School Board of the City of Charlottesville, Virginia v. Allen Brief on Behalf of Appellees
Public Court Documents
January 1, 1956

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Brief Collection, LDF Court Filings. School Board of the City of Charlottesville, Virginia v. Allen Brief on Behalf of Appellees, 1956. 7e6f6155-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a2cd830a-e54c-44a3-95fb-cd3b838cfd1e/school-board-of-the-city-of-charlottesville-virginia-v-allen-brief-on-behalf-of-appellees. Accessed June 17, 2025.
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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 ■