Woods v. Wright Brief for Appellant

    c r
V

I s  the

InlW BtnUn tour! uf Appralu
F or the F ifth Circuit 

No. 20875

L inda Cal W oods, a minor, by her father and 
next friend, Eev. Calvin Woods,

Appellant,
— v  —

T heo E. W eight, Superintendent of Schools of the 
City of Birmingham, Alabama,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

Jack Greenberg 
Constance Baker Motley 
George B. Smith

10 Columbus Circle 
New York 19, New York

A rthur D. Shores
1527 North 5th Avenue 
Birmingham, Alabama

Orzell B illingsley, J r . 
1630 North 4th Avenue 
Birmingham, Alabama

Attorneys for Appellant

Leroy D. Clark 

Of Counsel



I N D E X

Statement of the C ase........................................................  1

Specification of Errors ......................................................  4

A rgument

I The Order of the District Court Is an Appeal- 
able Order Both Under Section 1291 and Section 
1292(a) (1) of Title 28, United States C ode.......  4

II The Suspension and Expulsion of the Negro 
Students Without Notice or Hearing Violated 
Bights Secured by the Due Process Clause of 
the Fourteenth Amendment to the Constitution 
of the United States................................................  7

III Appellee’s Directive Is a Restraint on the Lib­
erty of Expression Guaranteed by the First 
and Fourteenth Amendments ...............................  9

IV  Appellant’s Suspension Is a Denial of Due
Process Because It Results From an Alleged 
Violation of an Unconstitutional Ordinance.......  11

Conclusion .................................................................................. 15

A ppendix

Birmingham Code, Section 1159 ................................... la

Certificate of Service..........................................................  2a

PAGE



11

T able of Cases

Alston v. School Board of City of Norfolk, 112 F. 2d 
993 (4th Cir. 1940), cert. den. 311 U. S. 693 ...............  15

Baltimore Contractors v. Bodinger, 348 U. S. 176.......  6
Baltimore and Ohio R.R. Co. v. United Fuel Gas Com­

pany, 154 F. 2d 545 (4th Cir. 1946) ............................. 5
Brown Shoe Co. v. United States, 370 U. S. 294 ...........  4
Brunson v. Board of Trustees of School District No. 1,

311 F. 2d 107 (4th Cir. 1962) ....................................... 6

Calloway v. Farley, 2 Race Rel. L. Rep. 1121...............  8
Cantwell v. Connecticut, 310 U. S. 296 ...............9,10,12,13
Cohen v. Beneficial Industrial Loan Corp., 337 U. S.

541 ......................................................................................  5,6
Connell v. Dulien Steel Products, 240 F. 2d 414 (5th 

Cir. 1957) ..........................................................................  5

De Jonge v. Oregon, 299 U. S. 353 ................................... 9
Dixon v. Alabama State Board of Education, 294 F.

2d 150 (5th Cir. 1961), cert. den. 368 U. S. 930 ....8,14,15

Edwards v. South Carolina, 372 U. S. 299 .......................9,10
Enelow v. New York Life Ins. Co., 293 U. S. 379 ...........  6
Ettelson v. Metropolitan Life Ins. Co., 317 U. S. 188 6

Fields y . South Carolina,------ U. S . ------- , 11 L. ed. 2d
107 ...................................................................................... 9,10

Forgay v. Conrad, 6 How. (47 U. S.) 201....... ...............  4, 5

General Electric Co. v. Marvel Rare Metals Co., 287
U. S. 430 ............................................................................  6

Gitlow v. New York, 268 U. S. 652 ................................... 9

PAGE

Hague v. C. I. O., 307 U. S. 496 .10,12,13



Kennedy v. Lynd, 306 F. 2d 222 (5th Cir. 1962) ...........  5
Knight v. State Board of Education, 200 F. Supp. 174

(M. D. Tenn. 1961) — ............................................. 8,14,15
Kunz v. New York, 340 U. S. 290 ..................................... 12

Largent v. Texas, 318 IT. S. 418 .......................-............ 12,13
Lovell v. Griffin, 303 U. S. 444 ..........................................  12

Maxwell v. Enterprise Wall Paper Mfg. Co., 131 F. 2d 
400 (3rd Cir. 1942) ..........................................................  6

Near v. Minnesota, 283 U. S. 697 ....................................... 10
Niemotko v. Maryland, 340 U. S. 268 ...............................  12

Poulos v. New Hampshire, 345 U. S. 395 ......................... 13

King v. Spina, 166 F. 2d 546 (2nd Cir. 1948) .................  6

Saia v. New York, 334 U. S. 558 .....................................12,13
Schneider v. Irvington, 308 U. S. 147 ...........................12,13
Sears, Roebuck and Company v. Mackey, 351 U. S. 427 5
Shelton v. Tucker, 364 U. S. 479 ....................................... 15
Slochower v. Board of Education, 350 U. S. 551...........  15
Stack v. Boyle, 342 U. S. 1 ................................................  5
Staub v. Baxley, 355 U. S. 313..........................................  12
Stromberg v. California, 283 IT. S. 359 ...........................9,13
Swan v. Board of Education of the City of New York, 

unreported (S. D. N. Y. September 10, 1962) aff’d
319 F. 2d 56 (2nd Cir. 1963) ....... ........................ - ....  8

Swift and Co. v. Compania Colombiana, 339 U. S. 684 5

Terminiello v. Chicago, 337 IT. S. 1 ....... ...........................  10
Thomas v. Collins, 323 U. S. 516..... ............. -......... -10,12,13
Thornhill v. Alabama, 310 IT. S. 8 8 ................................... 10

Ill

PAGE



IV

United Public Workers of America v. Mitchell, 330
U. S. 7 5 ..............................................................................  15

United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) 5

PAGE

Whitney v. California, 274 U. S. 357 ...............................
Wieman v. Updegraff, 344 U. S. 183...............................
Winters v. New York, 333 U. S. 507 .................................
Woods v. Wright, ------  F. 2d ------  (5th Cir. May 22,

1963) ..................................................................................
Wright v. Georgia, 373 U. S. 284.......................................

9
15
13

5
13



I n  th e

Ituteii ©Hurt nf Appeals
F oe the F ifth Circuit 

No. 20875

L inda Cal W oods, a minor, by her father and 
next friend, Rev. Calvin Woods,

Appellant,

Theo R. W eight, Superintendent of Schools of the 
City of Birmingham, Alabama,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOE THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from the denial by the district court 
of appellant’s motion for a temporary restraining order 
and/or preliminary injunction enjoining the appellee 
Superintendent of Schools from suspending or expelling 
the minor appellant and others similarly situated from the 
public schools of Birmingham, Alabama because they had 
been arrested for parading without a permit. This case 
has been here before on appellant’s motion for an injunc­
tion pending appeal which was granted on May 22, 1963.

The minor appellant, an eleven year old Negro girl and 
fifth grade student, was summarily suspended from a Bir­



2

mingham public school pursuant to a direction by appellee 
dated May 20, 1963 (R. 9, 10). Appellee acted after a vote 
of the Board of Education of the City of Birmingham 
(R. 9, 10). She was one of approximately 1,080 Negro 
students expelled or suspended because they had been 
arrested “ for parading without a permit” (R. 9). No 
hearings were held or set to determine the propriety of 
the dismissals. The students were simply told that not 
enough time remained in the school term, to hold any hear­
ings (R. 10).

The directive of May 20 permitted the students to make 
up the time lost by attending summer school which began 
June 3, 1963 (R. 10), the cost of which was approximately 
$24.00 plus additional expenses of travel, etc. (R. 20). If 
they did not attend summer school, they could re-enter 
school in the fall but would have “ to complete the full 
grade or semester from which they were suspended or 
expelled” (R. 10).

The appellant, Linda Cal Woods, was suspended be­
cause she had been arrested for parading without a license, 
on Saturday, May 4, 1963, a non-school day, while peace­
fully participating in a protest against racial segregation. 
At the time of her arrest, she was walking on the sidewalk 
with her two sisters and several other persons, about ten 
in number, two abreast. She was carrying a sign which 
read, “ Segregation is Unconstitutional!” She and her 
companions were at all times peaceful and had been given 
instructions by her father to remain so at all times when 
he gave her permission to participate.

On May 21, 1963, appellant, by her father and next 
friend, filed a complaint and a motion for temporary 
restraining order and/or preliminary injunction enjoin­
ing the appellee from carrying into effect the suspension



3

or expulsion of the Negro students, refusing to expunge 
any notation of the dismissals from their records, or pe­
nalizing the members of the class in any other way (R. 7). 
On the same day, a hearing was held before Judge Allgood 
on the motion for a temporary restraining order. The 
appellee and Board of Education of the City of Birming­
ham had been notified and were represented. No court 
reporter was present. Judge Allgood refused (though not 
formally) to issue the temporary restraining order and 
set another hearing for the following day. On May 22, 
1963 a further hearing was held, seemingly on the motion 
for a preliminary injunction. Again, both sides were rep­
resented but no court reporter was present. The district 
court denied relief on the same day (R. 21).

On May 22, 1963, appellant filed two notices of appeal, 
one appealing from the denial of the temporary restrain­
ing order and the other appealing from the denial of the 
preliminary injunction. Following the filing of these 
notices, Judge Allgood amended his order to provide that 
appellant’s motion for a preliminary injunction would be 
taken under consideration by the court and a. date for the 
hearing would be set (R. 24, 26, 27). No date has ever 
been set for this hearing.

Appellant, upon filing notice of appeal, moved in this 
Court for an injunction pending appeal. On May 22, 1963 
Chief Judge Elbert P. Tuttle issued such an injunction 
requiring the reinstatement of the minor appellant and all 
other Negro children similarly situated.

On December 4, 1963 time for filing this brief was ex­
tended until January 26, 1964.



4

Specification of Errors

The District Court erred in:

(1) refusing a temporary restraining order and pre­
liminary injunction enjoining the appellee and others from 
suspending or expelling the appellant and all others simi­
larly situated and from refusing to expunge any and all 
notations of the dismissals from their permanent records,

(2) refusing to enjoin the imposition of any other penal­
ties or disciplinary action against the appellant and others 
similarly situated for participating in peaceful racial pro­
tests,

(3) refusing to hold that the suspension and expulsion 
of the Negro students was in violation of said students’ 
First Amendment rights,

all of which was contrary to the due process clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

ARGUMENT

I
The Order of the District Court Is an Appealable 

Order Both Under Section 1291 and Section 1292  
(a) (1 )  of Title 28 , United States Code.

Section 1291 of Title 28, United States Code gives the 
Courts of Appeals “ jurisdiction of appeals from all final 
decisions of the district courts of the United States.”  In 
determining what constitutes a “ final” decision, Section 
1291 has long been given a practical rather than technical 
construction. Brown Shoe Co. v. United States, 370 U. S. 
294, 306; For gay v. Conrad, 6 How. (47 U. S.) 201, 202;



5

United States v. Wood, 295 F. 2d 772, 778 (5th Cir. 1961); 
Baltimore and Ohio R.R. Co. v. United Fuel Gas Co., 154 F. 
2d 545, 546 (4th Cir. 1946). Although the denial of a tem­
porary restraining order is ordinarily not appealable, see 
Connell v. Dulien Steel Products, 240 F. 2d 414 (5th Cir. 
1957), and assuming that the district court’s order was 
such a denial,1 this case falls within the rule of United 
States v. Wood, supra at 778 that an appeal may be taken 
from a temporary restraining order “ determining substan­
tial rights of the parties which will be irreparably lost if 
review is delayed until final judgment. . . . ” 2 * * * 6

The order of the district court is also appealable under 
§1292(a)(l) of Title 28, United States Code. That section 
permits appeals from “ Interlocutory orders of the district 
courts of the United States . . . granting, continuing, modi­
fying, refusing or dissolving injunctions, or refusing to 
dissolve or modify injunctions . . . ” In determining what 
orders are “ interlocutory”  for purposes of §1292(a)(l),

1 The original order of the district court denied the motion for 
a temporary restraining order but did not refer to a preliminary 
injunction in any way. After two notices of appeal were filed, 
one from the denial of a restraining order and one from the denial 
of a preliminary injunction, the original order of the district 
court was amended to say that the motion for a preliminary in­
junction would be heard at a later date (R. 24, 26, 27).

2 Other decisions have permitted appeals from orders not tech­
nically final where irreparable harm wrould render worthless a
delayed appeal. Woods v. W right------ F. 2 d -------- (5th Cir. May
22, 1963) ; Stack v. Boyle, 342 U. S. 1, appeal possible from denial 
of motion to reduce bail; Swift and Co. v. Compania Colombia.na,
339 U. S. 684, appeal from an order vacating the attachment of a 
ship in a libel action for lost cargo; Cohen v. Beneficial Industrial 
Loan Corp., 337 U. S. 541, appeal from the denial of a request to 
require the plaintiff to give security for reasonable expenses and 
counsel fees in a stockholder’s derivative action. See also Sears, 
Roebuck and Company v. Mackey, 351 U. S. 427; For gay v. Conrad,
6 How. (47 U. S.) 201; Kennedy v. Lynd, 306 F. 2d 222 (5th Cir. 
1962).



6

courts look not to the terminology used but to “ the sub­
stantial effect of the order made.”  Ettelson v. Metropoli­
tan Life Ins. Co., 317 U. S. 188; Enelow v. New York Life 
Ins. Co., 293 U. S. 379; General Electric Co. v. Marvel Rare 
Metals Co., 287 U. 8. 430; Ring v. Spina, 166 F. 2d 546 (2nd 
Cir. 1948). Orders which “have a final and irreparable 
effect on the rights of the parties,” Cohen v. Beneficial In­
dustrial Loan Corp., supra at 545, or are of “ serious, per­
haps irreparable consequence,” Baltimore Contractors v. 
Bodinger, 348 U. S. 176, 181 or are “ effective upon . . . 
rendition and . . . drastic and far reaching in effect,” 
Maxwell v. Enterprise Wall Paper Mfg. Co., 131 F. 2d 400, 
402 (3rd Cir. 1942), are appealable under §1292(a)(1).

There can be no real dispute that the appellant and 
others similarly situated suffered irreparable harm as the 
result of suspensions and expulsions pursuant to the direc­
tive of the appellee. Graduation for many students was 
prevented. A  school semester for all was destroyed. In 
addition, given the short time remaining in the semester, 
no further effective court proceedings were possible—be­
yond, of course, what occurred. The issues would have 
become moot and ousted this court from jurisdiction. 
Though the time lost could be made up in summer school, 
this was only at a substantial cost to the persons involved. 
The fact of suspension or expulsion became a part of the 
students’ permanent records to be sent to any potential 
schools or employers.

Moreover, in addition to the appealability of the district 
court’s, order because of irreparable harm, the order is 
appealable under §1292(a)(l) because it, in effect, denies 
the relief requested in the suit. This test, of the denial, 
in effect, of requested injunctive relief, was applied in 
Brunson v. Board of Trustees of School District No. 1, 311 
F. 2d 107 (4th Cir. 1962). There, forty-two Negro children



7

brought a class action to desegregate the schools of Claren­
don County, South Carolina. Upon motion, the district 
court issued an order striking all plaintiffs other than the 
first named, Bobby Brunson, and all allegations appropri­
ate to a class action from the complaint. Brunson was 
given twenty days to file an amended complaint consistent 
with the court’s order. A  few days after this order, Brun­
son graduated, making the issues moot as to him. He could 
not file a new complaint, have a trial, and obtain a decision 
on the merits. Nor could he contest the lower court’s order 
striking the other plaintiffs in an appeal after a trial on the 
merits. The other Negro plaintiffs were left to individual 
actions and relief. Since they were in effect denied the 
injunctive relief requested for the reorganization of the 
entire school system, appeal was permitted under §1292 
(a )(1 ). Similarly, in this case, the appellant and other 
Negro students sought relief from the loss of the semes­
ter in school.

II

The Suspension and Expulsion o f  the Negro Students 
W ithout Notice or Hearing Violated Rights Secured by 
the Due Process Clause o f  the Fourteenth Amendment 
to the Constitution o f  the United States.

At school on May 20, 1963, appellant Linda Cal Woods 
was handed a letter suspending her for the balance of the 
semester (R. 5). In similar manner, without notice or an 
opportunity to be heard, approximately 1,080 other Negro 
students were dismissed from public schools in Birming­
ham, Alabama (R. 5,9,10,12, 20). This procedure flagrantly 
disregarded not only previous cases directly in point but 
constitutional principles deeply rooted in the traditions 
of our country.



8

In Dixon v. Alabama State Board of Education, 294 
F. 2d 150 (5th Cir. 1961), cert, denied 368 U. S. 930, this 
court condemned the expulsion of several Negro students 
from a tax-supported college without the constitutional 
safeguards of notice and hearing. Though the “miscon­
duct” for which the students had been expelled was never 
definitely specified, all of them had participated in a 
peaceful protest against racial segregation of a lunch grill 
in the basement of the Montgomery County Courthouse. 
In reversing, this court held (at p. 157):

In the disciplining of college students there are 
no considerations of immediate danger to the public, 
or of peril to the national security, which should pre­
vent the Board from exercising at least the funda­
mental principles of fairness by giving the accused 
students notice of the charges and an opportunity to 
be heard in their own defense. Indeed, the example 
set by the Board in failing so to do, if not corrected 
by the courts, can well break the spirits of the ex­
pelled students and of others familiar with the injus­
tice, and do inestimable harm to their education.

See also Knight v. State Board of Education, 200 F. Supp. 
174 (M. D. Tenn. 1961). Thirteen Negro students had 
been arrested as “ Freedom Riders” in Jackson, Missis­
sippi. The Court relied on the Dixon case. See also Swan 
v. Board of Education of the City of New York (S. D. 
N. T. September 10, 1962), aff’d 319 F. 2d 56 (2nd Cir. 
1963), citing with approval the Dixon case but dismissing 
the complaint on the grounds that the statute of limitations 
had run, and Calloway v. Farley, 2 Race Rel. L. Rep. 1121 
(E. D. Va. 1957) in which a temporary restraining order 
was obtained enjoining the imminent expulsion of Negro 
students from public schools in Richmond, Virginia.



9

Appellee’s Directive Is a Restraint on the Liberty of 
Expression Guaranteed by the First and Fourteenth 
Amendments.

The loss of an education is not the sole consequence 
of the suspension and expulsion of the students. Of equal 
importance is the detrimental effect on the exercise of 
freedoms secured by the First and Fourteenth Amend­
ments. It has long been established that these First 
Amendment freedoms are protected by the Fourteenth 
Amendment from invasion by the states. Edwards v. 
South Carolina, 372 U. S. 229; Fields v. South Carolina,
—— XJ. S .----- , 11 L. Ed. 2d 107; Cantwell v. Connecticut,
310 U. S. 296; DeJonge v. Oregon, 299 IT. S. 353; Stro'tn- 
berg v. California, 283 U. 8. 359; Whitney v. California, 
274 U. S. 357; and Gitlow v. New York, 268 U. S. 652. 
The activity in which the appellant was engaged is closely 
akin to the activity of Negro students in Edwards. There 
187 Negro students had engaged in an orderly protest 
against racial segregation by marching to and through 
the South Carolina state house grounds in Columbia, 
South Carolina. The Supreme Court of the United States 
reversed convictions for breach of the peace stating that 
their actions represented an exercise of First Amend­
ment freedoms “ in their most pristine and classic form.” 
Edwards v. South Carolina, supra, at 235.

Here the appellant, with the permission of her father, en­
gaged in an orderly demonstration against racial segrega­
tion by walking two abreast on the sidewalk with her two 
sisters and several other persons. Like the Negro students 
in Edwards she was exercising First Amendment rights “ in 
their most pristine and classic form.” In the past, the pro­

III



10

tection of First Amendment freedoms has been regarded 
as so precious that they could only be abridged by the 
state upon a showing that a compelling state interest 
demanded it. Edwards v. South Carolina, supra; Fields v. 
South Carolina, supra; Thomas v. Collins, 323 U. S. 516; 
Cantwell v. Connecticut, supra; Thornhill v. Alabama, 310 
U. S. 88; Hague v. C. I. 0., 307 U. 8. 496; Near v. Minne­
sota, 283 U. S. 697. No compelling interest on the part of 
the state or on the part of the school officials has been 
shown. The record is completely devoid of evidence of 
disorder or violence of any kind.

It is of no consequence that the action and the beliefs 
of the appellant were controversial in the area where she 
lived. As stated in Terminiello v. Chicago, 337 U. S. 1, 4:

“  [A] function of free speech under our system of gov­
ernment is to invite dispute. It may indeed best serve 
its high purpose when it produces a condition of un­
rest, creates dissatisfaction with conditions as they 
are, or even stirs people to anger. Speech is often pro­
vocative and challenging. It may strike at prejudices 
and preconceptions and have profound unsettling ef­
fects as it presses for acceptance of an idea. That is 
why freedom of speech . . . is . . . protected against 
censorship or punishment, unless shown likely to pro­
duce a clear and present danger of a serious substan­
tive evil that rises far above public inconvenience, 
annonyance, or unrest. . . There is no room under our 
Constitution for a more restrictive view.



11

IV

Appellant’ s Suspension Is a Denial of Due Process 
Because It Results From an Alleged Violation of an 
Unconstitutional Ordinance.

Aside from the constitutional deprivations resulting 
from lack of notice or hearing for actions protected by the 
First and Fourteenth Amendments, appellee’s directive 
inflicts additional punishment for an alleged but unproved 
violation of an ordinance unconstitutional on its face and 
as applied. Section 1159 of the Birmingham Code, the 
ordinance the students were charged with violating, reads 
as follows:

Section 1159. P arading.

It shall be unlawful to organize or hold, or to assist 
in organizing or holding, or to take part or participate 
in, any parade or procession or other public demon­
stration on the streets or other public ways of the city, 
unless a permit therefor has been secured from the 
commission.

To secure such permit, written application shall be 
made to the commission, setting forth the probable 
number of persons, vehicles and animals which will be 
engaged in such parade, procession or other public 
demonstration, the purpose for which it is to be held or 
had, and the streets or other public ways over, along 
or in which it is desired to have or hold such parade, 
procession or other public demonstration. The com­
mission shall grant a written permit for such parade, 
procession or other public demonstration, prescribing 
the streets or other public ways which may be used 
therefor unless in its judgment the public welfare, 
peace, safety, health, decency, good order, morals or



12

convenience require that it be refused. It shall be un­
lawful to use for such purposes any other streets or 
public ways than those set out in said permit.

The two preceding paragraphs, however, shall not 
apply to funeral processions.

The use of Section 1159 against the appellant here con­
flicts with a long line of Supreme Court decisions holding 
such ordinances unconstitutional as a prior restraint on 
free expression because they set no standards for a grant 
of a permit, but leave this determination to the unfettered 
will of a public official. See Staub v. Baxley, 355 U. S. 313 
(permit from Mayor required of certain organizations be­
fore soliciting members); Niemotko v. Maryland, 340 U. S. 
268 (permit from Park Commissioner required for public 
meeting); Runs v. New York, 340 U. S. 290 (permit from 
police commissioner required for religious assembly on a 
public street); Saia v. New York, 334 U. S. 558 (prohibit­
ing sound trucks on the streets without a license from the 
chief of police); Thomas v. Collins, 323 IT. S. 516 (requir­
ing permit from the Secretary of State before a union 
organizer could carry on activities in the State of Texas); 
Largent v. Texas, 318 U. S. 418 (requiring permit from the 
Mayor to canvass); Cantwell v. Connecticut, 310 U. S. 296 
(requiring permit from the secretary of the public welfare 
council to disseminate religious propaganda); Schneider v. 
Irvington, 308 U. S. 147 (permit from police chief required 
of canvasser); Hague v. C. I. O., 307 IT. S. 496 (permit 
from the Director of Public Safety required for public 
assembly); and Lovell v. Griffin, 303 U. S. 444 (permit 
from the City Manager required to distribute pamphlets). 
Section 1159 leaves to the commission not only a determi­
nation of what constitutes a “ parade”  but also of actions 
injurious to the “ public welfare, peace, safety, health, de­
cency, good order, morals or convenience.”  These words



13

are similar to those used in ordinances in the cited cases 
and held to be insufficient checks on the discretion of public 
officials. Thus permits could be refused to prevent “ annoy­
ance or inconvenience,”  Saia, supra at 558; if deemed 
“ proper or advisable,” Largent, supra at 419; for lack of 
“ reasonable standards of efficiency and integrity,” Cant­
well, supra at 302; for lack of “good character,” Schneider, 
supra at 157; and to prevent “ riots, disturbances or dis­
orderly assemblage,”  Hague, supra at 504.

Poulos v. New Hampshire, 345 U. S. 395 offers no sup­
port for the constitutionality of Section 1159. Although 
that case upheld a conviction for violation of an ordinance 
requiring a permit for use of a park, the New Hampshire 
courts had construed the ordinance to allow no discretion 
to the public official to refuse a permit, but only to consider 
such things as the time, place, and manner of holding the 
assembly.

Section 1159 is equally unconstitutional as applied to the 
conduct of these students. By failing to specifically define 
such things as “ parade” or acts endangering the “ public 
welfare” it falls within the rule that “ a generally worded 
statute which is construed to punish conduct which cannot 
constitutionally be punished is unconstitutionally vague to 
the extent that it fails to give adequate warning of the 
boundary between the constitutionally permissible and con­
stitutionally unpermissible applications of the statute.” 
Wright v. Georgia, 373 U. S. 284, 10 L. Ed. 2d 349, 355; 
Winters v. New York, 333 U. S. 507; .Stromberg v. Cali­
fornia, supra.

Since"'§1159 is unconstitutional, there was no obligation 
on the part of appellant or the other Negro students to 
obey it. Thomas v. Collins, supra; Largent v. Texas, supra. 
Because appellee’s directive only compounded the injury



14

received from the arrest pursuant to the ordinance, it also 
runs counter to the dictates of due process.

It is no answer to the grave denials of due process to 
say that a school or university must possess wide latitude 
in disciplining its students. Both the Dixon and Knight 
cases conceded this, but replied that such power was “ not 
unlimited and cannot be arbitrarily exercised.” Dixon, 
supra at 157. In Knight the court added (at p. 179):

It may be conceded that a state college or university 
must necessarily possess a very wide latitude in dis­
ciplining its students and that this power should not 
be encumbered with restrictions which would embar­
rass the institution in maintaining good order and 
discipline among members of the student body and a 
proper relationship between the students and the 
school itself. It may further be conceded that it is a 
delicate matter for a court to interfere with the in­
ternal affairs and operations of a college or university, 
whether private or public, and that such interference 
should not occur in the absence of the most compelling 
reasons.

Nevertheless, the authorities uniformly recognize 
that the governmental power in respect to matters of 
student discipline in public schools is not unlimited 
and that disciplinary rules must not only be fair and 
reasonable but that they must be applied in a fair and 
reasonable manner. Dixon v. Alabama State Board 
of Education, supra, 294 F. 2d at page 157.

Nor can due process deprivations be justified by the 
argument that attendance at a public school is a privilege 
and not a right. Even the grant of a privilege cannot be 
conditioned upon the relinquishment of the constitutional 
rights to notice and hearing, exercise of free speech, and



15

punishment only for violation of valid statutes. Shelton 
v. Tucker, 364 U. S. 479; Slochower v. Board of Educa­
tion, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183; 
United Public Workers of America v. Mitchell, 330 U. S. 
75; Dixon v. Alabama State Board of Education, supra; 
Alston v. School Board of City of Norfolk, 112 F. 2d 993 
(4th Cir. 1940), eert. denied 311 U. S. 693; Knight v. State 
Board of Education, supra.

CONCLUSION

For the foregoing reasons the judgment of the dis­
trict court should be reversed.

Respectfully submitted,

Jack Greenberg 
Constance Baker Motley 
George B. Smith

10 Columbus Circle 
New York 19, New York

A rthur D. Shores
1527 North 5th Avenue 
Birmingham, Alabama

Orzell B illingsley, Jr.
1630 North 4th Avenue 
Birmingham, Alabama

Attorneys for Appellant

L eroy D. Clark 

Of Counsel



APPENDIX



APPENDIX

Birmingham Code 
Section 1159. Parading.

It shall be unlawful to organize or hold, or to assist in 
organizing or holding, or to take part or participate in, 
any parade or procession or other public demonstration 
on the streets or other public ways of the city, unless a 
permit therefor has been secured from the commission.

To secure such permit, written application shall be made 
to the commission, setting forth the probable number of 
persons, vehicles and animals which will be engaged in 
such parade, procession or other public demonstration, the 
purpose for which it is to be held or had, and the streets or 
other public ways over, along or in which it is desired to 
have or hold such parade, procession or other public 
demonstration. The commission shall grant a written per­
mit for such parade, procession or other public demon­
stration, prescribing the streets or other public ways which 
may be used therefor unless in its judgment the public 
welfare, peace, safety, health, decency, good order, morals 
or convenience require that it be refused. It shall be un­
lawful to use for such purposes any other streets or public 
ways than those set out in said permit.

The two preceding paragraphs, however, shall not apply 
to funeral processions.



2 a

Certificate of Service

This is to certify that on th e .........day of January, 1964,
I served a copy of the foregoing Brief for Appellant upon 
Reid B. Barnes, Attorney for Appellee, Exchange Security 
Bank Building, Birmingham, Alabama, by depositing a 
copy thereof addressed to him as indicated herein in the 
United States mail, airmail, postage prepaid.

Attorney for Appellant



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