McCoy v. The Greensboro City Board of Education Brief of Appellees
Public Court Documents
September 22, 1960

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Brief Collection, LDF Court Filings. McCoy v. The Greensboro City Board of Education Brief of Appellees, 1960. b7706778-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d80bd7ea-ffbe-4e11-912f-5b4aa7495f43/mccoy-v-the-greensboro-city-board-of-education-brief-of-appellees. Accessed April 22, 2025.
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BRIEF OF APPELLEES IN THE UNITED STATES COURT OF APPEALS for the Fourth Circuit No. 8127. V A L A R IE M cCOY, a Minor; ERIC M cCOY, a Minor; TH ETU S M cCOY, a Minor, by their father and next friend, R E A D E LL M cCO Y; and R E A D E LL M cCO Y; M IC H A EL A N T H O N Y TO N K IN S, a Minor, by his father and next friend, JAM ES TON KIN S, JR.; and JAM ES TO N K IN S, JR., Plaintiffs-A ppellants, vs. TH E GREENSBORO C ITY BO ARD OF ED U CA TION , a Body Politic o f Guilford County, North Carolina; TH O RN TO N BROOKS, Chairman, T H E GREENS BORO CITY BO ARD OF E D U C A T IO N ; J. C. COW AN, JR.; DR. W IL L IA M M. H A M P T O N ; MRS. LESSIE H O Y L E ; RICH AR D K. H U N T E R ; JAMES R. PER R IN ; RICH AR D M. W ILSO N , Members of TH E GREENSBORO C ITY BO ARD OF EDU CATION , D ef endants-A ppellees. F I L E D SEP 2 2 I960 R. M. F. WILLIAMS, JR. ■CLERK R o b e r t F. M o s e l e y , 718 Guilford Building, Greensboro, North Carolina, and W e l c h J o r d a n , 619 Jefferson Standard Building, Greensboro, North Carolina, Attorneys for the Appellees. The Press of Lawyers Printing Company, Incorporated, Richmond 7, Virginia IN D E X TO BRIEF Page No. Statement of the Case ....................................................... 2 Questions Involved .............................................................. 2 Supplemental Statement o f F a cts .............................. 3 (1 ) The Board’s Compliance with the Constitu tional Doctrines Enunciated in the Brown Opinions 3 (2 ) Actions of the Board upon the Reassign ment Applications o f the Four Children W ho are the Minor Plaintiffs in This Case ...................................... 9 The McCoy Children .................. 9 The Tonkins Child ..............................................-.....- 11 (3 ) Events Following the Consolidation of the Pearson Street Branch of the Washington School with the Caldwell S chool........................................ 12 Argument ..........................................................................----- 14 (1 ) Since at the Time of the Hearing o f the Board’s Motion for Summary Judgment It Appeared that the Minor Plaintiff School Children Had Been Assigned, Insofar as Was Possible, to the School in Which They Had Originally sought to be Enrolled, the District Judge Correctly Held that the Questions Presented by the Plaintiffs’ Complaint Had Become Moot and that the Complaint Should be Dismissed .. 14 (2 ) The District Judge Was Not in Error in De clining to Permit the Plaintiffs to File Their Supple mental Complaint..................................................... -....... 17 Conclusion ............................................................................. 27 TABLE OF CITATIONS Cases Page No. Allen v. County School Board o f Prince Edwards County, Va., 4 Cir., 1959, 266 F. 2d 507 .............. 20, 22 Arp v. United States, 10 Cir., 1957, 244 F. 2d 571, cert. den., 355 U. S. 826, 78 S. Ct. 34, 2 L. Ed. 2d 4 0 ........ 25 Avery v. Wichita Falls, 5 Cir., 1957, 241 F. 2d 230 .. 20, 23 Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) ; second opinion, 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955) .... 3, 5, 18, 22 Briggs v. Elliott, D.C.E.D., S. C., 1955, 132 F. Supp. 776 ...................................................................................... 23 Carson v. Board of Education, 4 Cir., 1955, 227 F. 2d 789 ...................................................................................... 15 Carson v. Warlick, 4 Cir., 1956, 238 F. 2d 724 15, 17, 20, 24 Cherry v. Morgan, 5 Cir., 1959, 267 F. 2d 305 ..... 16, 26 Covington v. Edwards, 4 Cir., 1959, 264 F. 2d 780, cert, den., 361 U. S. 840, 80 S. Ct. 61, 4 L. Ed. 2d 78 ......................................................................... 15, 19, 20 Dixi-Cola Laboratories v. Coca-Cola Co., 4 Cir., 1944, 146 F. 2d 43 ................................................................... 26 Farley v. Turner (No. 8054, 4 Cir., June 28, 1960) ...... 22 First Nat. Bank in West Union, W . Va,, v. American Surety Co., 4 Cir., 1945, 148 F. 2d 654 ....................... 25 General Bronze Corp. v. Cupples Products Corp., D.C.E.D., Mo., 1949, 9 F.R.D. 269 .......................... 27 Gibson v. Board of Public Instruction, 5 Cir., 1957, 246 F. 2d 913, second appeal, 1959, 272 F. 2d 763 ............. ................................................................. 20, 21 Holland v. Board of Public Instruction, 5 Cir., 1958, 258 F. 2d 730 20 Page No. Holt v. Board of Education, 4 Cir., 1959, 265 F. 2d 95, cert, den, 361 U. S. 818, 80 S. Ct. 59, 4 L. Ed. 2d 63 .................................................................. 15, 20, 22 In Re Applications for Reassignment, 247 N. C. 413, 101 S.E. 2d 359 (1958) ........................................... ----- 8 Mannings v. Board of Public Instruction, 5 C ir, 1960, 277 F. 2d 370 ..................................................... 20, 21, 22 Martinez v. Maverick County Water Control, etc. District, 5 C ir, 1955, 219 F. 2d 666 ........................... 19 Missouri-Kansas-Texas R. Co. v. Randolph, 8 C ir, 1950, 182 F. 2d 996 ......................................................... 25 School Board of City o f Charlottesville, Va. v. Allen, 4 C ir, 1956, 240 F. 2d 5 9 .............................................. 20 United States v. Alaska Steamship C o, 253 U. S. 113, 40 S. Ct. 448, 64 L. Ed. 808 (1920) ........................... 16 United States v. Russell, 1 C ir, 1957, 241 F. 2d 879 .... 26 United States v. W . T. Grant C o , 345 U. S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) ............................... 16 Statutes North Carolina Assignment and Enrollment of Pupils Act (G. S. 115-176 through 115-179) .... 5, 14, 17, 18 Florida Pupil Assignment Act ................................ .......- 22 Rules Rule 23 (a ) (3 ), Federal Rules of Civil Procedure...... . 19 Greensboro City Board o f Education Rules and Regu lations For the Reassignment of Pupils and Pro cedure With Respect Thereto ...................................... 5 T reatises 3 Moore’s Federal Practice, 2nd Edition, Sec. 23.11 (5 ) , page 3472 19 IN THE UNITED STATES COURT OF APPEALS for the Fourth Circuit No. 8127. V A L A R IE McCOY, a Minor; ERIC McCOY, a Minor; TH ETU S McCOY, a Minor, by their father and next friend, R E A D E L L M cCO Y; and RE A D E LL M cCO Y; M IC H A EL A N T H O N Y TO N K IN S, a Minor, by his father and next friend, JAMES TON KIN S, JR.; and JAM ES TO N K IN S, JR., Plaintiffs-A ppellants, vs. T H E GREENSBORO C ITY BOARD OF ED U CA TION , a Body Politic o f Guilford County, North Carolina; TH O R N TO N BROOKS, Chairman, TH E GREENS BORO C ITY BO ARD OF E D U C A T IO N ; J. C. COW AN, JR.; DR. W IL L IA M M. H A M P T O N ; MRS. LESSIE H O Y L E ; RICH ARD K. H U N TE R ; JAMES R. PER R IN ; RICH ARD M. W ILSO N , Members of TH E GREENSBORO CITY BO ARD OF ED U CATION , Defendants-Appellees, Appeal from the United States District Court for the Middle District of North Carolina, Greensboro Division BRIEF OF APPELLEES 2 STA TE M E N T OF T H E CASE The procedural steps which have been taken in this case are correctly summarized in the Statement o f the Case set forth in appellants’ brief. However, we do not concede the accuracy of some of the facts which are recounted in this portion o f their brief; for this reason we set forth below a Supplemental Statement o f Facts. Moreover, we disagree with the plaintiffs’ statement of the question pre sented by this appeal. W e submit that there are, in fact, two separate and distinct questions involved. QU ESTION S IN V O LVE D (1 ) Did the District Court properly grant the de fendants’ motion for summary judgment dismissing the plaintiffs’ complaint when there was an uncon troverted showing that the relief sought therein by the individual plaintiffs had been granted as to three of the children involved and could not, as a matter o f fact and law, be granted to the other child, the Court holding that the cause o f action asserted in the complaint had become moot ? (2 ) Did the District Court properly decline to permit the plaintiffs to file a supplemental complaint, in which the plaintiffs sought, by way o f class relief, to have the Court order into effect a broad-scale com pulsory plan of integration of the races in the Greens boro, North Carolina, public school system, it clearly appearing that desegregation o f the Greensboro public schools had been and was being pursued in an orderly manner with all deliberate speed? 3 SU PPLE M E N TA L STA TE M E N T OF FACTS In an effort to achieve clarity through chronological recitation of the facts, we divide our Supplemental State ment o f Facts into three parts: (1 ) the history of the activities of The Greensboro City Board o f Education (hereinafter referred to as the Board) responsive to the decisions o f the Supreme Court of the United States in Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954); and, second opinion, 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955); (2 ) the relevant facts concerning the Board’s actions upon the applications for reassignment o f the four public school children who are the minor plaintiffs in this case; and (3 ) events following consolidation of the Pearson Street Branch o f the Washington School with the Caldwell School. (1 ) T H E B O A R D ’S CO M PLIAN CE W IT H TH E C O N STITU TIO N A L DOCTRIN ES EN U N CIATED IN T H E BROW N OPINIONS. On May 18, 1954, the day after the first decision in the Brown case was made public by the Supreme Court o f the United States, the Board (then known as the Board o f Trustees o f the Greensboro City Administrative Unit) adopted and had spread upon its minutes the following resolution: “ RESOLU TION W IT H RESPECT TO DECI SION OF TH E U N ITED STATES SUPREM E COURT BAN N IN G SEGREGATION IN TH E PUBLIC SCHOOLS “ W H E R E A S, the Supreme Court of the United 4 States has rendered a decision to the effect that the segregation o f pupils in public schools solely upon the basis o f differences in race violates the Fourteenth Admendment to the Constitution o f the United States, and is thus invalid and unlawful; and “ W H E R E A S, the Board of Trustees o f the Greens boro City Administrative Unit, the governing body of the public schools o f the Greater Greensboro School District, recognizes that the decision of the Court constitutes the law of the land and is binding upon the Board; “ NOW , TH EREFORE, BE IT RESOLVED, That the Board instruct the Superintendent to study and re port to the Board regarding the ways and means for complying with the Court’s decision. “ This the 18th day o f May, 1954.” (App. 22a-23a) It is believed that this prompt action on the part o f the Greensboro Board (which received national newspaper coverage at the time) was the first public acknowledgment by a southern school board of the constitutional necessity o f eliminating racial discrimination in the public schools o f the southern states, which had hitherto for a period of about ninety years rigidly enforced a system of bi-racial separation of the white and Negro races in their public school systems. As a matter o f fact, in North Carolina for generations there had been a triple and total separation o f the public schools into those provided for whites, Negroes and Indians, respectively. The Board and its Superintendent were not long in im plementing the resolution of May 18, 1954. All references to “ bi-racial organization” were eliminated from the Board’s handbook for teachers, and the Greensboro schools 5 were thereafter listed alphabetically instead of by race. Joint meetings of white and Negro school personnel began to be held regularly ( App. 24a). The Superintendent began a study o f available literature relating to the problem of good faith compliance with the Brozmi decision. Following the enactment in 1955 by the North Carolina General Assembly of the Assignment and Enrollment o f Pupils Act (Chapter 366 o f the Session Laws of 1955, as amended by Chapter 7 o f the Session Laws of 1956, codified as North Carolina General Statutes 115-176 through 115-179)1, representatives o f the Board held a 1 Assignment and Enrollment of Pupils. § 115-176. Authority to provide for assignment and enrollment of pupils; rules and regulations.—Each county and city board o f education is hereby authorized and directed to- provide for the assignment to a public school of each child residing within the administrative unit who is qualified under the laws of this State for admission to a public school. Except as otherwise provided in this article, the authority of each board of education in the matter o f assignment of children to the public schools shall be full and complete, and its decision as to the assignment o f any child to any school shall be final. A child residing in one administrative unit may be assigned either with or without the payment of tuition to- a public school located in another administrative unit upon such terms and conditions as may be agreed in writing between the boards of education of the administrative units involved and entered upon the official records of such boards. No child shall be enrolled in or permitted to attend any public school other than the public school to which the child has been assigned by the appropriate board o f education. In exercising the authority conferred by this section, each county and city board of education shall make assignments of pupils to public schools so as to provide for the orderly and efficient administration of the public schools, and provide for the effective instruction, health, safety, and general welfare of the pupils. Each board of education may ado-p-t such reasonable rules and regulations as in the opinion of the board are necessary in the administration of this article. § 115-177. Methods o f giving notice in making assignments o f pupils.— In exercising the authority conferred by § 115-176, each county or city board o f education may, in making assignments of pupils, give individual written notice of assignment, on each pupil’s report card or by written notice by any other feasible means, to the parent or guardian of each child or 6 number of meetings with the representatives o f the Boards o f Education of the two other then larger cities o f North Carolina (namely, Charlotte and Winston-Salem) for the purpose o f deciding how the complex sociological problem o f compliance with the Brown decision could be constitu tionally met without a complete disruption of public school education in these cities. Thereafter, and on May 21, 1957, the Board adopted a resolution relating to rules and regu lations for the reassignment o f pupils and procedure with respect thereto (set out in full as Exhibit “ A ” attached to the Board’s answer to the plaintiffs’ complaint, App. 30a-32a). As the result of widespread publicity given the Board’s action in adopting the resolution of May 21, 1957 (through newspapers, radio, television and by word of mouth), early in the summer o f 1957 the Board received applications for the reassignment of nine Negro pupils to public schools theretofore attended only by white pupils. One of these applications for reassignment was disallowed because the Board had no authority to assign any pupil to the person standing in loco parentis to the child, or may give notice of assignment of groups or categories of pupils by publication at least two times in some newspaper having general circulation in the administrative unit. § 115-178. Application for reassignment; notice of disapproval; hearing before board.— The parent or guardian o f any child, or the person standing in loco parentis to any child, who is dissatisfied with the assignment made by a board of education may, within ten (10) days after notification o f the assignment, or the last publication thereof, apply in writing to the board o-f education for the reassignment o f the child to a different public school. Application for reassignment shall be made on forms prescribed by the board o f education pursuant to rules and regulations adopted by the board of education. I f the application for reassignment is disapproved, the board of education shall give notice to the applicant by registered mail, and the applicant may within five (5 ) days after receipt of such notice apply to the board for a hearing, and shall be entited to a prompt and fair hearing on the question o f reassignment of such child to a different school. A majority of the board shall be a quorum for the purpose of holding such hearing and passing upon application for reassignment, and the decision of a majority o f the members present at the hearing shall be the decision o f the 7 the school to which this assignment had been requested (the school being one not operated by the Board), one application was withdrawn, one was denied, and the re maining six were granted (App. 25a-26a). When the Greensboro public schools opened on September 3, 1957, the school system began operation upon a non-segregated basis, which non-segregated operation is now in its fourth year in Greensboro. The action o f the Board in taking these steps to eliminate racial discrimination in the assignment o f pupils to the public schools of Greensboro was far from, receiving the unanimous approval o f the people o f Greensboro. On the board. If, at the hearing, the board shall find that the child is entitled to be reassigned to such school, or if the board shall find that the reassignment of the child to such school will be for the best interests of the child, and will not interfere with the proper administration of the school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that the child be reassigned to and admitted to such school. The board shall render prompt decision upon the hearing, and notice o f the decision shall be given to the applicant by registered mail. § 115-179. Appeal from decision of board.— Any person aggrieved by the final order of the county or city board o f education may at any time within ten (10) days from the date of such order appeal therefrom to the superior court of the county in which such administrative school unit or some part thereof is located. Upon such appeal, the matter shall be heard de novo in the superic-r court before a jury in the same manner as civil actions are tried and disposed of therein. The record on appeal to- the superior court shall consist of a true copy o f the application and decision of the board, duly certified by the secretary of such board. I f the decision of the court be that the order o f the county or city board of education shall be set aside, then the court shall enter its order so providing and adjudging that such child is entitled to attend the school as claimed by the appellant, or such other school as the court may find such child is entitled to attend, and in such case such child shall be admitted to such school by the county or city board of education concerned. From the judgment of the superior court an appeal may be taken by any interested party or by the board to the Supreme Court in the same manner as other appeals are taken from judg ments of such court in civil actions. 8 other hand, a group of Greensboro white citizens filed a suit in the North Carolina Superior Court in August of 1957 in which they sought to have the Board enjoined from carrying out or continuing its policies designed and actions taken to eliminate discrimination based upon race or color in the assignment o f pupils to the public schools. The Board retained counsel and defended itself against these white citizens, and the Board secured favorable decisions both in the trial court and the Supreme Court of North Carolina. In Re Applications for Reassignment, 247 N. C. 413, 101 S.E. 2d 359 (1958) (App. 26a). On May 26, 1959, the Board adopted a resolution con solidating the Pearson Street Branch of the Washington School (a school which at that time was attended solely by pupils o f the Negro race) with the Caldwell School (a school which at that time was attended solely by pupils o f the white race), at the same time assigning all o f the pupils in both schools (with the exception of sixth graders, who were to be promoted to junior high schools) to the consolidated Caldwell School for the 1959-1960 school year (App. 60a-61a). All reassignments o f both white and Negro children in the public schools of Greensboro since the adoption of the Board’s resolution of May 21, 1957, have been handled under and pursuant to the rules and regulations contained in that resolution (App. 61a and 93a), each application being separately considered and acted upon by the Board. Since the opening of the 1957-1958 school year the public schools of Greensboro, North Carolina, have been, and still are, being operated upon a non-segregated basis under which no child is denied upon the grounds of race or color the right to attend the public school preferred by him or his parents. (2 ) ACTIO N S OF T H E BO ARD UPON T H E RE ASSIGN M EN T A P PL IC A TIO N S OF T H E FOU R CH ILDREN W H O A R E T H E M IN OR PLA IN TIFFS IN TH IS CASE. The McCoy Children The original applications for reassignment of the McCoy children from the Pearson Street Branch of the Washing ton School to the Caldwell School (App. 65a-70a) each specified that the reasons for the application were that the Caldwell School was geographically nearer the home of the children and possessed physical facilities and extra curricular activities not available to the children at the Pearson Street Branch of the Washington School. The plaintiffs concede that both o f these school buildings are located upon the same campus or plot of land (App. S a ) ; hence, the reason for reassignment based upon geographical convenience would seem to have been nonexistent. While opinions may have differed as to the comparative excellence, or lack o f it, o f the physical facilities o f the two schools, Mr. McCoy merely stated in his affidavit that the Pearson Street Branch school building was “ smaller than and inferior to” the Caldwell School building. It was also true that the pupils in the Pearson Street school building ate their lunches in their classrooms instead of a cafeteria. Following consideration of these three applications for reassignment, they were denied by the Board at a meeting held on August 11, 1958. After being notified of this action, Mr. Readell McCoy, the father of the McCoy children, gave notices of appeal in accordance with the rules of the Board, and the appeals were duly heard at a regular meeting of the Board on September 16, 1958. At an adjourned meeting on the following day each of these 10 appeals was denied (App. 60a). At the hearing o f the appeals Mr. McCoy and his attorney stated to the Board that the reassignments were desired so that the McCoy children “would receive a non-segregated education” (App. 77a). At a meeting of the Board on May 26, 1959, the Board adopted the previously mentioned resolution which merged the Pearson Street Branch of the Washington School with the Caldwell School, the merger to become effective with the beginning of the 1959-1960 school year, and the school thereafter to be known as the Caldwell School. The effect of the merger was to abolish the Pearson Street Branch of the Washington School. At the same time the Board assigned all o f the pupils in both schools to the Caldwell School for the 1959-1960 school year, this assignment including the two younger McCoy children. These assignments were stamped upon the report cards which were delivered to the pupils on June 5, 1959 (App. 60a) and which came to the attention o f Mr. McCoy (App. 77a). Thetus McCoy completed his sixth grade education during the 1958-1959 school year while still a pupil at the Pearson Street Branch, and when he received his report card on June 5, 1959, it was stamped for assignment to the Lincoln Junior High School for the 1959-1960 school year, pursuant to the Board’s assignment of him to the seventh grade of this junior high school (App. 61a). While Mr. McCoy may have thought that his two younger children, Valarie and Eric, would attend a desegregated school at the Caldwell School for the 1959-1960 school year during the time in June of 1959 when he could have applied for the reassignment of them to another school, he admitted that he knew on June 5, 1959, that his oldest child, Thetus, had been assigned to the Lincoln Junior High School, a 11 school attended solely by Negro students (App. 78a). Nevertheless, he took no action seeking reassignment of the oldest child to any other school, despite the fact that he could have done so at any time during the period from June 5 to June 15, 1959. The Tonkins Child The Tonkins child became eligible in 1958 to enter the first grade of a Greensboro public elementary school for the 1958-1959 school year. In June of 1958 his father submitted an application upon a reassignment form seek ing to have the child admitted to the Caldwell School (App. 71a-72a). No action was taken upon this application, because all assignments o f children to the first grade were handled on a temporary basis by administrative action o f the Super intendent, such temporary assignments not being made until the opening o f the school year (App. 62a). When school opened on September 3, 1958, Mr. James Tonkins, Jr., brought his child, Michael Anthony, to the Caldwell School and requested enrollment of the child in the first grade. The principal of the school called the Superintendent, who advised the principal that he (the principal) had no authority to make a temporary assignment of the child, and that he should instruct Mr. Tonkins to take the child to the Pearson Street Branch for enrollment on a temporary basis (App. 63a). This was done, and on the following day the Superintendent received an application from Mr. Tonkins for reassignment of Michael Anthony to the Caldwell School (App. 73a-75a). This application was duly considered by the Board at a regular meeting held on September 16, 1958, at which time the Board denied the application. Proper notice o f denial of the application was given to Mr. Tonkins, who promptly filed a notice o f appeal. 12 The appeal was heard by the Board on October 21, 1958, after which the Board denied the appeal, due notice being given to Mr. Tonkins of the Board’s action in denying the appeal (App. 63a-64a). At the Board meeting o f May 26, 1959, at which time the Board took action to merge the Pearson Street Branch o f the Washington School with the Caldwell School, the Tonkins child was assigned to the Caldwell School for the 1959-1960 school year and notice o f this assignment was stamped on his report card and sent to his parents on June 5, 1959. No other application for reassignment of the Tonkins child to any other school was thereafter filed with the Board, and at the beginning of the 1959-1960 school year the Tonkins child entered Caldwell School, where he was in attendance during that school year. Mr. Tonkins conceded that he had notice o f the assignment o f Michael Anthony to the Caldwell School for the 1959-1960 school year, being the school "to which he had previously sought admission” (App. 83a). (3 ) EVEN TS FO LLO W IN G T H E CO N SO LID A TIO N OF T H E PEARSO N STR EE T BRAN CH OF T H E W A SH IN G TO N SCHOOL W IT H TH E C A LD W E L L SCHOOL. After the Board merged or consolidated the Pearson Street Branch with the Caldwell School on May 26, 1959, and directed that all children in both schools (except sixth graders, who would no longer be eligible to attend an elementary school) be assigned to the merged Caldwell School for the 1959-1960 school year, notifications of such assignments were stamped upon the report cards of all the Negro and white children (except sixth graders) attending 13 both schools, which report cards were sent to the parents of the pupils on June 5, 1959 (App. 61a). Thereafter, and during the period from June 5 to June 15, 1959, the Board received 351 applications for reassignment of pupils from various schools in the school system operated by the Board. Among these applications for reassignment there were 245 separate applications from the parents of white chil dren who had been assigned to the Caldwell School seeking reassignment of their children to other schools. At a meet ing of the Board held on July 21, 1959, these applications for reassignment were granted. O f these 245 applications for reassignment which were granted, 191 provided for reassignment to the Gillespie Park School, a school in which both white and Negro pupils have been in attendance since the opening o f the 1957-1958 school year (App. 61a- 62a). When it became known that the Board had granted the applications for reassignment of all the white children out of the Caldwell School, the white faculty at the Caldwell School requested transfers to other schools, which transfers were granted by the Superintendent, acting in his admin istrative capacity, on August 14, 1959. When this action was reported to a regular meeting of the Board on August 18, 1959, the Board elected a Negro principal and faculty to the Caldwell School for the 1959-1960 school year. At no time after these events took place and became fully known to the adult plaintiffs did either o f them make any request of the Board through application for reassign ment, or otherwise, for the transfer of their children to any other school operated by the Board. On the other hand, both the two younger McCoy children and the Tonkins child entered Caldwell School on September 1, 14 1959, and remained in attendance there during the 1959- 1960 school year. ARGU M EN T (1 ) SINCE A T T H E TIM E OF TH E H EARIN G O F T H E B O A R D ’S M OTIO N FOR SU M M A R Y JUDGM ENT IT A P PE A R E D T H A T TH E M IN OR P L A IN T IF F SCH OOL CH ILDREN H A D BEEN A S SIGNED, IN SO FA R AS W A S POSSIBLE, TO TH E SCH OOL IN W H IC H T H E Y H A D O R IG IN A LLY SOU GH T TO BE EN ROLLED, TH E D ISTR IC T JUDGE CO RRECTLY H ELD T H A T TH E QUES TION S PRESEN TED B Y T H E PL A IN T IF F S ’ COM P L A IN T H A D BECOM E M OOT A N D T H A T TH E C O M PLA IN T SH OU LD BE DISM ISSED. The plaintiffs concede that the younger McCoy children and the Tonkins child were, indeed, assigned to the school o f their choice prior to the hearing of the motion for summary judgment, and that Thetus McCoy, who had com pleted his sixth grade education, “ may not be entitled to an order requiring his admission to any particular school . . .” (App. Br. 27). They also appear to concede that under the decision of the Supreme Court in Brown II, “ the personal interest o f the plaintiffs” in non-discrimina- tory admission to the public schools is the basic issue at stake (App. Br. 15). This concession would seem to be mandatory upon the plaintiffs, because this Court has held that, under the North Carolina Assignment and Enrollment of Pupils Act (G. S. 115-176 through 115- 179, quoted in footnote 1, supra), school children are admitted “ as individuals, not as a class or group; and it is as individuals that their rights under the Constitution are 15 asserted.” Carson v. Warlick, 4 Cir., 1956, 238 F. 2d 724, at page 729; quoted with approval in Covington v. Edwards, 4 Cir., 1959, 264 F. 2d 780, at page 783, cert, den., 361 U. S. 840, 80 S. Ct. 61, 4 L. Ed. 2d 78. Insofar as the rights of Thetus McCoy are involved in this case, it is not disputed that the relief sought on his behalf in the complaint (that is, admission to Caldwell School) could not be accorded him, since he had completed his elementary school education at the time the Court heard the motion for summary judgment. It plainly appears that his father knew of his assignment to the Lincoln Junior High School at the time Thetus took home his report card on June 5, 1959. Since Mr. McCoy did not file any application for the reassignment of Thetus to some other school, manifestly he failed to avail himself o f the administrative procedure under the Assignment and Enroll ment o f Pupils Act. W e submit that the plaintiffs have acquiesced in the Board’s assignment of this child to the Lincoln Junior High School and that the dismissal o f the complaint as to him can properly be sustained upon the grounds that he did not pursue the administrative rem edies which were available under state law. Carson v. Board of Education, 4 Cir., 1955, 227 F. 2d 789; Coving ton v. Edwards, supra; and Holt v. Board of Education, 4 Cir., 1959, 265 F. 2d 95, cert, den., 361 U. S. 818, 80 S. Ct. 59, 4 L. Ed. 2d 63. After the parents of the other three children learned that these pupils had been assigned to the Caldwell School for the 1959-1960 school year, and after they ascertained that the Board had reassigned out of the Caldwell School the white pupils on whose behalf such applications for reassignment had been made, they took no steps whatso ever seeking reassignment o f these children from Caldwell 16 to another school operated by the Board. Since they origi nally sought to have these children admitted to the Caldwell School because o f alleged geographical convenience and superior facilities, it may be reasonable to assume that, so far as the children themselves were concerned, the plaintiffs were satisfied with the Board’s action in assigning them to Caldwell for the 1959-1960 school year. Messrs. McCoy and Tonkins could have filed applications for the reassignment of these three children from Caldwell to another school, but they did not do so. At the time of the hearing of the motion for summary judgment the record before the Court disclosed, without contradiction, that the relief sought on behalf of the minor plaintiffs in the original complaint had been granted, in sofar as was possible. Hence, on the original complaint the case had become moot, and the Court was constrained to grant the motion and dismiss the complaint. United States v. W. T. Grant Co., 345 U. S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) ; United States v. Alaska Steamship Co., 253 U. S. 113, 40 S. Ct. 448, 64 L. Ed. 808 (1920); and Cherry v. Morgan, 5 Cir., 1959, 267 F. 2d 305. In the Cherry case the plaintiffs sought to have declared unconstitutional an ordinance of the City of Birmingham which required segregated seating upon passenger buses, and prior to the trial the City repealed the ordinance, passing a new one which apparently delegated the matter o f seating to regulation by the bus company. The District Court held that the original cause was moot, and also declined to permit the plaintiffs to file a supplemental complaint. The Court o f Appeals for the Fifth Circuit affirmed the dismissal o f the action. 17 It would seem that the plaintiffs practically admit that they are entitled to no relief upon the allegations of their original complaint, because they sought leave to file what they designated as a supplemental complaint, in which pleading the plaintiffs allege that they are entitled to a comprehensive injunction requiring the Board to submit a plan for total integration o f the schools in Greensboro, this right arising, so they contend, because of the Board’s action in transferring the white children from the Caldwell School by granting their several applications for reassign ment on July 21, 1959. It is implicit in the plaintiffs’ argu ment m support o f their claimed right to file a supplemental complaint that the cause o f action asserted in the original complaint for the enforcement of the individual rights of the plaintiffs had become moot at the time o f the hearing in the District Court. This brings us to a consideration of the second question raised by this appeal. (2 ) T H E D ISTR IC T JUDGE W A S N OT IN ER ROR IN DECLIN IN G TO PERM IT TH E P L A IN TIFFS TO FILE TH E IR SU PPLE M E N TA L COM PLAIN T. The North Carolina Assignment and Enrollment o f Pupils Act has not been accorded mere lip service by the Greensboro Board. On the contrary, over three years ago the Board set up the administrative machinery author ized by the Act, and this procedure was promptly utilized by the Board in the assignment of pupils to the public schools beginning with the 1957-1958 school year. This Court has held that the Act is not unconstitutional, Carson v. Warlick, supra, and there has been no showing in the case at bar that the Board has applied any standards in the assignment of pupils other than those set forth in the 18 Act (G. S. 115-176, see footnote 1, supra). Moreover, it is not even alleged in the supplemental complaint that the Board failed to apply these standards when it granted the applications for reassignment of the white children who had been originally assigned to the Caldwell School for the 1959-1960 school term. The supplemental complaint mistakenly alleges that the minor plaintiffs were assigned to and the white pupils assigned out of Caldwell School simultaneously on July 21, 1959. The facts are as stated above in our Supplemental Statement o f Facts (see affidavit o f Superintendent Weaver, App. 60a-62a). Upon the record which was before the District Judge at the time he dis missed the complaint and denied the plaintiffs’ motion to file a supplemental complaint, there was no evidence which showed that the Board had discriminated against a single school child by denying that child, upon the basis o f race or color, the right to attend the school o f its choice since the decision in the Brown case. The plaintiffs’ argument that they suffered discrimina tion because of the Board’s action vis-a-vis the applications for the reassignment of the white children seems to be coupled with the contention that, despite the fact that the individual minor plaintiffs were accorded admission to the school o f their choice, nevertheless the Court should order sweeping injunctive imposition of total integration of the races in the Greensboro public schools. This argument ignores the uncontradicted showing upon this record that the Greensboro Board has conscientiously and consistently proceeded in good faith, in accordance with the North Carolina Assignment and Enrollment of Pupils Act and in obedience to the mandate of Brown 11, “ to admit to public schools on a racially nondiscriminatory basis with all 19 deliberate speed” pupils attending the Greensboro public schools. While a number o f applicants for the enforcement of their constitutional rights may be joined as plaintiffs in the same suit ( Covington v. Edwards, supra), it does not follow that the injunctive relief sought by the plaintiffs may be granted in a case such as is disclosed by the facts in the case at bar. Because the plaintiffs had and still have available to them the administrative machinery created by the North Carolina General Assembly under the As signment and Enrollment of Pupils Act and the rules and regulations o f the Board issued pursuant thereto, the plaintiffs must proceed as individuals, not as a class, in the enforcement of their constitutional rights. Although the plaintiffs assert in their complaint that they brought this action on their own behalf and on behalf o f all others similarly situated, pursuant to Rule 23 ( a ) ( 3 ) o f the Federal Rules o f Civil Procedure (App. 3a), we submit that the pleadings and affidavits filed by the plain tiffs disclose that this is not a “ true” class action, because the judgment binds only the parties before the Court. Martinez v. Maverick County Water Control, etc., District, 5 Cir., 1955, 219 F. 2d 666. The plaintiffs could not rep resent any one except children, and their parents, claiming the right to attend the Caldwell School. As a matter of fact, the plaintiffs’ reference to Rule 23 ( a ) ( 3 ) is tan tamount to a concession that the rights they seek to enforce are several and not joint or common. As pointed out in 3 Moore’s Federal Practice, 2nd Edition, sec. 23.11 (5 ), page 3472, this is a so-called “ spurious” class action. This Court has also indicated that the plaintiffs in these school segregation cases may not maintain a “ true” class action, 20 although several plaintiffs may join together in seeking- relief from alleged unconstitutional discrimination. Coving- ion v. Edwards, supra, Carson v. Warlick, supra, and Holt v. Board of Education, supra. To be sure, other Negro school children in Greensboro still have the right to sue the Board if they conceive that the Board has deprived them of their constitutional rights. Hence, we submit that the District Court correctly held that the plaintiffs could not maintain a class action. Even if it be supposed that these plaintiffs had exhausted their administrative remedies and were still being denied the relief which they sought (that is, admission to the Caldwell School), it is to be doubted that they could maintain the purported class action which they attempt to assert, because the cases upon which the plaintiffs rely (School Board of City of Charlottesville, Va. v. Allen, 4 Cir., 1956, 240 F. 2d 59, and Allen v. County School Board of Prince Edward County, Va., 4 Cir., 1959, 266 F. 2d 507) are readily distinguished from the case at bar. Both of these cases were made to turn upon the finding that injunctive relief was necessary to remove “ the require ment of segregation” (emphasis supplied). This record discloses no such requirement; on the contrary, racial segre gation in the assignment of school pupils in Greensboro was abandoned by the Board in the summer of 1957. The cases from the Fifth Circuit2, which are cited in the plaintiffs’ brief in support o f the contention that the plain tiffs are entitled to a Court-enforced total integration of 2 Holland v. Board of Public Instruction, S Cir., 1958, 2S8 F. 2d 730; Gibson v. Board of Public Instruction, 5 Cir., 19S7, 246 F. 2d 913, Second Appeal, 1959, 272 F. 2d 763; Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F. 2d 370 ; and Avery v. Wichita Falls, 5 Cir., 1957, 241 F. 2d 230. 21 the Greensboro public schools, are not in point. In Holland, Gibson and Mannings it appeared that not a single Negro child had been admitted to a school attended by white pupils, and in Avery only a few Negro pupils had been admitted to an Air Force Base school at the request o f the United States Department o f Health, Education and Welfare. It was uncontradicted in these cases that a completely segre gated public school system was being maintained and enforced by the school authorities who were the defendants. In Holland, at page 732, the Court said that “ it is wholly unrealistic to assume that the complete segregation existing in the public schools is either voluntary or the incidental result o f valid rules not based on race.” In the case at bar no such complete segregation exists. The Court also pointed out, at page 732, “ that the Fourteenth Admendment does not speak in positive term to command integration, but negatively, to prohibit governmentally enforced segrega tion.” In the first Gibson opinion, at page 914, the Court noted that the School Board had adopted a statement o f policy which provided “ ‘that the best interest o f the pupils and the orderly and efficient administration o f the school system can best be preserved if the registration and attendance o f pupils entering school commencing the current school term remains unchanged. Therefore, . . . the free public school system of Dade County will continue to be operated, main tained and conducted on a nonintegrated basis.’ ” Upon the second Gibson appeal the Court again noted, at page 766, that “ complete actual segregation of the races, both as to teachers and as to pupils, still prevailed in the public schools o f the County” , and that, because of this fact, the Pupil Assignment Law o f Florida and the Imple menting Resolution did not, in and of themselves, meet the 22 requirements of a plan o f desegregation of the schools or constitute a reasonable start toward compliance with the mandate of the Brown case. The opinion in the second Gibson appeal specifically stated that the Court did not disagree with the decisions o f this Court in Carson, Cov ington, Holt and Allen, In the Mannings case the Court emphasized the un disputed fact that the Hillsborough County, Florida, school system was still being operated upon a totally segregated basis and that the school board had failed “ to show any disposition to abandon the segregation policy” (at page 375). It was for this reason that the Court held that the plaintiffs could maintain a class action for injunctive relief despite the fact that they had not availed themselves of the administrative remedies created by the Florida Pupil Assignment Act. Moreover, the Court expressed some doubts concerning the constitutional validity of the as signment standards laid down in the Florida Act. The plaintiffs say in their brief (at page 21) that this Court has indicated agreement with Mannings, citing Farley v. Turner (N o. 8054, 4 Cir., June 28, 1960). This Court cited the Mannings case solely on the point that where administra tive procedures fail to meet the standard of affording a “ reasonably expeditious and adequate administrative rem edy” , then courts will grant relief to persons whose constitutional rights are being infringed. However, this Court said that it “ has consistently required Negro pupils desirous of being reassigned to schools without regard to race to pursue established administrative procedures before seeking the intervention o f a federal court.” In the Farley case, as in Mannings, it appeared that the school authorities were adhering to an established and inflexible policy of 23 segregation; hence, there was no need to exhaust futile administrative remedies. This is the direct opposite o f the policy pursued by the Greensboro Board. The facts in the Avery case also differ radically from the facts in the case at bar. In Avery it was admitted that the Negro pupils were denied admission to the school of their choice on racial grounds. Furthermore, there existed a preconceived plan to transfer en masse all white children in this school to a so-called “ white” school, which plan was carried out simultaneously with the transfer o f the Negro pupils to the school they had sought to enter. In our case the white pupils were each transferred upon separate applications for reassignment after the children of both races had been assigned to Caldwell School. More over, 191 o f them were reassigned to an integrated school. The Avery case also quoted with approval the following portion o f Briggs v. Elliott, D.C.E.D., S. C., 1955, 132 F. Supp. 776, at page 777: “ ‘ * * * it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools o f 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 o f choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Su 24 preme Court, the state may not do directly or in directly; but if the schools which it maintains are open to children of all races, no violation o f the Constitution is involved even though the children o f different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids dis crimination. It does not forbid such segregation as occurs as the result o f voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise o f power by the state or state agencies, not a limitation upon the freedom of in dividuals.’ ” A divided Court remanded Avery for further proceed ings, which appears to be what the plaintiffs seek in this case. Circuit Judge Cameron dissented from the remand o f the case. W e submit that his dissenting opinion is not only legally sound but is replete with common sense. He cited with approval Carson v. Warlick, supra, and said (at page 235) that remand would inevitably “ thrust back into the field of controversy a problem which can . . . move towards real solution only in an atmosphere of repose and harmony.” He also said in reference to the remand (at page 245 ) : “ This course represents, in my opinion, a strategic mistake o f real magnitude. Practically every responsi ble person in a place o f public leadership has stated that this problem will be solved only as men’s hearts are 25 reached and touched. Weapons have never changed the human spirit, or fomented good will, and the threat o f force they carry has never nutured brotherhood. To tempt one litigant to keep his eyes glued to the gun- sight, thus provoking the other inevitably to divert most o f its energies from constructive and probably gener ous action to preparations for defense, is to perform a distinct disservice to both and, more important, to the public.” In addition to the legal grounds upon which the trial court relied in refusing to grant the plaintiffs’ motion for leave to file a supplemental complaint, it is a well-established principle, supported by virtually every decision on the point, that such a motion is directed to the discretion o f the presiding judge and that his decision will not be disturbed on appeal absent a clear showing of an abuse o f discretion. In fact, the Court o f Appeals for the Eighth Circuit has held that an order entered upon a motion for leave to file a supplemental complaint is not appealable, since such a motion is addressed to the trial court’s judicial discretion. Missouri-Kansas-Texas R. Co. v. Randolph, 8 Cir., 1950, 182 F.2d 996. In a recent case, Arp v. United States, 10 Cir., 1957, 244 F. 2d 571, at page 574, cert, den., 355 U. S. 826, 78 S.Ct. 34, 2 L.Ed. 2d 40, it was said that “ the granting o f such leave [to file a supplemental complaint] is discretionary and will not be disturbed on appeal unless grossly abused” (emphasis supplied). This Court has said that, while the trial court was correct as a matter of law in refusing to allow the filing o f a supplemental answer, the filing of such answer was allowable only in the Court’s discretion in any event. First Nat. Bank in West Union, W. Va. v. American Surety Co.. 4 Cir., 1945, 148 F. 26 2d 654. See also Dixi-Cola Laboratories v. Coca-Cola Co.. 4 Cir., 1944, 146 F. 2d 43, and Cherry v. Morgan, supra. W e submit that the plaintiffs have made no showing to support a finding that District Judge Stanley grossly abused the discretion vested in him in refusing to allow the plaintiffs to file their supplemental complaint. Upon this basis alone it would be proper for this Court to affirm the action o f the trial court in declining to permit the filing c f the proposed supplemental complaint. Moreover, it appears that the proposed supplemental complaint does not actually relate to the claim presented in the original complaint. It is the rule that a supple mental complaint is a mere addition or continuation of the original pleading, and that it stands on the original com plaint and is permitted to be filed only for the purpose of setting forth events which occurred subsequent to the filing o f the original complaint with respect to the same subject matter alleged in the original complaint. United States v. Russell, 1 Cir., 1957, 241 F. 2d 879. As was said in Russell, at page 882, “ It stands with the original pleading and is a mere addition to, or continuation of, the original complaint or answer. It is designed to obtain relief along the same lines, pertaining to the same cause, and based on the same subject matter or claim for relief, as set out in the original complaint.” In the instant case the gravamen of the original complaint was the Board’s alleged denial to the infant plaintiffs o f their constitutional rights by refusing to admit them to the Caldwell School. The proposed supple mental complaint abandons this position and alleges, in effect, that the Board deprived the plaintiffs o f their constitutional rights by admitting them to the Caldwell School and subsequently allowing the white children, who 27 were also assigned to this school, their free choice of transfer from the Caldwell School. The supplemental com plaint also goes far beyond the original complaint in the relief which it seeks, the plaintiffs praying in the supplemental complaint that the Court enter an injunction requiring the Board to integrate in toto the Greensboro public school system. One o f the tests which has been applied in deter mining whether the filing o f a supplemental complaint should be permitted is whether additional and different evidence on behalf of the plaintiffs will be required to prove the allegations of the supplemental bill from that required to prove the allegations of the original com plaint. General Bronze Corp. v. Cupples Products Corp., D.C.E.D., Mo., 1949, 9 F.R.D. 269. Where additional and different evidence would be necessary to establish the allegations of the supplemental complaint, leave to file should be denied. Manifestly, in the instant case quite differ ent evidence would be required to prove the allegations of the supplemental complaint from that which would be relevant in support o f the allegations in the original complaint. In fact, the plaintiffs recognize this point, because they filed a motion for continuance pending proposed discovery of various matters concerning the conversion of Caldwell School (App. Br. 11). The total departure of the supple mental complaint from the original complaint is an ad ditional reason why the trial court’s disposition o f the plaintiffs’ motion should remain undisturbed. CONCLUSION It cannot be denied that the Greensboro Board has acted and is acting in utmost good faith in its efforts to solve the problem of removing racial bars in the Greens boro school system. Its members’ hearts have been reached 28 and touched and their energies have been directed toward con structive and generous action. The plaintiffs, evidently unwilling or unable to discern these facts, continue to be suspicious o f the motives o f the Board’s members. They keep their “ eyes glued to the gunsight” so that they are unable to see what is crystal-clear to all others: that is, discrimination based on race is an abandoned and dis credited policy in the Greensboro school system. In final analysis, the plaintiffs have only one grievance: they take issue with the Board’s action in allowing 245 white chil dren the same freedom of choice they insist they have the right to exercise. Their real fundamental contention is that under the law white and Negro school children should be forced to sit side by side in the classroom. Unless this contention is given judicial sanction, the plaintiffs can not prevail on this appeal. W e submit that their position is wholly devoid of any merit and that it finds no support in any of the cases which have dealt with the subject o f discriminatory practices in the public schools. The judg ment o f the District Court should be affirmed. Respectfully submitted, R o b e r t F. M o s e l e y , 718 Guilford Building, Greensboro, North Carolina, and W e l c h J o r d a n , 619 Jefferson Standard Building, Greensboro, North Carolina, Attorneys for the Appellees.