Gibson v. Dade County, FL Board of Public Instruction Appellants' Brief

    Imteib BtnUn (fnart of Appeals
Fifth Circuit

No. 16,482

THEODORE GIBSON, as next friend for THEODORE 
GIBSON, JR., e t  a l .,

Appellants,
v.

BOARD OF PUBLIC INSTRUCTION OF DADE 
COUNTY, FLORIDA, e t  a l .,

Appellees.

Appeal F rom the U nited States D istrict Court 
eor the Southern District of F lorida

APPELLANTS' BRIEF

G. E . Graves, J r.,
802 N.W. Second Avenue, 

Miami, Florida,
E dwin L. Davis,

941 N.W. Second Avenue, 
Miami, Florida,

R obert L. Carter,
T hurgood Marshall, 
Constance Baker Motley, 

107 West 43rd Street, 
New York, New York, 

Attorneys for Appellants.



Imteii States dnart nf Appeals
Fifth Circuit

No. 16,482

• o

T heodore Gibson, as next friend  for T heodore 
Gibson, J r., et al.,

Appellants,
v.

B oard of P ublic I nstruction of Dade County, 
F lorida, et al.,

Appellees.
o

A ppeal F rom the United States D istrict Court 
for the Southern District of F lorida

APPELLANTS’ BRIEF

Statement of the Case

This is an appeal from an order of the United States 
District Court for the Southern District of Florida dismiss­
ing the appellants’ amended complaint, on the ground that 
it fails to set forth a justiciable case or controversy upon 
which the court could exercise its judicial power (E. 10- 
13).

Appellants are infant Negro pupils residing in Dade 
County, Florida, their parents and next friends who filed 
the complaint below seeking a declaratory judgment that 
Article 12, Section 12 of the Constitution of Florida and 
Section 228.09, Florida Statutes Annotated, 1941, requiring 
racial segregation in the state’s public schools, may not be



2

enforced by defendant school authorities of Dade County 
(R. 5). An interlocutory and permanent injunction are also 
sought to enjoin appellees from requiring the minor 
appellants and all other Negroes of public school age to 
attend racially segregated schools in Dade County (R. 
5-6). Appellees moved to dismiss the amended complaint 
on the ground, inter alia, that it fails to allege sufficient 
ultimate facts to show the existence of a justiciable issue 
between them and appellants or the class which they rep­
resent (R. 8-9).

The court below granted the motion and dismissed the 
complaint (R. 10). In its stated reasons for decision, the 
court concluded it had no jurisdiction to hear or determine 
the case in view of appellants’ failure to allege that they 
had sought admission to and had been denied admission to 
integrated schools by appellees (R. 12). It held that there 
“ is presently no act of the defendants constituting any 
deprivation of any of the plaintiffs’ rights before this 
Court nor has there been any desegregation plan submitted 
by the defendants for this Court’s consideration” (R. 13). 
This ruling was made despite the fact that the complaint 
specifically alleged that: (1) the public schools of Dade 
County were presently being operated on a racially segre­
gated basis; (2) appellants had filed a petition requesting 
appellees to desegregate these schools and comply with the 
law of the land; (3) appellees had refused to desegregate the 
schools and had adopted a policy of continued segregation; 
(4) each appellant was seeking admission to school with­
out racial segregation; and (5) that the constitutional and 
statutory provisions requiring segregation were being en­
forced by appellees in violation of the Fourteenth Amend­
ment.



3

Specification of Errors Relied Upon

1. The court below erred in dismissing the complaint on 
the grounds that it failed to set forth a justiciable 
case or controversy.

2. The court below erred in ruling that the absence 
of an allegation in the complaint that the appellants 
have sought admission to integrated schools and have 
been denied admission by appellees, in violation of 
appellants’ constitutional rights, divested the court 
of the power to proceed further in the case.

3. The court below erred in ruling that the statement of 
policy of appellees to continue to maintain racially 
segregated schools did not vest the court with juris­
diction to determine this cause.

4. The court below erred in ruling that there is pres­
ently no act of appellees constituting any deprivation 
of any of appellants ’ rights, and that it could not act 
because no plan of desegregation had been submitted 
by appellees for the court’s consideration.

ARGUMENT

The Complaint Sets Forth A Justiciable Case or 
Controversy Upon Which A Federal Court Should 
Exercise Its Judicial Power.

1. The complaint clearly and succinctly sets forth that 
infant appellants, who by this action seek admission to the 
public schools of Dade County, Florida, without racial seg­
regation, are Negro citizens of the United States and the 
State of Florida and satisfy all of the requirements for ad­
mission to Dade County’s public schools (R. 3). The com­
plaint also sets forth that appellees, the Board of Public 
Instruction of Dade County, its superintendent and indi­
vidual members, jointly maintain and supervise all of the



4

public schools of Dade County under a system which main­
tains certain schools exclusively for the education of white 
children and others for the education of colored children 
only (R. 3).

In addition, it is alleged: that on September 7, 1955, 
appellants petitioned appellee Board to abolish racial seg­
regation in its schools as soon as practicable in conformity 
with the second decision of the Supreme Court of the 
United States in Brown v. Board of Education of Topeka, 
349 U. S. 294 (R. 3-4); that the Board neither desegregated 
the schools nor took any steps towards the establishment 
of an integrated school system; on the contrary, it adopted 
a policy expressly committing the Board to continue to 
operate, maintain and conduct the Dade County Schools 
on a non-integrated basis until further notice, in accord 
with the laws and Constitution of Florida requiring racial 
segregation therein (R. 4); that the Board refused to de­
segregate the schools operated and maintained by it as 
soon as practicable (R. 5); and that constitutional and 
statutory provisions requiring racial segregation were 
being enforced despite the fact that they violate the Four­
teenth Amendment to the Constitution of the United States 
(R. 5).

Such a complaint clearly presents an issue—the validity 
of the racially segregated school system presently in opera­
tion in Dade County—upon which a federal court can and 
should act. Brown v. Board of Education of Topeka, supra. 
“ If this issue does not present a justiciable controversy, 
it is difficult to conceive of one.” Bush v. Orleans Parish 
School Board, 138 F. Supp. 337, 340 (E. D. La. 1956), aff’d, 
— F. 2d — (5th Cir. decided March 1, 1957).

Despite the foregoing allegations, the court below ruled 
that since appellants nowhere alleged that they had ever 
sought admission to integrated schools and had been de­
nied admission to such schools by appellees, in violation 
of plaintiffs’ constutional rights, it had nothing before it



to decide (R. 12). But such an allegation is not essential 
to a statement of a valid cause of action in the circum­
stances of this case. Appellants do not and cannot seek 
specific assignment to particular schools. Rather, they 
seek an end to appellees’ policy of racial segregation in 
the public schools. Appellants cannot, as yet at any rate, 
object to school assignment on any basis other than race. 
Thus, this case presents the identical issue which was re­
cently presented to this Court in the Bush case, supra, 
wherein this Court stated:

Appellees were not seeking specific assignment to 
particular schools. They, as Negro students, were 
seeking an end to a local school board rule that re­
quired segregation of all Negro students from all 
white students. As patrons of the Orleans Parish 
School system they are undoubtedly entitled to have 
the district court pass on their right to seek relief. 
Jackson v. Raw don (5 Cir.), 235 F. 2d 93, cert. den. 
352 U. S. 925, and see School Board of the City of 
Charlottesville v. Allen, supra.
Moreover, so long as assignments could be made 
under the Louisiana constitution and statutes only 
on a basis of separate schools for white and colored 
children to remit each of these minor plaintiffs and 
thousands of others similarly situated to thousands 
of administrative hearings before the board for relief 
that they contend the Supreme Court has held them 
entitled to, would, as the trial judge said, “ be a vain 
and useless gesture, unworthy of a court of equity, 
* * * a travesty in which this court will not partici­
pate.” See Adkins v. Newport News School Board, 
(D. C. E. D. Va.), decided 1/11/57, 25 L. W. 2317.

Nor, we submit, is such an allegation as that deemed 
necessary below to a statement of a good cause of action 
under the Federal Civil Rights Statutes. This Court re­



6

cently ruled in Heyward v. Public Housing Administration, 
238 F. 2d 689 (5th Cir. 1956) that a cause of action is stated 
under the Civil Eights Statutes, where it is claimed in effect 
that Negroes are not permitted to make application for a 
public facility limited by public officials to white persons 
(at 689). As shown by the allegations of the complaint, 
appellants’ claim here is that since the schools of Dade 
County are and have been operated on a racially segregated 
basis from the beginning pursuant to the constitution and 
laws of the State of Florida, appellants are legally and 
actually prohibited from seeking admission to white schools. 
Or, to put it another way, appellants’ claim is that appel­
lees’ refusal to comply with the Supreme Court’s decision 
in the Broivn case, after having been requested to do so by 
them on September 7, 1955, or to come forward with a 
plan for desegregation of the Dade County Schools, vio­
lates their constitutional right not to be required to at­
tend a racially segregated school. That this claim pre­
sents a valid cause of action finds support in the decided 
cases: Jackson v. Rawdon, 235 F. 2d 93 (5th Cir. 1956), 
cert, denied, 352 IT. S. 925; Bush v. Orleans Parish School 
Board, supra; School Board of City' of Charlottesville v. 
Allen, 240' F. 2d 59 (4th Cir. 1956); cert, denied, 353 U. S. —, 
1 L. ed. 2d 664; Whitmore v. Stillwell, 227 F. 2d 188 (5th 
Cir. 1955); Evans v. Members of the State Board of Edu­
cation, 145 F. Supp. 873 (D. Del. 1956).

In School Board of City of Charlottesville v. Allen, 
supra, defendant school boards similarly claimed that the 
plaintiffs were not entitled to relief “ because they 
[had] not individually applied for admission to any par­
ticular school and been denied admission.” In reply to 
this the Court of Appeals for the Fourth Circuit ruled: 
“ The answer is that in view of the announced policy of the 
respective school boards any such application to a school 
other than a segregated school maintained for colored peo­
ple would have been futile; and equity does not require



7

the doing of a vain thing as a condition of relief” (at 63- 
64).

Thus, the absence of a specific allegation, that appel­
lants here sought admission to integrated schools and were 
denied admission by appellees in violation of appellants7 
constitutional rights, does not preclude the court below 
from proceeding to a determination of the merits of this 
cause.

2. The August 17, 1955, statement of policy is clear 
and concise:

It is deemed by the Board that the best interest 
of the pupils and the orderly and efficient adminis­
tration of the school system can best be preserved if 
the registration and attendance of pupils entering 
school commencing the current school term remains 
unchanged. Therefore, the Superintendent, princi­
pals and all other personnel concerned are herewith 
advised that until further notice the free public 
school system of Dade County will continue to be 
operated, maintained and conducted on a noninte- 
grated basis.

This is an unquestionable and conclusive refusal on de­
fendants’ part to abide by the decision in the School Seg­
regation Cases. Cf. Bush v. Orleans Parish School Board, 
supra. And, despite the September 7 petition, the Board 
refused to depart from its already decided policy of Au­
gust 17. If the justiciable issue in school desegregation 
cases is whether a school board may operate schools under 
its jurisdiction on a racially segregated basis, then such 
issue is patently presented by a complaint which alleges that 
a petition has been filed with the school board requesting de­
segregation and the board had adopted a policy statement 
declaring that “ * * * until further notice the free public 
school system of Dade County will continue to be operated, 
maintained and conducted on a non-integrated basis” (R.



8

4), and takes no action in respect to the aforementioned 
petition filed. Especially is this true when such a statement 
of policy is considered, upon a motion to dismiss, in the 
light of other facts in this complaint, which include an alle­
gation that the constitutional and statutory provisions of 
the state requiring racial segregation in the public schools 
are being enforced by appellees (E. 5).

in Bush v. Orleans Parish School Board, supra, 341; 
School Board of City of Charlottesville v. Allen and County 
School Board of Arlington County v. Thompson, supra, 63- 
64; and in Jackson v. Bawdon, supra, 95, the defendant 
boards made similar announcements," "and the courts re­
garded them as sufficient denials of appellants’ rights to 
present a justiciable issue.

3. The court below ruled that whether appellees will 
follow the decision of the United States Supreme Court 
in the case of Brown v. Board of Education of Topeka, 
supra, cannot yet be determined (E. 12). It expressed the 
view that it believes that these appellees have not lightly 
taken their required oath to uphold the Constitution of the 
United States (E. 12). This was plain error, in view of 
the fact that the court was making such a ruling upon a 
motion to dismiss, for the purposes of which the allega­
tions of the complaint are deemed admitted. This Court 
very recently held in Avery v. Wichita Falls Independent 
School District, 241 F. 2d 230 (5th Cir. 1957) that “ an 
issue depending largely on the good faith of the defendants 
can be better determined by the district court after a full 
and fair hearing” (at 234). There has been no hearing 
whatsoever in this case, and the complaint certainly raises 
a question as to the good faith of these appellees.

Finally, the court below, in ruling that there was no act 
of appellees before it which constituted a deprivation of ap­
pellants ’ rights, apparently places reliance on the fact 
that appellees had not submitted any plan of desegregation 
to the court for its consideration (E. 13). Cf. Bell v.



9

Hippy, 133 F. Supp. 811 (N. D. Tex. Dallas Div.). This 
was error for the reason that defendants could hardly 
submit such a plan upon a motion to dismiss. Avery v. 
Wichita Falls Independent School District, supra. The 
court below could consider such a plan after declaring the 
right of appellants to be admitted to schools without dis­
crimination because of race or color, Whitmore v. Stillwell, 
supra, only in connection wtih the exercise of its discretion 
to grant or withhold an injunction, pending execution of the 
plan. Brown v. Board of Education of Topeka, supra; 
Jackson v. Rawdon, supra; Avery v. Wichita Falls Inde­
pendent School District, supra.

CONCLUSION

For the foregoing reasons, the judgment of the 
court below is erroneous and should be reversed by 
this Court.

Respectfully submitted,

Gr. E . Graves, J r.,
802 N.W. Second Avenue, 

Miami, Florida,
E dwin L. Davis,

941 N.W. Second Avenue, 
Miami, Florida,

R obert L. Carter,
T hurgood Marshall, 
Constance Baker Motley, 

107 West 43rd Street, 
New York, New York,

Attorneys for Appellants.



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