Covington v. Edwards Appellants' Brief and Appendix

    < < v \ -

No. 7802

Mmirit §>tatw Olimrt nf Appeals
F oe t h e  F o u r t h  C ir c u it  

---------------------- ----------------------------

H e l e n  C o v in g t o n , et al.,

Plaintiff's-Appellants,
—vs.—

J. S. E d w a r d s , Superintendent of Schools of Montgomery 
County, North Carolina, et al.,

Defendants-Appellees.

APPELLANTS’ BRIEF AND APPENDIX

J . K e n n e t h  L ee  
P. O. Box 645
Greensboro, North Carolina

C o n r a d  0 .  P e a r s o n

203% E. Chapel Hill Street 
Durham, North Carolina

T h u r g o o d  M a r s h a l l  
J a c k  G r e e n b e r g

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs



TABLE OF CONTENTS
PAGE

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

Questions Presented  ....................................................-  4

Statement of the F a cts ..................................................  4

Argument .......................................................................... 7

Conclusion ............. .............. ............ ................... -..........  17

A p p e n d ix ................................. -.....................................................  l a

Petition.............................................................................  l a

Complaint.........................................................................  4a

Amendment to Complaint..............................................  10a

Answer ................................................  l^a

Petition of North Carolina Advisory Committee.......  27a

O rder............................   ^9a

Ruling on Motion to Strike............................................  30a

Order .................................................................................  ^2a

Answer to Amendment to Complaint..........................  35a

Motion for Leave to File Supplemental Complaint.... 36a

Amended and Supplemental Complaint ................—- 39a

Motion to Dismiss............................................   48a



PAGE

Opinion ..........................................................................   49a

Judgment ............................................    55a

C a se s  :

Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C., 1955) 13

Carson v. Board of Education of McDowell County,
277 F. 2d 789 (4th Cir., 1955)....................................  7

Carson v. Warlick, 238 F. 2d 724 (4th Cir., 1956) .....  7
City Bank Farmers Trust Co. v. Schnader, 291 U. S.

24 (1934) ..................................   11
Cooper v. Aaron, —— U. S .-----, 3 L. ed. 2d 5 (1958) 11
Covington v. Montgomery County School Board, 139 

F. Supp, 161 (M. D. N. C., 1956) ..............................  2

Gibson v. Board of Public Instruction, 246 F. 2d 913
(5th Cir., 1957) ............................................................ 10

Guinn v. United States, 238 U. S. 347 (1915) ............. 12
Gully v. Interstate Natural Gas Co., 82 F. 2d 145 (5th 

Cir., 1936) ................................................................... . 11

Holland v. Board of Public Instruction of Palm
Beach County, 258 F. 2d 730 (5th Cir., 1958) .........  9

Jeffers v. Whitley, 165 F. Supp. 951............................  3,14

Kelly v. Board of Instruction of the City of Nash­
ville, 159 F. Supp. 272 (M. D. Tenn., 1958) ............. 10

Shuttlesworth v. Birmingham Board of Education,
162 F. Supp. 372 (N. D. Ala., 1915) ..........................  9,12

United States Alkali Export Assoc, v. United States,
325 IT. S. 196 (1945)

11

11



Ill

S t a t u t e s :
PAGE

N. C. Gen. Assembly Resolution No. 29 (1955)...........  3

N. C. Gen. Stats, c. 115.................—..........................2, 8,15,16

N. C. Spec. Leg. Sess. Resolution of Condemnation
and Protest, Aug., 1956 ..............................................  3

O t h e r  A u t h o r i t i e s :

Clark, Desegregation: An Appraisal of the Evidence 
(1953) .............................................. -............ ...............  13

Report of the North Carolina Advisory Committee
on Education (1956)....... ............ ................................ 16

Shoemaker (ed.), With All Deliberate Speed (1957) 13

Williams and Ryan, Schools in Transition (1954).....  13



States (tart ai Appeals
F oe  t h e  F o u r t h  C ib c u it

H e l e n  C o v in g t o n , et al.,

Plaintiffs-Appellants,

—vs.—

J. S. E d w a r d s , Superintendent of Schools of Montgomery 
County, North Carolina, et al.,

Defendants-Appellees.

APPELLANTS’ BRIEF

Statement of the Case

The complaint in this action was filed on July 29, 1955 
as a class action by thirteen adult plaintiffs personally and 
as the next friends of forty-five minor plaintiffs on behalf 
of themselves and all other citizens residing in Montgomery 
County, North Carolina, similarly situated. The plaintiffs 
are Negroes and the minor plaintiffs are eligible to attend 
the public schools of Montgomery County, North Carolina. 
The gravamen of the complaint is that defendants are main­
taining a policy of segregating the schools in Montgomery 
County, North Carolina contrary to the Fourteenth Amend­
ment to the United States Constitution (App. 4a, 7a, 49a, 
50a). The following proceedings then ensued.

August 12,1955: the complaint was amended to challenge 
the constitutionality of certain North Carolina constitu­
tional provisions without, however, changing the nature of



2

the cause of action (App. 10a); plaintiffs moved for a three- 
judge court at this time and said motion was denied (App. 
50a).

September 12,1955: defendants answered, alleging plain­
tiffs’ failure to exhaust administrative remedies and that 
plaintiffs lacked good faith in bringing the action (App. 
12a, 50a). On motion of plaintiffs the allegations concern­
ing lack of good faith were stricken (App. 30a).

December 16,1955: plaintiffs, by leave of court, amended 
their complaint to allege that defendants are officers of the 
State of North Carolina and enforcing and executing state 
statutes and policies (App. 33a, 35a, 50a).

February 23, 1956: plaintiffs petitioned for reconsidera­
tion of the order denying motion for a three-judge court, 
which once more was denied. Covington v. Montgomery 
County School Board, 139 F. Supp. 161 (M. D. N. C., 1956) 
(App. 51a).

September 13, 1956: plaintiffs filed a motion for leave to 
file an amended and supplemental complaint and add par­
ties defendant (App. 36a, 51a). This supplemental com­
plaint alleged the unconstitutionality of certain state laws 
known as the Pearsall Plan1 and it sought to make parties

1 b) That at its 1955 session, the North Carolina General Assembly 
rewrote Chapter 115 of the General Statutes o f North Carolina, that Article 
21, Chapter 115 of the General Statutes of North Carolina as amended in 
1956, provides for the assignment of pupils in the public school system of 
North Carolina; that on or about the 23rd day of July, 1956 the North 
Carolina General Assembly, in special session passed an act amending Chapter 
115 of the General Statutes by adding Articles 34 and 35 and revising Article 
20, Section 166. That said Amendments, commonly known and referred to as 
the “ Pearsall Plan,”  authorized educational expense grants, local option and 
to suspend operation of public schools, and revised the Compulsory School 
Attendance Laws; that the said acts of the General Assembly hereinbefore 
referred to were ratified by vote of the people September 8, 1956; that the 
said acts hereinbefore referred to have as their singular and sole purpose and 
effect the continuation of racial segregation in the public schools of this said



3

defendant the members of the State Board of Education and 
the Superintendent of Public Instruction of the State of 
North Carolina. The Attorney General of the State of 
North Carolina made a special appearance on behalf of 
members of the board in opposition to plaintiffs’ motion 
(App. 51a). At the same time those who theretofore had 
been defendants made a motion to dismiss the original com­
plaint for failure to state a claim upon which relief could 
be granted (App. 48a, 51a).

October 6, 1958: the Honorable Edward M. Stanley, 
Judge of the United States District Court for the Middle 
District of North Carolina, entered judgment (1) dismiss­
ing the action and (2) denying the motion to file the 
amended and supplemental complaint. The opinion of the 
court dismissed the complaint for failure of plaintiffs to 
have exhausted administrative remedies (App. 52a-54a). 
It also denied the motion to add the State Board of Educa­
tion and the State Superintendent of Public Instruction as 
parties for reasons stated more fully in the court’s opinion 
in Jeffers v. Whitley, 165 F. Supp. 951 (M. D. N. C., 1958).

It should be observed that the North Carolina Advisory 
Committee on Education petitioned the court for the right 
to appear in this case, take depositions and otherwise par­
ticipate (App. 27a, 28a), that said motion was granted 
(App. 29a), and that a further motion of said Committee 
was granted allowing it to be present at any legal proceed­
ings in the action (App. 32a). The questions presented 
herein are raised, of course, by the court s action in so dis-

;State by circuitous methods that will abort, modify, nullify or defeat the 
spirit and purpose of -the laws of the United States.

e) That the public policy of the -State of North -Carolina, as declared by 
the General Assembly by Resolution No. 29 passed on the 8th day of April, 
1955 and by Resolution of -Condemnation and Protest passed in Special Legisla­
tive Session, August, 1956, is to continue segregation -of the races in public 
education; that said public policy is in violation of the Constitution and laws 
of the United States (App. 44a).



missing the complaint and denying the motion to add
parties.

Questions Presented

1. In a case wherein plaintiffs do not seek assignment 
to any particular school, but merely pray for the abolition 
of a policy of segregating the public schools, was the com­
plaint properly dismissed for failure to exhaust adminis­
trative remedies?

2. In a case wherein a proposed supplemental and 
amended complaint seeks to add the State Board of Educa­
tion and the Superintendent of Public Instruction of the 
State of North Carolina as parties, was the motion to file 
said complaint properly denied when it alleged that sections 
of the North Carolina law commonly known as the Pearsall 
Plan were enacted for the purpose of continuing racial 
segregation in the public schools of North Carolina; and 
that the County Board in refusing to desegregate the 
schools did so pursuant to orders, resolutions or directives 
of the State Board of Education and the Superintendent of 
Public Instruction?

Statement of the Facts

This case involves the issue of whether plaintiffs may 
enjoin the segregation policy of defendant County Board 
of Education. Before the commencement of the action 
appellants submitted a petition to defendants which is ap­
pended to defendants’ answer alleging that defendants were 
maintaining racial discrimination in their school system 
notwithstanding the decision of the United States Supreme 
Court that such racial discrimination is unconstitutional. 
Petitioners pray that the schools under defendants’ juris­
diction be desegregated (App. 23a-24a). The case com­



5

menced with a petition that the court appoint adult plain­
tiffs as next friends for the purpose of bringing this action 
“ for the purpose of enjoining the said officials from denying 
these plaintiffs and others similarly situated admission to 
the public schools of Montgomery County on a non-segre- 
gated basis contrary to the Constitution of the United 
States and the laws enacted pursuant thereto * * * ” (App. 
la, 2a). The complaint is brief and simple and demands 
no admission to any particular school. It merely states 
“On September 7, 1954 plaintiffs petitioned the Board of 
Education of Montgomery County to abolish segregation 
in the schools in their district. Said board refused to de­
segregate the schools within its jurisdiction” (App. 7a). 
The prayer of the complaint requests that:

The Court issue interlocutory and permanent injunc­
tions ordering defendants to promptly present a plan 
of desegregation to this Court which will expeditiously 
desegregate the schools in Montgomery County and 
forever restraining and enjoining defendants and each 
of them from thereafter requiring these plaintiffs and 
all other Negroes of public school age to attend or not 
to attend public schools in Montgomery County because 
of race (App. 9a).

The answer to the complaint states:
At the time of the filing of the petition by the plaintiffs 
the Board of Education of Montgomery had no au­
thority and was powerless to take any action on said 
petition under the Statutes of North Carolina then in 
full force and effect (App. 14a).

Said answer further recites a resolution of the county 
board denying said petition (App. 15a) and stating that 
while awaiting the decision of the United States Supreme 
Court on the mode of implementing its desegregation deci­



6

sion “ the board deems it for the best interest of public 
education to await the final decree of the court and in the 
meantime operate the public schools of North Carolina [as] 
now constituted” (App. 15a). Thereafter, following said 
implementation decision the board appointed an advisory 
committee to study the issue which resolved that :

Now, therefore, be it resolved that the Public Schools 
of Montgomery County operate during the 1955-56 
term with practices of enrollment and assignment of 
children similar to those in use during the 1954-55 
school year, and that this resolution be the authority 
for the County Superintendent and the various district 
school principals and officials to so act (App. 18a, 19a).

Said resolution further said that pending a complete study 
of the school law as amended and of any and all new laws 
relating to operation of public schools, any parent or 
guardian may file a written application with the principal 
of a school to which it is desired that said child be en­
rolled. Various criteria were set forth which were deemed 
relevant to whether such application should be granted 
(App. 19a). The answer went on to state that the board and 
its committees “have continued to make a study of the prob­
lems involved in the operation of the schools in Montgomery 
County to the end that the operation of such schools may 
lawfully be continued and that the schools may be preserved 
for all the children of the County” (App. 20a). This an­
swer was adopted and ratified on January 19, 1956 in 
response to an amendment to the complaint (App. 35a).

The motion to dismiss which was filed subsequent to 
this answer, although it did not so state, apparently was 
a motion for judgment on the pleadings pursuant to Rule 
12c. It is, therefore, the status of the case, and presumably 
defendants would not deny, that at present they continue



7

to operate the schools of Montgomery County as stated in 
the two answers: i.e., in the manner in which they were 
operated prior to the adoption of the resolutions quoted 
above, that is, on a segregated basis. This is, of course, 
subject to the possibility that a particular child may apply 
to a particular school and if his application is granted, 
or if on administrative appeal or by court action it is 
held that the application should have been granted, that 
particular child will be “ desegregated” ; but the traditional, 
longstanding racial policy will continue to be applied to the 
county at large.

The other aspect of the facts to which the court’s at­
tention should be directed is that the proposed amended 
and supplemental complaint alleged, and the special ap­
pearance admitted for purposes of said special appearance, 
that the policy of the State of North Carolina is one of 
racial segregation in education, that the purpose of the 
Pearsall Plan statutes is to continue segregation of the 
races in public education and that the defendant county 
school board in maintaining racial segregation was acting 
pursuant to the authority and directives of the State Board 
of Education and the State Superintendent of Public In­
struction. Consonant with this role of the State is the 
actual appearance in this case of the State Advisory Com­
mittee on Education. It may be, of course, that on a full 
trial such allegations might be disproved, but in this posture 
of the case they stand as admitted.

Argument

1. The court below rested its decision to dismiss the 
complaint for failure to state a claim upon which relief 
could be granted on the Carson cases: Carson v. Board of 
Education of McDowell County, 277 F. 2d 789 (4th Cir., 
1955) and Carson v. Warlich, 238 F. 2d 724 (4th Cir., 19o6),



8

cert, denied 353 U. S. 910 (1957). But the Carson opinions 
were written in contemplation of a different situation. 
There, appellants sought admission to a particular school; 
they had not employed the Pupil Assignment Plan for the 
purpose of obtaining admission to that school, although the 
Pupil Assignment Plan offered such an opportunity. The 
Pupil Assignment Plan is replete with references to the 
fact that it is designed to secure admission to particular 
schools:

Sec. 115-178. “ Hearing before board upon denial of 
application for enrollment.—The parent or guardian of 
any child, or the person standing in loco parentis to 
any child, who shall apply to the appropriate public 
school official for the enrollment of any such child in 
or the admission of such child to any public school 
within the county or city administrative unit in which 
such child resides, and whose application for such 
enrollment or admission shall be denied, may, pursuant 
to rules and regulations established by the county or 
city board of education apply to such board for en­
rollment in or admission to such school, and shall be 
entitled to a prompt and fair hearing by such board in 
accordance with the rules and regulations established 
by such board. The majority of such board shall be a 
quorum for the purpose of holding such hearing and 
passing upon such application, and the decision of the 
majority of the members present at such hearing shall 
be the decision of the board. If, at such hearing, the 
board shall find that such child is entitled to be en­
rolled in such school, or if the board shall find that the 
enrollment of such child in such school will be for the 
best interests of such child, and will not interfere with 
the proper administration of such school, or with the 
proper instruction of the pupils there enrolled, and will 
not endanger the health or safety of the children there



9

enrolled, the board shall direct that such child be en­
rolled in and admitted to stick school (1955, c. 366, s. 
3).” (Emphasis supplied.)

The plaintiffs in this case have not requested admission to 
any particular school. They merely have requested aboli­
tion of what is admittedly a policy of assignment by race.

The distinction is important and has been articulated 
recently by the Fifth Circuit. In Holland v. Board of Public 
Instruction of Palm Beach County, 258 F. 2d 730 (5th Cir., 
1958), Judge Rives discussed the Holland case in contra­
distinction to Shuttlesworth v. Birmingham Board of Educa­
tion, 162 F. Supp. 372, 384 (N. D. Ala., 1958), aff’d ------
U. S . ------ , 3 L. ed. 2d 145 (1958), a suit involving an as­
sault upon the constitutionality of the Alabama Pupil 
Assignment Plan. Judge Rives, of course, is eminently 
qualified to contrast the suits since he wrote the opinion 
in each of them.

* * * for the record as a whole clearly reveals the basic 
fact that, by whatever means accomplished, a com­
pletely segregated public school system was and is 
being maintained and enforced [in Palm Beach]. No 
doubt that fact is well known to all of the citizens of 
the County, and the courts simply cannot blot it out 
of their sight.

# # # * #
So long as the appellant and other Negro children are 
segregated in the public schools solely on the basis 
of race, they and each of them (including the appel­
lant) are being deprived of their rights under the 
Constitution as construed by the Supreme Court. There 
is no need, at this time, to consider separately the 
charges of ‘gerrymandering,’ or of unconstitutionality 
of the Florida Pupil Assignment Law either on its 
face or in its application. It is enough to observe that



10

no means of any description can be legally employed 
to deprive the appellant of his rights under the Con­
stitution.2

*  #  #  #  #

The primary responsibility rests on the County Board 
of Public Instruction to make ‘a prompt and reason­
able start,’ and then proceed to ‘a good faith compli­
ance at the earliest practicable date’ with the Constitu­
tion as construed by the Supreme Court. ‘During this 
period of transition,’ the district court must retain 
jurisdiction to ascertain and to require good faith com­
pliance.3

The Fifth Circuit is not alone in such a holding, for in 
Kelly v. Board of Instruction of the City of Nashville, 159 
F. Supp. 272 (M. D. Tenn., 1958), Judge Miller of the United 
States District Court for the Middle District of Tennessee, 
held that:

* * * The Court is unable to reach the conclusion on the 
facts of the instant case that the action should be dis­
missed and the plaintiffs remitted to a so-called admin­
istrative remedy, with the implied invitation to return 
to the Federal Court if that remedy is exhausted with­
out obtaining satisfactory results. This is true because 
the Court is of the opinion that the administrative 
remedy under the Act in question would not be an 
adequate remedy. In this connection, it must be re­
called that the relief sought by the complaint is not 
merely to obtain assignment to particular schools but

2 258 F. 2d at 732.

3 Id. at 733 (citations omitted). And see Gibson v. Board of Public Instr., 
246 F. 2d 913, 914 (5th Cir., 1957), which in referring to the Florida law held:

“  * * * Neither that nor any other law can justify a violation of the Con­
stitution of the United States by the requirement of racial segregation in 
the public schools.”



11

in addition to have a system of compulsory segregation 
declared unconstitutional and an injunction granted re­
straining the Board of Education and other school 
authorities from continuing the practice and custom 
of maintaining and operating the schools of the city 
upon a racially discriminatory basis.4

The Kelly case refers to the point which needs no elabora­
tion. An administrative remedy must be adequate if a 
plaintiff is to be barred from federal court for failure to 
have exhausted it.5

It is, of course, not denied that the North Carolina admin­
istrative remedy does not purport to be a means of securing 
abolition of a segregation policy. The pupil assignment 
plan permits governmentally enforced segregation to be 
maintained. Its purport is that if any Negro child objects 
to such segregation, and he or his family has the funds and 
the fortitude to maintain protracted administrative and 
legal proceedings, they may possibly secure for them­
selves an exception to the general rule of segregation. The 
general policy of keeping segregation, as executed by de­
fendant board, seems hardly what the United States Su­
preme Court meant by proceeding with “all deliberate 
speed,” for it involves no progress, not even a scintilla of 
progress whatsoever. It is by no stretch of the imagination 
a “prompt start, diligently and earnestly pursued, to 
eliminate racial segregation from the public schools.” 
Cooper v. A aron ,------U. S .------- , 3 L. ed. 2d 5, 10 (1958).

4 159 F. Supp. at 275.

5 See, e.g., City Sank Farmers Trust Co. v. Schnader, 291 XT. S. 24, 34 
(1934) (suit not premature where petitioner had, not availed himself of right 
to hearing before officer already committed to action); Gully v. Interstate 
Natural Gas Co., 82 F. 2d 145, 148 (5th Cir., 1936), cert, denied 298 XT. S. 688 
(1936) (action not premature where it is known that board has decided on 
course of action) ; cf. United States Alkali Export Assoc, v. United States, 
325 TJ. S. 196 (1945) (board without power).



12

It hardly meets with the holding of the Court in Cooper v. 
Aaron, that “ state authorities [are] thus duty bound to 
devote every effort toward initiating desegregation and 
bringing about the elimination of racial discrimination in 
the public school system.” Id. at 11.

Because the concept of the pupil assignment plan has 
not been held unconstitutional, see Shuttlesworth v. Bir­
mingham Board of Education, supra, plaintiffs do not 
contend that at some time, they or indeed any child, white 
or colored, may not be required to have recourse to such an 
administrative remedy. But this time would arise after a 
segregation policy had been abolished, not while it still 
exists. A pupil assignment plan administered in conjunc­
tion with a segregation policy is merely an ingenious mode 
of perpetuating segregation and plaintiffs should not be 
compelled to employ it under such circumstances. Such a 
combination—pupil assignment cum segregation policy— 
governs the educational system by a grandfather clause. 
See Guinn v. United States, 238 U. S. 347 (1915). For the 
formerly avowed policy of segregation merely imports the 
practice of the past into the present by keeping the status 
quo under another name. It places the burden of com­
pliance on the individual children, whereas the Fourteenth 
Amendment is addressed to the State.

The Court below cites Judge Parker’s opinion in Briggs 
v. Elliott, that oft quoted passage which states that the 
Supreme Court

* * * has not decided that the states must mix persons 
of different races in the schools or must require them 
to attend schools or must deprive them of the right of 
choosing the schools they attend. What it has decided, 
and all that it has decided, is that a state may not 
deny to any person on account of race the right to 
attend any school that it maintains. This, under the



13

decision of the Supreme Court, the state may not do 
directly or indirectly; but if the schools which it main­
tains are open to children of all races, no violation of 
the Constitution is involved even though the children 
of different races voluntarily attend different schools, 
as they attend different churches.6

But Judge Parker certainly did not hold and indeed did not 
mean to imply that a county could maintain a policy of 
segregation, which Montgomery county admits it main­
tains, if at the same time it offers the dubious opportunity 
to individually isolated children to make application for 
admission to particular white schools. The constitutional 
right is the right to go to school in a system in which there 
are no racial distinctions, not the right of an individual, 
lonely Negro child to know that if he separately applies 
and ultimately overcomes the hurdles he will be permitted 
to enjoy desegregation in splendid isolation.

Plaintiffs would not presume to suggest the method by 
which such desegregation can be accomplished. The litera­
ture is replete with instances of how to establish non- 
discriminatory school assignment. See, e.g., Shoemaker 
(ed.), With All Deliberate Speed (1957) passim; Williams 
and Byan, Schools in Transition (1954) passim; Clark, 
“ Desegregation: An Appraisal of the Evidence,” 9 Journal 
of Social Issues (1953) passim. But plaintiffs do urge that 
the defendants may not, on one hand, maintain segregation 
while, on the other, offer in support of its legality the right 
to seek individual exceptions contrary, of course, to all the 
pressures, legal and otherwise, that may be mustered by 
against lone objectors.

2. The next aspect of this case involves the question of 
whether the motion to add the State Board of Education

6 132 F. Supp. 776, 777 (E. D. -S. C., 1955).



14

and the State Board of Public Instruction as parties should 
have been denied. For the reasons upon which the denial 
was based the court referred to its opinion in Jeffers v. 
Whitley, 165 F. Supp. 951 (M'. D. N. C., 1958). The basis 
of this aspect of the Jeffers decision is articulated in the 
following passage:

It is concluded that the state officials have no control 
or authority whatever over the enrollment and assign­
ment of pupils in the public schools of North Carolina, 
and that the plaintiffs, if they prevail in this action, 
are entitled to obtain complete relief against the county 
officials, and that this action should be dismissed 
against the state officials.7

But the supplemental complaint in this action has alleged 
certain propositions of fact which, on the motion to dis­
miss, have to be accepted as well pleaded. This is utterly 
fundamental. The complaint alleged:

a) Defendant J. S. Edwards is Superintendent of Schools 
for Montgomery County. Defendants E. R. Wallace, D. C. 
Ewing, Harold A. Scott, James R. Burke and James Ingram 
constitute the Montgomery County Board of Education. 
Said Board of Education maintains and generally super­
vises certain schools in said county for the education of 
white children exclusively and other schools in said County 
for the education of Negro children exclusively; that in the 
performance of these acts, the said defendants are acting 
pursuant to the direction and authority contained in State 
Constitution provisions, State statutes, State administra­
tive orders and legislative policy and as such are officers 
of the State of North Carolina enforcing and executing 
State statutes and policy. (Emphasis supplied.)

7 165 F. Supp. at 957.



15

That said Board refused to desegregate said schools 
within its jurisdiction; that plaintiffs are informed and 
believe and upon said information and belief allege that the 
action of said Board in refusing to desegregate the schools 
within its jurisdiction was done pursuant to orders, resolu­
tions or directives of the State Board of Education and 
the Superintendent of Public Instruction (emphasis sup­
plied) (App. 41a-42a).

If this is true, as it is at least for purposes of this case, 
the matter cannot be dismissed by simply pointing to the 
theoretically broad powers entrusted to local boards free 
of formal state requirements that there be segregation. The 
state board of education unquestionably is exceedingly 
powerful. This fact is plainly evidenced by the following 
statutory provisions.

1. The administrative unit of the public school system 
is approved by the State Board of Education. G. S. 
115-4.

2. The State Board of Education has control of all 
matters relating to the supervision and administra­
tion of the fiscal affairs of the public schools.

3. The Board has the authority to appoint and equalize 
over the state, all state school funds.

4. It has the power to invest in interest bearing securi­
ties.

5. It has the power to accept federal funds and aid.

6. It has the power to purchase at mortgage sales.

7. It has the power in its discretion to alter the bound­
aries of any city administrative unit or establish 
additional administrative units.

8. It has the further duty to certify and regulate the 
grade and salary of teachers, and other school bene­
fits, and to adopt and supply text books.



16

9. It lias the power to adopt a standard course of study 
upon recommendation of the state superintendent 
of public instruction, and to formulate rules and 
regulations for the enforcement of the compulsory 
attendance law.

10. It further has the power to manage and operate a 
system of insurance on public school property. (See 
Cl. S. 115-11 for source of above numbered powers.)

11. It should further be noted that by authority of G. S. 
115-283, state board of education has the general 
supervision and administration of the educative ex­
pense grants provided for under G. S. 115-274.

Moreover, we need not rely on the pleadings alone to 
learn that the State Board and local boards have worked 
in concert in opposition to desegregation. The July 23, 
1956 Report of the North Carolina Advisory Committee 
on Education states:

Immediately following publication of the April 5 
report, the Committee and its staff, assisted by per­
sonnel from the Governor’s Office, the Attorney Gen­
eral’s Office and the Office of the Superintendent of 
Public Instruction undertook to prepare rules and 
regulations to be recommended to local school boards 
for the implementation and the administration of the 
1955 Assignment Law. This task consumed several 
weeks, and during this time, extended conferences were 
held with representatives from the Superintendents 
Division of the North Carolina Education Association 
and with members of the Policy Board of the North 
Carolina School Boards Association. These repre­
sentatives furnished a great deal of help to the Com­
mittee and those working with it.



17

As soon as drafts of rules and regulations had been 
prepared to the satisfaction of all those mentioned 
above, conferences were held throughout the State with 
school superintendents, school board attorneys, and 
members of local school boards for the purpose of 
explaining the provisions of the rules and regulations 
and pointing out how they best could be used. These 
conferences were, in the opinion of the Committee, 
highly successful and most of the local school boards 
in North Carolina, immediately thereafter, adopted 
necessary rules and regulations in connection with the 
1955 Assignment Act.8

Indeed, in this very case, the record reveals that the State 
Advisory Committee on Education appeared at its own 
request with full rights to participate as a party.

If a state board with such power as this one engaged in 
concerted action with a local board to thwart desegregation 
it should be held accountable. In this status of the case 
that is the fact, and the legal result should follow.

CONCLUSION

Appellants respectfully submit that they should not be 
required to engage in an exercise in administrative futility 
and petition for admission to particular schools while ap­
pellees maintain a policy of segregation. Appellants sub­
mit further that the well pleaded facts described a concert 
of action between state and local authorities and that 
although the state may have no formal power to require 
segregation the dominant position of the state as evidenced 
by other statutory provisions insures that its directives 
will not be flouted by local boards.

8 At 2-3.



18

Kespectfully submitted,

J . K e n n e t h  L ee  

P. 0. Box 645
Greensboro, North Carolina 

CONRAD 0 .  PEAKSON

203% E, Chapel Hill Street 
Durham, North Carolina

T h u r g o o d  M a r s h a l l  
J a c k  G r e e n b e r g

10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

Wherefore it is respectfully submitted that the deci­
sion below dismissing the complaint and denying mo­
tion to add parties should be reversed.



A P P E N D I X

UNITED STATES DISTRICT COURT 
M id d l e  D is t r ic t  of  N o r t h  C a r o l in a  

G r e e n sb o r o  D iv is io n

I n  R e : H e l e n  C o v in g t o n , E l s ie  H o r n e , E t h e l  I n g r a m , 
R o o se v e l t  W i l l i a m s , G eo r g e  S i m m o n s , M a u d e  S m i t h , 
F l o r a  K .  S i m m o n s , J e n n ie  N ic h l s o n , P e r c y  T h o m a s , 
N e l l ie  S m i t h e r m a n , J e ss ie  M a r s h a l l , J a m e s  M c A u l e y  

and E. W. S t r e a t e r , et al.

Petition

Helen Covington and all other plaintiffs herein named 
similarly situated and affected, in the above entitled ac­
tion showeth to the court:

I
That Helen Covington and all other petitioners herein 

similarly situated are citizens of the United States of 
America and residents of Montgomery County, North 
Carolina.

II

That Helen Covington and all other petitioners herein 
named, similarly situated, and their minor children and/or 
wards are desirous of instituting and prosecuting an action 
against the officials charged with administering, operating 
and effectuating the public school system in and for the 
County of Montgomery for the purpose of enjoining the 
said officials from denying these plaintiffs and other simi­
larly situated admission to the public schools of Mont­
gomery County on a non-segregated basis contrary to the 
Constitution of the United States and the laws enacted



2a

Petition

pursuant thereto; that said minor children hereinafter 
named, have not the capacity in their own right and name 
to institute and prosecute the said proposed action, how­
ever, that the petitioner Helen Covington, is the mother of 
Cornett Covington, Jeanette Covington, Silvesta Coving­
ton, Betty J. Stearns, Helen Covington, Lillie B, Stearns, 
Woodrow Stearns and Henry Stearns.

That Elsie Horne is the mother of Elvon Horne and 
Elsie May Horne;

That Ethel Ingram is the mother of Doris Ingram;
That Roosevelt Williams is the father of Billie J. W il­

liams, Doris Williams, Annie Williams and Carlie Wil­
liams ;

That George Simmons is the grandfather of Rose Marie 
Laughton and Patricia Ann Laughton;

That Maude Smith is the mother of Prank Smith, Charles 
Smith, and Ruth Smith;

That Flora K. Simmons is the mother of Anne Simmons;
That Jennie Nichlson is the mother of Brunder Sue 

Nichlson, Linda Lou Nichlson and Oscar Nichlson;
That Percy Thomas is the father of John Lee Thomas, 

Loyie Thomas, David Thomas, Sarah Thomas and Roose­
velt Thomas;

That Nellie Smitherman is the mother of Lucille Smither- 
man, Carrie Mae Smitherman, Elvena Smitherman, Alonzo 
Smitherman and Ida Smitherman;

That Jessie Marshall is the mother of Dianne Marshall, 
Evelyn Marshall and Betty Marshall;

That James McAuley is the father of James McAuley, 
Jr., Vivian McAuley and Gloria McAuley;

That E. W. Streater is the father of Carolyn B. Streater, 
Carrie Lee Streater, Eugene Streater, Betty J. Streater, 
and Veralene Streater.



3a

Petition

W h e r e f o r e , the undersigned, for and on behalf of said 
minors, pray the Court that an Order Issue appointing 
each of them, respectively as a fit and proper person, as 
next friend for his or her minor child, children, or ward 
for the purpose of bringing in their behalf an action as 
above set out.

Respectfully submitted this 20 day of July, 1955.

/ s /  H e l e n  C o v in g t o n  

/ s /  E l s ie  H o r n e  

/ s /  E t h e l  I n g r a m  

/ s /  R o o se v e l t  W il l ia m s  

/ s /  G eorge  S im m o n s  

/ s /  M a u d e  S m i t h  

/ s /  F l o r a  K. S im m o n s  

/ s /  J e n n ie  N ic h l s o n  

/ s /  P e r c y  T h o m a s  

/ s/  N e l l ie  S m i t h e r m a n  

/ s /  J e ssie  M a r s h a l l  

/ s /  J a m e s  M c A u l e y  

/ s /  M r . E. W. S t r e a t e r

Subscribed and sworn to before me this 20 day of July, 
1955.

N o t a r y  P u b l i c : / s /  J a m e s  H. B l u e  
My commission expires: June 13, 1957.



4a

IN THE DISTRICT COURT OF THE UNITED STATES 

F or  t h e  M id d l e  D is t r ic t  of  N o r t h  C a r o l in a  

R o c k in g h a m  D iv is io n  

Civil Action No. 323

Complaint

I n  R e : H e l e n  C o v in g t o n , personally and as mother and 
next friend of Cornett Covington, Jeanette Covington, 
Silvesta Covington, Betty J. Stearns, Helen Covington, 
Lillie B. Stearns, Woodrow Stearns and Henry Stearns, 
minors; E l s ie  H o r n e , personally and as mother and 
next friend of Elvon Horne and Elsie May Horne, 
minors; E t h e l  I n g r a m , personally and as mother and 
next friend of Doris Ingram, minor; R o o se v e l t  W i l ­
l ia m s  personally and as father and next friend of Billie
J. Williams, Doris Williams, Annie Williams and Carlie 
Williams, minors; G eor g e  S i m m o n s , personally and as 
grandfather and next friend of Rose Marie Laughton 
and Patricia Ann Laughton, minors; M a u d e  S m i t h , 
personally and as next friend and mother of Frank 
Smith, Charles Smith and Ruth Smith, minors; F l o r a

K. S im m o n s , personally and as mother and next friend 
of Anne Simmons, minor; J e n n ie  N i c h l s o n , personally 
and as mother and next friend of Brunder Sue Nichlson, 
Linda Lou Nichlson and Oscar Nichlson, minors; P e r c y  
T h o m a s , personally and as father and next friend of 
John Lee Thomas, Loyie Thomas, David Thomas, Sarah 
Thomas and Roose Thomas, minors; N e l l ie  S m i t h e r - 
m a n , personally and as mother and next friend of Lucille 
Smitherman, Carrie Mae Smitherman, Elvena Smither- 
man, Alonzo Smitherman and Ida Smitherman, minors;



5a

Complaint

J e ss ie  M a r s h a l l , personally and as mother and next 
friend of Dianne Marshall, Evelyn Marshall and Betty 
Marshall, minors; J a m e s  M c A u l e y , personally and as 
father and next friend of James McAuley, Jr., Vivian 
McAuley and Gloria McAuley, minors; E. W. S t r e a t e r , 
personally and as father and next friend of Carolyn B. 
Streater, Carrie Lee Streater, Eugene Streater, Betty 
J. Streater, and Veralene Streater, minors,

Plaintiffs,
—vs.-

J .  S. E d w a r d s , Supt. of Schools of Montgomery County, 
N. C., E. B. W a l l a c e , D. C. E w i n g , H a r o l d  A. S c o t t , 
J a m e s  B. B itrt  and J a m e s  I n g r a m , members of the 
Montgomery County Board of Education,

Defendants.

Plaintiffs on behalf of themselves and for the benefit of 
and on behalf of all other citizens or residents of Mont­
gomery County who may be similarly situated allege:

I

(a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitu­
tion of the United States, section 1, and Title 8, United 
States Code, section 41. The matter in controversy exceeds, 
exclusive of interest and costs, the sum or value of Three 
Thousand ($3,000.) Dollars.

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 1343. This action is



6a

authorized by Title 8, United States Code, section 43 to he 
commenced by any citizen of the United States or other 
person within the jurisdiction thereof to redress the depri­
vation, under color of a state law, statute, ordinance, regu­
lation, custom or usage, of rights, privileges and im­
munities secured by the Fourteenth Amendment of the 
Constitution of the United States, section 1, and by Title 8, 
United States Code, section 41 providing for the equal 
rights of citizens and of all persons within the jurisdiction 
of the United States,

(c) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 2281. This is an action 
for an interlocutory and permanent injunction restraining, 
upon the ground of unconstitutionality, the enforcement of 
provisions of the Constitution, administrative order of the 
Montgomery County board of Education, and customs, 
practices and usages requiring segregation in education 
in Montgomery County of the State of North Carolina by 
restraining defendants from enforcing such Constitutional 
provisions, administrative order, customs, practices and 
usages.

II

Plaintiffs bring this action pursuant to Rule 23 (a) (3) of 
the Federal Rules of Civil Procedure for themselves and on 
behalf of all other Negroes similarly situated, whose num­
bers make it impracticable to bring them all before the 
court; they seek common relief based upon common ques­
tions of law and fact.

Complaint

I l l

Plaintiffs are Negroes, citizens of the United States and 
the State of North Carolina. They are residents of Mont­



7a

gomery county in said state. Their children or wards all 
satisfy all requirements for admission to the schools of 
Montgomery county. Adult plaintiffs, not applicants, are 
parents or guardians of infant plaintiffs, applicants.

IV

Defendant J. S. Edwards is Superintendent of Schools of 
Montgomery County. Defendants E. R. Wallace, D. C. 
Ewing, Harold A. Scott, James R. Burt„and James Ingram 
constitute the county board of education. Said board main­
tains and generally supervises certain schools in said 
County for the education of white children exclusively and 
other schools in said County for the education of Negro 
children exclusively.

Complaint

V

On September 7, 1954 plaintiffs petitioned the Board of 
Education of Montgomery county to abolish segregation in 
the schools in their district.

VI

Said board refused to desegregate the schools within its 
jurisdiction.

VII

The North Carolina constitutional provision involved is:

Article IX, Section 2, which provides

“ The General Assembly, at its first session under this Con­
stitution, shall provide by taxation and otherwise for a gen­
eral and uniform system of public schools, wherein tuition 
shall be free of charge to all children of the state between 
the ages of six and twenty-one years and children of the



8a

white race and the children of the colored race shall be 
taught in separate public schools, but there shall be no dis­
crimination in favor of, or to the prejudice of either race.

V III

This North Carolina Constitutional provision and the cus­
toms, practices and usages of the Montgomery County 
school officials as applied to these plaintiffs by these de­
fendants deprive plaintiffs of equal protection of the laws 
in violation of the 14th Amendment of the Constitution of 
the United States.

Complaint

IX

Plaintiffs and those similarly situated suffer and are 
threatened with irreparable injury by the acts herein com­
plained of. They have no plain, adequate or complete 
remedy to redress these wrongs other than this suit for an 
injunction. Any other remedy would be attended by such 
uncertainties and delays as to deny substantial relief, would 
involve multiplicity of suits, cause further irreparable in­
jury and occasion damage, vexation and inconvenience, not 
only to the plaintiffs and those similarly situated, but to 
defendants as governmental agencies.

W h e r e f o r e  P l a in -t if f s  respectfully pray that:

(1) The Court convene a Three-Judge Court as required 
by Title 28, United States Code, Sections 2281 and 2284.

(2) The Court advance this cause on the docket and order 
a speedy hearing of the application for interlocutory injunc­
tion and the application for permanent injunction according 
to law, and that upon such hearings:

The Court enter interlocutory and permanent judgments 
declaring that Article IX  Section 2 of the North Carolina



9a

Constitution, and any customs, practices and usages pur­
suant to which plaintiffs are segregated in their schooling 
because of race, violate the Fourteenth Amendment to the 
United States Constitution.

(3) The Court issue interlocutory and permanent injunc­
tions ordering defendants to promptly present a plan of 
desegregation to this Court which will expeditiously de­
segregate the schools in Montgomery County and forever 
restraining and enjoining defendants and each of them from 
thereafter requiring these plaintiffs and all other Negroes 
of public school age to attend or not to attend public 
schools in Montgomery county because of race.

(4) The Court allow plaintiffs their costs and such other 
relief as may appear to the Court to be just.

This the 29th day of July, 1955.
/ s /  C. 0. P e a r s o n  

2031/2 E. Chapel Hill Street 
Durham, N. C.

Attorney for the Plaintiffs

/ s /  J. K e n n e t h  L ee  

P. 0. Box 645
Greensboro, N. C.

Attorney for the Plaintiffs

/ s /  G eo r g e  A. L a w s o n  
914 Gorrell St.

Gr’boro, N. C.
Attorney for the Plaintiffs

/&/ M a j o r  S. H ig h  
914 Gorrell Street 

Greensboro, N. C.
Attorney for the Plaintiffs

(Duly verified.)

Complaint



10a

UNITED STATES DISTRICT COURT 

M id d l e  D is t r ic t  op  N o r t h  C a r o l in a  

G r e e n s b o r o  D iv is io n

Amendment to Complaint

[ s a m e  t i t l e ]

The plaintiffs, by leave of Court first had and obtained, 
amend their complaint heretofore filed in this action as fol­
lows:

Paragraph VIII of said complaint which now reads:

“ This North Carolina Constitutional provision and cus­
toms practices and usages of the Montgomery County 
School officials as applied to these plaintiffs by these 
defendants deprive plaintiffs of equal protection of the 
laws in violation of the 14th amendment of the Con­
stitution of the United States.”

Is hereby amended to read:

“ This North Carolina Constitutional provision in so far 
as it requires children of the white race and the children 
of the colored race shall be taught in separate public 
schools and the customs, practices and usages of the 
Montgomery County School officials as applied to these 
plaintiffs by these defendants deprive plaintiffs of equal 
protection of the laws in violation of the 14th Amend­
ment of the Constitution of the United States.”

Paragraph 2, subparagraph 2 of the prayer for relief 
which now reads:



11a

“ The Court enter interlocutory and permanent judg­
ment declaring that Article IX  section 2 of the North 
Carolina Constitution, and any customs, practices and 
usages pursuant to which plaintiffs are segregated in 
their schooling because of race, violate the Fourteenth 
Amendment to the United States Constitution.”

Is hereby amended to read:
“ The Court enter interlocutory and permanent judg­
ment declaring that Article IX  Section 2 of the North 
Carolina Constitution in so far as it requires children 
of the white race and the children of the colored race 
shall be taught in separate public schools, and any cus­
toms, practices and usages pursuant to which plaintiffs 
are segregated in their schooling because of race, 
violate the Fourteenth Amendment to the United States 
Constitution.”

And except as hereby amended plaintiffs adopt and ratify 
their original Complaint as if herein set out.

This 12 day of August, 1955.

Amendment to Complaint

/ s /  J. K enneth Lee 
Attorney for the Plaintiffs



12a

UNITED STATES DISTRICT COURT 

M iddle D isteict of N orth  Carolina 

R ockin gham  D ivision 

Civil Action No. 323

Answer

[ same title ]

The defendants answering the complaint of the plaintiffs, 
allege and say:

(1) (a) It is denied that this canse is one for the juris­
diction of this court under Title 28, United States Code, 
Section 1331. It is denied that there is involved in this cause 
the constitutionality of any provisions of a State Constitu­
tion or Statute, or the acts of any person or body, depriving 
or tending to deprive any of the plaintiffs of any right under 
the Fourteenth Amendment of the Constitution of the 
United States. It is denied that the matter in controversy 
exceeds, exclusive of interest and costs, the sum or value 
of Three Thousand Dollars ($3,000.00).

(b) It is denied that there is presented a question for 
the jurisdiction of this court under Title 28, United States 
Code, Section 1343. It is denied that the plaintiffs, or any 
one of them, have been deprived of any right secured by the 
Fourteenth Amendment of the Constitution of the United 
States, Section One, or by Title 28, United States Code, 
Section 1343.

(c) It is denied that this cause presents a matter within 
the jurisdiction of this court under Title 28, United States 
Code, Section 2281. It is denied that there is, or can be, 
involved in this cause the question of the enforcement or



13a

operation of any provisions of the Constitution of North 
Carolina, or the enforcement or operation of any adminis­
trative order of the Montgomery County Board of Educa­
tion, or any custom, practice or usage of said Board, in 
violation of any of the rights of any plaintiff herein.

(2) It is denied that this action is, or can be a class action 
brought on behalf of others situated similarly to plaintiffs. 
It is denied that this is even an action on behalf of plaintiffs. 
Also, as hereinafter alleged more particularly, on informa­
tion and belief, it is alleged that this action is a collusive 
action brought for purposes other than protection of plain­
tiffs.

(3) It is admitted that the plaintiffs are negroes, citizens 
of the United States, and of the State of North Carolina, 
and are residents of Montgomery County. The defendants 
do not have sufficient information to form a belief as to the 
remaining allegations of paragraph three and, therefore, 
deny the same.

(4) It is admitted that defendant, J. S. Edwards, is 
Superintendent of Schools of Montgomery County, and that 
defendants, E. K. Wallace, I). C. Ewing, James A. Burt, 
Harold A. Scott, James Ingram, are members, and the only 
members, of the Board of Education of Montgomery 
County. It is admitted that the Board of Education of 
Montgomery County generally supervises the public schools 
in Montgomery County. Except as herein admitted, the 
allegations of paragraph four are denied.

(5) It is admitted that on September 7, 1954, there was 
presented to the Board of Education of Montgomery 
County a written petition bearing the purported signatures 
of twenty-seven (27) persons. Among those purported sig­
natures, there were the names of the following who are also

Answer



14a

plaintiffs in this action: Flora K. Simmons, George Sim­
mons and Percy Thomas. The name of no other plaintiff in 
this action appears on that petition. Attached to this An­
swer as Exhibit “A ” is a copy of said petition. Except as 
herein admitted, the allegations of paragraph five are 
denied.

(6) The allegations of paragraph six are denied. At 
the time of the filing of the petition by the plaintiffs the 
Board of Education of Montgomery had no authority and 
was powerless to take any action on said petition under the 
Statutes of North Carolina then in full force and effect.

Immediately following the presentation of the petition 
referred to in paragraph five of this Answer, the Mont­
gomery County Board of Education took action which was 
evidenced by a resolution adopted by that Board. That 
resolution reads as follows:

“Resolution Relating to Petition Filed by ,J. Kenneth Lee 
and George A. Lawson, Attorneys on Behalf of Loyie 
E. Thomas et al., Petitioners requesting that all schools 
in Montgomery County be immediately desegregated in 
accordance with the Supreme Court’s decision.

“ On motion of J. E. Maness seconded by H. A. Scott 
the Board unanimously adopted the following resolu­
tion:

“ W hereas, The State Board of Education on June 3, 
1954, adopted a resolution as follows:

“  ‘The Board is aware of the manifold problems facing 
the public schools of North Carolina by reason of the 
recent decision of the Supreme Court of the United 
States. The Court has ruled in the actions pending 
before it that segregation of pupils on the basis of 
race is unconstitutional. The Court has adjudicated

Answer



15a

a principle, but not the procedures through which 
the principle shall be implemented and effectuated. 
The Court has called for future hearing and argument 
at the October Term, 1954, before issuing a final de­
cree directing the course of action to be followed.

“ ‘In view of this and the necessity to make allotment 
of teachers and other arrangements to operate the 
public schools of the State for the school term 1954-55, 
the Board deems it for the best interest of public 
education to await the final decree of the Court and in 
the meantime operate the public schools of North 
Carolina now constituted.

“ ‘At the request of the Governor, the State Board, in 
co-operation with the State Superintendent of Public 
Instructions and others, will continue to study the 
problem and work toward the best possible solution. 
The Board appeals to every citizen in North Carolina 
to remain calm and reasonable during the considera­
tion of this problem.’

“A nd w hereas , The Board of Education of Montgomery 
County is in accord with the aforesaid resolution of 
The State Board of Education, and is of the opinion 
that the public schools of Montgomery County should 
be operated according to the constitution and laws of 
the State of North Carolina, under the direction of The 
State Board of Education, and in accord with the rules 
and regulations promulgated by said Board for such 
purposes.

“ Now, therefore, be it resolved that the petition filed 
by attorneys on behalf of Loyie E. Thomas et al. for 
immediate desegregation of the public schools of Mont­
gomery County be and the same is hereby denied.”

Answer



16a

Following the decree of the Supreme Court of the United 
States on May 31, 1955, and other decrees handed down by 
the District Courts pursuant thereto in Civil Action No. 
2657 Eastern District of South Carolina, Charleston Divi­
sion, on July 15, 1955, and Civil Action No. 1333 Eastern 
District of Virginia, Richmond Division, on July 18, 1955, 
and pursuant to an enactment of the 1955 General Assembly 
of North Carolina, the Board of Education of Montgomery 
County adopted resolutions reading as follows on July 26, 
1955:

“ On motion of Harold A. Scott seconded by James 
Ingram, the following resolution was unanimously 
adopted:

“ Whereas, the 1955 General Assembly of North Carolina 
transferred to the local administrative units complete 
authority over the enrollment and assignment of chil­
dren in the public schools and the transportation of 
children in school buses; and

“ Whereas, this Board may expect to be faced with many 
difficult problems in the administration of School law 
and expeeially (sic) with problems arising as a re­
sult of the decision of the Supreme Court of the United 
States dealing with segregation in public schools, and

“Whereas, this Board realizes that serious, thoughtful 
and careful study of these problems is essential for 
the successful operation of the public Schools of Mont­
gomery County to the best and most beneficial interest 
of all the citizens of the County, and especially the 
school children, and

“Whereas, this Board feels that it is its duty to seek 
factual information necessary to the elucidating, assess­

Answer



17a

ing and solving* of these problems, and to that end that 
an advisory committee be appointed for the special pur­
poses of studying these problems and to make recom­
mendations relative thereto to this Board:

Answer

“ Now, therefore, be it resolved:

1. Howard Dorsett 6. Howard Bennett
2. J. R. Russell 7. H. Page McAuley
3. E. R. Burt, Jr. 8. K. A. McCloud
4. Oscar Stevens 9. Ernest King, Jr.
5. Clyde Kern 10. S. H. McCall, Jr.

be and they are hereby appointed as a Committee to be 
known as ‘The Montgomery County Advisory Commit­
tee on Education’, to serve at the will of the Mont­
gomery County Board of Education.

“2. That said Committee shall begin an immediate study 
of the problems arising from the decision of the United 
States Supreme Court regarding segregation as same 
will affect the Public Schools of Montgomery County, 
and make reports to this Board of its findings.

“3. That said Committee act as quickly and efficiently 
as possible, but with due diliberation, in order that its 
findings may be factually correct, and its recommenda­
tions sound and legally feasible.

“ On motion of James Ingram seconded by D. C. Ewing, 
the following resolution was unanimously adopted:

“Whereas, the 1955 General Assembly of North Carolina 
transferred to the local Administrative units complete 
authority over the enrollment and assignment of chil­
dren in the public schools and the transportation of chil­
dren in school buses; and



18a

“ Whereas, this Board may expect to be faced with many 
difficult problems in the administration of the school 
law and especially with problems arising as a result 
of the decision of the Supreme Court of the United 
States dealing with segregation in public schools, and

“ Whereas, due to the late adjournment of the 1955 Ses­
sion of the General Assembly of North Carolina, and 
the subsequent distribution of the laws relating to the 
operation and administration of the public schools of 
North Carolina, and the emensity of the task faced by 
the Board of Education in setting up new and different 
administrative systems, and the lack of time in which 
to perform said tasks prior to the opening of schools 
this year, this Board has not had, and will not have 
sufficient time to make any complete an adequate 
study of said laws, and

“Whereas, plans and procedures for operation of the 
schools of Montgomery County for the next year had 
already been formulated under provisions of prior laws, 
and

“ Whereas, the Board has given serious and considerate 
thought to the importance of these studies, the amount 
of information needed and the time required to assem­
ble same, and the time required for school organiza­
tions, and the importance of first getting the reports 
and recommendation of the Montgomery County Ad­
visory Committee on Education:

“Now, therefore, be it resolved that the Public Schools 
of Montgomery County operate during the 1955-56 term 
with practices of enrollment and assignment of chil­
dren similar to those in use during the 1954-55 school 
year, and that this resolution be the authority for the

Answer



19a

County Superintendent and the various district school 
principals and officials to so act.

“ Be it further resolved, that pending a complete study 
of the School Law, as amended, and any and all new 
laws relating to the operation of the public schools, 
any parent or guardian of any child, or the person 
standing in loca Parentis to any child, who desires that 
said child shall be entered in any school other than the 
one to which said child has been assigned, shall file 
written application with the principal of the school 
in which it is desired that said child be enrolled, giv­
ing the name of the child and the reason, or reasons, 
why the change is requested. The principal with whom 
such application is filed shall act favorably thereon 
if he shall find that the enrollment of such child in such 
school will be for the best interest of such child, and 
will not interfere with the proper administration of 
such School, or with the proper instruction of the pupils 
there entrolled, and will not endanger the health or 
safety of the children there enrolled, considering the 
needs and welfare of the child seeking administration, 
the welfare and best interest of all other children in 
the school, availability of facilities, including trans­
portation, fitness of facilities, including health, aptitude 
of the child and curriculum adjustment of the School, 
residence of the child, and all other factors considered 
pertinent, relevant and material affecting either the 
child or the school, otherwise the application shall be 
denied. Upon the denial of any such application, by the 
school principal, application for a hearing thereon be­
fore this Board may be made in writing by the parent 
or guardian of such child, or the person standing in

Answer



20a

loco parentis to said child, a copy of the ruling of the 
principal denying admittance to accompany said ap­
plication.”

In furtherance of the matters set forth in those resolu­
tions, the Board of Education of Montgomery County and 
its committee, appointed as is set forth in the resolution 
quoted immediately above in this answer, have continued to 
make a study of the problems involved in the operation of 
the schools of Montgomery County to the end that the 
operation of such schools may lawfully be continued and 
that the schools may be preserved for all the children of the 
County.

(7) It is admitted that Article 9, Section 2, of the Con­
stitution of North Carolina, contains provisions as quoted 
in paragraph seven of the Complaint and Amended Com­
plaint. It is denied that the constitutionality of any provi­
sion so quoted is involved in this cause of action.

(8) The allegations of paragraph eight are denied.

(9) The allegations of paragraph nine are denied.

F u rther  A nsw er  and D efense

For a further answer and defense to the matters alleged 
in the plaintiffs’ complaint, these defendants allege and 
say:

That the plaintiffs complain of the alleged action taken 
by the defendants in the summer of 1954. Plaintiffs have 
waited approximately one (1) year before asserting any 
such right. This action was brought after the decision of 
the Supreme Court on May 31, 1955, and plaintiffs have 
not alleged that they went to or sought any relief from 
the Board of Education of Montgomery County following

Answer



21a

the decision of the Supreme Court of May 31, 1955, or ap­
plied to the Board of Education of Montgomery County 
following the enactment of the 1955 General Assembly of 
North Carolina, or that they made any effort whatever to 
ascertain what the Board of Education of Montgomery 
County was doing or intended to do following the decision 
of the Supreme Court of the United States on May 31,1955. 
This action was brought by the plaintiffs within twenty (20) 
days following the announcement of the decrees of the 
three-judge Federal Courts in South Carolina and Virginia, 
more specifically referred to in paragraph six of this An­
swer, in which the courts allowed the schools of Clarendon 
and Prince Edward Counties, South Carolina and Virginia 
respectively, sufficient time for compliance with the mandate 
of the Supreme Court of the United States.

For a second and further defense, defendants allege that 
following such court decrees as above referred to, the plain­
tiffs failed and neglected to make any effort to ascertain 
what the Board of Education of Montgomery County was 
doing, or to make any request of the Board of Education 
of Montgomery County. Plaintiffs have completely failed to 
take any action to secure administrative relief or adminis­
trative action since the adjournment of the 1955 General 
Assembly of North Carolina, the decree of the Supreme 
Court of the United States on May 31, 1955, or since the 
decrees of the three-judge Federal Courts in South Carolina 
and Virginia in July 1955. Plaintiffs have not been diligent 
in the proper prosecution of any proper rights which they 
have with relation to the schools of Montgomery County. 
Plaintiffs’ conduct leads only to the conclusion that what 
the plaintiffs are seeking is a suit in court rather than ad­
ministrative relief. The children of Montgomery County 
had been assigned by the time of the filing of this action

Answer



22a

to the schools and the Board of Education cannot make 
changes quickly within the school framework which was well 
known to the plaintiffs.

For a third and further answer, the defendants are in­
formed and believe, and therefore on information and be­
lief allege and say, that the plaintiffs are not in a position 
to ask a court of equity to exercise its equity powers on be­
half of plaintiffs for that the plaintiffs are not in this ac­
tion seeking the proper protection of any rights of any 
individual plaintiff. This action is not a bona fide effort to 
obtain the relief sought in the complaint. The purposes of 
this action are the stirring up of trouble, the disruption of 
the operation of the schools, and the advancement of the 
interests of others than the plaintiffs who have no legal 
interest in the subject matter of this controversy and no 
right to the relief sought herein. These defendants allege 
that the institution of this action, at the time and under 
the circumstances when it was instituted, threatens an abuse 
of the courts and of the processes of the courts and is con­
trary to public policy.

W herefore, hav ing fu lly  answ ered the said com plaint, 
the defendants p ra y  that the action  be d ism issed, w ith p r e j­
udice, and that the costs  be taxed  against the p la intiffs.

The defendants respectfully request the court for a jury 
trial.

/ s /  G arland S. Garbiss,
Troy, N. C.

Attorney for Defendants

Answer

(Duly verified.)



23a

EXHIBIT “A ”

P etition

N orth  Carolina )
M ontgomery County  )

To the Superintendent )
and Board of School Trustees ) 
of the Montgomery County, )
North Carolina, Public Schools )

The undersigned petitioners respectfully show unto the 
Superintendent and School Board:

I.

That they are parents of children of school age who are 
entitled to attend and who are attending the public elemen­
tary and secondary schools under your jurisdiction.

II.

That pursuant to state law, five racially segregated public 
schools are being maintained and operated by you for chil­
dren of Negro parentage.

III.

That on the 17th day of May, 1954, the United States 
Supreme Court ruled that the maintenance of racially 
segregated public schools is a violation of the Constitution 
of the United States and that “ . . .  in the field of public 
education the doctrine of separate by equal has no place. 
Separate educational facilities are inherently unequal.”



24a

IV.

That in spite of the above quoted decision, the Negro 
children under your jurisdiction are still denied the right 
to attend the schools of Montgomery County on an unsegre­
gated basis for the current school term, and are required 
to attend one of the aforesaid five schools maintained by 
you solely for Negro students; That under the constitutional 
principles enunciated by the Supreme Court on May 17th, 
children of public school age attending and entitled to at­
tend public schools cannot be denied admission to any school 
or be required to attend any school solely because of race or 
color.

V.

That the uncontinued maintenance of segregated schools 
by you as above set out is a denial of the right guaranteed 
the Negro children of Montgomery County by the Federal 
Constitution, and that the nature and extent of this action 
is such that your petitioners and their children will suffer 
irreparable harm unless immediate action is taken by you 
to rectify the present situation.

W h e r e e o b e , your petitioners pray

(1) That all schools under your jurisdiction be immediately 
desegregated in accordance with the Supreme Court’s de­
cision.

(2) That by reason of the urgency of the situation and the 
nature of the issues involved, decisive and conclusive action 
be taken on this petition at the September 7, 1954, meet­
ing of the Board of School Trustees.

Respectfully submitted this 7 day of September, 1954.

Exhibit “A”



25a

E xhibit “ A ”

/ s /  Loyie E. Thomas ,

s / Percy Thomas 

s / Ada Butler

s / Hattie Stanback .

s / Erie Green .

s / Sara Butler ,

s / James S. Smith ,

s / Jessie M. Marshall ,

s / Henry Baldwin ,

s / Eushie McAuley ,

s / Trumella L. Diggs ,

s / A. D. Freeman ,

s / J. W. French 

s / Oscar Thomas ,

s / Gladys K. Thomas ,

s / Sidney Thomas (his) (x), 

s /  E. D. Gainney ,

s / Teccie M. Hammond ,

s / Jess Cagle ,

s / Irene Martin ,

s / Daisey Harris ,

s /  James Butler ,

s / N. W. Towery ,

s / Flora Kelly Simmons ,

Petitioner
U

U

u

u

u

u

u

u

u

66

66

66

66

66

66

66

66

66

6 6

66

66

66



26a

/ s /  T. H. Simmons , “

s / Ernest Simmons , “

s / George Simmons, Pres. , “
Peabody High School P.T.A.

s/ J. K enneth Lee 
J. Kenneth Lee 
Attorney for Petitioners

s / George A. Lawson 
George A. Lawson, 
Attorney for Petitioners

Exhibit “ A ”



27a

Petition

DISTRICT COURT OF THE UNITED STATES 

M iddle D istrict of N orth  Carolina 

R ockingham  D ivision 

Civil Action #323

[ same title ]

William W. Taylor, Jr., and Thomas F. Ellis, counsel 
for the North Carolina Advisory Committee on Education, 
respectfully show to the Court that, because of the vitally 
important problem of educating the children of our State, 
and the impact on our educational system of the decision 
of the Supreme Court of the United States, the Legislature 
of North Carolina on April 8, 1955, adopted a resolution 
reading in part as follows:

“ In order to provide for a continuing study of the prob­
lems which may arise as a result of the decision of the 
United States Supreme Court on May 17, 1954, and to 
provide counsel and advice to the Governor, the Gen­
eral Assembly, the State Board of Education, and the 
county and local school boards throughout the State, 
there is hereby created a committee to be known as 
the Advisory Committee on Education.”

Pursuant to the resolution so adopted, the Governor of 
North Carolina appointed a committee as provided for in 
said resolution. The committee has employed the peti­
tioners as counsel. In order that it may properly discharge 
its statutory duties, the committee is diligently seeking 
information regarding school problems in all counties in



28a

Petition

the State, and in connection therewith it is vitally inter­
ested in the questions presented by this litigation.

It is, therefore, respectfully requested that the counsel 
for the Advisory Committee on Education be permitted 
to be present at any legal proceeding in the above-entitled 
action, including the taking of depositions and other pre­
liminary hearings.

Respectfully submitted, this 27th day of September, 
1955.

N orth C arolina A dvisory C omm ittee 
on E ducation

By: W m . W. T aylor, J r .
Special Counsel

By: T hom as  F. E llis

Assistant Special Counsel



29a

Order

DISTRICT COURT OF THE UNITED STATES 

M iddle D istrict of N orth  Carolina 

R ockingham  D ivision 

Civil Action $-323

[ same title ]

It being made to appear to the Court by Petition filed 
herein by counsel for the North Carolina Advisory Com­
mittee on Education that important information concern­
ing the public schools of North Carolina will be presented 
in the above-entitled action, and as the Advisory Committee 
on Education is vitally interested in securing additional 
information so that it may, as directed by the April 8, 
1955, resolution of the North Carolina Legislature, make 
recommendations concerning the future operation of the 
schools in the State, therefore:

It is now Ordered that the counsel for the North Carolina 
Advisory Committee on Education be, and they are hereby, 
permitted to be present during any legal proceedings or 
preliminary hearings in the above-entitled action.

This, the 27th day of September, 1955.

/ s /  J ohnson  J . H ayes 
United States District Judge



30a

Ruling on Motion

DISTRICT COURT OF THE UNITED STATES 

M iddle D istbict  of N orth  Carolina 

R ockingham  D ivision  

Civil Action No. 323

{ same title }

On the motion of the plaintiffs to strike certain portions 
of the answer, which are set forth in the motion which 
appears of record, the Court grants so much of the motion 
as follows:

On page 9 of the answer the Court strikes out the sen­
tence as follows:

“ Plaintiffs’ conduct leads only to the conclusion that 
what the plaintiffs are seeking is a suit in court rather 
than administrative relief.”

And in the third defense the Court strikes out that part 
of the third defense as follows:

“ The purposes of this action are the stirring up of 
trouble, the disruption of the operation of the schools, 
and the advancement of the interests of others than 
the plaintiffs who have no legal interest in the subject- 
matter of this controversy and no right to the relief 
sought herein. These defendants allege that the insti­
tution of this action, at the time and under the circum­
stances when it was instituted, threatens an abuse of 
the courts and the processes of the courts and is con­
trary to public policy.”



31a

Ruling on Motion

The rest of the motion is refused, to which the plaintiffs 
except; and to the granting of the motion of the plaintiffs 
in the manner above set forth the defendants except.

This 11th day of October, 1955.

/ s /  Johnson J. Hayes 
United States Judge



32a

Order

DISTRICT COURT OF THE UNITED STATES 

M iddle D istrict of N orth Carolina 

R ockingham  D ivision  

Civil Action #323

[ same title ]

The North Carolina Advisory Committee on Education 
having moved the Court for permission to amend the Peti­
tion filed herein on September 27, 1955, so as to request 
that members of the Advisory Committee, as well as coun­
sel for said Committee, be allowed to be present at any 
legal proceedings in the above entitled action, and said 
Motion having been considered by the Court in connection 
with the original motion herein filed by said Advisory Com­
mittee and the order entered thereon, and it appearing to 
the Court that the amendment to said Petition should be 
allowed and said order should be amended accordingly:

It is now Ordered that members of the North Carolina 
Advisory Committee on Education, as well as counsel for 
said Committee, be, and they are hereby, permitted to be 
present during any legal proceedings or preliminary hear­
ings in the above-entitled action, and the original Petition 
filed by said Committee, and the Order entered by the Court 
thereon, are hereby amended accordingly.

This, the 13th day of October, 1955.

J ohnson  J. H ayes 
United States District Judge



33a

I n the

DISTRICT COURT OF THE UNITED STATES 

M iddle D istrict of N orth Carolina 

R ockingham  D ivision 

N o. 323 Civil

Amendment to Complaint

[ same title ]

The plaintiffs, by leave of Court first had and obtained, 
amend their complaint heretofore filed in this action as 
follows:

Paragraph Four of said Complaint which now reads:

Defendant J. S. Edwards is Superintendent of 
Schools of Montgomery County. Defendants E. R. 
Wallace, D. C. Ewing, Harold A. Scott, James R. Burt 
and James Ingram constitute the county board of 
education. Said board maintains and generally super­
vises certain schools in said County for the education 
of white children exclusively and other schools in said 
County for the education of Negro children exclusively.

Is hereby amended to read:
Defendant J. S. Edwards is Superintendent of 

Schools of Montgomery County. Defendants E. R. 
Wallace, D. C. Ewing, Harold A. Scott, James R. Burt 
and James Ingram constitute the county board of 
education. Said board maintains and generally super­
vises certain schools in said County for the education



34a

of white children exclusively and other schools in said 
County for the education of Negro children exclusively.

That in the performance of these acts the said defen­
dants are acting pursuant to the direction and au­
thority contained in State Constitutional provisions, 
State Statutes, State Administrative Orders and Legis­
lative Policy and as such, are officers of the State of 
North Carolina enforcing and executing State Stat­
utes and Policies.

And except as hereby amended, plaintiffs adopt, and 
ratify their original Complaint as amended on August 12, 
1955 as if herein set out.

This 16th day of December, 1955.

/ s /  J. K en n eth  L ee 
Attorney for the Plaintiffs

Amendment to Complaint



35a

Answer to Amendment to Complaint

I n  the

DISTRICT COURT OF THE UNITED STATES

M iddle D istrict of N orth Carolina 
R ockingham  D ivision 

No. 323 Civil

[ same title }

The defendants, answering the plaintiffs amendment to 
complaint, paragraph four thereof, allege and say:

I.
It is admitted that defendant, J. S. Edwards, is Super­

intendent of Schools of Montgomery County; and that 
defendants, E. R. Wallace, D. C. Ewing, James A. Burt, 
Harold A . Scott and James Ingram, are members, and the 
only members, of The Board of Education of Montgomery 
County. It is admitted that The Board of Education of 
Montgomery County generally supervises the public schools 
in Montgomery County. It is admitted that in the per­
formance of these acts the said defendants, as members of 
The Board of Education of Montgomery County, are act­
ing pursuant to and by authority of the laws of the State 
of North Carolina. Except as herein admitted, the allega­
tions of paragraph four of the amended complaint are 
denied.

Together with this answer, the defendants adopt and 
ratify their original answer filed in this cause to the fullest 
extent as if herein set out.

This the 19th day of January, 1956.
G arland S. G arriss

Attorney for the Defendants 
P. 0 . Box 156

Troy, North Carolina



36a

In th e

DISTRICT COURT OF THE UNITED STATES 

F oe the  M iddle D istrict  oe N orth Carolina 

R ockingham  D ivision 

No.: 323—R

Motion for Leave to File Amended and Supplemental
Complaint and Add Parties-Defendant

[ same title ]

N ow comes J. K en n eth  L ee, attorney for plaintiffs in 
this cause and respectfully shows unto the court:

1) That the complaint in this action was tiled on the 
29th day of July, 1955 and subsequently amended by leave 
of the court on the 12th day of August, 1955, and on the 
16th day of December, 1955.

2) That subsequent to the filing of the petition in this 
action, the General Assembly of the State of North Caro­
lina, in regular session, passed an act entitled “ An Act 
Rewriting, Rearranging, Renumbering and Amending 
Chapter 115 of the General Statutes and Appealing Certain 
Obsolete Sections Thereof” which chapter governs and 
regulates the operation of the public schools of North 
Carolina.

3) That subsequent to the filing of the complaint and 
amendments to the complaint in this action, the General 
Assembly of the State of North Carolina, at a special ses­
sion held during the week of July 24, 1956, amended Article 
21, Chapter 115 of the General Statutes of North Carolina



37a

relating to the assignment and enrollment of pupils in 
public schools of North Carolina, and further amended 
Chapter 115 by adding Article 34 providing for Local 
Option to suspend operation of Public Schools and Article 
35 providing for Education Expense Grants for children 
attending Non-Public Schools.

4) That subsequent to the filing of the complaint and 
amendments in this action, the General Assembly of the 
State of North Carolina, in special session held during 
the week of July 24, 1956, enacted a bill to amend Article 9 
o£ the Constitution of the State of North Carolina so as 
to authorize education expense grants and to authorize 
local option to suspend operation of public schools; that 
said Act was ratified by the General Assembly and ap­
proved by a majority vote of the people of North Carolina 
on the 8th day of September, 1956.

5) That these and other changes in the school law in 
the State of North Carolina, as hereinbefore referred to, 
materially affect the plaintiffs’ cause of action and are 
material to the controversy involved in this action; that 
because of the effect of the said changes of the laws of the 
State of North Carolina and to prevent a multiplicity of 
suits, the plaintiffs now desire to set up and plead these 
changes by filing an amended and supplemental complaint 
in this action.

6) That a copy of the amended and supplemental com­
plaint sought to be filed herein is attached hereto and made 
a part of this motion.

7) That because of certain allegations contained in the 
defendants’ answer to the plaintiffs amended complaint, 
and because of certain provisions contained in the bills and

Motion for Leave to File Amended and Supplemental
Complaint and Add Parties-Defendant



38a

resolutions changing the school laws of the State of North 
Carolina as hereinbefore set out and referred to in para­
graphs 2, 3 and 4 of this motion, it now appears that the 
State Board of Education and the Superintendent of Pub­
lic Instruction of the State of North Carolina are neces­
sary parties to a final determination of the real controversy 
involved in this action.

8) That the parties sought to be joined herein as parties- 
defendant are citizens and residents of the State of North 
Carolina and are in the jurisdiction of this court and may 
be made parties-defendant without depriving this court of 
its jurisdiction.

9) That this motion is made in good faith, in apt time, 
will not prejudice the rights of the defendant if granted 
and is not made for the purpose of delay.

W herefore, the plaintiffs, through their counsel, move 
the court that an order issue allowing them to file an 
amended and supplemental complaint and adding as addi­
tional parties-defendant the individual members of the 
State Board of Education of the State of North Carolina 
and the Superintendent of Public Instruction.

This 13th day of Sept., 1956.

J . K en n eth  L ee 
P. 0. Box 645

Greensboro, North Carolina

Motion for Leave to File Amended and Supplemental
Complaint and Add Parties-Defendawt



39a

1st the

DISTRICT COURT OF THE UNITED STATES 

F ob th e  M iddle D istrict of N orth Carolina 

R ockingham  D ivision

Amended and Supplemental Complaint

[ same title ]

Plaintiffs, on behalf of themselves and for the benefit 
of and on behalf of all other citizens and residents of Mont­
gomery County who may be similarly situated, allege:

I

a) The jurisdiction of this Court is invoked under Title 
28, United States Code, Section 1331. This action arises 
under the Fourteenth Amendment of the Constitution of 
the United States, Section 1, and the Act of May 31, 1870, 
Chapter 114, Section 16, 16 Stat. 144 (Title 42, United 
States Code, Section 1981), as hereinafter more fully ap­
pears. The matter in controversy exceeds, exclusive of in­
terest and costs, the sum or value of Three Thousand Dol­
lars ($3,000.00).

b) The Jurisdiction of this Court is also invoked under 
Title 28, United States Code, Section 1343. This action is 
authorized by the Act of April 20, 1871, Chapter 22, Sec­
tion 1, 17 Stat. 13 (Title 42, United States Code, Section 
1983), to be commenced by any citizen of the United States 
or other person within the jurisdiction thereof to redress 
the deprivation, under color of a state law, statute, ordi­
nance, regulation, custom or usage, or rights, privileges



40a

and immunities secured by the Fourteenth Amendment of 
the Constitution of the United States, Section 1, and by 
the Act of May 31, 1870, Chapter 114, Section 16, 16 Stat. 
144 (Title 42, United States Code, Section 1981), providing 
for the equal rights of citizens and of all persons within 
the jurisdiction of the United States, as hereinafter more 
fully appears.

c) The jurisdiction of this Court is also invoiced under 
Title 28, United States Code, Section 2281. This is an 
action for an interlocutory and permanent injunction re­
straining, upon the ground of unconstitutionality, the en­
forcement of provisions of the North Carolina General 
Statutes and Constitution, administrative order of the 
Montgomery County Board of Education, and customs, 
practices and usages requiring or permitting segregation 
in education in Montgomery County and the State of North 
Carolina by restraining defendants from enforcing such 
Statutes Constitutional provisions, administrative orders, 
customs, practices and usages.

d) This is a proceeding under Sections 2201 and 2202 of 
Title 28, United States Code, for a declaratory judgment 
to determine and define the rights and legal relations of 
plaintiffs in the subject matters of this controversy, and 
for a final adjudication of all matters in actual controversy 
between parties to this cause. To wit, the question whether 
the enforcement, execution or operation of Articles 21, 34 
and 35, Chapter 115 of the General Statutes of North Caro­
lina and Article 9 Sections 2 and 12 of the Constitution of 
the State of North Carolina or any other laws or orders 
which have the effect of maintaining or perpetrating segre­
gation in Schools in the State, by the defendants against the 
plaintiffs and the class of persons that they represent deny 
to them the privileges and immunities as citizens of the

Amended and Supplemental Complaint



41a

United States and the equal protection of the laws secured 
to them by Section 1 of the Fourteenth Amendment of the 
Constitution of the United States or rights and privileges 
secured to them by Section 1981 of Title 42, United States 
Code, and are for these reasons unconstitutional and void.

II

Plaintiffs bring this action pursuant to Rule 23 a of the 
Federal Rules of Civil Procedure for themselves and on 
behalf of all other Negroes similarly situated whose num­
bers make it impracticable to bring them all before the 
court. They seek common relief based upon common ques­
tions, of law and fact.

Amended and Supplemental Complaint

III

Plaintiffs are Negroes, citizens of the United States and 
of the State of North Carolina. They are residents of 
Montgomery County in said State. Infant plaintiffs have 
satisfied all requirements for admission to the schools in 
Montgomery County. Adult plaintiffs, not applicants, are 
parents or guardians of infant plaintiffs, applicants.

IV

a) Defendant J. S. Edwards is Superintendent of Schools 
for Montgomery County. Defendants E. R. Wallace, D. C. 
Ewing, Harold A. Scott, James R, Burke and James Ingram 
constitute the Montgomery County Board of Education. 
Said Board of Education maintains and generally super­
vises certain schools in said county for the education of 
white children exclusively and other schools in said County 
for the education of Negro children exclusively; that in the 
performance of these acts, the said defendants are acting 
pursuant to the direction and authority contained in State



42a

Constitution provisions, State statutes, State administra­
tive orders and legislative policy and as such are officers 
of the State of North Carolina enforcing and executing 
State statutes and policy.

b) Defendants Charles F. Carroll, Edwin Gill, John A. 
Pritchet, W. Dallas Herring, A. S. Brower, Charles G. 
Bose, Jr., Charles W. McCrary, Oscar L. Richardson, 
R. Barton Hayes, J. Gerald Cowan, B. B. Dougherty, and 
Harold L. Trigg, are members of the State Board of Educa­
tion of the State of North Carolina and are charged with 
the general supervision and administration of a free public 
school system of said State: the defendant Charles F. 
Carroll is the State Superintendent of Public Instruction 
of the State of North Carolina and is the administrative 
head of the public school system and Secretary of the State 
Board of Education. Said defendants are being sued in 
their official and individual capacities that said defendants 
are citizens and residents of the State of North Carolina.

V

On September 7, 1954 plaintiffs petitioned the Board of 
Education of Montgomery County to abolish segregation 
in the schools in their district.

VI

That said Board refused to desegregate said schools 
within its jurisdiction; that plaintiffs are informed and 
believe and upon said information and belief allege that the 
action of said Board in refusing to desegregate the schools 
within its jurisdiction was done pursuant to orders, resolu­
tions or directives of the State Board of Education and 
the Superintendent of Public Instruction.

Amended and Supplemental Complaint



43a

Amended and Supplemental Complaint 

VII

a) The North Carolina constitutional provisions involved 
are (1) Article 9, Section 2, a portion of which provides 
that:

“ Children of the white race and the children of the 
colored race shall be taught in separate public schools, 
but there shall be no discrimination in favor of or to 
the prejudice of either race.”

(2) Article 9, Section 12, which provides:

“Notwithstanding any other provision of this Constitu­
tion, the General Assembly may provide for payment 
of education expense grants from any State or local 
public funds for the private education of any child for 
whom no public school is available or for the private 
education of a child who is assigned against the wishes 
of his parents or guardian to a public school attended 
by a child of another race. A  grant shall be available 
only for education in a nonsectarian school, and in the 
case of a child assigned to a public school attended by 
a child of another race, a grant shall in addition, be 
available only when it is not reasonable and practible 
to reassign such child to a public school not attended 
by a child of another race.

“ Notwithstanding any other provision of this Con­
stitution, the General Assembly may provide for a uni­
form system of local option whereby any local option 
unit, as defined by the General Assembly, may choose 
by a majority vote of the qualified voters in the unit 
voting on the question to suspend or to authorize the 
suspension of the operation of one or more of the public 
schools in that unit.



44a

“ No action taken pursuant to the authority of this 
Section shall in any manner affect the obligation of the 
State or any political subdivision or agency thereof 
with respect to any indebtedness heretofore or here­
after created.”

b) That at its 1955 session, the North Carolina General 
Assembly rewrote Chapter 115 of the General Statutes 
of North Carolina, that Article 21, Chapter 115 of the Gen­
eral Statutes of North Carolina as amended in 1956, pro­
vides for the assignment of pupils in the public school sys­
tem of North Carolina; that on or about the 23rd day of 
July, 1956 the North Carolina General Assembly, in special 
session passed an act amending Chapter 115 of the General 
Statutes by adding Articles 34 and 35 and revising Article 
20, Section 166. That said Amendments, commonly known 
and referred to as the “ Pearsall Plan,” authorized educa­
tional expense grants, local option and to suspend operation 
of public schools, and revised the Compulsory School At­
tendance Laws; that the said acts of the General Assembly 
hereinbefore referred to were ratified by vote of the people 
September 8, 1956; that the said acts hereinbefore referred 
to have as their singular and sole purpose and effect the 
continuation of racial segregation in the public schools of 
this said State by circuitous methods that will abort, modify, 
nullify or defeat the spirit and purpose of the laws of the 
United States.

c) That the public policy of the State of North Carolina, 
as declared by the General Assembly by Resolution No. 29 
passed on the 8th day of April, 1955 and by Resolution of 
Condemnation and Protest passed in Special Legislative 
Session, August, 1956, is to continue segregation of the races 
in public education; that said public policy is in violation of 
the Constitution and laws of the United States.

Am ended and Supplem ental Complaint



45a

Amended and Supplemental Complaint 

V III

North Carolina constitutional and statutory provisions 
and separation in the public schools accomplished by any 
means whatsoever insofar as it requires children of the 
white race and the children of the colored race shall be 
taught in separate public schools and the customs prac­
tices and usages of the Montgomery County school officials 
as applies to these plaintiffs, by these defendants, deprives 
plaintiffs of equal protection of the laws in violation of 
the Fourteenth Amendment of the Constitution of the 
United States.

IX

Plaintiffs and each of them and those similarly situated 
suffer and are threatened with irreparable injury by the acts 
herein complained of. They have no plain, adequate or com­
plete remedy to redress these wrongs other than this suit 
for declaratory judgment and injunctive relief both tem­
porary and permanent. Any other remedy would be at­
tended by such uncertainties and delays as to deny substan­
tial relief, would involve a multiplicity of suits, cause fur­
ther irreparable injury and occasion damage, vexation and 
inconvenience not only to the plaintiffs and those similarly 
situated, but to defendants as governmental agencies.

W herefore, p la in tiffs  resp ectfu lly  p ra y

1) That the Court convene a three-judge court as re­
quired by Title 28, United States Code, Sections 2281 and 
2284.

2) That the Court advance this cause on the docket and 
order a speedy hearing of the application for interlocu­
tory injunction and upon such hearings:



46a

a) The Court enter a temporary injunction or re­
straining order enjoining and restraining the defen­
dants and each of them, their agents, servants, employ­
ees, successors in office, attorneys and all persons 
in concert with them who shall receive notice of 
the order, from enforcing Sections 2 and 12, Article 9, 
of the Constitution of North Carolina, or Articles 20, 21, 
34 and 35, Chapter 115, of the General Statutes of North 
Carolina, against the plaintiffs or any of them, or 
against any member of the class of persons that plain­
tiffs represent for the reason that Sections 2 and 12, 
Article 9, of the North Carolina Constitution and Arti­
cles 20, 21, 34 and 35, Chapter 115 of the General Stat­
utes of North Carolina and racial separation in the 
Schools otherwise accomplished deny to plaintiffs and 
the class of persons that they represent their privileges 
and immunities, and the equal protection of the laws 
secured to them by Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States and their 
civil rights as guaranteed to them by Sections 1981 and 
1983 of Title 42, United States Code, and are for these 
reasons unconstitutional and void.

3) That after this cause has been heard on its merits 
the Court enter a final judgment, order and decree that will 
be declarative of the legal rights and relations of plain­
tiffs and the class of persons that they represent in the sub­
ject matters in controversy in this action.

4) That the Court issue interlocutory and permanent in­
junctions ordering defendants to promptly present a plan of 
desegregation to this court which will expeditiously desegre­
gate the schools in Montgomery County and forever re­
straining and enjoining the defendants and each of them

Am ended and Supplem ental Complaint



47a

from thereafter requiring these plaintiffs and all other 
Negroes of public school age to attend public schools in 
Montgomery County and the State of North Carolina on a 
segregated basis.

5) That the Court allow plaintiffs their costs herein and 
grant such other and further relief as may appear proper 
and just in the premises.

C. 0 .  P earson 
203 Chapel Hill Street 

Durham, North Carolina

J . K en n eth  L ee 
P. 0. Box 645

Greensboro, North Carolina 
Attorney for the Plaintiffs

M ajor S. H igh 
427 Benbow Road

Greensboro, North Carolina

W illiam  H. M arsh , J r .
203 Chapel Hill Street 

Durham, North Carolina

Am ended and Supplem ental Complaint



48a

Motion to Dismiss

I n the

UNITED STATES DISTRICT COURT 

M iddle D istrict oe N orth  Carolina 

R ockingham  D ivision 

N o. 323 Civil

[ same title ]

Defendants move the Court as follows:

1. To dismiss this action because the complaint fails to 
state a claim against the defendants upon which relief can 
be granted.

2. To dismiss this action with prejudice and with costs 
to the defendants on the ground that plaintiffs have failed to 
prosecute the action with due diligence and in accordance 
with orders of the Court.

s / Garland S. G arriss 
Attorney for Defendants

I do hereby certify that a copy of the above and forego­
ing motion has this day been served upon J. Kenneth Lee, 
George A. Lawson and C. 0. Pearson, counsel for the Plain­
tiffs, by mailing copies thereof addressed to them at their 
law offices in Greensboro and Durham, North Carolina, 
postage prepaid, this 13 day of March, 1958.

s / Garland S. Garriss 
Attorney for Defendants



49a

In the

UNITED STATES DISTRICT COURT 

F or th e  M iddle D istrict oe N orth Carolina 

R ockingham  D ivision 

Civil No. 323-R

[ same title ]

Opinion

J. K en n eth  L ee and M ajor S. H ig h , of Greens­
boro, North Carolina, and W illiam  A. 
M arsh , J r . and C. 0. P earson, of Durham, 
North Carolina, for Plaintiffs.

G arland S. Garriss, of Troy, North Carolina, and 
T homas F. E llis , of Raleigh, North Caro­
lina, for Defendants, Montgomery County 
Board of Education.

M alcolm  B. S ea w ell , Attorney General of North 
Carolina, and Ralph Moody, Assistant At­
torney General of North Carolina, for State 
Board of Education and State Superinten­
dent of Public Instruction.

S tan ley , District Judge:

The complaint in this action was filed on July 29, 1955, 
as a class action by thirteen adult plaintiffs personally and 
as next friend of forty-five minor plaintiffs, on behalf of 
themselves and all other citizens and residents of Mont­
gomery County, North Carolina, similarly situated. Named 
as defendants are the Superintendent of Schools of Mont­



50a

gomery County, North Carolina, and the individual mem­
bers of the Montgomery County Board of Education.

In their complaint, plaintiffs asked (1) that a three-judge 
court be convened, (2) that interlocutory and permanent 
judgments be entered “ declaring that Article IX, Section 2, 
of the North Carolina Constitution, and any customs, prac­
tices and usages pursuant to which plaintiffs are segregated 
in their schooling because of race, violate the Fourteenth 
Amendment to the United States Constitution” , and (3) 
that interlocutory and permanent injunctions issue “ order­
ing defendants to promptly present a plan of desegregation 
to this court which will expeditiously desegregate the 
schools in Montgomery County and forever restraining 
and enjoining defendants and each of them from thereafter 
requiring these plaintiffs and all other Negroes of public 
school age to attend or not to attend public schools in Mont­
gomery County because of race.”

Plaintiffs were allowed to amend their complaint on 
August 12, 1955, but without changing the nature of their 
cause of action. Thereafter, an order was signed denying 
plaintiffs’ motion for a three-judge court.

After receiving an extension of time within which to 
answer, the defendants filed their answer on September 12, 
1955, alleging failure to exhaust administrative remedies 
and lack of good faith on the part of the plaintiffs in bring­
ing the action. Upon motion of plaintiffs, a portion of the 
answer charging plaintiffs with lack of good faith was 
stricken.

Thereafter, plaintiffs filed a motion to amend their com­
plaint to allege that defendants are officers of the State of 
North Carolina, enforcing and executing state statutes and 
policies. After a hearing on this motion, an order was 
entered by the court on December 16, 1955, allowing the 
amendment.

Opinion



51a

On February 23, 1956, plaintiffs petitioned the court to 
reconsider its order denying their motion for a three-judge 
court. This motion was again denied in an opinion rendered 
by Judge Johnson J. Hayes on April 6, 1956. Covington 
v. Montgomery County School Board, 139 F. Supp. 161 
(M. D. N. C., 1956).

On September 13, 1956, plaintiffs filed a motion for leave 
to file amended and supplemental complaint and to add 
parties defendant. In the supplemental complaint, plaintiffs 
seek to test the constitutionality of certain state school laws, 
commonly known and referred to as the “ Pearsall Plan,” 
and seek to make the members of the State Board of Educa­
tion and the Superintendent of Public Instruction of the 
State of North Carolina parties defendant. Thereafter, the 
Attorney General of the State of North Carolina made a 
special appearance on behalf of members of the Board of 
Education and the State Superintendent of Public Instruc­
tion in opposition to plaintiffs’ motion, and the defendants 
filed a motion to dismiss the complaint for failure to state 
a claim on which relief could be granted, and for failure to 
prosecute.

A hearing on pending motions was held on March 26, 
1958, at which time the Court ordered the parties to file 
briefs setting forth their legal contentions on all issues 
raised by the pleadings and the pending motions. The At­
torney General of the State of North Carolina was directed 
to file a brief with the court with respect to his position on 
all the issues raised in the pleadings.

The principal questions now before the court for deter­
mination are (1) whether the complaint, or proposed 
amended and supplemental complaint, states a claim against 
the defendants on which relief can be granted, and (2) 
whether the members of the State Board of Education and

Opinion



52a

the State Superintendent of Public Instruction are neces­
sary and proper parties to the action.

The decision that has been reached on the first question 
makes a determination of the second question unneces­
sary for disposition of this case. However, in regard to the 
second question, this court has today rendered an opinion 
in another case, John L. Jeffers, et als. v. Thomas H. Whit­
ley, Superintendent of the Public Schools of Caswell County,
et als., ------  F. Supp. ------  (D. C. M. D. N. C., 1958), in
which it was held that the members of the State Board of 
Education and the State Superintendent of Public Instruc­
tion are neither necessary nor proper parties in actions 
of this type.

In regard to the first issue, it should be stated at the 
outset that the plaintiffs have not alleged in either their 
original complaint, or in their proposed amended and sup­
plemental complaint, that there has been any exhaustion 
of their administrative remedies as provided for in Sec. 
115-176 through 115-178 General Statutes of North Carolina, 
known as the Enrollment and Assignment of Pupils Act. 
Indeed, in their brief, plaintiffs admit that they did not 
proceed under this act, and contend that exhaustion of ad­
ministrative remedies provided for by the act are unneces­
sary.

Counsel for the plaintiffs make this contention in face of 
the decisions rendered by the Court of Appeals for this 
circuit in Carson v. Board of Education of McDowell Coun­
ty, Cir. 4, 227 F. 2d 789 (1955), and Carson v. Warlick, Cir. 
4, 238 F. 2d 724, certiorari denied 353 U. S. 910, 77 S. Ct. 
665, 1 L. Ed. 2d 664.

They advance the argument that the presumption relied 
on in Carson v. Warlick, supra, that school officials “will 
obey the law, observe the standards prescribed by the

Opinion



53a

legislature, and avoid the discrimination on account of race 
which the Constitution forbids” is not valid because of the 
length of time that has passed since the decision of the 
Supreme Court of the United States in Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), 
without the defendant’s acting to desegregate the public 
schools of Montgomery County. The fallacy of this argu­
ment is readily seen when one reflects on what the Supreme 
Court actually held in the Brown case. As has been re­
peatedly stated, the Brown case does not require integra­
tion, but only holds that states can no longer deny to any­
one the right to attend a school of their choice on account 
of race or color. Briggs v. Elliott, 132 F. Supp. 776 (E. D. 
S. C., 1955); Thompson v. County School Board of Arling­
ton County, 144 F. Supp. 239 (E. D. Va., 1956); School 
Board of City of Newport News, Va. v. Atkins, 246 F. 2d 
325 (1957).

Counsel for plaintiffs further contend that even if the 
Assignment and Enrollment of Pupils Act is constitutional, 
it need not be complied with in this case because the provi­
sions of the act are being unconstitutionally applied. This 
argument is completely untenable in view of the fact that 
there is no allegation that any of the plaintiffs ever sought 
to comply with the provisions of the act. Not until each of 
the plaintiffs has applied to the Board of Education of Mont­
gomery County as individuals, and not as a class, for reas­
signment, and have failed to be given the relief sought, 
should the courts be asked to interfere in school adminis­
tration. Carson v. Warlick, Supra.

The requirement for plaintiffs in suits of this type to 
exhaust administrative remedies before seeking injunctive 
relief in the federal court is discussed at some length in 
the case of Joseph Hiram Holt, Jr. v. Raleigh City Board of

Opinion



54a

Education, —  F. Supp.------ - (M. D. N. C., 1958), decided
on August 29, 1958. Reference is made to that case for 
further discussion of my views on this subject.

In view of the plain holding of the Court of Appeals for 
this circuit in the Carson cases, and in view of the fact that 
the plaintiffs do not allege that they have exhausted, or 
have even attempted to exhaust, their administrative reme­
dies under the North Carolina Assignment and Enrollment 
of Pupils Act, I conclude that the plaintiffs have failed to 
state a claim against the defendants, in either their original 
complaint or their proposed amended and supplemental 
complaint, on which relief can be granted, and that this 
action should be dismissed.

A  judgment will be entered in conformity with this opin­
ion.

This the 12th day of September, 1958.

/ s /  Ed wist M. S tanley  
United States District Judge

Opinion



55a

Judgment

I n the

UNITED STATES DISTRICT COURT

F oe th e  M iddle D istrict of N orth  Carolina 
R ockingham  D ivision

Civil No. 323-R

[ same title ]

The above cause came on to be heard before the under­
signed District Judge on March 26, 1958, at which time 
the Court heard arguments of counsel on the defendants’ 
motion to dismiss the complaint for failure to state a claim 
on which relief could be granted and for failure to prose­
cute their action, and on the plaintiffs’ motion for leave to 
tile amended and supplemental complaint .and to add parties 
defendant. The Court having considered the arguments 
of counsel for both sides and of the Attorney General of 
North Carolina, whom the Court had invited to file briefs 
in this matter, and having entered an Opinion under date 
of September 12, 1958, and having directed that a Judg­
ment be entered in conformity with the Opinion:

Now, therefore, it is Ordered, adjudged and decreed that 
this action be and the same is hereby dismissed; that the 
motion to file amended and supplemental complaint and to 
add parties defendant is denied; that the prayer of the plain­
tiffs for relief be and the same is hereby denied;

It is further Ordered, adjudged and decreed that the par­
ties hereto will bear their own costs of Court incurred 
herein.

This 6 day of October, 1958.
s / E dw in  M. S tanley  

United, States District Court



38