Carr v. Montgomery County Board of Education Suggestion for Oral Argument

    I n  th e

Ituftft (Unmt ni Appeals
F ifth  Circuit 

No. 19,408

K aren R enee A ugustus, a Minor, by Charles A. Augustus, 
her father and next friend, et al.,

Appellants,

T he Board oe P ublic I nstruction of E scambia County, 
F lorida, et al.,

Appellees.

BRIEF FOR APPELLANTS

Charles F . W ilson
507 West Gadsden Street 
Pensacola, Florida

Constance B aker Motley 
J ack Greenberg 
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

JAM ES ; M. N A BRIT, HI



I N D E X

Statement of the Case ................

Statement of the Facts .................

Specification of Errors ................

Argument ......................................

Conclusion ..........................................

PAGE
1

9

. 18 

. 20 

32

Table op Cases

Boson y. Rippy, 275 F. 2d 850 (5th Cir. 1960) ....... ..24, 31
Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) ...........24, 29
Brown v. Board of Education of Topeka, 347 U. S.

483 (1954) ....... ...................................... 2, 3,4, 5,19,20,25
Brown v. Board of Education of Topeka, 349 IJ. S.

249 (1955) ................................................................. 27, 31

Cooper v. Aaron, 358 U. S. 1 (1958) .....................21, 23, 27

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933 ... .................................................  30

Gibson v. Board of Public Instruction of Dade County,
246 F. 2d 913 (5th Cir. 1957) ...............................  24

Gibson v. Board of Public Instruction of Dade County,
Florida, 272 F. 2d 763 (5th Cir. 1959) ..........5, 24, 26, 30

Guinn v. United States, 238 U. S. 347 (1915) .............  30

Hawkins v. Board of Control, 347 U. S. 971, 350 U. S.
413, 355 U. S. 839 ............ .......... ...................... ........ 24

Holland v. Board of Public Instruction of Palm Beach 
County, Florida, 258 F. 2d 730 (5th Cir. 1958) ...... 24, 30



11

PAGE

Lane v. Wilson, 307 U. S. 268 (1939) ........................  30
Lucy v. Adams, 350 U. S. 1 (1955) ................ ......-.... 25

Mannings v. Board of Public Instruction of Hills­
borough County, 277 F. 2d 370 (5th Cir. 1960) ....3, 23, 29 

Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) 25

Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936) .... 25

Shuttlesworth v. Board of Education, City of Birming­
ham, 162 F. Supp. 372 (M. D. Ala. 1958) aff’d 358
U. S. 101 ...................................................................  30

Sweatt v. Painter, 399 U. S. 629 (1950) ........................  25

Wilson v. Bd. of Supervisors of L. S. U., 92 F. Supp.
986 (E. D. La., 1950) aff’d 340 U. S. 909 .............. 25

Yick Wo v. Hopkins, 118 U. S. 356 (1896)..................... 30

Statutes

Title 28, H. S. C. §1343(3) ..........................................  2
Title 42, U. S. C. §1983 .............................................. 2
Florida Statutes, Section 230.232 ...............................  10

Other A uthorities

1 Race Relations Law Reporter 
(1956) ...................................

237, 921, 924, 940, 961 
..................................21, 28



I k  the

(Emtrt rtf Appeals
F ifth  Ciechit 

No. 19,408

K aren R enee Augustus, a Minor, by Charles A. Augustus, 
her father and next friend, et al.,

Appellants,

The B oard oe P ublic I nstruction of E scambia County, 
F lorida, et al.,

Appellees.

BRIEF FOB APPELLANTS

Statement of the Case

This case involves racial segregation in the public school 
system of Escambia County, Florida.

The instant appeal is from an order entered September 8, 
1961, by the United States District Court, Northern Dis­
trict of Florida, Pensacola Division, approving, as modified 
by the court, appellees’ so-called plan of desegregation.

After futile desegregation efforts, via petition to ap­
pellees in October 1955 and applications of individual 
Negro pupils for admission to a white school in 1959, this 
action was instituted on February 1, 1960, by the parents 
of 12 minor Negro pupils against the Escambia County, 
Florida, Board of Public Instruction and its Superintendent 
to secure compliance with the Supreme Court’s decision in



2

Brown v. Board of Education of Topeka, 347 U. S. 483 
(1954). Jurisdiction of the court below was invoked pur­
suant to the provisions of Title 28, U. S. 0., §1343(3) and 
Title 42, U. S. C., §1983.

Appellants are all Negro residents of the county in­
volved, parents of minor children eligible to attend and 
presently enrolled in public schools of said county, and 
bring this action on behalf of themselves and all other 
Negro parents of children similarly situated.

Appellees are the Board of Public Instruction of 
Escambia County, Florida, a public body corporate, and 
William J. Woodham, the Superintendent of Public In­
struction, and the individual members of said Board.

Unlike prior school desegregation suits, the relief 
sought here was more explicit in terms of what appel­
lants sought to accomplish by the action, i.e., a reorgani­
zation of the county’s biracial school system into a unitary 
nonracial system—including the reassignment of teachers 
and principals, as well as pupils, and the realignment of 
school attendance area lines on a nonracial basis (R. 9).

In addition, the complaint alleged for the first time in 
any Florida case that the responsible school authorities 
had not employed the Florida Pupil Assignment Law 
(FPAL) as a method of achieving desegregation but had 
employed same as a device for maintaining segregation 
(R. 8). Consequently, injunctive relief was also sought 
against discriminatory application of the assignment law 
( R . 9 ) .

Relief was actually sought in the alternative.
First appellants prayed a permanent injunction enjoining 

appellees from continuing to operate a biracial school sys­
tem, specifically enjoining them from maintaining a dual 
scheme or pattern of school zone lines, assigning students



3

on the basis of race and color, assigning school personnel 
on the basis of race and color, and enjoining appellees from 
subjecting Negro children seeking assignment, transfer or 
admission to schools to criteria, requirements, and pre­
requisites not required of white children (R. 9).

In the alternative, appellants asked the court to enter 
a decree directing appellees to present a complete plan for 
the reorganization of the school system into a unitary non- 
racial system, including plans for the assignment of pupils 
and school personnel on a nonraeial basis, the drawing of 
school zone lines on a nonraeial basis, and the elimination 
of any other discriminations in the operation of the school 
system based solely upon race and color (R. 9-10).

Finally, appellants prayed that the court retain juris­
diction of the case pending approval and full implementa­
tion of the plan (R. 10).

However, the lower court’s restrictive interpretation of 
Brown’s impact on segregated school systems constricted 
this approach and narrowed the relief sought to such a 
degree as to necessitate this appeal.

On February 19, 1960, appellees filed a motion to strike 
and a motion to dismiss. This motion prayed, in the main, 
that the court strike those allegations of the complaint 
relating to the assignment of teachers on the basis of race 
and the relief sought with respect to same (R. 10-16). This 
motion also sought to have the complaint dismissed on the 
ground that all appellants had not sought reassignment to 
a white school and none had exhausted the administrative 
remedy provided by the FPAL (R. 13).

On June 24, 1960, the court below denied the motion to 
dismiss, citing this Court’s decision in Mannings v. Board 
of Public Instruction of Hillsborough County, 277 F. 2d 
370 (5th Cir. 1960) but granted the motion to strike alle-



4

gations relative to assignment of personnel on the ground 
that: 1) the Brown decision is limited to the assignment 
of pupils, 2) appellants could not he injured by the ap­
pellees’ racial personnel practices, and 3) there is no such 
mutuality of interest existing between pupils and teachers 
as to give the pupils in this instance standing to sue to 
redress this grievance (R. 17-29).

Prior to this ruling, on March 15, 1960, appellants took 
the deposition of the Superintendent of Public Instruction 
(R. 30-66) and moved for summary judgment on April 13, 
1960 (E. 16-17). This motion was denied subsequent to 
the foregoing ruling, on September 8, 1960, on the ground 
that the facts set forth in the deposition in support of the 
complaint were insufficient basis for the granting of the 
prayer on such a motion (E. 71).

On July 15, 1960, appellees filed their answer in which 
they admitted: 1) the existence of the biracial school sys­
tem; 2) the dual school zone lines; 3) receipt of the 
October 1955 desegregation petition; 4) the individual 
attempts to gain admission to a white school by two of the 
appellants in 1949; 5) denied the inadequacy of the remedy 
provided by the FPAL; 6) denied discriminatory appli­
cation of that law, and 7) averred that there is no duty 
on the part of school authorities operating segregated 
school systems to reassign pupils on a nonracial basis 
(E. 66-71).

A pre-trial conference was held following denial of the 
motion for summary judgment, pursuant to which the court 
entered an order restricting the issues of fact to the 
following:

(a) whether or not the plaintiff children, or one of them, 
were, or have been or are being, denied admission to
O. J. Semmes Elementary School of Escambia County, due 
to race (R. 72).



5

The date set for the hearing was January 16, 1961, and 
in the same order the appellee Board was directed to come 
prepared to advise the court as to “matters inherent in the 
development of a plan for the assignment of pupils in 
accordance with the Constitution of the United States and 
to advise the Court as to a specific date in which it can 
formally submit such plan to it for the consideration of 
the Court” (It. 72).

The hearing was held, as scheduled, following which the 
court below entered an order on March 17, 1961, granting 
appellees “a period of ninety days from the date of this 
order to submit . . .  ‘a plan whereby the plaintiffs and 
members of the class represented by them are hereafter 
afforded a reasonable and conscious opportunity to apply 
for admission to,’ or transfer to, ‘any schools for which 
they are eligible without regard to their race or color and 
to have that choice fairly considered by enrolling au­
thorities,’ in accordance with the United States Court of 
Appeals, Fifth Circuit, Opinion in Gibson v. Board of 
Public Instruction of Dade County, Florida, 272 F. 2d 763” 
(R. 135-136).

In this order the court found as a fact that “applications 
for admission to and transfer within the public schools of 
Escambia County are acted upon by the Board of Public 
Instruction on consideration of the race or color of the 
individual applicants in violation of the constitutional 
rights of said applicants as provided by the Supreme Court 
of the United States in Brown v. Board of Education of 
Topeka, 347 U. S. 483 (1954) and subsequent cases” 
(R. 135).

Thereafter, on June 14, 1961, appellee Board submitted, 
as its plan of desegregation, a resolution adopted by it on 
the same date which provides as follows:



6

Be It Resolved By the Board of Public Instruction 
of Escambia County, Florida, as follows:

1. That upon approval by The United States District 
Court for the Northern District of Florida, on Oc­
tober 1, 1961, or at such other time as may be directed 
by the Court, the following letter shall be mailed by 
the Superintendent of Public Instruction of Escambia 
County, Florida, to the parents or guardians of each 
child who, according to the school records, will attend 
the public schools of Escambia County, Florida, during 
the 1961-1962 school term, to-wit:

Dear Parents or Guardians:
This letter is being sent pursuant to Order of the 

United States District Court for the Northern District 
of Florida.

In order to facilitate the fall opening of school, we 
have a procedure known as Spring Registration which 
takes place during the 4th week of April in 1962. At 
that time, a Pupil Assignment Card is completed at the 
school for each pupil enrolled.

While it is the function of the School Administration 
to recommend assignments, a parent’s preference of 
schools will be fairly considered. You are herewith 
advised that you are being afforded a reasonable and 
conscious opportunity to apply for admission to any 
school for which your child is eligible without regard 
to race or color and to have that choice fairly con­
sidered by the Board of Public Instruction. If you 
wish to exercise your right of preference, you must go 
to the school your child is attending at the time of the 
Spring Registration and sign a Parent School Pref­
erence Card during the period from 23rd through 27th 
of April, 1962.



7

The Pupil Assignment Law provides for numerous 
criteria in the individual assignments of pupils, such 
as attendance areas, transportation facilities, uniform 
testing, available facilities, scholastic aptitude, and 
numerous other factors, except race.

Should the School Administration recommend as­
signment of your child to a school other than the one 
you have requested, you will be notified by letter prior 
to the fall opening of school. In that event you have 
the right to request, in writing, an appearance before 
the Board of Public Instruction to have your preference 
further considered. If such a request for hearing is 
received, you will be notified of the time and place of 
the hearing.

Application for Reassignment may be made at any 
time when a change of residence address or other ma­
terial change in circumstances arises.

Sincerely,

Superintendent

2. That admissions and transfers of pupils will be 
made by this Board pursuant to the provisions of the 
Florida Pupil Assignment Law.

Appellants filed their objections to this so-called plan on 
June 30, 1961 (R. 139-147), and on August 17, 1961, filed 
a proposed alternate plan of desegregation which provided, 
first, for the reassignment of all students pursuant to non- 
racial school attendance area lines based on capacity of 
each school and, secondly, for the reassignment of school 
personnel on a nonraeial basis, i.e., qualification and need 
(R. 143).



8

A hearing was held on appellees’ proposed plan on Au­
gust 17, 1961, and on September 8, 1961, the court adopted 
same with the following modifications: 1) that the plan 
apply to all public schools under the jurisdiction of appel­
lees, including the two junior colleges, 2) the letter to 
parents shall be mailed on or before October 16, 1961, and 
shall specify, in addition, the hours of 7:30 A.M. to 6 :00
P.M. for the period 23rd through 27th of April, 1962, dur­
ing which parents and guardians may exercise their right 
of preference, 3) parents were to be notified on or before 
July 15th of denial of applications for transfer (R. 145- 
146). The court retained jurisdiction for the entry of fur­
ther orders (R. 146). No provision was made for the notifi­
cation of parents of children entering school or moving 
into the county for the first time of their right to exercise 
a choice of schools which would be considered without re­
gard to race. Needless to say, no provision was made for 
the assignment of personnel on a nonracial basis; but 
neither was any provision made or order entered for the 
redrawing of school zone lines on a nonracial basis. Finally, 
and perhaps of the most crucial importance, no injunction 
was issued against consideration of race as a basis for 
admission, assignment, continuance or transfer of any 
pupils and no injunction issued against discriminatory ap­
plication of the FPAL.

From this order, appellants filed their notice of appeal 
to this Court on October 3,1961.



9

Statement of the Facts

E scam bia C ounty’s School P opu la tion

Escambia County’s total school population is relatively 
small with a proportionately small Negro enrollment. Out 
of a total school population of approximately 37,000, ap­
proximately 28,521 are white pupils and 8,557 are Negro 
pupils (R. 35-36, 51-52). There are only 63 schools in the 
entire county—47 white and 16 Negro (R. 51-52). In Pen­
sacola, which is the county’s largest city, the schools are 
divided into elementary, junior high and senior high school 
units. In the rest of the county, each school contains grades 
1 through 12 (R. 52, 54). In addition, the appellee Board 
has under its jurisdiction two junior colleges—Washington 
Junior College (Negro) and Pensacola Junior College 
(white) to which Negroes have applied. It also operates 
an adult education program on a racially segregated basis 
(R. 52). The one technical high school in the county is 
limited to white students (R. 55).

School T ran sporta tion  System

Students who live two or more miles from the school to 
which they are assigned are eligible for transportation to 
and from school (R. 49). However, Escambia County’s 
school transportation system is also segregated. The buses 
which service the Negro schools do not also service the 
white schools (R. 50).

Teacher A ssignm ent P olicy

In accordance with long established policy, custom and 
usage, Negro teachers and principals are assigned to Negro 
schools and white teachers and principals are assigned to 
white schools (R. 50-51, 60). The regular teaching staff is



10

augmented by 36 special teachers who teach retarded chil­
dren, crippled children, children with hearing defects, 
speech defects and sight impairment, all on a segregated 
basis (R. 59). Even in-service training courses for teachers 
are offered on a segregated basis (R. 60). Negro and white 
principals meet together only as members of special admin­
istrative committees (R. 60). Above the principal level, 
there are three Negroes in supervisory capacities in the 
school system. One of these Negro staff members super­
vises the Negro elementary schools (R. 61). The other two 
are visiting teachers who work in the area of attendance 
and with problems related to the school and the home (R. 
61).

A dm in istra tion  o f the F lorida P u pil A ssignm ent Law

On August 22, 1956, approximately one month after the 
Florida Pupil Assignment Law1 was adopted, appellees 
adopted a resolution purporting to implement the provi­
sions of that law in Escambia County.

This resolution, adopted virtually verbatim each year 
thereafter (R. 49, PI. Exhs. A, B, C, D) provided in the 
1959-60 school year for the blanket reassignment of all 
students then enrolled in the schools to the schools which 
they attended the preceding year. Those students who were 
graduating from an elementary or junior high school were 
assigned to the schools which they would have attended 
the preceding year had they then been so promoted. As 
a result of this blanket reassignment, all Negro pupils were 
automatically reassigned to Negro schools and all white

1 Florida Statutes, Section 230.232, adopted by Chapter 31380 
of the session laws of Florida enacted by the 1956 Special Session, 
approved July  22, 1956, amended by Chapter 59-428 of the 1959 
Florida Legislature.



11

pupils were ipso facto reassigned to white schools (R. 36- 
37).

New children were assigned pursuant to application made 
by the parent for admission of the child to a school. The 
resolution required that these applications be made on 
forms approved by the appellee Board and submitted to 
the Superintendent for transmission to the Board for ac­
tion. The resolution further required that such initial as­
signments be made pursuant to all of the provisions of the 
FPAL (R. 49).

The Board reserved to itself the right to reassign any 
pupil at any time whenever in the opinion of the Board, 
upon consideration of the factors set forth in the FPAL, 
such reassignment would be in accord with the intent and 
purpose of that law.

Pupils desiring to transfer from schools to which they 
have been assigned are permitted to do so on written appli­
cation of the parent, at least ten days prior to opening of 
school or ten days prior to the date reassignment is desired 
or such other date as the Board may specify, on forms 
approved by the Board and made available in the principal’s 
or superintendent’s office. The resolution required such ap­
plications to state in detail the specific reasons why reas­
signment is requested, the specific reasons why the appli­
cant thinks the child should be admitted to the school to 
which his admission is sought, together with such other 
information as may be requested by the Board. An incom­
plete application would not be considered. The application 
was required to bear a date on which and by whom received. 
The 1959 resolution provided further that these transfer 
applications be considered by the Board “at the earliest 
practicable date”, and if reassignment be granted, the ap­
plicant and principals of the schools concerned be promptly



12

notified. If the application was denied, the applicant was 
to be promptly notified, and, if a hearing was requested, 
the applicant was to be advised as to the time and place. 
He was to have the right to be heard and to present wit­
nesses in support of his application. Applicants’ evidence 
could be countered by evidence received in opposition or the 
Board might investigate any objections to the granting of 
the application. Moreover, the Board might, on its own 
motion, examine the child. A decision on the transfer was 
to be rendered “as early as may be practicable” and the 
applicant to be promptly notified in writing. A permanent 
record of proceedings and evidence was to be kept. Eight 
categories of criteria were to be employed by the Board in 
rendering decisions on these applications for reassignment:

1. Adequacy and availability of educational facilities,
2. The request or consent of the parent or guardian or

the person standing in loco parentis to the pupil,
3. Effect upon established educational program,

(a) Suitability of curriculum to needs and interest 
of students,

(b) Summary statement from teachers regarding so­
cial acceptance of students being reassigned,

(c) The effect of admission of new pupils on the aca­
demic progress of the other pupils enrolled in a 
particular school,

4. Scholastic aptitude as measured by standardized tests,
5. Mental ability as measured by standardized tests,

(a) The adequacy of a pupil’s academic preparation 
for admission to a particular school,

6. School citizenship records and academic grades,



13

7. Sociological attributes based upon standardized tests 
and personal investigation,
(a) Social attitudes, adjustment, and maturity as 

measured by standardized tests,
(b) Socio-Economic background,

8. Health, safety, and economic welfare of students and 
their families.

The Superintendent testified that because of the large 
number of children seeking reassignment many of them 
have been reassigned pending the administration of certain 
tests (E. 48-49). However, with respect to those pupils who 
sought reassignment during the school year 1960-1961 and 
whose applications were acted upon by the Board, these 
applications appear to have been granted or denied simply 
in terms of availability of space in the school to which re­
assignment is sought (PI. Exh. 9, E. 89-90).

Moreover, these applications were segregated on a racial 
basis, i.e., Negro and white applications were separated 
(E. 91-92).

Appellant Augustus applied for admission of his daugh­
ter to the 0. J. Semmes Elementary School (white), on 
May 13, 1959 (PI. Exh. F). Minor appellant Karen Renee 
Augustus had not previously attended school and was, eli­
gible for admission to the first grade in September 1959. 
The application was submitted to the Superintendent and 
the Board which considered same and assigned the Au­
gustus child to the Brown-Barge School (Negro) (PL Exh. 
F). The Brown-Barge School is approximately 15 blocks 
from the Augustus home (PL Exh. F). Only two blocks 
away is the Semmes School (E. 111-112). The Superinten­
dent testified that the Augustus child lives nearer to the 
Semmes School but was assigned to the Brown-Barge



14

School because of race and pursuant to the attendance area 
delineation which showed that as a Negro student living 
at the address given she was in the Brown-Barge School 
zone (R. 42). There is no question that the sole basis for 
this assignment was race.

The Superintendent testified (R. 43):
“Q. When the Augustus child was assigned to the 

Brown-Barge School rather than the school nearest 
her residence, which is the 0. J. Semmes Schools, she 
was assigned on the basis of race, was she not? A. 
Yes.”

Thereafter, appellant Augustus appealed to the Florida 
State Board of Education where his appeal was denied on 
the ground that he had not asked for a hearing after the 
denial before the local Board (PI. Exhs. H, I). He sub­
sequently requested a hearing before the Board in reply 
to which he received a letter dated November 25, 1959 sug­
gesting to him that he might file an application for “reas­
signment” since his daughter had already been assigned to 
the Brown-Barge School (PI. Exh. 8). Appellant Augus­
tus did not pursue this suggestion.

Appellant Robinson applied for reassignment of her 
child to the Semmes School in May 1959 (PI. Exh. E). At 
that time, the Robinson child was enrolled in the third grade 
of the Brown-Barge School (R. 46). This application was 
denied on the recommendation of the Superintendent to 
the Board (R. 46). This recommendation was assertedly 
based upon the following:

1. The Robinson child scored 2.6 in reading on the Cal­
ifornia Mental Maturity Test which was administered to 
her after she sought admission to the Semmes School, the 
median for the Semmes School being 5.3 and the national 
average being 4.0 (R. 106-107). However, the principal of



15

the Semmes School admitted upon cross-examination that 
white children who scored 2.6 in reading on this test, which 
is given to all students in the school system (R. 109), are 
not excluded from or denied admission to the Semmes 
School for this reason (R. 111).

2. The Robinson child was also denied admission to the 
Semmes School because in the “judgment” of and in the 
“opinion” of the teachers, “she would not be accepted by 
the other children because of her race” (R. 44-45). A simi­
lar subjective test was not applied in any other transfer 
case (PI. Exh. 9).

3. The Superintendent added that he did not recommend 
reassignment of this child because the reasons given for 
her assignment were “insufficient” and because the Semmes 
School was overcrowded (R. 46). But the evidence shows 
that white students were admitted to the Semmes School 
after the Robinson child applied for reassignment, despite 
the overcrowded condition (R. 122-123) and, as Plaintiffs’ 
Exhibit 9 demonstrates, reasons assigned for transfer by 
other parents were similar but seldom controlling.

When Mrs. Robinson sought a hearing before the Board, 
she received a letter from the Superintendent dated No­
vember 25, 1959 (PI. Exh. J) the pertinent provisions of 
which follow:

“I have been further advised to request that in view of 
your request for a hearing on this application for re­
assignment that an amended application for reassign­
ment be filed which states in detail the specific reasons 
reassignment is requested and specific reasons why you 
think your daughter should be admitted to the 0. J. 
Semmes Elementary School, which take into account 
sociological, psychological, ethical, cultural background 
and social scientific factors which might relate to,



16

or cause possible socio-economic class consciousness 
among the pupils already attending the 0. J. Semmes 
Elementary School and your child, and the reasons you 
believe your child will make a normal adjustment to 
this change in environment and will not be prevented 
from receiving the highest standard of instruction 
within her ability to understand and assimilate.
Upon the receipt of this amended application, this 
Board will as soon as reasonably possible thereafter 
give full consideration to the amended application.”

Appellant Robinson did not pursue this request for hear­
ing but, instead, along with appellant Augustus and the 
others, instituted this action.

The Superintendent acknowledged, without equivocation, 
that this Board’s implementation of the FPAL has not 
resulted in any Negro students being assigned to white 
schools or in any white students being assigned to Negro 
schools:

“Q. Since August 22, 1956, you have been operating 
pursuant to the Pupil Assignment Resolution? Is that 
right? A. Yes.

Q. Would you tell me what has happened with re­
spect to the operation of the schools on a racially segre­
gated basis pursuant to this Resolution since you have 
been operating under it. A. There has been no change 
in the operation of our schools.

Q. There has not been any change in the racial com­
position of your schools since this law went into effect? 
A. No” (R. 34-35).

And, as the Superintendent testified, the Board has never 
considered any plan of desegregation other than the FPAL 
(R. 55-56).



17

After the first Board resolution was adopted in 1956, and 
after the adoption of subsequent resolutions, no communi­
cation was sent by the Board to parents to the effect that 
the policy of racial segregation had been abandoned and 
applications for admission or transfer would be considered 
without regard to race (R. 57-58). A copy of the resolutions 
were sent to the principals (R. 57), but the Superintendent 
has never discussed with the principals or the teachers de­
segregation of the schools (R. 61).

School Zone Lines

Prior to adoption of the FPAL, students were assigned 
to school in accordance with school attendance area lines 
(R. 70). Adoption of the FPAL, however, did not terminate 
this simple pupil assignment plan. Students are, in fact, 
still so assigned. The record here discloses that each white 
elementary school (PI. Exh. 2), junior high school (PI. Exh. 
4) and senior high school (PL Exh. 6) is assigned an atten­
dance area. The same with respect to each Negro elemen­
tary (PL Exh. 3), Negro junior high (Pl. Exh. 5) and senior 
high (Pl. Exh. 7). Where Negroes and whites live in the 
same area, these attendance lines overlap (R. 101, 103, 111- 
112). For example, the Augustuses live in the Semmes 
school zone as well as the Brown-Barge school zone (R. I ll-  
112) and the Robinson child lives in the McMillan Elemen­
tary School zone (white) (R. 112) as well as in the 
Brown-Barge school zone.

Negro P upils Pass W hite Schools to  A ttend  
M ore D istant Negro Schools

Upon the trial, appellant Tolbert testified that three of 
his sons attend Washington Senior High School, one daugh­
ter attends Washington Junior High School, and one son 
attends John A. Gibson Elementary School. These are all



IS

Negro schools. The Pensacola High School (white) is 
nearer to the Tolbert home (2% miles) than the Washing­
ton High School (6 miles). The Warrington Junior High 
School (white) is nearer to the Tolbert home (1% miles) 
than the Washington Junior High School (5 miles). The 
son who attends the Gibson Eelmentary School is closer 
to the Navy Point Elementary School (white) which is 
located about two blocks from the Tolbert home. The Tol­
berts live in Warrington, Florida (E. 100-101).

Appellant White also testified on the trial. Both of his 
children, a son and a daughter, attend Spencer Bibb Ele­
mentary School (Negro). The 0. J. Semmes School is 
closer (about % mile) to their residence than the Bibbs 
School (% of a mile away) (E, 102-104).

Specification of Errors

The court below erred in :
1. Striking from the complaint those allegations relat­

ing to the assignment of teachers, principals and other 
school personnel on the basis of race and the relief sought 
with respect thereto.

2. Failing to enjoin appellees from considering race 
with respect to the admission, assignment or transfer of 
pupils to schools under their jurisdiction.

3. Failing to enjoin appellees from applying tests and 
criteria to Negro students for admission to white schools 
not applied to white students.

4. Failing to enjoin appellees from applying the criteria 
of the Florida Pupil Assignment Law only to those pupils 
seeking transfers.



19

5. Failing to enjoin appellees from maintaining a dual 
scheme or pattern of' school zone lines based upon race and 
color and in failing to require appellees to redraw all school 
zone lines based upon school capacity and without regard 
to race and color for each school.

6. Failing to enjoin appellees from assigning teachers, 
principals and other professional school personnel on the 
basis of race and color.

7. Failing to immediately enjoin appellees from continu­
ing to exclude qualified Negro applicants from the Pensa­
cola Junior College and adult education program presently 
limited to white students.

8. Failing to immediately enjoin appellees from exclud­
ing qualified Negro students from the county’s only techni­
cal high school.

9. Failing and refusing to require appellees to make a 
prompt and reasonable start in September 1961 toward full 
compliance with the Supreme Court’s decision in the Brown 
case.

10. Failing and refusing to require appellees to come 
forward with a plan for the reorganization of the entire 
school system into a unitary nonracial system as prayed 
for by appellants in their complaint.



20

A R G U M E N T

I.
Appellants are entitled to an injunction enjoining the 

operation of the Escambia County school system on a 
completely segregated basis.

The record in this case, despite the restrictive nature of 
the rulings below, shows, conclusively, that Escambia 
County has a dual public school system, the sole justifica­
tion for which is the continuation of a racial policy held 
constitutionally void as applied to public education eight 
years ago by the United States Supreme Court in Brown 
v. Board of Education of Topeka, 347 U. S. 483 (1954). 
One system of schools (consisting of elementary, junior 
high and senior high school units in the City of Pensacola 
and first through twelfth grade units in the rest of the 
county) is operated for the exclusive attendance of white 
pupils. These schools are staffed by white teachers, prin­
cipals, and other white professional personnel. A similar 
but separate system of schools is operated for the exclu­
sive attendance of Negro pupils, re-emphasized by the 
racial complexion of the schools’ personnel. The systems 
are so separate that in-service training courses offered to 
teachers are segregated and the Negro and white prin­
cipals meet jointly only on special administrative problem 
committees. The Negro elementary schools are even super­
vised by a Negro on the Superintendent’s staff and the two 
Negro Visiting Teachers, concerned with attendance and 
home-school problems, are restricted to the Negro schools. 
The racial separation policy operates to limit the county’s 
only technical high school to white students. Above the 
high school level, two junior colleges, one for Negroes and 
one for whites, and a segregated adult education program



21

completes the county’s totally segregated public education 
structure. In short, Escambia County has not one school 
system but two with color providing the standard for 
division.

This dual system, of course, originated in Escambia 
County in the same way that other segregated southern 
school systems had their origins, but in 1954 segregated 
public education was held to be violative of the equal pro­
tection clause of the 14th Amendment to the Federal Con­
stitution, Brown v. Board of Education of Topeka, supra, 
thus placing upon all public school authorities operating 
racially segregated public school systems the duty to re­
organize the biracial school systems which they had estab­
lished into unitary nonracial systems. Cooper v. Aaron, 
358 U. S. 1, 7 (1958).

In July 1956, Florida adopted a pupil assignment law 
which purported to meet this new duty on school officials.2 
This law placed upon the Boards of Public Instruction of 
each county the duty of assigning pupils to school in ac­
cordance with a number of criteria set forth therein. 
Promptly, the school authorities here, following the sug­
gestions of the Superintendent of Public Instruction of 
Florida, adopted a resolution on August 22, 1956 embracing 
the FPAL as the basis for assigning pupils to school and 
the suggested rules and regulations for its implementation.3 
The problems of en masse reassignment were resolved the 
first year by blanket reassignment of all pupils then en­
rolled on the basis of race; new pupils were to be admitted 
and transfers were to be granted in accordance with the 
statute’s criteria. Each year thereafter a similar resolu-

2 Florida Statutes, 230.232. See also, 1 Race Relations Law 
Reporter 237, 921, 924, 961 (1956).

3 1 Race Relations Law Reporter 961 (1956).



22

tion was adopted. However, as a result of continued ad­
herence to the State Superintendent’s suggestions within a 
racially segregated context rather than their spirit in a 
context of desegregation, no Negro pupil was ever assigned 
to an all-white school and no white pupil was ever assigned 
to an all-Negro school.

A Negro parents’ desegregation petition to the Board in 
October 1955, requesting compliance with the Supreme 
Court’s decision in the Brown case, was not even considered 
(R. 51).

After the FPAL had been in operation for about three 
years, two of the appellants sought admission of their 
children to the 0. J. Sernmes School, a white school nearer 
to their residences than the Negro school to which they had 
been assigned. Admission to Sernmes was not only denied, 
but appellants were required to meet an obviously undem- 
onstrable burden of proof (PL Exh. J).

In short, there has been no desegregation in Escambia 
County of any description since the Supreme Court’s de­
cision in 1954.

This suit was instituted February 1, 1960 and in August 
1961, when the court entered an order adopting appellees’ 
proposed plan of desegregation, no desegregation had taken 
place as of that time.

Under this alleged plan, the unconstitutional status quo 
is retained, with Negro pupils being given an opportunity 
to apply for transfer to “white” schools, effective Septem­
ber 1962.

In their answer, appellees admit the existence of racial 
segregation in the school system but deny that there is 
any duty upon them to reassign pupils on a nonraeial basis. 
Appellees say:



23

“Defendants deny that racial intermixture of pupils, 
or a general realignment of pupils in a segregated 
school system inherited by these Defendants are legally 
necessitated by the decisions of the Supreme Court of 
the United States in the School Segregation Cases and 
the permitting.of the continuance of already existing 
racially separate schools is consistent with the Con­
stitution so long as there is no official compulsion pres­
ent. These Defendants deny that they have officially 
compelled the Plaintiffs or any other persons to submit 
to any sort of racial discrimination” (E. 68).

The evidence shows, however, that appellees have offi­
cially compelled the appellants and others to submit to 
racial discrimination. The threshold question here, there­
fore, is not whether under the Brown decision “racial inter­
mixture of pupils” is necessitated but whether there is any 
duty on school authorities to desegregate.

The Supreme Court’s decision in Cooper v. Aaron, 358 
U. S. 1 (1958) settled, beyond dispute, that after its deci­
sions in the Brown case in 1954 and 1955, “State authorities 
were thus duty bound to initiate desegregation and to bring 
about the elimination of racial discrimination in the public 
school system.” (At p. 7.) This duty, now resting upon 
school authorities, was recognized and affirmed by this Court 
in Manning v. Board of Public Instruction of Hillsborough 
County, 277 F. 2d 370, 374 (5th Cir. 1960).

Consequently, there can be no doubt that desegregation 
of officially created segregated school systems is required 
by the Brown decision. And this duty is manifestly not 
discharged by continuing to operate a biracial school system 
which now provides, as a result of court action, an oppor­
tunity to apply for a transfer to a “white” school and be 
subjected to a myriad of tests, both objective and sub-



24

jective, which have not been applied to the white pupils 
already in attendance or seeking transfers thereto. Gibson 
v. Board of Public Instruction of Dade County, Florida, 
246 F. 2d 913 (5th Cir. 1957); Gibson v. Board of Public 
Instruction of Dade County, 272 F. 2d 763 (5th Cir. 1959); 
Holland v. Board of Public Instruction of Palm Beach 
County, Florida, 258 F. 2d 730 (5th Cir. 1958); Manning 
v. Board of Public Instruction of Hillsborough County, su­
pra. There is no decision in this Circuit, or any other, which 
sustains appellees’ contention that continued racial segre­
gation is consistent with the Constitution. Addition of the 
phrase: “ . . . so long as there is no official compulsion 
present,” does not meet the problem presented by this rec­
ord since the segregation complained of here is officially 
imposed segregation and not voluntary segregation.

Appellants were, therefore, entitled, either immediately 
or ultimately, Cooper v. Aaron, supra, at p. 7, to an in­
junction enjoining appellees from continuing to operate a 
biracial school system in Escambia County. And even 
where school authorities are given an opportunity to make 
arrangements for a complete transition to a non-segregated 
school system, district courts have been directed to require 
a prompt and reasonable start toward full compliance. 
Cooper v. Aaron, supra, at p. 7; Boson v. Hippy, 275 F. 2d 
850 (5th Cir. 1960); Boson v. Rippy, 285 F. 2d 43 (5th Cir. 
1960).

Moreover, the court below was clearly in error in not 
immediately enjoining the policy of excluding qualified 
Negro applicants from the Pensacola Junior College 
(white), the adult education programs, and the county’s 
only technical high school. The considerations which form 
the basis for postponement of injunctive relief in public 
school cases do not apply to the college level, Hawkins v. 
Board of Control, 347 U. S. 971, 350 U. S. 413, 355 U. S. 839;



25

Lucy v. Adams, 350 U. S. 1, and the state’s failure to pro­
vide separate but equal educational facilities for Negroes 
required immediate injunctive relief even prior to the 
Brown case. Sweatt v. Painter, 339 U. S. 629 (1950); Wilson 
v. Bd. of Supervisors of L. S. U., 92 F. Supp. 986 (E. D. La., 
1950) aff’d, 340 U. S. 909; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337 (1938) ; Pearson v. Murray, 169 Md. 478, 182 
A. 590 (1936).

II.

The Brown  case requires the elimination of racial dis­
crimination from the entire public school system.

The use of race as a criterion in appellees’ operation 
of Escambia County’s public school system is by no means 
limited to the assignment of pupils. Race is a major test 
for staff placement. Negro schools are not evidenced by 
the fact that all the pupils are Negro but by the fact that 
in front of every class is a Negro, the principal is a Negro, 
all the special teachers are Negro, the visiting teachers are 
Negro, and the supervisors are Negro.

Appellants alleged that they, and members of their class, 
are also injured by this policy. It is predicated upon the 
same theory upon which racial assignments of pupils is 
predicated, i.e., the policy of separating the races is
usually interpreted as denoting the inferiority of the Negro 
group.” Brown v. Board of Education of Topeka, 347 U. S. 
483, 494 (1954). Appellants claimed this to be an irrepara­
ble injury and asked for injunctive relief (R. 7, 9). Ap­
pellees’ motion, to strike these allegations was granted 
(R. 10-16, R. 27-29). In entering an order striking these 
allegations, the court below ruled that: 1) the Brown de­
cision is limited to the assignment of pupils, 2) appellant 
could not be injured by appellees’ racially discriminatory



26

personnel assignment policy, and 3) there is no such com­
munity of interest between pupils and teachers as to give 
the pupils a right to bring a class action for the teachers 
not parties thereto (R. 17-29).

Appellees’ answer affirmed what everybody knows: the 
assignment of teachers on the basis of race in the public 
school systems of Florida is a concomitant of racially seg­
regated public education (R. 67-68). The Superintendent’s 
testimony makes clear that the policy has never been 
otherwise:

“Q. You have never had any Negro teachers assigned 
to white schools, or white teachers assigned to Negro 
schools! A. Not to my knowledge.

Q. Does the Board have any policy statement on it! 
A. I don’t know.

Q. But as far as you know it has always been that 
way! A. So far as I know.” (R. 50-51.)

This Court in Gibson v. Board of Public Instruction, 272 
F. 2d 763 (5th Cir. 1959 )̂ ”mreviewing evidence of a con­
tinuing policy of racial segregation in another Florida pub­
lic school system, expressly noted that continuation of the 
policy was evidenced by the fact that, “At the time of 
trial, in the Fall of 1958, complete actual segregation of 
the races, both as to teachers and as to pupils, still pre­
vailed in the public schools of the county.” Moreover, as 
this Court ruled in the Gibson case, there can be no con­
stitutional assignment of pupils to schools until some non- 
segregated schools have been provided (at 767). If teachers 
are assigned on the basis of race, then, obviously, the policy 
of providing segregated schools has not been abandoned 
and no non-segregated schools have been provided to which 
valid assignment of pupils could be made. \



27

But quite aside from this Court’s prior decisions, the 
Supreme Court’s decisions also make it abundantly clear 
that the evil at which the Brown case strikes is racial dis­
crimination in the entire public school system. Cooper v. 
Aaron, 358 U. S. 1, 7 (1958). From the very beginning, 
the Supreme Court approached these cases in terms of the 
whole system, as opposed to the right of individual Negro 
pupils to be admitted to white schools maintained by the 
states under the separate but equahjldcfrine. This was the 
very reason for setting these cases down for reargument 
in 1954, after the Court’s first pronouncement that racial 
segregation in public education is unconstitutional. Upon 
reargument, Brown v. Board of Education of Topeka, 349 
U. 8. 249 (1955), the Court again made clear that what was 
contemplated in these cases was a reorganization of the 
school system on a nonracial basis. For this reason, the 
Court’s opinion permitted district courts flexibility in the 
enforcement of the constitutional principles involved, once 
a start toward full compliance had been made in good faith. 
“To that end,” said the Court, “the courts may consider 
problems related to administration, arising from the physi­
cal condition of the school plant, the school transportation 
system, personnel, revision of school districts and attend­
ance areas into compact units to achieve a system of deter­
mining admission to the public schools on a nonracial basis, 
and revision of local laws and regulations which may be 
necessary in solving the foregoing problems. They will also 
consider the adequacy of any plans the defendants may 
propose to meet these problems and to effectuate a transi­
tion to a racially nondiscriminatory school system. During 
this period of transition, the courts will retain jurisdiction 
of these, cases” (at 300).

Clearly the district courts w’ere permitted to take these 
matters into consideration because desegregation of the



28

school system is involved and not merely the opportunity 
for individual Negroes to apply for admission to “white” 
schools, as held by the court below. School personnel was 
expressly included by the Supreme Court among those mat­
ters which the district courts might take into consideration 
in allowing time for full implementation. The Court plainly 
envisioned that problems involving the reassignment of 
school personnel would be an integral part of the desegre­
gation process, just as it considered that a revision of 
school zone lines into compact units, to achieve a non- 
discriminatory pupil assignment policy, was involved. 
Florida also realized that reassignment of school personnel 
was involved in the desegregation process when it enacted 
legislation dealing with the problem.4

Consequently, the right secured by the Supreme Court’s 
decision in the Brown case is the right to attend school in 
a nonraeial school system in which there is no discrimina­
tion based upon race and color and not the right to attend 
a “white” school in a racially segregated system.

School authorities cannot, therefore, be heard to say that 
they have no duty to eliminate racial discrimination in the 
school system and may continue to operate segregated 
schools, assign teachers on the basis of race and, in short, 
do business as usual.

Teachers are an integral part of the school system and 
the mandate to end racial discrimination in the school sys­
tem clearly carriers with it a duty to end the policy of 
assigning teachers on the basis of race.

1 Race Relations Law Reporter 940 (1956).



29

III.
Use of the Florida Pupil Assignment Law as a method 

of assigning pupils to school must be enjoined on this 
record as a device for maintaining segregation.

The evidence in this case shows that after the FPAL was 
adopted appellees resolved to use this law as the basis for 
assigning pupils to school but from 1956 to the present, 
appellees have used this law, not as a device for achieving 
desegregation, but as a device for maintaining segregation.

In August 1956, using the FPAL and the State Super­
intendent’s suggested implementing resolution, all previ­
ously enrolled pupils were reassigned to the schools to 
which they had been previously assigned on the basis of 
race. Having once effected these racial assignments through 
use of the FPAL, appellees continued this policy year after 
year. This was a prohibited reassignment on the basis of 
race. Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960); see, 
Manning v. Board of Public Instruction, 277 F. 2d 370, 374 
(5th Cir. 1960).

As early as 1956, new pupils entering the first grade or 
coming into the county for the first time were assigned in 
accordance with all of the criteria of the pupil assignment 
law. Again, complete segregation was the end result.

The Superintendent testified that tests were employed 
only in the case of those students seeking transfer (R. 40- 
41). Another constitutionally vulnerable action. Manning 
v. Board of Public Instruction, 277 F. 2d 370 (5th Cir. 1960). 
However, the proof shows that, again, the administration of 
tests to transferees was generally limited to those appli­
cants seeking a desegregated education. Pupils seeking 
transfers within their racial group were reassigned, pend­
ing administration of such tests, on the basis of their 
application alone (R. 49).



30

Except for the Augustus child and the Robinson child, 
no other Negro ever applied for admission to a white 
school and, of course, no white child has ever applied for 
admission to a Negro school. In the case of the Augustus 
child, seeking admission to a school for the first time, the 
use of the pupil assignment law resulted in a racial assign­
ment. In the case of the Robinson child, a Negro seeking 
to transfer to a white school, appellees used the FPAL to 
block this attempt by shifting the burden of employing the 
law’s criteria to the applicant.

In 1949, the FPAL was amended to more nearly conform 
to the Alabama Pupil Assignment Law which had just been 
upheld against an attack on its face. Shuttlesworth v. 
Board of Education, City of Birmingham, 162 F. Supp. 372 
(M. D. Ala. 1958) aff’d 358 U. S. 101. Florida apparently 
believed that the state’s enactment of a pupil assignment 
law and the adoption of implementing resolutions by each 
county board was all that the Brown decision required. 
Gibson v. Board of Public Instruction, 272 F. 2d 763 (5th 
Cir. 1959); Holland v. Board of Public Instruction, 258 F. 
2d 730 (5th Cir. 1958). Appellees, moreover, in using the 
assignment law failed to heed the District Court’s warning 
in the Shuttlesworth case, reiterated by the Supreme Court, 
that the attack in that case was limited to the law on its 
face, whereas, in some subsequent proceeding it might be 
shown that the law had been improperly applied to main­
tain segregation.

It is too plain to require argument that appellees cannot 
use the FPAL or any other law to maintain segregation. 
Shuttlesworth v. Board of Public Instruction, supra; Davis 
v. Schnell, 81 F. Supp. 872 (S. D. Ala., 1949) aff’d 336 U. S. 
933; Lane v. Wilson, 307 U. S. 268 (1939) ; Guinn v. United 
States, 238 U. S. 347 (1915); Yiclc Wo v. Hopkins, 118 U. S. 
356 (1896). The record here is clear. No matter how



31

appellees have employed the FPAL the result has been 
complete segregation throughout the entire county school 
system. This result having come about as a result of the 
use of the pupil assignment law, its continued utilization as 
a method of assigning pupils to school should have been 
enjoined by the court below.

IV.

Appellants are entitled to an order requiring appel­
lees to submit a desegregation plan as prayed in appel­
lants’ complaint.

The District Court’s duty in this case was to require 
defendants to make a prompt and reasonable start toward 
full compliance with the Supreme Court’s decision in the 
Brown case in September 1961. Brown v. Board of Edu­
cation of Topeka, 349 U. S. 294 (1955); Boson v. Rippy, 
275 F. 2d 850, 853 (5th Cir. 1960). Having failed to do so, 
appellants are now entitled to an order requiring such a 
start in September 1962. Boson v. Rippy, supra,

Appellants were also entitled to the desegregation plan 
prayed for in their complaint. Boson v. Rippy, supra.

Under the facts in this case, the District Court should 
have directed appellees to redraw the school attendance 
area lines for all schools in accordance with normal school 
capacity considerations, omitting all racial considerations.

The plan should also have included arrangements for the 
reassignment of the staff on a nonracial basis in order to 
provide some nonracial schools to which assignment could 
be validly made.

Since the pupil assignment law has been used to per­
petuate segregation rather than to effect desegregation, 
and since the evidence shows that appellees considered it



32

unworkable in any event, and since the proof established 
that pupils are, in fact, assigned to school pursuant to 
attendance area lines (the simplest and most workable 
pupil assignment plan), the court below erred in not grant­
ing the relief sought.

CONCLUSION

For all the foregoing reasons, the judgment below 
should be reversed and the District Court ordered to 
direct a prompt and reasonable start toward desegrega­
tion in September 1962 and to direct appellees to come 
forward with a plan as prayed.

Respectfully submitted,

Charles F. W ilson-
507 West Gadsden Street 
Pensacola, Florida

Constance Baker Motley
J ack Greenberg
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants