Wheeler v. Durham City Board of Education Appellants' Brief

    I n  th e

Initpft i^tate (Eattrl nf Appeals
F oe t h e  F o u r t h  C ir c u it  

No. 8643

W a r re n  H. W h e e l e r , an infant, et al.,
Appellants,

— V .—

D u r h a m  C it y  B oard oe E d u c a tio n , etc.,
Appellee.

APPEAL EROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OE NORTH CAROLINA 

DURHAM DIVISION

APPELLANTS’ BRIEF

J a c k  G reen berg  
J a m e s  M. N a b r it , III 
D e r r ic k  A. B e l l

10 Columbus Circle 
New York 19, New York

C onrad  0 .  P earson  
M . H u g h  T h o m p s o n  
W il l ia m  A. M a r s h , Jr.

2031/2 East Chapel Hill Street 
Durham, North Carolina

J. H. W h e e l e r
116 West Parrish Street 
Durham, North Carolina

F . B. M cK is sic k
2091/2 West Main Street 
Durham, North Carolina

Attorneys for Appellants



I N D E X

Statement of the Case ........................................... ......  1

Questions Involved.................................................... .  12

Statement of the Facts ..................................................  13

Initial Assignments by Race ................................... 13

The Board’s Reassignment Practices and Proce­
dures for the 1959-60 and 1960-61 School Terms 16

Standards and Procedures on Reconsideration of 
Plaintiffs’ Transfer Applications ........................... 22

Argument ............................................................  25

Introductory..................................................................  25

I. Plaintiffs will be denied relief to which they 
are entitled as individuals so long as Durham 
maintains dual racial school zones .............—  27

II. Appellants who concededly exhausted admin­
istrative remedies may present to the United 
States Courts every issue over which they 
have jurisdiction in this case ...........................  33

III. That children in the City of Durham other 
than plaintiffs did not pursue the admin­
istrative course does not bar them from en­
joying their constitutional right to desegre­
gation because the administrative remedies 
provided by Durham are a sham...... ........  35

PAGE



11

IV. Plaintiffs are entitled to an order requiring 
the City of Durham to set up a nonracial 
system of school assignments, or as a tempo­
rary measure, pending reorganization, to an 
order admitting them to schools they would

PAGE

attend if they were white ..... .......... ..............  42

Conclusion ............. ................. ............... ........... ........... . 43

T ab le  of C ases

Allen v. County School Bd. of Prince Edward County,
Va., 266 F. 2d 507 (4th Cir. 1959)............................... 34

Board of Ed. of St. Mary’s County v. Groves, 261 F.
2d 527 (4th Cir. 1958) ..............................................  43

Brown v. Board of Education of Topeka, 349 U. S.
294 (1955) ..................................................................28, 34, 42

Bush v. Orleans Parish School Board, —— F. Supp.
------ (E. D. La. Apr. 3, 1962, C. A. No. 3630, not
yet reported) ............................................................ 32, 33, 43

Bush v. Orleans Parish School Board, 242 F. 2d 156 
(5th Cir. 1957) ..............................................................  34

Carson v. Warliek, 238 F, 2d 724 (4th Cir. 1956)
34, 35, 36, 41

Clemons v. Board of Education, 228 F. 2d 853 (6th
Cir. 1956) ....... ............ ......................... ........................  41

Cooper v. Aaron, 358 U. S. 1 (1958) ........................... 29, 42
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959) 36,41

Dodson v. School Board of the City of Charlottes­
ville, 289 F. 2d 439 (4th Cir. 1961) ........................... 29, 40

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) 43



I l l

PAGE

Gibson y. Board of Public Instruction of Dade 
County, Florida, 272 F. 2d 763 (5th Cir. 1959) .......  30, 34

Hill v. School Board of the City of Norfolk, 282 F.
2d 473 (4th Cir. 1960) ............ ..................................  29

Holt v. Raleigh City Board of Education, 265 F. 2d 
95 (4th Cir. 1959) ......................................................  34, 37

Houston Independent School Dist. v. Ross, 282 F. 2d 
94 (5th Cir. 1960) ......................................................  43

Jackson v. School Board of the City of Lynchburg,
201 F. Supp. 620 (W. D. Va. 1962) ........................... 30

Jones v. School Board of the City of Alexandria, 278 
F. 2d 72 (4th Cir. 1960) ................................................  29

Mannings v. Board of Public Instruction of Hillsboro 
County, Florida, 277 F. 2d 370 (5th Cir. 1960) .......  30

Northcross v. Board of Education of the City of
Memphis, ------  F. 2d — — (6th Cir., No. 14,642,
March 23, 1962, not yet reported) ...................... .30, 31, 34

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961), 
rev’g Aaron v. Tucker, 186 F. Supp. 913 (E. D.
Ark. 1960) ....................................................................  34

Pettit v. Board of Ed. of Harford Cty., 184 F. Supp.
452 (D. Md. 1960) ......................................................  43

Sehware v. Board of Bar Examiners, 353 U. S. 232 
(1957) .... .......................................................................  39

Shuttlesworth v. Birmingham Board of Education,
358 U. S. 101 (1958), affirming 162 F. Supp. 372 
(N. D. Ala. 1958)..........................................................  35, 41

Yick Wo v. Hopkins, 118 IT. S. 356 (1886) ..................  34



I n  t h e

United Btutm Contort nf Appeal#
F oe t h e  F o u r t h  C ir c u it  

No. 8643

W arren  H. W h e e l e r , an infant, et al.,

Appellants,

D u r h a m  C it y  B oard of E d u c a t io n , etc.,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 

DURHAM DIVISION

APPELLANTS’ BRIEF

Statement o f  the Case

These cases, Warren II. Wheeler v. Durham City Board 
of Education, C. A. No. C-54-D-60, and C. C. Spaulding 
v. Durham City Board of Education, 0. A. No. C-116-D-60, 
consolidated in the United States District Court for the 
Middle District of North Carolina, are here on appeal from 
the final judgment of District Judge Edwin M. Stanley, 
entered April 11, 1962, ordering that plaintiffs be denied 
the relief prayed for and that the complaints be dismissed 
(414a).

Wheeler was filed April 29, 1960, by 163 Negro pupils 
who had unsuccessfully applied for admission to all-white



2

or virtually all-white schools in Durham, North Carolina, 
prior to the 1959-60 school term. Prior to the 1959-60 term, 
225 Negro children in Durham applied for admission to 
white schools. After initial assignments were made on 
August 4, 1959 (274a), these 225 reassignment applications 
were considered by the school board ex parte at special 
meetings held August 25 and 28, 1959, and seven of the 
Negro pupils were reassigned to all-white schools (274a).1 
Each of the plaintiffs then appealed to the school board on 
the reassignment applications which had been denied (274a- 
275a). A “ hearing” was held on these appeals on Septem­
ber 21,1959 (nineteen days after the school term had begun 
on September 2, 1959; 281a); all the applications were 
again rejected (274a-278a). Thereafter, this suit for in­
junction was filed as a class action alleging racial discrimi­
nation in school assignment practices against plaintiffs 
and others similarly situated. The complaint prayed for 
a decree enjoining defendants from assigning plaintiffs to 
any school other than the one to which they would be as­
signed if they were white, from operating a biracial school 
system, from maintaining a dual scheme of school zone 
lines based on race, and from assigning teachers, princi­
pals and other personnel on the basis of the race of the 
children assigned to the school (19a-21a). In the alterna­
tive, it prayed that defendants be ordered to present a 
complete desegregation plan, including abolition of dual 
racial zones and elimination of other racial discrimination 
(19a-21a).

Defendant’s motion to dismiss was denied without preju­
dice on October 4,1960 (2a).

1 Two other Negroes were reassigned to a white school at this 
time; but they were placed in an all-Negro school when they moved 
to another residence on the day before the school term began 
(127a; 379a).



3

Wheeler was consolidated (59a) with Spaulding which 
had been filed September 12, 1960 (38a). Spaulding arose 
out of applications filed on behalf of 116 Negro pupils 
(including some who were also plaintiffs in Wheeler) seek­
ing admission the following year to white schools in Dur­
ham. These plaintiffs were among 205 Negro children who 
sought changes of initial assignments made on August 1, 
1960 (278a). Seven of these 205 Negroes were assigned 
to white schools on August 24, 1960 (279a). Each of the 
plaintiffs appealed under the Board’s procedures and the 
Board scheduled a “hearing” for September 12,1960 (279a). 
The term had already commenced August 30, 1960 (281a). 
After the meeting on September 12, 1.960, the Board denied 
all the appeals.

The Spaulding complaint, commencing with description 
of circumstances leading up to the Wheeler case, alleged 
assignments according to dual racial school zones (40a-41a), 
that as early as 1955 citizens had petitioned the Board to 
desegregate, and in 1956 a similar petition was filed (41a). 
It alleged that in 1959 the Board assigned students accord­
ing to dual racial maps and that 225 Negro students ap­
plied for change of assignment to schools to which they 
would have been assigned if white (43a). Nine Negro chil­
dren were thereupon assigned to white junior high and 
high schools. None of the elementary schools were de­
segregated pursuant to a Board decision made prior to 
the hearing not to do, so (43a). Their applications for re­
assignment having been denied, plaintiffs applied for hear­
ings. Almost three weeks after school commenced these 
hearings were held. Those not present at the hearing, al­
though represented by counsel with powers of attorney, 
were rejected for not having been present (44a). All others 
were rejected (44a).

The complaint continued: on August 1, 1960, the Board 
again made assignments according to the two sets of maps.



4

No nonsegregated assignments were made except for the 
children so assigned during the previous year. Two stu­
dents so assigned were, however, transferred back to Negro 
schools upon moving to their zone of residence. Approxi­
mately 205 children, including plaintiffs, applied for re­
assignment. Seven were so reassigned to the white schools 
that previously had Negro children. All others continued 
as assigned on the Negro map (45a).

Plaintiffs alleged compliance with the pupil assignment 
law (46a). They asserted that the pattern of action by 
defendant Board was arbitrary, capricious, and unreason­
able, denying equal protection and due process of law 
secured by the Fourteenth Amendment to the United States 
Constitution (46a). Particularly, plaintiffs alleged:

(a) Continued use of Negro and white maps (47a).

(b) A predetermined policy of refusing to reassign Negro 
children applying to white elementary schools and refusal 
to reassign Negro children to other than two junior high 
schools and the high school (47a).

(c) A  policy of applying criteria only to Negroes seeking 
desegregation (47a).

(d) The absence of standards to judge applications for 
reassignment (47a).

(e) The purported use of health standards without refer­
ence to health records, the purported use of I.Q. and grade 
standards without comprehension of their meaning (47a- 
48a).

(f) Decision making without records or prepared in­
formation and decisions on hundreds of individual children 
within a period of a few hours (48a).

(g) The consistent scheduling of hearings weeks follow­
ing the commencement of school (48a).



5

The complaint alleged that the administration of the 
pupil assignment law was discriminatory and in violation 
of the Fourteenth Amendment, stating:

The North Carolina Enrollment and Assignment of 
Pupils Act, Gen. Stats, of North Carolina, Sec. 115- 
176 through 115-178, is unconstitutional as it exists in 
actual operation for the facts establish an administra­
tion directed so exclusively against a particular class 
of persons as to warrant and require the conclusion 
that whatever may have been the intent of the statute 
as adopted, it has been applied by the public authori­
ties charged with its administration and thus represent­
ing the state itself, with a mind so unequal and oppres­
sive as to amount to a practical denial by the State 
of the equal protection of the law which is secured to 
plaintiffs, as to all other persons by the Fourteenth 
Amendment to the Constitution of the United States. 
Even though the law itself may be fair and impartial 
on its face, since it is applied and administered by 
public authority with an evil eye and an unequal hand, 
so as practically to make unjust and illegal discrimina­
tions between persons in similar circumstances ma­
terial to their rights, the denial of equal justice is 
within the prohibition of the Constitution (48a-49a).

It further alleged that the assignment law was not being 
used as a desegregation plan:

Defendants have not employed the North Carolina 
pupil placement statutes as a means of abolishing state 
imposed racial distinctions, nor have they offered to 
plaintiffs and other Negro children, by means of the 
Pupil Placement Law, a genuine method for securing 
attendance at nonsegregated public schools (54a).

The complaint prayed that the court enjoin the practices 
complained o f :

1. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees



6

and successors from assigning plaintiffs to any school 
other than the one to which they would be assigned 
if they were white;

2. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees 
and successors from operating a biracial school system 
in Durham, North Carolina;

3. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees 
and successors from maintaining a dual scheme or 
pattern of school zone lines based upon race and color •

4. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees 
and successors from assigning students to schools in 
the City of Durham, North Carolina on the basis of 
the race and color of the students;

5. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees 
and successors from assigning teachers, principals and 
other school personnel to the schools of the City of 
Durham, North Carolina on the basis of the race and 
color of the children attending the school to which the 
personnel is to be assigned ;

6. Enter a temporary, preliminary, and permanent 
decree enjoining defendants, their agents, employees 
and successors from subjecting Negro children seek­
ing assignment, transfer or admission to the schools 
of the City of Durham, North Carolina, to criteria, 
requirements, and prerequisites not required of white 
children seeking assignment, transfer or admission to 
the schools of the City of Durham, North Carolina.

7. Enter a decree ordering defendants, their agents, 
employees and successors to hold an immediate meet­
ing to review, on a nondiscriminatory basis, the ap­
plications of plaintiffs for reassignment for the school 
year 1960-61 to schools they would attend if they were 
white.



7

8. Enter a judgment declaring the North Carolina 
Enrollment and Assignment of Pupils Act, Gen. Stats, 
of North Carolina, §115-176 through 115-178 uncon­
stitutional as denying Negro children the equal pro­
tection of the laws secured by the Fourteenth Amend­
ment to the United States Constitution (54a-55a).

In the alternative it prayed for presentation of a desegrega­
tion plan (55a-56a).

Plaintiffs applied also for a temporary restraining order 
and preliminary injunction against further enforced segre­
gation in the Durham City school system.

After the 1960 hearings were held and all plaintiffs’ 
appeals from reassignment denials were rejected, plaintiffs 
obtained leave to file a supplemental complaint alleging 
the supervening facts (58a).

The Wheeler and Spaulding cases were consolidated 
(59a). The motion for preliminary injunction was denied 
“ without prejudice,” as was the Board’s motion to dismiss 
(2a-3a). Answers and stipulations as to facts and exhibits 
were filed (22a, 60a, 89a), interrogatories were filed, but 
defendants objected thereto and a hearing was held Decem­
ber 14, 1960, after which the Court required that the inter­
rogatories be answered so long as school schedules were 
not disrupted (3a-4a).

December 21, 1960, the case was called for trial (114a). 
Because all interrogatories had not yet been answered, the 
Court ordered response to certain of them to which no 
response had yet been made (114a). Following trial, briefs 
were submitted and the case was set for oral argument on 
February 24,1961 (5a).

On July 20, 1961, Judge Stanley filed findings and con­
clusions and an opinion (268a). The Court held that those 
plaintiffs who had not attended the School Board hearings



8

in 1959 and 1960 had failed to exhaust their administrative 
remedies and that they were not entitled to relief. The 
Court further stated that it would not issue “ a decree 
integrating the entire Durham School System” (289a), 
stating that:

[T]he court is limited to the protection of the indi­
vidual rights of those plaintiffs who exhausted their 
administrative remedies prior to the institution of the 
actions. As earlier noted, the United States Supreme 
Court has never suggested that mass mixing of the 
races is required in public schools. It has simply 
required that no child shall be denied admission to a 
school of his choice on the basis of race or color. There 
is, of course, no objection to a number of plaintiffs 
joining in the same suit, as was done in the cases under 
consideration (289a).

The Court went on to say that many of defendant’s prac­
tices used in 1959-60 and 1960-61 school terms were dis­
criminatory and unconstitutional, including the use of a 
dual system of attendance areas for elementary students 
based on race (289a-290a). The Court also indicated dis­
approval of the defendant’s practice of initially assigning 
pupils by notices in the newspapers so late in the summer 
as to make it practically impossible for pupils to complete 
their administrative procedures before the opening of 
school(290a).

The Court also founded an infirmity in the Board’s 
administration of the law in failing to adopt criteria or 
standards for considering applications for reassignment 
(290a-291a). However, the Court observed that the Board 
had many problems, including overcrowding, a school en­
largement and construction program, and emphasized that 
the Board had made what the Court termed “ a significant 
and good faith start toward desegregating the schools” at 
the beginning of the 1959-60 school term. The Court con-



9

eluded that the plaintiffs’ applications had not been con­
sidered on their indivdual merits in that all elementary 
students were denied transfers on the basis of a predeter­
mined policy not to desegregate those schools, and that the 
record was not clear as to why the secondary students’ 
applications were denied (292a). The Court said:

If there had been a scrupulous observance of the indi­
vidual constitutional rights of the minor plaintiffs, 
many of them would have undoubtedly been entitled 
to a transfer. At the same time, by applying criteria 
and standards that have received judicial approval, the 
board would have likely been justified in denying many 
of the applications (292a).

The Court concluded that the Board should separately 
reconsider each application and report to the Court its 
action on each pupil who had attended the reassignment 
hearings. No injunctive relief was granted.

On August 8, 1961, the Court entered an “ interlocutory 
order” (296a) directing the Board to reconsider the ap­
plications of those plaintiffs who had attended the Board’s 
appeal hearings in 1959 and 1960, and to file a report with 
the Court within thirty days indicating its action. The 
order further provided that the case be retained on the 
docket and that if plaintiffs were dissatisfied with the action 
of the Board they might apply for a hearing on their ob­
jections. Plaintiffs excepted to this order (297a).

On August 21, 1961, the Board filed its report (298a). 
The report indicated that the Board had adopted a resolu­
tion stating, inter alia:

That the future use of dual attendance area maps 
be discontinued effective immediately.

The report also listed certain criteria and standards to 
be used in the future in assigning pupils as follows (299a- 
300a):



10

(1) The relation of residence location of the pupils 
to the schools to which the pupil will be assigned or 
seeks reassignment to another school;

(2) The proper and most effective utilization of the 
physical facilities available and the teacher load in the 
school as well as the total enrollment in the school;

(3) Academic preparedness and past achievement of 
the pupil;

(4) Factors involving the health and well-being of 
the pupil;

(5) Physically handicapped pupils;
(6) Bona fide residence in the administrative school 

unit;
(7) Morals, conduct, deportment and attendance rec­

ord of pupil seeking assignment or reassignment;
(8) Efficient administration of the schools so as to 

provide for the effective instruction, health, safety 
and general welfare of the pupil.
At any hearing on an appeal for reassignment of a 
pupil, unless the pupil or one of his or her parents or 
a person standing in loco parentis is present in person, 
the appeal will not be considered and it shall be con­
clusively presumed to have been abandoned and with­
drawn.

The Board then indicated its action and the reasons for 
its action with respect to the group of plaintiffs the Court 
had ordered it to reconsider. The Board reported that six 
of these pupils would be granted transfers to white schools; 
that ten had graduated, dropped out of school, or moved 
from the city; that one was already attending a white 
school, and that approximately 112 others were denied 
transfers for a variety of reasons. These reasons fell into 
three principal categories, e.g., distance from pupil’s resi­
dence to the school involved, below average academic 
achievement, and overcrowding in the schools (301a-324a).



11

Plaintiffs then filed objections to the report in which 
they alleged that the assignment standards applied to this 
group of plaintiffs were racially discriminatory as applied. 
Plaintiffs’ objections renewed the request for injunctive 
relief and for an order requiring a desegregation plan 
(331a-332a).

October 11, 1961, the Court called a conference with at­
torneys to discuss the most feasible way to hear plaintiffs’ 
objections to the Report (6a). As a result, further deposi­
tions were taken which were filed with the Court on No­
vember 8, 1961. At the taking of these depositions, defen­
dant had refused to furnish certain documents and to 
permit response to certain questions; the Court ordered 
that these documents and answers be furnished (6a).

March 28, 1962, the Court called a conference of counsel 
at which exhibits were identified and marked (333a).

On April 11, 1962, the Court filed a supplemental opinion 
(403a).

The Supplemental Opinion made additional findings with 
respect to the Board’s resolution discontinuing the use of 
dual attendance area maps and the adoption of standards 
for considering reassignments. The Court also found that 
the Board had not made any material change in its previous 
initial assignment practices (408a). The Court concluded 
that the plaintiffs were attempting to maintain a class 
action and that it held that they were not entitled to do so, 
stating that their rights “must be asserted as individuals, 
not as a class or group” (410a). Relying upon this Court’s 
decision in Covington v. Edwards, 264 F. 2d 780 (4th Cir. 
1959), the Court held that plaintiffs were not entitled to 
the relief they requested and that the Court had no alter­
native other than to dismiss the action.



12

The opinion of the Court is in part predicated upon the 
Court’s assertion that plaintiffs did not seek an adjudica­
tion of their rights as individuals (409a, 410a, 413a). It 
may be noted, however, that plaintiffs did seek an injunc­
tion requiring that they be admitted to the various schools 
they would attend if they were white students as indicated 
on the white attendance area maps. (See Wheeler Com­
plaint, 13a, 19a; Spaulding Complaint, 49a-53a, 54a; Plain­
tiffs’ Objections to Report, 331a-332a; oral statement to 
Court at final hearing, 335a-336a.)

The Court entered judgment accordingly on April 11, 
1962 (414a). Notice of appeal was filed April 16, 1942 
(414a).

Question Involved

The following question was raised in the complaints 
(8a, 38a) and in plaintiffs’ objections to defendant’s report 
to the Court (326a), and was decided adversely to plain­
tiffs by the interlocutory order (296a) and final judgment 
dismissing the case and denying all relief (414a).

Whether plaintiffs, Negro school children and parents, 
are entitled to injunctive relief restraining the continued 
operation of a system of initially assigning pupils to the 
public schools on a racially segregated basis through the 
use of dual racial attendance areas, and an order requiring 
the school board to adopt a non-racial method of initially 
assigning plaintiffs and all other pupils in the school system 
and placing plaintiffs in schools without regard to their 
race, where:

(1) continued use of dual racial attendance areas is 
clearly established, and pupils seeking to escape the racially 
segregated initial assignments are measured against re­
strictive transfer standards not used in assigning pupils 
generally or even in other types of transfers (such as 
changes of residence transfers);



13

(2) some of the plaintiffs have eoneededly exhausted all 
administrative remedies for transfer to “white” schools 
and have been repeatedly rejected by the school board, first 
without giving any reasons, and later upon the basis of 
assignment criteria not used in placing white students in 
such schools;

(3) the administrative hearings which some other plain­
tiffs did not attend were futile and inadequate admin­
istrative proceedings since:

(a) the board had decided before the hearings to deny 
all elementary school applications;

(b) the hearings were not held for the purpose of ob­
taining information from those present, all information 
requested by the board was furnished, and the board merely 
called the roll and then denied all requests whether the 
persons were present or absent;

(c) the hearings were not held until after the school 
term had commenced;

(d) the board had neither any procedural rules for con­
ducting the hearings nor any agreed standards or criteria 
for deciding assignment applications.

Statement of the Facts 

Initial Assignm ents by Race

The Durham City Board of Education has at all times 
material to this case initially assigned children to schools 
on the basis of race in a racially segregated pattern. 
Segregation has been accomplished and continues by a 
system of assigning pupils on the basis of separate school 
zone maps for white and Negro pupils (Exs. 5 and 6; 140a, 
272a). These maps are used to determine the assignment 
of pupils when they initially enter the system (272a) or



14

when they change residence within the City (384a-385a). 
Upon graduation from elementary school, all Negro pupils 
are assigned to the one all-Negro junior high (Whitted 
Junior High School) (270a-271a), and upon graduation 
from Whitted Junior High, all Negro pupils are initially 
assigned to the single all-Negro high school (Hillside 
High) (270a).

When white pupils finish elementary school they attend 
one of the three white junior high schools, Brogden, Carr 
and East Durham (sometimes called Holton), on the basis 
of the junior high school zones (360a). All white junior 
high school graduates are initially assigned to the Durham 
High School (270a).2

Under this system every pupil thus lives in the zone 
of one school on the Negro map and another school on the 
white map. The school zones in which plaintiffs resided 
on the Negro map at the time of the trial are indicated in 
the answer to Interrogatory No. 1(b), see Exhibits D-l and 
D-2 (240a-249a). The school zones in which plaintiffs 
resided on the white school zone attendance map are in­
dicated in the answer to Interrogatory 1(c), see Exhibits 
E -l and E-2 (250a-259a). The nearest school serving each 
plaintiff’s grade level to their residences is indicated in 
the answer to Interrogatory 1(d), see Exhibits A -l, A-2, 
A-3, A-4 (228a-235a) and also Exhibits F -l and F-2 
(260a-267a). The last mentioned exhibits indicate that a 
considerable number of the plaintiffs live closer to the 
white junior and senior high schools and that a few of 
them live closer to the white elementary schools.

2 School census reports used to plan for enrollments are taken 
on the basis of the Negro and white populations and arranged 
in terms of Negro and white schools by Plaintiffs’ Exhibit 3 
(131a-133a).



15

Each of the schools in the system has pupils with a varied 
range of abilities, the range being determined by the nature 
of the pupils living in the zone served by the various 
schools. There are no schools set aside for above average 
or average pupils, but rather the pupils are grouped by 
ability within the schools after they are admitted (358a). 
Similarly there are pupils with poor attendance records, 
poor academic preparedness and achievement records and 
poor conduct records in all of the schools (371a-372a). 
School zones have been occasionally modified to deal with 
overcrowding (360a-361a). Occasional exceptions to the 
general practice of assigning pupils by zones are made for 
crippled children and other unusual cases (383a).

Although approximately 15 Negro pupils are presently 
attending previously all-white schools (357a) they all ob­
tained such assignments by applying for changes of their 
initial assignments. No Negro pupils have ever been 
initially assigned to white schools (380a). The school sys­
tem, which has approximately 15,000 pupils and 24 schools 
(395a) is (apart from the 15) completely racially segre­
gated. The Negro schools are stalled by Negro teachers 
and principals and the white schools with white teachers 
and principals (357a).

After the Court’s opinion of July 20, 1961, criticized the 
use of dual attendance areas based on race, the Boairl on 
July 27, 1961, passed a resolution stating: “ That the future 
use of dual attendance area maps be discontinued effective 
immediately” (299a). However, after July 27, 1961, the 
Board continued to assign pupils on the basis of the old 
attendance area maps. It did so with respect to all of the 
entering first-grade pupils for the year 1961-62 who hap­
pened to be assigned after July 27 (381a-384a). The super­
intendent also used the zoning system in determining the 
assignments of about 1,000 pupils who were granted changes



16

of assignment because of a change of their residence after 
July 27, 1961 (3S4a-386a). The form used by pupils seeking- 
transfers by reason of removal of residence is PI. Exh. 
14-1962; 400a. The transfers are made on an interim basis 
by the superintendent and then invariably are approved 
en masse at the next Board meeting (366a-367a).

On July 27, 1961, the school Board directed the super­
intendent to make a study of and to recommend new at­
tendance areas (353a). No attendance areas had been pre­
pared by the time the case was submitted to the Court on 
March 28, 1962 (336a); they were to be completed before 
the end of the term (386a-387a). Upon questioning by the 
Court as to the nature of the school zones the Board was 
preparing, defendants’ counsel indicated that the Board 
was preparing zones only for elementary schools (337a). 
The Board’s attorney steadfastly refused to commit the 
Board to a program of assigning every child living in the 
boundary of a particular school on the basis of a single 
set of zones (336a-337a).

The Court’s Supplemental Opinion states “ that the dual 
attendance area maps” have been eliminated (411a). Plain­
tiffs submit that this finding is clearly erroneous, in that it 
is contrary to the uncontradicted testimony by the defen­
dants themselves as described above to the effect that these 
zones have been used since July 27, 1961 (see 381a-387a; 
cf. Finding No. 10 at 408a).

The Board ’s Reassignm ent Practices and Procedures 
fo r  the 1959-60 and 1960-61 School Term s

This section describes the events surrounding the con­
sideration of plaintiffs’ reassignment requests prior to the 
commencement of the cases. The section which follows de­
scribes the procedures and standards used in reconsidering 
the applications of some of the plaintiffs at the direction 
of the Court prior to the 1961-62 term.



17

Prior to the 1959-60 school year no Negro child had been 
assigned to a white school (134a). On August 4, 1959, and 
again the following year on August 1,1960, the Board made 
initial assignments by publishing a paid notice in a local 
newspaper stating, in substance, that all pupils were re­
assigned to the schools they previously attended except 
those being graduated to another level and who were as­
signed to the school which normally served the graduates 
of their school. Students entering school for the first time 
were assigned on the basis of the white and Negro at­
tendance zone maps (see Finding No. 10 (273a) and Finding 
No. 21 (278a)). These assignments had the effect of con­
tinuing complete segregation in all of the Durham City 
schools (except in 1960-61 for the few Negroes at predomi­
nantly white schools who were continued in those schools).

In both school years groups of Negro pupils applied for 
reassignment to attend white schools (225 in 1959, and 205 
in 1960) (274a, 278a). In both years the School Board met, 
considered their reassignment requests, and assigned seven 
Negroes to three white schools {Ibid.). Each of the plain­
tiffs in the Wheeler and Spaulding cases appealed the 
denials of their requests within the time provided by the 
Board’s rules and all were notified that hearings on their 
appeals would be held by the Board {Ibid.).

In both cases these hearings were held after the school 
term had begun (281a). On both occasions, some of the 
adult plaintiffs appeared in person at the hearing, and the 
rest appeared by counsel who presented powers of attorney 
to the Board (275a-280a). The attorneys, representing both 
the present and absent plaintiffs, submitted individual writ­
ten statements for each plaintiff requesting desegregation 
of the school system and assignments without regard to 
race {Ibid.). Prior to this time, each plaintiff had filed a 
2-page written application form supplying all of the infor­
mation requested by the Board. (A  specimen of this form



18

appears at 396a-398a; the original applications submitted 
by each plaintiff are in the record as Exhibits 7 and 10.)3

3 The Board had not publicized the manner in which such ap­
plication forms might be obtained (149a-150a), nor had it pub­
licized that applications for change of assignment may be employed 
as a means whereby the Durham City schools may be desegregated 
(150a), nor has it generally distributed these forms to children 
to bring home to their parents (150a). The forms may be obtained 
only by an individual parent calling at the Superintendent’s office 
and obtaining forms for his own children (134a). They are issued 
to other persons only if they present powers of attorney from 
parents (135a-136a).

The stated purpose of this restriction is to “maintain at all times 
an accurate count by the secretary at the main office of pupils 
desiring to enter the Durham City schools, or to change from 
one school to another. . . . ” (134a). The Superintendent was 
asked (135a):

“ Q. Wouldn’t that account (sic) be more accurately served 
by the completed forms rather than by the forms that are 
issued ?

# # # # #
“A. It is essential that both the forms given out and the forms 
returned be known in the office, in order that we might be 
aware of any possible changes in enrollment; that is, we have 
a certain number of rooms in certain schools, we have certain 
teachers employed, and in order to provide that the school 
funds are used to best advantage, it is very necessary that 
we have every bit of information that we can secure regarding 
the possible enrollment.

“ Q. In that information furnished by the completed form, 
how can you secure any information of that sort by the issu­
ance of a blank form, when you issue the form, you don’t 
know the school to which the child is going to apply, you 
only know that when you get the completed form, isn’t that 
correct? A. It is essential that we keep a record of every bit 
of business that would affect enrollment.

“ Q. Now, if Mr. Pearson were to come to your office and 
say, ‘I would like 25 forms for children to transfer from the 
colored high school to the white high school,’ would those 25 
forms be issued to him?

# # # * #
“A. They would be issued to him if he had power of attorney 
to secure those forms.

“ Q. Is there a Board regulation requiring that he have 
a power of attorney? A. I don’t know.

“ Q. This is your own policy? A, This is our own procedure.
“ Q. Is this a superintendent’s policy rather than the policy 

adopted by a Board of Resolutions? A. This is simply the



19

At the hearing held September 21, 1959, the Board did 
not ask any questions of any of the parents who were 
present; it merely called the roll (215a-221a). At the end 
of the roll call Board chairman thanked plaintiffs’ attorney 
for expediting the proceeding, stating, “ You are very help­
ful in helping us through what otherwise might have been 
an unending task” (221a). Similarly, at the 1961 hearing 
the Board called the roll, offered the parents who were 
present an opportunity to make a statement, and recessed. 
A  few parents made statements asking for desegregation 
in addition to the general statements made by their at­
torneys (see, PL Exh. 13; see also Exh. B, 108a).

Prior to both hearings (in 1959 and 1960) the Board 
members agreed among themselves that no applications for 
admission of Negroes to white elementary schools would 
be granted (163a, 284a).

Board members took the position that a desire for a 
nonsegregated education was not an adequate reason for 
granting’ transfers (157a, 182a, 189a). The Board adopted 
no standards either substantive or procedural prior to 
either meeting; individual Board members followed their 
own consciences (160a, 162a, 171a, 177a, 284a).

Q. Were there any other such standards, or was 
each individual left up to his own ideas of what was 
right? A. Well—

* j {. 41. ji. 42.vp w

way it is being done and has been done except for inadvertent 
cases in which someone misrepresented his being the parent, 
as has happened in some cases, the forms were given out unin­
tentionally.

“ Q. Now, how is your policy of securing accurate informa­
tion furthered by the presentation of a power of attorney? 
A. That’s a legal question that I am not in a position to 
answer” (135a).



20

A. In the absence of specific formal regulations, I 
would say that it was up to the individual members 
of the Board.

Q. In other words, you do not know what standards 
the other Board members employed in arriving at their 
decisions, is that correct? A. That is correct.

Q. You follow your individual conscience, and each 
of the others follow their individual consciences, and 
none of them followed a standard that was formally 
set down, or informally set down? A. Yes, I would 
say that was followed, as was indicated by the votes 
on these applications (161a-162a).

Nor were procedural rules adopted (161a).

The burden of proof at these hearings was on the ap­
plicant (161a).

Certain criteria purportedly were used by individual 
members. Health was one, but Board members testified that 
they did not consult medical records (166a). I.Q. score was 
another, but Board testimony indicated lack of familiarity 
with I.Q. tests and not too much reliance was placed on this 
factor (171a). Grades were another factor, but there was 
testimony that the significance of grades was not fully 
understood (174a).

After the 1959 hearing the Board met in executive ses­
sion and immediately thereafter announced its decision 
that the pupils who had not been represented by a parent 
at the hearing were rejected, their failure to appear being 
stated as the reason for rejection (93a et seq.). All those 
pupils who were present were also rejected without any 
reason being given (ibid,). Decision on each child was 
made between 8:00 and about 10 p.m. (101a, 215a). The 
1960 meeting was similar to the prior meeting (Pl.’s Exh. 
13). At the 1960 meeting decision as to each child was made 
between 9 and 10:00 p.m. (108a, 113a). In 1959 the first 
time the applications were seen by the Board was at the



21

meeting (176a); the Board did not request copies prior 
to the 1959 meeting (176a). No prepared information was 
furnished to the Board. Verbal summaries were made by 
the Superintendent (175a). In 1960 it was said: “ . . . prob­
ably more preliminary discussion in the form of discussion 
and study of the situation took place this year [1960] 
than last year” (208a).

Those applicants who did not attend the meeting were 
rejected even though in some instances excuses were given 
such as emergency hospitalization of a member of the 
family, attendance at a City Council meeting as City Coun­
cilman (see PI. Exh. 12, 219a). Powers of attorney were 
produced at the meeting for those not present, but this 
was held not to be a substitute for personal appearance. 
The Board has taken the position that “ a careful reading 
and consideration of the purported powers of attorney, 
clearly showed that they did not authorize or empower the 
said attorneys or any of them to represent or appeal for 
the said parents or any of them at the hearing” (75a). 
However, the powers of attorney for the 1961 meeting did 
specifically mention the hearing in question (PL Exh. 11), 
but the absent applicants were rejected nonetheless.

Prior to and during both the 1959-60 and 1960-61 school 
terms large numbers of pupils were granted transfers 
routinely by the superintendent on the basis of a change of 
residence (144a-148a). These “ administrative transfers” 
involving white children to white schools and Negro children 
to Negro schools are obtained by submitting a special ap­
plication form which is different from that plaintiffs had 
to submit (401a). These transfers are generally routinely 
approved by the school Board after being granted on an 
interim basis by the superintendent without the use of 
any of the assignment criteria applied to plaintiffs (148a; 
367a; 374-a-375a). No Negro child has been assigned to a



white school by moving his residence closer to it under 
this change of residence transfer procedure (379a-380a).

Standards and Procedures on Reconsideration o f  
Plaintiffs’ Transfer Applications

After the Court’s opinion of July 20, 1961, directed the 
Board to reconsider the applications of those plaintiffs who 
had attended the two appeal hearings, the Board adopted 
written assignment criteria for the first time (299a-300a). 
The Board then proceeded to consider each of the pupils 
at meetings held July 27 and July 31, 1961. At these meet­
ings the superintendent made oral presentations of facts 
about each pupil (342a-349a). Prior to the meeting the 
superintendent had specially employed two school adminis­
trators to drive about the City in an automobile measuring 
the distance between each child’s home and the nearest 
Negro and white schools to a tenth of a mile (343a-345a, 
377a-378a). The superintendent also had gathered informa­
tion about each pupil’s scholastic record, attendance record, 
health record and conduct record, and he had available 
general figures indicating which schools were expected to 
be overcrowded when school opened (342a-349a). In gen­
eral, the Board action on these pupils, as reflected by its 
report (298a-325a), followed this pattern:

(1) Negro pupils residing closer to all-Negro schools 
were denied on this ground (361a).

(2) Some Negro pupils residing equal distances between 
the Negro and white schools were denied transfers for this 
reason (362a).

(3) Negro pupils whose academic records were not at 
least average were denied transfers on this ground (362a).

(4) Several Negro pupils were denied transfers on the 
ground that the white schools that they sought to enter were



23

ground that the white schools that they sought to enter were 
overcrowded (see Report, 298a et seq.; cf. 331a).

(5) Poor attendance or conduct records were also men­
tioned in one or two cases (304a, 322a).

Failure to meet any one of these criteria was ground 
for disqualification (see Report, 298a et seq.; cf. 347a-348a). 
The Negro student seeking transfer had to pass muster on 
all grounds. For example, Negro pupils living closer to 
white schools than to Negro schools were disqualified if 
they had below average academic records or if the white 
school was overcrowded. Similarly, Negro pupils with 
above average academic records were denied transfers if 
they lived closer to the Negro schools or if the white schools 
were overcrowded. In like fashion the overcrowding cri­
teria served to disqualify pupils but was not used affirma­
tively to justify transfers where Negro schools were more 
crowded than the white schools.4 A few examples demon­
strate this. The figures given were those available to the 
board in July 1961 (395a). Four Negro pupils5 attending 
the all Negro Whitted School (19% overcrowded) were 
denied transfers to the Carr Jr. High (8.9% overcrowded) 
on the basis of overcrowding at Carr, although they lived 
closer to Carr Junior High. Six Negro pupils6 assigned to 
the all Negro W. G. Pearson School (12% overcrowded)

4 School capacity and overcrowding statistics as estimated on
July 27, 1961, and actual enrollment figures as of October, 1961 are 
indicated in PI. Exhibit 12, 395a. There were some pupils living 
outside the school district who paid tuition to attend the city schools 
who were permitted to attend various public schools (356a, 379a, 
402a). Thus while Negro pupils were assigned to the overcrowded 
Whitted Junior High, including some who lived near the Brogden 
Junior High, white pupils outside the district were allowed to 
attend Brogden (357a).

6 See 319a-320a, re : Bernadette Strudwick, Cynthia Bullock, 
Linda Mae Bullock, James O’Dell Daniel, Jr.

6 See 303a, re : Barbara Ann Cole, Elvin Cole, Rose Mary Cole, 
Anna Louise Dunston; 312a, re : Pauline Valines and Larry Valines.



24

were denied transfers to Moreliead School (2.8% over­
crowded) on the basis of overcrowding at Moreliead and 
the fact that they lived about the same distance between the 
two schools. Another pupil7 living closer to Morehead than 
to Pearson was denied on the basis of overcrowding.

Similarly a Negro student8 living the same distance be­
tween the all Negro Burton School (9.4% overcrowded) and 
the white Edgmont School (undercapacity) was rejected 
on residence grounds, as was another9 living equal dis­
tances between Pearson (12% overcrowded) and Edgmont 
(under capacity).

The residence criteria, the academic achievement criteria, 
and the overcrowding criteria were all applied to these 
plaintiffs in a special fashion which had not been used 
before and which has not been used since plaintiffs’ appli­
cations were considered. As indicated above, students are 
routinely assigned on the basis of school zones when they 
enter the system, when they change their residence, and 
when they are graduated from one level to another. They 
attend the schools in their zones without regard to their 
academic records, conduct records, attendance records, or 
to whether there is a closer school. This was the procedure 
used to assign all other pupils for the 1961-62 school term, 
including those assigned before and after plaintiffs were 
considered.

Measurement of the distance between plaintiffs’ homes 
and the white and Negro schools to a tenth of a mile was 
a procedure that had not been used to assign pupils before 
or since it was applied to plaintiffs (378a). With regard 
to the academic achievement standard, it was made plain

7 See 308a, re : Larry Johnson.
8 See 318a, re : Leroy Mason.
9 See 319a, re : Wanna Pay Smoke.



25

that there were pupils attending all of the schools plain­
tiffs sought to enter with similar academic records to plain­
tiffs’ (872a). The same was true of the conduct and at­
tendance factors {ibid.). Overcrowding has generally been 
handled by modifying school zones (360a-361a), rather than 
by denying pupils assignment within their zones as was 
done with plaintiffs.

ARGUMENT

Introductory

The Court below held in its supplemental opinion that 
“ since the minor plaintiffs have clearly demonstrated that 
they are not interested in a protection of their individual 
rights under the Constitution of the United States, and do 
not desire that their individual rights be determined and 
enforced by this court, the court is left no alternative other 
than to dismiss the action”  (413a). Accordingly, the Court 
dismissed the case (414a).

But this statement in the opinion is erroneous. The 
Wheeler complaint asked for an injunction against assign­
ing plaintiffs to any school other than the one to which they 
would be assigned if they were white, from operating a 
biracial school system, from maintaining a dual scheme or 
pattern of school zone lines based upon race and color, from 
enjoining defendants from assigning students on the basis 
of race, enjoining defendants from assigning teachers, prin­
cipals and other school personnel on the basis of the race 
and color of the children attending the school to which the 
personnel is assigned, and from subjecting Negro children 
seeking assignment, transfer, or admission to criteria not 
required of white children seeking assignment, transfer, or 
admission to schools of the City of Durham. In the alter­
native, the complaint prayed for a decree directing defen­



26

dants to present a complete plan within a period of time 
to be determined by the Court for the reorganization of 
the school system of the City of Durham on a nonracial 
basis. The prayer asked that the Court retain jurisdiction 
pending approval of full implementation of defendant’s 
plan (19a-20a).

The complaint in the Spaulding case contained a similar 
prayer (54a-55a). The supplemental complaint once more 
prayed for the relief requested in the original complaint 
(58a). The objections to defendant’s report contained like 
prayers (331a-332a). In colloquy at the court proceedings 
of March 28,1962, counsel made clear that plaintiffs sought 
an order restraining defendant from maintaining a pattern 
of segregation, as well as an order declaring the rights of 
particular children to attend particular schools (334a-336a).

1. Plaintiffs submit that their individual constitutional 
rights are infringed so long as a school system based upon 
dual racial zones is maintained and they are assigned pur­
suant to those zones subject to the burden of transferring 
out under the pupil assignment law. Therefore, plaintiffs’ 
individual constitutional rights will not be secured unless 
the Court enters an order requiring the desegregation of the 
Durham City schools. In this sense, these pupils cannot 
secure their rights without a reorganization which also 
abolishes public school segregation as it affects every Negro 
child in the City of Durham.

2. Beyond this, plaintiffs submit that those of them who 
have “ exhausted” the North Carolina pupil assignment rem­
edy are entitled to an order, under Buie 23(a)(3) of the 
Federal Buies of Civil Procedure, adjudicating the rights 
of Negro children similarly segregated in the City of Dur­
ham. The prerequisite to maintaining this suit in the fed­
eral court having been satisfied by “ exhaustion,” appellants



27

may present to the United States courts every issue in the 
case—in a manner permitted by the Federal Rules.

3. Moreover, that others in the City of Durham did not 
all pursue the administrative course, does not place them 
in a class different from the one occupied by appellants 
who did “ exhaust.” The evidence demonstrates that the 
administrative remedy is nothing but a sham, a technique 
employed by Durham to frustrate, not effectuate desegre­
gation. For this reason persons who did not “ exhaust” are 
not cut off from enjoying the consequences of federal ju­
dicial relief. Those plaintiffs who did not attend the hear­
ings, but were represented there by counsel, took every 
reasonably necessary step to “ exhaust” their remedies, and 
did so. But even if they may be held not to have “ ex­
hausted,” they, as segregated public school children in 
Durham, are entitled to desegregation where the remedy 
is, as this one conclusively has been shown to be, merely 
a mask.

I.
Plaintiffs will be denied relief to which they are en­

titled as individuals so long as Durham maintains dual 
racial school zones.

The record is clear that the School Board has used dual 
racial zones at all relevant times in this case (272a, 273a- 
274a, 278a, 290a, 359a-360a, 381a-384a). Although the Dis­
trict Court in its July 1961 opinion held such racial zones 
invalid (290a), and the School Board on July 27, 1961, 
said it was discontinuing the use of such zones “ effective 
immediately” (299a), the Court did not order the Board to 
cease using such zones and the Board did not adopt a single 
set of zones when it passed this Resolution (353a-354a). It 
merely ordered that a study of zoning be made. At the



2 8

end of the 1960-61 school term the Board notified all pupils 
on their report cards of their assignments for the 1961- 
1962 school term. Pupils already in the system were as­
signed initially back to the schools they previously attended, 
or to the “ next higher school serving the school they had 
attended” as determined by the school zoning system (359a- 
360a). First grade pupils who pre-registered during the 
spring of 1961 for the coming year were again assigned 
on the basis of the school zones used in prior years; late 
registrants, including those who were assigned after July 
27, 1961 (the date when the Board resolved to “ discon­
tinue” use of the dual zones), were also assigned on the 
basis of the old school zones (381a-384a). Moreover, it 
employed these zones in assigning over 1,000 pupils who 
moved from one section of Durham to another after July 
27 (384a-386a).

There are only two high schools in the City of Durham 
and all Negroes are initially assigned to the Negro high 
school no matter where they live (270a, 364a-365a); all 
whites are assigned to the white high school no matter where 
they live (365a), even though some Negroes live nearer to 
the white school and some whites live nearer to the Negro 
school (364a-366a). No Negroes have initially been as­
signed to a white school (380a). Negroes living nearer the 
white junior high and elementary schools have been and 
continue to be initially assigned to the Negro schools farther 
from their homes (357a, 260a, 266a).

The fundamental requirement of Brown v. Board of Edu­
cation, is that school boards must effect a “ transition to 
school systems operated in accordance with the constitu­
tional principles set forth in [the Supreme Court’s] May 
17,1954, decision.” Brown v. Board of Education of Topeka, 
349 U. S. 294, 300 (1955). Brown also holds that while 
effectuating “ transition to a racially nondiscriminatory



29

school system . . . the courts will retain jurisdiction . . . ” 
Id. at 301.

Cooper v. Aaron, 358 U. S. 1, 7 (1958), calls for “ the 
earliest practicable completion of desegregation, and . . . 
appropriate steps to put their program into effective opera­
tion . . . ” as well as for “ a prompt start, diligently and 
earnestly pursued, to eliminate racial segregation from the 
public schools.” This Circuit consistently has held that 
the Board may not initially assign on the basis of dual 
racial school zones and then require Negro children to 
pass muster under a pupil assignment formula in order 
to achieve desegregation secured to them by the Fourteenth 
Amendment to the United States Constitution. Jones v. 
School Board of the City of Alexandria, 278 F. 2d 72 
(4th Cir. 1960); Hill v. School Board of the City of Nor­
folk, 282 F. 2d 473 (4th Cir. 1960). In Dodson v. School 
Board of the City of Charlottesville, 289 F. 2d 439 (4th 
Cir. 1961), this Court held at 443:

In respect to the assignment of students to high 
schools, the application of the plan is even more of­
fensive to the constitutional rights of Negroes. All 
white students are automatically assigned initially to 
Lane High School, regardless of their place of resi­
dence or level of academic achievement. All white 
public high school students in the city presently attend 
Lane. Absolutely no assignment criteria are applied 
to them. On the other hand, residence and academic 
achievement criteria are applied to Negro high school 
pupils. As the plan is presently administered, if a 
colored child lives closer to Burley than to Lane, he 
must attend Burley High School. Moreover, even if a 
Negro student does live closer to Lane, he may not 
be permitted to attend it unless he performs satis­
factorily on scholastic aptitude and intelligence tests 
— a hurdle white students are not called upon to over­
come.



30

Such administration of public school assignments 
is patently discriminatory. As pointed out previously, 
the law does not permit applying assignment criteria to 
Negroes and not to whites . . .

More recently Judge Michie in Jackson v. School Board 
of the City of Lynchburg, 201 F. Supp. 620, 629 (W. D. 
Ya. 1962) held:

“ It is obvious that, if a general injunction requiring 
desegregation can never be issued against a school 
board or other assignment authority in a state in which 
a pupil placement act is in effect, then the courts can 
never perform this supervisory function which the 
United States Supreme Court has told them they 
should perform” [in Brown v. Board of Education, 
349 U. S. 294 and Cooper v. Aaron, 358 U. S. 1].

These holdings are in complete accord with those of other 
circuits. See, Northcross v. Board of Education of the City 
of Memphis (6th Cir. No. 14642, March 23, 1962, not yet re­
ported) ; Gibson v. Board of Public Instruction of Dade 
County, Florida, 272 F. 2d 763, 767 (5th Cir. 1959); Man­
nings v. Board of Public Instruction of Hillsboro County, 
Florida, 277 F. 2d 370 (5th Cir. 1960).

The individual plaintiffs cannot obtain their constitu­
tional rights while continuing to attend school in a segre­
gated system. A system in which students and teachers 
are assigned on a racial basis is such a segregated system. 
In Gibson v. Board of Public Instruction, 272 F. 2d 763, 
766 (5th Cir. 1959), in reviewing evidence of a continuing 
policy of racial segregation the court expressly noted that 
continuation of the policy was evidenced by the fact that, 
“At the time of trial, in the Fall of 1958, complete actual 
segregation of the races, both as to teachers and as to 
pupils, still prevailed in the public schools of the County.”

Moreover, in Northcross v. The Board of Education of 
Memphis, supra, the complaint prayed for desegregation of



31

the school system, including the assignment of school per­
sonnel without regard to race. The Sixth Circuit ordered 
an injunction against operation of a “biracial school 
system.” As in Northcross:

Minimal requirements for non-racial schools are geo­
graphic zoning, according to the capacity and facilities 
of the buildings and admission to a school according 
to residence as a matter of right. “ Obviously the 
maintenance of a dual system of attendance areas based 
on race offends the constitutional rights of the plain­
tiffs and others similarly situated and cannot be tol­
erated.” Jones v. School Board of City of Alexandria, 
Virginia, 278 F. 2d 72, 76, C. A. 4.

#  #  #  #  #

The trial judge found that the defendants do not 
operate a compulsory biracial school system. It might 
he said that by reason of the transfer aspect of the 
law, it is not compulsory. The real question is, Do 
they maintain separate schools? The first Brown case 
decided that separate schools organised on a racial 
basis are contrary to the Constitution of the United 
States.

The inescapable conclusion is that at the time of 
the judgment in this case the schools of Memphis 
were operated on a basis of “ white schools” for white 
children and “Negro schools” for Negroes. The find­
ings of fact that the school zone maps introduced in 
evidence have no significance as evidence of a biracial 
school system, and that the defendants do not maintain 
a dual schedule or pattern of school zone lines, based 
upon race or color, are contrary to the evidence and 
clearly erroneous. As we have previously said, the 
Pupil Assignment Law cannot serve as a plan to 
organize the schools as a non-racial system.

More to the point, appellants certainly cannot obtain 
these rights under the cloud of a pupil assignment law 
which is used to impede rather than to effectuate desegre­
gation.



32

The matter was recently stated most forcefully by Judge 
J. Skelly Wright in Bush v. Orleans Parish School Board,
------  F. S u p p .------ (E. D. La., April 3, 1962, C. A. No.
3630, not yet reported), in ruling upon the rights of New 
Orleans school children, most of whom did not participate 
in the pupil assignment procedures. That case was much 
like this one and the Court said:

The Board maintains that it was justified in apply­
ing the pupil placement law to the desegregation order 
of this court in an effort to make certain that the chil­
dren applying to “ transfer” were intellectually and 
psychologically acceptable in the schools they sought 
to attend. The Board makes no explanation for its 
failure to test all children seeking to enter the first 
grade, or any other grade, in an effort to determine 
whether or not they were intellectually and psycho­
logically acceptable in the segregated schools to which 
they were automatically assigned. This failure to test 
all pupils is the constitutional vice in the Board’s test­
ing program. However valid a pupil placement act 
may be on its face, it may not be selectively applied.* 
Moreover, where a school system is segregated,** there

* “ The admission of thirteen Negro pupils, after a scholas­
tic test, which the white children did not have to take, 
out of thirty-eight who made application for transfer, 
is not desegregation, nor is it the institution of a plan 
for non-racial organization of the Memphis sehool sys­
tem.” Northcross, et al. v. Bd. o f Educ., et al., 6 Cir.,
------  F. 2d ------  (2/23/62), p. 10, slip opinion. See
also Mannings v. Board o f PuM ic Instruction, 5 Cir., 
277 F. 2d 370, 374; Jones v. School Board o f C ity of 
Alexandria, Virginia, 4 Cir., 278 F. 2d 72, 77; D ove v. 
Parham, 8 Cir., 282 F. 2d 256, 258. [Footnote in Judge 
Wright’s opinion.]

** “ Obviously the maintenance of a dual system of attend­
ance areas based on race offends the constitutional rights 
of the plaintiffs and others similarly situated and cannot 
be tolerated. * * * In order that there may be no doubt 
about the matter, the enforced maintenance of such a 
dual system is here specifically condemned.” Jones v. 
School Board o f Alexandria, Virginia, supra, 76. [Foot­
note in Judge Wright’s opinion.]



33

is no constitutional basis whatever for using a pupil 
placement law.*** A  pupil placement law may only be 
validly applied in an integrated school system, and 
then only where no consideration is based on race.**** 
To assign children to a segregated school system and 
then require them to pass muster under a pupil place­
ment law is discrimination in its rawest form.

*** Compare Gibson v. Board o f Public Instruction o f Dade 
County, 5 Cir., 246 F. 2d 913, 914; id., 272 F. 2d 763, 
767. [Footnote in Judge Wright’s opinion.]

**** “The Pupil Assignment Law might serve some purpose in 
the administration of a school system but it will not 
serve as a plan to convert a biracial system into a non- 
racial one.” N orthcross, et al. v. Bd. o f Educ., et al., 
supra, p. 6, slip opinion. See also id., p. 8: “ Since that 
decision [Brown v. Board of Education, 347 U. S. 483], 
there cannot be ‘Negro’ schools and ‘white’ schools. There 
can now be only schools, requirements for admission to 
which must be on an equal basis without regard to race.” 
[Footnote in Judge Wright’s opinion.]

For these reasons, the dual zones should be abolished and 
plaintiffs have standing to raise that issue—for abolition 
of dual zones is the only way the individual plaintiffs may 
secure their individual rights.

II.

Appellants who concededly exhausted administrative 
remedies may present to the United States Courts every 
issue over which they have jurisdiction in this case.

The opinion of the court below found that a large number 
of the appellants “ exhausted” their administrative rem­
edies. Without conceding that others did not or that “ ex­
haustion” is necessary under the facts of this case, appel­
lants submit that nonetheless those who “ exhausted” may 
present to the United States Courts all of the issues of 
racial segregation arising out of the maintenance of a dual 
racial school system in the City of Durham as they affect



34

appellants and all others similarly situated, Carson v. 
Warlick, supra, dealt “with the administrative procedure 
of the state and not with the right of persons who have 
exhausted administrative remedies to maintain class actions 
in the federal courts in behalf of themselves and others 
qualified to maintain such actions.” 238 F. 2d at 729. This 
is consistent with the fundamental principles of jurispru­
dence set forth in Yick Wo v. Hopkins, 118 U. S. 356 (1886).

Holt v. Raleigh City Board of Education, 265 F. 2d 95, 
98 (4th Cir. 1959), held that “ the District Judge might 
not have felt obliged to dismiss the complaint if  he had 
reached the merits of the case. * * * ” Here, large num­
bers of children have “ exhausted” their administrative rem­
edies. They have overcome the hurdle prerequisite to 
bringing action in the federal court. The door is now open 
to them, as indicated in Carson and Holt, to assert rights 
secured by the Fourteenth Amendment to the United States 
Constitution on behalf of all members of the class of citi­
zens who are discriminated against in similar fashion. That 
school segregation suits may be maintained as class actions 
on behalf of all children whose rights have been denied 
within a school district is so well settled as to be common­
place. See Allen v. County School Bd. of Prince Edward 
County, Va., 266 F. 2d 507 (4th Cir. 1959); Bush v. Orleans 
Parish School Board, 242 F. 2d 156, 165 (5th Cir. 1957); 
Northcross v. Board of Education of the City of Memphis, 
supra; Gibson v. Board of Public Instruction of Dade 
County, Florida, supra; Norwood v. Tucker, 287 F. 2d 798 
(8th Cir. 1961), reversing Aaron v. Tucker, 186 F. Supp. 
913 (E. D. Ark. 1960).

Indeed, the “ School Segregation Cases”  themselves, 
Brown\. Board of Education, supra, were class actions and 
were regarded as such by the United States Supreme Court. 
It hardly can be denied that the questions of law and fact 
raised by plaintiffs who “ exhausted” are common to chil­



35

dren throughout the City of Durham, nor given the large 
number of plaintiffs and the exhaustive presentation of 
facts in this record, could it be maintained that plaintiffs 
have not adequately represented the interests of other mem­
bers of the class.

III.

That children in the City o f  Durham other than plain­
tiffs did not pursue the administrative course does not 
bar them from  enjoying their constitutional right to 
desegregation because the administrative remedies pro­
vided by Durham are a sham.

In SJmttlesworth v. Birmingham. Board of Education, 
358 U. 8. 101, the United States Supreme Court, while 
affirming a District Court decision, 162 F. Supp. 372 (N. D. 
Ala. 1958), which refused to hold unconstitutional on its 
face the Alabama Pupil Assignment Law, adverted specifi­
cally to “ the limited grounds on which the District Court 
rested its decision, 162 F. Supp. 372, 384.” The District 
Court (at 384) held that it was refraining from striking 
down the Pupil Assignment Law on its face because that 
law furnished “ the legal machinery for an orderly admin­
istration of the public schools in a constitutional manner 
by the admission of qualified pupils upon a basis of in­
dividual merit without regard to their race or color.” The 
Court presumed that the law would be so administered. It 
held, however, that “ [i]f  not, in some future proceedings 
it is possible that it may be declared unconstitutional in 
its application” (Ibid.).

These holdings are consistent with the holding of this 
Circuit in Carson v. Warlick, supra, which reserved the 
question of “whether [the North Carolina Pupil Assignment 
Law] . . . has been unconstitutionally applied . . . ” 238 
F. 2d 724, 728 (4th Cir. 1956).



36

This Court observed that the administrative remedy had 
“ not been invoked” (238 F. 2d at 728). This Court warned, 
however, that “ the federal courts should not condone dila­
tory tactics or evasion on the part of state officials in 
according to citizens of the United States their rights 
under the Constitution . . . ” (238 F. 2d at 729).

Similarly, in Covington v. Edwards, 264 F. 2d 780, 783 
(4th Cir. 1959), this Court in assuming that the North 
Carolina Pupil Assignment Law was an adequate remedy 
to achieve desegregation wrote that “ [i]f  there were no 
remedy for such inaction, the federal court might well make 
use of its injunctive power to enjoin the violation of the 
constitutional rights of the plaintiffs . . . ”

This case comes to this Court upon a meticulously de­
tailed record demonstrating that the North Carolina Pupil 
Assignment Law does not provide a means whereby Negro 
children in Durham can achieve their constitutional rights 
but has been used, in the words of Carson v. Warticle, as a 
“ dilatory tactic” and as an “ evasion.”

Appellants submit that while many of them did “ ex­
haust” , the North Carolina procedure as applied in Dur­
ham need not have been exhausted to warrant an order 
requiring their admission to the schools which they would 
have attended if white.

Before proceeding to a demonstration (which undoubtedly 
is already implicit from a reading of the Statement of 
Facts), that the Pupil Assignment Law as applied in Dur­
ham is not a genuine remedy, appellants first address 
themselves to the question of whether those appellants 
who did not attend the administrative hearings did “ ex­
haust” the so-called administrative remedies. Appellants 
submit that those of their number who did not attend the 
hearings were not absent from any meaningful portion of



37

the procedure. The hearings consisted merely of a calling 
of the roll and a statement by appellants’ counsel that 
they desired to be assigned to school without regard 
to race. As the court below noted, all other relevant in­
formation was in the hands of the school Board (288a). 
The Board did nothing and requested nothing at the hear­
ings which would have warranted attendance by this group 
of appellants. This plainly distinguishes the facts from 
those in the Holt case, supra, where the school Board was 
seeking information from the absent parents. The Board, 
prior to the hearings, had made up its mind to reject 
elementary school applicants. It is noteworthy that the 
Board refused the powers of attorney submitted at the 
first hearing on the ground that the powers did not spe­
cifically authorize representation at that hearing (34a), and 
refused to accept the powers of attorney in lieu of a per­
sonal appearance at the second hearing even though those 
documents did specifically refer to the hearing (280a). It 
is obvious that the Board was merely “ fencing” with plain­
tiffs. In any event, the entire pupil assignment procedure 
is so riddled with unfairness and so obviously a hedgehog 
erected against desegregation rather than a vehicle aiding 
its achievement, that no one in the City of Durham need 
employ it as a prerequisite to securing Federal constitu­
tional rights.

All plaintiffs filed their applications in proper time and 
none were denied because of failure to file on time (274a- 
275a, 279a). While the Court held that “none of the ap­
plications were denied for failure to supply adequate in­
formation” (288a) and that “ most of the pertinent informa­
tion was available to the defendant Board from the school 
records in its possession . . . ” (288a), it criticized plain­
tiffs saying they had no valid excuse for not supplying 
data concerning approximate distances to the various 
schools and other pertinent data. But plaintiffs had all



38

filed a two page questionnaire as required by the Board 
giving all information requested (397a-399a).

Whatever additional information the Board may have 
required was in no way indicated to plaintiffs because 
the Board had no criteria or standards, procedural or sub­
stantive by which to make a decision (290a-291a). Indeed, 
one Board member who admitted that the Board had pub­
lished no rules as to the evidence parents should present 
said, “ It was my feeling that it was up to the applicant to 
submit reasons why the appeal should be honored” (160a- 
161a).

Absent such standards, it is impossible to see what in­
formation plaintiffs were expected to furnish. In any event, 
the reason why plaintiffs sought transfer, that is, that 
they desired not to be segregated in violation of the Four­
teenth Amendment to the United States Constitution, was 
deemed inadequate (157a-158a, 182a). That this segrega­
tion in fact existed has not been and cannot be contra­
dicted; no evidence presented at the hearing was needed 
on this score.

Apart from the fact that plaintiffs should not have been 
faulted at the hearing for failure to provide unnecessary 
and undefined information or for failure to appear when 
the hearing consisted of nothing but calling the roll, other 
circumstances demonstrate the futility of the procedure. 
The procedure itself was from the start not designed to 
achieve desegregation. Pupil assignment forms were made 
difficult to obtain, and the Board did not publicize the 
procedure as a means whereby desegregation might be 
fostered. The hearings were scheduled for a time after 
the commencement of school, and in advance of hearings 
the board decided not to approve any applications for 
elementary school children (165a). One Board member 
frankly stated that even if 250 of the plaintiffs presented



39

suitable transfer applications, she thought it advisable to 
desegregate at “a slower pace” (181a-182a).

Not only did the Board have no standards (290a-291a). 
Board members who followed their own consciences (162a, 
171a, 178a) did not implement their individual standards. 
For example, where health was for some a criterion medical 
records were not inspected (166a). While I.Q. scores were 
for some a standard, their significance was not fully under­
stood and not too much reliance was placed upon them 
(172a, 181a). While grades were a criterion, their signifi­
cance was not fully understood (172a-174a). While safety 
was a standard, there is no indication that it was applied 
in any case (166a). Cf. Schware v. Board of Bar Examiners, 
353 U. S. 232 (1957) (administrative decision denied due 
process where based on no evidence rationally related to 
standards of statute).

Although there was an a priori decision not to admit 
elementary school children (292a) and an obvious lack of 
fairness and reasonableness in the exclusion of junior and 
senior high school students, where no reasons for denial 
were given (292a), the Court refused to order the admis­
sion of these plaintiffs to the “white” schools of their zone. 
Instead, it referred the matter back to the Board for recon­
sideration (293a-294a), and specifically exonerated the 
Board from reconsidering those who had not appeared at 
the futile hearings (293a).

The Board responded by once more rejecting all but six 
of those whose applications it was ordered to reconsider, 
and persisted in applying the grossest type of racially dis­
criminatory standards. First, the Board used distance as 
a standard only for these Negro students, rejecting all who 
lived closer by one-tenth of a mile to the Negro schools than 
to the white schools. All students other than these Negroes 
were assigned on the basis of zones. Even Negro students



40

living nearer white schools were rejected if they were only 
slightly nearer those schools. Negro students living an 
equal distance between white and colored schools also were 
rejected (362a). A  white student living in the white school 
zone was admitted to the white school even if he lived 
closer to the colored school (365a). These students were 
therefore assigned on a racial basis different from that 
used in the school system generally. Dodson v. School 
Board of City of Charlottesville, supra.

Second, Negro students were required to have average 
or above average grades to secure admission to white 
schools (362a); but no academic criteria are used in Dur­
ham to test pupils already in the schools or those initially 
assigned contemporaneously with plaintiffs or following 
plaintiffs’ assignment. Durham routinely assigns children 
to the schools of their zones (383a), and each school accom­
modates pupils with a range of academic ability who are, 
however, to some extent grouped by ability in the schools 
after admission. It is an obvious racial discrimination to 
apply this academic standard to plaintiffs and not to others. 
Cf. Dodson v. School Board of City of Charlottesville, 
supra.

Third, overcrowding was used as a reason for excluding 
plaintiffs from schools to which they would have been as­
signed if white. Overcrowding, however, was applied only 
to exclude plaintiffs, not to admit them. That is, even 
though a white school might be less crowded than a Negro 
school, this was not considered to be a basis for transfer­
ring the Negro child from the Negro school to the white 
school. If both Negro and white schools were overcrowded, 
the Negro child was not admitted to the white school even 
though the Negro school was more overcrowded. Further, 
the special overcrowding criteria were applied individually 
to these plaintiffs while overcrowding is generally con­



41

trolled by modifying school zones. Overcrowding cannot 
justify segregation, Clemons v. Board of Education, 228 
F. 2d 853 (6th Cir. 1956).

The gross discriminatory quality of these standards is 
best demonstrated by the fact that when white children have 
sought transfer to white schools and Negro children have 
sought transfer to Negro schools because of change of resi­
dence, the application and procedure for change of assign­
ment has been a simple one. No procedural roadblocks were 
placed in the way of the applicant and the application was 
granted routinely on the basis of zones without the inter­
position of any of the standards applied to these plaintiffs.

The record, therefore, demonstrates without any contra­
diction whatsoever that this case falls within the area 
reserved by SJmttlesworth, Carson and Covington, in that 
this is a case where the pupil assignment law is employed 
in a discriminatory way for the purpose of frustrating de­
segregation and that, therefore, plaintiffs and all other 
children similarly situated in the City of Durham cannot 
be barred from desegregation because of the mere existence 
of that law.



42

IY.
Plaintiffs are entitled to an order requiring the City 

o f  Durham to set up a nonracial system o f  school 
assignments, or as a temporary measure, pending re­
organization, to an order admitting them to schools they 
would attend if they were white.

The complaints asked, in the alternative, for:

a decree directing defendants to present a complete 
plan, within a period of time to be determined by this 
Court, for the reorganization of the school system of 
the City of Durham, North Carolina, on a unitary, 
nonracial basis which shall include the assignment of 
children on a nonracial basis, the assignment of teach­
ers, principals and other school personnel on a non­
racial basis, the drawing of school zone lines on a 
nonracial basis, and the elimination of any other dis­
criminations in the operation of the school system 
based solely upon race and color (55a-56a).

The Constitution requires no less, and plaintiffs and the 
class they represent are entitled to no less. But the indi­
vidual plaintiffs who went through the travail of the 
administrative remedy and the lengthy, complex judicial 
proceedings are, pending this reorganization (to be carried 
out pursuant to criteria of Brown v. Board of Education, 
supra, and Cooper v. Aaron, supra) entitled at the very 
least to an immediate order requiring their individual ad­
mission to the schools to which they would have been as­
signed if they were white. This at least would protect 
these litigants should reorganization take any time. Plain­
tiffs’ white contemporaries similarly situated were so as­
signed. Despite the Court’s statement to the contrary, 
the prayers and the colloquy at the conclusion of the case 
asked for the assignment of plaintiffs’ children on this 
basis as an alternative remedy. No reason has been given 
why they should continue to suffer racial discrimination 
pending reorganization of the system. Other courts have,



43

pending complete reorganization of the school system, or­
dered the granting of such relief. Evans v. Ennis, 281 
F. 2d 385 (3rd Cir. 1960); Bush v. Orleans Parish School
Board,------F. Supp. —  (E. D. La., Apr. 3,1962, C. A. No.
3630, not yet reported); Houston Independent School Dis­
trict v. Ross, 282 F. 2d 95 (5th Cir. 1960) ;  cf. Board of 
Education of St. Mary’s County v. Groves, 261 F. 2d 527 
(4th Cir. 1958) (individual exceptions to general plan); 
Pettit v. Board of Education of Harford County, 184 F. 
Supp. 452 (D. Md. 1960) (same).

CONCLUSION

W herefore, appellants submit that the judgment o f  
the court below should be reversed and the cause re­
manded with directions for  the entry o f  an injunction 
granting the relief prayed.

Respectfully submitted,

J a c k  G reen berg

J a m e s  M. N a b r it , III
D e r r ic k  A. B ell

10 Columbus Circle 
New York 19, New York

C onrad  O . P earson

M. H u g h  T h o m p s o n

W il l ia m  A. M a r s h , J r .
2031/2 East Chapel Hill Street 
Durham, North Carolina

J . H . W h e e le r

116 West Parrish Street 
Durham, North Carolina

F. B. M cK issic k

209% West Main Street 
Durham, North Carolina

Attorneys for Appellants