Alston v. School Board of the City of Norfolk Brief of Appellants

    United States Circuit Court of Appeals 
for the Fourth Circuit

M el v in  0 .  A lsto n , and the N orfolk  
T e a c h e r s ’ A ssociation , an Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S chool  B oard of t h e  C it y  of N orfo lk , a 
Body Corporate, and C. W. M ason , 
Superintendent of Schools of Norfolk,

Appellees.

BRIEF OF APPELLANTS

Oliv er  W . H il l ,
T hurgood  M a r sh a ll ,
L eo n  A . R a n so m ,
W il l ia m  H . H a stie ,

Counsel for Appellants.
117 E. Leigh Street,
Richmond, Va.

P rin ted  by L aw  R eporte r P tg . Co., 518 5 th  St., W ashington, D. C.



SUBJECT INDEX
PAGE

Statement of the Case_______ __________ _________  1

Questions Involved________ _______ ____ ________  2

Statement of Facts___ __________________________  3

Pabt Owe : Legislative Background of Appellants ’ Case 5
I. Virginia Has Undertaken the Duty of Providing 

Free Public Education as a State Function_____  5
A. . General Supervision of the Virginia Public

School System is Vested in the State Board 
of Education_______ ____________________ 5

B. The Counties and Cities are the Units for Edu­
cation in Virginia__________ ___________ ___ 5

C. The Public School System of Virginia is Fi­
nanced Jointly by State and Local Public Funds 5

Part Two: Appellants’ Substantive Case__________  8

I. The Racial Discrimination in Salary Schedules and 
in Actual Salaries as Alleged in the Complaint is a 
Denial of Constitutional Bight to the Equal Protec­
tion of the Laws__________ :_________________  8
A. The Teachers’ Salary Schedule Being Enforced

by Appellees on its Face Provides and Requires 
a Differential in Teachers ’ Salaries Based Solev 
on Race or Color  _____________________ 10

B. The Salaries Paid to All Teachers and Princi­
pals Reveal a Racial Differential Imposed Pur­
suant to a General Practice of Unconstitutional 
Discrimination__________________________  13

C. The Equal Protection Clause of the Fourteenth
Amendment Prohibits Such Racial Discrimina­
tion Against Appellants as Teachers by Occu­
pation and Profession___ i________________ 14



II
PAGE

1. The Fourteenth Amendment Prohibits All 
Arbitrary and Unreasonable Classifica­
tions by State Agencies____________ -__ 14

2. Discrimination Because of Race or Color is 
Clearly Arbitrary and Unreasonable With­
in the Meaning of the Fourteenth Amend­
ment..._____________________________  15

D. The Equal Protection Clause of the Fourteenth 
Amendment Prohibits Such Discrimination 
Against Appellant Alston as a Taxpayer_____ 19

II. The Facts Alleged in Appellant Alston’s Pleading
Do Not Constitute a Waiver of His Right to the
Relief for Which He Prays__________________  22
Scope of Present Waiver Issue_______________  22
A. The Contract of Hire is not Affected by the Re­

lief Sought____________    24
B. The Doctrine of Waiver Has Been Held Inap­

plicable to Analogous Dealings with Public
Authorities________ ___ __ _______ _____  26
Rationale of the Decisions ... ...._________ ........ 28

C. Decision on the Waiver Was Erroneously Based 
Upon Facts not Before the District Court—.... 32

III. There Is No Merit in the Other Purported De­
fenses of Law Raised by the Answer and Not 
Relied Upon in the Argument________________ 35
A. An Amount in Controversy to Exceed $3,000 

Is Not Required to Confer Jurisdiction in This 
Case--------------------- ----------------- ----- -- 35

B. Appellants Have No Full, Adequate and Com­
plete Remedy at Law__________ _________ 37

C. The Plea of lies Judicata Is an Affirmative 
Defense and Not Now Before the Court___ _ 38

Conclusion 39



I l l

TABLE OF CASES
PAGE

American Union Telegraph Co. v. Bell Telephone Co., 
1 Fed. 698___________________________________ 38

Anderson v. Fuller, 51 Fla. 380, 41 So. 684___________  21
Black v. Ross, 37 Mo. App. 250____________ _________  22
Board of Education v. Arnold, 112 111. 11____________  21
Broom v. Wood, 1 F. Supp. 134, 136_____________ __ 36
Buchannan v. Warley, 245 U. S. 60_________ .________ 17
Chaires v. City of Atlanta, 164 G-a. 755,139 S. E. 559___  17
Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 27----- - 27
City of Cleveland v. Clements Bros. Construction Co.,

67 Ohio St. 197, 65 N. E. 885____ __ ____ ________  28
Claybrook v. City of Owensboro, 16 F. 297___ _______  20
Davenport v. Cloverport, 72 Fed. 689______ ____ 17-20-36
Di Giovanni v. Camden Ins. Association, 296 IT. S. 64___ 37
Ex parte Virginia, 100 U. S. 339_____________ __— 12-16
Frost Trucking Co. v. Railroad Commission, 271 U. S.

583__________________________________________  29
Gaines v. Missouri, 305 U. S. 337____ _____________  17
Gibbs v. Buck, 307 U. S. 66________________________ 34
Glavey v. United States, 182 U. S. 595______________  27
Glenwood Light and Water Co. v. Mutual Light, Heat

and Power Co., 239 U. S. 121 _________________
Gulf C. & S. F. R. Co. v. Ellis, 165 U. S. 150__________
Hague v. Committee for Industrial Organization, 307

U. S. 496___________________________________
Hanover Fire Ins. Co. v. Harding, 272 U. S. 494___...... .
Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E. 

109—_______________________________________ _

36
15

36
29

27
Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818-_______ 18-26
International News Service v. Associated Press, 248

U. S. 215___________________________________  36
Joyner v. Browning, 30 F. Supp. 512______________ 34
Juniata Limestone Co. Ltd. v. Fagley, et ah, 187 Pa. 193,

40 Atl. 977___________________________________ 15
Knapp v. Lake Shore, etc. Ry Co., 197 U. S. 536_______ 38
Lane v. Wilson, 307 U. S. 268_____________________ _ 17



IV
PAGE

Luke ns v. Nye, 156 Cal. 498,105 Pac. 593___________  28
McCabe v. Atchison, Topeka & Santa Pe Ry. Co., 235

U. S. 151____________________________________  17
Miller v. United States, 103 Fed. 413_____________ ___ 27
Mills v. Anne Arundel County Board of Education, et al,

30 Fed. Supp. 245______ _____ ____ _______ 13-25-36
Mills v. Lowndes, et al 26 Fed. Supp. 792____________  12
Minnesota ex rel Jennison, v. Rogers, 87 Minn. 130, 91

N. W. 438__________________________  ____ ____ 28
M’Intire v. Wood, 7 Cranch. 504___________________  38
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S.

265, rev’d, 245 N. Y. 106___________________ ____  26
Nixon v. Condon, 286 U. S. 73______________________  17
O ’Brien v. Moss, 131 Ind. 99, 30 N. E. 894____________ 22
Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760 . 21 
Opinion of the Justices, In re, — Mass. —, 22 N. E.

(2d) 49___ ___1_____ ____ _ ____________ _____  18
Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 1031____ _ 27
People ex rel Fursman, v. Chicago, 278 111., 318, 116

N. E. 158 ___________________________________  18
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716.... 28
People ex rel Satterlee v. Board of Police, 75 N. Y. 38__  27
Petroleum Exploration Inc. v. Public Service Commis­

sion, 304 U. S. 209____________________________  38
Pierre v. Louisiana, 306 U. S. 354_________________... 17
Polk v. Glover, 305 IT. S. 5_____ . _________ ___ ______  34
Puitt v. Commissioner of Gaston County, 94 N. C. 709,

55 Am. Rep. 638______ _________ ______________ 20
Railroad Tax Cases, 13 Fed. 722___________________  15
Rockwell v. Board of Education, 125 Misc. 136, 210 

N. Y. S. 582; rev’d, 214 App. Div. 431, 212 N. Y. S. 281 26
Roper v. McWhorter, 77 Va. 214______________ ___ 20
School District v. Teachers’ Retirement Fund Assn., —

Ore —, 95 P. (2d) 720; 96 P. (2d) 419.-.,..._______ 27-31
Seattle High School, etc. v. Sharpless, 159 Wash. 424, 293

Pac. 994________________________________ ___18
Settle v. Sterling, 1 Idaho, 259 _________________ 27
Simpson v. Geary, et al 204 Fed. 507________________ 15



V
PAGE

Smith v. Bourbon County, 127 U. S. 105--------------------  38
Southern Railway Co. v. Greene, 216 IT. S. 400-------------  15
Strauder v. West Virginia, 100 IT. S. 303_______  15-16-17
Swafford v. Templeton, 185 IT. S. 487--------- .------------- 36
Truax v. Raich, 239 IT. S. 33-----------------------------------  15
Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 12___________  21
Union Pacific Railway v. Public Service Corporation,

248 IJ. S. 67.___________ ___ _______ __ __ _____ 30
Whiteley County Board of Education v. Rose, 267 Ky.

283, 102 S. W. (2d) 28______________ _____ ___ 27-29
Wiley v. Sinkler, 179 U. S. 58___________________ - 36
Yu Cong Eng v. Trinidad 271 U. S. 500______________  15

CONSTITUTIONS, STATUTES AND RULES

CONSTITUTIONS CITED
United States Constitution, Amendment Fourteen-------  2
Virginia Constitution, Article IX :

Section 129_______________________   5-31
131_________________________________  6
133______________     6
135 _______    7
136 ________________________    7

PRINCIPAL STATUTES CITED
United States Code:

Title 28, Sec. 41 (1) ... ...... . ..................... ....- - ... . 36
Title 28, Sec. 41 (14)________ _-_____ ______ _ 36

Virginia Code:
Sections 611-718-649-653-777______     6
Section 786 ...____________________ ___  7-22-31
Section 646 ____ _________ ___________.......— ... 7
Section 664 _______________________ __— 22-23
Section 680 __________     32

Virginia Acts of 1928, eh. 471, p. 1186 .................... ...... . 5

RULES CITED
Federal Rules of Civil Procedure:

Rule No. 7 (a)________       24-34



United States Circuit Court of Appeals 
for the Fourth Circuit

M e l v in  0 .  A l st o n , and the N orfolk  
T e a c h e r s ’ A ssociation , an Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S chool  B oard op t h e  C it y  op N orfo lk , a  
Body Corporate, a n d  C. W. M a son , 
Superintendent of Schools of Norfolk,

Appellees.

BRIEF OF APPELLANTS

STATEMENT OF THE CASE

This is an appeal from a final judgment of the District 
Court of the United States for the Eastern District of 
Virginia in a case arising under the Constitution and laws 
of the United States, wherein appellants, plaintiffs below, 
are seeking a declaratory judgment and a permanent 
injunction.

On November 2, 1939, appellants filed a complaint chal­
lenging the system, practice and custom of the School Board 
of the City of Norfolk, (1) of establishing schedules and 
rates of pay for all Negro public school teachers substan­
tially lower than those established for white public school



2

teachers similarly situated, and (2) in actually paying to 
all Negro teachers, pursuant to such schedules, substan­
tially less than is paid to white teachers similarly situated, 
all solely because of race or color and in violation of the 
equal protection clause of the Fourteenth Amendment and 
paragraph 14 of Section 41 of Title 28 of the United States 
Code. Appellants prayed for a declaratory judgment assert­
ing the existence and unconstitutionality of this racial 
discrimination and for an injunction restraining its con­
tinuance.

On November 21, 1939, the appellees, defendants below, 
filed an answer containing four separate defenses. There­
after, the Court suggested that inasmuch as defenses in 
law were raised in the portions of the answer denominated 
“ First Defense”, “ Second Defense” and “ Third Defense” , 
the hearing and disposition of the case might be facilitated 
if argument could be made upon these defenses in advance 
of trial, treating the said defenses as a motion to dismiss 
the bill of complaint for alleged legal insufficiency.

Thereafter, pursuant to the said suggestion of the Court, 
the case was argued on February 12, 1940, as upon the ap­
pellees’ motion to dismiss the bill of complaint. No testi­
mony was taken. On February 29, 1940, the Court entered 
a final order dismissing the complaint.

QUESTIONS INVOLVED
1. Is the racial discrimination in salary schedules and in 

actual salaries as alleged in the complaint a denial of con­
stitutional right to equal protection of the laws?

2. Has the appellant Alston, by accepting employment 
as a matter of law on the facts alleged by his pleading, 
waived his right to the relief for which he prays?

3. Is there any substance to the defenses of res judicata, 
lack of jurisdiction, and adequacy of remedy at law, pleaded 
by the defendants but not relied upon in the argument or 
in the decision of the District Court?



3

m

STATEMENT OF FACTS

■ At the hearing on the motion to dismiss the only facts 
before the Court were the facts as alleged in the complaint. 
Briefly summarized, the basic facts set out in the complaint 
are as follows:

Appellant, Melvin O. Alston, is a citizen of the United 
States, and a citizen and resident of the State of Virginia. 
He is a Negro, a taxpayer of the City of Norfolk and the 
State of Virginia, and is a regular teacher in a public high 
school maintained and operated by the School Board of the 
City of Norfolk. Appellant Alston brings this action (1) as a 
teacher by profession and occupation, (2) as a taxpayer, and 
(3) as a representative of all other Negro teachers and 
principals in the public schools of Norfolk, Virginia, simi­
larly situated and affected. (Appendix, p. 41.)

Appellant, Norfolk Teachers’ Association, a voluntary 
unincorporated association, is composed of Negro teachers 
and principals in the public schools of Norfolk, Virginia, 
organized for the mutual improvement and protection of 
its members in their profession as teachers and principals 
in the public schools of Norfolk, Virginia. (Appendix, 
p. 41.)

Appellant Alston and all of the members of the appellant 
association and all other Negro teachers and principals in 
the public schools of the City of Norfolk are teachers by 
profession and are specially trained for their calling. 
(Appendix, p. 44.)

The appellee, School Board of the City of Norfolk, is an 
administrative department of the Commonwealth of Vir­
ginia having the direct control and supervision of the public 
schools of Norfolk, Virginia, and is charged with the duty 
of maintaining an efficient system of public schools includ­
ing the employment of teachers and the fixing of teachers’ 
salaries. Appellee, C. W. Mason, is the administrative and 
executive official of the public school system in Norfolk and 
is sued in his official capacity. (Appendix, pp. 41, 43.)



4

All public school teachers in Virginia, including appel­
lants and all other teachers in Norfolk, are required to hold 
teaching certificates in accordance with the rules of cer­
tification established by the State Board of Education. 
Negro and white teachers and principals alike must meet 
the same requirements to receive teachers’ certificates from 
the State Board of Education, and upon qualifying do re­
ceive identical certificates. (Appendix, pp. 42, 43.)

The appellees over a long period of years have consist­
ently pursued and maintained and are now pursuing and 
maintaining the policy, custom, and usage of paying Negro 
teachers and principals in the public schools of Norfolk less 
salary than white teachers and principals possessing the 
same professional qualifications, certificates and experience, 
exercising the same duties and performing the same serv­
ices as Negro teachers and principals. Such discrimination 
is being practiced against the appellants and all other 
Negro teachers and principals in Norfolk solely because of 
their race or color. (Appendix, p. 43.)

Pursuant to the policy, custom and usage, set out above, 
the appellees acting as agents and agencies of the Common­
wealth of Virginia have established and maintained a salary 
schedule used by them to fix the amount of compensation 
for teachers and principals in the public schools of Norfolk. 
This salary schedule (set out in full in the complaint— 
Appendix, p. 46), on its face, provides and requires a dif­
ferential in teachers’ salaries based solely on race or color.

The practical application of this salary ■ schedule has 
been, is, and will be to pay Negro teachers and principals 
of qualifications, certification and experience equal to that 
of white teachers and principals, less salary than is paid 
white teachers and principals solely because of race or color. 
(Appendix, p. 46.)

In order to qualify for his position as teacher, appellant 
Alston has satisfied the same requirements as those exacted 
of all other teachers, white as well as Negro, qualifying for 
similar positions, and he is charged with the same duties



and performs services equivalent to those of all other teach­
ers holding these certificates, white as well as Negro. Never­
theless, all white male teachers receive salaries much larger 
than the salary paid this appellant. White male high school 
teachers employed by appellees whose qualifications, cer­
tification, duties and services are the same as appellant’s 
are paid a minimum annual salary of $1200 while appellant 
Alston is paid $921. (Appendix, p. 45.)

As a taxpayer, appellant Alston has contributed to the 
fund set out of which all teachers ’ salaries are paid. As a 
taxpayer he complains of discrimination against him, solely 
on account of race or color in the distribution of the public 
fund to which he contributes. (Appendix, pp. 48-49.)

PART ONE

LEGISLATIVE BACKGROUND OF APPELLANTS’
CASE

I

Virginia Has Undertaken the Duty of Providing Free 
Public Education as a State Function

The Commonwealth of Virginia realizing that free public 
education was an essential function of government author­
ized the establishment of an adequate educational system 
by placing the following mandate in the Constitution of 
Virginia:

“ Free schools to be maintained.—The general assembly 
shall establish and maintain an efficient system of public 
free schools throughout the State. ’ ’ Article IX, Section 
129, Virginia Constitution.

Chapter 471 of the Acts of 1928, page 1186, revised, con­
solidated, amended and codified the school laws and certain 
laws relating to the State Board of Education; the act



6

repealed certain sections and substituted others in their 
place; and the new school code is codified as sections 611-718, 
inclusive, of the Virginia Code. Section 611 provides that:

“ An efficient system of public schools of a minimum 
school term of one hundred and sixty school days, shall 
be established and maintained in all of the cities and 
counties of the State. The public school system shall 
be administered by the following authorities, to-wit: 
A State board of education, a superintendent of public 
instruction, division superintendent of schools and 
county and city school boards.”

A. General Supervision of the Virginia Public School 
System Is Vested in the State Board 

of Education

Article IX of the Constitution of Virginia established 
a State Board of Education and defined its powers and 
duties. General supervision is vested in this board and the 
members thereof are appointed by the Governor subject 
to the approval of the General Assembly.

Section 131 of Article IX of the Constitution provides 
for the appointment of a Superintendent of Public Instruc­
tion by the Governor subject to confirmation of the General 
Assembly.

B. The Counties and Cities Are the Units for Education 
in Virginia

Section 133 of Article IX of the Constitution provides 
that: “ The supervision of schools in each county and city 
shall be vested in a school board, to be composed of trustees 
to be selected in the manner for the term and to the number 
provided by law.” The local school boards are declared to 
be bodies corporate with power to sue and be sued in their 
corporate names (Va. Code, Sections 653, 777).

By Section 649 of the Virginia Code each school board 
is authorized and required to appoint a division superin-



7

tendent of schools. By Section 786, the city school boards 
are required to :

. . establish and maintain therein a general system 
of public free schools in accordance with the require­
ments of the Constitution and the general educational 
policy of the Commonwealth for the accomplishment 
of which purpose it shall have the following powers 
and duties . . . :
“ Third. To employ teachers from a list or lists of 
eligibles to be furnished by the division superintendents 
and to dismiss them when delinquent, inefficient or in 
anywise unworthy of the position . . . .
‘ ‘ Twelfth. To manage and control the school funds 
of the city, to provide for the pay of teachers and of 
the Clerk of the board,

C. The Public School System of Virginia is Financed 
Jointly by State and Local Public Funds

Section 135 of Article IX of the Virginia Constitution 
provides for the distribution of state funds for school pur­
poses and Section 136 authorizes each county, city and town 
to raise additional funds for local school purposes.

Section 646 of the Virginia Code provides:

“ Of what school fund to consist.—The fund applicable 
annually to the establishment, support and maintenance 
of public schools in the Commonwealth shall consist of:
“ First. State funds embracing the annual interest 
on the literary fund; all appropriations made by the 
general assembly for public school purposes; that por­
tion of the capitation tax required by the Constitution 
to be paid into the State treasury and not returnable 
to the localities, and such State taxes as the general 
assembly, from time to time, may order to be levied.
“ Second. Local funds embracing such appropriations 
as may be made by the board of supervisors or council 
for school purposes, or such funds as shall be raised 
by levy by the board of supervisors or council, either



8

or both, as authorized by law, and donations or the 
income arising therefrom, or any other funds that may 
be set apart for local school purposes.”

Realizing that the efficiency of the school system depended 
upon an efficient teaching staff which can only be secured 
by adequate pay, the General Assembly, by Section 701, 
provided:

“ All moneys appropriated by the State for local schools, 
unless otherwise specifically provided, shall be used 
exclusively for teachers’ salaries.”

PART TWO

APPELLANTS’ SUBSTANTIVE CASE 

I

The Racial Discrimination in Salary Schedules and in 
Actual Salaries as Alleged in the Complaint Is a Denial 
of Constitutional Right to the Equal Protection of 
the Laws

The gravamen of this action is clearly set out in the 
eleventh and twelfth paragraphs of the complaint which 
allege that:

“ Defendants over a long period of years have consist­
ently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools 
of Norfolk less salary than white teachers and princi­
pals in said public school system possessing the same 
professional qualifications, certificates and experience, 
exercising the same duties and performing the same 
services as Negro teachers and principals. Such dis­
crimination is being practiced against the plaintiffs 
and all other Negro teachers and principals in Norfolk, 
Virginia, and is based solely upon their race or color. 
(Italics added.)



9

%
“ The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and 
principals in public schools in the City of Norfolk are 
teachers by profession and are specially trained for 
their calling. By rules, regulations, practice, usage 
and custom of the Commonwealth acting by and through 
the defendants as its agents and agencies, the plaintiff 
Alston and all of the members of the plaintiff associa­
tion and all other Negro teachers and principals in the 
City of Norfolk are being denied the equal protection 
of the laws in that solely by reason of their race and 
color they are being denied compensation from public 
funds for their services as teachers equal to the compen­
sation provided from public funds for and being pai d 
to white teachers with equal qualifications and experi­
ence for equivalent services pursuant to rules, regu­
lations, custom and practice of the Commonwealth 
acting by and through its agents and agencies, the 
School Board of the City of Norfolk and the Superin­
tendent of Schools of Norfolk, Virginia.” (Appendix, 
pp. 43-44.)

The District Judge, in his opinion, recognized the prin­
ciple that these allegations, accepted as true on a motion to 
dismiss, established unconstitutional discrimination against 
Negroes. It is readily apparent from the opinion that he 
had no doubt that the practice, custom, and usage of pay­
ing Negro teachers and principals less salary than white 
teachers and principals of the same professional qualifi­
cations, certification, and experience solely because of race 
or color violates the Fourteenth Amendment. We quote:

. The authorities are clear, I think however, that 
there can be no discrimination in a case of this kind, 
if such discrimination is based on race or color alone. 
Under our constitution, particularly the fourteenth 
amendment, all citizens stand upon equal footing before 
the law and are entitled to equal benefits and privileges 
where state action is involved; or, to state the propo­
sition another way, a state can not, through its consti­
tution, statutes, or rules and regulations, or through 
one of its administrative bodies, arbitrarily discrimi-



10

nate against persons within its jurisdiction. In the 
words of the fourteenth amendment, a state cannot 
deny to any person within its jurisdiction the equal 
protection of the law. That principle is firmly estab­
lished, and, if and when a case of discrimination based 
on race or color is presented, the person discriminated 
against will be granted appropriate relief.
‘ ‘ The view that I take of the plaintiff’s case, with some 
hesitation I will admit, does not render it necessary 
for the Court to pass on the unconstitutional discrimi­
nation charged in the complaint to have been practiced 
against the plaintiff, other than to observe that the 
complaint charges in clear and explicit language that 
the discrimination in compensation is based on race or 
color alone.” (Italics added.) (Appendix pp. 60-61.)

This cause of action is based upon a system of racial dis­
crimination set up by administrative rulings of the appellees 
acting as administrative agencies of the Commonwealth of 
Virginia. It involves the question of the distribution of 
public funds by state agencies pursuant to a system which 
discriminates against Negroes solely because of race or 
color.

The discriminatory practice, usage and custom of the 
appellees consist of: (1) a salary schedule which on its 
face provides and requires a differential in teachers’ sal­
aries based solely on race or color, and, (2) the practice 
of fixing teachers ’ salaries pursuant to this schedule in such 
a manner as to provide less salary for Negro teachers and 
principals than for white teachers and principals with equal 
qualifications and experience solely because of race or color.

A. The Teachers’ Salary Schedule Being Enforced by Ap- 
lees on Its Face Provides and Requires a Differential in 
Teachers’ Salaries Based Solely on Race or Color

Pursuant to the policy, custom and usage set out above 
the appellees acting as agents and agencies of the Common­
wealth of Virginia have established and maintained a salary



11

schedule used by them to fix the amount of compensation 
for teachers and principals in the public schools of Norfolk. 
This salary schedule provides as follows:

Negro— 
Elementary

Salaries now 
being paid 

teachers new 
to the system

Maximum salary 
being paid 

(affecting only 
those in system 

before increment 
plan was 

discontinued)

Normal Certificate $ 597.50 $ 960.10
Degree 

High School
611.00 960.00

Women 699.00 1,105.20
Men

White
Elementary

784.50 1,235.00

Normal Certificate 850.00 1,425.00
Degree 

High School
937.00 1,425.00

Women 970.00 1,900.00
Men 1,200.00

(Appendix,
2,185.00 

p. 46.)

This salary schedule is a basic factor of the discrimina­
tory system. The evil in the schedule is two-fold: first, it 
provides a lower minimum for Negro teachers new to the 
system than for white teachers with equal professional 
qualifications and new to the system; and, second, it pro­
vides a higher maximum for white teachers than for Negro 
teachers. Under this schedule appellant Alston and other 
Negro teachers can never receive more than the maximum 
of $1235 for Negroes which is but $35 more than the mini­
mum for white male high school teachers, and $950 less 
than the maximum for white male high school teachers.

Under this schedule a Negro teacher must start at a 
lower salary than a white teacher and no matter how long 
he teaches or how well, how many degrees he obtains at 
college or how proficient he may become he can never re­
ceive as much as the maximum for white teachers solely



12

because of Ms race or color. TMs system of racial dis­
crimination destroys the opportunity of Negro teachers 
to bargain freely for their salaries. Their freedom of con­
tract is limited to the figures on the schedule which are 
lower than the corresponding figures for white teachers.

Two decisions of similar cases in this circuit clearly rec­
ognize that such discrimination as this is a denial of con­
stitutional rights. In the first case, Mills v. Lowndes, et al., 
26 Fed. Supp. 792 (D. C. Md. 1939), a Negro public school 
teacher in Maryland challenged the constitutionality of a 
state statute which provided a higher minimum salary for 
white teachers than for colored teachers. The Court de­
clared that this type of schedule was unconstitutional:

“ . . . The plaintiff is a qualified school teacher and 
has the civil right as such to pursue his occupation 
without discriminatory legislation on account of his 
race or color. While the State may freely select its 
employees and determine their compensation it would, 
in my opinion, be clearly unconstitutional for a state 
to pass legislation which imposed discriminatory bur­
dens on the colored race with respect to their qualifi­
cations for office or prescribe a rate of pay less than 
that for other classes solely on account of race or 
color . . . ” (26 Fed. Supp. at 801.)

In the Mills case, supra, the schedule provided for mini­
mum salaries only—in the instant case the discrimination 
is not only as to minimum salaries but maximum salaries 
as well. In the Mills case there was a statutory salary 
schedule—in the instant case there is a salary schedule 
established by administrative ruling of an administrative 
agency of the state.

There can be no question but that the prohibitions of the 
Fourteenth Amendment apply with full vigour to the acts 
of such agencies. Ex parte Virginia, 100 U. S. 339 (1879).



13

H B. The Salaries Paid to all Teachers and Principals Reveal 
a Racial Differential Imposed Pursuant to a General 
Practice of Unconstitutional Discrimination

Using the salary schedule set out above as a basis, the 
appellees fix the salaries of the Negro teachers in the public 
schools of Norfolk who are new to the system at a lower 
rate than white teachers new to the system who have identi­
cal state teachers’ certificates, years of experience, exer­
cising the same duties and performing essentially the same 
services (Appendix, p. 46). Similarly Negro teachers in 
intermediary salary status are paid less than white teachers 
with equivalent intermediate status (Appendix, p. 46). The 
discrimination in maximum salaries had already been set 
forth. It is further alleged in the complaint that the dis­
crimination in salaries is based solely on race or color (Ap­
pendix, p. 47). White male high school teachers employed 
by appellees whose qualifications, certification, duties and 
services are the same as appellants’ are paid a minimum 
annual salary of $1200 while appellant Alston is paid $921.

The second Mills case, Mills v. Anne Arundel County 
Board of Education, et al., 30 Fed. Supp. 245 (D. C. Md. 
1939), involved the policy, custom and usage of paying 
Negro teachers in Anne Arundel County, Maryland, less 
salary than white teachers solely because of race or color. 
In granting a declaratory judgment and an injunction to the 
Negro teacher, District Judge Chestnut stated:

“ . . . . As already stated, the controlling issue of fact 
is whether there has been unlawful discrimination by 
the defendants in determining the salaries of white and 
colored teachers in Anne Arundel County solely on 
account of race or color, and my finding from the testi­
mony is that this question must be answered in the 
affirmative, and the conclusion of law is that the plaintiff 
is therefore entitled to an injunction against the contin­
uance of this unlawful discrimination. (Italics added.) 
(30 Fed. Supp. at 252.)



14

C. The Equal Protection Clause of the Fourteenth Amend­
ment Prohibits Such Racial Discrimination Against Apel- 
lants as Teachers by Occupation' and Profession

Virginia has no tenure of office statute covering teachers 
and there are no civil service provisions applicable to them. 
The question in this case is not of the right to teach but of 
the right of Negroes, teachers by training and occupation 
not to be discriminated against because of color in the fixing 
of salaries for public employment by the appellees.

In the employment of teachers and the fixing of salaries 
the appellees are acting as an administrative department 
of the Commonwealth of Virginia distributing public funds 
and not as a private employer distributing his own funds. 
A significant difference between the individual employer 
and the state at once suggests itself. The federal Constitu­
tion does not require individuals to accord equal treatment 
to all. It does not forbid individuals to discriminate against 
individuals. It does, however, expressly declare that no 
state shall deny to any person within its jurisdiction the 
equal protection of the laws. Thus state action is prohibited 
by the federal Constitution where individual action is not 
prohibited.

(1 )  T h e  F o u r t e e n t h  A m e n d m e n t  P r o h ib it s  all  A rbitrary  
and  U nreasonable  Cla ssific a tio n s  by S tate A g en cies

While a state is permitted to make reasonable classifica­
tions without doing violence to the equal protection of the 
laws, such classification must be based upon some real and 
substantial distinction, bearing a reasonable and just rela­
tion to the things in respect to which such classification is 
imposed; and classification cannot be arbitrarily made with­
out any substantial basis.

This protection of the Fourteenth Amendment has been 
applied in numerous types of cases in which the courts con­
cluded that unreasonable classification and resultant dis­
crimination were held to be arbitrary and unlawful.



15

%
Railroad Tax Cases, 13 Fed. 722 (1882);
Southern Railway Co. v. Greene, 216 U. S. 400 (1910); 
Gulf C. and S. F. R. Co. v. Ellis, 165 IT. S. 150 (1896); 
Juniata Limestone, Ltd. v. Fagley, et al., 187 Pa. 193, 

40 Atl. 977, (1898) ;
Yu Gong Eng v. Trinidad, 271 U. S. 500 (1926).

This doctrine has been invoked to prohibit unlawful dis­
crimination in employment. An Arizona statute which pro­
vided that all employers of more than five employees must 
employ not less than eighty percent qualified electors or 
native-born citizens of the United States was held unconsti­
tutional in a suit by an alien.

Truax v. Raich, 239 U. S. 33 (1915).

“ The right to contract for and retain employment in a 
given occupation or calling is not a right secured by 
the Constitution of the United States, nor by any 
Constitution. It is primarily a natural right, and it 
is only when a state law regulating such employment 
discriminates arbitrarily against the equal right of 
some class of citizens of the United States, or some 
class of persons within its jurisdiction, as, for example, 
on account of race or color, that the civil rights of such 
persons are invaded, and the protection of the federal 
Constitution can he invoked to protect the individual 
in his employment or calling.”

Simpson v. Geary, et al., (D. C. Ariz. 1913) 204 Fed. 
507, 512.

(2 )  D isc r im in a t io n  B ecause  of R ace or C olor I s Clearly  
A rbitrary  and  U nreasonable  W it h in  t h e  M ea n in g  of 
t h e  F o u r t e e n t h  A m e n d m e n t

It is clear that, under the Fourteenth Amendment, officers 
of a state cannot discriminate against Negro citizens solely 
because of race or color. The purpose of the Fourteenth 
Amendment has been clearly set out by Mr. Justice Strong 
of the United States Supreme Court in the case of Strauder 
v. West Virginia, 100 U. S. 303 (1879):



16

“ . . . What is this (amendment) but declaring that 
the law in the States shall be the same for the black 
as for the white; that all persons, whether colored or 
white, shall stand equal before the laws of the States 
and, in regard to the colored race, for whose protection 
the Amendment was primarily designed, that no dis­
crimination shall be made against them by law because 
of their color? The words of the Amendment, it is true, 
are prohibitory, but they contain a necessary implica­
tion of a positive immunity, a right, most valuable to 
the colored race—the right to exemption from un­
friendly legislation against them distinctively as col­
ored; . . . ” Strauder v. West Virginia (supra, at 
p. 307).

The Fourteenth Amendment is in general terms and does 
not enumerate the rights it protects:

“ The Fourteenth Amendment makes no attempt to 
enumerate the rights it is designed to protect. It speaks 
in general terms, and those are as comprehensive as 
possible. Its language is prohibitory; but every pro­
hibition implies the existence of rights and immunities, 
prominent among which is an immunity from inequality 
of legal protection, either of life, liberty, or property. 
Any State action that denies this immunity to a colored 
man is in conflict with the Constitution.”

Strauder v. West Virginia (supra, at p. 310.)

The United States Supreme Court in the case of Ex parte 
Virginia, 100 U. S. 339, 344 (1879), declared:

“ One great purpose of the Amendment was to raise 
the colored race from that condition of inferiority and 
servitude in which most of them had previously stood 
into perfect equality of civil rights with all other per­
sons within the jurisdiction of all the States. They 
were intended to take away all possibility of oppression 
by law because of race or color . . .”

In consistent application of this interpretation to a great 
variety of situations the courts have condemned all forms 
of state action which impose discriminatory treatment upon 
Negroes because of their race or color.



17

Exclusion from petit jury—Strauder v. West Virginia, 
supra.

Exclusion from grand jury—Pierre v. Louisiana, 306 
IT. S. 354 (1939).

Exclusion from voting at party primary—Nixon v. Con­
don, 286 U. S. 73 (1932).

Discrimination in registration privileges—Lane v. Wil­
son, 307 U. 8. 268 (1939).

Ordinance restricting ownership and occupancy of 
property—Buchannan v. Warley, 245 IT. S. 60 (1917).

Ordinance restricting pursuit of vocation—Chaires v. 
City of Atlanta, 164 Ga. 755,139 8. E. 559 (1927).

Refusal of pullman accommodations—McCabe v. At. 
chison, Topeka & Sante Fe By. Co., 235 U. S. 151 
(1914).

Discrimination in distribution of public school fund— 
Davenport v. Cloverport, 72 Fed. 689 (D. C. Ky. 
1896).

Discrimination in public school facilities—Gaines v. 
Missouri, 305 IJ. S. 337 (1938).

%

It is clear from the cases set out above that: (1) state 
agencies, such as appellees, cannot make classifications on 
an arbitrary or unreasonable basis, and (2) race or color 
alone cannot be used as a basis for discrimination against 
Negroes. There is, therefore, complete legal justification 
for the decisions in the two Mills cases, supra, and the con­
clusion of the District Judge on this point in this instant 
case that: ‘ ‘. . . there can be no discrimination in a case of 
this kind, if such discrimination is based on race or color 
alone” . (Appendix, p. 60.)

As a general proposition, local school boards, in employ­
ing teachers, may make reasonable classifications which can 
be justified as having a direct connection with the proper 
administration of the school system. There is even some 
authority that local school boards have the power to require 
all new teachers to take an oath that they are not members



18

of a teachers’ union. (Seattle High School, etc. v. Sharpless, 
159 Wash. 424, 293 Pac. 994 (1930), and People ex rel. 
Fursman v. Chicago, 278 111. 318, 116 N. E. 158 (1917)). 
However, this power of local school boards must be con­
sidered in connection with the concurring opinion of two 
Justices in the Fursman case, supra, that: . This power
does not, however, include the power to adopt any kind of 
an arbitrary rule for the employment of teachers it chooses 
to adopt; for a rule can easily be imagined the adoption of 
which would be unreasonable, contrary to public policy, 
and on the face of it not calculated to promote the best 
interests and welfare of the schools. In our opinion, courts 
would have the power, in the interest of the public good, to 
prohibit the enforcement of such an arbitrary rule . . .” . 
The correctness of the limitation thus declared by the con­
curring justices is well illustrated by two other cases in 
which discriminations against public employees upon the 
basis of unreasonable classifications have been held to be 
invalid.

In In re Opinion of the Justices,—Mass.-—, 22 N. E. (2d) 
49 (1939), the Supreme Judicial Court of Massachusetts 
held that discrimination against married women in the pub­
lic service, solely because of their marital status, is invalid 
as a denial of equal protection of the laws guaranteed by 
the State Constitution:

‘ ‘ . . . the General Court cannot constitutionally enact a 
law, even with respect to employment, in the public 
service, that arbitrarily discriminates against any class 
of citizens by excluding it from such service. This con­
clusion results from . . . the guarantees in Articles 1, 
6 and 7 of the Declaration of Rights ‘for equal protec­
tion of equal laws without discrimination or favor based 
upon unreasonable distinctions.’ ” (22 N. E. (2d)
at 58).

In Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937), a 
salary differential between married and unmarried teachers 
was held to be an unreasonable classification, and thus to



19

%

be void. The situation in that case was closely analagous 
to that in the case at bar, and the language of the Indiana 
Court is directly applicable here:

“ So, if the legislative intent, . . . was to authorize the 
School Board to classify its teachers, it necessarily fol­
lows that such classification must be reasonable, nat­
ural, and based upon substantial difference germane to 
the subject . . . The compensation of appellee was 
fixed by the board, partly at least upon the fact that she 
was married. This, in our opinion, was unlawful and 
arbitrary, and formed no rational basis of classifica­
tion. It had no reasonable relation to the work assigned 
to her, as the fact that appellant was a married woman 
did not affect her ability to impart knowledge or per­
form her duties in the school room. It is conceded that 
her marriage status has no such effect and, if not, there 
could be no just or reasonable basis for the school board 
classifying her as far as compensation is concerned, in 
a different and lower class than an unmarried female 
teacher having like qualifications and doing like work. ’ ’ 
(8 N. E. (2d) at 820.)

A fortiori, discrimination based on race or color is arbi­
trary and unreasonable, and therefore is unconstitutional.

D. The Equal Protection Clause of the Fourteenth Amend­
ment Prohibits Such Discrimination Against Appellant 
Alston as a Taxpayer

In addition to his right as a citizen of the United States 
and a teacher by occupation and profession to maintain this 
action, appellant Alston also bases his right to the relief 
prayed for upon the fact that he is a taxpayer. As a tax­
payer he is required to contribute to the public tax fund, 
a portion of which is used for public schools. As a teacher 
in the public schools he has a right to share in this fund 
without discrimination because of his race or color. Any 
illegal action on the part of the appellees in the distribution 
of this fund directly affects appellant Alston and is an 
injury peculiar to him as a taxpayer who is also a teacher.



20

The right of a citizen, resident and taxpayer to attack 
the unconstitutional distribution of public funds has been 
clearly established. In the case of Claybrook v. City of 
Owensboro, 16 F. 297 (D. C. Ky., 1883), the General As­
sembly of Kentucky passed an act authorizing a municipal 
corporation to levy taxes for school purposes and to dis­
tribute taxes from white people to the white schools, and 
taxes from the colored people to colored schools. Residents 
of the City of Owensboro filed a petition for an injunction 
in the District Court restraining the distribution of these 
taxes on this basis. The Court in granting the injunction 
prayed for stated that:

“ The equal protection of the laws guaranteed by this 
Amendment means and can only mean that the laws of 
the states must be equal in their benefit as well as equal 
in their burdens, and that less would not be ‘ equal pro­
tection of the laws.’ This does not mean absolute equal­
ity in distributing the benefits of taxation. This is im­
practicable; but it does mean the distribution of the 
benefits upon some fair and equal classification or 
basis.” (16 Fed. at 302)

See also: Davenport v. Cloverport, 72 Fed. 689, (D. C. 
Ky. 1896); Puitt v. Commissioner of Gaston County, 94 N. C. 
709, 55 Am. R. 638 (1886).

The law sustaining this case is well established and was 
recognized in Virginia in 1883 by the case of Roper v. Mc­
Whorter, 77 Va. 214 (1883) :

” . . .  In this country the right of property-holders or 
taxable inhabitants to resort to equity to restrain mu­
nicipal corporations and their officers, and quasi cor­
porations and their officers from transcending their 
lawful powers or violating their legal duties in any 
way which will injuriously affect the taxpayers, such 
as making an unauthorized appropriation of the cor­
porate funds, or an illegal disposition of the corpo­
rate property, . . . has been affirmed or recognized in 
numerous cases in many of the states. It is the prevail­
ing doctrine on the subject.” (77 Va. at p. 217.)



%

21

This rule of law as applied in Virginia is the prevailing 
doctrine today as to public schools:

“ Except as relief may be denied where the act com­
plained of does not affect the taxpayer with an injury 
peculiar to himself, it has been held that the authorities 
of a school district may be enjoined at the suit of tax­
payers from making any illegal or unauthorized appro­
priation, use, or expenditure of the district funds, as 
where there is a threatened use or expenditure of funds 
for an illegal or unauthorized purpose, or a threatened 
diversion of funds.” 56 C. J., Schools and School Dis­
tricts, sec. 906, page 764.

In the case of Oehler v. City of St. Paul, 174 Minn. 410, 219 
N. W. 760 (1928), the court upheld an injunction restraining 
the appointment to a civil service position without meeting 
civil service requirements, stating:

“ It is well settled that a taxpayer may, when the situ­
ation warrants, maintain an action to restrain unlawful 
disbursement of public moneys . . .  as well as to restrain 
illegal action on the part of public officials.” (219 N. W. 
at p. 763.)

In the case of Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 
12 (1933), taxpayers were granted an injunction to enjoin 
the local school district from unauthorized use of public 
funds for digging a well.

In the case of Anderson v. Fuller, 51 Fla. 380, 41 So. 684 
(1906), it was held that taxpayers may sue to enjoin public 
officers from paying money under an illegal contract. In 
this case the contract was let without competitive bidding.

In Board of Education v. Arnold, 112 111. 11 (1884), an 
action by a taxpayer, an injunction was granted preventing 
the payment of a teacher who had no certificate from the 
county superintendent.

And a taxpayer was held entitled to an injunction against 
a school district to prevent the employment of a teacher 
whose employment was voted down by a majority of the



22

district. O’Brien s. Moss, 131 Ind. 99, 30 N. E. 894, (1892).
A taxpayer was held entitled to maintain an injunction 

to restrain the payment of a warrant for a school teacher’s 
salary which was illegal. Black v. Ross, 37 Mo. App. 250 
(1889). The court said:

“ If the defendants, as directors of the school dis­
trict, were about to make an unlawful and unauthorized 
disposition of the public school fund, an injunction was 
the only adequate remedy afforded the individual tax­
payer, to prevent the illegal diversion.”

II
The Facts Alleged in Appellant Alston’s Pleading Do Not 

Constitute a Waiver of His Right to the Relief 
for Which He Prays

In considering the issue of waiver it is and must be as­
sumed that racial discrimination in fixing the salaries of 
public school teachers violates the equal protection clause 
of the Fourteenth Amendment. But admitting such un­
constitutionality the District Court concluded that appellant 
Alston had waived his right to complain of the unconstitu­
tional discrimination.

Scope of Present Waiver Issue

Paragraph 10 of the complaint (Appendix, p. 43) alleges 
that appellees are under a statutory duty to employ teachers 
and to provide for the payment of their salaries, citing, 
inter alia, Section 786 of the Virginia School Laws which 
provides in part that,

“ The City school board of every city shall . . . have 
the following powers and duties. . . . Third. To em­
ploy teachers . . . Twelfth. To . . . provide for the 
pay of teachers . . .”

It is further provided in Section 664 that



23

“ Written contracts shall be made by the school board 
with all public school teachers before they enter upon 
their duties, in a form to be prescribed by the Super­
intendent of Public Instruction.’.’

Paragraph 15 of the complaint (Appendix, p. 45) alleges 
that appellant Alston

“ is being paid by the defendants for his services this 
school year as a regular male high school teacher as 
aforesaid an annual salary of $921.”

Thus, from the complaint and the above quoted language 
of applicable Virginia statutes it seems a proper conclusion 
that appellant Alston is employed during the current year 
pursuant to a contract of hire and at an annual salary of 
$921. Moreover, in a preliminary proceeding in the nature 
of a hearing on motion to dismiss the complaint it seems 
proper that the court determine whether any conclusion of 
law fatal to the plaintiff’s case follows from the facts out­
lined above. To that extent, and to that extent only, the 
question of waiver was before the District Court and is in 
issue upon the present appeal.

It is to be noted that so much of the “ Second Defense” 
in the answer as raises the issue of waiver is in form a 
defense in law in the nature of a motion to dismiss, but in 
substance it combines a challenge to the sufficiency of the 
complaint with an introduction of new matter in the nature 
of an affirmative defense. Thus, the sub-paragraphs num­
bered (4) and (5) (Appendix, p. 55) go beyond an allega­
tion that acceptance of employment by the appellant is a 
waiver of the rights asserted in his complaint. These 
sub-paragraphs refer to the specific contract of the appellant 
and incorporate by reference an attached document de­
scribed as a copy of his contract. In thus going beyond the 
fact of employment pursuant to a contract of hire as already 
revealed by the complaint and pertinent statutes, and 
in attempting to put in issue the terms of a particular 
contract, the circumstances of its execution and any legal

. ' MlSsSlcil W S m



24

conclusions that may depend upon such terms and cir­
cumstances, the appellees have introduced an affirmative 
defense. Under Rule 8(c) of the Federal Rules of Civil 
Procedure, such new matter is deemed to be denied without 
reply. Indeed, no reply is permitted except by order of the 
court. See Rule 7(a). Therefore, the new matter alleged 
in the answer was not before the court on a motion to dis­
miss and is not material to the present appeal.

In brief, the question now at issue is whether the facts 
(1) that appellant’s status was created by a contract of 
hire and (2) that he has been employed for a definite salary, 
operate as a matter of law to preclude this suit. Clearly the 
answer to this question is in the negative and, therefore, 
the appellants contend that the judgment of the District 
Court cannot be sustained. Even if the answer to this ques­
tion should be—and the appellants do not concede the cor­
rectness of such an assumption—that the circumstances of 
the particular hiring must be considered before the issue 
of waiver can be decided, the judgment of the District Court 
is in error because such an issue can be determined only 
by a hearing on the merits.

A. The Contract of Hire Is Not Affected by the Relief 
Sought

No modification of the contract of hire is sought in this 
case. The appellants ask for declaratory relief in the 
form of a decree that the policy, custom and usage of dis­
crimination in salary schedules solely on the basis of race 
and the actual discrimination against them solely on ac­
count of their race are a denial of equal protection of the 
laws. Injunctive relief is sought in the form of a decree 
restraining the appellees from applying the discrimina­
tory salary schedule and from continuing the practice of 
racial differentials in teachers’ salaries.

It is to be emphasized that under the prayers of the com­
plaint the appellees would be left free to determine the



25

actual salary of each teacher on any basis other than race. 
Certainly the Court is not asked to amend any contract or 
to determine the wage to be paid to any teacher.

Moreover, although the appellants seek immediate relief 
they complain of a continuing wrong. They have a very 
real interest in protection against the continuation of this 
discrimination from year to year in the future. It is within 
the discretion of a court administering equitable relief to 
determine whether its injunctive decree shall impose an 
immediate restraint or whether the decree shall become 
operative at some other date determined in the light of 
the equities of the case before it. Thus, in Mills v. The 
Board of Education, supra, under prayers essentially simi­
lar to those in the present case, the court declared the un- 
constitutionality of a racial salary differential and re­
strained its continuance as of the beginning of the next 
school year.

The value of such a prospective decree and the interest 
of the appellants in obtaining such prospective relief, if 
the court in its discretion should thus postpone the oper­
ation of its decree, are apparent. A teacher has a reason­
able expectancy of reemployment from year to year, par­
ticularly such a teacher as the appellant Alston, who has 
been employed continuously for the past five (5) years 
(Appendix, p. 44). Yet his opportunity to bargain for and 
to obtain compensation for the next year is impeded by the 
existing salary schedule and by the custom and practice of 
paying colored teachers less than white teachers solely 
because of their race. That this impediment is an effective 
barrier is shown by appellees’ denial of appellant Alston’s 
petition for the discontinuance of the racial salary differ­
ential at the beginning of the present school year (Ap­
pendix, p. 50) and by the denial of a similar petition of 
another Negro school teacher at the beginning of the 
preceding year. (Appendix, p. 50.)

Thus, the waiver argument is but colorable at best since 
the court is not asked to modify any contract; and with



26

reference to possible prospective relief for the next school 
year the waiver argument has no basis whatever. Yet, the 
contention of appellees and the holding of the District Court 
seem to be that the appellant Alston is precluded from ob­
taining immediate relief because he is under a contract of 
employment for the current school year, and that he is pre­
cluded from obtaining any prospective relief which will 
benefit him in bargaining for compensation for next year 
because he is not now under contract for that year. In 
brief, the decision below puts him in the dilemma of being 
unable to acquire such a status and interest as will give him 
standing to challenge a constitutional wrong without 
waiving his objection to that wrong.

B. The Doctrine of Waiver Has Been Held Inapplicable to 
Analogous Dealings with Public Authorities

The cases generally hold that the acceptance of public 
employment at a particular salary is no waiver of the right 
subsequently to object to the unconstitutionality of unlaw­
ful conduct of public administrative officers in fixing that 
salary. Cases involving various contractual relations with 
agencies of the state are in accord. In the cases which 
follow, courts have gone far beyond any relief sought in the 
present case and have actually modified contracts of public 
employment and other contracts with public agencies.

Courts have granted relief against discrimination be­
tween salaries of men and women teachers, or between the 
salaries of married and single women, imposed by public 
authority contrary to law, despite the complainants ’ agree­
ments to accept a discriminatory salary.

Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937);
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S. 

265; rev’d on other grounds, 245 N. Y. 106 (1927);
Rockwell v. Board of Education, 125 Misc. 136, 210 

N. Y. S. 582; rev’d on other grounds, 214 App. Div. 
431, 212 N. Y. S. 281 (1925).



Cf.: Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 
27 (1933).

To the same effect are the cases in which a teacher has 
complained of an illegal retirement deduction or other de­
nial of benefits incidental to his employment accomplished 
by imposition of the school authorities, but with his formal 
consent.

Minnesota ex rel. Jennison v. Rogers, 87 Minn. 130, 
91 N. W. 438 (1902)

Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E. 
109 (1901)

School District v. Teachers’ Retirement Fund Assn., 
Ore. —, 95 P. (2d) 720, 96 P. (2d) 419 (1939).

The same conclusion is reached in the long line of cases 
involving agreements to accept less than the statutory sal­
ary of a particular office.

Glavey v. United States, 182 U. S. 595 (1901)
Miller v. United States, 103 Fed. 413 (1900)
Settle v. Sterling, 1 Idaho 259 (1869)
Whiteley County Board of Education v. Rose, 267 Ky.

283, 102 S. W. (2d) 28 (1937)
People ex rel Satterlee v. Board of Police, 75 N. Y. 38 

(1878)

Cf.: Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 
1031 (1933) (Alleged waiver of double compensation 
for overtime)

Courts have not hestitated to invalidate bargains between 
public officers and independent contractors upon the com­
plaints of such contractors that the contracts signed by them 
contained terms which the public authorities had imposed 
in violation of some constitutional or other legal right.



28

Lukens v. Nye, 156 Cal. 498, 105 Pac. 593 (1909)
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 

716 (1901)
City of Cleveland v. Clements Bros. Construction Co., 

67 Ohio St. 197, 65 N. E. 885 (1902)'

R a tionale  op t h e  D ec isio n s

Considerations of equity and public policy underlie the 
refusal of courts to recognize any waiver or estoppel in 
these cases.

Where a statute or administrative order or regulation 
requires the discriminatory or otherwise illegal action in 
question, the person dealing with the public agency has no 
such choice or freedom of bargaining with reference to 
that phase of the transaction as will on equitable principles 
create an estoppel. The subject matter in question has been 
removed from the area of free bargaining by the illegal 
conduct of the state or its agents. The illegal element in 
the transaction is present not because of voluntary agree­
ment of the parties that it be there but because govern­
mental authority has required that it be there.

See Minnesota ex rel. Jennison v. Rogers, supra 
City of Cleveland v. Clements Bros., supra 
Whiteley County Board of Education v. Bose, supra

The fact that appellants are met at the threshold of their 
transaction with the state by a schedule and a practice of 
race discrimination in salaries leaves them only the alter­
natives of foregoing employment altogether or accepting 
employment under conditions of discrimination. This situ­
ation is emphasized by the fact, pleaded by the appellants 
(Appendix, p. 50) that a petition filed by a Negro school 
teacher on behalf of herself and the other Negro teachers 
of Norfolk in October, 1939, requesting the elimination of 
racial salary differentials was denied. In such circum­
stances submission to discrimination cannot be said to be



29

voluntary in the sense in which a choice must be voluntary 
to constitute a waiver of objection to the imposed condition.

“ Were the rule otherwise it would be comparatively an 
easy matter for the governing authorities to take ad­
vantage of an officer dependent upon his salary for a 
livelihood and virtually compel him to forego his con­
stitutional right.” Whiteley County Board of Educa­
tion v. Rose, 102 S. W. (2d) at p. 30.

A comparable and analogous situation arises when a state 
imposes upon a foreign corporation, as a condition of con­
tinuation in business within its borders, the payment of a 
tax which denies the corporation equal protection of the 
laws. The corporation may remain in the state and resist 
the tax.

Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926)

Similarly, when the privilege of using the public highway 
as a private carrier for hire is conditioned upon the assump­
tion of the obligations of a public carrier the entrepreneur 
may use the highway in his business as a private carrier 
and at the same time resist the unconstitutional condition.

Frost Trucking Co. v. Railroad Commission, 271 U. S.
583 (1926)

“ Having regard to form alone, the act here is an offer 
to the private carrier of a privilege, which the state 
may grant or deny, upon a condition, which the carrier 
is free to accept or reject. In reality, the carrier is 
given no choice, except a choice between the rock and 
the whirlpool—an option to forego a privilege which 
may be vital to his livelihood or submit to a require­
ment which may constitute an intolerable burden.” 
(271 U. S. at 593)

The court continues with language peculiarly apposite to 
the contention of waiver in the present case:



30

‘‘It is not necessary to challenge the proposition that, 
as a general rule, the state, having power to deny a 
privilege altogether, may grant it upon such conditions 
as it sees fit to impose. But the power of the state in 
that respect is not unlimited; and one of the limitations 
is that it may not impose conditions which require the 
relinquishment of constitutional rights. If the state 
may compel the surrender of one constitutional right 
as a condition of its favor, it may, in like manner, com­
pel a surrender of all. It is inconceivable that guaran­
tees embedded in the Constitution of the United States 
may thus be manipulated out of existence.” (271 U. S. 
at p. 593-4)

Again, the Supreme Court has held in Union Pacific Rail­
way v. Public Service Corporation, 248 U. S. 67 (1918), that 
in applying for and obtaining a certificate which was a 
statutory prerequisite to the issuance of certain bonds, the 
corporation did not waive its right to contest the consti­
tutionality of the condition thus imposed on it.

“ The certificate was a commercial necessity for the 
issue of the bonds. . . .  Of course, it was for the in­
terest of the company to get the certificate. It always 
is for the interest of a party under duress to choose 
the lesser of two evils. But the fact that a choice was 
made according to interest does not exclude duress. It 
is the characteristic of duress properly so called.” 
(248 U. S. at p. 70)

The common element of duress resulting from imposition 
of economic pressure characterizes the action of the public 
authorities in all of these cases as in the case at bar. The 
state leaves the constrained person merely a choice be­
tween accepting an unconstitutional and otherwise illegal 
arrangement on the one hand or suffering serious loss on 
the other. No doctrine of waiver founded on equitable 
principles can have application in such a situation. “ Guar­
antees imbedded in the Constitution of the United States 
(cannot) thus be manipulated out of existence.”



31

In addition to the considerations above presented, the 
question of public policy is emphasized in a large number 
of decisions against alleged waiver of advantages incidental 
to public employment. The courts have reasoned that the 
deprivation of rights to salary or other benefits incidental 
to public employment, or incidental to some other public 
relationship, involves not only the individual interest of 
the person immediately effected, but also the public interest 
in the public activity in which that person is engaged. 
Thus, in the already cited cases of statutory salaries the 
courts agree that there is a controlling public interest in 
the protection of the public service against the demoralizing 
effect of salary reductions below’ the amount legislatively 
determined to be adequate, and that no waiver by the in­
dividual employee can be effective in such circumstances. 
To the same effect is School District v. Teachers’ Retirement 
Fund Assn., supra, where a teacher’s express waiver of 
his right to certain disability compensation was held to be 
against public policy and therefore ineffective.

The case at bar involves the very important public in­
terest in maintaining an effective public school system and 
in providing equal educational opportunities for white and 
colored children. Express declarations of such interest and 
policy appear in Section 129 of Article IX of the Constitu­
tion of Virginia and in Sections 680 and 786 of the School 
Code of Virginia.

“ The general assembly shall establish and maintain 
' an efficient system of public free schools throughout 

the State.” Va. Const., Art. IX, Sec. 129.

City school boards are required to

“ . . . establish and maintain . . .  a general system 
of public free schools in accordance with the require­
ments of the constitution and the general educational 
policy of the Commonwealth.” Va. School Code, Sec. 
786.



32

‘ ‘ White and colored children shall not be tanght in the 
same school, but shall be tanght in separate schools, 
under the same general regulations as to management, 
usefulness and efficiency.” Va. School Code, Sec. 680.

While colored teachers are held to the same professional 
standards as white teachers and many colored teachers 
manage to continue their professional studies so as to 
achieve efficiency beyond the requirement of their classi­
fication, it cannot be denied that the general effect of sub­
stantial salary discrimination is to impose a barrier of 
economic disadvantage which impedes the professional and 
scholarly advancement of those who teach colored children. 
The imposition of such a handicap upon the whole body of 
teachers in colored schools is in plain derogation of the 
legislative policy of maintaining an efficient school system 
and the more specific policy of equality in educational facili­
ties for white and colored children. It is also noteworthy 
that, since on the record race and color are admitted to be 
the sole basis of the unlawful discrimination, there is not 
even a design to promote any public interest through this 
discrimination.

For these reasons, public policy alone is a sufficient basis 
for judicial refusal to impose any estoppel or waiver upon 
a teacher who complains of unconstitutional salary dis­
crimination against Negro teachers.

C. Decision on the Waiver Issue Was Erroneously Based 
Upon Facts Not Before the District Court

The foregoing discussion of waiver presupposes that a 
decisive answer on the question of waiver or estoppel can 
be given on the appellants’ complaint and applicable stat­
utes. Appellants, for the reasons hereinbefore presented, 
contend that it is clear that no waiver results from the con­
duct of appellant Alston. Appellees, on the other hand, 
contend that employment pursuant to a contract of hire 
results as a matter of law in waiver of the rights herein



33

asserted. But the District Court took an intermediate posi­
tion,—that waiver is a question to be determined upon the 
facts of the particular hiring. The following excerpts from 
the opinion of the District Court show that court’s approach 
and analysis:

“ A defense set up in the answer . . . and which stands 
out in the record as an undisputed fact, is that some­
time before this suit was instituted the plaintiff entered 
into a contract with the defendant school board, which 
contract covers the subject matter of this litigation. . . .
“ A copy of that contract is in the record before the 
court. There is an absence of any claim that I can find 
in the complaint to the effect that the plaintiff was in­
duced to enter into the contract by fraud, misrepre­
sentation or that it was entered into under duress or 
that any unfair means were employed by defendants 
in that behalf, or that it was ever made or signed under 
protest. . . .  I am fully aware of the fact that in situ­
ations of this kind it sometimes happens that the em­
ployee is at a distinct disadvantage, is not in a position 
boldly to assert what he conceives to be his rights, and 
does not, in fact, therefore, contract freely with the 
other party. But I do not find in the record any facts 
that have been pleaded by way of explanation that could 
reasonably justify the court in reaching the conclu­
sion that it ought to disregard the written contract and 
further proceed in the case in spite of the fact that 
the plaintiff voluntarily entered into such contractual 
relation with the defendants. ’ ’ (Appendix, pp. 61-62.)

The error of this analysis, in addition to the mistaken 
premise that the issue of waiver in this type of case cannot 
be dismissed without consideration of the details of the 
particular hiring, is that new matter, pleaded in the answer 
and an exhibit to the answer, is used as the factual basis of 
decision on a motion to dismiss the complaint. It is beyond 
question, both before and since the adoption of the present 
Rules of Civil Procedure, that such pleadings and exhibits, 
extrinsic of the complaint, cannot be considered on a motion 
to dismiss.



34

Cf.: Polk v. Glover, 305 U. S. 5 (1938) ^
Gibbs v. Buck, 307 IT. S. 66 (1939)
Jouner v. Browning, 30 F. Supp. 512 (D. C. W. D.

Tenn., 1939)

As heretofore pointed out, the terms and circumstances 
of hiring pleaded in the answer represent an attempt to as­
sert an affirmative defense, and under Civil Rule No. 7(a) 
such new matter is deemed denied without reply. If the 
terms of the particular hiring are material, or if the con­
duct of the parties prior to and at the time of the particular 
hiring have any legal significance in a case of this char­
acter, then decision on the issue of waiver should have been 
for the appellants on preliminary hearing, with ultimate 
decision on the issue reserved for determination after a 
final hearing on the merits.

At such a hearing the appellants would have been prepared 
to show, in addition to the petitions of Aline Black and the 
appellant Alston in 1938 and 1939 for removal of racial 
discrimination in salaries, and such other matters as are 
already pleaded in the complaint, the following facts:

(1) That at the time he signed the contract in question 
appellant Alston knew that Aline Black, a teacher in 
the same building with him, very recently had been 
denied reemployment because of her efforts to have 
racial discrimination in salaries discontinued.

(2) That appellant Alston is dependent upon his salary 
as a teacher for his livelihood and faced the prospect 
of destitution if he should not have been reemployed.

(3) That the appellees had caused appellant Alston 
to believe, and reasonably so, that any protest made 
by him before the execution of his contract would re­
sult in his being denied reemployment.



35

(4) That the contract of the appellant Alston contains 
a clause which is properly construed as giving the 
appellee school board an absolute right to increase or 
decrease his salary for any reason on one month’s 
notice.
(5) That before the tender of teachers’ contracts for 
the year 1939-40 the appellee school board by formal 
resolution fixed the precise salary to be stipulated in 
the contract of each teacher, including appellant Alston.
(6) That the aforesaid action of the board left appel­
lant Alston and the person tendering a contract to him 
on behalf of the board powerless to change or bargain 
with reference to the terms of hiring.
(7) That before receiving any salary or other benefit 
under his contract appellant Alston, seasonably and 
at the first reasonable opportunity petitioned the board 
to reconsider its action in fixing salaries on a discrimi­
natory basis.

Thus, even on the District Court’s analysis of the waiver 
issue, appellants were denied their lawful opportunity and 
valuable right to contest an affirmative defense on its 
merits. -

III

There Is No Merit in the Other Purported Defenses of Law 
Raised by the Answer and Not Relied Upon 

in the Argument

A. An Amount in Controversy to Exceed $3,000 Is Not 
Required to Confer Jurisdiction in This Case

At the hearing on the Motion to Dismiss the appellees 
properly disclaimed any reliance upon the contention raised 
by paragraph (a) of their “ First Defense” (see Appendix, 
p. 54).

The federal courts have repeatedly asserted that in a 
suit to vindicate the denial of civil rights guaranteed under



the Constitution and laws of the United States no monetary 
value, in terms of exact measurement, can be placed upon 
such rights, and they will therefore be presumed to have 
a value in excess of the jurisdictional amount, if such valu­
ation be necessary.

Glenwood Light and Water Co. v. Mutual Light, Heat 
and Power Co., 239 U. S. 121 (1915)

Wiley v. Sinkler, 179 U. S. 58 (1900)
Swafford v. Templeton, 185 U. S. 487 (1902) 
International News Service v. Associated Press, 248 

U. S. 215 (1918)

However, it has likewise been repeatedly asserted, by the 
federal courts, that in actions for the deprivation of civil 
rights and liberties the statutes of the United States confer 
jurisdiction upon the federal courts irrespective of the 
amounts in controversy or whether any amount of damage 
is averred. Section 24 (1) of the Judicial Code (28 U. S. C., 
Sec. 41 (1)) is followed by a series of situations excepted 
from the requirements of the jurisdictional amount. Among 
these is the 14th subdivision upon which appellants rely:

“ Suits to redress deprivation of civil rights. Four­
teenth. Of all suits at law or in equity authorized by 
law to be brought by any person to redress the depriva­
tion, under color of any law, statute, ordinance, regu­
lation, custom, or usage, of any State, or any right, 
privilege, or immunity, secured by the Constitution 
of the United States, or of any right secured by any 
law of the United States providing for equal rights of 
citizens of the United States, or of all persons within 
the jurisdiction of the United States.”

The courts have without hesitancy applied this section, 
and stated that the amount in controversy is not material. 

Davenport v. Cloverport, supra.
Broom v. Wood, 1 F. Supp. 134,136 (1931)
Mills v. Board of Education, etc., supra.
Hague v. Committee for Industrial Organisation, 307 

U. S. 496, 519 (1939)



In the last cited case, the most recent opinion of the 
Supreme Court on the subject, Mr. Justice Stone said:

“ As will presently appear, the right to maintain a suit 
in equity to restrain state officers, acting under a state 
law, from infringing the rights of freedom of speech 
and of assembly guaranteed by the due process clause, 
is given by Act of Congress to every person within the 
jurisdiction of the United States, whether a citizen or 
not, and such a suit may be maintained in the district 
court without allegation or proof that the jurisdictional 
amount required by section 24 (1) of the Judicial Code 
is involved. . . (Italics added.)

B. Appellants Have No Full, Adequate and Complete 
Remedy at Law

Presumably appellees, in asserting the existence of a 
complete remedy at law, intended to rely upon the proposi­
tion that appellants have a legal remedy by mandamus in 
the state courts. "While this was not argued below, and 
therefore, may be deemed to have been abandoned, it is 
not considered improper to direct the court’s attention to 
two recent cases by the Supreme Court of the United States 
which clearly establish that such contention is without 
merit. In Di Giovanni v. Camden Ins. Association, 296 U. S. 
64, 69 (1935), the court said:

“ It is true, as this Court has often pointed out, that 
the inadequacy prerequisite to relief in a federal court 
of equity is measured by the character of the remedy 
afforded in a federal rather than a state court of law. 
(Citing cases) If a plaintiff is entitled to be heard in 
in the federal courts he may resort to equity when the 
remedy at law there is inadequate, regardless of the 
legal adequacy of the legal remedy the state courts may 
afford. Otherwise the suitor in the federal courts might 
be entitled to a remedy in equity which the federal 
courts of law are not competent to give, or, on the other 
hand, be obliged to forego his right to be heard in the



38

federal courts in order to secure an equitable remedy 
which the state courts of law do but the federal courts 
of law do not give. ’ ’

In Petroleum Exploration Inc. v. Public Service Com­
mission, et al., 304 IT. S. 209, 217 (1937), the court said:

“ It is settled that no adequate remedy at law exists, 
so as to deprive federal courts of equity jurisdiction, 
unless it is available in the federal courts.”

It is well settled by a long course of judicial decisions that 
an original writ of mandamus does not lie within the juris­
diction of the federal courts conferred by Section 24 (1) 
Judicial Code (28 U. S. C. A. 41 (1)).

Knapp v. Lake Shore, etc. Ry. Co., 197 U. S. 536 (1905) 
American Union Telegraph Co. v. Bell Telephone Co., 

1 Fed. 698 (1880)
M’Intire v. Wood, 7 Cranch 504, (1813)
Smith v. Bourbon County, 127 IT. S. 105, (1888)

Lacking an adequate remedy at law in the federal courts 
appellants cannot be denied their right to resort to that 
sovereignty for equitable relief because some other sov­
ereign offers aid of a different sort.

C. The Plea of Ees Judicata Is an Affirmative Defense and 
Not Now Before the Court

The plea of res judicata was properly ignored by the 
court below. Res judicata is an affirmative defense (Civil 
Rules 8(c)) and the District Court did not have the opin­
ion or pleadings in the Black case before it. A document 
purporting to be the final order therein is attached as an 
exhibit to the answer, but, under the rules, was not before 
the court for consideration.

At the proper time, upon a hearing on the merits, the 
defense will fail (a) because the Black case was not decided



39

upon the merits but on a question of availability of man­
damus as a remedy under Virginia law, and (b) because 
the appellants here were neither party nor privy to that 
litigation.

CONCLUSION

A constitutional issue of great importance to the parties 
and to the public is presented by this litigation. The effect 
of the decision of the trial court is to place material damage 
resulting from violation of Constitutional right beyond judi­
cial cognizance. No conduct of appellants requires or war­
rants such a result. While justice remains the end of law, 
such a decision as is here challenged cannot be consistent 
with law.

Respectfully submitted,

Oliv er  W . H il l ,
T hurgood  M a r sh a ll ,
L eo n  A. R a n so m ,
W il l ia m  H . H a st ie ,

Counsel for Appellants.
117 E. Leigh Street, 
Richmond, Va.



40

APPENDIX

[Caption]

Complaint
1. The jurisdiction of this court is invoked under Judicial 

Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a 
suit in equity.which arises under the Constitution and/or 
laws of the United States, viz., the Fourteenth Amendment 
of said Constitution and/or Sections 41 and 43 of Title 8 
of the United States Code, wherein the matter in contro­
versy exceeds, exclusive of interest and costs, the sum of 
$3000. The jurisdiction of this court is also invoked under 
Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14), 
this being a suit in equity authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a State of rights, privileges and 
immunities secured by the Constitution of the United 
States, viz., the Fourteenth Amendment to said Constitu­
tion, and of rights secured by laws of the United States 
providing for equal rights of citizens of the United States 
and of all persons within the jurisdiction of the United 
States, viz., Sections 41 and 43 of Title 8 of the United 
States Code.

2. Plaintiffs show further that this is a proceeding for a 
declaratory judgment and an injunction under Section 274D 
of the Judicial Code for the purpose of determining a ques­
tion in actual controversy between the parties, to-wit, the 
question of whether the practice of the defendants, in 
adopting, enforcing and maintaining the policy, custom 
and usage by which plaintiffs and other Negro teachers and 
principals in the public schools of the City of Norfolk are 
uniformly paid lower salaries than white teachers and prin­
cipals in the City of Norfolk possessing the same profes­
sional qualifications and certificates, exercising the same 
duties and performing the same services, solely on account 
of their race and color is unconstitutional and void being a

&

r



41

violation of the Fourteenth Amendment to the United 
States Constitution and the laws of the United States and 
the Constitution and Laws of the Commonwealth of Vir­
ginia, all of which will appear more fully hereafter.

3. All parties to this action, both plaintiffs and defend­
ants, are citizens of the United States and of the State of 
Virginia and are resident and domiciled in said State. 
Defendant School Board of the City of Norfolk at all times 
mentioned herein was and is by law declared a body cor­
porate.

4. Plaintiff, Melvin 0. Alston, is colored, a person of 
African descent and of Negro blood. He is a tax payer of 
the City of Norfolk and the State of Virginia. He is a 
regular teacher in the Booker T. Washington High School, 
a public high school located in Norfolk, Virginia, main­
tained and operated by the School Board of the City of 
Norfolk. This suit is brought on his own behalf and also 
on behalf of other persons, citizens and residents of the 
State of Virginia, namely, teachers and principals in the 
colored schools of Norfolk, Virginia, similarly situated and 
affected, as will hereinafter more fully appear.

5. Plaintiff, Norfolk Teachers’ Association, a voluntary 
unincorporated association, is composed of Negro teachers 
and principals in the public colored schools of Norfolk, Vir­
ginia, organized for the mutual improvement and protection 
of its members in their profession as teachers and principals 
in the public schools of Norfolk, Virginia.

6. Defendant School Board of the City of Norfolk exists 
pursuant to the laws of Virginia as an administrative de­
partment of the State of Virginia discharging governmental 
functions (Constitution of Virginia, Article IX, Section 
133; Code of Virginia, Chapter 35, Sections 774-776). 
Defendant C. W. Mason is Superintendent of Schools of 
Norfolk and holds office pursuant to the Constitution and 
laws of Virginia as an administrative officer of the public



42

free school system of Virginia (Constitution of Virginia, 
Article IX, Section 133; Code of Virginia, Chapter 34, Sec­
tion 774). C. W. Mason is made a defendant herein and is 
sued in his official capacity.

7. The State of Virginia has declared public education a 
State function. The Constitution of Virginia, Article IX, 
Section 129, provides:

“ Free schools to be maintained.—The general assem­
bly shall establish and maintain an efficient system of 
public free schools throughout the State.”

Pursuant to this mandate the General Assembly of Virginia 
has established a system of free public schools in the State 
of Virginia according to a plan set out in Chapters 34 and 
35 of the Virginia Code of 1936, and supplement thereto 
of 1938. Provision has been made for the establishment of 
separate schools for white and colored persons with the 
positive duty of maintaining these separate schools under 
the same general regulations as to management, usefulness 
and efficiency (Virginia School Code, Section 680). The 
establishment, maintenance and administration of the pub­
lic school system of Virginia is vested in a State Board of 
Education, a Superintendent of Public Instruction, division 
superintendent of schools and county and city school boards 
(Constitution of Virginia, Article IX, Sections 131-133; 
Virginia School Code, Chapter 33, Section 611A).

8. All teachers in Virginia, including plaintiffs and other 
teachers in Norfolk are required to hold teaching certifi­
cates in full force in accordance with the rules of certifica­
tion laid down by the State Board of Education (Virginia 
School Code, Chapter 33, Section 660). The duty of en­
forcing this system is imposed upon the several county and 
city school boards including the defendant School Board of 
the City of Norfolk (Virginia School Code, Chapter 33, Sec­
tion 660.) Negro and white teachers and principals alike

r



43

must meet the same requirements to receive teachers’ cer­
tificates from the State Board of Education, and upon 
qualifying are issued identical certificates.

9. The public schools of the City of Norfolk, Virginia, are 
under the direct control and supervision of the defendants 
acting as an administrative department or division of the 
Commonwealth of Virginia (Virginia School Code, Chapter 
34, Sections 774-786); the defendants are under a duty to 
maintain an efficient system of public schools in Norfolk 
(Virginia School Code, Chapter 33, Section 611); Chapter 
36, Section 786); and to enforce the school laws of the 
Commonwealth of Virginia (Virginia School Code, Chap­
ter 33, Section 660; Chapter 35, Section 786).

10. The defendants are under a duty to employ teachers 
(Virginia School Code, Chapter 33, Section 660; Chapter 35, 
Section 786); and to provide for the payment of teachers’ 
salaries (Virginia School Code, Chapter 33, Section 656; 
Chapter 35, Section 786); including the salaries of the plain­
tiffs herein and all other teachers and piincipals employed 
by defendants. The defendants are under a positive duty 
to enforce regulations for the employment, remuneration 
and dismissal of teachers in Norfolk (Chapter 48, Section 
754 of the Charter and General Ordinances of the City of 
Norfolk—1920).

11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools of Nor­
folk less salary than white teachers and principals in said 
public school system possessing the same professional quali­
fications, certificates and experience, exercising the same 
duties and performing the same services as Negro teachers 
and principals. Such discrimination is being practiced 
against the plaintiffs and all other Negro teachers and prin­
cipals in Norfolk, Virginia, and is based solely upon their 
race or color.



44

12. The plaintiff Alston and all of the members of the ^  
plaintiff association and all other Negro teachers and prin­
cipals in public schools in the City of Norfolk are teachers
by profession and are specially trained for their calling.
By rules, regulations, practice, usage and custom of the 
Commonwealth acting by and through the defendants as its 
agents and agencies, the plaintiff Alston and all of the 
members of the plaintiff association and all other Negro 
teachers and principals in the City of Norfolk are being 
denied the equal protection of the laws in that solely by 
reason of their race and color they are being denied com­
pensation from public funds for their services as teachers 
equal to the compensation provided from public funds for 
and being paid to white teachers with equal qualifications 
and experience for equivalent services pursuant to rules, 
regulations, custom and practice of the Commonwealth act­
ing by and through its agents and agencies, the School 
Board of the City of Norfolk and the Superintendent of 
Schools of Norfolk, Virginia.

13. Plaintiff, Melvin 0. Alston, has been employed as a 
regular male teacher by the defendants since September,
1935, and is in his fifth year of experience as a regular 
teacher in the Booker T. Washington High School, a public 
high school maintained and operated under the direct con- 
trol, supervision, rules and regulations of the defendants.
He successfully completed the course of instruction pro­
vided at Virginia State College for Negroes, an accredited 
college maintained and operated by the State of Virginia 
for the instruction and preparation of Negroes as teachers 
in the public schools of the State. He holds a Collegiate 
Professional Certificate, the highest certificate issued by 
the Virginia State Board of Education for teaching in the 
public high schools of Virginia. In order to qualify for this 
certificate plaintiff has satisfied the same requirements as 
those exacted of all other teachers, white as well as Negro, 
qualifying therefor, and he exercises the same duties and 
performs services substantially equivalent to those per-



45

| |  formed by other holders of the said certificate, white as well 
as Negro, yet all white male teachers in Norfolk who hold 
the said certificate with equal and less experience receive 
salaries much larger than the salary paid the plaintiff.

14. White male high school teachers employed by de­
fendants whose qualifications, certification, duties and serv­
ices are the same as plaintiff’s are being paid by defendants 
a minimum annual salary of Twelve Hundred ($1200.00) 
Dollars.

15. Plaintiff Alston is being paid by the defendants for 
his services this school year as a regular male high school 
teacher as aforesaid an annual salary of Nine Hundred and 
Twenty-one ($921.00) Dollars, being the amount fixed by 
defendants for Negro male high school teachers in their 
fifth year of teaching experience and solely because of the 
practice, usage and custom complained of in paragraph 11 
of this complaint, and by the operation of the discriminatory 
salary schedule described in paragraphs 16 and 17 of this 
complaint the plaintiffs have been, are, and unless relief 
shall be granted by this Honorable Court as hereinafter 
prayed, will continue to be denied, solely by reason of race 
and color the opportunity to receive a higher salary equal

%  to that paid to any white teachers similarly situated.

16. Pursuant to the policy, custom and usage set out in 
paragraph 12 the defendants acting as agents and agencies 
of the Commonwealth of Virginia have established and 
maintained a salary schedule used by them to fix the amount 
of compensation for teachers and principals in the public 
schools of Norfolk which discriminates against plaintiffs 
solely because of their race or color. All teachers and prin­
cipals in the public schools of Norfolk, including the plain­
tiffs, have been, are being and will continue to be paid by 
defendants pursuant to the following salary schedule 
adopted, maintained and being enforced by the defendants 
for the school year 1939-1940:



46

Negro— 
Elementary

Salaries now 
being paid 

teachers new 
to the system

Maximum salary 
being paid 

(affecting only 
those in system 

before increment 
plan was 

discontinued)

Normal Certificate $ 597.50 $ 960.10
Degree 

High School
611.00 960.00

Women 699.00 1,105.20
Men

White
Elementary

784.50 1,235.00

Normal Certificate 850.00 1,425.00
Degree 

High School
937.00 1,425.00

Women 970.00 1,900.00
Men 1,200.00 2,185.00

The practical application of this salary schedule has been, 
is, and will be to pay Negro teachers and principals of equal 
qualifications, certification and experience with white teach­
ers and principals less compensation from public funds 
solely on account of their race or color.

17. The salary schedule set out in paragraph 16 by which 
plaintiffs and other teachers and principals in Norfolk are 
being paid and are to be paid provides for a higher salary 
for white teachers new to the system than for Negro teach­
ers new to the system with identical state certificates, exer­
cising the same duties and performing essentially the same 
services; and a higher maximum salary for white teachers 
than for Negro teachers with identical state certificates, 
exercising the same duties and performing essentially the 
same services; and pursuant to and because of said maxima 
and minima white teachers in intermediate salary status are 
paid higher salaries than Negro teachers with equivalent 
intermediate status and experience, holding identical state 
certificates, exercising the same duties and performing es-



47

sentially the same services. The said discriminations in and 
pursuant to the schedule of salaries being paid and to be 
paid are based solely on race or color and amount to an 
unlawful discrimination which constitutes a denial of due 
process of law and equal protection of the laws guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution, and is therefore unconstitutional and void.

18. In enforcing and maintaining the policy, regulation, 
custom, and usage by which plaintiffs and other Negro 
teachers and principals in the public schools of Norfolk are 
uniformly paid lower salaries than white teachers and 
principals possessing the same professional qualifications 
and certificates, having the same experience, exercising the 
same duties and performing essentially the same services, 
solely on account of the race or color of the plaintiffs, de­
fendants, as administrative agents of the Commonwealth 
of Virginia, have violated and are continuing to violate the 
equal protection of the laws and due process clauses of the 
Fourteenth Amendment to the United States Constitution, 
and Sections 41 and 43 of Title 8 of the United States Code. 
To the extent that defendants in enforcing said discrimina­
tory system are acting under color of statute, regulation, 
policy, custom or usage, said statute, regulation, policy, 
custom or usage is void and unconstitutional, and to the 
extent that defendants may be acting without benefit of 
statute, regulation, policy, custom or usage, their acts are 
nevertheless acts of the State, similarly void and unconsti­
tutional.

19. The salaries of all teachers and principals in the pub­
lic schools of the City of Norfolk, including the salaries of 
petitioners, are paid out of the public school fund. This 
fund derives from two sources: The Commonwealth of Vir­
ginia and the City of Norfolk (Virginia School Code, Chap­
ter 33,'Section 646); all of said public school fund is raised 
by means of taxation upon the inhabitants of Virginia and 
their property (Constitution of Virginia, Article IX, Sec-



48

tions 135, 136; Virginia School Code, Chapter 33, Sections 
657, 698, 699; Chapter 35, Section 782). Pursuant to these 
statutes all that portion of the public school fund which de­
rives directly from the state is used exclusively for the pay­
ment of teachers’ salaries (Virginia School Code, Chapter 
33, Section 701).

20. Plaintiff Melvin 0. Alston is an owner of property 
jointly with other members of his family, a citizen and a 
resident of the City of Norfolk, and the Commonwealth of 
Virginia, and is a taxpayer in said City and Commonwealth 
contributing directly thereby to the creation of said public 
school fund and the payment of teachers’ and principals’ 
salaries, including his own. The property of plaintiff Al­
ston is taxed equally and in the same proportion as that of 
all other citizens, residents and property owners of the 
City of Norfolk and the Commonwealth of Virginia; no 
discrimination is made in the rate of taxes he is required to 
pay into the said public school fund on account of his race 
or color. Under the Constitution of Virginia said public 
school fund is to be administered for the equal benefit of all 
the people of the State (Constitution of Virginia, Article 
IX, Section 135.)

21. By virtue of the discriminatory salary schedule for 
teachers established and maintained by the defendants, 
hereinbefore set forth in paragraph 16, and the custom set 
out in paragraph 12, the plaintiff is denied an equal and 
proportionate participation in the benefit derived from that 
portion of his taxes devoted to the public school fund and 
the payment of teachers’ salaries therefrom; he is denied 
said equal and proportionate participation in said benefit 
and return solely on account of his race and color, con­
trary to the provisions of the Fourteenth Amendment to 
the Constitution of the United States and thereby suffers 
and sustains special and particular damage from the dis­
crimination practiced against him in the distribution of the 
fund which his taxes helped to create; and he is without 
remedy save this Honorable Court issue its writ of in-



49

junction restraining’ the defendants from distributing on 
an unconstitutional basis, and according to the discrimina­
tory and unconstitutional salary schedule hereinbefore de­
scribed and set forth at paragraph 16, the public school 
fund, to which plaintiff contributes, and which is used for 
the payment of teachers ’ salaries.

22. The defendants have the official authority and duty 
of maintaining the public schools within the corporate limits 
of the City of Norfolk (Chapter 48, Section 754 of the 
Charter and General Ordinances of the City of Norfolk— 
1920); the defendant School Board is required on or before 
the first day of October of each year to submit to the City 
Manager of the City of Norfolk, Virginia, a detailed esti­
mate of its budget for the ensuing school year (Charter of 
the City of Norfolk, Section 109, Acts of Assembly of 1918). 
The City Manager of the City of Norfolk is required to 
submit all estimates, including the estimate of the public 
school budget for annual appropriations to the City Council 
at least sixty days before the end of the fiscal year (Charter 
of the City of Norfolk, Section 67, Acts of Assembly, 1918). 
Beginning with January 1, 1920, the fiscal year for Norfolk 
begins with January 1 and ends with December 31 of each 
year (Charter of the City of Norfolk, Section 69, Acts of 
Assembly 1918.) The City Council is required to pass the 
annual appropriations at least thirty days prior to the end 
of the fiscal year (Charter of the City of Norfolk, Section 
68, Acts of Assembly, 1918). The section of the estimate of 
the budget for the year 1940 for the public schools of Nor­
folk on teachers’ salaries is based upon the discriminatory 
salary schedule set out in paragraph 16 of this complaint 
and the practice, policy, custom and usage set out in para­
graph 12 of this complaint. Unless this Honorable Court 
intervenes and grants the relief prayed in this complaint, 
the defendants will continue to distribute the public school 
fund for the City of Norfolk on the illegal and unconstitu­
tional basis set out above to the irreparable injury of the 
plaintiffs and others on whose behalf they file this suit.



50

23. A petition on behalf of Aline Elizabeth Black, indi­
vidually and on behalf of the Negro teachers and principals, 
including the present plaintiffs, was filed with the defend­
ants on or about October 27, 1938, requesting that the sal­
aries of Negro teachers and principals be equalized with 
those of white teachers and principals with equal qualifica­
tions and experience and performing essentially the same 
duties; the petition was denied and on September 28, 1939, 
a similar petition was filed on behalf of the plaintiffs with 
the defendant School Board of the City of Norfolk; this 
petition requested that present salary schedule be abolished 
and that plaintiffs and other Negro teachers and principals 
be paid compensation equal to that paid white teachers and 
principals with essentially equivalent qualifications and ex­
perience and performing essentially equivalent duties; this 
petition on or about the 26th of October, 1939, was likewise 
refused.

24. Plaintiffs and those similarly situated and' affected 
on whose behalf this suit is brought are suffering irrepa­
rable injury and are threatened with irreparable injury in 
the future by reason of the acts herein complained of. They 
have no plain adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of other than 
this suit for a declaration of rights and an injunction. Any 
other remedy to which plaintiffs and those similarly situated 
could be remitted would be attended by such uncertainties 
and delays as to deny substantial relief, would involve mul­
tiplicity of suits, cause further irreparable injury, and oc­
casion damage, vexation and inconventience not only to the 
plaintiff and those similarly situated, but to defendants as 
governmental agencies.

25. There is between the parties an actual controversy as 
hereinbefore set forth.

WHEREFORE, plaintiffs respectfully pray the Court 
that upon filing of this complaint, as may appear proper 
and convenient to the Court, the Court advance this cause



51

on the docket and order a speedy hearing of this action ac­
cording to law, and that upon such hearings:

(1) That this Court adjudge and decree, and declare 
the rights and legal relations of the parties to the sub­
ject matter here in controversy, in order that such 
declaration shall have the force and effect of a final 
judgment or decree.

(2) That this Court enter a judgment or decree de­
claring that the policy, custom or usage of the defend­
ants in adopting, enforcing, or maintaining a salary 
schedule fixing the salaries of the plaintiffs and other 
Negro teachers and principals at a rate lower than 
that paid to white teachers and principals of equal 
qualifications and experience, and performing essen­
tially the same duties and services, solely because of 
their race or color, is a denial of the equal protection of 
the laws guaranteed by the Fourteenth Amendment of 
the United States Constitution and is therefore uncon­
stitutional and void.

(3) That this Court enter a judgment or decree de­
claring that the distribution by the defendants of that 
portion of the public school fund for teachers’ salaries 
on a basis whereby plaintiff J&kcSlUand other Negro 
teachers and taxpayers receive less salary than white 
teachers and taxpayers with equal qualifications and 
experience, and performing essentially the same duties 
and services solely because of their race or color denies 
to plaintiff *2§TOm®nd others similarly situated the 
equal protection of the law and due process of law 
guaranteed by the Fourteenth Amendment of the 
United States Constitution and is therefore uncon­
stitutional and void.

(4) That this Court issue a permanent injunction 
forever restraining and enjoining the defendants and 
each of them from making any distinction solely on the 
grounds of race or color in the fixing of salaries paid 
white and colored teachers and principals employed in 
the public schools of the City of Norfolk.



52

(5) That this Court issue a permanent injunction 
forever restraining’ and enjoining the defendants and 
each of them from paying to plaintiff Alston 
bpi^:of’'plaintiff^'h-orfolfr-TeaehersA-Association or any 
other colored teacher or principal employed by them a 
less salary than they pay any white teacher or principal 
employed by them with equal qualifications, certifica­
tion, experience and filling an equivalent position in the 
public schools of the City of Norfolk. V

(6) Plaintiffs further pray that the Court will allow 
them their costs herein and such further, other, addi­
tional or alternative relief as may appear to the Court 
to be equitable and just.

(Signed) By M e l v in  0 .  A l st o n , 
M e l v in  0 .  A lsto n  

N orfolk  T ea ch ers  ’ A ssociation

(Signed) By M e l v in  0 .  A l st o n ,
M e l v in  0 .  A l st o n , President 

Plaintiffs



53

C o m m o n w e a l t h  op V ir g in ia  
C it y  op N orfolk } ss

I, Melvin 0. Alston, having been first sworn according to 
law, depose and say upon oath that I am one of the plaintiffs 
named in the foregoing complaint; that I have read said 
complaint and that the matters and facts set forth therein 
are true to the best of my information, knowledge and 
belief.

M el v in  0 .  A lsto n

Subscribed and sworn to before me th is----- day of No­
vember, 1939, in the City and Commonwealth aforesaid. 

My commission expires

Notary Public

J. T h o m a s  H e w in , J r.
327 North First Street, 
Richmond, Virginia

Oliv er  W . H il l  
117 East Leigh Street, 
Richmond, Virginia

L eo n  A . R ansom  
1512 Girard Street, N. E., 

Washington, D. C.

W il l ia m  H . H a st ie ,
1221 Fairmont Street, N. W., 
Washington, D. C.

T hurgood  M a rsh a ll ,
69 Fifth Avenue,
New York, N. Y.

Attorneys for Plaintiffs



54

[Caption]
Answer of Defendants

First Defense
The Court lacks jurisdiction over the subject matter, be­

cause :

(a) The matter in controversy does not exceed, ex­
clusive of interest and costs, the sum of Three Thou­
sand Dollars.

(b) There are no grounds upon which to invoke the 
jurisdiction of the Court under Judicial Code, Section 
24 (14), 28 U. S. C. A. Section 41 (14).

(c) No constitutional rights of the plaintiffs have 
been violated.

(d) Plaintiffs have full, complete and adequate rem­
edy at law if they have any remedy at all.

(e) For the reasons alleged in the Second Defense 
herein:

Second Defense

1. The plaintiffs fail to state a claim upon which relief 
can be granted, because:

(1) There is no controversy between the plaintiffs 
and defendants that is embraced within the declaratory 
judgment Act referred to in the complaint.

(2) The Norfolk Teachers’ Association is an unin­
corporated organization and as such is not within the 
constitutional provisions referred to in the bill of com­
plaint.

(3) The plaintiff, Melvin 0. Alston, as an employee 
of the School Board, has no vested rights to any posi­
tion to teach in the public schools and a claim in the



55

premises is not within the provisions of the Constitu­
tion and Acts of Congress alleged.

(4) By reason of contract in writing dated June 12, 
1939, between the plaintiff, Melvin 0. Alston, and said 
School Board, a copy of which is attached hereto as a 
part hereof, covering his services as a teacher in said 
public schools, he is estopped from proceeding in this 
cause and has waived any rights, if any he has, in the 
premises.

(5) By reason of the contract aforesaid, to grant the 
relief requested, the Court would be making a contract, 
which the law vests the School Board with the discretion 
to make, and would further be impairing the obligation 
of the contract heretofore made.

(6) Even if the Court has jurisdiction of the subject 
matter involved, nevertheless it has no jurisdiction in 
this particular case.

(7) The plaintiff, Melvin 0. Alston, has_ no vested 
right to teach in the public schools of the City of Nor­
folk and therefore no rights to be protected by this 
Court.

(8) Under the laws of the State of Virginia the said 
School Board is authorized and empowered to employ 
teachers and fix their compensation, and such being the 
case they have the right to employ them for such salary 
as said Board is willing to pay and the teacher to accept.

(9) The operation of the public schools of the State 
of Virginia is a State function, and to grant relief in 
this case the Court would be interfering with the op­
eration of the State in such function.

2. The plaintiffs cannot proceed on behalf of others who 
are not named in the complaint.

3. For the reasons alleged in the First Defense.



56

Third Defense

Heretofore, Aline Elizabeth Black, a Negro teacher in 
said public schools, brought a writ of mandamus in the Cir­
cuit Court of the City of Norfolk against said defendants 
seeking the same relief alleged in this complaint, “ in her 
own right and on behalf of all such other persons similarly 
situated,” and by order of said Court entered on the First 
day of June, 1939 (a certified copy of which is attached 
hereto and made a part of this answer), such relief was 
denied. No appeal was taken from this decree, and under 
the laws of the State of Virginia for such cases made and 
provided, the said decree has become final, thereby fully and 
completely adjudicating the matters and things set forth 
and contained in this complaint.

[Copy]

Contract With Teachers

This Article of Agreement, between the School Board of 
Norfolk, Virginia, State of Virginia, of the first part, and 
M. 0. Alston, of the second p a rt:

Witnesseth, That the said party of the second part sub­
ject to the authority of the said school board under the 
supervision and control of the division superintendent 
agrees to teach in the schools administered by said school 
board under the following conditions; to-wit:

1. The said teacher or party of the second part shall 
open and close school on regular school days at such 
hours as the school board may designate, and shall give 
daily recess with appropriate supervision in accordance 
with the recess schedule adopted by the school board, 
provided the school day consists of not less than five 
hours or more than sis and one-half exclusive of the 
noon hour recess, when such is provided.

2. The said teacher shall obey all school laws and 
regulations and all rules made in accordance with the



57

law by the said school board and shall make promptly 
and accurately all reports required by the superin­
tendent of schools.

3. Said teacher shall exercise care in the protection 
and upkeep of the school property, furniture and fix­
tures and shall promptly report to the superintendent 
needed repairs or necessary added facilities or supplies.

4. In schools in which no regular janitor is employed 
the arrangement for keeping the school clean and in 
sanitary condition is stipulated below under special 
covenant, number 1.

5. The said teacher hereby swears or affirms alle­
giance and loyalty to the Government of the United 
States.

6. The school board or party of the first part shall 
deduct monthly from the salary of the said teacher a 
sum equal to one per centum of the salary, to be placed 
to the credit of the Retired Teachers’ Fund and to be 
applied as provided by law.

7. The said teacher may be changed from, one teach­
ing position to a different teaching position by the di­
vision superintendent when the efficiency of the school 
system requires such change, and provided proper ex­
planation be made to the school board.

8. The said board reserves the right to discuss the 
teacher or party of the second part for just cause, an 
opportunity on request being granted for a hearing, 
paying for services rendered in accordance with this 
agreement to date of dismissal. In case schools are 
closed temporarily on account of an epidemic or for 
other necessary cause the board may pay the teacher for 
time lost, or may extend the school term.

9. The said school board or party of the first part 
agrees to pay said teacher or party of the second part, 
$92.10 per school or calendar month for a term of ten
(10) school or calendar months, beginning on Septem-



58

ber 7, 1939 for a lawful school, for services rendered, 
payable on the last day of each school or calendar month 
or as soon thereafter as possible. (See special cove­
nant, number 3).

SPECIAL COVENANT.

1. With reference to care and cleanliness of school 
building and out buildings in which no janitor is em­
ployed.

2. With reference to time lost by teacher on account 
of sickness or for other cause.

Deduction from salary subject to Rules and Regu­
lations of the School Board numbered 25.

3. With reference to shortening the school term in 
case funds are exhausted.

The right is reserved to the School Board to in­
crease or decrease the salary herein specified for 
any month or months immediately after notice to 
that effect.

4. Other covenants.

In witness whereof, the parties hereunto have set their 
hands and seal, this 12th day of June, 1939.

(Signed) A. H. F orem a n ,
Chairman of the Board L.S.

L ea h a  H aller  
Clerk of the Board L.S.

(Signed) M e l v in  O. A lto n
Teacher L.S.

[Copy]
V I R G I N I A :

In the Circuit Court of the City of Norfolk, on the 1st day 
of June, in the year, 1939.



59

Aline Elizabeth. Black,
Petitioner

vs.
School Board of the City of Norfolk,
A body corporate, and C. W. Mason, 

Superintendent, Defendants
This day came the petitioner and filed her written ex­

ception to the ruling of the Court continuing this cause from 
April 20, 1939, to May 31, 1939; and came also the defend­
ants and filed their separate demurrers and answers to said 
petition; and came the petitioner further and filed her 
joinder in said demurrers and her replications and joinder 
of issues to the separate answers of each of the defendants.

And this cause then came on this day to be heard upon 
the petition of the petitioner and the exhibits filed therewith 
and upon the demurrers of the defendants filed thereto, and 
upon argument of counsel.

Upon consideration of which the Court, for reasons stated 
in its opinion which is filed as a part of the record in this 
cause, being of opinion that said demurrers should be sus­
tained, doth hereby adjudge that the same be sustained, and! 
that said petition be and the same is hereby dismissed, to 
which said ruling of the Court the petitioner, by her counsel, 
duly excepted on the ground that the same is contrary to 
the law.

And it is further ordered that the defendants recover of 
the petitioner their costs in this behalf expended.

A COPY TESTE:
C e c il  M. R obertson , Clerk 

By Sue B. Goforth D.C.

[Caption]
Opinion From the Bench

I feel that the Court ought to announce its conclusions 
now in the presence of those directly interested in the litiga­
tion, rather than defer the decision until a later time. The



60

Court has had the benefit of the briefs for about ten days 
and the opportunity to study the pleadings and the briefs 
and to make an independent investigation of the law deemed 
applicable. I desire to compliment counsel for both sides 
upon the able and exhaustive briefs which they have filed and 
on the oral arguments made today. The questions presented 
and particularly that with respect to the alleged discrimi­
nation on account of race or color, are very important. 
They are questions which concern this section of the coun­
try especially and which must be faced and finally solved in 
accordance with the mandates of the Constitution, without 
regard to the outcome of this pending case. These conclu­
sions can not be doubted by any serious-minded citizen who 
has given careful thought to the subject.

As pointed out in the course of the argument today, one 
of the questions raised in both the complaint and the an­
swer relates to the amount involved in the controversy. 
The defendants have very properly conceded that this is not 
the type of case which requires the allegation and proof of 
any particular amount in order to establish jurisdiction in 
this court. The right asserted in the complaint is a civil 
right, guaranteed by the Constitution, is excepted from the 
provisions of the Act of Congress conferring jurisdiction 
based upon the amount in controversy. Consequently no 
amount is required to be alleged or proved in order to main­
tain a suit based upon an alleged violation of such right.

I do not think that the Court is required, in the view that 
it takes of the right of the plaintiff to maintain his suit in 
the face of the written contract, to express an opinion in 
regard to the most important question involved in cases of 
this type. I do not know what facts the proofs would finally 
establish, if the case proceeded that far, with respect to the 
charge of unconstitutional discrimination against the plain­
tiff on account of his race or color. The authorities are 
clear, I think however, that there can be no discrimination 
in a case of this kind, if such discrimination is based on race 
or color alone. Under our Constitution, particularly the



61

Fourteenth Amendment, all citizens stand upon equal footing 
before the law and are entitled to equal benefits and privi­
leges where state action is involved; or, to state the proposi­
tion another way, a state can not, through its constitution, 
statutes, or rules and regulations, or through one of its ad­
ministrative bodies, arbitrarily discriminate against per­
sons within its jurisdiction. In the words of the Fourteenth 
Amendment, a state can not deny to any person within its 
jurisdiction the equal protection of the law. That principle 
is firmly established, and, if and when a case of discrimina­
tion based on race or color is presented, the person discrim­
inated against will be granted appropriate relief.

The view that I take of the plaintiff’s case, with some 
hesitation I will admit, does not render it necessary for the 
Court to pass on the unconstitutional discrimination charged 
in the complaint to have been practiced against the plaintiff, 
other than to observe that the complaint charges in clear 
and explicit language that the discrimination in compensa­
tion is based on race or color alone. Under well-established 
rules on a motion to dismiss, the court must accept those 
allegations as true, because they are well pleaded, as an 
examination of the complaint will disclose. That is to say, 
when matters are well pleaded in the complaint and a mo­
tion to dismiss is filed, based upon the alleged ground that 
the complaint fails to show that the plaintiff is entitled to 
any relief, the court must assume that the facts well pleaded 
in the complaint are true. That, of course, does not mean 
that in the event the case proceeds to the taking of testi­
mony, that such allegations will still be assumed to be true. 
In that event the parties alleging facts will have to establish 
their existence by the required degree of proof, but this 
case, however, has been heard today upon motion to dismiss 
and upon such motion, as already observed, the facts alleged 
in the complaint have to be taken as true for the purposes 
of the hearing.

A defense set up in the answer which gave me serious con­
cern from the first in the examination of the pleadings and



62

briefs, and which, stands out in the record as an undisputed 
fact, is that some time before this suit was instituted the 
plaintiff entered into a contract with the defendant school 
board, which contract covers the subject matter of this liti­
gation. For the purposes of a decision of this case I  think 
that the plaintiff Alston and the defendant school board may 
very properly be regarded as the persons who are essentially 
interested as parties in the outcome.

A copy of that contract is in the record before the court. 
There is an absence of any claim that I can find in the com­
plaint to the effect that the plaintiff was induced to enter 
into the contract by fraud, misrepresentation or that it was 
entered into under duress or that any unfair means were 
employed by defendants in that behalf, or that it was ever 
made or signed under protest. There was the general 
charge in the oral arguments today that the plaintiff was 
afraid to assert his rights against the defendants, and had 
to accept what the defendants offered him or forego follow­
ing the profession for which he had prepared himself in life. 
Anri I do not think that this is a suggestion that should be 
lightly disregarded by the court. I am fully aware of the 
fact that in situations of this kind it sometimes happens 
that the employee is at a distinct’disadvantage, is not in a 
position to boldly assert what he conceives to be his rights, 
and does not therefore, in fact, contract freely with the 
other party. But I do not find disclosed in the record any 
facts that have been pleaded by way of explanation that 
could reasonably justify the court in reaching the conclu­
sion that it ought to disregard the written contract and fur­
ther proceed in the case in spite of the fact that the plaintiff 
voluntarily entered into such contractual relation with the 
defendants.

It does appear that the plaintiff is a man of intelligence 
and excellent education, that he is experienced, that he has 
been teaching in the public schools of this City for some 
years and was entirely familiar with the alleged unconsti­
tutional discrimination against the members of his race



63

long before be accepted the written contract tendered to 
him by defendant. Of those facts there can not be the 
slightest doubt. Now, there is some persuasiveness in the 
argument that he feared to assert his rights, feared that he 
might be punishd by the loss of his position, having before 
him the unhappy example of another teacher who had 
sought to enforce what she conceived to be her constitutional 
rights. I  say, those matters caused me to hesitate, but I  am 
satisfied that this plaintiff, and others similarly situated, 
each in his individual right, have a remedy if they are here­
after unconstitutionally discriminated against, without the 
necessity of signing a contract with the Board, a remedy by 
which they can go into a court of competent jurisdiction and 
have the cases heard and their constitutional rights vindi­
cated, if the latter have been violated or are threatened to 
be violated in the immediate future.

I do not think a court ought to be quick in any case, 
whether it is a case of colored citizens or white citizens, or 
individuals or corporations, whether the case relates to 
contracts of this kind or contracts in general, to disregard 
and set aside the solemn obligations of a contract. On the 
contrary, I  think it is the duty of the Court, unless it is 
clearly shown that the contract is invalid because contrary 
to law or other cause, to uphold it, and, as far as it is within 
its jurisdiction, to protect its obligations. I  do not see, after 
a careful study of the authorities relied on by both sides on 
that particular point, how the plaintiff can have a valid, 
binding contract which he can enforce against the defendant 
Board and at the same time be in a position to repudiate 
that contract insofar as it is not favorable to him and come 
into a court of equity and ask the court to make a different 
contract.

Whatever may be the law in other states, there is no 
doubt that in Virginia a person can not under the law as it 
now exists and has existed for many years, acquire a status 
as a teacher, which gives him certain rights that must be 
respected, independently of a contract with the Board as a



64

teacher. In Virginia the relation is not a continuing one, 
but can be created only by a contract with the School Board 
in a particular jurisdiction. It continues for only one 
school year at a time, with the absolute right on the part of 
the School Board not to contract again with the particular 
person. The Board may decline to contract again with such 
person without rhyme or reason for such refusal and in that 
particular part of the Board’s procedure there manifestly 
has been no discrimination on account of race or color, for 
the simple reason that the Board can, after the expiration 
of the school year, decline to have any further contractual 
relations with an applicant to teach, whether such applicant 
be white or colored.

But I do not think that even that broad discretion in the 
Board would give it the right, after the qualifications of an 
applicant had been favorably passed on, found acceptable 
and the applicant tendered a written contract to teach, to 
say if the applicant then insisted that he be not discrimi­
nated against on account of his race or color, that such 
applicant was without any remedy because he did not have a 
written contract with the Board. In other words, the Board 
could hardly be heard to say, as it now does, that a man 
had entered into a contract binding upon him and had 
thereby waived his right to protest against unconstitutional 
discrimination, and later say to an applicant with the 
proper qualifications, who had been approved and tendered 
a contract, that he had no right because he did not have a 
written contract with the Board.

My conclusion, therefore, is that this contract has not
been shown to be invalid in any particular; that it is binding 
upon the plaintiff, as well as upon the defendant Board, 
plaintiff having signed and entered upon the performance 
of the contract two or three months (I do not recall the 
exact time) before this suit was instituted; that if the 
plaintiff intended to contest the action of the Board with 
respect to compensation, it was his duty to take prompt and 
appropriate action to that end after he was accepted as an



65

applicant and before he entered into a contract with the 
Board for another year. I  think that by signing the con­
tract and entering upon its performance, he waived the 
constitutional right which he now asserts in the complaint. 
I think that in principle the case is very much like the case 
of the colored man in Missouri (Missouri ex rel Gaines v. 
Canada, 305 U. S. 337) would have been if he, instead of 
insisting on his constitutional right as he did, had accepted 
the substitute offered by the State of Missouri, and had gone 
to a university in one of the designated adjoining states to 
study law. In other words, had he accepted the substitute 
offered by the State of Missouri, he could not thereafter 
have insisted upon his original rights. By declining to ac­
cept the substituted privilege he remained in a position to 
demand that to which he was originally entitled. That right 
was personal to him and it lay within his power alone to de­
termine whether he would insist on that right or would 
accept a substitute therefor.

In numerous instances citizens under standingly waive 
constitutional rights, not necessarily expressly but by their 
conduct. For instance, it is fundamental law in this country 
that private property can not be condemned for private use, 
even for just compensation, yet there are many instances 
in which corporations possessing the power of eminent do­
main, have condemned private property for private use, or 
in which corporations not possessing the power of eminent 
domain have nevertheless condemned private property, and 
yet in these cases the condemnor has acquired good title to 
the property. The owners had a constitutional right to 
object to their property being taken by corporations not 
possessing the power of eminent domain or to its being taken 
for a private use, yet when they failed to insist upon theii 
constitutional rights and accepted the compensation 
awarded for the property taken, they could not thereafter 
deny the title of the condemnor.

Unfortunately, there have been instances in which colored 
people have been indicted in courts in which colored citizens



66

were systematically excluded from the grand and petit 
juries, but I do not recall at this time any instances where 
that practice prevailed and a defendant, with knowledge of 
the situation, made no appropriate objection to the grand 
and petit juries, but stood trial on the merits and was con­
victed, that the conviction was set aside because of the viola­
tion of the defendant’s constitutional rights in that respect. 
It is true that it has been held in many cases, where the de­
fendant made timely objection to the grand and petit juries 
on the ground that he was being discriminated against be­
cause of his race or color, that the convictions were set aside 
by the appellate courts. In those instances the conviction 
was set aside because the accused had insisted upon his con­
stitutional right. An outstanding illustration of the waiver 
of constitutional rights may be found in the recently adopted 
Rules of Civil Procedure. Nothwithstanding the fact that 
the Seventh Amendment to the Constitution preserves the 
right of trial by jury in certain classes of cases, under the 
express provision of the Rules, unless' a party to a civil ac­
tion makes timely written demand for trial by jury, he is 
deemed to have waived that right. (Rule 38)

It is regretable, in a sense, that the Court can not finally 
dispose of all matters in the suit, but will have to dismiss 
the case because of what may by some be thought to be a 
technicality. A solemn written contract entered into be­
tween parties, whether it be between a citizen and an arm of 
the state, or between two individuals, or betwen individuals 
and a corporation, or between corporations, can in no 
proper sense be regarded as a technicality.

[Caption]
Judgment

The Court having suggested, after examination of the 
bill of complaint and answer herein that insofar as 
defenses in law are raised in the portions of the answer 
denominated “ First Defense” , Second Defense” and 
“ Third Defense”, the hearing and disposition of the case



67

might be facilitated if argument was made in advance of 
trial upon defendant’s motion to dismiss the bill of com­
plaint for alleged legal insufficiency and upon that part of 
the answer which challenges the legal sufficiency of the 
complaint upon the ground that plaintiff had waived his 
asserted constitutional right by entering into a contract 
with defendant;

And by consent of the parties the case thereafter, on Feb­
ruary 12, 1940, came on to be heard upon the defendant’s 
motion to dismiss the bill of complaint on the ground of 
legal insufficiency and also so much of the answer as chal­
lenges the legal sufficiency of the complaint because of al­
leged waiver by entering into said contract, and was fully 
argued by counsel, counsel for the respective parties having 
theretofore filed their written briefs with the Court;

And the Court being of the opinion that the plaintiff, 
Melvin 0. Alston, and the defendant, School Board of the 
City of Norfolk, are the only necessary parties to this cause, 
and being further of the opinion that plaintiff, Melvin 0. 
Alston, having entered into said written contract with the 
defendant, School Board of the City of Norfolk, to teach, 
which contract is a part of the record in this cause, and 
having prior to the institution of this suit entered upon 
the performance and partly performed the said written con­
tract, has for the reasons stated in the opinion of the Court, 
delivered orally at the close of the arguments, waived such 
constitutional rights, if any he has, that he seeks to enforce, 
doth so ADJUDGE and DECREE;

And it is accordingly ADJUDGED, ORDERED AND 
DECREED that this action be and the same hereby is dis­
missed, to which ruling of the Court in dismissing the com­
plaint, plaintiff, by counsel, duly objected and excepted.

And it is further ORDERED that the defendants recover 
of the plaintiffs their costs in this behalf expended.

(Signed) L u t h e r  B. W a y  
United States District JudgeNorfolk, Virginia, 

February 29, 1940.



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