Jeffers v. Whitley Appellants' Brief

    \' l^ V
— T ^ \ ^

^ ....... i >o

I n the

'M n ltth  S t a t e s  (E m trt n f  A p p r a l s
F oe the F ourth Circuit

No. 8593

Alexander J effers and Sylveen J effers, minors, and J ohn L. 
J effers and Annie L. J effers, their parents and next friends; 
Nathan Brown, Lunsford Brown, and Sheliah Brown, 
minors, and J asper Brown, their father and next friend; and 
Charlie Saunders, J r., and F red Saunders, minors, and C. H. 
Saunders, their father and next friend,

Appellants,

Thomas H. Whitley, Superintendent of the Public Schools of 
Caswell County, David L. J ohnson, Chairman, C. N. Barber, 
J. A. H odges, N. L. Oliver and J. C. Wilkins, members of the 
School Board of Caswell County,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF NORTH CAROLINA, GREENSBORO DIVISION

APPELLANTS’ BRIEF

C. 0. P earson 
William A. Marsh

203)4 East Chapel Hill Street 
Durham, North Carolina

J ack Greenberg 
Derrick A. Bell, J r.
J ames M. Nabrit, I II  

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



I N D E X

Statement of the Case ..................................................... 1

Questions Involved........................................................  8

Statement of the Facts .................................................  9
I. The Segregated Pattern in the Caswell County 

School System ..................................................... 9
II. Record of Efforts to Desegregate the Caswell

County School System..........................................  13

A rgument
The administration of the North Carolina Pupil 
Assignment Act by the Caswell County School 
Board involving the application of racially dis­
criminatory policies, standards, and procedures 
should be enjoined ................................ ............. 18
A. The Board’s Initial Assignment Procedure

Maintains a Segregated School System ...........  18
B. The Board’s Transfer Criteria and Standards

Present an Insurmountable Hurdle to Negroes 
Seeking to Enter White Schools ....................... 19

C. Appellants Are Entitled to an Injunction Re­
straining the Discriminatory Assignment Prac­
tices of the Caswell County School Board ....... 26

PAGE

Conclusion 30



11

T able oe Cases

page

Brown v. Board of Education, 347 U. S. 483 (1954) ....18,19,
20, 26

Brown v. Board of Education, 349 U. S. 294 (1955) ....19, 25,
26, 29

Bush. v. Orleans Parish School Board, 242 F. 2d 156,
165 (5th Cir. 1957) ..... ............................................  28

Bush v. Orleans Parish School Board, —— F. Supp.
-----  (E. D. La. April 3, 1962) ...................................  24

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) ....20, 23, 27
Cooper v. Aaron, 358 TJ. S. 1 (1958) ...................... ..19,29
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959)....6, 20,

23, 27

Dodson v. School Board of City of Charlottesville,
289 F. 2d 439 (4th Cir. 1961) ................................18, 26

Dove v. Parham, 282 F. 2d 256, 261 (8th Cir. 1960) 19, 21, 24

Farley v. Turner, 281 F. 2d 131, 132 (1960) ....... ...... 23

Gibson v. Board of Public Instruction of Dade County, 
Florida, 272 F. 2d 763, 767 (5th Cir. 1959)  ...... ..... 24

Hansberry v. Lee, 311 U. S. 32, 41-42 (1940) ........ .....  28
Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944) .............  27
Hill v. School Board of the City of Norfolk, 282 F. 2d

473 (4th Cir. 1960) ........ ............. ................. ......... 19, 26
Holt v. Raleigh City Board of Education, 265 F. 2d 95 

(4th Cir. 1959) .....................................................20, 22, 27

Jackson v. School Board of the City of Lynchburg
(W. D. Va.) (C. A. No. 534, Jan. 15, 1962) ...........26,29

Jones v. School Board of City of Alexandria, 278 F. 2d 
72, 75 (4th Cir. 1960) ..........................................19, 26, 29



I l l

Mannings v. Board of Public Instruction of Hills­
borough County, Florida, 277 F. 2d 370 (5th Cir.
1960) ........ ................... ................ ............... .19, 24, 26, 29

McCoy v. Greensboro City Board of Education, 179
F. Supp. 745, 749-780 (M. D. N, C. 1959) _____ ____ 25

McCoy v. Greensboro City Board of Education, 179 F. 
Supp. 745 (M. D. N. C. 1959) rev’d 283 F. 2d 667
(4th Cir. 1960) .........       .22,27

McKissick v. Carmichael, 187 F. 2d 949, 953-954 (4th 
Cir. 1951) ...................................................................  21

Northcross v. Board of Education of City of Memphis,
-----F. 2 d ------  (6th Cir. Mar. 23, 1962) ____ __19, 24

Norwood v. Tucker, 287 F. 2d 798, 809 (8th Cir.
1961) ..............................................................19,21,26,29

Parham v. Dove, 271 F. 2d 132 (8th Cir. 1959) _____ 24
Porter v. Warner Holding Co., 328 U. S. 395, 398 

(1946) ........................................................................  27

Smith v. Swormstedt, 16 How. (U. S.) 288, 14 L. ed.
942 (1853) ............................    28

Thompson v. County School Board of Arlington 
County (E. D. Ya. C. A. No. 1341, Sept. 16, 1960)
5 Race Eel. L. E. 1056 ...............................................  26

PAGE

Statutes:
28 H. S. C. §1291...................................................  2
28 H. S. C. §1331.. ......    2
28 U. S. C. §1343 ...................................................  2
28 U. S. C. §2201 .....................    2
28 U. S. C. §2202 ...................................................  2



IV

28 U. S. C. §2281 ....................................................  2
42 U. S. C. §1981....................................................  2
42 IT. S. C. §1983 ....................................................  2
F. R. C. P. Rule 23(a) (3) ........................................2, 28
F. R. C. P. Rule 54(c) ............... ...............................  27
North Carolina Constitution, Article 9, §2 and §12 3
North Carolina General Statutes, Articles 34 and 

35 (the “Pearsall Plan”) ...................................3,10

'Other Authority:
Pomeroy’s Equity Jurisprudence, 5th Ed., 5 

Symons, 1941, Vol. 1 §§260, 261 a-n .................  28

PAGE



I n  t h e

Itutpfc States (Emirt of Appals
F ob the F ourth Circuit 

No. 8593

A lexander J epeers and S ylveen J effers, minors, and 
J ohn L. J effers and A n nie  L. J effers, their parents 
and next friends; Nathan B rown, L unsford B rown, 
and S heliah  B rown, minors, and J asper B rown, their 
father and next friend; and Charlie S aunders, J r., and 
F red S aunders, minors, and C. H. S aunders, their father 
and next friend,

Appellants,

T homas H . W hitley , Superintendent of the Public Schools 
of Caswell County, David L. J ohnson, Chairman, C. N. 
B arber, J . A. H odges, N. L. Oliver and J . C. W ilk in s , 
members of the School Board of Caswell County,

Appellees.

APPEAL FROM T H E  UNITED STATES DISTRICT COURT FOR TH E  

MIDDLE DISTRICT OF NORTH CAROLINA, GREENSBORO DIVISION

APPELLANTS’ BRIEF

Statement of the Case

This is an appeal from an order (175a)1 entered De­
cember 29, 1961, dismissing as to all but two minor plain­
tiffs, an action for injunctive relief against racial dis­

1 Citations are to the Appendix to this Brief.



2

crimination brought by the plaintiffs-appellants, Negro 
school children and parents in Caswell County, North Caro­
lina, against the Superintendent and School Board of 
Caswell County. This appeal is brought under 28 U. S. C.. 
§1291.

The complaint, filed December /6, 1956, fly 43 Negro 
pupils, and kept current by supplemenfaTconrplakfts filed 
on January 20, 1958, and July 26, 1960 (la, 33a, 74a), was 
a class action brought under Buie 23(2) (3) F. B. C. P., “on 
behalf of all other Negro children attending the public 
schools in Caswell County, North Carolina, and their re­
spective parents or guardians” (5a-6a). Jurisdiction was 
invoked under 28 U. S. C., §§1331 and 1343, the action being 
authorized by 42 U. S. C., §1983 to enforce rights secured by 
the Fourteenth Amendment to the Constitution of the 
United States, and by 42 U. S. C., §1981 providing for the 
equal rights of citizens.2

The complaint identified as defendants, the County 
School Board, and the Superintendent of Schools as gen­
erally maintaining and supervising the public schools of 
Caswell County, and further identified the members of 
the State Board of Education and the State Superintendent 
of Public Instruction as charged with the general super­
vision and administration of a free public school system 
in the State (6a-7a).

The complaint reported that plaintiffs petitioned the de­
fendant County School Board on August 6, 1956, to de­
segregate the school system, which petition was refused. 
Plaintiffs on September 10, 1956, appealed to the defendant

2 The original complaint also alleged jurisdiction under 28 
U. S. C., §2281 to enjoin the enforcement as unconstitutional of 
the North Carolina Constitution, Statutes requiring or permitting 
segregation in education (4a), and sought a declaratory judg­
ment under 28 U. S. C., §§2201 and 2202 to determine and define 
the rights of the plaintiffs (4a-5a).



3

State Board of Education in their efforts to have deseg­
regated the schools within the jurisdiction of the Caswell 
County Board of Education (7a). The complaint set forth 
Article 9, §2 and §12 of the North Carolina Constitution, 
which provisions require racial segregation in all public 
schools, and the Amendments to Chapter 115 of the gen­
eral statutes of North Carolina (Arts. 34 and 35), the 
“Pearsall Plan” which set forth the procedure for assign­
ment of pupils in the North Carolina public school system 
and revised the compulsory school attendance laws (8a-9a). 
The plaintiffs alleged that the above provisions were in­
tended to maintain segregation in the public schools, and 
that such laws were unconstitutional (10a).

Plaintiffs sought the convening of a three-judge court to 
have enjoined the various constitutional articles and state 
statutes alleged to require racial segregation in the public 
schools of North Carolina and prayed for an injunction 
requiring defendants to promptly present a plan of de­
segregation for the schools in Caswell County (10a-12a).

On January 14, 1957 the Caswell County Board of Edu­
cation filed an answer (18a) denying generally all allega­
tions of the complaint which alleged unconstitutional seg­
regation in the schools of Caswell County. The answer 
admitted the existence of the plaintiffs in the schools of 
Caswell County, their general supervision and control of 
the Caswell County public schools, and their receipt on 
August 6, 1956 of a petition signed by the plaintiffs re­
questing desegregation (21a). Defendants contended how­
ever that since t h e j ietition w a s  not, mi application for 

___ reassignment under the terms of the North Carolina Pupil 
Assignment Act, they were under no obligation to reassign 
any of the plaintiffs to a different public school (22a).

Moreover, the answer referred to a statement of the 
North Carolina Supreme Court invalidating those sections



4

of the North Carolina Constitution which require segrega­
tion, and denied that the amendments to the Constitution 
and Statutes of North Carolina, known as the “Pearsall 
Plan” are in violation of any law of the United States 
(22a-24a). The answer denied that plaintiffs are being de­
prived of any rights guaranteed by the Fourteenth Amend­
ment and further stated that plaintiffs failed to exhaust 
their administrative remedies before the Board of Educa­
tion of Caswell County as required by North Carolina 
Statutes and decisions of the United States Court of Ap­
peals for the Fourth Circuit (24a-25a). The answer further 
denied that the State Board of Education and its Super­
intendent of Public Instruction have any control over the 
assignment of pupils in the public schools of Caswell 
County, stating that the County Board of Education has 
sole and complete authority over such assignment and 
reassignments.

On January 20. 1958, plaintiffs filed Supplemental Plead­
ings to their complaint (33a) in which they alleged that 
subsequent to the filing of the original complaint the plain­
tiffs, on May 1, 1957, wrote letters to the Caswell County 
School Board protesting the reassignment of their children 
to segregated schools and requesting the desegregation of 
these schools (33a-34a). Nevertheless, they alleged, on July 
16, 1957, plaintiffs, and all other Negroes, were assigned 
to schools which theretofore had been operated for the 
exclusive use of Negroes (34a).__In apt time after this 
assignment, each of the plaintiffs filed petitions with the 
Caswell County SchdoT Board for reassignment pursuant 
|o lh e  reqmmnents of jthe North Carolina Statutes, _which 
requests on August 2271957 were jdeniedAfi4a-35a,). TTpnn 
reHearlng, the requests were again denied and the plain­
tiffs appealed to the State Superintendent of Public In­
struction for reassignment to schools nearest their homes



5

on a non-segregated basis, which request the Superinten­
dent indicated he had no authority to act on (35a).

On September 26, 1958, the court below after a hearing 
on plaintiffs’ motion to file Supplemental Pleadings and 
a Motion to Dismiss filed by the North Carolina State 
Board of Education, granted both motions and issued an 
opinion setting forth its reasons for the action taken (165 
F. Supp. 951; 41a).

On July 26, 1960, plaintiffs again filed pleadings intended 
to supplement their complaint, reporting that at the close 
of the 1959-60 school year, the minor Negro plaintiffs still 
attending the Caswell County schools were assigned exclu­
sively to all Negro schools, and that petitions for reas­
signment were denied by the Board (74a). Upon appeal 
by the plaintiffs, hearings were set by the Board at which 
some of the plaintiffs appeared in person, and all were 
represented by their attorneys (76a). Plaintiffs allege that 
all appeals were denied solely because of race and color, 
notwithstanding their exhaustion of all administrative 
remedies provided by the North Carolina Pupil Assign­
ment Law (76a-77a).

Trial was held on November 3, 1960 (99a). The district 
court finally handed down its decision on August 4, 1961 
(197 F. Supp. 84; 134a). It found that the defendant 
Board operates the Caswell County school system, that 
six schools are attended exclusively by, Negro students, 
nine schodlh^lmrirttendecr^exclusively by whites, and re­
peated efforts by some of the plaintiffs since 1955 to get 
defendants to desegregate these schools have met with no 
success (137a-138a). By the end of the 1959-60 school year, 
the court below found that only 16 of the original 43 minor 
plaintiffs were still in school, all of whom were assigned 
to all Negro schools for the 1960-61 school year (138a).



6

Nine of these applied for reassignment to non-segregated 
schools, all of whom, were denied. Hearings were requested 
by the plaintiffs and scheduled by the Board (138a-139a). 
At some of these hearings, both minor plaintiffs and their 
parents were present. At others, the plaintiffs were rep­
resented by their attorneys (139a-140a). But the applica­
tions of all plaintiffs were rejected by the Board, the court 
finding that the defendant Board has never put in writing 
any definite criteria or standards by which they judge appli­
cations, but noted that they studied “all pertinent informa­
tion” (142a).

The court below then found, pursuant to an agreement 
between the parties limiting the adjudication to plaintiffs 
who exhausted their administrative remedies for the 1960- 
61 school year (72a), that the Jeffers children had failed 
to exhaust such remedies by not attending the Board hear­
ing in connection with their application for reassignment, 
while the three Brown children and two Sanders children 
made adjudication of their rights difficult by their insistence 
on maintaining a class action, and failing to provide suffi­
cient data to enable a determination of their individual 
right to transfer (144a).

The court saw no basis for convening a three-judge court, 
and held that this Court’s opinion in Covington v. Edwards, 
264 F. 2d 780 (1959), cert, den., 361 U. S. 840, foreclosed 
plaintiffs efforts to have the defendant Board stop en­
forcing segregation in its schools. Plaintiffs were criticized 
for attacking the validity of the North Carolina pupil as­
signment law in the face of the many decisions upholding 
its constitutionality, and were blamed with causing much of 
the delay experienced in this ease (145a-148a).

Nevertheless, the court stated that it might well have 
ordered some of the plaintiffs who the record showed were



7

probably assigned on the basis of their race into the schools 
of their choice, had they sought a declaration of their con­
stitutional rights rather than the rights of the class of 
persons they represent (148a-149a). The Brown and 
Saunders children were then instructed to apply for trans­
fers for the 1961-1962 school year and “demonstrate that 
they would be entitled to attend such schools if they were 
white children,” and were permitted to am end their snpple- 
mental complaint to seek aiTarijudication of their individual 
rights, judgment having been deferred to permit this pro, 
cedure (151a, 154a._157a) ■

Applications for change of pupil assignment were sub­
mitted on behalf of Fred and Charlie Saunders and Nathan, 
Sheliah and Lunsford Brown, all of which were denied. 
The Saunders’ children’s father, after receiving threats 
upon their safety from a local terrorist hate group (167a), 
failed to appear for a hearing before the Board, and was 
deemed by the Board to have withdrawn his transfer ap­
plications (161a). The Brown children were denied because 
their applications gave no new reasons for transfer and 
“gave only race as the reason” (163a).

Upon submission of these developments, the lower court 
found in a supplemental opinion (169a) that had the 
Saunders’ children been white, they would have been ini­
tially assigned to the Murphy Elementary School, rather 
than the New Dotmond School which is twice as far from 
their home, and ruled that notwithstanding their father’s 
decision to keep them in the Negro school after receiving- 
threats from the Ku Kiux Klan (171a-172a), they were en­
titled to be admitted to the Murphy School by presenting 
themselves for registration at the beginning of any new 
school term (174a). But the lower court upheld the Board’s 
denial of the Brown childrens’ transfer application be­



8

cause they had failed to provide facts supporting their 
charge that their race had prevented them from being as­
signed to the Bartlett Yancy School. In summary, the 
court below held that:

“ - . • what the Brown children and their parents 
are still seeking is only a desegregation of the Caswell 
County school system rather than a protection of their 
own constitutional rights, and it is concluded that these 
plaintiffs have failed to establish by a preponderance 
of the evidence that they have been denied any con­
stitutional right because of their race or color” (173a).

From a judgment embodying the above findings issued 
December 29, 1961 (175a), the plaintiff appealed on Janu­
ary 25,1962 (176a).

Questions Involved

1. Whether the Negro pupil-appellants still attending 
appellee’s schools are entitled to injunctive relief requiring 
their admission to the all-white schools to which their re­
quests for transfer have been denied as the result of the 
application of racially discriminatory rules and procedures.

2. Whether the appellants and the class they represent 
are entitled to injunctive and declaratory relief prohibiting 
and condemning the racially discriminatory school assign­
ment practices and procedures used by appellees under 
which pupils are initially assigned to schools on a racially 
segregated basis and are then subjected to discriminatory, 
burdensome and unreasonable procedures and transfer 
standards if they attempt to escape the segregated initial 
assignments.



9

Statement o f Facts

I. The Segregated Pattern in the Caswell County 
School System

Caswell County has 15 nubile schools with approxi- 
mately 6,000 pupils (56a, 103a), half of whom are Negroes 
assigned to five all-Negro elementary schools and one 
consolidated Negro elementary and high school. White stu­
dents attend four all-white consolidated elementary and 
high schools, and five elementary schools (56a, 103a). 
Teachers and other school personnel are allocated on a 
segregated basis (105a). Caswell County is a rural farm­
ing community, and virtually all the students are trans­
ported to and from school by buses which are also segre­
gated (106a). There has been no desegregation in any 
of these schools (58a, 133a).

The Court (to Chairman of the Board, Clyde N. 
Barker) : In other words, since 1952 you haven’t had 
any Negro children attending schools attended by 
White children, and you haven’t had any White chil­
dren attending schools attended exclusively by Negro 
students ?

The Witness: That’s right (133a).
i

Appellees report that children are not assigned to 
schools in accordance with a system of school zone lines 
(100a), but it is the policy of the School Board to initially 
assign each student to the school to which he was assigned 
or to which he would have been assigned in the preceding 
year (101a). Initial assignments have been made in this 
fashion each year going back to a time prior to 1954, at 
which time schools were designated as either “white” or 
“negro” (100a).

Only when a child requests reassignment does the Board 
make use of the provisions of the North Carolina Pupil



10

Assignment Act (101a). Evidently because of the rural 
nature of the community, few transfer requirements are 
made (113a, 114a).

The Caswell County Training School, an all-Negro con­
solidated school for grades one to twelve, is the only school 
in Caswell County accredited by the Southern Association 
of Colleges and Secondary Schools (89a). Appellees state 
that the facilities of the Caswell school are good, that 
Negro teachers assigned there are generally better rated 
than many white teachers, and that the school offers the 
best education to be obtained in Caswell County (110a, 
124a, 129a). Similar statements were made in regard to 
the all-Negro Dotmond Elementary School which appellees 
claim cost three times as much to build (126a), and has 
twice as many teachers as the white Archibald Murphy 
Elementary School (111a). For this reason, applications 
for transfer from either the Caswell County Training 
School or the New Dotmond School have been denied in 
part because the Board felt that initial assignment to the 
Negro school offered the plaintiffs the best education 
vailable (110a, 112a-113a, 129a).
The Board has not prepared or published the standards 

or criteria by which it determines transfer applications 
(102a). Persons in the position of the plaintiffs have no 
way of knowing what set of circumstances or requirements 
they must meet in order to obtain the reassignments they 
request (111a), and are not advised as to why their trans­
fer applications were denied (104a). The standards used 
by the Board are, according to them, those suggested by 
the North Carolina Pupil Assignment Law (102a).3

3 In this regard, Sec. 115-177 of the North Carolina Pupil As­
signment Act provides:

“Authority to be exercised for efficient administration of 
schools, etc.; rules and regulations.—In the exercise of the



11

The superintendent reported that the Board considers 
all information that might be pertinent to the case, in­
cluding “the pupil’s individual record, accumulated folders, 
where they live, their records and the reasons they give 
on the application form, or any such information that the 
Board can obtain pertinent to the case” (102a). However, 
each Board member “voted according to their conscience” 
(108a), and admittedly had a good deal of discretion (112a, 
113a). No special ..tests were given to determine health, 
aptitude, achievement or the psychological states of the 
plaintiffs (122a-123a). One Board member reported:

Q. Would you be able to provide a negro student 
seeking transfer to a white school with a list of the 
qualifications he would have to have before you would 
vote for his transfer? A, No, we didn’t hnw» any 
rules.

A review of the action taken by the Board on transfer 
applications indicates that the standards actually used are 
vague and tend to be subjective in nature. Board members 
were unable to give a clear explanation of why they denied 
a particular transfer application and generally indicated 
that the standards and criteria required for transfer are 
not ascertainable (111a).

Two Board members indicated that they had no idea
what a transfer application would have to contain before

authority conferred by §115-176 upon the county or city boards 
of education, each such board shall provide for the enrollment 
of pupils in the respective public schools located within such 
county or city administrative unit so as to provide for the 
orderly and efficient administration of such public schools, 
the effective instruction of the pupils therein enrolled, and the 
health, safety, and general welfare of such pupils. In the 
exercise of such authority such board may adopt such reason­
able rules and regulations as in the opinion of the board shall 
best accomplish such purposes. (1955, c. 366 s. 2.) ”



12

they would vote to grant it (115a, 116a). One Board mem­
ber testified that he did not think requirement for transfer 
should be made available to transfer applicants (Ilia), and 
another concurred, stating: “They’ll have to think up their
own reasons

Among the factors mentioned as important by Board 
members was distance to the assigned school as compared 
to the distance to the school where transfer was requested. 
.In practice, however, the distance factor is used as a basis 
for denying transfers where the requested school is lo­
cated further from the transfer applicant’s home than the 
assigned school 7IZ0a*lla). but is designated as of little 
importance in the reverse situation because, according to 
Board members, a few miles more or less make little dif­
ference when all children are transported to school by 
bus (110a~llla). On similar reasoning, transfer requests 
to the closest school, which was white, were denied if such 
school was deemed inferior to the Negro school (131a).

The Chairman of the Board indicated that the ability to 
get along with students in another school was a permissible 
factor and he would have approved a member’s voting to 
deny a Negro’s transfer if he felt the Negro could not 
relate with fellow students in a white school (108a-109a). 
Other factors considered by the Board members or deemed 
appropriate for consideration included the like or dislike 
of the applicant’s personality (108a), whether the transfer 
if granted would separate family members into two dif­
ferent schools (111a, 131a), and even whether the white 
school offered all of the courses taken by the applicant 
at the Negro school (124a). These and other standards 
were applied even though it is obvious that if each of the 
Negro applicants were white, they would have been ini­
tially assigned to the white schools where they now sought 
to transfer (lOOa-lOla).



13

The Board members uniformly reported that they gave 
no consideration to the desire hv Negro transfer applicants 
to obtain a desegregated education~(105a7109aT,~and some 
were of the opinion that they were not permitted to grant 
transfers for this reason (118a). Although the Negro and 
white principals and supervisors who meet together 
monthly “don’t shy away from talking about integration, 
segregation, race, and so on.” (106a), the Board has made 
no plans for the general desegregation of the Caswell 
County School system (105a, 106a).

II. Record of Efforts to Desegregate the Caswell 
County School System

As far back as September 1955 the minutes of the appel­
lee Board (56a) report that Negro parents of school-age 
children submitted a petition requesting the Board to 
desegregate the public schools of Caswell County in com­
pliance with the Supreme Court’s decision (60a-61a). This 
petition resulted from Board action on July 26, 1955, in 
which Negro and white children were assigned on a racial 
basis for the 1955-56 school year (58a). Board action on 
the Negro parents’ petition consisted of taking it “under 
advisement” and “affirming its desire to operate the Cas­
well County Schools in accordance with the law and for 
the benefit of all the children of all the races” (61a).

Assignment of pupils on a racial basis was again made 
for the 1956-57 school year (58a-59a), and again on August 
6, 1956, Negro parents petitioned the Board to abolish 
segregation in the Caswell County Public Schools (21a, 
28a-29a). Upon the Board’s failure to desegregate its 
schools, the parents in September of 1956 appealed to the 
State Board of Education and the State Superintendent 
of Public Instruction for relief (30a-31a). However, the 
State Board informed the petitioners that the appellees



14

were given full authority to make assignments to its schools 
(32a).

In December 1956, 23 Negro parents on behalf of them­
selves and 43 minor plaintiffs filed this action. In addi­
tion, the plaintiffs on May 1, 1957, again wrote letters pro­
testing the continued assignment of their children on a 
segregated basis, requested desegregation of the county 
schools, and indicated that the request was made early in 
order to protect their interests for the forthcoming 1957- 
58 school year (34a, 38a).

Nevertheless, on July 16, 1957, the plaintiffs and all 
other Negro school children were assigned to schools oper­
ated for the exclusive use of Negroes, and all white chil­
dren were assigned to white schools (57a). This action 
was taken, according to Board minutes, after conversations 
with “people of both races throughout the county” who 
thought such assignments “would be for the best interest 
of all the children of all the people” (62a).

The adult plaintiffs filed timely written petitions with 
the Board pursuant to the North Carolina Pupil Assign­
ment Act requesting reassignment of their children to a 
non-segregated school (57a, 64a). The requests were uni­
formly denied by the Board on August 22, 1957 (57a, 64a- 
65a), and the plaintiffs appealed as required by the Act, 
but their requests were again denied on September 13 
after hearings before the Board on August 26, 27, and 28, 
1957 (58a).

The minutes of these meetings reflect that the Board 
attempted to talk privately with the children wdiose parents 
were requesting transfer, which request was refused (66a- 
67a). Parents were asked questions about distance, about 
how they thought their children would fare at the white 
schools, about willingness to submit children to physical



15

and health examinations and achievement tests, and were 
even asked to get parents of pupils enrolled at the white 
schools to recommend to the Board that their children 
he assigned to that school (68a-69a).

The Board admitted that for the 1958-59 school year, 
the plaintiffs and all other pupils were assigned to the 
same schools attended by them in the 1957-58 session (40a). 
At the close of the 1959-60 school year, the Board once 
again assigned all Negro children including the 16 plain­
tiffs still attending the Caswell County schools to Negro 
schools (81a).

Of this group, Lunsford Brown, Nathan Brown, Sheliah 
Brown, Alexander Jeffers, Sylveen Jeffers, and Maloy 
Mitchell were assigned to the Caswell County Training 
School which is attended exclusively by Negro pupils, and 
is located about one and one-half blocks from the Bartlett- 
Yancey High. School, attended exclusively by white pupils 
(85a). Charlie Saunders and Fred Saunders wrere assigned 
to the all-Negro New Dotmond Elementary School located 

~lYuYiTTRtlu(i-limtir>'~(4Jl) miles from their home, although 
the all-white Murphy Elementary School is. located only 

'two and four-tenths (2.4) miles from their home (85a).
In apt time, on June 9, 1960, the parents of these pupils 

petitioned the school Board to reassign their children on 
a nonsegregated basis, which petitions were denied by 
the Board on June 17, 1960 (86a). The plaintiffs appealed 
on June 24, 1960, were granted hearings by the Board on 
July 6 and 15, 1960, to which hearings Mr. Brown, the 
Mitchells, and Mr. Saunders were present in person and 
with their children, and Mr. Jeffers, while absent, was 
represented by counsel who read an appeal memorandum 
in his behalf (86a-88a). The appeals of all Negro parents 
were denied (91a-95a).



16

The court below following the trial in this case, reviewed 
the action of the Board and determined that the failure of 
John M. Jeffers to attend the hearing indicated a loss of 
desire to obtain transfers, and resulted in a forfeiture of 
the rights of his children Charlie, Alexander and Sylveen, 
who it concluded had not exhausted their administrative 
remedies under the Pupil Assignment Law (144a).

As to the Brown and Saunders children, the court below 
determined that the record was not clear and suggested 
that if these children still desired a transfer to another 
school for the 1961-62 school year they would be given an 
opportunity to apply (151a). Applications for reassign­
ment were duly filed on August 18, 1961 (160a). Nathan 
Brown, Sheliah Brown, and Lunsford Brown requested 
reassignment from the Negro Caswell County Training 
School to the white Bartlett Yancey School (161a-162a). 
However, the applications of Fred Saunders and Charlie 
Saunders requested that they be assigned from the white 
Archibald Murphy School to the Negro New Dotmond 
School (160a-161a). Upon Mr. Saunders failure to appear 
for a hearing it was concluded by the Board that “Mr. 
Saunders no longer desired to send his children to the 
Archibald Murphy School.” And, a motion to this effect 
was unanimously passed (161a).

Mr. Saunders later filed an affidavit with the court below 
indicating that he had inadvertently requested reassign­
ment from the all-white Murphy school to the all-Negro 
New Dotmond School, but after receiving threatening 
letters under the letterhead of the “KU KLUX KLAN” he 
became fearful for his children’s safety and did not attend 
the meeting in connection with his application. He indi­
cated, moreover, “that I am willing to send my children 
to Archibald Murphy School, in the event they are trans­



17

ferred to said school, if I am assured of their protection 
from the proper authorities” (167a-168a).4

In considering the reassignment request made by the 
Brown children the Board referred to the portion of the 
court’s opinion which states:

The Caswell County Training School bus passes with­
in four-tenths of a mile of their home. They would 
have to walk two and one-half miles to reach the Bart­
lett Yancey School bus. It is not feasible for both 
buses to travel over this two and one-half mile dirt 
road which deadends at the Brown home. There are 
no other children living on this road who attend, or 
who have applied for admission to, the Bartlett Yancey 
School. It is true that buses serving both schools go 
within a block and a half of each other in the town of 
Yanceyville, but for buses to carry children to both 
schools would create serious administrative problems. 
Since both schools are approximately the same differ­
ence from the Brown home, distance as a factor is 
eliminated. Additionally, the only reason given by 
the Brown children as to why a transfer was desired 
was to permit them to “transfer to an integrated 
school system, regardless of race, creed or color.” 
Pupils have no inherent right to be transferred simply

 ̂ because of their race. They do_have The right to have _ 
their applications considered without regard to race 
or color (61a-162a).

After studying the court below’s opinion the Board con­
cluded that “the new applications from the Brown chil­

4 The court below in its supplementary opinion concluded that 
the Saunders children would have been assigned to the Murphy 
School had they been white and were thus entitled to be enrolled 
there by presenting themselves at the beginning of any nw school 
term (173a).



18

dren gave no new reasons for transfer of pupil assignment 
and that same gave only race as the reason.” After further 
discussion a motion to deny the applications of the Brown 
children was unanimously passed (163a). In its supple­
mental opinion the Court below affirmed the action of the 
Board as to the Brown children (172a-173a).

A R G U M E N T

The administration o f the North Carolina Pupil As­
signment Act by the Caswell County School Board 
involving the application o f racially discriminatory 
policies, standards, and procedures should be enjoined.

A. The B oard ’s In itial A ssignm ent P rocedu re  M aintains 
a Segregated  School System .

The court below found that the appellants, and all other 
pupils in Caswell County, each year since 1955 have been 
initially assigned by the appellee Board on the basis of race 
(138a). That such assignments were effected by annually 
assigning each pupil to the school to which he was assigned 
the previous year, served to disguise neither what was done, 
nor its result. For notwithstanding all of appellants’ ef­
forts, the racial make-up of the schools in Caswell County 
today is no different than it was prior to Brown v. Board 
of Education, 347 U. S. 483.

While the appellee Board does not maintain a dual sys­
tem of attendance areas based on race (100a), it annually 
assigns pupils to the schools they would have attended at 
a time when the school system was admittedly operated on 
a racially segregated basis (lOOa-lOla). This is not just 
an interim policy, see Dodson v. School Board of City of 
Charlottesville, 289 F. 2d 439 (4th Cir. 1961), since the 
Board has not even discussed a plan of desegregation al­



19

though. Negro parents have been urging such action since 
1955.

In Jones v. School Board of City of Alexandria, 278 F. 2d 
72, 75 (4th Cir. 1960), and Iiill v. School Board of the City 
of Norfolk, 282 F. 2d 473 (4th Cir. 1960), this Court con­
demned similar assignment policies as offensive to the 
constitutional rights of the plaintiffs and others similarly 
situated.

Obviously, the good faith of the School Board in making 
assignments which they felt, after conversations with both 
Negroes and whites, “would be for the best interest of all 
the children and all the people” (62a), cannot, under the 
Brown decisions and Cooper v. Aaron, 358 U. S. 1 (1958), 
alter the fact that the continued assignment of Negro pupils 
to separate all-Negro schools does not conform with the 
school authorities’ responsibility to eliminate school assign­
ments on a racial basis. See also, Northcross v. Board of
Education of City of Memphis, -----  F. 2 d -----  (6th Cir.
Mar. 23, 1962); Norwood v. Tucker, 287 F. 2d 798, 809 
(8th Cir. 1961); Dove v. Parham, 282 F. 2d 256, 261 (8th 
Cir. 1960) ; Mannings v. Board of Public Instruction, 277 
F. 2d 370 (5th Cir. 1960).

B. The B oard’s T ransfer C riteria  and Standards P re­
sent an Insurm oun table H urdle to  Negroes Seeking  
to  E n ter W hite Schools.

The invalidity of the appellee Board’s action in maintain­
ing separate white and Negro schools to which appellants 
were initially assigned on the basis of race was not, and 
in the circumstances of this case, could not be cured by 
the availability of remedies under the North Carolina 
Pupil Assignment Act. After the Board turned down ap­
pellants’ transfer requests made in 1957 (57a-64a-65a), each 
of them exhausted the administrative remedies provided by



20

the Act (57a-64a). All were denied (57a, 64a-65a). Again 
in 1960, the appellants petitioned the Board for a change 
in the initial assignments to Negro schools, and were turned 
down by the Board (86a). Appeals and hearings followed, 
but again the Board uniformly denied the appellants’ trans­
fer requests (91a-95a).

While appellants made efforts to comply with the rulings 
of this Court in Carson v. War lick, 238 F. 2d 724 (4th Cir. 
1956); Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959); 
and Holt v. Raleigh City Board of Education, 265 F. 2d 95 
(4th Cir. 1959), by utilizing the provisions of the North 
Carolina Pupil Assignment Act, their efforts have not only 
failed to win from the Board the transfer of one Negro 
pupil to a white school, but have failed even to provide a 
predictable list of qualifications which a transfer applicant 
wiTHheed to winThe Board’s approval. Indeed, the novel 
system used by the appellee Board to evaluate appellants’ 
transfer applications is consistent only in the uniformity 
of its result. For each Negro who seeks transfer to a white 
school, a reason is found for denying his request.

Some of these reasons are clearly invalid. Appellants’ 
efforts to obtain a desegregated education were motivated 
by the Supreme Court’s decision in the Brown case that 
“separate educational facilities are inherently unequal” and 
thus unconstitutional. 347 U. S. 483, 495. Yet the appellee 
Board refused to consider as a basis for granting the re­
quested transfer, applicant’s request for transfer to a non- 
segregated school (105a-109a). Some Board members held 
the opinion that they were not permitted to grant transfers 
for this reason (118a). Transfer requests were also de­
nied because, according to appellees, the Negro Caswell 
County Training School and New Dotmond Elementary 
School are superior, albeit segregated, to their white coun­
terparts to which appellants sought transfer, and thus



21

appellants were already assigned to the best schools in the 
County (110a, 112a-113a, 129a). In line with this reason­
ing, the Board was even permitted to consider the probable 
ability of the Negro transfer applicant to relate with stu­
dents in a white school (108a-109a). Board minutes indi­
cate moreover that parents were asked how they thought 
their children would fare at white schools and were even 
asked to have parents of pupils enrolled in white schools 
where they sought transfer write the Board recommending 
that the Negro children be assigned to that school (68a- 
69a).

The application of such discriminatory criteria, though 
done with good motives and out of solicitude for the Negro 
pupils is clearly invalid. Dove v. Parham, 282 F. 2d 256, 
258 (8th Cir. 1960) and Norwood v. Tucker, 287 F. 2d 798, 
809 (8th Cir. 1961). The Court said in the Dove case that:

“An individual cannot be deprived of the enjoyment of 
a constitutional right, because some governmental or­
gan may believe that it is better for him and for others 
that he not have this particular enjoyment. The judg­
ment as to that and the effects upon himself therefrom 
are matters for his own responsibility” (at p. 258).

This Court also stated the applicable principles force­
fully in McKissick v. Carmichael, 187 F. 2d 949, 953-954 
(4th Cir. 1951), a case where state officials argued that it 
would be to a Negro’s advantage to attend an all-Negro 
school rather than the all-white state law school. Judge 
Soper writing for the Court said:

“We must give first place to the rights of the individual 
citizen, and when and where he seeks only equality of 
treatment before the law, his suit must prevail. It is 
for him to decide in which direction his advantage 
lies.”



22

The__ maintenance of segregated school buses w a s  nsp.rl 
~as~a basis for denying the transfer applications of the 
Brown children because the white school bus was not routed 
on to the narrow side road where they lived (163a); and 
while the white school bus passed near the home of the 
Saunders’ children, their transfer applications were denied 
because while the white school was two miles closer, the 
Negro school was deemed better.

While neither the Jeffers children nor their parents were 
personally present at the hearing on July 6, 1960, they were 
represented by their attorney who presented a written ap­
peal for each of them. Moreover, Holt v. Raleigh City Board 
of Education, 265 F. 2d 95 (4th Cir. 1959), is not con­
trolling because the Jeffers children and their parents were 
among the original plaintiffs named in this suit, and had 
complied with the requirements of the Pupil Assignment 
Law in 1957. McCoy v. Greensboro City Board of Educa­
tion, 283 F. 2d 667 (4th Cir. 1960). Nevertheless, the Board 
viewed their personal absence as showing “mighty little 
interest,” and their applications were denied.

After the court below found that the Saunders children 
had exhausted their administrative remedies and lived much 
closer to the white school, Mr. Saunders received threaten­
ing letters which caused him to withdraw his transfer ap­
plications. Nevertheless, the court below found that the 
Saunders children “would have been initially assigned, and 
would now be eligible for reassignment, to the Murphy 
Elementary School, if they were white children” (173a).

Thus, the experience of the appellants with the Pupil 
Assignment Law as administered in Caswell County is that 
only those who exhaust their administrative remedies, and 
in addition who live substantially closer to a white school 
the bus assigned to which passes their home, whose scho­
lastic and other records are without flaw, who are not about



23

to graduate, and abpM'Whon^ no member of the appellee 
Board can find arty subjective/fault, can hope to, after 
prosecution of a lengthyAaw^suit, obtain an education not 
in a desegregated school, but in a school to which white 
children are normally assigned simply because they are 
white. This is certainly not the “reasonably e x p e d i t io n s ,  
and adequate administrative remedy”.which this Court has 
made a prerequisite to the requirement that Negro pupils 
“pursue established administrative~procedures b e f o r e  seek­
ing the intervention of a federal court.” Farley v. Turner, 
281 F. 2d 131713271060)7"

The adherence by school boards to valid and reasonable 
standards was assumed by this Court in Carson v. War licit, 
238 F. 2d 724 (4th Cir. 1956):

“It is to be presumed that these will obey the law, ob­
serve the standards prescribed by the legislature, and 
avoid the discrimination on account of race which the 
Constitution forbids.”

In Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959), 
the Court was aware of initial enrollment procedures similar 
to those employed here, but refused to enjoin the policy 
because it assumed that the Pupil Assignment Act pro­
vided ample “remedy for such inaction”. In short, while 
this Court has provided those operating under the North 
Carolina Pupil Assignment Act every opportunity to ac­
complish the conversion of school systems long established, 
but now unconstitutional into systems which are both 
educationally and constitutionally valid, the appellee Board 
has simply used the Act to reinforce its policy of initially 
assigning pupils on the basis of race, with the entirely 
predictable result that the schools in Caswell County are 
as segregated now as they were prior to 1954.



24

The Sixth Circuit’s conclusion in Northcross v. Board
of Education of the City of Memphis,----- F. 2 d ------  (6th
Cir., March 23, 1962) that “the Pupil Assignment Law 
might serve some purpose in the administration of a school 
system but it will not serve as a plan to convert a bi-racial 
system into a nonracial one” is clearly applicable here. 
“Moreover”, as was recently held in Bush v. Orleans Parish
School Board, -----  F. Supp. -----  (E. D. La., April 3,
1962), “where a school system is segregated, there is no 
constitutional basis whatever for using a pupil assignment 
law.” The Court further found that:

“A pupil placement law may only be validly applied in 
an integrated school system, and then only where no 
consideration is based on race. To assign children to 
a segregated school system and then require them to 
pass muster under a pupil placement law is discrimina­
tion in its rawest form.”

Similar conclusions have been reached in Mannings v. 
Board of Public Instruction of Hillsborough County, 
Florida, 277 F. 2d 370 (5th Cir. 1959); Parham v. Dove, 
271 F. 2d 132 (8th Cir. 1958); Dove v. Parham, 282 F. 2d 
256 (8th Cir. 1960), and courts of the Fifth and Sixth Cir­
cuits after reviewing the applicable decisions of this Court 
have interpreted them as meaning that “the desegregation 
of the public schools may occur simultaneously with and be 
accomplished by the good faith application of the law pro­
viding for the assignment of pupils to particular schools.” 
Northcross v. Board of Education of City of Memphis, su­
pra, citing Gibson v. Board of Public Instruction of Dade 
County, Florida, 272 F. 2d 763, 767 (5th Cir. 1959).

Certainly, this case would be enhanced if during the last 
seven years none of the original 43 plaintiffs had been forced 
to leave the school system because of graduation, discour­



25

agement, or fear. Even so, the record sufficiently illustrates 
that as administered by the appellee Board the North Caro­
lina Pupil Assignment Act could not possibly effect de­
segregation in Caswell County. To ask Negroes who each 
term are assigned to all-Negro schools to come back year 
after year and apply for reassignment, obtain, fill out, and 
file various forms within preset dates, attend hearings, and 
so on, not only is more than the law requires, McCoy v. 
Greensboro City Board of Education, 179 F. Supp. 745 
(M. D. N. C. 1959), rev’d 283 F. 2d 667 (4th Cir. 1960), 
but also creates a form of frustration which inevitably takes 
its toll from even the most militant.

Moreover, as the experience of Charlie Saunders graphi­
cally illustrates, appellants here do not pursue their con­
stitutional rights in an urban community, where neighbors 
are close, lights are bright, roads are paved, and communi­
cations good. The fears which Charlie Saunders felt for the 
safety of his children are particularly understandable in 
a farming community where if the worse happens, help may 
be far away. Thus, appellants submit that while, as the 
Fifth, Sixth and Eighth Circuits have found, the likelihood 
of achieving meaningful school desegregation through re­
liance on a Pupil Assignment Plan is remote in any locale, 
its administration by the appellee Board through the use of 
unascertainable standards and invalid criteria, especially 
in a rural community such as Caswell County reduces the 
possibilities to a level far below that required for desegre­
gation “with all deliberate speed.” Brown v. Board of 
Education, 349 U. S. 294 (1955).



2 6

C. A ppellan ts A re E n titled  to  an In ju n ction  R estra in ing  
th e D iscrim in a tory A ssignm ent Practices o f  th e Cas­
w ell C ounty School B oard .

The court below not only refused to issue an injunction 
against the appellee Board, but relying on the earlier in­
terpretations of the North Carolina Pupil Assignment Act 
made by this Court, criticized appellants for continuing 
their efforts to obtain general desegregation, and relief for 
their class (144a, 148a).

Appellants, however, submit that they are entitled to the 
relief requested. The continued assignment of all pupils 
on thinly disguised racial grounds was condemned by 
this Court in Jones v. School Board of the City of Alex­
andria, 278 F. 2d 72, 76 (4th Cir. 1960), and more recently 
by a district court in Jackson v. School Board of the City
of Lynchburg, Va.,----- F. Supp. —— (W. D. Va., Jan. 15,
1962).

The reassignment policy by which pupils initially placed 
on the basis of race are then required to meet special resi­
dence and acadamic standards having no relation to the 
method of initial placement and the organization of the 
pupils in the schools, in order to transfer, are equally 
invalid under numerous precedents. Jones v. School Board 
of the City of Alexandria, supra; Hill v. School Board of 
the City of Norfolk, 282 F. 2d 473 (4th Cir. 1960); Dodson 
v. School Board of the City of Charlottesville, 289 F. 2d 
439 (4th Cir. 1961); Norwood v. Tucker, 287 F. 2d 798 (8th 
Cir. 1961); Mannings v. Board of Public Instruction, 211 
F. 2d 370 (5th Cir. 1960); Thompson v. County School 
Board of Arlington County (E. D. Va. C. A. No. 1341, Sept. 
16,1960), 5 Race Eel. L. E. 1056.

One of the traditional equity principles which Brown 
requires the courts to use in shaping remedies in these



27

cases is the equitable principle of granting complete relief. 
Becht Co. v. Bowles, 321 U. S. 321, 329 (1944). The obli­
gation to grant complete relief, even when it benefits per­
sons not before the court, is evident. Porter v. Warner 
Holding Co., 328 U. S. 395, 398 (1946). Indeed Rule 54(e), 
F. R. C. P. requires the courts to grant the relief to which 
the parties are entitled whether or not demanded.

The court below held that under Carson v. Warlick, 238 
F. 2d 724 (4th Cir. 1956), the appellants could not maintain 
a class action but in light of the pupil placement law can 
only obtain individual relief for assignment to particular 
schools.

Plaintiffs submit that Carson v. Warlick, swpra; Coving­
ton v. Edwards, 264 F. 2d 780 (4th Cir. 1959) and Holt v. 
Raleigh City Board of Education, 265 F. 2d 95 (4th Cir. 
1959), are inapplicable and do not support the proposition 
that the courts are powerless to deal with discriminatory 
assignment practices affecting pupils in a school system, 
except by reviewing individual applications to a particular 
school. This was the theory used to justify the trial court’s 
action in McCoy v. Greensboro City Board of Education, 
179 F. Supp. 745, 749-780 (M. D. N. C. 1959), which this 
Court reversed, 283 F. 2d 667 (4th Cir. 1960). Actually, 
the Carson, Covington and Holt cases supra, held that in­
junctive relief would not be granted where parties had 
failed to pursue reasonable and adequate administrative 
remedies under a pupil placement law. The Court in Car- 
son made it plain that it was not deciding what relief might 
be granted where some individuals had exhausted their 
administrative remedies or where the remedies afforded 
were inadequate or unreasonable. The Court said in Carson, 
at 238 F. 2d 724, 729:

“We are dealing here, of course, with the admin­
istrative procedure of the state and not with the right



28

of persons who have exhausted administrative remedies 
to maintain class actions in the federal courts in be­
half of themselves and others qualified to maintain 
such actions.”

The procedural aspects of the class action issue may be 
disposed of without difficulty, for it is the substantive issue 
as to what relief may be granted that is really in dispute. 
The case comes within Rule 23(a)(3), F. R. C. P. in that 
it involves a numerous class of persons (all Negro pupils 
in the system); it is obviously impracticable to bring them 
all before the court; and they are represented by “one or 
more members of the class.” The fact that the rights in­
volved are personal and individual constitutional rights 
does not remove the case from Rule 23(a)(3). That provi­
sion applies only to “several” rights. The case meets the 
requirement that the “several” rights involve common ques­
tions of law and fact and that common relief be sought. 
The fact that other members of the class have not pursued 
individual transfer requests does not place them in a dif­
ferent class, because the common relief sought goes only 
to those issues of law and fact which do affect all Negro 
pupils in the community in common, and for which there 
is no administrative remedy to be exhausted, namely, the 
policy of making initial assignments on the basis of race.

Rule 23(a)(3) was designed to cover exactly this type of 
situation, to “clean up” the litigious situation in one action 
(see Pomeroy’s Equity Jurisprudence, 5th Ed., 5 Symons, 
1941, Yol. 1 §§260, 261a-n) and to avoid a multiplicity of 
actions, as the equitable origins of the class action attest. 
Smith v. Sivormstedt, 16 How. (U. S.) 288, 14 L. ed. 942 
(1853); Hansberry v. Lee, 311 U. S. 32, 41-42 (1940). See 
Bush v. Orleans Parish School Board, 242 F. 2d 156, 165 
(5th Cir, 1957).



29

The appellees’ argument that no class action may he 
maintained is in essence a substantive argument that they 
can insulate themselves from an injunction requiring them 
to cease the dual racial initial assignment system, and that 
the placement law renders the court powerless to grant 
relief against this practice. This doctrine would effectively 
overturn the rule of the Jones case, supra, that dual racial 
school zones are invalid. It is submitted that the contrary 
view taken by the 8th Circuit in Norwood v. Tucker, 287 
F. 2d 798 (8th Cir. 1961) is sound, and that the courts have 
and should exercise full power to prohibit discriminatory 
initial assignment practices. Manning v. Board of Public 
Instruction, 211 F. 2d 370 (5th Cir. 1960). See also, Jackson 
v. School Board of the City of Lynchburg (W. D. Va.) 
(C. A. No. 534, Jan. 1962), unreported, requiring a school 
board to present a plan for eliminating discriminatory ini­
tial assignments, stating:

“It is obvious that, if a general injunction requiring 
desegregation can never be issued against a school 
board or other assignment authority in a state in which 
a pupil placement act is in effect, then the courts can 
never perform this supervisory function which the 
United States Supreme Court has told them they should 
perform” [in Brown v. Board of Education, 349 U. S. 
294 and Cooper v. Aaron, 358 U. S. 1],



30

CONCLUSION

It is respectfully submitted that the judgment of the 
court below should be reversed and the case remanded with 
directions that the appellants be granted the relief sought 
and such other and further relief as may be just.

Respectfully submitted,

C. 0. P earson 
W illiam A. Marsh

203^ East Chapel Hill Street 
Durham, North Carolina

J ack Greenberg 
D errick A. B ell, J r.
J ames M. N abrit, III 

10 Columbus Circle 
Few York 19, New York

Attorneys for Appellants



i 38