Covington v. Edwards Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    I n  THE

Supreme dnurt of tl|J0 InttTft States
October Term, 1959 

No..................

H elen  C ovington, et al.,
Petitioners,

—v.—

J. S. E dwards, Superintendent of Schools of 
Montgomery County, North Carolina, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

J. K en n eth  L ee 
P. 0. Box 645 
Greensboro, North Carolina

C onrad 0 . P earson
203^> E. Chapel Hill Street 
Durham, North Carolina

T hubgood M arshall 
J ack  Greenberg

10 Columbus Circle 
New York 19, New York
Counsel for Petitioners

E lwood H. Chisolm  
J ames M. N abrit, III 
F ran k  D. R eeves 
S pottswood W. R obinson , III

Of Counsel



I N D E X
PAGE

Citations to Opinions Below ...... - ............. -.................  1

Jurisdiction ........ .....................................-.......................  2

Question Presented .......-...............................................  2

Constitutional and Statutory Provisions Involved .... 2

Statement .............................. - ... —................ .............. — 3

Reasons for Granting the Writ ....... ............. -............  6

Conclusion ................. ........ -..... -----...................-.............  20

Appendix .... .... ..........................-....................................  21

North Carolina Assignment and Enrollment of
Pupils Act - ................................................. - ......  21

Opinion of the District Court...........-............ -......  24

Opinion of the Court of Appeals ........................— 29

Decree of the Court of Appeals........ ............ -......  35

T able of Cases :

Brown v. Board of Education, 347 U. S. 483, 349 U. S.
294 ......................... ..... ..........................3-8,11,13,16,17,19

Buchanan v. Warley, 245 U. S. 60 ...................-............  U

Carson v. Board of Education of McDowell County,
227 F. 2d 789 (4th Cir. 1955) ...................-........... - -  12

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) .......  12
Cooper v. Aaron, 358 U. S. 1 ................................ 6, 7, 8, 9,19



PAGE

Gibson v. Board of Public Instruction of Dade 
County, 246 P. 2d 913 (5th Cir. 1957); 170 F. Supp.
454 (D. C. Fla. 1959) .................................................. 12,13

Gulf Oil Corp. v. Gilbert, 330 U. S. 501....................... 16

Hickman v. Taylor, 329 U. S. 495 ................................  16
Holland v. Board of Public Instruction, 258 F. 2d 730

(5th Cir. 1958) ........................ ................................... 14
Holt v. Baleigh City Board of Education, 265 F. 2d

95, 98 (4th Cir. 1959) ..................................................  12,18
Hurd v. Hodge, 334 U. S. 2 4 ......................................... 19

Jeffers v. Whitley, 165 F. Supp. 951 (D. C. N. C.
1958) .............................................................................  18

Joyner v. Board of Education, 244 N. C. 164, 92 S. E.
2d 795 (1956) ................................................................ 9

Kelly v. Board of Education of the City of Nash­
ville, 159 F. Supp. 272 (D. C. Tenn. 1958) ............... 15

McNabb v. United States, 318 U. S. 332 ......................  16

Other  A u th o ritie s :

11

Wolf son and Kurland, Robertson and Kirkham 
Jurisdiction of the Supreme Court of the United 
States, §353 (1951) ...................................................... 16



I n the

(Emtrt nf Hit llmtth States
October Term, 1959 

No..................

H elen  C ovington, et al.,

—v.—
Petitioners,

J. S. E dwards, Superintendent of Schools of 
Montgomery County, North Carolina, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fourth Circuit, entered in the above-entitled case on 
March 19,1959.

Citations to Opinions Below

The opinion of the District Court (R.1 49a), printed in 
the Appendix hereto, infra, p. 24, is reported in 165 F. 
Supp. 957. The opinion of the United States Court of 
Appeals (R. 73), printed in the Appendix hereto, infra, 
p. 29, is reported in 264 F. 2d 780.

1 R. refers to the record herein which consists of the appendices 
to the briefs filed and the proceedings in the court below.



2

Jurisdiction

The judgment of the United States Court of Appeals 
for the Fourth Circuit was entered on March 19, 1959 (R. 
81; p. 35, infra). On June 16, 1959 the Chief Justice ex­
tended time for filing this petition to and including July 
17, 1959. The jurisdiction of this Court is invoked under 
28 U. S. C. §1254(1).

Question Presented

Whether the Fourteenth Amendment requires that re­
spondent school officials devote every effort toward initiat­
ing desegregation and bringing about the elimination of 
racial discrimination in the public school system of Mont­
gomery County, North Carolina, or whether, as the Courts 
below held, the board may reject petitioners7 petition for 
desegregation, continue its plan of segregated schools, 
and relegate individual Negro children seeking their con­
stitutional right to non-segregated education to a pupil 
placement procedure whereby they must apply to particular 
white schools in the school system which continues to be 
conducted on a segregated basis.

Constitutional and Statutory Provisions Involved

This case involves the following constitutional provi­
sions and statutes:

1. United States Constitution, Amendment 14, §1.

2. General Statutes of North Carolina, §§115-176 to 
115-179. (North Carolina Assignment and Enrollment of



3

Pupils Act). The statute is printed in the Appendix, infra,
p. 21.2

Statement

The complaint in this action was filed on July 29, 1955 
in the United States District Court for the Middle Dis­
trict of North Carolina hy petitioners, a group of Negro 
school children in Montgomery County, North Carolina, 
and their respective parents and guardians as next friends 
and individually, against respondents, the Superintendent 
of Schools and the members of the Montgomery County 
Board of Education.

The jurisdiction of the District Court was invoked pur­
suant to 28 U. S. C. §1331, 28 IT. S. C. §1343, and 8 U. S. C. 
§§41, 43 (which now appear as 42 U. S. C. §§1981, 1983). 
The action was brought as a class action pursuant to Rule 
23(a)(3) Federal Rules of Civil Procedure.

On September 7, 1954 Negro residents of Montgomery 
County, North Carolina submitted a petition to respon­
dents setting forth this Court’s holding in Brown v. Board 
of Education, stating that in spite of that decision segrega­
tion continued to be enforced in the county schools and 
praying that they be desegregated (R. 23a, 24a). When 
this petition was denied complaint was filed in the United 
States District Court.

2 When this litigation commenced the North Carolina pupil 
assignment statute had not yet been amended to its present form. 
As originally written the statute provided that applications for 
change of assignment should be directed to the appropriate public 
school official. It now provides that application is to be made to 
the board of education. None of the parties nor the courts below 
have viewed this change as material to this suit (§115-178).



4

The principal allegations of the complaint3 are that re­
spondents maintain racial segregation in the public schools 
administered by them; that petitioners had filed a peti­
tion with respondents requesting that segregation be abol­
ished; and that respondents refused to abolish racial 
segregation, all in violation of the Fourteenth Amendment 
to the United States Constitution, and 42 U. S. C. §1981. 
The complaint prayed for an injunction ordering the re­
spondents “ to promptly present a plan of desegregation to 
[the] Court which will expeditiously desegregate the 
schools in Montgomery County,” and for a general injunc­
tion prohibiting racial segregation.

The answer in general pleaded that petitioners had failed 
to exhaust an administrative remedy adopted by resolu­
tion and subsequently, in substance, by statute, allowing 
individual Negro children to seek change of assignment 
from board imposed segregation; that respondents had no 
power under then existing state statutes to act pursuant 
to the petition seeking desegregation; and that respondents 
had adopted a resolution denying the request for desegrega­
tion. This resolution was set forth in haec verba in the 
answer; it provided that the schools should continue to 
operate during the then forthcoming 1954-55 school term as 
they had in the past, awaiting the final decree of this Court 
in Brown v. Board of Education, 347 U. S. 483, which was 
then awaiting further argument on formulation of the 
decree. The resolution stated:

The Board deems it for the best interest of public 
education to await the final decree of the Court and 
in the meantime operate the public schools of North 
Carolina as now constituted (R. 15a).

3 Various preliminary proceedings in the District Court, unim­
portant for purposes of this petition, including amendments to the 
pleadings and several motions, are described in the opinion of the 
District Court (E. 50a-51a).



The answer further asserts that after the 1955 decision in 
Brown v. Board of Education, 349 U. S. 294, another resolu­
tion, also set forth in the answer, was adopted by respon­
dents. This resolution provided:

Now, therefore, be it resolved that the Public Schools 
of Montgomery County operate during the 1955-56 
term with practices of enrollment and assignment of 
children similar to those in use during the 1954-55 
school year, and that this resolution be the authority 
for the County Superintendent and the various dis­
trict school principals and officials to so act (E. 18a, 
19a).

There was a proviso that parents dissatisfied with the as­
signment of their children might apply to the principal 
of the school to which assignment was desired, and if un­
successful, to the county board of education, requesting a 
change of assignment (R. 19a). The Court of Appeals 
found that the system of planned segregation continues to 
the present time, 264 F. 2d 780, 783; R. 78.

On March 26, 1958 respondents’ motion to dismiss the 
complaint for failure to state a claim upon which relief 
could be granted, and petitioners’ motion for leave to file 
a supplemental complaint4 and to add parties defendant, 
were heard. The District Court granted the motion to dis­
miss, and denied the motion to file a supplemental com­
plaint and to add parties defendant, holding that since 
petitioners had not alleged that they had exhausted the 
remedies prescribed by the North Carolina Assignment 
and Enrollment of Pupils Act they were not entitled to 
injunctive relief in the federal courts, and that both the 
original and the proposed supplemental complaints failed

4 The supplemental complaint would have made state education 
officials parties defendant. That aspect of the case is not brought 
here by this petition.



6

to state a claim upon which relief might be granted. The 
District Court entered judgment dismissing the cause on 
October 6, 1958 and the judgment was appealed to the 
United States Court of Appeals for the Fourth Circuit. 
The Court of Appeals entered a decree affirming the judg­
ment of the District Court on March 19, 1959.

REASONS FOR GRANTING THE WRIT

I.

The decision of the Court of Appeals conflicts with 
the decisions of this Court in Brown v. Board of Educa­
tion and Cooper v. Aaron.

The disposition the Court of Appeals made of this case 
conflicts with the holdings of this Court that the Fourteenth 
Amendment requires the state to discontinue its practice 
of assigning pupils in its public schools on the basis of 
their race. Brown v. Board of Education, 347 U. S. 483, 
349 U. S. 294; Cooper v. Aaron, 358 U. S. 1. As delineated 
in Cooper, the constitutional injunction requires “ ‘a prompt 
and reasonable start toward full compliance’ ” and action 
“ necessary to bring about the end of racial segregation in 
the public schools ‘with all deliberate speed’ ” (358 U. S. 
at 7). Indeed, “ in many locations, obedience to the duty 
of desegregation would require the immediate general ad­
mission of Negro children, otherwise qualified as students 
for their appropriate classes, at particular schools,” and 
even where “ relevant factors” might establish justification 
“ for not requiring the present nonsegregated admission of 
all qualified Negro children” it is essential that the school 
authorities show that they “had developed arrangements 
pointed toward and had taken appropriate steps to put 
their program into effective operation . . .”  “ [0]n ly a 
prompt start, diligently and earnestly pursued, to eliminate



7

racial segregation from the public schools could constitute 
good faith compliance” {Id. at 7).

In sum, as this Court emphasized in Cooper:

State authorities were thus duty bound to devote 
every effort toward initiating desegregation and bring­
ing about the elimination of racial discrimination in 
the public school system {Id. at 7).

and that,

State support of segregated schools through any 
arrangement, management, funds, or property can­
not be squared with the Amendment’s command that 
no State shall deny to any person within its jurisdic­
tion the equal protection of the laws {Id. at 19).

In 1954, Montgomery County ignored the first pronounce­
ment in Brown and adhered to its pre-existing pattern of 
racially separated public schools by resolving to continue 
operation of the county’s then segregated schools as “ now 
constituted” (R. 15a). It remained aloof to its constitu­
tional responsibilities when, a year later, it resolved to 
continue for 1955-56 “ practices of enrollment and assign­
ment of children similar to those in use during the 1954-55 
school year . . (R. 18a-19a). The Court of Appeals recog­
nized the intransigent attitude of the school authorities 
toward petitioners’ request for desegregation:

We are advertent to the circumstances upon which the 
plaintiffs rest their case, namely, that the County Board 
has taken no steps to put an end to the planned segre­
gation of the pupils in the public schools of the county 
but, on the contrary, in 1955 and subsequent years, 
resolved that the practices of enrollment and assign­
ment of pupils for the ensuing year should be similar 
to those in use in the current year. 264 F. 2d at 783 
(R. 78).



8

With this acknowledgment, the Court should at this 
point have directed that petitioners be awarded injunctive 
relief against the clear constitutional violation. Instead, 
the Court held that respondents may continue the pattern 
of segregated schools, resulting from the practice of assign­
ment by race, if children are provided an administrative 
procedure by the use of which they may individually seek 
to escape the discrimination. The possibility of an escape, 
it felt, is afforded by the board’s resolutions and the state 
pupil assignment law, which for all relevant purposes are 
the same; the District Court’s dismissal of the complaint 
was affirmed on the ground that this “ remedy” should have 
been exhausted. In short, it approved respondents’ prac­
tice of initially assigning school children on a racial basis, 
and requiring their attendance in segregated schools, simply 
because each child might individually undertake an ad­
ministrative course which might lead to his reassignment 
to another school in an otherwise segregated system.

Such an arrangement falls far short of satisfying the 
constitutional mandate that the state abstain from racial 
classifications in its public school system. The continued 
funneling of Negro children into Negro schools and the re­
quirement that they continue attending such schools, even 
though subject to the possibility of securing individual re­
assignment to another school, does not constitute an ar­
rangement for desegregating the schools or even a step in 
that direction. Eather, it is a general requirement of racial 
classification of all children until and unless particular 
children may succeed in administratively excepting them­
selves from its operation.

This Court’s decisions in Brown and Cooper establish 
the right of all children to freedom from state imposed edu­
cational segregation based on color. They make plain the 
state’s duty to afford, not merely an ostensible freedom,



9

but freedom in fact, and do not contemplate an arrange­
ment perpetuating segregation subject to an individual 
administrative procedure by which that freedom can be 
achieved only in isolated instances. Moreover, the command 
of the Fourteenth Amendment against racial discrimina­
tion is addressed to the state and is disobeyed by a require­
ment that burdens the individual with the necessity of 
demonstrating an exception in his favor from the general 
policy of racial classification and discrimination which it 
continues. Obviously, the state cannot be permitted to 
shift to the individual the responsibilities which the Con­
stitution imposes upon it. The duty is upon the state, 
rather than the individual, to bring the unconstitutional 
system which it has constructed to an end, and this duty, 
like the right with which it is correlated, “ can neither be 
nullified openly and directly by state legislators or state 
executive or judicial officers, nor nullified indirectly by 
them through evasive schemes for segregation whether 
attempted “ingeniously or ingenuously.’ ” Cooper v. Aaron, 
supra, 358 U. S. at 17. See also Lane v. Wilson, 307 IJ. S. 
268.

Moreover, in petitioners’ view, the Pupil Assignment 
Statute is irrelevant to the present issue and the doctrine of 
exhaustion of administrative remedies has no application 
to this case. The statute does not afford the administrative 
means capable of furnishing the relief to which petitioners 
are entitled; it neither requires segregation nor affords a 
means of eliminating segregation. It permits continua­
tion of a racially classified system— including the initial 
assignment of first graders to segregated schools— subject 
solely to the exception that individual Negro students5 may

5 No class proceedings are permitted under the Pupil Assignment 
Statute. See the instant case at 264 F. 2d 783: Joyner v. Board of 
Education, 244 N. C. 164, 92 S. E. 2d 795 (1956).



10

thereafter seek assignment to “ white” schools. Relevant 
portions of the Act state:

If, at the hearing, the board shall find that the child 
is entitled to be reassigned to such school, or if the 
board shall find that the reassignment of the child to 
such school will be for the best interests of the child, 
and will not interfere with the proper administration 
of the school, or with the proper instruction of the 
pupils there enrolled, and will not endanger the health 
or safety of the children there enrolled, the board shall 
direct that the child be reassigned to and admitted to 
such school. (Emphasis supplied.)

At most, this remedy could only enable a particular 
child to secure entry to a particular school. Petitioners’ 
constitutional right is not so limited. They desire, and 
view the Constitution as securing, the opportunity to attend 
school in a nonsegregated system. Any administrative 
remedy adequate from this viewpoint must be one which 
affords an opportunity to abolish racial distinctions within 
the school system and put an end to what the Court of 
Appeals called “ the planned segregation of the pupils of 
the public schools of the county.” 6 The placement statute 
obviously does not supply such an opportunity.

Despite the shortcomings of the statute, however, the 
school board, within the general powers conferred upon 
it, could grant the type of relief which petitioners requested. 
Petitioners pursued that administrative remedy by a peti­
tion asking the board to prepare and pursue a plan of gen­
eral desegregation. The petition charged that the board’s 
segregation practices violated the Constitution and prayed 
that “ all schools under your jurisdiction be immediately 
desegregated in accordance with the Supreme Court’s deci­

264 F. 2d at 783.



11

sion” (R. 24a). This the board refused to do, insisting 
upon a power to continue segregation subject to individual 
exceptions which may be sought via the pupil placement 
plan. Similarly, the complaint in this case did not ask for 
entry of a particular child to a particular school. It prayed 
that the Court order “ defendants to promptly present a 
plan of desegregation to this Court which will expeditiously 
desegregate the schools in Montgomery County . . .” (R. 
9a).

More fundamentally, neither the assignment statute nor 
the exhaustion doctrine has relevance in this case save as 
attempted justifications for respondents’ past and present 
segregation practices. For it is because petitioners de­
clined to undertake the statutory assignment procedures 
that they have been denied relief by the school authorities 
and the courts below. Meanwhile, respondents continue to 
assign children to racially segregated schools, and assert 
no present intention to abandon the practice, and seek 
refuge in the assignment legislation when requested to 
desist therefrom. But it is very clear that the constitutional 
violations evident from respondents’ conduct cannot be ex­
cused by resort to the statute. The Constitution, as inter­
preted by this Court, incorporates “ the fundamental prin­
ciple that racial discrimination in public education is 
unconstitutional”—a doctrine supreme to the point that: 
“All provisions of federal, state, or local law requiring or 
permitting such discrimination must yield to this prin­
ciple.” Brown v. Board of Education, 349 U. S. 294, 298. 
Neither the North Carolina assignment statute nor any 
other law can justify the constitutional violations that re­
spondents continue to commit, and, so long as these viola­
tions continue, neither this Court nor the petitioners need 
have concern with a state law having to do only with the 
individual assignment of children to particular schools.



12

II.

The decision of the Court below conflicts with the 
decisions of another Court o f  Appeals, and the conflict 
should be resolved by this Court.

The Court of Appeals for the Fourth Circuit has con­
sistently held that state administrative remedies must he 
exhausted prior to judicial application for relief from 
segregated schooling. Carson v. Board of Education of 
McDowell County, 227 F. 2d 789 (4th Cir. 1955); Carson 
v. Warlick, 238 F. 2d 724 (4th Cir. 1956), cert, denied 353 
U. S. 910. On the day that it decided the instant case it 
also decided Holt v. Raleigh City Board of Education, 265 
F. 2d 95, 98 (4th Cir. 1959), in which the Raleigh City 
Board of Education also was found to be continuing racial 
segregation. The Court held:

The regulations adopted by the Board in 1957, pur­
suant to §115-176 of the statute, tended to perpetuate 
the system, for they provided that each child attending 
a school by assignment of the Board is assigned to 
the same school for the ensuing school year.

The Court of Appeals for the Fifth Circuit, however, has 
recognized the constitutional infirmity in a position like 
that taken by the Montgomery County Board and endorsed 
by the Fourth Circuit. The Fifth Circuit in Gibson v. Board 
of Public Instruction of Dade County, 246 F. 2d 913 (5th 
Cir. 1957) dealt with an essentially identical legal situation. 
The Dade County School Board had adopted a resolution 
substantially the same as that adopted by the Montgomery 
County Board. The Dade County Board had resolved:

“ It is deemed by the Board that the best interest of 
the pupils and the orderly and efficient administration 
of the school system can best be preserved if the regis­
tration and attendance of pupils entering school com­



13

mencing the current school term remains unchanged. 
Therefore, the Superintendent, principals and all other 
personnel concerned are herewith advised that until 
further notice the free public school system of Dade 
County will continue to be operated, maintained and 
conducted on a nonintegrated basis” (at 914).

The plaintiffs in the Gibson case had requested, in lan­
guage almost identical to the request of the plaintiffs in 
the instant case, that “ the Board of Public Instruction . . . 
abolish racial segregation in the public schools of the 
County as soon as -is practicable in conformity with the 
decision of the Supreme Court of the United States in 
Brown v. Board of Education” (at 913). In defense the 
Dade County Board had argued that plaintiffs had not 
exhausted their administrative remedies provided by the 
Florida Pupil Assignment Act. Judge Rives ruled that 
recourse to the Pupil Assignment Act could not be re­
quired until the policy of segregation is first abolished:

“ The appellees urge also that the judgment should 
be affirmed because the plaintiffs have not exhausted 
their administrative remedies under the Florida Pupil 
Assignment Law of 1956, Chapter 31380, Lawrs of 
Florida, Second Extraordinary Session 1956, F. S. A. 
§230.-231. Neither that nor any other law can justify 
a violation of the Constitution of the United States by 
the requirement of racial segregation in the public 
schools. So long as that requirement continues through­
out the public school system of Dade County, it would 
be premature to consider the effect of the Florida 
laws as to the assignment of pupils to particular 
schools.7

7 On remand to the district court, that court held that the state 
pupil assignment law is a plan of desegregation. Gibson v. Board 
of Public Instruction of Dade County, 170 F. Supp. 454 (D. Fla. 
1959). This ruling is now on appeal.



14

“ The district court erred in dismissing the com­
plaint. Its judgment is reversed and the cause re­
manded” (at 913-914).

Similarly, in Holland v. Board, of Public Instruction, 258 
F. 2d 730, Judge Rives held for the Court of Appeals that 
the procedures afforded by the Florida Pupil Assignment 
Act need not be employed until the policy of segregation 
first was abolished in Palm Beach County. In that case, 
it may be noted, the county continues to enforce a residen­
tial segregation ordinance like that outlawed by Buchanan 
v. Warley, 245 U. S. 60. But the question of residential 
segregation was hardly crucial to the case as, obviously, 
it is possible to have school desegregation with residential 
segregation and vice versa. The fact of compulsory resi­
dential desegregation merely served to underscore the dis­
criminatory approach to law enforcement employed by the 
county government.

In the Holland case the plaintiff had applied to a school 
farther from his home than the Negro school to which he 
was assigned. The District Court had indicated, among 
other reasons, that because the plaintiff was assigned to 
the nearest school his constitutional rights had not been 
infringed. But, as Judge Rives wrote, “ that the plaintiff 
was ineligible to attend the school to which he applied 
would not, however, excuse a failure to provide nonsegre- 
gated schools.” If the Pupil Assignment Statute had gov­
erned it would seem that the distance of the “ white” school 
from plaintiff’s home would have concluded the matter and 
permitted the continued segregation of plaintiff.

While a conflict between a Court of Appeals and a Dis­
trict Court is not as compelling a reason for granting 
certiorari as a conflict between two Courts of Appeal, 
it is worthy of note that, in addition to the difference be­
tween the Fourth and Fifth Circuits, the United States



15

District Court for the Middle District of Tennessee is in 
accord with the Fifth Circuit. In Kelly v. Board of Educa­
tion of the City of Nashville, Judge William E. Miller ad­
dressed himself directly to the rulings of the Fourth Cir­
cuit. He pointed out that the relief which the Nashville 
plaintiffs sought was not merely to attend a particular 
school, but to attend schools in a system devoid of racial 
classifications. The pupil assignment law did not furnish 
a remedy ‘to achieve this end:

“ However, notwithstanding the apparent scope and 
generality of the rulings of the Fourth Circuit in the 
two cases just cited, the Court is unable to reach the 
conclusion on the facts of the instant case that the 
action should be dismissed and the plaintiffs remitted 
to a so-called administrative remedy, with the implied 
invitation to return to the Federal Court if that remedy 
is exhausted without obtaining satisfactory results. 
This is true because the Court is of the opinion that 
the administrative remedy under the Act in question 
would not be an adequate remedy. In this connection, 
it must be recalled that the relief sought by the com­
plaint is not merely to obtain assignment to particular 
schools but in addition to have a system of compulsory 
segregation declared unconstitutional and an injunc­
tion granted restraining the Board of Education and 
other school authorities from continuing the practice 
and custom of maintaining and operating the schools 
of the city upon a racially discriminatory basis.” 159 
F. Supp. at 275.

The conflict is clear. While petitioners submit that the 
Fifth Circuit is correct and the Fourth Circuit is wrong, 
this Court, in any event, should resolve the difference in 
the interest of uniformity where so important a constitu­
tional right is involved.



16

III.

The decision below presents important questions of 
federal jurisdiction, practice and procedure which 
should be resolved by this Court.

This Court exercises supervision over the lower federal 
judiciary to assure the proper and efficient functioning of 
the District Courts. See, e.g., McNabb v. United States, 
318 U. S. 332, 341 (administration of criminal justice); 
Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (forum non con­
veniens doctrine); Hickman v. Taylor, 329 U. S. 495 (con­
struction of federal rules of civil procedure). This case 
invokes such power. See W olf son and Kurland, Robertson 
and Kirkham Jurisdiction of the Supreme Court of the 
United States, §353 (1951).

In Brown v. Board of Education, 349 U. S. 294, this Court 
provided certain general guides to the lower federal courts 
for the disposition of school segregation litigation. In 
delineating the type of matters to be considered by the 
lower federal courts in framing decrees dealing with “ a 
variety of local problems,” this Court emphasized the use 
of “ practical flexibility”  toward the end of eliminating “ a 
variety of obstacles in making the transition to school sys­
tems operated in accordance with the constitutional princi­
ples set forth in [the] May 17, 1954 decision.” None of 
these criteria even suggested that segregation may continue 
to be maintained. But the Court of Appeals, while ex­
plicitly recognizing that the respondent school board has 
taken “ no steps to put an end to the planned segregation of 
the pupils in the public schools of the country,”  264 F. 2d 
at 783, held that petitioners and the class they represent, 
were not entitled to require that respondents discontinue 
the system of planned segregation. The remedy was held 
to be an injunctive order requiring the admission of in­



17

dividual Negro litigants to designated schools, after they 
have exhausted the state’s prescribed administrative 
“ remedy.” This view of the District Courts’ duty will ne­
cessitate a detailed review of individual school assignments 
by the federal judiciary for a very large number of pupils 
who contend that they are excluded from particular schools 
because of race. Insofar as the efficient functioning of the 
federal judiciary is concerned, the burden of individual 
review of school assignments promises to become insup­
portable.8

At the second reargument of Brown v. Board of Educa­
tion, supra, perhaps the most frequently voiced concern of 
the parties and amici alike was that implementation of the 
decision should not involve the federal judiciary in the 
day-to-day administration of local school systems. Or, as it 
was so often stated, the courts should not become school 
boards.9

Indeed, although petitioners do not suggest that the 
amicus curiae brief of the State of North Carolina in the 
School Segregation cases is binding upon it in this litiga­
tion, it is suggestive to note that in that brief the State 
suggested as possible modes of compliance:

8 It is true that the Court of Appeals’ decision contemplates that 
class action may be brought (R. 78). But the members of the class 
are those who have employed the so-called Pupil Placement remedy. 
Since the pupil placement remedy involves individualized consid­
eration of each child’s right to attend a particular school a factual 
review of each child’s right to attend a particular school is called 
for. At best, then, the right to bring a class suit in this sense means 
that many suits may be consolidated. Under petitioners’ view, how­
ever, the courts should be concerned solely with the issue of whether 
a racial standard is employed.

9 See, e.g., the Brief of Attorney General of Florida as amicus 
curiae in Brown v. Board of Education, October Term, 1954 at 
page 82; brief of Attorney General of the State of Texas as amicus 
curiae at page 26; brief of the Attorney General of the State of 
Arkansas as amicus curiae at page 18.



18

(1) Assignments of white and Negro children to schools 
on the basis of residence alone;

(2) Segregation of children in schools on the basis of sex, 
the basis of intelligence tests, the basis of achieve­
ment tests, or any other basis except race, provided 
only that the basis has a reasonable relation to the 
proper conduct of the schools or to the maintenance 
of the public safety, morals, health or welfare . . . ;

(3) Discontinuance of the present state-wide school sys­
tem and leaving to each county or community the de­
cision as to whether it will have public schools 
operated on the one or the other of these bases. . . . 
It is submitted that the choice to be made between 
these or other methods leading to a constitutional 
result is for the State of North Carolina.10

It was not suggested that segregation could be maintained 
subject to individual transfers out of segregated schools.

Already federal courts in North Carolina have had before 
them under the rule applied in this case11 a substantial 
number of cases involving pupils on whose individual quali­
fications to attend particular school buildings, or the regu­
larity of the administrative proceedings in which they must 
first seek vindication of their constitutional rights, the 
courts must pass if the rationale of the instant decision is 
correct.

10 At page 13.
11 See, e.g., Holt v. Raleigh City Board of Education, 265 F. 2d 

95 (4th Cir. 1959) ; McKissick v. Durham City Board of Education 
(D. C. M. C. N. C., Civil Action No. C-100-D-58) ; Morrow v. 
Mecklenburg County Board of Education (D. C. W. D. N. C., 
Civil Action No. 1415); McCoy v. Greensboro City Board of Educa­
tion (D. C. M. D. N. C., Civil Action No. C-28-G-59) ; Cannon v. 
Greensboro City Board of Education (D. C. M. D. N. C., Civil 
Action No. C-25-G-59); Jeffers v. Whitley, 165 F. Supp. 951 (D. C. 
N. C. 1958).



19

Petitioners, however, view the federal judiciary’s role as 
being solely to eliminate the use of racial standards in the 
system and not to become involved in multitudinous in­
dividual assignments. While an individual’s qualifications 
might, of course, be relevant in attempting to ascertain 
whether a board is employing subterfuge, a typical segre­
gation suit should concern itself only with whether race is 
used as a standard of school assignment. Where, as here, 
race is used, it should merely be eliminated by application 
of a constitutionally acceptable plan of desegregation.

Moreover, the proper functioning of the district court 
was violated in yet another way. As Mr. Justice Frank­
furter stated, concurring in Hurd v. Hodge, 334 U. S. 24, 
36, “ equity is rooted in conscience.” Equitable doctrines, 
therefore, may not be invoked by those who, as that opinion 
pointed out, violate the constitution of the United States 
by racial discrimination—a violation not “narrow” or “ tech­
nical,” but involving “ considerations that touch rights so 
basic to our society that, after the Civil War, their protec­
tion against invasion by the States was safeguarded by the 
Constitution.” Here respondents segregate. WThen peti­
tioners applied to equity for relief, respondents prayed that 
the chancellor remit petitioners back to respondents in the 
exercise of an equitable doctrine of self restraint. But, peti­
tioners submit, a court of equity should not have its patience 
invoked by those who have baldly continued to apply a con­
stitutionally forbidden standard. Employment of such a 
rule calls for the corrective supervision of this Court,

Unless the erroneous decision of the court below is recti­
fied so that the District Court wall proceed in cases of this 
sort under the general directions of Brown v. Board of 
Education and Cooper v. Aaron discussed supra, not only 
will the rights here involved continue to be denied, but the 
Federal Courts will indeed become overburdened, and as



20

some have feared, in fact take on the role of local boards of 
education in the name of equity at the behest of those who 
have come into court without clean hands.

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,

J . K e n n e t h  L ee 
P. 0. Box 645 
Greensboro, North Carolina

C onrad 0 .  P earson

20314 E. Chapel Hill Street 
Durham, North Carolina

T hurgood M arshall

J ack  G reenberg

10 Columbus Circle 
New York 19, New York 
Counsel for Petitioners

E lwood H. Ch iso lm  
J ames M. N abrit, III 
F ran k  D. R eeves 
S pottswood W. R obinson , III

Of Counsel



APPENDIX

North Carolina Assignment and Enrollment 
of Pupils Act Article 21

§ 115-176. County and city boards authorised to provide 
for enrollment of pupils.—Each county and city board of 
education is hereby authorized and directed to provide for 
the assignment to a public school of each child residing 
within the administrative unit who is qualified under the 
laws of this State for admission to a public school. Except 
as otherwise provided in this Article, the authority of each 
board of education in the matter of assignment of children 
to the public school shall be full and complete, and its 
decision as to the assignment of any child to any school 
shall be final. A  child residing in one administrative unit 
may be assigned either with or without the payment of 
tuition to a public school located in another administrative 
unit upon such terms and conditions as may be agreed 
in writing between the boards of education of the admin­
istrative units involved and entered upon the official rec­
ords of such boards. No child shall be enrolled in or 
permitted to attend any public school other than the 
public school to which the child has been assigned by 
the appropriate board of education. In exercising the au­
thority conferred by this Section, each county and city 
board of education shall make assignments of pupils to 
public schools so as to provide for the orderly and efficient 
administration of the public schools, and provide for the 
effective instruction, health, safety, and general welfare 
of the pupils. Each board of education may adopt such 
reasonable rules and regulations as in the opinion of the 
board are necessary in the administration of this Article.

§ 115-177. Authority to be exercised for efficient admin­
istration of school, etc.; rules and regulations.—In exer-



22

cising the authority conferred by § 115-176, each county 
or city board of education may, in making assignments 
of pupils, give individual written notice of assignment, 
on each pupil’s report card or by written notice by any 
other feasible means to the parent or guardian of each 
child or the person standing in loco parentis to the child, 
or may give notice of assignment of groups or categories 
of pupils by publication at least two times in some news­
paper having general circulation in the administrative unit.

§ 115-178. Rearing before board upon denial of appli­
cation for enrollment.— The parent or guardian of any 
child, or the person standing in loco parentis to any child, 
who is dissatisfied with the assignment made by a board 
of education may, within ten (10) days after notification 
of the assignment, or the last publication therefor, apply 
in writing to the board of education for the assignment 
of the child to a different public school. Application for 
reassignment shall be made on forms prescribed by the 
board of education pursuant to rules and regulations 
adopted by the board of education. If the application for 
reassignment is disapproved, the board of education shall 
give notice to the applicant by registered mail, and the 
applicant may within five (5) days after receipt of such 
notice apply to the board for a hearing, and shall be en­
titled to a prompt and fair hearing on the question of 
reassignment of such child to a different school. A  ma­
jority of the board shall be a quorum for the purpose 
of holding such hearing and passing upon application for 
reassignment, and the decision of a majority of the mem­
bers present at the hearing shall be the decision of the 
board. If, at the hearing, the board shall find that the 
child is entitled to be reassigned to such school, or if 
the board shall find that the reassignment of the child 
to such school will be for the best interests of the child, 
and will not interfere with the proper administration



23

of the school, or with the proper instruction of the pupils 
there enrolled, and will not endanger the health or safety 
of the children there enrolled, the board shall direct that 
the child be reassigned to and admitted to such school. 
The board shall render prompt decision upon the hearing, 
and notice of the decision shall be given to the applicant 
by registered mail.

§ 115-179. Appeal from decision of board—Any person 
aggrieved by the final order of the county or city board 
of education may at any time within ten (10) days from 
the date of such order appeal therefrom to the superior 
court of the county in which such administrative school unit 
or some part thereof is located. Upon such appeal the 
matter shall be heard de novo in the superior court be­
fore a jury in the same manner as civil actions are tried 
and disposed of therein. The record on appeal to the 
superior court shall consist of a true copy of the ap­
plication and decision of the board, duly certified by the 
secretary of such board. If the decision of the court be 
that the order of the county or city board of education 
shall be set aside, then the court shall enter its order 
so providing and adjudging that such child is entitled 
to attend the school as claimed by the appellant, or such 
other school as the court may find such child is entitled 
to attend, and in such case such child shall be admitted 
to such school by the county or city board of education 
concerned. From the Judgment of the superior court an 
appeal may be taken by any interested party or by the 
board to the Supreme Court in the same manner as other 
appeals are taken from judgments of such court in civil 
actions.



24

Opinion

I n th e

UNITED STATES DISTRICT COURT 

F oe th e  M iddle D istrict op N orth  C arolina 

R ock in g h am  D ivision

Civil No. 323-R 
# # # # $

S tan le y , District Judge:

The complaint in this action was filed on July 29, 1955, 
as a class action by thirteen adult plaintiffs personally and 
as next friend of forty-five minor plaintiffs, on behalf of 
themselves and all other citizens and residents of Mont­
gomery County, North Carolina, similarly situated. Named 
as defendants are the Superintendent of Schools of Mont­
gomery County, North Carolina, and the individual mem­
bers of the Montgomery County Board of Education.

In their complaint, plaintiffs asked (1) that a three-judge 
court be convened, (2) that interlocutory and permanent 
judgments be entered “ declaring that Article IX, Section 
2, of the North Carolina Constitution, and any customs, 
practices and usages pursuant to which plaintiffs are 
segregated in their schooling because of race, violate the 
Fourteenth Amendment to the United States Constitution” , 
and (3) that interlocutory and permanent injunctions 
issue “ ordering defendants to promptly present a plan of 
desegregation to this court which will expeditiously de­
segregate the schools in Montgomery County and forever 
restraining and enjoining defendants and each of them 
from thereafter requiring these plaintiffs and all other 
Negroes of public school age to attend or not to attend 
public schools in Montgomery County because of race.”



25

Plaintiffs were allowed to amend their complaint on 
August 12, 1955, but without changing the nature of their 
cause of action. Thereafter, an order was signed denying 
plaintiffs’ motion for a three-judge court.

After receiving an extension of time within which to 
answer, the defendants filed their answer on September 12, 
1955, alleging failure to exhaust administrative remedies 
and lack of good faith on the part of the plaintiffs in bring­
ing the action. Upon motion of plaintiffs, a portion of the 
answer charging plaintiffs with lack of good faith was 
stricken.

Thereafter, plaintiffs filed a motion to amend their com­
plaint to allege that defendants are officers of the State of 
North Carolina, enforcing and executing state statutes and 
policies. After a hearing on this motion, an order was 
entered by the court on December 16, 1955, allowing the 
amendment.

On February 23, 1956, plaintiffs petitioned the court to 
reconsider its order denying their motion for a three-judge 
court. This motion was again denied in an opinion rendered 
by Judge Johnson J. Hayes on April 6, 1956. Covington 
v. Montgomery County School Board, 139 F. Supp. 161 
(M. D. N. C., 1956).

On September 13, 1956, plaintiffs filed a motion for leave 
to file amended and supplemental complaint and to add 
parties defendant. In the supplemental complaint, plain­
tiffs seek to test the constitutionality of certain state school 
laws, commonly known and referred to as the “ Pearsall 
Plan,” and seek to make the members of the State Board 
of Education and the Superintendent of Public Instruc­
tion of the State of North Carolina parties defendant. 
Thereafter, the Attorney General of the State of North 
Carolina made a special appearance on behalf of members 
of the Board of Education and the State Superintendent 
of Public Instruction in opposition to plaintiffs’ motion,



26

and the defendants filed a motion to dismiss the complaint 
for failure to state a claim on which relief could be granted, 
and for failure to prosecute.

A  hearing on pending motions was held on March 26, 
1958, at which time the Court ordered the parties to file 
briefs setting forth their legal contentions on all issues 
raised by the pleadings and the pending motions. The At­
torney General of the State of North Carolina was directed 
to file a brief with the court with respect to his position on 
all the issues raised in the pleadings.

The principal questions now before the court for deter­
mination are (1) whether the complaint, or proposed 
amended and supplemental complaint, states a claim against 
the defendants on which relief can be granted, and (2) 
whether the members of the State Board of Education and 
the State Superintendent of Public Instruction are neces­
sary and proper parties to the action.

The decision that has been reached on the first question 
makes a determination of the second question unneces­
sary for disposition of this case. However, in regard to the 
second question, this court has today rendered an opinion 
in another case, John L. Jeffers, et al. v. Thomas H. Whit­
ley, Superintendent of the Public Schools of Caswell County,
et al., ------  F. Supp. ------  (D. C. M. D. N. C., 1958), in
which it was held that the members of the State Board of 
Education and the State Superintendent of Public Instruc­
tion are neither necessary nor proper parties in actions 
of this type.

In regard to the first issue, it should be stated at the 
outset that the plaintiffs have not alleged in either their 
original complaint, or in their proposed amended and sup­
plemental complaint, that there has been any exhaustion 
of their administrative remedies as provided for in Sec. 
115-176 through 115-178 General Statutes of North Caro­
lina, known as the Enrollment and Assignment of Pupils



27

Act. Indeed, in their brief, plaintiffs admit that they did 
not proceed nnder this act, and contend that exhaustion of 
administrative remedies provided for by the act are 
unnecessary.

Counsel for the plaintiffs make this contention in face 
of the decisions rendered by the Court of Appeals for 
this circuit in Carson v. Board of Education of McDowell 
County, Cir. 4, 227 F. 2d 789 (1955), and Carson v. War licit, 
Cir. 4, 238 F. 2d 724, certiorari denied 353 IT. S. 910, 
77 S. Ct. 665, 1 L. Ed. 2d 664.

They advance the argument that the presumption relied 
on in Carson v. Warlick, supra, that school officials “ will 
obey the law, observe the standards prescribed by the 
legislature, and avoid the discrimination on account of race 
which the Constitution forbids” is not valid because of the 
length of time that has passed since the decision of the 
Supreme Court of the United States in Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 
(1954), without the defendant’s acting to desegregate the 
public schools of Montgomery County. The fallacy of this 
argument is readily seen when one reflects on what the 
Supreme Court actually held in the Brown case. As has 
been repeatedly stated, the Brown case does not require 
integration, but only holds that states can no longer deny 
to anyone the right to attend a school of their choice on 
account of race or color. Briggs v. Elliott, 132 F. Supp. 
776 (E. D. S. C., 1955); Thompson v. County School Board 
of Arlington County, 144 F. Supp. 239 (E. D. Va., 1956); 
School Board of City of Newport News, Va. v. Atkins, 
246 F. 2d 325 (1957).

Counsel for plaintiffs further contend that even if the 
Assignment and Enrollment of Pupils Act is constitutional, 
it need not be complied with in this case because the 
provisions of the act are being unconstitutionally applied. 
This argument is completely untenable in view of the fact



28

that there is no allegation that any of the plaintiffs ever 
sought to comply with the provisions of the act. Not until 
each of the plaintiffs has applied to the Board of Edu­
cation of Montgomery County as individuals, and not as 
a class, for reassignment, and have failed to be given the 
relief sought, should the courts be asked to interfere in 
school administration. Carson v. War lick, Supra.

The requirement for plaintiffs in suits of this type to 
exhaust administrative remedies before seeking injunctive 
relief in the federal court is discussed at some length in 
the case of Joseph Hiram Holt, Jr. v. Raleigh City Board
of Education, ------  F. Supp. ------  (M. D. N. C., 1958),
decided on August 29, 1958. Reference is made to that 
case for further discussion of my views on this subject.

In view of the plain holding of the Court of Appeals 
for this circuit in the Carson cases, and in view of the 
fact that the plaintiffs do not allege that they have ex­
hausted, or have even attempted to exhaust, their admin­
istrative remedies under the North Carolina Assignment 
and Enrollment of Pupils Act, I conclude that the plaintiffs 
have failed to state a claim against the defendants, in 
either their original complaint or their proposed amended 
and supplemental complaint, on which relief can be granted, 
and that this action should be dismissed.

A judgment will be entered in conformity with this 
opinion.

This the 12th day of September, 1958.

/ s /  E d w in  M. S tanley  
United States District Judge



29

UNITED STATES COURT OF APPEALS

F or t h e  F ourth  C ircuit

No. 7802.

# # # # *

Before S obeloff, Chief Judge, and S oper and H ayn s- 
w o rth , Circuit Judges.

# # #

P er C u r ia m :

The parents of a number of Negro children in Mont­
gomery County, North Carolina, brought this suit to se­
cure an injunction against the Superintendent of Schools 
and the County Board of Education, directing the defen­
dants to present a plan of desegregation of the races in 
the schools and forbidding them to assign Negroes to 
particular schools because of their race. The complaint 
was filed on July 29, 1955, as a class action by thirteen 
adults personally and as the next friends of the forty-five 
minor plaintiffs, all of whom are Negroes. The defendants 
filed an answer on September 22, 1955, alleging that the 
plaintiffs had failed to exhaust the administrative remedies 
provided by the State, in that they did not comply with 
the statutes of the State which regulate the assignment 
and enrollment of pupils in the public schools. On this 
account, the defendants moved the court to dismiss the 
suit, and the District Judge after hearing granted the 
motion.



30

We are of the opinion that the present ease is ruled by 
the prior decisions of this court in Carson v. Board of 
Education, 227 F.2d 789, and Carson v. Warlick, 238 F.2d 
724. In the first of these cases the following statement 
was made in the per curiam opinion (page 790):

“ * * * The Act of March 30, 1955,* entitled ‘An 
Act to Provide for the Enrollment of Pupils in Public 
Schools’, being chapter 366 of the Public Laws of 
North Carolina of the Session of 1955, provides for 
enrollment by the county and city boards of education 
of school children applying for admission to schools, 
and authorizes the boards to adopt rules and regu­
lations with regard thereto. It further provides for 
application to and prompt hearing by the board in 
the case of any child whose admission to any public 
school within the county or city administrative unit 
has been denied, with right of appeal therefrom to the 
Superior Court of the county and thence to the Su­
preme Court of the state. An administrative remedy 
is thus provided by state law for persons who feel 
that they have not been assigned to the schools that 
they are entitled to attend; and it is well settled that 
the courts of the United States will not grant injunc­
tive relief until administrative remedies have been 
exhausted. * * * ”

This case was brought to this court a second time, in 
Carson v. Warlick, supra, after the Supreme Court of 
North Carolina in Joiner v. McDowell County Board of 
Education, 244 N.C. 164, had interpreted the Pupil Place­
ment Act of the State, and had held that the factors in­
volved in the selection of appropriate schools for a child

* This act in its present form is found in the General Statutes. 
of North Carolina, Chapter 115, Article 21, Secs. 115-176 to 115-179. 
Changes of assignment are regulated by Sec. 115-178.



31

necessitated the consideration of the application of any 
child or children individually and not en masse. It was 
shown to this court that the plaintiffs, in the action in the 
court below, had not attempted to comply with the pro­
visions of the statute as so interpreted but had merely 
inquired of the Secretary of the Board of Education what 
steps were being taken for the admission of colored chil­
dren to the schools of the town of Old Fort, and that 
the school authorities in reply merely pointed out that 
no Negro pupil had made application to attend the school 
and that the board therefore had no cause to take any 
action in that connection. We therefore reaffirmed our 
previous decision and held that the plaintiffs were not 
entitled to relief because they had not exhausted their 
administrative remedies. In the course of the opinion 
Judge Parker said (238 F.2d at 728-729):

“ Somebody must enroll the pupils in the schools. 
They cannot enroll themselves; and we can think of no 
one better qualified to undertake the task than the 
officials of the schools and the school boards having 
the schools in charge. It is to be presumed that these 
will obey the law, observe the standards prescribed 
by the legislature, and avoid the discrimination on 
account of race which the Constitution forbids. Not 
until they have been applied to and have failed to 
give relief should the courts be asked to interfere in 
school administration. As said by the Supreme Court 
in Brown v. Board of Education, 349 U.S. 294, 299,

1 * * * g c]200} authoi'ities have the primary respon­
sibility for elucidating, assessing, and solving these 
problems; courts will have to consider whether the 
action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples’.



32

“ It is argued that the statute does not provide an 
adequate administrative 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 proceedings for admission to a 
school term will become moot before they can be com­
pleted. 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 ex­
hausted, judicial remedies for denial of constitutional 
rights may be pursued at once in the federal courts 
without pursuing state court remedies. Lane v. Wilson, 
307 U.S. 268, 274. 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, notwith­
standing time that may have elapsed while such appli­
cation was pending. Applicants here are not entitled 
to relief because of failure to exhaust what are un­
questionably administrative remedies before the board.

“ There is no question as to the right of these school 
children to be admitted to the schools of North Caro­
lina without discrimination on the ground 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. It is the state school au­
thorities who must pass in the first instance on their 
right to be admitted to any particular school and the 
Supreme Court of North Carolina has ruled that in 
the performance of this duty the school board must 
pass upon individual applications made individually 
to the board. 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 this does not violate con­
stitutional requirements, and we see no such violation 
in the procedure here required. * * * ”

We are advertent to the circumstances upon which the 
plaintiffs rest their case, namely, that the County Board 
has taken no steps to put an end to the planned segregation 
of the pupils in the public schools of the county but, on the 
contrary, in 1955 and subsequent years, resolved that the 
practices of enrollment and assignment of pupils for the 
ensuing year should be similar to those in use in the 
current year. If there were no remedy for such inaction, 
the federal court might well make use of its injunctive 
power to enjoin the violation of the constitutional rights 
of the plaintiffs but, as we have seen, the State statutes 
give to the parents of any child dissatisfied with the school 
to which he is assigned the right to make application for 
a transfer and the right to be heard on the question by 
the Board. If after the hearing and final decision he is 
not satisfied, and can show that he has been discriminated 
against because of his race, he may then apply to the 
federal court for relief. In the pending case, however, 
that course was not taken, although it was clearly out­
lined in our two prior decisions, and the decision of the 
District Court in dismissing the case was therefore correct. 
This conclusion does not mean that there must be a sepa­
rate suit for each child on whose behalf it is claimed 
that an application for reassignment has been improperly 
denied. There can be no objection to the joining of a 
number of applicants in the same suit as has been done 
in other cases. The County Board of Education, however,

33



34

is entitled under the North Carolina statute to consider 
each application on its individual merits and if this is 
done without unnecessary delay and with scrupulous ob­
servance of individual constitutional rights, there will be 
no just cause for complaint.

The appellants also raise the point that the District 
Judge was wrong in rejecting the motion of the plaintiffs 
to amend the bill of complaint by joining the State Board 
of Education and the Superintendent of Public Instruction 
of the State as parties defendant. It is pointed out that 
the State Board has general control of the supervision 
and administration of the fiscal affairs of the public schools 
and other important powers conferred by the General 
Statutes, secs. 115-4, 115-11 and 115-283. The provisions 
of sec. 115-178 of the Pupil Placement Act, however, places 
the authority in the County boards of education to make 
the assignments and enrollment of pupils and contains no 
direction for the participation of the State Board of 
Education in these matters. We therefore think that 
nothing would be gained by joining these officials as addi­
tional defendants and that the judge was correct in denying 
the motion to amend the complaint.

Affirmed.



35

Decree

Filed and Entered March 19, 1959. 

UNITED STATES COURT OF APPEALS 

F ob th e  F ourth  C ircuit 

No. 7802.

H elen  C ovington , p erson a lly  and as m other and next 
fr ie n d  o f  C ornett C ovington , et al.,

—vs.—
Appellants,

J . S. E dwards, Superintendent of Schools of Montgomery 
County, North Carolina, E. R. W allace , D. C. E w in g , 
H arold A. S cott, J ames R. B urt and J ames I ngram , 
members of the Montgomery County Board of Edu­
cation,

Appellees.

A ppeal from the United States District Court for the 
Middle District of North Carolina.

T his cause came on to be heard on the record from the 
United States District Court for the Middle District of 
North Carolina, and was argued by counsel.

On consideration whereof, It is now here ordered, ad­
judged and decreed by this Court that the judgment of the 
said District Court appealed from, in this cause, be, and 
the same is hereby, affirmed with costs.

March 19, 1959.

S im on  E. S obeloff 
Chief Judge, Fourth Circuit.