McCain v Abel Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 72-1373

THOMAS C. MCCAIN, et al.,
Pla intif fs-Appellants,

v.
C. ASHLEY ABEL, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE .DISTRICT OF SOUTH CAROLINA

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN

10 Columbus Circle 
New York, N.Y. 10019

LAUGHLIN MCDONALD 1611 Crestwood
Columbia, South Carolina 29206

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
No. 72-1373

THOMAS C. MCCAIN, et al.,
Plainti ffs-Appellants, 

v .

C. ASHLEY ABEL, et al..
Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF SOUTH CAROLINA

BRIEF FOR PLAINTIFFS-APPELLANTS 

Issue Presented for Review

Whether the district court erred in dismissing a complaint 
which sought to vindicate the constitutional rights of black 
students in a public school to attend that school free of 
badges and indicia of slavery, on the ground there was pending 
in state court an action involving as defendants certain of 
the plaintiffs in the federal action?

Statement of the Case
This action was commenced in the United States District 

Court for the District of South Carolina, Columbia Division,



There wereby a complaint filed November 30, 1970 (A. 2-11).
two groups of plaintiffs. The first consisted of Thomas c. 

McCain, Bennie Mitchell, Jr., Willie C. Bright and Edward 
Senior, who sued individually and on behalf of the Community 
Action for Full Citizenship of Edgefield County, a corporation 
organized under the laws of South Carolina. The second group 
of plaintiffs were parents suing as the next friends of black 
students attending Strom Thurmond High School in Edgefield 
County, South Carolina (A. 3-4). The complaint sought the 
vindication of rights guaranteed under the First, Thirteenth 
and Fourteenth Amendments of the Constitution of the United 
States. in particular, the complaint sought to end certain 
practices at Strom Thurmond High School which, it was contended, 
constituted badges or indicia of slavery and thus denied the 
constitutional rights of black students in attendance at the 
school.

Those practices, as set out in the prayer for relief 
of the complaint, were retaining and using the symbol of 
the rebel as a school mascot, the playing or singing of the 
song "Dixie" at athletic or other events at the high school, 
retaining and using the Confederate Flag at athletic and other 
events at the school, retaining and using the name Strom Thurmond 
foi the Edgefield County High School, and harassing and 
intimidating the plaintiffs in the exercise of their rights of 
free speech and association by prosecuting lawsuits against them 
tor the purpose of, discouraging them from taking part in the

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conduct of the affairs of Edgefield County (A. 10-11). The 
nair.ed defendants were the members of the Edgefield County 
District School Board of Trustees, the school administrator 
of Edgefield County, the judge of the Eleventh Judicial 
Circuit of South Carolina and the Edgefield County Attorney 
(A. 4).

The defendants filed a motion to dismiss the action on 
a variety of grounds (A. 31-32) and subsequently filed a motion
to dismiss as to the defendant judge and defendant county 
attorney (A. 49-52). Rulings on the first motion to dismiss 
and on a motion for discovery and production of documents 
filed by the plaintiffs were reserved by the district court 
pending the filing of a report by the Department of Health, 
Education and Welfare concerning the complaints made by the 
plaintiffs (A. 36). Subsequently, the plaintiffs fried a 
motion for summary judgment based on the verified complaint, 
®^hibits, and affidavits attesting to the impact on black 
students of the policies complained of (A. 39-48).

A hearing was held by the district court on the motion 
of the defendants to dismiss, on the motion for an order to 
drop the judge and county attorney as defendants and on a 
motion of the plaintiffs for summary judgment. At that 
hearing counsel for the plaintiffs agreed that the judge and 
the county attorney should be dropped as defendants (A. 53).

On February 23, 1972, the district court entered an order
(A. 53-58) dismissing the complaint in its entirety as regards

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to all plaintiffs and all defendants on the ground that there 
had been pending in state court prior to the filing of the 
federal complaint an action brought by the defendants in the 
federal action against the first group of plaintiffs in the 
federal action. That action sought to enjoin the latter from 
conducting certain allegedly disruptive demonstrations in the 
vicinity of the public schools in the county. In the answer 
to the State complaint the defendants had asserted as a 
defense, and as a basis for their demonstrations, the dis­
criminatory policies also complained of in the federal court 
complaint and had asked that those policies be ordered 
discontinued by the state court.

The district court, relying on the decision of the 
Supreme Court in Atlantic Coast Line Railroad Co. v. 
Brotherhood of Locomotive Engineers, 398 U.S. 281 (1970),
and on 28 U.S.C. §2283, said:

The legality of the school name, playing of "Dixie," school mascot and use of the 
Confederate flag are all raised through the 
answer in the case now pending in the State Court. Since all issues presented to this Court are presently before the Court of 
Common Pleas for Edgefield County, South 
Carolina, it is proper to dismiss the present case in its entirety. (A. 57.)

A timely notice of appeal was filed on March 24, 1972 (A. 59)
and the appeal was subsequently docketed in this Court.

Statement of Facts
The factual background as set out in the complaint and 

the various exhibits and affidavits introduced below, all

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of which must be taken as true for the purpose of deciding
the validity of the granting of the motion to dismiss, is
as follows. As a result of pressure from the Department of
Health, Education and Welfare, the defendant county school
trustees instituted a plan for desegregating the public
schools, which had theretofore been operated on a racially
discriminatory basis (A. 4). Under that plan, all students
in grades 10 through 12 were to attend Strom Thurmond High
,'Chool which, prior to that time, had been a substantially
all-white school. Students in grades 7 through 9 attended
the Parker school (A.6). The white high school used as its
mascot the rebel, used as a school song "Dixie” and used the
Confederate Flag in various displays both prior to and

1/
following desegregation. Plaintiff McCain wrote a letter 
to defendant Abel asking that these symbols be discontinued, 
jiving as his reason the fact that black children were being 
"dehumanized by such demonstrations." (A. 6.) Despite this 
request, the symbols continue to be used and the result was 
protests by black students and community groups in the county 
(A. 6-7).

!_/ See the affidavit designated Exhibit E, reproduced in the 
appendix at p. 39, and the attachment to it in the original 
record on appeal showing that the announcement of the commence­
ment exercises for 1971 was embossed with the Confederate battle flag.

)



On October 9, 1970, a smt was filed by the members of 
the school board of trustees in the Court of Common Pleas 
for the County of Edgefield which named as defendants the 
Community Action for Full Citizenship of Edgefield County 
and McCain, Mitchell, Bright and Senior as agents of that 
corporation (A. 15-18). On the next day, October 10, an 
ex parte restraining order was issued against the named 
defendants enjoining them from conducting various kinds of 
demonstrations involving the public schools of the county 
(A. 13). This restraining order was served on October 12,
1970.

On or about October 30, 1970, an answer to the complaint
was filed in state court admitting and^denying certain of the 
allegations in the state court complaint (A. 22-26). As an

irmative defense, it was alleged that at all times defendants 
had been engaged in activity protected by ijhe First Amendment 
of the Constitution in protest against the use of various 
symbols which were contended to be badges of slavery and 
indicia of second class citizenship for Negroes in Edgefield 
County (A. 23-24). It was further alleged that the restraining 
order issued by the court was an unconstitutional prior 
restraint and was void for vagueness and overbreadth (A. 24-25). 
The defendants prayed that the restraining order be dissolved, 
the complaint dismissed, and that the use of the symbols 
complained of be declared in violation of the Constitution 
of the United States and that the plaintiffs be permanently 
restrained from the further use of such symbols (A. 25-26).



Shortly thereafter, on November 30, 1970, the present 
action was filed in federal court. As noted above, the 
action was filed on behalf not only of the defendants named 
in the state court action, but also on behalf of named pupdIs 
attending the high school as individuals and as representing 
the class of black pupils in attendance. The action sought 
from the federal court affirmative protection of the consti­
tutional rights of those pupils. None of these named pupil 
plaintiffs, or their parents, were parties to the state court 
action or had been served with either the complaint or the 
temporary restraining order entered therein. During the 
course of the litigation, a variety of affidavits and exhibits 
were introduced by pupils and others attesting to the fact 
that the complained of symbols represented slavery and the 
repression of black citizens (A. 39, 41-48).

ARGUMENT
I.

THE CONSTITUTIONAL ISSUES RAISED BY 
THE COMPLAINT ARE SUBSTANTIAL.

Although the court below did not reach the merits, one 
basis for the motion to dismiss filed by the defendants was 
that the constitutional claims raised were insubstantial and 
frivolous (A. 32). Therefore, it is appropriate preliminary 
to explain briefly why the contentions raised by the plaintiffs 
do indeed involve substantial questions under the Thirteenth 
and Fourteenth Amendments.

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Basically, plaintiffs sought to enforce the mandate of
the Supreme Court that school authorities are:

. . . clearly charged with the affirmative
duty to take whatever steps might be necessary 
to convert to a unitary system in which racial 
discrimination would be eliminated root and 
branch. Green v. County School Board of New 
Kent County. 391 U.S. 430, 437-438 (1968).

They contend that when black children must go to a public 
high school that have as its official mascot, song, flag, and 
even name, symbols associated with the Confederacy, the defense 
of slavery, and racial hostility and discrimination, they 
are subjected to the kind of injury to their "hearts and 
minds" condemned by Brown v. Board of Education, 347 U.S.
483 (1954). They sought to prove that the school symbols
sanctioned and imposed by the school authorities are indeed 
badges and indicia of slavery and hence also prohibited by 
the Thirteenth Amendment. (See Affidavits, A. 45-48.)

That such claims are substantial is demonstrated by their 
full and careful consideration by other federal courts. Thus, 
in Smith v. St. Tammany Parish. 316 F. Supp. 1174 (E.D. La. 
1970), a district court, as part of a desegregation order, 
prohibited the display of the Confederate flag in a recently 
integrated high school. And both the Seventh and Eighth 
Circuits have adjudicated similar claims on their merits, 
although upholding the use of Confederate symbols on the facts 
of the cases before them. Banks v. Muncie Community Schools,
433 l.2d 292 (7th Cir. 1970); Tate v. Board of Education of 
)onesboro. 453 F.2d 975 (8th Cir. 1972).

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II.
THE DISTRICT COURT HAD THE DUTY 
TO ADJUDICATE THE SUBSTANTIAL 
FEDERAL CLAIMS PRESENTED.

It is clear that, if there had been no pending state 
court action, the district court would have had the duty of 
deciding the merits of the claims raised by the plaintiffs.
As recently as April 3, 1972, the Supreme Court reaffirmed
its rule that a federal court must rule on substantial federal 
claims despite the existence of independently available
state remedies. Carter v. Stanton, _____ U.S. ______, 31 L.Ed.2d
569 (1972), citing Damico v. California, 389 U.S. 416 (1967) 
and McNeese v. Board of Education, 373 U.S. 668 (1963).
Therefore, the issue in this case is a limited one: did the
fact that some of the federal court plaintiffs were defendants 
in a state court proceeding brought by the defendants here 
to enjoin certain types of demonstrations, and that those 
plaintiffs had raised as a defense to that proceeding the 
unconstitutionality of the high school symbols, require 
that the federal action be dismissed as to all of the plaintiffs?

Plaintiffs-Appellants urge that the court below erred 
in two respects. First, whether or not it was justified 
in dismissing those plaintiffs who were also defendants in 
state court, there was no basis for not adjudicating the 
rights of the plaintiffs who were pupils at the high school 
and who were neither defendants nor in any other way involved 
In the state court action. And second, even as to the state

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court defendants, the federal action should not have been 
dismissed, since the gravamen of the state court action was 
the legality of demonstration activities, and an adjudication 
of the constitutionality of the school symbols would in no 
way have interfered with the proceeding in state court.

A * It was Error to Dismiss as to Those Plaintiffs who wereNot Involved in the State Court Action.----------------"
As shown in the statement, supra, the district court 

dismissed this action in its entirety and as to all plaintiffs 
because of the pendency in state court of an action involving 
£ome of the plaintiffs in which they had raised the same 
federal constitutional issues as a defense. Assuming for 
the moment that it was proper to dismiss as to those plaintiffs 
who were involved in state court, the court below was in error 
m  ignoring the independent claims of the plaintiffs who were 
students at Strom Thurmond High School.

First, the state court action, as initiated by the school 
oflicials, in no way raised or involved the question of the 
rights of the black students vis-a-vis the use of allegedly 
racist school symbols. it was solely an action brought against 
named defendants and the organization to which they belonged 
seeking an injunction to halt certain picketing and demonstration- 
type activities on the grounds that school officials were being 
illegally coerced and intimidated (A. 12-18).

Although allegations were made concerning activities of 
sludents that were claimed to be illegal, no students, and 
certainly not the students who were plaintiffs in the federal

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court action, were named as defendants in state court or were 
as far as the record indicates, served with the complaint 
or the temporary restraining order.

Second, the student plaintiffs are clearly the central 
parties in the federal action. it is their rights that are 
sought to be directly vindicated. with regard to the school 
symbols the non-student federal plaintiffs-state defendants 
have essentially a derivative right as members of the black 
community as a whole to be free of racist symbols at the 
one public high school in the county.

Thus, the court below was faced with the obligation to 
determine the constitutional rights of the student plaintiffs 
that were properly before it. That duty could not be avoided 
by essentially leaving the vindication of their personal 
î*?hts to their problematic adjudication in a state court 
action to which they were not parties and by defendants whose 
claimed rights rested on a different basis.

Directly on point is the decision of a three-judge 
district court in the case of New Left Ed. Project v. Board 
of Regents of the University of Texas, 326 F. Supp. 158

27“

(N.DW Tex. 1970). At issue in that case was the constitu­
tionality of rules of the Texas Board of Regents prohibiting

2/ Juris, postponed, 401 u.S. 935 (1971), appeal dismissed
for want of jurisdiction, _____ u.S. _____, 30 L.Ed.2d 697
(1972). The appeal was dismissed on the ground that the case 
was not properly one for a three-judge court. The Supreme Court did not reach the merits.

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distribution of newspapers on campus. An action was brought 
state court by the Board and a temporary injunction was 

obtained upholding the rules and enjoining the New Left 
Education Project and a number of individuals from distributing 
their newspaper. An action was commenced in federal court by 
the state court defendants to enjoin the enforcement of the 
rules and the prosecution of the state court suit. Subsequently, 
other student organizations and individuals not parties in the 
state action intervened as plaintiffs in federal court and 
sought the same relief.

The district court dismissed as plaintiffs all those
who were parties to the state court suit, but declined to
dismiss the suit in its entirety. Rather, it held that the
intervenors who were not involved in the state proceeding had
the right to have their federal claims adjudicated in federal
court. in so holding, the court rejected arguments similar
to those relied on by the court below in this case. It
pointed out that the remaining plaintiffs were never in state
court and that therefore they could not be bound by any ruling
of that court. The fact that 28 U.S.C. §2283 and rules of
comity might bar some of the plaintiffs their right to
litigate their federal claims in federal court, did not mean
that as to the others the court should ignore:

. . . the strong policy in favor of respectinga Plaintiff's choice of a federal forum for 
litigating his federal claims. 326 F. Supp. at 161.

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As the Supreme Court stated in England v. Board of Medical 
jjxa.min.ers, 375 U.S. 411, 413 (1964), "the right of a party 
plaintiff to choose a Federal court where there is a choice 
cannot be properly denied."

Therefore, it is clear that the ruling of the court 
below, at least as to the student plaintiffs, cannot be 
supported, and its reliance on Atlantic Coast Line Railroad 
C°♦ v* Brotherhood of Locomotive Engineers, 398 U.S. 281 
(1370), was misplaced. First, that case involved the same 
parties, asserting the same rights, in both state and federal 
courts. Secondly, 28 U„S.C. §2283 was directly involved, 
since the federal plaintiffs sought specifically an order 
enjoining the enforcement of the Florida state court injunction. 
Here, on the other hand, the vindication of the rights of the 
student plaintiffs in no way requires an injunction of or 
interference with the state court. Since they have not been 
enjoined by the state court, all they seek is a declaration 
of their rights vis—a—vis the use of the school symbols and 
an injunction that would run solely against the school officials 
and that would simply halt the use of those symbols.

B. The Court Below Committed Error in Dismissing the Action as to the Remainder of the Plaintiffs.
Plaintiffs-Appellants urge further that there was no 

substantial basis for dismissing the action below even as 
to those plaintiffs who were defendants in the state

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action. The thrust of state court action as brought was 
simply to enjoin certain types of demonstration activities 
as being illegal. Once brought into state court, the 
defendants there raised as a matter of defense the legitimacy 

the complaints that gave rise to the complained of demon­
strations. They asked that the ex parte restraining order
be dissolved, and that their rights under the federal

4 /Constitution be established.
But the fact that the McCain—plaintiffs were forced into 

state court is no basis to deny them their right to have 
substantial federal claims adjudicated in a federal forum.
Such an adjudication would in no way interfere with the 
state court proceeding. No injunction of it would in any way 
be required; all that the federal court was asked to decide 
was whether practices at the high school, at best tangentially

2/

2/ Plaintiffs-Appellants concede that in view of the Supreme 
Court's decisions in Younger v. Harris, 401 u.S, 37 (1971), and its companion cases, decided after the filing of this action, 
they could not obtain an injunction halting the pending state court action. Therefore, they agreed in the court below to 
the dropping of the state court judge and the county attorney as defendants (A. 53).
£/ The state court has never acted on the motions of the 
defendants, which were renewed on May 6, 1972, despite their 
pendency^ since November, 1970. Thus, unlike the New Left case. supra, there has never been an adjudication in state court of the federal constitutional claims.
2/ See note 3, supra.

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cslatsd to the gravamen of the state action, were unconsti­
tutional and should be enjoined. Therefore, none of the 
considerations of comity between state and federal courts 
that were involved in Atlantic Coast Line and that are 
embodied in 28 U.S.C. §2283 are involved.

For the foregoing reasons, the order of the court below 
dismissing the complaint should be reversed, and the matter 
remanded for a trial on the merits.

CONCLUSION

Dated: This 26th dayof May, 1972. Respectfully submitted

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
NORMAN CHACHKIN10 Columbus Circle 
New York, N.Y. 10019

LAUGHLIN MCDONALD 1611 Crestwood
Columbia, South Carolina 29206

Attorneys for Plaintiffs-Appellants

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Certificate of Service

I hereby certify that I have served two copies of the 
Brief for Plaintiffs-Appellants on counsel for the Defendants- 
Appellees by depositing the same in the United States mail, 
airmail postage prepaid, addressed to Timothy G. Quinn, Esq., 
Assistant Attorney General, P.0. Box 11549, Columbia, South 
Carolina 29211.

Dated this 26th day of May, 1972.

Attorney for Plaintiffs-Appellants

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