Brown v. School District No. 20, Charleston South Carolina Brief of Appellees

    I n  th e

Intfrii BUim Olmtrt of Kppmlz
F oe the F ourth Circuit

No. 9216

M illicent F. Brown, a minor by J. A rthur B rown, 
her father and next friend, et at.,

Appellees,
— v .—

S chool D istrict No. 20, Charleston, 
South Carolina, et al.,

Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF OF APPELLEES

Jack Greenberg 
Constance Baker M otley 
M ichael M eltsner

10 Colnmbns Circle 
New York 19, New York

Matthew J. Perry 
L incoln C. Jenkins, Jr.

1107V2 Washington Street 
Columbia, South Carolina

F. H enderson M oore 
B enjamin Cooke

39 Spring Street 
Charleston, South Carolina

Attorneys for Appellees



I N D E X

PAGE

Statement of Facts .......................................................... 1

A rgument .............................-....................................................... 5

The District Court Properly Enjoined Operation 
of the Public School System of Charleston, South 
Carolina on a Racially Segregated Basis and 
Ordered Admission of Appellees to Formerly All-
White Schools ............................................................ 5

Conclusion ...................... ............................................................ 13

T able oe Cases

Armstrong v. Board of Ed. of City of Birmingham,
323 F. 2d 333 (5th Cir. 1963) .....................................  8

Bradley v. School Board of City of Richmond, 317
F. 2d 429 (4th Cir. 1963) ............................................ 7, 8

Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955) .... 2
Brown v. Board of Education, 347 U. S. 483, 349 U. S.

294 ..................................... ........ -................................2,6,11
<KBush y. Orleans Parish School Board, 308 F. 2d 491 

(5th Cir. 1962) ................ ............. ........ .... - - - .......... 7

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) ....... 7
Cooper v. Aaron, 358 U. S. 1 ................... ....................... 6,11

Gibson v. Board of Education of Dade County, 246
F. 2d 913 (5th Cir. 1958) ............................................  7

Goss v. School Board of City of Knoxville, 373 U. S.
683 ..................................................................................  5

Green v. School Board of City of Roanoke, 304 F. 2d 
118 (4th Cir. 1962) ........................................................ 7, 8



11

PAGE

Hamm v. County School Board of Arlington, 263 F. 2d 
226 (4th Cir. 1959) ........................................................ 9

Jackson v. School Board of Lynchburg, 321 F. 2d 230
(4th Cir. 1963) ............................................................. <3? 11

Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) .........7,11
Johnson v. Virginia, 373 U. S. 61 .................................  12
Jones v. School Board of City of Alexandria, 278 F.

2d 72 (4th Cir. 1960) .................................................7, 8, 9

McNeese v. Board of Education, 373 U. S. 668 .......... 6, 7, 8
Marsh v. County School Board of Roanoke County, Va.,

305 F. 2d 94 (4th Cir. 1962) .....................................  7

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1963) ......... .......... ..........  7

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) .... 9

Stell v. Savannah-Chatham County Board of Educa­
tion, 318 F. 2d 425 (5th Cir. 1963) .............................  12

Watson v. City of Memphis, 373 IT. S. 526 ..................  5, 6
Wheeler v. Durham City Board of Education, 309 F.

2d 621 (4th Cir. 1962) ...................................... ..........  7

Constitutional and Statutory Provisions

S. C. Code (1962) §21-751 ................... ................. .........  2
S. C. Code (1962) §§21-247 et seq.................................. 4, 6
S. C. Const. 1895, Art. II, §7 ......................................... 2



I n th e

lutteft (Emtrt ni Kppmlz
F oe the F ourth Circuit 

No. 9216

M illicent F. Brown, a minor by J. A rthur Brown, 
her father and next friend, et al.,

Appellees,
—v.-

S chool D istrict N o. 20, Charleston, 
South Carolina, et al.,

Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF OF APPELLEES

Statement of Facts

Appellees wish to call to the attention of the Court cer­
tain facts not found in the Statement in appellants’ Brief.

The total population of School District No. 20, Charleston, 
South Carolina, is 65,925, of which 32,313 persons, or 49%, 
are white and 33,612, or 51%, are Negro (93).* 12,647 pupils 
were enrolled for the 1962-63 school year (93). 3,108 pupils, 
or 24% %, were white and attended six schools (55, 93). 
9,539 pupils, or 74%%, were Negro and attended nine 
schools (55, 93). The School Board employs 420 teachers, 
134 are white and 286 are Negro (94). Prior to the order

Citations are to the Appendix to Appellants’ Brief.



2

of the district court which the School Board appeals here, 
no child of one race attended school with children of the 
other race (51, 55) and no teacher of one race taught 
children of the other race (75).

The record clearly reveals that the School Board operates 
a dual school system based on race. Prior to the decision 
of the United States Supreme Court in Brown v. Board 
of Education, 347 U. S. 495, school segregation was required 
by law in South Carolina, S. C. Const. 1895, Art. II, §7; 
§21-751 S. C. Code (1962). These provisions were declared 
unconstitutional in Briggs v. Elliott, 132 F. Supp. 776, 778 
(E. D. S. C. 1955), hut the School Board has neither taken 
any action to desegregate the schools nor indicated an 
intention to do so in the future (74, 85, 88). The Chairman 
of the School Board testified that no action had been taken 
by the Board and that none was contemplated (85). The 
Superintendent of Schools has never been authorized to 
accept Negro pupils or teachers in white schools (74, 75). 
The Board has never announced or notified parents that 
enrollment, assignment, or transfer is available without 
regard to race (49, 52). Desegregation has not even been 
discussed with the Negro supervisor of Negro schools (88), 
who testified that he administers “an entirely separate” 
school system within a system (88).

Overlapping attendance areas or zones are employed to 
assign children to the schools. White children live in the 
zones of Negro schools hut attend white schools; Negro 
children live in the zones of white schools but attend all- 
Negro schools (77-82). Negroes graduating from ele­
mentary schools “ feed” to Negro high schools and whites 
to white high schools (41, 42, 51, 55, 81). White teachers 
are assigned to white schools; Negro teachers to Negro 
schools (75). Negro pupils are scattered throughout the



3

school district but they all attend the nine all-Negro schools 
(80, 82).

When a white elementary school (Mitchell) was closed 
recently, all its former pupils living on one side of a line 
bisecting School District No. 20 were by direction of the 
Superintendent assigned to one of the other two white 
elementary schools and all former pupils living on the other 
side of the line were assigned to the other white elementary 
school (83, 80, 82, 52).

Forty-six Negro parents, including the parents of some 
of the appellees, filed a petition with the School Board in 
1955 requesting the Board initiate desegregation (72, 73). 
The Board replied that “it is not practical or advisable to 
do this at this time” (74).

In 1960, Negro school children and their parents, includ­
ing most of the appellees, applied to the Board for transfer 
to white schools (251), but the applications were denied 
(and on appeal to the County Board of Education (252-254) 
denial of transfer was affirmed (257, 258)) on the ground 
that the applications were not filed four months prior to 
the opening of school (252).

In 1961, appellees and several other Negro children ap­
plied to the School Board for transfer to white schools 
(259). Ail these applications were denied by the Board 
as not in the “best interests” of the pupil (260-267). It 
was not in appellee Brown’s “best interests” to be trans­
ferred because she was “well adjusted” and “ popular” at 
the school she attended (263-64). On the other hand, the 
Board concluded Clarissa Karen Hines should be denied 
transfer because she was a “ timid, introverted child” (266- 
67). Appellee Clover’s application was denied on the 
ground that the Negro school she attended was superior



4

to the white school to which she desired transfer (275). 
Four of the appellees appealed to the County Board of 
Education where the denials were affirmed (271-73).

The record is clear that only Negro children seeking 
transfer to white schools have ever been required to use 
the transfer procedure set out by the S. C. Code §§21-247 
et seq. and the rules of the Board (40-41). As the Super­
intendent put it, “ These rules and administrative proce­
dures . . . were developed to handle requests . . . where 
Negro children requested transfers to white schools” (141). 
School children are not assigned by the Board on the basis 
of academic qualifications, test scores, adjustment or their 
“best interests” (126, 141). Aside from these Negro ap­
pellees, the School Board assigns children to school by 
means of dual school attendance areas (77-83, 140, 141).

The record reveals substantial inferiorities in the Negro 
schools. For the school year ending in 1962, the Board 
spent $267.11 for each white child and only $169.75 for each 
Negro child (54, 129). White teachers must score 500 on 
the National Teachers Examination; Negro teachers are 
employed if they score 425 (131). Despite the fact that 
sufficient numbers of Negro teachers scoring 500 could not 
be found, white teachers were not assigned to Negro schools 
(132). The pupil-teacher ratio is significantly lower in the 
white schools. Negro schools do not offer many courses 
taught at the white schools such as refrigeration, wood­
working, machine shop, drafting, and four years of Latin.1

1 See Plaintiffs’ Exhibits 16-21 (243-44) which have not been 
printed in the appendix to appellants’ Brief.



5

A R G U M E N T

The District Court Properly Enjoined Operation of 
the Public School System of Charleston, South Carolina 
on a Racially Segregated Basis and Ordered Admission 
of Appellees to Formerly All-White Schools.

This is another of the now familiar public school de­
segregation cases to reach this court since Brown v. Board 
of Education of Topeka. After a full trial, the District 
Court issued an order, which the School Board and inter­
vening white parents appeal here, providing for (292-96):

1. Admission in September, 1963 of eleven Negro school 
children to the school which they would attend if they were 
white;

2. Injunctive relief (to take effect with the school year 
1964-65) restraining refusal to admit, assign, or transfer 
Negro school children on the basis of race;

3. Procedures to be followed by the School Board (until 
a desegregation plan is adopted) in disposing of requests 
for non-racial assignment or transfer and notifying parents 
and school children of their right to choose to attend non- 
segregated schools.

The basis for this judgment is plain. The district court, 
in fact, provided only minimal relief in light of the Supreme 
Court’s recent admonition that “ all deliberate speed” will 
not “be fully satisfied by types of plans and programs for 
desegregation . . . which eight years ago might have been 
deemed sufficient” Watson v. City of Memphis, 373 U. S. 
526; Goss v. School Board of Knoxville, 373 U. S. 683.



6

Nine years after the decision of the Supreme Court in 
the Brown case, 347 U. S. 483 (1954), the School Board had 
not taken and had no plans to take any action (85) to carry 
out its constitutional responsibility of “good faith compli­
ance at the earliest practicable date” . Brown v. Board of 
Education, 349 U. S. 294, 300, 301 (1955). Despite “ explicit 
pronouncements” from this Court, Jackson v. School Board 
of Lynchburg, 321 F. 2d 230 (4th Cir. 1963) and from the 
Supreme Court, Watson v. City of Memphis, 373 U. S. 526, 
the School Board had done nothing in the way of “ initiat­
ing” desegregation and bringing about the elimination of 
racial segregation in the school system under its jurisdic­
tion. Cooper v. Aaron, 358 U. S. 1, 4 (1958). The Board 
defended on the ground that the Negro appellees had not 
exhausted their administrative remedies. However, the 
Board is, obviously, in no position to claim, either on the 
facts or the law, McNeese v. Bd. of Education, 373 U. S. 
668, that administrative remedies are adequate to secure 
the constitutional rights of appellees and the class they 
represent.

Four of the appellees fully complied with the adminis­
trative remedies set out in S. C. Code (1962) §§21-247, 
et seq., and the rules and regulations of the Board (248-50). 
Faced with exhaustion of the administrative process, the 
Board urges that the administrative determination of these 
appellees’ constitutional rights is final. But any contention 
that school children who have fully complied with a state’s 
administrative remedy for seeking transfer to white schools 
are barred from obtaining the relief sought here from a 
federal court totally misconceives the nature of the rule 
requiring exhaustion of administrative remedies. Exhaus­
tion of even a nondiseriminatory administrative procedure 
(and, as we will show, the procedure here is discriminatory) 
is at most a prerequisite for stating a cause of action. Car­



7

son v. Warlick, 238 F. 2d 724, 729 (4th Cir. 1956). The 
proposition that the School Board is the final judge of 
whether there is racial segregation violative of appellees’ 
constitutional rights is obviously groundless, McNeese v. 
Bd. of Education, supra, and refuted by countless decisions 
of this Court and district courts reversing administrative 
determinations regarding racial segregation.

Negro school children clearly need not comply with the 
administrative remedy offered by this School Board, for it 
is now well settled in this Circuit that Negro students seek­
ing a desegregated education need not exhaust administra­
tive remedies, supplied by pupil assignment laws and pro­
cedures so long as a racially segregated school system is 
maintained. Marsh v. County School Board of Roanoke 
County, Va., 305 F. 2d 94, 98, 99 (4th Cir. 1962); Green 
v. School Board of City of Roanoke, 304 F. 2d 118, 123, 124 
(4th Cir. 1962); Wheeler v. Durham City Board of Educa­
tion, 309 F. 2d 630, 632, 633 (4th Cir. 1962) • Jeffers v. 
Whitley, 309 F. 2d 621, 627-29 (4th Cir. 1962); Bradley v. 
School Board of City of Richmond, 317 F. 2d 429, 436, 437 
(4th Cir. 1963); Jones v. School Board of Alexandria, 278 
F. 2d 72, 76 (4th Cir. I960).2

Appellants administer a school system where pupils of 
the Negro race are completely segregated in their own 
schools pursuant to their own attendance areas. “Obviously 
the maintenance of a dual system of attendance areas 
based on race offends the constitutional rights of the plain­

2 These holdings are in accord with those of other circuits. See 
Northcross v. Board of Education of the City of Memphis, 302 F. 
2d 818 (6th Cir. 1963) ; Gibson v. Board of Education of Dade 
County, 246 F. 2d 913 (5th Cir. 1958) ; Bush v. Orleans Parish 
School Board, 308 F. 2d 491 (5th Cir. 1962).



8

tiffs and others similarly situated and cannot be tolerated.” 
Jones, supra, at 278 F. 2d 72, 76 (4th Cir. 1960). Given seg­
regation based on race, the South Carolina pupil assignment 
laws and the rules of the Board cannot be constitutionally 
applied to appellees since they establish “hurdles to which 
a white child living in the same area as the Negro and hav­
ing the same scholastic aptitude would not be subjected, 
for he would have been initially assigned to the school to 
which the Negro seeks admission,” Green, supra, at 304 F. 
2d 118, 123, 124.3

These principles apply to this record with force. The 
School Board’s contention that the complete segregation 
which the lower court found to exist here is “voluntary” is 
wholly specious. When a white elementary school was 
closed, former students were assigned to other white ele­
mentary schools (79, 80). One of the appellees resided 
across the street from a white elementary school (80) but 
her application to transfer to that school was denied (274- 
76). The record is uncontradicted that all-Negro elementary 
schools “ feed” all-Negro high schools; all-white elementary 
schools “ feed” all-white high schools (41, 42, 81, 82).

Moreover, the Board has employed the administrative 
procedures only when dealing with interracial transfers and

3 In addition to recent decisions of the Fourth Circuit holding 
that Negro school children need not comply with administrative pro­
cedures prior to instituting suit in the federal courts when a 
school system is operated on a racially segregated basis, the United 
States Supreme Court in McNeese v. Board of Education, 373 
U. S. 668, has “put beyond debate the proposition that, in a school 
desegregation case, it is not necessary to exhaust state administra­
tive remedies before seeking relief in the federal courts,” Armstrong 
v. Board of Education of City of Birmingham, 323 F. 2d 333 (5th 
Cir. 1963).



9

not for initial assignment (140,141). This Court specifically 
condemned use of assignment procedures for transfer and 
not initial assignment in Jones v. School Board of Alex­
andria, 278 F. 2d 72, 77 (4th Cir. 1960): “ Such action 
would also be subject to attack on constitutional grounds, 
for by reason of the existing segregation pattern, it will 
be Negro children, primarily, who seek transfers.” On this 
record and considering the statements of school officials, 
there is “nothing to indicate a desire or intention to use the 
enrollment or assignment system as a vehicle to desegre­
gate the schools” Bradley v. School Board of City of Rich­
mond, 317 F. 2d 429, 437 (4th Cir. 1963). When Negro par­
ents petitioned for desegregation in 1955, the Board took 
no action (74). Applications for transfer in 1960 were filed 
“ too late” for consideration (252-58). In 1961, the applica­
tions were rejected as not in the / ‘best interests” of the 
children involved (259-76). The only common factor which 
applied to each of the applicants was their desire to trans­
fer to white schools. The denial of transfer as not in the 
pupils “best interests” strongly suggests that it was de­
segregation which was thought not to be in their “best in­
terests” and nothing else. For example, some appellees 
were denied transfer because they were well adjusted at the 
segregated school which they attended (263-64) while others 
were denied transfer because they were poorly adjusted 
where they were and allegedly would have trouble adjusting 
to a new school (266-67). Such inconsistently applied “cri­
teria” do not constitute a “ legal ground for the rejection 
of the . . . applications” Hamm, v. County School Board of 
Arlington, 263 F. 2d 226, 228 (4th Cir. 1959); Norwood v. 
Tucker, 287 F. 2d 798, 809 (8th Cir. 1961).

Given the Board’s intransigent attitude toward deseg­
regation and continued maintenance of a racially segregated 
school system, the district court was fully justified in find­



10

ing inadequate the administrative remedy offered by the 
Board.

The Board maintains that the district court had no discre­
tion to provide the manner in which parents were to be 
notified that their children had the right to attend a school 
without regard to race. The order provides that parents 
be notified that if their child is entering school for the 
first time the child may be presented “ at any school serving 
the child’s grade level without regard to whether the school 
. . . was formerly attended solely by Negro pupils or solely 
by white pupils” (294) ; or if the child seeks to transfer, he 
may do so by so informing the School Board (294). The 
court provided that notice of “ the right to attend a school 
freely selected without regard to race” (294) should be 
given to the parents at least 10 days before the end of the 
1963-64 school year and again 30 days before the beginning 
of the 1964-65 school year, and following school years, as 
well as to children entering the system for the first time 
(295).

The court explicitly provided that no particular form of 
language was necessary and that “ the school authorities 
may adopt such other language consistent with the purpose 
of the order as they may desire” (295). The Board was 
directed to apply for any reasonable modification of the 
order necessary to solve administrative problems (296).

The Board complains that this portion of the order is 
an attempt to take over the school system but does not 
specify the manner in which notifying school children and 
parents of their constitutional rights interferes with the 
administration of the school system or the prerogatives of 
the Board. And the Board has not applied for any modi­
fication of this section of the order in the district court.



11

Under Brown v. Board of Education, 347 U. S. 483, 349 
U. S. 294, the District Judge has a duty to oversee the 
Board’s responsibility for providing an adequate plan to 
desegregate the schools. Cooper v. Aaron, 358 U. S. 1, 7. 
Notice of the right to attend schools without regard to race 
is a necessary part of an adequate plan. Joffers v. Whitley, 
309 F. 2d 621, 629 (4th Cir. 1962). The District Judge 
required that parents be informed in a reasonable manner 
at reasonable times of their constitutional right to a school 
system operated without regard to race Jackson v. School 
Board of Lynchburg, 321 F. 2d 230, 233 (4th Cir. 1963). In 
fact, this Court in Jeffers v. Whitley, 309 F. 2d at 629 (4th 
Cir. 1962) directed the district court to issue the order to 
which the Board here objects:

The order should further provide that, if the School 
Board does not adopt some other nondiscriminatory 
plan, it shall inform pupils and their parents that there 
is a right of free choice at the time of initial assign­
ment and at such reasonable intervals thereafter as 
may be determined by the Board with the approval of 
the district court. How and when such information 
shall be disseminated may be determined by the district 
court after receiving the suggestions of the parties. 
(Emphasis supplied.)

White parents and their children were permitted, over 
the objection of appellees, to intervene below in order to 
join the Board in presenting a factual basis for an effort to 
have Brown v. Board of Education overruled. The court 
permitted intervenors and the Board great latitude in in­
troducing evidence for this purpose, but the court held it 
was bound by decisions of this Court and the Supreme 
Court with respect to the unconstitutionality of racial seg­
regation (290). Intervenors and the School Board now



12

appeal to this Court claiming stare decisis does not apply 
and that Brown v. Board of Education did not decide a ques­
tion of law. This contention is erroneous. Plainly and 
simply stated, “ . . .  it is no longer open to question that 
a state may not constitutionally require segregation of 
public facilities.” Johnson v. Virginia, 373 U. S. 61.

The Fifth Circuit recently has had occasion to consider 
the question raised here by the Board and intervenors and 
summarily rejected it in Stell v. Savannah-Chatham County 
Board of Education, 318 F. 2d 425, 427 (5th Cir. 1963):

The district court for the Southern District of Georgia 
is bound by the decision of the United States Supreme 
Court, as are we. Unless and until that Court over­
rules its decision in Brown v. Topeka, no trial court 
may, upon finding the existence of a segregated school 
system, refrain from acting as required by the Su­
preme Court merely because such district court may 
conclude that the Supreme Court erred either as to its 
facts or as to the law.

In short, public school segregation is foreclosed as a 
litigable issue in the district court.



13

CONCLUSION

W herefore, for the foregoing reasons, appellees pray 
the judgment of the court below be affirmed.

Respectfully submitted,

Jack Greenberg 
Constance Baker Motley 
M ichael M eltsner

10 Columbus Circle 
New York 19, New York

Matthew J. Perry 
L incoln C. Jenkins, J r .

1107% Washington Street 
Columbia, South Carolina

F. H enderson M oore 
Benjamin Cooke

39 Spring Street 
Charleston, South Carolina

Attorneys for Appellees



.

38