Mannings v. Board of Public Instruction of Hillsborough County, Florida

• Decision Date: 10 May 1960
• Docket Number: No. 17939.,17939.
• Citation: 277 F.2d 370
• Parties: Andrew L. MANNINGS, a minor, by his father and next friend, Willie M. Mannings, et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF HILLSBOROUGH COUNTY, FLORIDA, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

277 F.2d 370 (1960)

Andrew L. MANNINGS, a minor, by his father and next friend, Willie M. Mannings, et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF HILLSBOROUGH COUNTY, FLORIDA, et al., Appellees.

No. 17939.

United States Court of Appeals Fifth Circuit.

April 13, 1960.

Rehearing Denied May 10, 1960.

Francisco A. Rodriguez, Tampa, Fla., Constance Baker Motley, Thurgood Marshall, New York City, for appellants.

Morris E. White, Charles F. Blake, Harry G. McDonald, John M. Allison, Tampa, Fla., for appellees.

Before RIVES, Chief Judge, TUTTLE, Circuit Judge, and SIMPSON, District Judge.

TUTTLE, Circuit Judge.

Appellants complain of the judgment of the trial court dismissing their suit for an injunction seeking an order enjoining the Board of Education from "continuing to pursue the policy of operating public schools of Hillsborough County, Florida on a racially segregated basis." We conclude that the trial court erred in dismissing the complaint on the ground that "it does appear from the complaint, and it does appear from admissions made before the Court, that the plaintiffs have not exhausted the administrative remedies under the Florida Pupil Assignment Act, F.S.A. § 230.232."

This suit was originally filed on December 12, 1958. It alleged that the minor plaintiffs and their parents were Negro citizens of the State of Florida eligible as patrons or students of the public schools of Hillsborough County. They alleged that "defendants, acting under color of the authority vested in them by the laws of the State of Florida have pursued and are presently pursuing a policy of operating the public school system of Hillsborough County, Florida, on a racially segregated basis"; that they had formally petitioned defendants to abolish the segregation policy; that despite this petition and several subsequent letters requesting defendants to desegregate the public schools, "the defendants have refused to discontinue the policy of operating the public schools of Hillsborough County, Florida, on a racially segregated basis." Specifically the complaint alleged "pursuant to this policy, 72 of the public schools of Hillsborough County are limited to attendance by white students only, and 18 schools are limited to attendance by Negro students," and, "pursuant to this policy, many Negro students, including some of the minor plaintiffs, who reside nearer to schools limited to white students are required to attend schools limited to Negro students which are considerably removed from the places of their residences. In some instances, some of the minor plaintiffs and other minor Negroes similarly situated are required to travel as much as ten miles to attend a Negro elementary school, whereas they reside only two blocks from a white elementary school."

Defendants filed a motion to dismiss the complaint based primarily on the fact that the State of Florida had in 1956 passed a Pupil Assignment Act and had amended the same in 1959, which said statutes were in effect at the time of the hearing and order by the trial court on August 7, 1959; that the said Pupil Assignment Acts provided a means whereby an individual Negro student could make application for admission at such school as he deemed he was entitled to attend, and that such assignment laws permitted the assignment of Negro students to schools of Hillsborough County without reference to race; that the individual plaintiffs had not made application for admission to any particular school and they had thus failed to pursue administrative remedies open to them prior to the filing of the complaint in the Federal Court.

The dismissal of the complaint without the plaintiffs being afforded the opportunity of making proof of their allegations necessarily brings the question before us within narrow compass.

We have repeatedly said that under the Federal rules, (Rule 8(a), F.R.Civ.P., 28 U.S.C.A.), a complaint may not be dismissed under Rule 12(b) (6) for a failure to state a claim upon which relief can be granted if under any theory of recovery a case for relief can be made out by the proof. Black v. First National Bank of Mobile, Ala., 5 Cir., 255 F.2d 373, 375; Carss v. Outboard Marine Corp., 5 Cir., 252 F.2d 690, 691; Demandre v. Liberty Mutual Ins. Co., 5 Cir., 264 F.2d 70, 72. As stated by Moore, "A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 2 Moore's Federal Practice, p. 2245.

It is equally well understood that in construing a complaint to test out its sufficiency to withstand a motion to dismiss for failure to state a claim upon which relief can be granted, all of the facts pleaded must be taken to be true.

Applying these principles to the complaint before the Court, we think it clear that the following issue is presented: Are the plaintiffs, in a class action in a school segregation case, denied the right to have the trial court enjoin a local board of education from continuing to operate the local school system on a racially segregated basis, solely because the individual plaintiffs have not exhausted administrative remedies made available to them to seek admission to certain designated schools?

We have answered a substantial part of this question in a case decided after the order of the trial court in this case. In Gibson v. Board of Public Instruction, Dade County, Florida, 5 Cir., 272 F.2d 763, 766, we held:

"* * * we cannot agree with the district court that the Pupil Assignment Law, or even that the Pupil Assignment Law plus the Implementing Resolution, in and of themselves, met the requirements of a plan of desegregation of the schools or constituted a `reasonable start toward full compliance\' with the Supreme Court\'s May 17, 1954, ruling. That law and resolution do no more than furnish the legal machinery under which compliance may be started and effectuated. Indeed, there is nothing in either the Pupil Assignment Law or the Implementing Resolution clearly inconsistent with a continuing policy of compulsory racial segregation." (Emphasis added).

In that case the District Court for the Southern District of Florida, Miami Division, 170 F.Supp. 454, 457, had dismissed a suit filed by several Negro plaintiffs in which the plaintiffs sought a declaratory judgment holding the Florida laws requiring racially segregated schools to be violative of the Fourteenth Amendment to the Constitution of the United States, and further that the School Board be ordered to desegregate, and that the Court order the defendants promptly to present a plan of desegregation of the schools. The trial court held that plaintiffs were entitled to their declaratory judgment, holding that the old sections of the Florida statutes and constitution requiring segregated schools were invalid and unenforceable. As to the prayers of the complaint that the Court order the presenting of a plan of desegregation of the schools, the Court found that "the Florida Pupil Assignment Law enacted by the Legislature of Florida since the filing of this suit meets the requirement of such a plan and the demands of the plaintiffs." It is to be noted that the plaintiffs in the Gibson case had not sought assignment to any particular school either before or after the enactment of the Florida Pupil Assignment Law. In that situation, we held that the plaintiffs were still entitled to affirmative action by the Board of Education to effectuate a policy of desegregation. Moreover, this Court held that in such a situation the District Court "should retain jurisdiction during the period of transition," citing the following cases: Brown v. Board of Education, 349 U.S. 294, at page 301, 75 S.Ct. 753, at page 756, 99 L.Ed. 1083; and Rippy v. Borders, 5 Cir., 250 F.2d 690, 694.

A holding by the Court of Appeals for the Eighth Circuit in the Arkansas case of Parham v. Dove, 8 Cir., 271 F.2d 132, 138, supports the proposition that a failure to pursue the administrative remedies offered by a pupil placement law does not deprive the Negro plaintiffs of their right to a decree for some sort of affirmative action by the School Board. Saying, "The lack of any affirmative plan or action to disestablish the segregation status which had unconstitutionally been set up in the District, other than as the Board might be called upon to deal under the provisions of the 1956 or the 1959 Act with some individual application for...