McCoy v. The Greensboro City Board of Education Appellants Brief

    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