Potts v. Flax

• Decision Date: 06 February 1963
• Docket Number: No. 19639.,19639.
• Citation: 313 F.2d 284
• Parties: W. S. POTTS, President of the Board of Trustees of the Fort Worth Independent School District, et al., Appellants, v. Arlene FLAX, a Minor, by her Father and Next Friend, Weirleis Flax, Sr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

313 F.2d 284 (1963)

W. S. POTTS, President of the Board of Trustees of the Fort Worth Independent School District, et al., Appellants, v. Arlene FLAX, a Minor, by her Father and Next Friend, Weirleis Flax, Sr., et al., Appellees.

No. 19639.

United States Court of Appeals Fifth Circuit.

February 6, 1963.

COPYRIGHT MATERIAL OMITTED

Cecil A. Morgan, David B. Owen, Fort Worth, Tex., for appellants.

L. Clifford Davis, Fort Worth, Tex., W. J. Durham, Dallas, Tex., James M. Nabrit, III, Jack Greenberg, Derrick A. Bell, Jr., New York City, for appellees.

Before BROWN and BELL, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

This is an appeal from an order of the District Court requiring that the Fort Worth Independent School District file within a prescribed time a plan for the desegregation of the Fort Worth Public Schools.¹ Only one question of any real moment is presented, and that is the procedural one of whether this was shown to have been a class action. It is perhaps ironic that it arises in a context in which on the substantive merits there cannot be the slightest doubt that the District Court's order was a moderate and restrained response to the imperative need for judicial action.

A brief discussion of the substantive merits will facilitate disposition of the procedural problem. Unlike some of these suits, the Fort Worth Board of Trustees did not try to persuade the Court that it was now in compliance with the Supreme Court ruling in the Brown case. Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. It did, of course, acknowledge both the existence of that ruling and its binding effect. But it nevertheless openly and frankly maintains, as it has for 78 years, a segregated system. Approximately 18% of the students are Negroes. The segregated system rests on dual zones by which each geographical area is simultaneously in a white zone and a Negro zone. Its defense to the suit seeking to put an end to this system-wide noncompliance had several facets. The first was the genuine good faith belief that experience and intensive study in the light of changing legal standards proved that the interests of all students, white and Negro, of the teachers, the school system, and the community was best served by segregated schools. In that direction, the Board made a convincing showing that it was doing considerably more than mere boasting. For example, during the past ten years or so the standard achievement-test spread between Negroes and whites had steadily declined, and a disproportionate number of modern school buildings had been constructed for Negroes. Realizing that this could no longer suffice as a legal justification, the Board's real defense was the plea that no court order was now needed. The Board contended that the Court ought not to take any action until, as to any individual Negro students who might seek admission to formerly all white schools, it was actually demonstrated that the School authorities would not fulfill their duties. This suggestion of exhaustion of administrative remedies was not confined to the statutory schemes prescribed by the 1957 Texas anti-integration legislation, although a number of contentions based on Articles 2900a and 2901a² were asserted.

But the formal pleadings of the Board, as well as the uncontradicted evidence, most of which came from members of the Board and high-ranking school administrators testifying as witnesses, demonstrated why this asserted defense was no defense. In essence, it boiled down to this. No matter how much good faith was ascribed to the Board and the administrators, the fact remained that the Board categorically reaffirmed its adherence to the formal policy of a segregated system. That meant that until such time as the Board expressly rescinded that policy, no School Principal, Assistant Superintendent, or Superintendent could approve the requested transfer of a Negro student to an all-white school. To be sure, individual Board members testifying with evident sincerity which we, as did the District Court, can credit freely, asserted repeatedly that they would give careful and earnest, conscientious consideration to any such request. But except to state that they would not base it on race or color, no standards were suggested by which any such applications were to be tested.

The difficulty was that this merely indicated a willingness to modify on an ad hoc basis the universal policy of segregation which up to that time (and since) the Board had refused to abandon or rescind. In effect the Board was urging that a court order is not needed because the Board, when and as occasion demands, might alter its policy which it had shown no disposition to change even though the principal purpose of this very lawsuit was to achieve that end. Other uncontradicted facts also bore on this. Significant was the concern repeatedly voiced through these responsible officials that any voluntary attempt to assign pupils without regard to race imperiled the financial position of the school system, its educational prestige and standing, as well as the personal liberty of school officials by reason of the sanctions of the Texas anti-integration legislation.³ The Court had every reason to conclude that were such dire consequences to attach to any individual determination of a specific transfer request, Board members would be under overpowering pressures which would, or might, obscure or obliterate intrinsic merits of the application. The Court recognized as well that these very pressures would make the process of determination different from that presented routinely for white students. Reposing as he did the utmost confidence in the conscientious good faith of these officials honestly to try to fulfill imperative legal demands, the Judge saw that continuation of the policy of segregation inescapably injected factors which were extraneous to the simple constitutional proposition that race could under no circumstances be a basis for student assignment, transfer or non-transfer. He concluded, as he was bound to do — certainly ever since Jackson v. Rawdon, 5 Cir., 1956, 235 F.2d 93, 96, cert. denied 352 U.S. 925, 77 S.Ct. 221, 1 L.Ed.2d 160 — that an order was needed categorically abolishing that policy and requiring the School Board to present a tangible, acceptable, reasonable plan of desegregation for court approval.

But, says the Board, the Court erred in entering such an order because the plaintiffs failed to establish that this was a class suit as claimed by them in the complaint. Putting it another way, the Board urges that even conceding a decree was permissible granting desegregation relief as to some of the individual plaintiffs, it could not do this in the form of a decree extending such rights to all other persons similarly situated. The record factual background for this matter is very simple. Two adults, Teal and Flax, on behalf of their named children and "in behalf of all other Negro minors who are similarly situated, because of their race and color within the Fort Worth Independent School District, * * *" brought the suit in 1959. Teal, the father of nine children of school age, on the trial reaffirmed his pre-trial discovery deposition testimony to the effect that he was bringing this suit for his own children, and not for other Negro children. Flax, a Sergeant at Carswell Air Force Base, father of one child, was not examined along these lines. His testimony was silent on whether he was, or was not, bringing it for others. The effect of the District Court's holding is that in the circumstances of this record, it was not essential that Sergeant Flax state that he was bringing the suit on behalf of all. We agree.

At the outset we are not at all certain that the right of these plaintiffs to bring the suit on behalf of all Negro children in Fort Worth was really disputed. The complaint alleged with great precision that the action was a class suit brought for all under F.R.Civ.P. 23(a) (3). To this paragraph the Board entered a denial, but this was tied immediately to the basic contention elaborated on at great length and stated in various ways in the answer that a class action was not appropriate since each student is admitted, assigned and transferred as an individual. Such matters are not, the defendants asserted, determined on a class basis since the Board "must register each child one at a time as individuals." The effect of this response was to challenge the right to bring a class action by reason of the intrinsic nature of the rights involved. It did not dispute that the plaintiffs Teal and Flax were claiming to act for all. In short, the Board requested the Court to do as it ultimately did — determine propriety of a class suit on what the total record revealed, not upon the conclusory declarations (pleaded or oral) of the litigants.

On the intrinsic merits, the District Court was certainly correct. Properly construed the purpose of the suit was not to achieve specific assignment of specific children to any specific grade or school.⁴ The peculiar rights of specific individuals were not in controversy. It was directed at the system-wide policy of racial segregation. It sought obliteration of that policy of system-wide racial discrimination. In various ways this was sought through suitable declaratory orders and injunctions against any rule, regulation, custom or practice having any such consequences. The case therefore had those elements which are sometimes suggested as a distinction between those which are, or are not, appropriate as a class suit brought to vindicate constitutionally guaranteed civil rights.⁵ The pleaded reason for challenging the class suit was, therefore, unfounded.

Apart from formal pleadings which were substantively insufficient to raise a real contest, the record of the trial as the case actually developed more than...