Bryan v Austin Jr Jurisdictional Statement

    IN  THE

(Ilmtrt at tip United States
October Term, 1956

No.

OLA L. BRYAN, et at.,

v.
Appellants,

M. G. AUSTIN, JR., et al,
Appellees.

O n  A ppeal ebom  th e  U nited  S tates D istrict Court eor 
th e  E astern  D istrict oe S outh  Carolina 

Charleston  D ivision

JURISDICTIONAL STATEM ENT

T hurgood M arshall ,
R obert L . Carter,
J ack  Greenberg,

107 West 43rd Street,
New York, New York,

L incoln  C. J e n k in s , J r .,
1107^ Washington Street, 

Columbia, South Carolina,
Attorneys for Appellants.



I N D E X

Opinions Below ..............................................................
Jurisdiction ...................................................................
Question Presented ........................................................
Statutes Involved ..........................................................
Statement ................... ............... ....................................
The Questions Are Substantial...................................

1. Act No. 741 destroys free speech .................
2. Act No. 741 denies equal protection of the

la w s.....................................................................
3. Act No. 741 is a bill of attainder...................
4. Act No. 741 would destroy the liberty to

advocate school desegregation .....................
5. Appellants should not have been remitted to

state cou rts ........................................................
6. Appellants should not have been relegated to

■so-called administrative rem edies.................
7. The District Court abused its discretion . . .

Table of Cases

Adkins v. The School Board of the City of Newport 
News, 148 F. Supp. 430 (E. I). Va., decided Jan.
11, 1957) ......................... ...........................................

Alabama Public Service Commission v. Southern
Railroad Co., 341 U. S. 341 (1951) .........................

Albertson v. Millard, 345 U. S. 242 ...........................
Alston v. School Board of City of Norfolk, 112 F. 2d 

992, 997 (4th Cir., 1940) cert, denied 311 II. S.
693 .................................................................................

American Federation of Labor v. Watson, 327 U. S. 
583 .................................................................................

PAGE

1
2
3
3

5

7
7

8

11

13
13

9

11
11

6,7

11



ii

PAGE

Bolling v. Sharpe, 347 U. S. 497, 499 .........................  7
Brown v. Board of Education, 349 U. S. 294 (1955) 8
Burns v. United States, 287 U. S. 216 .........................  14
Bush v. Orleans Parish School Board, 138 F. Supp.

336, 337 (E. D, La. 1956) ........................................... 8
Carson v. Board of Education of McDowell County,

277 F. 2d 789 (4th Cir., 1955) .................................  9
Carson v. Warlick, 238 F. 2d 724 (4th Cir., 1956),

cert, den. — U. S. — ................................................  9
Chicago, B. & Q. R. Company v. Osborne, 265 U. S.

1 4 ..................................................................................... 2
Cohens v. Virginia, 6 Wheaton 264, 404 .................  14
Cummings v. Missouri, 4 Wall. 277 .........................  7, 8
DeJonge v. Oregon, 299 U. S. 353, 364-365 .............  6
Dyke v. Geary, 244 U. S. 39 ....................................... 2
Eichholz v. Public Service Commission, 306 U. S 

268 .................................................................................

Frost Trucking Co. v. Railroad Commission, 271
U. S. 583, 594 ..............................................................  6

Ex parte Garland, 4 Wall. 333 ..................................  7
Government and Civic Employees Organizing Com­

mittee, CIO et al. v. Windsor, 116 F. Supp. 354,
357 (N. D. Ala. 1953) afF’d 347 U. S. 9 0 1 .............. 2,11

Hanover Fire Insurance Co. v. Carr, 272 U. S. 494 .. 6
Henderson Water Co. v. Corp. Comm, of 1ST. C., 269

U. S. 278 ...................................................................... 2
Hillsboro Township v. Cromwell, 326 U. S. 620, 628-9 12
Kovacs v. Cooper, 336 U. S. 77, 90-94 .......................  7
Lane v. Wilson, 307 U. S. 268 ....................................  13
Louisiana ex rel. Gremillion v. NAACP, Inc, (La.

App. First Cir.) .......................................................  10
Louisiana ex rel. LeBlanc v. Lewis, unreported, No 

55899 (D. C., 19th Jud. Dist.) 10



Dudley v. Board of Supervisors of L. S. IT. and Agri­
cultural & Mechanical College, etc,, Apr. 16,1957 —
F. Supp. — (1 9 5 7 )............'.......... ............................. 8

Montana National Bank v. Yellowstone County, 276 
U. S. 499 .......................................................... ‘ .......... 13

Propper v. Clark, 337 U. S. 472 ...................................  12
Public Utilities Company v. United Fuel Gras Com­

pany, 317 U. S. 456, 468, 469 .....................................  12
Quaker City Cab Co. v. Pennsylvania, 277 II. S. 389 7
Railroad Commission of Texas v. Pullman Co., 312

U. S. 426 ......................................................................  11
Romero v. Weakley, 226 F. 2d 399 (9th Cir., 1955) . . 12
Skinner v. Oklahoma, 316 U. S. 535 .............................  7
Slochower v. Board of Education of N. Y., 350 U. S.

551, 555 .................................  6
Southern Pacific v. Denton, 146 U. S. 202 .................  6
Terra! v. Burke Construction Co., 257 U, S. 529 . . . .  6
Texas v. NAACP Inc. (and NAACP Legal Defense

and Educational Fund Inc.) ...................................  10
Thomas v. Collins, 323 U. S. 5 1 6 .................................  6, 7
Toomer v. Witsell, 334 U. S. 385 .................................  11
Union Tool Company v. Wilson, 259 U. S. 107 .......... 14
United Public Workers v. Mitchell, 330 U. S. 75 .. .. 6
United States Alkali Export v. United States, 325

U. S. 1 9 6 ...................................   13
United States v. Corrick, 298 U. S. 435 .....................  14
United States v. Lovett, 328 U. S. 303 ...................... 7, 8
Waite v. Macy, 246 U. S. 606 ..................................... 13
Wheeling Steel Corp. v. dander, 337 IT. S. 562 . . . .  7
Wieman v. Updegraff, 344 U. S. 183 .....................  6
Williams v. NAACP, Inc., unreported, No. A-58654 

(Sup. Ct. Fulton County) ......................................  10

I ll

PAGE



IV

Other Authorities

Ashmore, The Negro and the Schools .....................  10
1 Race Rel. L. Rep. 237 (1956) .................   8
1 Race Rel. L. Rep. 239 (1956 )................................. 8
1 Race Rel. L. Rep. 241 (1956) .................................  9
1 Race Rel. L. Rep. 421, 418, 426, 420, 424, 450 (1956) 8
1 Race Rel. L. Rep. 422, 449, 592 (1956) .................  9
1 Race Rel. L. Rep. 423 (1956) ................................. 9
1 Race Rel. L. Rep. 438 (1956 )................................. 8
1 Race Rel. L. Rep. 440 (1956) ................................. 8
1 Race Rel. L. Rep. 443 (1955) .............   9
1 Race Rel. L. Rep. 445 (1956) ................................. 8
1 Race Rel. L. Rep. 448 (1956) ................................. 9
1 Race Rel. L. Rep. 451 (1956)................................. 10
1 Race Rel. L. Rep. 571, 576 (1956) ........................... 10
1 Race Rel. L. Rep. 586, 588, 730, 731 ........................  9
1 Race Rel. L. Rep. 728, 943, 944, 942, 927, 776 (1956) 9
1 Race Rel. L. Rep. 730, 941 (1956) ..........................  8
1 Race Rel. L. Rep. 753 (1956) ................................  8
1 Race Rel. L. Rep. 755 (1956).................................  9
1 Race Rel. L. Rep. 924, 954, 955, 940 (1956)..........  8
1 Race Rel. L. Rep. 928-940 (1956) .............    9
1 Race Rel. L. Rep. 948 (1956) ................................. 8
1 Race Rel. L. Rep. 958 (1956) ................................. 10
1 Race Rel. L. Rep. 1086 (1956)............................... 10
1 Race Rel. L. Rep. 1091-1111 (1956) ...................... 9
1 Race Rel. L. Rep. 1109 (1956) .................................  9
2 Race Rel. L. Rep. 220, 222, 215, 220-228 .................  8, 9
Robison, “ Organizations Promoting Civil Rights and

Liberties”  ...................................................................  10
Rose, The Negro in A m erica ....................................... 10
Williams and Ryan, Schools in Transition.............. 10
Woodward, The Strange Career of Jim C ro w .......... 10
58 Yale L. J. 574 (1949) ...................................... 10

PAGE



V

State Statutes
PAGE

Arkansas Laws of 1957, Acts Nos. 83, 84, 85 .......... 10
Acts and Joint Resolutions of the General Assembly

of South Carolina, No. 7 4 1 ..................... 2, 3, 4, 7, 8,11, 13
Code of South Carolina (1952) Section 21-103 . . . .  3,13
Tennessee Public Chapter Nos. 102, 151, 152 (1957) 10

United States Statutes

28 U. S. C. §§ 2281-2284 ..................................................  2, 4
28 U. S. C. § 1253 ............................................................ 2



IN  THE

g>upx*mi> (to r t  of thr Inttrii ^tatru
October Term, 1956 

No.

---------------o---------------

Ola L. B ryan , et al., 

v.
Appellants,

M. G. A u stin , J r ., et al.,
Appellees.

On A ppeal from  th e  United S tates D istrict C ourt for 
the  E astern  D istrict of S outh  Carolina 

Charleston D ivision

-----------------------o----------------------

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United 
States District Court for the Eastern District of South 
Carolina, Charleston Division, entered on January 23, 
1957, which denied appellants’ applications for preliminary 
and final injunctions to restrain the enforcement of Acts 
and Joint Resolutions of the General Assembly of South 
Carolina, 1956, No. 741 and submit this statement to show 
that the Supreme Court of the United States has jurisdic­
tion of this appeal and that a substantial question is 
presented.

Opinions Below

The opinions of Judges Williams, Timmerman and 
Parker, and the majority opinion in which Judges Timmer­
man and Williams concurred which contains the order of 
the court in which the latter two Judges concurred, are not 
yet reported and are attached hereto as Appendix A.



2

Jurisdiction

This suit was brought in the United States District 
Court for the Eastern District of South Carolina, Charles­
ton Division, under 28 U. S. C. Section 2281-2284 to secure 
preliminary and final injunctions against officers of the 
State of South Carolina to restrain them from enforcing, 
on grounds of unconstitutionality, Act No. 741 of the Acts 
and Joint Resolutions of the General Assembly of South 
Carolina, 1956. The order of the District Court was entered 
on January 23, 1957 and Notice of Appeal was filed in 
that court on February 20, 1957. The jurisdiction of the 
Supreme Court to review this decision by direct appeal is 
conferred by 28 U. S. C. Section 1253 which provides:

“ Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an 
interlocutory or permanent injunction in any civil 
action, suit or proceeding required by any Act of 
Congress to be heard and determined by a district 
court of three judges.”

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment on direct appeal 
in this case: Government and Civic Employees Organizing 
Committee v. Windsor, 347 U. S. 901, aff’g 116 F. Supp. 
354 (N. D. Ala. 1953) in which the order of the three-judge 
court (116 F. Supp. at p. 359) was in language almost 
identical to that employed by the district court here. On 
appeal this Court exercised jurisdiction and affirmed. The 
exercise of jurisdiction in that case demonstrates that this 
Court also possesses jurisdiction here, although the affirm­
ance merely indicates that the statute there in question, 
unlike the legislation involved in this case, was susceptible 
of a constitutional construction (116 F. Supp. at p. 357), 
as discussed in greater detail, infra, p. 11. See also Van 
Dyke v. Geary, 244 U. S. 39; Eichhols v. P. 8. C., 306 U. S. 
268; Chicago, B. & Q. R. Company v. Osborne, 265 U. S. 14; 
Henderson Water Company v. Corp. Comm, of N. C., 269 
U. S. 278.



3

Question Presented

Whether, where appellants, Negro public school teachers, 
challenged a South Carolina statute unequivocally forbid­
ding state agencies to employ members of the National 
Association for the Advancement of Colored People and 
authorizing state officials to demand of state employees 
oaths of non-membership in this association, on grounds of 
unconstitutionality under the Fourteenth Amendment’s due 
process and equal protection clauses and as a Bill of At­
tainder prohibited by Article 1, Section 9, Clause 3, the 
District Court correctly denied injunctive relief restraining 
the statute’s enforcement, relegating plaintiffs to inher­
ently ineffectual “ administrative remedies”  and to state 
courts for a determination of the statute’s constitutionality.

Statutes Involved

Act No. 741 of the Acts and Resolutions of the General 
Assembly of South Carolina, 1956; Code of South Carolina 
1952, Section 21-103, reprinted herein in Appendix B.

Statement

The principal facts are related succinctly in the opinion 
of Judge Williams:

There is no dispute as to the facts. Plaintiffs are 
seventeen Negro school teachers, who had been em­
ployed in Elloree Training School of School District 
No. 7 of Orangeburg County, South Carolina, prior 
to June 1956 for varying periods of time, one for as 
long as ten years. There is evidence to the effect 
that they were competent teachers and there is no 
evidence that their service was unsatisfactory in any 
way. In March 1956 the Legislature of South Caro­
lina passed the act here complained of [Act No. 741, 
reprinted in full in Appendix B], one of the pro­
visions of which authorized the board of trustees of 
any school to demand of any teacher that he submit



4

a statement under oath as to whether or not he was 
a member of the National Association for the Ad­
vancement of Colored People, and provided that any­
one refusing to submit such statement should be sum- 

. marily dismissed. Other sections of the act made it 
unlawful for any member of that association to be 
employed by any school district and imposed a fine 
of $100 for employing any individual contrary to the 
provisions of the Act. When plaintiffs in May of 
1956 were given blank applications [set forth in this 
Appendix C] by the School Superintendent to be 
filled out and sworn to, which contained questions as 
to their membership in the Association and their 
views as to the desirability of segregation in the 
schools, they declined to answer these questions. 
Only one of the plaintiffs, however, was a member of 
the Association. Upon being told that they would 
have to fill in the answers or tender their resigna­
tions, they chose the latter course and were not 
elected as teachers for the ensuing year. (E. 90-91, 
App. pp. 2a-3a),

On September 12,1956, appellants commenced action for 
interlocutory and permanent injunctions to restrain the 
enforcement of Act No. 741. In their complaint plaintiffs 
alleged that the statute in question was unconstitutional in 
that it violated Fourteenth Amendment guarantees against 
state denial of freedom of speech and assembly (R. 9) and 
in that it was a bill of attainder (R. 9). Because plaintiffs 
sought to enjoin state officers in the enforcement of a statute 
of state wide application a three-judge court consisting of 
Chief Judge John J. Parker, District Judges George Bell 
Timmerman and Ashton H. Williams, was convened as 
provided by 28 U. S. C., Sections 2281-2284. Complete 
testimony was taken, argument had, and thereafter, briefs 
submitted.

Each member of the District Court wrote a separate 
opinion although Judge Timmerman, disagreeing with 
Judge Williams’ position, concurred in it (R. 112, App. 
p. 28a) to create a majority in support of the order actually 
issued (R. 125, App. p. 42a). Judge Williams was of the



5

opinion that the three-judge district court had jurisdiction, 
but “  [t] o declare an act of the state legislature unconstitu­
tional should be left to the state court”  (R. 96, App. p. 8a). 
He therefore wrote that “  [t]he ease should not be dis­
missed but should be retained and remain pending to per­
mit the plaintiffs a reasonable time for the exhaustion of 
state administrative and judicial remedies as may be avail­
able. . . . ”  (R. 97, App. 9 a).

Judge Timmerman was of the opinion that the three- 
judge district court did not have jurisdiction because he 
believed that the statute in question had not been applied 
to the plaintiffs (R. 102, App. p. 18a). Moreover, in his 
view the statute in question was entirely constitutional 
(R. 107, App. p. 21a).

Judge Parker, agreeing with Judge Williams as to juris­
diction, but dissenting as to the majority’s disposition of 
the case, was of the opinion that on the law and the uncon­
tradicted evidence the statute in question was unconstitu­
tional and that the requested relief should have been 
granted (R. 124, App. p. 41a). He believed that no con­
struction of the statute in question could render it consti­
tutional (R. 114, App. p. 30a) (therefore there was no rea­
son to remand to the state court), that the so-called ad­
ministrative remedy conferred by the statute was judicial, 
and need not have been exhausted under Lane v. Wilson, 
307 U. S. 268, and that no administrative remedy could cure 
the basic defect of unconstitutionality (R. 123, App. pp. 
40a-41a), (therefore, there was no reason to remand to state 
administrative tribunals).

The Questions Are Substantial

1. Act No. 741 destroys free speech

The legislation in question is a patent attempt to 
destroy rights of free speech and association and flies 
squarely in the face of the prior decisions of this Court. 
The statute complained of is, in the words of Chief Judge 
Parker, “ unambiguous and clearly unconstitutional”  (R.



6

124, App. p. 41a). The right to belong to a lawful associa­
tion is one of those rights of expression and conscience 
secured by the First Amendment and incorporated into the 
Fourteenth. Wieman v. Up&egraff, 344 U. S. 183; Thomas 
v. Collins, 323 U. S. 516; DeJonge v. Oregon, 299 U. S. 353. 
Such constitutional rights may not be taken away directly 
nor may the enjoyment of a legal privilege, in this case 
public employment, be conditioned upon their abandon­
ment. As to public employment see: Slochower v. Board of 
Education of N. Y 350 U. S. 551, 555; Wieman v. Upde- 
graff, 344 U. S. 183, 191-192; United, Public Workers v. 
Mitchell, 330 U. S. 75, 100; Alston v. School Board of City 
of Norfolk, 112 F. 2d 992, 997 (4th Cir., 1940), cert, denied, 
311 U. S. 693. As to other constitutional rights see: Frost 
v. Railroad Commission, 271 U. S. 583 (use of public high­
ways) ; Terral v. Burke Construction Go., 257 U. S. 529 
(right to do business within state); Hanover Fire Insur­
ance Go. v. Carr, 272 U. S. 494 (sam e); Southern Pacific v. 
Denton, 146 U. S. 202 (same).1

1 Plaintiffs, of course, have standing to raise the question of the 
constitutionality of the statute, for in the words of Judge Parker 
(R. 120, App. p. 3 8 a ):

“ . . . one of them is a member of the Association and all have 
been denied employment because of their refusal to answer the 
questions as to membership in that organization. The school 
authorities may, of course, make inquiries of prospective teachers 
as to matters bearing upon their character and fitness to teach; 
but this is a very different thing from making inquiry as to 
membership in an organization which they have a right to join 
but membership in which, under state law, bars them of the 
right of employment. Just as they have a right not to be denied 
employment because of such membership, they have a right not 
to be denied employment for refusal to make oath with regard 
to the matter. What was required of them was not merely 
answers to questions but the filing of a sworn statement. This 
was requiring of them a ‘test oath’ relating to membership as 
a condition of employment which was clearly an invasion of 
their constitutional rights as held in Wieman v. Updegraff, supra.

“ It is argued that plaintiffs are no longer employed by defend­
ants and that they have no applications for positions pending 
which could be adversely affected by the statute. This is to take 
too narrow a view of the rights of plaintiffs, who are public



7

2. Act No. 741 denies equal protection of the laws

Moreover, Act 741 is obviously unconstitutional in 
the light of decisions of this Court interpreting the equal 
protection clause of the Fourteenth Amendment. To meet 
the test of that clause state legislation must make only 
reasonable distinctions reasonably related to a valid legis­
lative purpose. Quaker City Cab Co. v. Pennsylvania, 277 
U. S. 389 ; Wheeling Steel Cory. v. dander, 337 IT. S. 562; 
Skinner v. Oklahoma, 316 U. S. 535. The ultimate purpose 
of Act No. 741 fully discussed infra, pp. 8-9, is to prevent 
the full enjoyment of equal protection of the laws in public 
education. A more immediate purpose is to stifle discus­
sion of the segregation issue. Both ends are illegal. But 
even if the statute’s purpose were something else, Act. No. 
741 is invalid in that it is not based upon a real and sub­
stantial difference. As a “ constitutionally suspect”  statute, 
Bolling v. Sharpe, 347 IT. S. 497, 499, and one lacking the 
momentum for respect accorded other regulations, Kovacs 
v. Cooper, 336 IT. S. 77, 90-94, Thomas v. Collins, 323 IT. 8. 
516, 530, no valid justification has been made to support its 
having singled out membership in this organization.

3. Act No. 741 is a bill of attainder

Moreover, the statute in question is a bill of attainder, 
a legislative act which inflicts punishment without judicial 
trial. Cummings v. Missouri, 4 Wall. 277; Ex parte Gar­
land, 4 Wall. 333; United States v. Lovett, 328 IT. S. 303. 
Members of the National Association for the Advancement

school teachers by profession whose rights are invaded by the 
statute and the inquiries to which they have been subjected 
thereunder. They are seeking here a declaration as to their 
rights in a suit instituted against representatives of the state 
charged with the enforcement of the statute in the locality in 
which they reside, in which the provisions of the statute have 
been enforced against them, in which they desire to teach and 
in which they would naturally seek employment as teachers in 
the future.”  See also Alston v. School Board of Norfolk, 112 
F. 2d 992, 997 (4th Cir., 1940), cert, denied, 311 U. S. 693.



8

of Colored People are, as set forth in these cases, ‘ ‘ easily 
ascertainable members of a group” , United States v. Lovett, 
328 U. S. 303, 315-316. The fact that the proscription is 
in the form of an oath does not save it, Cummings v. Mis­
souri, supra. Deprival of public employment is ‘ ‘ punish­
ment”  within the meaning of the constitutional prohibition 
of bills of attainder, United States v. Lovett, supra.

4 .  Act No. 741 would destroy the liberty to advocate school
desegregation

This case therefore presents another facet of the 
attack mounted by certain states upon this Court’s de­
cision in Brown v. Board of Education, 349 U. S. 294. 
Like other states 2 South Carolina, whose legislation is

2 As to interposition and nullification : Senate Concurrent Resolu­
tion No. 17-XX, Special Session, 1956, of the Florida Legislature, 
1 Race Rel. L. Rep. 948 (1956) ; House Resolution No. 185, Regular 
Session, 1956, of the Georgia General Assembly, 1 Race Rel. L. Rep. 
438 (1956) ; House Concurrent Resolution No. 10, Regular Session, 
1956, of the Louisiana Legislature, 1 Race Rel. L. Rep. 753 (1956) ; 
Senate Concurrent Resolution No. 125, Regular Session, 1956, of 
the Mississippi Legislature, 1 Race Rel. L. Rep. 440 (1956) ; House 
Resolution No. 1, Tennessee General Assembly, 1957, 2 Race Rel. 
L. Rep. 228 (1957) ; Senate Joint Resolution No. 3, 1956 Session of 
the Virginia Legislature, 1 Race Rel. L. Rep. 445 (1956).

As to other attempts at circumvention:
Florida: Ch. 29746 (1955), 1 Race Rel. L. Rep. 237 (1956); 

Chs. 31380, 31389, 31390, 31391 (1956), 1 Race Rel. L. Rep. 
924, 954, 955, 940 (1956).

Georgia: Appropriation Act §§7-8, Acts 11, 12, 13, 15, 197 
(1956), 1 Race Rel. L. Rep. 421, 418, 426, 420, 424, 450 (1956).

Louisiana: Const. Art. XII, §1, La. R. S. 17:331-334, La. 
R. S. 17.81.1, 1 Race Rel. L. Rep. 239 (1956), held unconstitu­
tional in Bush v. Orleans Parish School Board, 138 F. Supp. 
336, 337 (E. D. La. 1956), motion for leave to file petition for 
writ of mandamus denied, 351 U. S. 948 (1956), aff’d —  F. 2d 
—  (5th Cir. decided March 1, 1957); La. R. S. 17:2131-2135, 
La. R. S. 17:443, 1 Race Rel. L. Rep. 730, 941 (1956) now 
declared unconstitutional in Ludley v. Board of Supervisors of 
L. S. U. and Agricultural and mechanical College, etc., —  F. 
Supp. —  (E. D., La.), decided April 16, 1957; Acts 28, 248,



9

involved in this case, has enacted statutes of nullifica­
tion and interposition3 and other legislation4 designed 
to inhibit Negroes seeking school desegregation. South 
Carolina would deny freedom of speech and assem­
bly in order to achieve its goal, and in this case has taken 
the extraordinary step of conditioning the exercise of the 
privilege of public employment upon abandonment of the

250, 252, Senate Bill 350, Const. Art. X IX , § 26, 1 Race Rel. 
L. Rep. 728, 943, 944, 942, 927, 776 (1956); House Concurrent 
Resolution No. 9, 1956 Session, 1 Race Rel. L. Rep. 755 (1956).

Mississippi: House Concurrent Resolution No. 21, Regular 
Session 1956, 1 Race Rel. L. Rep. 423 (1956) ; Proposed House 
Bill No. 30, Regular Session, 1956 (vetoed by Governor), 1 Race 
Rel. L. Rep. 448 (1956); House Bills No. 31, 119, 880 (1956),
1 Race Rel. L. Rep. 422, 449, 592 (1956).

North Carolina: Chs. 1-7, 1956 Extra Session, 1 Race Rel. 
L. Rep. 928-940 (1956); Act 336, 1955, 1 Race Rel. L. Rep. 
240 (1956), see Carson v. Board of Education of McDowell 
County, 227 F. 2d 789 (4th Cir., 1955) and Carson v. Warlick, 
238 F. 2d 724 (4th Cir., 1956), cert. den. —  U. S. — , 1 L. ed. 
2d 664.

Tennessee: Chs. 9, 10, 11, 12, 13 Laws of Tennessee (1957),
2 Race Rel. L. Rep. 220, 222, 215, 220, 215.

Virginia: Ch. 70, Extra Session 1956, 1 Race Rel. L. Rep. 
1109 (1956) held unconstitutional in Adkins v. The School 
Board of the City of Newport News, 148 F. Supp. 430 (E. D. 
Va., 1957); Chs. 56-71 (1956). 1 Race Rel. L. Rep. 1091-1111 
(1956).

3 Act of February 14, 1956, Calendar No. S. 514 of the South 
Carolina Legislature, 1 Race Rel. L. Rep. 443 (1956).

4 Act 329 (1955), 1 Race Rel. L. Rep. 241 (1956) (appropria­
tions for operation of a public school system shall cease for a school 
from which, and for a school to which, any pupil may transfer pur­
suant to order of court). Acts of 1956 : 662 (providing administra­
tive remedies for those aggrieved by school assignment) ; 676 (pro­
viding that boards of trustees of school districts may prescribe rules 
and regulations) ; 677 (making similar provision for county boards 
of education) ; 712 (authorizing sheriffs to remove children from 
schools) ; 813, § 3 (restricting expenditures of funds to institutions 
of higher learning where racial integration is not practiced). 1 Race 
Rel. L. Rep. 586, 588, 730, 731.



10

constitutional right of free speech and assembly—in this 
case the right to belong to a lawful organization, the Na­
tional Association for the Advancement of Colored People, 
well-known as the principal organization opposed to racial 
segregation.5 It is manifestly of substantial importance 
that such a legislative maneuver which flatly denies free 
speech and assembly for the purpose of insulating uncon­
stitutional segregation from, attack be reviewed and con­
demned by this Court.

5 “ Private Attorneys-General: Group Action in the Fight for 
Civil Liberties,’ ’ 58 Yale L. J. 574 (1949); Ashmore, The Negro 
and the Schools 30, 35, 38, 73, 97, 124, 131 (1954); Williams and 
Ryan, Schools in Transition 38-39, 52, 55, 60, 71, 73, 79, 92, 96- 
106, 127, 130, 137, 139, 161, 179, 182, 202, 222, 224 (1954); W ood­
ward, The Strange Career of Jim Crow 110-111 (1955) ; Rose, 
The Negro in America 242, 259, 263-267 (1956 ed.) ; Robison, 
“ Organizations Promoting Civil Rights and Liberties” , 275 Annals 
18, 20 (1951).

Other states opposed to desegregation have attacked this organi­
zation in different ways:

Arkansas: Laws of 1957, Acts Nos. 83, 84, 85.
Georgia: Williams v. National Association for the Advance­

ment of Colored People, Inc., unreported, No. A-58654 (Sup. Ct. 
Fulton County).

Louisiana: Louisiana ex rel. LeBlanc v. Lewis, unreported, 
No. 55899 (D . C., 19th Jud. Dist.), app. dismissed sub nom. 
Louisiana ex rel. Gremillion v. National Association for the 
Advancement of Colored People, Inc., unreported (La. App. 
First Cir.) “ since the cause was removed to the United States 
District Court, Eastern District of Louisiana, on March 28, 1956 
[No. 1678] * * *,”  1 Race Rel. L. Rep. 571, 576 (1956).

Mississippi: House Bill No. 33, Regular Session 1956, 1 Race 
Rel. L. Rep. 451 (1956).

Tennessee: Public Chapter Nos. 104, 151, 152 (1957).
Texas: Texas v. N. A. A. C. P., Inc. (and N. A. A. C. P. 

Legal Defense and Educational Fund, Inc.).
Virginia: Chs 31-37 Extra Session 1956; Ordinance adopted 

by Board of Supervisors of Halifax County, August 6, 1956, 
1 Race Rel. L. Rep. 958 (1956).



11

5. Appellants should not have been remitted to state courts

The trial court was patently wrong in relegating plain­
tiffs to the state court on the ground that “ to declare an act 
of the state legislature unconstitutional should be left to 
the state court.”  (R-. 96, App. p. 8a). Judge Williams relied 
upon this Court’s decision in Railroad Commission of Texas 
v. Pullman Co., 312 U. S. 496 and cited other cases in the 
same vein, American Federation of Labor v. Watson, 327 
U. S. 582; Albertson Millard, 345 D. S. 242; Government 
and Civic Employees Organising Committee, CIO et al. v. 
Windsor, 347 U. S. 901. The majority interprets these 
decisions as requiring state courts to pass first upon cases 
involving the constitutionality of state legislation. How­
ever, those cases hardly stand for such a proposition. As 
was pointed out in Alabama Public Service Commission v. 
Southern Railroad Company, 341 U. S. 341, 344 (1951), 
proceedings in a federal trial court should he stayed only 
where there is involved “ construction of a state statute so 
ill defined that a federal court should hold the case pending 
a definitive construction of that statute in the state courts.”  
Indeed in Toomer v. Witsell, 334 U. S. 385, in which the 
district court had upheld the constitutionality of a state 
statute this court reversed without staying proceedings for 
action by the state courts. In Government and Civic Em­
ployees Organising Committee, CIO et al. v. Windsor, 116 
F. Supp. 354, 357 (N. D. Ala. 1953) a ff’d 347 U. S. 901, it 
was held in the trial court that “ the Act [in question] could 
be construed by the state courts simply as prohibiting a 
public employee from being a member of or participating 
in such an organization for the purpose of collective bar­
gaining with the State and as so construed, meet the chal­
lenge of unconstitutionality.”

The purpose and effect of Act Ho. 741 are unquestion­
able. It contains no ambiguity which could affect its appli­
cability or constitutionality. Judge Williams in making his 
ruling assumed that the meaning of the statute was “ clear 
and unequivocal.”  (R. 96, App. p. 8a). None of the counsel



12

for the defendants nor the Attorney General of the State 
of South Carolina have suggested a construction of this 
statute which could render it constitutional.

Judge Parker wrote below:
“  . . . The rule as to stay of proceedings pend­

ing interpretation of a state statute by the courts 
of the state can have no application to a case, such 
as we have here, where the meaning of the statute is 
perfectly clear and where no interpretation which 
could possibly be placed upon it by the Supreme 
Court of the state could render it constitutional.”  
(R. 114, App. p. 30a).

As was held in Propper v. Clark, 337 U. S. 472, 492:
“ The submission of special issues is a useful 

device in judicial administration in such circum­
stances as existed in the Magnolia Case, 309 US 
478, 84 L ed 876, 60 S Ct 628, 42 Am Bankr NS 
216; Speetor Case, 323 US 101, 89 L ed 101, 65 
S Ct 152; Pieldcrest Case, 316 US 168, 86 L ed 
1355, 62 S Ct 986, and the Pullman Case, 312 US 
496, 85 L ed 971, 61 S Ct 643, all supra, but in the 
absence of special circumstances, 320 US at 236, 
237, 88 L ed 14, 15, 64 S Ct 7, it is not to be used 
to impede the normal course of action where federal 
courts have been granted jurisdiction of the con­
troversy.

“ We reject the suggestion that a decision in this 
case in the federal courts should be delayed until the 
courts of New York have settled the issue of state 
law. ’ ’

See also, Public Utilities Comm. v. United Fuel Gas Com­
pany, 317 U. S. 456, 468-469; Romero v. Weakley, 226 F. 2d 
399 (9th Cir., 1955); Cf. Hillsboro Township v. Cromwell, 
326 U. S. 620, 628-9.



13

6. Appellants should not have been relegated to so-called
administrative remedies

Moreover, there was absolutely no justification for 
the court below to have remitted plaintiff to a so-called 
administrative remedy. It will be noted that the court’s 
order does not state what this “ administrative remedy”  is. 
Section 3 of Act No. 741 (App. p. 46a) perhaps pur­
ports to confer an administrative remedy, but mere inspec­
tion of this provision indicates that it remits plaintiffs to 
the circuit courts of the state. This is a judicial remedy 
and not administrative and clearly need not be exhausted. 
Lane v. Wilson, 307 U. 8. 268.®

7. The District Court abused its discretion

The court below manifestly abused its discretion in 
remitting plaintiffs to state judicial and administrative 
remedies and in not entering the relief requested on the 
uncontradicted facts and the clear requirements of the

8 It was suggested by defendants in the court below that elsewhere 
in the statutes of South Carolina there is an administrative remedy, 
with particular reference to Code of 1952, Section 21-103 (Appen­
dix B, p. 47a). Act No. 741 was passed subsequent to Section 21-103 
and presumably supersedes it. As Act No. 741 is specifically appli­
cable to this case it would appear that plaintiffs have only a state 
judicial remedy which need not be exhausted under Lane v. Wilson, 
307 U. S. 268. But in any event there is no issue in this case as to 
the construction or administration of the school laws which is the 
scope of review under 21-103. The only issue is one of constitution­
ality which the county board is powerless to adjudicate as Judge 
Parker points out. A  board perhaps could find that plaintiffs had 
actually answered the questionnaire in full or that plaintiff Fulton 
(R. 86-87) was not a member of the National Association for the 
Advancement of Colored People, but such findings would be absurd, 
for this entire proceeding is based upon the fact that plaintiffs had not 
filled out the questionnaire and that plaintiff Fulton is a member of 
the National Association for the Advancement of Colored People. 
It would be futile for plaintiffs to go to a board without authority to 
render the relief they require. Montana National Bank v. Yellow­
stone County, 276 U. S. 499; Waite v. Macy, 246 U. S. 606; United 
States Alkali Export Ass’n v. United States, 325 U. S. 196.



14

United States Constitution. It is an abuse of discretion 
for a court to enter an interlocutory injunction when there 
is evident want of jurisdiction, United States v. Corrick, 
298 U. S. 435. Since, as Judge Parker pointed out below, a 
court has “ no more right to decline the exercise of juris­
diction which is given, than to usurp that which is not 
given” , citing Cohens v. Virginia, 6 Wheaton 264, 404, in 
this case it was an abuse of discretion not to exercise 
jurisdiction. The exercise of discretion “ implies conscien­
tious judgment, not arbitrary action.”  Burns v. United 
States, 287 U. S. 216, 222-223, and as Mr. Justice Brandeis 
has written, “ does not extend to a refusal to apply well- 
settled principles of law to a conceded state of facts” , 
Union Tool Company v. Wilson, 259 U. S. 107, 112. As on 
the uncontradicted facts and the clear law the statute in­
volved is patently unconstitutional and as there was abso­
lutely no justification in remitting plaintiff to state courts 
and to non-defined so-called administrative remedies, a pre­
liminary injunction should have been entered. As full 
testimony had been taken, argument had and briefs sub­
mitted, the preliminary injunction should have also been 
made final.

We believe therefore that the questions presented by 
the appeal are substantial and that they are of public 
importance.

Respectfully submitted,

T hurgood M arshall ,
R obert L . Carter,
J ack  Greenberg,

107 West 43rd Street,
New York, New York,

L incoln  C. J e n k in s , J r .,
1107% Washington Street, 

Columbia, South Carolina,
Attorneys for Appellants.



la

(Opinion of United States District Court, Eastern District 
of South Carolina)

UNITED STATES DISTRICT COURT 
E astern D istrict of S outh  Carolina 

Civil Action No. 5792

Appendix A

o
Ola L . B ryan , E ssie M. D avid, Charles E. D avis, R osa D. 

D avis, V ivian  V. F loyd, B ee A. F ogan, H attie M. 
F u lton , R u th a  M. I ngram , M ary E. J ackson , F razier 
H. K eitt , L u th er  L ucas, J ames B . M ays, L aura P ickett , 
H oward W. S h efton , B etty  S m it h , L eila M. S u m m er  
and Clarence V. T obin ,

Plaintiffs,
versus

M. Gr. A u stin , Jr., as Superintendent of School District 
No. 7, of Orangeburg County, the State of South Caro­
lina, and W. B. B ookhart, H arold F elder, T. T. Mc- 
E ach ern , E lmo  S huler  and U lm er  W eeks , as the 
Board of Trustees of School District No. 7, of Orange­
burg County, the State of South Carolina,

Defendants.
— _--------------- o-----------------------

On Application for Injunction.

(Argued October 22, 1956. Decided Jan. 22, 1957.)

Before:
P arker, Circuit Judge, and T im m erm an  and W illiam s , 

District Judges.



2a

L incoln  G. J e n k in s , J k ., T hurqood M arshall and 
J ack  Greenberg, Attorneys for Plaintiffs;

A. J. H ydrick , Jr., M arshall  W illiam s , R obert M cC. 
F igg, Jr., P. H . M cE a c h in , I). W . R obinson , T . C. 
Callison , Attorney General of South Carolina and 
D aniel  R . M cL eod and J ames 8 . V erner, Assistant 
Attorneys General of South Carolina, for defendants.

Appendix A

W illiam s , District Judge:

This is an action by Negro school teachers against the 
School Superintendent and the Board of Trustees of a 
school district in South Carolina. Its purpose is to ob­
tain a declaratory judgment that the South Carolina stat­
ute making unlawful the employment by the state, or by 
a school district of the state, of any member of the National 
Association for the Advancement of Colored People is 
unconstitutional and void and to enjoin the enforcement 
of the statute in violation of their constitutional rights. As 
the defendants are engaged in the enforcement of a statute 
of state wide application and injunction is asked against 
them, a court of three judges is appropriate for the hear­
ing of the case. City of Cleveland v. United States, 323 
U. S. 329. Such a court has accordingly been convened, 
the parties have been heard, the Attorney General of the 
State has been heard orally and by brief, and the parties 
after the hearing have been allowed to file additional briefs, 
which have been received and considered.

There is no dispute as to the facts. Plaintiffs are 
seventeen Negro school teachers, who had been employed in 
Elloree Training School of School District No. 7 of Orange­
burg County, South Carolina, prior to June 1956 for vary­
ing periods of time, one for as long as ten years. There is 
evidence to the effect that they were competent teachers 
and there is no evidence that their service was unsatis­



3a

factory in any way. In March 1956 the Legislature of 
South Carolina passed the act here complained of, one of 
the provisions of which authorized the board of trustees of 
any school to demand of any teacher that he submit a state­
ment under oath as to whether or not he was a member of 
the National Association for Advancement of Colored Peo­
ple, and provided that anyone refusing to submit such 
statement should be summarily dismissed. Other sections 
of the act made it unlawful for any member of that asso­
ciation to be employed by any school district and imposed 
a fine of $100 for employing any individual contrary to the 
provisions of the Act. When plaintiffs in May of 1956 were 
given blank applications by the School Superintendent to 
be filled out and sworn to, which contained questions as 
to their membership in the Association and their views as 
to the desirability of segregation in the schools, they de­
clined to answer these questions. Only one of the plain­
tiffs, however, was a member of the Association. Upon 
being told that they would have to fill in the answers or 
tender their resignations, they chose the latter course and 
were not elected as teachers for the ensuing year. Three 
questions are presented by the case: (1) Is the statute 
unconstitutional as plaintiffs contend? (2) Are plaintiffs 
in position to raise the question as to its unconstitutional­
ity? And (3) Can the court grant plaintiffs any relief in 
view of the fact that plaintiffs have resigned as teachers 
and others have been elected to their places!

We think we should use our discretion in refusing to 
pass on the issues in this controversy at this time. It does 
not appear that the statute in question has been inter­
preted by a state court, and it is not proper to pass upon 
the controversy presented herein until a South Carolina 
court has first heard the case and passed upon the consti­
tutionality of the Act in question.

In 1941 the United States Supreme Court had before it 
the case of Railroad Commission of Texas v. Pullman Co.,

Appendix A



4a

312 U. S. 496. This case involved a regulation by a state 
commission authorized by statute, and it was contended 
that the regulation was in violation of the Equal Protection, 
the Due Process and the Commerce Clauses of the Consti­
tution. The United States Supreme Court had the fol­
lowing statement to make with reference to the three-judge 
District Court’s decision which enjoined the enforcement 
of the regulation:

“  * * * But no matter how seasoned the judgment 
of the district court may be, it cannot escape being 
a forecast rather than a determination. The last 
word on the meaning of Article 6445 of the Texas 
Civil Statutes, and therefore the last word on the 
statutory authority of the Railroad Commission in 
this case, belongs neither to us nor to the district 
court but to the supreme court of Texas. In this 
situation a federal court of equity is asked to decide 
an issue by making a tentative answer which may be 
displaced tomorrow by a state adjudication. Glenn 
v. Field Packing Co., 290 U. S. 177; Lee v. Bickell, 
292 U. S. 415. The reign of law is hardly promoted 
if an unnecessary ruling of a federal court is thus 
supplanted by a controlling decision of state court. 
The resources of equity are equal to an adjustment 
that will avoid the waste of a tentative decision as 
well as the friction of a premature constitutional 
adjudication. ’ ’

# # #

In the case of American Federation of Labor v. Watson, 
327 U. S. 582, 66 S. Ct. 761, 90 L. ed. 873, the Court held 
that the bill had equity, but the trial court erred in ad­
judicating the merits of the controversy, saying:

“  * * * The crux of the matter is the allegation 
that there is an imminent threat to an entire system

Appendix A



5a

of collective bargaining, a threat which, if carried 
through, will have repercussions on the relationship 
between capital and labor as to cause irreparable 
damage. We conclude for that reason that the bill 
states a cause of action in equity.

“ As we have said, the District Court passed on 
the merits of the controversy. In doing so at this 
stage of the litigation, we think it did not follow the 
proper course. The merits involve substantial con­
stitutional issues concerning the meaning of a new 
provision of the Florida constitution which, so far 
as we are advised, has never been construed by the 
Florida courts. Those courts have the final say as 
to its meaning. When authoritatively construed, it 
may or may not have the meaning or force which ap­
pellees now assume that it has. In absence of an au­
thoritative interpretation, it is impossible to know 
with certainty what constitutional issues will finally 
emerge. What would now be written on the consti­
tutional questions might therefore turn out to be 
an academic and needless dissertation.”  327 U. S. 
at pages 595-596, 66 S. Ct. at page 767.

#  #  *

Plaintiffs in this case claim that the act in question is 
so clear that it should be construed by us and that we 
should decide all of the issues. In the case of Albertson v. 
Millard, 345 17. S. 242, the issues were equally clear and 
free from ambiguity. The appellants challenged the defi­
nitions in the act as being void for vagueness. Mr. Justice 
Douglas in a dissenting opinion said:

“  * # * There are no ambiguities involving these 
appellants. The constitutional questions do not turn 
on any niceties in the interpretation of the Michigan 
law. The case is therefore unlike Rescue Army v.

Appendix A



6a

Municipal Court, 331 U. S. 549, and its forebears 
where the nature of the constitutional issue would 
depend on the manner in which uncertain and am­
biguous state statutes were construed. See especially 
A. F. of L. v. Watson, 327 U. S. 582, 598. Here there 
are but two questions:

“ (1) Can Michigan require the Communist 
Party of Michigan and its Executive Secretary to 
register ?

“  (2) Can Michigan forbid the name of any Com­
munist or of any nominee of the Communist Party 
to be printed on the ballot in any primary or general 
election in the state?”

However, the opinion of the Court in this case states:
“ We deem it appropriate in this case that the 

state courts construe this statute before the District 
Court further considers the action. See Rescue Army 
v. Municipal Court, 331 U. S. 549 (1947); American 
Federation of Labor v. Watson, 327 U. S. 582 (1946); 
and Spector Motor Service v. McLaughlin, 323 U. S. 
101 (1944).

“ The judgment is vacated and the cause re­
manded to the District Court for the Eastern District 
of Michigan with directions to vacate the restrain­
ing order it issued and to hold the proceedings in 
abeyance a reasonable time pending construction of 
the statute by the state courts either in pending 
litigation or other litigation which may be insti­
tuted.”

The case of Government and Civic Employees Organiz­
ing Committee, CIO, et al. v. Windsor, et al., 116 P. Supp. 
354, affirmed in a per curiam decision without opinion, 347 
U. S. 901, is even stronger than the Albertson case supra.

Appendix A



7a

This case involved a statute prohibiting state public em­
ployees from belonging to labor unions or organizations 
and provided for forfeiture of certain rights of those who 
joined a labor union or organization. The statute was 
clear and free from ambiguity. Plaintiffs there took the 
same position as the plaintiffs in the case at bar as indi­
cated in the district court’s opinion at page 357:

“ Plaintiffs contend that the challenged statute is 
self-executing* and that it lends itself to no possible 
construction other than that of unconstitutionality 
under the Due Process Clause of the Fourteenth 
Amendment. They insist that they do not have to 
wait longer before seeking relief in a federal court, 
because they think that ‘ Alabama’s Legislature has 
used unmistakably simple, clear, and mandatory 
language’ and that ‘ there is neither need for inter­
pretation of the statute nor any other special cir­
cumstance requiring the federal court to stay action 
pending proceedings in the State courts.’ Toomer 
v. Witsell, 334 U. S. 385, 392, 68 S. Ct. 1156, 1160, 90 
L. Ed. 1460. The defendants assert among other 
grounds that plaintiffs have not exhausted available 
state administrative and judicial remedies and that 
consequently this court, as a matter of sound, equi­
table discretion, should decline to exercise jurisdic­
tion.

# # #
“ The exercise of jurisdiction under the Federal 

Declaratory Judgment Act is discretionary and not 
compulsory. Smith v. Massachusetts Mutual Life 
Ins. Co., 5 Cir., 167 F. 2d 990; Brillhart v. Excess 
Ins. Co., 316 17. S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620. 
The remedy by injunction is likewise discretionary. 
Peay v. Cox, 5 Cir., 190 F. 2d 123.”

Appendix A



8a

The district court withheld exercise of jurisdiction and 
retained the case to permit the exhaustion of state admin­
istrative and judicial remedies as might be available.

In every case in which the question was raised since 
the Pullman ease in 1941, the United States Supreme Court 
has held that a district court should not pass on the merits 
of a controversy in a case such as the one before us until 
the highest court of the state has interpreted the state 
constitutional provision, statute, or regulation in question. 
City of Chicago v. Fieldcrest Dairies, 316 U. S. 168; Spector 
Motor Service v. McLaughlin, Tax Commissioner, 328 U. S. 
101; A. F. of L. v. Watson, supra; Shipman v. Dupre, 339 
U. S. 321; Albertson v. Millard, supra; Government and 
Civic Employees Organising Committee, CIO, et al. v. 
Windsor, et al., supra.

In the instant case, there is no question that the Su­
preme Court of South Carolina is in a better position than 
the federal court to interpret the state statute. The fact 
that there might be delay, inconvenience and cost to the 
parties does not call for a different conclusion. We are 
here concerned with a much larger issue as to the appro­
priate relationship between state and federal authorities 
functioning as an harmonious whole.

It may be true that the statute in question is clear and 
unequivocal but this does not prevent us from exercising 
our discretion in requiring that it be submitted to the state 
court for interpretation. Government and Civic Employees 
Organising Committee, CIO, et al. v. Windsor, et al., supra. 
It appears to us that the Michigan and Alabama Acts were 
clear and free from ambiguity. The Supreme Court, how­
ever, held that the district court should refrain from tak­
ing any action until the highest state court had passed upon 
the constitutionality of the Act. The state and federal 
courts of South Carolina have always worked in perfect 
harmony. To declare an act of the state legislature uncon­

Appendix A



9a

stitutional should be left to the state court. This, of course, 
would not, apply to statutes and constitutional provisions 
which have already been declared unconstitutional by the 
United States Supreme Court in the school segregation 
cases. We hold that the federal court should stay pro­
ceedings and permit the state court to pass upon the con­
stitutionality of the Act in question. It is only by doing 
this that we avoid conflict between state and federal courts 
and preserve harmonious relationships which have hereto­
fore existed between them.

The case should not be dismissed but should he retained 
and remain pending to permit the plaintiffs a reasonable 
time for the exhaustion of state administrative and judicial 
remedies as may be available; but thereafter such further 
proceedings, if any, will be had by this court as may then 
appear to be lawful and proper.

I t is  so ordered .

Appendix A

A True Copy, 

Attest,

E rnest L. A lden 
Clerk of U. S. District Court 

East. Dist. So. Carolina
(Seal)



Appendix A

(Opinion of United States District Court, Eastern District 
of South Carolina, Charleston Division)

UNITED STATES DISTRICT COURT 
E astern D istrict op S outh  Carolina 

Charleston  D ivision 

Civil Action No. 5792

Ola  L . B ryan , E ssie M. D avid, C harles E . D avis, R osa D . 
D avis, V ivian  V. F loyd, B ee A. F ogan, H attie M. 
F u lton , R u t h a  M . I ngram , M ary E . J ackson , F razier 
H . K eitt , L u th er  L ucas, J ames B . M ays, L aura P ickett , 
H oward W . S heeton , B etty  S m it h , L eila  M . S u m m er  
and Clarence V. T obin ,

Plaintiffs,
versus

M. G. A u stin , J r ., as Superintendent of School District 
No. 7, of Orangeburg County, the State of South Caro­
lina, and W . B. B ookhart, H arold F elder, T. T. M c- 
E ach ern , E lmo  S h u ler  and U lm er  W eeks, as the 
Board of Trustees of School District No. 7, of Orange­
burg County, the State of South Carolina,

Defendants.
---------------------- o------------------ .—

On Application for Injunction.

(Argued October 22, 1956. Decided .)

Before:
P arker , Circuit Judge, and T im m erm an  and W illiam s , 

District Judges.



11a

L incoln  C. J e n k in s , J r ., T hubgood M arshall  and J ack 
Greenberg, Attorneys for Plaintiffs;

A. J. H ydrick , Jr., M arshall  W illiam s , R obert M cC. F igg, 
J r ., P . H . M cE a c h in , D . W. R obinson , T . C. Callison , 
Attorney General of South Carolina and D aniel  R . 
M cL eod and J ames S. V erner, Assistant Attorneys 
General of South Carolina, for Defendants.

Appendix A

T im m e r m a n , District Judge:

It is to be regretted that the members of this three-judge 
Court are not in agreement. In a general way, the order 
to be filed herein at the time that the separate opinions of 
the members of this Court are filed will correctly state the 
differences existing among the members of the Court. As 
will be seen by what shall follow, I am. in disagreement 
with my colleagues on the main issues in this case.

This action was originally brought by eighteen negro 
plaintiffs, former school teachers, against the defendants, 
the Superintendent and Board of Trustees of School Dis­
trict No. 7, Orangeburg County, South Carolina, in which 
Elloree Training School is situate. As stated in plaintiffs ’ 
brief, the purpose of the action is to enjoin the defendants 
from “ (1) refusing to continue plaintiffs’ employment as 
school teachers solely because of their membership in the 
National Association for the Advancement of Colored Peo­
ple; (2) requiring plaintiffs to supply information con­
cerning their beliefs and associations particularly with re­
spect to membership in said association as a condition 
of continued employment; (3) refusing to continue plain­
tiffs’ employment because they have refused to disclose 
whether or not they are members of said association.”  
(Emphasis added.) Plaintiffs’ case is based on the allega­
tion that defendants acted in derogation of their rights



12a

under an unconstitutional State statute; and, upon that 
allegation, a court of three judges was convened pursuant 
to 28 L . S. C. A., Sections 2281 and 2284. When the cause 
came on for hearing, the Court was informed that the plain­
tiff Carmichael had withdrawn from the case.

Plaintiffs allege that defendants deprived them of con­
stitutional rights in the enforcement of the State statute. 
See Act No. 741, Acts and Joint Resolutions of the General 
Assembly of South Carolina, 1956. Plaintiffs claim that 
this statute is unconstitutional, in that defendants (a) re­
quired them to file written applications for employment, 
and (b) refused to re-employ them as school teachers when 
they failed to complete and file applications for employ­
ment on required forms. By their answer, defendants ad­
mit that plaintiffs were not re-employed because they 
failed to file completed application forms. They deny that 
plaintiffs had a legal right to be employed as teachers; that 
there was anything wrongful in their failure to re-employ 
plaintiffs; or that they in any way acted in the enforce­
ment of the cited State Statute.

I agree that “ [tjhere is no dispute as to the facts.” 
And such being the case, it is essential that all of the es­
tablished and uncontradicted facts be considered, and that 
those “ facts”  which are the product of guess or surmise be 
eliminated.

Prior to the school year 1956-1957, all of the plaintiffs 
had been employed as school teachers in the Elloree Train­
ing School. They had no tenure. All teacher contracts 
were entered into between the teachers and the school offi­
cials for terms of nine or ten months (a single school year) 
terminating at the close of each term. The practice in the 
School District, one adopted many years prior to the en­
actment of the challenged State statute, was for applicants 
for employment or re-employment as teachers to submit 
written applications to the Superintendent of Schools in

Appendix A



13a

the District. Prior to May, 1955, an application was not 
required to be in any prescribed form and was usually a 
letter addressed to the Superintendent. In May, 1955, 
however, defendants instituted the practice of providing 
applicants with printed forms for use in making applica­
tions. These forms contained a variety of questions to be 
answered by applicants pertaining to the applicant's per­
sonal as well as professional qualifications. For the school 
term 1955-1956, all applicants, including plaintiffs, com­
pleted such forms and submitted them to the Superintend­
ent. From the applications submitted, defendants selected 
plaintiffs and others for employment for the school term 
1955-1956. For the 1956-1957 school term defendants con­
tinued providing a form application for employment as 
teacher to any person requesting one. In essential detail 
the form used in 1956-1957 was identical with the form 
used in 1955-1956. Some of the plaintiffs submitted incom­
plete applications which the Superintendent returned to 
them for completion and filing. The plaintiffs never there­
after filed applications for employment, whether completed 
or not and, consequently, plaintiffs were not considered by 
the defendant-trustees as applicants. Some of the plain­
tiffs submitted so-called “ resignations” . Others were not 
heard from again. Thereafter, all teaching positions at 
the Elloree Training School for the current school term 
were filled from among other negroes who did apply for 
such employment. It is now proposed, as one may reason­
ably surmise from all that has been said, that plaintiffs 
wish the Court to turn the clock back to May, 1956, and 
enjoin the defendants from refusing to consider plaintiffs 
as applicants for teacher jobs.

As no plaintiff occupied the status of employee of the 
School District for the 1956-1957 school term, having en­
tered into no contract for that term, the mentioned ‘ ‘ resig­
nations”  were idle gestures. If they served any purpose

Appendix A



14a

at all, it was to inform defendants that the so-called re­
signers were not seeking re-employment.

The evidence or, strictly speaking, the lack of it, leaves 
in doubt which of the questions on the application form 
plaintiffs were unwilling to answer. A  form application, 
which defendants admit is genuine, is attached to the com­
plaint, but the applications submitted by plaintiffs and 
which were returned to them for completion were not of­
fered in evidence, although the plaintiffs presumably had 
possession of them. The only testimony having any pos­
sible bearing on the questions that plaintiffs were unwilling 
to answer was supplied by the plaintiff Davis, who, pre­
suming to speak for the others, stated that plaintiffs ob­
jected to answering all questions on the form other than 
those asking for “ professional information” . Viewing the 
agreed form attached to the complaint in the light of this 
statement, it would appear that plaintiffs at least left the 
following questions unanswered:

“ Religious preference .................  Are you a mem­
ber! .................  I f so, state church of which you
are a member ................. List any clubs, organiza­
tions, or fraternities to which you belong..................
Do you belong to the NAACP ? ................. Does any
member of your immediate family belong to the
NAACP? .................  Do you support the NAACP
in any way (money or attendance at meetings)!
.................  Do you favor integration of races in
schools?..................Are you satisfied with your work
and the schools as they are now maintained?
Y e s ................. N o .....................  If yes, comment on
Back. Do you feel that you would be happy in an 
integrated school system, knowing that the parents
and students do not favor this system? Y e s ..............
N o .............. (Check one and give reason for your
answer) .................  Do you feel that an integrated

Appendix A



15a

school system would better fit the colored race for
their life ’s work? Yes .......... No ..................
(check one and give reason for your answer) ..........
Do you think that you are qualified to teach an in­
tegrated class in a satisfactory manner? Y e s .........
No .......... (check one and give reason for your
answer) ......... Do you feel that the parents
of your school know that no public schools will be
operated if they are integrated?' Yes ...............
No .................  Do you believe in the aims of the
N A A ( I P ? ................. I f you should join the NAACP
while employed in this school, please notify the 
superintendent and the chairman of the board of 
trustees. Y e s ................. N o ....................Do you de­
sire a position in the Elloree Training School for 
the 1956-1957 session?”

Plaintiffs contend that defendants’ refusal to accept 
their incomplete applications for employment denied them 
rights, privileges, immunities, due process of law and the 
equal protection of the laws secured by the Fourteenth 
Amendment of the Constitution, and that the challenged 
statute, as to them, constitute a bill of attainder proscribed 
by Article I, Section 10, Clause 1 of the Constitution.

The record in this case does not bear out the assump­
tion that defendants acted under the challenged statute. 
Hence the issue of the statute’s constitutionality is not 
properly before the Court. Section 1 of the statute makes 
unlawful the employment of a member of the National As- 
sociation for the Advancement of Colored People by a 
school district, and further provides that the prohibition 
against such employment shall continue so long as mem­
bership in such organization is maintained. There is an 
utter failure of evidence that plaintiffs were refused em­
ployment because of membership in any organization. In­
deed, so far as the record discloses, only the plaintiff Ful­

Appendix A



16a

ton is in fact a member of the NAACP, and she testified 
that she never told any of the defendants that she was a 
member; and there is no evidence that any of the defend­
ants otherwise knew that she was a member. Hence, it is 
ridiculous to say that defendants were enforcing Section 1 
of the statute in refusing to employ plaintiffs as teachers 
The best that can be said of this frivolous contention is 
that one might, if he was so disposed, surmise that defend­
ants would have denied plaintiffs employment if the es­
sential facts upon which to rest such action had existed 
elsewhere than in the imaginations of the plaintiffs.

Section 2 of the statute reads as follows:
“ Section 2. The hoard of trustees of any public 
school or State supported college shall he authorised 
to demand of any teacher or other employee of the 
school, who is suspected of being a member of the 
National Association for the Advancement of Col­
ored People, that he submit to the board a written 
statement under oath setting forth whether or not 
he is a member of the National Association for the 
Advancement of Colored People, and the immediate 
employer of any employee of the State or of any 
county or municipality thereof is similarly author­
ized in the case any employee is suspected of being 
a member of the National Association for the Ad­
vancement of Colored People. Any person refusing 
to submit a statement as provided herein, shall he 
summarily dismissed.”  (Emphasis added.)

It is apparent that section 2 applies only to employees, 
not to one who wants to be an employee, and the penalty 
authorized by the section is dismissal. The section, there­
fore, could have had no application to plaintiffs. No plain­
tiff was an “ employee”  of the Elloree Training School for 
the 1956-1957 school term with which we are here con-

Appendix A



17a

eerned; and no plaintiff was “ dismissed”. They simply 
declined to become applicants for employment, and, in 
consequence of their failure to do so they were not em­
ployed. It is a distortion to classify plaintiffs as 
“ employees” . They were not employees at any tithe here 
relevant; and the ipse dixit of this Court cannot make them 
such. The practice of defendants in providing form appli­
cations for the use of those desiring employment as teach­
ers for the 1956-1957 school term was nothing more than 
a continuation of the previous year’s practice, which was 
not objected to by plaintiffs then. To say now that de­
fendants adopted the application form as a means to the 
enforcement of the challenged statute would be to deal 
carelessly with the truth. It is an unchallenged fact that 
the adoption of the application form antedated the statute 
by ten months. Thus there is a total failure of evidence 
to support the jurisdiction of this Court.

Section 2281, Title 28 USCA, is as follows:
“ An interlocutory or permanent injunction restrain­
ing 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 
thereof 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.” (Emphasis 
added.)

As pointed out, plaintiffs were not in such a position 
that the defendants could have enforced the statute against 
them had they wanted to do so. The cited jurisdictional 
section does not give, nor was it intended to give, this

Appendix A



18a

Court jurisdiction to pass upon the constitutionality of a 
State statute simply because some person here, or else­
where, might be dissatisfied with its terms. Before a per­
son can properly invoke the jurisdiction of a three-judge 
Court to hear an attack on the constitutionality of State 
statute, such person must not only allege, he must prove 
that the statute has been wrongfully enforced against him 
to his detriment, or that there is an impending threat to 
enforce it against him to his detriment. Otherwise, he has 
no right to vindicate and no interest to protect. Moreover, 
to claim the protection of a court of equity, a person must 
allege and prove that no legal remedy is available to him 
and that he will suffer irreparable injury if a court of 
equity does not grant relief.

_ As has been pointed out, on the authority of Cohens v. 
Virginia, 6 Wheaton 264, 404, “ We have no more right to 
decline the exercise of jurisdiction which is given, than to 
usurp that which is not given.” We are here concerned 
with the last of the two propositions; and I must decline to 
become a party to usurping power which this Court legally 
does not have. I also must refuse to classify the issues of 
the instant case as falling within the comprehension of the 
constitutional guarantees of the freedoms of speech and 
assembly, as claimed by plaintiffs. No plaintiff has testi­
fied in this case that the defendants have denied him or 
any of the others the right of free speech, or the right of 
free assembly; nor has any other witness done so. This 
Court, therefore, is without evidence of a denial of the 
lights of free speech and of free assembly; and clearly it 
has no right by tortuous deductions or unfounded assump­
tions to supply a seeming basis for such an issue.

The leal issue in this case is whether or not public 
school authorities, acting on their own initiative, are con­
stitutionally forbidden to inquire of applicants for teach­
ing positions eoncernng their associations and beliefs.

Appendix A



19a

This case in many respects is similar to Garner v. Board of 
Public Works of Los Angeles, 341 U. S. 716, 720, where 
one of the issnes before the Court was stated as follows:

“ 1. The affidavit raises the issue whether the 
City of Los Angeles is constitutionally forbidden to 
require that its employees disclose their past or 
present membership in the Communist Party or the 
Communist Political Association. Not before ns is 
the question whether the city may determine that an 
employee’s disclosure of such political affiliation jus­
tifies his discharge.”

Because of the admitted factual background of the in­
stant case, there could not have arisen the issue of what 
the Court would do if defendants had in fact discharged 
plaintiffs because of membership in the NAACP. To the 
knowledge of defendants no plaintiff was a member and, 
therefore, no one of them could have been discharged for 
that reason.

The answer to the stated issue was given by the Court 
as follows:

“ We think that a municipal employer is not disabled 
because it is an agency of the State from inquiring of 
its employees as to matters that may prove relevant 
to their fitness and suitability for the public service. 
Past conduct may well relate to present fitness; past 
loyalty may have a reasonable relationship to pres­
ent and future trust. Both are commonly inquired 
into in determining fitness for both high and low 
positions in private industry and are not less rele­
vant in public employment. The affidavit require­
ment is valid.” 341 IT. S. at 720.

This position was reaffirmed in Adler v. Board of Edu­
cation of the City of New York, 342 TJ. S. 485, 493, a case

Appendix A



20a

even more closely in point than the Garner case. There 
the Court said:

“ We adhere to that case [Garner v. Board of Public 
Works of Los Angeles, supra]. A  teacher works in 
a sensitive area in a school room. There he shapes 
the attitude of young minds toward the society in 
which they live. In this, the state has a vital con­
cern. It must preserve the integrity of the schools. 
That the school authorities have the right and duty 
to screen the officials, teachers, and employees as 
to their fitness to maintain the integrity of the 
schools as a part of ordered society, cannot be 
doubted. One’s associates, past and present, as well 
as one’s conduct, may properly be considered in de­
termining fitness and loyalty. From time immemorial 
one’s reputation has been determined in part by 
the company he keeps. In the employment of offi­
cials and teachers of the school system, the state 
may very properly inquire into the company they 
keep, and we know of no rule, constitutional or oth­
erwise, that prevents the state, when determining 
the fitness and loyalty of such persons, from con­
sidering the organizations and persons with whom 
they associate.”

The Garner and Adler eases cannot be distinguished in 
principle from the instant case. Indeed, the present case 
is much stronger for the defendants than are the two cited 
cases, where employees were dismissed because of their 
failure to answer inquiries. Here, not only were plain­
tiffs not employed by defendants, they even refused to file 
applications for employment, because, as they say, it was 
none of the school trustees’ business who their associates 
were; what their religious beliefs and affiliations were; to 
what organizations or societies they belonged; what their

Appendix A



21a

views on integration were and how they thought it would 
affect negro children to be taught in an integrated school; 
what they thought of their own fitness to teach in an inte­
grated school, etc. These and other considerations, which 
normal parents and competent school officials regard as of 
prime importance to school children, are taboo to plain­
tiffs. They and their abettors are now asking this Court to 
write that taboo into the federal Constitution. I know of 
no law that requires the defendants to select teachers with 
closed eyes and stuffed ears, ignorant of all but the most 
technical educational attainments of applicants. Hence 1 
fail to see that plaintiffs have been deprived of any right, 
constitutional or other, by the defendants.

The inapplicability of the State statute makes it un­
necessary to pass upon its constitutionality, but since that 
issue is discussed in another opinion, I deem it proper to 
state my views on it. I do not agree that the statute is 
unconstitutional. It is argued that the legislative findings 
of fact contained in the preamble of the challenged statute 
should be peremptorily dismissed as containing no spe­
cific finding that the purpose of the NAACP is “ to over­
throw the government by force and violence or to engage 
in any other form or criminal conduct.”  The plain mean­
ing of that contention is that school trustees have no dis­
cretion in the selection of teachers except the discretion 
to refuse to select as teachers those who seek the overthrow 
of the government by force and violence, or who fall within 
the category of criminals.

Since one of the legislative findings is that “ The Na­
tional Association for the Advancement of Colored People 
has, through its program and leaders in the State of South 
Carolina, disturbed the peace and tranquility which has 
long existed between the white and negro races, and has 
threatened the progress and increased understanding be­
tween negroes and whites,” what the plaintiffs’ contention 
really means is, that a State has no legislative power to

Appendix A



22a

preserve peace among its citizens or to promote, foster 
and protect the tranquility that has long existed between 
the White and Negro races within its borders; that the 
State’s attempt to do any of these things is unconstitu­
tional. In the light of the other legislative findings, it also 
means that a state cannot rule out of its schools teachers 
who would sow the seed of discord and unrest, which if un­
impeded, would blossom into outright strife. It also means 
that a state cannot keep out of its schools teachers who 
falsely represent the existence of a disparity in educational 
advantages among the races that in fact does not exist, and 
who would subject school children to teachings that are un­
true. It also means that a supposedly sovereign state can­
not keep out of its schools teachers who would falsely rep­
resent conditions of economic and social strangulation to 
exist, which in fact do not exist. The concluding finding in 
the statute is that the NAACP “ * * * is so insidious in its 
propaganda and the fostering of those ideas designed to 
produce a constant state of turmoil between the races, that 
membership in such an organization is wholly incompat­
ible with the peace, tranquility and progress that all citi­
zens have a right to enjoy.” This brings us face to face 
with matters of serious consequences. We must either 
conclude that the legislative findings uncontradicted by any 
evidence, are untrue, or that the considerations mentioned 
in the findings are of no legal concern to the people of a 
state affected thereby, and that any attempt by a state to 
protect school children from the evil consequences de­
nounced by the statute would be unconstitutional. Such 
political philosophies presuppose that state governments 
are the enemies of its citizens. That, to say the least of it, 
is an un-American concept.

Plaintiffs have not undertaken to disprove the Legis­
lative findings of fact contained in the challenged statute. 
Hence, I hold, on the authority of the below cited cases, 
that such findings of fact are conclusive. See: Block v.

Appendix A



23a

Hirsh, 256 U. S. 135, 154, 155; Badice v. N ew  York, 264 
U. S. 292, 294-295; Zahn v. Board of Public Works, 274 
U. S. 325, 328; Old Dearborn Distributing Co. v. Seayram- 
Distillers Corp., 299 U. S. 183, 195-196; United States v. 
Carotene Products Co.. 304 U. S. 144, 152; Chesbro v. Los 
Angeles County Flood Control District, 306 U. S. 459, 
463; Berman v. Parker, 348 U. S. 26, 32.

Garner v. Board of Public Works of Los Angeles, 341 
U. S. 716, cited herein on another point, supports the 
validity of the State statute. In it at pp. 720, 721, the Court 
said:

“ * * * We assume that under the Federal Constitu­
tion the Charter amendment is valid to the extent 
that it bars from the city’s public service persons 
who, subsequent to its adoption in 1941, advise, ad­
vocate, or teach the violent overthrow of the Gov­
ernment or who are or become affiliated with any 
group doing so. The provisions operating thus 
prospectively were a reasonable regulation to pro­
tect the municipal service by establishing an employ­
ment qualification of loyalty to the State and the 
United States. Cf. Gerende v. Board of Supervisors 
of Elections, 341 IT. S. 56 (1951). Likewise, as a 
regulation of political activity of municipal em­
ployees, the amendment was reasonably designed to 
protect the integrity and competency of the service. 
This Court has held that Congress may reasonably 
restrict the political activity of federal civil service 
employees for such a purpose. United Public Work­
ers v. Mitchell, 330 U. S. 75, 102-103 (1947), and a 
State is not without power to do as much.”

In Adler v. Board of Education of the City of New 
York, supra, the Supreme Court upheld a New York stat­
ute and rules promulgated thereunder. The statute made 
persons associated with organizations found to be sub­

Appendix A



24a

versive prima facie ineligible for employment in public 
schools. The statute made provisions for administrative 
and judicial review for persons adversely affected before 
any denial of employment or discharge became effective. 
The Court said, 342 U. S. at 491-492:

“ It is first argued that the Feinberg Law and the 
rules promulgated thereunder constitute an abridge­
ment of the freedom of speech and assembly of per­
sons employed or seeking employment in the public 
schools of the State of New York.
“ It is clear that such persons have the right under 
our law to assemble, speak, think and believe as they 
will. Communications Assn. v. Bonds, 339 U. S. 
382. It is equally clear that they have no right to 
work for the State in the school system on their own 
terms. United Public Workers v. Mitchell, 330 U. S. 
75. They may work for the school system upon the 
reasonable terms laid down by the proper author­
ities of New York. If they do not choose to work 
on such terms, they are at liberty to retain their 
beliefs and associations and go elsewhere. Has the 
State thus deprived them of any right to free speech 
or assembly? We think not. Such persons are or 
may be denied, under the statutes in question, the 
privilege of working for the school system of the 
State of New York because, first, of their advocacy 
of the overthrow of the government by force or vio­
lence, or secondly, by unexplained membership in 
an organization found by the school authorities, 
after notice and hearing, to teach and advocate the 
overthrow of the government by force or violence, 
and known by such persons to have such purpose.”

The State statute that is here assailed does not deprive 
anyone of the right to belong to the NAACP. It simply

Appendix A



25a

prohibits the employment of persons as teachers only so 
long as they retain membership in the NAACP. Moreover, 
it operates only prospectively; it places no stigma on past 
membership in the NAACP. One who is a member may 
terminate his membership and become eligible for public 
employment. So also he may assemble with others of like 
mind and even condemn the statute, as plaintiffs are do­
ing in this case. No penalty attaches to such action.

Wieman v. Updegraff, 344 U. S. 183, cited in a rival 
opinion, has no application to the present case. There, the 
Court struck down a State statute which barred from pub­
lic employment persons who had ever belonged to an or­
ganization listed by the Attorney General of the United 
States as subversive. The rationale of that decision is thus 
stated by the Court, 344 U. S. 190:

“ But membership may be innocent. A state serv­
ant may have joined a proscribed organization una­
ware of its activities and purposes. In recent years, 
many completely loyal persons have severed organ­
izational ties after learning for the first time of the 
character of groups to which they had belonged. 
‘They had joined, [but] did not know what it was, 
they were good, fine young men and women, loyal 
Americans, but they had been trapped into it—be­
cause one of the great weaknesses of all Americans, 
whether adult or youth, is to join something.’ At 
the time of affiliation, a group itself may be inno­
cent, only later coming under the influence of those 
who would turn it toward illegitimate ends. Con­
versely, an organization formerly subversive and 
therefore designed as such may have subsequently 
freed itself from the influences which originally led 
to its listing.”

In the Wieman case, the statute was struck down be­
cause it made past membership in an organization, irre­

Appendix A



26a

spective of circumstances then or late existing, a bar to 
public employment. In the case at bar, the, challenged 
statute makes only existing and continued membership a 
bar. Yet, the statute has no applicability to this case since 
no action was or could have been taken under it by the 
defendants against the plaintiffs.

Nor can it be fairly said that Slochower v. Board of 
Higher Education of New. York City, 350 U. S. 551, is ap­
plicable here. There, a professor employed at a publicly 
supported college was discharged because he invoked the 
Fifth Amendment against self-incrimination while testify­
ing before a United States Senate investigating committee. 
The discharge was pursuant to a Charter provision of the 
City of New York. The provision was held unconstitu­
tional after the Court concluded that the exercise of the 
privilege against self-incrimination was no indication of 
wrongdoing. Whether or not one agrees with the doctrine 
of the Slochower ease, it has no applicability to the facts 
of this case.

The statute before us is based upon unchallenged find­
ings of fact by the State Legislature that clearly have a 
rational basis. Indeed, if the statute has any bearing on 
constitutional liberties, it protects rather than limits them. 
The statute is designed to protect young minds from the 
poisonous effect of NAACP propaganda. It does not, as 
is surmised, outlaw membership in the NAACP. It doesn’t 
even attempt to do so. It only prevents its members from 
carrying their programs into the classrooms of public 
schools, where it is deemed to be against the public interest 
to have them do so.

There is nothing in the Federal Constitution that denies 
a state the right to deal legislatively with its own local 
and domestic problems. The Tenth Amendment too often 
ignored in recent years, plainly and clearly declares that, 
“ The powers not delegated to the United States by the

Appendix A



27a

Constitution, nor prohibited by it to the states are reserved 
to the states respectively, or to the people.” It is equally 
plain and clear that the power to dictate the terms upon 
which public schools may be operated by the states was 
not by the Constitution delegated to the United States or 
to its judges. It is also equally clear that there is nothing 
in the Constitution which denies to the states respectively 
the power to completely control their established public 
schools so long as equality of treatment is accorded to the 
races. And further, there is nothing in the Constitution 
which says that the equal treatment, required by the Con­
stitution, is itself discrimination and is, therefor, unequal 
treatment.

It is agreed that no more important duty is imposed 
upon the courts than to protect the fundamental rights of 
all citizens against impairment by the exercise of usurped 
governmental power. Article 11 of the Constitution pro­
vides that the Constitution (and this includes Article X 
thereof), and laws made pursuant thereto, shall be the su­
preme law of the land; and it binds every judge by oath 
or affirmation to support the Constitution in all its provi­
sions even, as I apprehend, against other judges who would 
usurp the power to change the Constitution or to enact 
laws by edict to be by them enforced by the coercive misuse 
of the ancient writ of injunction.

While the purpose of this case, in a sense, is camou­
flaged, it is not too well hidden. It is to secure this Court’s 
approval of the exercise of a veto power over state legis­
lation dealing with purely local matters. If such is not the 
aim of this case, why should sixteen plaintiffs, professedly 
non-members of the NAACP, be lending their names for 
use in a court battle to install NAACP members of agents 
in the public schools of the State? The Bible has been 
ruled out of the public schools. McCollum v. Board of Edu­
cation, 333 IJ. S. 203. The fight here is to rule NAACP’s

Appendix A



28a

theories of knowledge into them. If that is done, the gov­
ernment or its judges would thereby become invaders of 
the homes of citizens, superseding the authority and in­
terest of parents in the rearing and training of their chil­
dren. Knowing the inherent danger in such a vicious 
procedure, I unhesitatingly register my opposition to it; 
and may God protect the children of America if the courts 
will not and their parents cannot do so.

I conclude: (a) That the undisputed facts of this case, 
unattended by specious assumptions, clearly warrant the 
dismissal of the complaint and the entry of judgment for 
the defendants; (b) That the established facts of this case 
show that there exists no basis for the exercise of the jur­
isdiction of a three-judge district court and, for such rea­
son, this Court should be dissolved and the case should be 
restored to the District Court’s regular calendar; and (c) 
That, failing in agreement as to either (a) or (b) above 
stated, proceedings herein should be stayed pending state 
court construction of the challenged statute and determi­
nation as to its constitutionality.

A  true copy. Attest

E rnest  L . A lle n ,
Clerk of U. S. District Court,

East. Dist. So. Carolina.
(Seal)

Appendix A

P arker , Circuit Judge, Concurring in Part and Dissenting 
in Part:

I concur in so much of the decision of the Court as holds 
that the Court has jurisdiction of the cause and that same 
should not be dismissed. I dissent from that- part of the 
decision which stays proceedings pending exhaustion of



Appendix A

state administrative and judicial remedies. I think that 
the Court should proceed to grant declaratory and injunc­
tive relief to the plaintiffs in application of the principle 
stated by Chief Justice Marshall in Cohens v. Virginia, 6 
Wheaton 264, 404 that “ We have no more right to decline 
the exercise of jurisdiction which is given, than to usurp 
that which is not given” . One of the most important fea­
tures of that ordered liberty which is guaranteed by our 
Constitution is that certain fundamental rights of the in­
dividual, including freedom of speech and freedom of as­
sembly, shall not be denied or abridged by the exercise of 
governmental power, national or state. And no more im­
portant duty is imposed upon the courts of the United 
States than to protect those fundamental rights of the in­
dividual citizen against impairment by the exercise of gov­
ernmental power.

I recognize, of course, that, in the application of the 
rule of comity, a federal court should stay action pending- 
action by the courts of a state, where it is called upon to 
enjoin the enforcement of a state statute which has not 
been interpreted by the state courts, and where the stat­
ute is susceptible of an interpretation which would avoid 
constitutional invalidity. As the federal courts are bound 
by the interpretation placed by the highest court of a state 
upon a statute of that state, they should not enjoin the 
enforcement of a statute as violative of the Constitution 
in advance of such an interpretation, if it is reasonably 
possible for the statute to be given an interpretation which 
will render it constitutional. This is all that is held by the 
Supreme Court in such cases as Shipman v. Du Pre, 339 
U. 8. 321 and A. F. of L. v. Watson, 327 U. S. 582. 596, 598. 
The Supreme Court in Alabama Public Service Commis­
sion v. Southern Railway Co., 341 TJ. S. 341, 344, recognizes 
that proceedings should be stayed only where there is in­



30a

volved “ construction of a state statute so ill-defined that 
a federal court should hold the case pending a definitive 
construction of that statute in the state courts.” In the 
case of Toomer v. Witsell, 334 U. S. 385, in which the Dis­
trict Court had upheld the constitutionality of a state stat­
ute, the Supreme Court reversed the decision without stay­
ing proceedings for action by the state courts. And in 
Doud v. Hodge, 350 U. S. 485, the Supreme Court reversed 
the dismissal of a case by a District Court where the dis­
missal was granted on the ground that a statute alleged 
to be unconstitutional had not been passed upon by the 
courts of the state. The rule as to stay of proceedings pend­
ing interpretation of a state statute by the courts of the 
state can have no application to a case, such as we have 
here, where the meaning of the statute is perfectly clear 
and where no interpretation which could possibly be placed 
upon it by the Supreme Court of the state could render it 
constitutional.

The statute, the constitutionality of which is here ques­
tioned, is as follows:

“ Section 1. Thirty days after the effective date 
of this act it shall be unlawful for any member of the 
National Association for the Advancement of Col­
ored People to be employed by the State, school dis­
trict, county or any municipality thereof, and such 
prohibition against employment by the State, school 
district, county or any municipality thereof shall 
continue so long as membership in the National As­
sociation for the Advancement of Colored People is 
maintained.

“ Section 2. The board of trustees of any public- 
school or State supported college shall be author­
ized to demand of any teacher or other employee of 
the school, who is suspected of being a member of

Appendix A



31a

the National Association for the Advancement of 
Colored People, that he submit to the board a writ­
ten statement under oath setting forth whether or 
not he is a member of the National Association for 
the Advancement of Colored People, and the imme­
diate employer of any employee of the State or of 
any county or municipality thereof is similarly au­
thorized in the case any employee is suspected of 
being a member of the National Association for the 
Advancement of Colored People. Any person re­
fusing to submit a statement as provided herein, 
shall be summarily dismissed.

“ Section 3. A  person dismissed from, or de­
clared ineligible for, employment under the provi­
sions of this act, may within four months of such 
dismissal or declaration of ineligibility be entitled to 
petition for an order to show cause before any cir­
cuit court of the State why a hearing on such charges 
should not be had. Until the final judgment on said 
hearing is entered, the order to show cause .shall stay 
the effect of dismissal or ineligibility based on the 
provisions of this act. The hearing shall consist of 
the taking of testimony in open court with oppor­
tunity for cross examination. The burden of sus­
taining the validity of an order of dismissal or dec­
laration of ineligibility by a fair preponderance of 
the credible evidence shall be upon the person making- 
such dismissal or declaration of ineligibility.

“ Section 4. Any person employing any individ­
ual contrary to the provisions of this act shall be 
subject to a fine of not exceeding one hundred dol­
lars for each separate offense.”

Appendix A



32a

There is no finding in the preamble to the statute,* nor 
is there any contention, that it is the purpose of the Na­
tional Association for the Advancement of Colored People 
to overthrow the government by force and violence or to 
engage in any other form of criminal conduct. The organi­
zation, as its name implies, is engaged in activities for 
advancing the interests of colored people; and this has in­

* The preamble to the statute is as follows:
“ Whereas, the National Association for the Advancement of 

Colored People has, through its program and leaders in the State 
of South Carolina, disturbed the peace and tranquility which has 
long existed between the White and Negro races, and has threat­
ened the progress and increased understanding between Negroes 
and W hites; and

“ Whereas, the National Association for the Advancement of 
Colored People has encouraged and agitated the members of the 
Negro race in the belief that their children were not receiving 
educational opportunities equal to those accorded white children, 
and has urged the members of the Negro race to exert every ef­
fort to break down all racial barriers existing between the two 
races in schools, public transportation facilities and society in 
general; and

“Whereas, the National Association for the Advancement of 
Colored People has made a strenuous effort to imbue the mem­
bers of the Negro race with the belief that they are the subject 
of economic and social strangulation which will forever bar Ne­
groes from improving their station in life and raising their stand­
ards of living to that enjoyed by the White race; and

“ Whereas, the General Assembly believes that in view of the 
known teachings of the National Association for the Advance­
ment of Colored People and the constant pressure exerted on its 
members contrary to the principles upon which the economic and 
social life of our State rests, and that the National Association 
for the Advancement of Colored People is so insidious in its prop­
aganda and the fostering of those ideas designed to produce a 
constant state of turmoil between the races, that membership in 
such an organization is wholly incompatible with the peace, tran­
quility and progress that all citizens have a right to enjoy. Now 
therefore, * *

Appendix A



33a

volved its engaging in matters of public controversy such 
as the segregation eases, the results of which have been 
very unpopular in some sections. This, however, is no 
reason why it may be proscribed by law or its members de­
nied the right of public employment. The right to join or­
ganizations which seek by lawful means to support and 
further what their members regard as in the public interest 
or in the interest of a particular part of the public, is pro­
tected by the constitutional guarantees of free speech and 
freedom of assembly; and such right is one of the bulwarks 
of liberty and of soeial progress. The fact that organiza­
tions may render themselves unpopular with the majority 
in a community is no reason why the majority may use its 
power to enact legislation denying to their members the 
fundamental rights of constitutional liberty. As was well 
said by Chief Justice Hughes in De Jon-ge v. Oregon, 299 
IT. S. 353, 364-365:

“ Freedom of speech and of the press are funda­
mental rights which are safeguarded by the due proc­
ess clause of the Fourteenth Amendment of the Fed­
eral Constitution. (Citing eases.) The right of 
peaceable assembly is a right cognate to those of 
free speech and free press and is equally funda­
mental. As this Court said in United States v. 
Cruikshank. 92 U. S. 542, 552, ‘The very idea of a 
government, republican in form, implies a right on 
the part of its citizens to meet peaceably for con­
sultation in respect to public affairs and to petition 
for a redress of grievances.’ The First Amendment 
of the Federal Constitution expressly guarantees 
that right against abridgement by Congress. But 
explicit mention there does not argue exclusion else­
where. For the right is one that cannot be denied 
without violating those fundamental principles of 
liberty and justice which lie at the base of all civil

Appendix A



34a

and political institutions—principles which the 
Fourteenth Amendment embodies in the general 
terms of its due process clause. (Citing cases.)
“ These rights may be abused by using speech or 
press or assembly in order to incite to violence and 
crime. The people through their legislatures may 
protect themselves against that abuse. But the 
legislative intervention can find constitutional jus­
tification only by dealing with the abuse. The rights 
themselves must not be curtailed. The greater the 
importance of safeguarding the community from in­
citements to the overthrow of our institutions by 
force and violence, the more imperative is the need 
to preserve inviolate the constitutional rights of 
free speech, free press and free assembly in order 
to maintain the opportunity for free political dis­
cussion, to the end that government may be respon­
sive to the will of the people and that changes, if 
desired, may be obtained by peaceful means. There­
in lies the security of the Republic, the very founda­
tion of constitutional government.”

See also Pierce v. Society of Sisters, 268 U. S. 510; 
Board of Education v. Barnette, 319 IT. S. 624, 641-642; 
Thomas v. Collins, 232 U. S. 516, 530-531.

In Wieman v. Updegraff, 344 U. S. 183, the Supreme 
Court held violative of the due process clause of the Four­
teenth Amendment a state law requiring of state em­
ployees as a condition of employment an oath that they 
were not members of an organization listed by the Attor­
ney General of the United States as subversive. The state 
supreme court had held that mere membership in such an 
organization was a disqualification, without knowledge of 
its criminal purposes. In holding the act violative of the

Appendix A



35a

due process clause of the Fourteenth Amendment, the 
court said:

“Under the Oklahoma Act, the fact of association 
alone determines disloyalty and disqualification; it 
matters not whether association existed innocently 
or knowingly. To thus inhibit individual freedom 
of movement is to stifle the flow of democratic ex­
pression and controversy at one of its chief sources. 
We hold that the distinction observed between the 
case at bar and Garner, Adler and Gerende is de­
cisive. Indiscriminate classification of innocent 
with knowing activity must fall as an assertion of 
arbitrary power. The oath offends due process.”

In that case the Supreme Court adverted to its state­
ment in United Public Workers v. Mitchell, 330 U. S. 75, 
upholding the Hatch Act, that Congress could not “ enact 
a regulation providing that no Republican, Jew or Negro 
shall be appointed to federal office, or that no federal em­
ployee shall attend Mass or take any active part in mis­
sionary work.”

And in his concurring opinion Mr. Justice Frankfurter 
used the following language, which is peculiarly pertinent 
here, viz.:

“ The Constitution of the United States does not 
render the United States or the States impotent to 
guard their governments against destruction by 
enemies from within. It does not preclude measures 
of self-protection against anticipated overt acts of 
violence. Solid threats to our kind of government— 
manifestations of purposes that reject argument and 
the free ballot as the means for bringing about 
changes and promoting progress—may be met by 
preventive measures before such threats reach frui­
tion. However, in considering the constitutionality

Appendix A



36a

of legislation like the statute before us it is neces­
sary to keep steadfastly in mind what it is that is 
to be secured. Oidy thus wili it be evident why the 
Court has found that the Oklahoma law violates 
those fundamental principles of liberty ‘ which lie 
at the base of all our civil and political institutions’ 
and as such are imbedded in the due process of law 
which no State may offend.”

In the very recent case of Slochower v. Board of Higher 
Education, 350 U. S. 551, the Supreme Court held squarely 
that public employment might not be denied on the ground 
that a person had exercised a right under the Constitution. 
In that case a professor in a publicly maintained college 
was discharged because he had invoked his right under the 
Fifth Amendment not to answer a question propounded 
in a Congressional inquiry. The Supreme Court followed 
its decision in the case of Wieman v. Updegraff and dis­
tinguished the cases of Adler v. Board of Education, 342 
U. S. 485 and Garner v. Los Angeles Board, 341 IT. S. 716, 
720, upon which defendants rely. The court said:

“ The problem of balancing the State’s interest in the 
loyalty of those in its service with the traditional 
safe-guards of individual rights is a continuing one. 
To state that a person does not have a constitutional 
right to government employment is only to say that 
he must comply with reasonable, lawful, and nondis- 
criminatory terms laid down by the proper authori­
ties. Adler v. Board of Education, 342 IT. S. 485, 
upheld the New York Feinberg Law which authorized 
the public school authorities to dismiss employees 
who, after notice and hearing, were found to advocate 
the overthrow of the Government by unlawful means, 
or who were unable to explain satisfactorily mem­
bership in certain organizations found to have that,

Appendix A



37a

aim. Likewise Garner v. Los Angeles Board, 341 
U. S. 716, 720, upheld the right of the city to inquire 
of its employees as to ‘matters that may prove rele­
vant to their fitness and suitability for the public 
service,’ including their membership, past and pres­
ent, in the Communist Party or the Communist 
Political Association. There it was held that the 
city had power to discharge employees who refused 
to file an affidavit disclosing such information to the 
school authorities.
“ But in each of these cases it was emphasized that 
the State must conform to the requirements of due 
process. In Wieman v. Updegraff, 344 U. S. 183 
we struck down a so-called ‘ loyalty oath’ because it 
based employability solely on the fact of membership 
in certain organizations. We pointed out that mem­
bership itself may be innocent and held that the 
classification of innocent and guilty together was 
arbitrary. This case rests squarely on the proposi­
tion that ‘ constitutional protection does extend to 
the public servant wdiose exclusion pursuant to a 
statute is patently arbitrary or discriminatory.’ 344 
U. S., at 192.”

The principle here involved is that the state may not 
deny a privilege because of exercise of constitutional 
rights. Terral v. Burke Construction Co., 257 U. S. 529; 
Frost Trucking Co. v. Railroad Commission, 271 U. S. 583, 
594; Alston v. School Board of City of Norfolk, 4 Cir. 112 
F. 2d 992, 997. The Court of Appeals of this Circuit, in 
the case last cited, quoting from the opinion in Frost 
Trucking Co. v. Railroad Commission, supra, said:

“ Even in the granting of a privilege, the state ‘ may 
not impose conditions which require the relinquish­
ment of constitutional rights. If the state may com­
pel the surrender of one constitutional right as a

Appendix A



38a

condition of its favor, it may, in like manner, compel 
a surrender of all. It is inconceivable that guaran­
ties embedded in the Constitution of the United 
States may thus be manipulated out of existence.’ ”

The plaintiffs are in a position to raise the question of 
the constitutionality of the statute because one of them 
is a member of the Association and all have been denied 
employment because of their refusal to answer the ques­
tions as to membership in that organization. The school 
authorities may, of course, make inquiries of prospective 
teachers as to matters bearing upon their character and fit­
ness to teach; but this is a very different thing from mak­
ing inquiry as to membership in an organization which 
they have a right to join but membership in which, under­
state law, bars them of the right of employment. Just as 
they have a right not to be denied employment because of 
such membership, they have a right not to be denied em­
ployment for refusal to make oath with regard to the matter. 
What was required of them was not merely answers to 
questions but the filing of a sworn statement. This was 
requiring of them a “ test oath”  relating to membership as 
a condition of employment which was clearly an invasion 
of their constitutional rights as held in Wieman v. Upde- 
grojff, supra.

It is argued that plaintiffs arc no longer employed by 
defendants and that they have no applications for positions 
pending which could be adversely affected by the statute. 
This is to take too narrow a view of the rights of plain­
tiffs, who are public school teachers by profession whose 
rights are invaded by the statute and the inquiries to which 
they have been subjected thereunder. They are seeking here 
a declaration as to their rights in a suit instituted against 
representatives of the state charged with the enforcement 
of the statute in the locality in which they reside, in which 
the provisions of the statute have been enforced against 
them, in which they desire to teach and in which they would 
naturally seek employment as teachers in the future.

Appendix A



39a

In the case of Alston v. School Board of Norfolk, supra, 
4 Cir. 112 F. 2d 992, the Court of Appeals of the Fourth 
Circuit had before it a case in which injunction was sought 
against fixing the salaries of Negro teachers at a lower 
rate than that of white teachers. It was argued that plain­
tiffs had no right to maintain the suit because employment 
was optional with the school board and they had entered 
into contracts for the current year at the rate fixed by 
the discriminatory practice. The court rejected this con­
tention in language which is appropriate here, saying:

“ We come, then, to the second question, i.e,, do 
plaintiffs as Negro teachers holding certificates quali­
fying them to teach in the public schools of Norfolk 
have rights which are infringed by the discrimina­
tion of which they complain! The answer to this 
must be in the affirmative. As teachers holding- 
certificates from the state, plaintiffs have acquired a 
professional status. It is true that they are not 
entitled by reason of that fact alone to contracts to 
teach in the public schools of the state; for whether 
any particular one of them shall be employed to 
teach is a matter resting in the sound discretion of 
the school authorities; but they are entitled to have 
the compensation for positions for which they may 
apply, and which will unquestionably be awarded to 
some of them, fixed without unconstitutional discrimi­
nation on account of race. As pointed out by Judge 
Chesnut, in Mills v. Lowndes, supra, they are quali­
fied school teachers and have the civil right, as such, 
to pursue their profession without being subjected 
to discriminatory legislation on account of race or 
color. It is no answer to this to say that the hiring 
of any teacher is a matter resting in the discretion 
of the school authorities. Plaintiffs, as teachers 
qualified and subject to employment by the state, are

Appendix A



Appendix A

entitled to apply for the positions and to have the 
discretion of the authorities exercised lawfully and 
without unconstitutional discrimination as to the 
rate of pay to he awarded them, if their applications 
are accepted.
“ Nor do we think that the fact that plaintiffs have 
entered into contracts with the school board for the 
current year at the rate fixed by the discriminatory 
practice precludes them from asking relief. What 
the effect of such contracts may be on right to com­
pensation for the current year, we need not decide, 
since plaintiffs are not insisting upon additional com­
pensation for the current year and their prayer for 
relief asks a broad declaration of rights and injunc­
tive relief for the future. As qualified teachers hold­
ing certificates, they have rights as above indicated 
which are not confined to the contract for the cur­
rent year, i.e., the right to apply for positions in the 
future and to have the Board award the positions 
without unconstitutional discrimination as to the rate 
of pay.”

It is argued also that plaintiffs are not entitled to in­
voke the process of this court because they have not ex­
hausted administrative remedies and that at all events 
they should proceed in the state courts as the legislation in 
question has not been before that court for interpretation. 
As to the latter contention, it is perfectly clear, as hereto­
fore pointed out, that there is no ambiguity in the statute 
and that no interpretation which could be placed upon it by 
the Supreme Court of the state would render it constitu­
tional and that consequently there is no reason to stay pro­
ceedings in the federal court while the state courts are 
giving it consideration. Likewise, as to exhaustion of ad­
ministrative remedies, there is no reason to stay proceed­
ings in the federal court for exhaustion of remedies under 
the statute, when no remedy could possibly cure the basic



41a

defect of unconstitutionality. Furthermore, the remedy pro­
vided by the statute is not administrative but judicial; and 
it is well settled that judicial remedies in state courts need 
not be exhausted before resorting to a federal court. Lane 
v. Wilson, 307 U. S. 268; Carson v. War lick, 4 Cir. — F. 
2d — . The contention that there is an adequate remedy 
at law is manifestly without merit since plaintiffs obvi­
ously cannot recover damages for breach of a contract that 
has not been made and any recovery of damages under, the 
civil right statute would be speculative and problematical. 
Only by declaratory and injunctive relief can they obtain 
any adequate protection of their rights which have been 
invaded by the statute and the action taken thereunder.

As to the relief which the Court should grant, plaintiff's 
are not asking an award of damages and any question with 
regard thereto is not before us. The action is not one in 
which the court could direct that the plaintiffs be restored 
to the positions formerly held by them in view of -the fact 
that their term of employment ended with the school year 
in June 1956 and they did not seek reemployment for the 
succeeding year. The court can and should, however, pro­
tect the rights of plaintiffs for the future by declaring 
the statute unconstitutional and enjoining the defendants 
from enforcing it against plaintiffs either by denying them 
employment because of membership in the National Asso­
ciation for the Advancement of Colored People or requir­
ing them as a condition of employment to make affidavit 
or answer questions with regard to such membership. In 
my opinion, decree to that effect should be entered without 
awaiting action in the state courts, as the statute is un­
ambiguous and clearly unconstitutional.

A  True Copy, Attest,
E kuest L . A lle k ,

Clerk of IT. 8. District Court, 
East. District of South Carolina.

(Seal)

Appendix A



Appendix A 

(Order)

UNITED STATES DISTRICT COURT 
E astern D istrict of S outh  Carolina 

Civil Action No. 5792

—— —— — —o----- —-—:------ -—
Ola L. B ryan , E ssie M. D avid, Charles E. D avis, R osa D. 

D avis, V ivian  V. F loyd , B ee A. F ogan, H attie M. 
F ulton , R u th a  M. I ngram , M ary E. J ackson , F razier 
H . Iveitt , L u th er  L ucas, J ames B . M ays, L aura P ickett , 
H oward W. S heeton , B etty  S m it h , L eila M. S u m m er  
and Clarence V . T obin ,

Plaintiffs,
versus

M. G. A u stin , J r ., as Superintendent o f  School District 
No. 7, of Orangeburg County, the State of South Caro­
lina, and W . B . B ookhart, H arold F elder, T. T. M c- 
E ach ern , E lmo S h u ler  and U lm er  W eeks , as the 
Board of Trustees of School District N o. 7, of Orange­
burg County, the State of South Carolina,

Defendants.
— — — ............................ o -----------------------------------------

This cause coming on to be heard by the undersigned, 
constituting a special District Court of three judges con­
vened in accordance with the statute; and being heard upon 
the pleadings, testimony and briefs and arguments of 
counsel:

Judge Williams being of opinion that the court has 
jurisdiction of the cause but that proceedings therein should 
be stayed for reasons set forth in his opinion filed here­
with ; and Judge Parker concurring in the opinion that the



43a

court has jurisdiction of the cause and should proceed to 
grant relief as set forth in his opinion filed herewith; and 
Judge Timmerman being of opinion that the case should 
be dismissed for lack of jurisdiction and for lack of merit, 
but that, if not dismissed, proceedings therein should be 
stayed, as set forth in his opinion filed herewith; so that 
it is the opinion of a majority of the court that the court 
has jurisdiction of the cause and also the opinion of a 
majority of the court that, if there is jurisdiction, the pro­
ceedings should be stayed.

Now, therefore, it is ordered that the case be retained 
and remain pending upon the docket but that proceedings 
therein be stayed to permit the plaintiffs a reasonable time 
for the exhaustion of state administrative and judicial 
remedies, after which such further proceedings, if any, will 
be had by this court as may then appear proper in the 
premises.

This the 22nd day of January 1957.

/ s /  J ohn  J. P arker,
Chief Judge, Fourth Circuit,

/ s ,/  G eorge B ell  T im m er m an ,
Z7. S. District Judge, Eastern 

and Western Districts of 
South Carolina.

/ s /  A shton  H. W illiam s ,
U. S. District Judge, Eastern 

District of South Carolina.

A True Copy, Attest,

E rnest L . A lle n ,
Clerk of U. S. District Court, 

East. Dist. So. Carolina.
(Seal)

Appendix A



44a

Appendix B 

(Statutes)

A ct No. 741 of th e  General and P erm anent  L aw s of 
S outh  Carolina, 1956, E nacted M arch  17, 1956

An Act To Make Unlawful The Employment By The State, 
School District Or Any County Or Municipality Thereof 
Of Any Member Of The National Association For The 
Advancement Of Colored People, And To Provide Pen­
alties For Violations.

Whereas, the National Association for the Advancement 
of Colored People has, through its program and leaders in 
the State of South Carolina, disturbed the peace and tran­
quility which has long existed between the White and Negro 
races, and has threatened the progress and increased under­
standing between Negroes and Whites; and

Whereas, the National Association for the Advance­
ment of Colored People has encouraged and agitated the 
members of the Negro race in the belief that their children 
were not receiving educational opportunities equal to those 
accorded white children, and has urged the members of the 
Negro race to exert every effort to break down all racial 
barriers existing between the two races in schools, public 
transportation facilities and society in general; and

Whereas, the National Association for the Advancement 
of Colored People has made a strenuous effort to imbue 
the members of the Negro race with the belief that they 
are the subject of economic and social strangulation which 
will forever bar Negroes from improving their station in 
life and raising their standard of living to that enjoyed 
by the White race; and

Whereas, the General Assembly believes that in view 
of the known teachings of the National Association for the 
Advancement of Colored People and the constant pressure



45a

exerted on its members contrary to the principles upon 
which the economic and social life of our State rests, and 
that the National Association for the Advancement of 
Colored People is so insidious in its propaganda and the 
fostering of those ideas designed to produce a constant 
state of turmoil between the races, that membership in 
such an organization is wholly incompatible with the peace, 
tranquility and progress that all citizens have a right to 
enjoy. Now, therefore,

Be it enacted by the General Assembly of the State of 
South Carolina:
No NAACP member to be employed by State:
Section 1.

Thirty days after the effective date of this act it shall 
be unlawful for any member of the National Association 
for the Advancement of Colored People to be employed by 
the State, school district, county or any municipality 
thereof, and such prohibition against employment by the 
State, school district, county or any municipality thereof 
shall continue so long as membership in the National Asso­
ciation for the Advancement of Colored People is main­
tained.
Written oaths may be required regarding NAACP status: 
Section 2.

The board of trustees of any public school or State sup­
ported college shall be authorized to demand of any teacher 
or other employee of the school, who is suspected of being 
a member of the National Association for the Advance­
ment of Colored People, that he submit to the board a 
written statement under oath setting forth whether or not 
he is a member of the National Association for the Advance­
ment of Colored People, and the immediate employer of

Appendix B



46a

any employee of tlxe State or of any county or municipality 
thereof is similarly authorized in the ease any employee 
is suspected of being a member of the National Association 
for the Advancement of Colored People. Any person re­
fusing to submit a statement as provided herein, shall be 
summarily dismissed.
Appeals from dismissals:
Section 3.

A person dismissed from, or declared ineligible for, 
employment under the provisions of this act, may within 
four months of such dismissal or declaration of ineligibility 
be entitled to petition for an order to show cause before 
any circuit court of the State why a hearing on such charges 
should not be had. Until the final judgment on said hear­
ing is entered, the order to show cause shall stay the effect 
of dismissal or ineligibility based on the provisions of 
this act. The hearing shall consist of the taking of testi­
mony in open court with opportunity for cross examina­
tion. The burden of sustaining the validity of an order 
of dismissal or declaration of ineligibility by a fair pre­
ponderance of the credible evidence shall be upon the 
person making such dismissal or declaration of ineligibility.
Penalties:
Section 4.

Any person employing any individual contrary to the 
provisions of this act shall he subject to a fine of not ex­
ceeding one hundred dollars for each separate offense.
Repeal:
Section 5.

All acts or parts of acts inconsistent herewith are hereby 
repealed.

Appendix B



47a

Appendix B

Time effective:
Section  6.

This act shall take effect upon its approval by the 
Governor.
Approved the 17th day of March, 1956.

“ Section 21-103 (1). Subject to the provisions of Sec­
tion 21-230, as amended, any parent or person standing 
in loco parentis to any child of school age, the representa­
tives of any school or any person aggrieved by any decision 
of the Board of Trustees of any school district in any 
matter of local controversy in reference to the construc­
tion 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 (10) days from the date upon which a copy of 
the order or directive of the Board of Trustees was de­
livered to him by mail or otherwise. The petition shall be 
verified and shall include a statement of the facts and 
issues involved in the matter in controversy. The parties 
shall be entitled to a prompt and fair hearing by the board 
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 of controversy, the 
case of each child shall be heard and disposed of separately.

“ Section 21-103 (2). After the parties have been heard, 
the County Board of Education shall issue a written order 
disposing of the matter in controversy, a copy of which 
shall be mailed to each of the parties at interest and any 
party aggrieved thereby 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 Education and upon the adverse party within



48a

ten (10) days from the date upon which copy of the order 
of the County Board of Education was mailed to the peti­
tioner. The parties so served shall have twenty (20) days 
from the date of service, exclusive of the date of service, 
within which to make return to the petition or to otherwise 
plead, and the matter in controversy shall be tried by the 
circuit judge, de novo, with or without reference to a master 
or special referee; provided, that the County Board of 
Education shall certify to the court the record of the pro­
ceedings upon which its order was based, and the record 
so certified shall be admitted as evidence and considered 
by the court, along with such additional evidence as the 
parties may desire to present. The courts 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.

“ Section 21-103 (3). In counties where the functions 
of the Board of Trustees and those of the County Board 
of Education have been combined, the appeal provided in 
Section 21-103 (1) shall lie to the County Board of Educa­
tion from its original action disposing of the matter in 
controversy before hearing.

“ Section 21-103 (4). At any hearing provided for in 
Section 21-103 (1), 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 evi­
dence as may be pertinent to the matter in controversy.

“ Section 21-103 (5). The County Board of Education 
may designate one of its members to conduct any hearing 
provided for in Section 21-103 (1) and report the matter to 
the board for determination.

“ Section 21-103 (6). Until the matter in controversy 
has been finally disposed of, no appeal shall act as a 
supersedeas or suspension of the order of the board having 
original jurisdiction of the cause.”

Appendix B



Appendix C 

(Teacher Application)

Nam e.............................................................................................
Home Address ..........................................................................
Date of Birth..................... A ge............Race............Sex..........
Marital Status..............No. of Children............Living with

Husband or W ife?..........

Certificate I nformation

Group................  Class................ Grade........
Expiration.....................

Years experience prior to July 1, 1955. .. .
in present position..................

Subjects or fields in which certified to teach

High school attended................................................................
List colleges attended ..............................................................
Summer schools attended (last five years) ...........................
Extension courses (last five years) .......................................
Giving dates and degrees........................................................
Religious preference................... Are you a member?............
If so, state church of which you are a member.....................
List any clubs, organizations, or fraternities to which you

belon g .......................................................................................
Do you belong to the N A A C P !......... Does any member of

your immediate family belong to the N AACP?.................
Do you support the NAACP in any way (money or at­
tendance at meetings)? ......................................................

Do you favor integration of races in schools?.....................
Are you satisfied with your work and the schools as they
are now maintained? Yes..............N o.................  If yes,
comment on back.

Date of 

Years



50a

Do you feel tliat you would be happy in an integrated 
school system, knowing that the parents and students do
not favor this system? Y es..............N o................ (Check
one and give reason for your answer) .............................

Appendix C

Do you feel that an integrated school system would better
fit the colored race for their life ’s work? Yes..............
No..............(check one and give reason for your answer)

Do you think that you are qualified to teach an integrated
class in a satisfactory manner ? Yes..............N o................
(check one and give reason for your answ er)....................

Do you feel that the parents of your school know that no 
public schools will be operated if they are integrated? 
Yes..............N o................

Do you believe in the aims of the NAACP ? .........................
If you should join the NAACP while employed in this 

school, please notify the superintendent and chairman of
the board of trustees. Yes.............. N o..............

Do you desire a position in the Elloree Training School for 
the 1956-1957 session? ..........................................................

T he. S tate of S ou th  Carolina 
County  of Orangeburg.

Personally comes before me the undersigned, who on 
oath says that the above statements are true.

Sworn to before me th is ..........day o f ......................... , 1956.

......................................................  Signed...............................
Notary Public of South Carolina



Supreme Printing Co., Inc., 114 W orth Street, N, Y. 13, BEekman 3-2320