Brunson v. Board of Trustees of School Dist. No. 1, 8727.

Decision Date07 December 1962
Docket NumberNo. 8727.,8727.
Citation311 F.2d 107
PartiesBobby BRUNSON, Elizabeth Brunson and Ellis Brunson, by McQueen Brunson, their father and next friend, and Tisbia E. Delaine, a Minor, by Leo Delaine, her father and next friend, and Eloise Felder, a Minor, by Nora Felder, her mother and next friend, et al., Appellants, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 OF CLARENDON COUNTY, SOUTH CAROLINA, L. B. McCord, County Superintendent of Education, C. E. Buttes, District Superintendent of Education, W. C. Sprott, Chairman, Board of Trustees, C. N. Plowden, W. A. Brunson, J. W. Sconyers and L. Richardson, Members of the Board of Trustees, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Matthew J. Perry, Columbia, S. C. (Jack Greenberg, James M. Nabrit, III, Michael Meltsner, New York City, and Lincoln C. Jenkins, Jr., Columbia, S. C., on brief), for appellants.

David W. Robinson, Columbia, S. C., (Robinson, McFadden & Moore, Columbia, S. C., on brief), for appellees.

Before SOPER, HAYNSWORTH and BELL, Circuit Judges.

PER CURIAM.

This action was brought by forty-two Negro children residing in School District No. 1 of Clarendon County, South Carolina, and their parents as a spurious class action under Rule 23(a) (3) of the Federal Rules of Civil Procedure. Upon motion, the District Court struck from the complaint all reference to all plaintiffs other than Bobby Brunson, the first named, and all "allegations inappropriate to a personal action by Bobby Brunson." The plaintiffs have appealed from this order.

The order was entered upon a determination by the District Court that there was no common question of fact or of law warranting an action by these multiple plaintiffs under Rule 23(a) (3). It was of the opinion that it is well settled that "the defendants may not deny to any plaintiff on account of race the right to attend any school which it maintains," and that there was no other unresolved question of law. It was of the opinion there was no common question of fact because the School Board was entitled to consider a great many factors other than race in assigning individuals to particular schools.

At the outset we are met with the question of the appealability of the order. It is contended that it was not a final order appealable under 28 U.S.C.A. § 1291 because, though it was a dismissal of the complaint of all plaintiffs other than Bobby Brunson and though Bobby Brunson graduated from high school a few days after the order was entered, thus making the case moot as to him, the order did not dispose of the case as to all plaintiffs, nor was it a bar to the filing of a new individual complaint by any of the original plaintiffs. In light of the imminence of Bobby Brunson's graduation when the order was entered on May 30, 1962, the practical effect of the order was a dismissal as to all plaintiffs, but, whether or not the order is appealable under § 1291, we think it appealable under § 1292 as a denial of requested injunctive relief.

In their complaint, the plaintiffs allege that the School Board has maintained dual, biracial school systems, some schools being attended solely by white pupils while all others were attended solely by colored pupils. The plaintiffs sought general injunctive relief, including an order requiring a general reorganization of the school system or, alternatively, the submission of an affirmative plan for the desegregation of all schools in the District. Whether these plaintiffs in this spurious class action might be entitled to the broad injunctive relief they sought, we do not now consider, but it seems clear that the order of the District Court effectively denied that relief. The limitation of each plaintiff to an individual action on his own account and the removal of all allegations appropriate to a class action narrowed the scope of possible injunctive relief to an order requiring the admission of a particular plaintiff to a school of his choice. In an individual action maintained by a single plaintiff for his sole benefit and without reference to anyone else, he could neither ask nor hope for more. The order, therefore, was a denial of the broad injunctive relief which the plaintiffs sought, which presumably, would have affected all schools and all grades in the School District. The order was, therefore, an appealable one under § 1292, for it was a denial of the broad injunctive relief which the plaintiffs sought.

In a comparable situation, we reached a similar conclusion in Hood v. Board of Trustees of Sumter County School District No. 2...

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