Davis v. Cook Supplemental Brief in Support of Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IK THE

Supreme Court of the United States
October Term, 1949

No. 808

SAMUEL L. DAVIS, Individually arid on Behalf 
of Others Similarly Situated,

Petitioner,
vs.

E. S. COOK, et al., Constituting the Board of 
Education of the City of Atlanta.

SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

A. T. W alden ,
Oliver W . H il l ,
T hijrgood M arshall ,
R obert L. Carter,

Attorneys for Petitioner.

H oward J e n k in s , J r ., 
J ames M . N abrit ,

Of Counsel.



IjST th e

Supreme Court of the United States
October Term, 1949

No. 808

S am u el  L. D avis, Individually and on 
Behalf of Others Similarly Situated,

Petitioner,
vs.

E. S. C ook, et al., Constituting the Board 
of Education of the City of Atlanta.

SUPPLEMENTAL BRIEF IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United States:

This supplemental brief in support of our petition for 
writ of certiorari is being filed in order to bring to the 
Court’s attention the decision of the United States Court 
of Appeals for the Fourth Circuit handed down on May 
31, 1950, in Carter, et al. v. School Board, 182 F. 2d 531, 
which is in direct conflict with the decision of the court 
below in the instant case.



2

In the Carter case, relief was sought in the federal 
courts by Negro high school students residing in Arlington 
County, Virginia, who had applied for and had been refused 
certain courses and advantages being offered to all other 
high school students in the county. The basis of the action 
was that the equal protection clause of the Fourteenth 
Amendment had been violated in that plaintiffs were being- 
denied educational opportunities and advantages, because 
of race and color, available to all other persons similarly 
situated.

After hearing and trial, the United States District Court 
found that the educational advantages and opportunities 
afforded plaintiffs were substantially equal to those 
afforded all other persons and dismissed the complaint. 
On appeal, the United States Court of Appeals for the 
Fourth Circuit found that the educational advantages and 
opportunities available and offered to white high school 
students were not available and were not offered to Negro 
high school students. Thereupon the cause was reversed 
and remanded.

One of the defenses raised was that the plaintiffs had 
not exhausted available administrative remedies and that, 
therefore, the resort to the federal courts for relief was 
premature. In passing upon that defense, the Court of 
Appeals stated at page 536:

“ Nor can it be said that a scholar who is de­
prived of his due must apply to the administrative 
authorities and not to the courts for relief. An in­
jured person must of course show that the state has 
denied him advantages accorded to others in like 
situation, but when this is established, his right of 
access to the courts is absolute and complete.”



3

In the instant ease, petitioner is a Negro teacher, alleg­
ing a denial of the equal protection of the laws, in that he 
and other Negro teachers are being paid less salary than 
is being paid to white teachers performing substantially 
the same functions. In the Carter case, the plaintiffs are 
Negro students of public school age, alleging a denial of 
the equal protection of the laws in that educational advan­
tages and opportunities available to white high school stu­
dents are not available to Negro high school students, solely 
because of race and color. In both instances, the problem 
is substantially identical—whether a state may provide 
better and greater advantages to white persons than it 
affords to Negroes, in similar circumstances, solely because 
of race and color.

In light of the opinion in the Carter case, it is clear that 
had petitioner’s cause been before the Court of Appeals 
for the Fourth Circuit that that court would have affirmed 
the judgment in his favor, and that the defense of failure 
to exhaust administrative remedies would not have been 
available to respondents.

We pointed out in our petition and main brief in sup­
port thereof that the court below in remanding the instant 
action on the grounds that petitioner had failed to exhaust 
administrative remedies was in apparent conflict with the 
opinion of the United States Court of Appeals for the Ninth 
Circuit in Trans-Pacific Air Lines v. Hawaiian Air Lines, 
174 F. 2d 63. Now the decision of the court below is also 
in conflict with the decision of the Court of Appeals for the 
Fourth Circuit in Carter, et al. v. School Board, supra. 
The conflict between the Fifth Circuit, on one hand, and the 
Fourth and Ninth Circuits on the other, should be resolved 
by this Court.



4

Wherefore, it is respectfully submitted, for the reasons 
stated in our petition and brief in support thereof and in 
this supplemental brief, that the petition for writ of certi­
orari should be granted, and the judgment of the court 
below should be reversed.

A. T. W alden ,
Oliver  W. H il l ,
T htjrgood M arshall ,
R obert L. Carter,

Attorneys for Petitioner.

H oward J e n k in s , J r .,
J ames M . N abrit ,

Of Counsel.