Pinellas County Florida Board of Public Instruction v. Bradley, Jr. Petition for Writ of Certiorari

    I n r n f t  Bum  © B u r t  B f A p p e a ls

For the Fifth Circuit

No. 15,872

Charles Brown, a minor, by Ms father and next friend, 
W alter Brown, Jr., et ah,

Appellants,
versus

Dr. E dwin L, R ippy, as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 
County, Texas, et ah,

Appellees.

A ppeal from the United States D istrict Court for the 
Northern D istrict of T exas

APPELLANTS’ BRIEF

J ack Greenberg,
New York City,

of Counsel.

W . J. Durham,
C. B. B unkley, Jr.,
L ouis Bedford,
K enneth H olbert,
U. Simpson Tate,
J. L. T urner, Jr.,

Dallas, Texas,

R obert L. Carter, 
T hurgood Marshall,

New York City,
Attorneys for Plaintiffs.

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekm an  3 -  2320



lUuti'ii (tart nf Appeals
For the Fifth Circuit

No. 15,872

C harles B row n , a m in or, b y  his fa th er and next frien d , 
W alter B ro w n , J r ., et al.,

Appellants,
versus

D r . E dw in  L. H ip p y , as President of the Board of Trustees 
of the Dallas Independent School District, Dallas 
County, Texas, et al.,

Appellees.

A ppeal  prom  th e  U nited  S tates D istrict C ourt por the  
N orthern  D istrict op T exas

—-------------------o---------------------

APPELLANTS’ BRIEF

On September 12, 1955, plaintiffs, Negro children, filed 
a complaint (B. 4) by their next friends seeking to tem­
porarily and permanently enjoin defendants 1 from segre­
gating them in elementary and high school education. They 
prayed for a declaratory judgment that Section 7, Article 
VII of the Constitution of Texas and Articles 2900, 2922-13 
and 2922-15 (Vernon’s Ann. Civ. Stats.) are unconstitu­
tional under the Fourteenth Amendment to the United 
States Constitution in so far as they may require racial 
segregation in elementary and high schools in Texas. The 
complaint requested that the district judge convene a three-

1 President of the Board of Trustees of the Dallas Independent 
School District, members of the Board of Trustees of the Dallas 
Independent School District, the Superintendent of Public Schools 
of the Dallas Independent School District and six principals of 
elementary and high schools in the Dallas Independent School 
District.



2

judge court pursuant to Section 2281-2284 of Title 28, 
United States Code.

Defendants’ answer alleged (R. 30) that “ The adminis­
trative staff and the district trustees are now and have 
been making an honest, bonafide, realistic study of the facts 
to meet the obligations the law has placed upon them to 
provide adequate public school education and to perfect, 
as soon as possible, a workable integrated system of pub­
lic education” ; (R. 30) that the Dallas public school system 
had theretofore been operated as a segregated school sys­
tem and that fiscally and administratively it had been based 
upon segregation. It alleged that on July 13, 1955, the, 
president of the board issued a statement regarding de­
segregation which outlined 12 points for study, largely mat­
ters relating to school administration; that, “ A review of 
scholastic census was immediately started and maps imme­
diately prepared to fit the school building capacity to the 
area producing the students on the assumption of a desegre­
gated basis.”  It cited alleged administrative difficulties 
in immediately desegregating 2 and concluded with a prayer

2 The administrative considerations were :
“ 1. Scholastic boundaries of individual schools with relation to 

racial groups contained therein.
2. Age-grade distribution of pupils.
3. Achievement and state of preparedness for grade-level assign­

ment of different pupils.
4. Relative intelligence quotient scores.
5. Adaptation of curriculum.
6. The over-all impact on individual pupils scholastically when 

all the above items are considered.
7. Appointment and assignment of principals.
8. The relative degree of preparedness of white and Negro 

teachers; their selection and assignment.
9. Social life of the children within the school.
10. The problems of integration of the Parent-Teacher Associa­

tion and the Dads Club organization.
11. The operation of the athletic program under an integrated 

system.
12. Fair and equitable methods of putting into effect the decree 

of the Supreme Court” (R . 32-33).



3

that injunctive relief be denied and no declaratory judg­
ment entered.

On September 16, 1955 a hearing was held on the ques­
tion of whether or not a preliminary injunction should be 
issued (R. 66). Defendants’ allegations concerning admin­
istrative difficulties, preparations and the legal conclusions 
to be drawn therefrom were denied by plaintiffs.8

Notwithstanding this denial the court held that the 
“ facts . . . are well pleaded in both the original petition and 
the answer, [and] are admitted in open court, thus saving 
the introduction of a string of witnesses which take time 
and multiply costs.”  (R. 63) The court further held that 
“ there is no constitutional provision of either the state or 
the nation, that is in controversy in this particular suit” , 
(R. 63) and consequently refused to convene a three-judge 
court.

The court below acknowledged the decision of the United 
States Supreme Court in Bolling v. Sharpe, 347 U. S. 497. 
However, it also found vitality in the “ separate-but-equal”  
doctrine and. wrote that “ All of the law as declared by the 
various Courts, appellate and trial, in the United States 
are agreed upon the proposition that when similar and con­
venient free schools are furnished to both white and colored 
that there then exists no reasonable ground for requiring 
desegregation. ’ ’ Desegregation, it held, was a matter solely 3

3 “ Mr. Thuss (counsel for defendant) : Well, I have other
evidence than that, your Honor; I have other things that the Board 
had done. What Dr. White has done.

“ The Court: Do you plead that in your pleadings ?
“ Mr. Thuss: Yes, sir, we set it out step by step in our pleadings.
“ The Court: Well, do you agree, gentlemen, that those facts

are all right?
“ Mr. Durham (counsel for plaintiff) : Your Honor, we can't

agree to his pleadings”  (R . 51).
On the argument it was admitted only that one defendant traveled 

to Austin to discuss some school segregation problems with the State 
Superintendent of Education (R . 49-50).



4

within the discretion of school officials stating that the 
‘ ‘ direction from the Supreme Court of the United States 
requires that the officers and principals of each institution, 
and the lower courts, shall do away with segregation after 
having worked out a proper plan. That direction does not 
mean that a long time shall expire before that plan is 
agreed upon. It may be that the plan contemplates action 
by the state legislature.”  (E. 65)

Taking judicial notice of the “ equality”  of Negro and 
white schools in Dallas the court concluded that the com­
plaint therefore lacked equity and dismissed without preju­
dice.

Specification of Errors Relied Upon

1. The court below erred in holding that where separate 
but equal facilities are provided defendants may not be 
required to desegregate.

2. The court below erred in dismissing the complaint.

ARGUMENT

1. The Court Below Erred in Holding That Where 
Separate But Equal Facilities Are Provided Defend­
ants May Not Be Required to Desegregate.

Although the court below was aware of the Supreme 
Court’s decision in the school segregation cases which, of 
course, overruled “ separate but equal”  at least so far as 
public education is concerned it imported into the law a 
novel doctrine which effectively revived “ separate but 
equal.”  By advancing “ equality”  as grounds for dis­
missal, its opinion read as if it was rendered prior to May 
17, 1954, the date of the Supreme Court ’s opinion in Brown 
v. Board of Education, 347 U. S. 483 (1954).



5

Appellant need not reiterate here the succinct and clear 
holding in the school segregation cases that racial segre­
gation in education is unconstitutional. Indeed the Su­
preme Court has held that all laws requiring such segrega­
tion “ must yield,”  349 U. S. 294. But nowhere did the 
Court even intimate that “ equality”  of facilities would 
be grounds for dismissal of a complaint praying for de­
segregation, or even grounds for a delay. Indeed, it can be 
argued forcefully that where facilities are “ equal”  there 
is little or no reason for deferring desegregation for ad­
ministrative reasons. For, in such cases the problem of 
distributing equally educated students among equal class­
rooms and other facilities should be minimal. Therefore 
the trial court’s opinion, based upon the “ separate-but- 
equal”  doctrine, was erroneous and should be reversed.

2. The Court Below Erred in Dismissing the Com­
plaint.

The court’s dismissal of the complaint was unprece­
dented and contrary to prevailing authority. The grounds 
for dismissal were (a) its erroneous assertion that the 
“ separate-but-equal”  doctrine retains vitality and perhaps 
(b) that the grounds advanced for delay in defendants’ 
answer warranted delay and therefore, apparently, dis­
missal. These grounds encompassing administrative con­
sideration (see footnote 2 supra) were not admitted by 
plaintiffs at the hearing,4 and no proof was presented. 
Nevertheless the court in its opinion accepted them as true.

The mere averment of these controverted grounds in 
the answer was certainly no grounds for delay. The United 
States Court has held that certain administrative consid­
erations may warrant delay in desegregating, but that the 
burden is upon the defendant to establish the justification.

4 Ibid.



6

Surely this burden is not carried by a controverted asser­
tion that grounds exist for delay.

However, the court below went further than accepting 
defendants’ controverted averments without proof as 
ground for delay. It dismissed. The proper procedure, 
of course, would have been to put the defendants to their 
proof. But even if it were found that their allegations 
were correct and that delay was warranted the court should 
have entered judgment requiring desegregation with all 
deliberate speed, or at least the submission of a plan for 
desegregation with all deliberate speed. In Willis v. Walker, 
136 F. Supp. 177 (W. D. Ky.), the court held:

“ I am of the opinion that an integration of the 
elementary schools in Columbia and Adair County 
should be effective with the beginning of the school 
year in August or September, 1956. I put this 
August or September as it is apparent some regis­
tration is had in Adair County in August.”

#  #  #

“ It is further pled by the defendants that they 
contemplate the construction, reconstruction or en­
largement of the school buildings, within the district 
and that the Adair County Board of Education has 
adopted a resolution requesting the Adair County 
Fiscal Court to submit to the voters of Adair County 
the question as to whether an annual special school 
building tax shall be levied in the district for a 
period of twenty five years in order to meet the 
cost of construction and equipment. It is also pled 
that the Board contemplates the leasing or purchase 
of additional busses but that it is without funds. 
It anticipates that such funds will be available if 
the necessary appropriations are made by the 
General Assembly of the Commonwealth of Ken­
tucky. These plans are laudable and it is hoped they



7

will eventually be carried out. It must be admitted, 
however, that such plans are rather vague and in­
definite and depend for their ultimate success upon 
so many varied elements that they cannot be con­
sidered as lawful grounds for delay of the mandate 
laid down by the Supreme Court. The court does 
not question the good faith of the defendants but good 
faith alone is not the test. There must be ‘ com­
pliance at the earliest practicable date.’ ”

In McSwain v. County Board of Education of Anderson 
County, Tennessee, — F. Supp. — (E. D. Tenn.), the court 
ruled:

“ It is the duty of this Court to comply with the 
clear mandate of the Supreme Court. The holding 
of that Court, as applied to this case, requires adop­
tion by school authorities of Anderson County of a 
program of integration that will expeditiously permit 
the enrollment of negroes of high school grade to the 
high schools of that county. The Supreme Court 
stated in substance that the school authorities should 
make a ‘ prompt and reasonable start’ toward that 
objective. The record here indicates that Anderson 
County school authorities have had this problem 
under consideration from time to time, apparently 
in good faith, but have as yet taken no positive 
action in the way of discontinuing segregation.

“ It is the opinion of this Court that desegrega­
tion as to high school students in that county should 
be effected by a definite date and that a reasonable 
date should be fixed as one not later than the begin­
ning of the fall term of the present year of 1956.’ ’

In Bush v. Orleans Parish School Board, — F. Supp.
■— (E. D. La.), a judgment was recently entered requiring 
that defendants proceed to desegregate.



8

In no case of which plaintiffs know has any court held 
that “ separate hut equal” , a mere answer setting forth 
reasons for delay which are controverted, or even proof 
of grounds for delay, justifies dismissal of the complaint.

CONCLUSION

Wherefore appellants pray that the judgment below 
be reversed and that the court below enter an order 
requiring defendants to desegregate the schools under 
their jurisdiction “with all deliberate speed” .

Respectfully submitted,

W. J. D urham,
C. B. B unkley, Jr.,
L ouis B edford,
K enneth H olbert,
U. Simpson T ate,
J. L. T urner, Jr.,

Dallas, Texas,

R obert L. Carter, 
T hurgood Marshall,

New York City,
Attorneys for Plaintiffs.

J ack Greenberg,
New York City,

of Counsel.