Gibson v. Dade County, FL Board of Public Instruction Appellees' Brief

    UNITED STATES 
COURT OF APPEALS

FIFTH  CIRCUIT

No. 16,482

THEODORE GIBSON, as next friend for THEODORE 
GIBSON, JR ., et a l ,

Appellants,

vs.

BOARD OF PUBLIC INSTRUCTION OP DADE 
COUNTY, FLORIDA, et al.,

Appellees.

Appeal from the United States District Court for the 
Southern District of Florida

A P P E LLE E S’ BR IEF

BOARDMAN & BOLLES, and 
JOHN S. LLOYD
14 Northeast F irst Avenue, 
Miami, Florida 
Attorneys for Appellees.



STATEM

SPECIFI

ARGUM3

CONCLE

APPENE

28 U.S.

Chapte





TABLE OF CASES
Page

Alabama State Federation of Labor, Local Union 103, 
United Brotherhood of Carpenters & Joiners v. 
McAdory, 325 U. S. 450 (1945) ................................... 4

Avery v. Wichita Falls Independent School District 
5th Cir. 1957) 241 F. 2d 230...... ......................  ... ......H, 12

Bell v. Rippy (N. D. Tex. Dallas Div.) 133 F. Supp.
811...................................................................................... 11

Billings Utility Co. v. Advisory Committee, Board of 
Governors, C.C.A. Minn., 135 F. 2d 108 (1943) 7

Briggs et al. v. R. N. Elliot, et al., 132 F. Supp. 776 
(1955) ........................................................................... - 8

Brown v. Board of Education of Topeka, Kansas, 347
U. S. 483, 74 S. Ct. 686. ................................ ............... 3, 5,14

Bush v. Orleans Parish School Board, E. D. La., 138
F. Supp. 337, 340 (1956) a f f ’d ____F. 2 d ------ (5th
Cir. 1957) ................-....... -................... ........................... 9,10

Carson v. Board of Education of McDowell County,
227 F. 2d 789............... -............. -....... ........................  14,16

Evans v. Members of the State Board of Education 
(D. Del. 1956) 145 F. Supp. 873..................... .......... - 10,12

Hawkins, State ex rel v. Board of Control (Fla.) 83 
So. 2d 20 ....... ...................................................................  4,10

Heywood v. Public Housing Administration (5th Cir.
1956) 238 F. 2d 698................................. ...................  U , 12



TABLE OF CASES (Continued)

Page

Highland Farms Dairy v. Agnew, 300 U. S. 608, 616- 
617, 81 L. Ed. 835, 842 ........................ ............................  14

Hood v. Board of Trustees of Sumter County, South 
Carolina, et ah, 232 F. 2d 626 Cert, den., 352 U. S.
____, 77 S. Ct. 95,1 L. Ed. 2d 76 ...................................  16

Jackson v. Rawdon (5th Cir. 1956) 235 F. 2d 93..,-.... 10,11

Maryland Cas. Co. v. United Corp. of Mass., I l l  F.
2d 443 .......... ........................ ........ .................................... 6

New Discoveries v. Wisconsin Alumni Research Foun­
dation 13 F. Supp. 596 ..................................................  6

Polhemus v. American Medical Association, C.C.A.
N. M., 145 F. 2d 357 (1944) ........................... ...............  7

Public Service Comm, of Utah v. Wycoff Co., 344 
U. S. 237 (1952) .......................................... ....................  5

School Board of City of Charlottesville v. Allen (4th 
Cir. 1956) 240 F. 2d 59 Cert. den. 353 U. S . ____,
1 L. Ed 2d 664 ............. ................. . ................ .............10,11

Swank v. Patterson, C.C.A. Ariz., 139 F. 2d 145 (1944) 7

United Public Workers of America (C.I.O.) v. 
Mitchell, 330 U. S. 75 (1957) .......... ............................ 5

Whitmore v. Stillwell (5th Cir. 1955) 227 F. 2d 188...10,11





UNITED S T A T E S  
COURT OF A P P E A L S

FIFTH  CIRCUIT

No. 16,482

THEODORE GIBSON, as next friend for THEODORE 
GIBSON, JR ., et al.,

Appellants,

(  VS'
BOARD OF PUBLIC INSTRUCTION OF DADE 

COUNTY, FLORIDA, et a l,

Appellees.

Appeal from the United States District Court for the 
Southern District of Florida

A P P ELLEE S’ BR IEF

STATEMENT OF THE CASE

The statement of the case contained in appellants’ 
brief is substantially correct and accurate and is, therefore, 
adopted by the appellees, except where the same is con­
trary to the record. It is pointed out that the trial court 
granted appellees’ motion to dismiss the original complaint 
heretofore filed in this cause by the appellants.



SPECIFICATION OF ERRORS RELIED  UPON

The appellants submit the following specification of 
errors on which they rely:

1. The court below erred in dismissing the complaint 
on the grounds that it failed to set forth a justi­
ciable case or controversy.

2. The court below erred in ruling that the absence 
of an allegation in the complaint that the appel­
lants have sought admission to integrated schools 
and have been denied admission by appellees, in 
violation of appellants’ constitutional rights, di­
vested the court of the power to proceed further 
in the case.

3. The court below erred in ruling that the statement 
of policy of appellees to continue to maintain ra­
cially segregated schools did not vest the court 
with jurisdiction to determine this cause.

4. The court below erred in ruling that there is 
presently no act of appellees constituting any de­
privation of any of appellants’ rights, and that it 
could not act because no plan of desegregation 
had been submitted by appellees for the court’s 
consideration.

It is noted that the appellants, on December 28, 1956, 
filed their Statement of Points on Appeal (R. 16) which 
differs from the Specification of Errors now relied upon. 
It is therefore presumed by the writer that such points 
that have not been included in the Specification of Errors 
Relied Upon have been abandoned by the appellants.



ARGUMENT

While the appellants submitted four specifications of 
error for disposition by this court, all of them may be 
argued as one point as follows:

The Amended Complaint Sets Forth a Justiciable 
Case or Controversy Upon Which A Federal Court Should 
Exercise Its Judicial Power.

The lower court answered this in the negative.

The trial court’s order dismissing the cause without 
prejudice for the reasons stated therein (R. 10-13) was 
correct and should be affirmed by this honorable court.

THE AMENDED COMPLAINT DOES NOT SET 
FORTH A JU ST IC IA B LE CASE OR CONTROVERSY.

Appellants requested the court to rule on a moot issue.

In their amended complaint, appellants prayed for a 
declaratory judgment and injunctive relief (R. 5). They 
prayed the court to enter its declaratory judgment de­
claring that Article XII, Section 12 of the Constitution of 
the State of Florida and Section 228.09, Florida Statutes, 
and the segregation of the infant plaintiffs because of their 
race violate the Fourteenth Amendment of the United 
States (R. 5).

Such a declaratory judgment or decree would be use­
less repetition because such has already been declared, not 
only by the United States Supreme Court in Brown v. 
Board of Education of Topeka, Kansas, 347 U. S. 483, 74



4

S. Ct. 686, but also by the Florida Supreme Court in Haw­
kins, State ex rel, v. Board of Control, (Fla.) 83 So. 2d 20, 
where the Florida court declared that it was its inescapable 
duty to abide by the United States Supreme Court’s de­
cision. This issue, therefore, is moot.

It is well settled that the federal courts will not render 
advisory opinions or rule in moot cases.

In support of this contention, the appellees cite for 
the court’s consideration f r o m  Anderson’s treatise, 
“ Actions for Declaratory Judgments” , paragraph 65 on 
page 131 of Volume I, entitled “ Courts do not deliver Ad­
visory Opinions or Decide Moot Cases” :

“ It is definitely a sound rule of law that courts 
do not sit to grant judgments in abstract, fic­
titious, hypothetical or moot cases, but to redress 
grievances and to prevent wrongs.”

In Alabama State Federation of Labor, Local Union 
103, United Brotherhood of Carpenters & Joiners v. Mc- 
Adory, 325 U. S. 450 (1945), the United States Supreme 
Court stated, at page 461:

“ The requirements for a justiciable case or con­
troversy are no less strict in a declaratory judg­
ment proceding than in any other type of suit 
. . . This court is without power to give advisory 
opinions . . .  It has long been its considered 
practice not to decide abstract, hypothetical or 
contingent questions . . .  or to decide any con­
stitutional question in advance of “ the necessity 
for its decision . . .  or to decide any constitu-



tional question except with reference to the par­
ticular facts to which it is to be applied.”

See also Public Service Comm, of Utah v. Wycoff Co. 
344 U. S. 237 (1952), and United Public Workers of 
America (C.I.O.) v. Mitchell, 330 U. S. 75 (1957).

A PPELLA N TS A L L E G E D  IN SU FFIC IEN T  
FACTS IN TH EIR COMPLAINT TO R EFLE C T  THE 
EX IST E N C E OF AN ACTUAL CONTROVERSY.

In their prayer for injunctive relief, the appellants 
prayed that the appellees be ordered to present a plan of 
desegregation and be restrained from requiring the ap­
pellants to attend or not to attend public schools because 
of their race (R. 5, 6).

Appellants alleged that on September 7, 1955, they 
had petitioned the appellee School Board to abolish segre­
gation in the public schools of Dade County as soon as 
practicable in conformity with the decision of the U. S. 
Supreme Court in Brown v. Board of Education, supra. 
(R. 4). They then stated that the appellee Board did not 
desegregate the schools, but continued to adhere to a policy 
adopted by the appellee Board on August 17, 1955, which 
stated, at that time, that until further notice the school 
system of Dade County would continue to be operated on 
a segregated basis (R. 4).

Then the appellants included in their complaint the 
bare conclusion, unsupported by any ultimate facts, that 
the appellee Board had refused to desegregate the schools 
operated and maintained by it as soon as was practicable 
(R. 5).

Iff

'



6

The amended complaint is barren, however, of any 
allegation that the appellants had been forced to attend 
or not to attend any school because of their race or had 
been denied the right to attend any school became of their 
race.

Thus, there is no allegation in the amended complaint 
to serve as a basis for granting the appellants the relief 
prayed for that the appellees be enjoined from requiring 
the appellants to attend or not to attend schools in Dade 
County because of their race.

The appellants, by using mere conclusions rather 
than any concrete allegations of substantial ultimate facts, 
and by their prayers for relief unsubstantiated by any 
concrete allegations, merely asked the lower court to give 
an opinion advising what the law would be on something 
even less than a hypothetical state of facts. The lower 
court properly refused to give such an opinion. See Mary­
land Cas. Co. v. United Corp. of Mass., I l l  F. 2d 443.

On the contrary, the lower court correctly noted that 
a court must deal with realities (R. 12) and require that 
these realities be set forth in concrete allegations as ulti­
mate facts in the complaint. See New Discoveries v. Wis­
consin Alumni Research Foundation, 13 F. Supp. 596.

The following federal cases show clearly that the 
statements contained in appellants’ complaint to the effect 
that the appellants’ rights are being violated and that the 
appellee Board has refused to desegregate the schools as 
soon as is practicable are merely conclusions and not ulti­
mate facts sufficient to state a cause of action.



In the case of Polhemus v. American Medical Asso- 
ciation, C.C.A. N.M., 145 F. 2d 357 (1944) the federal 
court held that an allegation in general terms that an 
action involved a violation of the plaintiff’s rights under 
certain provisions of the federal constitution were mere 
conclusions and not statements of ultimate fact.

In Swank v. Patterson, C.C.A. Ariz., 139 F. 2d 145 
(1944), it was ruled that in determining the federal court’s 
jurisdiction, a statement in a complaint that by the de­
fendant’s acts the plaintiff was denied benefits and rights 
afforded to him by the Fourteenth Amendment of the 
United States Constitution was merely a conclusion and 
not sufficient to state a cause of action.

Further, in the case of Billings Utility Co. v. Advisory 
Committee, Board of Governors, C.C.A. Minn. 135 F. 2d 
108 (1943), it was held that the characterization of acts 
as arbitrary, capricious and tyrannical was not an alle­
gation of fact, but a statement of pleaders’ conclusion.

On the basis of the previously cited cases, we submit 
there is no actual controversy existing within the purview 
of the allegations of the amended complaint that would 
authorize the federal court to proceed under 28 U.S.C. 
Sec. 2201.

The allegation of the statement of policy of the Board 
of Public Instruction of Dade County, Florida, contained 
in Paragraph 5 of the amended complaint is not sufficient 
to vest the federal court with jurisdiction, which was one 
of the reasons for the lower court’s dismissal of the 
amended complaint.



8

There is no allegation in the amended complaint that 
a request was made for admission to a school and the same 
refused on the basis of race or color.

The decision of the special three judge court in the 
case of Harry Briggs, J r .  et ai. v. R. N. Elliot, et al., 
132 F. Supp. 776, decided on July 15, 1955, in the United 
States District Court, Eastern District of South Carolina, 
is pertinent to the issue involved here because in its decree 
the court stated exactly what the U. S. Supreme Court has 
decided and what it has not decided with respect to segre­
gation in the schools.

We quote directly from the decision in Briggs, et al., 
v. Elliott, et al., supra:

“ . . .  It is important that we point out exactly 
what the Supreme Court has decided and what it 
has not decided in this case. It has not decided 
that the federal courts are to take over or regu­
late the public schools of the states. It has not 
decided that the states must mix persons of dif­
ferent races in the schools or must require them 
to attend schools or must deprive them of the 
right of choosing the schools they attend. What it 
has decided, and all that it has decided, is that a 
state may not deny to any person on account of 
race the right to attend any school that it main­
tains. This, under the decision of the Supreme 
Court, the state may not do directly or indirectly 
but if the schools which it maintains are open to 
children of all races, no violation of the constitu­
tion is involved even though the children of dif­
ferent races voluntarily attend different schools 
as they attend different churches.”

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9

Appellants’ complaint, barren as it is of any allegation 
regarding a specific instance of a refusal on the part of 
the appellee Board to admit them to a school, does not con­
tain sufficient allegations of ultimate fact to show that 
the appellants are being denied the right to attend any 
school because of their race.

We note the existence of one paramount fact in each 
of the original school segregation cases. In each of these 
cases, the plaintiffs sought admission to a  particular school 
ancl hacl been denied it„

Appellants, however, contend that such a request is 
not necessary. To support this contention, appellants rely 
mainly on the case of Bush v. Orleans Parish School Board,
E. D. La., 138 F. Supp. 337, 340 (1956) a f f d ----- F. 2d
____ (5th Cir. decided March 1, 1957), as well as certain
other cases which they cite.

A PPELLA N TS’ CONTENTION THAT IT WAS 
NOT N ECESSA RY FOR THEM TO ALLEG E THAT 
THEY HAD SOUGHT AND BE EN  DENIED ADMIS­
SION TO A PARTICULAR SCHOOL IS ERRONEOUS.

The case of Bush v. Orleans Parish School Board, and 
the other cases relied on by appellants in support of this 
erroneous contention cannot apply to the instant situation.

For instance, in the Bush case, supra, the court stated 
that a justiciable issue existed because the defendants had 
admitted that they were maintaining segregation in the 
public schools under their supervision pursuant to the state 
statutes and the appropriate article of the state consti­
tution.



Thus in the Bush case, the defendants and the State 
of Louisiana itself were acting under the theory that the 
state’s segregation laws were still in effect in spite of 
the Brown decision. There can be no such theory in the in­
stant case because of the decision of the Florida Supreme 
Court in Hawkins, State ex rel. v. Board of Control, supra.

Further, at the time of the institution of this suit, 
there was a valid pupil assignment law in existence in the 
State of Florida. Chapter 31380, Laws of Florida, was 
enacted by the Legislature of the State of Florida during 
the 1956 Second Extraordinary Session, entitled “An Act 
Relating to the Management of the Public Schools” . This 
law conforms to the requirements of the implementation 
decision in the Brown case.

Thus, the Bush case is not applicable to the instant 
case because Louisiana law required that the school sys- 
ems there be operated on a segregated basis, while there 
was no such requirement in Florida at the time of the 
institution of this suit.

Appellants also cite the following cases in support of 
their stated position:

Jackson v. Rawdon (5th Cir. 1956) 235 F  2d 93;
School Board of City of Charlottesville v. Allen
(4th Cir. 1956) 240 F. 2d 59, Cert. den. 353 U. S.
----- 1 L. Ed. 2d 664;

Whitmore v. Stillwell (5th Cir. 1955) 227 F. 2d
188;

Evans v. Members of the State Board of Educa-
cation (D. Del. 1956) 145 F. Supp. 873;



11

Avery v. Wichita Falls Independent School Dis­
trict (5th Cir. 1957) 241 F. 2d 230;

Bell v. Rippy (N. D. Tex. Dallas Div.) 133 F.
Supp. 811;

Heywood v. Public Housing Administration (5th
Cir. 1956) 238 F. 2d 698.

None of these cases can be applicable to support the 
position of the appellants with regard to the situation in 
the case at bar, as a brief analysis of them will show.

For instance, in Jackson v. Rawclon, supra, there was 
only one high school, Mansfield High School, in the school 
district involved, and the plaintiffs alleged they sought 
admission to that high school and were denied solely be­
cause they were colored.

In Whitmore v. Stillwell, supra, the situation involved 
a junior college to which the plaintiffs had applied for ad­
mission in 1952. This court held that the plaintiffs did 
not have to reapply before instituting suit because they 
had already applied and had been refused and there was 
no showing that the school had changed its policy after the 
Brown decision.

How can Whitmore v. Stillwell, a case in which there 
was an application to a school, apply to a situation where 
there has been no such application?

In School Board of City of Charlottesville v. Allen, 
supra, the state school segregation laws were still in effect 
as fa r  as the State was concerned, as they were in the Bush



12

case, and it was shown that the two school boards involved K
were both upholding these state segregation laws. lants m

where t
Further, in the Charlottesville case, the pupil place- were m

ment law recently enacted by the Virginia General As- instant
sembly had not yet become effective, and the provisions additioi
of the code of Virginia applicable at the time of the institu- h a  segre
tion of the suit had been met by the plaintiffs in the k each ca
Charlottesville situation. for an

| of color
In Evans v. Members of Board of Education, supra, were a<

there was a refusal to desegregate a public school by both segregs
the local Clayton Board of School Trustees and the State . the cas
Board of Education in response to a petition presented to which 1
them both to do so by the plaintiffs in that case.

O i

The court in the Evans case, also found that defend- case th
ants’ alleged failure to formulate a plan for integration not tal
was done under “color of state law” . the Un

lower c
In Avery v. Wichita Falls Independent School Bis- |  because

trict, et al. supra, the plaintiffs lived in an area served by 1 lawful
a white school, made application to that school, and were 
refused on racial grounds.

the fac
The case of Heywood v. Public Housing Administra- insuffi

tion, supra, involved an action brought by negroes against ing to
public housing administrations where the negroes claimed Court
they were not even permitted to make application for white
housing projects. This case is clearly not applicable to the A
facts in the case at bar. There definitely are not sufficient is whe
facts alleged in appellants’ amended complaint to show that reiters
they were not permitted to apply to any school, nor do they trover
make any such claim.



It is clearly apparent from the cases cited by appel­
lants in support of their position that in each of these cases 
where the court held that a justiciable issue existed there 
were more facts than were alleged by the appellants in the 
instant case. In each case there were other elements in 
addition to a mere Board policy to continue the schools on 
a segregated basis for an unannounced period of time. In 
each case where the court held that it was not necessary 
for an application to a school and a refusal on the basis 
of color in order to create a justiciable issue, the defendants 
were acting under what they considered to be a valid state 
segregation law requiring segregated schools. In some of 
the cases there was an application to a particular school, 
which had been refused.

On the other hand, the lower court noted in the instant 
case that it believed that every member of the Board would 
not take lightly his oath to “ support the constitution of 
the United States and the State of Florida” (R. 12). The 
lower court had every right to indulge in this presumption 
because an administrative body is presumed to act in a 
lawful manner until it is proven otherwise.

The lower court, therefore, correctly determined that 
the facts before it in appellants’ amended complaint were 
insufficient to show that the appellee Board was not plan­
ing to obey the mandate of the United States Supreme 
Court to desegregate the schools as soon as practicable.

As heretofore noted, the prime point in this discussion 
is whether or not a justiciable controversy existed, and we 
reiterate our contention that there is no justiciable con­
troversy presented by appellants’ amended complaint.



But suppose, for the sake of argument only, we admit 
the existence of a true controversy.

THE A PPELLA N TS HAVE NOT EXH A U STED  
TH EIR ADM INISTRATIVE REM ED IES.

Nowhere in the amended complaint is there an allega­
tion that the appellants have availed themselves of and 
exhausted the administrative remedies available to them 
under existing state law. Any argument based on the prop­
osition that relief would have been denied still does not 
relieve the appellants from the necessity of exhausting their 
administrative remedies before application to the courts 
for relief.

In Highland Farm s Dairy v. Agnew, 300 U. S. 608, 
616-617, 81 L. Ed. 835, 842, the court held:

“ . . . One who is required to take out a li­
cense will not be heard to complain, in advance 
of application, that there is danger of refusal 
. . .  He should apply and see what happens.”

A very recent decision containing cogent reasons for 
the affirmance of the ruling of the lower court in this case 
was handed down by the Court of Appeals for the Fourth 
Circuit in the case of Carson v. Board of Education of 
McDowell County, 227 F. 2d 789. This case was decided 
subsequent to the decisions in the Brown case, supra, and 
involved an action by negro children against a local school 
board alleging discrimination on account of race and color 
because plaintiffs were not allowed to attend a certain 
public school. A state statute existed which provided an 
administrative remedy for persons who felt aggrieved with



respect to their enrollment in the public schools of the 
state. This statute is substantially similar to the law pres­
ently existing in the State of Florida, popularly known as 
the “ Pupil Assignment Law” . In referring to the North 
Carolina School Assignment Act, the federal court stated, 
at page 790:

“ . . .  An administrative remedy is thus pro­
vided by state law for persons who feel that they 
have not been assigned to schools that they are 
entitled to attend: and it is well settled that the 
courts of the United States will not grant in­
junctive relief until administrative remedies have 
been exhausted.” (Citing cases)

In discussing the applicability of the rule to the al­
leged discrimination, and in submitting the case to the state 
forum, the court said:

“ This rule is especially applicable to a case such 
as this, where injunction is asked against state or 
county officers with respect to the control of 
schools maintained and supported by the state.
The federal courts manifestly cannot operate the 
schools. All that they have the power to do in the 
premises is to enjoin violation of constitutional 
rights in the operation of schools by state author­
ities. Where the state law provides adequate ad­
ministrative procedure for the protection of such 
rights, the federal courts manifestly should not 
interfere with the operation of the schools until 
such administrative procedure has been exhausted 
and the intervention of the federal courts is shown 
to be necessary. As said by Mr. Justice Stone in



16

Matthews v. Rodgers, supra, (284 U. S. 525) :
‘The scrupulous regard for the rightful inde­
pendence of state governments which should at q’fo
all times actuate the federal courts, and a proper 
reluctance to interfere by injunction with their 
fiscal operations, require that such relief should 
be denied in every case where the asserted federal 
right may be preserved without it.’ Interference 
by injunction with the schools of a state is as 
grave a matter as interfering with its fiscal 
operations and should not be resorted to ‘where 
the asserted federal right may be preserved 
without it.’ ”

The McDowell Comity case, supra, was subsequently 
followed by the circuit court in the affirmance of a dis­
trict court’s denial of relief in Hood v. Board of Trustees 
of Sumter County South Carolina, et al., 232 F. 2d 626,
cert, den., 352 U. S . ----- -, 77 S. Ct. 95, 1 L. Ed. 2d 76. In
the Hood case, as in the McDowell case, negro children
brought an action in the federal district court against local
school officials before availing themselves of the adminis- ►
trative remedies provided by the South Carolina statute
in cases of school placement disputes.

Thus, even if it were determined that a justiciable 
controversy existed in the instant case, appellants would 
not be entitled to the relief they seek because they have 
not exhausted the administrative remedies available to 
them.



CONCLUSION

The order of the lower court should be affirmed.

Respectfully submitted,

BOARDMAN & BO LLES and 
JOHN S. LLOYD,
Attorneys for Appellees 
14 Northeast F irst Avenue 
Miami, Florida

By
Edward F. Boardman



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APPENDIX

28 U.S.C. Section 2201 of Title 28

Creation of Remedy.-—In a case of actual controversy 
within its jurisdiction, except with respect to Federal 
taxes, any court of the U. S. and the district court or the 
Territory of Alaska, upon the filing of an appropriate 
pleading, may declare the rights and other legal relations 
of any interested party seeking such declaration, whether 
or not further relief is or could he sought. Any such dec­
laration shall have the force and effect of a final judg­
ment or decree and shall be reviewable as such. As 
amended August 28,1954, c. 1033, 68 Stat. 890.

CHAPTER 31380 

SEN A TE BILL NO. 11-XX

AN ACT relating to the management of the public 
schools at the local level; prescribing student admission 
policies with power to make appropriate rules and regula­
tions and providing for the review of actions taken pur­
suant thereto; prescribing the duties of certain officials; 
authorizing the creation of advisory committees and study 
groups; authorizing employment of legal counsel; provid­
ing for surveys; authorizing redistricting of attendance 
areas and reallocation of school bus transportation routes; 
all pursuant to the police and welfare powers of the State ; 
repealing Section 230.23(6)g., Florida Statutes; providing 
effective date.

W HEREAS, this Act is enacted under the police and 
public welfare powers of the State to promote the health,



safety, good order and education of the people within the 
State of Florida.

Now, therefore,

BE IT ENACTED BY THE LEGISLATURE OF 
THE STATE OF FLORIDA:

Section 1. The county board of public instruction 
of the several counties are hereby authorized and directed 
to provide for the enrollment in a public school in the 
county of each child residing in such county who is qual­
ified under the laws of this state for admission to a pub­
lic school in such county. The authority of each such board 
in the matter of the enrollment of pupils in the public 
schools shall be full and complete. No pupil shall be en­
rolled in or admitted to attend any public school in which 
such child may not be enrolled pursuant to the rules, reg­
ulations and decisions of such board.

Section 2. In the exercise of the authority conferred 
by Section 1 of this Act upon the county boards of public 
instruction each such board shall provide for the enroll­
ment of pupils in the respective public schools located 
within such county so as to provide for the orderly and 
efficient administration of such public schools, the effec­
tive instruction of the pupils therein enrolled, and the 
health, safety, education and general welfare of such pu­
pils. In the exercise of such authority the board shall pre­
scribe school attendance areas and school bus transpor­
tation routes and may adopt such reasonable rules and reg­
ulations as in the opinion of the board shall best accom­
plish such purposes. The county boards of public instruc­
tion shall prescribe appropriate rules and regulations to



implement the provisions of this subsection and other 
applicable laws of this state and to that end may use all 
means legitimate, necessary and proper to promote the 
health, safety, good order, education and welfare of the 
public schools and the pupils enrolling therein or seeking 
to enroll therein. In the accomplishment of these objec­
tives the rules and regulations to be prescribed by the 
Board may include, but be not limited to, provisions for 
the conduct of such uniform tests as may be deemed neces­
sary or advisable in classiflying the pupils according to 
intellectual ability and scholastic proficiency to the end 
that there will be established in each school within the 
county an environment of equality among pupils of like 
qualifications and academic attainments. In the prepara­
tion and conduct of such tests and in classifying the pu­
pils for assignment to the schools which they will attend, 
the board shall take into account such sociological, phyeho- 
logical and like intangible social scientific factors as will 
prevent, as nearly as practicable, any condition of socio­
economic class consciousness among the pupils attending 
any given school in order that each pupil may be afforded 
an opportunity for a normal adjustment to his envoron- 
ment and receive the highest standard of instruction with­
in his ability to understand and assimulate. In designating 
the school to which pupils may be assigned there shall be 
taken into consideration the available facilities and teach­
ing capacity of the several schools within the county, the 
effect of the admission of new students upon established 
academic programs, the suitability of established curricu­
lum to the students enrolled or to be enrolled in a given 
school, the scholastic aptitude, intelligence, mental energy 
or ability of the pupil applying for admission and the 
psychological, moral, ethical and cultural background and 
qualifications of the pupil applying for admission as com-



4a

pared with other pupils previously assigned to the school 
in which admission is sought. It is the intention of the 
legislature to hereby delegate to the local school boards 
all necessary and proper administrative authority to pre­
scribe such rules and regulations and to make such de­
cisions and determinations as may be requisite for such 
purposes.

Section 3. a. The parent or guardian of any child, 
or the person standing in loco parentis to any child who 
shall apply to the appropriate public school official for the 
enrollment of any such child in any public school within 
the county in which such child resides, and whose applica­
tion for such enrollment shall be denied may, pursuant to 
rules and regulations established by the county boards of 
public instruction, apply to such board for enrollment in 
such school and shall be entitled to a prompt and fair hear­
ing by such board in accordance with the rules and regula­
tions established by such board. The majority of such 
board shall be a quorum for the purpose of holding such 
hearing and passing upon such application and the de­
cision of the majority of the members present at such 
hearing shall be the decision of the board. If at such hear­
ing the board shall find that such child is entitled to be 
enrolled in such school or if the board shall find that the 
enrollment of such child in such school will be for the best 
interest of such child and will not interfere with the proper 
administration of the school or with the proper instruction 
of the pupils there enrolled and will not endanger the 
health or safety of the pupils there enrolled, the board 
shall direct that such child be enrolled in and admitted 
to such school. If the board finds that the child is not en­
titled to be enrolled in such school or that his enrollment 
in such school would not be for the best interest of the

child or t' 
the prop 
proper in 
child’s ad 
or safety 
deny the 
of the ch 
determini 
to serve 
school sys

b. I 
plication 
standing 
satisfied 
spect to 
such pare 
parentis 
by makin 
within tt 
cision, an 
practicab 
ceiving s 
shall can 
sought tc 
the evide 
thirty (3< 
said decis 
for furth 
Board of 
to be tak 
consider 
original 
the decis



child or that his enrollment would seriously interfere with 
the proper administration of such school or with the 
proper instruction of the pupils there enrolled or that the 
child’s admission to such school would endanger the health 
or safety of the children there enrolled, the board shall 
deny the petition for enrollment and direct the enrollment 
of the child in such other school in the county as shall be 
determined by the board to be best adapted or qualified 
to serve the best interests of the child and of the public 
school system.

b. If a parent or guardian of any child whose ap­
plication for enrollment has been denied, or the person 
standing in loco parentis to any such child, shall be dis­
satisfied with the decision of any county board with re­
spect to the school in which such child shall be enrolled, 
such parent or guardian, or such person standing in loco 
parentis to such child, may seek a review of such decision 
by making and filing with the State Board of Education 
within thirty (30) days after the rendition of such de­
cision, an application for review thereof, and as soon as 
practicable, but not later than thirty (30) days after re­
ceiving such application, the State Board of Education 
shall cause the county school board, whose decision is 
sought to be reviewed, to transmit to it the transcript of 
the evidence in such case before them, and within said 
thirty (30) day period of time affirm, reverse or modify 
said decision or remand the matter to the county board 
for further proceedings, provided, however, that the State 
Board of Education may, in its discretion, take or direct 
to be taken any additional evidence or testimony and may 
consider such additional testimony in connection with the 
original transcript, and shall affirm , reverse or modify 
the decision of the board of public instruction or remand



6a

the matter to the county board for further proceedings, 
and in all such proceedings, the county superintendent of 
public instruction and the board of public instruction of 
said county shall be notified and shall be considered as a 
party to the review.

In addition to the matters and things set forth herein 
to be considered by the county board of public instruction 
in the assignment of such pupil to a school, the State 
Board of Education may take into consideration any mat­
ter and thing which in its judgment and discretion relates 
to the welfare, safety, well-being, peace and tranquility 
of the community or area affected, and taking all such 
matters into consideration, shall render its decision, either 
reversing the action or actions theretofore taken as pro­
vided above or modifying the decision or decisions pre­
viously taken or remand the matter to the county board 
of public instruction for further proceedings.

c. Any parent or guardian of any child or the per­
son standing in loco parentis to any child, or a majority 
of the board of public instruction of any county affected 
by the decision of the State Board of Eduation, and who 
is dissatisfied therewith, may appeal such decision as a 
matter of right to the Circuit Court of Leon County, Flor­
ida, within thirty (30) days after the rendition of the said 
decision by the Board. The appeal shall be heard by the 
Circuit Court upon the record certified by the Board, 
which shall include a copy of the transcript of evidence, 
and such documents and exhibits as may have been filed 
before the Board, as either party may request. The Circuit 
Court may affirm, reverse, modify or remand the cause 
to the Board for further proceedings. An appeal from 
the decision of the Board to the Circuit Court shall be



7a

taken by filing a written notice with the Board. Said no­
tice of appeal shall be served personally, or by mailing a 
true copy thereof by registered mail within five (5) days 
after the same is filed to the attorney of record for the 
interested parties. The notice shall fix the return date of 
the appeal. The appeal shall be returnable before the Cir­
cuit Court of Leon County to a date not less than thirty 
(30) days and not more than sixty (60) days from the 
date the decision appealed from is filed in the office of 
the Board. Except where it is inconsistent herewith, the 
statutes and rules governing appeals in chancel y shall 
govern appeals provided for herein. In all such appeals 
the Board shall be the sole party respondent, and the At­
torney General of the State of Florida shall be given no­
tice of such appeal and shall take such action therein as 
he shall be directed by the Board.

d. In any proceeding brought pursuant to the pro­
visions of this section the Attorney General of the State 
of Florida is authorized upon request to furnish represent­
ation to the County School Board, and to represent the 
State Board of Education of the State of Florida, as the 
case may be, and upon request shall furnish such services 
as may be necessary to properly present and defend the 
action of the public bodies and officials charged with the 
responsibility of administering the provisions of this 
chapter.

e. Reviews by the State Board of Education of the 
State of Florida of any decisions rendered by the County 
School Boards in the state shall be considered and con­
strued as a step in the local proceeding.

Section 4. The county school boards of the public



8a

schools of Florida are authorized and empowered to con­
duct surveys within their respective counties to deter­
mine the attitudes and feelings of the citizens of their re­
spective communities with the subsequent purpose of for­
mulating plans to maintain, preserve and improve the 
public school system of Florida.

Section 5. The county school boards are authorized 
and empowered to create and appoint citizens committees 
and study groups from their localities to assist in the 
aforementioned surveys and plans.

Section 6. The county school boards shall be author­
ized to employ special counsel to assist the county school 
board’s attorney in representing the board in any litiga­
tion involving rules and regulations and rulings and de­
cisions of the board under the provisions of this act.

Section 7. If any section, subsection, sentence, clause, 
phrase or word of this Act is for any reason held or de­
clared to be unconstitutional, invalid, inoperative, ineffec­
tive, inapplicable, or void, such invalidity or unconstitu­
tionality shall not be construed to affect the portions of 
the Act not so held to be unconstitutional, void, invalid 
or ineffective, or affect the application of this Act to other 
circumstances not so held to be invalid, it being hereby de­
clared to be the express legislative intent that any such 
unconstitutional, illegal, invalid, ineffective, inapplicable 
or void, portion or portions of this act did not induce its 
passage, and that without the inclusion of any such uncon­
stitutional, illegal, invalid, ineffective or void portions of 
this act, the legislature would have enacted the valid and 
constitutional portions thereof.



9a

Section 8. Section 230.23(6) (g), Florida Statutes, is 
hereby repealed.

Section 9. This act shall take effect immediately 
upon becoming a law.

Approved by the Governor July 26, 1956.

Filed in Office Secretary of the State July 27, 1956.



CERTIFICATE OF SERVICE

1 H EREBY CERTIFY that a copy of the foregoing
Brief of Appellees has this______ day of May, 1957, been
furnished to Mr. G. E. Graves, Jr., Attorney for Appel­
lants, 802 N. W. Second Avenue, Miami, Florida.

Edward F. Boardman



e foregoing 
, 1957, been 
for Appel- 

ia.

iman





UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT 

NO. 1 6 ,4 8 2

THEODCRE GIBSON, a s  n ex t f r ie n d  f o r  :
THEODORE GIBSON, J R . ,  e t  a l . ,

t
A p p e lla n ts ,

v s .  * CERTIFICATE OF SERVICE
:

BOARD OF PUBLIC INSTRUCTION OF DADE 
COUNTY, FLORIDA, e t a l . ,  ;

A p p e l la n t s .  :

I  HEREBY CERTIFY t h a t  a  copy o f  A p p a l l * * * *  B r i e f

in  th e  c a p tio n e d  c a s e  h a s  t h i s  13th  day o f  May, A. D, 1 9 5 7 ,

been m ailed  to  each o f  th e  fo l lo w in g :

G . E. G ra v e s , J r .
802 N. W, Second Avenue 

M iami, F lo r id a

Edwin L . D av is
941 N. w. Second Avenue 

M iami, F lo r id a

R obert L .  C a r t e r ,
Thurgood M a r sh a ll ,
C o n stan ce  B ak er M otley 

107 West 4 3 rd  S t r e e t  
New Y ork , New York 

(V ia A ir  M ail)

H erb ert L * H eiken
763 A rthur G o d frey  Road 

Miami B e ach , F lo r id a .

BOARDMAN & BoLLES, and 
J«.HN S .  LLOYD 
14 N. E, F i r s t  Avenue 
A tto rn e y s f o r  A p p e lle e s

By.
John S .  L loyd



OFFICE OF THE CLERK

§& *3& & b t§ad s' ,orth
United States Court of Appeals

F IF T H  C I R C U I T

NEW ORLEANS 6, LA.

May 1 4 , 1 9 5 7 .

Mr. H erbert L . H eiken , 
A tto rn e y  a t  Law,
Miami B e ach , F l a .

D ear S i r :

In  r e p ly  to  yo u r l e t t e r  o f  May 1 0 th , r e o u e s t -  
in g  in fo rm a tio n  a s  to  w hether t h i s  C ou rt w i l l  perm it 
o r a l  argum ent from  Amicus C u r ia e  in  r e : -

No. 16432 , GIBSON ET A L ., vs.BOARD OF PUBLIC IN­
STRUCTION OF DADE COUNTY, FLORIDA, ET AL,

I  am d ir e c t e d  t o  a d v is e  t h a t  t h i s  c a se  h a s  been  s e t  f o r  
o r a l  argum ent on May 22nd, h ere  in  New O r le a n s , a t  which 
tim e th e  C ourt w i l l  a l lo w  a maximum o f  t h i r t y  m in u tes to  
th e  s i d e .  I f  c o u n se l  f o r  e i t h e r  p a r ty  so  d e s i r e ,  th e y  
may p erm it Amicus C u r ia e  t o  u se  a  p o r t io n  o f  t h e i r  a l ­
l o t t e d  t im e , th e  o n ly  *1 1  j o i s t i o n  b e in g  t h a t  th e  C ourt 
w i l l  n o t a llo w  more th an  an hour f o r  th e  argum ent o f  th e  
whole c a s e  and i f  c o u n se l  f o r  th e  p a r t ie d  w i l l  n o t a g r e e  
to  perm it u se  o f  a  p o r t io n  o f  t h e i r  tim e Amieus C u ria e  
must su bm it on b r i e f .

V ery  1

&
t r u ly  y o u r s ,

D W. WADSWORTH 
C lerk

EW
cc

mf . . .
Ifa*. G. E . G ra v e s , J r . ,  M iam i, F l a .
Mr. Thurgood M a r sh a ll , New Y ork , N. Y . 
Mr. Edward F .  Boardm an, M iami, F l a .
Mr. John S .  L lo y d , M iam i, F l a .