Morrow v. Mecklenburg County Board of Education
| Decision Date | 15 June 1961 |
| Docket Number | Civ. A. No. 1415. |
| Citation | 195 F. Supp. 109 |
| Parties | Priscilla MORROW, a Minor by Charlton A. Morrow, her father, et al., Plaintiffs, v. MECKLENBURG COUNTY BOARD OF EDUCATION, North Carolina Advisory Committee on Education and North Carolina State Board of Education et al., Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
T. H. Wyche, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Thurgood Marshall, Jack Greenberg, Derrick A. Bell, New York City, for plaintiffs.
McDougle, Ervin, Horack & Snepp, Brock Barkley, Charlotte, N. C., for Mecklenburg County Board of Education. C. Eugene McCartha, Charlotte, N. C., on the brief.
William T. Joyner, Raleigh, N. C., for defendants Members of North Carolina Advisory Committee on Education.
Malcolm B. Seawell, Atty. Gen. of North Carolina, Ralph Moody, Asst. Atty. Gen., for members of North Carolina State Board of Education.
This is a civil action instituted by the fathers of eight Negro children, seeking to enjoin the defendant, the Mecklenburg County Board of Education from refusing to reassign the minor plaintiffs to certain schools within the Board's jurisdiction, on account of their race and color. Originally when the action was instituted plaintiffs sought a judgment of restraint and other relief from the defendant, Mecklenburg County Board of Education and its individual members, and additionally made parties defendants certain former members of said Board, —the North Carolina Advisory Committee on Education,—its Chairman and Vice-Chairman, and its individual members were likewise made defendants, and additionally the North Carolina State Board of Education, together with each of its members was added to that long list of those named as defendants. However, all of the defendants were eliminated at various times during the progress of the cause save and except the defendant, The Mecklenburg County Board of Education, which was and is the only defendant against whom a valid judgment could have been had under the pleadings filed.
Jurisdiction for the action as alleged in the complaint is based on 28 U.S.C.A. § 1331, as an action arising under the Fourteenth Amendment to the Constitution of the United States, and 42 U.S.C.A. § 1981. In addition, jurisdiction is invoked under 28 U.S.C.A. § 1343, as an action authorized by 42 U.S.C.A. § 1983. The plaintiffs assert it to be a class action authorized by Rule 23(a) (3) of the Federal Rules, 28 U.S.C.A., as there are common questions of law and fact affecting the rights of all other Negro children attending the public schools of Mecklenburg County, and their respective parents and guardians, who, are so numerous as to make it impracticable to bring all before the court. This the defendant denies, and alleges that it relies upon Article 21 of Chapter 115 of the North Carolina General Statutes (The Assignment and Enrollment of Pupils Act), and has accordingly considered each child as an individual entity.
The basic and essential facts are not in dispute.
The plaintiffs are members of the Negro race and are citizens and residents of Mecklenburg County, North Carolina, and each of the minor plaintiffs is eligible for admission to the public schools of Mecklenburg County.
At present all of the minor plaintiffs attend Torrence Lytle School which at the times complained of in the complaint and since, is a consolidated type school, offering grades one through twelve. It was and is attended solely by members of the Negro race. It is located approximately nine to eleven miles from the respective homes of the plaintiffs.
The defendant Mecklenburg County Board of Education is a body corporate under and by virtue of Chapter 115, Section 27, General Statutes of North Carolina. At the times set out in the complaint, and up to July 1, 1960, the defendant had jurisdiction of all public schools in Mecklenburg County which were located outside the corporate limits of the City of Charlotte. On July 1, 1960, the Charlotte City Board of Education, pursuant to the provisions of Chapters 378 and 556, Session Laws of North Carolina, 1959, was merged into the defendant, and since that date the defendant Board has had jurisdiction of all schools in Mecklenburg County, including those schools formerly operated under the jurisdiction of the Charlotte City Board of Education.
Following the decision of Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873, the North Carolina General Assembly enacted the Assignment and Enrollment of Pupils Act (G.S. §§ 115-176 through 115-179) which had as its purpose vesting these matters solely in the hands of the local school authorities. In handling the assignment of pupils the local boards are required to adopt enrollment practices which will "provide for": (1) "Orderly and efficient administration" of the schools; (2) "effective instruction", (3) "health," (4) "safety," and (5) "general welfare" of the pupils.
On August 2, 1957, the defendant Board, pursuant to this Act, for the first time adopted a formal resolution assigning students to schools for the 1957-1958 school year. Generally, the students were assigned to schools which they had attended the previous year or at which they had attended "Pre-School Clinics" conducted by defendant Board at all the schools. On or about August 7, 1957, the minor plaintiffs were assigned by defendant Board to the Torrence Lytle School. Notice of the assignment was given to the plaintiffs under the provisions of N.C.G.S. § 115-177. The plaintiffs, through their parents, in apt time applied for reassignment to Derita Elementary-Junior High School (N.C.G.S. § 115-178), and the applications were denied by defendant Board on August 22, 1957. On August 26, the plaintiffs requested review of the denial, and on August 30, a hearing was held on said requests for reassignment and the minor plaintiffs and one or both of the parents of each were present. They were represented by counsel, and a quorum of the Board was in attendance. On September 3, 1957, the Board denied the application of each of the minor plaintiffs, properly notifying them of this decision, and during the 1957-1958 school year, the minor plaintiffs attended Torrence Lytle School.
All of the minor plaintiffs were again assigned to Torrence Lytle School by defendant, The Mecklenburg Board, on June 1, 1958, for the school year 1958-1959. The infant plaintiffs, through their parents made application for reassignment to the Derita School except that Frank Boyce submitted an application on behalf of Frank Boyce, Jr., for reassignment to North Mecklenburg High School. The requests for reassignment were denied by defendant Board on June 26, 1958, and plaintiffs requested review of this denial on June 30. The hearing was held on August 6, 1958, and the appeals were denied by defendant Board on August 25, 1958.
The Derita School to which the plaintiffs sought reassignment is located approximately one and one-half miles from their homes. At the time complained of in the complaint, it offered grades one through nine, and was attended solely by students of the white race. During the 1960-61 school year Derita School offered grades one through seven, and was likewise attended solely by white students.
The minor plaintiffs are transported by bus to Torrence Lytle School as the defendant Board operates a bus system for students living more than one and one-half miles from their schools as required by law. N.C.G.S. § 115-186(b). Bus service would not have been afforded these plaintiffs had they been assigned to Derita School because of their nearness to the school.
North Mecklenburg School to which Frank Boyce sought reassignment of Frank Boyce, Jr., offered grades ten through twelve at the time complained of in the complaint and also at present. It is located approximately seven miles from the home of plaintiff Boyce.
Each of the minor plaintiffs was assigned to Torrence Lytle School for the school year 1959-1960, and also for the school year 1960-1961, with no application for reassignment having been made on behalf of any of them for either year. At Torrence Lytle School they now attend the grades which are set opposite their names below:
Priscilla Morrow 5th grade
Doris Hunter 6th grade
Barbara Dianne Boyce 6th grade
Howard Eugene Boyce 4th grade
Foster Hunter 10th grade
Frank Boyce, Jr. 12th grade
Clarence Edward Boyce 9th grade
Jerry Nathaniel Boyce 10th grade
Seemingly the desire of every young person in America for an education has inspired the respective agencies in each of the several states to do their dead level best to make such available to those young people who seek the privilege of attending school. North Carolina is particularly proud of its position in the educational field in America. Its aim is quality education for all.
For the first three months of the 1960-61 school year there was enrolled in the public schools of North Carolina 1,111,014 boys and girls of school age. Those in charge of administering the educational affairs of the state have become deeply wedded to the consolidated school principle, and have accordingly deemed it the part of a wise school administration to so consolidate high schools as to permit them to take care of a given number of elementary schools, all making for a system of transportation by school bus of the children from their homes to the schools attended, and return each day.
540,000 children are being transported daily by bus to public schools in North Carolina. In order to complete this program of transportation some pupils are transported, as the necessity may arise, as great a distance as 40-50 miles one way each day. North Carolina operates 8,383 school busses and these busses travel each school year in the aggregate amount of 54,000,000 miles.
There are 227 school busses operated in ...
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