Armstrong v. Board of Education of City of Birmingham, Ala., Civ. A. No. 9678

CourtU.S. District Court — Northern District of Alabama
Citation220 F. Supp. 217
Decision Date28 May 1963
PartiesDwight ARMSTRONG et al., Plaintiffs, v. The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, et al., Defendants. Agnes NELSON and Oswald Nelson, Minors, etc., Plaintiffs v. The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.
Docket NumberCiv. A. No. 9678,10188.

220 F. Supp. 217

Dwight ARMSTRONG et al., Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, et al., Defendants.

Agnes NELSON and Oswald Nelson, Minors, etc., Plaintiffs
v.
The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

Civ. A. Nos. 9678, 10188.

United States District Court N. D. Alabama, S. D.

May 28, 1963.


W. L. Williams, Jr., Birmingham, Ala., and Ernest D. Jackson, Sr., Jacksonville, Fla., for plaintiffs.

220 F. Supp. 218

J. M. Breckenridge, City Atty., Cabaniss & Johnston, Joseph F. Johnston, Lange, Simpson, Robinson & Somerville, Reid B. Barnes and Ormond Somerville, Birmingham, Ala., for defendants.

LYNNE, District Judge.

When the Armstrong case (C.A. 9678) was called for trial on October 3, 1962, plaintiffs in the Nelson case (C.A. 10,188) moved for an order of consolidation or joint trial. Since it appeared that these actions involved common questions of law and fact the court entered an oral order consolidating them for purpose of trial only and expressly provided therein that all evidence offered and all objections thereto on any grounds made by any party would be deemed to have been offered and made in each case separately.

Resting jurisdiction upon 28 U.S.C.A. § 1343(3) and proceeding under 42 U.S. C.A. § 1983, plaintiffs in each case brought a class action against defendants essentially to enjoin them from continuing their policy, practice, custom and usage of operating a compulsory biracial school system in the City of Birmingham.

By stipulation of all counsel of record each case was submitted for the judgment of the court upon the prayer for final injunctive relief upon the pleadings and the proof. While written answers in behalf of defendants had not been filed in the Nelson case it was orally stated that their answers in the Armstrong case tendered all relevant issues except for the insistence that plaintiffs in the Nelson case had no standing to maintain their action for vindication of their individual rights or to represent a class.

Faced with this threshold question, the court directed that evidence first be offered relating to the status of the Nelson children, Agnes and Oswald, of the ages of sixteen and twelve, respectively. Consisting entirely of the testimony of their father, Reverend T. N. Nelson, careful consideration thereof results in the finding of the court that each of such children had departed Birmingham for Detroit several weeks before the filing of the complaint in their behalf; that throughout the trial they were living there with their sister and attending the public schools of Wayne County, Michigan, and that there is no reasonable probability of their return to Birmingham.

Since the father has no standing to sue for the deprivation of the civil rights of his children, Brown v. Board of Trustees of LaGrange Ind. Sch. Dist., 187 F.2d 20 (5th Cir. 1951) and the children, recognized as the real parties plaintiff, were not at the time of the filing of the complaint and are not now pupils in or affected by the public school system of Birmingham, it follows that neither has shown an injury to himself and that neither has standing to represent the class. McCabe v. Atchison, T. & S. F. Ry. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Doremus v. Board of Education, 342 U.S. 429, 432, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed. 2d 512 (1962); Conley v. Gibson, 29 F.R.D. 519 (S.D.Texas, 1961).

Therefore, a separate order will be entered in the Nelson case vacating the consolidation and dismissing the action for plaintiffs' lack of standing to sue without prejudice, however, to their right to intervene or file a supplemental complaint in the Armstrong case in the event of the return of either to Birmingham, as will hereinafter more fully appear.

With respect to standing to complain, matters stand differently in the Armstrong case. Although it was stipulated at the trial that the Shuttlesworth children, Ruby Fredericka and Fred L. Jr., and Carolyn Nash are no longer in the Birmingham public school system and do not intend to return thereto, it is undisputed that the Armstrong children, Dwight, Denise, James, Jr. and Floyd, have continuously been and are presently enrolled in such system. They have an equitable right to maintain this suit as a class action.

Plaintiffs rely upon undisputed facts in the record which are reproduced in capsulated form. The white population of Birmingham is 205,620; the Negro, 135,627. There are 8 high schools designated

220 F. Supp. 219
"White" with 409 teachers and 10,081 pupils; 5 high schools designated "Negro" with 278 teachers and 6,748 pupils; 50 elementary schools designated "White" with 781 teachers and 29,578 pupils; 42 elementary schools designated "Negro" with 697 teachers and 26,967 pupils. Never at any time has a Negro pupil been assigned or transferred to a school designated "White" or a white pupil to a school designated "Negro". Without exception white instructional personnel have been assigned only to schools designated "White" and Negro instructional personnel only to schools designated "Negro". White schools are located with reference to the concentration of white population and Negro schools with reference to the concentration of Negro population. There are overlappings in the geographical areas involved wherein there are white schools in closer proximity to the residences of Negro pupils than Negro schools. The reverse situation obtains with respect to white pupils. Notwithstanding, the custom, usage and practice historically followed, sanctioned and expected by Superintendent and Board to be followed presently, result in white pupils attending white schools and Negro pupils Negro schools

To summarize, it graphically appears from the testimony of Dr. Theo R. Wright, Superintendent of Birmingham Public Schools, that he and the Birmingham Board of Education have operated a segregated school system based upon race in the past, are doing so now, and have formulated no plans to discontinue such an operation.

For their part, the real defendants, Superintendent and Board, advert to the allegation of the complaint that "the plaintiffs herein have not exhausted the administrative remedy sic provided by the Alabama School Placement Law"1 and point to the uncontroverted evidence in this record that at no time has any Negro child, or anyone authorized to act in his behalf, applied for enrollment in or transfer to any school designated "White" and pursued the remedies afforded by such statute. Their reluctance to take the initiative in bringing about the integration of the public schools stems from something more than blind adherence to tradition. There is undisputed evidence in this record that there is a "very strong opposition" on the part of "citizens of all races" to the mixing of the different races in the schools. In addition, all witnesses who have been intimately associated with the operation of the local system over the...

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8 practice notes
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...v. Brierley (3d Cir. 1973) 477 F.2d 785, 789; and Armstrong v. Board of Education of City of Birmingham, Ala. (N.D.Ala.S.D.1963) 220 F.Supp. 217, 218, rev'd on other issues, Armstrong v. Board of Education of City of Birmingham (5th Cir. 1964) 333 F.2d 47.) In this case the gravamen of the ......
  • Gilmore v. James, Civ. A. No. 3-1777.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • January 15, 1968
    ...cases show the necessity for precise delineation of class representation. Armstrong v. Board of Ed. of City of Birmingham, N.D.Ala.1963, 220 F.Supp. 217; Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. In Gantt v. Clemson Agr. College of S. C., 4 Cir. 1963, 320 F.2d 611......
  • Smith v. Wickline, No. Civ.-75-0204-E.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • June 23, 1975
    ...20 (5th Cir. 1951); Tyree v. Smith, 289 F.Supp. 174 (D.C.Tenn. 1968); and Armstrong v. Board of Education of City of Birmingham, Ala., 220 F.Supp. 217 (N.D.Ala.1963). However correct defendants' position may be in an appropriate context, it has no bearing on the issue now before the Court. ......
  • Tucker v. Celebrezze, Civ. No. 1204.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 5, 1963
    ...rate, the Court doesn't believe that any rule changes the statute so that over half must be found to read more than slightly over half. 220 F. Supp. 217 In the present case, the Court feels that the inheritance money was not used for support. The Examiner found this to be so, and there is n......
  • Request a trial to view additional results
8 cases
  • Tinsley v. Palo Alto Unified School Dist.
    • United States
    • California Court of Appeals
    • April 13, 1979
    ...v. Brierley (3d Cir. 1973) 477 F.2d 785, 789; and Armstrong v. Board of Education of City of Birmingham, Ala. (N.D.Ala.S.D.1963) 220 F.Supp. 217, 218, rev'd on other issues, Armstrong v. Board of Education of City of Birmingham (5th Cir. 1964) 333 F.2d 47.) In this case the gravamen of the ......
  • Gilmore v. James, Civ. A. No. 3-1777.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • January 15, 1968
    ...cases show the necessity for precise delineation of class representation. Armstrong v. Board of Ed. of City of Birmingham, N.D.Ala.1963, 220 F.Supp. 217; Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. In Gantt v. Clemson Agr. College of S. C., 4 Cir. 1963, 320 F.2d 611......
  • Smith v. Wickline, No. Civ.-75-0204-E.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • June 23, 1975
    ...20 (5th Cir. 1951); Tyree v. Smith, 289 F.Supp. 174 (D.C.Tenn. 1968); and Armstrong v. Board of Education of City of Birmingham, Ala., 220 F.Supp. 217 (N.D.Ala.1963). However correct defendants' position may be in an appropriate context, it has no bearing on the issue now before the Court. ......
  • Tucker v. Celebrezze, Civ. No. 1204.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 5, 1963
    ...rate, the Court doesn't believe that any rule changes the statute so that over half must be found to read more than slightly over half. 220 F. Supp. 217 In the present case, the Court feels that the inheritance money was not used for support. The Examiner found this to be so, and there is n......
  • Request a trial to view additional results

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