Duval County, FL Board of Public Instruction v. Baxton Brief for Appellees

    Wnxttb ©curt nf Appeals
F ifth Circuit 

No. 20,294

B oard of P ublic Instruction of 
D uval County, Florida, et al.,

Appellants,
—versus-

D aly N. Braxton and Sharon B raxton, minors, by 
Sadie Braxton, their mother and next friend, et al.,

Appellees.

BRIEF FOR APPELLEES

E arl M. J ohnson
625 West Union Street 
Jacksonville, Florida

Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

Counsel for Appellees



I N D E X

PAGE

Statement of the Case ..................... ................ ........ ....  1
2. Stipulation of F acts............................................. 1

3. Testimony and Documentary Evidence ............. 2

Questions Presented ......      2

A rgument ......................   3

I. Appellees Were Entitled to an Injunction End­
ing All Vestiges of Eacial Segregation in the 
School System .........    3

a. Appellees’ answer to Questions Nos. 2, 3 and 
5 as stated in Appellants’ brief on pages 12 
and 13 ................................................................  3

II. Evidence to Support Paragraph 3(D) of the 
Permanent Injunction .........    7

a. Appellees’ answer to Question No. 1 as stated 
in Appellants’ brief at page 12 .....................  7

III. Findings of Fact to Support Injunctive Relief .. 8

a. Appellees’ answer to Question No. 4 as stated 
in the Appellants’ brief at page 13 ..............  8

Conclusion..............................................................   11

T able of A uthorities:

Cases:

Augustus v. Board of Public Instruction, 306 F. 2d 862,
868 (5th Cir. 1962) 4



PAGE

Brown v. Board of Education of Topeka, 347 U. S. 483,
494 (1954) .................      3,4

Brown v. Board of Education of Topeka, 349 U. S. 294
(1955) .............................................................................  3

Burton v. Wilmington Park Authority, 365 U. S. 715 
(1961) .....................................   5

Carter v. Texas, 177 IT. S. 442 (1900) ............................  5

Holmes v. City of Atlanta, 350 U. S. 879 (1955) ......... 5

Jackson, et al. v. School Board of the City of Lynch­
burg (Fourth Circuit, No. 8722, decided June 29, 
1963) ....    5

Mapp v. School Board of the City of Chattanooga, 
Tenn., 319 F. 2d 571 (6th Cir. 1963) (6th Cir. No.
15038-39, decided July 8, 1963) .................................  4

Matton Oil Transfer Corporation v. Dynamic, 123 F.
2d 999 .............................................................................  9

Mayor and City Council of Baltimore v. Dawson, 350 
U. S. 877 (1955) ....................    5

Nixon v. Herndon, 273 U. S. 536 (1927) ......................  5

Quaker City Cab Co. v. Pennsylvania, 277 H. S. 389,
406 (1928) .....................................................................  6

Shelley v. Kraemer, 334 U. S. 1 (1948) .......................... 6
Shellman v. Shellman, 95 F. 2d 108, 109 (D. C. Cir. 

1938) ............................................................................... 9

Rule:

Rule 52a of the Federal Rules of Civil Procedure....... 9

ii



Itti&fr BtnUz (Emirt of Kppmh
F ifth Circuit 

No. 20,294

B oard of P ublic Instruction of 
D uval County, Florida, et al.,

Appellants,
—versus—

D aly N. B raxton and Sharon B raxton, minors, by 
Sadie Braxton, their mother and next friend, et al.,

Appellees.

BRIEF FOR APPELLEES

Statement of the Case

Appellees accept the statement of the case as stated by 
the appellants with the following modifications and addi­
tions :

2. Stipulation of Facts

(a) Stipulation No. 5: All persons seeking teaching 
positions were required to state their race in the applica­
tion filed in the superintendent’s office (E. 50-51).

(b) Stipulation No. 6: Visiting teachers are limited to 
visiting schools where the students are of their race (R. 51).

(c) Stipulation No. 8: The Supervisor of the Negro Ele­
mentary schools no longer has the word “ Negro” appearing 
in his title, but he is in fact a Negro and is limited to work­
ing with Negro schools (E. 51).



2

3. Testimony and Documentary Evidence

(a) Mr. Benthone, a Negro principal testified to hav­
ing received a document entitled “ School Bond Issue for 
Negro Schools.” The document covered outlays for re­
pairs and additions to Negro schools (B. 111). Dr. Ander­
son, Director of Administration, identified the document 
as one prepared for a Bond Issue (R. 224).

(b) Mr. Benthone headed a school attended solely by 
Negro students (R. 105). No white teacher is employed 
on his staff (R. 51). The personnel office supplies him with 
teachers when he cannot locate a teacher himself (R. 129).

(c) There are two technical high schools, one attended 
by white students, the other attended by Negro students 
(R. 56). The curriculum of the Negro school is different 
from that of the white school (R. 220, Appellees’ Exhibit 
No. 18).

(d) Contrary to appellants’ statement on page 8 of their 
brief, second paragraph, the survey in connection with 
school construction, conducted by the State Department of 
Education, does contain a breakdown of schools by race 
(R. 200-201).

Questions Presented

Appellees accept the appellants’ statement of the ques­
tions presented.



3

A R G U M E N T

I.
Appellees Were Entitled to an Injunction Ending All 

Vestiges of Racial Segregation in the School System.

a. Appellees’ answer to Questions Nos. 2, 3 and 5 as 
stated in Appellants’ brief on pages 12 and 13.

Appellants have limited their appeal to two aspects of 
the injunction issued by the court below, namely, paragraph 
3(D) of the permanent injunction restraining approval of 
budgets, employment contracts, instruction programs and 
other policies which are designed to perpetuate a school 
system operated on a racially segregated basis, and para­
graph 3(E) restraining the assignment of teachers and 
other school personnel on the basis of race.

Appellees submit that both aspects of the District Court’s 
injunction properly issued under the principles enunciated 
in Brown v. Board of Education of Topeka, 347 U. S. 483 
(1954). That case affirmatively required the cessation of 
racial segregation in the entire school system. From the 
very beginning the Supreme Court approached these cases 
as an attack on segregation in the entire educational sys­
tem as opposed to the right of individual pupils to be ad­
mitted to white schools maintained by states under the 
separate but equal doctrine.

This was the very reason for setting these cases down 
for reargument in 1954 after the court first pronounced 
that further enforcement of racial segregation in public 
schools is unconstitutional. Upon reargument of Brown v. 
Board of Education of Topeka, 349 U. S. 294 (1955), the 
Court again made clear that what was contemplated in these 
cases was a reorganization of the school system on a non- 
racial basis.



4

It is a matter of common knowledge that the assignment 
of Negro teachers to Negro schools is one of the major 
ways in which the educational system is maintained on a 
segregated basis. Negro schools are not evidenced solely 
by the fact that all the pupils are Negro, but also by the 
fact that in front of every class is a Negro, the principal 
is a Negro, all special teachers are Negro and the super­
visors are Negro. It is likewise obvious that should ap­
pellants be permitted to make their policies, budgets and 
contruction programs with race as a factor, another major 
means of preserving racial segregation remains. Racial 
assignment of teachers and utilization of race in other 
school activities are all official reminders that students were 
once required by the state to be separated on the basis 
of race. As Brown v. Board of Education of Topeka, 347 
U. S. 483, 494 (1954) has found that “ the policy of sepa­
rating the races is usually interpreted as denoting the in­
feriority of the Negro group”, any indicia which has been 
a symbol of denoting the separation of Negro students will 
continue to be an official statement of the inferiority of 
such students. Appellants claim that injury to the ap­
pellees has not been proven. However, the Brown case 
found that separation of the races is inherently unequal and 
harmful, and, therefore, proof that major means of sepa­
rating the races has not been ended sufficiently proves 
continuing injury to the appellees. This being the case, 
the rights appellees assert are not solely the rights of the 
teachers but are personal and essential to their relief. This 
Court and the Sixth Circuit have found that, as a threshold 
matter, Negro children have standing to raise the issue of 
the racial assignment of teachers. Augustus v. Board of 
Public Instruction, 306 F. 2d 862, 868 (5th Cir., 1962) ;  
Mapp v. School Board of the City of Chattanooga, Tenn., 
319 F. 2d 571 (6th Cir. 1963) (6th Cir. No. 15038-39, de­
cided July 8, 1963).



5

The Fourth Circuit has recently ruled that the desegrega­
tion of teacher assignments is properly within a complaint 
praying for the desegregation of the school system, Jack- 
son, et al. v. School Board of the City of Lynchburg (Fourth 
Circuit, No. 8722, decided June 29, 1963), and the District 
Court thereunder has ordered two school boards to bring 
in plans for the nonracial assignment of their facilities.

Appellants argue that appellees have cited no Supreme 
Court case which specifically prohibits assignment of 
teachers on a racial basis or which prohibits the use of 
racial distinctions in other phases of the operation of a 
public school system. Appellees answer that the Brown de­
cision does just that. However, appellees’ contention that 
major vestiges of racial segregation cannot be continued in 
the public school system does not rest solely on the Brown 
decision. In all cases involving state-enforced racial dis­
crimination in governmental facilities and activities the 
Supreme Court has prohibited such discrimination as viola­
tive of the equal protection and due process clauses of the 
Fourteenth Amendment. The use of race by the state as a 
determining or relevant factor has been disapproved in: 
Mayor and City Council of Baltimore v. Dawson, 350 U. S. 
877 (1955) (use of publicly owned parks) ; Carter v. 
Texas, 177 U. S. 442 (1900) (selection of juries); Holmes 
v. City of Atlanta, 350 U. S. 879 (1955) (use of municipal 
golf course); Nixon v. Herndon, 273 U. S. 536 (1927) (par­
ticipation in a primary election); and Burton v. Wilming­
ton Park Authority, 365 U. S. 715 (1961) (use of premises 
owned by the State under a leasing agreement).

Appellants are in fact arguing for continuation of state- 
manipulated racial distinctions. Appellees contend that the 
sole purpose of such distinctions in the past has been 
imputation of inferiority to Negro students and that such a 
condition will continue in the future. Appellants do not



6

argue that such distinctions now have a different function, 
nor do they proffer any valid state purpose which would 
be furthered by continuation of such racial distinctions. 
Racial discrimination is not a legitimate governmental 
purpose, Shelley v. Kraemer, 334 IT. S. 1 (1948), and absent 
a valid state purpose, the differential treatment violates 
the standards of the equal protection clause of the Four­
teenth Amendment. Quaker City Cab Co. v. Pennsylvania, 
277 U. S. 389, 406 (1928).

Appellants argue that the District Court should have 
deferred settlement of the issues of law involved in the 
nonracial assignment of teachers and the requirement that 
other school policies be implemented on a nonracial basis. 
The lower court, however, found it necessary, given the 
abundant evidence of state-enforced racial distinctions, to 
declare the legal rights of the plaintiff's. In practical ef­
fect, however, the appellants received the deferment of 
these issues from the lower court that they now seek from 
this Court. In paragraph 7 of the order of the District 
Court, judgment as to the implementation of paragraphs 
3(D) and 3(E) of the injunction was reserved for a later 
date. Appellants, therefore, are presently under no specific 
directives of which they may claim hardship.



7

Evidence to Support Paragraph 3 (D ) o f the Per­
manent Injunction.

a. Appellees’ answer to Question No. 1 as stated in 
Appellants’ brief at page 12.

Appellants claim that the District Court had no evidence 
before it to support the injunction restraining approval 
of budgets, construction programs, employment contracts 
and the like in such a manner as to perpetuate racial segre­
gation. Appellees claim that appellants have not drawn the 
proper inferences from the testimony and documents intro­
duced at trial and, in some particulars, are directly in error 
in their claim.

First, the complete and adequate proof that the races 
were required to occupy separate plants, with separate 
personnel, is, by necessary inference, evidence that budget­
ing and construction programs had to be planned with this 
factor taken into account. In particular as regards a por­
tion of the injunction prohibiting the use of “ funds” to 
perpetuate racial separation, there is evidence in the rec­
ord, supported by the appellants’ own witness, Dr. Ander­
son, that the School Board had a specific bond issue for 
Negro schools (E. I l l ,  224). There is further in evidence, 
under stipulation of fact No. 25, the fact that a greater 
percentage of white students were being transported to 
school than Negro students (R. 56-57). This is further 
evidence of the racial discriminatory use of funds. Ap­
pellees showed that in the only survey connected with pro­
jected construction of schools, the appellant school board 
supplied an identification of all schools as either Negro or 
white (R. 199-201). It is difficult to understand appellants’ 
claim that this evidence was not probative of the fact

II.



that race was taken into account in projected construction
programs, for the only natural inference is that appellants 
gathered the information for use and was not merely mak­
ing some general, census study unrelated to the purpose 
of the survey, namely, construction of schools. In total, 
the District Court was presented with sufficient direct evi­
dence or evidence which carried with it a natural inference 
that appellants were carrying out a policy of racial separa­
tion in those aspects of the school program covered in para­
graph 3(D) of the permanent injunction.

III.
Findings of Fact to Support Injunctive Relief.

a. Appellees’ answer to Question No. 4 as stated in 
the Appellants’ brief at page 13.

Appellees claim the District Court made no findings of 
fact to support paragraph 3(D) of the permanent injunc­
tion concerning budgets, and other matters under control 
of the appellees. Appellants dispute this position and 
note the following findings were made which support this 
aspect of the District Court’s injunction.

As a general matter the court below in finding of fact 
No. 6, stated that “ the defendants under color of the au­
thority vested in them by the laws of Florida have pur­
sued and are presently pursuing a policy, custom, practice 
and usage of operating the public school system of Duval 
County, Fla. on a racially segregated basis” . The court 
below obviously found that the Appellees were utilizing 
every aspect of the school system under their control, in­
cluding budgets, employment contracts, construction pro­
grams and other policies, to perpetuate racial segregation. 
The statement that the entire school system was operated 
on a racially segregated basis of necessity encompasses



9

the use of all component functions to further and foster 
the system of separation of the races. The court, in para­
graph 3(D) of the permanent injunction was merely extend­
ing its restraining order to cover all phases of the school 
system which the appellants might continue to use in per­
petuation of racial segregation. The requirement under 
Buie 52a of the Federal Buies of Civil Procedure that the 
District Court make findings of fact does not require an 
over-elaboration of detail or particularization of facts, but 
merely requires concise and brief statements which ade­
quately apprise the Appellate Court of the factual basis 
upon which the injunction was issued. Matton Oil Transfer 
Corporation v. Dynamic, 123 F. 2d 999. The lack of a 
specific finding will not be a basis for remand where an 
adequate understanding of the questions and issues may 
be had without greater specification in the findings. Shell- 
man v. Shellman, 95 F. 2d 108, 109 (D. C. Cir. 1938).

Moreover, the District Court did make findings which 
would specifically support the disputed portion of the in­
junctive relief. Paragraph 3(D) of the permanent injunc­
tion restrains Appellants from:

D. Approving budgets, making available funds, ap­
proving employment contracts and construction pro­
grams, and approving policies, curricula and programs 
designed to perpetuate, maintain or support a school 
system operated on a racially segregated basis.

1. As regards construction programs, the District Court 
in paragraph No. 1 of the Conclusion of Law states that 
prior to 1954 schools were “ constructed, ojierated and 
maintained” on a separate basis for whites and Negroes. 
Paragraph No. 2 follows with the statement that the ap­
pellants “have continued to operate the Duval County 
School System on a racially segregated basis” (B. 289).



10

The determination that the appellants designed their con­
struction program to perpetuate segregation may well be 
deemed a conclusion of law. In any event, the appellants 
and this Court are fully apprised of the District Court’s 
determination of this issue.

2. Paragraph 7 of the Findings of Fact by the District 
Court incorporates the stipulation of facts agreed on by 
Attorneys for the parties on both sides. The stipulation 
of facts indicates that the appellants have operated a 
feeder system which regularly carries Negro students 
solely into Negro schools and carries white students solely 
into white schools. This is a policy and program ‘‘designed 
to perpetuate, maintain or support a school system oper­
ated on a racially segregated basis” which the District 
Court could properly enjoin.

3. Stipulation of fact Nos. 5, 6, 7, 8, 9 and 10 indicate 
that the appellants have maintained a system of racial 
assignments of teaching personnel. Paragraph 3(D) of 
the permanent injunction is, in addition to paragraph 
3(E), a restraint on the appellants “approving employment 
contracts” with teachers in such a manner as to perpetuate 
segregation. As stipulation of fact No. 5 notes that em­
ployment contracts have required the applicant to state 
his race, the appellants may at some future date when 
paragraph 3(D) is implemented be required to remove the 
inquiry as to race from the application.

4. Stipulation of fact No. 25 notes that a greater per­
centage of white students were being transported by the 
County to schools than Negro students. This is “making 
available funds” to be used in a racially discriminatory 
manner, to which the District Court’s injunction would 
properly be applicable.



11

In summary, the District Court’s findings of fact are 
sufficiently informative for purposes of appeal and meet 
the required level of specificity and detail.

CONCLUSION

For all the foregoing reasons the judgment below 
should be affirmed.

Respectfully submitted,

E arl M. J ohnson

625 West Union Street 
Jacksonville, Florida

Constance Baker Motley
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

Counsel for Appellees



38