Avery v. Wichita Falls Independent School Dist., 16148.
Citation | 241 F.2d 230 |
Decision Date | 25 January 1957 |
Docket Number | No. 16148.,16148. |
Parties | Alfred AVERY, Jr., A Minor, by his Mother and Next Friend, (Mrs.) Alfred Avery, et al., Appellants, v. WICHITA FALLS INDEPENDENT SCHOOL DISTRICT, et al., Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
U. Simpson Tate, Louis A. Bedford, Jr., Dallas, Tex., Robert L. Carter, Thurgood Marshall, New York City, for appellants.
R. Marvin Pierce, Clyde Fillmore, Wichita Falls, Tex., for appellees.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
The prayer was for a declaratory judgment as to the rights and privileges of the class, and that the defendants be enjoined from denying to the minor plaintiffs and the members of the class of persons they represent the right and privilege of attending the public elementary school nearest their respective homes "under the same conditions and circumstances and without any distinctions being made as to them on the basis of their race or color."
The defendants moved to dismiss the complaint and in the alternative for a summary judgment, and the court dismissed the complaint stating in its order of dismissal that:
In addition there were still other negro children of school age, about seventeen in number, residing within the areas served by various other schools in the Wichita District, but who were "automatically" transferred to the Booker T. Washington School. Altogether more than 13,000 pupils were enrolled in the schools of the Wichita Falls Independent School District. No negro child was going to any school other than the Booker T. Washington School and Sheppard Air Force Base School.
The plaintiffs lived in the area served by the Barwise School. At the opening of the school term in September, 1955, they applied for admission to that school and it is admitted that they were refused on racial grounds. The Barwise School was then being attended by white children only, but a new school was under construction in Sunnyside Heights, a white section of the town, to which it was planned to transfer the white pupils. The new school had been scheduled for completion by September, 1955 but was not actually completed until January, 1956, after the present suit had been filed. The white pupils were then transferred from Barwise to the new school; Barwise was renamed the A. E. Holland School after a former negro principal of the Booker T. Washington School, and was opened on a nominally desegregated basis though only negro pupils, including the minor plaintiffs, registered.
The Superintendent of Schools testified that a start had been made toward desegregating the schools because the Sheppard Air Force Base School had been desegregated and was attended by white children and by some fourteen to sixteen negro children, and because the A. E. Holland School was legally desegregated though actually attended by negro children only, and, further, that it was the intention of the Board to completely desegregate the entire district "at the earliest feasible moment", that "by the beginning in September of this, of 1956, we will have a very good beginning; and by midterm of 1957 it's altogether possible that the entire school system could be desegregated."
Clearly plaintiffs seeking judicial relief from racial discrimination applied against the members of a numerous class may maintain a class action.2
At the time the district court dismissed the complaint, a part of the plaintiffs' prayer had been met, that is they were attending the public school nearest their homes, but it is by no means certain that they had the same free privilege of transfer to or attendance on any school of their choice as was accorded the white children. Admittedly desegregation of the schools of the district had not then been completed, though the defendants professed such a purpose, and the court thought that it would be accomplished "within a matter of months".
Upon this appeal, the appellees have attached as an exhibit to their brief an affidavit of the Superintendent of Schools to the effect that the 1956 summer session of the Wichita Falls Senior High School was non-segregated and was actually attended by 411 white and 15 negro children; that, on September 5, 1956, all pupils were admitted to the schools to which they applied for admission without any discrimination because of their color, though no negro children applied for admission to any school except Sheppard Air Force Base School, Booker T. Washington School and A. E. Holland School. The appellees urge upon us that, if not moot at the time the district court dismissed the complaint, the cause has now become moot and that the appeal should be dismissed or that the judgment of the district court should be affirmed.
The appellants, on their part, deny that the public schools within the Wichita Falls Independent School District have actually and in good faith been desegregated, and insist that, it being undisputed that when the complaint was filed the defendants had denied to the plaintiffs solely on account of their race the right to attend the school of their choice, a claimed cessation of such unlawful conduct would not render the action moot nor justify its dismissal.3
The Constitution as construed in the School Segregation Cases, Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873; Id., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, forbids any state action requiring segregation of children in public schools solely on account of race; it does not, however, require actual integration of the races. As was well said in Briggs v. Elliott, D.C.E.D.S.C., 132 F.Supp. 776, 777:
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