Armstrong v. Board of Education of City of Birmingham, Ala.

• Decision Date: 06 September 1963
• Docket Number: No. 20595.,20595.
• Citation: 323 F.2d 333
• Parties: Dwight ARMSTRONG, Denise Armstrong, James Armstrong, Jr., Floyd Armstrong, Minors, by James Armstrong, Sr., their father and next friend, et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, The Present Members of the Said Board and Theo R. Wright, Superintendent of Schools, City of Birmingham, Alabama, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

323 F.2d 333 (1963)

Dwight ARMSTRONG, Denise Armstrong, James Armstrong, Jr., Floyd Armstrong, Minors, by James Armstrong, Sr., their father and next friend, et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, The Present Members of the Said Board and Theo R. Wright, Superintendent of Schools, City of Birmingham, Alabama, Appellees.

No. 20595.

United States Court of Appeals Fifth Circuit.

July 12, 1963.

Rehearing Denied July 22, 1963.

Dissenting Opinion July 30, 1963.

On Petition for Intervention and Stay September 6, 1963.

W. L. Williams, Jr., Birmingham, Ala., Ernest D. Jackson, Sr., Jacksonville, Fla., Constance Baker Motley, New York City, for appellants.

Jos. F. Johnston, Reid B. Barnes, Birmingham, Ala., for appellees.

Before TUTTLE, Chief Judge, and RIVES and GEWIN, Circuit Judges.

Rehearing Denied En Banc July 22, 1963.

RIVES, Circuit Judge.

The submission is upon the appellants' motion for an injunction pending appeal from the following judgment entered on the 28th day of May 1963:

"In conformity with the memorandum opinion of the court contemporaneously entered herein, it is ORDERED, ADJUDGED and DECREED by the court that the injunctive relief for which plaintiffs pray in their own behalf and in behalf of others similarly situated be and the same is hereby denied.

"It is further ORDERED, ADJUDGED and DECREED by the court that jurisdiction of this action is hereby retained for the purpose of permitting the filing of such supplemental complaint, if any, as might be entitled to be presented, in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them. It is further ORDERED, ADJUDGED and DECREED by the court that the issues tendered by any supplemental complaint will be given a preferred setting on the docket of this court and will be heard on five days\' notice to defendants."

The opinion of the court stated that:

"This court will not sanction discrimination by them the Superintendent and Board of Education in the name of the placement law but it is unwilling to grant injunctive relief until their good faith has been tested. If it should be demonstrated that it has been unconstitutionally applied, under the settled authorities the court would be compelled to order the submission of a desegregation plan for its approval."

The district court affirmed that both the Superintendent and the Board had assured the court that regulations governing the assignment and transfers of pupils in the Birmingham school system had been in effect since June 1958 for the purpose of implementing the Alabama law; and found that sufficient time remained before the opening of school in September 1963 for the processing of applications for assignments and transfers in behalf of interested individuals.

The opinion further stated that after application for assignment or transfer was made by a pupil, or those authorized to act in his behalf, to the school board, judicial remedies for the denial of constitutional rights could be pursued at once in the United States District Court without pursuing state court remedies.

The opinion continued:

"Jurisdiction of this action will be retained for the purpose of permitting the filing of such supplemental complaint, if any, as might be entitled to be presented, in case of any unconstitutional application of the Alabama School Placement Law against the plaintiffs, or others similarly situated, or of any other unconstitutional action on the part of defendants against them. The issues tendered by any supplemental complaint will be given a preferred setting on the docket of this court and will be heard on five days notice to defendants."

The district court further mentioned the fact that the Superintendent and the Board had assured the court that "* * they stand ready to comply with the law when any individual sets the administrative machinery in motion." By affidavit of the Superintendent speaking on behalf of the Board filed in this Court, it is stated:

"It the Board was and is now prepared to deal with the matter in a proper and orderly manner upon applications pursuant to the laws of Alabama and the decree of the District Court in this case."

In the course of its opinion the district court stated: "Before this court may grant injunctive relief, the administrative remedies provided therein in the Alabama School Placement Law must first have been exhausted."

That ruling was directly contrary to repeated decisions of this Court. See, among others, Gibson v. Board of Public Instruction of Dade County, 5 Cir. 1957, 246 F.2d 913, 914;¹ on second appeal, 5 Cir. 1959, 272 F.2d 763, 767;² Holland v. Board of Public Instruction of Palm Beach County, Fla., 5 Cir. 1958, 258 F.2d 730, 732.³ Mannings v. Board of Public Instruction, 5 Cir. 1960, 277 F.2d 370, 372, 373; Augustus v. Board of Public Instruction, 5 Cir. 1962, 306 F.2d 862, 869; Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 491, 499-501.⁴ The district court chose, instead, to rely upon a line of decisions from the Fourth Circuit,⁵ which, according to the district court, "continued to apply the doctrine of exhaustion of administrative remedies fairly and lawfully conducted." In Gibson v. Board of Public Instruction, supra, 272 F.2d 763, 767, n. 5, we noted many of the same Fourth Circuit decisions and stated our understanding that they were not contrary to the decisions of this Fifth Circuit. In any event, on June 3, 1963, shortly after the district court's decision, the Supreme Court of the United States put beyond debate the proposition that, in a school desegregation case, it is not necessary to exhaust state administrative remedies before seeking relief in the federal courts:

"We have previously indicated that relief under the Civil Rights Act may not be defeated because relief was not first sought under state law which provided a remedy. We stated in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492:

"`It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.\'

"The cause of action alleged here is pleaded in terms of 42 U.S.C. ? 1983 * * *.

"That is the statute that was involved in Monroe v. Pape, supra; and we reviewed its history at length in that case. 365 U.S. 171 et seq., 81 S.Ct. 473, 5 L.Ed.2d 492. The purposes were several fold ?€” to override certain kinds of state laws, to provide a remedy where state law was inadequate, `to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice\' (id., 174, 81 S.Ct. 477), and to provide a remedy in the federal courts supplementary to any remedy any State might have. Id., 180-183, 81 S.Ct. 480-482.

* * * * * *

"* * * The right alleged is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. Nor is the federal right in any way entangled in a skein of state law that must be untangled before the federal case can proceed. For petitioners assert that respondents have been and are depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether respondents\' conduct is legal or illegal as a matter of state law. Monroe v. Pape, supra, 365 U.S. 171-187, 81 S.Ct. 475-484. Such claims are entitled to be adjudicated in the federal courts. Monroe v. Pape, supra, 365 U.S. at 183, 81 S.Ct. at 481; Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, affirming 142 F. Supp. 707; Borders v. Rippy, 5 Cir., 247 F.2d 268, 271. Cf., e. g., Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093 affirming 81 F.Supp. 872; Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762."

McNeese v. Board of Education for Community Unit School District 187, 83 S.Ct. 1433.⁶

The district court's opinion referred to the reluctance of any Negro child "to take the initiative in bringing about the integration of the public schools." The burden of initiating desegregation does not rest on Negro children or parents or on whites, but on the School Board. As said in Brown v. Board of Education, 1955, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083:

"Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles."

The long-standing order of responsibility is "first the school authorities, then the local district court, and lastly the appellate courts." Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, 693.

Further, as we said recently in speaking of the Atlanta public schools:

"Our decision must also be rendered upon a consideration of the most recent pronouncements of the Supreme Court, Goss v. Board of Education of City of Knoxville, Tenn., supra 83 S.Ct. 1405, and Watson v. City of Memphis, 373 U. S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, which make it plain that the time available for the transition from segregated to desegregated school systems is, with the passage of years since the Brown decisions, becoming more sharply limited. Indeed, we so stated in an opinion theretofore rendered on May 24, 1963. Davis v. Board of School Commissioners of Mobile County, 5 Cir., 318 F.2d 63."

Calhoun v. Latimer, 5 Cir., 321 F.2d 302.

In the light of the foregoing well-established principles of law, we go to the undisputed facts as found by the...