McCoy v. The Greensboro City Board of Education Appellants Brief
Public Court Documents
January 1, 1960

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Brief Collection, LDF Court Filings. McCoy v. The Greensboro City Board of Education Appellants Brief, 1960. d2c25f7e-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/44eb5604-7e48-4400-bce2-3f00cbf9aa4c/mccoy-v-the-greensboro-city-board-of-education-appellants-brief. Accessed June 17, 2025.
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T, m, /v. Initrii States Court of Apprals FOE THE FOURTH CIRCUIT No. 8127 VALARIE McCOY, a Minor; ERIC McCOY, a Minor; THETUS McCOY, a Minor, by their father and next friend, READELL McCOY; and READELL McCOY; MICHAEL ANTHONY TONKINS, a Minor, by his father and next friend, JAMES TONKINS, JR .; and JAMES TONKINS, JR., Plaintiffs-Appellants, GREENSBORO CITY BOARD OF EDUCATION, a Body Politic of Guilford County, North Carolina; THORNTON BROOKS, Chairman, GREENSBORO CITY BOARD OF EDU CATION; J. C. COWAN, JR.; DR. WILLIAM M. HAMPTON; MRS. LESSIE HALL; RICHARD K. HUNTER; JAMES R. PERRIN; RICHARD M. WILSON, Members of the GREENSBORO CITY BOARD OF EDUCATION, Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA, GREENSBORO DIVISION APPELLANTS’ BRIEF J. KENNETH LEE P. O. Box 645 Greensboro, North Carolina CONRAD O. PEARSON 203% E. Chapel Hill Street Durham, North Carolina THURGOOD MARSHALL JACK GREENBERG JAMES M. NABRIT, I II 10 Columbus Circle New York 19, N. Y. Attorneys for Plaintiffs-Appellants INDEX TO BRIEF PAGE Statement of the Case .................................................... 1 Question Presented ..................................................... 6 How the Question Arises ................................................ 6 Statement of the Pacts .................................................... 7 A r g u m e n t The power of federal courts to enjoin school seg regation policies in class actions includes power to restrain all actions and policies of school au thorities which affect the assignment and educa tion of pupils on the basis of race and to require the systematic elimination of racial discrimination in a segregated school system................... - ............ 13 A. Plaintiffs Can Secure Relief Only by Elim ination of the Segregation Policy Which Is Directed at Negroes as a Class...................... 13 B. The So-Called Administrative Remedy of the Pupil Assignment Law Does Not Preclude Granting the Relief Requested ...................... 21 C. Continued Segregation by Defendants Vio lates the Fourteenth Amendment.................. 24 C onclusion H A u thorities C it e d : Gases: Allen v. County School Board of Prince Edward County, Va., 266 F. 2d 507 (4th Cir. 1959) — ..... 17 Avery v. Wichita Falls, 241 F. 2d 230 (5th Cir. 1957) ........................................................18,19,20,22,27 Bolling v. Sharpe, 347 U. S. 497 ................................. 14 Brown v. Board of Education, 347 U. S. 483, reaff’d 349 IT. S. 294 ................................................ 14,15, 22, 23 Carson v. Board of Education, 227 F. 2d 789 (1955) 21, 23 Carson v. Warlick, 238 F. 2d 724 (1956) .............. 21, 26 Cooper v. Aaron, 358 U. S. 1 ............................. 14,16, 23 Covington v. Edwards, 264 F. 2d 780 (1959) .......... 21 Farley v. Turner, No. 8054, 4th Cir., June 28, 1960 .....................................................................21,22,23 Gibson v. Board of Public Instruction of Dade County, 246 F. 2d 913 (5th Cir. 1957) ............... -..... 18 Gibson v. Board of Public Instruction, etc., 272 F. 2d 763 (5th Cir. 1959) .................................................... 18 Holland v. Board of Public Instruction, etc., 258 F. 2d 730 (5th Cir. 1958) ......... , ................ -..............-18, 27 Holt v. Raleigh City Board of Education, 265 F. 2d 95 (4th Cir. 1959) ....................................................21, 22 Jones v. School Board of City of Alexandria, Vir ginia, 278 F. 2d 72 (4th Cir. 1960) .................. 22, 24, 25 Mannings v. Board of Public Instruction, etc., 277 F. 2d 370 (5th Cir. 1960) ............................. 18,19, 22, 23 PAGE Orleans Parish School Board v. Bush, 242 F. 2d 156 .. 22 Railroad & Warehouse Comm’n of Minn. v. Duluth St. Ry., 273 IT. S. 625 ............................................ 24 School Board of City of Charlottesville, Va. v. Allen, 240 F. 2d 59 (4th Cir. 1956) ................................. 17 United States v. W. T. Grant Co., 345 U. S. 629 .... 27 Codes: 28 U. S. C. §§1331, 1343 ......................................... 2 42 U. S. C. §§1981, 1983 ......................................... 2 Rules: Rule: Rule 23(a)(3), Federal Rules of Civil Procedure ..2, 22 United States Constitution: Fourteenth Amendment, Section 1 ............_............ 2 Other Authorities: Pomeroy’s Equity Jurisprudence (5th Ed. Sy mons), Vol. 2, p. 185 ............................... ......... . 24 3 Pomeroy, §397, et seq........................................... 24 4 Race Rel. Law R. 31 Ill PAGE 24 Hutted States Olniirt of Appeals F oe th e F ourth C ircuit No. 8127 V alarie M cCoy, a Minor; E ric M cCoy, a Minor; T hetu s M cCoy, a Minor, by their father and next friend, R ea dell M cCo y ; and R eadell M cCo y ; M ich ael A n t h o n y T o n k in s , a M in or, b y his fa th er and next fr ien d , J ames T o n k in s , J r.; and J am es T o n k in s , Jr., Plaintiffs-Appellants, — v.— G reensboro C it y B oard of E ducation , a Body Politic of Guilford County, North Carolina; T hornton B rooks, Chairman, G reensboro C it y B oard of E ducation ; J. C. C ow an , Jr.; Dr. W illiam M. H a m p t o n ; M rs. L essie H a l l ; R ichard K. H u n t e r ; J ames R. P e r r in ; R ichard M . W ilso n , Members o f the G reensboro C it y B oard of E ducation , Defendants-Appellees. a p p e a l f r o m t h e u n it e d s t a t e s d is t r ic t c o u r t f o r t h e MIDDLE DISTRICT OF NORTH CAROLINA, GREENSBORO DIVISION APPELLANTS’ BRIEF Statement of the Case This civil action by four Negro school children (Valarie, Eric, and Thetus McCoy and Michael Tonkins) and their respective fathers (Readell McCoy and James Tonkins) 2 seeks to prohibit racial segregation in the Greensboro, North Carolina public schools.1 The action was commenced February 10, 1959, in the United States District Court for the Middle District of North Carolina, Greensboro Division. Jurisdiction was invoked pursuant to 28 U. S. C. §§1331, 1343 and 42 U. S. C. §1983 alleging deprivation of rights protected by Section 1 of the Fourteenth Amendment to the Constitution of the United States and by 42 U. S. C. §1981. The action was brought as a class suit pursuant to Rule 23(a)(3), Federal Rules of Civil Procedure, alleging that “ there are common questions of law and fact affecting the rights of all other Negro children attending the public schools of Greensboro, North Carolina, and their respec tive parents,” and that a common relief was sought. The gravamen of the complaint was that the defendant Greensboro Board maintained a racially segregated school system pursuant to a racial policy of assigning students that violated the rights of Negro school children under the Fourteenth Amendment. The complaint stated in de tail the circumstances under which the McCoy and Ton kins children attended school under the segregated system, and recounted their parents’ unavailing efforts, prior to and at the beginning of the 1958-59 school year, to obtain from the Greensboro Board assignments for their children on the same basis as that used for white pupils similarly 1 The North Carolina Advisory Committee on Education and the North Carolina State Board of Education, and individual members of those boards were also named as defendants. A mo tion to dismiss the action against those boards was unopposed by plaintiffs and they are not parties to this appeal. Pleadings and orders relating to those parties are not printed in Appellants’ Appendix or described in this statement. The opinion below suf ficiently states the course of proceedings in relation to those parties (App. 98a, 101a). 3 situated. Briefly it was alleged that these four Negro children had been excluded, because of race and as a part of a general board policy of segregation, from a building known as David Caldwell Elementary School, maintained for white students exclusively; and that they had been assigned to an inferior building located on the campus of the Caldwell School, which at one time had been a part of that school, and which, during the 1958-59 term was maintained for Negro pupils exclusively and was known as the Pearson Street Branch of the Washington School. Washington School proper, also was an all Negro school, located some dozen blocks away from the branch. The School Board answered, making numerous admis sions, denials, and defenses. Thereafter, before hearing, plaintiffs on September 23, 1959 moved for leave to file a supplemental complaint to set forth events which had occurred since the original complaint. These were, briefly, that following the 1958-59 school term the board assigned the McCoy and Tonkins children (with the exception of Thetus McCoy who had advanced to Junior High School) to the Caldwell School proper; that the board had then consolidated the two buildings on the Caldwell campus into one school and con verted Caldwell School into an all-Negro school by as signing Negroes in a designated neighborhood to Caldwell, and by reassigning all white students attending Caldwell school and living in that neighborhood to other schools. The all-white Caldwell faculty was transferred to other schools and an all-Negro faculty was substituted. The proposed supplemental complaint alleged that these trans fers, assignments, and reassignments were made on the basis of race as part of a general pattern of actions through out the system of assigning, reassigning, and transferring pupils and teachers on a racial basis to maintain and per- 4 petuate racial segregation in the city school system, except for admission of a small or “ token” number of Negro pupils to “white” schools (App.34a-37a). The proposed supplemental complaint prayed for an in junction restraining the Board “ from engaging in any ac tion that regulates or affects on the basis of race or color, the admission, enrollment or education of the infant plain tiffs, or any other Negro children similarly situated, in the [Greensboro] public schools” . It further asked that the Court require the school board “ to present to the court for its approval, on or before a specified date, a com plete plan for bringing about compliance with the order of Court and providing a systematic and effective method for eliminating racial discrimination within the city school system with the least practicable delay.” October 16, 1959, the-board filed motion for summary judgment (App. 38a), supported by two affidavits (App. 40a, 42a), contending that the action should be dismissed as moot on the ground that subsequent to complaint and answer the McCoy and Tonkins children had obtained the only relief to which they were entitled, i.e., assignment to Caldwell School. Opposing affidavits were filed by Messrs. Tonkins and McCoy (App. 43a, 45a). A second affidavit of Mr. P. J. Weaver, Greensboro School Superintendent, was filed on October 27,1959 (App. 47a). On that date, the Court heard argument of counsel on the pending motions, and then requested further affidavits. Thereafter a third affidavit by Superintendent Weaver (App. 58a) and opposing af fidavits by Mr. Tonkins and Mr. McCoy were submitted (App. 76a, 81a). At this time also plaintiffs submitted a written motion for continuance pending the taking of dep ositions (App. 86a), requesting an opportunity to take the deposition of Superintendent Weaver, members of the 5 School Board, and other school personnel. Thereafter a fourth “Reply” affidavit by Mr. Weaver was submitted (App. 90a). January 14, 1960, the Court issued an opinion, 170 F. Supp. 745 (App. 94a), holding that there was no substantial dispute over essential facts, and stated in detail various transactions which had occurred involving the McCoy and Tonkins children from their initial 1958 application until the fall of 1959, when the cause was argued. The opinion held that the proposed supplemental complaint afforded no basis for relief, and the motion to file it was denied. The Court decided that no relief could be granted under either the original or supplemental complaints and that the board’s motion for summary judgment should be granted because the only legal question which the court could adjudicate—i.e., whether the children had a right to attend Caldwell School—was now moot: “ For the reasons previously pointed out, the only re lief which the court could possibly grant would be an injunction requiring the Board to admit the eligible minor plaintiffs to the Caldwell School upon a finding that they had exhausted their administrative remedies under the North Carolina Enrollment and Assignment of Pupils Act, and that they were denied admission on account of their race or color.” The court then said that it was not clear, but in any event was unnecessary to determine whether the plaintiffs adequately exhausted their administrative remedies. The opinion held that the Negro children could not main tain a class action challenging the segregation policy of the system, but only could seek admission to particular schools, and if refused on racial grounds obtain a court 6 order requiring admission to the particular school in volved. Plaintiffs’ request for time to take depositions was denied on the ground that proof of the allegations of the supplemental complaint would still not enable the court to grant the relief sought. March 23, 1960, judgment in accordance with the opinion dismissed the action; costs were taxed against plaintiffs; this appeal followed. Question Presented Whether, in a class action to enjoin under the Four teenth Amendment the segregation policies of the Greens boro Board of Education, the cause became moot and the United States courts were powerless to require systematic elimination of racial discrimination in the administration of the school system, because defendants, after this suit commenced, assigned plaintiffs to Caldwell School, where they originally applied, and then converted it from a “white” to a “ Negro” school, pursuant to a policy of main taining an essentially segregated system and manipulating assignment policies and school populations to that end. How the Question Arises This question arises in the record from the trial court’s disposition of plaintiffs’ motions for leave to file proposed supplemental complaint and for continuance pending dis covery, and from disposition of the school board’s motion for summary judgment and dismissal on the ground that the only question which the Court was empowered to decide was moot. The question was discussed and decided by the Court below in its opinion dated January 14, 1960. 7 Statement of the Facts No oral testimony was taken below; the only facts appear from the admissions in the answer to the Complaint, the affidavits and attached exhibits in support of and in oppo sition to the Motion for Summary Judgment and, for purposes of this suit, the averments of the proposed Supplemental Complaint, which the Court below treated as true, and concerning which depositions were not allowed to be taken, on the ground that even if these depositions established the correctness of the Supplemental Com plaint’s averments, plaintiffs could not prevail. The complaint alleges (ifVII, App. 5a) and the answer admits (flVII, App. 16a) that on June 12, 1958, Michael Anthony Tonkins, who had just become eligible for first grade, and his father applied for admission to Caldwell School. He first submitted an application to defendant Board, on reassignment forms, no other forms being avail able. The Board took no action. Then, by letter, the father requested of the Superintendent information concerning the Board’s policy for assigning first graders. No reply was made, because, the answer avers, this was not “ the proper procedure.” The answer admits also (ffVIII, App. 16a) that on September 2, 1958, the date set by the Greens boro Board for first grade registration, Tonkins and his child went to Caldwell, about three and a half blocks from his home. The principal refused to enroll young Michael Anthony, and referred them to the Washington Street School, an all Negro school, about thirteen blocks from plaintiff’s home. White neighbors of Tonkins (Answer fflX, App. 17a) who lived approximately the same distance from Caldwell as plaintiff were regularly enrolled in its first and all other grades. Upon going to the Washington Street School (Answer J[X, App. 17a) the child was en- 8 rolled by its principal to attend classes at its all Negro Pearson Street Branch (App. 96a). This branch was an integral part of the Caldwell campus and consisted of a smaller building which contained no auditorium, cafeteria, or gymnasium, and to which meals were transported from the Washington Street School (Answer flXI, App. 18a). The complaint alleges (UffXII-XIII, App. 8a) and the answer admits (flflXII, XIII, App. 19a) that after Tonkins was enrolled in the Pearson Street Branch of the Wash ington Street School, application was made on or about September 4, 1958, and in apt time for reassignment to the David Caldwell School; and that on September 17, 1958, Tonkins’ application for reassignment was considered and denied. In apt time plaintiff appealed this decision, which was considered and denied on October 21, 1958, without any reason given. Plaintiff Readell McCoy, father of Valarie (9), Eric (8) and Thetus (11), was notified on June 7, 1958 that his children were assigned for the 1958-59 school year to the Pearson Street Branch of the Washington School. There after, on June 11, 1958, and in apt time, McCoy applied to the Board for reassignment of his children to the Cald well School. On August 11, 1958, the Board denied these applications. On August 18, 1958, McCoy appealed and on September 16, the Board reaffirmed (Answer IfXIV, App. 19a-20a). McCoy lives within three and a half blocks of the Cald well School, as close as or closer than many of his white neighbors. In the complaint it was alleged and denied that the plain tiffs were refused admission at Caldwell School because of their race or color (Complaint: flVIII; Answer: 3rd de fense IfVIII); alleged and denied that Caldwell School was maintained for white students only (Complaint: flIX; 9 Answer: 3rd defense ffIX ); alleged and denied that the Pearson Street Branch of the Washington School was maintained as an inferior segregated part of the Caldwell School campus (Complaint: IfX; Answer: 3rd defense IfX); and alleged and denied that Negro children attend ing the inferior building adjacent to the Caldwell School were denied use of the superior facilities at Caldwell and separated from the white pupils at Caldwell. The Complaint contained the following allegation: “While defendant Greensboro Board purports to maintain a system of permitting transfers among schools without regard to race, the system which it maintains in fact implements a policy of racial dis crimination. This system of segregation is maintained by requiring as a matter of practice and policy that Negro children entering school for the first time reg ister in schools nearest their residences for Negroes only. Negroes who attend schools for Negroes only must continue attending such schools. White children who enter school for the first time are as a matter of practice registered in schools nearest their homes for whites only. When a Negro child who lives at or near a ‘white’ school applies for admittance or initial assignment to the ‘wfhite’ school, he is sum marily denied such admission and referred by the principal of the said school to a ‘Negro’ school no matter what the distance or circumstance. Thereafter, if a Negro child desires to be transferred to the ‘white’ school located in the district of his residence he must proceed under the requirements of the North Carolina Pupil Assignment Act. This procedure is not required of any white child under the jurisdiction of the defen dant Greensboro Board who desires to enroll in or transfer to a white school” (Complaint jfXVI, App. 9a). 10 The Answer responded to the above allegation stating: “ The allegations as set out in Paragraph XVI of the complaint are denied. In connection with the alle gations contained in Paragraph XVI, these answering defendants aver that if any child enrolled in the public schools of Greensboro, whether Negro or white, wishes to he transferred to another school in the Greensboro School System, in order to obtain such transfer, appli cation for reassignment must be made in accordance with the requirements of the North Carolina Pupil Enrollment Act and the rules and regulations issued thereunder by the defendant Greensboro Board” (An swer: 3rd defense flXVT, App. 21a). The Greensboro Board affirmatively asserted by Answer that they were not maintaining a segregated school system in that several Negro pupils had been admitted as pupils in “ white” schools in accordance with the North Carolina Pupil Enrollment Act and under the local board’s own rules and regulations for pupil reassignment. The Board also asserted that it had defended its past reassignments of certain Negro pupils to “white” schools when that action was challenged in North Carolina courts, and in the face of public hostility, and that the Board had taken its action “ notwithstanding the fact that no Negro pupils have been admitted to any other white schools anywhere in North Carolina, with the exception of Charlotte and Winston- Salem, and that in a number of States of the South not a single Negro pupil has been admitted to any white public school below college level” (Answer: Fourth Defense, ftXIX, App. 22a). Following filing of this suit, the proposed Supplemental Complaint alleges Caldwell School was converted from a “ white” school to a “Negro” school by the Greensboro 11 Board as a part of a general pattern of actions “in assign ing, reassigning, and transferring pupils and teachers on the basis of race in order to maintain and perpetuate racial segregation” (App. 36a). As part of this program plaintiffs were admitted to the Caldwell School proper, numerous other Negro children were assigned there, a Negro principal and Negro teachers were assigned there, and white students, white principal and white teachers were transferred out (App. 34a). In connection with the con version of Caldwell to a “Negro” school the attention of the Court is directed to a provision of the Rules and Regu lations of the Greensboro Board which provides: “ Eighth, (a) In the event that any child is assigned to a school previously attended solely by children of another race, this Board will on its own initiative, and within the limits of available school facilities, permit children previously assigned to such school to be as signed to another school if their parents so desire” (Exhibit A to Answer, App. 32a). The plaintiffs’ Motion for Continuance pending discovery (App. 86a) indicated various matters concerning the con version of Caldwell School about which they sought to take depositions and to inspect documents. In particular, plaintiffs sought to examine the Superintendent, the principal and former principals of the Caldwell School concerning, inter alia, whether attendance areas were gerry mandered, the procedure by which all white students were transferred from Caldwell and whereby it became an “all- Negro” school, the role that school personnel played in effecting white students’ transfers, and so forth. Said motion also sought to enable discovery of additional facts related to a mimeographed school assignment notice (App. 80a) whereby apparently only Negroes were assigned to Caldwell (App. 78a). 12 One further factual situation which emerges from an exchange of affidavits should be mentioned as it relates to plaintiffs’ theory of the relief to which they are entitled. The affidavit of Readell McCoy, November 10, 1959, avers that Ms son, Thetus, was assigned in June 1959 to the all-Negro Lincoln Junior High School together with all other Negro pupils completing the sixth grade at the “ Negro” school building adjacent to Caldwell School (called the Pearson Street Branch of the Washington School), while at the same time all white students com pleting the sixth grade at Caldwell were assigned to other Junior High Schools, and that no white students were ever assigned to the Lincoln School or any other school main tained exclusively for Negroes (App. 78a-79a). The reply affidavit of Superintendent P. J. Weaver asserts that the assignments were made in accordance with a policy “which had previously been fixed by the Board, and were made the same as was done in the previous year.” “ Therefore” , the affidavit continued, “ the assignment of Thetus McCoy to the Lincoln Junior High School was in accordance with assignment to the customary school for pupils promoted from the sixth grade of the Washington Street School” (App. 92a-93a) (emphasis added). Concerning this the Court simply found that Thetus was assigned to and was attending Lincoln School and that no reassignment appli cation had been filed on his behalf (App. 99a), which concluded the matter, consistent with the view below that the court could “ only grant an injunction requiring the Board to admit the eligible minor plaintiffs to the Caldwell School” , given appropriate proof. 13 ARGUMENT The power of federal courts to enjoin school segrega tion policies in class actions includes power to restrain all actions anti policies of school authorities which affect the assignment and education of pupils on the basis of race and to require the systematic elimination of racial discrimination in a segregated school system. A. Plaintiffs Can Secure Relief Only by Elimination of the Segregation Policy Which Is Directed at Negroes as a Class The Court below held that the only constitutional right of Negro pupils in a school segregation ease was the right not to be excluded from a. given school because of race; and that Negro pupils in a system where the board manipu lated assignment of pupils and teachers on the basis of race to perpetuate segregation (except for admitting a small number of Negroes to “white” schools as token of “compliance” with the Fourteenth Amendment) could ob tain no relief in a federal court to remedy this situation. This ruling was based upon a state statute and local regula tions providing procedure for individuals to request change of school assignment after having been initially assigned to a segregated school. The Court further held that as Negro pupils could only assert personal constitutional rights they had no right to challenge a general policy of racial pupil assignment where they had been first racially excluded from, and later admitted to, the school of their choice, even though the subsequent assignment was accom panied by further racially inspired pupil assignments de signed to perpetuate segregation. Plaintiffs wrongfully at tempted, it was held, to assert rights of a class rather than 14 personal rights; the case was held mooted by plaintiffs’ ad mission to the school where they applied, notwithstanding the Board’s continued racial assignment policy. These conclusions, it is submitted, are erroneous. The right asserted by these Negro children and parents under the due process and equal protection clauses of the Four teenth Amendment is the right to freedom from imposition of arbitrary restraints on their liberty because of race and the right to receive public education in institutions main tained by the state without racial discrimination. The Su preme Court held in Brown v. Board of Education, 347 U. S. 483 (and reaffirmed in the second Brown opinion, 349 U. S. 294 and Cooper v. Aaron, 358 U. S. 1) that the separation of students in public schools by race constituted an invidi ous discrimination which denied equal protection of the laws. The “ separate but equal” doctrine was repudiated; racially segregated schools were stamped “ inherently un equal” . Indeed, racial segregation in public education was held to be such an unjustifiable discrimination, infringing the liberties of citizens on the basis of race without ref erence to any proper governmental objectives, that it vio lated due process of law. Bolling v. Sharpe, 347 U. S. 497; Cooper v. Aaron, 358 U. S. 1,19. The Supreme Court held in Brown v. Board of Education, 349 U. S. 294 that the courts must exercise the traditional attributes of equity in fashioning appropriate remedies to effect complete relief in school segregation cases. The cases which culminated in the Brown decisions were brought as class actions, discrimination against a class was alleged, and the Supreme Court expressly treated the cases as class actions calling for remedial action involving the whole class of persons discriminated against. After holding in Brown I that state enforced racial segregation in public schools is unconstitutional, the Court ordered reargument as to type 15 of relief, in view of the fact that these were class actions. The Court said: Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable com plexity (347 U. S. at 495). Clearly then the Supreme Court considered the cases as necessarily involving relief to Negroes as a class in the districts involved rather than merely the admission of in dividual plaintiffs to particular schools. Pursuant to the latter approach the Court simply could have ordered the named plaintiffs admitted to the particular “white” schools for which they were eligible without further considering relief. In Brown II, the type of relief given and the type of factors considered involved remedy for the class as a whole —relief affecting the entire system, not simply schools plaintiffs might be eligible to attend. The Court wrote: At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision” (at 300). (Emphasis added.) =£ # * * * To that end, the courts may consider problems re lated to administration, arising from the physical con dition of the school plant, the school transportation system, personal, revision of school districts and at tendance areas into compact units to achieve a system 16 of determining admission to1 the public schools on a nonracial basis, and revision of local laws and regula tions which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these prob lems and to effectuate a transition to a racially non- discriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases (300-301). (Emphasis added.) Cooper v. Aaron, 358 U. S. 1, 7, restated and reaffirmed Brown: It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could consti tute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system. (Em phasis added.) Certainly, Negro plaintiffs in school segregation cases assert, and indeed possess, personal constitutional rights only as individuals and not as a group or class. But, under Brown, and the Federal Buies, individual children and parents may maintain a class action to challenge a segre gation policy or statute as unlawfully depriving them, and others similarly situated, of constitutional rights, and they may secure injunctive relief prohibiting a pattern of ra cially discriminatory practices used to maintain a segre gated school system. The right asserted is the individual’s right to freedom from discriminatory treatment by state governments. But, as the discriminatory policy is based 17 on race, it is directed at individuals comprising a group or class defined by reference to race and because of their mem bership in that class. The individual’s right, as well as his plight, under racial segregation is, by virtue of the nature of the discrimination, intimately associated with the discrimination imposed upon the class of which he is a member. Racial segregation unconstitutionally brands all Negro pupils as inferiors to be set apart from white pupils in the enjoyment of public education. As the history of this case shows, in point of fact, these plaintiffs cannot escape segregation unless defendant Board stops applying racial standards to all children in Greens boro. Pupil placement secured for plaintiffs admission to the school to which they first sought admission. The Board’s segregation policy converted the reassignment into further racial segregation. In several cases this Court has affirmed injunctive orders requiring the end of a school board policy of assigning students by race. In School Board of City of Charlottes ville, Fa. v. Allen, 240 F. 2d 59, 61 (4th Cir. 1956), the Court affirmed such an order.2 This Court in Allen v. County School Board of Prince Edward County, Fa., 266 F. 2d 507, 511 (4th Cir. 1959), directed the district court to enter an order enjoining the defendants in virtually the same language used in the Charlottesville order. This lan guage was the pattern for that used in the prayer of the supplemental complaint in this case. Several Cases decided by the Court of Appeals for the Fifth Circuit also support plaintiffs’ position in this ease, 2 The order restrained the defendants: “From any and all action that regulates or affects on the basis of race or color, the admission, enrollment or education of the infant plaintiffs, or any other Negro child similarly situ ated, to and in any public school operated by the defendants.” 18 including Holland v. Board of Public Instruction, etc., 258 F. 2d 730 (5th Cir. 1958); Gibson v. Board of Public In struction of Dade County, 246 F. 2d 913 (5th Cir. 1957); Gibson v. Board of Public Instruction, etc., 272 F. 2d 763 (5th Cir. 1959); Mannings v. Board of Public Instruction, etc., 277 F. 2d 370 (5th Cir. 1960); and Avery v. Wichita Falls, 241 F. 2d 230 (5th Cir. 1957). In Holland, supra, the Court found a Negro child in eligible to attend a white school on the basis of his resi dence, but held that because a segregated system was main tained, the trial court should retain jurisdiction to enter appropriate orders bringing the discriminatory system to an end. In the first Gibson opinion, supra, the plaintiffs were held entitled to relief against maintenance of a segre gated system even though they had not sought admission to particular schools. In the second Gibson opinion, supra, it was held that a pupil assignment statute was not in itself a “plan for desegregation” within the meaning of Brown, and the district court was directed to require the board to bring forth and implement a plan to eliminate discrimination. In the Mannings decision, where a complaint had been dismissed because Negro pupils made no application to particular schools under a pupil assignment statute, the Court wrote: “ Proof might have been introduced under the allega tions of the complaint showing that the pattern of segregation was still maintained by the Board’s auto matically assigning all pupils to the same racially segregated schools which they had been attending, without applying any standards or tests to any but the relatively few Negro students who sought trans fers to what had theretofore been white schools. Such a course of conduct the Court might hold failed to 19 measure up to the requirements of the Florida state law itself which asserted that ‘uniform tests’ were a step ‘to the end that there will be established in each school within the county an environment of equality among pupils of like qualifications and academic at tainments.’ It seems too plain to require comment that no such aim would be achieved, or even approached, unless whatever tests were ultimately adopted by the Board were applied to all students and not only to those wishing transfers” (277 F. 2d at 374). The Court held in Mannings that if a system of segre gation was shown to exist the plaintiffs were entitled to have any individual applications for pupil assignment con sidered “against the background of a decree of the trial court prohibiting the consideration of the race of the pupil as a relevant factor”. The opinion concluded, at page 375: We conclude that, without being required to make application for assignment to a particular school, the individual appellants, both for themselves and for the class which they represent, are entitled to have the trial court hear their evidence and pass on their con tention that the pupil assignment plan has not brought an end to the previously existing policy of racial segre gation. In the event proof of this fact is made then appellants would be entitled to their injunction as prayed. Avery v. Wichita Falls, supra, involved facts in part sim ilar to those here, in that Negro pupils were admitted to a previously all-white school and then all of the white students were transferred to other schools.3 3 As stated by the Court at 241 F. 2d 230, 232: “ The plaintiffs lived in the area served by the Barwise School. At the opening of the school term in September, 1955, 20 The Court held in Avery at 241 F. 2d 230, 232-34: Clearly plaintiffs seeking judicial relief from racial discrimination applied against the members of a nu merous class may maintain a class action. At the time the district court dismissed the com plaint, a part of the plaintiffs’ X->rayer had been met, that is they were attending the public school nearest their homes, but it is by no means certain that they had the same free privilege of transfer to or attendance on any school of their choice as was accorded the white children. Admittedly desegregation of the schools of the district had not then been completed, though the defendants professed such a purpose, and the court thought it would be accomplished ‘within a matter of months’. * =£ * # * We are of the clear opinion that, at the time of the rendition of judgment by the district court the case had not become moot and that it was error to dismiss the action. The Court reversed and remanded; the trial court was directed to retain jurisdiction to require “good faith com pliance.” they applied for admission to that school and it is admitted that they were refused on racial grounds. The Barwise School was then being attended by white children only, but a new school was under construction in Sunnyside Heights, a white section of the town, to which it was planned to transfer the white pupils. The new school had been scheduled for com pletion by September, 1955 but was not actually completed until January, 1956, after the present suit had been filed. The white pupils were then transferred from Barwise to the new school; Barwise was renamed the A. B. Holland School after a former negro principal of the Booker T. Washington School, and was opened on a nominally desegrated basis though only negro pupils, including the minor plaintiffs, registered.” 21 A recent opinion by this Court indicates agreement with Mannings, see Farley v. Turner (No. 8054, 4th Cir., June 28, 1960). B. The So-Called Administrative Remedy of the Pupil Assignment Law Does Not Preclude Granting the Relief Requested The Greensboro Board and the Court below have cited in support of their position several decisions by this Court,4 which apply the rule insisting upon exhaustion of admin istrative remedies. But this ease does not directly in volve the rule requiring the exhaustion of adequate and expeditious remedies. While the Court below held that it was unnecessary to determine whether the children had properly pursued prescribed administrative procedures, plaintiffs submit that the uncontroverted facts plainly show that they used all available remedies prior to filing suit. The answer does not assert as a defense that the plaintiffs failed to exhaust administrative remedies—which, as al leged, certainly followed the form of the statute and were admittedly timely filed (Answer Paragraphs XII, XIII, XIV, App. 19a)—it merely denies that they were refused admission on racial grounds, without explaining why all white students were assigned to Caldwell and all Negroes were assigned to the adjacent building during the 1958-59 school term. The answer also fails to explain why the mod ern, well-equipped Caldwell building served only white students and the adjacent,; connected, ill-equipped annex building served only Negro students in a neighborhood where both races lived. In view of the fact that no issue 4 Carson v. Board of Education, 227 F. 2d 789 (1955); Carson v. Warlick, 238 F. 2d 724 (1956); Covington v. Edwards, 264 F. 2d 780 (1959); Holt v. Raleigh City Board of Education, 265 F 2d 95 (1959). 22 was, or could have been made, over exhaustion, the Court below should have “ reached the merits of the case,” Holt v. Raleigh City Board of Education, 265 F. 2d 95, 98 (4th Cir. 1959), cert, denied, 361 U. S. 818, which turn on the fundamental segregation policy of the Board. But basically there is no prescribed administrative remedy, “ reasonably expeditious and adequate”, Farley v. Turner, supra, or otherwise, by which plaintiffs may challenge the general use of racial assignment standards in the system. Under the board’s procedures they are only permitted to request a change of assignment for a par ticular child; the grant of such relief is the only possible remedy. There is no administrative remedy at all by which plaintiffs may object to the general policy of making all initial assignments on a racial basis. There is no admin istrative remedy whereby plaintiffs can stop the board from assigning out all white children and teachers and from assigning in only Negro children and teachers at the Caldwell School. No case cited by the Board supports the decision below, for those cases, particularly when read in the light of the Jones, Mannings, and Farley decisions, supra, do not re flect a theory that federal courts are powerless to deal with discriminatory school systems except on a child-by-child basis or that the courts are impotent to enjoin the general use of discriminatory practices. Nor do those cases di minish the right, created by Federal Rule 23(a)(3), to maintain representative actions in appropriate cases when a group is suffering a common wrong at the hands of a state agency.5 5 Cases upholding the right of Negro students to maintain class actions in school segregation cases are: Brown v. Board of Edu cation, supra.; Avery v. Wichita Falls, 241 F. 2d 230, 232, n. 2, and cases cited therein; Orleans Parish School Board v. Bush, 242 F. 2d 156, 165 and eases cited therein; and see discussion of the substantive considerations, supra, pp. 13-21. 23 In Carson v. Board of Education, 227 F. 2d 789, 791, the Court clearly indicated that the basis of the exhaustion rule was the reluctance of federal courts to interfere “where the asserted federal right may be preserved with out it.” Farley v. Turner, supra, demonstrates continued recognition of the reason for the rule. But here it is plain that the McCoy and Tonkins children and other Negro children in the school district require a general order prohibiting the use of racial assignment standards, Mannings v. Board of Public Instruction, supra, and that their “asserted federal rights” cannot “be preserved with out it.” Here, plaintiffs submitted themselves to the administra tive machinery of the Greensboro Board and applied to particular schools. By virtue of this submission to the administrative process, it is now contended that they are to be deprived of the right 'to challenge the maintenance of a discriminatory assignment system based on race, de signed and operating to perpetuate segregation throughout the school system.6 Plaintiffs should not be deprived of the right to secure relief from such a system—a discriminatory system which affects them personally and directly just as much as it affects other Negro children in the district— merely because as a part of the racial scheme the Greens boro Board, after first rejecting plaintiffs on racial grounds converted the school plaintiffs applied to attend from a “ white” to a “ Negro” school and admitted plaintiffs to the building while the lawsuit was pending. It is re spectfully submitted that such a resolution of plaintiffs’ 6 No subjective “ good faith” , public pronouncements of obedi ence to the Fourteenth Amendment, or token admission of selected Negro students to “white” schools is a suitable substitute for a “diligently and earnestly pursued” policy of eliminating segre gation. Brown v. Board of Education, supra; Cooper v. Aaron, supra. 24 quest for relief would be plainly anomalous and would fly in the face of the basic maxim that “ Equity will not suffer a wrong without a remedy”, Pomeroy’s Equity Jurispru dence (5th Ed. Symons), Yol. 2, p. 185. Certainly it would be anomalous if the application of the equity rule pertain ing to exhaustion of remedies were allowed to create such an inequitable result. Indeed, since abstention which defers federal jurisdiction in the face of state administrative remedies is an equitable doctrine, cf. Railroad & Ware house Comm’n. of Minn. v. Duluth St. Ry., 273 U. S. 625, 628, it would seem that defendants’ continued activity in behalf of segregation invokes the fundamental equity doc trine of “clean hands” , see 3 Pomeroy, §397, et seq., and precludes them from seeking the aid of equity to support their continued imposition of inequity. C. Continued Segregation by Defendants Violates the Fourteenth Amendment The assignment policies of the Greensboro Board plainly violate the equal protection and due process clauses of the Fourteenth Amendment. In a recent case in this Court which involved applications of individual pupils to par ticular schools, Jones v. School Board of City of Alex andria, Virginia, 278 F. 2d 72 (4th Cir. 1960) (a general order enjoining discrimination had been previously entered by the trial court and was not appealed, 4 Race Rel. Law R. 31) this Court made clear its views as to certain general assignment practices which would necessarily affect the rights of individual students. The Court wrote: “ Obviously the maintenance of a dual system of attendance areas based on race offends the consti tutional rights of the plaintiffs and others similarly situated and cannot be tolerated. . . . In order that 25 there may be no doubt about the matter, the enforced maintenance of such a dual system is here specifically condemned” (278 F. 2d at 76). The Court also wrote at 278 F. 2d, page 77 that: “ If the criteria should be applied only to Negroes seeking transfer or enrollment in particular schools and not to white children, then the use of the criteria could not be sustained. Or, if the criteria are, in the future, applied only to applications for transfer and not to applications for initial enrollment by children not previously attending the city’s school system, then such action would also be subject to attack on consti tutional grounds, for by reason of the existing segre gation pattern it will be Negro children, primarily, who seek transfers.” Thus this Court has specifically condemned school as signment arrangements such as were alleged in the com plaint and denied by answer in this case, but with respect to which the Court below decided it had no power to grant relief. It is to be noted that the complaint in the instant case specifically alleged a discriminatory administration of the assignment and reassignment procedures to per petuate segregation (App. 9a-10a). Also the segregation policies, alleged in the proposed supplemental complaint— and admitted for purposes of the decision below—to have been continued by other methods after the complaint was filed, appear from the affidavits and exhibits of the plain tiffs (App. 76a-85a) and the reply affidavit of the Super intendent (App. 90a) to have been effected in part by the use of geographic attendance standards applied only to Negroes living in the Caldwell School area following the conversion of Caldwell to a “Negro” school. This was one of the matters about which plaintiffs sought leave for dis covery proceedings (App. 100a). 26 The local regulations of the Greensboro Board contain a provision (App. 32a) which explicitly provides for the Board to consider race and for the Board “ on its own initiative” to change school assignments of children as signed to a school where children of another race are admitted, if the parents so desire. Such a system of con sidering race and transferring students to preserve segregation on the “ initiative” of the Board is plainly incompatible with the Board’s duty to end a discrimina tory system created by segregation practices and racial standards for school assignment. In like manner the procedure by which Thetus McCoy was assigned to a Negro Junior High School, because that was the “customary school” (90a-91a; 104a-105a) attended by Negro students in the area, while all white Caldwell students in the area were assigned to other schools on com pletion of the sixth grade, demonstrates that complete relief cannot be obtained through pupil reassignment pro cedures so long as pupil assignments are made on the basis of race and in accordance with past customs. It is said that no application was made by Thetus for a change of his assignment to the all-Negro school. But on behalf of Thetus McCoy it must be emphasized that he had com pleted the administrative procedures the previous year and still been assigned to a segregated school and excluded from a school in which white children living in his area were routinely admitted; at the time the Board newly assigned him to a Negro junior high school he had filed a lawsuit and was a litigant before the court seeking relief in the form of an order prohibiting all racial school as signments. In Carson v. Warlick, supra, at 729, the Court observed: Furthermore, if administrative remedies before a school board have been exhausted, relief may be sought 27 in the federal courts on the basis laid therefor by application to the board, notwithstanding time that may have elapsed while such application was pending. Here Thetus McCoy laid the basis for seeking relief in the Federal Court prior to filing suit. He remains in the school system, assigned to an all-Negro school although now he has been promoted to a higher level. While he may not be entitled to an order requiring his admission to any particular school, it is submitted that he is certainly still entitled to maintain an action to seek a prohibition of the policy of assigning and reassigning students on the basis of racial considerations, and to whatever benefit may flow to him personally with respect to his individual school attendance as the result of the abolition of that policy. Cf. Holland v. Board of Public Instruction, supra. If the plaintiffs at a trial on the merits are able to estab lish that assignment policies based upon race have not ceased in the Greensboro system the cause is surely not moot. Avery v. Wichita Falls, supra. Indeed, as held by the Supreme Court in United States v. W. T. Grant Co., 345 U. S. 629, 632 even the “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e. does not make the case moot.” (Emphasis supplied.) In such circumstance it was held that the fact that if the case were dismissed the de fendant would be “ free to return to his old ways” , “ to gether with a public interest in having the legality of the practices settled, militates against a mootness conclusion.” The Court further said that while “ [t]he case may never theless be moot if the defendant can demonstrate that ‘there is no reasonable expectation that the wrong will be repeated!,)’ [t]he burden is a heavy one” (at 632). Here, however, the “ allegedly illegal conduct” has not even ceased. 28 It is submitted that the plaintiffs in this eanse are en titled to a trial on the merits to offer proof that the sys tem of assigning pupils on racial grounds did exist and continues to exist in the Greensboro system, and upon such proof are entitled to general injunctive relief prohibiting the unlawful racial assignment practices and for a reten tion of jurisdiction of the cause by the trial court during any transition to a nondiscriminatory system. CONCLUSION W herefore, f o r the fo re g o in g reasons it is resp ectfu lly subm itted that the ju d gm en t below should be reversed . J. K e n n e t h L ee P. 0. Box 645 Greensboro, North Carolina C onrad 0 . P earson 2031/2 E. Chapel Hill Street Durham, North Carolina T htjrgood M arshall J ack Greenberg J ames M. N abrit , III 10 Columbus Circle New York 19, N. Y. Attorneys for Plaintiffs-Appellants