Davis v. Cook Supplemental Reply Brief in Opposition to Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1949.

No. 808.

SAMUEL L. DAVIS, Individually and on Behalf of 
Others Similarly Situated,

Petitioner,
v.

E. S . COOK et ai., Constituting the Board of Education 
of the City of Atlanta.

SUPPLEMENTAL REPLY BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT.

J. C. SAVAGE,
803 C. & S, National Bank Bldg., 

Atlanta 3, Georgia,
J. M. B. BL00DW0RTH,

803 C. &  S . National Bank Bldg., 
Atlanta 3, Georgia,

M. F. GOLDSTEIN,
1130 C. &  S. National Bank Bldg., 

Atlanta 3, Georgia,
B. D. MURPHY,

1130 C. & S . National Bank Bldg., 
Atlanta 3, Georgia,

Counsel for Respondents.

St . L ouis L a w  Printing Co., 415 North Eighth Street. CEntral 4477.



IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1949.

No. 808.

SAMUEL L. DAVIS, Individually and on Behalf of 
Others Similarly Situated,

Petitioner,
v.

E. S . COOK et al., Constituting the Board of Education 
of the City of Atlanta.

SUPPLEMENTAL REPLY BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT.

This supplemental reply brief opposing the writ of 
certiorari is filed in answer to the supplemental brief 
which has just been served upon the Respondents.

While this supplemental brief boldly asserts that there 
is a direct conflict between the decision by the Court of 
Appeals for the Fifth Circuit in this case and the decision 
by the Court of Appeals for the Fourth Circuit in Carter v. 
School Board of Arlington County, Virginia, 182 F. 2d 531, 
even a casual examination of the two opinions will com­
pletely refute this claim. This we will briefly demonstrate.

Carter was a pupil in the Hoffman-Boston High School 
in Arlington County, Virginia. He applied for permission 
to take a certain course of study which was not offered by



the school. One of the defenses rather faintly asserted 
in the trial court was that the intervenor Brevard had not 
seriously applied for this course, inasmuch as his conver­
sation with the principal was a casual one, and the prin­
cipal had no opportunity of taking the matter up with the 
superintendent. The Fourth Circuit, at 182 i\ 2d 537, 
points out that the refusal was not based upon the casual 
manner in which it was presented, but it inevitably arose 
because no course in auto mechanics could be taught in 
that school, facilities being lacking. Therefore, that case 
does not present any question of administrative remedy. 
The school regulations embodied no administrative pro­
cedure, and made no provision for an appeal, which had 
to be exhausted, and a defense of that nature certainly had 
no substance. But in Cook v. Davis, 178 F. 2d 595, an 
entirely different condition of facts exists. There Davis 
was employed under a scheme of classification which pro­
vided for appointments, appraisement, and appeal, and 
as the court points out, page 599:

“ Each teacher was mailed a letter and a copy of 
the Classification Scheme and salaries, and of the 
procedure for its operation. The letter stated what 
the teacher’s placement was and his salary . . . and 
it called attention to the provisions for appeal for a 
different placement.”

It was under such facts that the Circuit Court of Ap­
peals for the Fifth Circuit, following the decisions of this 
Court, held that the administrative remedy should first be 
exhausted.

The supplemental brief does not deny the other points 
raised in opposition to the grant of the writ of certiorari, 
to-wit, that the reviewing court was dissatisfied with the 
results in the trial court on two additional grounds: (1) 
that the evidence to sustain the plaintiff’s claim was in­
sufficient, and (2) that the decree was vague and indefinite.

—  2 —



In the original petition for writ of certiorari, the claim 
was boldly made that the appellate court had affirmed 
the findings of fact by the trial court. We pointed out 
the error in this claim, and it need not be repeated. Since 
our opponents do not discuss this phase of the question, 
it must be assumed that we are correct in our claims. But 
the decision under review does not leave the question in 
doubt. We quote from it briefly:

“ The new Superintendent, Miss Jarrell, who with 
the white and colored principals in the several schools 
made the placements each year, testifies that Davis 
made no complaint; and since this suit was pending, 
she asked him if he was still dissatisfied, and he said 
he ‘ thought we were doing the best we could’ ; and 
she asked him to come and talk about his salary, but 
he never did. A few other teachers complained to 
her, and each complaint was satisfactorily adjusted. 
No one has ever appealed to the Atlanta Board or the 
State Board. Neither Davis nor any other witness 
denies this . . . The Superintendent and the defend­
ants who testified say they are making a sincere, dili­
gent and successful effort to classify all their teachers 
according to their individual worth as teachers. No 
teacher but Davis testified, and he makes a very un­
impressive case for himself.”

Before the Court can find error in the decision below, 
it must determine that the findings of fact above recited 
are not supported by the evidence. Aside from the fact 
that the evidence before the Court is not properly a part 
of the record from the Circuit Court of Appeals, it pre­
sents at most a difference between counsel and the appel­
late court regarding the evidence, and this Court has in­
variably refused to grant certiorari where only a conflict 
of fact is presented.

That the case must go back in any event to the district 
court appears from the following holding:

—  3 —



“The decree too is very vague; it could not be of 
much practical help to the Board. Nor could it be 
easily enforced, for it only states in general terms a 
duty which no one disputes, with no specifics at all 
pointed out.” 178 F. 2d 595, at 599.

The contention, page 3 of the supplemental brief, that 
in both instances the problem is substantially identical— 
whether a state may provide better and greater advantages 
to white persons than it affords to negroes, in similar cir­
cumstances, solely because of race and color—is not cor­
rect.

The case under review was a class bill asserting dis­
crimination in paying teachers. The Carter case involved 
the right of two pupils to be instructed in specific sub­
jects.

But the fundamental difference in the two cases is this: 
In the case at bar the regulations and the law provided 
specific administrative remedies which were not pursued. 
In the Carter case, no administrative remedy was avail­
able. None was provided by regulation or law.

Neither the trial court nor the Court of Appeals for the 
Fourth Circuit refers to any provision for an administra­
tive remedy. All the trial judge said was that apparently 
the request of the pupil that instruction be given him in 
a particular subject “was never seriously pressed.” The 
question there was not whether the pupil had failed to 
pursue an administrative remedy available to him whereby 
he might obtain what he sought, but whether he really 
wanted or had asked for what he sued to obtain. Mani­
festly there could be no discrimination against him if he 
did not want the course.

The present case is altogether different, and it is clearly 
apparent that there is no conflict between the decision of 
the Fourth Circuit in the Carter case, and that of the

—  4 —



5

Fifth Circuit in this case. The contention that there is a 
conflict is just as untenable as the contention in the origi­
nal brief of counsel for petitioner, reiterated in the sup­
plemental brief, that the decision in this case conflicts 
with that of the Ninth Circuit in Transpacific Air Lines v. 
Hawaiian Air Lines, 174 F. 2d 63.

It is contended that had the case at bar been in the 
Court of Appeals for the Fourth Circuit, the decision 
would have been different. We need not speculate about 
what the Fourth Circuit might have done with this case. 
We must assume that it would have followed the law, as 
did the Fifth Circuit.

But the question here is not what the Fourth Circuit 
might have done, but whether the writ of certiorari should 
be granted. We think it should not, not only because peti­
tioner has wholly failed to comply with the rules of this 
Court, but because the decision below is right. Further­
more, no novel or unusual question is presented; on the 
contrary, the principle of non-discrimination asserted by 
the petitioner is fully recognized and accepted.

Respectfully submitted,
J. C. SAVAGE,

803 C. & S. National Bank Bldg., 
Atlanta 3, Georgia,

J. M. B. BLOODWORTH,
803 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,
M. F. GOLDSTEIN,

1130 C. &  S. National Bank Bldg., 
Atlanta 3, Georgia,

B. D. MURPHY,
1130 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,
Counsel for Respondents.