Watson v. City of Memphis Brief for Petitioners

    In  t h e

Initefc States CEourt (§f Appeals
F oe t h e  F ourth  C ir cu it

Ho. 9125

O bediah  F ar m er , a m inor, by A aron Farm er  and D ora M ae  
F ar m er , his parents and next friends ; C leophitts E dwards, 
a m inor, by L il l ie  M . E dwards, his m other and next friend,

Appellants,

T h e  Greene  C ounty  B oard of E ducation ,

Appellee.

BRIEF FOR' f  HE APPELLEE

F ! L E D

OCT 2 3 1963

(VImukICE S. DEAN 
CLERK

W a l te r  G. Sh eppard  
Snow Hill, Forth Carolina

K. A. P it t m a n
Snow Hill, Forth Carolina

I . B everly  L ak e
800 Capital Club Building
Raleigh, Forth Carolina

Attorneys for the Appellee



1

I N D E X

P A G E

S ta te m e n t  of th e  Case ...................................
Q uestions I n v o l v e d ........................................... ..................  3

S ta te m e n t  of t h e  F acts  ............................... ...................... 3

A bgum ent  :
I. The District Court Did Not Err In Denying 

The Plaintiffs’ Motion For A  Preliminary
Injunction......................................................................  8
(a) The Plaintiffs Cannot Maintain This

Action As A Class Action ................................ 8
(b) Plaintiffs Are Not Entitled To The

Order They Seek Concerning School 
Teachers And Other School Personnel ..........  9

(c) The Plaintiffs Have Failed To Pursue
Their Plain And Adequate Administra­
tive Remedy ........................................................ 10

(d) This Is Not A  Proper Case For Issuance
Of A Preliminary Injunction .........................  15

(e) The Plaintiffs Are Not Entitled To The
Relief Sought In Their Alternative Prayer .... 18

( f )  The Plaintiffs Have Shown No Reason
For A  Transfer To Any Other School .......... 18

II. The District Court Did Not Err In Striking
From The Complaint Paragraphs 9 And 1 0 ........... 19
(a) Paragraph 9 Of The Complaint Was

Properly Stricken ............................................. 19
(b) Paragraph 10 Of The Complaint Was

Properly Stricken ............................................. 20
III. The District Court Did Not E rr In Refusing

To Admit Evidence Offered By The Plaintiffs....... 22
(a) The Depositions Of Gerald I). James

And H. Maynard Hicks .................................. 22
(b) The Record Of The 1959 Hearing Be­

fore The Board .................................................  25
C onclusion  ..........................................................................................  26
A p p e n d ix  ............................................................................................... 27



TABLE OF CITATIONS

Cases:
P A G E

Allen v. County School Board of Prince Edward County,
249 F. 2d 462, cert, den., 355 IT. S. 953 (4th Circuit,
1957) .................................................................................... 17

Benson Hotel Corp. v. Woods, 168 F. 2d 694 (8th Circuit,
1948) .................................................................................... 15

Best Foods v. General Mills, 3 F. R. I). 459 (I). C. Del.,
1944) .................................................................................... 19

Brown v. Board of Education, 347 U. S. 483 (1954) ........ 17, 19
Burke v. Mesta Machine Co., 5 F. R. D. 134 (I). C. Pa.,

1946) .................................................................................... 19
Carson v. Board of Education of McDowell County, 227

F. 2d 789 (4th Circuit, 1955) .................................... 9, 10, 11
Carson v. Warlick, 238 F. 2d 728, cert, den., 353 U. S.

910 (4th Circuit, 1956) ............................................. 10,11,15
Cement Enamel Development, Inc. v. Cement Enamel of 

New York, Inc., 186 F. Supp. 803 (D. C. 1ST. Y.,
1960) .................................................................................... 15, 16

Covington v. Edwards, 264 F. 2d 780 (4tli Circuit, 1959).. 10, 11 
De Vargas v. Brownell, 251 F. 2d 869 ( 5th Circuit, 1958).. 24
Doeskin Products, Inc. v. United Paper Company, 195 F.

2d 356 (7th Circuit, 1952) ............................................... 15, 16
Gamlen Chemical Co. v. Gamlen, 79 F. Supp. 622 (D. C.

Pa., 1948) ...........................................................................  15
Hershel California Fruit Products Co. v. Hunt Foods,

Inc., I l l  F. Supp. 732 (D. C. Cal., 1953) ....................  15
Heuer v. Loop, 198 F. Supp. 546 (D. C. Ind., 1961) .......... 19
Holt v. Raleigh City Board of Education, 164 F. Supp.

853, affd, 261 F. 2d 527 (E. D. N. C., 1958) ............  10
Jeffers v. Whitley, 309 F. 2d 621 (4tli Circuit,

1962) ......................................................................  14,15, 17,19
McKissick v. Durham City Board of Education, 176 F.

Supp. 3, (M. D. N. C., 1959) 10



P A G E

McNeese v. Board of Education, 305 F. 2d 783 (7th Cir­
cuit, 1962) ...........................................................................  10

Parham v. Dove, 271 F. 2d 132 (8th Circuit, 1959) ........ 10
Pocket Books, Inc. v. Walsh, 204- F. Supp. 297 (D. C.

Conn., 1962) ...........................................      15
Salem Engineering Co. v. National Supply Co., 75 F.

Supp. 933 (IX C. Pa., 1948) ..........................................  19
Schenley Distillers Corp. v. Kenken, 34 F. Supp. 578

(D. C. S. C., 1940) ............................................................ 19
School Board of the City of Newport News v. Atkins,

246 F. 2d 325 (4th Circuit, 1957) .................................. 17
Seagram Distillers Corp. v. NewT Cut Bate Liquors, 221 

F. 2d 815, cert, den., 350 U. S. 828 (7th Circuit,
1955) .................................................................................   15

Shuttlesworth v. Birmingham Board of Education, 162 F.
Supp. 372 (N. D. Ala., 1958) ........................................  10

Steinberg v. American Bantam Car Co., 76 F. Supp. 426
(IX C. Pa. 1948) .................. .......... ..................................  15

Thompson v. County School Board of Arlington County,
144 F. Supp. 239, afPd, 240 F. 2d 59, cert, den., 77
S. Ct. 667 (E. D. Va., 1956) ..........................................  17

Westinghouse Electric Corp. v. Free Sewing Machine Co.,
256 F. 2d 806 { 7th Circuit, 1958 ) .................................. 15, 16

Wheeler v. Durham City Board of Education, 309 F. 2d
630 (4th Circuit, 1962) ...................................................  14

Statutes:

North Carolina General Statutes, Chapter 115, .
Section 72 ......................................................................... 7, 9, 30

North Carolina Pupil Assignment A c t .................................. 6, 27
North Carolina General Statutes, Chapter 115,

Section 115-176 ..................................................................  27
North Carolina General Statutes, Chapter 115,

Section 115-177 ..................................................................  27



IV

P A G E

[North Carolina General Statutes, Chapter 115,
Section 115-178 ................................................................... 10, 28

[North Carolina General Statutes, Chapter 115,
Section 115-179 ................................................................... 28

Federal Rules of Civil Procedure:

Rule 8 (a) ................................................................................ 19
Rule 8 (e) ................................................................................ 19
Rule 12 ( f )  ............................................................................. 19
Rule 26 (d) (2) ....................................................................  24
Rule 26 (d ) (4 ) ....................................................................  23



I n  t h e

Imteb States Court (§f Appeals
F oe t h e  F ourth  C ir cu it  

No. 9125

O bediah  F ar m e r , a minor, by A aron  F arm er , and D ora M ae 
F ar m e r , his parents and next friends; Clboph iu s  E dw ards, 
a minor, by L iu lie  M. E dw ards, his mother and next friend,

Appellants,

— v.—

T h e  G reen e  Co u n ty  B oard of E ducation

Appellee.

B E I E F  F O E  T H E  A P P E L L E E

STATEM EN T OF TH E CASE

This is an appeal by the plaintiffs from interlocutory orders 
of the District Court for the Eastern District of North Carolina, 
denying their motion for preliminary injunction and granting the 
motion of the defendant to strike paragraphs 9 and 10 of the 
complaint.

The minor plaintiffs are two Negro high school students. For 
many years they have been and are now enrolled in the public 
schools of Greene County, North Carolina. Pursuant to the North 
Carolina Act for the Assignment and Enrollment of Pupils each 

.of them has .been assigned, year by year, by the defendant to a 
public school in the county. Neither of the minor plaintiffs, nor 
anyone acting on behalf of either of them, has ever filed with the 
defendant any objection to their respective assignments or any 
application or request for assignment to a different school.



2

In their complaint the plaintiffs do not ask for assignment- to 
any specified school. They seek a decree, general in nature, en­
joining the Board of Education “ from operating a bi-racial 
school system in Greene County” , and “ from assigning teachers, 
principals and other professional school personnel . . .  on the 
basis of the race and color of the children attending the school to 
which the personnel is to be assigned” .

In the alternative they seek a decree directing the Board to 
present “ a complete plan”  for the reorganization of the entire 
school system of the county and the assignment of teachers, prin­
cipals, and other professional school personnel on a nonracial basis.

Following the institution of the suit the plaintiffs, filed their 
motion for a preliminary injunction granting the relief prayed for 
in the complaint. The defendant moved to strike certain portions 
of the complaint.

The answer of the defendant wTas not filed until after the ruling 
of the District Court upon these motions. It has now been filed 
and no hearing in or trial of the action has been had other than 
the hearing on the said motions.

The motions came on for hearing before Hon. John D. Larkins, 
District Judge, one hearing being had in Washington, ETorth 
Carolina, and another in Trenton, Forth Carolina. The plaintiffs 
introduced oral testimony of four witnesses. The defendants in­
troduced affidavits of the Chairman of the Board of Education and 
the Superintendent of Schools. The rules adopted by the defendant 
for assignment of children to the public schools of Greene County, 
ETorth Carolina, for the year 1962-63 are attached to the Chair­
man’s affidavit.

The District Court entered its order (Appendix to plaintiffs’ 
brief, page 224a), finding the facts and denying the motion for 
preliminary injunction, and another order granting the motion 
of the defendants to strike paragraphs 9 and 10 of the complaint 
but denying the motion of the defendants to strike other para­
graphs of the complaint. The District Court retained jurisdiction 
of the action for determination of such other issues of fact and 
law as may arise. From these orders the plaintiffs appeal.



3

QUESTION'S IN VOLVED

1. Did the District Court err in denying the plaintiffs’ motion 
for preliminary injunction?

2. Did the District Court err in striking from the complaint 
paragraphs 9 and 10 ?

3. Did the District Court err in sustaining the defendant’s ob­
jection to the plaintiffs’ offering in evidence depositions taken 
but not introduced in evidence in another action and transcripts 
of administrative hearings upon other applications in 1959 ?

STATEM EN T OF TH E FACTS

At the hearing counsel for the plaintiffs stated: “ We are not.. 
litigating whether the,named plaintiffs are to be transferred to 
affy'pStTcuIar schools” . Counsel for the defendants inquired: 
"May I  inquire if counsel for the plaintiffs know to what school 
these named plaintiffs want to transfer?”  Counsel for the plain­
tiffs replied: “ Counsel for plaintiffs does not know.”  (Appendix 
to plaintiffs’ brief, pages 89a-90a.)

There are approximately 3,000 Negro children and 2,000 white 
children enrolled in the public schools of Greene County. No 
application has ever been made to the defendant Board by or on 
behalf of any Negro child now enrolled in any public school of 
Greene County for assignment or reassignment to a public school 
attended by white children, and no application has ever been 
made to the Board by or on behalf of any white child for assign­
ment or reassignment to any school attended by Negro children. 
(Appendix to plaintiffs’ brief, pages 60a, 79a, 80a, 159a, 175a, 
184a, 197a, 198a.)

Obediah Farmer, 16 years of age, has been enrolled in the 
Greene County schools since 1953 without objection or complaint 
to the Board. He has enrolled in and attended in each year since 
that time the school to which he has been assigned by the Board—  
first the North Greene Elementary School, and then the Greene 
County Training School in which he is now enrolled. At no time 
has he, or any person acting on his behalf, filed with the Board



4

any objection to bis assignment or any request for reassignment. 
(Appendix to plaintiffs’ brief, pages 33a, 34a, 44a, 56a, 58a, 
146a, 160a.)

Cleophius Edwards, 16 years of age, has been enrolled in the 
public schools of Greene County each year since 1952— first in 
the North Greene Elementary School and then in the Greene 
County Training School, in which he is now enrolled. At no time 
has he, or any other person acting on his behalf, objected to his 
assignment to the school to which he has been assigned or his 
enrollment for instruction therein. At no time has he, or any other 
person acting on his behalf, made any application to the Board for 
assignment or reassignment to a different school. (Appendix to 
plaintiffs’ brief, pages 32a, 69a, 77a, 146a, 160a. 1

In 1955 the State of North Carolina adopted an Act, herein­
after called The Pupil Assignment Act, governing the assignment 
and enrollment of pupils in the public schools, which is set forth 
in the Appendix to this brief. In June of each year since the 
adoption of that statute the defendant Board has assigned to a 
public school of the county every child eligible to attend such 
schools. No known deviation from that statute has ever occurred 
in the assignment of any child. (Appendix to plaintiffs’ brief, pages 
132a, 138a, 193a.). No assignment of any child is for a period 
longer than the end of the then coming school year. (Appendix to 
plaintiffs’ brief, pages 25a, 131a, 160a, 193a.)

Each year the rules governing assignment and reassignment of 
pupils for the then coming year are published in a newspaper of 
general circulation in the county and each child already enrolled 
in the public schools of the county is given a report card on which 
his assignment for the next year is shown. (Appendix to plaintiffs’ 
brief, pages 31a, 157a, 158a, 160a, 168a, 193a.) The rules and 
regulations governing the assignments and reassignments of chil­
dren for the year 1962-63, which are substantially the same as the 
rules for each previous year since the adoption of the above 
mentioned statute, were so published in June, 1962, and each of 
the minor plaintiffs was given a report card at the end of the
1961- 62 school year showing his assignment for the following 
year. (Appendix to plaintiffs’ brief, pages 31a, 61a, 194a.) The
1962- 63 rules are attached to the affidavit of H. Maynard Hicks. 
(Appendix to plaintiffs’ brief, pages 31a, 254a-258a.)



5

For children proposing to enter the first grade the Board con­
ducts pre-school registration in the spring preceding the year in 
which the child is to enter school. The public is informed of the 
time and the place of the holding of these registrations for each 
school by a notice published in a newspaper of general circulation 
in the county, stating, as to each school in the county, the name of 
the school, and the date and hour of the pre-school registration 
at that school with no reference to race. (Appendix to plaintiffs’ 
brief, pages 119a, 120a, 122a, 166a.) The children and their 
parents have presented themselves for this pre-school registration 
and the children have been assigned to the school to which they 
presented themselves. (Appendix to plaintiffs’ brief, pages 119a, 
120a, 122a.) There is no difference in method for the Negro and 
the white children with reference to this pre-school registration. 
The published notice does not direct anyone where to take his 
child for pre-school registration. (Appendix to plaintiffs’ brief, 
pages 120a, 166a.) There has never been a situation in which a 
Negro school child has presented himself, or has been presented, 
for pre-school registration at a school attended by white children 
nor has there ever been a situation in which a white child has 
presented himself, or been presented, for pre-school registration 
at a school attended by Negro children. (Appendix to plaintiffs’ 
brief, pages 125a, 166a.)

Children transferring to the Greene County public schools from 
another school system present themselves to a public school, for 
enrollment therein, without any instruction or direction from the 
defendant as to the school to which they are to so present them­
selves. (Appendix to plaintiffs’ brief, pages 138a, 139a.) The 
Superintendent of the Greene County schools makes an interim 
assignment in such instance until the Board meets and then the 
Board makes a permanent assignment. The superintendent has 
never assigned a child in such instance to a school other than the 
one to which the child presented himself, or was presented, for 
enrollment. (Appendix to plaintiffs’ brief, page 174a.) No Negro 
child has ever sought such an interim enrollment in any school 
attended by white children in Greene County and no* white child 
has ever sought such an interim enrollment in a school attended by 
Negro children in Greene County. (Appendix to plaintiffs’ brief 
175a.) The superintendent’s authority over assignments is limited 
to such interim assignments. (Appendix to plaintiffs’ brief, page



6

198a.) No Negro child coming into the Greene County public 
school system from another public school system has ever applied 
to the Board for reassignment to a different school from that to 
which he has been assigned. (Appendix to plaintiffs’ brief, page 
198a.)

In all the history of the Greene County public school system 
there has been only one instance in which Negro children have 
applied for assignment to a school attended by white children. 
(Appendix to plaintiffs’ brief, pages 61a, 78a 80a, 184a, 189a, 
193a, 199a.) This was in 1959. Five high school boys, then en­
rolled in the Greene County Training School, applied to the 
Board for reassignment to the Walstonburg High School. (Ap­
pendix to plaintiffs’ brief, pages 58a, 78a, 80a, 147a, 180a, 200a.) 
These applicants came from only three families. One of these 
families no longer resides in Greene County. The present plain­
tiffs are the other two. (Appendix to plaintiffs’ brief, pages 61a, 
181a.) Prior to their applications the Board had already deter­
mined to close the Walstonburg High School. (Appendix to plain­
tiffs’ brief, pages 183a, 200a.) Their applications were denied and 
they were given full opportunity, in accordance with the statute 
of the State of North Carolina, and in accordance with the rules 
of the defendant Board governing assignments and reassignments 
for the year 1959-60, to present themselves to the Board and give 
evidence at a hearing in support of their applications. (Appendix 
to plaintiffs’ brief, pages 81a, 180a, 199a, 200a.)

Each of those applications was considered by the Board on the 
basis of the criteria set forth under its rules and regulations and, 
upon the denial of the application, formal written reasons for the 
denials were given to the parents. These applications were denied 
because in the judgment of the Board, and in the light of all the 
evidence, the granting of them would not be in the best interests 
of the child involved. (Appendix to plaintiffs’ brief, page 183a.) 
The evidence in the opinion, of the Board.was_such as would have 
justified the Board in denying the applications had the applicants 
been white children.' (Appendix to plaintiff's5 brief, page 184a.) 
Eaet-appli'Cafibn"m that instance was considered and heard sep­
arately and determined on the basis of the evidence with reference 
to it. (Appendix to plaintiffs’ brief, pages 180a, 199a.) The 
Walstonburg High School, to which those applicants applied for ad­



7

mission is no longer in existence. (Appendix to plaintiffs’ brief, 
pages 58a, 78a, 183a.)

Those five applicants returned to the Greene County Training 
School and attended it for the year 1959-60 and in subsequent 
years until they graduated or dropped out of school. Their assign­
ments for the year 1959-60 terminated at the end of that school 
year. They never applied for assignment to a different school in 
any subsequent year. (Appendix to plaintiffs’ brief, pages 80a, 
81a, 189a, 199a.) They brought an action in the District Court 
seeking an order for their reassignment, but they did not prosecute 
the action and, after all the applicants involved had either grad­
uated, moved out of the County or dropped out of school, the 
action was dismissed without any hearing of the merits or even 
the filing of an answer by the defendant Board. (Appendix to 
plaintiffs’ brief, pages 48a, 199a.) Ho appeal was taken from that 
decision of the District Court. (Appendix to plaintiffs’ brief, 
page 199a.)

Although the plaintiffs in their complaint seek an order direct­
ing the defendant to assign teachers, principals and other school 
personnel to schools without regard to the race of the children 
attending the schools, the record establishes that none of the plain­
tiffs is or ever has been a teacher, principal or other school em­
ployee. (Appendix to plaintiffs’ brief, pages 28a, 36a, 59a.) 
There are 170 public school teachers employed in the schools of 
Greene County, of whom 95 are bTegroes. (Appendix to plaintiffs’ 
brief, page 139a.) Ho teacher, principal or other school employee 
of the Negro race, or of the white race, has ever applied to the 
defendant for assignment to a school attended by a race different 
from that of the teacher. (Appendix to plaintiffs’ brief, pages 
27a, 35a, 159a.) Under the laws of the State of north Carolina 
(G.S. 115-72, set forth as an appendix to this brief) the defendant 
has no authority to elect teachers, principals, or other school per­
sonnel. (Appendix to plaintiffs’ brief, pages 34a, 141a, 142a, 143a, 
162a, 177a, 197a, 198a, 202a.) These school employees are under 
contract which designates the school where they are to work. 
(Appendix to plaintiffs’ brief, page 162a.) The defendant has no 
authority to transfer them to a different school. (Appendix to 
plaintiffs’ brief, pages 35a, 143a, 162a, 177a, 197a, 198a, 202a.)



8

A E G U I E N T

I

T h e  D istr ic t  C ourt D id N ot E rr  I n D e n yin g  th e  P l a in t if f s ’ 
M o tion  for  A P r e l im in a r y  I n ju n c t io n .

The plaintiffs, by their motion, asked the District Court, with­
out waiting for the defendants to file an answer and without wait­
ing for a trial on the merits, to take from the hands of the 
defendant Board of Education its authority over the assignment 
of pupils to the public schools of Greene County and to require the 
defendant Board to assume authority, which it does not have, with 
reference to the employment of teachers, principals and other school 
personnel. This the District Court refused to do. The evidence 
at the hearings on the motion supports the findings of fact by 
the District Court and those findings support its denial of the 
motion.

(a) The Plaintiffs Cannot Maintain This Action As A Class 
Action.

The plaintiffs purport to bring this action on behalf of a class 
to which they belong. Their own evidence establishes that there is 
no class situated similarly to the plaintiffs or for the benefit of 
which the plaintiffs are entitled to sue. The evidence establishes 
that no other child, Negro or white, and no other parent of any 
child, now enrolled in or eligible to be enrolled in the public 
schools of Greene County, has ever shown any interest whatsoever 
in attending, or in having his or her child attend, a school in which 
children of a different race are enrolled. (Appendix to plaintiffs’ 
brief, pages 28a, 57a, 60a, 61a, 77a, 78a, 80a, 159a, 166a, 175a, 
184a, 189a, 197a.)

The pre-school registrations for first grade children are held 
pursuant to published notices stating simply the dates at which 
such registrations are to be held at the respective schools without 
any indication of the school to which Negro children or white 
children are to present themselves. (Appendix to plaintiffs’ brief, 
page 119a.) No Negro child has even been presented for pre-school 
registration at a school attended by white children. (Appendix to 
plaintiffs’ brief, page 116.)



9

The plaintiffs’ own evidence shows that these plaintiffs stand 
alone. Of all the other three "thousand Fegro children enrolled in 
the public schools of Greene County, and all of the parents of 
those children, not a single one has indicated to the defendants, 
or to the Court, any interest in attending a school attended by 
white children, or any intention to authorize these plaintiffs to 
bring this action on their behalf, or to do anything in this action 
designed to bring about the mixing of their children in schools 
with white children.

The evidence of the plaintiffs shows that none of the plaintiffs 
is a teacher, principal or other employee in the Greene County 
public school system. There is no evidence whatever to show that 
they are authorized in this action to represent the interests of any 
teacher, principal or other school employee.

The plaintiffs’ own evidence, therefore, shows there are no other
persons similarly situated and similarly interested. The plaintiffs 
rights in this action are individual rights and they cannot maintain 
this action either as a class action or as a spurious class action. 
See, Carson v. Board of Education of McDowell County, 227 
F. 2d 789 (4th Cir., 1955).

(b) Plaintiffs Are Not Entitled To The Order They Seek Con­
cerning School Teachers And Other School Personnel.

Under the law of the State of Forth Carolina, teachers, princi­
pals and other school employees are not elected by the defendant 
Board of Education, bnt by the local District School Committee. 
(G.S. 115-72, set forth in the Appendix to this brief.) The Board 
of Education has a veto power in this matter but cannot compel tbe 
election of any school employee by the District Committee. (Ap­
pendix to plaintiffs’ brief, pages 177a, 197a.)

When a teacher is elected, he or she signs a contract for the 
school year for work at the school named in the contract. The de­
fendant Board has no authority to transfer the teacher or other 
school employee to work in a different school. Therefore, even if 
the order sought by tbe plaintiffs with reference to the teachers and 
other school personnel were issued there would be no power in the 
defendant to comply with it. The refusal of the District Court to 
grant this portion of the relief sought by tbe plaintiffs’ motion for 
preliminary injunction was clearly correct.



10

(c) The Plaintiffs Have Failed To Pursue Their Plain And 
Adequate Administrative Remedy.

The evidence of the plaintiffs at the hearing on their motion 
shows that the defendant Board in the matter of assigning children 
to public schools has followed the Worth Carolina Pupil Assign­
ment Act, set forth in the Appendix to this brief, and regulations 
adopted by the defendant pursuant to that Act. There has been no 
deviation from this statute and these regulations. (Appendix to 
plaintiffs’ brief, pages 126a, 131a, 132a, 138a.)

The constitutionality of the Worth Carolina Pupil Assignment 
Act has been sustained by this Court- and by the Supreme Court. 
Carson v. Warlick, 238 F. 2d 728, Cert. Den., 353 IT. S. 910 
(4th. Cir., 1956).

Similar statutes adopted in Alabama and Arkansas have also 
been held constitutional. Shuttlesivorth v. Birmingham Board of 
Education, 162 F. Supp. 372 (W. D. Ala., 1958) ; Parham v. 
Dove, 271 F. 2d 132 (8th. Cir., 1959 ).

This Worth Carolina statute (G-.S. 115-178) provides a plain 
and adequate administrative remedy for the parent or guardian of 
any child dissatisfied with the assignment of such child. I f  the 
application for reassignment is not approved, notice is required to 
be given to the applicant and the applicant is thereupon entitled 
to a prompt and fair hearing by the Board, the decision by the 
Board after such hearing to be given to the applicant by registered 
mail.

This Court and the District Courts of this circuit have re­
peatedly held that the administrative remedy so afforded is an 
adequate remedy and must be exhausted before resort can be had 
to the courts of the United States to compel the reassignment of a 
pupil in the public schools. Carson v. Warliclc, 238 F. 2d 724, 
Cert. Den., 353 U. S. 910 (4th. Cir., 1956); Carson v. Board of 
Education of McDowell County, 227 F. 2d 789 (4th. Cir., 
1955); Covington v. Edwards, 264 F. 2d 780 (4th. Cir., 1959) ; 
Holt v. Raleigh City Board of Education, 164 F. Supp. 853, 
AfPd 261 F. 2d 527 (E. D. W. C., 1958); McKissick v. Dur­
ham City Board of Education, 176 F. Supp. 3 (M. D. W. C., 
1959). See also: McNeese v. Board of Education, 305 F. 2d 
783 (7th. Circuit, 1962).



11

Iii Carson v. Board of Education of McDowell County, supra, 
this Court said:

“ It is well settled that the Courts of the United States will 
not grant injunctive relief until administrative remedies have 
been exhausted. . . . 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. Federal Courts manifestly can­
not operate the schools. . . . Where the state law provides 
adequate administrative 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.”

Again, in Carson v. Warlich, supra, Judge Parker, speaking for 
this Court said:

“ Somebody must enroll the pupils in the schools. They can­
not 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 Legislature, and avoid the discrimination 
on account of race which the Constitution forbids. Hot until 
they have been applied to and have failed to give relief 
should the courts be asked to interfere in school administra­
tion.”

Again, in Covington v. Edwards, supra-, this Court said:

“ The County Board of Education, however, is entitled under 
the Forth Carolina statute, to consider each application on its 
individual merits and if  this is done without unnecessary de­
lay and with scrupulous observance of individual constitu­
tional rights, there can be no just cause for complaint.”

The evidence of the plaintiffs themselves shows that they have 
made no application whatever to the defendant Board prior to the 
bringing of this action late in the school year of 1962-63. Obediah 
Farmer had then been enrolled in public schools of Greene County



12

for 9 years and Cleophius Edwards had then been, enrolled in 
those schools for 10 years. Each year each of them was assigned 
to a school. He attended that school without complaint and with 
no effort on his behalf by any person to apply to the Board for 
reassignment. Even now the plaintiffs say they do not know to what 
school they want these students assigned. (Appendix to plaintiffs’ 
brief, page 90a.) They admit in their complaint (Paragraph 11, 
Appendix to plaintiffs’ brief, page 6a) they have made no effort 
to comply with the North Carolina Pupil Assignment Act and the 
regulations adopted pursuant thereto.

The record shows no course of action by the Board justifying 
this ignoring of its authority by the plaintiffs. Their own witnesses 
testified that no application has ever been filed with the defendant 
Board by or on behalf of any of the 3,000 Negro children now 
enrolled in the Greene County public schools for assignment of 
any child to a different school for any reason whatsoever. (Appen­
dix to plaintiffs’ brief, pages 60a, 19a, 159a, 166a, 197a.)

In Paragraph 4 of their complaint (Appendix to plaintiffs’ 
brief, page 3a) the plaintiffs allege, “ The defendants are charged 
by the laws of the State of North Carolina with the duty of operat­
ing a system of free public education in Greene County, North 
Carolina, and said Board is presently operating public schools in 
said city (sic.) pursuant to said laws.”  These are the laws which 
this Court and the Supreme Court have said are constitutional. 
No deviation from these laws is alleged in the complaint or shown 
by the evidence offered at the hearing on the plaintiffs’ motion for 
preliminary injunction.

The only effort made by the plaintiffs to justify their complete 
ignoring of the plain and adequate administrative remedy afforded 
them by the laws of North Carolina and by the regulations of the 
defendant Board of Education is their contention that in 1959, 
four years before this suit was instituted, the defendant Board 
denied the application of five Negro students for reassignment to 
the Walstonburg High School. None of those five students is now 
enrolled in the public schools of Greene County. Two of them no 
longer live in the county. The evidence offered by the plaintiffs 
with reference to this shows that before those five students sought 
such assignment to the Walstonburg High School the defendant 
Board had already decided to close that school. Those applications



13

were all filed at the same time, June 9, 1959. They were acted 
upon separately and individually by the defendant Board. They 
were rejected by the Board for reasons which the Board believes 
were sufficient, and would have led to the same result had the 
applicants been white. (Appendix to plaintiffs’ brief, pages 183a, 
184a.) The reasons for the rejection of their applications were 
given to those applicants by registered mail. The applicants were 
given an opportunity to appear before the Board and present evi­
dence in support of their applications. This record does not show 
why those five applicants sought transfer to the Walstonburg High 
School, or what evidence they presented to the Board, or the rea­
sons for the Board’s action unless it be that the Walstonburg High 
School had already been ordered closed.

After those applications were denied, those applicants instituted 
a suit in the District Court to compel their reassignment to the 
Walstonburg School. Those five applicants remained in the public 
school to which they were assigned for the year 1959-60. In the 
following year they returned to that school and never made any 
other application for reassignment from it, notwithstanding the 
fact that assignments of children to the Greene County public 
schools are for one year only and expire with the expiration of the 
school year following the date of the assignment.

That action was dismissed by the District Court, without an 
answer having been filed by the defendant and without- any hearing 
on the motion, after all the applicants there involved had either 
graduated from high school, moved from the county or dropped out 
of school. (Appendix to plaintiffs’ brief, page 48a.) Ho appeal was 
taken from the judgment of the District Court dismissing that 
action.

Ho application for reassignment of any Hegro child to any 
school other than that to which he or she has been assigned has 
ever been received by the defendant Board of Education since 
1959, notwithstanding the fact that every year since that time 
there have been approximately 3,000 Hegro children enrolled in 
the public schools of Greene County. (Appendix to plaintiffs’ brief, . 
pages 58a, 78a, 79a, 80a.) Thus, the plaintiffs’ own evidence 
clearly shows that the Hegro people of Greene County, like the 
white people of Greene County, are content with the school 
system as operated by the defendant Board. ^



14

Counsel for the plaintiffs stipulated at the hearing in the Dis­
trict Court that there have never been any applications to the 
Board from Negro children for assignment to schools, other than 
those in which they were enrolled, except the five applications in 
1959. (Appendix to plaintiffs’ brief, page 189a.)

Obviously, the plaintiffs have failed completely to show any 
justification for their refusal to apply to the Board for the ad­
ministrative remedy available to them under the statutes and the 
rules of the Board. There is no showing in this, record of any 
established practice of denying applications for transfer. There is 
no showing of any use of criteria with reference to applications 
from Negro children different from those used with reference to 
applications from white children. There is no showing of compul­
sion of Negro children in the matter of pre-school registration. On 
the contrary, the evidence offered by the plaintiffs shows clearly 
that the notice of pres-school registration does not designate the 
school to which any child is to be presented. (Appendix to plain­
tiffs’ brief, page 166a.) Nevertheless, no Negro child has ever 
been presented for pre-school registration for the first grade at a 
school attended by white children. (Appendix to plaintiffs’ brief, 
page 166a.) These circumstances clearly distinguish the present 
case from the case of Wheeler et al. v. Durham City Board of 
Education, 309 F. 2d 630, decided by this Court October 12, 
1962.

The case of Jeffers et al. v. Whitley, 309 F. 2d 621, decided 
by this Court October 12, 1962, is also clearly distinguishable 
from the present case. There, a large number of the plaintiffs had 
applied to the Board and their reassignment had been denied 
whereas here the plaintiffs have not attempted to apply to the 
Board. Not only did the plaintiffs in the Jeffers case apply before 
bringing suit, but they also re-applied for the following school 
year. There, the Board gave the applicants no explanation of its 
action and “ acknowledged no set of principles governing its deter­
mination.”  In the present case, the Board has published clear, 
specific rules which it follows in all applications for reassignment, 
whether the applicant be white or Negro. In the Jeffers case this 
Court found “ invariable denial of transfer applications” . Here 
there is no such record. In the Jeffers case the Court said, “ the 
school board here has turned to the North Carolina Pupil Enroll-



15

meat Act only when dealing with inter-racial transfer requests.”  
The evidence in the present case shows clearly that the Board 
has followed the Act in all cases and that it has followed its rules, 
adopted and published pursuant to that Act, in all applications 
regardless of the race of the applicant. In the Jeffers case this 
Court said that some of the plaintiffs at least had exhausted their 
administrative remedies. Here neither plaintiff has attempted to 
do so.

There is no allegation, or any statement by any witness offered 
by the plaintiffs at the hearing upon their motion for preliminary 
injunction, to justify an assumption by this Court that the de­
fendant will not pass promptly and property upon any application 
for reassignment pursuant to the procedure prescribed by the 
North Carolina Pupil Assignment Act and in accordance with 
the standards prescribed by that statute, which procedure and 
standards have been held constitutional by this Court and by the 
United States Supreme Court in Carson v. Warticle, supra.

(d ) This Is Not A Proper Case For Issuance Of A Preliminary 
Injunction.

A  preliminary injunction is a provisional remedy designed to 
preserve the status quo until the case can be heard on its merits. 
The status quo is the last uncontested status which preceded the 
pending controversy. Westinghouse Electric Corp. v. Free Seiving 
Machine Go., 256 P. 2d 806 (7th Circuit, 1958). See also: Sea- 
gram-Distillers Corp. v. Neiv Cut Bate Liquors, 221 P. 2d 815, 
Cert. Den., 350 U. S. 828 (7th Circuit, 1955) ; Doeskin Products, 
Inc. v. United Paper Co., 195 P. 2d 356 (7th Circuit, 1952); 
Benson Hotel Corp. v. Woods, 169 P. 2d 694 (8th Circuit, 1948); 
Hershel California Fruit Products Co. v. Hunt Foods, Inc., 
I l l  F. Supp. 732 (D. C. Cal., 1953); Gamlen Chemical Co. v. 
Gamlen, 79 F. Supp. 622 (D. C. Pa., 1948); Steinberg v. Ameri­
can Bantam Car Co., 76 P. Supp. 426 (D. C. Pa., 1948).

The granting of a preliminary injunction in this case would not 
preserve the status quo but would completely upset it. A  prelimi­
nary injunction is a drastic remedy which generally will not be 
granted where doubtful issues of fact exist. Pocket Books, Inc. v. 
Walsh, 204 P. Supp. 297 (D. C. Conn., 1962) ■ Cement Enamel



16

Development, Inc., v. Cement Enamel of New York, Inc., 186 F. 
Supp. 803 (D. C. 1ST. Y., 1960).

The granting or denial of such an injunction is in the discretion 
of the District Court, and its decision may not properly he reversed 
on appeal except for abuse or discretion. Westinghouse Electric 
Corp. v. Free Sewing Machine Co., supra,. Doeskin Products v. 
United Paper Co., supra.

(e) The Plaintiffs Are Not Entitled To The Belief Sought In  
Their Alternative Prayer.

In their prayer for alternative relief the plaintiffs requested the 
District Court to enter a decree directing the Board to present a 
plan for the complete reorganization of the school system of 
Greene County, including wholesale transfer of teachers, principals 
and other school personnel. The evidence which they presented to 
the District Court disclosed not one teacher, not one principal, not 
one school employee who desires such a reorganization or would 
consent to teach or work in a school other than that for which he or 
she has a contract. The evidence shows that of the 3,000 JSTegro 
children enrolled in the Greene County public school system not 
one has ever applied to the defendant Board for such a reorganiza­
tion of the school system, or even for the assignment of the in­
dividual child to any school other than that in which he or she 
is presently enrolled.

This effort by these plaintiffs is a blatant, arrogant attempt to 
procure the assistance of the District Court in by-passing the 
statutes of the State of North. Carolina and the authority of the 
defendant over the administration of the schools of Greene County, 
without even affording the defendant an opportunity to file its 
answer and be heard and without the slightest effort on the part 
of the plaintiffs to apply to the defendant Board for assignment of 
the minor plaintiffs to the school of their choice. Even in their 
complaint, and again at the hearing (Appendix to plaintiffs’ brief, 
page 90a), the plaintiffs through their counsel refuse to state the 
school to which they wish the named minor plaintiffs to be as­
signed.

Without regard to the wishes of all the other pupils in the 
public schools, without regard to the wishes of the principals,



17

teachers and other school employees, these plaintiffs now ask this 
Court, without waiting for a hearing upon the issues of fact, sub­
sequently raised by the answer of the defendant, to issue a pre­
liminary injunction taking from the Board of Education authority 
to administer and direct the public school system, to reassign 
pupils in all of the schools on a basis which apparently is in opposi­
tion to the desires of the pupils and their parents, and to re-shuffle 
the teachers, principals and school employees together on a basis 
which meets the whims of two Negro children.

Time and time again, this Court has said that the decision of 
the United States Supreme Court in Brown v. Board of Education, 
347 LT. S. 483, 74 St. Ct. 686, 98 L. Ed. 873 (1954), does not re­
quire such an order. In Joffers v. Whitley, supra, this Court said:

' ‘On behalf of others, similarly situated, the appellants are 
not entitled to an order requiring the School Board to effect a 
general intermixture of the races in the schools” .

In Thompson v. County School Board of Arlington County, 144 
F. Supp. 239 (E.D. Va., 1956), Affd, 240 E. 2d 59, Cert. Den., 
77 S. Ct. 667, Judge Bryan said:

“ It must be remembered that the decisions of the Supreme 
Court of the United States in Brown v. Board of Education 
. . .  do not compel the mixing of the different races, in the 
public schools. No general reshuffling of the pupils in any 
school system has been commanded. . . . Indeed, just so a 
child is not through any form of compulsion or pressure re­
quired to stay in a certain school or denied transfer to another 
school because of his race or color, the school heads may allow 
the pupil, whether white or Negro, to go to the same school 
as he would have attended in the absence of the ruling of the 
Supreme Court.”

That is precisely what the evidence in this case shows the defendant 
Board has done.

The foregoing remarks of Judge Bryan were quoted with ap­
proval by this Court in School Board of the City of Newport News 
v. Atkins, 246 F. 2d 325 (4th. Circuit, 1957). Again, in Allen 
v. County School Board of Prince Edward County, 249 F. 2d 
462, Cert. Den., 355 U. S. 953 (1957), this Court said:



18

“ This does not mean that the defendants should require mix­
ing of white and Negro children in the schools, hut merely 
that they should abolish the requirement of discrimination. 
I f  the children of the different races should voluntarily attend 
different schools, this would not be violative of the Constitu­
tion or of the Court’s order, so long as there is no requirement 
of the school authority to that effect.”

The evidence offered by the plaintiffs shows: Not one of the 
3,000 Negro children enrolled in the schools of Greene County 
has ever applied to the defendant Board for reassignment; not one 
of the Negro children transferring to the schools of Greene County 
from another system has ever sought admission to a school attended 
by white children; not one of the Negro children presented for 
pre-school registration for the first grade has ever been presented 
by his or her parents to a school attended by white children; no 
white child has ever sought admission to or reassignment to a school 
attended by Negro children. This is a record which shows a volun­
tary separation of the children in the public schools. The plaintiffs, 
and the plaintiffs alone, are dissatisfied, but even the plaintiffs 
have not gone to the Board to ask for reassignment. The District 
Court was clearly correct in denying their motion for preliminary 
injunction.

( f )  The Plaintiffs Have Shown No Reason For A Transfer To 
Any Other School.

The evidence shows that the plaintiffs are and have been en­
rolled in the Greene County Training School. The evidence also 
shows that it is a well equipped, well operated school. (Appendix 
to plaintiffs’ brief, pages 26a, 33a.) None of the plaintiffs has 
ever complained to the defendant Board of the equipment, cur­
riculum, instruction, food or any other aspect of the operation of 
this school. (Appendix to plaintiffs’ brief, pages 33a, 44a, 58a.)

The plaintiffs bring this action not because they are dissatisfied 
with their school, not because there is any reason to think that they 
would be more conveniently situated, more comfortable, or better 
educated if they transferred to another school. Their only reason 
for seeking a transfer is race.



19

While, as this Court said in Joffers v. Whitley, supra, “ one does 
not lose his constitutional rights by complaining of their violation” , 
the Supreme Court has not gone so far as to hold that race alone 
is a sufficient ground for transfer of children from a school in 
which those children are now receiving adequate education. The 
Court in the Brown case held that a child could not be assigned to 
a school on the basis of race alone. The plaintiffs seek assignment 
on that factor and that factor alone.

I I

T h e  D is t r ic t  C ourt D id  H ot E rr  1st St r ik in g  F rom  T h e  
C o m p la in t  P aragraph s  9 an d  10.

Pule 8 (a) of the Federal Pules of Civil Procedure requires 
that a complaint must set forth “ a short and plain statement of the 
claim showing that the pleader is entitled to relief” . Pule 8 (e) 
requires that “ each averment of a pleading shall be simple, precise 
and direct.”  Pule 12 ( f ) provides that upon motion the Court may 
order stricken any immaterial or impertinent matter.

Pursuant to these rules portions of a complaint relating to mat­
ters for which the plaintiff could not obtain relief will be stricken. 
Heuer v. Loop, 198 F. Supp. 546 (D. C. Ind., 1961).

Any allegation in a pleading which is not germane to the issues 
of the case should be stricken on motion of the adverse party. 
Best Foods v. General Mills, 3 F. R. D. 459 (D.C. Del., 1944) ; 
Burke v. Mesta Machine Co-., 5 F. R. D. 134 (D.C. Pa., 1946) ; 
Salem Engineering Co-, v. National Supply Co., 75 F. Supp. 993 
(D.C. Pa., 1948); Schenley Distillers Cor-p. v. Benken, 34 F. 
Supp. 678 (D.C. S.C., 1940).

(a) Paragraph 9 Of The Complaint Was Properly Stricken.

Paragraph 9 of the complaint which was stricken by the District 
Court, contains nothing but allegations about the facts of an en­
tirely different lawsuit. That suit was dismissed by the judgment 
of the District Court before any answer was filed by the defend­
ants therein. (Appendix to plaintiffs’ brief, page 48a.) The Hegro 
children on whose behalf that action was instituted are no longer 
enrolled in public schools of Greene County. Two of them no longer



20

reside in the county. Two of them have graduated from high school 
and the other dropped out of school. (Paragraph 10 of the present 
complaint, Appendix to plaintiffs’ brief, page 5 a). That action 
has no relation to the present action. Different issues were in­
volved. The plaintiffs there sought assignment to a high school 
not now in existence. Had the Court not dismissed that action as 
moot, the defendants therein would have filed answers asserting a 
number of defenses to the merits of that action. The defendants in 
that action have never been heard on the merits of that case.

To allow the allegations of Paragraph 9 to remain in this 
complaint would require the defendant in this action to plead 
the defenses which the defendants in that action would have as­
serted had it been necessary to file an answer therein. Thus, the 
trial of this action would have been cluttered and obscured by the 
trial of the merits of the former action already dismissed as moot.

To allow Paragraph 9 to remain in the complaint would have 
been prejudicial to the defendant because the inference of that 
allegation is that the defendant acted improperly in denying the 
requests for assignment involved in the former case. To have 
allowed this allegation to remain in this complaint would have 
required the defendant to allege and present evidence in this case 
to prove that in the former case it acted properly and in accordance 
with its lawful authority. Thus, to have allowed this paragraph 
to remain in the complaint would have prolonged the trial of the 
present case unnecessarily and would have confused the issues in 
this case.

(b) Paragraph 10 Of The Complaint Was Properly Stricken.

Paragraph 10 of the complaint relates entirely to the contents 
of depositions alleged to have been taken in a different lawsuit. 
That action was dismissed before the defendant filed any answer 
and there was never any hearing on the merits of that case.

In the second sentence of Paragraph 10 it is alleged that those 
depositions contained “ information providing ample support for 
plaintiffs’ contention that the defendant Board did not utilize the 
North Carolina Pupil Placement Act as a method by which chil­
dren assigned initially on a racial basis, could obtain interracial 
transfers Tor the asking’ ” . Not only is this a pleading of evi­



21

dential matter; it is a pleading of immaterial evidential matter. 
The depositions in question were taken, hut, since the case was 
never called for trial, they were never offered or admitted in evi­
dence. Obj ections to many questions were entered when the deposi­
tions were taken and it was stipulated therein that other objections 
could be made when and if  the deposition was offered at the trial 
of that former case. Wone of these objections has been ruled upon. 
To have allowed this allegation to remain in the present complaint 
would have required this defendant to go through two very lengthy 
depositions, not related to the present litigation, and show from the 
depositions themselves the falsity of the present allegation in Para­
graph 10 o f the complaint.

This allegation in Paragraph 10, by inference, states and rests 
upon a false conclusion of law by the plaintiff, namely, that the 
Worth Carolina Pupil Assignment Act should be used to provide 
“ interracial transfers for the asking” . That Act prescribes certain 
standards by which an application for reassignment must be judged 
by the Board. Wo' transfers, interracial or other, are to he given 
under the Worth Carolina Pupil Assignment Law “ for the asking” .

Paragraph 10 of the complaint does not purport to allege any 
violation by this defendant in this action of the Worth Carolina 
Pupil Assignment Act. On the contrary, Paragraph 4 specifically 
alleges that the defendant is presently operating the public schools 
“ pursuant to said laws” .

Sub-paragraphs (a ), (b ), (c) and (d) of Paragraph 10 purport 
to he summaries of the depositions referred to in the first part of 
the paragraph. This is, of course, a pleading of evidential matter 
and evidential matter which relates to an entirely different lawsuit. 
To have allowed these allegations to remain in the complaint would 
have required the defendant in its answer to allege, in detail the 
defendant’s construction of these depositions and its interpretation 
of various portions of the Worth Carolina Pupil Assignment Act. 
Such pleadings would unnecessarily complicate and clutter the 
record of this lawsuit and prolong the trial of it.

An illustration of the irrelevancy of Paragraph 10 and all of 
its sub-paragraphs, and of the complexity which they would neces­
sitate in the answer of the complaint by the defendant, is seen in 
the second sentence of sub-paragraph (a ). Wone of the plaintiffs



22

is a teacher. None of the plaintiffs is authorized to maintain this 
action on behalf of any teacher. This defendant has no authority 
under the law to assign any teacher to any school other than that 
in which the teacher has contracted to teach. This defendant has 
no authority under the law to elect any teacher. I f  this allegation 
had been allowed to remain in the complaint, the defendant, in 
order to absolve itself from the implied charge that it has im­
properly employed Negro teachers to teach these Negro children, 
would have had to answer by alleging in detail how teachers are 
elected and would have had to show that the plaintiffs are not 
damaged by receiving instruction from Negro teachers.

In sub-paragraph (c ), of Paragraph 10, the plaintiffs allege 
that these depositions taken in the former action would show that 
“ no information is provided to Negroes as to what standards they 
must meet in order to obtain transfer.”  Those standards are pre­
scribed by the North Carolina Pupil Assignment Act and the pub­
lished rules of the defendant Board. There is no contention any­
where in the complaint or in the evidence offered at the hearing 
that the defendant has departed from the statute with reference to 
requests for reassignment.

Sub-paragraph (d) of Paragraph 10 of the complaint relates to 
what the depositions taken in the former action would show con­
cerning the defendant’s interpretation of the North Carolina Pupil 
Assignment Act. It is an allegation concerning the defendant’s 
understanding of the law, not an allegation concerning facts upon 
which the plaintiff is entitled to relief. The legal training of the 
defendant Board is not relevant in this complaint and allegations 
as to evidence in another lawsuit concerning its knowledge of the 
law should be stricken as irrelevant to the action.

I ll

T h e  D is tr ic t  C ourt D id  N ot E rr  I k  R efusing  T o A dm it  
E vidence  Offer ed  B y  T h e  P l a in t if f s .

(a) The Depositions of Gerald D. James and H. Maynard 
Hicks.

At the hearing of their motion for preliminary injunction the 
plaintiffs called as their witnesses Gerald D. James, Superinten­



23

dent of Schools, and H. Maynard Hicks, Chairman of the de­
fendant Board of Education, and examined them at length. At the 
conclusion of their testimony the plaintiffs sought to put in evi­
dence depositions of these witnesses taken in 1961 for possible use 
in the action brought in 1960 by the five Negro pupils who in 
1959 applied for reassignment to the Walstonburg High School. 
(Appendix to plaintiffs’ brief, page 203a.) The District Court 
sustained the defendant’ s objection.

The depositions in question do not appear in the record, so 
there is no showing that their exclusion, if error, was prejudicial 
to the plaintiffs. Without such showing the denial of the motion for 
preliminary injunction should not be disturbed.

Furthermore, the exclusion of these depositions was proper. As 
this record shows (Appendix to plaintiffs’ brief, pages 5a, 48a, 
204a), the action in connection with which those depositions were 
taken was dismissed as moot. No answer was ever filed. No trial 
of the merits was had. No use of the depositions was made. No 
court ever has passed upon the numerous objections stated therein 
and, of course, no court, has passed upon objections yet to be stated 
upon the reservation of right to enter other objections if  and when 
the depositions were offered at the trial of that action.

This case is a wholly different action brought by different plain­
tiffs and involves different issues.

Rule 26 (d) (4) of the Federal Rules of Civil Procedure, re­
lied upon by the plaintiffs in their brief, is not applicable. This is 
not an instance of substitution of parties in the same action in 
which the depositions were taken. This is an entirely different 
action. This is not “ another action involving the same subject 
matter . . . brought between the same parties or their representa­
tives or successors in interest” . The subject matter of the earlier 
action, in which the depositions were taken, involved the alleged 
right of five Negro pupils to be assigned, pursuant to their applica­
tions, to the Walstonburg High School, which school is no longer 
in existence and none of which pupils is now enrolled in the 
Greene County public schools. The subject matter of the present 
action is the alleged right of two different pupils to go to whatever 
school they wish to attend, without even bothering to apply to the 
Board for reassignment, and the alleged right to have teachers,



24

principals and other school employees assigned to duties in schools 
other than those in which they contracted to work. The present 
plaintiff pupils are not successors in interest or representatives of 
the plaintiff pupils in the former case, which was dismissed.

Rule 26 (d) (2 ), also relied upon by the plaintiffs in their 
brief, is likewise inapplicable. That rule deals only with the pur­
pose for which a deposition may be used, assuming that the 
deposition is “ admissible under the rules of evidence” . It does not 
purport to state what depositions are admissible.

The depositions covered one hundred seven pages of transcript. 
(Appendix to plaintiffs’ brief, page 205a.) Neither of them was 
ever offered in evidence in the case in which it was taken. That 
case was dismissed without any trial of the merits when it became 
moot through all of the plaintiff pupils therein having graduated, 
dropped out of school or moved out of the county. The numerous 
objections to specific questions in those depositions (See, Appendix 
to plaintiffs’ brief, page 205a) were never considered. Thus the 
admissibility of the answers to those questions in the case in which 
the depositions were taken has not been determined. Before the 
District Court in this case could have admitted the depositions, 
in their entirety, as offered, it would have had to go through one 
hundred seven pages of transcript and rule upon all the objections 
therein stated with reference to that case, and upon all such 
further objections as might be made with reference to the present- 
case.

The same men testified in person in this case. Any question in 
the depositions, relevant to and proper in the present case, could 
have been asked while the same witness was on the stand in the 
present case. These witnesses were not called by the defendant. 
They were the plaintiffs’ witnesses, so the depositions could not be 
used to impeach them even if it could be assumed that they would 
contradict any testimony given in the present case, which the plain­
tiffs did not contend before the District Court (Appendix to plain­
tiffs’ brief, pages 202a to 208a) and do not now suggest in their 
brief. “ At a de novo trial, testimony at prior hearing is inadmissi­
ble unless it is shown that the presence of the witnesses who testi­
fied at the hearing cannot be secured.”  De Vargas v. Brownell, 
251 F. 2d 869 (5th Cir., 1958).



25

Had the Court allowed the plaintiffs to introduce these deposi­
tions in evidence, it would have been necessary for the defendant 
to have offered evidence to show the propriety of its actions in the 
matter of the five applications in 1959. The plaintiffs cannot, by 
this device, try in this action the merits of the former action, dis­
missed as moot prior to the bringing of the present action.

(b) The Record of the 1959 Hearing Before the Board.

At the hearing in the District Court the plaintiffs called as their 
witness, H. Maynard Hicks, Chairman of the defendant Board. 
Counsel for the plaintiffs examined Mr. Hicks extensively con­
cerning the Board’s action upon the simultaneous applications in 
1959 of five Megro pupils for reassignment to the Walstonburg 
High School, now closed, and with reference to the hearing held 
by the Board upon those applications. The witness answered all 
such questions. In the midst of his direct testimony on this matter, 
counsel for the plaintiffs offered in evidence the record of the 
hearing held by the Board in 1959 upon those applications. In so 
doing, counsel for plaintiffs stated this was not offered for the 
purpose of impeaching the witness (Appendix to Plaintiffs’ Brief, 
page 186a), which he could not do, of course.

The document in question is not included in the record before 
this Court so there is no showing of any prejudice to the plaintiffs 
resulting from this ruling, even if  it was erroneous, which is not 
the case. Without such showing, the ruling of the District Court 
on the motion for preliminary injunction should not be disturbed.

The hearing in question was an informal, administrative pro­
ceeding at which unsworn statements were received by the Board 
concerning the alleged right of five pupils, then, but no longer, in 
the Greene County public schools, to be reassigned, pursuant to 
applications filed with the Board, to a high school then, but no 
longer, in existence. The present case involves the alleged right 
of two different pupils to attend the school of their choice without 
even making any application to the Board of Education. The state­
ments made in 1959 by those applicants concerning their alleged 
rights to attend the Walstonburg High School, even if they had 
been made under oath, which was not the case, would not be rele­
vant to the alleged right of these present plaintiff pupils to go to 
the school of their choice without even applying to the Board for



26

a reassignment. The District Court did not, therefore, err in sus­
taining the objection to the introduction in evidence of that collec­
tion of unsworn, irrelevant statements.

C O N C L U S I O N

Since the District Court did not err in denying the motion of 
the plaintiffs for a preliminary injunction, or in striking Para­
graphs 9 and 10 from the complaint, or in sustaining objections 
to the introduction in evidence of depositions taken, but never used, 
in a different lawsuit and of the transcript of an administrative 
hearing by the Board of Education four years before the present 
action arose concerning applications not involved in the present 
action, the orders of the District Court from which this appeal 
was taken should be affirmed.

Respectfully submitted

W alte r . G. S h eppar d ,
Snow Hill, North Carolina

K . A. P it t m a n ,
Snow Hill, North Carolina

I . B ev er ly  L ak e
800 Capital Club Building,
Raleigh, North Carolina

Attorneys for the Appellee



27

A P P E N D I X

G en er al  S tatu tes  of N orth  Carolin a  
Chapter 115, Article 21

Assignment and Enrollment of Pupils

§ 115-176. Authority to provide for assignment and enrollment 
of pupils; rules and regulations.— Each county and city board of 
education is hereby authorized and directed to provide for the 
assignment to a public school of each child residing within the 
administrative unit who is qualified under the laws of this State 
for admission to a public school. Except as otherwise provided in 
this article, the authority of each board of education in the mat­
ter of assignment of children to the public schools shall be full 
and complete, and its decision as to the assignment of any child 
to any school shall be final. A  child residing in one administrative 
unit may be assigned either with or without the payment of tuition 
to a public school located in another administrative unit upon such 
terms and conditions as may be agreed in writing between the 
boards of education of the administrative units involved and en­
tered upon the official records of such boards. No child shall be 
enrolled in or permitted to attend any public school other than the 
public school to which the child has been assigned by the appro­
priate board of education. In exercising the authority conferred by 
this section, each county and city board of education shall make 
assignments of pupils to public schools so as to provide for the 
orderly and efficient administration of the public schools, and pro­
vide for the effective instruction, health, safety, and general welfare 
of the pupils. Each board of education may adopt such reasonable 
rules and regulations as in the opinion of the board are necessary 
in the administration of this article. (1955, c. 366, s. 1; 1956, 
Ex. Sess., c. 7, s. 1.)

§ 115-177. Methods of giving notice in making assignments
of pupils.—In exercising the authority conferred by § 115-176, 
each county or city board of education may, in making assignments 
of pupils, give individual written notice of assignment, on each 
pupil’s report card or by written notice by any other feasible 
means, to the parent or guardian of each child or the person stand­
ing in loco parentis to the child, or may give notice of assignment 
of groups or categories of pupils by publication at least two times in



28

some newspaper having general circulation in the administrative 
unit. (1955, c. 366, s. 2 ; 1956, Ex. Sess., c. 7, s. 2.)

§ 115-178. Application for reassignment; notice of disapprov­
al; hearing before board.— The parent or guardian of any child,
or the person standing in loco parentis to any child, who is dissatis­
fied with the assignment made by a board of education may, within 
ten (10) days after notification of the assignment, or the last pub­
lication thereof, apply in writing to the board of education for the 
reassignment of the child to a different public school. Application 
for reassignment shall be made on forms prescribed by the board of 
education pursuant to rules and regulations adopted by the board 
of education. I f  the application for reassignment is disapproved, 
the board of education shall give notice to the applicant by regis­
tered mail, and the applicant may within five (5 ) days after re­
ceipt of such notice apply to the board for a hearing, and shall be 
entitled to a prompt and fair hearing on the question of reassign­
ment of such child to a different school. A  majority of the board 
shall be a quorum for the purpose of holding such hearing and 
passing upon application for reassignment, and the decision of a 
majority of the members present at the hearing shall be the deci­
sion of the board. If, at the hearing, the board shall find that the 
child is entitled to be reassigned to such school, or i f  the board shall 
find that the reassignment of the child to such school will be for the 
best interests of the 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 children there enrolled, the board shall direct that the child 
be reassigned to and admitted to such school. The board shall 
render prompt decision upon the hearing, and notice of the decision 
shall be given to the applicant by registered mail. (1955, c. 366, 
s. 3 ; 1956, Ex. Sess., c. 7, s. 3.)

§ 115-179. Appeal from decision of board— Any person ag­
grieved by the final order of the county or city board of education 
may at any time within ten (10) days from the date of such order 
appeal therefrom to the superior court of the county in which such 
administrative unit or some part thereof is located. Upon such 
appeal, the matter shall be heard de novo in the superior court be­
fore a jury in the same manner as civil actions are tried and dis­
posed of therein. The record on appeal to the superior court shall



29

consist of a true copy of the application and decision of the board, 
duly certified by the secretary of such, board. I f  the decision of the 
court be that the order of the county or city board of education 
shall be set aside, then the court shall enter its order so providing 
and adjudging that such child is entitled to attend the school as 
claimed by the appellant, or such other school as the court may find 
such child is entitled to attend, and in such case such child shall be 
admitted to such school by the county or city hoard of education 
concerned. From the judgment of the superior court an appeal may 
be taken by an interested party or by the board to the Supreme 
Court in the same manner as other appeals are taken from judg­
ments of such court in civil actions. (1955, c. 366, s. 4.)



30

G e n e r a l  S t a t u t e s  o f  N o r t h  C a r o l i n a  

Chapter 115, Article 7

School Committees —  Their Duties and Powers

§ 115-72. How to employ principals, teachers, janitors and 
maids.— The district committee, upon the recommendation of the 
county superintendent of schools, shall elect the principals for the 
schools of the district, subject to the approval of the county board 
of education. The principal of the district shall nominate and the 
district committee shall elect the teachers for all the schools of the 
district, subject to the approval of the county superintendent of 
schools and the county board of education. Likewise, upon the rec­
ommendation of the principal of each school of the district, the dis­
trict committee shall appoint janitors and maids for the schools of 
the district, subject to the approval of the county superintendent 
of schools and the county board of education. No election of a 
principal or teacher, or appointment of a janitor or maid, shall be 
deemed valid until such election or appointment has been approved 
by the county superintendent and the county board of education. 
No teacher under eighteen years of age may be employed, and the 
election of all teachers and principals and the appointment of all 
janitors and maids shall be done at regular or called meetings of 
the committee.

In the event the district committee and the county superinten­
dent are unable to agree upon the nomination and election of a 
principal or the principal and district committee are unable to 
agree upon the nomination and election of teachers or appointment 
of janitors or maids, the county board of education shall select the 
principal and teachers and appoint janitors and maids, which se­
lection and appointment shall be final.

The distribution of the teachers and janitors among the several 
schools of the district shall be subject to the approval of the county 
board of education. (1955, c. 1372, art. 7, s. 4.)