McPherson v. School District No. 186 Brief of Plaintiffs-Appellees

    IN  TH E

(tart itf tip Imirb ^tate
OCTOBER TERM, 1960

No, 537

JANE ENNIS, et al., 

v.
Petitioner s,

MARY ANN EVANS, et al.,
Respondents.

And six consolidated cases.

ON PETITION FOII A W RIT OF CEETIOBARI TO TH E  UNITED STATES 
COURT OP APPEALS FOR THE THIRD CIRCUIT

BRIEF AND APPENDIX FOR RESPONDENTS 
IN OPPOSITION

Louis L. R e d d i n g ,
Attorney for Respondents,

923 Market Street,
Wilmington 1, Delaware.



I N D E X

PAGE

Opinions B elow ......................................................   2
Jurisdiction ..................................................................  2
Question Presented .........................................   2
Statement ......................................................................  2

A rgu m en t

I—The decision below was correct because the 
District Judge had invalidly assumed to vary 
the prior mandate of the Court of Appeals.. 8

II—Certiorari should be denied because any con­
flict arises from departure of the decision of 
the Sixth Circuit, and not by the instant de­
cision, from principles this Court settled in 
Brown ..............................................................  11

III—No meritorious reasons are advanced for
granting certiorari.........................................  14

Petitioners’ Reasons 2-4, Inclusive...........  14
Petitioners’ Reason 5 ............................  15
Petitioners’ Reason 6 ................................  15
Petitioners’ Reason 7 ................................  16
Petitioners’ Reason 8 ................................  16
Petitioners ’ Reason 9 ........................    17

Conclusion ..........................................................    19



11

A p p e n d i x

p a g e

Complaint Filed against State Board of Educa­
tion, State Superintendent of Public Instruction, 
and the Board of Education of the Laurel Spe­
cial School District, printed as Model of Com­
plaint Filed in All Seven A ctions....................... BA-1

Answer of State Board of Education and State 
Superintendent of Public Instruction, Printed as 
Model of Answer of These Defendants in all 
Seven Actions ....................................................... BA-5

Answer of Board of Education of Laurel Special 
School District, Printed as Model of Answers 
Filed by Local School Boards in All Seven 
Actions ..................................................................  BA-8

Excerpt from Argument Before Chief District 
Judge Leahy on April 5, 1957 ..............................BA-12

Excerpt from Argument Before Chief District 
Judge Leahy on July 9, 1957, on Motions for 
Consolidation and for Summary Judgment 
against the State Board of Education and the 
State Superintendent of Public Instruction___BA-14

Excerpt from Mandate of Court of Appeals, 3rd 
C., Issued June 30, 1958, and Subsequently Be-
issued ..................................................................... BA-18

Opinion of Court of Appeals, 3rd C. re Becall of 
Mandate, Filed July 23, 1958 ............................ BA-19

Order of Judge Layton of November 19, 1958 ___BA-20



I l l

Cases Cited
PAGE

Aaron v. Cooper, 243 F. 2d 361 ................................... 14
Aaron v. Cooper, 257 F. 2d 3 3 ......................    15
Booker v Tennessee Board of Education, 240 F. 2d

689, cert. den. 353 U. S. 965 ......................................  15
Brown v. Board of Education of Topeka, 347 U. S.

482 ...............................................................................  g
Brown v. Board of Education of Topeka, 349 U. S.

294 ................................................................ 8,12,13,14,17
Buchanan v. Evans, 358 U. S. 836 ................    6
Cooper v. Aaron, 358 U. S. 1 ............................13,14,15
Ennis v. Evans, 81 S. Ct. 2 7 ......................................  8
Evans v. Buchanan, 172 F. Supp. 508 ......................... 3
Feiner v. New York, 340 U. S. 315, 71 S. Ct. 303 . . . .  15
In re Sanford Fork and Tool Co., 160 U. S. 247 ......  8
Jackson v. Bawdon, 235 F. 2d 93, cert. den. 352 U. S.

925 .............................................................................  15
Kelley v. Board of Education of the City of Nash­

ville, 270 F. 2d 209 ...................................................  11,12
Niemotko v. Maryland, 340 U. S. 268, 71 S. Ct. 325 15
Pierre v. State of Louisiana, 306 U. S. 354, 59 S. Ct.

536 ...............................................................................  15
Sibbald v. United States, 27 U. S. 487 ....................... 9
Watts v. Indiana, 338 U. S. 4 9 ....................................  15

Statute Cited

50 Laws of Delaware, Ch. 643 ..................................... 4



I S  THE

&u$mw (£mxt of tty Inttei* BMm
OCTOBER TERM, 1960 

No. 537

------------- o—-----------
Jane E n n is , et al.,

v.
Petitioners,

M a r y  A n n  E v a n s , et al.,
Respondents.

And six consolidated cases.

ON PETITION FOR A W RIT OF CERTIORARI TO TH E UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

■----------------------0----------------------

BRIEF FOR RESPONDENTS IN OPPOSITION

Seven class actions were brought in the United States 
District Court for the District of Delaware by Negroes 
against the State Board of Education of the State of 
Delaware and its employee, the State Superintendent of 
Public Instruction, to enjoin exclusion on grounds of race 
from public schools in two of the three counties of that 
State. On motion of the plaintiffs the decree of the District 
Court consolidated the cases and granted summary judg­
ment enjoining the discriminatory exclusion and ordering 
the defendants, petitioners here, immediately to admit the 
plaintiffs to desegregated education. The United States 
Court of Appeals for the Third Circuit affirmed; this Court 
denied certiorari.

On remand to the District Court, a different District 
Judge undertook to vary the mandate of the Court of



2

Appeals so as to deny desegregated education to the named 
plaintiffs and protract desegregation through approval of 
a grade-a-year desegregation plan. On appeal by the school 
children, the Court of Appeals reversed. The school 
children, respondents here, now oppose the petition for 
a writ of certiorari to review that reversal.

Opinions Below

The relevant opinions below are the following: 152 F. 
Supp. 886, R. 16a-21a (A12-16), which is the opinion of 
July 15, 1957, of District Judge Leahy; the affirmance of 
that opinion, at 256 F. 2d 688 (A32-43); the opinions of 
District Judge Layton, on remand, at 172 F. Supp. 508 
(A44-57) and 173 F. Supp. 891 (A58-60); the reversal, 
at 281 F. 2d 385 (A76-81); 281 F. 2d 390 (A99-109).

Jurisdiction

The basis of jurisdiction is adequately set forth in 
the petition.

Question Presented

Whether this Court should review a judgment of a 
Court of Appeals reversing the judgment of a District 
Court entered after remand and assuming to alter the 
mandate of the appellate court by ordering a grade-a-year 
plan of public school desegregation, when the Court of 
Appeals had affirmed the District Court decree requiring 
immediate admittance to desegregated public education.

Statement

The petition for certiorari to which this brief is opposed 
is the second tiled in this litigation by the members of the 
Delaware State Board of Education (hereinafter referred



3

to as “ State Board” ) and the State Superintendent of 
Public Instruction (hereinafter, “ State Superintendent” ), 
seeking review of two successive judgments of the Court 
of Appeals designed to effect immediate admittance of 
plaintiffs to racially nondiscriminatory public education 
and ordering these petitioners promptly to desegregate 
public schools in Delaware.

This litigation originated with complaints filed (RA. 
1-5) * in the District Court in Delaware on May 2, 1956, 
as seven separate class actions by Negro children and their 
guardians for injunctive relief against exclusion, because 
of race, from public schools in seven school districts in 
Kent and Sussex Counties in Delaware. Geographically 
these are the more southerly of that state’s three counties. 
See footnote 2, opinion of Layton, D. J., in Evans v. 
Buchanan, 172 F. Supp. 508, 511 (A47).*

Defendants in each case were the State Board and State 
Superintendent; and in each case also other defendants 
were the members of the local, or district, school board in 
the several school districts where the respective groups 
of plaintiffs reside.

In each case, the Attorney General of Delaware, repre­
senting the State Board and State Superintendent, filed 
an answer for those defendants. Their answer in each 
case admitted that plaintiffs had “ not been accepted”  in 
the local schools, that the State Board and State Superin­
tendent had not complied with plaintiffs ’ request to desegre­
gate the local schools, and asserted that desegregation, 
under regulations promulgated by the State Board, had 
to be initiated by local school boards (RA6-7).

* "A ”  followed by page number refers to petitioners’ appendix; 
“ R A ,”  to respondents’ appendix.



4

In each of the actions also, the local school board of the 
district involved, represented by its own counsel,1 filed an 
answer, offering, in essence, this as a defense:

‘ ‘ The opposition to school integration is so wide­
spread and of such an emotional character that any 
action apparently initiated by the local board looking 
toward integration, and not clearly forced upon the 
local board by some agency higher in authority than 
these defendants, would be either ignored completely 
or overridden by force.”  (RA 9)

Plaintiffs moved for consolidation of the seven cases 
and for summary judgment against the State Board and 
State Superintendent, and these motions were granted on
July 15, 1957 (A12-16).

The District Court (Leahy, Chief Judge) had become 
fully cognizant from the proceedings before it that mutual 
shifting of responsibility for desegregation by State Board 
and local boards back and forth between each other was the 
basic cause of the total denial of plaintiffs’ constitutional 
rights (RA12-17). However, Judge Leahy found that it 
was the State Board’s responsibility to desegregate, since 
it had general control and supervision over all public 
schools in Delaware. He also found that its admissions of 
continued racial segregation in the schools removed “ all 
dispute as to this issue.”  He declared that, “ The regula­
tions of the State Board cannot be permitted to be wielded 
as an administrative weapon to produce interminable delay. 
* * * [T]he Supreme Court fixed the law on this problem 
over three years ago. * # * [N]o appreciable steps have been 
taken in the State of Delaware to effect full compliance 
with the law. * * # [T]he right of plaintiffs to public educa­

1 The Delaware General Assembly, by act approved July 13, 
1956, appropriated $35,000 “ to be allocated to school districts incur­
ring extraordinary legal expenses,”  (See 50 Laws of Delaware Ch. 
643) to finance the local school boards’ defense.



0

tion unmarred by racial segregation is immutable. * * * 
[E]aeh state faces problems indigenous to its own circum­
stances. * * * [Cjireumstanees in Delaware require racial 
desegregation to become a reality simultaneously through­
out all communities”  (A.13, 14).

He decreed plaintiff's entitled to racially nondiserimi- 
natory admittance to the schools involved “ no later than 
the beginning of or sometime early in the Fall Term of 
1957,”  and he permanently enjoined the State Board and 
State Superintendent from refusing such admittance to 
the named plaintiffs. Further, to “ obtain and effectuate 
admittance * * * and education of said minor plaintiffs,”  
Judge Leahy ordered the State Board and State Superin­
tendent to file within 60 days a “ plan of desegregation 
providing for the admittance, enrollment and education, on 
a racially nondiscriminatory basis, for the Fall Term of 
1957,”  of pupils in all public schools in Delaware not there­
tofore desegregated.

The local boards, on the incorrect assumption that Judge 
Leahy’s order was directed against them, moved to amend 
that order. Reference to such motion shows that it 
expressed the conclusion that members of the local boards 
were deprived of “ their ‘ day in court’ ”  because they 
conceived the order as directed against them even though 
“ no motion for summary judgment was made or pending 
against these individual defendants.”  See A17, especially 
paragraphs (1), (2) and (3).

Thereupon, on August 6, 1957, Judge Leahy held a con­
ference with counsel for all parties (A18-30). There he 
fully elucidated his order of July 15, stating, inter alia, 
that his “ Directions for compliance are [were] aimed spe­
cifically at the State Board of Education”  (A18-19). They 
were the defendants “ encompassed within the motion for 
summary judgment,”  he said, and “ The precise matter 
for decision before me is on the motion for summary judg­
ment”  (A28).



6

At that conference the local board’s counsel conceded 
that they had misinterpreted2 Judge Leahy’s order (A22-25) 
and voluntarily withdrew their motions to amend it (A29- 
30).

The order of July 15, 1957, was then stayed pending 
decision of an appeal by the State Board and State Super­
intendent.3 * * * * 8 The unanimous affirmance (A32-43) by the 
Court of Appeals was filed on May 28, 1958, which date 
was, for all practical purposes, at the end of the school 
term which began in the Fall of 1957, to which term plain­
tiffs had been ordered admitted. Necessarily the Court, in 
affirming, vacated the then post factum dates set forth in 
Judge Leahy’s decree for submitting a general plan of 
desegregation of the schools but “ in all other respects”  
sustained that decree (A43).

The mandate of the Court of Appeals, issued on June 
30, 1958, was recalled by the Court, Judge Kalodner dis­
senting (RA19), to permit the State Board and State 
Superintendent to petition for certiorari, which this Court 
denied on October 13, 1958. Btichanan v. Evans, 358 U. S. 
836.

2 The transcript of the conference, read in its entirety and in
conjunction with the motions to amend, reveals that counsel for the
local boards had the misconception that their clients would be in
peril of contempt if they did not admit plaintiffs to nondiscriminatory
education early in September, 1957, even though the State Board 
then had not furnished an inclusive plan o f desegregation for all
schools.

8 The local boards’ counsel filed briefs and participated in oral 
argument urging the Court of Appeals to sustain Judge Leahy’s 
decree; subsequently they filed briefs opposing State Board’s first 
petition for certiorari. Still later, when plaintiffs appealed on the 
ground that the grade-a-year plan ordered by District Judge Layton 
excluded them from racially nondiscriminatory education and did 
not conform to the Court of Appeals mandate affirming Judge Leahy’s 
decree, the local boards allied themselves with the State Board in 
the Court of Appeals; and they are here so allied.



7

On October 27, 1958, the recalled mandate of the Court 
of Appeals was reissued. The Fall Term of 1958 then having 
commenced in the public schools of Delaware, plaintiffs’ 
nondiscriminatory admittance, originally ordered for the 
Fall Term of 1957, was avoided and delayed a second full 
year. Meanwhile, Chief District Judge Leahy had retired, 
152 F. Supp. IX, fn. 2, and the cases were assigned to Dis­
trict Judge Layton.

The District Court was commanded by the mandate of 
the Court of Appeals to proceed in conformity with the 
opinion and judgment of the latter Court (EA18) in 
its affirmance of Judge Leahy’s decree. However, despite 
the express command of the mandate, Judge Layton, on 
November 19, 195$, deleted language prescribing admit­
tance of the named plaintiffs to racially nondiscriminatory 
education at the Fall Term of 1957, that is, the school term 
next ensuing the original judgment, and did not substitute 
any date for plaintiffs’ admittance. Yet, after this deletion 
of a time for their admittance, the order still contained lan­
guage stating that plaintiffs were entitled to racially non­
discriminatory admittance and education in the designated 
schools and enjoining the defendants from refusing them 
such admittance (EA20). Judge Layton further or­
dered defendants to submit to the Court within 105 days, 
later changed to 112 days, a plan of desegregation and set 
March 17, 1959, for a hearing on that plan.

After this hearing, Judge Layton, on April 24, 1959, 
filed an opinion (A44-57) approving a grade-a-year plan 
of desegregation to begin in September, 1959, and to be 
consummated in 1970 (A63-64). Since this plan initiated 
desegregation with Grade 1, no child who had begun Grade 
1 or any higher grade prior to September, 1959, could ever, 
under the plan, be admitted to racially nondiscriminatory 
public education in Delaware. The plan thus necessarily 
excluded all of the plaintiffs from desegregated education



On July 6, 1959, District Judge Layton signed an order 
instituting the plan (A61-62).

Plaintiffs appealed, on the grounds (A76), first, that 
the order entered by Judge Layton invalidly assumed to 
vary the mandate of the Court of Appeals, which required 
immediate statewide desegregation and, additionally, that 
the plan of desegregation ordered by Judge Layton was in 
conflict with the intent and substance of the decisions of 
this Court in Brown v. Board of Education of Topeka, 347 
U. S. 4-82, 349 U. S. 294, in that the plan deprived the 
plaintiffs forever of access to desegregated public educa­
tion and failed to satisfy the “ with all deliberate speed”  
and “ prompt and reasonable start”  requirements in the 
Brown ruling.

The Court of Appeals reversed, categorically sustain­
ing both grounds of appeal (A76-81).

Rehearing was denied the defendants on August 29, 
1960, (A96-109). This Court, on September 1, 1960, denied 
a stay of execution of the judgments below, Ennis v. Evans, 
81 S. Ct. 27, while defendants pursue their present petition 
for certiorari.

ARGUMENT

I

The decision below was correct because the Dis­
trict Judge had invalidly assumed to vary the prior 
mandate of the Court of Appeals.

A cardinal principle governing the relationship of 
subordinate to superior courts is applicable to preclude 
review by the Court of this, the petitioners ’ second petition 
for certiorari. It bars at the threshold consideration of

in Delaware, since all of them were in attendance in schools
when the actions were filed in May, 1956.



9

any of the reasons they advance for granting the writ. 
This principle affirms that a subordinate court is bound 
by the mandate, including the decision, of an appellate 
court as the “ law of the case”  and cannot vary it “ nor 
intermeddle with it further than to settle so much as has 
been remanded.”  Sibbald v. United States, 27 U. S. 487; 
In re Sanford Fork and Tool Co., 160 U. S. 247, 255. Review 
of the judgment below would trench upon that principle, 
since that judgment was evoked and occasioned by the 
disinclination and refusal of the District Court to observe 
and effectuate the mandate transmitted to it.

Judge Leahy’s decree of July 15, 1957, ordered plain­
tiffs’ “ admittance, enrollment and education”  on a racially 
nondiscriminatory basis in public schools in their respective, 
designated school districts “ no later than the beginning 
of or sometime early in the Fall Term of 1957”  (A15), 
and enjoined the defendants from refusing such admittance.

It is apparent from the transcript of the conference 
of August 6, 1957 (A21-30), that both the State Board 
and the local boards understood that decree to require what 
was tantamount to plaintiffs’ immediate access to non- 
segregated education in the designated school districts. 
At that conference no one disputed that as the meaning 
or effect of the decree. The only question raised by the 
boards was as to who were the defendants required to 
give compliance.

This is made abundantly clear by the contribution made 
to the colloquy by the then Attorney General, who stated 
that he thought the State Board’s “ reason for instructing 
me to take an appeal was because of this confusion in 
the minds of many Local Boards as to the impact of your 
Honor’s order”  (A26). What he was saying was that the 
local boards were uncertain as to whether they were the 
defendants commanded by the order, and the State Board 
had instructed him to take an appeal to find out. That



10

uncertainty being clarified by Judge Leahy, the Attorney 
General indicated that an appeal might not be necessary 
(A28-29). The Attorney General did not view the order 
as not giving plaintiffs the right to immediate relief. His 
concern then was as to whether the State Board could have 
an extension of time to comply (Id. 29).

Judge Leahy’s statements at the conference reinforced 
the immediacy implicit in the order itself, for the only 
elasticity given there to the time for compliance is that 
contained in his words: “ I could not sit here in this chair 
and tell you to do that on September 1st or September 
12th or September 23rd.”  By thus clearly confining the 
time of plaintiffs’ admittance to a period “ no later than 
the beginning of or sometime early in the Fall Term of 
1957,”  he re-emphasized the immediatism prescribed in 
paragraph 2 of the decree (A15). In the time-circumstance 
context in which the decree was formulated, and in view 
of Judge Leahy’s adverse criticism of the “ delay”  and 
the “ deprivation”  of plaintiffs’ constitutional and “ invio­
late”  rights, his decree definitely and unmistakably ordered 
plaintiffs’ immediate admittance.

That District Judge Layton did assume to vary this 
decree and the Court of Appeals mandate affirming it 
when he ordered a plan beginning desegregation only wdth 
pupils entering Grade 1 and excluding all the plaintiffs 
forever from racially nondiscriminatory public education 
in Delaware, is patent. Clearly it is impermissible and 
invalid for a subordinate court to attenuate or change the 
mandate of an appellate court, and the unauthorized vari­
ance undertaken by the subordinate court the Court of 
Appeals rejected in these words:

“ The court below concluded in substance that 
desegregation at a more rapid rate than that 
approved by it would prove to be a disruptive and 
futile proceeding which might do great harm to 
the Delaware School System.



11

“ We cannot agree. We affirmed the decree of 
Judge Leahy which in plain terms required statewide 
integration of the public school system of Delaware 
in all classes by an adequate plan by the Fall Term 
1957, and which enjoined designated defendants from 
refusing admission to Negro children on a racially 
discriminatory basis. The plan approved by the 
court below is not in accordance with Judge Leahy’s 
decree or with the mandate of this court,”  (A77)

Thus, the judgment which petitioners seek now to have 
this Court review eventuated only because of the District 
Court’s disagreement with the prior mandate directed to 
it by the Court of Appeals.

Granting the petition in these cases would involve this 
Court in considering whether to reverse an order of the 
Court of Appeals and reinstate an order of a district court 
which the appellate court has itself repudiated and reversed 
as not in accordance with its mandate to the subordinate 
court. It would reflect upon the right of an appellate 
court to safeguard its mandate. No principle governing 
the relationship of courts to each other could be sounder, 
less amenable to compromise or more productive of chaos 
if compromised than that a subordinate court may not 
vitiate the clear mandate of an appellate court or derogate 
from it. Moreover, to breach the rule in this instance would 
destroy forever a constitutional right of the plaintiffs.

II

Certiorari should be denied because any conflict 
arises from departure of the decision of the Sixth Cir­
cuit, and not by the instant decision, from principles 
this Court settled in Brown.

The decision in Kelley v. Board of Education of the 
City of Nashville, 270 F. 2d 209 (6th C., 1959), differs in 
result from the instant case in that there, on appeal by 
Negro school children, an order of the district court



12

approving a grade-a-year plan of desegregation was 
affirmed. The differing results in the two cases are refer­
able principally to differing circumstances and facts. A 
notable difference has already been adverted to. Prelimi­
narily and entirely independent of undertaking an evalua­
tion of the evidence, the Third Circuit had to confront a 
situation in itself sufficient for reversal, namely, that more 
than two years earlier it had affirmed a judgment of the 
district court ordering immediate desegregation and, on 
remand, a district court judge had sought to override its 
mandate.

In a strict sense, it is hardly correct to contend, as do 
petitioners, that there is a “ departure from precedent,”  
implying conflict of decision, where two courts of appeals 
have reviewed dissimilar evidence adduced before district 
courts in their respective circuits and have come to opinions 
producing diverse end results. At most, it can be said 
that each appellate court was impelled to its conclusion 
by the peculiar nature of the evidence reviewed by it.

The Court of Appeals for the Sixth Circuit in the 
Kelley case concluded that there was evidence to support 
the district court’s judgment. In the instant case in the 
Third Circuit the appeals court found the evidence of 
many of the proponents of the grade-a-year desegregation 
plan “ fraught with unreality”  (A77). Besides, the latter 
court disagreed with the district judge as to evidence of 
disparity in intelligence, or academic achievement poten­
tials. The district judge deemed this a partial justification 
for the plan, while the appellate court thought it not of 
such a degree as to prevent mutual desegregated education.

Because there is a very obvious divergence of end 
result in the two decisions, this divergence could be over­
simplified, in broad terms, to characterization as a conflict 
of decision. In such terms, it can be said that the Sixth 
Circuit has held that a grade-a-year plan of public school



13

desegregation, protracting the process over a period of 
more than a decade, when formulated by a school board 
and approved by a district court, is not unreasonable 
vis-a-vis Brown v. Board of Education of Topeka, 349 
U. S. 294 (1955), if the school board’s judgment in formulat­
ing the plan is supported by evidence. The Third Circuit, 
on the other hand, has held that such a plan, approved 
by a district court and ordered to begin in the Fall of 
1959, does not follow the intent and substance of the 
rulings of this Court in Brown.

There is a further divergence between the two cir­
cuits. In arriving at its decision, the Court of Appeals 
for the Sixth Circuit acquiesced in the acceptance by the 
district court of evidence of community disagreement, 
stemming from tradition, custom and practice hostile to 
a changeover from a segregated school system. The accept­
ance of such evidence, however, was in plain disregard 
of the admonition of this Court in Brown, pointedly reiter­
ated in Cooper v. Aaron, 358 U. S. 1 (1958), that “ the 
vitality of these constitutional principles cannot be allowed 
to yield simply because of disagreement with them.”

On the other hand, the Court of Appeals for the Third 
Circuit, in rejecting the district court’s approval of the 
twelve-year plan, was adversely critical that “ one of the 
main thrusts of the opinion of the court below” ’ (A'79), 
and this is abundantly apparent from an examination of 
Judge Layton’s opinion at A 11-57. derived from the accept­
ance and consideration given to testimony as to racial 
prejudice and traditions, customs and practices of racial 
segregation in the communities involved. Chief Judge 
Biggs, writing the opinion for the Court of Appeals, referred 
to Cooper v. Aaron, supra, and commented that this Court 
“ has made it plain * * * that opposition is not a support­
able ground for delaying a plan of integration of a public 
school system.”  He continued, quoting this Court in 
Cooper v. Aaron:



14

“  ‘ The constitutional rights of respondents # *
are not to be sacrificed or yielded to * * * violence 
and disorder * * V  We are bound by that decision.”  
(A80) (Italics supplied.)

The contrast between the circuits is this: where a major 
justification for the protracted plan was founded, not on 
a necessity for time to solve proven administrative prob­
lems, as defined by this Court in the second Brown decision, 
but on deference to community disagreement and hostility, 
factors ruled noncognizable by this Court, the Sixth Circuit 
approved the grade-a-year plan and the Third Circuit 
disapproved it. Of this conflict of view we respectfully 
urge this Court to take notice and to resolve it, not by 
granting the petition for certiorari, but by denying it and 
accompanying such denial with specific reaffirmation of the 
principles which this Court has enunciated and to which 
the Court of Appeals for the Third Circuit specifically 
has given adherence.

It is submitted that the foregoing considerations fully 
support a denial of the petition. However, to the extent 
that the reply already set forth does not explicitly or im­
pliedly embrace the reasons petitioners advance for grant­
ing the writ, we shall undertake below to deal with them.

I I 1

No meritorious reasons are advanced for granting 
certiorari.

Petitioners’ Reasons 2 4, Inclusive

In remanding the cases subsumed under Brown v. Board 
of Education of Topeka, 349 U. S. 294 (1955) to the courts 
which originally heard them to judicially appraise imple­
mentation by school authorities of the constitutional prin­
ciples declared in Brown, this Court did not purport to 
preclude review by appropriate appellate courts. Nor



15

have appellate courts deemed their normal reviewing 
function suspended in this type of case. Aaron v. Cooper, 
243 F. 2d 361 (5th Cir., 1957); Aaron v. Cooper, 257 F. 2d 
33, (1958); Cooper v. Aaron, 358 U. S. 1 (1957); Booker v. 
Tennessee Board of Education, 240 F. 2d 689 (6th Cir., 1957) 
cert. den. 353 U. S. 965; Jackson v. Rawdon, 235 F. 2d 93 
(5th Cir., 1956) cert, denied 352 U. S. 925 (1956).

Petitioners’ Reason S

This reason, like the three immediately preceding it, in 
essence, challenges the right of the Court of Appeals to 
make its own evaluation of the factual basis of the judgment 
of the district court. That the findings of fact of a lower 
court, in a case involving constitutional rights, should be 
re-examined and appraised by an appellate court has been 
clearly recognized by this Court:

“ Yet, when a claim is properly asserted—as in 
this case—that a citizen has been denied the equal 
protection of his country’s laws on account of his 
race, it becomes our solemn duty to make independent 
inquiry and determination of the disputed facts— 
for equal protection to all is the basic principal upon 
which justice under law rests.”  Pierre v. State of 
Louisiana, 306 U. 8. 354, 358, 59 Ct. 536, 539.

See also Niemotko v. Maryland, 340 II. S. 268, 271, 71 S. 
Ct. 325, 327; Feiner v. New York, 340 U. S. 315, 316, 71 S. Ct. 
303, 304; Watts v. Indiana, 338 U. S. 49, 50-51.

Petitioners’ Reason 6

In its opinion of May 28, 1958 (A32-43) affirming the 
judgment of July 15, 1957, of District Judge Leahy, the 
Court of Appeals stated that that judgment “ was designed 
to relieve the appellants [State Board] of passivity and 
compel them to go forward with desegregation of the Dela­
ware schools,”  Id. at 42. The district court opinion thus 
affirmed had noted “ the record of inactivity”  of the State



16

Board “ in failing to negotiate a prompt and reasonable 
start toward full compliance.”  With the same inactivity 
prevailing on August 29, 1960, when the amended judgment 
of the Court of Appeals was filed, it is wholly reasonable 
that at that late date, “ admission to public schools on a 
racially nondiscriminatory basis with all deliberate speed”  
required that the still-segregated Delaware schools be 
ordered “ wholly integrated.”  As against the contention 
that the Court of Appeals by this order “ exceeded the 
bounds of the federal judiciary,”  it is respondents’ position 
that the affirmance purports to accomplish no more than 
did Judge Leahy’s decree three years earlier. As indi­
cated in the respondents’ Statement, supra p. 6, Fn. 3, some 
of the petitioners, viz., the local school boards, contended in 
the Court of Appeals for affirmance of that order and later 
opposed review by this Court. The other petitioners, the 
State Board and State Superintendent, when they sought 
to have that earlier decree reversed and that failing, sought 
review here, did so only on the ground that the State Board 
was without statutory power to carry out the decree. No 
other opposition to its scope was made.

Petitioners’ Reason 7

The short answer to the contention that Judge Leahy’s 
order required nothing specific as regards speed in the 
accomplishment of desegregation of all Delaware schools 
is that paragraph 5 of his decree called for racially non­
discriminatory “ admittance, enrollment and education”  in 
the Fall Term of 1957 (A15-16), and his subsequent inter­
pretation of this confined the time to September, 1957. 
(A22)

Petitioners’ Reason 8

Petitioners ’ contention here relates to the aspect of the 
judgment below which orders admittance of the named 
plaintiffs to desegregated education in September, 1960, 
and postpones until September, 1961, admittance of all



17

This Court in its mandate opinion in Brown pointed 
out “ the personal interest of the plaintiffs in admission 
to public schools as soon as practicable on a nondiscrimina- 
tory basis.”  The import of the judgment below is that no 
sufficient showing was made that immediate admittance 
of the plaintiffs was impracticable. The court below had 
affirmed two years earlier a decree of the district court 
ordering immediate admittance to nondiscriminatory educa­
tion of the named plaintiffs and all members of the class. 
It was entirely within the province of the Court of Appeals 
again to have ordered the same total, simultaneous admit­
tance for the Fall Term of 1960. Surely petitioners have 
no reasonable or valid basis of objection to the Court’s 
forbearance to order all that it might have ordered in the 
way of effectuating the rights of all members of the class 
represented by respondents, especially since this forbear­
ance benefits only the petitioners, in that it affords them 
more time to prepare to comply.

Petitioners’ Reason 9

Petitioners seem to inveigh against the judgment below 
on the implied ground that it orders parties not before 
the Court to desegregate schools. This implication is not 
correct.

Some of the petitioners now seeking certiorari, viz., the 
local school boards, in argument, written or oral, for affirm­
ance of Judge Leahy’s decree, in 1958, when the State 
Board appealed to the Court of Appeals, took a position 
consistent with their pleadings in the district court. Local 
Board answers to the complaint (RA9) had averred 
that all the communities in Delaware where school segrega­
tion prevailed, namely, those in southern Delaware, are 
“ essentially similar sociologically, so as to constitute what

other Negro children whom petitioners were segregating by
race in the schools.



18

amounts to a single community.”  Therefore, they con­
tended, in order to make “ integration”  effective in the 
seven communities whose local school boards were joint 
defendants with the State Board, it was necessary that 
desegregation be “ general and schematic,”  applying not 
merely to those seven communities, but throughout all 
segregated school districts in Delaware. Id.

Judge Leahy adopted this view and, as we have previ­
ously mentioned, concluded that circumstances in Delaware 
did require simultaneous desegregation throughout all 
segregated school districts in the State. He concluded fur­
ther that the statutes gave control over all Delaware public 
schools to defendant State Board. As paragraph 5 of his 
decree (A16) states, “ to further obtain and effectuate”  
desegregated education, he ordered the defendants having 
the power, State Board, to desegregate throughout this 
southern Delaware area.

In reversing District Judge Layton’s unauthorized order 
the judgment below has the effect of restoring the decree 
of Judge Leahy which the Court of Appeals formerly 
had affirmed. That decree orders the appropriate defend­
ants, the State Board and State Superintendent, who 
administer all Delaware schools, to desegregate all segre­
gated schools. It does not, as implied by petitioners, com­
mand persons not parties to the action, nor purport to 
command compliance by school boards in nonsegregated 
districts. Such simultaneous desegregation of the sociologi­
cally similar, segregated school communities not among 
the seven school districts in this litigation was precisely 
what the local boards that have joined the State Board 
in the petition before this Court, both to Judge Leahy and 
in the earlier appellate history of this litigation, repre­
sented was the only effective procedure for bringing about 
desegregation in Delaware. That they should now have 
deserted that position and have allied themselves with the



19

State Board in seeking to uphold the twelve-year plan 
gives rise to the inference that they want merely to prevent 
the plaintiffs from realizing their constitutional rights and, 
presumably, out of deference to hostility they have asserted 
exists, so protract desegregation as to render it ineffective,

CONCLUSION

Petitioners seek review of a judgment entered by 
the Court below to displace unauthorized interference 
with its mandate and to prevent obliteration of con­
stitutional rights of the respondent school children.

The decision below was clearly correct and no inter­
est of justice requires review. It is respectfully urged 
that the petition for certiorari should be denied.

Respectfully submitted,

Louis L. R e d d i n g ,

Attorney for Respondents.



RA-1

APPENDIX

Complaint Filed against State Board of Education, 
State Superintendent of Public Instruction, and the 
Board of Education of the Laurel Special School Dis­
trict, printed as Model of Complaint Filed in All 
Seven Actions.

1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitu­
tion of the United States, section 1 and Title 42, United 
States Code, section 1981. The matter in controversy 
exceeds, exclusive of interest and costs, the sum or value of 
Three Thousand Dollars ($3,000.00).

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 1343. This action is 
authorized by Title 42, United States Code, section 1983, 
to be commenced by any citizen of the United States or 
other person within the jurisdiction thereof to redress the 
deprivation, under color of a state law, statute, ordinance, 
regulation, custom or usage, of rights, privileges and immu­
nities secured by the Fourteenth Amendment of the Consti­
tution of the United States, section 1, and by Title 42, 
United States Code, section 1981, providing for the equal 
rights of citizens and of all persons within the jurisdiction 
of the United States.

(c) This is an action for an interlocutory and per­
manent injunction restraining, upon the ground of uncon­
stitutionality, the enforcement of provisions of the admin­
istrative order and regulations of the defendants, as mem­
bers of the State Board of Education, and the customs, 
practices and usages of defendant members of the State 
Board of Education and of defendant members of the



RA-2

Board of Education of the Laurel Special School District 
requiring segregation in public education in the Laurel 
Special School District, in Sussex County, State of Dela­
ware, by restraining defendants from enforcing such admin- 
inistrative orders and regulations, customs, practices and 
usages.

2. Plaintiffs bring this action pursuant to Rule 23 (a) 
of the Federal Rules of Civil Procedure for themselves and 
on behalf of all Negroes similarly situated, whose numbers 
make it impracticable to bring them all before the court; 
they seek common relief based upon common questions of 
law and fact.

3. Plaintiffs are among those classified as “ colored,”  
of Negro blood and ancestry, and are citizens of the United 
States and the State of Delaware. They are residents of 
the Town of Laurel, State of Delaware. Adult plaintiffs 
are parents or guardians of minor plaintiffs.

4. (a) Defendants Madeline Buchanan, Clayton A. 
Bunting, Byard Y. Carmean, Irvin S. Taylor, Vincent A. 
Theisen and Marvel 0. Watson, are members of the State 
Board of Education, an administrative agency of the State 
of Delaware, and as such are under a duty to determine the 
educational policies of the State of Delaware and to adopt 
rules and regulations for the administration of the free 
public school system of the State of Delaware, to appoint 
such professional and other assistants as are necessary 
for carrying out the policies, rules and regulations of the 
State Board of Education, and to decide all controversies 
and disputes involving the administration of the public 
school system.

Complaint Filed against State Board of Education, State
Superintendent of Public Instruction, and the Board of

Education of the Laurel Special School District



RA-3

(b) Defendant George R. Miller, Jr., is Executive Sec­
retary of the State Board of Education and State Super­
intendent of Public Instruction, a statutory officer of the 
State of Delaware.

(c) Defendants William E. Prettyman, Ford M. War­
rington, Harry G. McAllister and W. Pierce Ellis are mem­
bers of the Board of Education of the Laurel Special School 
District in Sussex County, State of Delaware, are vested 
with the duty of the general administration and supervision 
of the free public schools and the educational interests of 
the said Laurel Special School District and with the fur­
ther duty to determine the educational policies of said Spe­
cial School District, to appoint a Superintendent of Schools 
and other employees of said Special School District, and to 
decide all controversies and disputes involving the rules 
and regulations of the Laurel Special School District and 
the proper administration of the public schools of said 
Special School District.

5. In August, 1955, adult plaintiffs petitioned the 
defendant members of the Board of Education of said 
Laurel Special School District to take immediate steps to 
reorganize the public schools under the jurisdiction of said 
Board of Education on a racially nondiscriminatory basis 
and to eliminate racial segregation in said schools, so that 
children of public school age be not denied admission to 
said schools or be required to attend any school, solely 
because of race or color.

6. Defendant members of the Board of Education of 
Laurel Special School District have officially stated, inter 
alia, that “ the plans released from Federal and State 
Authorities have not been specific as to whether compulsory

Complaint Filed against State Board of Education, State
Superintendent of Public Instruction, and the Board of

Education of the Laurel Special School District



KA-4

desegregation shall be in effect”  and have stated further 
that they have “ advised the people and the State Board 
of Education that segregation shall be preserved as long 
as it does not violate the law,”  and have failed and refused 
to reorganize the public schools under their jurisdiction 
on a racially nondiscriminatory basis and to eliminate racial 
segregation in said public schools.

7. On February 10, 1956, on behalf of plaintiffs, the 
failure and refusal of defendant members of the Board of 
Education of the Laurel Special School District to reor­
ganize the public schools in the Laurel Special School Dis­
trict on a racially nondiscriminatory basis and to eliminate 
racial segregation in said public schools was called to the 
attention of defendant members of the State Board of Edu­
cation and the latter were requested immediately to deseg­
regate the public schools of the Laurel Special School 
District.

8. On March 15, 1956, defendant members of the State 
Board of Education, by official action, unanimously refused 
to comply with the plaintiffs’ request to desegregate said 
public schools.

9. Plaintiffs and those similarly situated suffer and are 
threatened with irreparable injury by the acts herein com­
plained of. They have no plain, adequate or complete rem­
edy to redress these wrongs other than this suit for an 
injunction. Any other remedy would be attended by such 
uncertainties and delays as to deny substantial relief, would 
involve multiplicity of suits, cause further irreparable 
injury and occasion damage, vexation and inconvenience, 
not only to the plaintiffs and those similarly situated, but to 
defendants as governmental agencies.

Complaint Filed against State Board of Education, State
Superintendent of Public Instruction, and the Board of

Education of the Laurel Special School District



RA-5

Wherefore, plaintiffs respectfully pray that:
(a) The Court advance this cause on the docket and 

order a speedy hearing of the application for interlocutory 
injunction and the application for permanent injunction 
according to law, and that upon such hearings:

(b) The Court enter interlocutory and permanent judg­
ments declaring that any administrative orders, regulations 
and rules, customs, practices and usages pursuant to which 
plaintiffs are segregated with respect to their schooling 
because of race, color or ancestry violate the Fourteenth 
Amendment of the United States Constitution.

(e) The Court issue interlocutory and permanent 
injunctions ordering defendants to admit infant plaintiffs 
and all others similarly situated to the public schools in 
the Laurel Special School District on a racially nondis- 
criminatory basis with all deliberate speed.

(d) The Court allow plaintiffs their costs and such 
other relief as may appear to the Court to be just.

L o t u s  L. R e d d i n g

Attorney for Plaintiffs 
923 Market Street,

Wilmington 7, Delaware.

Complaint Filed against State Board of Education, Slate
Superintendent of Public Instruction, and the Board of

Education of the Laurel Special School District

Answer of State Board of Education and State Super­
intendent of Public Instruction, Printed as Model of 
Answer of These Defendants in All Seven Actions.

1. As to allegations of fact, defendants are without 
knowledge or information sufficient to form a belief as to 
the truth of these averments.



RA-6

Answer of State Board of Education and State 
Superintendent of Public Instruction

2. As to allegations of fact, defendants are without 
knowledge or information sufficient to form a belief as to 
the truth of these averments.

3. It is admitted that the plaintiffs have not been 
accepted in the public school under the jurisdiction of Laurel 
Special School District. It is admitted that said Laurel 
Special School District has not heretofore taken as stu­
dents persons of Negro blood and ancestry. Except as 
herein admitted, defendants are without knowledge or 
information sufficient to form a belief as to the truth of the 
remaining averments of fact set forth.

4. (a) It is admitted that the defendants Madeline 
Buchanan, Clayton A. Bunting, Byard V. Carmean, Irvin
S. Taylor, Vincent A. Theisen and Marvel 0. Watson, are 
members of the State Board of Education, an adminis­
trative agency of the State of Delaware. The duties of 
said State Board of Education are those set forth in Title 
14, Delaware Code 1953, as amended.

(b) Admitted.
(c) Admitted except that the status and duties of the 

Board of Education of the Laurel Special School District 
are determined by Title 14, Delaware Code 1953, as 
amended.

5. These defendants are without knowledge or informa­
tion sufficient to form a belief as to the truth of these 
averments.

6. Admitted that the quotations set forth in Paragraph 
6 of the Complaint are from a letter of the Laurel Special 
School District to State Superintendent dated August 9, 
1955. Reference is made to said letter for the statements



RA-7

Answer of State Board of Education and State 
Superintendent of Public Instruction

of the said Laurel Special School District contained therein. 
Except as so admitted, these defendants are without knowl­
edge or information sufficient to form a belief as to the 
truth of other averments in this paragraph.

7. Admitted that by letter of February 10, 1956, the 
attorney for plaintiffs advised that “ parents of negro 
school children living in Laurel, Delaware, by petition for­
warded to the Board of Education of the Laurel Special 
School District under date of August 10, 1955, requested 
that Board to take immediate steps to reorganize the public 
school of Laurel Special School District on a racially non- 
discriminatory basis.”  Admitted that the State Board of 
Education was requested to “ immediately desegregate the 
public schools of the Laurel Special School District * *

8. Admits that by letter of March 16, 1956, the State 
Board of Education stated that for reasons set out in said 
letter it could not comply with the request to immediately 
desegregate the said public school. The State Board’s 
policy, referred to in said letter of March 16, 1956, calling 
for joint action initiated by the local Board of Education was 
considered and approved by the Supreme Court of the State 
of Delaware in the case of Steiner et al. v. Simmons et al., 
111 A. 2d 574, decided February 8, 1955, to which opinion 
reference is hereby made.

9. The averments in this paragraph are conclusions of 
law which are before this Court for determination.

W h e r e f o r e , these defendants pray that the Court dis­
miss said complaint or enter such order as shall appear to 
be proper and just.

J o s e p h  D o n a l d  C r a v e n , 
Attorney General. 
H e r b e r t  L. C o b i n ,

Chief Deputy Attorney General.



RA-8

Answer of Board of Education of Laurel Special School
District, Printed as Model of Answers Filed by
Local School Boards in AH Seven Actions.

Defendant members of the Board of Education of the 
Laurel Special School District answer plaintiffs’ complaint 
as follows:

F i r s t  D e f e n s e

1. (a) If any facts are alleged in paragraph “ 1(a)” , 
these defendants deny knowledge of the same and demand 
strict proof thereof.

(b) Same as the answer to “ a ” .
(c) Denied that any pertinent administrative orders 

or regulations have ever been made or promulgated by 
these defendants. In so far as “ customs, practices, and 
usages”  are concerned, it is admitted that the customs 
practices and usages have heretofore been for white pupils 
only to apply for admission to white schools, and for 
colored pupils only to apply for admission to colored 
schools, but it is denied that any colored pupil has applied 
for admission to any white school under the jurisdiction 
of these defendants since the Supreme Court handed down 
its second decision in Brown v. The Board of Education 
of Topeka.

2. Same as the answer to “ 1(a)” .

3. Admitted.

4. (a) Admitted.
(b) Admitted.
(c) Admitted.



RA-9

5. Admitted with respect to all adult plaintiffs, with 
the exception of Christa Cottman, who did not sign the 
petition.

6. It is admitted that the statement quoted in para­
graph “ 6”  was made by the Superintendent of Schools of 
the Laurel Special School District with approval of the 
members of the Laurel Board. The bare quoted statement 
fails to point out the fact that the Laurel Board had ap­
pointed a study committee to consider this problem and 
they hereby drew out more clearly some of the problems 
in bringing about public acceptance of integration.

(a) The opposition to school integration in the Laurel 
Community is so widespread and of such an emotional 
character that any action apparently initiated by the local 
board looking toward integration, and not clearly forced 
upon the local board by some agency higher in authority 
than these defendants, would be either ignored completely 
or overridden by force.

(b) Neither the local board nor the local police authori­
ties possess any such facilities for the maintenance of law 
and order as would be required to enforce the first small 
step toward integration in the Laurel Schools so long as 
there are numerous other schools in the vicinity of Laurel 
in which integration is not being likewise enforced.

(c) All the communities in Delaware, south of Dover, 
despite individual differences and special problems, are 
essentially similar sociologically, so as to constitute what 
amounts to a single community. Enforcement of integra­
tion in the Laurel Schools, without substantially simul­
taneous enforcement throughout this same community, and 
without any systematic plan affecting this entire larger

Answer of Board of Education of Laurel Special
School District



BA-10

community, would be calculated to inflame resentment and 
to increase the likelihood of violence, and this is equally 
true even if the Court should take exactly the same steps 
in all the other communities in which the school authorities 
were sued at the same time this action was brought. What­
ever reasons may have prompted the filing of this particu­
lar group of suits, those reasons are not related to the 
problem of enforcement, and it would be difficult, if not 
impossible, for these defendants to explain to the public 
why Laurel would be treated differently from other neigh­
boring communities. Enforcement, therefore, in Laurel, 
or in all of the several other school districts in which the 
school authorities were sued at the same time as Laurel, 
would not further the “ elimination of such obstacles in a 
systematic and effective manner” , as those words were 
used in the second decision of Brown vs. Topeka. If there 
is to be an “ effective and systematic approach, it must be 
general and schematic, applying not merely to Laurel, but 
throughout the adjoining communities as well.

(d) Nothing stated in this answer necessarily reflects 
the feelings or preferences of any of the individual mem­
bers of the Laurel Board. It represents an effort to lay 
before the court what these defendants believe to be perti­
nent facts.

7. These defendants have no knowledge of the truth 
of the allegations of paragraph “ 7”  and, if the same are 
material, will hold the plaintiff to strict proof thereof.

8. Same as the answer to “ 7” .

9. Denied that injunction against these defendants is 
an appropriate or available remedy. Further, defendants 
believe and aver that, owing to the intensity of public

Answer of Board of Education of Laurel Special
School District



RA-11

feeling, irreparable injury to the plaintiffs and to those 
whom the plaintiffs represent could result from having 
plaintiffs’ prayers for relief granted too soon and too 
completely. As to the remaining allegations of said para­
graph “ 9”  the defendants disclaim such knowledge as 
would enable them to admit or deny the same, and if they 
prove material, will hold plaintiffs to strict proof thereof.

S econd D efense

10. These defendants here re-allege by reference the 
same answers to the complaint as were spelled out in the 
first defense.

11. And as an additional defense, these defendants say 
that the school building under the jurisdiction of the Laurel 
Special School District—and heretofore used for white 
pupils only—is presently overcrowded and inadequate, and 
is growing increasingly so. The present General Assembly 
has included Laurel in its appropriation for the school 
building program which is currently being delayed by a 
dispute over architects’ fees. For this reason admitting 
colored children to the white school at this time would 
merely further overtax already overtaxed facilities, pro­
mote confusion, increase discomfort and make the educa­
tion of pupils of all races more difficult.

W herefore, these defendants respectfully pray that the 
Court will hear the cause and dismiss this action as to them, 
with costs.

James M . T un nell , J r.
James M. Tunnell, Jr., 
Georgetown, Delaware 

Attorney for Defendants.

Answer of Board of Education of Laurel Special
School District



RA-12

Excerpt from Argument Before Chief District Judge 
Leahy on April 5, 1957

* [1] Mr. Cobin: * * * The State Board has already ad­
dressed to the local boards a directive which has the force 
of law, which has not been complied with.

The Court: Well, what has the Attorney General been 
doing about it? If their directive, according to the Su­
preme Court of Delaware, has the force of law, why don’t 
you enforce it?

Mr. Cobin: Well, your Honor, the Attorney General
has taken the same position as has been carried on in all 
the other states, of waiting until a problem has arisen in 
each local district. Some districts have voluntarily gotten 
up plans of desegregation, for example, Wilmington, Dela­
ware City, Christiana—

The Court: How about the local districts that have not ?
Mr. Cobin: Well, we have eight of those—or seven of 

those districts now before your Honor.
The Court: Why do you make Mr. Redding carry the 

ball! If the regulations and the directive have the force 
of law, why doesn’t the Attorney General of Delaware en­
force them? Why make these private citizens come into 
a Federal Court to have their rights protected?

Mr. Cobin: Well, your Honor, we do not know pre­
cisely in how many areas or who in any particular area 
desire [2] to attend a heretofore white school. It is felt 
desirable to leave that to the application of children—

The Court: Well, your State agency has seen fit to
issue directives. Now, why shouldn’t there be some intel­
ligent report made as to whether those directives have been 
carried out, and if they have not been carried out, why is it 
not the duty of the Attorney General?

* Herbert L. Cobin, Chief Deputy Attorney General of the State 
of Delaware.



RA-13

Excerpt from Argument Before Chief District Judge 
Leahy, on April 5, 1957

Mr. Cobin: The Attorney General would then have to 
file approximately 90 or more suits.

The Court: Well, what difference does that make? He 
is a public servant. Why make Mr. Redding’s clients carry 
the ball?

Mr. Cobin: Well, we are taking the position, as has 
been taken, that we will leave this matter to the plaintiffs 
who desire to enter a school, and if they are refused, that 
we will then support the State Board in that litigation.

The Court: Well, what about these plaintiffs here in 
these cases? Why haven’t you protected them?

Mr. Cobin: Well, we are in the process of doing that 
now, your Honor.

The Court: Where?
Mr. Cobin: In this court.
The Court: You haven’t filed any pleadings in this 

court.
[3] Mr. Cobin: No, no, but we are—
The Court: The Attorney General doesn’t enforce the 

law in this court.
Mr. Cobin: He can.
The Court: Well, I have a query.
Mr. Cobin: This court has jurisdiction.
The Court: No question about that. But if the State 

Board and the Supreme Court of Delaware has said that 
their directives and regulations have the force of law, why 
do you sit back and see that it is not enforced?

Mr. Cobin: Because we feel that it is desirable, instead 
of having a mass number of suits, with the hope that these 
other boards will eventually voluntarily, as a few of these 
cases are decided, the rest of the boards will voluntarily 
submit plans and comply with the law. I think, your Honor, 
that that eventually will be the way the thing will work out.

The Court: I have no further questions.
*  #



RA-14

Excerpt from Argument Before Chief District Judge 
Leahy on July 9, 1957, on Motions for Consolidation 
and for Summary Judgment against the Stale Board 
of Education and the State Superintendent of Public 

Instruction

(Later, in the course of Mr. Redding’s reply, the fol­
lowing occurred:)

Mr. Redding: * * * The State Board is a defendant 
here, in each one of these cases, and while I must say that 
[4] Mr. Cobin has in my opinion come through in some sort 
of fashion this morning, I think that a reading of the 
answers filed by the State Board in each of these cases 
and by the local boards will show that there is buck-passing. 
The State Board says it is the duty of the local boards, and 
the local boards have said that the devising of a plan of 
desegregation is the duty of the State Board.

The Court: And the last buck to be passed is to this 
Court.

Mr. Redding: That is correct, sir.
# *

Excerpt from Argument Before Chief District Judge 
Leahy on July 9, 1957, on Motions for Consolidation 
and for Summary Judgment against the State Board 
of Education and the State Superintendent of Public 
Instruction

[1] The Court: Who is next!
Mr. Craven :* I might say by way of introduction, your 

Honor, that the position of the State Board is consistent 
with what it has been heretofore and that the change in 
position is that of Mr. Redding in the matter. He first 
obtained a summary judgment against the Clayton School 
Board and as far as I know and the record indicates noth­
ing further has been done with that summary judgment.

* Joseph Donald Craven, Attorney General of the State of Dela­
ware.



RA-15

Excerpt from Argument Before Chief District Judge 
Leahy on July 9, 1957, on Motions for Consolidation 
and for Summary Judgment against the State Board 
of Education and the State Superintendent of Public 

Instruction

I can see that it would be a matter of greater conveni­
ence to the plaintiffs in this case if the whole burden were 
to be placed on the State Board of Education to come up 
with some plan that was worked out which the State Board 
would take the responsibility for and in saying that this 
would be the answer to the whole problem.

The Court: Mr. Craven, may I ask an informational 
question? On April 1, 1957, in the Clayton School District 
No. 119 case, which is our Civil Action 1816, the State 
Board was ordered within 60 days from that date to file 
with this Court a plan of integration. Did you take an 
appeal from that order to the Court of Appeals?

Mr. Craven: You mean the Clayton Board was ordered?
The Court: No, you were ordered. Members of the

[2] State Board. I will quote from the order. (The Court 
read the order referred to.) Did you take an appeal from 
that order?

Mr. Craven: No, there was a stay, your Honor. Your 
Honor issued a stay in that case based on the appeal that 
was taken by the Clayton Board.

The Court: Now, my next question is this: I am 
familiar with the facts in this case. The Clayton Board 
did not perfect its appeal. In fact, this Court had all the 
records returned from the Court of Appeals. Have you 
done anything subsequently to that?

Mr. Craven: No. The State Board has done nothing, 
and I assume the State Board assumed, as I did, as we did 
in the office, that any further action would be taken by Mr. 
Redding, the plaintiff.

The Court: It appears to be a cat and mouse game.



BA-16

Excerpt from Argument Before Chief District Judge 
Leahy on July 9, 1957, on Motions for Consolidation 
and for Summary Judgment against the State Board, 
of Education and the State Superintendent of Public 

Instruction

Mr. Craven: The plaintiffs obtained the summary
judgment, your Honor, and the order provided that the 
local board was to submit, as your Honor recalls -

The Court: The Court granted you the courtesy of a 
stay, and then when you were apprised of the fact that the 
appeal was aborted nothing was clone toward making a 
plan under the order of April 1, 1957.

Mr. Craven: Nothing was done, your Honor.
The Court: Very well, I have no further questions. 

You may proceed with your argument.
[3] Mr. Craven: Well, the position of the State Board 

is merely being reiterated here this morning that the local 
board in the Clayton case was requested—in fact, was 
directed—I have it before me—“ such plan by the local 
board shall be submitted to the State Board within a period 
of thirty days and within sixty days the State Board of 
Education shall submit its plan to the Court for further 
instruction.”  In other words, the Court took the position 
at that time that it was the primary responsibility of the 
local board to submit its plan to the State Board and the 
State Board feels that that was correct in that instance 
and that should be followed.

The Court: That was in that particular case.
Mr. Craven: In that particular case. That having-

set a precedent—
The Court: I do not accept this statement, that it was 

a precedent.
Mr. Craven: Your Honor will recall that I am here 

representing the State Board, and the State Board has 
instructed me as to what its position is in the matter as 
far as that is concerned. There isn’t any question but 
what the Court can issue its directive either to the local



RA-17

Excerpt from Argument Before Chief District Judge 
Leahy on July 9, 1957, on Motions for Consolidation 
and for Summary Judgment against the State Board 
of Education and the State Superintendent of Public

Instruction

boards or to the State Board as such, but the State Board 
does feel that it is up to the local boards to submit a plan 
first to them and that they are prepared to confer with the 
Court and with the local boards to assist in every way 
possible.

[4] I suppose that is no different from what our original 
brief was in the Clayton case, except in that case we sug­
gested the—the State Board suggested that the plan be 
submitted by the local boards directly to the Court, which 
of course this Court did not accept, and the State Board 
has declared it is willing to cooperate in every possible way 
with the local boards, but still feels that the initiative 
should come from the local boards.

The Court: Suppose they do not propose a plan in 
terms of this side of eternity, how long will the State 
Board remain inactive?

Mr. Craven: I suppose until this Court issues an order 
and a directive.

The Court: Very well, I have your point.



BA-18

Excerpt from Mandate of Court of Appeals, 3rd C., 
Issued June 30, 1958, and Subsequently Reissued.

A nd W hereas, the said cause came on to be heard 
before the said United States Court of Appeals for the 
Third Circuit, on the said record, and was argued by 
counsel;

O n  Consideration W hereof, it is now here ordered 
and adjudged by this Court that those portions of the 
decree of the District Court in this case, which states dates 
for the submission of the plan by the State Board of 
Education to the District Court and to each member of 
all the school boards in all of the public school districts 
which heretofore have not admitted pupils under a racially 
non-discriminatory plan, be and the same are hereby 
vacated, so that the District Court will be free to take 
appropriate action; and that in all other respects the de­
cree of the said District Court in this case be, and the 
same is hereby affirmed.

You, T herefore, A re H ereby Commanded that such 
proceedings be had in said causes, in conformity with the 
opinion and judgment of this court, as according to right 
and justice, and the laws of the United States, ought to be 
had, the said appeals notwithstanding.

Signed and sealed this 30th day of June in the year 
of our Lord one thousand nine hundred and fifty eight.

I da 0 .  Creskoff 
Clerk, United States Court 

of Appeals for the Third Circuit



RA-19

B y B iggs, Chief Judge.
The mandate of this court which was handed down on 

June 30, 1958 will be recalled, subject to the proviso that if 
the appellants have not filed a petition for -writs of certiorari 
to the Supreme Court of the United States on or before 
August 14, 1958, and have not filed with the Clerk of this 
court a certificate to such effect by August 18, 1958, the 
mandate of this court shall issue forthwith to the court 
below to carry out and effect the judgments of this court.

We take this step so that the appellants, by application 
to the Supreme Court for writs of certiorari, may exhaust 
their legal remedies without the possible complication of 
the cases becoming moot by action of the court belowT effect­
ing our judgments.

I am authorized to state that Judge Kalodner dissents 
and is of the view that in the light of all the circumstances, 
including the delay of the appellants in making application 
to this court in respect to the mandate, that the mandate 
should not be recalled.

A true Copy:
I da 0 . Creskoi’f

Teste:

Opinion of Court of Appeals, 3rd C. re Recall of
Mandate, Filed July 23, 1958.

Clerk of the United States Court of Appeals 
for the Third Circuit.



BA-20

Pursuant to the decree of this Court entered July 15, 
1957, and the mandate of the Court of Appeals for the 
Third Circuit vacating those portions of said decree which 
state dates for the submission of the plan of desegregation 
by the State Board of Education to this Court and to each 
member of all the school boards in all the public school 
districts which heretofore have not admitted pupils under 
a racially non-discriminatory plan, and affirming the decree 
in all other respects,

I t is Ordered t h a t :

1. The minor plaintiffs in the respective cases and all 
other Negro children similarly situated are entitled to 
admittance, enrollment and education, on a racially non- 
discriminatory basis, in the public schools of Clayton School 
District No. 119, Milford Special School District, Green­
wood School District No. 91, Milton School District No. 8, 
Laurel Special School District, Seaford Special School Dis­
trict and John M. Clayton School District No. 97.

2. The defendants are permanently enjoined and re­
strained from refusing admission, on account of race, color, 
or ancestry of respective minor Negro plaintiffs and all 
other children similarly situated, to the public schools 
maintained in the respective above-mentioned school dis­
tricts.

3. Defendant members of the State Board of Education 
and defendant George B. Miller, Jr., State Superintendent 
of Public Instruction, shall submit to this Court within 
one hundred five days from the date of this order a plan 
of desegregation providing for the admittance, enrollment 
and education on a racially nondiscriminatory basis, for 
the Fall Term of 1959, of pupils in all public school districts

Order of Judge Layton of November 19, 1958



R A -2 1

of the State of Delaware which heretofore have not ad­
mitted pupils under a plan of desegregation approved by 
the State Board of Education.

4. The members of the State Board of Education, as 
promptly as possible and within fifty days from the date 
of this order:

(a) Shall inform each school board of a public school 
district which heretofore has not admitted pupils under 
a plan of desegregation approved by the State Board of 
Education that a plan of desegregation affecting such public 
school district is to be prepared by the State Board of 
Education and is to be submitted to this Court by the 
State Board of Education;

(b) Shall make arrangements for consultation and carry 
out such consultation with each district school board named 
in this action relative to the plan of desegregation to be 
prepared by the State Board of Education for submission 
by it to this Court; and

(c) Shall inform each such district school board named 
in this action of the arrangements made by the State Board 
of Education for consultation with the district school 
boards relative to the plan of desegregation to be prepared 
by the State Board of Education for submission to this 
Court.

5. The members of the State Board of Education, with­
in fifty-five days from the date of this order, shall transmit 
in writing to each district school board in all public school 
districts of the State of Delaware which heretofore have 
not admitted pupils under a plan of desegregation ap­
proved by the State Board of Education at least four 
copies of the plan of desegregation herein ordered to be 
submitted to the Court, together with a copy of this Order.

Order of Judge Layton of November 19,1958



RA-22

6. Within fifty days after receiving a copy of the plan 
of desegregation of the State Board of Education, mem­
bers of district school boards may further consult with, 
and may make recommendations to, the State Board of 
Education relative to the plan of desegregation; and the 
State Board of Education may make such revision of its 
plan as it deems appropriate.

7. A  copy of the plan of desegregation of the State 
Board of Education shall be transmitted to all district 
school boards which have not admitted pupils under a plan 
of desegregation approved by the State Board of Educa­
tion and, further, shall be served on the plaintiffs on the 
date said plan is submitted to this Court.

8. A hearing shall be held before this Court on the 
plan of desegregation of the State Board of Education on 
Tuesday, March 17, 1959, at 10:30 o ’clock in the forenoon 
and, at said hearing, the parties and all district school 
boards desiring to be heard shall be heard.

Caleb R. L ayton, 3rd, 
Judge.

Order of Judge Layton of November 19,1958

Date: November 19, 1958.



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