McNeese v. BOARD OF EDUCATION, ETC., 13615.

• Decision Date: 05 July 1962
• Docket Number: No. 13615.,13615.
• Citation: 305 F.2d 783
• Parties: Louis McNEESE, Jr., a minor, by Mabel McNeese, his mother and next friend, and Elouise Dickerson, a minor, by Charles Dickerson, her father and next friend, and Betty Wade and Judith Wade, minors, by Thelma Wade, their mother and next friend, and For these and all others similarly situated and who may become parties to this action, Plaintiffs-Appellants, v. BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL DISTRICT NUMBER 187, CAHOKIA, ILLINOIS, and Clarence D. Blair, County Superintendent of Schools for St. Clair County, Illinois, and Robert F. Catlett, Superintendent of Schools for Community Unit School District Number 187, Cahokia, Illinois, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

305 F.2d 783 (1962)

Louis McNEESE, Jr., a minor, by Mabel McNeese, his mother and next friend, and Elouise Dickerson, a minor, by Charles Dickerson, her father and next friend, and Betty Wade and Judith Wade, minors, by Thelma Wade, their mother and next friend, and For these and all others similarly situated and who may become parties to this action, Plaintiffs-Appellants, v. BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL DISTRICT NUMBER 187, CAHOKIA, ILLINOIS, and Clarence D. Blair, County Superintendent of Schools for St. Clair County, Illinois, and Robert F. Catlett, Superintendent of Schools for Community Unit School District Number 187, Cahokia, Illinois, Defendants-Appellees.

No. 13615.

United States Court of Appeals Seventh Circuit.

July 5, 1962.

Raymond E. Harth, Clayton R. Williams, Alton, Ill., Charles H. Jones, Jr., Chicago, Ill., for plaintiffs-appellants, Rogers, Rogers, Strayhorn & Harth, Chicago, Ill., of counsel.

Reuben L. Hedlund, Chicago, Ill., for amicus curiae.

Howard F. Boman, Wm. C. Dunham, East St. Louis, Ill., for defendants-appellees.

Thomas M. Thomas, of Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for the Bd. of Education of the City of Chicago.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

KILEY, Circuit Judge.

This is a class suit on behalf of minor plaintiffs, and all others similarly situated, for redress of alleged deprivation, under color of Illinois law, of their rights to non-segregated public educational facilities in Community Unit School District No. 187, St. Clair County, Illinois.¹ The District Court dismissed the suit on defendants' motion. Plaintiffs have appealed.²

Plaintiffs are Negro elementary school students in the Chenot School in District No. 187, and all are residents of St. Clair County. The substance of their amended complaint is that before construction of the Chenot School in 1957 plaintiffs were compelled to attend the Centreville School in the District under a program which subjected them to discrimination because of their color; and that since 1957 the Chenot School has been maintained under a planned program of discrimination against them because of their color. They seek a decree declaring that the policies of District 187 are unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;³ an injunction restraining defendants from maintaining their discriminatory policies; and a mandatory injunction requiring defendants to register plaintiffs in "racially integrated" public elementary schools in the District.

The judgment of dismissal by the District Court was based on the ground that plaintiffs had "failed to comply in the remotest manner with" their administrative remedy under the Illinois School Code, Ill.Rev.Stat., 1961, ch. 122, § 22-19. Plaintiffs contend that the judgment was erroneous because under the facts alleged in the amended complaint and admitted by defendants' motion they were not required to resort to the administrative remedy provided in the Illinois School Code; and that, in any event, that remedy is not administrative, but judicial and is inadequate. In their complaint they expressly state they have not exhausted the State remedy.

For the first contention they rely upon Mannings v. Board of Public Instruction, 5 Cir., 277 F.2d 370 (1960); Borders v. Rippy, 5 Cir., 247 F.2d 268 (1957); Orleans Parish School Bd. v. Bush, 5 Cir., 242 F.2d 156 (1957); Bruce v. Stilwell, 5 Cir., 206 F.2d 554 (1953); Kelly v. Bd. of Ed. of City of Nashville, 159 F. Supp. 272 (M.D.Tenn.1958).

In Mannings the Board of Education had taken no affirmative steps under the Brown segregation cases⁴ to effect the policy of desegregation. In Borders the Board admitted a policy which denied Negroes admittance to school because of color. In Orleans plaintiffs had exhausted their administrative remedy. The court nevertheless decided that pertinent Louisiana Constitution and statutory provisions were per se unconstitutional under the Brown cases. In Bruce it was admitted the Negro plaintiffs were denied admission to school because of color. In Kelly the court held the administrative power was already "committed in advance to a continuation of compulsory segregation."

These cases are not helpful to plaintiffs because of the admission, in each of them, of the fact of discrimination on which the unconstitutionality of the laws and policies involved was determined. That is not true here. Plaintiffs assume as a premise that defendants' motion admitted that before and since 1957, defendants have maintained a racially segregated school system which deprived plaintiffs of "equal opportunity for education." The premise begs the question. Defendants' motion admits facts well pleaded but does not admit the alleged conclusion⁵ that the well pleaded facts resulted in discrimination against plaintiffs because of their color.

The amended complaint, so far as pertinent, alleges that the Negroes in District 187, including plaintiffs, were compelled to live in Negro "ghettoes." There is no allegation that this is due to any conduct of defendants. It is alleged that defendants had these "ghettoes" in mind when they made up the "attendance area policy" under which children in exclusively Negro areas are not permitted to attend schools in other areas. There is no allegation that the "attendance area policy" is unconstitutional per se as in the Orleans case or that the areas were not drawn consistently with an orderly administration of schools, in the light of the population facts as defendants found them, and in a constitutional manner. This distinguishes Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 2d 110 (1960) where the Alabama law redefining boundaries of the City of Tuskegee was plainly, deliberately designed to disenfranchise Negroes.

The amended complaint alleges that the Chenot School "attendance area" was planned and drawn so as to make it exclusively Negro. But it is not alleged that the area was not planned and drawn on a rational basis in a proper administrative function, or that it could or should have been planned or drawn otherwise. It is alleged that prior to 1957 Chenot area children attended Centreville School where they were required to attend afternoon classes while white children in the Centreville area were compelled to attend exclusively morning sessions. But it is alleged that "certain slow white fifth and sixth grade" children attended classes all day and that since 1957 fifth and sixth grades from Centreville's overcrowded school, consisting of 3% Negro and 97% white students, attended Chenot School.

We think this analysis of the amended complaint is sufficient to distinguish the cases relied on by plaintiff. It is analogous to a statute which is not unconstitutional "on its face"; and it fails to allege a cause of action which justifies a failure to resort to administrative remedies. Carson v. Warlick, 4 Cir., 238 F. 2d 724, cert. denied, 353 U.S. 910, 77 S.Ct. 665, 1 L.Ed.2d 664 (1956). Because the amended complaint does not allege school board policies which are unconstitutional in themselves, plaintiffs are required to resort to the remedy held forth in the Illinois School Code before seeking the aid of a Federal Court. Ibid; Parham v. Dove, 8 Cir., 271 F.2d 132 (1959).

The fact that this is a class suit attacking alleged segregation policies and that the Carson and other Fourth Circuit cases referred to by plaintiffs involved individual claims of denial of...