Rippy v. Borders, 16934.

• Decision Date: 27 December 1957
• Docket Number: No. 16934.,16934.
• Citation: 250 F.2d 690
• Parties: Dr. Edwin L. RIPPY, as President of the Board of Trustees of the Dallas Independent School District, et al., Appellants, v. Hilda Ruth BORDERS, a minor, by her father and next friend, Louie Borders, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

250 F.2d 690 (1957)

Dr. Edwin L. RIPPY, as President of the Board of Trustees of the Dallas Independent School District, et al., Appellants, v. Hilda Ruth BORDERS, a minor, by her father and next friend, Louie Borders, Jr., et al., Appellees.

No. 16934.

United States Court of Appeals Fifth Circuit.

December 27, 1957.

A.J. Thuss, Dallas, Tex., for appellant.

U. Simpson Tate, W. J. Durham, Dallas, Tex., Thurgood Marshall, New York City, C. B. Bunkley, Jr., Dallas, Tex., for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Upon the last appeal, this Court reversed the judgment of the district court dismissing the complaint, Bell v. Rippy, 146 F.Supp. 485, and directed the entry of a judgment restraining and enjoining the defendants from requiring segregation of the races in any school under their supervision from and after such time as might be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed as required by the decision in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and further directed the district court to retain jurisdiction of the cause for such further hearings and proceedings and the entry of such orders and judgments as might be necessary or appropriate to require compliance with such judgment.¹ Borders v. Rippy, 5 Cir., 1957, 247 F.2d 268.

After he had received the opinion of this Court, but before our mandate had issued, the District Judge called counsel before him and made a statement "as to his determination", in part as follows:

"This Court is now called upon to issue an order in accordance with the Circuit Court\'s decisions and directions. That order not only unsettles the tranquility of the Dallas Public Schools which has heretofore existed in a proud form for many years under which both the colored and the white pupils have had equal school facilities and splendid teachers, but it also takes from the Independent School District a large necessary amount of State funds if and when desegregation is ordered.

"It is difficult, gentlemen, for me to approve this order, but this is a land of the law and it is my duty to do what I am ordered to do by the higher Court, and I therefore ask you gentlemen of counsel to prepare an order in accordance with the ruling of the United States Circuit Court of Appeals for this Circuit, as outlined in its opinion upon the original case and upon the motion for rehearing, and I should like to have you gentlemen of counsel to prepare the order to be approved by each of you as to form, ordering integration to be permitted at the coming mid-winter term of the schools and not before that time.

Let your order contain the practical portion of the School Board\'s division of districts and institution of schools."

Without any further hearing, without any evidence other than that appearing in the record which led to our reversal, and without inviting suggestions or arguments from counsel on anything save as scriveners in the drafting of an order to effectuate his prior determinations, the District Judge thus picked the midwinter school term of 1957-1958 as the time to start system-wide desegregation.

After our mandate had been received, but still without any further hearing, and professedly upon the decision and order of this Court and the record theretofore made in the cause, the District Judge restrained and enjoined the defendants "from requiring or permitting segregation of the races in any school under their supervision, beginning and not before the mid-Winter school term of 1957-1958" (Emphasis ours).

Upon the same record, the District Judge had theretofore expressed his opinion that: "I think that the testimony shows completely that the school authorities here in charge of this Independent School District are certainly doing their very best to comply with the ruling of the Supreme Court of the United States." This Court in turn had said that: "We do not impugn the good faith of the Board, of the Superintendent, or of any of the school authorities." (247 F.2d 268, 272.)²

We have emphasized the words "or permitting segregation of the races" in the district court's order because that expression might indicate a serious misconception of the applicable law and of the mandate of this Court. Our mandate (footnote 1, supra) had been carefully limited so as to direct the entry of a judgment restraining and enjoining the defendants "from requiring segregation of the races in any school under their supervision" (emphasis supplied). Likewise in our opinion, we had pointed out that it is only racially discriminatory segregation in the public schools which is forbidden by the Constitution.³ That point was emphasized in the Arlington, Virginia Case⁴ in which Chief Judge Parker of the Fourth Circuit quoted with approval the apt language of District Judge Bryan:

"`It must be remembered that the decisions of the Supreme Court of the United States in Brown v. Board of Education, 1954 and 1955, 347 U.S. 483 74 S.Ct. 686, 98 L.Ed. 873 and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 do not compel the mixing of the different races in the public schools. No general reshuffling of the pupils in any school system has been commanded. The order of the Court is simply that no child shall be denied admission to a school on the basis of race or color. Indeed, just so a child is not through any form of compulsion or pressure required to stay in a certain school, or denied transfer to another school, because of his race or color, the school heads may allow the pupil, whether white or Negro, to go to the same school as he would have attended in the absence of the ruling of the Supreme Court. Consequently, compliance with that ruling may well not necessitate such extensive changes in the school system as some anticipate.\'"

School Board of City of Charlottesville, Va., v. Allen, 4 Cir., 1956, 240 F.2d 59, 62.

In our opinion on the last appeal, we noted that the then appellants prayed for no more stringent order than one "requiring appellees to desegregate the schools under their jurisdiction `with all deliberate speed'" (247 F.2d 272). Accordingly, this Court's mandate fixed no date for desegregation more specific than "from and after such time as may be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed as required by the decision in Brown v. Board of Education of Topeka, 349 U.S. 294 75...