Flax v. Potts

• Decision Date: 01 March 1962
• Docket Number: Civ. A. No. 4205.
• Citation: 204 F. Supp. 458
• Parties: Arlene FLAX, a Minor, by her Father and Next Friend, Weirleis Flax, Sr., et al., Plaintiffs, v. W. S. POTTS, President of the Board of Trustees of the Fort Worth Independent School District, a Corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

204 F. Supp. 458

Arlene FLAX, a Minor, by her Father and Next Friend, Weirleis Flax, Sr., et al., Plaintiffs, v. W. S. POTTS, President of the Board of Trustees of the Fort Worth Independent School District, a Corporation, et al., Defendants.

Civ. A. No. 4205.

United States District Court N. D. Texas, Fort Worth Division.

March 1, 1962.

COPYRIGHT MATERIAL OMITTED

L. Clifford Davis, Fort Worth, Tex., W. J. Durham, Dallas, Tex., for plaintiffs.

Cecil A. Morgan, Fort Worth, Tex., for defendants.

BREWSTER, District Judge.

This suit was brought individually and as a class action to terminate a policy of racial segregation in the public schools within the Fort Worth Independent School District.

The plaintiffs were Sergeant Weirleis Flax, as next friend for his six year old daughter, Arlene, and Herbert Teal, as next friend for the six of his minor children of school age named in the complaint. It was alleged that the action was also prosecuted for the benefit of all other Negro minors similarly situated in the School District. The defendants were the Fort Worth Independent School District, its Board of Trustees, its Superintendent and the principals of the respective schools which refused to enroll the children above mentioned.

The complaint alleged that the Fort Worth public schools were being operated under a system of compulsory racial segregation; that the children named in the complaint were refused enrollment at the schools nearest their respective homes solely on the ground of their race and color; and that such system and discrimination violated the constitutional rights of the plaintiff children and others similarly situated under the Fourteenth Amendment to the federal Constitution. The prayer was for declaratory judgment decreeing the policy of racial segregation to be unconstitutional, for injunctive relief against the continuance of such policy and providing for the termination thereof, and for specific relief to enable the named children to attend the schools nearest their respective homes without regard to race or color.

The defendants' theory about the alleged policy of racial segregation was summarized in the following statement in its verified answer:

"For more than 78 years Fort Worth Public Schools have been operated under a dual system for white and colored. This pattern of procedure has become a fundamental part of the educational process in Fort Worth, and by experience, training and habit it is a part of the culture of all of the citizens, both white and colored. Both white and colored teachers have been trained in colleges and universities, and by their experience in the classroom to serve the needs of the students operating under the dual system." (Par. 1, under heading "Additional Answer" in Defendants' Answer).

The defendants further alleged that the plaintiffs were not entitled to any relief sought by them on account of their failure to exhaust the administrative remedies under Article 2901a, Texas Civil Statutes.

The Fort Worth Independent School District is supported by public funds and operates a public school system.

The undisputed evidence fully supported the defendants' allegations above quoted about the operation of its school system under a policy of compulsory racial segregation. They defended upon the separate but equal doctrine, as if Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, were still the law. Maps of the area in the School District were offered in evidence by the defendants themselves. Some showed the areas in the district divided into "White Districts". Others showed the same district divided into "Negro Districts". The white and Negro districts were not the same, but they overlapped. A white school served each "White District" and a Negro school served each "Negro District". The result was that a white child and a Negro child similarly situated and qualified, and even living in the same apartment house, would go to different schools. That actually happened in the case of the Flax girl who lived in an apartment house on Carswell Air Base. In many instances, the division into white and Negro districts resulted in Negro children having to travel a considerable distance to attend a school segregated for Negroes when there was a white school near their respective homes. Such was the case with all of the plaintiff children.

At the proper time for enrollment for the school term beginning in September, 1959, the Teal children and the Flax child presented themselves for admission at the public schools for which they were eligible nearest their respective homes. Those happened to be schools segregated for white children. Each plaintiff child was refused admission solely on the ground that he was a Negro. All of them were sent to schools segregated for Negroes a substantial distance away. White children similarly situated and qualified were accepted at the white schools without question during the period at which such schools refused to enroll the plaintiff children. They were not required to resort to administrative procedure to enroll. The Negro children met all the requirements for admission to the schools at which they first applied except those based on race or color.

The plaintiffs filed this suit without resorting to any administrative procedure provided by Article 2901a.

The court entered judgment declaring that the dual racial system under which the Fort Worth schools was being operated violated the constitutional rights of the minor children named in the complaint and of the other members of their class under the Fourteenth Amendment; ordering the defendants to submit a plan, within 30 days after the judgment became final, for effectuating a transition to a racially non-discriminatory system beginning with the 1962 fall school term; enjoining the defendants and all others acting in concert with them from obstructing or interfering with the orderly administration of any plan approved by the court; and retaining jurisdiction to effectuate the plan. There was no provision in the judgment for assignment of specific children to particular schools.

Findings of fact and conclusions of law have been heretofore filed, and they are incorporated herein by reference. It was thought that they would be sufficient; but the defendants' vigorous motion for new trial appears to call for an opinion. There is no intention here to modify the findings of fact or conclusions of law. However, advantage will be taken of the rule that a judgment may be sustained on legal grounds not stated in the conclusions of law.

One matter relating to the form of the findings of fact will be noticed briefly before disposing of the more important questions raised on the trial of the case. The defendants complain of several of the findings of fact on the grounds that they were not "a statement of fact, but mere conclusion", or "The finding is a conclusion and not a finding of fact." The findings were intentionally prepared to give the appellate court the benefit of the inferences and conclusions drawn from the evidence by the judge who had all the advantages that went with the opportunity to see the witnesses and hear the evidence first-hand. Penn-Texas Corp. v. Morse, 7 Cir., 242 F.2d 243; Brown v. American National Bank, 10 Cir., 197 F.2d 911. Findings of fact would be of little benefit to an appellate court if the trial judge were confined to a mere parroting recapitulation of the evidence.

The defendants complain of the court's action in overruling their timely filed written motion requesting a three-judge court under the provisions of Sec. 2281, Title 28, U.S.C., to pass upon the constitutionality of Articles 2900a and 2901a, Texas Civil Statutes. Those statutes will be discussed only briefly at this point, as they will receive detailed attention in connection with another question. They follow generally the type of legislation enacted by several states in the last few years in an effort to defeat or delay racial desegregation in their respective public school systems under the ruling in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Article 2901a is the Texas Pupil Placement Law. Article 2900a limits the authority of a board of trustees of a public school district to abolish an existing dual system based on racial segregation, and provides severe penalties against the school district and the officials thereof for violations.

The court's ruling on this motion can be sustained upon any one of the four following grounds. This suit was not brought to restrain an officer of the State of Texas in the enforcement or execution of either of these state statutes. Such a requirement must be met to bring a case within the terms of Sec. 2281, Title 28, even though the defendant's pleadings invoke the question of the constitutionality of a state statute. School Board of City of Newport News v. Atkins, 4 Cir., 1957, 246 F.2d 325, 327. Second, the complaint in the present case attacked the policy of a tax-supported public institution based on discrimination against the plaintiffs on account of race and color; and therefore a three-judge court was unnecessary, even though such discrimination had its source in a state statute. Beal v. Holcombe, 5 Cir., 193 F.2d 384; Wichita Falls Junior College Dist. v. Battle, 5 Cir., 204 F.2d 632, cert. den. 347 U.S. 974, 74 S.Ct. 783, 98 L.Ed. 1114. Next, the unconstitutional application of the statutes by the Fort Worth school authorities made it unnecessary to pass upon the constitutionality of the statutes themselves. Shuttlesworth v. Birmingham Board of Education, D.C.Ala., 162 F.Supp. 372, aff. 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, in an opinion of Judge Rives, holds that a statute may be constitutional on its face and yet be unconstitutional in its application. See also Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249. An inescapable...