Gibson v. Board of Public Instruction, Dade County, Fla., 17814.

• Decision Date: 24 November 1959
• Docket Number: No. 17814.,17814.
• Citation: 272 F.2d 763
• Parties: Theodore GIBSON, as next friend for Theodore Gibson, Jr., et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

272 F.2d 763 (1959)

Theodore GIBSON, as next friend for Theodore Gibson, Jr., et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, et al., Appellees.

No. 17814.

United States Court of Appeals Fifth Circuit.

November 24, 1959.

Robert L. Carter, New York City, G. E. Graves, Jr., Miami, Fla., for appellants.

Edward F. Boardman, Boardman, Bolles & Davant, Miami, Fla., for appellees.

Before RIVES, Chief Judge, and BROWN and WISDOM, Circuit Judges.

RIVES, Chief Judge.

This action, filed June 12, 1956, sought a judgment declaring Article 12, Section 12 of the Constitution of the State of Florida, F.S.A., and Section 228.09, Florida Statutes Annotated to be violative of the Fourteenth Amendment to the Constitution of the United States. That much has been conceded by the defendants from the beginning. The complaint further prayed that the Board of Public Instruction be ordered to desegregate the public schools of Dade County and be enjoined from requiring the plaintiffs and other Negroes of school age to attend or not to attend particular public schools because of their race. The district court dismissed the complaint because the plaintiffs had not made application for admission to a particular school. This Court reversed and, in effect, held that a primary and positive duty rested upon the Board of Public Instruction to comply with the May 17, 1954, ruling of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.¹ That holding was clearly required by the implementing decision, Brown v. Board of Education, 1955, 349 U.S. 294, 300, 301, 75 S.Ct. 753, 99 L. Ed. 1083, now reaffirmed in Cooper v. Aaron, 1958, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19.

Upon remand, after a full hearing, the district court rendered final judgment declaring the Article of the State Constitution and the Section of the State Statutes under attack to be violative of the Fourteenth Amendment, as admittedly they are, but denying any further relief to the plaintiffs.² The present appeal is from that judgment.

To some extent the facts have been set forth in the former opinion of this Court (footnote 1, supra) and in the opinion of the district court (footnote 2, supra) upon remand. The bases for the rulings of the district court sufficiently appear in the following two extracts from its opinion:

"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. * * *

* * * * * *

"The plaintiffs now have available to them adequate remedies under the Pupil Assignment Law for any of their grievances pleaded in the complaint. The record shows that they have not pursued them and until they do so and have been denied their rights they are not entitled to injunctive relief." Gibson v. Board of Public Instruction of Dade County, Fla., footnote 2, supra, 170 F. Supp. 454, 457, 459.

The Florida Pupil Assignment Law³ was enacted on July 26, 1956, more than a month after the complaint in this case had been filed. Prior to the enactment of that law, it is conceded that the Public Schools in Dade County were racially segregated. Within a month after the enactment of the Pupil Assignment Law, the Board of Public Instruction of Dade County adopted an "Implementation Resolution." For the next school year 1956-57, then about to commence, that resolution assigned en masse the children to the same schools in which they were then enrolled, and assigned unregistered pupils "to the school in which he or she would have been registered had he or she been present." As to school terms after 1956-57, however, the resolution provided:

"Section 3. Prior to the close of the 1956-57 school year or such other date as the Board may specify and each year thereafter this Board, pursuant to the provisions of the Pupil Assignment Law, will assign to a school for the following year each child theretofore attending a school by assignment from this Board. The record of all assignments shall be open for inspection in the office of the superintendent, and, in addition thereto, notice of assignment shall be given to each pupil and his parents.

"Section 4. This Board will assign to a school for the 1956-57 school term and each year thereafter each qualified child, not heretofore attending a school by assignment from this Board, whose parent applied for admission of such child. Such assignment will be made pursuant to all of the provisions of the Pupil Assignment Law. Application for admission shall be made on forms to be approved by the board and made available at the office of the superintendent and the principal of each school. When completed, such applications shall be submitted by the superintendent for action by the board. Records of assignments hereunder shall be open for inspection in the office of the superintendent, and notice of assignment shall promptly be given the pupil and his parents should the application for admission to a specific school be denied."

A card form of application for admission was approved by the Board. That form contained no clear indication that the applicant should indicate any choice of schools, but contained in its upper left-hand corner the single word "School: ............" followed by a blank space. No notice or advice from the Board or Superintendent was given to the children and their parents, or to the school principals and teachers who received their applications for admission, to the effect that Negro children, or their parents for them, were now permitted to have considered fairly by the Board any choice to attend a school other than an all-Negro school. With very few possible exceptions, they all remained unaware that the pre-existing policy of the Board might have been changed. Under such circumstances, it is obvious that the pupil assignment cards manifested no conscious preference for continued segregation on a voluntary basis.

At the time of trial, in the Fall of 1958, complete actual segregation of the races, both as to teachers and as to pupils, still prevailed in the public schools of the County. A census record card kept by the Board on each pupil still showed the designation of his race by the initials "W. N. Y." The Superintendent explained: "Well, that form just hasn't been corrected. We have a multiplicity of forms, and all of them have been corrected except that one, that I know of." However, another Board form, captioned "Public Schools, Dade County, Florida, 1958-59 Substitute Teachers Guide," listed under the word "White," 12 Senior High Schools, 32 Junior High Schools, and 107 Elementary Schools, and under the word "Negro," 4 Senior High Schools, 5 Junior High Schools, and 19 Elementary Schools. The Superintendent explained that that list did not refer to pupils, but meant simply that, "The personnel, the instructional personnel are all one or the other." The distinction is not very meaningful so long as the schools having all Negro teachers also have all Negro pupils, and no other schools have any Negro teachers or pupils. From a careful study and consideration of the entire record, the conclusion is inescapable that the plaintiffs and the members of the represented class have not been afforded a reasonable and conscious opportunity to have their...