Carson v. Warlick Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    c riw a * supreme u atin , u .a .
F I L E D

F E B  2  1957

NO. 748 || JOBfl I .  FEY, Clark };

SUPREME COURT OF THE UNITED^STATES 

October Term, 1956

LION EL C. CARSON, I n f a n t , By  H is  N e x t  E rien d , M A R ­
T IN  A. CARSON, E t  A ls ., Petitioners,

versus

HONORABLE W ILSON  W ARLICK, U n it e d  S tates  D is t r ic t  
J udge for  t h e  'Western  D is tr ic t  of N o rth  Car o l in a , 
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT.

T ay lo r  and  M it c h e l l

Raleigh, North Carolina 
125 E. Hargett Street 

Of Counsel

H erm an  L .  T ay lo r  
Sa m u e l  S. M it c h e l l ,

125 E. Hargett Street 
Raleigh, North Carolina 

Counsel for Petitioners



INDEX

OPIN IO N  BELOW ........................... .............................
J U R IS D IC T IO N .... ..........................................................
QUESTIONS PR E SE N TE D .........................................
STATU TES IN V O LV E D ................................................
STATEM EN T ................................... .................................
REASONS FOR GRAN TIN G TH E W R IT ............

1. The decision of the Court below is in conflict with 
decisions of other United States Courts of Appeals

2. The decision of the Court below is in conflict with
the decision of this Court in Brown et al. vs. Board 
of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. 
ed. 653..........................................................................

3. The Court below has reached an erroneous and
monstrous conclusion by pyramiding a series of 
inapplicable and conflicting principles of federal 
law ................................................................................

4. The questions presented herein are of such great
and recurring significance in the matter of public 
school education throughout the Fourth Circuit, 
as well as throughout other Circuits, as to make 
this a case peculiarly appropriate for the exercise 
of this Court’s discretionary jurisdiction................

C O N C LU SIO N ............................................................ ......
A P P E N D IX

“ A ” : Opinion of the Court of Appeals.........................
“ B ” : Order of the Court of Appeals............................
“ C”  : Order of the District Court..................................
“ D” : North Carolina General Statutes 115-176

as amended............ ....... ..................................... .
“ E” : Opinion of North Carolina Supreme Court in 

Joyner et al. vs. McDowell County Board of
Education, 244 N.C. 164, 92 S.E. 2d 795........

“ F ” : Administrative Ruling (Communications be­
tween counsel for Petitioners and the Board 
of Education of McDowell County)................

1
2
2
3

3 thru 4 
5 thru 11

5

PAGES

6 and 7

7 thru 10

10 and 11 
11

12 thru 20 
21

22 thru 24 

25 thru 27

28 thru 34

35 and 36



ii INDEX

-PAGES

ST A T U T E S:
18 U.S.O. 242.................................................................. 10
42 U.S.C. 1983................................................................  10
28 U.S.O. 1254(1).........................................................  2
28 U.S.C. 2 1 0 1 (c ).....................................................   2
North. Carolina General Statutes:

115-176 through 115-179.............. 3, 4, 5, 6, 8, 9 and 13 thru 16
115-176 through 115-179 (amended).............. 3 and 25 thru 27

M ISCELLAN EO U S:
Federal Rules of Civil Procedure— Rule 23(a) (3).... 6
42 Am. Jur. (Public Administrative Law) Sec. 29.... 9
42 Am. Jur. (Public Administrative Law) Sec. 36.... 9

CASES:
Brown et al. vs. Board of Education,

1954—  347 U.S. 483, 74 S. Ct. 686, 98 L. ed. 873... 6 and 10
1955—  349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 653...3, 6 and 10

Brown et al. vs. Edwin L. Bippy,
(C.A., 5th) 233 E. 2d 796........................................... 5 and 10

Bush vs. Orleans Parish School Board,
U.S.D.C., La. 138 F. Supp. 336................................ 5

Carson et al. vs. Board of Education of McDowell
County, 227 E. 2d 789................................................  4 and 11

Clemons et al. vs. Board of Education of Hillsboro,
Ohio, et al. (C.A., 6th) 228 E. 2d 853......................  5 and 10

Carter et al. vs. School Board of Arlington County,
Virginia (C.C.A., 4th) 182 F. 2d 531.......................  7

Chung Yim vs. United States (C.C.A., 8th), 78 E. 2d
43, 296 U.S. 627, 56 S. Ct. 150, 80 L. ed. 446........ 9

Conally vs. General Construction Co., 269 U.S. 385,
46 S. Ct. 126, 70 L. ed. 322....................... ............... 9

County School Board of Arlington County, Virginia, 
vs. Clarissa S. Thompson et al., No. 7310 (O.A.,
4th), .....  E. 2d............................................................ 11

Drumheller vs. Local Board No. 1 et al. (O.C.A., 3rd)
130 E. 2d 610................................................................ 9



PAGES

Herbert Brewer et al. vs. Hoxie School District No.
16 (C.A., 8th), 238 F. 2d 91................................. 5 and 10

Hood vs. Board of Trustees of Sumter County School 
District No. 2, Sumter County, South Carolina,
et al. (C.A., 4th), 232 F. 2d 626.............................  U

Joyner et al. vs. Board of Education of McDowell
County, 244 H.O. 164, 92 S.E. 2d 795..................... 4 and 7

Jackson et al. vs. 0 . C. Rawdon as President of the 
Board of Trustees, Mansfield Independent School 
District, et al (C.A., 5th), Civ. Ho. 15927, 235 F.
2d 93, 1 Race Rel. L. Rep. 655..................................  5 and 10

Lane vs. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83
L. ed. 1281.,................................................................... 8

Lowell vs. Griffith, 303 U.S. 444, 58 S. Ct. 666,
82 L. ed. 949................................................................  9

Morgan vs. Tenn. Valley Authority (C.C.A., 6th),
115 F. 2d 990..........    9

Hotter vs. Derby Oil Co. (O.C.A., 8th), 16 F. 2d 717,
273 U.S. 762, 47 S. Ct. 477, 71 L. ed. 879............  9

McKissick vs. Carmichael (C.C.A., 4th), 187 F. 2d
949 ......................................................................................... 10

New Jersey State Board of Optometrists et al., 5 FT. J.
412, 75 A. 2d 867, 22 A.L.R. 2d 929.......................  9

Opp. Cotton Mills vs. Administrator of Wage and 
Hour Division of Department of Labor, 312 U.S.
126, 61 S. Ct. 524, 85 L. ed. 624................................ 8

Procter & Gamble Distributing Co. vs. Sherman et al.
(D.C., S.D .H .Y .), 2 F. 2d 165.................................. 7 and 8

Panama Refining Co. vs. Ryan, 293 U.S. 388, 55
S. Ct. 241, 79 L. ed. 446............................................. 8

People use of Moore vs. J. 0 . Beekman and Com­
pany, 347 111. 92, 179 H.E. 435............... ................ 8

Robinson et al. vs. Board of Education of St. Mary’s 
County et al. (U.S.D.O., M d.), Civil Aetion Ho.
8780, 143 F. Supp. 481............................................... 11

index  iii



iv INDEX

PAGES

School Board of the City of Charlottesville et al. vs.
Doris Marie Allen et al., No. 7303 (C.A., 4th),
......F. 2 d ........................................................................  11

United States vs. Coplan (C.A., 2nd), 185 F. 2d 629,
28 A.L.K. 2d 1041, 342 U.S. 920, 72 S. Ct. 362,
96 L. ed. 690................................................................  10

Yick Wo. vs. Hopkins, 118 U.S. 358, 30 L. ed. 356,
6 S. Ct. 1064..................................................   9



IN THE SUPREME COURT OF THE UNITED STATES

O ctober  T e r m , 1956

N o-

L io n el  C. Carson , Infant, By His Next Friend, M a r t in  A. 
Carson , E t  A l s ., Petitioners,

verms

H onorable  W ilso n  W a r l ic k , United States District Judge for 
the Western District of North Carolina, Respondent.

PETITION FOB A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

The Petitioners pray that a writ of certiorari issue to review 
the Order and Decision of the United States Court of Appeals for 
the Fourth Circuit entered in the a,hove case on November 14,1956.

OPINION BELOW

The opinion of the Court of Appeals for the Fourth Circuit,
(R., Opinion of the Court), is reported a t .....  F. 2d ......, and is
copied in the Appendix to this Petition as Appendix “ A .”  The 
Order of the District Court for the Western District of North 
Carolina is copied in the Appendix to this Petition as Appendix 
«C .”  The Administrative Ruling which precipitated the instant 
controversy is copied herein as Appendix F to this Petition.



2

JURISDICTION

The Order and Opinion of the Court of Appeals for the Fourth 
Circuit are dated November 14, 1956, and both were entered on 
the day abovementioned. Copies of both the Order and the 
Opinion of said Court are copied in the Appendix to this Petition 
as Appendix “ A ”  and “ B ”  respectively. The jurisdiction of this 
Court is invoked under 28 TT.S.C. 1254(1) and under 28 U.S.C. 
2101(c).

QUESTIONS PRESENTED

In the Court of Appeals below, petitioners sought a writ of 
mandamus, which petitioner prayed to he directed to the United 
States District Court for the Western District of North Carolina, 
under the terms of which, among other things, the District Court 
would he directed to vacate an order of stay of proceedings which 
it had entered and to proceed with petitioners’ cause as though 
petitioners had either exhausted all administrative remedies or 
had no such remedies to exhaust as a prerequisite to obtaining 
federal injunctive relief. The Court of Appeals denied the peti­
tion for writ of mandamus. The questions presented are:

1. Whether the North Carolina General Statutes 115-178 et 
seq. provide an adequate administrative remedy which petitioners 
are required to exhaust prior to seeking federal injunctive relief ?

2. Whether petitioners have in fact exhausted such adminis­
trative remedies as are applicable to them ?

3. Whether the public school authorities have a subsisting duty, 
prior to the entry of judicial decrees, to provide Negro public 
school children with public school education on a racially non- 
segregated basis ?

4. Whether the Court of Appeals should have entered a writ 
of mandamus directing the District Court to vacate its stay of 
proceedings and to proceed to judgment in petitioners’ cause?



3

STATUTES INVOLVED
The pertinent portions of North Carolina General Statutes 

115-176 through 115-179 are set forth and copied in the Appendix 
to this Petition as a footnote to the Opinion of the Court below in 
Appendix “ A.”  North Carolina General Statutes 115-176 through 
115-179, as amended July 27, 1956, during the pendency of the 
instant cause, are set forth and copied as Appendix “ D.”  How­
ever, the amendments make no changes relevant to this Petition.

STATEMENT

The instant action was filed in the United States District Court 
for the Western District of North Carolina on August 10, 1953, 
because of alleged racial segregation and discrimination in the 
matter of public education in McDowell County, North Carolina. 
Tour infant petitioners alleged that they “ are residents of and 
domiciled in and around the Town of Old Port, McDovrell County, 
North Carolina.”  Your petitioners also alleged that they were 
required by the school authorities, because of their race and color, 
to attend public school at Marion, North Carolina, which is some 
fourteen or fifteen miles away, while children of the Caucasian or 
white race, who were residents of and domiciled in and around 
the Town of Old Port, McDowell County, North Carolina, were 
provided public school education in the Town of Old Fort. Your 
petitioners also particularly alleged that the defendant County 
Board of Education maintained and operated its public school 
system “ on a separate segregated basis, with white children attend­
ing some schools exclusively, and Negro children forced to attend 
one school maintained for them exclusively.”  These allegations 
were admitted in the defendant board’s answer to the original com­
plaint, (Record, Exhibit “B,”  Pages 26 and 27).

After the 1955 decision by this Court in Brown et al. vs. Board 
of Education and allied cases, 349 U.S. 294, 75 S. Ct. 753, 99 

. L. ed. 653, the District Court presumed to dismiss your petitioners’ 
action as being moot. On appeal to the Court of Appeals for the 
Fourth Circuit the Judgment of dismissal -was vacated and the



4

cause remanded with directions, Carson et al. vs. Board of Educa­
tion of McDowell County, 227 F. 2d 789. The directions given 
to the District Court by the Court of Appeals for consideration of 
your petitioners’ cause was that the District Court “ consider it in 
the light of the decision of the Supreme Court, in the school segre­
gation case and of the North Carolina statute above mentioned and 
with power to stay proceedings therein pending the exhaustion of 
administrative remedies under the statute and to order a repleader 
if this may seem desirable,”  227 F. 2d 789, at Page 791. The 
“ statute” mentioned in the Court of Appeals’ directions is North 
Carolina 115-178 et seq. which appears in the Appendix to this 
Petition as Appendix “ D .”

On the 26th day of July, 1956, when the instant cause was 
before the District Court on motion for leave to file supplemental 
pleading, the District Court entered a stay of proceeding, holding 
that your petitioners had not exhausted administrative remedies 
under North Carolina General Statutes 115-178 et seq. Shortly 
thereafterwards, to wit, on the 15th day of August, 1956, your 
petitioners filed a petition in the Court of Appeals for the Fourth 
Circuit in which they alleged, among other things, that they were 
still aggrieved by the matters shown in their original complaint, 
that they had exhausted such administrative remedies as were 
available to them and, in the alternative, that North Carolina Gen­
eral Statutes 115-178 et seq. provided no adequate remedy for 
them, (R ., Application for Writ of Mandamus, Pages 1 to 18). 
To their petition for Writ of Mandamus your petitioners attached 
a copy of the Record in Joyner et al. vs. Board of Education of 
McDowell County, 244 N.C. 164, 92 S.E. 2d 795, in which their 
protracted but futile attempt to secure relief via North Carolina 
General Statutes 115-178 et seq. is chronicled, (R., Exhibit “ A ”  
to Application for Writ of Mandamus). See Appendix “ E ”  of 
this Petition. Upon denial of the Writ of Mandamus, your peti­
tioners now petition this Court to issue the Writ of Certiorari to 
review the Order and Decision of the United States Court of Ap­
peals for the Fourth Circuit.



5

REASONS FOR GRANTING THE WRIT
The decision below should be reviewed by this Court because 

of numerous impelling reasons, all of which are obvious from a 
reading of the text and some of which are enumerated immediately 
below:

1. The decision of the Court of Appeals for the Fourth Circuit 
has answered two important questions of federal law in a manner 
directly in conflict with decisions of the Courts of Appeals for the 
Fifth, Sixth and Eighth Circuits, viz., Broivn et al. vs. Edwin L. 
Rippy, (C.A., 5th) 233 F. 2d 796; Jackson et al. vs. 0 . G. 
Rawdon as President of the Board of Trustees, Mansfield Inde­
pendent School District, et al., (C.A. 5th) Civ. No. 15927, 235 
F. 2d 93, 1 Race Eel. L. Rep. 655; Clemons et al. vs. Board of 
Education of Hillsboro, Ohio, et al., (C.A. 6th) 228 F. 2d 853; 
Herbert Brewer et al. vs. Hoxie School District No. 46 (C.A. 8th), 
238 F. 2d 91, decided October 25, 1956. The decision below is 
grounded upon two fallacious notions: (1 ) that the doctrine of 
exhaustion of administrative remedies has the same vigor in public 
school desegregation actions as in other actions and, (2 ) that the 
school boards have no pre-existing and peremptory duty, apart, from 
and prior to the entry of judicial decrees, to provide Negro public 
school pupils with public school education on a non-segregated 
basis. In Brown et al. vs. Edwin L. Puppy, supra; Clemons et al. 
vs. Board of Education of Hillsboro, Ohio, et al., supra; and Jack- 
son et al. vs. 0 . C. Rawdon, supra, the Courts of Appeals of the 
Fifth, and Sixth Circuits have declined to give vigor or notice to 
the doctrine of exhaustion of administrative remedies, and in 
those cases, as well as in Herbert Brewer et al. vs. Hoxie School 
District No. 46, supra, the Courts of Appeals of the Fifth, Sixth 
and Eighth Circuits have recognized and applied to the factual 
situations involved a pre-existing and peremptory duty on the part 
of the defendant school boards to de-segregate the public schools in 
their charge. Again, the instant decision is diametrically in con­
flict with the well reasoned opinion of the United States District 
Court in the Fifth Circuit upon a similar set of facts. (Bush vs. 
Orleans Parish School Board, U. S. D. C,, La. 138 F. Supp. 336).



6

2. The decision of the Court of Appeals for the Fourth Circuit 
is in irreconcilable conflict with the decisions of this Court in Brown 
et al. vs. Board of Education and allied cases, 1954: 347 U.S. 483, 
74 S. Ct. 686, 98 L. ed. 873; 1955: 349 U.S. 294, 75 S. Ct. 753, 
99 L. ed. 653. In the abovementioned decisions this Court has 
(1 ) enjoined school authorities to de-segregate public schools with 
“ all deliberate speed,”  (2) sanctioned the application of class action 
under F.E.C.P., Eule 2 3 (a )(3 ), (3 ) allowed some leeway for 
statutory changes designed to solve the problems necessitated by 
the decisions in the so-called Segregation Cases and (4 ) declared 
the right of Negro complainants to be admitted “ to public schools 
as soon as practicable on a non-discriminatory basis.”  On the other 
hand and by way of contrast and distortion of the above enumerated 
principles, the opinion of the Court of Appeals for the Fourth 
Circuit has (1 ) not enjoined the school authorities to de-segregate 
with “ all deliberate speed,”  but, through the medium of a nugatory, 
wearisome and cumbersome state enacted administrative procedure, 
placed the burden of desegregating public schools upon each Negro 
child involved rather than upon school authorities, (2 ) emaciated 
the class action under F.K.C.P., Eule 2 3 (a )(3 ) by reducing the 
class in federal court- to include only those complainants who have 
personally exhausted the so-called state administrative remedies, 
(3 ) sanctioned a statutory innovation, the necessary and inevitable 
operation of which is to thwart and delay desegregation of the 
public schools in North Carolina, and (4 ) denied to Negro com­
plainants the right to be admitted “ to public school as soon as prac­
ticable on a nondiscriminatory basis” by requiring that each plain­
tiff, before seeking federal injunctive relief, individually tread the 
fruitless and squirrel-cage like procedure provided under North 
Carolina General Statutes 115-178 et seq. In short, while this 
Court in the Brown and allied cases cited above has declared that 
the practice of racial segregation in public school education is 
illegal and a deprivation of the “ equal protection of the laws 
guaranteed by the Fourteenth Amendment,”  the Court below has 
attempted to narrow this constitutional proposition to the bare 
“ right of these school children to be admitted to the schools of



7

North Carolina without discrimination on the ground of race,”  
without taking notice of the correlative duty of school authorities.

3. The Court of Appeals for the Fourth Circuit, by entry of the 
opinion and order below, has reached a monstrous conclusion of 
circuit-wide impact in an important area of American life— the 
field of education— by pyramiding a series of inapplicable and 
conflicting principles of federal law.

(a) The opinion below applies the doctrine of exhaustion of 
administrative remedies to a civil rights action. In doing this it 
has passed upon a question heretofore not passed upon by this 
Court. It has also sub silentio reversed itself. See Carter et al. 
vs. School Board of Arlington County, Virginia, (C.C.A. 4th), 
182 F. 2d 531. More importantly, in applying this doctrine to 
the facts of the instant case the Court below has done so in a ritual­
istic and formalistic manner, inasmuch as the entire record is ample 
attestation of the fact that your petitioners did substantially, real­
istically and actually exhaust so much of the purported administra­
tive remedy as the Court below has held to he applicable to them. 
See Joyner vs. McDowell County Board of Education, 244 N.C. 
164, 92 S.E. 2d 195; Exhibit “ A ,”  “ C -l”  and “ C-2”  of the Record 
before this Court and Appendices “ E ”  and “ F ”  to this Petition. 
Compare Procter & Gamble Distributing Company vs. Sherman 
et al., (D. C., S.D.N.Y.) 2 E. 2d 165. The opinion below reads in 
part: “ While the presentation of the children at the Old Fort 
school appears to have been sufficient as the first step in the admin­
istrative procedure provided by statute, the prosecution of a joint 
or class proceeding before the school board was not sufficient under 
the North Carolina statute as the Supreme Court of North Carolina 
pointed out in its opinion; and not until the administrative pro­
cedure before the hoard had been followed in accordance with the 
interpretation placed upon the statute by that court would appli­
cants be in position to say that administrative remedies had been 
exhausted.”  Again, the Court below has erroneously held that the 
question of whether a state administrative remedy has been ex­
hausted is a question of state law and that the federal courts, on



8

this question, are bound by the decisions of the state courts. Com­
pare Lane vs. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. ed. 1281; 
Procter & Gamble Distributing Company vs. Sherman, supra.

(b) The opinion below has apparently confused the principles 
of legitimate exercise by administrative agencies of delegated legisl­
ative process with the principles of the doctrine of exhaustion of 
administrative remedies. The opinion states: “ The authority 
given the boards ‘is of a fact finding and administrative nature and 
hence is lawfully conferred.’ ”  The eases cited in the opinion for 
this proposition are cases wherein this Court has sanctioned ruling 
making by the administrative agencies, or finding o f fact by admin­
istrative agencies preparatory to putting a previously declared law 
into effect, or legitimate exercise of police power by legislatures 
through administrative agencies. See Opp. Cotton Mills vs. Ad­
ministrator of Wage and Hour Division of Dept, of Labor, 312 
U.S. 126, 61 S. Ct. 524, 85 L. ed. 624, which is principally relied 
upon by the Court below. None of the cases cited are cases wherein 
the constitutional rights of an applicant to a hearing and of pro­
cedural due process were involved, but all were cases of approved 
delegation of legislative power. But if the Court below is correct 
in holding that the school boards are exercising delegated legislative 
power in hearings on application by complainants in the enrollment 
or assignment of public school pupils, and are merely finding facts 
preparatory to putting a statute into effect, then North Carolina 
General Statutes 115-178, et seq., is no administrative remedy at 
all, and talk of exhaustion of administrative remedies under North 
Carolina General Statutes 115-178 et seq. is totally irrelevant. 
Compare Opp. Cotton Mills v. Administrator of Wage and Hour 
Division of Dept, of Labor, supra. Moreover, the standards set 
out in North Carolina General Statutes 115-178 et seq. are too 
vague, subjective and arbitrary to support the exercise of delegated 
legislative power, assuming that the Court below is correct in this 
legal conclusion. Compare Panama Refining Co. v. Ryan, 293 
U.S. 388, 55 S. Ct. 241, 79 L. ed. 446; People use of Moore vs. 
J. 0. Beekman S  Co., 347 Tib 92, 179 N.E. 435.



9

(c ) Nevertheless, it is abundantly clear* that North Carolina 
General Statutes 115-178 et seq. purports to endow and could only 
endow the school boards with administrative pow*er in the matter 
of enrollment and assignment of pupils to public schools as con­
trasted with delegated legislative power. See Chung Yim vs. 
United States, (C.C.A. 8th), 78 F. 2d 43, Cert, denied 296 U.S. 
627, 56 S. Ct. 150, 80 L. ed. 446; Matter vs. Derby Oil Go., 
(C.C.A. 8th), 16 F. 2d 717, Cert, denied 273 TT.S. 762, 47 S. Ct. 
477, 71 L. ed. 879. The business of assigning and enrollment of 
public school children in school is merely a matter of school man­
agement and of execution of school law and has none of the attri­
butes of legislation, 42 Am. Jur. (Public Administrative Law) 
Sections 29 and 36; Chung Yim vs. United States, supra; Matter 
vs. Der-by Oil Go., supra; Drumheller vs. Local Board No. 1 et al., 
(C.C.A. 3rd), 130 F. 2d 610; Morgan vs. Tenn. Valley Authority, 
(C.C.A. 6th), 115 F. 2d 990. Hence, complainants under the 
assignment plan are entitled to all of the rights of procedural due 
process.

(d) The Court below has erroneously declined to weigh North 
Carolina General Statutes 115-178 et seq. for procedural due 
process, presumably because of its mistaken notion that the enact­
ment clothed the school authorities with delegated legislative power 
as contrasted with administrative power. But if the power given 
to the board is administrative, as herein contended, and if  the 
North Carolina enactment purports to provide an administrative 
remedy, then the enactment is void on its face, in that it is a grant 
on its face of arbitrary power to the administrative agencies in­
volved, Lowell v. Griffith, 303 U.S. 444, 58 S. Ct. 666, 82 L. ed. 
949 ; New Jersey State Board of Optometrists et al., 5 N.J". 412, 
75 A. 2d 867, 22 A.L.R. 2d 929; Yick Wo. vs. Hopkins, 118 U.S. 
358, 30 L. ed. 356, 6 S. Ct. 1064; Connolly vs. General Construc­
tion Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. ed. 322. Moreover, 
the purported standards, as presumably provided in the statute, 
allow for and require the consideration by the school boards of 
illegal matters in passing upon the complainants’ constitutional 
rights in so far as the statute speaks of “ the best interests of such



10

child,”  United States vs. Coplan, (G.A. 2d) 185 F. 2d 629, 28 
A.L.K. 2d 1041, Cert, denied, 842 TT.S. 920, 72 S. Ct. 362, 96 
L. ed. 690; McKissick vs. Carmichael, (C.C.A, 4th) 187 F. 2d 949; 
in so far as the statute forbids the applicant’s admission to a school 
i f  it would interfere “ with the proper administration of such school 
or with the proper instruction of pupils there enrolled,”  Jackson 
et al. vs. 0. C. Rawdon, supra; Clemons vs. Board of Education of 
Hillsboro Ohio, supra; Hoxie School District No. 46 of Lawrence 
County et al. vs. Herbert Brewer, et als., supra; and in so far as 
the statute forbids the applicant’s admission to a school if it would 
endanger the “ health or safety of the children there enrolled.”  See 
the Hoxie, Jackson and Clemons cases cited above and also Yick 
Wo. vs. Hopkins, supra; Brown vs. Board of Education, supra, and 
allied cases.

(e) Finally, the Court below seems to be oblivious to the fact 
that the scecalled administrative remedy must, in petitioners’ action, 
be administered by the very authorities against whom your peti­
tioners complain of illegal racial segregation and discrimination. 
See North Carolina General Statutes 115-178 et seq. At the very 
instance of complaint of racial segregation and discrimination, if 
petitioners’ allegations are true, the administrative agencies who 
are commissioned to administer the remedy, are already in flagrant 
violation of petitioners’ constitutional rights and of their rights 
under 42 TT.S.C. 1983. The administrative agencies are also, under 
conditions mentioned above, in open violation of 18 U.S.C. 242. 
To hold, as the Court below has held, that petitioners are to be 
remitted to a remedy administered by the confiseators of their 
constitutional rights and by violators of 18 U.S.C. 242 is to judi­
cially remit petitioners to the very abuses which are interdicted by 
the Fourteenth Amendment to the United States Constitution and 
to sheer legal formalism, Procter & Gamble Distributing Co. vs. 
Sherman et al., supra.

4. The questions presented by this case are of great and recur­
ring significance in the matter of interpreting this Court’s decisions 
in the so-called public school segregation cases in the Fourth Cir­
cuit, as well as in other Circuits. A  “ dictum”  of the Court of



11

Appeals for the Fourth Circuit, when this instant cause was pre­
viously before that Court during the Fall Term, 1955, ( Carson 
et al. vs. Board of Education, 227 F. 2d 789), relative to the appli­
cability of the doctrine of exhaustion of administrative remedies 
to cases such as this, has been made the law of the case in Hood vs. 
Board of Trustees of Sumter County School District No. 2, Sumter 
County, South Carolina, et al., (C.A. 4th) 232 F. 2d 626; Robin­
son et al. vs. Board of Education of St. Mary’s County et al., 
(TT.S.D.C., Md.) Civil Action No. 8780, 143 F. Supp. 481. This 
same “ dictum” has been applied with formalistic vigor to the instant 
proceeding*. Again, the Court of Appeals for the Fourth Circuit 
has recently approved of an extension of its formalistic application 
of the doctrine of exhaustion of administrative remedies to pro­
ceeding aimed at enforcement of injunctive decrees already entered, 
School Board of the City of Charlottesville et al. vs. Doris Marie 
Allen et al., No. 7303, and County School Board of Arlington 
County, Virginia, vs. Clarissa S. Thompson et al., FTo. 7310, (C.A.
4th) .....  F. 2d ....... The serious questions of the interpretation
of the Fourteenth Amendment in school cases and of the applica­
bility of the doctrine of exhaustion of administrative remedies to 
this and other civil rights actions of similar import make this a 
case peculiarly appropriate for the exercise of this Court’s discre­
tionary jurisdiction.

CONCLUSION

For the reasons set forth above, it is respectfully submitted that 
this Petition for a Writ of Certiorari should be granted.

H e e m a s  L. T ay lo b  
Sa m u e l  S. M it c h e l l  
125 East Hargett Street 
Raleigh, North Carolina

Attorneys for Petitioners

T aylo b  & M it c h e l l , Of Counsel



12

APPENDIX “A”

L io n el  C. Carson-, Infant, By His Next Friend, M a r t in  A. 
Carson , Et Als., Petitioners,

verms

H onorable  W ilso n  W a r l ic k , United States District Judge for 
the Western District of North Carolina, Respondent.

ON PETITION FOR WRIT OF MANDAMUS

United States Court of Appeals, Fourth Circuit. 

(Argued October 1, 1956. Dated November 14, 1956.)

P arker , Chief Judge:

This is an application for a writ of mandamus in the case wherein 
Negro children of Old Fort in McDowell County, North Carolina, 
allege that the Board of Education of that county is exercising 
discrimination on the grounds of race in refusing to admit them 
to schools maintained in the town of Old Fort. When the case was 
before us on appeal, we held that the court below erred in dismissing 
the case as moot, but ruled that, in further proceedings therein, 
the court below should give consideration to whether administrative 
remedies provided by the North Carolina statute of March 30,



13

1955, * had been exhausted. Carson v. Board of Education of 
McDowell County, 4 Cir. 227 F. 2d 789. After our decision, the 
Supreme Court of North Carolina, in an action to which two of
the applicants here were parties, rendered a decision on May 23,
1956, construing the act of March 30, 1955 (Joyner v. McDowell 
County Board of Education, 244 N.C. 164, 92 S.E. 2d 795) in 
which it said:

“ With respect to the provisions of Gr.S. sec. 115-178, this Court 
construes them to authorize the parent to apply to the appro­
priate public school official for the enrollment 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 b-y reason of the difference in the ages of the children, the 
grades previously completed, the teacher load in the grades 
involved, etc., the school official might admit one or more of 
the children, and reject the others. The factors involved

See General Statutes of North Carolina as follows:
*'Sec. 115-176. County and city boards authorized to provide for 

enrollment of pupils.— The county and city boards of education are 
hereby authorized and directed to provide for the enrollment in a public 
school within their respective administrative units of each child residing 
within such administrative unit qualified under the laws of this State for 
admission to a public school and applying for enrollment in or admission 
to a public school in such administrative unit. Except as otherwise pro­
vided in this article, the authority of each such board of education in the 
matter of the enrollment of pupils in the public schools within such ad­
ministrative unit shall be full and complete, and its decision as to the 
enrollment of any pupil in any such school shall be final. No pupil shall 
be enrolled in, admitted to, or entitled or permitted to attend any public 
school in such administrative unit other than the public school in which 
such child may be enrolled pursuant to the rules, regulations and decisions 
of such board of education. (1955, c.366, s .l.)



14

necessitate the consideration of the application of any child 
or children individually and not en masse. Any interested 
parent, guardian or person standing in loco parentis to such 
child or children, whose application may he rejected, may 
appeal to the appropriate board for a hearing in accordance 
with the rules and regulations established by such board. 
Furthermore, if the board denies the application for admis­
sion of such child or children, the aggrieved party may appeal 
in the manner prescribed by statute, G.S. sec. 115-179, to the 
superior court, where the matter shall he heard de novo before 
a jury in the same manner as civil actions are tried therein. 
“ 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 par­
ticular school, must he prosecuted in 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.

* * * *

“ An additional reason why this proceeding was properly dis­
missed is that while it purports to have been brought pursuant 
to the provisions of our school enrollment statutes, it is not

Sec. 115-177. Authority to be exercised for efficient administration of 
schools, etc .; rules and regulations.— In the exercise of the authority con­
ferred by sec. 115-176 upon the county or city boards of education, each 
such board shall provide for the enrollment of pupils in the respective 
public schools located within such county or city administrative unit so 
as to provide for the orderly and efficient administration of such public 
schools, the effective instruction of the pupils therein enrolled, and the 
health, safety, and general welfare of such pupils. In the exercise of such 
authority such board may adopt such reasonable rules and regulations as 
in the opinion of the board shall best accomplish such purposes. (1955, 
c.366, s.2.)



15

based oil an application for assignment relating to named 
individuals as contemplated by the enrollment statutes, but is 
in reality a class suit. It is in effect an application for man­
damus, requiring the immediate integration of all Negro 
pupils residing in the administrative unit in which the Old 
Fort school is located, in the Old Fort school. Such a pro­
cedure is neither contemplated nor authorized by statute. 
Therefore, the appeal is dismissed.”

The applicants did not attempt to comply with the provisions 
of the statute as so interpreted by the Supreme Court of North 
Carolina, but on July 11, 1956, counsel who are representing them 
before this court wrote a letter to the secretary of the Board of 
Education, inquiring what steps were being taken for the admis­
sion of Negro children to the Old Fort school. The secretary re­
plied that “ inasmuch as no Negro pupil has made application, nor 
has any parent or person standing in loco parentis made application 
for any Negro child to attend school in the town of Old Fort for

Sec. 115-178. Hearing before board upon denial of application for 
enrollment.— The parent or guardian of any child, or the person standing 
in loco parentis to any child, who shall apply to the appropriate public 
school official for the enrollment of any such child in or the admission of 
such child to any public school within the county or city administrative 
unit in which such child resides, and whose application for such enroll­
ment or admission shall be denied, may, pursuant to rules and regulations 
established by the county or city board of education apply to such board 
for enrollment in or admission to such school, and shall be entitled to a 
prompt and fair hearing by such board in accordance with the rules and 
regulations established by such board. The majority of such board shall 
be a quorum for the purpose of holding such hearing and passing upon 
such application, and the decision of the majority of the members present 
at such hearing shall be the decision of the board. If, at such hearing, 
the board shall find that such child is entitled to be enrolled in such school, 
or if the board shall find that the enrollment of such child in such school 
will be for the best interests of such child, and will not interfere with the 
proper administration of such 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 such child be 
enrolled in and admitted to such school. (1955, c.366, s.3.)



16

the school year 1956-57, the Board had had no cause to take any 
action in this connection.”

Upon receiving this reply, applicants here, plaintiffs in the court 
below, on the 12th day of July 1956 moved in the action there 
pending to file a supplemental complaint in which, without alleging 
compliance with the requirements of the North Carolina statute as 
interpreted by the Supreme Court, they asked a declaratory judg­
ment and injunctive relief with respect to their right to attend the 
Old Fort school. The District Judge denied the motion on the 
ground that plaintiffs had not exhausted their administrative reme­
dies and stayed proceedings in the cause until same should he 
exhausted, hut stated that, as soon as it was made to appear that 
they had been exhausted, he would grant such relief as might he 
appropriate in the premises, saying:

“ (1 ) That obedient to the per curiam decision of the Court 
of Appeals for the Fourth Circuit, 227 F. 2d 789, this Court 
has up until this time and will consistently hereafter consider 
this case in the light of the decision of the Supreme Court of 
the United States in the so-called School Segregation Case, 
and of the North Carolina statute chapter 366 Laws 1955,

Sec. 115-179. Appeal from decision of board.-—Any person aggrieved 
by the final order of the county or city board of education may at any 
time within ten (1 0 ) 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. T he 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 provid­
ing and adjudging that such child is entitled to attend the school as 
claimed by the appellant, or such other school as the court may find such 
child is entitled to attend, and in such case such child shall be admitted 
to such school by the county or city board of education concerned. From 
the judgment of the superior court an appeal may be taken by any inter­
ested 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.



17

G.S. 115, 176-179, set out in the opinion in the 227 Fed. 
Reporter 2d 789, and has consistently asserted and now re­
affirms that it is the duty under the authority granted to stay 
all proceedings herein and to cause the matter to remain con­
tinuously at issue on the docket until it should be made to 
appear that the plaintiffs herein or some of them have ex­
hausted the administrative remedies which are provided for 
them or some of them or any of them under the above statute, 
and that when such is made to appear the Court will imme­
diately entertain a motion by counsel for the plaintiffs or some 
of them or any of them to file amendment to the complaint 
or to replead, indicating that the rights to which they are 
entitled have been denied them on account of their race or 
color, and immediately thereafter, and within twenty days, 
will require an answer to be filed thereto and will set the 
case down with a peremptory setting as the first cause to be 
disposed of, either at the regular term or some other called 
term of this court, dependent upon the requests of the parties 
or those who appear for them as counsel in said cause.”

Upon the denial of the motion, application for writ of mandamus 
was filed here to require the District Judge to vacate the order 
staying proceedings, to allow the supplemental pleading to be filed 
and to proceed with the cause “ as though the Pupil Enrollment Act 
had never been enacted.”

We think it clear that applicants are not entitled to the writ of 
mandamus which they ask, for the reason that it nowhere appears 
that they have exhausted their administrative remedies under the 
North Carolina Pupil Enrollment Act, and are not entitled to the 
relief which they seek in the court below until these administrative 
remedies have been exhausted. (See 227 F. 2d at 790.) In the 
supplemental complaint which they proposed to file in the court 
below they did, indeed, allege that on August 24, 1955, they had 
presented their children at the Old Fort school for admission, that 
they were denied admission on the ground of race and that on 
August 27 they and certain other Negroes had filed a joint petition



1 8

with the school hoard asking -that their children he admitted to the 
school. This petition was denied by the Board in January 1956 
and it was an appeal from this order of the Board to the Superior 
Court and thence to the Supreme Court of the State in which the 
decision of the Supreme Court of May 23, 1956 was rendered. 
While the presentation of the children at the Old Tort school ap­
pears to have been sufficient as the first step in the administrative 
procedure provided by statute, the prosecution of a joint or class 
proceeding before the school board was not sufficient under the 
North Carolina statute as the Supreme Court of North Carolina 
pointed out in its opinion; and not until the administrative pro­
cedure before the board had been followed in accordance with the 
interpretation placed upon the statute by that court would appli­
cants be in position to say that administrative remedies had been 
exhausted.

It is argued that the Pupil Enrollment Act is unconstitutional; 
but we cannot hold that that statute is unconstitutional upon its 
face and the question as to whether it has been unconstitutionally 
applied is not before us, as the administrative remedy which it 
provides has not been invoked. It is argued that it is unconstitu­
tional on its face in that it vests discretion in an administrative 
body without prescribing adequate standards for the exercise of 
the discretion. The standards are set forth in the second section 
of that act, G.S. 115-177, and require the enrollment to be made 
“ so as to provide for the orderly and efficient administration of 
such public schools, the effective instruction of the pupils enrolled, 
and the health, safety and general welfare of such pupils.”  Surely 
the standards thus prescribed are not on their face insufficient to 
sustain the exercise of the administrative power conferred. As 
said in Opp Cotton Mills v. Administrator of the Wage and Hour 
Division of the Department of Labor, 312 TT.S. 126, 145: “ The 
essentials of the legislative function are the determination of the 
legislative policy and its formulation as a rule of conduct. Those 
essentials are preserved. when Congress specifies the basic conclu­
sions; of fact upon ascertainment of which, from relevant data by 
a designated administrative agency, it ordains that its statutory



n

command is to be effective,”  The authority given the boards “ is of a 
fact finding and administrative nature, and hence is lawfully con­
ferred.”  Sproles v. Binford, 286 TJ.S. 374, 397. See also Douglas 
v. N olle, 261 TJ.S. 165, 169-170; Hall v. Geiger Jones Co., 242 
TJ.S. 539, 553-554; Mutual Film Corp. v. Hodges, 236 TJ.S. 248; 
Mutual Film Corp. v. Ohio Industrial Com’n, 236 TJ.S. 230, 245- 
246; Bed “ C”  Oil Mfg. Co. v. North Carolina, 222 TJ.S. 380, 394.

Somebody must enroll the pupils in the schools. They cannot 
enroll themselves; and we can think of no one better qualified to 
undertake the task than the officials of the schools and the school 
boards having the schools in charge. It  is to be presumed that these 
will obey the law, observe the standards prescribed by the legisla­
ture, and avoid the discrimination on account of race which the 
Constitution forbids. Hot until they have been applied to and 
have failed to give relief should the courts be asked to interfere 
in school administration. As said by the Supreme Court in Brown 
et al. v. Board of Education, et al., 349 TJ.S. 294, 299:

“ School authorities have the primary responsibility for eluci­
dating, assessing, and solving these problems; courts will have 
to consider whether the action of school authorities constitutes 
good faith implementation of the governing constitutional 
principles.”

It is argued that the statute does not provide an adequate admin­
istrative remedy because it is said that it provides for appeals to 
the Superior and Supreme Courts of the State and that these will 
consume so much time that the proceedings for admission to a 
school term will become moot before they can be completed. It is 
clear, however, that the appeals to the courts which the statute 
provides are judicial, not administrative remedies and that, after 
administrative remedies before the school boards have been ex­
hausted, judicial remedies for denial of constitutional rights may 
be pursued at once in the federal courts without pursuing state 
court remedies. Lane v. Wilson, 307 TJ.S. 268, 274. Furthermore, 
if administrative remedies before a school board have been ex-



20

hausted, relief may be sought in the federal courts on the basis 
laid therefor by application to the board, notwithstanding time that 
may have elapsed while such application was pending. Applicants 
here are not entitled to relief because of failure to exhaust what 
are unquestionably administrative remedies before the board.

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 indi­
viduals, not as a class or group; and it is as individuals that their 
rights under the Constitution are asserted. Henderson v. United 
States, 339 U.S. 816, 824. 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 according to citizens of the United 
States their rights under the Constitution, whether with respect to 
school attendance or any other matter; but it is for the state to 
prescribe 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. We are dealing here, 
of course, with the administrative procedure of the state and not 
with the right of persons who have exhausted administrative reme­
dies to maintain class actions in the federal courts in behalf of 
themselves and others qualified to maintain such actions.

Mandamus Denied.



21

UNITED STATES COUBT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 7281.

L io n el  C. Carson , Infant, By His Next Friend, M a r t in  A. 
C arson , Et Als., Petitioners,

APPENDIX “B”

vs.

H onorable  W ilso n  W a r l ic k , United States District Judge for 
the Western District of North Carolina, Respondent.

ON PETITION FOR A WRIT OF MANDAMUS

This cause came on to be heard on the petition of Lionel C. 
Carson, infant, by his next friend, Martin A. Carson, and others, 
for a writ of mandamus; answer of McDowell County Board of 
Education; brief and supplement to brief in support of petition; 
and the cause was argued by counsel.

On consideration whereof, it is now here ordered and adjudged 
by this Court, for the reasons set forth in the opinion of the Court 
filed herein, that the petition for a writ of mandamus be, and it is 
hereby, denied.

November 14, 1956.
J ohn  J. P a r k e r , 

Chief Judge, Fourth Circuit.

A true copy,

Teste:

R ichard  M. F. W il l ia m s , J r., Clerk,
U. S. Court of Appeals for the 
Fourth Circuit.



22

IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA
A sh e v il le  D iv is io n

APPENDIX “0”

L io n el  C. Carson , An Enfant, by bis 
Next Friend, M a b t in  A. Carson , et al.,

Plaintiffs,

C IV IL  No. 1341.

v.

B oard oe E ducation  of M cD o w ell  
C o u n ty , a body Corporate,

Defendant.

July 26, 1956.

T h e  C o u r t : From the bench the Court dictates the following 
to be considered along with that which has already been said by 
counsel for the plaintiffs and counsel for the defendant, Board of 
Education of McDowell County, and by the Court, in discussing 
the position of the Court and counsel at this time with respect to 
this case:

(1 ) That obedient to the per curiam decision of the Court of 
Appeals for the Fourth Circuit, 227 Fed. 2. 789, this Court has up 
until this time and will consistently hereafter consider this case in 
the light of the decision of the Supreme Court of the United States 
in the so-called School Segregation Case, and of the North Caro­
lina Statute Chapter 366 laws 1955, G.S. 115, 176-179, set out in 
the opinion in the 227 Fed. Reporter 2d 789, and has consistently 
asserted and now reaffirms that it is the duty under the authority



28

granted to stay all proceedings herein and to cause the matter to 
remain continuously at issue on the docket until it should be made 
to appear that the plaintiffs herein or some of them have exhausted 
the administrative remedies which are provided for them or some 
of them or any of them under the above statute, and that when 
such is made to appear the Court will immediately entertain a 
motion by counsel for the plaintiffs or some of them or any of them 
: o file amendment to the complaint or to replead, indicating that 
the rights to which they are entitled have been denied them on 
account of their race or color, and immediately thereafter, and 
within twenty days, will require an answer to he filed thereto and 
will set the case down with a peremptory setting as the first cause to 
be disposed of, either at the regular term or some other called term 
of this court, dependent upon the requests of the parties or those 
who appear for them as counsel in said cause.

(2) This Court is of the opinion that Eaymond Greenlee and 
James Bryson, who are parties plaintiff to the action, in this court, 
and Albert Joyner and Lucille Lytle, who joined them in the action 
against the Board of Education of McDowell County in the civil 
action which was decided in the opinion appearing in 244 1ST. C. 
page 164, have not exhausted their administrative remedies and 
therefore are not now in a position to do other than to proceed to 
have their cause heard and thereby exhaust their remedies, and 
that when such has come about, those things stated above will he 
immediately set into motion and this cause of action heard.

(3 ) The Court finds as a fact that Eaymond Greenlee and James 
Bryson, two of the plaintiffs appearing as such in this court, and 
their associate plaintiffs, Albert Joyner and Lucille Lytle, insti­
tuted such action, after having made their request of the School 
Board in the Superior Court of McDowell County, and that the 
same was heard by Judge George B. Patton, on a demurrer, and 
probably other motions. The demurrer was filed for that “ There 
is a defect of parties plaintiff and causes of action.”  (G.S. 1-127, 
Secs. 4, 5.), amounting to a misjoinder of both parties and causes 
of action. This was sustained and such was affirmed by the Su­



24

preme Court (244 N.C. 164.) for that, “ Where there is a mis­
joinder of both parties and causes of action, the court is not author­
ized to direct a severance, but must dismiss the action upon demur­
rer,”  (G.S. 1-132.) It would therefore appear that i f  plaintiffs 
or any of them decide to pursue their remedy further, it would be 
incumbent upon them to file anew their request with the School 
Board, and upon it being given an unfavorable consideration, for 
each to carry his cause to the Superior Court and there, with the 
privilege of a jury trial, have their cause determined, with the 
right of an appeal to the Supreme Court of North Carolina if  con­
fronted with an adverse verdict; and that if it should then be made 
to appear that having exhausted their administrative remedies 
under the North Carolina law, each would then be entitled to have 
this Court permit an amendment to the complaint or to replead if 
such seems desirable and to entertain their motion for relief as is 
prescribed by law.

W h er eu po n , the Court, being of the opinion that the adminis­
trative remedies thus provided for have not been exhausted, an­
nounces that it will stay proceedings herein until such comes about, 
and on that being made to appear will order an immediate trial to 
the end that the deprivation allegedly brought about will be in­
quired into and the rights of the plaintiffs fully and completely 
protected.

/ S /  W ilso n  W a r lic k  

U. S. District Judge



25

AN ACT TO AMEND ARTICLE 21, CHAPTER 115 
OF THE GENERAL STATUTES, RELATING TO 
ASSIGNMENT AND ENROLLMENT OF PUPILS 
IN PUBLIC SCHOOLS.

The General Assembly of North Carolina do enact:

Sec tio n  1. G.S. 115-176 is hereby amended to read as follows: 
“ Each comity and city hoard of education is hereby authorized and 
directed to provide for the assignment to a public school of each 
child residing within the administration 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 hoard of 
education in the matter of assignment of children to the public 
schools shall be full and complete, and its decision as to the assign­
ment of any child to any school shall he final. A  child residing in 
one administrative unit may he assigned either with or without the 
payment of tuition to a public school located in another adminis­
trative unit upon such terms and conditions as may he agreed in 
writing between the boards of education of the administrative units 
involved and entered upon the official records of such hoards. 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 exercising the authority 
conferred by this Section, each county and city board of education 
shall make assignments of pupils to public schools so as to provide 
for the orderly and efficient administration of the public schools, 
and provide for the effective instruction, health, safety, and general 
welfare of the pupils. Each board of education may adopt such 
reasonable rules and regulations as in the opinion of the hoard are 
necessary in the administration of this Article.”

Sec . 2. G.S. 115-177 is hereby amended to read as follows: 
“ In exercising the authority conferred by §115-176, each county 
or city board of education may, in making assignments of pupils, 
give individual written notice of assignment, on each pupil’s report 
card or by written notice by any other feasible means, to the parent

APPENDIX “D”



26

or guardian of each child or the person standing in loco parentis to 
the child, or may give notice of assignment of groups or categories 
of pupils by publication at least two times in some newspaper 
having general circulation in the administrative unit.”

Sec. 3. Gr.S. 115-178 is hereby amended to read 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 education pur­
suant to rules and regulations adopted by the board of education. 
I f  the application for reassignment is disapproved, the board of 
education shall give notice to the applicant by 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 passing upon application 
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 reas­
signed 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 . 4. All laws and clauses of laws in conflict with this Act 
are hereby repealed.



•27'

Se c . 5. This Act shall be effective upon its ratification.
In the General Assembly read three times and ratified, this the 

27th day of July, 1956.



28

IN  TH E SUPREM E COURT OF N ORTH  CAROLINA

A lb er t  J o yn er , L u c il l e  L y t l e , J am es B ryson  and  T h u rm a n

Green lee  v . T h e  M cD o w e ll  C ounty  B oard oe E d u ca tio n .

(Filed 23 May, 1956)

A pp e a l  by petitioners from Patton, Special Judge, February 
Term, 1956, of M cD o w e l l .

This is a proceeding brought on 27 August 1955 by petitioners 
who filed with the Board of Education of McDowell County, here­
inafter called the Board, a petition “ on behalf of their children 
and themselves, and on behalf of other Negro children and parents 
similarly situated,”  in which, in sum and substance, they assert:

(1) That the (unnamed) children for whom they were speaking 
were eligible to attend public schools in McDowell County, North 
Carolina, and particularly the school at Old Fort.

(2 ) That the petitioners carried their children to the Old Fort 
school on 24 August 1955 and demanded that they then be enrolled 
in said school; that the principal of said school, acting in conjunc­
tion with and under the direction of the Superintendent of Schools 
of McDowell County, then and there denied to children of peti­
tioners admission to the said Old Fort School.

(3 ) That the children were denied admission for the reason that 
school children were “ not to be assigned in the schools of McDowell 
County during the school year 1955-56 on any basis other than that 
which has previously existed.”

(4 ) That “ the primary if not the sole basis upon which children 
in McDowell County have been assigned to schools has been race 
or color.”

(5 ) That the Supreme Court of the United States has declared 
enforced racial segregation in public schools illegal.

APPENDIX “E”



29

(6 ) That the refusal to admit children of petitioners to the Old 
Fort school “ was based solely and wholly upon race or color.”

The petition, following the foregoing allegations sought redress 
in the following language:

“ The undersigned, on behalf of their own children and on behalf 
of other Negro children and parents similarly situated, petition 
your Board that you forthwith issue a directive, order or mandate 
to the aforesaid Superintendent and Principal requiring them 
forthwith to admit children of petitioners and other Negro children 
similarly situated to the school and school facilities maintained by 
vour Board in the Town of Old Fort.”

The petitioners appeared before the Board on 3 October 1955 in 
support of their request. In a letter dated 5 January 1956, the 
petitioners were informed by the secretary of the respondent Board 
of the Board’s denial on 2 January 1956 of petitioners’ request to 
have their children enrolled in the public school in Old Fort, North 
Carolina. The denial was in the following language:

“ A  request on the part of Taylor & Mitchell on behalf of the
Negroes at Old Fort to allow Negroes to attend school at Old Fort 
rather than to be transported to Marion to attend school at Hudgins 
High, was formally denied by virtue of necessity in that facilities 
and room are available a Hudgins High and are not available at 
Old Fort. The motion was made by Mr. Boss, seconded by Mr. 
Greenlee and duly passed.”

The petitioners, through their counsel, gave notice of appeal to 
the Board by telegram on 13 January 1956 and requested the im­
mediate certification of the record to the Superior Court. The 
record was duly certified as requested.

In apt time, in the Superior Court, the respondent moved to dis­
miss the appeal on the ground that the notice of appeal was not 
given or filed within ten days as required by statute. In addition



thereto, the respondent filed a demurrer to the petition and assigned 
as grounds therefor: (1 ) that the petition failed to state a cause of 
action; and (2 ) that there was a misjoinder of both parties and 
causes of action.

After hearing argument of counsel for respondent and counsel 
for petitioners, the court being of the opinion that the motion to 
dismiss should he denied and that the demurrer should be overruled 
in so far as it pertains to the failure to state a cause of action, but, 
that the demurrer as it relates to the misjoinder of parties and 
causes of action should be sustained, entered judgment accordingly. 
The petitioners appeal to the Supreme Court, assigning error.

Taylor & Mitchell for petitioners.
Boy W. Davis for respondent.
Attorney-General Rodman, Amicus Curiae, for the State.

D e n n y , J . At the threshold of this appeal the Court is con­
fronted with the fact that the questions presented are now academic 
as to the school year 1955-56. Even so, Chapter 366 of the Session 
Laws of 1955, codified as G.S. 115-176 through G.S. 115-179, 
governing the enrollment of pupils in the public schools of North 
Carolina is of such public importance that the Court deems it 
appropriate to clarify the procedure thereunder.

The appellants’ pertinent assignments of error are directed to 
the ruling of the court below in sustaining the respondent’s demur­
rer on the grounds of a misjoinder of parties and causes of action 
and to the failure of the court to order a severance of the causes 
of action, if the court was correct in its ruling as to such misjoinder.

A  demurrer should be sustained and the action dismissed where 
there is a misjoinder of parties and causes of action, and the court 
is not authorized in such cases to direct the severance of the respec­
tive causes of action for trial under the provisions of G.S. 1-132. 
Perry v. Doub, 238 N.C. 233, 77 S.E. 2d 711; Sellers v. Ins. Go., 
233 N.C. 590, 65 S.E. 2d 21; Erickson v. Starling, 233 N.C. 539, 
64 S.E. 2d 832; Teague v. Oil Co., 232 N.C. 469, 61 S.E. 2d 345;



SI

s.c. 232 N.C. 65, 59 S.E. 2d 2 ; Moore County v. Bums, 224 N.C. 
700, 32 S.E. 2d 225; Wingler v. Miller, 221 N.C. 137, 19 S.E. 2d 
247.

The Court deems it unnecessary to enter into a discussion of the 
question of misjoinder in this proceeding. The question is settled 
by the statutes governing the enrollment of pupils in the public 
schools of North Carolina and, in the opinion of the Court, they do 
not authorize the institution of class suits upon denial of an appli­
cation for enrollment in a particular school.

The provisions of G.S. 115-176 read as follows: “ The county 
and city boards of education are hereby authorized and directed to 
provide for the enrollment in a public school within their respective 
administrative units of each child residing within such adminis­
trative unit qualified under the laws of this State for admission to 
a public school and applying for enrollment in or admission to a 
public school in such administrative unit. Except as otherwise 
provided in this article, the authority of each such hoax’d of educa­
tion in the matter of the enrollment of pupils in the public schools 
within such administrative unit shall be full and complete, and 
its decision as to the enrollment of any pupil in any such school 
shall be final. No pupil shall be enrolled in, admitted to, or entitled 
or permitted to attend any public school in such administrative 
unit other than the public school in which such child may be 
enrolled pursuant to the rules, regulations and decisions of such 
board of education.”

It is provided in G.S. 115-178 that, “ The parent or guardian 
of any child, or the person standing in loco parentis to any child, 
who shall apply to the appropriate public school official for the 
enrollment of any such child in or the admission of such child to 
any public school within the county or city administrative unit in 
which said child resides, and whose application for such enrollment 
or admission shall be denied, may, pursxxant to rules and regulations 
established by the county or city board of education apply to such 
board for enrollment in or admission to such school, and shall be 
entitled to a prompt and fair hearing by such board in accordance



82

with the rules and regulations established by such board. The 
majority of such board shall be a quorum for the purpose of holding 
such hearing and passing upon such application, and the decision 
of the majority of the members present at such hearing shall be the 
decision of the board. If, at such hearing, the board shall find that 
such child is entitled to be enrolled in such school, or if the board 
shall find that the enrollment of such child in such school will he 
for the hest interests of such child, and will not interfere with the 
proper administration of such 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 
such child he enrolled in and admitted to such school.”

The provisions of Gr.S. 115-179 are as follows: uAny person 
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 
hoard, duly certified by the secretary of such board. I f  the decision 
of the court be that the order of the county or city board of educa­
tion shall be set aside, then the court shall enter its order so provid­
ing and adjudging that such child is entitled to attend the school 
as claimed by the appellant, or such other school as the court may 
find such child is entitled to attend, and in such case such child shall 
be admitted to such school by the county or city board of education 
concerned. From the judgment of the superior court an appeal 
may be taken by any interested party or by the hoard to the Supreme 
Court in the same manner as other appeals are taken from judg­
ments of such eoiirt in civil actions.”

With respect to the provisions of G.S. 115-178, this Court con­
strues them to authorize the parent to apply to the appropriate 
public school official for the enrollment of his child or children by



S3

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 o f 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 official might admit one or more of the 
children, and reject the others. The factors involved necessitate 
the consideration of the application of any child or children indi­
vidually and not en masse. Any interested parent, guardian or 
person standing in loco parentis to such child or children, whose 
application may be rejected, may appeal to the appropriate board 
for a hearing in accordance with the rules and regulations estab­
lished by such board. Furthermore, i f  the board denies the appli­
cation for admission of such child or children, the aggrieved party 
may appeal in the manner prescribed by statute (G.S. 115-179) to 
the superior court, where the matter shall be heard de novo before a 
jury in the same manner as civil actions are tried therein.

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 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.

The Court notes that the petitioners did not apply for the admis­
sion of their children and other FTegro children similarly situated 
to the school in Old Fort until the 24-th day of August 1955, the 
day the school opened. It would seem that some rule or regulation 
might well be promulgated by the county and city boards of educa­
tion fixing a date reasonably in advance of the opening of school for 
filing such applications. Judicial notice will be taken of the fact



84

that boards of education must of necessity employ teachers* in 
advance of the opening of school. Teachers are assigned to their 
particular schools on the basis of the enrollment information in the 
hands of the respective boards at the time the assignments are made. 
Hence, it would seem to be extremely desirable i f  not imperative 
for the orderly operation of the schools that applications for admis­
sion to schools other than those theretofore designated by the board 
of education or city administrative unit, be made reasonably in 
advance of the opening of school.

In addition to the assignment of pupils in the manner authorized 
in the above cited statutes, pupils residing in one administrative 
unit may be assigned to a school in another administrative unit, 
pursuant to the provisions contained in Chapter 1372, Session 
Laws of 1955, sub-chapter V III , Art. 19, sec. 3, codified as G.S. 
115-163. In re Assignment of School Children, 242 N.C. 500, 
87 S.E. 2d 911.

An additional reason why this proceeding was properly dis­
missed is that while it purports to have been brought pursuant to 
the provisions of our school enrollment statutes, it is not based on 
an application for assignment relating to named individuals as 
contemplated by the enrollment statutes, but is in reality a class 
suit. It is in effect an application for mand.amus, requiring the 
immediate integration of all Negro pupils residing in the adminis­
trative unit in which the Old Fort school is located, in the Old Fort 
school. Such a procedure is neither contemplated nor authorized 
by statute. Therefore, the appeal is dismissed.

Appeal dismissed.

D e v in , J ., took no part in  the consideration or decision o f  this
case.



35'

APPENDIX “F”

T aylo e  & M it c h e l l  
Attorneys at Law 

125 E. Hargett Street
Raleigh, 1ST. 0. Telephone: 3-3171

Herman L. Taylor 
Samuel S. Mitchell

•July 11, 1956

Mr. Melvin H. Taylor, Superintendent 
McDowell County Schools 
Marion, North Carolina

Dear Sir:

On behalf of the Negro citizens in and around Old Fort, whom 
we represent, we write to inquire as to what specific steps the 
McDowell County Board of Education has taken and is taking with 
reference to making provision for the admission of qualified Negro 
children to the public school maintained in the Town of Old Fort 
for the school year 1956-57, pursuant to the decisions of the United 
States Supreme Court.

An immediate reply to this inquiry will be appreciated.

H LT :lhj

Very truly yours, 
T aylo e  & M it c h e l l , 
B y: Herman L. Taylor



36

C o u n ty  o f  M cD o w e ll  
Superintendent of Public Instruction 

Marion, 1ST. C.

July 13, 1956

Taylor & Mitchell 
125 East Hargett St.
Raleigh, ISTorth Carolina

Re: Old Fort Negro Citizens and Pupils

Gentlemen:

In reply to your letter of July 11, 1956 in which you “ inquire 
as to what specific steps the McDowell County Board of Education 
has taken and is taking with reference to making provision for the 
admission of qualified Negro children to the public school main- 
tained in the Town of Old Fort for the school year 1956-57, pur­
suant to the decisions of the United States Supreme Court.” , please 
allow me to advise you that inasmuch as no Negro pupil has made 
application, nor has any parent or person standing in loco parentis 
made application for any Negro child to attend school in the town 
o f Old Fort for the school year 1956-57, the Board has had no 
cause to take any action in this connection.

Sincerely,
M e l v in  H. T aylo k ,
Superintendent

M E T  :zj
cc: Mr. Roy Davis

Mr. E. P. Dameron



Irving-Swain Press, Inc., Raleigh, N. C.