J. Greenberg Statement on School and Hospital Desegregation

    IN THE

(£ m x t of %  Unttefc ĵ tatra
O ctober T e r m , 1959

No. 222

H e l e n  Co vington , et  a l ., Petitioners, 
v.

J . S. E dw ards ,  Superintendent of Schools of Mont­
gomery County, North Carolina, et al., Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

G arlan d  S. G arriss 
Troy, North Carolina

T h o m a s  E . E llis

J . C. B . E h r in g h a u s , J r,
204 Superior Building 
Raleigh, North Carolina

Counsel for Respondents

P ress of B yron S. A d am s , W ashington, D. C.



INDEX

Statement of the Case
Argument .................
Conclusion ................

Page
1
3

21

CASES CITED
Adkins v. School Board of Newport News, 246 F. 2d

325 ................................................................................  19
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct.

686, 98 L. ed. 873 ..................................... .......... 2,12,21
Briggs v. Elliott, 132 F. Supp. 776 ..............................  2,6
Carson v. Board of Education, 227 F. 2d 789 .............. 2, 7
Carson v. Warliek, 238 F. 2d 724, cert. den. 353 U.S.

910 ...............     2,9,11,15,18,19
Constantine v. Anson County, 234 N.C. 221, 93 S.E. 2d

163 .................................................- ............................. 2
Covington v. Montgomery County School Board, 139

F. Supp. 163 ..............................................................  5
Gibson v. The Board of Publie Instruction of Dade

County, 246 F. 2d 913 .............................................15,16
Hood v. Board of Trustees, 232 F. 2d 626, cert. den.

352 U.S. 870 .............................................................  2,7
Holland v. The Board of Public Instruction, 258 F. 2d

730 .............................     18
Kelly v. Board of Education, 159 F. Supp. 272 ............ 19
Orleans Parish School v. Bush, 242 F. 2d 156, 164 ----- 19
School Board City of Charlottesville, Va. v. Allen, 240

F. 2d 59, 64 ' ............................................................... 15,19
Shut.tlesworth v. Birmingham Bd. of Educ., 162 F. 

Supp. 372, motion to affirm granted, 3 L. Ed. 2d
145 ...........   13,15

Vandalia B. Co. v. Public Service Co., 242 U.S. 255,
261, 61 L. Ed. 276, 286 ............................................. 11



IN THE

(tort of %  IttM  0fafro
O ctober T e r m , 1959

No. 222

H e l e n  Co vington , e t  a l ., Petitioners, 
v.

J. S. E dw ards , Superintendent of Schools of Mont­
gomery County, North Carolina, et al., Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

No further statement of the proceedings in the lower 
courts seems necessary in view of the full and complete 
recitations contained in their respective Opinions. 
However, Respondents respectfully set forth below 
some general comment concerning the “ Statement”  
in Petitioners’ brief (Pet. pp. 3-6).

Petitioners emphasize in their “ Statement”  that 
there exists in Montgomery County “ board imposed



2

segregation”  and “ a system of planned segregation” . 
The District Court considered Petitioners’ argument 
based on the proposition that the length of time elaps­
ing since Brown v. Board of Education, 347 U.S. 483, 
74 S.Ct. 686, 98 L.ed. 873 (1954), without Respondent 
acting to desegregate its schools, stated a cause of ac­
tion for which an injunction should be granted. (Pet. 
Appdx., p. 27). The Circuit Court said it was ad­
vertent to Petitioners’ contention that no steps had 
been taken to put an end to planned segregation but 
that enrollment and assignment of pupils for the cur­
rent year should be similar to those of past years. (Pet. 
Appdx., p. 33) It seems clear to Respondents that the 
lower Courts did not find that there was a “ system 
of planned segregation”  or “ board imposed segrega­
tion” . The lower Courts presumed that the Respond­
ents would follow the laws of North Carolina which 
abolished segregation by law, the decisions of the Su­
preme Court of North Carolina invalidating the 
State Constitutional provision establishing segregated 
schools ( Constantine v. Anson County, 234 N.C. 221, 
93 S.E. 2d 163), and the various decisions in the Fourth 
Circuit concerning State statutes bearing on this sub­
ject. ( See Carson v. Board of Education of McDowell 
County, 227 F.2d 789; Carson v. Warlick, 238 F.2d 
724, Cert. den. 353 TT.S. 910, 1 L.ed. 2d 664; Briggs v. 
Elliott, 132 F.Sup. 776; Hood v. Board of Trustees, 
232 F.2d 626, Cert. Den. 352 U.S. 870.) Thus, Peti­
tioners “ Statement of the Case”  is not only misleading 
in this regard, but they “ bottom”  their case on 
a proposition which has been clearly negatived not 
only by the lower Courts in the instant action but by 
the many Circuit Court decisions arising in this Cir­
cuit since Brown v. The Board, supra.



3

ARGUMENT

The Court of Appeals Below Did Not Err in Affirming the 
Judgment of the District Court Dismissing Petitioners' 
Complaint for Failure to State a Claim Against the 
Respondents for Which Relief Could be Granted.

The District Court said in its Opinion (Pet. App., 
pp. 26-27) :

“ In regard to the first issue, it should be stated 
at the outset that the plaintiffs have not alleged in 
their original complaint, or in their proposed 
amended and supplemental complaint, that there 
has been any exhaustion of their administrative 
remedy as provided for in Section 115-176 through 
115-178, General Statutes of North Carolina, 
known as the Enrollment and Assignment of 
Pupils Act. Indeed, in their brief, plaintiffs admit 
that they did not proceed under this act, and con­
tend that exhaustion of administrative remedies 
provided for by the Act are unnecessary.”

Petitioners argue at page 9 and page 12 of their Brief 
that the Pupil Assignment Act is irrelevant to the 
present issue and that the doctrine of the exhaustion 
of administrative remedies has no application in this 
case. That the Fourth Circuit has erroneously upheld 
the doctrine of exhaustion of administrative remedies 
under the North Carolina Pupil Assignment Act. The 
District Court succinctly states Respondents’ conten­
tion as to Petitioners ’ attempt to circumvent the plain 
requirements for exhausting their administrative rem­
edies in its Opinion (Pet. Appdx., p. 27) :

“ Counsel for the plaintiffs make this contention 
in face of the decisions rendered by the Court of 
appeals for this circuit in Carson v. Board of Ed­
ucation of McDowell County, Cir. 4, 227 F.2d 789 
(1955), and Carson v. Warlick, Cir. 4, 238 F.2d



4

724, certiorari denied 353 U.S. 910, 77 S.Ct. 665, 
1 L.ed. 2d 664.

‘ ‘ They advance the argument that the presump­
tion relied on in Carson v. Warlick, Supra, that 
school officials ‘will obey the law, observe the stand­
ards prescribed by the legislature, and avoid the 
discrimination on account of race which the Con­
stitution forbids ’ is not valid because of the length 
of time that has passed since the decision of the 
supreme Court of the United States in Brown v. 
Board of Education, 347 IT.S. 483, 74 S.Ct. 686, 
98 L.Ed. 873 (1954), without the defendant’s 
acting to desegregate the public schools of Mont­
gomery Country. The fallacy of this argument is 
readily seen when one reflects on what the Supreme 
Court actually held in the Brown case. As has 
been repeatedly stated, the Brown case does not 
require integration, but only holds that states can 
no longer deny to anyone the right to attend a 
school of their choice on account of race or color. 
Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.,
1955) ; Thompson v. County School Board of 
Arlington County, 144 E.Supp. 239 (E.D. Va.,
1956) ; School Board of City of Newport News, 
Va. v. Atkins, 246 F.2d 325 (1957).”

The Court of Appeals for the Fourth Circuit in its 
Opinion clearly sets forth Petitioners’ remedy under 
the North Carolina Pupil Assignment Act (Pet. 
Appdx., p. 33) :

“ . . . I f  there were no remedy for such inaction, 
the federal court might well make use of its injunc­
tive power to enjoin the violation of the constitu­
tional rights of the plaintiffs but, as we have seen, 
the State statutes give to the parents of any child 
dissatisfied with the school to which he is assigned 
the right to be heard on the question by the Board. 
I f  after the hearing and final decision he is not



5

satisfied, and can show that he has been discrim­
inated against because of his race, he may then 
apply to the federal court for relief. In the pend­
ing case, howTever, that course was not taken, 
although it was clearly outlined in our two prior 
decisions, and the decision of the District Court 
in dismissing the case was therefore correct. This 
conclusion does not mean that there must be a 
separate suit for each child on whose behalf it is 
claimed that an application for reassignment has 
been improperly denied. There can be no objec­
tion to the joining of a number of applicants in the 
same suit as has been done in other eases. The 
County Board of Education, however, is entitled 
under the North Carolina statute to consider each 
application on its individual merits and if this is 
done without unnecessary delay and with scrupu­
lous observance of individual constitutional rights, 
there will be no just cause for complaint.”

Its seems more than clear that the Petitioners are 
not interested in obtaining a change of assignment 
from the schools in which they are presently enrolled, 
but seek to circumvent and vitiate the North Carolina 
Pupil Assignment Act. More than three years ago, 
on April 7, 1956, in the instant action, the District 
Court made it clear that the Board could not compel 
segregation in the public schools ( Covington v. Mont­
gomery County School Board, 139 F.Supp. 163) :

“ The validity of that part of the North Carolina 
Constitution requiring separate schools for the two 
races is no longer the subject for legal controversy. 
Nor is any statute—State or local—or order of a 
board compelling segregation in the public schools, 
a legal controversy now.”

Petitioners’ case, simply stated, is that strict com­
pliance with Brown v. The Board, supra, would require



6

the District Courts in North Carolina to enjoin the 174 
boards of education to ignore the North Carolina Pupil 
Assignment Law and present plans of desegregation 
or general reshuffling of pupils within their units. The 
late Judge Parker of the Court of Appeals for the 
Fourth Circuit nullified this theory in Briggs v. Elliott, 
132 F.Supp. 776 which has been quoted with approval 
many times by the federal judiciary in this country. 
His opinion read in part as follows:

“  Having said this, 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 regulate the public schools of the states. It has 
not decided that the states must mix persons of 
different 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 maintains. 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 Constitution is involved even 
though the children of different races voluntarily 
attend different schools, as they attend different 
churches. Nothing in the Constitution or in the 
decision of the Supreme Court takes away from 
the people freedom to choose the schools they 
attend. The Constitution, in other words, does 
not require integration. It merely forbids dis­
crimination. It does not forbid such segregation 
as occurs as the result of voluntary action. It 
merely forbids the use of governmental power to 
enforce segregation. The Fourteenth Amendment 
is a limitation upon the exercise of power by the 
state or state agencies, not a limitation upon the 
freedom of the individuals.



7

“ The Supreme Court has pointed out that the 
solution to the problem in accord with its decisions 
is the primary responsibility of school authorities 
and that the function of the courts is to determine 
whether action of the school authorities constitutes 
‘good faith implementation of the governing con­
stitutional principles’ . . . ”

In Hood v. Board of Trustees of Sumpter County 
School District, 232 F.2d 627, cert, den., 352 U.S. 870, 
1 L.Ed. 2d 76, the Circuit Court affirmed the District 
Court denial of plaintiff’s request for injunction 
against alleged denial of admission to public schools 
solely on the basis of race or color on the ground that 
plaintiffs had not exhausted administrative remedies 
provided by the South Carolina statute. The Court 
cited Carson v. Board of Education of McDowell Coun­
ty, 227 F.2d 789, as authority for the per curiam de­
cision. Thus, as early as October 15, 1956, the Su­
preme Court of the United States had refused to grant 
certiorari when a federal court, prior to consideration 
of a request for injunction of a school board to de­
segregate the schools, had required the moving parties 
to exhaust state administrative remedies.

While Respondents are cognizant of the fact that 
this Court is thoroughly familiar with the Carson 
cases arising in this jurisdiction, they feel that the 
compelling language and force contained within the 
decisions should be set forth in this brief. Respond­
ents therefore call the Court’s attention to the Carson 
cases as follows:

Carson v. McDowell County Board of Education, 227 
F.2d 789:

“ In further consideration of the ease, however, 
the District Judge should give consideration not



8

merely to the decision of the Supreme Court but 
also to subsequent legislation of the State of North 
Carolina providing an administrative remedy for 
persons who feel aggrieved with respect to their 
enrollment in the public schools of the State. The 
Act of March 30,1955, entitled ‘ An Act to Provide 
for the Enrollment of Pupils in Public Schools’, 
being chapter 366 of the Public Laws of North 
Carolina of the Session of 1955, provides for en­
rollment by the county and city boards of educa­
tion of school children applying for admission to 
schools, and authorizes the boards to adopt rules 
and regulations with regard thereto. It further 
provides for application to and prompt hearing 
by the board in any case of any child whose ad­
mission to any public school within the county or 
city administrative unit has been denied, with 
right of appeal therefrom to the Superior Court 
of the county and thence to the Supreme Court of 
the State. An administrative remedy is thus 
provided by state law for persons who feel that 
they have not been assigned to the schools that 
they are entitled to attend; and it is well settled 
that the courts of the United States will not grant 
injunctive relief until administrative remedies 
have been exhausted. Myers v. Bethlehem Gory., 
303 U.S. 41, 51; Natural Gas v. Slattery, 302 U.S. 
300, 310-311; Hegeman Farms Corp. v. Baldwin, 
293 U.S. 163, 172; United States v. Illinois Cen­
tral B. Go., 291 U.S. 457, 463; Peterson v. Bryan, 
290 U.S. 570, 575; Porter v. Investor’s Syndicate, 
286 U.S. 461; Matthews v. Rogers, 284 U.S. 521, 
535-526; Prentis v. A. G. L. R. Go., 211 U.S. 210.

“ 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 power to do in the 
premises is to enjoin violation of constitutional



9

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 
Matthews v. Rodgers, supra (284 U.S. 525) : ‘ The 
scrupulous regard for the rightful independence 
of state governments which should at all times 
actuate the federal court, and a proper reluctance 
to interfere by injunction with their fiscal opera­
tions, require that such relief should be denied in 
every case where the asserted federal right may 
be presrved without it.’ Interference by injunc­
tion 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.’ ”

Carson v. Warlick, 238 F.2d 724, cert. den. 353 U.S.
919:

“ While the presentation of the children at the 
Old Fort School appears to have been sufficient 
as the first step in the administrative procedure 
provided by statute the prosecution of a joint or 
class proceeding before the school board was not 
sufficient under the North Carolina statute as the 
Supreme Court of North Carolina pointed out in 
its opinion; and not until the administrative pro­
cedure before the board had been followed in ac­
cordance with the interpretation placed upon the 
statute by that court would applicants be in posi­
tion to say that administrative remedies had been 
exhausted.

“ It is argued that the Pupil Enrollment Act is 
unconstitutional; but we cannot hold that that 
statute is unconstitutional upon its face and the 
question as to whether it has been unconstitution­



10

ally applied is not before us, as the administrative 
remedy which it provided has not been invoked. 
It is argued that it is unconstitutional on its face 
in that it vests discretion in an administrative 
body without prescribing adequate standards for 
the exercise of the discretion. The standards are 
set forth in the second section of that act, (1. S. 
115-177, and require the enrollment to be made 
‘ So as to provide for the orderly and efficient ad­
ministration of such public schools, the effective 
instruction of the pupils enrolled, and the health, 
safety and general welfare of such pupils ’. Surely 
the standards thus prescribed are not on their 
face insufficient to sustain the exercise of the ad­
ministrative power conferred. As said in Opp 
Cotton Mills v. Administrator of the Wage and 
Hour Division of the Department of Labor, 312 
U.S. 126, 145; ‘ The essentials of the legislative 
function are the determination of the legislative 
policy and its formulation as a rule of conduct. 
Those essentials are preserved when Congress spe­
cifies the basic conclusions of fact upon ascertain­
ment of which, from relevent data by a designated 
administrative agency, it ordains that its statutory 
command is to be effective.’ The authority given 
the boards is ‘ of a fact-finding and administrative 
nature, and hence is lawfully conferred’. Sproies 
v. Binford, 286 U.S. 374. See also Douglas v. 
Noble, 261 U.S. 165, 169-170; Holt v. Geiger Jones 
Co., 242 U.S. 539, 553-554; Mutual Film Corp. v. 
Hodges, 236 U.S. 230, 245-246; Red “ C”  Oil Mfg. 
Co. v. North Caroline, 222 U.S. 380, 394.

“ Somebody must enroll the pupils in the schools. 
They cannot enroll themselves; and we can think 
of no one better qualified to undertake the task 
than the officials of the schools and the school 
boards having the schools in charge. It is to be pre­
sumed that these will obey the law, observe the 
standards prescribed by the legislature, and avoid 
the discrimination on account of race which the



11

Constitution forbids. Not until they have been 
applied to and have failed to give relief should the 
courts be asked to interfere in school administra­
tion. As said by the Supreme Court in Brown, et 
al. v. Board of Education, et al. 349 XJ.S. 294, 299: 
‘ School authorities have the primary responsi­
bility for elucidating, assessing, and solving these 
problems; courts will have to consider -whether 
the action of school authorities constitutes good 
faith implementation of the governing constitu­
tional principles’.”

The rule that requires Petitioners to exhaust their 
administrative remedies does not except cases where 
parties applying for relief allege the violation of rights 
secured by the Constitution. This Court said in Van- 
dalia R. Co. v. Public Service Co., 242 U.S. 255, 261, 
61 L.Ed. 276, 286:

“ The general rule is that one aggrieved by the 
rulings of such an administrative tribunal may 
not complain that the Constitution of the United 
States has been violated if he has not availed him­
self of the remedies prescribed by the state law for 
a rectification of such rulings. Bradley v. Rich­
mond, 227 U.S. 477, 485, 57 L.Ed. 603, 606’.”

The petitioners contend that: “ . . . The statute does 
not afford the administrative means capable of furn­
ishing the relief to which the Petitioners are entitled; 
it neither requires segregation nor affords a means of 
eliminating segregation.”  (Pet., p. 9) Respondents 
contend that the administrative means capable of fur­
nishing relief to Petitioners is embodied in the Pupil 
Assignment Act. As the District Court said “ . . . The 
presumption relied on in Carson v. Warlick, supra, 
that school officials obey the law, observed the stand­



12

ards prescribed by the legislature, and avoid the dis­
crimination on account of race which the Constitution 
forbids’ ”  is a proper one and the attack made on 
this presumption is a fallacious argument when one 
reflects on what the Supreme Court held in the Brown 
case. A decision contrary to that of the District and 
Circuit Courts would in effect go far towards nullify­
ing the very principle of the administrative remedies.

Petitioners in their brief argue that they pursued 
their administrative remedies by a petition asking the 
Board to prepare and pursue a plan of general de­
segregation (Pet., p. 10). Thus, the Petitioners at one 
and the same time urge on this Court that they may 
ignore the Pupil Assignment Act and then urge upon 
the Court that they have pursued their remedies under 
the Act. Yet, it is clear from the pleadings that the 
plaintiffs did not allege in either their original com­
plaint or in their proposed amended and supplemental 
complaint that they had exhausted their administrative 
remedies. (Pet. Appdx., p. 26) Even if Respondents 
are not following the mandate of Brown v. The Board, 
supra, which is denied, the procedure for bringing 
this to the Federal judiciary’s attention has not been 
invoked. I f  one were to petition a District Court for 
benefits under the Social Security Act and allege en­
titlement to same, the District Court would hardly 
have jurisdiction nor would a cause of action be stated 
unless full compliance with the administrative pro­
cedures as set out in an act of Congress were fully and 
properly exhausted. This is a fundamental principle 
of administrative law which the Petitioners seek to 
circumvent in the instant action despite the clear pro­
cedures outlined in the North Carolina Pupil Assign­
ment Act. Any opinion holding to the contrary would



13

vitiate the great body of administrative law that is 
responsible for carrying out the multifarious duties 
imposed by federal, state and local statutes.

Now, turning briefly to Petitioners’ reasons for 
granting certiorari based on a conflict of decisions with 
other Circuit Courts, Respondents urge that there are 
in fact no conflicts existing and, even if given such an 
interpretation, they are clearly distinguishable upon 
the facts in each case.

Attention of the Court is directed by the Petitioners 
to decisions rendered by the Court of Appeals for the 
Fifth Circuit. The most exhaustive decision in that 
Circuit was rendered in Shuttlesworth v. Birmingham 
Board of Education, 162 F. Supp. 372, A ff’d. 3 L.Ed.2d 
145 (1958), in a decision handed down by Judge 
Rives for the three judge District Court. Judge 
Rives noted the difference in the Louisiana and 
Virginia situations wherein state law either re­
quired segregated schools or withdrawal of funds for 
them to operate which were coupled with an assign­
ment act. Judge Rives states that the North Carolina 
Pupil Enrollment Act contained adequate standards 
and cited Carson v. Warlick, supra, as authority for 
same. In the body of the decision the Court quotes 
from earlier decisions as follows:

“ The equal protection and due process clauses 
of the Fourteenth Amendment do not affirmatively 
command integration, but they do forbid any state 
action requiring segregation on account of the race 
or color of children in the public schools. Avery v. 
Wichita Falls Independent School District, 5 Cir., 
1957, 241 F.2d, 230, 233. Pupils may, of course, be 
separated according to their degree of advancement 
or retardation, their ability to learn, on account 
of their health, or for any other legitimate reason,



14

but each child is entitled to be treated as an indi­
vidual without regard to his race or color. Borders 
v. Rippee, 5 Cir., 1957, 247 F.2d 268, 271.”

Although Petitioners rely on a conflict between the 
'Fourth and Fifth Circuits, the concluding language 
of Judge Rives in the Shuttlesworth case seem clearly 
to nullify this proposition. Judge Rives’ conclusion 
is as follows:

grounds upon which the Louisiana and 
Virginia Acts were declared unconstitutional on 
their face have been heretofore stated at some 
length. See ante pages 6, 7 and 8. Enough has 
also been said to show that none of those grounds 
are applicable to the Alabama Act. The legal 
situation in Alabama is more analogous to that in 
North Carolina, where the Pupil Enrollment Act 
was ruled to be not unconstitutional on its face 
in an opinion by the late great Chief Judge Parker 
from which we quote:

‘ Somebody must enroll the pupils in the 
schools. They cannot enroll themselves; and we 
can think of no one better qualified to undertake 
the task than the officials of the schools and the 
school boards having the schools in charge. It 
is to be presumed that these will obey the law, 
observe the standards prescribed by the legis­
lature, and avoid the discrimination on account 
of race which the Constitution forbids. Not 
until they have been applied to and have failed 
to give relief should the courts be asked to inter­
fere in school administration. As said by the 
Supreme Court in Brown v. Board of Education, 
349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed 
1083:

1 School authorities have the primary re­
sponsibility for elucidating, assessing, and 
solving these problems; courts will have to



15

consider whether the action of school author­
ities constitutes good faith implementation of 
the governing constitutional principles.’ ”

Carson v. Warlick, 4th Cir. 1956, 238 F.2d 724, 
728.

“ All that has been said in this present opinion 
must be limited to the constitutionality of the law 
upon its face. The School Placement Law fur­
nished the legal machinery for an orderly adminis- 
stration of the public schools in a constitutional 
manner by the admission of qualified pupils upon 
a basis of individual merit without regard to their 
race or color. We must presume that it will be 
so administered. I f  not, in some future proceed­
ing it is possible that it may be declared uncon­
stitutional in its application. The responsibility 
rests primarily upon the local school boards, but 
ultimately upon all of the people of the State.”

The Petitioners urge upon this Court the decision 
in Gibson v. The Board of Public Instruction of Dade 
County, 246 F.2d 913, from the Fifth Circuit, as an 
essentially identical legal situation and that it is in 
conflict with the decisions of the Fourth Circuit. 
Respondents call to the Court’s attention that the 
Shuttlesworth case in the Fifth Circuit and written 
by the same Chief Judge, was rendered on May 9, 1958 
whereas the Gibson decision was rendered July 23,1957. 
Hence, from the language employed in the Shuttles­
worth case by Judge Rives it is clear that there is no 
conflict between the Fifth Circuit and the Fourth Cir­
cuit. A  cursory examination of the Hibson case indi­
cates that the Board had taken the position of con­
tinuing to operate, maintain and conduct the schools 
on a non-integrated basis. The Court quotes the de­
cision of the Fourth Circuit in School Board of Char­



16

lottesville, Va. v. Allen, 240 F.2d 59, 63, 64 (4th Cir. 
1956) to the effect that the admission statute is a 
nullity as under the “ announced policy of the respec­
tive school boards any such application to a school 
other than a segregated school maintained for colored 
people would have been futile; and equity does not 
require the doing of a vain thing as a condition of 
relief” . This is far from the factual and legal status 
of the instant action. Respondents also call the Court’s 
attention to the District Court’s decision which we 
presume was rendered in conformity with the District 
Judge’s understanding of the Circuit Court decision 
in Gibson v. Board of Public Instruction of Bade 
County on remand of that ease to the District Court, 
170 F.Supp. 454. Judge Lieb’s understanding of the 
Fifth Circuit’s opinion and of the Shuttlesworth case 
are contained in the following quotations:

“ As to the prayer of the Complaint that the 
Court order the Defendants to promptly present a 
plan of desegregation of the schools, the Court 
finds that the Florida Pupil Assignment Law 
enacted by the Legislature of Florida since the 
filing of this suit meets the requirements of such 
a plan and the demands of the Plaintiffs. That 
Act provides a comprehensive plan and directive 
for the enrollment and assignment of all pupils 
in the public schools by the Boards of Public In­
struction of the several counties and for appeals 
from such decisions made by the Boards, all on an 
individual basis. Ho reference whatever is made 
in the Act to consideration of race or color of the 
pupils.

“ Plaintiffs made no challenge to the validity of 
the Pupil Assignment Law. It, therefore, enjoys 
a presumption of validity as a State Statute. De­
fendants as state officials are required to follow



17

the provisions of the State laws until they are 
repealed; superseded or held invalid by the 
Courts.”
*  *  *

“ It is noted that the provisions of the Alabama 
School Placement Law are similar in all material 
respects to those of the Florida Pupil Assignment 
Law, both of which were modeled after the North 
Carolina Pupil Placement Act.

“ The three-judge court in the Birmingham case 
also denied all injunctive relief to the Plaintiffs 
and left them to the fair operation of the School 
Placement Law and the remedies therein provided. 
The Court in that case was likewise considering 
the issue raised by the Complaint as a basis for the 
application for an injunction that despite the pas­
sage of the Pupil Placement Act, Negro students 
were still being assigned to the same schools on a 
basis of segregation of the races irrespective of the 
nearness of other public schools to the homes of the 
plaintiffs.

“ In that ease also, the opinion shows that the 
School Board had refused to render any opinion 
or take any action upon tests given by the Board 
to Plaintiffs as a basis of assignment under the 
Act. It has already been noted that in the present 
case, the Plaintiffs themselves refused to proceed 
with clearly available procedure offered under the 
Florida law for relief from adverse decisions of 
the school authorities.

“ In denying the injunction in the Birmingham 
case the three-judge court pointed out that any 
complaints of improper administration of the 
School Placement Law should be tested by the 
Courts only after exhaustion by the pupil or parent 
of the administrative remedies provided by the 
State law, and quoted from an opinion of the late 
great Chief Judge Parker, of the Fourth Circuit



18

Court of Appeals, in a similar case, Carson v. 
Warlick:

‘ Somebody must enroll the pupils in the 
schools. They cannot enroll themselves; and we 
can think of no one better qualified to undertake 
the task than the officials of the schools and the 
school boards having the schools in charge. It is 
to be presumed that these will obey the law, ob­
serve the standards prescribed by the legisla­
ture, and avoid the discrimination on account 
of race which the Constitution forbids. Not 
until they have been applied to and have failed 
to give relief, should the Court be asked to inter­
fere in school administration.’

‘ ‘ The plaintiffs now have available to them ade­
quate remedies under the Pupil Assignment Law 
for any of their grievances pleaded in the Com­
plaint. The record shows that they have not pur­
sued them and until they do so and have been 
denied their rights they are not entitled to in­
junctive relief.”

Petitioners then call the Court’s attention to Holland 
v. The Board of Public Instruction, 258 F.2d 730, and 
the Circuit Court decision rendered by Judge Rives. 
There were two very important distinctions between 
this case and the instant action pending before this 
Court. In the Holland case there was an application 
by an individual plaintiff for admission to a particular 
school as well as a City Ordinance requiring compul­
sory residential segregation. The Court said: “ In the 
light of compulsory residential segregation of the races 
by City Ordinance, it is wholly unrealistic to assume 
the complete segregation existing in public schools is 
either voluntary or the incidental result of valid rules 
not based on race.”

Thus, the Holland case is brought clearly within the 
Virginia and Louisiana decisions of the Fourth and



19

Fifth Circuits respectively where despite an assign­
ment statute, if  there existed statutes which nullified 
the effectiveness of them, then quite clearly they 
need not be complied with. Again, this is not the 
situation in the instant case. The instant case falls 
clearly within the doctrine of Carson v. War lick, supra, 
which has been quoted favorably in both the Fourth 
and Fifth Circuits in both the Virginia and Louisiana 
actions. Orleans Parish School v. Bush, 242 F.2d 156, 
164; School Board City of Charlottesville, Va. v. Allen, 
240 F.2d 59, 64; Adkins v. School Board of Newport 
News, 246 F.2d 325, affirming 148 F.Supp. 430. The 
Petitioners then turned from the Fourth and Fifth 
Circuits for a possible conflict to the District Court for 
the Middle District of Tennessee in Kelly v. Board of 
Education City of Nashville, 159 F.Supp 272. It is 
clear from the language by Petitioners on page 15 of 
their brief that the District Judge although recognizing 
the apparent scope of the Fourth Circuit decisions 
could not reach the same conclusions “ on the facts 
of the instant case” . The Court then said: “ This is 
true because the Court is of the opinion that the ad­
ministrative remedy under the Act in question would 
not be an adequate remedy” . Thus, the District Judge 
in the Kelly case concluded that the facts were dis­
tinguishable from those contained in the Fourth Circuit 
cases and further concluded that the administrative 
remedy in Tennessee would “ not be an adequate 
remedy” . The Pupil Assignment Acts have not only 
been held by the various Circuit courts to be adequate 
administrative remedies but this Court has affirmed the 
Shuttlesworth ease from the Fifth Circuit, supra, and 
denied certiorari in Carson v. Warlick, supra.

In conclusion, Respondents feel that some comment 
should be made on the third reason advanced by Peti­
tioners for granting certiorari. Whereas the reason



20

set forth in the caption is that the decision below pre­
sents important questions of federal jurisdiction prac­
tice and procedure which should be resolved by this 
Court, the text which follows, for the most part, deals 
with matters foreign to the instant action and conten­
tions raised for the first time in this Court—matters 
which were not raised by the complaint, nor urged upon 
the District and Circuit Courts. However, Respondent 
feels that it must make a few general remarks to the 
Petitioners’ “ broadside.”

Petitioners hark back generally to the same argu­
ment that “ race must be eliminated in consideration 
of assignment of children to the public schools” . This 
has been admitted by the respondents in their answer 
to the pleadings, it was stated by Judge Hayes in his 
Opinion in the instant action on April 7, 1956, 139 
P.Supp. 161 when he stated: “ The validity of that 
part of the North Carolina Constitution requiring 
separate schools for the two races is no longer the sub­
ject for legal controversy. Nor is any statute—state 
or local—or order of the board compelling segregation 
of the public schools, a legal controversy now” . Peti­
tioners’ argument in this section of the brief would 
lead this Court to believe that the North Carolina 
Assignment Act and its administration by the local 
boards is a planned method to continue segregation. 
They fail to take note of the instances of admission of 
Negro students to what were formerly “ all white 
schools”  in this State. Of course, Respondents con­
tend that this sort of argument has no place in this 
action as Petitioners must clearly invoke their adminis­
trative remedy before the Court has any predicate upon 
which to act.

On page 19 of the brief is found the following: 
“ Petitioners, however, view the federal judiciary’s role



21

as being solely to eliminate the use of racial standards 
in the system and not to become involved in multi­
tudinous individual assignments.”  Again, Respond­
ents have clearly recognized the mandate of Brown v. 
The Board, supra, which requires them to eliminate 
the use of racial standards in the assignment of pupils. 
Of course, Respondents recognize the innuendo in this 
section of Petitioners’ brief that there exists some 
“ subterfuge”  to maintain segregation in the schools. 
This, the Respondent denies, but even if it were so, the 
petitioners must place their action before the federal 
judiciary in a manner on which the Court may act. 
There are no facts concerning a “ subterfuge” . The 
Petitioners have had since 1955 to present to the federal 
judiciary evidence of “ a subterfuge” .

CONCLUSION

Petitioners have not made a case which would war­
rant this Court in granting Petition for Writ of Cer­
tiorari in accordance with Rule 19 of the Revised Rules 
of the Supreme Court of the United States. The Re­
spondent prays that the Court refuse to issue Writ of 
Certiorari to review the Judgment and decision of the 
United States Court of Appeals for the Fourth Circuit 
entered in this cause on March 19, 1959, and that the 
Petition heretofore filed therefore be denied.

Respectfully submitted,
G arlan d  S. G areiss 

Troy, North Carolina
T h o m a s  F. E llis

J. C. B. E hringhatts, Jr.
204 Superior Building 
Raleigh, North Carolina

Counsel for Respondents