Wheeler v. Durham City Board of Education Appellee's Brief and Appendix

    in The

United States Court of Appeals
For The Fourth Circuit 

No. 8643

WARREN H. WHEELER, an infant, et a!.,
Appellants,

—  V.
DURHAM C ITY  BOARD OF EDUCATION, etc.,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OF NORTH 

CAROLINA DURHAM DIVISION

APPELLEE'S BRIEF AND APPENDIX

Marshall T. Spears 
1 I 1 Corcoran Street 
Durham, North Carolina 

(Spears & Spears 
111 Corcoran Street 
Durham, North Carolina) 

Attorneys for Appellee



INDEX
PAGE

Statement of Case .........................................................................  1

Points Involved .................... 1............................................................ 3

Statement of Facts ........................................................................ 3

Argument ...........................................................................................  7
I. Did the minor plaintiffs who did not attend either 

of the Board’s hearings, or who were not rep­
resented by one of their parents or persons stand­
ing in loco parentis, exhaust their administrative 
remedies prior to the commencement of these 
actions? .................................................................................  7

II. The District Court was not in error in entering
judgment dismissing these actions ...................................  10

Conclusion ..........................................................................................  15

APPENDIX
A. North Carolina Assignment and Enrollment of

Pupils Act, Article 21 ................................. ............ 38, 19, 20

B. Supplemental Motion of the Defendants to Dis­
miss This Action .................................................... |......  21, 22

C. Order dismissing the actions as to the Members 
of the Durham City Board of Education and Lew 
W. Hannen, Superintendent of the Durham City 
Schools, in their individual and their official
capacities ...............................................................................  23

D. Excerpts from Transcript, December 21, 1960,
Lew Hannen—For Defendant—Direct .........................  24, 25

E. Supplemental Opinion and Judgment of His 
Honor Edwin M. Stanley, Chief Judge, filed
April 11, 1962 ................................. .................................. 26-35

i



TABLE OF CASES
PAGE

Briggs v. Elliott, 132 P. Supp. 776 (E.D.S.C., 1955) ....................  14, 15

Carson v. Board of Education of McDowell County,
4 Cir., 227 F. 2d 789 (1955) .....................................................  9, io

Carson v. Warliek, 4 Cir., 238 F. 2d 664 (1956) ...........................  9, 12

Covington v. Edwards, 165 F. Supp. 957 (1958),
affirmed 4 Cir., 264 F. 2d 780 (1959) .......................................  9, 12

Holt v. Raleigh City Board of Education, 164 F. Supp.
863 (E.D.N.C., 1958), affirmed 4th Cir., 265 F.
2d 95 (1959) ........................................................................  7, 9) 13

Joyner v. McDowell County Board of Education,
244 N. C. 164, 92 S. E. 2d 795 .................................................. 11, 12

McKissick v. Durham County Board of Education,
176 F. Supp. 3 (M.D.N.C., 1959) ............................................  9, 13

Thompson v. County School Board of Arlington Co.,
144 F. Supp. 239 (E. D. Va„ 1956) .......................................  14, 15

STATUTES
North Carolina General Statutes, Secs. 115-176, 177, 178..........8, 9, 10

ii



In The

United States Court of Appeals
For The Fourth Circuit

No. 8643

WARREN H. WHEELER, an infant, et al.,
Appellants,

—  V. —
DURHAM C ITY BOARD OF EDUCATION, etc.,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OF NORTH 

CAROLINA DURHAM DIVISION

APPELLEE'S BRIEF AND APPENDIX

STATEMENT OF THE CASE

These cases, Wheeler et als v. Durham City Board of 
Education, and Spaulding v. Durham City Board of Educa­
tion, were instituted as class actions. In paragraph II of each 
complaint it alleged that, “The plaintiffs bring this action on 
their own behalf and on behalf of all others similarly situat­
ed, . .  . there are common questions of law and fact affecting 
the rights of all other Negro children eligible to attend the 
public schools of the City of Durham, North Carolina, and



2

their respective parents and guardians, who are so numerous 
as to make it impracticable to bring all before the Court. A 
common relief is sought. The interests of said class are 
adequately represented by plaintiffs.” (Appellants’ Appendix, 
p. 9a and p. 39a.)

The plaintiffs allege in the complaints that each plaintiff 
was assigned to a certain school by the defendant Durham 
City Board of Education. That in accordance with the pro­
visions of the North Carolina Assignment and Enrollment 
of Pupils Act, the plaintiffs made timely and proper applica­
tion for reassignment. That hearings were held by the de­
fendant board. That approximately eight of the plaintiffs in 
the Wheeler case received the assignment requested for the 
1959-60 school term. That the other plaintiffs were denied 
reassignment.

In paragraph VI (b) in complaint in the Wheeler case 
there is set out the names of the plaintiffs who were not 
present at the hearing held by the board on September 21, 
1959, and were not represented at the hearing by one of their 
parents. (Appellants’ Appendix, p.p. 16a-18a.)

The plaintiffs do not ask that they be reassigned to any 
particular school in the Durham City Administrative Unit. 
They in effect only seek total integration of the Durham City 
Schools and that the North Carolina Assignment and Enroll­
ment of Puplis Act, General Statutes of North Carolina, Sec­
tions 115-176 through 115-178, be declared unconstitutional. 
(Appellants’ Appendix, p.p. 19a-20a and 54a-56a.)

The defendant filed answer to each complaint. In each 
answer the defendant made motions that each action be dis­
missed for that the actions were class actions and that each 
action should be dismissed. (Appellants’ Appendix, p.p. 22a- 
24a and 35a in the Wheeler case and p.p. 60a-62a and 85a in 
the Spaulding case.)

In each answer the defendant stated that the public schools 
in the City of Durham Administrative Unit were not operated



3

on a completely segregated basis. That in the operation of the 
schools the defendant has in good faith operated the schools 
so as to best promote the orderly and efficient administration 
of the schools, the effective instruction of all pupils, and for 
the proper utilization of the physical facilities presently avail­
able. (Paragraph III of the answer in the Wheeler case. 
Appellants’ Appendix, p. 36a. Paragraph V of the answer in 
the Spaulding case. Appellants’ Appendix, p. 67a.)

In the Statement of the Case as set out in the Appellants’ 
brief p.p. 1 through 12, it is not controverted that these 
actions are class actions and that in the complaints the 
plaintiffs are not seeking reassignment to any particular 
school in the City of Durham Administrative Unit.

POINTS INVOLVED

Did the District Court commit error in entering judgment 
dismissing these actions?

STATEMENT OF FACTS

On October 4, 1960, the Court entered an order consolidat­
ing the Wheeler and Spaulding cases. (Appellants’ Appendix, 
p. 59a). On October 27, 1960, the Court entered an order dis­
missing the actions as to the individual members of the Dur­
ham City Board of Education and the Superintendent of the 
Durham City Schools. (Appellee’s Appendix C, p. 23). The 
complaint in the Wheeler case was filed on April 29, 1960, by 
118 adult plaintiffs personally and as next friend of 163 minor 
plaintiffs, on behalf of themselves and all other citizens of 
Durham, North Carolina, similarly situated. The complaint in 
the Spaulding case was filed on September 12, 1960, by 90 
adult plaintiffs personally and as next friend of 116 minor 
plaintiffs, on behalf of themselves and all other citizens of the 
City of Durham, North Carolina, similarly situated. The 
Wheeler case relates to the 1959-1960 school year, the Spauld­
ing case relates to the 1960-1961 school year. Many of the 
plaintiffs in the Wheeler case are also plaintiffs in the 
Spaulding case.



4

That the defendant operates and maintains:

(a) Two high schools in the City of Durham, namely: 
Durham High School and Hillside High School. Durham 
High School is located in the northwest area of the City and 
Hillside High School in the southern area of the City.

(b) Pour junior high schools, namely: Brogden Junior 
High School, located in the northern area of the city; Carr 
Junior High School located in the northwest area of the city; 
East Durham Junior High School, located in the eastern 
area of the city, and Whitted Junior High School, located in 
the southern area of the city.

(c) Seventeen elementary schools, namely: Club Boule­
vard Elementary School, located in the northeast area of the 
city; Edgemont Elementary School, located in the eastern 
area of the city; Fuller Elementary School, located in the 
central area of the city; Holloway Street Elementary School, 
located in the eastern area of the city; Morehead Elementary 
School, located in the southern area of the city; North Dur­
ham Elementary School, located in the north-central area of 
the city; E. K. Powe Elementary School, located in the north­
west area of the city; Y. E. Smith Elementary School, located 
in the northeast area of the city; Southside Elementary 
School, located in the western area of the city; George W. 
Watts Elementary School, located in the north-central area 
of the city; Burton Elementary School, located in the south­
east area of the city; Crest Street Elementary School, located 
in the northwest area of the city; East End Elementary 
School, located in the northeast area of the city; Lyon Park 
Elementary School, located in the southwest area of the city; 
W. G. Pearson Elementary School, located in the southeast 
area of the city; C. C. Spaulding Elementary School, located 
in the southern area of the city; and Walltown Elementary 
School, located in the north-central area of the city. (Ap­
pellants’ Appendix, p.p. 270a-271a).

On December 1, 1960, Durham High School was overcrowd­
ed 16.2 per cent; Carr Junior High School was overcrowded



5

14 per cent; East. Durham Junior High School was overcrowd­
ed 7.3 per cent; Morehead Elementary School was overcrowd­
ed 11 per cent; Hillside High School was overcrowded 12 per 
cent; Whitted Junior High School was overcrowded 18.3 per 
cent; Burton Elementary School was overcrowded 12.2 per 
cent; W. G. Pearson Elementary School was overcrowded 19.5 
per cent and C. C. Spaulding Elementary School was over­
crowded 18.2 per cent. Durham High School and Hillside 
High School are presently being enlarged, and it is anticipat­
ed that the overcrowded conditions will be alleviated to some 
extent by the commencement of the 1961-1962 school term. 
(Appellants’ Appendix, p.p. 281a-282a).

That the cases were tried in December, 1960. Thereafter, 
his Honor Edwin M. Stanley, Chief Judge, made certain find­
ings of fact, conclusions of law and rendered an opinion. (Ap­
pellants’ Appendix, p.p. 268a-295a). The Court in its con­
clusions of law (Appellants’ Appendix, pg. 293a) held that 
the minor plaintiffs who did not attend either of the Board 
hearings, or who were not represented by one of their 
parents, or a person standing in loco parentis, did not ex­
haust their administrative remedies prior to the commence­
ment of these actions, and therefore are entitled to no re­
lief. The Court also in its conclusion of law held that the ap­
plications of each of the minor plaintiffs who exhausted their 
administrative remedies prior to the commencement of these 
actions are remanded to the defendant, the Durham City 
Board of Education, with certain directions. The Board was 
directed to meet and give separate consideration to the ap­
plication for reassignment to each of the minor plaintiffs who 
had exhausted his or her administrative remedies prior to 
the commencement of these actions and to file with the Court 
a report showing the action taken with respect to each of said 
applications. (Appellants’ Appendix, p. 294a).

In compliance with the directions of the Court, the Durham 
City Board of Education filed its Report on August 21, 1961. 
(Appellants’ Appendix, p.p. 298a- , )

In its report it was set out that during a special meeting



8

held on Thursday, July 7, 1961, the Board adopted the follow­
ing resolutions:

(a) That the future use of dual attendance area maps 
be discontinued effective immediately.

(b) That in the assignment and enrollment of pupils 
under and pursuant to the provisions of Section 115-176 
of the General Statutes of North Carolina, and in the 
consideration of applications for reassignment under and 
pursuant to Section 115-178 of the General Statutes of 
North Carolina, the following criteria and standards 
shall be used in the future:

(1) The relation of residence location of the pupils 
to the school to which the pupil will be assigned or 
seeks reassignment to another school;

(2) The proper and most effective utilization of the 
physical facilities available and the teacher load in 
the school as well as the total enrollment in the school;

(3) Academic preparedness and past achievement 
of the pupil;

(4) Factors involving the health and well-being of 
the pupil;

(5) Physical handicapped pupils;

(6) Bona fide residence in the administrative school 
unit;

(7) Morals, conduct, deportment and attendance 
record of pupil seeking assignment or reassignment;

(8) Efficient administration of the schools so as to 
provide for the effective instruction, health, safety and 
general welfare of the pupil.

At any hearing on an appeal for reassignment of a 
pupil, unless the pupil or one of his or her parents or 
a person standing in loco parentis is present in person, 
the appeal will not be considered and it shall be con­
clusively presumed to have been abandoned and with­



7

drawn. (Supplemental Opinion of the Court, Addition­
al Findings of Fact, Nos. 1, 2 and 3, Appellee’s Appen­
dix E, p.p. 27-29).

In the report the Board stated that it gave separate and 
individual consideration to the application for reassignment 
of each of the minor plaintiffs who in the Court’s Findings of 
Fact Nos. 31 and 32 had exhausted his or her administrative 
remedies prior to the institution of these actions. As request­
ed by the Court, the Board gave its reasons why the applica­
tion was granted or denied for each minor plaintiff, who, in 
the Court’s Findings of Fact, had exhausted his or her ad­
ministrative remedies prior to the institution of these actions. 
(Appellants’ Appendix, p.p. 301a-324a).

On April 11, 1962, His Honor Edwin M. Stanley, Chief 
Judge, filed a supplemental opinion in which there is set out 
additional Findings of Fact and Conclusions of Law. Judg­
ment was entered that the plaintiffs be denied the relief 
prayed for, and that the complaints be and the same are dis­
missed. (Appellee’s Appendix E, p.p. 26-35).

ARGUMENT

Did the minor plaintiffs who did not attend either of the 
Board’s hearings, or who were not represented by one of their 
parents or persons standing in loco parentis, exhaust their 
administrative remedies prior to the commencement of these 
actions?

In the Court’s Findings of Fact, Conclusions of Law, and 
Opinion, filed July 20, 1961, it is stated:

“Except in one or two instances, there was no attempt 
to explain the absence of the 63 adult plaintiffs and 50 
minor plaintiffs at the hearings held in connection with 
the applicants in the Wheeler case, or the absence of 35 
adult plaintiffs and 75 minor plaintiffs at the hearings 
held in connection with the applicants in the Spaulding 
case. The fact that they were represented by counsel is 
not sufficient. Holt v. Raleigh City Board of Education,



8

supra. It is also significant that at the hearings conduct­
ed on September 21, 1959, in connection with the appli­
cants in the Wheeler case, the chairman of the defendant 
Board stated that at least one of the parents of each 
minor child should be present, and that it was not 
enough for the parents to be represented by counsel. The 
same attorneys appeared for the plaintiffs in both cases 
and, as earlier noted, some of the plaintiffs in the Wheel­
er case are also plaintiffs in the Spaulding case.” (Ap­
pellants’ Appendix, p.p. 287a).

In the Court’s Conclusions of Law, it was stated in para­
graph three thereof:

“The minor plaintiffs who did not attend either of the 
board hearings, or who were not represented by one of 
their parents, or persons standing in loco parentis, did 
not exhaust their administrative remedies prior to the 
commencement of these actions, and are, therefore, en­
titled to no relief.” (Appellants’ Appendix, p. 293a).

The authority to provide for the assignment and enroll­
ment of pupils in the public schools in the State of North 
Carolina is conferred upon County and City Boards of Ed­
ucation by the General Statutes of North Carolina 1957 
Cumulative Supplement, Chapter 115, Article 21, Section 
115-176 to 115-179. Section 115-178 relating to reassignment 
of pupils is as follows:

“The parent or guardian of any child, or the person 
standing in loco parentis to any child, who is dissatisfied 
with the assignment made by a board of education may, 
within ten (10) days after notification of the assignment, 
or the last publication 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 educa­
tion pursuant to rules and regulations adopted by the 
board of education. If the application for reassignment is 
disapproved, the board of education shall give notice to 
the applicant by registered mail, and the applicant may 
within five (5) days after receipt of such notice apply to 
the board for a hearing, and shall be entitled to a prompt 
and fair hearing on the question of reassignment of such 
child to a different school. A majority of the board shall 
be a quorum for the purpose of holding such hearing and



9

passing upon application for reassignment, and the de­
cision of a majority of the members present at the hear­
ing shall be the decision of the board. If, at the hearing, 
the_ board shall find that the child is entitled to be re­
assigned to such school, or if 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 re­
assigned 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.” (Appellee’s Appendix E, p. 19).

The North Carolina Assignment and Enrollment of Pupils 
Act has been declared constitutional on its face. Carson v. 
Warlick, 4th Cir. 238 F. 2d, 724 (1956), certiorari denied 353 
U. S. 910, 77 S. Ct. 665. Any rights that the plaintiffs may 
have should be sought under said Act. The Act provides an 
administrative remedy for the plaintiffs.

In Holt v. Raleigh City Board of Education, 164 F. Supp. 
863 (E. D. N. C., 1958) affirmed 4 Cir., 265 F. 2d 95 (1959), 
cert. den. 361 U. S. 818, 80 S. Ct. 59, 4 L. Ed. 2d 63 (1959), and 
in McKissick v. Durham City Board of Education, 176 F. 
Supp. 3 (M. D. N. C., 1959), it was held that a plaintiff or 
plaintiffs must exhaust his administrative remedies as set out 
in the North Carolina Assignment and Enrollment of Pupils 
Act prior to instituting an action. In the McKissick case, 
supra, it was stated:

“ It has been repeatedly held by this court and the 
Court of Appeals for the Fourth Circuit that the ad­
ministrative remedies provided under the North Carolina 
Assignment and Enrollment of Pupils Act must be ex­
hausted before the courts of the United States will grant 
injunctive relief in suits of this type, and that such 
rights must be asserted as individuals, not as a class or 
group. Carson v. Board of Education of McDowell Coun­
ty, 4 Cir., 227 F. 2d 789 (1955); Carson v. Warlick, 4 Cir., 
238 F. 2d 724 (1956), cert, den., 353 U. S. 910, 77 S. Ct. 
665, 1 L. Ed. 2d 664; Covington v. Edwards, 165 F. Supp. 
957 (1958), aff’d., Cir. 4, 264 F. 2d 780 (1959); and Holt



10

v. Raleigh City Board of Education, 164 F. Supp. 863 (E. 
D. N. C„ 1958), aff’d., 4 Cir., 265 F. 2d 95 (1959).”

It is submitted that the minor plaintiffs who did not attend 
either the Board hearings, or who were not represented by 
one of their parents, or persons standing in loco parentis, did 
not exhaust their administrative remedies prior to the com­
mencement of these actions, and are, therefore, entitled to no 
relief. The District Court was not in error in holding as a 
matter of law that the said plaintiffs had failed to exhaust 
their administrative remedies.

I I .

The District Court was not in error in entering judgment 
dismissing these actions.

A.

The North Carolina Assignment and Enrollment of Pupils 
Act, General Statutes of North Carolina, Section 115-176 to 
115-179, has been declared by this Court to be constitutional 
on its face. Carson v. Board of Education of McDowell Coun­
ty, 4 Cir. 238 F. 2d 724 (1956), certiorari denied 353 U. S. 
910, 77 S. Ct. 665, 1 L. Ed. 2d 664.

B.

The Wheeler case and the Spaulding case were each in­
stituted as class actions. It is so stated in paragraph II of 
each complaint. A common relief is sought not only for the 
minor plaintiffs in each case but for the rights of all Negro 
children eligible to attend the public schools of the City of 
Durham and their respective parents and guardians. (Ap­
pellants’ Appendix, p. 9a and p. 39a).

In the plaintiffs’ brief on page 2 it is said:

“Thereafter, this suit for injunction was filed as a class 
action..........”



11

In each complaint the plaintiffs do not ask that any minor 
plaintiff be reassigned to any particular school in the Durham 
City Administrative School Unit. It is apparent from the com­
plaints and the relief asked, that they are seeking total in­
tegration of the Durham City Schools and that the North 
Carolina Assignment and Enrollment of Pupils Act, General 
Statutes of North Carolina, Sections 115-176 through 115-178, 
be declared unconstitutional.

The defendant in its answer to each complaint moved the 
Court to dismiss each action not only for the reason that they 
were class actions, but also for the reason that in each com­
plaint the individual minor plaintiff did not ask to be re­
assigned to any particular school in the Durham City Ad­
ministrative Unit.

In the case of Joyner v. McDowell County Board of Educa­
tion, 244 N. C. 164, 92 S. E. 2d 795, 798, the Court said:

“With respect to the provisions of G.S. 115-178, this 
Court construes them to authorize the parent to apply 
to the appropriate public school official for the enroll­
ment of his child or children by name in any public 
school within the county or city administrative unit in 
which such child or children reside. But such parent is 
not authorized to apply for admission of any child or 
children other than his own unless he is the guardian 
of such child or children or stands in loco parentis to 
such child or children. In the event a parent, guardian or 
one standing in loco parentis of several children should 
apply for their admission to a particular school, it is 
quite possible that by reason of the difference in the ages 
of the children, the grades previously completed, the 
teacher load in the grades involved, etc., the school of­
ficial might admit one or more of the children, and re­
ject the others. The factors involved necessitate the con­
sideration of the application of any child or children in­
dividually and not en m asse.........

“Therefore, this Court holds that an appeal to the 
superior court from the denial of an application made by 
any parent, guardian or person standing in loco parentis 
to any child or children for the admission of such child 
or children to a particular school, must be prosecuted in



12

behalf of the child or children by the interested parent, 
guardian or person standing in loco parentis to such 
child or children respectively and not collectively.........”

In Carson v. Warlick, 4 Cir., 238 F. 2d 724 (1956), cert, 
denied 353 U. S. 910, 77 S. Ct. 665, 1 L. Ed. 2d 664, Parker, 
Chief Judge, referred to the case of Joyner v. McDowell Coun­
ty Board of Education, supra, and quoted at length from the 
Court’s opinion construing the provisions of G. S. 115-178. In 
the Carson case on page 729, Judge Parker said:

“There is no question as to the right of these school 
children to be admitted to the schools of North Carolina 
without discrimination on the ground of race. They are 
admitted, however, as individuals, not as a class or group; 
and it is as individuals that their rights under the Con­
stitution are asserted. Henderson v. United States, 339 
U. S. 816, 824, 70 S. Ct. 843, 94 L. Ed. 1302. It is the state 
school authorities who must pass in the first instance 
on their right to be admitted to any particular school 
and the Supreme Court of North Carolina has ruled that 
in the performance of this duty the school board must 
pass upon individual applications made individually to 
the board. The federal courts should not condone dilatory 
tactics or evasion on the part of state officials in accord­
ing to citizens of the United States their rights under 
the Constitution, whether with respect to school attend­
ance or any other matter; hut it is for the state to pres­
cribe the administrative procedure to be followed so long 
as this does not violate constitutional requirements, and 
we see no such violation in the procedure here required.” 
(Emphasis added).

In the Court’s Findings of Fact, Conclusions of Law, and 
Opinion, filed July 20, 1961, it is stated:

“The fact that administrative remedies provided under 
the state statutes, if fairly administered, must be ex­
hausted before courts of the United States will grant in­
junctive relief in suits of this type, and the fact that such 
rights must be asserted as individuals, and not as a class 
or group, is no longer subject to debate. Carson v. Board 
of . Education of McDowell County, 4 Cir., 227 F. 2d 789 
(1955); Carson v. Warlick,. 4 Cir., 238 F. 2d 724 (1956), 
cert. den.. 353 U. S. 910, 77 S. Ct. 665, 1 L. Ed. 2d 664; 
Covington v. Edwards, 165 F. Supp. 957 (1958), affirmed



13

4 Cir., 264 F. 2d 780 (1959); Holt v. Raleigh City Board 
of Education, 164 F. Supp. 863 (E. D. N. C., 1958) affirm­
ed 4 Cir., 265 F. 2d 95 (1959), cert. den. 361 U. S. 818, 
80 S. Ct. 59, 4 L. Ed. 2d 63 (1959); McKissick v. Durham 
City Board of Education, 176 F. Supp. 3 (M. D. N. C., 
1959). It should be emphasized that we are not dealing 
with a situation where a school board had a fixed policy 
to maintain a pattern of total segregation in its school 
system, thereby relieving the plaintiffs of the require­
ment of the doing of a vain thing as a condition of relief. 
In advance of the hearings conducted on September 21, 
1959, the defendant had desegregated the Durham High 
School, Brogden Junior High School and Carr Junior 
High School, and in advance of the hearings held on 
September 12, 1960, additional Negro students had been 
assigned to each of these previously all white schools.

“Except in one or two instances, there was no attempt 
to explain the absence of the 63 adult plaintiffs and 50 
minor plaintiffs at the hearings held in connection with 
the applicants in the Wheeler case, or the absence of 35 
adult plaintiffs and 75 minor plaintiffs at the hearings 
held in connection with the applicants in the Spaulding 
case. The fact that they were represented by counsel 
is not sufficient. Holt v. Raleigh City Board of Education, 
supra. It is also significant that at the hearings conduct­
ed on September 21, 1959, in connection with the ap­
plicants in the Wheeler case, the chairman of the de­
fendant Board stated that at least one of the parents of 
each minor child should be present, and that it was not 
enough for the parents to be represented by counsel. The 
same attorneys appeared for the plaintiffs in both cases 
and, as earlier noted, some of the plaintiffs in the Wheel­
er case are also plaintiffs in the Spaulding case.

“The applications for reassignment filed on behalf of 
the minor plaintiffs in both the Wheeler and Spaulding 
cases gave little information, other than the desire to at­
tend an integrated school, as to why reassignment was 
requested. It was indicated in some instances that the 
school to which reassignment was sought was closer to 
the home of the applicant than the school to which as­
signed, but relative distances were not given. It is ap­
parent that most of the plaintiffs in both cases were seek­
ing a totally integrated school system rather than re­
assignment to any particular school. As has been re­
peatedly stated, the Constitution of the United States



14

does not require integration, but merely forbids dis- 
criminaion. Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. 
C. 1955), and Thompson v. County School Board of 
Arlington County, 144 F. Supp. 239 (E. D. Va. 1956) 
.........” (Appellants’ Appendix, p.p. 286a-288a).

In the complaints in these actions it is not alleged that the 
minor plaintiffs desired to be reassigned to a different school 
because of any difference in the curriculum in the various 
city schools. On the contrary, it affirmatively appears that 
during the hearing of these cases by the Court on December 
21, 1960, Mr. Lew W. Hannen, Superintendent of the Dur­
ham City Administrative Unit, testified that the curriculum 
of the Durham High School and Hillside High School were 
for all practical purposes the same. He also stated that the 
curriculum in the four Junior High Schools and the seven­
teen Elementary Schools throughout the city were the same. 
(Appellee’s Appendix D, p.p. 24-25).

In the defendant’s report to the Court it was stated that in 
a special meeting held by the Board on July 27, 1961, the 
Board adopted a resolution that the future use of dual at­
tendance area maps be discontinued effective immediately. 
(Appellants’ Appendix, p. 299a).

It was also reported to the Court that on July 27, 1961, the 
Board had adopted a resolution setting forth certain criteria 
and standards to be used in the future. (Appellants’ Appen­
dix, p.p. 299a-300a).

The Board also reported to the Court that at the special 
meetings held on July 27 and July 31, 1961, the Board gave 
separate and individual consideration to the application for 
reassignment of each of the minor plaintiffs who in the 
Court’s Findings of Facts, Nos. 31 and 32, had exhausted his 
or her administrative remedies prior to the institution of 
these actions. In the report the Board set out in detail its 
reasons for granting or denying the applications of each of 
the minor plaintiffs who had exhausted his or her admini­
strative remedies prior to the institution of these actions. It



15

is respectfully submitted that the information given in the 
report with respect to the relative distances the minor plain­
tiffs lived from the schools they were attending and the 
school they were seeking to enter, the academic preparedness 
and achievement records of the minor plaintiffs, the over­
crowded conditions in the various schools in the Durham 
City School System and other pertinent factors stand un­
challenged.

It is again submitted that the Durham City Schools are not 
operated and maintained on a totally segregated basis. The 
Board has from time to time voluntarily and without any 
Court order assigned Negro children to schools previously 
attended solely by white students.

It is again submitted that in these actions the plaintiffs are 
not seeking to be assigned to any particular school in the 
Durham School System but want nothing more or less than 
total desegregation. As has been repeatedly stated, the Con­
stitution of the United States does not require integration, 
but merely forbids discrimination. Briggs v. Elliott, 132 P. 
Supp. 776 (E. D. S. C. 1955), and Thompson v. County School 
Board of Arlington County, 144 F. Supp. 239 (E. D. Va., 1956).

In their brief the plaintiffs have cited a number of cases 
from other Circuit Courts. It is respectfully submitted that 
the cases cited in the Opinion and Supplemenal Opinion of 
the District Court are ample authority to sustain the judg­
ment of the Court in dismissing these actions.

CONCLUSION

These actions cannot be maintained by the plaintiffs as 
class actions. The plaintiffs are not asking or seeking to be 
reassigned to any particular school in the Durham City 
School System. They are endeavoring to ignore completely 
the North Carolina Assignment and Enrollment of Pupils 
Act. This Court has held that the said Act is not uncon­
stitutional. As stated in the Opinion of His Honor Edwin M. 
Stanley, Chief Judge, the plaintiffs are seeking nothing more



16

or less than total desegregation of the Durham City Schools. 
Since the minor plaintiffs have clearly demonstrated that 
they are not interested in the protection of their individual 
rights under the Constitution of the United Sates, and do not 
desire that their individual rights be determined and en­
forced, the District Court was left no alternative other than 
to dismiss the actions.

WHEREFORE, the defendant prays the Court to affirm 
the judgment of the District Court.

Respectfully submitted, 
Marshall T. Spears

Marshall T. Spears 
111 Corcoran Street 
Durham, North Carolina 

(Spears & Spears 
111 Corcoran Street 
Durham, North Carolina) 

Attorneys for Appellee



A P P E N D I X



18

NORTH CAROLINA ASSIGNMENT AND 
ENROLLMENT OF PUPILS ACT

ARTICLE 21

Sec. 115-176. Authority to provide for assignment and en­
rollment 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 matter of assignment of chil­
dren 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 be­
tween the boards of education of the administrative units 
involved and entered 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 appropriate board of education. In ex­
ercising 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 provide for the 
effective instruction, health, safety, and general welfare of 
the pupils. Each board of education may adopt such reason­
able rules and regulations as in the opinion of the board are 
necessary in the administration of this article.

Sec. 115-177. Methods of giving notice in making assign­
ments of pupils.— In exercising the authority conferred by 
Sec. 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

APPENDIX A



19

notice by any other feasible means, to the parent or guardian 
of each child or the person standing in loco parentis to the 
child, or may give notice of assignment of groups or cate­
gories of pupils by publication at least two times in some 
newspaper having general circulation in the administrative 
unit.

Sec. 115-178. Application for reassignment; notice of dis­
approval; hearing before board.—The parent or guardian of 
any child, or the person standing in loco parentis to any 
child, who is dissatisfied with the assignment made by a 
board of education may, within ten (10) days after notifi­
cation of the assignment, or the last publication thereof, 
apply in writing to the board of education for the reassign­
ment 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. If the application for reassignment 
is disapproved, the board of education shall give notice to 
the applicant by registered mail, and the applicant may with­
in five (5) days after receipt of such notice apply to the board 
for a hearing, and shall be entitled to a prompt and fair hear­
ing on the question of reassignment of such child to a dif­
ferent school. A majority of the board shall be a quorum for 
the purpose of holding such hearing and passing upon appli­
cation for reassignment, and the decision of a majority of 
the members present at the hearing shall be the decision of 
the board. If, at the hearing, the board shall find that the 
child is entitled to be reassigned to such school, or if 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.

Sec. 115-179. Appeal from decision of board.—Any person



20

aggrieved 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 school unit or 
some part thereof is located. Upon such appeal, the matter 
shall be heard de novo in the superior court before a jury 
in the same manner as civil actions are tried and disposed 
of therein. The record on appeal to the superior court shall 
consist of a true copy of the application and decision of the 
board, duly certified by the secretary of such board. If 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 ad­
mitted to such school by the county or city board of educa­
tion 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 judgments of such court in civil 
actions.



21

SUPPLEMENTAL MOTION OF THE DEFENDANTS 
TO DISMISS THIS ACTION

The defendants, pursuant to leave of the Court, now file 
this Supplemental Motion to have this action dismissed, and 
respectfully show unto the Court:

1. That during a hearing held on August 17, 1960, before 
His Honor Edwin M. Stanley, United States District Judge, 
the Court made inquiry of the attorneys for the plaintiffs as 
to the theory of this action, namely: (a) Whether it was a 
Class Action instituted by the plaintiffs in their own behalf 
and on behalf of others similarly situated, or (b) Whether 
it was an action under the North Carolina Assignment and 
Enrollment Act (Session Laws 1955, Chapter 366, and Extra 
Session Laws 1956, Chapter 7; General Statutes of North 
Carolina, Sections 115-176-179) to seek to have the minor 
plaintiffs admitted to and enrolled as pupils in a certain 
school or schools in the City of Durham Administrative Unit 
other than the school to which they had been assigned. The 
Court further stated that unless the plaintiffs made a motion 
for leave to file amended pleadings prior to September, 1960, 
the attorneys for the plaintiffs were to notify the attorneys 
for the defendants not later than Sepember 15, 1960, the 
theory of the plaintiffs case. The Court further stated that 
the defendants were permitted to make any motion they 
might deem appropriate.

2. That on September 14, 1960, Mr. C. 0. Pearson, Of 
Counsel for the plaintiffs, wrote a letter to Marshall T. 
Spears, Attorney for the defendants, (with a copy thereof 
to His Honor Edwin M. Stanley) and in said letter it was 
stated:

“ I have conferred with my associates in the above 
case relative to whether or not the pleadings will 
be amended as suggested by the Court. After con­
ferring with Mr. Jack Greenberg, I have been in­
structed to advise you that we will stand on the 
pleadings as they are.”

APPENDIX B



22

3. That it appears from the face of the complaint that this 
action is a Class Action instituted by the plaintiffs on their 
own behalf and on behalf of all others similarly situated. 
That the plaintiffs’ prayer for relief is not limited to the 
individual minor plaintiffs but to all others as a Class and 
who are not parties to this action. That in the complaint filed 
in this action the parents of the minor plaintiffs do not seek 
or ask that their child or children be enrolled in or assigned 
to any particular school in the City of Durham Administra­
tive School Unit under and pursuant to the Assignment and 
Enrollment of Pupils Act of the State of North Carolina.

4. That the Assignment and Enrollment of Pupils Act of 
the State of North Carolina has been held to be valid and 
constitutional on its face by the United States District Court 
for the Middle District of North Carolina and the United 
States Court of Appeals for the Fourth Circuit Court with 
certiorari denied by the Supreme Court of the United States, 
and that a Class Action is not maintainable under the North 
Carolina Assignment and Enrollment of Pupils Act.

WHEREFORE, the defendants pray the Court that this 
action be dismissed.

This the 28th day of September, 1960.

Respectfully submitted,
SPEARS, SPEARS & POWE

By: / s /  Marshall T. Spears
ATTORNEYS FOR THE 
DEFENDANTS 
111 Corcoran Street 
Durham, North Carolina



23

O R D E R

THIS CAUSE coming on to be heard and being heard on 
October 4, 1960, before the undersigned Judge of the United 
States District Court, upon motion of the defendants that 
this action be dismissed as to the following defendants, 
namely: F. L. Fuller, Jr., Chairman of the Durham City 
Board of Education, R. H. Harris, George Parks, Mrs. Ruth 
F. Dailey, Herman Rhinehart and Allston J. Stubbs, indi­
vidually and as members of the Durham City Board of Edu­
cation, and Lew W. Hannen, individually and as Superin­
tendent of the Durham City Schools; and after due con­
sideration of the motion, and after hearing argument of 
the attorneys for the plaintiffs and the defendants, the 
Court stated that the defendant, the Durham City Board of 
Education, was and is a body corporate and capable of suing 
and being sued, and that the Court stated that in its opinion 
the motion to dismiss this action as to the said defendants 
in their individual and official capacities should be allowed.

IT IS NOW, THEREFORE, CONSIDERED, ORDERED 
AND ADJUDGED that this action be and the same is hereby 
dismissed as to the defendants F. L. Fuller, Jr., Chairman of 
the Durham City Board of Education, R. H. Harris, George 
Parks, Mrs. Ruth F. Dailey, Herman Rhinehart and Allston 
J. Stubbs, and Lew W. Hannen, Superintendent of the Dur­
ham City Schools, individually and in their official capacities.

ENTERED this the 27 day of October, 1960.

/ s /  EDWIN M. STANLEY
UNITED STATES DISTRICT 
JUDGE

APPENDIX C



24

EXCERPTS FROM TRANSCRIPT, DECEMBER 21, 1960 
LEW HANNEN — FOR DEFENDANT — DIRECT

Direct Examination by Mr. Spears:

Q, Mr. Hannen, just for the record, what position do you 
hold with the Durham City Board of Education? A. Secre­
tary of the Board.

Q. And what position do you hold with the School System? 
A. Superintendent of the Durham City Administrative Unit.

Q. When were you made superintendent? A. Acting super­
intendent September 1, 1957. And thereafter superintendent.

Q. Have you been superintendent since that time? A. 
That’s right.

Q. Mr. Hannen, will you state to the Court if the curricu­
lum of the Durham High School and Hillside High School 
are for all practical purposes the same? A. They are the 
same essentially now. At the Hillside High School, in addi­
tion to the courses given at Durham High School, you have 
four courses: one in practical nursing, one in brick-laying, 
one in automobile mechanics, one in tailoring; another ex­
ception might be that you have, might be if you have an 
instance in a given year in which there would be very few 
pupils elect a given course, so that it would be uneconomical 
and not feasible to teach that course, it would not be taught 
that particular year, because of not having enough registrants 
for it.

Q. Well, then, the Hillside High School has some additional 
courses that the Durham High School does not have? A. Four 
courses.

Q. Now, please state whether or not the curriculum in 
the junior high schools throughout the city are the same?

APPENDSX D



25

A. The course of study and the material taught, the text­
books, and the like, are the same in all four junior high 
schools.

Q. Now, state, please, in the 17 elementary schools 
throughout the city, the school administrative unit, the 
curriculum and course of study is the same? A. It is the 
same. It is set up by the state for all schools alike, and we 
follow the state course of study.

Q. Mr. Hannen, in reviewing the request for reassign­
ments, do you recall in any instance where any parent re­
quested reassignment because he could not, the child could 
not, get the course of study in the school to which he had 
been assigned, and desired to be reassigned to the school 
where he could get a different course of study? A. I don’t 
recall any instance of that kind, in which a pupil requested 
a specific course at the other school because he could not 
get it in the school to which he was assigned.

Q. You have just stated that the courses are the same 
throughout the whole system? A. That is correct.



26

SUPPLEMENTAL OPINION 
(Filed April 11, 1962)

EDWIN M. STANLEY, Chief Judge:

In an opinion filed in these consolidated cases on July 20, 
1961, it was found that certain of the minor plaintiffs had 
not adequately exhausted their administrative remedies un­
der state law prior to the commencement of the actions, and 
were entitled to no relief. It was further found that certain 
other minor plaintiffs had adequately exhausted their ad­
ministrative remedies prior to the institution of the actions, 
and were entitled to be admitted to the schools of their choice 
without regard to race or color.

With respect to these latter minor plaintiffs, the cases were 
remanded to the defendant Board with direction to again 
give separate and individual consideration to each applica­
tion for reassignment, and file a report with the court show­
ing the action taken. In case of any application denied, the 
Board was directed to give the reasons therefor. Additionally, 
the defendant Board was directed to report to the court the 
criteria or standard used in considering each application, any 
action taken with reference to the future use of dual attend­
ance area maps, and any action taken with reference to noti­
fying pupils and parents of initial assignments with respect 
to each school year. Any minor plaintiff dissatisfied with the 
action of the Board was given a specified time within which 
to file application with the court for a hearing. Wheeler v. 
Durham City Board of Education, 196 F. Supp. 71 (M. D. 
N. C., 1961).

On August 21, 1961, the defendant Board filed its report. 
On September 18, 1961, the minor plaintiffs who had not 
been assigned in accordance with their requests, filed ob­
jections to the report and requested the court to schedule 
a hearing to consider and determine the issues presented by 
the report and the objections thereto.

APPENDIX E



27

At a conference with the court on October 11, 1961, counsel 
stated that plaintiffs desired to proceed by way of discovery 
rather than by court hearing. It was then agreed that the 
parties would have a specified time within which to resort 
to any of the discovery procedures provided for by the Fed­
eral Rules of Civil Procedure, and a specified time there­
after in which to file requests for additional findings of fact 
and conclusions of law, and briefs.

After considering the report of the defendant Board, the 
objections thereto, the additional exhibits and depositions fil­
ed, the requests of the plaintiffs and the defendant for ad­
ditional findings of fact and conclusions of law, and briefs 
of the parties, the following additional findings of fact and 
conclusions of law are made and filed herein:

ADDITIONAL FINDINGS OF FACT

1. At the end of the 1960-61 school year, the defendant 
Board made individual assignments for the 1961-62 school 
year on the report card of each pupil actively enrolled in the 
Durham City Schools, and this practice will be continued 
in the future.

2. On July 27, 1961, the defendant Board adopted the fol­
lowing resolution and motion:

“BE IT RESOLVED:

That the future use of dual attendance area maps 
be discontinued, effective immediately.”

At the same meeting the following motion was 
adopted:

“On motion by Mr. Rhinehart, seconded by Mr. 
Harris, the Superintendent was authorized and di­
rected to make a thorough study of attendance at 
various schools in the City School District as soon 
as feasible, and to recommend to the Board the es­
tablishment of attendance areas for each school.”



28

3. At the meeting held on July 27, 1961, the defendant 
Board, after discussing the criteria and standards to be used 
in the future assignment and enrollment of pupils, and ap­
plications for reassignment, also adopted the following reso­
lution:

“BE IT RESOLVED:

That in the assignment and enrollment of pupils under 
and pursuant to the provisions of Section 115-176 of the 
General Statutes of North Carolina, and in the consider­
ation of application for reassignment under and pursuant 
to Section 115-178 of the General Statutes of North 
Carolina, the following criteria and standards shall be 
used in the future:

(1) The relation of residence location of the pupils to 
the school to which the pupil will be assigned or seeks 
reassignment to another school;

(2) The proper and most effective utilization of the 
physical facilities available and the teacher load in the 
school as well as the total enrollment in the school;

(3) Academic preparedness and past achievement of 
the pupil;

(4) Factors involving the health and well-being of the 
pupil;

(5) Physically handicapped pupils;

(6) Bona fide residence in the administration school 
unit;

(7) Morals, conduct, deportment and attendance record 
of pupil seeking assignment or reassignment; and

(8) Efficient administration of the schools so as to pro­
vide for the effective instruction, health, safety and gen­
eral welfare of the pupil.

At any hearing on an appeal for reassignment of pupil, 
unless the pupil or one of his or her parents or a person 
standing in loco parentis is present in person, the appeal



29

will not be considered, and it shall be conclusively pre­
sumed to have been abandoned and withdrawn.”

4. At meetings held on July 27 and July 31, 1961, the 
defendant Board gave separate and individual consideration 
to the applications for reassignment of each of the minor 
plaintiffs who had been found to have adequately exhausted 
their administrative remedies under state law prior to the 
institution of these actions.

5. On August 21, 1961, the defendant Board filed with the 
court a report showing the adoption of the motion and reso­
lutions referred to above, and the action taken by the Board 
on each application considered. Of the 133 applications con­
sidered, these being the minor plaintiffs named in Findings 
of Fact Nos. 31 and 32 in the opinion previously filed, 8 minor 
plaintiffs were reassigned to the schools of their choice and 
the balance were denied reassignment.

6. Various reasons were given by the defendant Board for 
denying the 125 applications for reassignment. Many were 
denied on the ground that the minor plaintiffs lived closer 
to the all-Negro schools they were then attending than the 
predominantly white schools they were seeking to enter. In 
some instances the difference was as much as 4 miles. Some 
applications were denied because the pupil lived approxi­
mately the same distance from the two schools. Several ap­
plications were denied because of the poor academic pre­
paredness and poor achievement record of the applicant, and 
still others were denied because of the overcrowded condi­
tions in the school to which transfer was sought. In a few 
instances, the applicants had either dropped out of school 
or had graduated.

7. The defendant Board has represented to the court that 
in considering each of the applications for reassignment, it 
considered the reasons given for requesting reassignment 
and applied the standards and criteria set out in the resolu­
tion adopted July 27, 1961, all without regard to the race 
of the applicant.



30
8. At the present time, there are a total of fifteen Negro 

pupils attending Durham City Schools with white students. 
Some of these Negro pupils attend the Durham High School, 
one attends the Puller Elementary School, and others are 
divided between Brogden Junior High School and Carr Junior 
High School.

9. The overcrowded conditions in many of the Durham 
City Schools still prevail. The additional classrooms for Dur­
ham High School and Hillside High School, and the new 
building for Lakewood Elementary School, will not be avail­
able for occupancy until sometime during the late spring of 
1962, or the commencement of the 1962-63 school year. For 
example, as of October 31, 1961, Durham High School was 
18.3 per cent overcrowded, and Hillside High School was 
18.1 per cent overcrowded. All of the junior high schools, 
except Brogden Junior High School, are overcrowded to 
some extent.

10. The defendant Board has not made any material 
change in its previous practice with respect to the initial 
assignments of first grade students, or in the handling of 
applications for reassignment because of change of residence, 
or in the initial assignments of elementary school graduates 
to junior high schools and junior high school graduates to 
senior high schools. Under the present arrangement, first 
grade Negro pupils are initially assigned to all-Negro elemen­
tary schools, which generally are the elementary schools 
nearest their homes; all Negro pupils graduating from ele­
mentary schools are initially assigned to Whitted Junior 
High School, which is attended solely by Negro students; 
and all Negro students graduating from the Whitted Junior 
High School are initially assigned to the Hillside High School. 
Some of the Negro students initially assigned to the Whitted 
Junior High School undoubtedly live nearer one of the junior 
high schools attended by white students, and some of the 
Negro students initially assigned to the Hillside High School 
undoubtedly live nearer Durham High School.

11. The criteria and standards adopted by the defendant



31

Board on July 27, 1961, were used for the first time in con­
sidering applications for reassignment filed on behalf of the 
minor plaintiffs who were found to have exhausted their 
administrative remedies prior to the institution of these ac­
tions. However, as earlier noted, the defendant Board has 
certified that these criteria and standards were and are used 
in considering all applications for reassignment without re­
gard to the race of the applicant.

12. The defendant Board has not yet completed the map 
showing new attendance areas for pupils attending the 
Durham City Schools. It is anticipated that this map will 
be completed by the commencement of the 1962-63 school 
year.

DISCUSSION

As stated in the earlier opinion, the applications for re­
assignment filed on behalf of the minor plaintiffs in both 
cases give little information, other than the desire to attend 
an integrated school, as to why reassignment is desired. 
Actually, the 125 minor plaintiffs who exhausted their ad­
ministrative remedies without being transferred to another 
school are still not seeking reassignment to any particular 
school, and do not even request that finding be made in 
regard thereto. All that is being sought is a declaration by 
the court that the Durham City Schools are being operated 
on a racially discriminatory basis, and injunctive relief. This 
is true notwithstanding the holding of this court in its earlier 
opinion that these actions should not be considered as class 
actions, but rather actions by multiple plaintiffs seeking to 
enforce their individual constitutional rights.

The court offered to afford a prompt hearing to any minor 
plaintiff who was dissatisfied with the action of the defendant 
Board. However, rather than seek an adjudication of their 
rights as individuals, the plaintiffs were content to rest their 
case after taking the deposition of the Superintendent of 
the Durham City Schools, which deals mainly with the 
practices of the defendant Board with respect to the initial



32

assignments of first grade students, the handling of appli­
cations for reassignment because of change of residence, and 
the initial assignments of elementary school graduates to 
junior high schools and junior high school graduates to 
senior high schools. Information given in the report sub­
mitted by the defendant Board with respect to the relative 
distances the minor plaintiffs live from the schools they 
are attending and the schools they are seeking to enter, the 
academic preparedness and achievement records of the minor 
plaintiffs, the overcrowded condition of the various schools 
in the Durham School System, and other pertinent factors, 
stand unchallenged. Actually, as earlier noted, upon their 
theory of the case, the plaintiffs do not consider these factors 
to be of any importance. They simply want nothing more or 
less than a general order of desegregation, and in seeking 
such an order they completely ignore every Federal Court 
decision construing the North Carolina Assignment and En­
rollment of Pupils Act. This is borne out by the fact that 
none of these decisions are cited by the plaintiffs, and indeed 
none could have been cited, in support of their position.

It has been repeatedly held that the constitutional rights 
of plaintiffs in suits of this type must be asserted as in­
dividuals, not as a class or group. Carson v. Board of Educa­
tion of McDowell County, 4 Cir., 227 F. 2d 789 (1955); Car- 
son v. Warlick, 4 Cir., 238 F. 2d 724 (1956), cert. den. 353 
U. S. 910, 77 S. Ct. 665, 1 L. Ed. 2d 664; Covington v. Edwards, 
165 F. Supp. 957 (1958), affirmed 4 Cir., 264 F. 2d 780 (1959), 
cert. den. 361 U. S. 840, 80 S. Ct. 78, 4 L. Ed. 2d 79; Holt v. 
Raleigh City Board of Education, 164 F. Supp. 863 (E. D. 
N. C„ 1958), affirmed 4 Cir., 265 F. 2d 95 (1959), cert. den. 
361 U. S. 818, 80 S. Ct. 4 L. Ed. 2d 63 (1959); McKissick v. 
Durham City Board of Education, 176 F. Supp. 3 (N. D. N. C., 
1959). But these cases also hold that multiple plaintiffs may 
join in the same suit, as was done here.

It should again be emphasized that we are not dealing 
with a situation where a school board has a fixed policy of 
maintaining a totally segregated school system. The de­



33

fendant Board has assigned Negro children to the Durham 
High School, Brogden Junior High School, Carr Junior High 
School, and Fuller Elementary School, all being schools pre­
viously attended solely by white students. These assignments 
have been made voluntarily, and without the compulsion of 
a court order. The dual attendance area maps, and the assign­
ment of pupils shortly before the commencement of each 
school year, practices previously condemned by the court, 
have been eliminated. Standards and criteria which are un­
objectionable on their face have been adopted to guide the 
school Board in the handling of all future applications for 
reassignment. The school Board has represented to the court 
that these standards and criteria will be applied without re­
gard to the race of the applicant. Until it can be demonstrated 
that this representation is false, there is no ground for com­
plaint.

It is likely that the court would have disagreed with the 
defendant Board with respect to the right of some of the 
minor plaintiffs to be transferred to another school, but the 
plaintiffs have steadfastly refused to give the court an op­
portunity to make such a determination. This court has never 
condoned dilatory tactics on the part of school boards or 
other public agencies with respect to the constitutional rights 
of citizens, but the fact still remains that such citizens must 
want their rights protected before courts are justified in 
intervening.

The law applicable to the factual situation here presented 
is well stated by the Court of Appeals for this Circuit in 
Covington v. Edwards, 4 Cir., 264 F. 2d 780, 783 (1959), cert, 
den. 361 U. S. 840, 80 S. Ct. 78, 4 L. Ed. 2d 79, as follows:

“We are advertent to the circumstances upon which 
the plaintiffs rest their case, namely, that the County 
Board has taken no steps to put an end to the planned 
segregation of the pupils in the public schools of the 
county but, on the contrary, in 1955 and subsequent 
years, resolved that the practices of enrollment and as­
signment of pupils for the ensuing years should be 
similar to those in use in the current year. If there were



34

no remedy for such inaction, the federal court might well 
make use of its injunctive power to enjoin the constitu­
tional rights of the plaintiffs but, as we have seen, the 
State statutes give to the parents of any child dissatisfied 
with the school to which he is assigned the right to make 
application for a transfer and the right to be heard on 
the question by the Board. If after the hearing and final 
decision he is not satisfied, and can show that he has 
been discriminated against because of his race, he may 
then apply to the federal court for relief. In the pending 
case, however, that course was not taken, although it 
was clearly outlined in our two prior decisions, and the 
decision of the District Court in dismissing the case was 
therefore correct. This conclusion does not mean that 
there must be a separate suit for each child on whose 
behalf it is claimed that an application for reassignment 
has been improperly denied. There can be no objection 
to the joining of a number of applicants in the same 
suit as has been done in other cases. The County Board 
of Education, however, is entitled under the North Caro­
lina statute to consider each application on its individual 
merits and if this is done without unnecessary delay 
and with scrupulous observance of individual consti­
tutional rights, there will be no just cause for complaint.”

Since the minor plaintiffs have clearly demonstrated that 
they are not interested in a protection of their individual 
rights under the Constitution of the United States, and do 
not desire that their individual rights be determined and 
enforced by this court, the court is left no alternative other 
than to dismiss the actions.

CONCLUSIONS OP LAW

1. The minor plaintiffs are not entitled to the relief prayed 
for.

2. The complaints in each action should be dismissed.

A judgment will be entered accordingly.

(s) EDWIN M. STANLEY 
United States District Judge

April 11, 1962



35

JUDGMENT 
(Filed: April 11, 1962)

These causes, consolidated for trial, having come on reg­
ularly to be heard by the court, and evidence having been 
taken and the said causes having been duly submitted to 
the court for its consideration and decision, and the court 
having heretofore filed its findings of fact, conclusions of 
law and opinions herein, it is, in accordance with its said 
findings of fact and conclusion of law,

ORDERED, ADJUDGED AND DECREED that the plain­
tiffs be denied the relief prayed for, and that the complaints 
be, the same are hereby, dismissed.

IT IS FURTHER ORDERED that the plaintiffs pay the 
costs. Since the actions were consolidated for trial, one half 
of the costs will be taxed against the plaintiffs in each of the 
actions.

(s) EDWIN M. STANLEY 
United States District Judge

April 11, 1962