Brown v. South Carolina State Board of Education, Civ. A. No. AC-1655.

• Decision Date: 31 May 1968
• Docket Number: Civ. A. No. AC-1655.
• Parties: J. Arthur BROWN et al., Plaintiffs, United States of America, by Ramsey Clark, Attorney General of the United States, Plaintiff-Intervenor, v. The SOUTH CAROLINA STATE BOARD OF EDUCATION, a Public Body Corporate, et al., Defendants, and Mrs. Ernest T. Cribb et al., Intervenors-Defendants.
• Court: U.S. District Court — District of South Carolina

296 F. Supp. 199

J. Arthur BROWN et al., Plaintiffs, United States of America, by Ramsey Clark, Attorney General of the United States, Plaintiff-Intervenor, v. The SOUTH CAROLINA STATE BOARD OF EDUCATION, a Public Body Corporate, et al., Defendants, and Mrs. Ernest T. Cribb et al., Intervenors-Defendants.

Civ. A. No. AC-1655.

United States District Court D. South Carolina, Columbia Division.

May 31, 1968.

Matthew J. Perry, Columbia, S. C., Ernest A. Finney, Jr., Sumter, S. C., for plaintiffs.

Klyde Robinson, U. S. Dist. Atty., Columbia, S. C., John Rosenberg, U. S. Atty., U. S. Department of Justice, Washington, D. C., for the United States.

Daniel R. McLeod, Atty. Gen. State of S. C., Columbia, S. C., David W. Robinson, Columbia, S. C., for South Carolina State Board of Education.

J. C. Long, Charles S. Way, Jr., Coming B. Gibbs, Jr., Charleston, S. C., for interveners-defendants.

Before BRYAN, Circuit Judge, and MARTIN and HEMPHILL, District Judges.

PER CURIAM:

This is a class action in which Plaintiffs, by their amended complaint, and the United States, Plaintiff-Intervenor, by its complaint in intervention, seek to enjoin the implementation of Act No. 297 (1963) of the South Carolina General Assembly.¹ After adoption of the Act the State Board of Education promulgated rules and regulations for implementation of the Act pursuant to Section 7 thereof.² The Act provides for the payment of scholarship grants to qualified school children in the State who desire to attend private schools in the State.

On May 9 and 12, 1965, this Court issued temporary restraining orders enjoining the making of payments under the Act until the case could be heard on its merits.

Act 297 is unconstitutional. A review of the record, including the historical background of the Act, clearly reveals that the purpose, motive and effect of the Act is to unconstitutionally circumvent the requirement first enunciated in Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that the State of South Carolina not discriminate on the basis of race or color in its public educational system. See Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967); Poindexter v. Louisiana Financial Assistance Commission et al., 275 F.Supp. 833 (E.D.La. 1967), affirmed 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968).

It is therefore ordered that the defendants, their members, officers, agents, servants, employees and successors in office and all those who are acting or may act in concert or participation with them, are hereby permanently restrained, enjoined and prohibited from enforcing or seeking to enforce by any means the provisions of Act 297 of the 1963 Session of the South Carolina Legislature.

1 CAROLINA CODE OF 1962 SECTION 21-297 ET SEQ.

(CUM.SUPP.1966)

No. 297

An Act To Provide State Scholarship Grants; To Fix The Amount Thereof; To Provide For The Supplementing Of Such Grants By The School Districts Of The State; To Vest In The State Board Of Education The Power And Duty To Make Rules Governing Scholarship Grants; To Fix Penalties For Misapplication Of Scholarship Funds And For Other Purposes.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Findings of General Assembly. —The General Assembly finds that the cause of primary and secondary education in South Carolina will be advanced if individual children of school age, their parents and guardians, are made free to choose between public and private educational institutions. Provision has been made for the transfer of pupils from one public school to another, subject to such limitations as may be necessitated by local conditions, and it is considered highly desirable that the freedom to choose among available educational institutions be extended and enlarged by providing scholarship grants for children entitled to attend primary and secondary public schools who wish to attend private or independent institutions, such scholarship grants to be furnished from State funds supplemented by local school districts.

SECTION 2. Definitions.—The following words and phrases as used in this act shall, unless a different meaning is plainly required by the context, have the following meanings:

(a) "School Child" shall mean any person between the ages of six and twenty whose domicile is with his or her parent within the State and who is otherwise qualified to attend the public schools of any school district in which he or she resides.

(b) "Parent" shall mean the natural or adoptive parent or the guardian having legal custody of a child eligible and entitled to receive a scholarship grant under this act who is actually paying or who will pay the tuition cost of attendance of such child at a school which qualifies such child to receive a grant under the terms of this act.

(c) "Private School" shall mean a private or independent elementary or high school which is not operated or controlled by any church, synagog, sect or other religious organization or institution.

SECTION 3. Persons eligible to receive scholarship grants.—Subject to the terms and provisions of this act every school child in the State who has not yet finished or graduated from high school and who desires to attend a private school located within the State shall be eligible for and entitled to receive a State scholarship grant in an amount equal to the per pupil cost to the State of public education as certified by the Governor.

SECTION 4. Funds for grants.—The State scholarship grants provided for in Section 3 of this act shall be payable from funds appropriated by the General Assembly for the payment thereof.

SECTION 5. Local school district to furnish funds.—It shall be a prerequisite to the grant above permitted that the local school district in which the school child resides make available a grant of local funds to such school child and to that end the trustees of each school district within the State are hereby authorized to appropriate funds in addition to the State scholarship grants provided for in Section 3 of this act in such amount that is equal to the per pupil cost to the school district exclusive of all State funds received for such purposes. The trustees of each school district are authorized to levy taxes where the school district has the power to tax, to raise funds for the payment of such local supplements to the State scholarship grants. The State Board of Education shall render such assistance to the trustees as may be necessary to determine annual per pupil expenditures of the school district for the purpose of fixing the amount of any supplement to be paid under this section.

SECTION 6. Grant not to exceed tuition. —The total of the annual scholarship grant provided for each child by this act shall not exceed the actual cost of tuition at the private school attended by the child.

SECTION 7. Rules and regulations.— The State Board of Education is hereby authorized and directed to promulgate such rules and regulations, consistent with the terms of this act, for the receiving and processing of applications for scholarship grants, the payment of grants and the administration of this act generally as it may find necessary or desirable. Such rules may, among other things, provide for the payment of scholarship grants by the school districts of the State to the parent of any child entitled to receive a scholarship grant in installments or...