Borders v. Rippy, 16483.

• Citation: 247 F.2d 268
• Decision Date: 27 August 1957
• Docket Number: No. 16483.,16483.
• Parties: Hilda Ruth BORDERS, a minor, by her father and next friend, Louie Borders, Jr., et al., Appellants, v. Dr. Edwin L. RIPPY, as President of the Board of Trustees of the Dallas Independent School District, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

247 F.2d 268 (1957)

Hilda Ruth BORDERS, a minor, by her father and next friend, Louie Borders, Jr., et al., Appellants, v. Dr. Edwin L. RIPPY, as President of the Board of Trustees of the Dallas Independent School District, et al., Appellees.

No. 16483.

United States Court of Appeals Fifth Circuit.

July 23, 1957.

Rehearing Denied August 27, 1957.

Thurgood Marshall, New York, N. Y., and U. Simpson Tate, W. J. Durham, J. L. Turner, Jr., C. B. Bunkley, Jr., and Louis Bedford, Dallas, Texas, Robert L. Carter, New York City, for appellants.

A. J. Thuss, Dallas, Tex., for appellees.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Twenty-eight Negro children appeal again to this Court from another judgment of the district court dismissing their complaint¹ in which they sought relief for themselves and other negroes similarly situated on account of their exclusion from certain public schools of Dallas solely because of their race or color.

The basic facts are simple and undisputed. Rosa Sims, ten years of age, and Maude Sims, nine, applied for admission to the John Henry Brown School, four blocks from their home. The school principal showed their father a directive from the School Board "saying that no negro children could go to school with the whites," and denied them the right to enter because they were Negroes. Instead, they went to Charles Rice Elementary School distant from their home "about eighteen blocks across heavy traffic." Like treatment from various public schools of Dallas was accorded to each of the other Negro children plaintiffs.

The testimony of the Assistant Superintendent and of the Superintendent of the Dallas Independent School District disclosed the steps which had been taken to comply with the school segregation decisions, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, decided on May 17, 1954, in which the final judgments were entered on May 31, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. On July 13, 1955, the Board of Education made a statement of policy in which it instructed the Superintendent of Schools to proceed with a detailed study in the following areas:

"1. Scholastic boundaries of individual schools with relation to racial groups contained therein.

"2. Age grade distribution of pupils.

"3. Achievement and state of preparedness for grade level assignment of different pupils.

"4. Relative intelligence quotient scores.

"5. Adaptation of curriculum.

"6. The overall impact on individual pupils scholastically when all of the above items are considered.

"7. Appointment and assignment of principals.

"8. The relative degree of preparedness of white and negro teachers; their selection and assignment.

"9. Social life of the children within the school.

"10. The problems of integration of the Parent-Teachers Association and the Dads Club organization.

"11. The operation of the athletic program under an integrated system.

"12. Fair and equitable methods of putting into effect the decrees of the Supreme Court."²

On July 27, 1955, the following was unanimously approved:

"* * * It was reported that this School System has been, is at present and will be obligated to continue an intensive study of the problems involved in 12 specific areas, and that reports would be made to the public of the results of these studies periodically.

"It will be impractical to attempt integration until these studies have been completed. Therefore, the Superintendent of Schools is hereby instructed that there shall be no alteration of the present status of the schools of this district in the term beginning September 1955."

Nearly a year later, on June 13, 1956, the Board issued its "Second Statement on Desegregation by the President of the Board" concluding as follows:

"The Board recognizes its responsibility to implement the decree of the Supreme Court, but it reaffirms its studied opinion that it would be derelict in this regard if it ordered an alteration in the status of its schools until its understanding of the problems involved is as comprehensive as possible and its plans for such changes are completed. This Board feels that it cannot and should not in good conscience accept the responsibility for the manner which the decree of the Supreme Court is to be carried out until it has had sufficient time within which to formulate plans which must be to the best interests of this school district, its children, and the community. * * *

"Therefore, for the immediate future this Board feels that any change is premature and instructs the Superintendent of Schools to continue a segregated school system for the school year 1956-57."

The Assistant Superintendent testified that there were about 119,000 children in the public schools of Dallas of which about 16 2/3 per cent, one out of every six, were Negroes. The Superintendent testified that immediate desegregation would result in mixed classes in all of the senior high schools with one possible exception, and in a large number of the elementary schools; that most of the school buildings are completely filled and white children would have to be displaced to let Negro children come in; that there is a difference in scholastic aptitudes of white children and Negro children, the average difference at the first grade level being one and one-half years, and the older the children the greater the gap, so that in high school senior classes it would run around three and one-half years; that, having that differential in mind, there were not enough teachers available to impart adequate instruction to both Negro children and white children; that no child is refused admission because he is retarded. He testified categorically that he was "still continuing segregation based upon races in the Dallas Independent School District."

The appellees insist that the judgment should be affirmed because of the failure of pleading or proof to show that each plaintiff has exhausted his administrative remedies, under Article 2654-7 of the Revised Civil Statutes of Texas, Vernon's Ann.Civ.St., by appeal to the State Commissioner of Education. Texas State law gave the Board and the Superintendent the power to act, and, in the exercise of such power, they denied the plaintiffs the right to attend public schools of their choice solely on account of their race or color. By such action the plaintiffs have been deprived of their constitutional rights, and they are not required to seek redress from any administrative body before applying to the courts. Bruce v. Stilwell, 5 Cir., 1953, 206 F.2d 554, 556; Carter v. School Board of Arlington County, Va., 4 Cir., 1950, 182 F.2d 531, 536; Bush v. Orleans Parish School Board, D.C.E.D.La.1956, 138 F.Supp. 337, 341, affirmed in Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156, 162; see also Browder v. Gayle, D.C.M.D.Ala.1956, 142 F. Supp. 707, 713, affirmed per curiam 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed. 114.

Other applicable principles of law are equally simple and well understood. Overcrowding in public school rooms cannot be lawfully prevented or relieved by excluding pupils on the basis of their race or color. Clemons v. Board of Education of Hillsboro, Ohio, 6 Cir., 1956, 228 F.2d 853, 857.

The equal protection and due process clauses of the fourteenth amendment do not affirmatively command integration, but they do forbid any state action requiring segregation on account of their race or color of children in the public schools. Avery v. Wichita Falls Independent School...