School Board of the City of Charlottesville, Virginia v. Allen Brief on Behalf of Appellees

    BRIEF ON BEHALF OF APPELLEES

In the
UNITED STATES COURT OF APPEALS

for the Fourth Circuit

No. 7303

TH E  SCHOOL BO ARD  OF T H E  C ITY  OF 
C H A R LO TTE SV ILLE , VIRG IN IA , AN D  

FE N D A LL R. ELLIS, D IV ISIO N  SU PERIN ­
TE N D E N T OF SCHOOLS OF TH E  C ITY  

OF C H A R LO TTE SV ILLE , V IR G IN IA  
Appellants

v.

DORIS M AR IE  ALLEN , et al., 
Appellees

Appeal From The United States District Court For The 
Western District O f Virginia, A t Charlottesville

O liver  W . H il l  
M a r t in  A. M a r t in  
Richmond, Virginia 
S pottswood W . R o b in so n , III, 
Richmond, Virginia 
R oland  D . E a le y  
Richmond, Virginia 
S. W . T u ck er  
Emporia, Virginia

Counsel for Appellees

The Press of Lawyers Printing Co., Inc., Richmond 7, Va.



SUBJECT INDEX

Questions Involved..................................................................  1
Argument .................................................................................  2

I. Appellant School Board And Division Superin­
tendent Were Suable In The District Court.......... 2

A. The Eleventh Amendment Does Not Pre­
clude This Action................................................. 2

B. The State Has Consented To Suit In A
Federal C ou rt.......................................................  4

II. Appellees Were Entitled To Injunctive Relief....  6
III. There Were No Administrative Remedies That

Appellees Failed To Exhaust.................................... 7
IV. The District Court Did Not Abuse Its Discretion

In Making The Injunction Effective in Septem­
ber, 1956 .....................................................................  10

Conclusion .............................................................................. 12

TA B L E  OF CITATIO N S 
Cases

Bacon v. Rutland Railroad Co., 232 U. S. 134 (1914)...  8
Bank of United States v. Planters National Bank, 9 

Wheat. 904 (1824)...................................................... ’ 5
Brown v. Board of Education, 347 U. S. 483 (1954)  6
Brown v. Board o f Education, 349 U. S. 294 (1955) 11
Carson v. Board of Education, 227 F. 2d 789 (C. A  

4th 1955) ............................................................................  7

Casper v. Regional Agricultural Credit Corp,, 202 
Minn. 433, 278 N. W . 896 (1938)............................  4

Page



Page

Clemons v. Board of Education, (S. D. Ohio, April 11, 
1956, No. 3440)...............................   11

Dunningtons v. Northwestern Turnpike Road, 6 Gratt.
160 (1849) ......................................................................  5

Ex Parte Young, 209 U. S. 123 (1908)...........................  2

Federal Land Bank v. Priddy, 295 U. S. 229 (1935 )...  5

Ford Motor Company v. Department of Treasury, 323 
U. S. 459 (1945)...................................... -......................  5

Georgia Railroad & Banking Co. v. Redwine, 342 U. S.
299 (1952) ........................................................................  2

Granville County Board of Education v. State Board of 
Education, 106 N. C. 81, 10 S. E. 1002 (1890)........ 5

Great Northern Life Insurance Company v. Read, 322 
U. S. 47 (1944 )................................................................ 5

Gross v. Kentucky Board of Managers, 105 Ky. 840,
49 S. W . 458, 43 L. R. A. 703 (1899)...........................  4

Hood v. Board of Trustees, 232 F. 2d 626 (C. A. 4th 
1956) .................................................................................  7

Interstate Construction Co. v. University of Idaho, 199 
F  509 (1912)....................................................................  6

Keifer & Keifer v. Reconstruction Finance Corp., 306 
U. S. 381 (1939 ).............................................................  4

Kennecott Copper Corporation v. State Tax Commis­
sioner, 327 U. S. 573 (1946)..........................................  5

Lane v. Wilson, 307 U. S. 268 (1939).............................  8
McSwain v. County Board of Education, 138 F. Supp.

570 (E. D. Tenn. 1956)................................................... 11

O ’Neill v. Early, 208 F 2d 286 (C. A. 4th 1953)..............  3



Osborn v. Bank of United States, 9 Wheat. 738 (1824)...2

Pacific Telephone & Telegraph Co. v. Kuykendall, 265 
U. S. 196 (1924 )............................................................. 9

Packard Co. v. Palisades Interstate Park, 240 F 543 (S.
D. N. Y. 1916)..................................................................  5

Prout v. Starr, 188 U. S. 537 (1903)...............................  2

Railroad & Warehouse Commission v. Duluth Street 
Railway Co., 273 U. S. 625 (1927)...............................  9

Reagan v. Farmers Loan & Trust Co., 154 U S 362 
(1894) ............................................................................... 6

Shedd v. Board of Education, (S. D. W. Va. April 11, 
1956, No. 833 )................................................................. ’ u

Standard Oil Co. v. United States, 25 F 2d 480 (S  D 
Ala. 1928) ........................................................................  5

Sterling v. Constantin, 287 U. S. 378 (1932)................  3
Stewart v. Thornton, 75 Va. 215 (1881)......................... 3
Truax v. Raich, 239 U. S. 33 (1915 )...............................  2

Young, Ex parte, 209 U. S. 123 (1908)...........................  2

Constitutional and Statutory Authorities

Constitution of the United States, Eleventh Amendment 3
Constitution o f the United States, Fourteenth Amend­

ment .................................................................... 3
Code of Virginia, 1950, Sec. 22-57.................................  2, 8
Code of Virginia, 1950, Sec. 22-94....................................  5

Page



in the
u n it e d  s t a t e s  c o u r t  o f  a p p e a l s

for the Fourth Circuit

No. 7303

TH E  SCHOOL BO ARD  OF TH E  C ITY  OF 
CH A R LO TTE SV ILLE , VIRG IN IA , AN D  

FE N D A LL R. ELLIS, D IVISIO N  SU PERIN ­
TE N D E N T OF SCHOOLS OF T H E  C ITY  

OF C H A R LO TTE SV ILLE , V IR G IN IA  
Appellants

v.

DORIS M AR IE  ALLEN , et al, 
Appellees

Appeal From The United States District Court For The 
Western District Of Virginia, A t Charlottesville

BRIEF ON BEHALF OF APPELLEES

QU ESTION S IN V O LVE D

Appellees submit that appellants’ contentions present for 
consideration the f  ollowing questions:



1. Were the appellant school board and division superin­
tendent suable in the District Court?

2. Were appellees entitled to injunctive relief?

3. Were there administrative remedies provided by Sec­
tion 22-57 of the Code of Virginia that appellees failed 
to exhaust?

4. Did the District Court abuse its discretion in making 
the injunction effective in September, 1956?

ARGU M EN T

I

A p p e l l a n t  S chool B oard A nd D iv is io n  
S u p e r in t e n d e n t  W ere S u able  I n 

T h e  D istr ic t  C ourt

A. The Eleventh Amendment Does Not Preclude This 
Action.

In a long line o f cases commencing with Osborn v. Bank 
of United States, 9 Wheat. 738 (1824), the Supreme Court 
has established the doctrine that actions to enjoin state 
officers or agencies from activities under color o f their 
official authority that violate the Federal Constitution and 
the rights o f individuals secured thereby are not suits 
against the state prohibited by either the Eleventh Amend­
ment or the principle that a state cannot be sued without 
its consent. See also Georgia Railroad & Banking Co. v. 
Redwine, 342 U. S. 299 (1952) ; Truax v. Raich, 239 U. S. 
33 (1915); Ex parte Young, 209 U. S. 123 (1908); Prout 
v. Starr, 188 U. S. 537 (1903).



This is not an action seeking to affect property of the 
state, or to impose or enforce a liability upon the state, or to 
require affirmative official action in the performance of a 
state function. Cf. O’Neill v. Early, 208 F. 2d 286 (C. A. 
4th 1953). It seeks merely to require the appellants to desist 
from activities violative of the Fourteenth Amendment. To 
this the Eleventh Amendment imposes no barrier. “ The 
applicable principle is that where state officials, purporting 
to act under state authority, invade rights secured by the 
Federal Constitution, they are subject to the process of the 
Federal courts in order that the persons injured may have 
appropriate relief.”  Sterling v. Constantin, 287 IJ. S. 378, 
393 (1932).

Appellants would confine the operation of these princi­
ples to suits against individual members of a school board, 
or against a division superintendent as an individual. This 
suggestion ignores the fact that it is the character of the 
function soug'ht to be enjoined, rather than the manner in 
which the defendant is sued, that is the important considera­
tion. And the suggestion is entirely impractical. Appellees 
could not obtain effective relief without enjoining appellants 
in the exercise of their official authority. Obviously, an in­
junction against activities unconnected with their school 
functions would be valueless. Indeed, since by statute the 
school board is a corporation, it is not apparent how it 
could be enjoined except when sued as such. See Stewart v. 
Thornton, 75 Va. 215 (1881).

The limitation suggested by appellants does not appear 
to be made in the cases. In Ex parte Young, supra, where a 
similar argument was made, the Court said (209 U. S. at 
159-160):



[ 4 ]

“ The answer to all this is the same as made in every 
case where an official claims to be acting under the 
authority of the state. The act to be enforced is 
alleged to be unconstitutional; and if it be so, the use 
of the name of the state to enforce an unconstitutional 
act to the injury o f complainants is a proceeding with­
out the authority of, and one which does not affect, the 
state in its sovereign or governmental capacity. It is 
simply an illegal act upon the part o f a state official in 
attempting, by the use of the name of the state, to en­
force a legislative enactment which is void because 
unconstitutional. If the act which the state attorney 
general seeks to enforce be a violation of the Federal 
Constitution, the officer, in proceeding under such en­
actment, comes into conflict with the superior authority 
of that Constitution, and he is in that case stripped of 
his official or representative character and is subjected 
in his person to the consequences of his individual con­
duct. The state has no power to impart to him any 
immunity from responsibility to the supreme authority 
of the United States.”

B. The State Has Consented To Suit In A Federal Court.

If appellees’ position in the preceding section o f the argu­
ment is sustained, the presence or absence of state consent 
to this action is immaterial.

There is authority for the conclusion that power to sue 
the school board may be implied from the grant of corporate 
existence alone. Keifer & Keifer v. Reconstruction Finance 
Corp., 306 U. S. 381 (1939) ; Casper v. Regional Agricul­
tural Credit Corp., 202 Minn. 433, 278 N. W . 896 (1938) ; 
Gross v. Kentucky Board of Managers, 105 Ky. 840, 49 S.



[ 5 ]

W . 458, 43 L. R. A. 703 (1899). But any doubt in this 
connection is put to rest by the provision o f Section 22-94 
of the Code of Virginia that the appellant school board 
“ may sue and be sued” .

This limitless waiver of immunity seems clearly to em­
brace litigation of the type here involved. See Federal Land 
Bank v. Priddy, 295 U. S. 229 (1935); Packard Co. v. 
Palisades Interstate Park, 240 F. 543 (S. D. N. Y. 1916) ; 
Dunningtons v. Northwestern Turnpike Road, 6 Gratt. 160 
(1849); Granville County Board of Education v. State 
Board of Education, 106 N. C. 81, 10 S. E. 1002 (1890). It 
would appear that Virginia has stripped herself of her 
sovereign character as respects the activities o f school 
boards. See Federal Land Bank v. Priddy, supra; Bank of 
United States v. Planters National Bank, 9 Wheat. 904 
(1824 ); Standard Oil Co. v. United States, 25 F. 2d 480 
(S. D. Ala. 1928).

There are cases holding that an express statutory waiver 
of immunity to suit does not extend to suits in Federal 
courts. See Great Northern Life Insurance Company v. 
Read, 322 US 47 (1944 ); Ford Motor Company v. Depart­
ment of Treasury, 323 US 459 (1945); Kennecott Copper 
Corporation v. State Tax Commissioner, 327 US 573 
(1946). Cf. O’Neill v. Early, supra. In each of these cases, 
however, the courts were dealing “ with the sovereign ex­
emption from judicial interference in the vital field of 
financial administration,”  Great Northern Life Insurance 
Co. v. Read, supra, 322 U. S. at 54, where a dear declara­
tion of the state’s intention to submit its fiscal problems to 
other courts than those of its own creation was deemed 
necessary. It is submitted, however, that where, as here, the 
Federal court is requested to perform its historic role as



[ 6 ]

protector o f individual constitutional rights, there is no 
reason for a restricted construction o f an unrestricted grant 
o f authority. C f.Reagan v. Farmers Loan & Trust Co., 154 
U. S. 362 (1894) ; Interstate Construction Co. v. University 
of Idaho, 199 F. 509 (D . Idaho 1912).

II

A ppellees  W ere  E n title d  T o I n j u n c t iv e  R e lie f

W e are met with the contention that the appellees have 
failed to prove a case appropriate to a grant of injunctive 
relief. The argument, as we understand it, is that the 
appellees should have sought to attend particular schools.

Appellants have long maintained a practice and policy of 
racial segregation in the public schools they control. Negro 
children are thereby prohibited, simply because of their race, 
from education in certain of the public schools. Insofar as 
their admission to these schools is concerned, all other 
considerations are immaterial. By the same token, white 
students, solely because of their race, are denied admission 
to certain other schools, irrespective of other factors ob­
taining in the situation.

Whether appellants undertake to continue segregation by 
or without the support of state law is immaterial for, in 
either instance, rights secured by the Fourteenth Amend­
ment are violated, and the practice is unconstitutional. 
Brown v. Board of Education 347 U. S. 483 (1954). It is 
equally clear that, just as the parties in Brown and its com­
panion cases were held to be entitled to injunctive relief 
from the segregation, so also are other individuals who in 
other places have been subjected to a similar unconstitu­
tional practice.



The right appellees assert in this case is the right to be 
educated in some public schools determined by criteria other 
than race. They assert simply their constitutional privilege 
to freedom from racial classifications and distinctions in 
assignments to schools and classes. Once race is eliminated 
as a factor determinative of the school an appellee is to 
attend, the constitutional issue is resolved, and determina­
tion of the particular school he might in fact attend would 
result from the operation of educationally significant fac­
tors within the competency of the school authorities to 
prescribe and apply.

It is not appellees’ prerogative to define or prescribe the 
criteria to be employed to determine the particular schools 
that particular pupils are to attend. This is and remains to be 
the function of school authorities so long as the limits set 
by the Constitution are observed. But until those criteria 
are formulated and applied, no student can know what 
school he is to attend. Here the school authorities ignored 
the request for reorganization of the schools on a nonsegre- 
gated basis, and it would seem clear that they cannot now 
profit by their own failure of duty.

I l l

T h ere  W ere No A d m in is t r a t iv e  R em edies  
T h a t  A ppellees F a iled  T o E x h a u s t

It is unnecessary for the appellees to claim immunity 
from the operation of the rule requiring the exhaustion of 
administrative remedies before resort to the courts. See 
Carson v. Board of Education, 227 F. 2d 789 (C. A. 4th 
1955); Hood v. Board of Trustees, 232 F. 2d 626 (C. A. 
4th 1956). For the only remedy to which appellants refer



[ 8 ]

is that specified by Section 22-57 of the Code of Virginia of 
1950, and it seems clear that the proceedings there provided 
do not bring this case within the requirement of the ex­
haustion rule.

Prior to instituting suit, appellees submitted to appellant 
school board and division superintendent a written petition 
setting forth their grievance and requesting corrective 
action. Certainly this satisfied the first step specified by 
Section 22-57. The second step— that appellees did not pur­
sue— consists in an appeal to a court. Appellees submit 
that the latter procedure is judicial in character, and that 
they were not bound to follow it.

It is well settled that a party claiming deprivation of 
his constitutional rights may resort to a Federal court with­
out first exhausting the judicial remedies provided by the 
state. Lane v. Wilson, 307 U. S. 268 (1939); Railroad & 
Warehouse Commission v. Duluth Street Railway Co., 273 
U. S. 625 (1927); Bacon v. Rutland Railroad Co., 232 U. 
S. 134 (1914).

The appeal provided by Section 22-57 seems to be 
judicial in character. The tribunal is “ the circuit court of 
the county or corporation court of the city or the judge 
thereof in vacation.” This tribunal ordinarily exercises only 
judicial functions. Presumbly, it lacks authority to exercise 
any other unless that authority is expressly conferred. The 
fact that the body in which the remedy is afforded is a 
court is obviously of great significance.

The statute simply authorizes the court to “ decide finally 
all questions at issue,” and provides that “ the action of the 
school board on questions of discretion shall be final unless



the board has exceeded its authority or has acted corruptly.” 
The remedy is judicial where the reviewing agency does not 
possess the power to substitute such order as in its opinion 
the administrative agency should have made in the first in­
stance. Pacific Telephone & Telegraph Co. v. Kuykendall, 
265 U. S. 196 (1924). Here the remedy simply enables the 
court to exonerate the complaining party from action that 
exceeds the law. Bacon v. Rutland Railroad Co., supra.

Even doubt as to the validity of the conclusions herein 
asserted would not subject appellees to the necessity of 
pursuing this remedy. At the very least, the character o f the 
remedy— as administrative or judicial— is highly doubtful. 
I f the remedy is indeed judicial and appellees had pursued 
it, the conclusions of the state court would be binding upon 
them, and the possibility of their decision by a Federal Dis­
trict Court eliminated. A  party is not required to sacrifice 
his constitutional privilege of hearing and decision in a 
Federal court by being subjected to a state remedy the 
nature of which is debatable. As Mr. Justice Holmes stated 
in Railroad & Warehouse Commission v. Duluth Street 
Railway Co., supra (273 U. S. at 628) :

“ . . . it must be remembered that the requirement that 
state remedies be exhausted is not a fundamental prin­
ciple of substantive law but merely a requirement of 
convenience or comity. Where as here a constitutional 
right is insisted on, we think it would be unjust to put 
the plaintiff to the chances of possibly reaching the de­
sired result by an appeal to the state court, when at 
least it is possible that, as we have said, it would find 
itself too late if it afterwards went to the district court 
o f the United States.”



[ 10 ]

IV

T h e  D istr ic t  C ourt  D id N ot A buse  Its

D iscretio n  I n  M a k in g  T h e  I n j u n c t io n  E ffective  
I n S epte m b e r , 1956.

Appellants complain of the action of the District Court
in making' its injunction effective in September, 1956. W e 
submit that it was eminently correct in so doing*.

The basis for the action of the Court in this connection is 
well stated in its opinion (Appellants’ App. 22) :

“ It only remains to be determined as to the time when 
an injunction restraining defendants from maintaining 
segregated schools shall become effective. The original 
decision of the Supreme Court was over two years 
ago. Its supplementary opinion directing that a prompt 
and reasonable start be made toward desegregation 
was handed down fourteen months ago. Defendants 
admit that they have taken no steps toward compliance 
with the ruling of the Supreme Court. They have not 
requested that the effective date of any action taken by 
this court be deferred to some future time or some 
future school year. They have not asked for any ex­
tension of time within which to embark on a program 
of desegregation. On the contrary the defense has been 
one of seeking to avoid any integration of the schools 
in either the near or distant future. They have given 
no evidence o f any willingness to comply with the rul­
ing of the Supreme Court at any time. In view of all 
these circumstances it is not seen where any good can 
be accomplished by deferring the effective date o f the 
court’s decree beyond the beginning of the school



session opening this Autumn. Even though the time be 
limited it is not impossible that, at the school session 
opening in September of this year, a reasonable start 
be made toward complying with the decision of the 
Supreme Court.”

Although in Brown v. Board of Education, !349 U. S. 294 
(1955), the Supreme Court recognized that “ full implemen­
tation of these constitutional principles may require solution 
o f varied school problems” , it emphasized that the process 
of solution of these problems must not diminish the con­
stitutional rights involved. It said (Id. at 300) :

“ While giving weight to these public and private con­
siderations, the courts will require that the defendants 
make a prompt and reasonable start toward full com­
pliance with our May 17, 1954, ruling. Once such a 
start has been made, the courts may find that additional 
time is necessary to carry out the ruling in an effective 
manner. The burden rests upon the defendants to es­
tablish that such time is necessary in the public interest 
and is consistent with good faith compliance at the 
earliest practicable date.”

W e submit that the District Court might properly in the 
circumstances of this case specify an effective date for the 
operation of its decree. See McSwain v. County Board of 
Education, 138 F. Supp. 570 (E. D. Tenn. 1956); Clemons 
v. Board of Education, (S. D. Ohio, April 11, 1956, No. 
3440); Shedd v. Board of Education, (S. D. W . Va., April 
11, 1956, No. 833).



[ 12 ]

CONCLUSION

For the reasons stated herein, it is respectfully submitted 
that the judgment appealed from should be affirmed.

Respectfully submitted,

O liver  W . H il l  
M a r t in  A. M a r t in  
118 East Leigh Street 
Richmond, Virginia

S pottswood W . R o b in so n , II I , 
623 North Third Street 
Richmond, Virginia

R oland  D. E a le y  
420 North First Street 
Richmond, Virginia

S. W. T u ck er  
111 East Atlantic 
Emporia, Virginia

Counsel for Appellees



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