court, actually ordered 
the local board to proceed to supply a plan of desegregation 
to the State Board before the State Board would be required 
to submit the plan to the District Court (Appendix, p. 6a). 
The action of the District Court has the approval of the 
Court of Appeals in the District Court’s first case (Appendix, 
p. 15a) and the action of the District Court in the second 
decision is neither approved nor disapproved by the Court 
of Appeals. A reading of the third decision in the District 
Court, Brenda Evans, et al., v. State Board, et al., 152 F. 
Supp. 886, and the decision of the Court of Appeals for the 
Third Circuit, Brenda Evans, et al., v. State Board, et ah,
------ F. 2 d ......., Appendix, p. 15a, indicates that it is not an
analysis of Delaware law concerning school organization 
which impelled these courts to rest the burden solely upon 
the State Board of Education; but rather, it is a determina­
tion to get on with the job apparently regardless of whose 
responsibility it would be found to be under a precise analy­
sis of the State laws and Delaware case decisions. The third 
opinion in the District Court even while ordering the State



14

Board to proceed above, observed that it was not solely the 
responsibility of the State Board. Appendix, p. 11a.

It is submitted that it is of vital importance on a na­
tional basis that the Supreme Court should determine at this 
time whether the Federal Courts may, in order to expedite 
the administration of the constitutional rights of Negro chil­
dren, change the actual organization and hierarchy of 
responsibility in a state school system in order to secure more 
promptly those rights. It is readily agreed by the State Board 
that, if the order of the Court of Appeals and the District 
Court were carried out successfully, it would substantially 
expedite the securing of the rights in question to the Negro 
children. However, these cases do not involve a simple ques­
tion of form alone, but rather a matter of vital importance 
to the state of Delaware. The order of the Court in this case 
is the first instance to the knowledge of the State Board in 
which a State Board of Education alone has been directed 
to act as opposed to a direction running to a local board of 
education. Although the Circuit Court and the District Court 
have spoken in terms of the “ paramount authority” of the 
State Board, nevertheless, a reading of the statutes indicates 
that actually the authority which the State Board may exer­
cise over a recalcitrant local board is in fact illusory. The 
members of the local board are elected by the residents of 
the local board district and are controlled in no way by the 
members of the State Board. The local boards can in the 
future, as they have in the past, disregard, with impunity, 
instructions from the State Board. The fact that the local 
boards in question have refused or failed to submit plans of 
desegregation to the State Board even under a court order 
to do so (Appendix, p. 6a) conclusively proves this point. 
The State Board is sincerely concerned about the welfare 
of the school system of Delaware and is extremely appre-



15

hensive of the plan of relieving the members of local school 
boards of any responsibility for the implementation of de­
segregation. Sound sociological and practical considerations 
demand that the local boards be not permitted to claim com­
plete abnegation of responsibility for the plan of desegrega­
tion put into effect in their districts.

It must be noted that the third opinion of the District 
Court and the opinion of the Court of Appeals did not spe­
cifically overrule, nor declare unconstitutional, any of the 
statutes concerning the Delaware school system except that 
part requiring segregation nor any Delaware cases concern­
ing the organization of the Delaware school system. How­
ever, such failure can only be noted as an attempt to avoid 
the problem rather than to solve it. The highest court of Del­
aware, the Delaware statutes and the first two opinions of 
the District Court of Delaware correctly placed the local 
boards precisely in the cases and equally responsible with 
the State Board. It is submitted that the Supreme Court of 
the United States should settle the question at this time 
whether Federal courts, in order to expedite civil rights, may 
even tacitly, as in this case, alter the organization of a school 
system and shift responsibility from where it is placed by 
State statute and judicial determination before such Federal 
courts even attempt to use the existing administrative struc­
ture of the State system.

CONCLUSION
It cannot be emphasized too strongly that the present 

question is not one of desegregation. The State Board has 
never raised that question and does not do so now. The 
sole question is one of implementation of desegregation and 
whether the Federal courts may alter the effect of state laws



16

of school administration and responsibility. It is submitted 
that this question is of great significance at the present time 
and will be increasingly so within the coming years. This 
petition for certiorari should be granted.

Respectfully submitted,

Jo s e p h  D o n a ld  C r a v e n ,
Attorney General

F r a n k  O ’D o n n e l l , Jr .,
Chief Deputy Attorney General

F. A l t o n  T y b o u t ,
Deputy Attorney General



Opinion (November 9, 1956) la

OPINION OF JUDGE WRIGHT IN BRENDA EVANS, 
ET AL. v .  MEMBERS OF THE STATE BOARD OF 
EDUCATION, STATE SUPERINTENDENT OF PUB­
LIC INSTRUCTION, MEMBERS OF THE BOARD 
OF TRUSTEES OF CLAYTON SCHOOL DISTRICT 
NO. 119*

W righ t , District Judge.
This is a class suit brought pursuant to Rule 23(a) (3) 

of the Federal Rules of Civil Procedure, 28 U. S. C.* 1 All 
of the plaintiffs are among those classified as “ colored” , 
of Negro blood and ancestry, and are residents of Clayton, 
Delaware. The defendants are the members o f the State 
Board of Education, the Board of Trustees of Clayton 
School District No. 119 and the State Superintendent of 
Public Instruction.

The complaint alleges plaintiffs “ * * * by reason of 
their residence, except for their race, color and ancestry, 
would be acceptable by defendants for attendance at the 
public school in Clayton School District No. 119.”  2 3 The 
complaint further charges that in response to a petition 
addressed to the defendants, as members of the Board of 
Trustees of the Clayton School District No. 119, “ * * * to 
take immediate steps to reorganize the public school * * * 
on a racially nondiscriminatory basis and to eliminate racial 
segregation in said school,” 8 said defendants officially 
stated they had no plan for desegregation.4 The failure and

* Opinion handed down November 9, 1956 reported in 145 F. Supp. 873.
1. “ Rule 23. * * * (a ) Representation. If persons constituting a class are 

so numerous as to make it impracticable to bring them all before the court, such 
of them, one or more, as will fairly insure the adequate representation of all may, 
on behalf of all, sue or be sued, when the character of the right sought to be 
enforced for or against the class is

♦ * *
“ (3 )  several, and there is a common question of law or fact affecting the 

several rights and a common relief is sought.”
2. Par. 3 of the Complaint.
3. Par. 5 of the Complaint.
4. Par. 6 of the Complaint



2a Opinion (November 9, 1956)

refusal of the Board of Trustees of the Clayton School Dis­
trict to reorganize the public school of the school district 
on a racially nondiscriminatory basis was called to the at­
tention of the defendant members of the State Board of 
Education, who were requested to immediately desegregate 
the public school.5 6 On March 15, 1956 the defendant mem­
bers of the State Board of Education, by official action, 
unanimously refused to comply with, the plaintiffs ’ request 
to desegregate said public school.6

Some of the defendants, namely, the members of the 
Board of Trustees of Clayton School District No. 119, have 
moved to dismiss the complaint as to them on the grounds, 
(1) the complaint fails to state a claim against the defend­
ants upon which relief can be granted, and (2) this court 
lacks jurisdiction over the subject matter.

[1-3] The defendants urge the complaint fails to state 
a claim upon which relief can be granted because there is 
absent any allegation of the non-existence of administrative 
impediments to full faith compliance with the constitutional 
principles set forth by the Supreme Court in the two Brown 
decisions.7 Omission of this allegation is fatal, according 
to defendants, because they read the second Brown de­
cision as conditioning the right of a Negro to attend a public 
school without regard to racial considerations.

Defendants misapprehend the meaning of the two 
Brown decisions. The first Brown decision supplied an 
unqualified affirmative answer to the question of whether 
“ segregation of children in public schools solely on the 
basis of race, even though the physical facilities and other 
‘ tangible’ factors may be equal, deprive the children of a 
minority group of equal educational opportunities” .8 The

5. Par. 7 of the Complaint.
6. Par. 8 of the Complaint.
7. Brown v. Board qf Education of Topeka, 1954, 347 U. S. 483, 74 S. Ct. 

686, 98 L. Ed. 873, hereinafter referred to as the first Brown case; Brown v. 
Board of Education of Topeka, 1955, 349 U. S. 294, 75 S, Ct. 753, 99 L. Ed. 
1083, hereinafter referred to as the second Brown decision.

8. 1954, 347 U. S. 483, at page 493, 74 S. Ct. at page 691.



Opinion (November 9, 1956) 3a

Supreme Court expressed its holding in the following 
manner:

“ * * * we hold that the plaintiffs and others simi­
larly situated for whom the actions have been brought 
are, by reason of the segregation complained of, de­
prived of the equal protection of the laws guaranteed 
by the Fourteenth Amendment.”  9

In the second Brown decision, the Supreme Court referred 
to the first Brown case as a declaration of “ the funda­
mental principle that racial discrimination in public educa­
tion is unconstitutional” .10 After incorporating the opinion 
in the first Brown decision by reference into the opinion of 
the second Brown decision, the Supreme Court indicated 
the subject matter of the second opinion was to determine 
“ the manner in which the relief is to be accorded.” 11 
Therefore, the second Brown decision cannot be construed 
as conditioning the constitutional right set forth in the first 
Brown case. Rather, the second Brown decision must be 
read as establishing a standard as to what constitutes a 
good faith implementation of the governing constitutional 
principles set forth in the first Brown decision. Not only 
do the constitutional principles set forth in the first Brown 
decision remain unqualified, but, the defendants also have 
the burden of advancing reasons justifying delay in carry­
ing out the Supreme Court ruling.12 It would be illogical

9. Id., 347 U. S. at page 49S, 74 S. Ct. at page 692.
10. 1955, 349 U. S. 294, at page 298, 75 S. Ct. at page 755.
11. Ibid.
12. “* * * the [inferior] courts will require that the defendants make a 

prompt and reasonable start toward full compliance with our May 17, 1954, 
ruling. Once such a start has been made, the courts may find that additional 
time is necessary to carry out the ruling in an effective manner. The burden 
rests upon the defendants to establish that such time is necessary in the public 
interest and is consistent with good faith compliance at the earliest practicable 
date. T o that end, the courts may consider problems related to administration, 
arising from the physical condition of the school plant, the school transportation 
system, personnel, revision of school districts and attendance areas into compact 
units to achieve a system of determining admission to the public schools on a 
nonracial basis, and revision of local laws and regulations which may be neces­
sary in solving the foregoing problems.” (Emphasis added.) Brown v. Board 
of Education of Topeka, 1955, 349 U. S. 294, at pages 300-301, 75 S. Ct. 753, 
at page 756, 99 L. Ed. 1083.



4a Opinion (November 9, 1956)

to hold plaintiffs ’ complaint must set forth facts which de­
fendants will have the burden of proving,

[4, 5] The second objection of defendants goes to the 
jurisdiction of this court over the subject matter of the com­
plaint. Jurisdiction is founded upon 28 IT. S. C. §§1331 
and 1343. 28 U. S. C. § 1331 provides:

‘ ‘ § 1331. Federal question; amount in controversy
“ The district courts shall have original jurisdic­

tion of all civil actions wherein the matter in contro­
versy exceeds the sum or value of $3,000, exclusive of 
interest and costs, and arises under the Constitution, 
laws or treaties of the United States. June 25, 1948, 
c. 646, 62 Stat. 930.”

The pertinent portion of 28 U. S. 0. § 1343 provides:
‘ ‘ § 1343. Civil rights
“ The district courts shall have original jurisdic­

tion of any civil action authorized by law to be com­
menced by any person:

* # *
‘ '(3 ) To redress the deprivation, under color of 

any State law, statute, ordinance, regulation, custom 
or usage, of any right, privilege or immunity secured 
by the Constitution of the United States or by any Act 
of Congress providing for equal rights of citizens or 
of all persons within the jurisdiction of the United 
States. June 25, 1948, c. 646, 62 Stat. 932.”

The jurisdiction of this court, invoked under the civil 
rights jurisdictional statute, 28 U. S. C. § 1343, is questioned 
by the defendants on the theory that when the Board of 
Trustees of Clayton School District No. 119 officially stated 
they had no plan for desegregation they were not acting 
“ under color of any State law” . This conclusion is un­
sound and can only be reached by traveling a tortuous path 
of conceptualistie reasoning.



Opinion (November 9, 1956) 5a

The local school boards are a legislative creation of 
the State of Delaware.13 The State Board of Education 
has determined as a matter of general policy (1) “ that any 
steps toward integration must be embodied in a plan to be 
devised by the local board” , and (2), “ that any such plan 
must be submitted to the State Board for consideration and 
approval” .14 15 Regulations of the State Board of Education 
have the force and effect of law.16 A plan of integration 
cannot be formulated by the defendants as individuals. 
Any action taken by the individual defendants relative to 
the integration problems of Clayton School District No. 119 
is possible only because by virtue of State law they are 
the duly and legally constituted Board of Trustees of the 
Clayton School District. Thus the defendants ’ alleged fail­
ure to formulate a plan for integration must be considered 
to be done under color of State law.1*

Since the court has jurisdiction under 28 U. S. C. § 1343, 
it is unnecessary to determine whether the court would have 
jurisdiction under 28 U. S. C. § 1331. Accordingly, that 
question is left undecided. The defendants’ motion to dis­
miss is denied.

An order in accordance herewith may be submitted.

13. 14 Del. C.
14. Steiner v. Simmons, Del. 19SS, 111 A. 2d 574, at page 582.
15. Id., I l l  A. 2d at page 583.
16. Cf. E x parte Commonwealth of Virginia, 1879, 100 U. S. 339, at page 

347, 25 L. Ed. 676: “Whoever, by virtue of public position under a State gov­
ernment, deprives another of property, life, or liberty, without due process of 
law, or denies or takes away the equal protection of the laws, violates the 
constitutional inhibition; and as he acts in the name and for the State, and is 
clothed with the State’s power, his act is that of the State.”

In lowa-Des Moines National Bank v. Bennett, 1931, 284 U. S. 239, at 
page 246, 52 S. Ct. 133, at page 136, 76 L. Ed. 265, it was said: “ When a state 
official, acting under color of state authority, invades, in the course of his duties, 
a private right secured by the Federal Constitution, that right is violated, even 
if the state officer not only exceeded his authority but disregarded special 
commands of the state law.”

Finally, it has been stated, “ Misuse of power, possessed by virtue of state 
law and made possible only because the wrongdoer is clothed with the authority 
of state law, is action taken ‘under color of’ state law.”  United States v. 
Classic, 1941, 313 U. S. 299, at page 326, 61 S. Ct. 1031, at page 1043, 85 
L. Ed. 1368.



6a Opinion (March 6, 1957)

OPINION OF JUDGE LEAHY IN BRENDA EVANS ET 
AL., PLAINTIFFS, v. MEMBERS OF THE STATE 
BOARD OF EDUCATION, STATE SUPERINTEND­
ENT OF PUBLIC INSTRUCTION, MEMBERS OF 
THE BOARD OF TRUSTEES OF CLAYTON 
SCHOOL DISTRICT NO. 119, DEFENDANTS.

Civ. A. No. 1816.

March 6, 1957.

L e a h y , Chief Judge.
This cause arises on plaintiffs’ motion for summary 

judgment. A motion to dismiss was denied in D. C. Del., 
145 F. Supp. 873. The material facts essential to this mo­
tion present no genuine issue. Plaintiffs are of Negro 
ancestry, citizens of the United States and of the State of 
Delaware, residing in the community known as Clayton, in 
Kent County.1 Plaintiffs have not been accepted in the 
public school under the jurisdiction of Clayton School Dis­
trict No. 119,2 3 nor has the school district heretofore taken 
as students persons of Negro ancestry.8 After the first 
Brown decision by the Supreme Court on May 17, 1954,4 * the 
State Board of Education adopted on June 11, 1954, certain 
regulations calling on the local districts for proposed plans 
for desegregation to be submitted for review. On August 
19, 1954, and again on August 26, the State Board requested 
all schools should present a tentative plan for desegregation 
on or before October 1, 1954. On May 31, 1955, the Supreme

1. Complaint, par. 3 and Affidavits; Answer, Members of State Board of 
Education hereinafter referred to as State Board and State Superintendent of 
Public Instruction hereinafter referred to as State Superintendent, par. 3.

2. Complaint, par. 3 ; Answer, State Board and State Superintendent, 
par. 3.

3. Complaint, par. 6 ; Answer, State Board and State Superintendent, 
par. 6.

4. Brown v. Board of Education of Topeka, 347 U. S. 483, 74 S. Ct. 686,
98 L. Ed. 873.



Opinion (March 6, 1957) 7a

Court came down with its second Brotmv decision.5 On 
August 10, 1955, members of the Board of Trustees of 
Clayton School District No. 119 were petitioned to take 
immediate steps to eliminate racial segregation in its pub­
lic school.6 By letter of February 10, 1956, the State Board 
was apprised of the failure of the Clayton School to de­
segregate and was requested to do so.7 The State Board, 
by letter of March 16, 1956, made known it could not comply 
with immediate desegregation absent joint action initiated 
by the Local Board.8 9 The members of the Local Board 
“ admit that they have as yet arrived at no plan for de­
segregation of the Clayton School and that there is pro­
posed no reorganization thereof.” 3

Plaintiffs ’ prayer for relief is in the alternative: 1. That 
this Court issue interlocutory and permanent injunctions 
ordering defendants to admit infant plaintiffs and all others 
similarly situated to the public school in Clayton School 
District No. 119 on a racially nondiscriminatory basis, or
2. That the Local Board be required to submit to the State 
Board of Education a plan for integration of that sehool 
providing for admittance not later than the school term be- 
gining in September, 1957.

[1] The Local Board answers on several grounds. 
They contend they are improper parties to this action since 
they are not vested with the power to make or determine 
educational policy, but function only in advisory capacity, 
and this power can not be delegated by the State Board or 
altered by orders originating therein. However, the mere 
fact the Local Board is required only to recommend educa­
tional policy does not make the Local Board an improper

5. Brown v. Board of Education of Topeka, 349 U, S. 294, 75 S. Ct. 753, 
99 L. Ed. 1083.

6. Complaint, par. 5 ; Answer, Board of Trustees of Clayton School District 
No. 119 hereinafter referred to as Local Board, par. 5.

7. Complaint, par. 7 ; Answer, State Board and State Superintendent, 
par. 7.

8. Complaint, par. 8 ; Answer, State Board and State Superintendent, 
par. 8.

9. Complaint, par. 6 ; Answer, Local Board, par. 6.



8a Opinion (March 6, 1957)

party to this action. The State Board having charged the 
Local Board with the duty to submit a plan for desegrega­
tion, both boards are now properly before the Court.

[2] Defendant Local Board alleges “ that at no time 
has a person of negro blood or ancestry been denied admis­
sion to the Clayton School.”  After the refusal of the Local 
Board to grant the petition of plaintiffs requesting desegre­
gation, it would be hollow formality to require them literally 
to knock on the schoolhouse door.10

[3] The remainder of defendant Local Board’s con­
tentions relate to the propriety of granting relief at this 
time. The Local Board alleges if the relief requested by 
plaintiffs is granted now, “ it will constitute a violation of 
the mandate of the Supreme Court of the United States, 
requiring the elapse of a reasonable time for the transition 
of segregated schools to non-segregated schools.”  It is fur­
ther alleged the load of administrative work involved, the 
lack of facilities or transportation, and the inadequacy of 
personnel and school space prevents the Clayton School 
from being presently operated on a non-segregated basis. 
Finally, it is alleged the sudden change which would occur 
in the present social make-up of the Clayton School Dis­
trict would do great damage to eventual integration. But 
matters of defense dealing with administrative problems 
are, at this time, prematurely raised by the Local Board.11 
The issue here is whether or not “ a prompt and reasonable 
start toward full compliance”  has been made. Despite the 
fact that on May 17, on August 19, and on August 26, 1954,

10. See the opinion of Chief Judge Parker in Charlottesville School Board 
v. Allen, 4 Cir., 240 F. 2d 59.

11. In the second Brozvn decision laying the blueprint for integration, the 
Supreme Court indicated the procedure to be followed: “ * * * the [inferior] 
courts will require that the defendants make a prompt and reasonable start 
toward full compliance with our May 17, 1954, ruling. Once such a start has 
been made, the courts may find that additional time is necessary to carry out 
the ruling in an effective manner. The burden rests upon the defendants to 
establish that such time, is necessary in the public interest and is consistent with 
good faith compliance at the earliest practicable date.” (Emphasis mine.) 
Brown v. Board of Education, 349 U. S. 294, 300-301, 75 S. Ct. 753, 756.



Opinion (March 6, 1957) 9a

the State Board requested local boards to present plans 
on or before October 1 of that year for the integration 
of the public schools, no plan of any kind has been forth­
coming by the Clayton School Board. And, although ex­
pressions of community dissent may stay racial desegre­
gation for a reasonable time in order to meet local problems 
through good faith implementation, they can never become 
an instrument to color interminably the governing con­
stitutional principles as declared by the Supreme Court. 
Here, there has been no prompt and reasonable start.

[4] The State Board of Education argues that if the 
Clayton Board of Trustees is required to present a plan 
for integration, it should be filed with this Court directly 
and not with the State Board. It argues the prime re­
sponsibility for formulating a plan belongs to the Local 
Board, that since the rules of the State Board contemplate 
voluntary submission of these plans, the effect of the pres­
ent litigation is to hold the Local Board answerable to this 
Court; and that otherwise the State Board would be placed 
in a difficult and unsatisfactory position resulting in harm 
both to it and the entire school system. The State Board 
would thus be content to submit its views to this Court 
when requested to do so. However, while the Board may 
require the local boards to cope with local problems in the 
first instance, it should not remove itself directly from the 
scene because a litigant has sought the judicial arm to se­
cure his rights. At this point in time, I see no reason for 
not following the usual practice set out by the State Board 
itself in its published rules and regulations.

Summary judgment is granted and an order should be 
submitted directing the Board of Trustees of the Clayton 
School District No. 119 to submit a plan for the integration 
of the public school to the State Board of Education, in 
accordance with their existing rules and regulations. Such 
plan by the Local Board shall be submitted to the State 
Board within a period of 30 days. Within 60 days, the 
State Board of Education shall submit its plan to the Court 
for further instructions.



10a Memorandum and Order

MEMORANDUM AND ORDER.
(Entered July 15, 1957.)

(In All Appeals.)

1. Among the several motions before the Court are 
plaintiffs’ motion for consolidation of C. A. Nos. 1816 
through 1822, inclusive under FR 42(a), and plaintiffs’ 
motion for summary judgment against the Members of 
the State Board of Education and the State Superintendent 
of Public Instruction under FR 56(a).

2. This Court disposed of a previous motion of plain­
tiffs for summary judgment with respect to C. A. No. 1816/ 
as to which an appeal was taken to the Court of Appeals 
for this Circuit but not legally prosecuted by the Local 
Board, in accordance with law and the Rules of said Court 
of Appeals. The time for filing a plan as to this particular 
school district, as provided for in the order entered by 
the Delaware District Court was continued, pending the 
appeal, until further order of this Court. The present 
order will be operative as to this Local Board for its failure 
to perfect its appeal.

3. Answers of defendant State Board and State Super­
intendent in all the Civil Actions pending are, in substance, 
similar. I find as to plaintiffs and other Negro children 
similarly situated, these answers acknowledge the existence 
of racial segregation in the public schools of Delaware; 1 2 
and this is a deprivation of rights guaranteed under the

1. See Evans, et al. v. Members of the State Board of Education, et at, 
D. C. Del., 149 F. Supp. 376.

2. C. A. No. 1816: Complaint, pars. 3, 6, 7, 8 ; Answer, pars. 3, 6, 7, 8.
C. A. No. 1817: Complaint, pars. 8, 9, 10 ; Answer, pars. 8, 9, 10.
C. A. No. 1818: Complaint, pars. 3, 7, 8 ; Answer, pars. 3, 7, 8.
C. A. No. 1819: Complaint, pars. 3, 6, 7, 8 ; Answer, pars. 3, 6, 7, 8.
C. A. No. 1820: Complaint, pars. 3, 7, 8 ; Answer, pars. 3, 7, 8,
C. A. No. 1821: Complaint, pars. 3, 7, 8 ; Answer, pars. 3, 7, 8.
C. A. No. 1822: Complaint, pars. 3, 7, 8 ; Answer, pars. 3, 7, 8.



Memorandum and Order 11a

Federal Constitution and so declared inviolate by the 
Supreme Court.8

4. The State Board of Education adopted in the sum­
mer of 1954 regulations requiring the local school Boards 
to submit to the State Board plans for racial desegregation 
in the public schools. These regulations, especially as 
they affected the local Boards, had binding force through­
out the State of Delaware.3 4 This initiated a policy then 
regarded feasible. But, it is also manifest the local Boards, 
in Kent and Sussex Counties, in general, have not begun 
to comply with these regulations. The regulations of the 
State Board cannot be permitted to be wielded as an ad­
ministrative weapon to produce interminable delay. In 
the interplay of forces resulting in continuing violation of 
plaintiffs’ constitutional rights, these rights of Negro chil­
dren must retain their vitality. They are, indeed, para­
mount.5 The State Board, though not solely responsible 
for a solution of administrative procedures in this socio­
logical-legal problem, must, in the final analysis, be held 
answerable.

5. The State Board of Education, from its past per­
formance, blandly asserts it must await initial local action

3. Brown, et al. v. Board of Education of Topeka, et al., 347 U. S. 483, 
349 U. S. 294.

4. 14 Del. Cde § 122; Steiner, et al. v. Simmons, et at, Del., I l l  A . 2d 274, 
580, 583 (per C. J. Southerland).

5. See Belton, et al. v. Gebhart, et al. and Bulah, et al. v. Gebhart, et al„ 
32 Del. Ch. 343, 87 A. 2d 862, aff’d in Del. Ch. 144, 91 A. 2d 137, cert, granted 
in 344 U. S. 891, Misc. Order in 345 U. S. 972, aff’d in 347 U. S. 483, Misc. 
Order in 348 U. S. 886, and aff’d and remanded in 349 U. S. 294.

A t 87 A . 2d 864-865:
“ Defendants say that the evidence shows that the State may not be 

‘ready’ for non-segregated education, and that a social problem cannot be 
solved with legal force. Assuming the validity of the contention without 
for a minute conceding the sweeping factual assumption, nevertheless, the 
contention does not answer the fact that the Negro’s mental health and 
therefore, his educational opportunities are adversely affected by State- 
imposed segregation in education. The application of Constitutional prin­
ciples is often distasteful to some citizens, but this is one reason for Con­
stitutional guarantees. The principles override transitory passions.”



12a Memorandum and Order

because the State Board “ is not and can not be as con­
versant with local school problems as the local school 
Boards.”  The factual data contained in its Reports to 
the Governor of the State of Delaware refutes this. This 
Court readily understands the State Board, as to the prob­
lem of integration, is not as conversant with local problems 
as the local Boards, but the Court is in disagreement 
whether the State Board cannot be, or, when measured 
by its record of inaction in failing to negotiate a prompt 
and reasonable start toward full compliance, it has tried 
to be.

6. Clearly, it is best, in the abstract, to permit local 
conditions to be handled in the first instance by Local 
Boards for integration, as commanded by the Supreme 
Court of the United States. But, it is also recognized 
joint and not independent action is called for by all parties 
concerned. The first mandate of the Supreme Court fixed 
the law on this problem over three years ago, the second 
mandate, over two years ago. Since that time no appre­
ciable steps have been taken® in the State of Delaware to 
effect full compliance with the law.

In conclusion, it is recognized, under the law as fixed 
by the Supreme Court of the United States, the right of 
plaintiffs to public education unmarred by racial segrega­
tion is immutable; that each state faces problems indig­
enous to its own circumstances; that circumstances in 
Delaware require racial desegregation to become a reality 
simultaneously throughout all communities; that the State 
Board exercises general control and supervision over all 
public schools in Delaware, including the Local Boards, and 6

6. The Delaware State Legislature has, by statute, provided the State 
Board of Education with broad powers of general control and supervision, 
including consultation with local Boards, Superintendents, and other officers, 
teachers and interested citizens, determination of educational policies, appoint­
ment of administrative assistants to administer its policies, requiring reports 
from Local Boards, the decision of all controversies involving administration 
of the school system, and the conducting of investigations relating to educational 
needs and conditions. 14 Del. Code § 121,



Memorandum and Order 13a

has knowledge of the status of racial desegregation in those 
schools; that the State Board’s admissions of continued 
racial segregation in the public schools washes away all 
dispute as to this issue, as raised by the Local Boards; and, 
that any order by this Court directed to the State Board 
is, a fortiori, directed to any Local Board over which it, in 
turn, has authority.

It is hereby
Ordered and D ecreed by T his C ourt :

1. The motion of plaintiffs to consolidate the following 
causes, C. A. 1816 through C. A. 1822, inclusive, be and the 
same is hereby granted and all pending causes in this Court 
are hereby consolidated for judicial decision.

2. The plaintiffs’ motions for summary judgment in 
C. A. 1816 through C. A. 1822, inclusive, as against the 
Members of the State Board of Education and the State 
Superintendent of Public Instruction be and the same are 
hereby granted.

3. The minor plaintiffs in the respective cases and all 
other Negro children similarly situated are entitled to ad­
mittance, enrollment and education, on a racially non- 
discriminatory basis, in the public schools of Clayton 
School District No. 119, Milford Special School District, 
Greenwood School District No. 91, Milton School District 
No. 8, Laurel Special School District, Seaford Special 
School District and John M. Clayton School District No. 97, 
respectively, no later than the beginning of or sometime 
early in the Fall Term of 1957.

4. In accordance therewith defendants are permanently 
enjoined and restrained from refusing admission, on ac­
count of race, color or ancestry, of respective minor Negro 
plaintiffs and all other children similarly situated to the 
public schools maintained in the respective above-men­
tioned school districts.



14a Memorandum and Order

5. To further obtain and effectuate admittance, enroll­
ment and education of said minor plaintiffs and all other 
children similarly situated to the public schools maintained 
in the respective above-mentioned school districts, on a 
racially nondiscriminatory basis, defendant Members of 
the State Board of Education, having general control and 
supervision of the public schools of the State of Delaware 
and having the duty to maintain a uniform, equal and 
effective system of public schools throughout the State of 
Delaware, and defendant George R. Miller, Jr., State 
Superintendent of Public Instruction, shall submit to this 
Court within 60 days from the date of this order a plan 
of desegregation providing for the admittance, enrollment 
and education on a racially nondiscriminatory basis, for 
the Fall Term of 1957, of pupils in all public school dis­
tricts of the State of Delaware which heretofore have not 
admitted pupils under a plan of desegregation approved by 
the State Board of Education.

6. 15 days prior to the submission of said plan to this 
Court, defendant Members of the State Board of Educa­
tion, etc., shall send in writing by registered mail a copy of 
the plan of desegregation herein ordered to be submitted to 
this Court, together with a copy of this Order, to each 
member of the school board in all public school districts 
of the State of Delaware which heretofore have not ad­
mitted pupils under a plan of desegregation.

(s )  P aul  L eah y ,
Chief Judge.

At Wilmington,
July 15, 1957.



15a

OPINION OF CHIEF JUDGE BIGGS IN THE UNITED 
STATES COURT OF APPEALS FOR THE THIRD 
CIRCUIT IN BRENDA EVANS, ET AL. V. MEM­
BERS OF THE STATE BOARD OF EDUCATION, 
STATE SUPERINTENDENT, THE LOCAL BOARD 
OF CLAYTON SCHOOL DISTRICT, ET AL.

Civ. Actions Nos. 12,375— 12,381 
(Filed May 28, 1958)

By Biggs , Chief Judge.
The appeals at bar arise out of seven cases in the court 

below relating to the same subject matter and may be dis­
posed of appropriately in one opinion. The jurisdiction of



16a

the court below was invoked under Section 1331, federal 
question and jurisdictional amount, under Section 1343, 
Civil Rights, Title 28, U.S.C. and under Section 1983, Title 
42, U.S.C., and under the Fourteenth Amendment to the 
Constitution of the United States. No issue as to jurisdic­
tion is presented.

The histories of these litigations are set out in some 
detail in the opinions of the court below, referred to from 
time to time hereinafter, and need not be repeated here.1 
It is sufficient to state that following the decisions of the 
Supreme Court of the United States in Brown v. Board 
of Education and Topeka, 347 U.S. 483 (1954) and 349 U.S. 
294 (1955), the Delaware State Board of Education re­
quested the local school district boards to submit plans for 
the admission and education of Negro children into the pub­
lic schools of the respective school districts on a racially 
non-discriminatory basis. There was prompt compliance by 
many school districts in Delaware but the local school dis­
trict boards in Kent and Sussex Counties in general did not 
comply with the directions of the State Board of Education. 
Thereafter the minor plaintiffs, children residing within 
seven school districts, by guardians ad litem, brought the 
seven suits in the court below to compel compliance with the 
rulings of the Supreme Court of the United States in the 
Brown case.

All of the complaints allege that the minor plaintiffs 
are children resident within their respective school board 
districts and are entitled immediately to admission to the 
schools of their districts and would be accepted as students 
therein except for their race, color and ancestry. The seven 
suits are class actions brought on behalf of all children 
similarly situated to the minor plaintiffs, pursuant to Rule 
23(a)(3) Fed. R. Civ. Proc., 28 U.S.C.2

1 See also the opinion of the Supreme Court of Delaware in Steiner v. 
Simmons, —  Del. —, i l l  A . 2d 574 (1955).

2 “ Rule 2 3 .  . . (a ) Representation. If persons constituting a class are 
so numerous as to make it impracticable to bring them all before the court, 
such of )hem, one or more, as will fairly insure the adequate representation of



17a

The defendants are members of the State Board of 
Education, the State Superintendent of Public Instruction 
and members of local school boards. The relief sought 
by the complaints was that the court below grant inter­
locutory and permanent injunctions declaring that the 
administrative orders, regulations and rules, practices or 
usages, pursuant to which the minor plaintiffs are segre­
gated with respect to their schooling because of race, color 
or ancestry, violate the Fourteenth Amendment to the Con­
stitution of the United States, and that the court below 
issue interlocutory and permanent injunctions requiring the 
defendants to admit the minor plaintiffs and all other 
children similarly situated to the public schools of their 
respective school districts on a racially non-discriminatory 
basis.

The appellants, who are members of the State Board 
of Education and the State Superintendent of Public In­
struction, tiled joint answers in all seven cases asserting 
that the power to effect desegregation lies not in them 
but in the local school boards. The members of the boards of 
education of the school districts also filed joint answers. 
These answers are substantially the same and, briefly put, 
assert that the local boards do not possess the power or 
jurisdiction under the school laws of Delaware, or the avail­
able facilities, to effect the admission of the minor plaintiffs 
or other children similarly situated to the respective schools 
on a racially non-discriminatory basis.

The members of the Board of Trustees of Clayton 
School District No. 119, at C.A. No. 1816 in the court below, 
No. 12,375 in this court, answered also that they were 
“ improper parties”  to the action. The court below cor­
rectly held this contention invalid. 149 F. Supp. 376 
(D.C.Del. 1957). ____________________________________
all may, on behalf of all, sue or be sued, when the character of the right sought 
to be enforced for or against the class is

“ (3 ) several, and there is a common question of law or fact affecting the 
several rights and a common relief is sought.”

In respect to the right of the plaintiffs to maintain a class action, see I4S 
F. Supp. 873 (D.C.Del. 1956).



18a

On January 21, 1957 the plaintiffs in the case involving 
the Clayton School District mentioned immediately above 
filed a motion for summary judgment pursuant to Rule 
56(a), Fed. R. Civ. Proc., 28 U.S.C.3 After argument, the 
court below on March 6, 1957, filed an opinion, 149 F. Supp. 
376, holding that the members of the Board of Trustees of 
Clayton School District No. 119 were making no reasonable 
start toward the admissions of the minor plaintiffs and those 
similarly situated on a racially non-discriminatory basis. 
Following this opinion, on April 1, 1957, the court entered a 
decree enjoining members of the Board of Trustees of the 
Clayton School District ‘ ‘ in accordance with further order ’ ’ 
from refusing admission to children on account of race, 
color or ancestry and requiring the members of the Board 
of Trustees of the Clayton School District to submit to the 
State Board of Education, within 30 days, a plan for the 
admittance to, and the enrollment and education in the 
public school maintained by the Board of the minor plain­
tiffs and all other children on a racially non-discriminatory 
basis, and also requiring the members of the State Board of 
Education within 60 days to file a plan so providing with 
the court below.

An appeal from this decree was taken to this court but 
was not prosecuted and accordingly the record was returned 
to the court below. The decree of April 1, 1957 is presently 
outstanding. No other similar decree addressed to members 
of the local school boards was entered in the other six cases 
but it is in this respect only that the case involving Clayton 
School District No. 119 differs in substance from the other 
six cases involving the other local school boards. However, 
in view of the fact that the operation of the decree in the 
Clayton case was made contingent on a further order of the

3 Rule 56(a) is as follow s: “ For Claimant. A  party seeking to recover 
upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment 
may, at any time after the expiration of 20 days from the commencement of 
the action or after service of a motion for summary judgment by the adverse 
party, move with or without supporting affidavits for a summary judgment in 
his favor upon all or any part thereof.”



19a

court below we are justified in treating and will treat this 
case as in pari passu with the other six cases.

On June 21, 1957, the plaintiffs in six of the seven 
cases, the case at No. 1816 in the court below involving 
Clayton School District No. 119 being excluded, moved for 
summary judgment against the members of the State Board 
of Education and the State Superintendent of Public In­
struction. It should be noted that the defendants who are 
members of the local school boards were not included in 
these motions. On June 25, 1957, the plaintiffs in the six 
cases last referred to, the case at No. 1816 in the court below 
being excluded, moved to consolidate the six eases.

On July 25, 1957, the court below handed down an 
opinion, 152 F. Supp. 886, granting the motion to consoli­
date the six cases and the motions for summary judgment 
against the members of the State Board of Education and 
the State Superintendent of Public Instruction. The court 
below went further, however, and, apparently sua sponte, 
since no applicable like motions had been filed for summary 
judgment and for consolidation in respect to the suit at No. 
1816 in the court below involving the Clayton School Dis­
trict No. 119, also granted summary judgment in that case 
against the members of the State Board of Education and 
the State Superintendent of Public Instruction and con­
solidated that case with the other six actions. The decree 
of the court below was an appropriate and proper one, and 
furnishes us with an additional reason for treating the 
appeal involving the Clayton School District No. 119 on a 
parity with the other six cases. The decree entered in all 
seven cases by the court below requires that the minor 
plaintiffs in all seven cases and children similarly situated 
should be admitted to their respective school districts on a 
racially non-discriminatory basis by the Autumn term 1957 
and enjoins the designated defendants from refusing admis­
sion to these children. It also directs the State Board of 
Education and the Superintendent of Public Instruction to 
submit a plan to the court for the admittance, enrollment



20a

and education of the children on a racially non-discrimina- 
tory basis within 60 days and to serve copies of the plan 
upon the members of the local school boards involved within 
45 days.4 The appeals at bar, taken by the members of the 
State Board of Education and the Superintendent of Public 
Instruction, followed.

The State Superintendent of Public Instruction and 
the members of the State Board of Education assert that 
the exercise of two powers are essential for planning and

4 The order of the court is as follow s:
“ 1. The motion of plaintiffs to consolidate the following causes, C. A. 

1816 through C. A. 1822, inclusive, be and the same is hereby granted and 
all pending causes in this Court are hereby consolidated for judicial decision.

“2. The plaintiffs’ motions for summary judgment in C. A. 1816 through 
C. A. 1822, inclusive, as against the Members of the State Board of Educa­
tion and the State Superintendent of Public Instruction be and the same 
are hereby granted.

“3. The minor plaintiffs in the respective cases and all other Negro 
children similarly situated are entitled to admittance, enrollment and educa­
tion, on a racially nondiscriminatory basis, in the public schools of Clayton 
School District No. 119, Milford Special School District, Greenwood 
School District No. 91, Milton School District No. 8, Laurel Special 
School District, Seaford Special School District and John M. Clayton 
School District No. 97, respectively, no later than the beginning of or 
sometime early in the Fall Term of 1957.

“4. In accordance therewith defendants are permanently enjoined and 
restrained from refusing admission, on account of race, color or ancestry, 
o f respective minor Negro plaintiffs and all other children similarly 
situated to the public schools maintained in the respective above-mentioned 
school districts.

_ “ 5. T o further obtain and effectuate admittance, enrollment and edu­
cation of said minor plaintiffs and all other children similarly situated to 
tlie public schools maintained in the respective above-mentioned school 
districts, on a racially nondiscriminatory basis, defendant Members of the 
State Board of Education, having general control and supervision of the 
public schools of the State of Delaware and having the duty to maintain a 
uniform, equal and effective system of public schools throughout the State 
of Delaware, and defendant George R. Miller, Jr., State Superintendent 
of Public Instruction, shall submit to this Court within 60 days from the 
date of this order a plan of desegregation providing for the admittance, 
enrollment and education on a racially nondiscriminatory basis, for the 
Fall Term of 1957, of pupils in all public school districts of the State of 
Delaware which heretofore have not admitted pupils under a plan of 
desegregation approved by the State Board of Education.

“6. 15 days prior to the submission of said plan to this Court, defendant 
Members of the State Board of Education, etc., shall send in writing by 
registered mail a copy of the plan of desegregation herein ordered to be 
submitted to this Court, together with a copy of this Order, to each member 
of the school board in all public school districts of the State of Delaware 
which heretofore have not admitted pupils under a plan of desegregation.”



21a

effecting desegregation. They argue that to admit the 
children involved to the respective public schools involved, 
authority must be exercised to admit individual students to 
one school rather than to another and that to educate stu­
dents it is necessary to possess the authority to employ and 
assign teachers and principals to the various schools. They 
assert also that the powers necessary to effect these results 
are vested by the pertinent Delaware statutes solely in the 
local district school boards. They point to the provisions 
of 14 Del. C., Sections 741, 944, 976, 1401 and 1410, which 
variously provide for the employment of teachers and prin­
cipals of schools, for the fixing of their salaries and for the 
termination of their employment.

The appellants point also to 14 Del. C., Sections 902 
and 941, providing for the establishment of Boards of 
Education in the local school districts 8 and specifying the 
duties of these boards, included among which is the deter­
mining of policies in relation to the maintaining of separate 
schools for white and colored children, and the settling of 
disputes and for properly administering the public schools 
of the districts. The appellants also assert that they are 
without the authority to impose a plan for desegregation on 
the boards of education of the respective school districts 
because the members of these boards in Kent and Sussex 
Counties are elected by the voters of the school districts, 14 
Del. C., Section 305, and that therefore they are without 
authority to appoint or remove these elected representatives 
or to control their actions in any way. In short, the appel­
lants contend that they are without power effectively to 
carry out the court’s decree.

Some of the local or district school boards, employing 
those of Milford, Seaford, Laurel and Greenwood as ex­
amples, contend primarily that the State Board of Educa­
tion possesses the power to determine the operation of the 
public schools and that the State Board has the authority to

5 It should be noted that Section 301, 14 Del. C., defines a “district” as 
meaning a “ School District or a Special School District or both.”



22a

adopt rules and regulations for the administration of the 
public school system of Delaware and that these shall be 
binding throughout the State. 14 Del. C., Section 122. 
They assert also that the school laws of Delaware put the 
burden on the Board of Education and the State Superin­
tendent of Public Instruction to maintain a “ uniform, equal 
and effective”  educational system in Delaware. 14 Del. C,, 
Section 141. The plaintiffs make similar contentions but 
they also assert that the Supreme Court of Delaware in 
Steiner v. Simmons, — Del. —, 111 A. 2d 547 (1955), held 
that the State Board of Education has the power to regulate 
the public schools of Delaware, relying inter alia on 14 
Del. C., Sections 101(a), 121 and 122. These statutory 
provisions place certain supervisory powers over the whole 
of the Delaware School system in the State Board of Educa­
tion. While the parties to these suits make other and 
further contentions these need not be discussed in this 
opinion. It should be noted, however, that we have con­
sidered them.

In determining the issues presented it is necessary to 
start with the guiding principles enunciated by the Supreme 
Court in its opinions in United States v. Board of Educa­
tion of Topeka, supra. First, the Supreme Court has ruled 
that the Fourteenth Amendment to the Constitution of the 
United States prohibits the segregation of children in 
public schools solely on the basis of race. Second, the 
Court has prohibited admission to the public schools on a 
basis of racial discrimination. Third, the Court has re­
quired United States District Courts to enter such decrees 
as are necessary and proper to admit children to public 
schools on a racially non-discriminatory basis “ with all 
deliberate speed.”

Among the statutory duties entrusted to the State 
Board of Education by the General Assembly of Delaware 
is that of maintaining a “ uniform, equal and effective sys­
tem of public schools throughout the State . . . ” , 14 
Del. C., Section 141. "While this section of the Delaware



23a

Code also requires the State Board of Education, pursuant 
to Article 10, Section 2, of the Constitution of Delaware, to 
maintain separate systems for white and Negro children, 
these provisions fall in view of the decisions of the Supreme 
Court of the United States referred to for these decisions 
redefined the concept of equality in public education. But 
while the separate but equal provisions of the Delaware 
Constitution and laws have been stricken down, the statu­
tory mandate to the State Board of Education continues to 
exist and requires that body to maintain a uniform, equal 
and effective public school system in the State of Delaware. 
To hold otherwise would be nullification.

The contention of the members of the State Board of 
Education that the mandates of that body have no force 
upon the local school boards and the persons who comprise 
them is erroneous. The time when the Delaware educa­
tional system was encompassed by a loose federation of 
“ 425 educational republics”  has long since passed. 2 Reed, 
History of Delaware, 691. The centralized nature of the 
present Delaware public educational system and the powers 
and duties of the State Board of Education are demon­
strated fully by statutes of Delaware dealing with educa­
tion.6 * * * * * * * 14 This contention of the members of the State Board 
of Education is really one to the effect that the individuals

6 A s follows: 14 Del. C., § 101(a). The State is vested with the “general
administration and supervision of the free public schools and of the educational
interests of the State.”

14 Del. C. § 121. “ The Board shall exercise general control and super­
vision over the public schools of the State, . . . ”

14 Del. C. §12 1 (2 ). The State Board has the power to determine the
educational policies of the State.

14 Del. C. §121 (7 ). The State Board shall decide “all controversies and 
disputes involving the administration of the public school system.”

14 Del. C. §121(10 ). The State Board shall have the duty of “ causing 
. . . the provisions of this title to be carried into effect, so as to provide a 
uniform, equal and effective system of public schools throughout the State;

14 Del. C. 141(a). “The Board shall maintain a uniform, equal and 
effective system of public schools throughout the State, and shall cause the 
provisions of this title, the by-laws and regulations and the policies of the Board 
to be carried into effect.”



24a

comprising the local school boards will not obey the law. We 
will not make such an assumption.

We point out again that 14 Del. C., Section 122, gives 
the State Board of Education the power to “ adopt rules 
and regulations for the administration of the free public 
school system which, when prescribed and published, shall be 
binding throughout the State.”  As if to re-emphasize the 
paramountcy of the State Board of Education’s function in 
developing and maintaining a uniform school system 
throughout the State, Section 941, 14 Del. C., in specifying 
the duties and powers of the local school boards of the 
respective school districts, states the members of these 
bodies shall perform their duties and exercise their powers 
“ subject to the provisions of . . . [Title 14] and in ac­
cordance with the rules and regulations of the State Board 
of Education.”  In view of the foregoing we cannot doubt 
but that the State Board of Education was designed as and 
is the central administrative force in Delaware’s system of 
public education and is not a mere powerless reviewer of 
actions taken by local school boards. Our ruling as to the 
effect of the school laws of Delaware in this respect is con­
firmed by the opinion of the Supreme Court of Delaware 
by Mr. Chief Justice Southerland in Steiner v. Simmons, 
supra, — Del. at p. —, 111 A. 2d at p. 580, wherein it is 
stated: “ By the school laws of the State, it [the State Board 
of Education] is vested with general policy-making power, 
and with authority to adopt rules and regulations for the 
administration of the public school system.”

Accordingly we perceive no merit in the contention 
of the State Board of Public Education and of the State 
Superintendent of Public Instruction that the failure of 
the court below to subject the members of the local school 
boards to the injunction of July 15, 1957 places or leaves the 
members of the State Board of Education and the State 
Superintendent of Public Instruction in such a position that 
they stand in danger of contempt proceedings in the court 
below. The appellants say that they are in a position of



25a

danger because the mandate imposed upon them by the 
order of the court cannot be carried out by them in view of 
the uncooperative attitude of members of the local school 
boards. The appellants assert legal impotency to carry out 
the decree of the court unless the members of the local 
school boards be made subject to the injunction. If a 
specific order of the court below be required to compel the 
members of the local school boards to perform their duties 
under the school laws of Delaware, we may assume that the 
court below will enter an appropriate decree against them 
at an appropriate future time and also will have due 
regard for the actions taken by members of the State 
Board of Education and by the State Superintendent of 
Public Instruction to create a racially non-discriminatory 
school system in Delaware. We reiterate that we will not as­
sume that the members of the local school boards, also 
named as defendants in the instant litigations, will not ad­
here to rules and regulations of the State Board of Educa­
tion as to the non-discriminatory racial practices if such 
rules and regulations are created and promulgated by the 
State Board of Education.

Moreover, an analysis of the decree appealed from 
demonstrates that the members of the State Board of 
Education and the State Superintendent of Public Instruc­
tion are not required to guarantee the accomplishment of 
desegregation in the Delaware school system but are 
enjoined from refusing admission to the minor plaintiffs 
and other children similarly situated to the schools of their 
respective school districts on account of race, color or 
ancestry. In short, the decree of the court below was de­
signed to relieve the appellants of passivity and to compel 
them to go forward with the desegregation of the Delaware 
schools. The first step to be taken by the State Board of 
Education, with the aid of the State Superintendent of 
Public Instruction, is to submit a plan designed to effect the 
principles enunciated in the decisions of the Supreme Court



26a

in Brown v. Board of Education of Topeka, supra, as or­
dered by the court below.

The members of the State Board of Education and 
the State Superintendent of Public Instruction may not 
delay further in the formulation and submission of such a 
plan. They must prepare and submit it promptly. The time 
for hesitation is past and the time for definitive action has 
arrived. The law as enunciated by the Supreme Court of the 
United States must be obeyed by all of us. If we do other­
wise we will destroy our present form of constitutional 
government.

The decree of the court below stated dates in 1957 by 
which such a plan should have been submitted by the State 
Board of Education. Those dates are, of course, presently 
inoperative. New dates must be set. This is a matter which 
must be left to the discretion of the trial court. Those por­
tions of the decree stating dates for the submission of the 
plan by the State Board of Education to the court below and 
to each member of all of the school boards in all of the 
public school districts which heretofore have not admitted 
pupils under a racially non-discriminatory plan, will be 
vacated so that the court below will be free to take appro­
priate action. The decree in all other respects will be 
affirmed.

A true Copy:

Teste:

Clerk of the United States Court of Appeals 
for the Third Circuit.