Jeffers v. Whitley

Decision Date12 October 1962
Docket NumberNo. 8593.,8593.
Citation309 F.2d 621
PartiesAlexander JEFFERS and Sylveen Jeffers, minors, and John L. Jeffers and Annie L. Jeffers, their parents and next friends; Nathan Brown, Lunsford Brown, and Sheliah Brown, minors, and Jasper Brown, their father and next friend; and Charlie Saunders, Jr., and Fred Saunders, minors, and C. H. Saunders, their father and next friend, Appellants, v. Thomas H. WHITLEY, Superintendent of the Public Schools of Caswell County, David L. Johnson, Chairman, C. N. Barber, J. A. Hodges, N. L. Oliver and J. C. Wilkins, Members of the School Board of Caswell County, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

COPYRIGHT MATERIAL OMITTED

Derrick A. Bell, Jr., New York City (C. O. Pearson, William A. Marsh, Jr., Durham, N. C., Jack Greenberg and James M. Nabrit, III, New York City, on brief), for appellants.

Robert R. Blackwell, Yanceyville, N. C., for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and BELL, Circuit Judges, sitting en banc.

PER CURIAM.

This is another school case. It comes here on the appeal of Negro plaintiffs, two of whom the District Court ordered admitted to the school of their choice. They complain, with justification, that there was no defensible basis for withholding judicial enforcement of the established rights of other individual plaintiffs or for the denial of general declarative and injunctive relief.

The action was originally instituted in December, 1956 by forty-three Negro children, attending schools in Caswell County, North Carolina, and their parents. They sought a general order requiring the School Board to reorganize the schools of Caswell County and to operate them on a nonsegregated basis. By supplemental pleadings filed in 1960, it was alleged that certain of the individual plaintiffs had applied for transfers, that the applications had been denied and that administrative remedies had been exhausted. They asked for an order requiring the School Board to submit a plan for desegregating the schools and for an injunction which would prohibit the Board, after submission of a desegregation plan, from requiring any Negro pupil to attend school on a segregated basis.

By October 1960, twenty-seven of the original pupil-plaintiffs were no longer students in the Caswell County school system. Some of them had graduated. Some had dropped out of school. Some had moved out of the county. Sixteen of them were still in Caswell County schools. Each of the sixteen was still assigned to and still attending a school in which the entire pupil population was Negro.

In December, 1959, counsel entered into a stipulation that plaintiffs' counsel would furnish a list of those of the nominal plaintiffs interested in a reassignment. Pursuant to the stipulation, the School Board was to promptly notify the plaintiffs of the assignments of the interested pupils for the 1960-61 school year and it agreed to hold hearings on reassignment requests.

Nine of the sixteen nominal plaintiffs, still in the Caswell schools, through their attorneys indicated their interest in reassignment for the 1960-61 school year. No one of the nine was reassigned. One of those has since graduated from high school; another has dropped out of school. It was with the remaining seven that the trial proceedings were principally concerned. They are the appellants here.

Caswell is a rural county in north-central North Carolina. Its metropolis is the village of Yanceyville. Relatively few of its children of school age live within walking distances of the schools they attend. The great majority are transported to and from school in buses operated by the School Board. There are approximately 6,000 pupils in the county's schools; approximately 53% of them are Negroes.

The county, through its School Board, maintains fifteen schools. Six of them, five elementary schools and one consolidated elementary and high school, are attended solely by Negroes. Nine of them, five elementary schools and four consolidated elementary and high schools, are attended solely by white pupils.

In denying the nine transfer applications it received in the summer of 1960, the Board gave no explanation of its action. It acknowledged no set of principles governing its determinations. Board members testified that they considered all information available to them, and then each member voted as his conscience dictated. Those witnesses declined to suggest circumstances or conditions which would lead them to support a Negro's application for a transfer to a white school. They did refer at the trial, however, to facts which influenced the votes of the witnesses.

Samuel Maloy Mitchell was about to enter the twelfth grade. He had been attending Caswell County Training School, the only school in the county accredited by the Southern Association of Colleges and Secondary Schools. He applied for a transfer to Bartlett Yancey, a high school located in the village of Yanceyville within two blocks of Caswell County Training School. He planned to go on to college. Witnesses for the Board thought it better for him to remain at the accredited Training School and continue to receive instruction in French than to transfer to unaccredited Bartlett Yancey where French was unavailable.

Mitchell has since graduated.

Three children of Jasper Brown, Nathan, Lunsford and Sheliah, sought transfers from the Caswell County Training School to Bartlett Yancey. Buses going to the Training School picked up the Brown children four-tenths of a mile from their home. The nearest route of a bus going to Bartlett Yancey was two and a half miles from the Brown home, and it was thought unsafe to operate two buses over the narrow road near the end of which the Browns lived. These are appropriate considerations, but the two schools were within two blocks of each other. It was admitted that there was no reason the Brown children could not ride the Training School bus and walk from that school to Bartlett Yancey.

Alexander, Charlie1 and Sylveen Jeffers also applied for transfers from the Training School to Bartlett Yancey. Neither they nor their parents appeared at a hearing, held by the Board, to which they had been invited. The father of the Brown children reported to the Board that he had spoken to Jeffers and that Jeffers had said he was too busy to attend. This, thought members of the Board, showed little interest in the Jeffers' applications.

Charlie and Fred Saunders2 lived between New Dotmond School and Murphy. New Dotmond, which they attended, is four and two-tenths miles east of the Saunders' home; Murphy is two and four-tenths of a mile west of their home. Buses serving each school pass in front of their house, going in opposite directions. Board members thought New Dotmond, which the Saunders boys had been attending, was the better and larger school. They also referred to the fact that other Saunders siblings attending New Dotmond did not seek similar transfers.

As to all of these applications, Board members found further reason for their denial in the applicants' motivation by racial considerations. In the Brown applications, for instance, the reason for the requested transfers was stated to be, "Request for transfer to an integrated school system regardless of race, creed or color." This led a member of the Board to the novel contention, "* * * the reason they gave for wanting to transfer was race and we cannot assign them on account of race." Counsel for the Board makes the same contention here.

A requirement of the School Cases3 is that transfer applications be not denied on grounds that are racially discriminatory, but a victim of racial discrimination does not disqualify himself for all relief when he complains of it.

These applicants had been complaining, as plaintiffs in this action and as transfer applicants, that they were the victims of racial discrimination. They had not contended, and they did not seek to prove, for apparently they could not, that Bartlett Yancey was superior to Caswell County Training School or more accessible. In that completely segregated system, however, they were entitled to prefer Bartlett Yancey. They did contend, and they proved, they were not in the Training School by their volition and they were denied the right to attend Bartlett Yancey because of their race. The complaint, firmly founded on the School Cases, required not the deaf ear of the Board, but Board action to rectify its wrong.

The Board, however, denies that its practices are racially discriminatory.

Racial segregation in the schools was required by the Constitution of North Carolina until 1954 when the Supreme Court held similar requirements invalid under the Fourteenth Amendment.4 Since then the School Board of Caswell County has routinely assigned each pupil to the school he attended the previous year.5 This practice, in conjunction with invariable denial of transfer applications, perpetuated the old system with no opportunity for escape by any pupil enrolled in the schools in 1954.

Since 1954, all first grade pupils have been segregated by race. The School Board contends, however, that the assignments of such pupils have been voluntary. It has routinely assigned all first grade pupils to the schools where they attended a preschool clinic, but, the Board says, the parents could select the school to which the child was taken for enrollment in the preschool clinic, their choice being limited only by the availability of transportation facilities.

We need not consider whether freedom of choice at the first grade level, without any right of choice thereafter, would be a sufficient interim step toward establishment of a constitutionally permissible, voluntary system, for the record does not establish the factual premise. The record refers to no resolution of the Board establishing a right of choice at the time of enrollment in the preschool clinics. No such right of choice...

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