Taylor v. New Rochelle Board of Education Court Opinion

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GOO 288 F E D E R A L  REPORTER,

a “ material”  question, or one the answer 
to which “ is necessary to a verdict.”  Un­
der the circumstances it was, we think, 
good judgment to withdraw all the ques­
tions. Certainly we cannot say to do so 
was an abuse of discretion.

Affirmed.

(o  |  KEY NUMBER SYSTEM^

1. Courts 0=405(2)
Power of Court of Appeals to hear

an appeal from District Court order was 
matter Court of Appeals was obliged to 
raise even if such challenge was not made 
by appellees.
2. Courts 0=405(14.1)

Court of Appeals did not have power 
to entertain a board of education’s ap­
peal from an order directing it to present 
a plan for desegregation on. or before a 
certain date, until the District Court di­
rected the board to take or refrain from 
action pursuant to such plan.

:7
Leslie TAYLOR and Kevin Taylor, mi­

nors, by Wilbert Taylor and Hallie Tay­
lor, their parents and next friends, et 
al., Plaintiffs-Appellees,

BOARD OF EDUCATION OF the CITY 
SCHOOL DISTRICT OF the CITY OF 
NEW ROCHELLE et al., Defendants- 
Appellants.

-  No. 26901.

United States Court of Appeals 
Second Circuit.

Argued March 20, 1961. 
Decided April 13, 1961.

Appeal dismissed as premature.
Moore, Circuit Judge, dissented.

3. Courts €=405(12)
A “ final decision”  within basic stat­

ute authorizing appeals to the Courts of 
Appeals, is one which ends litigation on 
merits and leaves nothing for the court 
to do but execute judgment, 28 U.S. 
C.A. § 1291.

See publication Words and Phrases,
- for other judicial constructions and defi­

nitions of “ Final Decision” .

Action by Negro children, through 
their parents, for declaratory and in­
junctive relief against a school board, re­
lating to its operation of an elementary 
school system. The United States Dis­
trict Court for the Southern District of 
New York, Irving R. Kaufman, J„ 191 
F.Supp. 181, rendered an opinion holding 
plaintiffs’ rights to have been violated 
and setting a date for the board to pre­
sent a plan for desegregation, and 
the board appealed. The Court of Ap­
peals, Friendly, Circuit Judge, held that 
it had no power to entertain the appeal 
until the District Court directed the 
board to take or refrain from action pur­
suant to desegregation plan.

4. Courts €=405(12.23)
An order adjudging liability but 

leaving quantum of relief to be deter­
mined is classic example of nonfinal and #
nonappealable order.
5. Courts <3=405(12.23)
'  An order directing a board of educa­
tion to submit a plan for desegregation 
was not appealable on theory order was 
final as to one party although litigation 
was proceeding as to others.
6. Courts €=405(12.1)

A board of education’s dislike of pre­
senting a desegregation plan and attend­
ing hearings thereon that would be un­
necessary if finding of liability were ul­
timately to be annulled, and also possibly 
unwarranted expectations such course 
might create, was not irreparable in­
jury warranting appeal from order re­
quiring board to present a desegregation 
plan.
7. Courts €=405(12.1)

The term “ injunction” within stat­
ute giving Courts of Appeals jurisdiction 
over interlocutory orders pertaining to 
injunctions, includes not only an order 
prohibiting certain conduct du mg pend-

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TAYLOR v. BOARD (
Cite as -S S 1

•encv of litigation, but also one that com­
mands it. 28 U.S.C.A. § 1292(a) (1).

See publication Words and Phrases, 
for other judicial constructions and defi­
nitions of “ Injunction”.

8. Injunction ©=5
A judicial command that relates 

merely to taking of a step in a judicial 
proceeding is not generally regarded as 
a mandatory injunction.
9. Courts <3=405(12.1)

Not every order containing words of 
restraint is a negative injunction within 
statute authorizing appeals from certain 
injunctive orders, and not every order 
containing words of command is a man­
datory injunction within that section. 
28 U.S.C.A. § 1292(a) (1).
10. Courts ©=405(12.1)

An order directing a board of educa­
tion to submit a desegregation plan on 
or before a certain date was not appeal­
able under interlocutory appeals statute 
as an order granting a mandatory in­
junction. 28 U.S.C.A. § 1292(a) (1).

Thurgood Marshall, New York City 
(Paul B. Zuber, Constance Baker Motley 
and Jack Greenberg, New York City, on 
the brief), for plaintiffs-appellees. .

Murray C. Fuerst, New Rochelle, N. Y. 
(Julius Weiss, New York City, on the 
brief), for defendants-appellants.

Before MOORE, FRIENDLY and 
SMITH, Circuit Judges.

FRIENDLY, Circuit Judge.
In this action, eleven Negro children, 

proceeding through their parents, seek

)F EDUCATION, ETC. 601
r,2d U0O (I'JOl)

declaratory and injunctive relief against 
the Board of Education of New Rochelle, 
New York, and the Superintendent of 
Schools. On January 24, 1961, Judge 
Kaufman signed an opinion, 191 F.Supp. 
181, stated to constitute the District 
Court’s findings of fact and conclusions 
of law, which held that various acts of 
the defendants violated plaintiffs’ con­
stitutional rights as defined in Brown v. 
Board of Education, 1954, 347 U.S. 483, 
74 S.Ct. 686, 98 L.Ed. 873, and later de­
cisions of the Supreme Court. The opin­
ion ended with two paragraphs, quoted 
in the margin,1 in which the District 
Judge stated, among other things, that 
he deemed it “ unnecessary at this time 
to determine the extent to which each of 
the items of the relief requested by plain­
tiffs will be afforded,” [191 F.Supp. 198] 
but would defer such determination until 
the Board had presented, on or before 
April 14, 1961, “ a plan for desegregation 
in accordance with this Opinion, said de­
segregation to begin no later than the 
start of the 1961-62 school year.”

[1, 2] Pursuant to authorization by a 
5-3 vote at a meeting of the Board of 
February 7, 1961, defendants appealed to 
this Court on February 20, 1961. On 
March 7, 1961, the District Judge denied 
an application by them to extend the 
date for filing a plan pending determina­
tion of the appeal, as well as a motion by 
plaintiffs for an order directing defend­
ants immediately to assign plaintiffs to 
elementary schools other than the Lincoln 

' School. Thereupon, defendants moved 
this Court for a stay of the direction to 
file a plan, pending the appeal. At the 
hearing on that motion, the Court ques-

I. “The Decree
“ In determining the manner in which 

the Negro children residing within the 
Lincoln district are to be afforded the op- 
opportunities guaranteed by the Constitu­
tion, I  will follow the procedure author­
ized by the Supreme Court in Brown v. 
Board of Education, 349 U.S. 294 [75 S. 
Ct. 753, 99 L.Ed. 1083] (1955), and 
utilized by many district courts in im­
plementing the Brown principles. Thus, 
I  deem it unnecessary at this time to 
determine the extent to which each of 
the items of relief requested by plaintiffs 

28S F .2d— 38V2

will be afforded. Instead, the Board is 
hereby ordered to present to this Court, 
on or before April 14, 1901, a plan for 
desegregation in accordance with this 
Opinion, said desegregation to begin no 
later than the start of the 1961-02  school 
year. This court will retain jurisdiction 
of this action until such plan has been 
presented, approved by the court, and 
then implemented.

“The foregoing Opinion will constitute 
the court’s findings of fact and conclu­
sions of law.”

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602 288 FEDERAL REPORTER, 2d SERIES

tioned whether the appeal had not been 
prematurely taken and was not, there­
fore, beyond the appellate jurisdiction 
conferred upon the Court by Congress. 
Later we directed the filing of briefs on 
this issue and extended the Board’s time 
to file the plan pending the Court’s de­
cision on the question of jurisdiction and 
in any event to May 3, 1961. Appellees 
now challenge our power to hear an ap­
peal at this stage, but the question is 
one this Court was obliged to raise in 
any event, Mitchell v. Maurer, 1934, 293 
U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338, 
and it is better that this be determined 

, now rather than after further time has 
elapsed. Upon full consideration, we 
conclude that we have no power to en­
tertain the Board’s appeal until the Dis­
trict Court has finished its work by di­
recting the Board to take or refrain 
from action. /

Familiar decisions of the) Supreme 
Court establish the controlling principles. 
“ Finality as a condition of review is an 
historic characteristic of federal appel­
late procedure. It was written into the 
first Judiciary Act and has been departed 
from only when observance of it would 
practically defeat the right to any review 
at all." Cobbledick v. United States, 
1940, 309 U.S. 323, 324-325, 60 S.Ct. 
540, 541, 84 L.Ed. 783. “ The foundation 
of this policy is not in merely technical 
conceptions of ‘finality.’ It is one against 
piecemeal litigation. ‘The case is not to 
be sent up in fragments * * * ’ Lux- 
ton v. North River Bridge Co., 147 U.S. 
337, 341 [13 S.Ct. 356, 358, 37 L.Ed. 
194]. Reasons other than conservation 
of judicial energy sustain the limitation. 
One is elimination of delays caused by 
interlocutorv appeals.’’ Catlin v. United 
States, 1945, 324 U.S. 229, 233-234, 
65 S.Ct. 631, 634, 89 L.Ed. 911.

[3 ,4 ] A “ final decision” within 28 
U.S.C. § 1291, the basic statute authoriz­
ing appeals to the courts of appeals, and 
its predecessors going back to §§ 21 and 
22 of the Act of Sept. 24, 1789, c. 20, 1 
Stat, 73, 83-84, “ is one which ends the 
litigation on the merits and leaves noth­
ing for the court to do but execute the

judgment.”  Catlin V. United States, 
supra, 324 U.S. at page 233, 65 S.Ct. at 
page 633. Plainly Judge Kaufman’s de­
cision of January 24, 1961 does not fit 
that description. It constituted only a 
determination that plaintiffs were en­
titled to relief, the nature and extent of 
which would be the subject of subsequent 
judicial consideration by him. What re­
mained to be done was far more than 
those ministerial duties the pendency of 
which is not fatal to finality and conse­
quent appealability, Ray v. Law, 1805,
3 Cranch 179, 180, 2 L.Ed. 404. An 
order adjudging liability but leaving the 
quantum of relief still to be determined 
has been a classic example of non-finality 
and non-appealability from the time of 
Chief Justice Marshall to our own, The 
Palmyra, 1825, 10 Wheat. 502, 6 L.Ed. 
375; Barnard v. Gibson, 1849, 7 How. 
650, 12 L.Ed. 857; Leonidakis v. Inter­
national Telecoin Corp., 2 Cir., 1953, 208 
F.2d 934; 6 Moore, Federal Practice
(1953 ed.), p. 125 and fn. 5, although in 
all such cases, as here, this subjects the 
defendant to further proceedings in the 
court of first instance that will have been 
uncalled for if that court’s determination 
of liability is ultimately found to be 
wrong. Recognizing that this may create 
hardship, Congress has removed two 
types of cases from the general rule that 
appeals may not be taken from decisions 
that establish liability without decreeing 
a remedy— namely, decrees “ determining 
the rights and liabilities of the parties to 
admiralty cases in which appeals from 
final decrees are allowed,”  28 U.S.C. § 
1292(a) (3), added by the Act of April 3, 
1926, c. 102, 44 Stat. 233, and “ judgments 
in civil actions for patent infringement 
which are final except for accounting . 
28 U.S.C. § 1292(a) (4), added by the 
Act of Feb 28, 1927, c. 228, 44 Stat. 
1261. Congress’ specification of these 
exceptions, manifestly inapplicable here, 
underscores the general rule.

This salutary Federal rule requiring 
finality as a condition of appealability 
has become subject, over the year . to 
exceptions other than those just men­
tioned, some fashioned by the com —

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TAYLOR v. BOARD OF EDUCATION, E1]
Cite as 288 F.2d 600 (1061)

!C.

others enacted by Congress. The instant 
appeal does not come within any,

[5,6] Of the judicially created excep­
tions, the one referred to in Dickinson v. 
Petroleum Conversion Corporation, 1950, 
338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299, 
namely, that under some circumstances a 
decree may be final as to one party al­
though the litigation proceeds as to oth­
ers, is so manifestly inapplicable that we 
would not mention it if appellants had 
not. Similarly inapplicable is the rule in 
Forgay v. Conrad, 1848, 6 How. 201, 12 
L.Ed. 404, that a judgment directing a 
defendant to make immediate delivery of 
property to a plaintiff is appealable de­
spite a further provision for an account­
ing. The scope of this doctrine is narrow 
and rests upon “ the potential factor of 
irreparable injury,”  6 Moore, Federal 
Practice (1953 ed.), p. 129—just how 
narrow is shown by decisions refusing 
to apply it to a decree that adjudged 
rights in property but made no disposi­
tion of the property pending a further 
hearing relating to its precise identifica­
tion, Rexford v. Brunswick-Balke-Col- 
lender Co., 1913, 228 U.S. 339, 33 S.Ct. 
515, 57 L.Ed. 864, or to a decree award­
ing possession to the United States under 
eminent domain but reserving the ques­
tion of compensation, Catlin v. United 
States, supra, 324 U.S. at page 232, 65 
S.Ct. at page 633, overruling our con­
trary decision in United States v. 243.22 
Acres of Land, 2 Cir., 1942,129 F.2d 678. 
See Republic Natural Gas Co. v. State of 
Oklahoma, 1948, 334 U.S. 62, 68 S.Ct. 
972, 92 L.Ed. 1212. Here, while we 

J i f it o M ^ e fe n d a n ts

at' woutcHoetending hearings thereon
w m m m

were ultimately to be annulled 
the DoIsihlY um ^ dVI'Wr*»J»eRniWB

may create/ this is scardety
injury a t . 
not an irre y map-

rirtem Cohen v. Benefi­
cial Industrial Loan Corp., 1949, 337 U.S. 
541, 545-547, 69 S.Ct. 1221, 1225, 93 L.
Ed. 1528, also advanced by appellants, 
permitting review of orders “ which final­

ly determine claims of right separable 
from, and collateral to, rights asserted in 
the action, too important to be denied re­
view and too independent of the cause it­
self to require that appellate considera­
tion be deferred until the whole case is 
adjudicated.” Here the issue sought to 
be reviewed, far from being collateral to 
the main litigation, represents the very 
findings and conclusions upon which any 
final judgment against the defendants 
must rest.

[7] Turning to statutory exceptions, 
the only one that could be, and is, claimed 
to be applicable is 28 U.S.C. § 1292(a) 
(1). That gives us jurisdiction over 
“ Interlocutory orders of the district 
courts * * * granting, continuing,
modifying, refusing or dissolving injunc­
tions, or refusing to dissolve or modify 
injunctions, except where a direct review 
may be had in the Supreme Court.” The 
term “ injunction” includes not only an 
order prohibiting certain conduct during 
the pendency of litigation but also one 
that commands it. Societe Interna­
tionale, etc. v. McGrath, 1950, 86 U.S. 
App.D.C. 157, 180 F.2d 406.

Appellants contend Judge Kaufman’s 
decision granted both a prohibitory and 
a mandatory injunction. They say the 
order “ in effect” prohibited them from 
proceeding with their plans to recon­
struct the Lincoln School and commanded 
them to submit a plan. If the former 
were so, the order would clearly be ap­
pealable; we have searched the opinion 
for substantiation but in vain. To be 
sure, the opinion says the proposed re­
construction alone might aggravate the 
problem rather than ameliorate it; and 
we fully appreciate why the Board may 
hesitate to proceed in the light of this, 
as, indeed, it might have if the opinion 
had not yet been rendered. But as yet 
we can only conjecture whether the Dis­
trict Court will enjoin the rebuilding or 
permit this if accompanied by other acts; 
and a defendant’s apprehension that con­
duct on his part may ultimately be re­
strained is not an “ injunction”  within § 
1292(a) (1).



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288 F E D E R A L  R E P O R T E R , 2d S E R IE S60 i

[8, 9] Whether Judge Kaufman’s di­
rection for the submission of a plan on 
April 14 is a mandatory injunction re­
quires, in the first instance, interpreta­
tion of what was said. It is common 
practice for an equity judge first to reach 
a conclusion as to liability and to deter­
mine the appropriate relief later in the 
event of an affirmative finding. If the 
District Judge had said in his opinion 
only that a further hearing would be held 
at which the parties would have an op­
portunity to express themselves as to re­
lief, by testimony, argument, or both, it 
would be entirely plain that he had not 
granted a mandatory injunction, and this 
would be so even if he had also stated 
that, in the interest of orderly procedure, 
he would expect the defendants to take 
the lead at the hearing. In substance 
this is what Judge Kaufman did.. Al­
though the penultimate paragraph pf his 
opinion is headed “ The Decree,”  the con­
text makes clear that the few sentences 
that follow were not, themselves/ decre­
tal, but simply explained how he planned 
to fashion his decree. To be sure, the 
opinion used the word “ ordered” with re­
spect to the filing of a plan, just as courts 
often “ order” or “ direct” parties to file 
briefs, findings and other papers. Nor­
mally this does not mean that the court 
will hold in contempt a party that does 
not do this, but rather that if he fails to 
file by the date specified, the court may 
refuse to receive his submission later 
and may proceed without it. That this 
was what Judge Kaufman intended is 
confirmed by his later opinion denying an 
extension of the April 14 date, in which 
he spoke of having “ specifically requested 
the Board to submit its plan for desegre­
gation of the Lincoln School” and of hav­
ing given the Board “ an opportunity to 
submit” such a plan. Moreover, even if

2. For clarity we note what ought he ob­
vious, namely, that the Board s submis­
sion of a plan of desegregation implies no 
acceptance of the District Judge's deter­
minations of fact and law and no waiver 
of a right to appeal— any more than does 
the action of a losing party in any suit, 
either at the request of the court or of

the order was intended to carry contempt 
sanctions, which we do not believe, a 
command that relates merely to the tak­
ing of a step in a judicial proceeding is 
not generally regarded as a mandatory 
injunction, even when its effect on the 
outcome is far greater than here, 6 
Moore, Federal Practice (1953 ed.) pp. 
4G-47.2 For just as not every order con­
taining words of restraint is a negative 
injunction within 28 U.S.C. § 1292(a) 
(1), Baltimore Contractors, Inc. v. Bod- 
inger, 1955, 348 U.S. 176, 75 S.Ct. 249, 
99 L.Ed. 233; Fleischer v. Phillips, 2 
Cir., 1959, 264 F.2d 515, 516, certiorari 
denied 1959, 359 U.S. 1002, 79 S.Ct. 1139, 
3 L.Ed.2d 1030; Grant v. United States, 
2 Cir., 1960, 282 F.2d 165, 170, so not 
every order containing words of com­
mand is a mandatory injunction within 
that section.

[10] Our review of the cases that 
have reached appellate courts in the wake 
of Brown v. Board of Education, supra, 
and its supplement, 1955, 349 U.S. 294, 
75 S.Ct. 753, has revealed only one in 
which jurisdiction may have been taken 
under such circumstances as here. In 
Clemons v. Board of Education of Hills­
boro, 6 Cir., 1956, 228 F.2d 853; Brown 
v. Rippy, 5 Cir., 1956, 233 F.2d 796; 
Booker v. State of Tennessee Board of 
Education, 6 Cir., 1957, 240 F.2d 689, 
and Holland v. Board of Public Instruc­
tion, 5 Cir., 1958, 258 F.2d 730, the ap­
peals were from final orders denying in­
junctive relief. In Aaron v. Cooper, 8 
Cir., 1957, 243 F.2d 361, an injunction 
was denied because of a voluntary plan 
offered by the Little Rock School District 
which the District Court found satis­
factory, but jurisdiction was retained; 
since the order denied an injunction is 
was therefore appealable whether it was 
deemed final or interlocutory.3 In Boarc

his own volition, in submitting a form of 
judgment conforming with findings and 
conclusions from which he dissents.

3. Later cases involving the Little Rock 
situation, Thomason v. Cooper, 8 Cir., 
3958, 254 F.2d S08; Aaron v. Cooper,
8  Cir., 1958, 257 F.2d S3, affirmed 
Cooper v. Aaron, 195S, 358 U.S. 1, ‘ 8



TAYLOR v. BOARD OF EDUCATION, ETC.
Cite as 288 F.2d COO (1961)

605
of Supervisors of L. S, U., etc. v. Dudley, 
5 Cir., 1958, 252 F.2d 372, certiorari de­
nied, 1958, 358 U.S. 819, 79 S.Ct. 31, 3 
L.Ed.2d 61; Board of Supervisors of L. 
S. U., etc. v. Wilson, 1951, 340 U.S. 909, 
71 S.Ct. 294, 95 L.Ed. 657, and Evans v. 
Buchanan, 3 Cir., 1958, 256 F.2d 688,« 
the District Court had issued mandatory 
injunctions directing the admission of 
Negro students. In Boson v. Rippy, 5 
Cir., 1960, 275 F.2d 850, the appeal was 
from a refusal to modify an injunction 
so as to advance the dates of desegrega­
tion, this falling within another provi­
sion of § 1292(a) (1). The single case 
that may support appealability here is 
an unreported memorandum in Mapp v. 
Board of Education of Chattanooga, in 
which the Sixth Circuit denied a motion 
to dismiss an appeal, without discussion 
save for a reference to 28 U.S.C. § 1291 
and § 1292(a) (1) and a “ cf.” to Boson 
v. Rippy, supra. We doubt that appellees’ 
attempt to distinguish the Mapp case is 
successful, but we do not find the memo­
randum persuasive. Boson v. Rippy does 
not support the decision, for the reason 
indicated, as the manner of its citation 
perhaps recognized; and we do not know 
what it was that the judges found in the 
statutes to support their conclusion of 
appealability. Moreover, the subsequent 
proceedings in the Mapp case, where the 
District Court has already rejected the 
plan directed to be filed and required the 
submission of a new one, with a second 
appeal taken from that order although 
the first appeal has not yet been heard, 
indicate to us the unwisdom of following 
that decision even if we deemed ourselves 
free to do so.

There is a natural reluctance to dis­
miss an appeal in a case involving issues 
so important and so evocative of emotion 
as this, since such action is likely to be

regarded as technical or procrastinating. 
Although we do not regard the policy 
question as to the timing of appellate 
review to be fairly open, we think more 
informed consideration would show that 
the balance of advantage lies in withhold­
ing such review until the proceedings i 
the District Court are completed. To 
stay the hearing in regard to the remedy, 
as appellants seek, would produce a delay 
that would be unfortunate unless we 
should find complete absence of basis for 
any relief— the only issue that would 
now be open to us no matter how many 
others might be presented, since we do 
not know what the District Judge will 
order— and if we should so decide, that 
would hardly be the end of the matter. 
On the other hand, to permit a hearing 
on relief to go forward in the District 
Court at the very time we are entertain­
ing an appeal, with the likelihood, if not 
indeed the certainty, of a second appeal 
when a final decree is entered by the Dis­
trict Court, would not be conducive to 
the informed appellate deliberation and 
the conclusion of this controversy with 

istent with order, which the 
S rrp re fflrtS ^  ought
to be the objective of all concerned. In 
contrast, prompt dismissal of the appeal 
as premature should permit an early con­
clusion of the proceedings in the District 
Court and result in a decree from which 
defendants have a clear right of appeal, 
and as to which they may then seek a 
stay pending appeal if so advised. We—  
and the Supreme Court, if the case should 
go there—can then consider the decision 
of the District Court, not in pieces but 
as a whole, not as an abstract declaration 
inviting the contest of one theory against 
another, but in the concrete. We state 
all this, not primarily as the reason for 
our decision not to hear an appeal at this 
stage, but rather to demonstrate what

S.Ct. 1401, 3 L.Ed.2d 5 ; Aaron v. Coop­
er, 8 Cir., 1958, 261 F.2d 97, concerned 
attempts to frustrate or delay effectua­
tion of the plan previously approved.

4- The Court of Appeals noted in the 
Evans opinion, 256 F.2d at page 691, 
that in one of the seven cases the D is­
trict Court had earlier made an order

directing the submission of a plan from 
■which “ an appeal * * * was taken to 
this court hut was not prosecuted and ac­
cordingly the record was returned to the 
court below.”  The later appeal. Evans v. 
Ennis, 3 Cir., 1960, 281 F.2d 383, was 
from a final order approving a plan which 
plaintiffs deemed inadequate.

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608 288 FEDERAL REPORTER, 2d SERIES

we consider the wisdom embodied in the 
statutes limiting- our jurisdiction, which 
we would be bound to apply whether we 
considered them wise or not^y

Accordingly, the appeal is dismissed 
for want of appellate jurisdiction at this 
time. Although it should not be neces­
sary to do so, we add, from abundant 
caution, that this dismissal involves no 
intimation on our part with respect to 
the propriety or impropriety of the de­
termination of the District Court. If 
defendants feel that the time that has 
been required for the disposition of this 
issue compels them to request a further 
extension of the date for presenting a 
plan, they should make their application 
to the District Judge.

MOORE, Circuit Judge (dissenting).
This case comes before us on a motion 

for a stay of that portion of a decree 
wherein the Board of Education of New 
Rochelle is “ ordered to present to this 
Court [Irving R. Kaufman, D./J.], on or 
before April 14, 1961, a plan for deseg­
regation 1 in accordance with/ this [his] 
Opinion * * * . ”  An appeal “ from
the judgment entered in this action on 
January 24, 1961”  (the date judgment 
was entered by the Clerk upon the trial 
court’s opinion which was to constitute 
the court’s findings of fact and conclu­
sions of law) is now pending in this court 
and representations have been made that 
it can lie heard at a comparatively early 
date. Upon oral argument of the motion, 
the court on its own motion raised the 
question of appealability; the parties 
themselves initially did not present this 
issue either by motion or on argument. 
How the panel of this court which might 
have heard the appeal would have ruled 
on the question of appealability is aca­
demic because by the decision of the ma­
jority of this panel, they will not have 
that opportunity. I would have deferred 
to them and let them have the privilege

The schools of New Rochelle have never 
been on a segregated basis in the sense 
that :my Negro pupil has been denied ad­
mission to any school by reason of being 
a member of the Negro race and as the

of deciding whether they should hear and 
decide on the merits. However, havinir 
to face this question now, I am of the 
opinion that an appeal may properly be 
taken from the judgment as entered.

The complaint, charging maintenance 
of “ a racially segregated public elementa­
ry school,” “ ghettos,”  “ minority racial 
groups,”  and denial of “ due process” and 
“ equal protection,” seeks injunctive re­
lief, both affirmative and negative, 
against the Board:

A. Declaring illegal and unconstitu­
tional the City’s “ neighborhood school” 
policy (whereby children attend the 
school in the area of their residence);

B. Enjoining attendance in a “ racial­
ly segregated” school;

C. Requiring registration in a “ ra­
cially integrated” school;

D. Enjoining the construction of a 
public school approved for construction; 
and

E. Enjoining prosecution of an action 
commenced by the defendants.

The character of the action as an in­
junction proceeding was clearly establish­
ed by the allegations and the relief 
sought. A trial was held and a judgment 
was entered. The trial court throughout 
its opinion referred to the injunctive re­
lief sought, which was granted in both 
mandatory and prohibitory form.

Section 1292(a) (1) gives this court 
appellate jurisdiction over interlocutory 
orders “ granting * * * injunctions.” 
As the majority concedes, the term “ in­
junction” embraces an order command-, 
ing as well as prohibiting conduct. The 
decree (entered as a judgment) in my 
opinion definitely is within this category. 
The words are “ the Board is hereby or­
dered to present to this Court * * * 
a plan for desegregation in accordance 
with this Opinion.” The majority .-ay 
that if the order in effect prohibited the 
Board from reconstructing the Lincoln

term is used in Brown v. Board of Edu­
cation, 347 U.S. 483, 74 S.Ct. GSG, and re­
lated cases. All the schools had Negro 
pupils in their student bodies.

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TA1 .uCXl v. iiOxiiwD Ox
Cite as 288 F.2tl

School, the order would be “ clearly ap­
pealable.” Yet in the “ Opinion” which is 
to serve as a guide for a Plan, the trial 
court has said, “ this [the rebuilding] 
seems the one sure way to render certain 
continued segregation at Lincoln.”  How 
can this statement, together with the 
finding that “ it is most difficult to con­
ceive of the rebuilding of the Lincoln 
School as good-faith compliance with an 
obligation to desegregate,”  be reconciled 
with the thought that no injunction is in­
tended. Here is virtually a pre-hearing 
judgment that any Plan which incorpo­
rates a rebuilding of the school on its 
present site will be inconsistent with the 
court’s conception of desegregation. My 
colleagues cannot seriously believe that 
these words are not words of restraint 
and should not be regarded as an injunc­
tive deterrent from building a new 
school. No Board would spend thousands 
of dollars for a new school only to be 
directed eventually to tear it down and 
build it elsewhere.

The mandatory provisions of the judg­
ment are both direct and implied. If 
“ the presence of some 29 white children 
certainly does not afford the 454 Negro 
children in the school the education and 
social contacts and interaction envisioned 
by Brown,”  how many additional white 
children will be required to accomplish 
this result ? 2 And where will they come 
from? The trial court does not “con­
ceive it to be the court’s function to in­
terfere with the mechanics of the opera­
tion of the New Rochelle school system,” 
and “ did not strike down the neighbor­
hood school policy,”  but found it to be 
“ valid only insofar as it is operated with­
in the coniines established by the Con­
stitution.” Yet the Board must submit

2. How can any court be sure that mere 
numbers can effect these assumed ad­
vantages?

3. Here the word is used to indicate a 
predominant percentage of any race—
quite a different meaning from that in­
tended in the true “ desegregation” cases.

EDUCATION, ETC. 607
(300 (1961)

an acceptable Plan in the light of the 
Court’s Opinion to “ avoid that very even­
tuality,”  namely, “ the Court’s taking over 
the running of the New Rochelle school 
system.”

Reference to these situations is made 
only because I believe that they relate to 
the injunctive character of the judgment. 
It is this character which determines ap­
pealability— the only question now being 
considered. The merits must be con­
sidered later upon hearings in which it 
would appear that the Lincoln School and 
the Negro pupils will not be alone. Al­
ready notice has been served that “ the 
Ward School is predominently [sic] 
Jewish and the Columbus School pre­
dominently [sic] Italian in the composi­
tion of the student bodies.”  The parents 
of the children “ desire that action be 
brought to desegregate 3 both schools.”  
Warning is given that “ if plans are made 
to correct the situation existing in the 
Lincoln School, brought about by the 
neighborhood school concept, that such 
plans also bear in mind the religious and 
other inbalances [sic] also existing.”  
When all the racial, religious and “ other 
inbalances” have been thoroughly aired, 
although, premature at this time, the 
hope is expressed that somehow the 
American philosophy that constitutional 
rights are the vested heritage of all our 
citizens and are not the exclusive prop­
erty of any racial or religious group to be 
used for their own particular interests 
may find its way into the Plan— even if 
only in a footnote.4

Because I believe that the statute per­
mits an appeal from this injunctive judg­
ment, I would grant the stay, and I dis­
sent from the dismissal of the appeal.

4. Every assurance of this approach is giv­
en in the two well-reasoned opinions be­
low. My dissent is based solely upon the 
belief that under the law the judgment 
entered in this ease granting the relief 
specified therein is appealable.

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