Rippy v Brown Petition for Certiorari

    No.

In the

Supreme Court of the United States
OCTOBER TERM, 1956

Dr. Edwin L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District,

Dallas, County, Texas, et al.,
Petitioners,

v.

Charles Brown, a minor, by his father and next friend, 
W alter Brown, Jr., et al.,

Respondents.

Petitioner for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit

PETITION FOR CERTIORARI

John D. McCall,
Mercantile Securities Bldg., 
Dallas, Texas,

A. J. Thuss,
Davis Building,
Dallas 2, Texas,

Of Counsel.

W A R L I C K  L A W  P R I N T I N G  C O .  — 1 2 0 7  H O R D  S T R E E T  — D A L L A S  — R I - 6 7 I 1



I N D E X
Page

Reports of the Opinions of the Courts Below...........  3
Grounds on Which Jurisdiction Is Invoked...............  3
The Question Presented for Review............................ 3-4
Argument Amplifying the Reasons Relied on for the 

Allowance of the Writ of Certiorari........................ 4-6
Conclusion .......................................................................  6
Appendix A— Judgment of the United States Court 

of Appeals for the Fifth Circuit..............................  7-8
Appendix B— Opinion..................................................... 9

Dissenting Opinion ..................................11-24



11 Citations
Page

Cases
Anniston Mfg. Co. v. Davis, 301 U. S. 337.................  6
Brown v. Board of Education, 347 U. S. 483.............  4-5
Brown v. Board of Education, 349 U. S. 294.............  4-5
Douglas v. Noble, 261 U. S. 165....................................  6
U. S. v. Chemical Foundation, 271 U. S. 1.................  5-6
U. S. v. Clark, 20 Wall. 92............................................  6
U. S. v. Nicks, 189 U. S. 199........................................  6
U. S. v. Page, 137 U. S. 673..........................................  6

Statutes
U. S. Code, Sec. 1254(1)................................................. 3



No.

In the

Supreme Court of the United States
OCTOBER TERM, 1956

Dr. Edwin  L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District,

Dallas, County, Texas, et al.,
Petitioners,

v.

Charles Brown, a minor, by his father and next friend, 
W alter Brown , Jr., et al.,

Respondents.

Petition for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit

PETITION FOR CERTIORARI

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

Petitioners, DR. EDWIN L. RIPPY, AS PRESIDENT 
OF THE BOARD OF TRUSTEES OF THE DALLAS 
INDEPENDENT SCHOOL DISTRICT, DALLAS, DAL-



2

LAS COUNTY, TEXAS; W. A. BLAIR; ROBERT L. 
DILLARD, JR.; ROBERT B. GILMORE; ROUSE HOW­
ELL; (MRS.) VERNON D. INGRAM; VAN M. LAMM; 
(MRS.) TRACY H. RUTHERFORD; FRANKLIN E. 
SPAFFORD, DALLAS, DALLAS COUNTY, TEXAS, AS 
MEMBERS OF THE BOARD OF TRUSTEES OF THE 
DALLAS INDEPENDENT SCHOOL DISTRICT, AND 
DR. W. T. WHITE, AS SUPERINTENDENT OF PUB­
LIC SCHOOLS OF THE DALLAS INDEPENDENT 
SCHOOL DISTRICT; HOWARD A. ALLEN, AS PRIN­
CIPAL OF THE W. H. ADAMSON HIGH SCHOOL; 
J. H. GURLEY, AS PRINCIPAL OF THE MAPLE 
LAWN ELEMENTARY SCHOOL; W. A. HAMILTON, 
AS PRINCIPAL OF THE MIRABEAU B. LAMAR 
ELEMENTARY SCHOOL; ELLA E. PARKER, AS 
PRINCIPAL OF THE JOHN HENRY BROWN ELE­
MENTARY SCHOOL; WILLIAM H. STANLEY, AS 
PRINCIPAL OF THE THOMAS A. EDISON ELEMEN­
TARY SCHOOL; RICHARD E. STROUD, AS PRINCI­
PAL OF THE THOMAS J. RUSK JUNIOR HIGH 
SCHOOL, AND, THE DALLAS INDEPENDENT 
SCHOOL DISTRICT, pray that a Writ of Certiorari issue 
to review the judgment of the United States Court of 
Appeals for the Fifth Circuit entered in CHARLES 
BROWN, a minor, by his father and next friend, WAL­
TER BROWN, JR., et ah, Appellants, versus DR. EDWIN 
L. RIPPY, as President of the Board of Trustees of the 
Dallas Independent School District, Dallas County, Texas, 
et ah, Appellees, May 25, 1956.



3

(a)

OPINIONS DELIVERED IN THE COURT BELOW

The Opinion of the United States Court of Appeals for
the Fifth Circuit is reported in ..... Fed. 2d ..... , and is
printed in Appendix B hereto, infra pages 9-24; Transcript 
of Record, page 77. The Dissenting Opinion is presented 
in Appendix B hereto, infra pages 11-24; Transcript of 
Record, page 79,

(b)

GROUNDS ON WHICH JURISDICTION IS INVOKED

(I) The judgment of the court below was rendered May- 
25, 1956, Transcript of Record, page 93.

(II) Petition for rehearing was denied June 19, 1956, 
dissent noted, no opinion rendered.

(III) Jurisdiction of this Court to issue Writ of Cer­
tiorari is invoked under 28 U. S. C. Section 1254(1).

(0
THE QUESTION PRESENTED FOR REVIEW

The Court of Appeals erred in ordering the case back to 
the trial court for further development of the facts regard­
ing a program of desegregation.

The Record considered as a whole reflects that the Hon­
orable District Judge correctly determined the suit was 
prematurely filed and properly dismissed it without preju­
dice to refiling, because the Trustees of the defendant 
School District between May 31, 1955, when the Supreme



4

Court definitely outlined the duties of school trustees to 
accomplish and change from segregated to a desegregated 
system, and September 17, 1955, had not been given a 
reasonable opportunity to exercise their discretion as to 
the manner of accomplishing the drastic change in the 
school plan of education.

ARGUMENT AMPLIFYING THE REASONS RELIED 
ON FOR THE ALLOWANCE OF THE WRIT 

OF CERTIORARI

The suit filed September 12, 1955, by Respondents, 
sought mandatory injunctive relief which, if granted, would 
have the effect of admitting negro scholastics to segregated 
white schools immediately, and also prayed for declaratory 
judgment that segregation as practiced in Texas was un­
constitutional and void. That part of the complaint devoted 
to a request for a hearing before a three-judge court and 
a declaratory judgment was properly ignored. There was 
no constitutional or statutory question involved as the law 
in this respect on segregation had been declared as clearly 
as English language could do so in

Brown v. Board of Education, 3J+7 U. S. b83;

Brown v. Board of Education, 31*9 U. S. 29b.

At the time the suit was filed there was nothing for the 
trial court to decide. The law had been announced as to the 
constitutional principles involved and further the District 
Trustees were given time to exercise their discretion as to 
how desegregation should be accomplished.



5

The answers filed by Petitioner in the trial court recog­
nized its responsibilities of law with reference to desegre­
gation and explained in detail the problems involved. The 
pleadings of the Petitioner indicated affirmatively that 
they were performing their administrative functions in 
good faith.

The trial court, taking judicial knowledge of the hereto­
fore traditional status of segregation in Texas, which 
status had been accepted by State and Federal courts until 
May 17, 1954, the date of the first decision in Brown, et al. 
v. Board of Education, 31+7 U. S. b83, and further taking 
into account it was not until May 31, 1955, when the 
Supreme Court announced a more definite procedure for 
future conduct in Brown v. Board of Education, 3J,9 U. S. 
294., must have adhered to the accepted equitable principles 
that a court should not accept and exercise jurisdiction 
only when it is made clearly to appear that the school 
officials are not performing their administrative functions 
in good faith.

It is inherent in the majority opinion of the Court of 
Appeals, though not specifically stated, that it could be 
assumed the school officials would not follow the law. The 
courts are in unique harmony in holding that it m il be 
presumed that State officials have been following the law 
or will do so.

Stated somewhat differently, a presumption of regular­
ity supports official acts of public officers absent clear 
evidence to the contrary. U. S. v. Chemical Foundation,



6

272 U. S. 1; U. S. v. Clark, 20 Wall. 92; U. S. v. Page, 137 
V. S. 673; U. S. v. Nicks, 189 U. S. 199.

The officers of the Dallas Independent School District 
having had such a short time to formulate a realistic pro­
gram, and the answer evidencing an honest and realistic 
intent to follow the last mandate of the Supreme Court, it 
must be assumed that these administrative officers were 
acting in a lawful manner based upon the facts evident to 
them. Anniston Mfg. Co. v. Davis, 301 U. S. 337. In the 
light of these facts, evident to the Board, it will not be 
presumed they will act arbitrarily or unreasonably. Doug­
las v. Noble, 261 U. S. 165.

The trial court, having recognized these fundamental 
principles of law, properly dismissed the case as having 
been prematurely filed without prejudice to refiling it at 
a later date. The Honorable Court of Appeals of the United 
States for the Fifth Circuit fell into error in not affirming 
the decision.

CONCLUSION
For the foregoing reasons this petition for a writ of 

certiorari should be granted.

Respectfully submitted,
John D. McCall,

Mercantile Securities Bldg., 
Dallas, Texas,

Counsel of Record for Petitioner.
A. J. T huss,

Davis Building,
Dallas 2, Texas,

Of Counsel.



7

APPENDIX A

JUDGMENT OF THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

Extract from the Minutes of May 25, 1956

No. 15,872

Charles Brown, a minor, by his father and next friend, 
W alter Brown, Jr., et al.,

v.

Dr. Edwin  L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District,

Dallas, County, Texas, et al.,

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Northern District of Texas, and was argued by counsel;

On consideration whereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, vacated 
and reversed; and that this cause be, and it is hereby, 
remanded to the said District Court with directions to 
afford the parties a full hearing on the issues tendered in 
their pleadings;

It is further ordered and adjudged that the appellees, Dr. 
Edwin L. Rippy, as President of the Board of Trustees of 
the Dallas Independent School District, Dallas County,



8

Texas, and others, be condemned, in solido, to pay the costs 
of this cause in this Court for which execution may be 
issued out of the said District Court.

“ Cameron, Circuit Judge, dissenting.”



9

APPENDIX B 

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 15,872

Charles Brown, a minor, by his father and next friend, 
W alter Brown, Jr., et al.,

Appellants,
v.

Dr. Edwin  L. Rippy, as President of the Board of Trustees 
of the Dallas Independent School District,

Dallas, County, Texas, et al.,
Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

(May 25, 1956.)

Before HUTCHESON, Chief Judge, and CAMERON and 
BROWN, Circuit Judges.

PER CURIAM: The suit was brought by negro children 
of school age against the President and members of the 
Board of Trustees of the Dallas Independent School Dis­
trict and others for a declaratory judgment and an injunc­



10

tion. It had for its object the entry of a judgment requiring 
the defendants to desegregate with all deliberate speed the 
schools under their jurisdiction, and to cease their prac­
tices of segregating plaintiffs in elementary and high 
school education on account of race and color.

The claim was that the defendants, though obligated to 
do so, were conspiring to neglect to proceed as required 
by law.

The defendants denied that they were proceeding or pro­
posing and conspiring to proceed, in violation of law, to 
force segregation upon plaintiffs on account of their race 
and color. Alleging in effect that they were proceeding, 
and would continue, as required in and by the decisions of 
the Supreme Court, to proceed with all deliberate speed 
with the change over from segregated to non-segregated 
schools, they prayed that all relief, declaratory and injunc­
tive, be denied.

When the case was called, instead of a hearing on 
evidence or agreed facts, there was a running colloquy 
between judge and counsel, in which, after admitting that 
at least some of the plaintiffs had sought and been denied 
admission on a non-segregated basis, the defendants’ coun­
sel vainly tried to offer, in explanation and support of 
their action, evidence of the matters pleaded by them.

Declining to hear the evidence, apparently under the 
mistaken view that the plaintiffs had agreed to the facts 
pleaded by defendants, though the record showed the exact 
contrary, the district judge, determining that the suit was



11

premature, denied the injunction prayed and ordered the 
suit dismissed without prejudice to the right of plaintiffs 
to file it at some later date.

Appealing from that order plaintiffs are here insisting 
that the record shows that the judgment was entered under 
a complete misapprehension both of the law and of the 
facts and must be reversed.

The defendants here urging that the action of the court 
responded to the facts as shown of record and to the law 
as declared in the decisions of the Supreme Court, insist 
that the suit was premature and was properly dismissed 
without prejudice.

We think it quite clear that there is no basis in the evi­
dence for the action taken by the district judge, none in 
law for the reasons given by him in support of his action. 
The judgment is accordingly VACATED and REVERSED 
and the cause is REMANDED with directions to afford 
the parties a full hearing on the issues tendered in their 
pleadings.

CAMERON, Circuit Judge, Dissenting:

I.

The Court below stated, as one of its reasons for dis­
missing the complaint without prejudice, the following:1

“The direction from the Supreme Court of the 
United States requires that the officers and principals

Ut mentioned other grounds arguendo hut this is the basic finding.



12

of each institution, and the lower Courts, shall do 
away with segregation after having worked out a 
proper plan. That direction does not mean that a long 
time shall expire before that plan is agreed upon. It 
may be that the plan contemplates action by the state 
legislature. It is not for this Court to say, other than 
what has been said by the Supreme Court in that 
decision.

“ To grant an injunction in this case would be to 
ignore the equities that present themselves for recog­
nition and to determine what the Supreme Court itself 
decided not to determine. Therefore, I think it appro­
priate that this case be dismissed without prejudice 
to refile it at some later date. Give them some time to 
see what they can work out, and then we will pass 
upon that equity.”  [Emphasis supplied.]

The Court below was evidently referring to what the 
Supreme Court said in its two segregation decisions: “ Be­
cause these are class actions, because of the wide applic­
ability of this decision, and because of the great variety of 
local conditions, the formulation of decrees in these cases 
presents problems of considerable complexity. * * *.” 2

“ Full implementation of these constitutional principles 
may require solution of varied local school problems. School 
authorities have the primary responsibility for elucidat­
ing, assessing and solving these problems; courts will have 
to consider whether the action of school authorities consti­
tutes good faith implementation of the governing constitu­
tional principles. * * * At stake is the personal interest 
of the plaintiffs in admission to public schools as soon as

2Brown, et al. v. Board of Education, etc., May 17, 1954, 347 U. S. 
483, 495.



13

practicable on a nondiscriminatory basis. To effectuate 
this interest may call for elimination of a variety of obsta­
cles in making the transition to school systems operated in 
accordance with the constitutional principles set forth in 
our May 17, 1954, decision. Courts of equity may properly 
take into account the public interest in the elimination of 
such obstacles in a systematic and effective manner. * * * 
To that end the courts may consider problems relating to 
administration, arising from the physical condition of the 
school plant, the school transportation system, personnel, 
revision of school districts and attendance areas into com­
pact units to achieve a system of determining 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. * * *.” (Emphasis added.)3

In my opinion, the Court below was justified in using its 
discretion to dismiss this action without prejudice on the 
ground that it was prematurely brought. It seems clear 
that the course of action fixed by the Supreme Court con­
templated that school boards and other state officials should 
take hold of the complex problem and work it out with the 
aid and in the light of their superior knowledge of the 
problem in all of its ramifications. These state officials 
were to work in an administrative capacity under the plans 
detailed in these two opinions. The Supreme Court recog­
nized that the problem should be viewed as a whole and 
that time would be required and that the state authorities

3Brown, et al. v. Board of Education, etc., May 31, 1955, 349 U. S. 
294, 299-301.



14

should be given full primary responsibility, as well as 
authority, to solve the problem in the light of local condi­
tions. As long as these officials were proceeding in good 
faith and with deliberate speed to do this, it is clear to me 
that the Supreme Court did not intend that they should be 
subjected to harassment by vexatious suits or by the inter­
vention of the courts. It was the “ action of the school 
authorities” which courts were to pass upon at the proper 
time and after there had been opportunity for such action. 
The scheme did not contemplate that the courts should 
anticipate or seek to control such action or should impede 
it by too close chaperonage. “ Action” is defined as “ an act 
or thing done,”— i.e. already performed.

The principles controlling such a situation were an­
nounced in a recent decision of the Supreme Court in a 
situation not unlike that with which we are here dealing.4

That case involved the question whether judicial action 
would be taken to arrest the functioning of the First and 
Second Renegotiation Acts on constitutional grounds before 
administrative remedies had been exhausted. The Supreme 
Court held that such a short-circuiting of the administra­
tive remedy would be “ a long overreaching of equity’s 
strong arm,” and used this language in reaching that con­
clusion :

“ The doctrine, [exhaustion of administrative rem­
edy] wherever applicable, does not require merely the 
initiation of prescribed administrative procedures. It

-•Aircraft and Diesel Equipment Corp. v. Hirsch, et al., 1947, 331 U. S. 
752, 767.



15

is one of exhausting them, that is, of pursuing them 
to their appropriate conclusion and, correlatively, of 
awaiting their final outcome before seeking judicial 
intervention. The very purpose of providing either an 
exclusive or an initial and 'preliminary administrative 
determination is to secure the administrative judg­
ment either, in the one case, in substitution for judi­
cial decision or, in the other as foundation for or per­
chance to make unnecessary later judicial proceed­
ings. Where Congress [here the Supreme Court] has 
clearly commanded that administrative judgment be 
taken initially or exclusively, the courts have no law­
ful function to anticipate the administrative decision 
with their own, whether or not when it has been ren­
dered they may intervene. * * * To do this not only 
would contravene the will of Congress as a matter of 
restricting or deferring judicial action. It would null­
ify the congressional objects in providing the admin­
istrative determination.” [Emphasis added.]

Again, in Myers v. Bethlehem Corp.,5 Mr. Justice Bran- 
deis, citing a score of cases, stated: “ The contention is at 
war with the long settled rule of judicial administration 
that no one is entitled to judicial relief for a supposed or 
threatened injury until the prescribed administrative 
remedies have been exhasted. * * * Obviously, the rule 
requiring exhaustion of the administrative remedy cannot 
be circumvented by asserting that the charge on which the 
complaint rests is groundless and that the mere holding 
of the prescribed administrative hearing would result in 
irreparable damage. Lawsuits also often prove to have been 
groundless; but no way has been discovered of relieving the

51938, 303 U. S. 41, 50-51.



16

defendant from the necessity of a trial to establish the 
fact.” 6

And this Court has applied the principle in a series of 
cases involving claims under the Fourteenth Amendment. 
The first of these was Cook, et al. v. Davis, 19U9,178 F. 2d 
595, cert. den. SiO U. S. 811. A District Court in Georgia 
had intervened by injunction in favor of Davis, who claimed 
that he was discriminated against as a Negro teacher. This 
Court wrote an exhaustive opinion in reversing that deci­
sion and used this language:

“ The broad principle that administrative remedies 
ought to be exhausted before applying to a court for 
extraordinary relief, and especially where the federal 
power impinges on State activities under our federal 
system, applies to this case. ‘No one is entitled to 
judicial relief for a supposed or threatened injury un­
til the prescribed administrative remedy has been 
exhausted.’ Myers v. Bethlehem Shipbuilding Corp., 
303 U. S. 41, citing many cases relating to relief by 
injunction. We held in Bradley Lumber Co. v. Na­
tional Labor Relations Board, 5 Cir., 84 F. 2d 97, 
that the same principle applies to relief by declaratory 
decree. ‘The rule that a suitor must exhaust his ad­
ministrative remedies before seeking the extraordi­
nary relief of a court of equity (citing many cases), is 
of special force when resort is had to the federal courts 
to restrain the action of state officers.’ * * *.” 7

6And see also Alabama Public Service Commission, et al. v. Southern 
Railway Co., 1951, 341 U. S. 341, 349-50.

7And see Bates, et al. v. Batte, et al., 5 Cir., 1951, 187 F. 2d 142, 144. 
And we applied the rule as “of special importance between the federal 
courts and state functionaries”  when we denied equitable relief to 
Negroes seeking voting rights in Peay, et al. v. Cox, Registrar, 5 Cir., 
1951, 190 F. 2d 123, 125, Cert. den. 32 U. S. 896.



17

II.

The situation before the Court below furnishes an excel­
lent illustration of the wisdom and relative necessity of 
permitting the school authorities to apply their experience, 
judgment and investigative facilities to the solution of the 
problem. Dallas County has one hundred twenty school 
buildings, housing for instruction 78,691 white children 
and 14,593 Negro children. Each of those schools and each 
of the children presents a separate problem to be dealt with 
in the light of many other considerations besides race. It 
is not humanly possible that the District Courts consider 
and resolve those problems in all of their details and 
intricacies.

The Northern District, in which Dallas County is situ­
ated, has ninety-nine other counties whose legal business 
must be handled by three active District Judges. If the 
Court below is to be compelled to take jurisdiction of this 
action and try it, there is no reason why every other school 
child in Dallas County and in the Northern District of 
Texas, both white and Negro, should not file suit and 
demand a hearing and procure an adjudication of his own 
individual problems.

III.

Under accepted equitable principles a court should accept 
and exercise jurisdiction only when it is made clearly to 
appear from the pleadings that the school officials are not 
performing their administrative functions in good faith.



18

The complaint here fails entirely to charge any facts tend­
ing to sustain such a thesis and the answer refutes it com­
pletely. The Court will presume that the state officials are 
acting honestly and that they will expeditiously give plain­
tiffs all relief to which they are entitled. Davis v. Am , 
5 Cir., 1952, 199 F. 2d l>2i.

The complaint alleges that the twenty-seven plaintiffs on 
September 5, 1955, applied for admission to certain schools 
in Dallas Independent School District: one applied to a 
junior high school; eight applied to a high school; and the 
residue applied to four separate elementary schools. In 
each instance it is alleged that the principal of the school 
conspired with the superintendent of public schools to 
deprive plaintiffs of the right immediately to attend the 
specified schools based upon their race and color.

The complaint contains no charge at all that the school 
officials did not act in good faith in denying them such 
immediate entry or that the facts did not justify such 
denial. The complaint prayed for a declaratory judgment 
declaring the statutes of the State of Texas under which 
defendants assumed to act unconstitutional, and defining 
the legal rights and relations of the parties; and for injunc­
tion, both temporary and permanent against any enforce­
ment by the defendants of the Texas Statutes referred to. 
The answer contains this statement:

“ * * * Defendants deny there is any scheme or conspir­
acy to circumvent or evade the law or to deprive any child, 
student or other person of their civil rights. The principals



19

of the various schools were following the instructions is­
sued to them by the administrative staff. The administra­
tive staff and the district trustees are now and have been 
making an honest, bona fide, realistic study of the facts 
to meet the obligations the law has placed upon them to 
provide adequate public school education and to perfect, as 
soon as possible, a workable integrated system of public 
education.”

It was further shown from the sworn answer and the 
stipulations of counsel that the Dallas Public School Sys­
tem has operated for ninety years as a segregated system 
and that budget procedures looking to the raising of funds 
by taxation had been formulated and bonds issued on that 
basis and upon the enumeration of white and Negro stu­
dents already made. The details of the budget are controlled 
by state laws and practices, and thereunder statistical data 
is gathered in January of each year. The budget for the 
school year had reached an advanced state of preparation 
when the Supreme Court decision was published on the last 
day of May, 1955, and it was impossible to make the neces­
sary adjustments and allocations of students and teachers 
by the beginning of the school year in September, 1955.

In order that all might be advised of this, the superin­
tendent of schools issued a statement on July 13, 1955, 
advising that a detailed study of all of the problems inher­
ent in desegregating was in progress and the details of that 
study were set forth. Thirty-five million dollars in bonds 
had recently been issued and the capital improvements



20

involved therein would have to be changed. Sixty per cent 
of the money for operating the Dallas schools came from 
the State of Texas, and the Attorney General had ruled 
that funds could be allocated for the coming year only on 
the segregated basis existing when appropriations were 
made and plans for the school year set in motion. Complete 
chaos and a complete breakdown in public school education 
for both White and Negro students would result if the 
school officials should undertake a haphazard effort to deal 
specially with isolated individuals and the six schools in­
volved in the suit out of the total of one hundred twenty. 
The situation required an over-all adjustment based upon 
a consideration of the entire school system, and granting 
to all individuals and classes the rights spelled out in the 
Supreme Court decisions.

IV.
These facts were known to the plaintiffs and their attor­

neys when, they applied for admission to the six schools 
mentioned, and when, one week thereafter, this civil action 
was begun. Anyone willing to accept facts would know that 
the relief demanded in the suit could not be afforded in so 
short a time. That relief was threefold. (1) A judgment 
was sought declaring the Texas Statutes unconstitutional. 
These statutes have been declared unconstitutional by the 
Supreme Court of Texas and defendants’ do not take issue 
with the averments of the complaint in this regard and 
nothing is presented for the Court to decide. (2) Plaintiffs 
prayed that the rights of the parties be declared. There 
was no controversy between the litigants as to their respec­



21

tive rights. Plaintiffs claimed the right to be admitted to 
schools without discrimination because of race or color. 
The defendants freely admitted that right. The only point 
at issue related to timing. There was no “ actual contro­
versy” between the parties, and, therefore, no jurisdiction 
was conferred on the Court by 28 U. S. C. A. 2201 and Rule 
57 F. R. C. P. (3) Injunctions, preliminary and perma­
nent, were sought. There was no threat by the defendants 
to do anything plaintiffs did not want done or to omit 
doing anything plaintiffs wanted done. Defendants sol­
emnly declared their readiness to admit plaintiffs to schools 
on an integrated basis when the problem could properly be 
worked out. The very basis of injunctive relief is threat­
ened action or failure to act by one party in derogation of 
established rights of the other party. The rights claimed by 
the plaintiff are admitted and neither the pleadings nor 
the proof reflect any threat by the defendants to violate 
those rights. Therefore, there is no basis for injunctive 
relief.

“ The history of equity jurisdiction is the history of 
regard for public consequences in employing the extraordi­
nary remedy of the injunction. There have been as many 
and as variegated applications of this supple principle as 
the situations that have brought it to play. * * *. Few 
public interests have a higher claim upon the discretion of 
a federal chancellor than the avoidance of needless friction 
with state policies, whether the policy relates to the en­
forcement of the criminal law * * * or the final authority 
of a state court to interpret doubtful regulatory laws of



22

the state * * *. These cases reflect a doctrine of absention 
appropriate to our federal system whereby the federal 
courts, ‘exercising a wise discretion’ restrain their author­
ity because of ‘scrupulous regard for the rightful inde­
pendence of the state governments’ and for the smooth 
working of the federal judiciary. * * *. This use of equit­
able powers is a contribution of the courts in furthering 
the harmonious relation between state and federal author­
ity without the need of rigorous congressional restriction 
of those powers * * *.” 8

Y .

The majority opinion reverses the judgment dismissing 
the complaint without prejudice and orders the Court below 
to “ afford the parties full hearing on the issues tendered 
in their pleadings.” 9 To permit judicial proceedings to be

8Railroad Commission of Texas, et al. v. Pullman Company, et al., 
1941, 312 U. S. 496, 500-1, and see also Burford v. Sun Oil Co., 319 
U. S. 315, 332-3; Reliable Transfer Co. v. Blanchard, 5 Cir., 1944, 145 
F. 2d 551, 552.

9Plaintiffs aver in their complaint that they are entitled to have it 
heard by a three-judge court under 28 U. S. C. A. 2281, et seq., and pray 
that such a court be convened. If the hearing ordered by the majority 
is to be held, it is my opinion that these statutes must be followed, and 
that any injunction which might possibly be ordered by one judge would 
be void for want of jurisdiction. The statute provides: “ An interlocu­
tory or permanent injunction restraining the enforcement, operation or 
execution of any State statute by restraining the action of any officer 
of such State in the enforcement or execution of such statute or of an 
order made by an administrative board or commission acting under 
State statutes, shall not be granted by any district court or judge there­
of upon the ground of the unconstitutionality of such statute unless the 
application therefor is heard and determined by a district court of three 
judges under Section 2284 of this title.”  The complaint specifically avers 
that the defendants are so acting under state statutes and the language 
of 2281 fits the situation exactly. Although such practices are much in 
vogue, I do not share the belief that specific congressional provisions 
can be repealed or circumvented by judicial fiat.

See Board of Supervisors, etc. v. Tureaud, Oct., 1955, 226 F. 2d 714, 
and my dissents in the same case reported in 225 F. 2d at 435, Aug. 23, 
1955, and 228 F. 2d at 896, Jan., 1956.



23

in progress while the school authorities are seeking to 
perform duties defined by the Supreme Court as primary 
is not only to provide duplication of effort and to bring the 
two proceedings into inevitable conflict, but it is to cast 
into confusion a scheme which the Supreme Court spelled 
out with clarity. Particularly is this true where, as here, 
it is perfectly plain that the school authorities have not 
had time to study the complexities of the problem and to 
come up with the proper answers.

It is not reasonable that the Supreme Court would have 
placed primary responsibility in a group commissioned to 
act administratively with the expectation that this group 
would be hampered or vexed in accomplishing their task, 
severely difficult at best, by contemporaneous litigation 
directed towards fashioning a club to be held over their 
heads. Such a judicial intervention would connote a dis­
trust of the functioning of the preliminary administrative 
process and would cast those conducting it under a handi­
cap of suspicion so great as to thwart at the threshold the 
orderly carrying out of the procedures so plainly delineated 
by the Supreme Court.

Moreover, that course would, in my opinion, contravene 
the principles and policies so carefully worked out by this 
Court in Cook v. Davis, supra, and the other cases follow­
ing it; and would repudiate the approval we gave to the 
action of the trial Court in Davis v. Am, supra, where the



24

complaint had been dismissed as premature, and the lan­
guage we there used (p. 425):

“We cannot assume that if plaintiffs had pursued 
that remedy they would have been denied the relief to 
which they were entitled. The presumption is the other 
way. As the complaint does not allege that plaintiffs 
have availed themselves of the state administrative 
remedies open to them under the Act, their resort to a 
federal court to control state officers in the perform­
ance of their duties is premature.” [Emphasis added.]

It is my opinion that it was within the competence of the 
Court below to dismiss without prejudice his prematurely 
brought complaint and that, in doing so, it followed the 
spirit and letter of the Supreme Court’s opinions and also 
vindicated the true function of the judicial process. I would 
affirm.

A True Copy: 
Teste:

(SEAL)

John A. Feehan , Jr.
Cleric of the United States Court 
of Appeals for the Fifth Circuit.



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