Farmer v. Greene County Board of Education Supplemental Brief for Appellants

    llnxUb Cmtrt uf Appeals
F or the F ourth Circuit 

No. 9125

In th e

Obediah. F armer, a minor, by A aron F armer and D ora Mae 
F armer, his parents and next friends; Cleophius E d­
wards, a minor, by L illie M. E dwards, his mother and 
next friend,

Appellants,

T he Greene County B oard of E ducation, et al.,
Appellees.

SUPPLEMENTAL BRIEF FOR APPELLANTS

Conrad 0 . P earson
2031/2 E. Chapel Hill Street 
Durham, North Carolina

J ack Greenberg 
Derrick A. Bell, Jr.
Norman C. A maker 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

Of Counsel
J. LeV onnb Chambers



Preliminary Statement 

A rgument :

I N D E X

PAGE

1

I. It Was Error for the Court Below to Deny In­
junctive Eelief to Appellants for Failure to 
Exhaust Administrative Remedies, Because Ex­
haustion of a State Remedy Is Not a Prerequisite 
to Invocation of a Federal Remedy in the Federal 
Courts.............................................. ...........................  2

II. It Was Error for the Court Below to Deny 
Injunctive Relief to Appellants for Failure to 
Exhaust Administrative Remedies, Because Ap­
pellants Have No Administrative Remedies .....  3

Conclusion............................................................................ 10

T able of Cases:

Armstrong v. Board of Education of the City of Bir­
mingham, 323 F. 2d 333 (5th Cir. 1963) ................... 2, 9

Augustus v. Board of Public Instruction, 306 F. 2d 862 
(5th Cir. 1962) ............................... .................. ...............  9

Board of Public Instruction of Duval County v. Brax­
ton, ------ F. 2d ------- (No. 20294, 5th Cir., January 10,
1964) ............ ....... ..... ................ ............. .......... ..... ........  4

Brown v. Board of Education, 347 IT. S. 483 (1954)   4
Brown v. Board of Education, 349 U. S. 294 (1955) .....  4
Bush v. Orleans Parish School Board, 308 F. 2d 491 

(5th Cir. 1962) ................. ............. ......... ...... ......... ......  9



11

PAGE

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) .......  6
Cooper v. Aaron, 358 U. S. 1 (1958) ............................... 4

Evers v. Jackson Municipal Separate School District,
------  2d ■—— (No. 20824, 5th Cir., February 13,
1964) .................................................................................. 9

Gibson v. Board of Public Instruction, 272 F. 2d 763
(5th Cir. 1959) ............................................. -----............... 9,10

Gill v. Concord City Board of Education, M. D. N. C.,
No. C-223-5-63 (February 20, 1964) ............................... 2

Jackson v. School Board of the City of Lynchburg, 321
F. 2d 230 (4th Cir. 1963) ........................-.....................  4

Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962) .......6,10

Mannings v. Board of Public Instruction, 277 F. 2d 370
(5th Cir. 1960) ........................................ -......................  9

Marsh v. County School Board of Roanoke County, 305
F. 2d 94 (4th Cir. 1962) ..............................................  5

McNeese v. Board of Education, 373 U. S. 668
(1963) ................................................................................2, 3, 4

Monroe v. Pape, 365 U. S. 167 (1961) ............................... 2

Northcross v. Board of Education of the City of 
Memphis, 302 F. 2d 818 (6th Cir. 1962) ....................... 7

Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) .......................
Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963) ..... .........  9



Isr t h e

Itttteit BtnUb Court of Appeals
F or the F ourth Circuit 

No. 9125

Obediah F armer, a minor, by A aron F armer and D ora Mae 
F armer, his parents and next friends; Cleophius E d­
wards, a minor, by L illie M. E dwards, his mother and 
next friend,

Appellants,
—v.—

T he Greene County B oard of E ducation, et al.,
Appellees.

--------------------->♦”--------------- ------

SUPPLEMENTAL BRIEF FOR APPELLANTS

Preliminary Statement

Appellants, by this supplemental brief, wish to focus 
more sharply the position asserted in their earlier brief. 
It was there maintained that the remedy provided by the 
North Carolina Pupil Enrollment Act is futile and useless. 
It will be shown here that the Act is irrelevant to the relief 
appellants seek, namely, enforcement of their right to at­
tend a desegregated school system. Moreover, even if the 
Act were relevant to the relief they seek, resort to it is not 
prerequisite to invoking federal jurisdiction.



2

ARGUMENT

I

It Was Error for the Court Below to Deny Injunctive 
Relief to Appellants for Failure to Exhaust Administra­
tive Remedies, Because Exhaustion of a State Remedy 
Is Not a Prerequisite to Invocation of a Federal Remedy 
in the Federal Courts.

Appellants seek enforcement of their federal constitu­
tional right to attend a desegregated public school system.

This right may not be defeated because relief was not 
first sought under state law. Federal courts exist to en­
force federal rights, and need not defer to state processes. 
This was made perfectly plain by the United States Su­
preme Court in McNeese v. Board of Education, 373 U. S. 
668 (1963). There the Court said, quoting Monroe v. Pape, 
365 U. S. 167, 183 (1961):

It is no answer that the State has a law which if en­
forced would give relief. The federal remedy is sup­
plementary to the state remedy, and the latter need 
not be first sought and refused before the federal one 
is invoked.

As was said in Armstrong v. Board of Education of the 
City of Birmingham, 323 F. 2d 333, 336 (5th Cir. 1963), 
McNesse and Monroe v. Pape “put beyond debate the prop­
osition that, in a school desegregation case, it is not neces­
sary to exhaust state administrative remedies before seek­
ing relief in the federal courts.” Accord, Gill v. Concord 
City Board of Education, M. D. N. C., No. C-223-5-63, Mo­
tion to dismiss complaint denied February 20, 1964 (Stan­
ley, J.).



3

The suggestion that McNeese, supra, has reference only 
to an inadequate Illinois administrative procedure is re­
futed by reading the opinion which, as shown above, clearly 
rejects the argument that exhaustion of remedies provided 
by a state law, even if adequate, is prerequisite to federal 
jurisdiction. Moreover, as Justice Harlan pointed out in 
dissent, the majority opinion would reach the administra­
tive remedies provided by North Carolina law as well as 
those in Illinois.

ARGUMENT

II

It Was E rror fo r  the Court Below to Deny Injunctive 
R elief to Appellants fo r  Failure to Exhaust Administra­
tive Rem edies, Because Appellants Have No Administra­
tive Rem edies.

The court below denied appellants’ motion for a pre­
liminary injunction apparently on the ground that appel­
lants failed to exhaust administrative remedies under the 
North Carolina Pupil Enrollment Act (224a-231a).

This was certainly error, because appellants have no ad­
ministrative remedies under the Act.

This is clear from a consideration of the relief appellants 
seek. Appellants seek not merely their own admission to 
white public schools in Greene County. Appellants seek 
complete desegregation of the Greene County public school 
system in accordance with the mandate of the United States 
Supreme Court (la-12a).

The North Carolina Pupil Enrollment Act cannot pro­
vide appellants the relief they seek. The Act offers no pro­
tection for the constitutional right to attend a desegregated



4

school system. The Act is in no sense a vehicle for de­
segregation. In fact, as will be shown, the Act serves as a 
cover for the perpetuation of segregation in the Greene 
County school system. Therefore it is unthinkable that 
appellants should be compelled to submit to the sterile ritu­
als commanded by the Act before being permitted to sue 
for protection of their constitutional rights in federal 
court. McNeese v. Board of Education, 373 U. S. 668 
(1963).

One hundred percent segregation and the Pupil Enroll­
ment Act coexist comfortably in Greene County (94a-95a; 
121a-130a; 200a-201a).1 No desegregation has ever oc­
curred under the Act. Those who have sought to employ the 
Act as an instrument of desegregation have found it a 
weak reed upon which to lean (183a).

Nor is it merely coincidental that segregation has con­
tinued to thrive in the climate of the Act. The design of the 
Act serves to thwart desegregation, or at the very least, 
to confine desegregation to the token level. The Act ac­
complishes this by shifting the administrative burden to 
desegregate the schools from the school boards, where it 
rightfully belongs,2 to the individual child. The Act dic­
tates that the implementation of the United States Supreme 
Court’s mandate must await the outcome of a contest be­
tween the individual school child and state power. The 
contest is unequal. The child must secure and prepare a 
transfer application and must file it within a short time

1 This includes segregation of teachers as well as pupils. Desegre­
gation of teachers is required by Jackson v. School Board of the 
City of Lynchburg, 321 F. 2d 230, 233 (4th Cir. 1963) ; Board of
Public Instruction of Duval County v. Braxton, ------  F. 2d ——-
(No. 20294, 5th Cir., January 10, 1964.)

2 Brown v. Board of Education, 347 U. S. 483 (1954) ; Brown v. 
Board of Education, 349 U. S. 294 (1955) ; Cooper v. Aaron, 358 
U. S. 1 (1958).



5

period (252a, 256a). Once that brief period has passed he 
is foreclosed for the rest of the year. The school board may 
merely reject the application, and give no specific reason 
for doing so (182a-183a). The child must then pursue a 
tortuous path through the procedures of appeal and hear­
ing with little prospect of relief. The process has been 
aptly characterized by this Court as an “unnegotiable ob­
stacle course” (309 F. 2d at 628).

In summary, the Act, functioning as intended, makes 
more than token desegregation almost impossible, places 
the burden of altering the status quo (the biracial school 
system) upon individual Negro pupils and their parents, 
establishes a procedure which is difficult and time-consum­
ing to complete, and prescribes standards so varied and 
vague that it is extremely difficult to prove that any in­
dividual denial is attributable to racial considerations.

Neither in theory nor in practice is the Act a plan for 
desegregation in accordance with the mandate of the United 
States Supreme Court. Quite the contrary. It is, there­
fore, small wonder that this Court condemned the exhaus­
tion of remedies requirement in Marsh v. County School 
tBoard of Roanoke County, 305 F. 2d 94 (4th Cir. 1962), 
saying:

To insist, as a prerequisite to granting relief against 
discriminatory practices, that the plaintiffs first pass 
through the very procedures that are discriminatory 
would be to require an exercise in futility. 305 F. 2d 
at 98.

That, in sum, is appellants’ position here: That, in order 
to secure federal constitutional rights, it is futile to comply 
with the provisions of a state statute which, insofar as it 
bears any relation to the federal constitutional rights sought 
to be enforced, serves to frustrate these rights. Put an­



6

other way, appellants’ position is that the indulgence of 
applications for transfer from initial assignments based 
on race does not make the Act a desegregation plan, and, 
since the Act is not a desegregation plan, it is irrelevant to 
the enforcement of ajjpellants’ right to attend a desegre­
gated public school system.

In Jeffers v. Whitley, 309 F. 2d 621 (4th Cir. 1962), 
this Court served notice that the Act, in practice, is any­
thing but a plan for desegregation. There, as here, a 
school board which operated a totally segregated system 
sought, in a federal suit, to take shelter behind the exhaus­
tion of remedies requirement of the North Carolina Pupil 
Enrollment Act. This Court brushed aside the defense, 
saying:

[W]hen an administrative remedy respecting school 
assignments and transfers, however fair upon its face, 
has, in practice, been employed principally as a means 
of perpetuation of discrimination and of denial of 
constitutionally protected rights, we have consistently 
held it inadequate. A remedy so administered, need 
not be exhausted or pursued before resort to the courts 
for enforcement of the protected rights. 309 F. 2d at 
628.

It is now time for this Court to declare that the Act, 
in theory as well as practice, is inadequate to protect 
federal constitutional rights in a manner consistent with 
the mandate of the United States Supreme Court. Specifi­
cally, this calls for the explicit overruling of Carson v. 
War lick, 238 F. 2d 724 (4th Cir. 1956), which held that the 
Act is a valid plan for desegregation on its face. School 
children need not apply for that to which they are entitled 
as of right.



7

This Court should make clear beyond peradventure that 
compliance with this state statute, which does not and cannot 
enforce federal constitutional rights, is not a prerequisite 
to the enforcement of federal constitutional rights in the 
Federal Courts.

Northcross v. Board of Education of the City of Mem­
phis, 302 F. 2d 818 (6th Cir. 1962) points the way for 
decision in this case. There, as here, the school board 
operated a biracial school system. There, as here, plain­
tiffs prayed for an order enjoining the school board from 
operating a biracial school system or, in the alternative, 
for an order to the board to submit a plan for the reorgani­
zation of the schools on a unitary nonracial basis. There, 
as here, the defendant board sought to take refuge behind 
a pupil placement statute and claimed that the plaintiffs 
should have exhausted putative remedies under the stat­
ute. The Court of Appeals for the Sixth Circuit held that 
the pupil placement statute was no plan for desegregation 
and that, therefore, its provisions could not impede plain­
tiffs in the enforcement in federal court of their federal 
right to attend a desegregated public school system.

Preliminarily, the court set forth the constitutional re­
quirement, 302 F. 2d at 823:

Minimal requirements for non-racial schools are 
geographic zoning, according to the capacity and fa­
cilities of the buildings and admission to a school 
according to residence as a matter of right. “ Obvi­
ously the maintenance of a dual system of attendance 
areas based on race offends the constitutional rights 
of the plaintiffs and others similarly situated and 
cannot be tolerated.” Jones v. School Board of City 
of Alexandria, Virginia, 278 F. 2d 72, 76, C. A. 4.

Next, the court described the theory and practice of the 
pupil placement statute (302 F. 2d at 823):



8

The Pupil Assignment Law assigned, by legislative 
enactment, all children who had previously been en­
rolled in the schools to the same schools that they 
had attended under the constitutional and statutory 
separate racial system. They were to remain in these 
same schools until graduation unless transferred by a 
request of both parents. . . .

Any pupil through both parents may request a 
transfer but in the final analysis it is up to the school 
board to grant or reject it. Although an appeal may 
be taken to the courts, it would be an expensive and 
long drawn out procedure, with little freedom of action 
on the part of the courts. In determining requests 
for transfers, the board may apply the criteria here­
tofore mentioned. None of these criteria is based on 
race, but in the application of them, one or more could 
always be found which could be applied to a Negro.

Then the court passed on the adequacy, both in theory 
and practice, of the statute to end the biracial school sys­
tem (302 F. 2d at 823) :

These transfer provisions do not make of this law a 
vehicle to reorganize the schools on a non-racial basis. 
Nor has the practice for four years under the law 
been in the direction of establishing non-racial schools. 
Negro children cannot be required to apply for that 
to which they are entitled as a matter of right. If they 
are deprived of their constitutional rights, they are 
not required to seek redress from an administrative 
body before applying to the courts. Borders v. Rippy, 
247 F. 2d 268, C. A. 5. The burden rests with the 
school authorities to initiate desegregation. Cooper 
v. Aaron, 358 U. S. 1, 7, 78 S. Ct. 1401, 3 L. Ed. 2d 
5. . . . As we have previously said, the Pupil Assign­



9

ment Law cannot serve as a plan to organize the 
schools as a non-racial system.

Of course, the exhaustion of remedies requirement was 
held to be no impediment to the plaintiffs’ suit (302 F. 2d 
at 823):

We do not discuss exhaustion of remedies under the 
statute for the reason that we hold the Pupil Assign­
ment Law is not adequate as a plan for reorganizing 
the schools into a non-racial system.

The Fifth Circuit has consistently held that pupil place­
ment statutes are no defense to class actions to desegregate 
the public schools. Gibson v. Board of Public Instruction, 
272 F. 2d 763 (5th Cir. 1959); Mannings v. Board of Pub­
lic Instruction, 277 F. 2d 370 (5tli Cir. 1960); Augustus v. 
Board of Public Instruction, 306 F. 2d 862 (5th Cir. 1962); 
Bush v. Orleans Parish School Board, 308 F. 2d 491 (5th 
Cir. 1962); Potts v. Flax, 313 F. 2d 284 (5th Cir. 1963). 
Naturally, no individual plaintiff need exhaust adminis­
trative remedies under these statutes. Armstrong v. Board 
of Education of the City of Birmingham, 323 F. 2d 333 
(5th Cir. 1963); Evers v. Jackson Municipal Separate
School District,------F. 2 d -------  (No. 20824, 5th Cir., Feb.
13, 1964), and cases cited.

In Bush, the Fifth Circuit said (308 F. 2d at 499) :

'This court, like both Judge Wright and Judge Ellis, 
condemns the Pupil Placement Act when, with a fan­
fare of trumpets, it is held as the instrument for carry­
ing out a desegregation plan while all the time the 
entire public knows that in fact it is being used to 
maintain segregation by allowing a little token de­
segregation. When the Act is appropriately applied,



10

to individuals as individuals, regardless of race, it 
has no necessary relation to desegregation at all. . . . 
The Act is not an adequate transitionary system in 
keeping with the gradualism implicit in the “ deliberate 
speed” concept. It is not a plan for desegregation at 
all.3

CONCLUSION

Appellants’ submissions are simple and supported by 
reason and authority: Racial segregation persists in the 
Greene County public school system. Appellants seek in 
this suit extirpation of the biracial school system. The 
North Carolina Pupil Enrollment Act is not designed to, 
nor does it, provide for desegregation in accordance with 
the mandate of the Supreme Court of the United States. 
The provisions of the Act are, therefore, irrelevant to this 
suit and compliance with them is not prerequisite to the 
relief sought. Of course, the district court’s denial of in­
junctive relief was error. On remand the district court 
should be directed to provide for reorganization of the 
schools on a unitary non-racial basis, and pending the 
accomplishment of such reorganization, require the appel­

3 The court cited Gibson, 272 F. 2d at 766:
[W ]e cannot agree with the district court that the Pupil 

Assignment Law . . . met the requirements of a plan of 
desegregation of the schools or contituted a “reasonable start 
toward full compliance” with the Supreme Court’s May 17, 
1954 ruling. That law and [implementing] resolutions do no 
more than furnish the legal machinery under which com­
pliance may be started and effectuated. Indeed, there is noth­
ing in either the Pupil Assignment Law or the implementing 
resolution clearly inconsistent with a continuing policy of com­
pulsory racial segregation.



11

lee Board to permit plaintiffs and the members of their 
class “ freedom of choice” in obtaining school assignments. 
Jeffers v. Whitley, 309 F. 2d 621, 629 (4tli Cir. 1962).

Respectfully submitted,

Conrad (). P earson

203% E. Chapel Hill Street 
Durham, North Carolina

Jack Greenberg 
Derrick A. Bell, J r.
Norman C. A m a k er,

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

Of Counsel
J. L eV onne Chambers



38