Shuttlesworth v. Birmingham Board of Education, Civ. A. No. 8914.

• Decision Date: 09 May 1958
• Docket Number: Civ. A. No. 8914.
• Citation: 162 F. Supp. 372
• Parties: Ruby Fredricka SHUTTLESWORTH, a minor, by her next friend, F. L. Shuttlesworth; Denise Armstrong, a minor, by her next friend, James Armstrong; Wathaw Avery, a minor, by his next friend, Wathaw Avery, Sr.; and Nathaniel Lee Horton, a minor, by his next friend, Annie L. Horton, Plaintiffs, v. BIRMINGHAM BOARD OF EDUCATION OF JEFFERSON COUNTY, ALABAMA, Defendant.
• Court: U.S. District Court — Northern District of Alabama

162 F. Supp. 372

Ruby Fredricka SHUTTLESWORTH, a minor, by her next friend, F. L. Shuttlesworth; Denise Armstrong, a minor, by her next friend, James Armstrong; Wathaw Avery, a minor, by his next friend, Wathaw Avery, Sr.; and Nathaniel Lee Horton, a minor, by his next friend, Annie L. Horton, Plaintiffs, v. BIRMINGHAM BOARD OF EDUCATION OF JEFFERSON COUNTY, ALABAMA, Defendant.

Civ. A. No. 8914.

United States District Court N. D. Alabama, S. D.

May 9, 1958.

Ernest D. Jackson, Sr., Jacksonville, Fla., and James A. Washington, Washington, D. C., for plaintiffs.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, Ala., and Cabaniss & Johnston, Thad Holt, Jr., and Jos. F. Johnston, Birmingham, Ala., for defendant.

Before RIVES, Circuit Judge, LYNNE, Chief Judge, and GROOMS, District Judge.

RIVES, Circuit Judge.

Four Negro school children, by their parents and next friends, bring this class action, on behalf of themselves and those similarly situated, to test the constitutionality of the Alabama School Placement Law,¹ and to enjoin the Birmingham Board of Education, its members, agents, representatives and employees from enforcing said School Placement Law, and from refusing, "solely on the basis of race or color or resentment by others," to permit the four plaintiff Negro children and others similarly situated to attend or transfer to a public school situated closer to their respective homes than the schools to which they are now assigned.

The adult and minor plaintiffs are citizens of the State of Alabama, residing in the City of Birmingham. The minor plaintiffs are eligible to attend the public schools of said City. The Birmingham Board of Education is an agency of the State of Alabama and the City of Birmingham charged by law with responsibility for the operation of public schools in said City.

On August 21, 1957, which was two weeks before the beginning of the 1957-58 school term, the adult plaintiffs filed individual petitions with the Birmingham Board of Education requesting "that appropriate and necessary steps be taken to immediately reorganize the school system so as to provide accommodations for our children in schools of the closest proximity to their homes on a nondiscriminatory basis during the 1957-58 term." The Board referred the handling of said petitions to the Superintendent of City Schools, who, on September 9th and 10th, requested the adult petitioners to present their minor children on Monday, September 16th, to the Guidance Center at Thomas School, located in Birmingham, Alabama, for the purpose of taking tests.

Meantime, under date of August 28, 1957, the State Superintendent of Education² wrote a letter to the adult plaintiffs, in which he stated:

"I urgently recommend that you fully support your local board of education in its decision in the placement of your child in school. * * As you consider your petition, I ask you to weigh carefully the following:

"1. More people of your race finished high school in Alabama than in any other state in the Union, irrespective of population, even though some other states have more people of your race.

"2. Elementary teachers of your race received higher average annual salaries than the average of the State because of higher training. The teachers of your race in Alabama are better educated than the average of the Nation. Why should you try to take your children away from such highly trained teachers?

"3. A higher percentage of the children of seven to twenty years of age of your race were enrolled in school last year than the State average.

"4. If you have the best conditions in the Nation as set forth in statements 1, 2, and 3 above, why do you want to change the conditions that produced these gains for you and your people?

"5. On August 28, 1956, the people of Alabama voted to change the Constitution of this State, and thereby abolish the right of education or training of any individual at public expense. Under the 1956 Constitutional Amendment Acts 1956, 1st Sp.Sess., p. 119, any public school and all public schools can be abolished and the school buildings can be rented or given to individuals to operate private schools. If you refuse to cooperate with the city board of education in the school placement of your children, you will in effect invite the abolishment of the public schools. Where would your children be, and where would the children of your friends and your people be in this State without public schools?

"6. Your child has many advantages in having a teacher of your race.

"7. I think you will destroy what you already have if you refuse to cooperate with the decision of the local board of education to place your child in the school they think will be best for your child.

"8. As your State Superintendent of Education, I ask that you agree with your local board of education in the school placement of your child."

Instead of presenting their minor children for tests on September 16, the adult petitioners, by mail, requested an interview with the Superintendent of City Schools, which he refused and informed them that it would be necessary first to present the minor children for tests as theretofore requested. On October 7, the minor petitioners were presented and given tests under the auspices of the Guidance Center. During the early part of November, their parents were interviewed by the Superintendent of City Schools. Admitted are averments to the effect that petitioners have requested a "final determination of their rights to attend the schools located within the closest proximity of their homes on a nondiscriminatory and a nonracial basis," but "the Respondents have not rendered an Opinion admitting or denying the request for assignment of the minor Petitioners to the schools requested * * *." The present complaint was filed in the district court on December 18, 1957.

By motion to dismiss, and by answer filed without waiving its motion to dismiss, the Birmingham Board of Education presents the following defenses:

I. This Court is without jurisdiction.

II. The action is against the State of Alabama, and is prohibited by the Eleventh Amendment to the Constitution of the United States.

III. The plaintiffs have not exhausted their administrative remedies.

IV. The Alabama School Placement Law is not unconstitutional on its face, and the plaintiffs have not stated or proved a case upon which relief can be granted.

The case was submitted for decision upon the motion to dismiss, and for final decree upon the merits. The plaintiffs introduced in evidence their petitions, the correspondence passing between them and the Superintendent of City Schools, and the letter written to them by the State Superintendent of Education, none of which were controverted. The effect of the undisputed evidence has already been stated. The parts of the complaint denied by the defendant are those alleging discrimination against the plaintiffs, which are substantially quoted in the margin.³ As to such disputed parts of their complaint, the plaintiffs offer no evidence, but rely entirely upon the judicial knowledge of the Court as to matters of law, the Acts and Resolutions of the Legislature of Alabama, and the history of the period immediately preceding and following the enactment of the Alabama School Placement Law. The ultimate contentions of the plaintiffs are that the Alabama School Placement Law discriminates against them on account of their race or color, and that said law is unconstitutional on its face.

I. Jurisdiction of the Court.

That federal jurisdiction exists in some district court under one or more of the Sections cited in the margin,⁴ requires no discussion. The disputed issue of jurisdiction relates to the three-judge court. A substantial federal constitutional question is necessary to invoke the jurisdiction of a three-judge district court under 28 U.S.C.A. § 2281. The Louisiana pupil assignment law was held to be so clearly and patently unconstitutional on its face as not to require the interposition of a three-judge court. Bush v. Orleans Parish School Board, D.C.E.D.La.1956, 138 F.Supp. 336. The Supreme Court denied leave to file a petition for writ of mandamus, 351 U.S. 948, 76 S.Ct. 854, 100 L.Ed. 1472. There, Article 12, Sec. 1 of the Louisiana Constitution, LSA, had been adopted in 1954 making segregation through the exercise of the police power part of the constitutional law of that State. Act 555 of 1954, LSA-R.S. 17:331 et seq. had implemented that constitutional requirement by providing that: "All public elementary and secondary schools in the State of Louisiana shall be operated separately for white and colored children." The next numbered Act 556 of 1954, LSA-R.S. 17:8.1 was the Louisiana pupil assignment law. Both the three-judge court, 138 F.Supp. 336, and the one-judge district court, 138 F.Supp. 337, 341, thought the pupil assignment law plainly unconstitutional on its face. In affirming the judgment of the one-judge district court, the Court of Appeals for the Fifth Circuit, Orleans Parish School Board v. Bush, 5 Cir., 1957, 242 F.2d 156, 164, said in part:

"Whatever might be the holding as to the validity of an administrative pupil assignment statute containing reasonably certain or ascertainable standards to guide the official conduct of the superintendent of the local school board and to afford the basis for an effective appeal from arbitrary action, Act 556 is not such a statute. The plaintiffs, seeking to assert their right to attend nonsegregated schools as guaranteed them under the Constitution, would be remitted to an administrative official guided by no defined standards in the exercise of his discretion.8

"8 Cf. Carson v. Warlick, 4 Cir., 238 F.2d 724; the North Carolina Pupil Enrollment Act there involved was held by the court to contain adequate standards."

Likewise, the Virginia Pupil Placement Law was held to be so patently unconstitutional on its face as not to call for a...