Boson v. Rippy Appellants' Reply Brief

    Ittttefc tourt of &ppmla
F ob the F ifth  Circuit

No. 18,467

Sandra Ceaig B oson, et al.,

-v-
Appellants,

Dr. E dwin L. R ippy, as President of the Board of Trustees 
of the Dallas Independent School District, Dallas, Court, 
Texas, et al.,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OP TEXAS

APPELLANTS’ REPLY BRIEF

W. J. Durham 
C. B. B unkley, J r.

Dallas, Texas
T hurgood Marshall

New York, New York
Attorneys for Appellants

E lwood H. Chisolm 
New York, New York

Of Counsel



MnxUb (Sflurt of Appeals
F oe the F ifth  Circuit 

No. 18,467

Sandra Craig Boson, et al.,
Appellants,

Dr. E dwin L. R ippy, as President of the Board of Trustees 
of the Dallas Independent School District, Dallas, Court, 
Texas, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF TEXAS

APPELLANTS’ REPLY BRIEF

The brief of the Board of Trustees of the Dallas Inde­
pendent School District urges on the one hand that the 
District Court did not err in ordering desegregation to 
proceed under the so-called salt-and-pepper plan and on the 
other hand that it erred in disapproving their twelve year 
stair-step desegregation plan. In this brief, they also argue 
that both plans fully comply with the constitutional re­
quirements laid down in the School Segregation Cases— 
although the stair-step plan is best under the circum­
stances existing here—yet neither plan comports with state 
law inasmuch as the District Court erroneously struck 
from both a provision conditioning implementation upon 
compliance with Article 2900a of the Texas Statutes. These 
contentions, plaintiffs submit, are logically unsound and 
legally wrong.



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I.

True, in Broivn v. Board of Education, 349 U.S. 294, at 
300, the Supreme Court contemplated that “the personal 
interest of the plaintiffs in admission to public schools as 
soon as possible on a nondiscriminatory basis” might be 
postponed “to take into account the public interest in the 
elimination of [certain administrative] obstacles in an ef­
fective and systematic manner.” Likewise, in Cooper v. 
Aaron, 358 U.S. 1, at 7, the Court conceded that “a Dis­
trict Court, after analysis of the relevant factors (which, 
of course, excludes hostility to racial discrimination), might 
conclude that justification existed for not requiring the 
present nonsegregated admission of all qualified Negro 
children.” However, in view of the intent and substance 
of the Court’s first Brown decision, 347 U.S. 483, allowance 
of such latitude in fashioning desegregation decrees cer­
tainly does not sanction a system of racially separate 
schools in accordance with the District Court’s salt-and- 
pepper plan (see Appellants’ Brief, pp. 7-10). Nor does 
it authorize approval of a stair-step plan which would 
wholly and irremediably deprive plaintiffs and many other 
Negro children of an education in nonsegregated schools.

By its very nature, the twelve year stair-step plan pro­
posed by defendants and disapproved by the District Court 
would do just that. None of the plaintiffs, all of whom were 
attending public schools when this suit was initiated in 1955 
—and, indeed, no other Negro children who entered public 
school prior to the commencement of such a plan and there­
after made normal progress from grade to grade—could 
ever enjoy a day of desegregated schooling in Dallas. For 
these children plaintiffs in particular, the only “relief” pos­
sible under such a plan is the vicarious satisfaction which 
may be gained from having been directly or indirectly in-



3

volved in litigation which produced a small step toward 
full compliance with the constitutional mandate. This is 
no legal substitute for judicial protection of their “per­
sonal and present” constitutional rights. This, plaintiffs 
submit, makes a mockery of equal justice under the law.

Defendants point to, and plaintiffs are aware of, Kelley 
v. Board of Education, 270 F.2d 209 (6th Cir. 1959), cert, 
denied 361 U.S. 924, which upheld a somewhat similar stair­
step plan as being a permissible implementation of the 
constitutional principles proclaimed in School Segregation 
Cases. But other federal courts recently have taken a longer 
look at the twelve year stair-step plan and they reached a 
contrary conclusion. See Evans v. Ennis, 281 F.2d 385 (3rd 
Cir. 1960); Blackwell v. Fairfax County School Board, 
Civ. No. 1967, E.D. Va., September 22, 1960 (plan rejected). 
Cf. Maxwell v. County Board of Education of Davidson 
County, Civ. No. 2956, M.D. Tenn., October 27, 1960 (plan 
modified to require desegregation of first four grades in 
January 1961 and one grade a year thereafter).

In Evans v. Ennis, which disapproved a state-wade twelve 
year stair-step plan “insofar as it postpones full intega- 
tion” and ordered defendants to integrate the individual 
infant plaintiffs commencing with the Fall Term 1960, to 
submit a plan providing for the integration of all Negro 
children who seek it in the school years followdng 1961, and 
to continue during the interim the grade-by-grade integra­
tion presently in effect, this plan was found legally imper­
missible because “it will completely deprive the infant plain­
tiffs, and all those in like position, of any chance whatever 
of integrated education, their constitutional right.” 281 
F.2d at 389, 390, 393.

Defendants also point to this Court’s comment on “good 
faith” in Orleans Parish School Board v. Bush, 242 F.2d 
156, at 166, to the effect that this factor might warrant ap-



4

proval of “such reasonable steps in a process of desegrega­
tion as appear helpful in avoiding unseemly confusion and 
turmoil.” And they assert that the stair-step plan disap­
proved by the District Court was arrived at “in all good 
faith as the best process to follow in avoiding confusion, 
turmoil and violence in reaching the target of complete 
integration.” Plaintiffs respectfully submit that neither 
good faith per se nor the possible effect ascribed to it in 
Bush can be determinative of the validity of the plan.

First, the Supreme Court some two years after Bush 
specifically enjoined any consideration of unseemly tur­
moil, confusion and violence in Cooper v. Aaron, 358 U.S. 1. 
Secondly, “good faith alone cannot solve their problem or 
[y]our own. True the defendants must act in good faith to 
comply with the mandate of the Supreme Court, but they 
must do more than this. They must proceed to integration 
with all deliberate speed. Certainly in the plan [of grade- 
by-grade integration of the kind arrived at by defendants] 
the accent is on deliberation rather than speed. The defen­
dants must also make a reasonable start toward full com­
pliance. In the cases at bar the step toward compliance 
about to be compelled is but a small one. It follows that the 
plan [dis] approved by the court below is not in accord with 
the legal principles enunciated by the Supreme Court.” 
Evans v. Ennis, supra, 281 F.2d at 394.

II.

Defendants elsewhere in their brief equate the present 
admission of the infant plaintiffs, and others in like posi­
tion, during the next or ensuing school term with “en masse 
integration” and claim that this “is not in accord with the 
spirit or intent of either the Supreme Court or the pre­
vious opinions of this Court” (pp. 10, 11). Plaintiffs sub-



5

mit that even if this is tantamount to en masse integration, 
but cf. “A Statistical Summary, State-by-State, of Segre­
gation-Desegregation Activity Affecting Southern Schools 
from 1954 to Present,” Southern Educational Reporting 
Service (7th Printing: January 15, 1960); Evans v. Ennis, 
supra, 281 F.2d 385, it is certainly in accord with the letter 
and spirit of the holding in Brown v. Board of Education, 
347 U.S. 483. See Brown v. Board of Education, 349 U.S. 
294, 298; Cooper v. Aaron, 358 U.S. 1, 5. See also Orleans 
Parish v. Bush, supra, 242 F.2d at 164, fn. 7.

Of course, as plaintiffs have set out above, the Supreme 
Court first in the second Brown decision and again in 
Cooper v. Aaron recognized that in certain circumstances 
the present admission of infant plaintiffs and others sim­
ilarly situated might be deferred. But these opinions do 
not establish the Court’s unqualified approval of any prin­
ciple of gradual desegregation. Neither do they stand for 
the proposition that gradual desegregation by some psy­
chologically tempting plan rather than the admission of 
infant plaintiffs and others at the nest school term is the 
best or more desirable means of bringing about the end of 
racial segregation in public schools. What they do say, 
in sum, is that school authorities, who make a prompt and 
reasonable start toward full compliance, may be allowed 
additional time to effectuate full compliance if they carry 
the burden of showing the existence of certain specifically 
enumerated circumstances which necessarily militate 
against the present nonsegregated admission of all quali­
fied children and that such time is consistent with good faith 
compliance at the earliest practicable date. Brown v. Board 
of Education, supra, 349 U.S. at 300; Cooper v. Aaron, 
supra, 358 U.S. at 7.

Plaintiffs submit that defendants have not carried the 
burden. Indeed, the record brought up on this and prior



6

proceedings is barren of any legally cognizable grounds 
for delaying the constitutional rights of infant plaintiffs 
and others similarly situated beyond the five years this case 
has been in litigation.

There is undeniably evidence which reveals the size of 
the plant, staff, budget and pupil population as well as the 
rate of growth of the Dallas school system (E. 2, 102-103, 
107; see 247 F.2d 268, 271). But these factors, although 
illuminating and probably pertinent, are nevertheless not 
among those which the Supreme Court said courts could 
predicate a conclusion that justification exists for not re­
quiring the present non-segregated admission of infant 
plaintiffs and all others in like position. See Brown v. 
Board of Education, supra, 349 U.S. at 300; Cooper v. 
Aaron, supra, 358 U.S. at 7.

There is also some evidence of overcrowded classrooms 
and a difference in the scholastic aptitudes of white and 
Negro children, as well as the effect of these conditions 
upon teaching and teachers (see 247 F.2d 268, 271). How­
ever, these facts are not only outside of those enumerated 
in the Brown and Cooper decisions but this Court has re­
jected their relevancy in this case. 247 F.2d 268, 271.

Finally, spread throughout the opinions of the District 
Court and defendants’ brief as well as the record, itself, 
is the factor of hostility toward desegregation—i.e., an­
ticipated fears, apprehensions and emotional reactions of 
parents, pupils and teachers to any plan of compliance more 
expeditious than the two that are before this Court. Aside 
from the fact that the Supreme Court in Brown v. Board 
of Education, 349 U.S. 294, 300, made it plain that the con­
stitutional rights of infant plaintiffs and others similarly 
situated cannot be denied because of this, plaintiffs submit 
that a paraphrase of the reasoning in Evans v. Ennis, 281 
F.2d at 389, is apposite here:



7

“As we have indicated one of the main thrusts of 
the opinion of the court below is that the emotional 
impact of desegregation on a faster basis than that 
ordered would prove disruptive not only to the D [alias] 
School System but also to law and order in some of the 
localities which would be affected by integregation. We 
point out, however, that approximately 6 years have 
passed since the first decision of the Supreme Court in 
Brown v. Board of Education of Topeka, supra, and 
that the American people and, we believe, the citizens 
of D[alias], have become more accustomed to the con­
cept of desegregated schools and to an integrated op­
eration of their School System.* Concededly there is 
still some way to go to complete an unqualified accept­
ance but we cannot conclude that the citizens of 
D[alias] will create incidents of the sort which oc­
curred in the M[ansfield] area some five years ago. 
We believe that the people of D [alias] will perform 
the duties imposed on them by their own laws and their 
own courts and will not prove fickle to our democratic 
way of life and to our republican form of government. 
In any event the Supreme Court has made it plain in 
Cooper v. Aaron, 358 U.S. 1, 16 (1958), the so-called 
‘Little Rock case’, that opposition is not a supportable 
ground for delaying a plan of integration of a public 
school system. In this ruling the Supreme Court has 
acted unanimously and with great emphasis stating 
tha t: ‘The constitutional rights of respondents [Negro 
school children of Arkansas seeking integration] are 
not to be sacrificed or yielded to . . . violence and dis­
order . . . ’ . We are bound by that decision.”

* Indeed, evidence has been introduced by defendants to the effect that 
a considerable number of white people would like to go to integrated schools 
(E. 101).



8

III.

The closing contention made in defendants’ brief is that 
the District Court erred in ordering the elimination of the 
provision in both plans which conditioned implementation 
upon the successful outcome of a referendum conducted in 
conformity with Article 2900a of the Texas Statutes. Plain­
tiffs answer that this simply is not so.

As has been pointed out on a prior appeal in this case, 
“That Act, of course, cannot operate to relieve the members 
of this Court of their sworn duty to support the Constitu­
tion of the United States, the same duty which rests upon 
the members of the several state legislatures and all execu­
tive and judicial officers of the several states. We cannot 
assume that that solemn duty will be breached by any of­
ficer, state or federal.” 247 F.2d 268, 272. Clearly, the 
order of the District Court conforms with this. So, too, 
does the opinion of the Attorney General of Texas to the 
effect that the Act is not applicable to integration ordered 
by a federal court.

Defendants say, and plaintiffs do not deny, that an opin­
ion of the State Attorney General lacks the binding effect 
of a judicial determination. Nevertheless, it is usually fol­
lowed in actual practice—as is the case in Houston with 
regard to Article 2900a—and, where a question of law is 
before the courts, an opinion of the highest non-judicial 
officer of the State is entitled to careful consideration and 
quite generally is regarded as highly persuasive. See, e.g., 
Jones v. Williams, 121 Tex. 94, 45 S.W. 2d 130 (1931); 
Kerby v. Collin County, 212 S.W.2d 494 (Tex. Civ. App. 
1948). Moreover, in federal courts, the construction placed 
on a state statute in a written opinion of an attorney gen­
eral is given great respect and should not be disregarded



9

in the absence of controlling judicial decisions. Union In­
surance Co. v. Hodge, 21 How. (U.S.) 35, 66; Badger v. 
Hoidale, 88 F.2d 208, 211 (8th Cir. 1937). Cf. Phyle v. 
Duffy, 334 U.S. 431, 441,

Be this as it may, plaintiffs also submit that a referendum 
by citizens in one community cannot supersede the mandate 
of the Constitution of the United States. The Fourteenth 
Amendment was adopted to shield the individual from ar­
bitrary action by a state, and where such arbitrary action 
occurs it cannot be sanctioned and rendered beyond the 
reach of the Amendment by majority vote. As the Supreme 
Court of Colorado stated in holding unconstitutional a pro­
vision that its decisions could be reviewed by referendum, 
People v. Western Union Telegraph Co., 70 Colo. 90, 97-99, 
198 Pac. 146,149:

“If the people of the state be empowered, by the mere 
re-enactment of a statute which violates the federal 
Constitution, to give full force and effect to such un­
constitutional legislation, then that portion of the state 
Constitution which vests in them such power is itself 
prohibited by the terms of the federal compact, and is 
null and void and of no force or effect whatsoever.

“When a federal constitutional question is raised in 
any of the trial courts of Colorado . . .  it cannot be 
reviewed by popular vote of the citizens of Colorado.”

Or, as was held in connection with a school desegregation 
controversy in Kelly v. Board of Education of the City of 
Nashville, 159 F. Supp. 272, 278 (M.D. Tenn. 1958), aff’d, 
270 F.2d 209 (6th Cir. 1959), cert, denied 361 U.S. 924:

“To hold out to [the Negro children] the right to 
attend schools with members of the white race if the 
members of that race consent is plainly such a dilution 
of the right itself as to rob it of meaning or substance.



10

The right of Negroes to attend the public schools with­
out discrimination upon the ground of race cannot be 
made to depend upon the consent of the members of the 
majority race.”

CONCLUSION

W herefore, appellants pray that the judgment be re­
versed and that the Court here render the judgment which 
justice requires for infant plaintiffs, and others in like 
position, without remaining for further trial in the court 
below. '

Respectfully submitted,

W. J. Durham
C. B. Bunkley, J r.

Dallas, Texas
T hurgood Marshall

New York, New York
Attorneys for Appellants

E lwood H. Chisolm 
New York, New York

Of Counsel



i