School Board of the City of Charlottesville, Virginia v. Allen Brief on Behalf of Appellants

    BRIEF ON  BEHALF OF APPELLANTS

United States Court of Appeals 
for the Fourth Circuit

No. 7303

T H E  SCH OOL BO ARD  OF TH E  C ITY  OF C H A R ­
LO TTE SV ILLE , V IR G IN IA , an d  F E N D A L L  R. 

ELLIS, D iv is io n  S u p e r in t e n d e n t  of S chools 
of t h e  C it y  of C h a r lo tte sv ill e , V ir g in ia ,

Appellants
v.

DORIS M A R IE  ALLEN , et  a l .,
Appellees

Appeal from the United States District Court for the 
Western District of Virginia, at Charlottesville

Jo h n  S. B a t t l e
Court Square Building 
Charlottesville, Virginia

Jo h n  S. B a t t l e , Jr .
Court Square Building 
Charlottesville, Virginia

Attorneys for Appellants

J. L in d s a y  A l m o n d , Jr .
Supreme Court Building 
Richmond, Virginia 

Attorney General of Virginia

H e n r y  T. W ic k h a m
1407 State-Planters Bank Bldg. 
Richmond, Virginia 

Special Assistant to the 
Attorney General



TABLE OF CONTENTS
Page 
... 1S t a t e m e n t  of t h e  C ase

T h e  Q u estio n s  I n v o l v e d ......................  2

S t a t e m e n t  of t h e  F a c t s ...............................................................    3

A r g u m e n t  .................................................................................   6

I. The Appellees Are Prohibited by the Eleventh Amendment 
from Maintaining This Action .................................................... 6
A. This Action Is a Suit Against the State............................... 6
B. The State Has Not Given Its Consent to Be Sued in a

Federal C ourt...................................      9

II. Appellees Have Failed to Prove a Case Upon Which the 
District Court Could Have Granted Injunctive R elief............ 12

III. The Appellees Have Not Exhausted Their Administrative
Remedies .......................................................................................    20

IV. The District Court Has Abused Its Discretion by Entering
an Order Effective September, 1956 ..........................................   25

C o n c lu sio n  ....................................................     27

TABLE OF CITATIONS 

Cases

Board of Supervisors v. County School Board, 182 Va. 266 (1944 ) 7
Briggs v. Elliott, 132 F. Supp. 776 ..................... .......................... 17, 25
Brown v. Board of Education of Topeka (May 17, 1954), 347

U. S. 483, and (M ay 31, 1955) 349 U. S. 294 ................ ....12, 13
14, 15, 19

Bush v. Orleans Parrish School Board, 138 F. Supp. 337 (U. S.
D. C., ED, La., 1956) ................... ................ .................... ...........  25

Carson v. Board of Education of McDowell County, 227 F. (2d)
789 (4th Cir., 1955) .................................................  21, 22, 23, 24



Page
Duhne v. New Jersey, 251 U. S. 311 (1920) .....  6
Ex Parte New York, 256 U. S. 490 (1921) .....................................  6
E x Parte Young, 209 U. S. 123 (1908) ...........  6
Fitts v. McGhee, 172 U. S. 516 (1899) ........     6
Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945) 11
Georgia R. R. & Banking Co. v. Redwine, 342 U. S. 300 (1952) 7
Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944) ............  10

Plans v. Louisiana, 134 U. S. 1 (1890) ............................................ . 6

Hood v. Board of Trustees, 232 F. (2d) 626 (4th Cir., 1956) 23, 24
Kennecott Copper Corporation v. State Tax Comm’r., 327 U. S.

573 (1946) .....................................................   11
Maia v. Eastern State Hospital, 97 Va. 507 (1899) ........................  12

Matthews v. Launius, 134 F. Supp. 684 (U . S. D. C., W . D. A r k , 
1955) ............................          25

Missouri v. Fiske, 290 U. S. 18 (1933) ...... ....................................  8
O ’Neill v. Early, 208 F. (2d) 286 (4th Cir., 1953) ...... .........  7, 12
Osborn v. Bank of United States, 9 Wheat. 738 ............................... 6
Robinson v. Board of Education of St. Mary’s C ounty..................  24
Sterling v. Constantin, 287 U. S. 378 (1932) ..................................... 7

Other Authorities 

Code of Virginia (1950) :
Section 22-63 ............................................................................ . 9, 10
Section 22-94 ...................................................................................... 10
Section 22-57 ............... ................. ............................................ 20, 21



United States Court of Appeals 
for the Fourth Circuit

No. 7303

T H E  SCHOOL BO ARD  OF T H E  C ITY  OF C H A R ­
LO TTE SV ILLE , V IR G IN IA , and  FE N D A LL R. 

ELLIS, D iv is io n  S u p e r in t e n d e n t  of S chools 
of t h e  C it y  of C h a r lo tte sv ill e , V ir g in ia ,

Appellants
v.

DORIS M AR IE  ALLEN , :et a l .,
Appellees

Appeal from the United States District Court for the 
Western District of Virginia, at Charlottesville

BRIEF ON BEHALF OF APPELLANTS

STATEM ENT OF THE CASE

This class action came on to be heard on July 12, 1956 
upon the complaint of the appellees, the answer of the appel­
lants and evidence offered by both parties, including ex­
hibits, depositions and testimony.

The appellees prayed that a preliminary and permanent 
injunction be granted restraining and enjoining the appel­
lants from enforcing and pursuing against appellees the 
policy and custom of precluding, on the basis o f race or



2

color, their admission to the public schools of the City of 
Charlottesville.

The appellants, in answer, asserted that they were not 
required to integrate the public schools o f the City of Char­
lottesville and moved the District Court to dismiss the com­
plaint on the grounds, among others, that the action involved 
no case or controversy upon which relief should be granted 
and that the State had not given its consent to be sued in this 
action.

On August 6, 1956, the District Court entered its order, 
effective at the commencement of the school term beginning 
in September, 1956, restraining and enjoining the appellants 
from any action that would regulate or affect, on the basis 
o f race or color, the admission, enrollment or education of 
the appellees, or other Negro children similarly situated, 
to or in any public school operated by the appellants.

T H E  Q U E S T IO N S  IN V O L V E D  

Point I

May a federal district court enjoin a local school board, 
which is admittedly an agency of the Commonwealth of 
Virginia, and a State officer in his official capacity when the 
Commonwealth has not given its consent to be sued ?

Point II

Is there any case or controversy presented by this action 
over which a federal district court has jurisdiction?

Point III

Have the appellees exhausted their administrative rem­
edies so as to entitle them to relief in a federal district court ?



3

Point IV

Under the facts of this case and the law applicable thereto, 
has not the federal district court abused its discretion by 
entering its order which had the effect o f compelling inte­
gration by the commencement of the September, 1956, school 
term?

STATEM ENT OF THE FACTS

The appellees stated in their bill of complaint that the 
appellant school board is an administrative department of 
the Commonwealth of Virginia. The appellants agree. The 
appellees further alleged that appellant Fendall R. Ellis, 
Division Superintendent of Schools for the City of Char­
lottesville, is an administrative officer o f the Commonwealth 
o f Virginia. To this allegation, the appellants also agree.

The complaint also alleged that the appellees made a 
formal demand that the appellants conform to the school 
segregation decision of the Supreme Court of the United 
States and discontinue the policy and custom of operating a 
segregated school system. It was further alleged that the 
appellees “ possess all qualifications and satisfy all require­
ments” for admission to the public schools o f the City o f 
Charlottesville.

In order to sustain the aforesaid allegations, the appellees 
introduced certain exhibits and presented two witnesses, one 
of which was the appellant Fendall R. Ellis. The substance 
of the appellees’ evidence is as follows:

1. A  petition, marked Plaintiffs’ Exhibit “ A ” , was mailed 
to the appellants by certain attorneys on October 6, 1955, 
on behalf of some forty-four children. It was stated that 
these children were eligible to attend the public schools o f 
the City of Charlottesville. The petition also demanded that



4

the appellants “ take immediate steps to reorganize the public 
schools”  and pointed out that the appellants were “ duty- 
bound to take immediate concrete steps leading to early elim­
ination of segregation in the public schools.”

2. Plaintiffs’ Exhibit “ B” represents the reply of the 
appellants to the appellees’ petition and is in the form of a 
resolution adopted by the appellant school board. The reso­
lution stated that a solution to the problem presented by the 
school segregation decisions could be found only “ after sober 
reflection over a period of time.” Reference was also made 
to a former resolution o f the appellants school board, adopt­
ed July 8, 1955, wherein it was resolved “ to begin promptly 
a study of the future operation o f the City’s public school 
system in the light of the Supreme Court decrees of May 31, 
1955.”

3. George R. Ferguson was called as a witness for the 
appellees and stated that he was a Negro and that his child, 
one of the appellees, attended Burley High School which was 
operated jointly by the City of Charlottesville and the County 
of Albemarle for members o f the Negro race. It was then 
conceded by counsel for the appellants that all o f the appel­
lees were Negroes who resided in the City of Charlottesville 
and were eligible to attend the public schools.

4. Appellant Fendall R. Ellis was called as an adverse 
witness. He testified that there were six elementary schools 
in the City of Charlottesville, five of which were attended 
by white children and one o f which was attended by Negro 
children. There is one white high school and one Negro 
high school, which is jointly owned and operated by the 
City and County. Mr. Ellis also testified that the school 
budget for the school year, 1956-57, had been adopted and 
submitted to the City Council prior to April 1, 1956, and that



5

the appellant school board had approved no plan “ to deseg­
regate the city school for the school term 1956-1957.” Upon 
questioning by the Court, Mr. Ellis stated that there were 
2,436 white children in the elementary schools and 761 
Negro children. There were 897 white children and 281 
Negro children enrolled in the high schools.

As their principal evidence, the appellants introduced the 
depositions of Fendall R. Ellis and o f James H. Michael, 
Jr., a member of the appellant school board. Mr. Ellis stated 
that preparations for the operations of the schools for the 
year, 1956-1957, had been completed and that a change at 
such a late date “ would not only occasion great difficulty, but 
would also be most disruptive and impractical.” He further 
stated that any change of plans involving the transfer of 
school children “ would be most disruptive of orderly pro­
cedure and prove of harmful effect in the administration of 
the public school system.”

Mr. Michael, in his deposition, agreed with Mr. Ellis and 
stated that since the essential administrative steps relative 
to the opening of the public schools had been taken, any 
disruption “ would seriously militate against orderly and 
efficient administration of the educational process to the 
lasting detriment of the school children of the City of Char­
lottesville.” He went on to state that many months of care­
ful consideration would be necessary to determine shifts o f 
pupil population from one school to another since such shifts 
raised questions of distribution o f teachers, and the number 
required, of available space in the various schools and of 
curriculum adjustments.

Cross-examination of the witnesses, Ellis and Michaels, 
did not reveal any significant facts not already set forth 
above and there was no further material evidence presented 
to the Court below.



6

ARGU M EN T

I.

The Appellees Are Prohibited by the Eleventh Amendment 
From Maintaining This Action

The Eleventh Amendment to the Constitution of the 
United States reads as follows:

“ The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by citizens of another state, or by citizens or subjects of 
any foreign state.”

Although the Eleventh Amendment only expressly covers 
suits by citizens of another state or citizens or subjects of 
a foreign state, it has been interpreted as prohibiting suits 
against a state by its own citizens. Hans v. Louisiana, 134 
U. S. 1 (1890) ; Fitts v. McGhee, 172 U. S. 516 (1899); 
Duhne v. Nezv Jersey, 251 U. S. 311 (1920 ); Ex parte A ew 
York, 256 U. S. 490 (1921).

A.

T h is  A ction  I s a  Su it  A g a in st  t h e  Sta te

As early as 1824 the United States Supreme Court in 
Osborn v. Bank of United States, 9 Wheat. 738, held that 
a state official possesses no official capacity when acting 
illegally and hence can derive no protection from an uncon­
stitutional state statute.

In the case of Ex parte Young, 209 U. S. 123 (1908), the 
Attorney General of Minnesota had been found guilty of 
contempt of a federal court in that he had refused to dismiss 
mandamus proceedings brought to compel compliance with a



7

state statute governing the rates of certain railroads. The 
Supreme Court held that the action in the federal court was 
not a suit against the state in that it sought only to enjoin 
a state officer from enforcing an unconstitutional statute.

In Georgia R. R. & Banking Co. v. Redzvine, 342 U. S. 
300, 304 (1952), a case to enjoin a state officer o f Georgia 
from enforcing an allegedly unconstitutional tax, the late 
Chief Justice Vinson, speaking for the Court, said:

“ * * * This Court has long held that a suit to restrain 
unconstitutional action threatened by an individual who 
is a state officer is not a suit against the State. These 
decisions were reexamined and reaffirmed in E x Parte 
Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441, 
13 L. R. A. NS 932, 14 Ann. Cas. 764 (1908), and have 
been consistently followed to the present day. * * *”

For the purposes of this argument, the appellants accept 
the principles enunciated in the foregoing cases, namely, that 
when there is a showing that the exertion of state power 
overrides rights secured by the Constitution, an appropri­
ate proceeding may be brought against the individuals 
charged with the transgression. See, Sterling v. Constantin, 
287 U .S . 378, 397 (1932).

However, the instant case has been brought against a local 
school board which is concededly an agency of the Common­
wealth of Virginia. The action of the appellants is the action 
of the state, since local school boards and division superin­
tendents are the means through which the state performs its 
function of maintaining a public school system. See, Board 
of Supervisors v. County School Board, 182 Va. 266 (1944) 
and O’Neill v. Early, 208 F. (2d) 286 (4th Cir., 1953).

Accordingly, it is the contention o f the appellants that the 
appellees, in absence o f state consent, cannot maintain this 
action because of the prohibitions of the Eleventh Amend­



ment. It has been urged, however, that if such be the hold­
ing o f the Court, the appellees would be unable to enforce 
rights secured by the Constitution. This, of course, is not 
true, since it is conceded by the appellants that the appellees 
may, in an appropriate proceeding, sue individuals who may 
be charged with violating their rights under color o f an 
unconstitutional statute.

It has also been suggested that the school board is suable 
because if acting as charged in the complaint, it is not acting 
as an agency of the state. A  state may act only through its 
officers and agencies. Therefore, an agency of the state is 
the state itself. The question immediately arises, then, as to 
when is a state not a state. If it be held that a state is not a 
state when it acts in an unconstitutional manner, the prohibi­
tions contained in the Eleventh Amendment would be dras­
tically limited, contrary to their plain meaning, and to the 
decisions rendered thereunder.

The proper interpretation of the Eleventh Amendment, 
in so far as its applicability to particular types of suits, is 
found in the following language of Missouri v. Fiske, 290 
U. S. 18,25-27 (1933):

“ The Eleventh Amendment is an explicit limitation 
o f the judicial power of the United States. . . . However 
important that power, it cannot extend into the forbid­
den sphere. Considerations of convenience open no 
avenue of escape from the restriction. The ‘entire ju­
dicial power granted by the Constitution does not em­
brace authority to entertain a suit brought by private 
parties against a State without consent given.’ Ex  
parte Nezv York, 256 U. S. 490, 497. Such a suit can­
not be entertained upon the ground that the controversy 
arises under the Constitution or laws of the United 
States. Hans v. Louisiana, 134 U. S. 1, 10 ; Palmer v. 
Ohio, 248 U. S. 32, 34; Duhne v. New Jersey, 251 U. S. 
311,313,314.”



9

. . Expressly applying to suits in equity as well as 
at law, the Amendment necessarily embraces demands 
for the enforcement of equitable rights and the prose­
cution o f equitable remedies when these are asserted 
and prosecuted by an individual against a State. This 
conception of the Amendment has had abundant illus­
tration. Louisiana v. Jutnel, 107 U. S. 711, 720; Ha- 
good v. Southern, 117 U. S. 52, 67; In re Ayers, 123 
U. S. 443, 497; Fitts v. McGhee, 172 U. S. 516, 529.”

Therefore, it must be concluded that the Eleventh Amend­
ment prohibits a suit against a state whether the nature of 
the suit involves interest in property or civil rights o f indi­
viduals.

In conclusion, the appellants repeat that they do not con­
tend that the Eleventh Amendment prohibits a suit against 
individual members of a local school board or against a divi­
sion superintendent as an individual acting under an uncon­
stitutional statute. Individuals have not been named in the 
instant case nor have they been served with process. This 
action is a suit against the state in name and in fact, and as 
such, should be dismissed, unless it can be successfully con­
tended that the state has consented to be sued.

B.

T h e  S ta te  H as N ot G iv e n  I ts C o n sen t  
T o B e S ued in  a  F ederal  C ourt

The school board is created by statute as a body corporate, 
and among its enumerated powers is the power to sue and 
be sued. Section 22-63, Code o f Virginia (1950) deals with 
the county school board in the following language:

“ §22-63. School board constitutes body corporate; 
powers generally.— The members so appointed shall



10

constitute the county school board, and every such 
board is declared a body corporate, under the style of
the County School Board o f ............. .......  County, and
may, in its corporate capacity, sue or be sued, contract, 
or be contracted with and, in general, is vested with all 
the powers, and charged with ail the duties, obligations 
and responsibilities imposed upon such board as such 
by law.”

The provision relating to the city school board, as contained 
in Section 22-94, Code of Virginia (1950), is as follows:

“'§22-94. Constitutes a corporation: powers and duties 
generally.— The school trustees of each city shall be a 
body corporate under the name and style of ‘The School
Board of the City o f __________’, by which name it may
sue and be sued, contract and be contracted with, and 
purchase, take, hold, lease, and convey school property, 
both real and personal. The title to all school property 
both real and personal, within the city shall vest in the 
board, except by mutual consent of the council and 
school board the title to property may vest in the city. 
The trustees of the several districts, where there are 
more than one, shall have no organization or duties 
except such as may be assigned to them by the consoli­
dated body.”

The question to be decided is whether or not the above 
quoted statutory provisions apply only to suits in state 
courts. Three decisions of the United States Supreme Court 
hold that consent to suit in the federal courts will not be 
implied, but must be expressly stated by statute.

In Great Northern Life Ins. Co. v. Read, 322 U. S. 47 
(1944), a foreign insurance company brought suit in a 
federal district court to recover the tax paid under protest 
on premiums written in the state. Although the statutory 
provision for appeal o f such taxes provided that “ all such



11

suits shall be brought in the court having jurisdiction there­
o f,” the Supreme Court held that the clear implication of 
the statute as a whole was that the state consented only to 
suit in its own courts. The Supreme Court stated at page 54:

“ . . . When a state authorizes a suit against itself to do 
justice to taxpayers who deem themselves injured by 
any exaction, it is not consonant with our dual system 
for the Federal courts to be astute to read the consent 
to embrace Federal as well as state courts. Federal 
courts, sitting within states, are for many purposes 
courts of that state, Madisonville Traction Co. v. St. 
Bernard Min. Co., 196 U. S. 239, 255, 49 L. Ed. 462, 
468, 25 S. Ct. 251, but when we are dealing with the 
sovereign exemption from judicial interference in the 
vital field of financial administration a clear declaration 
of the state’s intention to submit its fiscal problems to 
other courts than those of its own creation must be 
found.”

In Ford Motor Co. v. Department of Treasury, 323 U. S. 
459 (1945), the Supreme Court reaffirmed its position in the 
Read case under similar facts. Although the state statute 
authorized action in “ any court of competent jurisdiction,” 
the Supreme Court, on considering the whole statute, failed 
to find the requisite clear indication of consent to suit in a 
federal court.

The case of Kennecott Copper Corp. v. State Tax Comm’r, 
327 U. S. 573 (1946), again illustrates the position taken by 
the Supreme Court on this question. There, the applicable 
state statute also provided only that one “ may bring an 
action in any court o f competent jurisdiction.”  The Supreme 
Court nevertheless held that the suit could not be brought in 
a federal court and concluded at pages 579-580:



12

“ W e conclude that the Utah statutes fall short of the 
clear declaration by a state of its consent to be sued in 
the federal courts which we think is required before 
federal courts should undertake adjudication of the 
claims of taxpayers against a state.”

This Court has also concluded that the statutes now under 
consideration do not authorize a suit against a local school 
board in a federal court. In O’Neill v. Early, supra, at page 
288, Chief Judge Parker, speaking for the Court, said:

“ The fact that the state has authorized the defendant 
school board to sue and be sued is immaterial, since it 
has not consented to suit in the federal court. * * *”

Compare, Mala v. Eastern State Hospital, 97 Va. 507 
(1899), wherein it was held by the Supreme Court o f Ap­
peals of Virginia that simply because a public corporation 
was authorized by statute to sue and be sued, it did not 
follow that it could be sued in all cases in which a private 
corporation may be sued.

It must be concluded, therefore, that since this action is a 
suit against the state for which consent has not been given, 
it must be dismissed as violating the Eleventh Amendment.

II.

Appellees Have Failed to Prove a Case Upon Which the
District Court Could Have Granted Injunctive Relief

This court is now hearing upon appeal one of its first 
cases against a school board which was not a party in 
Brown v. Board of Education of Topeka (M ay 17, 1954), 
347 U. S. 483, and (M ay 31, 1955) 349 U. S. 294. There­
fore, it is to be assumed that the decision in this case must 
create the original and fundamental precedents relating not



13

only to procedural requirements in federal district courts 
but relating also to the requirements of proving whatever 
specific facts as are necessary, as a matter o f substantive 
law, to support the specific relief thought to be afforded by 
the doctrine of the Brown case. Hence, it is felt with good 
reason that the point presented here is of great importance 
both to the final determination of this case and to the sub­
sequent consideration o f similar cases by other district 
courts.

To present the point clearly it is necessary to show the 
theory upon which the appellees proceeded in the court 
below. Some idea of that theory can be gathered from the 
so-called “ petition” sent to the local school board by 
N A A C P attorneys purporting to represent a certain group 
of Negroes. This “ petition” merely called the school board’s 
attention to the Supreme Court decision in the Brown case, 
construed it to require the early elimination of segregation 
in the public schools and demanded that immediate steps be 
taken “ to reorganize the public schools under your juris­
diction so that children may attend them without regard to 
their race or color.”  Subsequently, the same attorneys, pur­
porting to represent substantially the same persons as listed 
in the “ petition” filed their complaint alleging, among other 
things, that the appellants maintain and operate separate 
public schools for Negro and white children, respectively, 
and deny the infant appellees, because of their race and 
color, admission to and education in public schools operated 
for white children, pursuant to a policy, practice, custom 
and usage of segregating, on the basis of race or color, all 
the children attending the public schools; and further that 
the appellants will continue to pursue against the appellees, 
and all other children similarly situated, the same policy, 
practice custom and usage unless restrained and enjoined 
from so doing.



14

The appellants assert that even assuming this properly 
to be a class action, the only persons coming within said 
class are citizens of the United States residing in the Com­
monwealth of Virginia who are otherwise duly qualified for 
admission to the public schools, and who have applied for 
and been denied such admission.

The onlv issue then, squarely presented by the pleadings, 
amounts to this: Is the local school board specifically deny­
ing any one of the appellees the right, which he or she 
should properly have, to attend a particular school?

Whatever the policy, practice, custom and usage may be, 
they are not directly relevant to the issues in this case. If 
the}  ̂result in segregation in the public schools solely because 
of race and not because of any other factors it may be 
assumed, for the purpose of this argument, that they must 
be abandoned under the doctrine of the Brown case. But, 
and this is the important point, neither in the Brown case, 
nor in any of its companion cases, did any court decide 
that any particular Negro child, or particular group of 
Negro children under the jurisdiction of the appellants 
were being denied the rights now guaranteed to them. In 
short, it would seem obvious, that it is no longer necessary 
for a trial court to reaffirm the doctrine of the Brown case 
but it is necessary, and we would think mandatory, in the 
interests of fairness and orderly procedure, for the trial 
court to apply the doctrine of the Brown case to the facts 
presented, and to decide specifically whether any apnellee 
has carried the burden of showing that he or she is being 
unlawfully denied admission to a particular school.

In the instant case, the court below merely reaffirmed the 
doctrine of the Brozvn case and ordered the appellants to 
cease the practice of segregation commencing on a specified 
date. It is admitted, of course, that in any suit seeking 
injunctive relief it is necessary for the trial court to fix a



15

time from which the injunction is to operate, if granted. 
But it is certainly to be assumed that the basic requirements 
o f civil procedure demand that each appellee prove both a 
specific right and the denial of that right before he or she 
obtains a decree enjoining the denial of the right.

The position here taken suggests no more than an adher- 
ance to basic and well-established principles o f civil pro­
cedure and it is thoroughly consistent with that part of the 
implementing decision in the Brozvn case (349 U. S. 294) 
which had the efifect of remanding the cases then pending to 
the respective trial courts for final determination in accord­
ance with the principal decision. The Supreme Court was 
careful to make these provisions for the guidance of the 
trial courts to which the cases were being remanded, saying 
at pages 299-300:

“'Full implementation of these constitutional princi­
ples may require solution of varied local school prob­
lems. School authorities have the primary responsibility 
for elucidating, assessing, and solving these problems; 
courts will have to consider whether the action o f school 
authorities constitutes good faith implementation of the 
governing constitutional principles. Because of their 
proximity to local conditions and the possible need for 
further hearings, the courts which originally heard 
these cases can best perform this judicial appraisal. 
Accordingly, we believe it appropriate to remand the 
cases to those courts.

“ In fashioning and effectuating the decrees the courts 
will be guided by equitable principles. Traditionally, 
equity has been characterized by a practical flexibility 
in shaping its remedies and by a facility for adjusting 
and reconciling public and private needs. These cases 
call for the exercise of these traditional attributes of 
equity power. At stake is the personal interest of the 
plaintiffs in admission to public schools as soon as 
practicable on a nondiscriminatory basis. To effectu­



16

ate this interest may call for elimination of a variety 
o f obstacles in making the transition to school systems 
operated in accordance with the constitutional princi­
ples set forth in our May 17, 1954, decision. Courts 
of equity may properly take into account the public 
interest in the elimination of such obstacles in a system­
atic and effective manner. But it should go without 
saying that the vitality of these constitutional princi­
ples cannot be allowed to yield simply because of dis­
agreement with them.

“While giving weight to these public and private 
considerations, the courts will require that the defend­
ants make a prompt and reasonable start toward full 
compliance with our May 17, 1954, ruling. Once such 
a start has been made, the courts may find that addi­
tional time is necessary to carry out the ruling in an 
effective manner. The burden rests upon the defend­
ants to establish that such time is necessary in the pub­
lic interest and is consistent with good faith compliance 
at the earliest practicable date. To that end, the courts 
may consider problems related to administration, aris­
ing from the physical condition of the school plant, the 
school transportation system, personnel, revision of 
school districts and attendance areas into compact units 
to achieve a system of determining admission to the 
public schools on a nonracial basis, and revision of local 
laws and regulations which may be necessary in solving 
the foregoing problems. They will also consider the 
adequacy of any plans the defendants may propose to 
meet these problems and to effectuate a transition to a 
racially nondiscriminatory school system. During this 
period of transition, the courts will retain jurisdiction 
of these cases.”

It must be remembered that although the Supreme Court 
had established a general constitutional doctrine applicable 
to all jurisdictions, procedurally its decisions were directed 
to the parties in the cases before it. Previously, each case



17

had been tried in its respective trial court; abundant evidence 
had been taken in each case and presumably the plaintiffs 
had successfully carried the burden of proving by sufficient 
facts, a right to enter a white school and a denial of that 
right. Therefore, the Supreme Court, having reached its 
decision, only had to direct the respective trial courts to 
carry out the mandate, taking into account the various 
considerations hereinabove quoted.

Now let us examine the evidence produced in the instant 
case and inquire whether any one of these appellees has 
proved a specific right, and that he or she is being denied 
that right. Obviously, the only specific right which could 
be proved in this case is the right to transfer from one public 
school to another. It was suggested in Briggs v. Elliott, 
132 F. Supp. 776, that the right of any qualified individual, 
regardless of race, to attend any public school of his choice 
was not necessarily a general right permitting every Negro 
child to attend a heretofore all-white public school. The 
clear language of the decision affords no different interpre­
tation for, speaking of the Supreme Court decision, the 
court stated at page 777:

“ * * * It; has not decided that the federal courts are 
to take over or regulate the public schools of the states. 
It has not decided that the states must mix persons of 
different races in the schools or must require them to 
attend schools or must deprive them of the right of 
choosing the schools they attend. What it has decided, 
and all that it has decided, is that the state may not deny 
any person on account of race the right to attend any 
school that it maintains. * * * The Constitution, in 
other words, does not require integration. It merely 
forbids discrimination. It does not forbid such segre­
gation as occurs as the result of voluntary action. It 
merely forbids the use of governmental power to en­
force segregation. * * *”



18

Specifically, the right exists and must be recognized when 
an individual Negro child shows that he is fully qualified and 
desires to attend a particular school. He must show his 
qualification and right to transfer from one school to another 
by making known the particular school he seeks to attend; 
by showing that both the school and his residence are so 
located geographically as to make his attendance there prac­
ticable; by showing that the physical facilities in the par­
ticular school will accommodate him; and by showing that 
he is at least as well suited to attend as those already in 
attendance. These factors should be easy to prove in any 
particular case, if they exist, but upon the failure to prove 
them, there could be no finding of specific discrimination on 
the basis of race, and such a finding is essential to the 
relief here sought. Therefore, to complete the requirement, 
it would appear that any plaintiff or group of plaintiffs, 
having affirmatively established the right to be admitted to 
or to transfer to another school, must prove the denial of 
that right, solely because of race.

W e believe these conclusions to be logical, well supported 
by the authorities and eminently sound. If they be, then 
what have the appellees proved in the instant case? Only 
these facts: that they are Negroes, living within the juris­
diction of the appellant school board; that the infants of the 
class attend and are entitled to attend public schools; that 
the school board operates elementary and high schools, here­
tofore attended by white students, and elementary and high 
schools heretofore attended by Negro students; and that 
apparently no change in the program was contemplated as 
of the date of the trial below. Not one of the appellees has 
attempted to show that he is as well situated to attend an­
other school as the one he is now attending. There is no evi­
dence in this record giving the exact location of the various



19

schools or o f the residence of the appellees, or a description 
of the public school transportation facilities now available, 
or the ages and grade levels of the appellees, or the present 
enrollment and maximum capacities of the various schools, 
or the identity of the school into which the appellees may 
wish to be transferred. None of them have even applied for 
admission in another school, and as far as the record will 
disclose they may all voluntarily choose to stay in the schools 
they are now attending. The fact that opposing counsel, 
openly and obviously representing the N A A C P through the 
individuals here named as appellees, may contend otherwise 
makes no difference because not one of these appellees has 
testified that he seeks or will seek admission to another 
school.

It is therefore perfectly clear that, unless all of the under­
lying principles of civil procedure are disregarded, the con­
clusion is inescapable that not one of these appellees are 
entitled to any specific relief for the simple reason that they 
have thoroughly and completely failed to carry the burden 
o f proof.

In conclusion, it is respectively submitted that the order 
from which this appeal is taken can leave these appellees 
in no different posture than that in which they found them­
selves immediately after the Supreme Court decision in the 
Brown case. If any o f them should claim an abridgment of 
the right to transfer from one school to another, the Brown 
case will supply the trial court with the constitutional prin­
ciple which must be applied. However, relief in the very 
nature of the case must be specific and accorded only after 
affirmative proof of the essential facts and circumstances 
giving rise to an individual right and the denial of that right 
on account of race.



20

III.
The Appellees Have Not Exhausted 

Their Administrative Remedies

As already pointed out, these appellees have not applied 
for admission to any particular school. They have made 
only general requests that the school system be reorganized. 
Thus, in fact, the appellees have not even resorted to their 
administrative remedies, though the law requires that they 
be exhausted before seeking injunctive relief.

Section 22-57 of the Code of Virginia (1950) provides 
for appeals from the actions of school boards and reads as 
follows:

“ Any five interested heads of families, residents of 
the county, or city, who may feel themselves aggrieved 
by the action of the county or city school board, may, 
within thirty days after such action, state their com­
plaint, in writing, to the division superintendent of 
schools who, if he cannot within ten days after the 
receipt o f the complaint, satisfactorily adjust the same, 
shall, within five days thereafter, at the request of any 
party in interest, grant an appeal to the circuit court 
of the county or corporation court of the city or the 
judge thereof in vacation who shall decide finally all 
questions at issue, but the action of the school board on 
questions of discretion shall be final unless the board 
has exceeded its authority or has acted corruptly. The 
proceedings on such an appeal shall be informal, and 
no pleading shall be required, other than the complaint 
hereinabove provided for. A  copy of the order shall 
also be entered by the clerk of the board in the minute 
book of the county or city board.

“When a school is owned or operated jointly by two 
or more counties, all questions arising with reference to 
the school, shall be voted on by the county school boards



21

of the counties jointly, and the majority vote of the 
combined boards shall be final, unless appealed from as 
provided in this section. In the event o f an appeal from 
the joint action of such boards, the complaint shall be 
made to the division superintendents of both counties 
affected, and if they cannot adjust the same as pro­
vided in this section, an appeal shall be allowed to the 
circuit court of the county or the corporation court of 
the city or the judge thereof in vacation.”

The appellees have alleged in their complaint that they 
have no remedy other than injunctive relief. The plain 
language of the above quoted statute is thus ignored. This is 
a class action. Therefore, all of the appellees, or any five 
of them, who may have felt themselves aggrieved by any 
action of the school board, could have appealed such action 
to the division superintendent of schools. If their complaint 
was not then adjusted, any one of them would have the 
right to appeal to a court o f record. Such an appeal would 
require no further pleading and the court would not be 
bound by any illegal action of the local school board, or the 
division superintendent.

This Court is familiar with the case of Carson v. Board 
of Education of McDowell County, 227 F. (2d) 789 (4th 
Cir., 1955), wherein it was held that federal courts would 
not intervene until state administrative remedies had been 
exhausted. The complaint in this case was filed before the 
Supreme Court’s decision in the school segregation cases 
and the plaintiffs requested, among other things, equal edu­
cational facilities for Negro children. The district court 
dismissed the action on the ground that the decisions o f the 
Supreme Court had made inappropriate the relief prayed 
for in the complaint. However, this Court vacated the order 
on the ground that the plaintiffs were entitled to a declara­
tory judgment of their right to attend school without dis­



22

crimination and remanded the case to the district court.' 
The district court was directed to consider state admin­
istrative remedies for persons aggrieved by actions of local 
school boards.

The language of this Court in the Carson case is applica­
ble to the instant case. Accordingly, it is quoted fully, 
beginning at pag'e 790, as follows:

“ In further consideration of the case, however, the 
District Judge should give consideration not merely to 
the decision of the Supreme Court but also to subse­
quent legislation of the State of North Carolina pro­
viding an administrative remedy for persons who feel 
aggrieved with respect to their enrollment in the public 
schools of the state. The Act of March 30, 1955, en­
titled ‘An Act to Provide for the Enrollment of Pupils 
in Public Schools,’ being chapter 366 o f the Public 
Laws of North Carolina of the Session of 1955, pro­
vides for enrollment by the county and city boards of 
education of school children applying for admission to 
schools, and authorizes the boards to adopt rules and 
regulations with regard thereto. It further provides for 
application to and prompt hearing by the board in the 
case of any child whose admission to any public school 
within the county or city administrative unit has been 
denied, with right of appeal therefrom to the Superior 
Court o f the county and thence to the Supreme Court 
of the state. An administrative remedy is thus pro­
vided by state law for persons who feel that they have 
not been assigned to the schools that they are entitled to 
attend; and it is well settled that the courts of the 
United States will not grant injunctive relief until 
administrative remedies have been exhausted. Meyers 
v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 51, 
58 S. Ct. 459, 82 L. Ed. 638; Natural Gas Pipeline Co. 
of America v. Slattery, 302 U. S. 300, 310, 311, 58 
S Ct 199, 82 L. Ed. 276; Hegeman Farms Corp. v. 
Baldwin, 293 U. S. 163, 172, 55 S. Ct. 7, 79 L. Ed. 259;



23

United States v. Illinois Central R. Co., 291 U. S. 457, 
463, 54 S. Ct. 471, 78 L. Ed. 909 ;P. F. Petersen Baking 
Co. v. Bryan, 290 U. S. 570, 575, 54 S. Ct. 277, 78 L. 
Ed. 505 ; Porter v. Investors’ Syndicate, 286 U. S. 461, 
52 S. Ct. 617, 76 L. Ed. 1226; Matthews v. Rodgers, 
284 U. S. 521, 525-526, 52 S. Ct. 217, 76 L. Ed. 447; 
Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210, 
29 S. Ct. 67, 53 L. Ed. 150.

“ This rule is especially applicable to a case such as 
this, where injunction is asked against state or county 
officers with respect to the control of schools main­
tained and supported by the state. The federal courts 
manifestly cannot operate the schools. All that they 
have the power to do in the premises is to enjoin viola­
tion of constitutional rig’hts in the operation of schools 
by state authorities. Where the state law provides ade­
quate administrative procedure for the protection of 
such rights, the federal courts manifestly should not 
interfere with the operation of the schools until such 
administrative procedure has been exhausted and the 
intervention of the federal courts is shown to be neces­
sary. As said by Mr. Justice Stone in Matthews v. 
Rodgers, supra (284 U. S. 525):  T h e scrupulous 
regard for the rightful independence of state govern­
ments which should at all times actuate the federal 
courts, and a proper reluctance to interfere by injunc­
tion with their fiscal operations, require that such relief 
should be denied in every case where the asserted fed­
eral right may be preserved without it.’ Interference 
by injunction with the schools of a state is as grave a 
matters as interfering with its fiscal operations and 
should not be resorted to 'where the asserted federal 
right may be preserved without it.’ ”

The more recent case of Hood v. Board of Trustees, 232 
F. (2d) 626 ( 4th Cir., 1956), reaffirmed the principle 
ennunciated in the Carson case in the following language:



24

“ This is an appeal from the denial of a motion for 
summary judgment in an action by school children for 
an injunction to prevent discrimination on the ground 
o f race. As the denial of motion for summary judgment 
is not a final judgment in the case, we can entertain 
the appeal only by considering the denial of the motion 
as a denial of injunctive relief. So considered, the 
order denying such relief must be affirmed, as the ad­
ministrative remedies prescribed by the recent South 
Carolina statute1 have not been exhausted. Carson v. 
Board of Education of McDowell County, 4 Cir., 227 
F. 2d 789. As plaintiffs were not entitled to injunctive 
relief for this reason, we affirm the order in so far as it 
denies an injunction, without passing upon other ques­
tions raised in the case or approving the reasoning of 
the court below in denying the motion for summary 
judgment.”

On July 9, 1956, Chief Judge Thomsen of the United 
States District Court for the District of Maryland in Rob­
inson v. Board of Education of St. Mary’s County followed 
the decisions in the Carson and Hood cases, and denied 
injunctive relief to the plaintiffs since they had not ex­
hausted their administrative remedies. It was pointed out 
that an injunction should not issue against the county school 
board or the county superintendent until the plaintiffs had 
appealed to the county superintendent for admission to the 
school of their choice, and appealing to the State Board of 
Education from an adverse decision, all in accordance with 
Maryland law.

Since the appellees have merely filed a “ formal” petition 
demanding the reorganization of the school system in light 
of the school segregation decisions, it is perfectly obvious 
that they have not exhausted their state administrative

JAn Act to amend sections 21-103 and 21-46 of the Code of Laws 
of South Carolina, 1952, Approved March 8, 1956.



25

remedies. The appellees may feel aggrieved by the action 
of the local school board, or many, or all of them, may have 
no legal or justifiable grounds for feeling aggrieved. It is, 
therefore, submitted that the instant case should be re­
manded to the court below with directions that the complaint 
be dismissed.

IV .

The District Court Has Abused Its Discretion by 
Entering an Order Effective September, 1956

Since the decision in the school segregation cases of 
May 17, 1954, approximately sixty-five cases have been 
brought seeking an end to segregation in the public schools 
and colleges. At least one case has been filed in each of the 
seventeen states traditionally practicing some form of school 
segregation except in the State of Mississippi.

The decrees entered by the three-judge district courts in 
the original South Carolina and Virginia cases enjoined the 
school officials from denying Negroes admission, on account 
of race or color, to the schools under their jurisdiction, but 
refused to set a time limit for the ending of segregation. See 
particularly, Briggs v. Elliott, supra. With these cases as a 
precedent, the courts in those states having large Negro 
populations, although holding that segregation must cease, 
have likewise declined to set any time limits.

For example, the district court in Bush v. Orleans Parrish 
School Board, 138 F. Supp. 337 (U.S. D.C., E.D., La., 
1956), entered a decree in language almost identical to the 
decree entered in Briggs v. Elliott, supra, and in the case 
of Matthews v. Launius, 134 F. Supp. 684 (U .S. D.C. W .D. 
Ark. 1955) , the district court said at pages 686-687:



26

“ In determining the question the court may and 
should consider all problems related to administration 
arising from the physical condition of the school plant, 
the school transportation system, personnel, and revi­
sion of school districts and attendance areas into com­
pact units to achieve a system of determining admission 
to the public schools on a non-racial basis.

>fc ij«

“ This court fully realizes the immensity of the task 
confronting the defendants and that because of the lack 
of school finances, the crowded conditions of the present 
facilities and the necessity to readjust the system that 
has been followed for decades, that additional time is 
necessary and the court feels that better progress may 
be made at this time without the issuance of an injunc­
tion, but all parties in interest should realize that the 
court in the administration of the law must, within a 
reasonable period of time and as soon as practicable, 
require the school authorities to conduct the public 
schools in the district on a racially non-discriminatory 
basis.”

The court below departed from the trend of decisions 
found in those states with heavy Negro populations by or­
dering immediate desegregation, and in so doing, imposed 
an almost impossible task on the appellants.

The evidence presented in this case conclusively showed 
that the appellants could not desegregate the public schools 
o f the City of Charlottesville within the time required by the 
court below without disrupting the school sysem to the detri­
ment of all the school children. Under such circumstances, 
the court below abused its discretion by entering a “ forth­
with” decree. At worst, the appellants should have been 
given a reasonable time to solve local problems and make 
necessary arrangements to cbpe with the decision of the 
Supreme Court in the school segregation cases.



27

C O N C L U S IO N

For the reasons herein stated, it is respectfully submitted 
that this case should be reversed and remanded to the court 
below with the directions that it be dismissed.

Respectfully submitted,

J. L in d s a y  A l m o n d , Jr .
Supreme Court Building 
Richmond, Virginia

Attorney General of Virginia

H e n r y  T. W ic k h a m
1407 State-Planters Bank Bldg. 
Richmond, Virginia

Special Assistant to the 
Attorney General

Jo h n  S. B a ttle
Court Square Building 
Charlottesville, Virginia

Jo h n  S. B a t t l e , Jr .
Court Square Building 
Charlottesville, Virginia

Attorneys for the Appellants



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