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CIVIL RIGHTS

these cases.

Phi
Sarah Moo FLEMMING, Appellant, and

(Thu
SOUTH CAROLINA ELECTRIC AND and
GAS COMPANY, a corporation, mond
Appellee.

Fra
No. 6996.

Colun (224 F. 2d 752)

bia,

quire

“In fashioning and effectuating ly nondiscriminatory school system.
the decrees, the courts will be guided During this period of transition, the
by equitable principles. Tradition- courts will retain jurisdiction of
ally, equity has been characterized
by a practical flexibility in shaping
its remedies and by a facility for

"The judgments below, except that

in the Delaware case, are according.
adjusting and reconciling public and

ly reversed and remanded to the Dis.
private needs. These cases call for
the exercise of these traditional at-

trict Courts to take such proceedings

and enter such orders and decrees tributes of equity power. At stake is

consistent with this opinion as are the personal interest of the plaintiffs in admission to public schools as

necessary and proper to admit to

public schools on a racially nondissoon as practicable on a nondiscrimi.

criminatory basis with all deliberate natory basis. To effectuate this in

speed the parties to these cases." terest may call for elimination of a variety of obstacles in making the

The Court is convened to hear any transition to school systems operated

concrete suggestions you may have to in accordance with the constitutional

make as to the decree that it should principles set forth in our May 17,

enter. 1954, decision. Courts of equity

Decree may properly take into account the This cause coming on to be heard on public interest in the elimination of the motion of plaintiffs for a judgment such obstacles in a systematic and

and decree in accordance with the man. effective manner. But it should go date of the Supreme Court, and the Court without saying that the vitality of having carefully considered the decision these constitutional principles can

of the Supreme Court, the arguments not be allowed to yield simply be- of counsel, and the record heretofore cause of disagreement with them. made in this cause:

"While giving weight to these It is ordered that the decree heretofore public and private considerations, entered by this Court be set aside and, the courts will require that the de- in accordance with the decision and manfendants make a prompt and reason- date of the Supreme Court, it is ordered, able start toward full compliance adjudged and decreed that the provisions with our May 17, 1954, ruling. Once of the Constitution and laws of the State such a start has been made, the of South Carolina requiring segregation courts may find that additional time of the races in the public schools are null is necessary to carry out the ruling and void because violative of the Fourin an effective manner. The burden teenth Amendment to the Constitution rests upon the defendants to estab- of the United States, and that the delish that such time is necessary in fendants be and they are hereby rethe public interest and is consistent strained and enjoined from refusing on with good faith compliance at the account of race to admit to any school earliest practicable date. To that under their supervision any child qualiend, the courts may consider prob- fied to enter such school, from and after lems related to administration, aris- such time as they may have made the ing from the physical condition of

Bei United States Court of Appeals SOPE Fourth Circuit.

PE
Argued June 21, 1955.

Th
Decided July 14, 1955.

by a
Action by Negro woman against pany
bus company for damages on account of

ance bus driver's requiring her to change her

Carol seat in accordance with South Carolina

riers, segregation law. The United States Dis

1491 trict Court for the Eastern District of

violat South Carolina, G. B. Timmerman, J.,

Amer 128 F.Supp. 469, dismissed action, and

There plaintiff appealed. The Court of Appeals held that District Court had jurisdiction

and of action under Civil Rights Act.

tion

under Reversed and remanded.

$S 19 1 Civil Rights 7

The
The "separate but equal" doctrine

quest
has been repudiated in its application to

case cases involving transportation as well as

comp in its application to school cases.

sion

16 S. 2. Courts 284

ming District court had jurisdiction, un

Co., O der Civil Rights Act, of action by Negro ness woman against bus company for damages of jus on account of bus driver's requiring her peal, to change her seat in accordance with

[1]

South Carolina segregation law. Code rate it 1952 S.Car. $$ 58–1491 to 58–1496; 28 guson U.S.C.A. § 1343(3); 42 U.S.C.A. $$ as a 1981, 1983; U.S.C.A.Const. Amend. 14. case

by the Where South Carolina law required the pu bus company to enforce segregation law, sions bus company was liable in damages for 347 U unconstitutional enforcement of such law and B by bus driver, even though bus driver Ct. 69 was also a police officer of state. Code public 1952 S.Car. § 58-1494.

necessary arrangements for admission of the school plant, the school trans- children to such school on a non-discrimiportation system, personnel, revision natory basis with all deliberate speed as of school districts and attendance required by the decision of the Supreme areas into compact units to achieve ourt in this cause. a system of determining admission

It is further ordered that this cause to the public schools on a nonracial

be retained on the docket for the entry basis, and revision of local laws and

of further orders herein if necessity for regulations which may be necessary same should arise. in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racial

by co

& Civil Rights 7

separa

M

Sarah Mae FLEMMING, Appellant,

V.

SOUTH CAROLINA ELECTRIC AND GAS COMPANY, a corporation, Appellee.

No. 6995.

(224 F. 2d 752)

United States Court of Appeals Fourth Circuit.

Argued June 21, 1955. Decided July 14, 1955.

Action by Negro woman against bus company for damages on account of bus driver's requiring her to change her seat in accordance with South Carolina

segregation law. The United States District Court for the Eastern District of South Carolina, G. B. Timmerman, J., 128 F.Supp. 469, dismissed action, and plaintiff appealed. The Court of Appeals held that District Court had jurisdiction of action under Civil Rights Act. Reversed and remanded.

1 Civil Rights 7

The "separate but equal" doctrine has been repudiated in its application to cases involving transportation as well as in its application to school cases.

2. Courts 284

District court had jurisdiction, under Civil Rights Act, of action by Negro woman against bus company for damages on account of bus driver's requiring her to change her seat in accordance with South Carolina segregation law. Code 1952 S.Car. §§ 58-1491 to 58-1496; 28 U.S.C.A. § 1343(3); 42 U.S.C.A. §§ 1981, 1983; U.S.C.A.Const. Amend. 14.

3. Civil Rights

7

Where South Carolina law required bus company to enforce segregation law, bus company was liable in damages for unconstitutional enforcement of such law by bus driver, even though bus driver was also a police officer of state. Code 1952 S.Car. § 58-1494.

Philip Wittenberg, Columbia, S. C., and Robert L. Carter, New York City (Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., on brief), for appellant.

Frank B. Gary and Frank K. Sloan, Columbia, S. C. (Paul A. Cooper, Columbia, S. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

This is an action for damages brought by a Negro woman against a bus company because the driver of the bus required her to change her seat in accordance with the segregation law of South Carolina applicable to motor vehicle carriers, South Carolina Code 1952, §§ 581491 to 58-1496, which she claimed to be violative of her rights under the 14th Amendment to the Federal Constitution. There was no diversity of citizenship, and defendant challenged the jurisdiction of the court to entertain the action under the Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1983 and 28 U.S.C. § 1343(3). The trial judge, without discussing the question of jurisdiction, dismissed the case on the ground that state statutes

complained of were valid under the deci

sion of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. See Flemming v. South Carolina Electric & Gas Co., D.C., 128 F.Supp. 469. The correctness of that ruling as well as the question of jurisdiction are presented by the ap

peal.

[1] We do not think that the separate but equal doctrine of Plessy v. Ferguson, supra, can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.Ed. 884, which relate to public schools, leave no doubt that the separate but equal doctrine approved in

Plessy v. Ferguson has been repudiated. ilege or immunity secured by the ConThat the principle applied in the school stitution of the United States or by any cases should be applied in cases involving act of Congress providing for equal transportation, appears quite clearly rights of citizens. The equal protection from the recent case of Henderson v. of the laws is guaranteed by the FourUnited States, 339 U.S. 816, 70 S.Ct. 843, teenth Amendment to the Constitution 94 L.Ed. 1302, where segregation in din- and by 42 U.S.C.A. § 1981, and liability ing cars was held violative of a section for deprivation of such right is provided of the interstate commerce act providing by 42 U.S.C.A. § 1983. Plaintiff's conagainst discrimination. The argument tention is that the defendant corporation, that such segregation can be upheld as a acting under color of state law, denied proper exercise of the state police power plaintiff her rights as secured by the was answered in the case of Dawson v. Constitution and statutes, in that its Mayor and City Council of Baltimore driver, acting in accordance with state City, 4 Cir., 220 F.2d 386, 387, where law, enforced the state segregation statwith respect to segregation in recreation- utes against her and required_her to al centers we said: change her seat. It is argued that, since the driver is made a police officer of the state by section 58-1494 of the South Carolina Code, his action is not attributable to the defendant; but we think it clear that he was acting for the defendant in enforcing a statute which defendant itself was required by law to enforce. See Code 58-1491. He was thus not only acting for defendant, but also acting under color of state law.

44 #

*

it is obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bath-house facilities, the use of which is entirely optional."

[2, 3] We think that there can be no question as to the jurisdiction of the court. Under 28 U.S.C. § 1343(3) the District Courts are given jurisdiction of actions to redress the deprivation, under color of any state law, of any right, priv

The decision appealed from will be reversed and the case will be remanded for further proceedings not inconsistent herewith.

Reversed and Remanded.

KEY HUMBER SYSTEM)

The SCHOOL BOARD OF THE CITY OF CHARLOTTESVILLE, VIRGINIA, and Fendall R. Ellis, Division Superintendent of Schools of the City of Charlottesville, Virginia, Appellants,

V.

Doris Marie ALLEN et al., Appellees. COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, VIRGINIA, and T. Edward Butter, Division Superintendent of Schools, Arlington County, Virginia, Appellants,

Clarissa S. THOMPSON et al., Appellees.

Nos. 7303, 7310.

(240 F. 2d 59)

United States Court of Appeals Fourth Circuit.

Argued Nov. 27, 1956.

Decided Dec. 31, 1956.

Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 667.

Actions in behalf of Negro school children to enjoin school boards and division superintendents of schools from enforcing racial segregation. The United States District Court for the Western District of Virginia, at Charlottesville, John Paul, Chief Judge, and the United States District Court for the Eastern District of Virginia, at Alexandria, Albert V. Bryan, J., 144 F.Supp. 239, granted injunctions, and defendants appealed. The Court of Appeals, Parker, Chief Judge, held that where decrees did not attempt to direct school officials as to how they should perform their duties or exercise discretion vested in them by law, but simply forbade them to discriminate against plaintiffs, or other Negro children similarly situated, on ground of race or color, in violation of their federal rights, actions were not suits against state within meaning of Eleventh Amendment to United States Constitution, and that injunctive decrees were in all respects properly granted.

Affirmed.

1. Courts 303 (7)

Where decrees, in actions in behalf of Negro school children to enjoin school

boards and division superintendents of schools from enforcing racial segregation, did not attempt to direct school officials as to how they should perform their duties or exercise discretion vested in them by law, but simply forbade them to discriminate against plaintiffs, or other Negro children similarly situated, on ground of race or color, in violation of their federal rights, actions were not suits against state within meaning of 11th Amendment of the United States Constitution. U.S.C.A.Const. Amend. 11.

2. Courts 303 (7)

Doctrine permitting federal District Court, despite 11th Amendment precluding suits against state, to enjoin violation by state official of federal constitutional rights under authority of his office, applies to corporate agencies of the state such as school boards, as well as to individuals. U.S.C.A.Const. Amend. 11.

3. States 66

A state can act only through agents. U.S.C.A.Const. Amend. 11.

4. Courts 908(7)

Whether state agent be an individual officer or a corporate agency, he or it ceases to represent state when attempt is made to use state power in violation of United States Constitution, and each may be enjoined from such unconstitutional action, despite 11th Amendment. U.S.C.A.Const. Amend. 11.

5. Courts

262.4(9)

Negro pupils, who had made applications to school boards, without result, for admission to schools upon nonsegregated basis, had properly exhausted administrative remedies, within that prerequisite to federal injunctive relief, in view of inapplicability of recently enacted Virginia Pupil Placement Law which had not become effective, and in view of futility of individual application to a particular school for admission. Code Va.1950, § 22-57; Acts 1956, Ex.Sess., c. 70.

6. Courts 262.4(9)

Where, in view of announced policy of respective school boards, individual application by Negro child for admission

CIVIL RIGHTS

st th te

ac

ve

SU th tic th

to particular school other than segregat- pellees in No. 7303, and Edwin C. Brown,
ed school would have been futile, child Alexandria, Va., on brief for appellees in
would not be required to make such in- No. 7810).
dividual application as condition of seek-
ing injunctive relief against allegedly SOPER

Before PARKER, Chief Judge, and
unconstitutional actions of school boards

and SOBELOFF, Circuit

Judges.
in denying admission on basis of race or
color. Code Va.1950, $ 22–57.

PARKER, Chief Judge.

These are appeals in actions instituted
7. Equity 54
Equity does not require the doing of join School Boards and Division Super-

in behalf of Negro school children to en-
a vain thing as a condition of relief.

intendents of Schools from enforcing 8. Injunction 78

racial segregation. One action relates to Decrees enjoining school boards the schools of the City of Charlottesville, from enforcing racial segregation in vio- Virginia, and the other to the schools of lation of terms of decision of United the County of Arlington in that state. States Supreme Court were not abuse of Injunctions were granted in both cases discretion, where, though Supreme Court and the school authorities have appealed, decision had been rendered two years

raising practically the same questions. previously, school boards had done noth- The questions presented by the appeals ing to effect it.

are: (1) whether the actions should have

been dismissed as suits against the state, 9. Injunction 208

(2) whether plaintiffs had failed to exo Decrees enjoining school boards

haust administrative remedies, and (3) from enforcing racial segregation in vio- whether there was abuse of discretion lation of terms of decision of United

in entering the injunctive orders. States Supreme Court were not harsh or

With respect to the Charlottesville unreasonable, where they merely re

case, it appeared on a hearing duly held quired that law be observed and discrim

that request had been made to the school ination on ground of race be eliminated, authorities to take action toward abolishand one expressly and other impliedlying the requirement of segregation in recognized local rules relating to assign- the schools and that no action had been ment to classes and requirement of ex

taken. The District Judge in his opinhaustion of administrative remedies.

ion, after reciting the pertinent evidence,
summarized his conclusions as follows:

The prayer of the complaint is in John S. Battle, Charlottesville, Va.

substance that the defendants be en(John S. Battle, Jr., Charlottesville, Va.,

joined from continuing to maintain and Henry T. Wickham, Sp. Asst. to the

segregated schools. The defendants Atty. Gen. of Virginia, on brief), for

have refused to agree to abandon appellants in No. 7303.

the practice of segregation and have Frank L. Ball, Arlington, Va. (James

made it plain that they intend, if H. Simmonds, Arlington, Va., and Henry

possible, to continue it. Under this T. Wickham, Sp. Asst. to the Atty. Gen.

state of facts the plaintiffs are unof Virginia, on brief), for appellants in

doubtedly entitled to maintain this No. 7310.

action and to have the relief prayed J. Lindsay Almond, Jr., Atty. Gen. of for. Virginia, for appellants in both cases.

"It only remains to be determined Oliver W. Hill and Spottswood W. as to the time when an injunction reRobinson, III, Richmond, Va., for ap- straining defendants from maintainpellees in both cases (Martin A. Martin, ing segregated schools shall become Roland D. Ealey, Richmond, Va., and S. effective. The original decision of W. Tucker, Emporia, Va., on brief for ap- the Supreme Court was over two

years ago. Its supplementary opinion directing that a prompt and reaBonable start be made toward desegregation was handed down fourteen months ago. Defendants admit that they have taken no steps toward compliance with the ruling of the Supreme Court. They have not requested that the effective date of any action taken by this court be deferred to some future time or some future school year. They have not asked for any extension of time within which to embark on a program of desegregation. On the contrary the defense has been one of seeking to avoid any integration of the schools in either the near or distant future. They have given no evidence of any willingness to comply with the ruling of the Supreme Court at any time. In view of all these circumstances it is not seen where any good can be accomplished by deferring the effective date of the court's decree beyond the beginning of the school session opening this Autumn. Even though the time be limited it is not impossible that, at the school session opening in September of this year, a reasonable start be made toward complying with the decision of the Supreme Court."

W th th to th

en

or

or th su fo

The order, which by its terms was to
become effective at the commencement of
the school term beginning in Septem-
ber 1956, and which retained jurisdiction
of the cause for such future action as
might be necessary, restrained and en-
joined the defendants ;

"From any and all action that reg.
ulates or affects, on the basis of race
or color, the admission, enrollment
or education of the infant plaintiffs,
or any other Negro child similarly
situated, to and in any public school

bo operated by the defendants."

The Arlington case was heard upon the dir pleadings and upon documentary evi- the dence submitted to the court on a motion gr. to dismiss. The judge found from the documentary evidence and from the

uc

de of

no

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