Gibson v. BOARD OF PUBLIC INSTRUCTION OF DADE CTY., FLA., Civ. No. 6978-M.
| Decision Date | 22 December 1958 |
| Docket Number | Civ. No. 6978-M. |
| Citation | 170 F. Supp. 454 |
| Parties | Theodore GIBSON, as next friend for Theodore R. Gibson, Jr., Albert Reddick as next friend for Cleo Reddick, J. O. Brown, as next friend for J. O. Brown, Jr., James Lenton Parker, as next friend for Teresa Parker, Richard Powell, as next friend for Richard Powell, Jr., Prince Hepburn, as next friend for Scheren Hepburn, Plaintiffs, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, a Florida corporation, W. R. Thomas, as Superintendent of the Public Schools of Dade County, Florida, C. Raymond Van Dusen, E. L. Alsworth, Robert S. Butler, Helen Vosloh, and Anna Brenner Meyers, as members of the Board of Public Instruction of Dade County, Florida, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
G. E. Graves, Jr., Miami, Fla., Robert L. Carter, New York City, for plaintiffs.
Boardman, Bolles, Davant & Lloyd, Miami, Fla., for defendants.
The plaintiffs are six Negro children of public school age, citizens of the United States and of the State of Florida, all of whom reside in Dade County, Florida. On June 12, 1956, they filed this suit by their respective parents as next friends, as a class action, against the defendants, C. Raymond Van Dusen, E. L. Alsworth, Robert S. Butler, Helen Vosloh and Anna Brenner Meyers, as members of the Board of Public Instruction of Dade County, Florida, hereinafter referred to as the "Board", and W. R. Thomas, Superintendent of the Public Schools of Dade County, Florida. In their complaint the plaintiffs prayed for a declaratory judgment that article 12, section 12, of the Constitution of the State of Florida, F.S.A., and section 228.09, F.S.A., each violate the Fourteenth Amendment to the Constitution of the United States in that they require racial segregation in the public schools of Florida and they claimed that these invalid measures were being enforced by the defendants to the irreparable damage of the plaintiffs.
Plaintiffs also prayed for an order of the Court requiring defendants to promptly present a plan of desegregation of the public schools of Dade County, and for an injunction restraining and enjoining the defendants, and each of them, from requiring these plaintiffs and all other Negroes of public school age to attend or not to attend public schools of Dade County because of race.
The complaint further alleges that on September 7, 1955, plaintiffs petitioned the defendant Board to abolish racial segregation in the public schools of Dade County as soon as practicable, but the Board had not done so but was continuing to enforce a certain resolution of the Board adopted on August 12, 1955, providing for the continued maintenance of the said schools on a non-integrated basis.
The defendant Board is a corporation under the provisions of section 230.21 F.S.A. Since this suit was filed, two new members, Mrs. Lyle Roberts and S. D. Phillips, Jr., have been added to the Board, all other members remaining. Also since the suit was filed Dr. Josiah Calvin Hall has replaced the defendant W. R. Thomas as Superintendent of the Public Schools of Dade County.
The complaint was amended several times, after which a motion to dismiss for failure to state a claim was granted by the District Court. On Appeal to the Fifth Circuit Court of Appeals, the decision of the District Judge was reversed1 on the ground that so long as the requirement of segregation in the public schools of the County existed, it was not necessary for plaintiffs to apply for admission to any particular school and it was premature to consider the effect of the newly enacted (since the suit was filed) Florida Pupil Assignment Law2 which provides for assignment and reassignment of pupils to the public schools of the State.
The defendants then answered the complaint denying that plaintiffs were entitled to maintain the suit as a class action and denying that plaintiffs were deprived of their rights to attend the public schools of the County because of their race. The answer admitted that article 12, section 12, of the Florida Constitution and Section 228.09, F.S.A., purport to require racial segregation in the schools, but defendants agreed that these provisions were rendered void and of no effect by virtue of the decision of the Supreme Court of the United States in Brown v. Board of Education of Topeka, Shawnee County, Kansas3, and contended that defendants no longer followed or enforced them. Defendants further admitted in their answer that the Board had adopted the said resolution of August 17, 1955, and that it had been followed and enforced in the operation of the schools of the County during the school term of 1955-56, but contended that since the passage of the Pupil Assignment Law by the Legislature of Florida in July, 1956, the Board had promptly adopted its resolution of August 24, 1956, which implemented the Pupil Assignment Law, superseded the previous resolution complained of, and provided that thereafter all assignments of pupils would be made by the Board pursuant to the provisions of the said Pupil Assignment Law. Defendants further claimed that in assigning all pupils to schools since August 17, 1956, they have followed and enforced only the provision of the Pupil Assignment Law and the implementing resolution of the Board adopted August 24, 1956.
The evidence presented by the parties was heard by the Court without a jury. At the conclusion of the hearing the Court reserved decision. Briefs were filed by both sides and were duly considered by the Court.
Plaintiffs are entitled to bring action for declaratory relief as a class suit, and the objections of defendants to such procedure is without merit.4
Article 12, section 12, of the Constitution of the State of Florida is a part of the Constitution adopted in 1885 and provides as follows:
"White and colored children shall not be taught in the same school, but impartial provision shall be made for both."
Section 228.09, Florida Statutes, was adopted in its present form as a part of Chapter 19355, Laws of Florida 1939 and provides as follows:
Article 12, section 12, of the Florida Constitution and section 228.09, F.S.A., obviously violate the provisions of the Constitution of the United States under the decision of the Supreme Court in the Brown case. All parties concede this fact. A three-judge court, in this case, is not required.5
Plaintiffs are entitled to have a judgment by the Court in this suit declaring that the said Article 12, section 12, of the Constitution of Florida, and the said section 228.09, F.S.A., are each invalid and unenforceable.
As to the prayer of the complaint that the Court order the defendants to promptly present a plan of desegregation of the schools, the Court finds that the Florida Pupil Assignment Law enacted by the Legislature of Florida since the filing of this suit meets the requirements of such a plan and the demands of the plaintiffs. That Act provides a comprehensive plan and directive for the enrollment and assignment of all pupils in the public schools by the Boards of Public Instruction of the several counties and for appeals from such decisions made by the Boards, all on an individual basis. No reference whatever is made in the Act to consideration of race or color of the pupils.
Plaintiffs made no challenge to the validity of the Pupil Assignment Law. It, therefore, enjoys a presumption of validity as...
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Scholle v. Hare
...position under them. Shuttlesworth v. Birmingham Board of Education, D.C.Ala., 162 F.Supp. 372; Gibson v. Board of Public Instruction of Dade County, Florida, D.C.Fla., 170 F.Supp. 454. In Hamilton v. Secretary of State, 212 Mich. 31, at page 43, 179 N.W. 553, at page 557, Justice Fellows, ......
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...the unconstitutionality of the statutes, for in substance this too is to disclaim reliance on a statute. Gibson v. Board of Pub. Instruction, 170 F.Supp. 454, 457 (D.Fla.1958); McKissick v. Durham Bd. of Educ., 176 F.Supp. 3, 12 (M.D.N.C.1959).' In addition in Gibson v. Board of Pub. Instru......
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Gibson v. Board of Public Instruction, Dade County, Fla., 17814.
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