Mannings v. Board of Public Instruction of Hillsborough County, Florida Brief for Appellants

    )

1st th e

Itutpft GImtrt n! Appeals
F oe th e  F if t h  C iecuit

No....... ....... .

A ndrew  L. M an n in g s , a  m inor, by  his fa th er and 
n ext fr ien d , et al.,

Appellants,
— y .—

T h e  B oard of P ublic I nstruction  of 
H illsborough Co u nty , F lorida, et al.,

Appellees.

BRIEF FOR APPELLANTS

F rancisco A. R odriguez 
703 Harrison Street 
Tampa 2, Florida

Constance B aker  M otley 
T hurgood M arshall  

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellants



In the

HnxUb States Court of Appeals
F oe th e  F if t h  C iecuit 

No...................

A ndbew  L. M an n in g s , a m inor, by  his fa th er and 
next frien d , et al.,

Appellants,
— v.—

T he  B oaed of P ublic I nstruction  of 
H illsborough C o u nty , F lorida, et al,

Appellees.

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of the United States 
District Court for the Southern District of Florida, Tampa 
Division, entered on the 7th day of August 1959 dismissing 
the complaint herein on the ground that appellants have 
not exhausted their administrative remedies under the 
Florida Pupil Assignment Law (F. S. A., Sec. 230.232) 
(E. 12).

This cause involves racial segregation in the public 
elementary and high schools of Hillsborough County, 
Florida.

The complaint, which was filed on the 12th day of 
December 1958 invoking the jurisdiction of the court below 
pursuant to the provisions of Title 28, U. S. C. §1343(3),



2

alleges that the adult plaintiffs are all Negro citizens of 
the United States and of the State of Florida, residing 
in the County of Hillsborough, Florida and the parents 
of Negro children eligible to attend the public schools of 
said county who, with the exception of one child, are 
all presently enrolled in the public elementary schools 
of said county. The one child who is not so enrolled will 
be eligible to enroll for the first time in September 1959 
(E. 3). The suit was brought by the adult plaintiffs on 
behalf of their minor children as next friend and on behalf 
of other parents and children similarly situated pursuant 
to the provisions of Eule 23(a)(3) of the F. E. C. P. 
(E. 2). The gravamen of the complaint is that “ defen­
dants, acting under color of the authority vested in them 
by the laws of the State of Florida, have pursued and are 
presently pursuing a policy of operating the public school 
system of Hillsborough County, Florida, on a racially seg­
regated basis” and that in August 1955 “ the defendants 
were formally petitioned by Negro parents of children 
eligible to attend the public schools of Hillsborough County, 
Florida, to abolish the segregation policy . . . ” (E. 4-5). 
The complaint further alleges that, “ This formal petition 
was followed by several letters on behalf of the Negro 
parents requesting defendants to desegregate the public 
schools of Hillsborough County, Florida,” and that, “De­
spite this petition and despite the several letters directed 
to the defendants, the defendants have refused to discon­
tinue the policy of operating the public schools of Hills­
borough County, Florida, on a raciallv segregated basis” 
(E. 5).

In addition, the complaint alleges that pursuant to the 
racial segregation policy, seventy two of the public schools 
of Hillsborough County are limited to attendance by white 
children only and eighteen schools are limited to attendance



3

by Negro children; that many Negro students, including 
some of the minor plaintiffs, who reside nearer to schools 
limited to white students, are required to attend schools 
limited to Negro students which are considerably removed 
from the places of their residence; and that in some in­
stances plaintiffs travel as much as ten miles to attend a 
Negro elementary school, whereas they reside only two 
blocks from a white elementary school (E. 4-5). Finally, 
the complaint alleges that defendants’ refusal to change 
the policy operates to prevent Negro students from being 
assigned to white schools nearer to their places of residence 
which they would attend if they were white and which they 
presently desire to attend (R. 5).

However, the complaint does not allege that any of the 
plaintiffs or any of the members of their class have ever 
applied for admission to any particular white school and 
have been denied admission to same, solely because of their 
race and color. Moreover, the complaint does not allege 
that plaintiffs have exhausted the remedy provided by the 
Florida Pupil Assignment Law (F. S. A., Sec. 230.232).

Defendants moved to dismiss the complaint on the ground, 
among others, that the plaintiffs had failed to exhaust the 
administrative remedy available to them under the Florida 
Pupil Assignment Law (R. 7). The defendants’ motion 
came on for hearing on the 7th day of August 1959 and 
after the hearing the court below entered an order dismiss­
ing the complaint on said ground (R. 12).

Specification of Errors

The court below erred in ruling that the complaint must 
be dismissed because the appellants have not exhausted 
their administrative remedy under the Florida Pupil As­
signment Law.



4

A R G U M E N T

I.

The Florida Pupil Assignment Law Is Inapplicable to 
This Case.

A. The appellants, by this law suit, do not seek  specific 
assignment to specific schools

Appellees would like to believe that the enactment of 
the Florida Pupil Assignment Law operates to relieve 
them of the constitutional duty imposed upon them by the 
decisions of the United States Supreme Court in the School 
Segregation Cases, Brown v. Board of Education of To­
peka, 347 U. S. 483 (1954); Brown v. Board of Education 
of Topeka, 349 U. S. 294 (1955), and Cooper v. Aaron, 
358 U. S. 1 (1958), to cease operation of the public school 
system of Hillsborough County, Florida, on a racially 
segregated basis. Appellees apparently believe that— 
despite these decisions of the Supreme Court which put 
upon them an affirmative duty to reorganize the public 
school system under their jurisdiction on a nonracial basis 
and to assign children in the newly reorganized system 
without reference to race and without perpetuating the 
status quo existing prior to these decisions—they may con­
tinue to operate as they had prior to these decisions and 
may shift their duty to change the racially segregated 
pattern to the Negro community by requiring Negro parents 
to seek transfers for their children to white schools within 
the existing segregated system.

The original School Segregation Cases brought in fed­
eral district courts which culminated in the first Brown 
decision were not brought in federal district courts for the 
purpose of having such courts pass upon the plaintiffs’ 
applications for admission to specific white schools within



5

the segregated system. Each of those cases was brought 
for the purpose of having the federal courts declare uncon­
stitutional state statutes and school board policies requir­
ing operation of the entire school system on a racially 
segregated basis and were so treated by the Supreme 
Court. Those cases were all brought as class actions, dis­
crimination against a class was alleged, and the Supreme 
Court expressly treated the eases as class actions calling 
for remedial action involving a whole class of persons dis­
criminated against and not simply the individual plaintiffs. 
Therefore, after holding in the first Brown decision that 
state enforced racial segregation in public schools is un­
constitutional, the Court set the cases down for reargument 
as to the type of relief to be afforded in view of the fact that 
those cases were class actions. The Court said:

Because these are class actions, because of the wide 
applicability of this decision, and because of the great 
variety of local conditions, the formulation of decrees 
in these cases presents problems of considerable com­
plexity (at 495).

Clearly, then, the Supreme Court considered those cases 
as being brought for the purpose of giving relief to Negroes 
as a class against racial segregation in the schools and 
not for the sole purpose of securing the admission of the 
individual plaintiffs to particular white schools. If the 
latter had been the Court’s approach to these cases, then 
the Court would simply have ordered or directed the entry 
of orders to the effect that the named plaintiffs be admitted 
to the particular white schools to which they had applied 
and no further consideration as to type of relief would 
have been necessary.

In the second Brown decision the Court again made it 
clear that the type of relief to be given in these cases was



6

relief for the class as a whole—relief which affects the 
entire school system involved—and not simply one or two 
specific schools to which plaintiffs may or may not be 
assigned. There the Court said:

At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis. To effectuate this interest 
may call for elimination of a variety of obstacles in 
making* the transition to school systems operated in 
accordance with the constitutional principles set forth 
in our May 17, 1954 decision (at 300). (Emphasis 
added.)

 ̂  ̂ ^
To that end, the courts may consider problems re­

lated to administration, arising from the physical 
condition of the school plant, the school transportation 
system, personnel, revision of school districts and at­
tendance areas into compact units to achieve a system 
of determining admission to the public schools on a 
nonracial basis, and revision of local laws and regula­
tions which may be necessary in solving the foregoing 
problems. They will also consider the adequacy of 
any plans the defendants may propose to meet these 
problems and to effectuate a transition to a racially 
nondiscriminatory school system. During this period 
of transition, the courts will retain jurisdiction of these 
cases (at 300-301). (Emphasis added.)

Apparently because many school authorities had taken 
the view of these cases which appellees here take, the 
Court in the Cooper case, supra, undertook to restate what 
it had already stated in the Brown decisions regarding the 
manner in which federal district courts are to approach



7

school desegregation cases and then made the following 
unequivocal statement:

. . . the District Courts were directed to require 
“ a prompt and reasonable start toward full compli­
ance,” and to take such action as was necessary to 
bring about the end of racial segregation in the public 
schools “ with all deliberate speed.” Ibid. Of course, 
in many locations, obedience to the duty of desegrega­
tion would require the immediate general admission of 
Negro children, otherwise qualified as students for the 
appropriate classes, at particular schools. On the other 
hand, a District Court, after analysis of the relevant 
factors (which, of course, excludes hostility to racial 
desegregation), might conclude that justification ex­
isted for not requiring the present nonsegregated ad­
mission of all qualified Negro children. In such cir­
cumstances, however, the courts should scrutinize the 
program of the school authorities to make sure that 
they had developed arrangements pointed toward the 
earliest practicable completion of desegregation, and 
had taken appropriate steps to put their program into 
effective operation. It was made plain that delay In 
any guise in order to deny the constitutional rights 
of Negro children could not be countenanced, and that 
only a prompt start, diligently and earnestly pursued, 
to eliminate racial segregation from the public schools 
could constitute good faith compliance. State authori­
ties were thus duty hound to devote every effort toward 
initiating desegregation and bringing about the elimi­
nation of racial discrimination in the pubic school sys­
tem (358 U. S. 1, 7). (Emphasis added.)



B. Prior application fo r  admission to particular schools 
is not a prerequisite to federal court jurisdiction  
in school segregation cases.

In line with the decisions of the United States Supreme 
Court in the cases referred to above, this court has con­
sistently ruled that federal jurisdiction in school segrega­
tion cases need not be predicated on an application by a 
Negro child for admission to a particular white school 
and denial of admission thereto by school authorities solely 
because of race and color but must be predicated upon an 
allegation of a policy of racial segregation in force in the 
public school system involved, and relief in such cases 
must be predicated upon proof of such a policy. Holland 
v. Board of Public Instruction of Palm Beach County (5th 
Cir. 1958), 258 F. 2d 730; Gibson v. Board of Public In­
struction of Dade County (5th Cir. 1957), 246 F. 2d 913. 
See, Shuttlesworth v. Birmingham Board of Education 
(N. D. Ala. 1958), 162 F. Supp. 372, 375-376, aff’d 358 U. S. 
101.

In the Holland case, although the infant plaintiff was 
found to be ineligible for admission to the white school to 
which he applied, on residential grounds, this court, never­
theless, held that he had standing to sue and could invoke 
the jurisdiction of the federal district court to enjoin racial 
segregation in the Palm Beach County school system. 
There this court said:

That the plaintiff was ineligible to attend the school 
to which he applied would not, however, excuse a fail­
ure to provide nonsegregated schools. It is not neces­
sary to review piecemeal the district court’s findings 
of fact and conclusions of law, for the record as a whole 
clearly reveals the basic fact that, by whatever means 
accomplished, a completely segregated public school 
system was and is being maintained and enforced.



9

No doubt that fact is well known to all citizens of the 
County, and the courts simply cannot blot it out of 
their sight (at 732). (Emphasis added.)

Similarly, in this ease, appellees may not ask this court 
or the court below to close its judicial eyes to facts which 
are clear to everyone else in Hillsborough County and that 
is that racial segregation is still the basis upon which the 
public schools of the county are presently being operated. 
Moreover, it is well settled that for the purposes of a motion 
to dismiss, all of the well-pleaded facts alleged in the com­
plaint are deemed admitted as a matter of law. Mitchell v. 
Wright (5th Cir. 1954), 154 F. 2d 924, cert. den. 329 U. S. 
733. Here the complaint clearly and succinctly alleges, 
in paragraphs 6 and 7, that the defendants “ have pursued 
and are presently pursuing a policy of operating the public 
school system of Hillsborough County, Florida on a racially 
segregated basis,” and that after formally being petitioned 
to change this policy, defendants “ have refused to discon­
tinue the policy.”

In the Gibson case no prior application had been made 
on the part of any of the infant plaintiffs for admission to 
white schools. There this court held prior application un­
necessary where, as here, the plaintiffs had petitioned the 
Board to change the racial segregation policy and the Board 
had failed or refused to do so.

In the Shuttlesworth case the State of Alabama first re­
pealed the compulsory school segregation provisions of its 
law before enacting the School Placement Law and, in the 
light of that fact, plaintiffs offered no proof whatsoever in 
support of their allegations, denied by defendants, alleging 
discrimination against plaintiffs in the enforcement of the 
law but relied chiefly upon their claim that the law was 
unconstitutional on its face (at 375-376, 380). Here, unlike



10

the Shuttlesworth case, proof of racial discrimination in 
the operation of the public school system was offered in 
support of a motion for summary judgment filed by plain­
tiffs. [The depositions and affidavits on file in the court 
below in support of motion for summary judgment, of 
course, are not included in the record on this appeal since 
the court below did not rule on that motion. In addition, 
defendants had been subpoenaed to bring other documen­
tary evidence in support of said motion which the court 
would not receive since it granted the motion to dismiss.]

C. Neither the Florida Pupil Assignm ent Law nor any other 
law can justify the continued operation o f  the public 
schools on a racially segregated basis.

In the Holland case, immediately following the quote set 
forth above, this court pointed out that a three-judge fed­
eral court had, just prior thereto, upheld the Alabama 
School Placement Law as to the constitutionality of that 
act on its face, alone, and proceeded to say:

Nothing said in that opinion conflicts in any way 
with this Court’s earlier statement relative to the 
Florida Pupil Assignment Law:

“ * # * Neither that nor any other law can justify 
a violation of the Constitution of the United States 
by the requirement of racial segregation in the public 
schools.” Gibson v. Board of Public Instruction of 
Dade County, 5 Cir. 1957, 246 F. 2d 913, 914.

Here appellees, likewise, plead the Florida Pupil As­
signment Law in defense of an action brought to enjoin 
racial segregation in the operation of the school system, 
and argued the applicability of same in the face of over­
whelming proof, evidenced by depositions, affidavits and 
other documentary evidence which appellees were advised



11

appellants would introduce in support of their motion for 
summary judgment, set for hearing by appellants on the 
same day on which appellees’ motion to dismiss was to 
be heard, and in the light of common knowledge that segre­
gation is still the basis of operating their school system.

D. The Florida Pupil Assignm ent Law does not provide an 
adequate rem edy fo r  the relief sought in this action.

The relief sought in this action is not in the nature of 
a mandatory injunction requiring appellees to admit the 
named appellants to certain named schools. The relief 
sought is, as stated above, relief for a class discrim­
inated against in the public school system as a whole. The 
prayer of the complaint is that appellees be enjoined “ from 
continuing to pursue the policy of operating the public 
schools of Hillsborough County, Florida on a racially seg­
regated basis and enjoining them from refusing to permit 
the minor plaintiffs, and other minor Negro children sim­
ilarly situated, to attend schools nearer their places of 
residence solely because of the race and color of said minor 
plaintiffs.” A  policy of racial segregation says to Negroes, 
as a class, you are not permitted to apply for, to be ad­
mitted to, and you will not be assigned to, white schools. 
Once appellees have ceased operating the school system on 
a swiracial basis and have reassigned pupils on a nonracial 
basis, it may be that then, and only then, that one can be 
required to invoke the remedy provided by the Florida 
Pupil Assignment Law for the purpose of gaining admis­
sion to a particular school. In short, the remedy provided 
by the Florida Pupil Assignment Law is not an adequate 
remedy for securing operation of the entire school system 
of Hillsborough County, Florida on a nonracial basis. It 
is a remedy for securing assignment to a particular school, 
only, whether within the framework of segregation or with­
out that framework.



12

In both the Holland and Gibson eases this court, as 
pointed out above, expressly considered the applicability 
of the Florida Pupil Assignment Law to those cases and 
concluded that it need not be invoked before seeking the 
kind of relief sought in those cases and sought in this case, 
i.e., relief against a policy of segregation in the operation 
of the school system.

Similarly, the court in Kelley v. Board of Education of 
City of Nashville (M. D. Tenn. 1958), 159 F. Supp. 272,
aff’d on other grounds,----- F. 2 d --------  (6th Cir.), decided
June 17, 1959, held that the Tennessee Pupil Assignment 
Act did not provide an adequate remedy for the relief 
sought in class actions involving school segregation. In 
so holding the court there said:

. . .  it must be recalled that the relief sought by the 
complaint is not merely to obtain assignment to par­
ticular schools, but in addition to have a system of 
compulsory segregation declared unconstitutional and 
an injunction granted restraining the Board of Educa­
tion and other school authorities from continuing the 
practice and custom of maintaining and operating the 
schools of the city upon a racially discriminatory basis 
(at 275). (Emphasis added.)

Likewise here, the relief sought is an injunction restrain­
ing the Board, its members, and other school authorities 
from continuing the policy, practice and custom of main­
taining and operating the schools of the county upon a 
racially discriminatory basis.



13

CONCLUSION

For all of the foregoing reasons, the judgment of the 
court below must be reversed.

Respectfully submitted,

F rancisco A. R odriguez 
703 Harrison Street 
Tampa 2, Florida

Constance B aker  M otley 
T hurgood M arshall 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellants

Certificate of Service

T his  is to ceetiey that on th e .......  day of August 1959
I served a copy of the foregoing brief for appellants upon 
John M. Allison, P. 0. Box 1531, Tampa 1, Florida and 
Morris E. White, Citizens Bldg., Tampa 2, Florida by mail­
ing a true copy of same to each of them to the addresses 
given herein via United States Air Mail, postage prepaid.

Constance Baker Motley