McCoy v. The Greensboro City Board of Education Brief of Appellees

    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.