Reed v. Pearson Appellant's Brief

    APPELLANT'S
BRIEF

UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT

NO. 18,536

W ILLIE M. REED, by his father and next friend, WILMER REED,
Appellant

VERSUS

THEODORE B. PEARSON, as Superintendent of Education of Washing­
ton County, Alabama, ET  AL.,

Appellees

Appeal From The United States District Court For

The Southern District Of Alabama



I N D E X

Page
STATEMENT OF THE CASE ....................................................................... 1
FACTS ..............................................................................................................  1
SPECIFICATION OF ERRORS ..................................................................... 3
ARGUMENT ..................................................................................................... 4
CERTIFICATE OF SERVICE ....................................................................... 10

CASES CITED
Page of Brief

Brown V. Board of Education, 347 U. S. 483,
74 S. Ct. 686, 98 L. Ed. 873 ........................................................................... 4
Brown V. Board of Education of Topeka,
349 U. S. 294, 99 L. Ed. 1083, 75 S. Ct. 753 ............................................. 4
Cooper V. Aaron, 358, U. S. 1, 20, 3 L. Ed.
2d. 5, 19, 78 S. Ct. 1401 ................................................................................. 4
Shuttlesworth V. Birmingham Board of Education,
358 U. S. 101, 79 S. Ct. 221, 3 L. Ed. 2d 145 ........................................... 4
Carson V. Board of Education of McDowell County,
227, F. 2d 789 ................................................................................................. 5
Joyner V. McDowell County Board of Education,
244 N. C. 164, 92 S. E. 2d 795, 798 ............................................................  6
Carson V. Warlick, 238 F. 2d 724, Cert, denied
353 U. S. 910, 1 L. Ed. 2d 664, 77 S. Ct. 665 ............................................. 6
Lane V. Wilson, 307 U. S. 268, 274, 59 S. Ct.
872, 83 L. Ed. 1281 ....................................................................................... 7
Henderson V. United States, 339 U. S. 816,
824, 70 S. Ct. 843, 94 L. Ed. 1302 ........................................................... 7
Griffith V. Board of Education of Yancey County,
186 F. Supp. 511 ............................................................................................  8
School Board of City of Charlottesville, Va. V. Allen,
240 F. 2d 59, 63, 64 ......................................................................................  8
Gibson V. Board of Public Instruction of Dade County,
Florida, 246 F. 2d 913 ..................................................................................  8
Bush V. Orleans Parish School Board, 138 F. Supp.
337, 34, Affirmed in 242 F. 2d 156 ........................................................... 8
Gibson V. Board of Public Instructions of Dade County,
Florida, 272 F. 2d 763 ..................................................................................  8
McCoy V. Greensboro City Board of Education,
283 F. 2d 667 ................................................................................................  9

CODE SECTIONS
Tit. 52, Section 298, Code of Alabama ..................................................  11
Tit. 52, Sec. 61 (1), et seq., Code of Alabama
(also known as the Pupil Placement Law of Alabama) ....................... 11



WILLIE M. REED, by his father and next friend, WILMER REED,
Appellant

VERSUS

THEODORE B. PEARSON, as Superintendent of Education of Wash­
ington County, Alabama, ET AL.,

Appellees

NO. 18,536

A P P E L L A N T ' S  B R I E F  

STATEMENT OF CASE

The appellant, plaintiff below, filed his suit in the United States 
District Court, Southern District of Alabama, to require certain of ap­
pellees, who are the Superintendent of Education and County Board of 
Education of Washington County, Alabama to admit him as a student in 
a public school of Washington County, Alabama from which he is 
alleged to be excluded because of race or color in violation of Civil 
Rights Act, Section 1983, Title 42, United States Code, and the Constitu­
tion of the United States. (Pages 1 through 20 of the transcript.)

The appellees filed a motion to dismiss. (Pages 23 and 24 of the 
transcript.)

After oral argument on the motion to dismiss the Honorable Daniel 
H. Thomas entered an order granting the appellees motion to dismiss, 
but failed to state on which grounds of appellees motion the order was 
granted, or his reasons therefor. (Pages 24 and 25 of the transcript.)

Upon the appellants failure to amend his complaint to meet the 
ruling of the Court, the Court then entered an order finally dismissing 
the appellants complaint. (Page 25 of the transcript.)

It is from these two orders of the Court that this appeal is prose­
cuted.

FACTS
The appellant was born on September 24, 1954 and was of the age 

of 6 years on September 24, 1960 and prior to October 1, 1960. Title 52, 
Section 298, the Code of Alabama provides: “ A child who is six years 
of age on or before October 1st shall be entitled to admission to the 
public elementary school at the opening of such school for that year or 
as soon as practicable thereafter.” The appellant lives 1.2 miles from

Reeds Chapel School, a public elementary school in Washington County,
1



Alabama, which is attended by the appellants neighbors, relatives, and 
the children in the community and area in which appellant lives. There 
is no other public school in that community.

Prior to the opening of school in the fall of 1960 appellant’s father 
received a letter from the trustees of Reeds Chapel School advising him 
that his child (appellant) would be denied admission to said school be­
cause “ it is our desire to postpone integration as long as possible in 
Alabama and because of the resolution which had been passed by the 
Washington County Board of Education placing children in the same 
school attended by their parents and stating that placement of new 
students would be made by the Board of Education.

On August 23, 1960, the appellant’s father wrote the School Board, 
“ I formally apply to you for the placement of my child in a school for 
the 1960-61 school year and request that you inform me of this place­
ment as soon as possible in order that I might have it in time to enroll 
my son, Willie Reed, in school on September 1, 1960.” (Page 12 of the 
transcript.)

The above letter was read by the School Board at a meeting on 
August 25, 1960 but the Board took no action on it other than setting a 
hearing on the matter for the last Friday in September, 1960. (Page 14 
of the transcript.) The Board also advised the appellant’s father of the 
resolution they had passed and which had been given as one of the 
reasons that the trustees were denying the appellant admission to the 
school in his community. Appellant alleges that said resolution is arbi- 
tuary and unconstitutional in that it has as its purpose the denial of 
his admittance to a public school in Washington County, Alabama, be­
cause of his race or color.

As directed by the Washington County Board of Education the 
appellant and his attorney met with the Board on the last Friday of 
September, 1960, and presented to the said Board of Education all facts 
which were relevant to the admittance of appellant as a pupil in Reeds 
Chapel School. The Board did not advise appellant or his attorney of 
any decision made in the matter but wrote the appellant’s father on 
November 30, 1960 and requested that he meet with the trustees of 
Reeds Chapel School on December 3 for the purpose of discussing the 
situation stating that “ it was the opinion of the Board that if you and 
the trustees would meet and discuss the matter, that a reasonable solu­
tion could be obtained.” (Page 17 and 18 of the transcript.) Appellant’s 
father met with the trustees of Reeds Chapel School as requested and 
their meeting resulted in an agreement and understanding that appellant 
would be admitted as a pupil in Reeds Chapel School beginning after the 
Christmas Holidays and. on January 3, 1961. This agreement and under­
standing was apparently acquiesced in by the Washington County Board 
of Education because one member of the Board subsequently told ap­
pellant’s father to enroll his child ih the school on that day.

Appellant was enrolled as a student in Reeds Chapel School on Jan­
uary 3, 1961 and attended the school through January 6, 1961. On Jan­
uary 6, 1961, the appellees Minnie Reed, Maggie Jane Orso, Viola Snow

2



and Virginia Weaver appeared at the school and created a disturbance 
and threatened further disturbances and violances if appellant was not 
expelled from the school. The principal of the school, Mrs. Margaret 
Dickinson, dismissed the school early on January 6, 1961 and sent the 
children home because of threats and disturbances and the school was 
closed for the period January 9-13, 1961.

By letter of January 11, 1961, the Washington County Board of 
Education advised appellant’s father that his child “ is not for the time 
being placed in the school.”  The Washington County Board of Education 
sent the appellant’s father a copy of their letter to the principal and 
teachers of Reeds Chapel School of January 11, 1961 instructing them 
to re-open the school on Monday, January 16, 1961, and instructing and 
notifying them “ to enroll, teach and give report cards to only those 
pupils who were enrolled and in attendance prior to the Christmas Holi­
days which began on December 16, 1961,”  and which had the effect of 
expelling appellant from school.

Appellant’s complaint set out that the community of Reeds Chapel 
is populated by a people of mixed blood, that appellant’s grandfathers 
were a part of this mixed blood group and were related to the great 
majority of the patrons of Reeds Chapel School, that appellant’s grand­
mothers were not of this mixed blood group, and that appellant was 
being denied admission to this school because of his race and color 
acquired through his grandmothers.

The complaint further sets out that the appellant has diligently 
attempted to exhaust the administrative remedy for his placement in 
school as provided by Title 52, Section 61 (1), et seq, of the Code of 
Alabama, that the Board of Education of Washington County, Alabama 
has unreasonably, unnecessarily and arbitrarily delayed the making of 
a decision for the placement of petitioner in a public school, resulting 
in the deprivation of appellant’s right to a public education for and on 
account of his race and color.

Appellant concludes his complaint with the following prayer:

“ Wherefore, the premises considered your petitioner prays and 
moves this Honorable Court upon the presentation of this complaint to 
cause such proceedings to be had in the premises and to enter such 
orders and decrees as will cause your petitioner to be enrolled in Reeds 
Chapel School, a public school inWashington County, Alabama, without 
discrimination against him by race or color and as will afford to your 
petitioner protection in his civil and constitutional rights in the 
premises;

Pettioner prays for all such other, further and general relief as to 
which he may be entitled, the premises considered, as petitioner will 
ever pray, etc.”

SPECIFICATION OF ERRORS
1. The trial court erred in its order of July 7, 1961, granting the 

defendants motion to dismiss the appellant’s complaint.

3



2, The trial court erred in its order of August 21, 1961 dismissing 
the appellant’s complaint.

ARGUMENT
The District Court Judge neglected to tell us which, if any, of the 

defendants grounds of motion to dismiss he granted their motion on. 
We can, therefore, only speculate as to his reasons and present the 
reasons why he should not have dismissed the complaint as best we can.

For many years prior to 1954, the Supreme Court of the United 
States had stood by its doctrine that “ separate but equal” school facili­
ties for negroes, raided bloods and whites satisfied the constitutional 
requirements of equal protection of the law and equal privileges to all 
Citizens of the United States.

May 17, 1954, the Supreme Court overruled this long established 
doctrine in Brown V. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 
98 L. Ed. 873, and held that separation by race and color of school stu­
dents, though teachers, curricula, and facilities might be equal, was 
inherently discriminatory and contrary to the requirements of the Con­
stitution of the United States.

In Brown V. Board of Education of Topeka, 349 U. S. 294, 99 L, Ed. 
1083, 75 S. Ct. 753 the Supreme Court, in what has been called the im­
plementing decision, held that the district courts can best resolve the 
questions arising in the transition from equal but separate schools to the 
new order and that in doing so they should be guided by equitable 
principles. This decision was reaffirmed in Cooper V. Aaron, 358 U. S. 1, 
20, 3 L. Ed. 2d 5, 19, 78 S. Ct. 1401 wherein it was held that the princi­
ple was not to be sacrificed or yielded to violence and disorder.

In order to delay, oppose or nullify the principles declared by the 
Supreme Court the various Southern legislatures passed numerous acts 
with more haste than reason. A common name given to one such act is 
the Pupil Placement Law and among the states enacting it was our State 
of Alabama. It provides among other things that “ each local board o f 
education shall have full and final authority and responsibility for the 
assignment, transfer, and continuance of all pupils among and within 
the public schools within its jurisdiction— .”

The constitutionality of the Pupil Placement Act of 1955, as the 
Alabama statute is known, was upheld in Shuttlesworth V. Birmingham 
Board of Education, 358 U. S. 101, 79 S. Ct. 221, 3 L. Ed. 2d 145, “upon 
the limited grounds on which the District Court rested its decision,”  
which was that the law was not unconstitutional on its face.

We must, therefore, deal with this case in the light of the Alabama 
Pupil Placement Law and Shuttlesworth V. Birmingham Board of Edu­
cation supra. The most similar cases the author of this brief has been 
able to find are the Carson cases which will be discussed at length fol­
lowing:

Lionel C. Carson, an infant, by his next friend, Martin A. Carson, et

4



als, filed an action in the United States District Court for the Western 
District of North Carolina, at Asheville, against the Board of Education 
of McDowell County, a body corporate “ to require provisions for them 
of educational facilities equal to those provided for white children and 
to obtain injunctive relief against discrimination and judgment declar­
ing children’s rights.” The United States District Court for the Western 
District of North Carolina, at Asheville, dismissed the action on ground 
the United States Supreme Court decision had made inappropriate the 
relief prayed for in the complaint, and the children appealed to the 
United States Court of Appeals, Fourth Circuit.

The decision in Carson V. Board of Education of McDowell County, 
227 F. 2d 789, recites that, “ The complaint alleged that the plaintiffs 
were not allowed to attend schools maintained by defendants for white 
children in the town of Old Fort in McDowell County but were required 
to go to a school in Marion fifteen miles away and that this discrimi­
nation was made soieiy on account of race and color." The complaint 
was filed prior to the United States Supreme Court’s decision in Brown 
V. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873. The 
United States Court of Appeals, Fourth Circuit, held that the decision 
of the Supreme Court just mentioned had made inappropriate the relief 
asked as to separate but equal facilities but held otherwise as to the 
relief asked for “ a declaratory judgment establishing the rights of 
plaintiffs in the premises.”  As to this aspect of the complaint the Court 
said:

“Discrimination on account of race or color was alleged 
with respect to the right to attend schools in Old Fort and the 
removal of this discrimination as well as the declaration of the 
rights of plaintiffs was asked. The decision of the Supreme 
Court did not destroy or restrict these rights, except with re- 
soect to the right to separate schools, and plaintiffs were en­
titled to have their prayers for declaratory judgment as well as 
for general injunctive relief considered in the light of the 
Supreme Court decision. The decision appealed from must be 
vacated, therefore, and the case remanded to the District Court 
in order that this may be done.

The Court in addition took note of the fact that the State of North Caro­
lina had passed an Act of March 30, 1955, entitled, “an Act to Provide 
for the Enrollment of Pupils in Public Schools,”  Chapter 366 of the 
Public Laws of North Carolina of the Session of 1955, providing an ad­
ministrative remedy for persons who feel aggrieved with respect to their 
enrollment in the public schools of the state, and directed the District 
Court that consideration should be given to this statute in subsequent 
proceedings before it; particularly so with respect to the well settled 
rule of law, “ that the Courts of the United States will not grant injunc­
tive relief until administrative remedies have been exhaustd.”  The Court 
concluded:

“The order appealed from will accordingly be vacated and 
the case remanded to the District Court with direction to con­
sider it in the light of the decisioh Of the Supreme Court in the 
school segregation cases and of the North Carolina statute 
above mentioned and with power to stay proceedings therein 
pending the exhaustion of administrative remedies under the 
statute and to order a repleader if this may seem desirable”

5



After this decision, the Supreme Court of North Carolina in an 
action to which two of the same plaintiffs were parties, rendered a de­
cision on May 23, 1956, construing the North Carolina Act of March 30, 
1955, Joyner V. McDowell County Board of Education, 244 N. C. 164, 
92 S. E. 2d 795, 798, in which they held that application and appeal 
under the administrative procedure in North Carolina “must be prose­
cuted in behalf of the child or guardian by the interested parent, 
guardian or person standing in loco parentis to such child or children 
respectively and not collectively,” and that an attempt to require “ the 
immediate integration of all negro, pupils” in the particular school was 
a procedure “ neither contemplated nor authorized by statute.”

The cause remanded to the United States District Court proceeded 
as follows: '

The plaintiffs , “ did not attempt, to comply with the provisions of 
the statute as so interpreted by the Supreme Court of North Carolina, 
but on July 11, 1956, counsel who was representing them before this 
Court wrote a letter to the secretary of the Board- of Education, inquir­
ing what steps were being taken for the admission of negro children to 
the Old Fort School. The secretary replied that “ inasmuch as no negro 
pupil had made application, nor has any parent or person standing in 
loco parentis made application for any negro child to attend school in 
the; town of Old Fort for the school year 1956-57, the Board had had no 
cause to take any action in this connection.”

After receiving that reply the plaintiffs on the 12th day of July, 
1956 moved in the action pending in the United States District Court 
“ to file a supplemental complaint in which, without alleging compliance 
with the requirements of the North Carolina statute as interpreted by 
the Supreme Court, they asked a declaratory judgment and injunctive 
relief with respect to their right to attend the Old Fort school. The 
District Judge denied the motion on the ground that plaintiffs had not 
exhausted their administrative remedies and stayed proceedings in the 
cause until same should be exhausted, but stated that as soon as it was 
made to appear that they had been exhausted, he would grant such relief 
as might be appropriate in the premises.”

Upon the denial of the motion, application for writ of mandamus 
was filed in the United States Court of Appeals, Fourth Circuit, to re­
quire the District Judge to vacate the order staying proceedings, to 
allow the supplemntal pleading to be filed and to proceed with the cause 
“as though the Pupil Enrollment Act had never been enacted.”

In denying the writ of mandamus the United States Court of Ap­
peals, Fourth Circuit, in Carson V. Warlick, 238 F. 2d 724, again held 
that it nowhere appeared that the plaintiffs had “ exhausted their ad­
ministrative remedies under the North Carolina Pupil Enrollment Act,” 
and were “ not entitled to the relief which they seek in the court below 
until these administrative remedies have been exhausted.” The Court 
said that, “while the presentation of the children at the Old Fort school 
appears to have been sufficient as the first step in the administrative 
procedure provided by statute, the prosecution of a joint or class pro­

6



ceeding before the school board was not sufficient under the North 
Carolina statute as the Supreme Court of North Carolina pointed out in 
its opinion,—

The Court held that the Pupil Enrollment Act of North Carolina was 
not unconstitutional.

Next the Court discussed what it meant by exhaustion of the ad­
ministrative remedy:

“ It is argued that the statute does not provide an adequate adminis­
trative remedy because it is said that it provides for appeals to the 
Superior and Supreme Courts of the State and that these will consume 
so much time that the proceeding for admission to a school term will 
become moot before they can be completed. It is clear, however, that 
the appeals to the courts which the statute provides are judicial, not 
administrative remedies and that, after administrative remedies before 
the school boards have been exhausted, judicial remedies for denial of 
constitutional rights may be pursued at once in the federal courts with­
out pursuing state court remedies. Lane V. Wilson, 307 U. S. 268, 274, 
59 S. Ct. 872, 83 L. Ed. 1281. Furthermore, if administrative remedies 
before a school board have been exhausted, relief may be sought 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.”

The Court continued: “ There is no question as to the right of these 
school children to be admitted to the schools of North Carolina without 
discrimination on the grounds of race. They are admitted, however, as 
individuals, not as a class or group; and it is as individuals that their 
rights under the constitution are asserted. Henderson V. United States, 
339 U. S. 816, 824, 70 S. Ct. 843, 94 L. Ed. 1302.

Near its conclusion the Court deplored dilatory tatics by state offici­
als to deprive citizens of their constitutional rights but did not attempt 
to predict its holding in such a case. They said:

“The federal courts should not condone dilatory tactics or 
evasion on the part of state officials in according to citizens of 
the United States their rights under the Constitution, whether 
with respect to school attendance or any other matter; but it is 
for the state to prescribe the administrative procedure to be 
followed so long as it does not violate constitutional require­
ments, and we see no such violation in the procedure here re­
quired.”
The Supreme Court of the United States apparently approved the 

holding in the case denying certiorari, No. 748, 353 U. S. 910, 1 L. Ed 
2d 664, 77 S. Ct. 665, March 25, 1957.

In summary these series of cases give us the proposition that where 
a complaint is filed alleging that a student is denied admission to school 
because of race or color, his complaint is not to be dismissed because 
he had failed to exhaust his administrative remedy but is to be held in 
abeyance until he does. If the District Judge dismissed the complaint 
because he . was of the opinion appellant had failed to exhaust his ad­

7



ministrative remedy, he erred. He should have held the complaint in 
abeyance as ordered by the Circuit Court on the first appeal in the 
Carson case.

A further answer to the question of whether appellant exhausted 
his administrative remedy is that it would have been futile. He tried 
for five months, lost five months of schooling. Finally when he was ad­
mitted it was not done by any formal order or decision of the School 
Board, rather by letting the School Trustees make an agreement with 
the appellant’s father that he be admitted. Then when some of the com­
munity made a disturbance at the school, appellant was expelled. The 
language of the court in Griffith V. Board of Education of Yancey 
County, 186 F. Supp. 511 (1960) is as pertinent here as in that case:

“ In addition, the record in this case is replete with evidence 
that, had plaintiffs not exhausted their administrative remedies, 
that to have done so would have been a futile and vain thing,— 
the evidence indicated may dilatory tactics and evasions on the 
part of the defendant which obviously denied plaintiffs citizens 
of the United States, their rights under the Constitution.”

And this Honorable Court quoted Chief Judge Parker of the Fourth 
Circuit in School Board of City of Charlottesville, Va. V. Allen, 4 Cir. 
1956, 240 F. 2d 59, 63, 64, and held in Gibson V. Board of Public Instruc­
tion of Dade County, Florida, 246 F. 2d. 913:

“—and equity does not require the doing of a vain thing 
as a condition of relief.”
While the Gibson cases are different from the Carson cases, they 

are not contrary, they do not overrule them, they merely supplement 
them. In the Carson cases the plaintiffs petitioned for admission to a 
particular school, the Old Fort School, while in the Gibson cases the 
plaintiffs had allegedly unsuccessfully petitioned the Board of Public 
Instructions of Dade County, Florida, for abolition of racial segregation 
in public schools of the county pursuant to the so called implementing 
decisions. The Gibson case was subsequently filed in the United States 
Court for declaritory and injunctive relief. The District Court dismissed 
the complaint on motion of the defendant but holding that the complaint 
did not set forth a justicable controversy and did not allege the plaintiffs 
had been denied the right to attend any particular school. This Honor­
able Court in Gibson V. Board of Public Instruction of Dade County, 
Florida, supra, held that the issue of justiciable controversy under such 
a complaint had been settled in Bush V. Orleans Parish School Board, 
138 F. Supp. 337, 34, affirmed in 5 Cir. 1957, 242 F 2d 156, and that so 
long as a stated policy of operating the schools on a nonintegrated basis 
“ remained” it would be premature to consider the effect of the Florida 
law as to the assignment of pupils to particular schools.

After reversal and remandment of the above case the District Court 
heard the case and entered a decree declaring the segragation provisions 
of the Florida Constitution and statutes unconstitutional, that the Florida 
Pupil Placement Law was in effect a system of desegregation, and de­
nying plaintiffs further relief, In effect, leaving the plaintiffs to their 
administrative relief. Plaintiffs again appealed and in Gibson V. Board

8



of Public Instruction of Dade County, Florida, 272 F. 2d. 763, this Hon­
orable Court held, as on the first appeal, that it was premature to con­
sider the effect of the Pupil Placement Law so long as there were only 
segregated schools in the county and that “ the district court should 
proceed in accordance with this opinion and with the two opinions of 
the Supreme Court in Brown V. Board of Education, supra, and should 
retain jurisdiction during the period of transition.

If there is a difference in the Gibson cases and this case, it is only 
in the extent of the relief asked. They sought desegregation. Appellant 
seeks ony his own admission to a school without discrimination against 
him on account of his race and color, a school attended by his own 
relatives.

It would, indeed, be a strange system of law if the Federal Courts 
were open to a group of colored persons petitioning to integregate an 
entire school system in which they were being discriminated against on 
account of race and color, but were closed to one little mixed blood 
child who had been denied admission to the neighborhood school at­
tended by his relatives, likewise on account of his race and color.

The weak and innocent ought to be protected by our laws as well 
as groups with strength. Certainly the child appellant has a cause of 
action in the Federal Courts.

Another case involving the same rules of law as applied in this one 
is that of McCoy V. Greensboro City Board of Education, 283 F 2d. 667. 
In it an action was brought by four negro children against the Greens­
boro City Board of Education to secure the right of the children to 
attend a public school of the city on equality with white children. The 
defendants filed an answer and the cause was submitted on their 
answer and upon certain affidavits and exhibits which disclosed the 
action of the school Board complained of. The facts were that after the 
appellants had twice been denied admission on administrative applica­
tion to a white school and after this suit was filed the Board combined 
by resolution the white and colored schools but subsequently granted 
applications for reassignment of all of the white students and white 
teachers sb that the schools ended up as segregated as before. The Dis­
trict Judge’s dismissal of the complaint was based on the ground that 
the appellants had not after the above action of the School Board peti­
tioned again by administrative action for a re-assignment. The Fourth 
Circuit Court of Appeals in reversing this case said that while this suit 
would have become moot if during its pendency the Board had granted 
the appellants request, that this had not taken place, rather the attempts 
of the appellants was completely frustrated; and that such conduct could 
not be approved. The case was reversed with direction for the District 
Court tq retain jurisdiction of the case so that the Board could re-assign 
the minor plaintiffs to an appropriate school in accordance with their 
constitutional rights, and so that plaintiffs, if those rights are improper­
ly directed may apply to the Court for further relief in the pending 
action.

The instant case is very similar to the McCoy case and differs from

9



it only in insignificant ways. There is only one plaintiff in this 
case, where there were several in that case, but that should make no 
difference. Similarly the plaintiff was first denied admission to the 
school to which he sought to attend, and then permitted to attend, but 
subsequently having his efforts frustrated, and ending up in the same 
position he had been before. The McCoy case held that in this situation 
he did not have to re-apply under the administrative remedy.

It is respectfully submitted that this cause should be reversed and 
the United States District Court directed to proceed forthwith to take 
such steps and hold such proceedings as necessary to grant the plaintiff 
relief from further discrimination against him on account of his race 
and color. If in this, appellant be mistaken, then most certainly under 
the authority hereinabove cited the cause should be reversed with direc­
tion to the United States District Court to retain jurisdiction thereof 
pending further effort by the plaintiff to exhaust his administrative 
remedy.

Respectfully submitted,

As Attorney for Willie M. Reed, 
by his father and next friend, W il- 
mer Reed.

Grady W. Hurst, Jr.
Attorney 
P. O. Box 331 
Chatom, Alabama 
of Counsel for Appellant.

CERTIFICA TE OF SERVICE

I, Grady W. Hurst, Jr., of Counsel for Appellant, Willie M. Reed, 
by his father and next friend, Wilmer Reed, in the cause as styled on 
the front of this brief, hereby certify that I have caused a copy of the 
foregoing brief to be served upon Hon. Dennis Porter, Scott and Por­
ter, Attorneys, Chatom, Alabama, and upon Hon. Albert J. Tully, Attor­
ney at Law, Milner Building, Mobile, A labama, of Counsel for the 
Appellees, by depositing a copy of same in the United States Mail, 
postage prepaid, addressed to each of them respectively at their ad­

dresses shown above, on this the ............... day of February, 1962.

Grady W. Hurst, Jr. 
Attorney for Appellant.

10



A P P E N D I X
Tit. 52, Section 298, Code of Alabama

298. Minimum age at which child may enter.—A child who is six 
years of age on or before October first shall be entitled to admission to 
the public elementary schools at the opening of such schools for that 
school year or as soon as practicable thereafter; a child who is under 
six years of age on October first shall not be entitled to admission to 
such schools during that school year, except that a child who becomes 
six years of age on or before February first may, on approval of the 
board of education in authority, be admitted at the beginning of the 
second semester of that school year to schools in school system having 
semiannual promotions of pupils.

Tit. 52, Sections 61 (1) thru 61 (12)
61 (1). Legislative findings and recognitions.—The legislature finds 

and declares that the rapidly increasing demands upon the public 
economy for the continuance of education as a public function and the 
efficient maintenance and public support of the public school system 
require, among other things, consideration of a more flexible and selec­
tive procedure for the establishment o f  units, facilities and curricula 
and as to the qualification and assignment of pupils.

The legislature also recognizes the necessity for a procedure for the 
analysis of the qualifications, motivations, aptitudes and characteristics 
of the individual pupils for the purpose of the placement, both as a 
function of efficiency in the educational process and to assure the 
maintenance of order and good will indispensable to the willingness of 
its citizens and taxpayers to continue an educational system as a public 
function, and also as a vital function of the sovereignty and police power 
of the state.

61 (2). Continuing studies required; general reallocation of pupils 
considered destructive.— To the ends aforesaid, the state board of edu­
cation shall make continuing studies as a basis for general reconsider­
ation of the efficiency of the educational system in promoting the prog­
ress of pupils in accordance with their capacity and to adapt the curricu­
lum to such capacity and otherwise conform the system of public edu­
cation to social order and good will. Pending further studies and 
recommendations by the school authorities the legislature considers that 
any general or arbitrary reallocation of pupils heretofore entered in the 
public school system according to any rigid rule of proximity of resi­
dence or in accordance solely with request on behalf of the pupil would 
be disruptive to orderly administration, tend to invite or induce dis­
organization and impose an excessive burden on the available resources 
and teaching and administrative personnel of the schools.

61 (3). Reallocation of pupils prohibited pending further studies 
and legislation.—Pending further studies and legislation to give effect 
to the policy declared by this chapter, the respective city and county 
boards of education, hereinafter referred to as “ local boards of educa­
tion,” are not required to make any general reallocation of pupils here­
tofore entered in the public school system and shall have no authority 
to make or administer any general or blanket order to that end from 
any source whatever, or to give effect to any order which shall purport
to or in effect require transfer or initial or subsequent placement of any 
individual or group in any unit or facility without a finding by the local 
board or authority designated by it that such transfer or placement is 
as to each individual pupil consistent with the test of the public and 
educational policy governing the admission and placement of pupils in 
the public school system prescribed by this chapter.

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61 (4). Authority and responsibility of local boards for assignment, 
transfer and continuance of pupils; factors to be considered.— Subject 
to appeal in the limited respect herein provided, each local board of 
education shall have full and final authority and responsibility for the 
assignment, transfer and continuance of all pupils among and within 
the public schools within its jurisdiction, and may prescribe rules and 
regulations pertaining to those functions. Subject to review by the board 
as provided herein, the board may exercise this responsibility directly 
or may delegate its authority to the superintendent of education or other 
person or persons employed by the board. In the assignment, transfer 
or continuance of pupils among and within the schools, or within the 
classroom and other facilities thereof, the following factors and the 
effect or results thereof shall be considered, with respcet to the individ­
ual pupil, as well as other relevant matters: Available room and teach­
ing capacity in the various schools; the availability of transportation 
facilities; the effect of the admission of new pupils upon established 
or proposed academic programs; the suitability of established curricula 
for particular pupils; the adequacy of the pupil’s academic preparation 
for admission to.a particular school and curriculum;: the scholastic apti­
tude and relative intelligence or mental energy or ability of the pupil; 
the psychological, qualification of the pupil for the type of teaching and 
associations involved; the effect of admission of the pupil upon the 
academic progress of other students in a particular school or facility 
thereof; the effect of admission upon prevailing academic standards at 
a particular school; the psychological effect upon the pupil of attendance 
at a particular school; the possibility or threat of friction or disorder 
among pupils or others; the possibility of. breaches Of the peace or ill 
will or economic retaliation within the community; the home environ­
ment of the pupil; the maintenance or severance of established social 
and psychological relationships with other pupils and with teachers; the 
choice and interests of the pupils; the morals, conduct, health and pen- 
sonal standards of the pupil; the request or consent of parents or 
guardians and the reasons assigned therefor.

Local boards of education may require the assignment of pupils to 
any or all schools within their jurisdiction on the basis of sex, but 
assignments of pupils of the same sex among schools reserved for that 
sex shall be made in the light of the other factors herein set forth.

61 (5). Agreement for admission of students residing in adjoining 
districts; transfer of funds.—Local boards of education may, by mutual 
agreement, provide for the admission to any school of pupils residing 
in adjoining districts whether in the same or different counties, and 
for transfer of school funds or other payments by one board to another 
for or on account of such attendance.

61 (6). Assignment and transfer of teachers.— Subject to the pro­
visions of law governing the tenure of teachers, local boards of educa­
tion shall have authority to assign and re-assign or transfer all teachers 
in schools within their jurisdiction.

61 (7). Objection to assignment of pupils; request for transfer; 
action by board; hearings; investigations.—A parent or guardian of a 
pupil may file in writing with the local board objections to the assign­
ment of the pupil to a particular school, or may request by petition in 
writing assignment or transfer to a designated school or to another 
school to be designated by the board. Unless a hearing is requested, the 
board shall act upon the same within 30 days, stating its conclusion. If 
a hearing is requested the same shall be held beginning within 30 days 
from receipt by the board of the objection or petition at a time and 
place within the school district designated by the board.

The board may itself conduct such hearing or may designate not 
less than three of its members to conduct the same and may provide

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that the decision of the members designated or a majority thereof shall 
be final on behalf of the board. The board of education is authorized 
to designate one or more of its members or one or more competent 
examiners to conduct any such hearings, and to take testimony, and to 
make a report of the hearings to the entire board for its determination. 
No final order shall be entered in such case until each member of the 
board of education has personally considered the entire record.

In addition to hearing such evidence relevant to the individual pupil 
as may be presented on behalf of the petitioner, the board shall be 
authorized to conduct investigations as to any objection or request, in­
cluding examination of the pupil or pupils involved, and may employ 
such agents and others, professional and otherwise, as it may deem 
necessary for the purpose of such investigation and examinations.

For the purpose of conducting hearings or investigations hereunder, 
the board shall have the power to administer oaths and affirmations and 
the power to issue subpoenas in the name of the State of Alabama to 
compel the attendance of witnesses and the production of documentary 
evidence. All such subpoenas shall be served by the sheriff or deputy 
of the county to which the same is directed; and such sheriff or deputy 
shall be entitled to the same fees for serving such subpoenas as are 
allowed for the service of subpoenas from a circuit court. In the event 
any person fails or refuses to obey a subpoena issued hereunder, any 
circuit court of this state within the jurisdiction of which the hearing is 
held or within the jurisdicton of which said person is found or resides, 
upon application by the board or its representatives, shall have the 
power to compel such person to appear before the board and to give 
testimony or produce evidence as ordered; and any failure to obey such 
an order of the court may be punished by the court issuing the same as 
a contempt thereof. Witnesses at hearings conducted under this chapter 
shall be entitled to the same fees as provided by law for witnesses in 
the circuit courts, which fee shall be paid as a part of the costs of the 
proceeding.

61 (8). Child not to be compelled to attend school in which races 
commingled; objection and notice by parent; when child entitled to aid 
for education.—Any other provisions of law notwithstanding, no child 
shall be compelled to attend any school in which the races are com­
mingled when a written objction of the parent or guardian has been filed 
with the board of education. If in connection therewith a requested as­
signment or transfer is refused by the board, the parent or guardian 
may notify the board in writing that he is unwilling for the pupil to 
remain in the school to which assigned, and the assignment and further 
attendance of the pupil shall thereupon terminate; and such child shall 
be entitled to such aid for education as may be authorized by law.

61 (9). When action of board final; appeals.—The findings of fact 
and action of the board shall be final except that in the event that the 
pupil of the parent or guardian, if any, of any minor or, if none, of the 
custodian of any such minor shall, as next friend, file exception before 
such board to the final action of the board as constituting a denial of 
any right of such minor guaranteed under the Constitution of the United 
States, or any right under the laws of Alabama, and the board shall not, 
within fifteen days reconsider its final action, an appeal may be taken 
from the final action of the board, on such ground alone, to the circuit 
court in equity of the judicial circuit in which the school board is locat­
ed, by filing with the register within thirty (30) days from the date of 
the board’s final decision a petition stating the facts relevant to such 
pupil as bearing on the alleged denial of his rights under the federal 
Constitution, or state law, accompanied by bond with sureties approved 
by the register, conditioned to pay all costs of appeal if the same shall 
not be sustained. A copy of such petition and bond shall be filed with

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the president of the board. The filing of such a petition for appeal shall 
not suspend or supersede an order of the board of education; nor shall 
the court have any power of jurisdiction to suspend or supersede an 
order of the board issued under this chapter before the entry of a final 
decree in the proceeding, except that the court may suspend such an 
order upon application by the petitioner made at the time of the filing 
of the petition for appeal, after a preliminary hearing, and upon a prima 
facie showing by the petitioner that the board has acted unlawfully to 
the manifest detriment of the child who is the subject of the proceeding.

On such appeal the circuit court may, as in other equity cases, sum­
mon a jury for the determination of any issue or issues of fact presented. 
Appeal to the supreme court of Alabama may be taken from the decision 
of the circuit court in the same manner as appeals may be taken in other 
suits in equity, either by the appellant or by such board of education.

61 (10). Attorney general to assist board; costs to be paid from 
local school funds.— The board before whom any objection or proceed­
ing with respect to the placement of pupils is pending may, upon au­
thorization in writing of a majority of the board, request the attorney 
general of Alabama to appear in such proceedings as amicus curiae to 
assist the board in the performance of its judicial functions and to 
represent the public interest. Expenses of court reporters, subpoenas, 
witness fees and other costs of such proceedings approved by the board 
shall be the obligation of the city or county involved, and shall be paid 
from the public school funds of such city or county.

61 (11). Local boards constituted judicial tribunals.—Since the 
determination of the matters required to be considered by boards of 
education pursuant to the provisions of section 61 (4) hereof involved 
determinations and inquiries of a judicial character of the most funda­
mental importance in the administration of justice and the maintenance 
of peace and order within the State of Alabama, all local boards of edu­
cation are hereby constituted judicial tribunals, and the members there­
of judicial officers within the meaning and intent of article VI of the 
Constitution of Alabama. Said local boards of education are hereby in­
vested with powers of a judicial nature to the extent required for the 
proper performance of the responsibilities entrusted to them by this 
chapter, and the exercise of said powers shall be subject to the provisions 
of said article of the Constitution and clothed with the immunities of 
all other judicial tribunals and officials of the state.

61 (12). Immunity of board and agents from civil or criminal lia­
bility based on official findings and statements.—No board of education 
or member thereof, nor its agents or examiners, shall be answerable to 
any charge of libel, slander, or other action, whether civil or criminal, 
by reason of any finding or statement contained in the written findings 
of facts or decisions or by reason of any written or oral statements 
made in the course of proceedings or deliberations provided for under 
this chapter.

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