Clarendon County, SC School District No. 1 Board of Trustees v. Brunson Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    IN THE

Supreme Court of the United States

OCTOBER TERM 1962 

No_________

Board of Trustees of School District No. 1 of Clarendon 
County, South Carolina, et al., Petitioners,

VERSUS

Bobby Brunson, et ah, Respondents.

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

THE FOURTH CIRCUIT

D a v id  W. R o b in s o n  
Robinson, McFadden & Moore 

Columbia, South Carolina 
Attorneys for the Petitioners

THE STATE



TABLE OF CONTENTS
Page

CITATIONS TO OPINIONS B E LO W _____________  1
JURISDICTION___________________________________  1
QUESTIONS PRESENTED________________________ 2
STATUTES AND RULES INVOLVED __________  2
STATEMENT ____________________________________  2
REASONS FOR GRANTING THE WRIT

A. Class Actions_______________________________ 3
B. The Jurisdiction of the Court of Appeals____  5

CONCLUSION ____________________________________  6
APPENDIX _______________________________________ 7

Order of the District Court, Brunson v. Board ____ 8
Opinion of the Court of Appeals for the Fourth 

Circuit, Brunson v. B oard___________________  13
28 U.S.C.A. 1292 Interlocutory Decisions______  17
28 U.S.C.A. 1292 Federal Rules of Civil Procedure 18
Statutes of South Carolina ____________________  18



TABLE OF CITATIONS
Cases Page

All American Airways v. Elderd, 209 F. 2d 247 (1954 ) 5,15 
American Airlines v. Forman, 204 F. 2d 230 (1953).. 5
Briggs v. Elliott, 98 F. Supp. 529 (1951), 342 U. S.

350 (1952), 103 F. Supp. 920 (1952), 347 U. S.
483 (1954), 349 U. S. 294 (1955), 132 F. Supp.
776 (1955) __________________________ 2 ,3 ,5 ,8 ,9 ,1 1

Brown v. Board, 347 U. S. 483, 349 U. S. 294_______  2, 5
Brunson v. Board, 30 F.R.D. 369, 311 F. 2d 107„1, 2, 3, 4, 5
Carson v. Board, 227 F. 2d 789_____________________ 4, 11
Carson v. Warlick, 238 F. 2d 724, c.d. 353 U. S. 910____4, 11
Covington v. Edwards, 264 F. 2d 780, c.d. 361 U. S.

840 _______________________________________    4
Holt v. Raleigh, 265 F. 2d 95, c.d. 361 U. S. 818______  4
Hood v. Board, 232 F. 2d 626, 286 F. 2d 236____ 4, 11, 15
International Machinists v. Street, 367 U. S. 740____ 5, 12
Jeffers v. Whitley, 4 Cir. 309 F. 2d 621___________  16
McCabe v. A.T.&S.F. Ry., 235 U. S. 151___________  11
Morgenstern v. Schering, 181 F. 2d 160 (1950)______  5
Mitchell v. U. S., 313 U.S. 80________________________ 5
NAACP v. Button, 9 L. Ed. 2d 405__________________ 6
Rogers v. Alaska, 249 F. 2d 646 ____________________  5
School Board v. Allen (CA 4), 240 F. 2d 59 (1956)__ 10
School Board v. Atkins (CA 4), 246 F. 2d 325 (1957) 10
Shuttlesworth v. Birmingham, 358 U. S. 101, aff. 162 

F. Supp. 372 __________________________________  4
Williams v. Kansas City, 194 F. Supp. 848, 205 F. 2d 

47, c.d. 346 U.S. 826 ___________________________  12



TABLE OF CITATIONS— Continued 
Cases Page
Statutes

14th Amendment, Constitution of The United States of
America ----------------------------------------------------3, 4, 8, 16

28 U.S.C.A. 1254(1) ______________________________  1
28 U.S.C.A. 1343(3) ______________________________  2
28 U.S.C.A. 1291 _____________ __ _________________  14
28 U.S.C.A. 1292 ______________________ 2, 3, 5, 14, 15, 17
28 U.S.C.A. 1292,

Rule 23(a) (3) ______ 2, 3, 4, 5, 8, 9, 12, 13, 16, 17, 18
28 U.S.C.A. 1292(a) (1) __________________________  2
42 U.S.C.A. 1981, 1983 ___________________ _______  2, 8

1952 Code of Laws of S.C.
Section 21-230 _________________________________ 11
Section 21-247_________________________________ 11

1962 Code of Laws of S.C.
Section 21-230 _________________________________2, 18
Section 21-230.2 ______________________________ 2, 18
Section 21-247 _________________________________2, 19
Section 21-247.2 _____________    19
Section 21-247.3 ______________________________  19
Section 21-247.4 ______________________________  20
Section 21-247.5 ______________________________  20

Miscellaneous
Moore’s Federal Practice, 2nd Ed., Vol. 3, p. 3442 ___ 19



IN THE

Supreme Court of the United States

OCTOBER TERM 1962 
No_________

Board of Trustees of School District No. 1 of Clarendon 
County, South Carolina, et al., Petitioners,

VERSUS

Bobby Brunson, et al, Respondents.

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

THE FOURTH CIRCUIT

The Petitioners pray that a writ of certiorari issue to 
review the judgment of the United States Court of Ap­
peals for the Fourth Circuit entered in the above entitled 
case on December 7, 1962.

CITATIONS TO OPINIONS BELOW
The memorandum opinion and order of the District 

Court is reported as Brunson v. Board, 30 F.R.D. 369 
(R. 8). The opinion of the Court of Appeals is reported 
as Brunson v. Board, 311 F. 2d 107 (R. 13).

JURISDICTION
The judgment of the Court of Appeals was entered on 

December 7, 1962. (R. 13). Rehearing was denied on 
January 22, 1963. The jurisdiction of this Court is in­
voked under 28 U.S.C.A. 1254(1).



QUESTIONS PRESENTED
1. When each of a number of plaintiffs has a several 

cause of action, in which action there is no unresolved 
common question of law and no common question of fact, 
may the causes of action of each plaintiff be joined in a 
class action under the provisions of Rule 23 (a ) (3) of the 
Rules of Civil Procedure?

2. Where a District Court holds that a complaint asking- 
injunctive relief is not properly brought as a class action 
under Rule 23(a) (3) and strikes from the complaint the 
names of all of the plaintiffs save one and all allegations 
inappropriate to a personal action by the remaining plain­
tiff, is this order appealable under 28 U.S.C. A. 1292 ( a ) (1) 
as an order denying injunctive relief?

STATUTES AND RULES INVOLVED
The Federal statutory provision involved is 28 U.S.C.A. 

1292. Rule 23(a) (3) of the Rules of Civil Procedure is 
also involved. The South Carolina pupil placement statute 
is 1962 Code 21-230, 21-230.2, 21-247. R. 18. The juris­
diction of the District Court was invoked pursuant to 28 
U.S.C.A. 1343(3), 42 U.S.C.A. 1981, 1983.

STATEMENT
In order to place the issues in proper perspective it is 

important to note that this action of Brunson v. Board 
is a companion action to Briggs v. Elliott1 which is one of 
the public school segregation cases generally referred to as 
Brown v. Board, 347 U. S. 483, 349 U. S. 294.

Briggs was instituted in 1950 by Negro public school 
children and their parents against the Summerton school 
trustees of Clarendon County, South Carolina, asking the 
Court to declare the South Carolina constitutional and

1 Briggs v. Elliott, 98 F. Supp. 529 (1951), 342 U. S. 350 (1952), 103 F  
Supp. 920 (1952), 347 U. S. 483 (1954), 349 U. S. 294 (1955), 132 F. Supp 
776 (1955).

2 Bd. of T rustees, D ist. N o. 1 of Clarendon Co., S. C., et al., P etitioners vs.



Bobby Brunson, et a l, R espondents 3

statutory provisions requiring racially separate schools 
violative of the Fourteenth Amendment and to grant ap­
propriate injunctive relief. This Court granted the re­
quested relief, remanded the cause to the District Court 
with directions to enter orders admitting to public schools 
“ on a racially non-discriminatory basis with all deliberate 
speed the parties to these cases.” 349 U. S. 301. On remand 
the three-judge District Court entered such an order. 
Briggs v. Elliott, 132 F. Supp, 776 (1955). Briggs v. 
Elliott is still on the District Court calendar as Civil Action 
2657 but no proceedings have been had therein since 1955.

In 1960 some of the same plaintiffs as appeared in 
Briggs joined with other Negro students and parents to 
bring Brunson v. Board against the same defendant school 
district in the same District Court asking substantially the 
same relief asked in Briggs. Brunson was brought as a 
“ spurious” class action under Rule 23(a) (3).

By appropriate motions the defendants questioned the 
class character of the action. The District Court held 
that there was no unresolved common question of law 
and no common question of fact justifying a class action. 
Therefore he struck from, the complaint all plaintiffs ex­
cept the one first named and all allegations inappropriate 
to a personal action by that plaintiff. The order authorized 
the filing of an amended complaint. Brunson v. Board, 30 
F.R.D. 369. R. 8.

The Court of Appeals reversed, holding that a spurious 
class action was appropriate. It also held the District order 
appealable as an order refusing injunctive relief within 
the meaning of 28 U.S.C.A. 1292. Brunson v. Board, 311 
F. 2d 107.

REASONS FOR GRANTING THE WRIT
A. Class Actions

1. The decision of the Court of Appeals in holding that 
the complaint states a case appropriate for a spurious class



4 Bd. of T rustees, D ist. N o. 1 of Clarendon Co., S. C., et al., Petitioners vs.

action because the adequacy of the South Carolina place­
ment statute presents an unresolved common question of 
law is in conflict with its own decisions in Hood v. Board, 
232 F. 2d 626, 286 F. 2d 236; in Carson v. Board, 227 F. 
2d 789; Carson v. Warlick, 238 F. 2d 724, c.d. 353 U. S. 
910; and in Covington v. Edwards, 264 F. 2d 780, c.d. 361 
U. S. 840; Holt v. Raleigh, 265 F. 2d 95, c.d. 361 U. S. 818. 
It is probably in conflict with Shuttlesworth v. Birming­
ham, 358 U. S. 101, affirming 162 F. Supp. 372.

As recognized by the Court of Appeals, rights under the 
Fourteenth Amendment “ are individual and are to be 
individually asserted only after individual exhaustion of 
any reasonable state remedies which may be available . . .” , 
311 F. 2d 109. R. 16. The South Carolina placement 
statute, like those of North Carolina and Alabama, pro­
vides a reasonable state administrative remedy under which 
any aggrieved school child, entitled thereto, can obtain a 
transfer to the school of his choice. Since the Court of Ap­
peals has so held in the Hood decisions, the adequacy of 
the South Carolina administrative remedy is no longer an 
issue. The legal conclusion of the pleader that the remedy 
is inadequate cannot override the decisions of the Court 
of Appeals that the remedy is adequate.

2. The decision of the Court of Appeals is based in part 
upon the erroneous interpretation of Rule 23(a) (3) that 
where two or more plaintiffs each has a “ several” cause 
of action against a common defendant, the relief to which 
each is entitled is broader if they join in a “ spurious” class 
action than if each pursued his remedy in a separate action.2 3

By definition, the causes of action permitted to be joined 
under Rule 23 (a) (3) are “ several.”  This language means

2 . . . The limitation of each plaintiff to an individual action on his own
account and the removal of all allegations appropriate to a class action narrow­
ed the scope of possible injunctive relief to an order requiring the admission of 
a particular plaintiff to a school of his choice. In an individual action main­
tained by a single plaintiff for his sole benefit and without reference to anyone 
else, he could neither ask nor hope for more. The order, therefore, was a denial 
of the broad injunctive relief which the plaintiff sought, which presumably, 
would have affected all schools and all grades in the School District. . . .” 
Brunson v. Board, 311 F. 2d 107, 108.



Bobby Brunson, et al., R espondents 5

that no plaintiff has any legal interest in the cause of any 
other plaintiff. Each by joining in a Rule 23 (a) (3) action 
should obtain the identical relief to which he would be 
entitled if he brought a separate action— no more, no less. 
The reasoning of the Court of Appeals2 that a single plain­
tiff should obtain broader relief where he joins with other 
plaintiffs does violence to the meaning of “ several.”

The only issue of law presented in Brunson was decided 
in the companion case of Briggs v. Elliott, 347 U. S. 483. 
The decision of the Court of Appeals holding a Rule 23 (a) 
(3) class action appropriate is in probable conflict with 
Brown v. Board, 349 U. S. 294, 301, where the Court 
limited relief to the “parties to these cases” ; with Inter­
national Machinists v. Street, 367 U. S. 740, 774; and with 
Mitchell v. U. S., 313 U. S. 80.

B. The Jurisdiction of the Court of Appeals

In holding that the order of the District Court by striking 
the class character of the action was appealable under 28 
U.S.C.A. 1292 merely because the complaint contained a 
prayer for injunctive relief, the decision of the Court of 
Appeals is in probable conflict with the Third Circuit 
opinions in Morgenstern v. Sobering, 181 F. 2d 160 (1950), 
and American Airlines v. Forman, 204 F. 2d 230 (1953) ; 
with the Second Circuit’s opinion in All American Airways 
v. Elderd, 209 F. 2d 247 (1954) ; and with the opinion of 
the Ninth Circuit in Rogers v. Alaska, 249 F. 2d 646, 649- 
50 (1957).

In the case at bar the District Court’s order does not 
purport to pass on the issue of injunctive relief. The 
plaintiff Bobby Brunson is free to present that issue herein 
and each of the other named plaintiffs is free to urge his 
right to injunctive relief in a personal action. Therefore 
the order of the District Court does not in any way pre­
judice the right of any to urge that he is entitled to in­
junctive relief.



6 Bd. of T rustees, D ist. N o. 1 of Clarendon Co., S. C., et al., Petitioners vs.

CONCLUSION
In according to litigants their rights arising from the 

Fourteenth Amendment, it is important that orderly pro­
cedures established by rule and statute be observed. 
NAACP v. Button, 9 L. Ed. 2d 405, 427 (dissenting 
opinion).

Respectfully submitted,
D a v id  W. R o b in s o n  
Robinson, McFadden & Moore 

Attorneys for the Petitioners
March 1963



APPENDIX



8 Bd. of T rustees, D ist. N o. 1 of Clarendon Co., S. C., et al., P etitioners vs.

ORDER OF THE DISTRICT COURT, BRUNSON V.
BOARD, 30 F.R.D. 369.

This cause is before me on the defendants’ motion to 
dismiss upon the ground that the complaint fails to allege 
a class action and on their alternate motion to strike from 
the complaint all of the parties-plaintiff other than the 
first named plaintiff and all of the allegations which are 
unrelated to the first plaintiff’s cause of action upon the 
ground that no class action is alleged.

These motions require an analysis of the complaint to 
ascertain whether these allegations in the light of ap­
plicable law allege a proper class action under Rule 
2 3 (a ) (3).

The complaint is brought in behalf of a large number 
of negro school children by their respective parents against 
the Trustees of School District No. 1 of Clarendon County, 
the Clarendon County Superintendent of Education, and 
the District Superintendent of Education. The complaint 
alleges that it is a class action under Rule 2 3 (a )(3 ) 
brought to protect rights under the 14th Amendment to 
the Constitution of the United States and under the Civil 
Rights Statute, 42 USCA 1981. They allege that the de­
fendants are operating a bi-racial school system in School 
District No. 1 of Clarendon County; that the plaintiffs 
are being denied admission to certain schools solely on 
account of race; and that the plaintiffs have not exhausted 
the administrative remedy provided by the South Caro­
lina school laws because that remedy is inadequate. The 
complaint also alleges that some of the plaintiffs are the 
same parties who were parties in Briggs v. Elliott, (98 F. 
Supp. 529, 103 F. Supp. 920, 347 U. S. 483, 349 U. S. 294, 
132 F. Supp. 776) which action is still pending in this 
Court before a Three-Judge Court. In effect, the complaint 
is brought for the purpose of securing the admission of each 
of the plaintiffs to one of the several white schools being 
operated by the defendants in School District No. 1.



Bobby Brunson, et al., R espondents 9

Rule 23 of the Rules of Civil Procedure of this Court 
provides in pertinent part: “ Class Actions (a) Representa­
tion. If persons constituting a class are so numerous as to 
make it impracticable to bring them all before the court, 
such of them, one or more, as will fairly insure the ade­
quate representation of all may, on behalf of all, sue or be 
sued, when the character of the right sought to be enforced 
for or against the class is * * * * * * (3) several, and there 
is a common question of law or fact affecting the several 
rights and a common relief is sought.”

Moore, in his Federal Practice (2nd Edition), Vol. 3, 
page 3442, designates the class of action referred to in 
Rule 2 3 (a )(3 ) as “ spurious class suits.” Spurious as 
here used does not mean that such a suit may not be main­
tained as a class action but it does mean that this group 
does not fall within the traditional class action. Each plain­
tiff has a “ several” cause of action. Joinder is permitted 
merely because there is a “ common question of law or 
fact.” There is a similarity between this type of class and 
the practice of consolidating for trial two independent 
suits where there is a similar legal or factual situation. 
For instance, tort actions on behalf of two occupants of an 
automobile injured in a single collision with a truck are 
frequently tried together though neither plaintiff has any 
legal interest on the damage to the other.

The inquiry here is to determine whether there is a 
“ common question of law or fact” justifying the use of the 
class procedure of Rule 23(a) (3). Turning first to the 
question of whether there is present in this case any un­
resolved common question of law, I should look to the con­
trolling decisions to ascertain whether there is now any 
unresolved question of law.

In Briggs v. Elliott, 132 F. Supp. 776, 777 (1955), the 
Three-Judge District Court in interpreting the Supreme 
Court decision in 347 U. S. 483, 349 U. S. 294, had this to 
say about the legal issue: “ Having said this, it is important 
that we point out exactly what the Supreme Court has



10 Bd. of T rustees, D ist. No. 1 of Clarendon Cov S. C., et al., P etitioners vs.

decided and what it has not decided in this case. It has 
not decided that the federal courts are to take over or 
regulate the public schools of the states. It has not decided 
that the states must mix persons of different races in the 
schools or must require them to attend schools or must 
deprive them of the right of choosing the schools they 
attend. What it has decided, and all that it has decided, is 
that a state may not deny to any person on account of race 
the right to attend any school that it maintains. This, 
under the decision of the Supreme Court, the state may not 
do directly or indirectly; hut if the schools which it main­
tains are open to children of all races, no violation of the 
Constitution is involved even though the children of dif­
ferent races voluntarily attend different schools, as they 
attend different churches. Nothing in the Constitution or 
in the decision of the Supreme Court takes away from the 
people freedom to choose the schools they attend. The 
Constitution, in other words, does not require integration. 
It merely forbids discrimination. It does not forbid such 
segregation as occurs as the result of voluntary action. It 
merely forbids the use of governmental power to enforce 
segregation. The Fourteenth Amendment is a limitation 
upon the exercise of power by the state or state agencies, 
not a limitation upon the freedom of individuals.”  (Em­
phasis added)

This interpretation of the Supreme Court decision has 
been followed consistently in the Fourth Circuit. School 
Board of City of Charlottesville, Va. v. Allen, (CA 4) 240 
F. 2d 59, 62 (1956) ; School Board of City of Newport 
News, Va. v. Atkins, (CA 4) 246 F. 2d 325, 327 (1957). 
These decisions make it clear that any common question of 
law has been settled. The defendants may not deny to any 
plaintiff on account of race the right to attend any school 
which it maintains. That law has been established not only 
in the controlling decisions of the Fourth Circuit but also 
in an action involving this very school district to which 
several of the plaintiffs here were parties and in which



Bobby Brunson, et al., R espondents 11

the School Board was a defendant, Briggs v. Elliott, 132 F. 
Supp. 776, 777.

There being no unresolved common question of law, I 
shall next consider whether there is a common question of 
fact. In determining the school to which a pupil is entitled 
to go, a School Board must consider a great many factors 
unrelated to race, such as geography, availability of bus 
transportation, availability of classroom space, and scho­
lastic attainment in order to perform the Board’s duty 
to promote the best interests of education within the district 
and insofar as possible place the child in the school where 
he has the best chance to improve his education. “ School 
authorities have the primary responsibility for elucidating, 
assessing and solving these problems.”  Briggs v. Elliott, 
349 U. S. 294. There is no allegation in the complaint show­
ing that the factual situation with reference to each of 
the plaintiffs is the same. Undoubtedly the plaintiffs re­
side in different places, they are of different ages, they are 
of different scholastic attainment. South Carolina has 
provided a pupil placement statute which permits any child 
desiring to attend a school other than the one to which he 
has been assigned to proceed through administrative chan­
nels to obtain placement in a different school of his choice. 
This statute provides that the case of each child shall be 
considered individually. 1952 Code, Sections 21-230, 21- 
247; Hood v. Board, 232 F. 2d 626, 286 F. 2d 236. This 
statute is similar to the North Carolina statute, the validity 
of which was sustained in Carson v. Board of Education of 
McDowell County, 227 F. 2d 789 (1955), and in Carson v. 
Warlick, 238 F. 2d 724 (1956).

It is the individual who is entitled to the equal protec­
tion of the law and if he is denied a facility which under 
the same circumstances is furnished to another citizen, he 
alone may complain that his constitutional privilege has 
been invaded. He has the right to enforce his constitutional 
privilege or he has the right to waive it. No one else can 
make that decision for him. McCabe v. A., T. & S. F. Ry.



12 Bd. of T rustees, D ist. N o. 1 of Clarendon Co., S. C., et al., Petitioners vs.

Co., 235 U. S. 151; Williams v. Kansas City, Mo., 194 F. 
Supp. 848, 205 F. 2d 47, c.d. 346 U. S. 826. Cf. Machinists 
v. Street, 367 U. S. 740, 774 (1961).

Therefore, it is my conclusion that this action is not 
properly brought as a class action under Rule 23(a) (3).

I have not found and the parties have not called to my 
attention any precedent dealing with the disposition of a 
complaint brought as a class action but where a cause of 
action may exist in favor of an individual plaintiff. The 
defendants have moved to dismiss or, in the alternative, to 
strike all of the parties-plaintiff except the first plaintiff 
allowing the case to continue as an individual action in 
behalf of that plaintiff. In my view the latter is the ap­
propriate relief.

It is, therefore, ORDERED AND ADJUDGED, (1) That 
the names of all of the plaintiffs other than Bobby Brun­
son are hereby stricken from the caption of the complaint 
and all of the allegations inappropriate to a personal 
action by Bobby Brunson are stricken from the complaint; 
(2) That the plaintiff Bobby Brunson shall have twenty 
days from the filing of this order in which to file an amend­
ed complaint consistent with the provisions of this order. 
The defendants shall have twenty days in which to plead 
to such an amended complaint.

C. C. WYCHE
United States District Judge
(Sitting by Designation)

Dated:
Spartanburg, South Carolina,
May 30, 1962.

A TRUE COPY, ATTEST,
Ernest L. Allen,
Clerk of U. S. District Court 
East. Dist, So. Carolina



Bobby Brunson, et al., R espondents 13

OPINION OF THE COURT OF APPEALS FOR THE 
FOURTH CIRCUIT, 311 F. 2d 107

Bobby BRUNSON, Elizabeth Brunson and Ellis Brunson, 
by McQueen Brunson, their father and next friend, 
and Tisbia E. Delaine, a Minor, by Leo Delaine, her 
father and next friend, and Eloise Felder, a Minor, 
by Nora Felder, her mother and next friend, et al.,

Appellants,
VERSUS

BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 
OF CLARENDON COUNTY, SOUTH CAROLINA, 
L. B. McCord, County Superintendent of Education, 
C. E. Buttes, District Superintendent of Education, 
W. C. Sprott, Chairman, Board of Trustees, C. N. 
Plowden, W. A. Brunson, J. W. Sconyers and L. Rich­
ardson, Members of the Board of Trustees, Appellees.

No. 8727.
United States Court of Appeals 

Fourth Circuit.
Argued Sept. 26, 1962.
Decided Dec. 7, 1962.

Before SOPER, HAYNSWORTH and BELL, Circuit 
Judges.

PER CURIAM.
This action was brought by forty-two Negro children 

residing in School District No. 1 of Clarendon County, 
South Carolina, and their parents as a spurious class action 
under Rule 23(a) (3) of the Federal Rules of Civil Pro­
cedure. Upon motion, the District Court struck from the 
complaint all reference to all plaintiffs other than Bobby 
Brunson, the first named, and all “ allegations inappropri­
ate to a personal action by Bobby Brunson.”  The plain­
tiffs have appealed from this order.

The order was entered upon a determination by the 
District Court that there was no common question of fact



14 Bd. of T rustees, D ist. No. 1 of Clarendon Co., S. C., et al., P etitioners vs.

or of law warranting an action by these multiple plain­
tiffs under Rule 23(a) (3). It was of the opinion that it 
is well settled that “ [t]he defendants may not deny to any 
plaintiff on account of race the right to attend any school 
which it maintains,”  and that there was no other unresolved 
question of law. It was of the opinion there was no com­
mon question of fact because the School Board was entitled 
to consider a great many factors other than race in assign­
ing individuals to particular schools.

At the outset we are met with the question of the ap­
pealability of the order. It is contended that it was not a 
final order appealable under 28 U.S.C.A. § 1291 because, 
though it was a dismissal of the complaint of all plaintiffs 
other than Bobby Brunson and though Bobby Brunson 
graduated from high school a few days after the order was 
entered, thus making the case moot as to him, the order 
did not dispose of the case as to all plaintiffs, nor was it a 
bar to the filing of a new individual complaint by any of 
the original plaintiffs. In light of the imminence of Bobby 
Brunson’s graduation when the order was entered on May 
30, 1962, the practical effect of the order was a dismissal 
as to all plaintiffs, but, whether or not the order is appeal- 
able under § 1291, we think it appealable under § 1292 as a 
denial of requested injunctive relief.

[1] In their complaint, the plaintiffs allege that the 
School Board has maintained dual, biracial school systems, 
some schools being attended solely by white pupils while 
all others were attended solely by colored pupils. The 
plaintiffs sought general injunctive relief, including an or­
der requiring a general reorganization of the school system 
or, alternatively, the submission of an affirmative plan 
for the desegregation of all schools in the District. Whe­
ther these plaintiffs in this spurious class action might 
be entitled to the broad injunctive relief they sought, we 
do not now consider, but it seems clear that the order of the 
District Court effectively denied that relief. The limitation 
of each plaintiff to an individual action on his own ac­



Bobby Brunson, et al., R espondents 15

count and the removal of all allegations appropriate to 
a class action narrowed the scope of possible injunctive 
relief to an order requiring the admission of a particular 
plaintiff to a school of his choice. In an individual action 
maintained by a single plaintiff for his sole benefit and 
without reference to anyone else, he could neither ask nor 
hope for more. The order, therefore, was a denial of the 
board injunctive relief with the plaintiffs sought, which 
presumably, would have affected all schools and all grades 
in the School District. The order was, therefore, an appeal- 
able one under § 1292, for it was a denial of the broad 
injunctive relief which the plaintiffs sought.

In a comparable situation, we reached a similar con­
clusion in Hood v. Board of Trustees of Sumter County 
School District No. 2, 4 Cir., 232 F. 2d 626. There, we 
treated the order as appealable since it effectively denied 
injunctive relief. The order was affirmed on the merits 
because it there appeared affirmatively that the plaintiffs 
were entitled to no relief for they had not exhausted 
available remedies and offered no acceptable excuse for 
their omission.

This case is unlike All American Airways v. Eldred, 2 
Cir., 209 F. 2d 247. There, the District Court struck from 
the counterclaim all allegations respecting the “ unrelated” 
and unnamed counterclaimants. It left in the counter­
claim, however, the several named counterclaimants in 
their individual and official capacities. The Court of 
Appeals held the order was unappealable because it found 
it did not narrow the scope of available injunctive relief 
or diminish the counterclaim’s invitation to other individ­
uals to intervene and become formal parties to it. Here, 
in contrast, the order does not merely eliminate unnamed 
members of the asserted class; it eliminated all named 
members of the class and effectively limited the scope of 
possible injunctive relief which might be sought in any sub­
sequently filed individual action.



[2] Turning to the merits, we think the order was erron­
eous. Accepting at face value, as we must, the allegations 
of the complaint, for they are thus far uncontroverted, the 
defendants are operating a biracial school system in which 
all assignments are on the basis of race. This, of course, 
is an unlawful discrimination against all pupils as to whom 
the assignments are involuntary. The plaintiffs will be 
entitled to some relief if they prove what they allege. Their 
right to relief is not dependent upon their establishing by 
a preponderance of the evidence the particular school to 
which each would have been assigned under some geogra­
phical or other assignment plan which the School Board has 
not adopted and does not profess to follow, as we have 
recently held in Jeffers et al., v. Whitley, Superintendent of 
the Public Schools of Caswell County, 4 Cir., 309 F. 2d 621.

Whether the School Board is assigning pupils, involun­
tarily, on the basis of race is a question of fact which is 
common to all of these objecting plaintiffs. The right of 
each to some relief will turn upon the resolution of that 
common question of fact. The complaint does not present 
those disparate factual controversies which the District 
Court envisioned.

The adequacy of administrative remedies is another 
common question. The plaintiffs have not pursued avail­
able remedies, but they allege that those administrative 
remedies are inadequate. Whether they are or not is a 
question common to all of these plaintiffs.

As we stated in Jeffers, we have held that rights under 
the Fourteenth Amendment are individual and are to be 
individually asserted only after individual exhaustion of 
any reasonable state remedies which may be available, 
but comparable cases have been almost uniformly brought 
as spurious class actions under Rule 23 (a ) (3 ) .  Those 
which have come before this court have involved common 
questions of law or of fact. Until the desegregation process 
is largely accomplished, many subsequent cases may be 
expected to present common questions of fact, for many

16 Bd. of T rustees, D ist. No. 1 of Clarendon Co., S. G , et al., Petitioners vs.



individuals are likely to be affected in substantially the 
same way so long as a school board continues old dis­
criminatory practices.

Moreover, the court’s consideration of these problems 
is facilitated by the presence of multiple plaintiffs. The 
effect of a particular practice or procedure may be deter­
mined more readily in the light of its impact upon a num­
ber rather than upon one alone. On the other hand, it is 
well recognized that a school board may encounter difficult 
administrative problems as it effects a desegregation of 
its schools, but such problems might be obscured or un- 
apparent if the only question before the court was the 
possible reassignment of a single pupil.

[3] There being common questions of fact, these multi­
ple plaintiffs were entitled under Rule 23(a) (3) to join 
in one action. The order striking their complaint on that 
account was erroneous.

The case will be remanded for further proceedings not 
inconsistent with this opinion.

Reversed and remanded.

28 U.S.C.A. 1292 INTERLOCUTORY DECISIONS
(a) The courts of appeals shall have jurisdiction of ap­

peals from:

(1) Interlocutory orders of the district courts of the 
United States, the United States District Court for the 
District of the Canal Zone, the District Coui’t of Guam, 
and the District Court of the Virgin Islands, or of the 
judges thereof, granting, continuing, modifying, refusing 
or dissolving injunctions, or refusing to dissolve or modify 
injunctions, except where a direct review may be had in 
the Supreme Court.

Bobby Brunson, et al., R espondents 17



18 Bd. of T rustees, D ist. No. 1 of Clarendon Co., S. C., et al., Petitioners vs.

28 U.S.C.A. 1292 FEDERAL RULES OF 
CIVIL PROCEDURE

Rule 23. Class Actions
(a) Representation. If persons constituting a class are 

so numerous as to make it impracticable to bring them all 
before the court, such of them, one or more, as will fairly 
insure the adequate representation of all may, on behalf of 
all, sue or be sued, when the character of the right sought to
be enforced for or against the class is

*  *  *

(3) several, and there is a common question of law or 
fac affecting the several rights and a common relief is 
sought; . . .

STATUTES OF SOUTH CAROLINA
Code of Laivs of South Carolina 1962

Section 21-230. General powers and duties of school trus­
tees.

The board of trustees shall also:
* * * * * *

(9) Transfer and assign pupils. Transfer any pupil 
from one school to another so as to promote the best in­
terests of education and determine the school within its 
district in which any pupil shall enroll.

Section 21-230.2 Rule-making power.

The boards of trustees of the several school districts may 
prescribe such rules and regulations not inconsistent with 
the statute law of this State as they may deem necessary 
or advisable to the proper disposition of matters brought 
before them. This rulemaking power shall specifically 
include the right, at the discretion of the board, to desig­
nate one or more of its members to conduct any hearing 
in connection with any responsibility of the board and to 
make a report on this hearing to the board for its deter­
mination.



Bobby Brunson, et al., R espondents 19

Section 21-24-7. Right to appeal to County Board of Educa­
tion; petition.

Subject to the provisions of §21-230, any parent or per­
son standing in loco parentis to any child of school age, 
the representative of any school or any person aggrieved 
by any decision of the board of trustees of any school dis­
trict in any matter of local controversy in reference to the 
construction or administration of the school laws or the 
placement of any pupil in any school within the district 
shall have the right to appeal the matter in controversy to 
the county board of education by serving a written petition 
upon the chairman of the board of trustees, the chairman 
of the county board of education and upon the adverse 
party within ten days from the date upon which a copy of 
the order or directive of the board of trustees was delivered 
to him by mail or otherwise. The petition shall be verified 
and shall include a statement of the facts and issues in­
volved in the matter in controversy.

Section 21-247.2. Hearing; case of each child to be disposed 
of separately.

The parties shall be entitled to a prompt and fair hearing 
by the county board of education which shall try the matter 
de novo and in accordance with its rules and regulations. 
Where individual children of school age are involved in 
the matter in controversy, the case of each child shall be 
heard and disposed of separately.

Section 21-247.3. Same; appearance of parties; evidence.

At any hearing provided for in §21-247.2 the parties 
may appear in person or through an attorney licensed to 
practice in South Carolina and may submit such testimony, 
under oath, or other evidence as may be pertinent to the 
matter in controversy.



Section 21-2^74. Order of Board of Education; service 
on parties.

After the parties have been heard, the county board of 
education shall issue a written order disposing of the mat­
ter in controversy, a copy of which shall be mailed to each 
of the parties at interest.

Section 21-2^7.5. Appeal to Court of Common Pleas.

Any party aggrieved by the order of the county board 
of education shall have the right to appeal to the court of 
common pleas of the county by serving a written verified 
petition upon the chairman of the county board of educa­
tion and upon the adverse party within ten days from the 
date upon which copy of the order of the county board of 
education was mailed to the petitioner. The parties so serv­
ed shall have twenty days from the date of service, exclu­
sive of the date of service, within which to make return to 
the petition or to otherwise plead, and the matter in con­
troversy shall be tried by the circuit judge de novo with or 
without reference to a master or special referee. The county 
board of education shall certify to the court the record of 
the proceedings upon which its order was based and the 
record so certified shall be admitted as evidence and con­
sidered by the court along with such additional evidence as 
the parties may desire to present. The court shall consider 
and dispose of the cause as other equity cases are tried and 
disposed of, and all parties at interest shall have such rights 
and remedies, including the right of appeal, as are now 
provided by law in such cases.

20 Bd. of T rustees, D ist. No. 1 of Clarendon Co., S. C., et al., Petitioners vs.