That the principle applied in the school cases should be applied in cases involving transportation, appears quite clearly from the recent case of Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination. The argument that such segregation can be upheld as a proper exercise of the state police power was answered in the case of Dawson v. Mayor and City Council of Baltimore City, 4 Cir., 220 F.2d 386, 387, where with respect to segregation in recreational centers we said:

*

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

stitution of the United States or by any act of Congress providing for equal rights of citizens. The equal protection of the laws is guaranteed by the Fourteenth Amendment to the Constitution and by 42 U.S.C.A. § 1981, and liability for deprivation of such right is provided by 42 U.S.C.A. § 1983. Plaintiff's contention is that the defendant corporation, acting under color of state law, denied plaintiff her rights as secured by the Constitution and statutes, in that its driver, acting in accordance with state law, enforced the state segregation statutes against her and required her to 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.

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. 7803, 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.

to particular school other than segregated school would have been futile, child would not be required to make such individual application as condition of seeking injunctive relief against allegedly unconstitutional actions of school boards in denying admission on basis of race or color. Code Va.1950, § 22-57.

7. Equity 54

Equity does not require the doing of a vain thing as a condition of relief.

8. Injunction 78

Decrees enjoining school boards from enforcing racial segregation in violation of terms of decision of United States Supreme Court were not abuse of discretion, where, though Supreme Court decision had been rendered two years previously, school boards had done nothing to effect it.

9. Injunction 208

Decrees enjoining school boards from enforcing racial segregation in violation of terms of decision of United States Supreme Court were not harsh or unreasonable, where they merely required that law be observed and discrimination on ground of race be eliminated, and one expressly and other impliedly recognized local rules relating to assignment to classes and requirement of exhaustion of administrative remedies.

John S. Battle, Charlottesville, Va. (John S. Battle, Jr., Charlottesville, Va., and Henry T. Wickham, Sp. Asst. to the Atty. Gen. of Virginia, on brief), for appellants in No. 7303.

Frank L. Ball, Arlington, Va. (James H. Simmonds, Arlington, Va., and Henry T. Wickham, Sp. Asst. to the Atty. Gen. of Virginia, on brief), for appellants in No. 7310.

J. Lindsay Almond, Jr., Atty. Gen. of Virginia, for appellants in both cases.

Oliver W. Hill and Spottswood W. Robinson, III, Richmond, Va., for appellees in both cases (Martin A. Martin, Roland D. Ealey, Richmond, Va., and S. W. Tucker, Emporia, Va., on brief for ap

PARKER, Chief Judge.

These are appeals in actions instituted in behalf of Negro school children to enjoin School Boards and Division Superintendents of Schools from enforcing racial segregation. One action relates to the schools of the City of Charlottesville, Virginia, and the other to the schools of the County of Arlington in that state. Injunctions were granted in both cases and the school authorities have appealed, raising practically the same questions. The questions presented by the appeals are: (1) whether the actions should have been dismissed as suits against the state, (2) whether plaintiffs had failed to exhaust administrative remedies, and (3) whether there was abuse of discretion in entering the injunctive orders.

With respect to the Charlottesville case, it appeared on a hearing duly held that request had been made to the school authorities to take action toward abolishing the requirement of segregation in the schools and that no action had been taken. The District Judge in his opinion, after reciting the pertinent evidence, summarized his conclusions as follows:

"The prayer of the complaint is in substance that the defendants be enjoined from continuing to maintain segregated schools. The defendants have refused to agree to abandon the practice of segregation and have made it plain that they intend, if possible, to continue it. Under this state of facts the plaintiffs are undoubtedly entitled to maintain this action and to have the relief prayed for.

"It only remains to be determined as to the time when an injunction restraining defendants from maintaining segregated schools shall become effective. The original decision of the Supreme Court was over two

years ago. Its supplementary opinion directing that a prompt and reasonable 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."

The order, which by its terms was to become effective at the commencement of the school term beginning in September 1956, and which retained jurisdiction of the cause for such future action as might be necessary, restrained and enjoined the defendants:

"From any and all action that regulates 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 operated by the defendants."

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

statements of counsel in open court that there was no genuine issue as to any material fact in the case and that "on the admissions of record and the uncontrovertible allegations of the complaint, summary judgment should be granted the plaintiffs". With respect to exhaustion of administrative remedies he made the following finding:

“(d) That, as appeared from the said documentary evidence, the plaintiffs before instituting this suit had exhausted all administrative remedies then and now available to them, including the administrative steps set forth in Section 26-57 [22-57] Code of Virginia 1950, in that, they have since July 28, 1955, in effect maintained a continuing request upon the defendants, the County School Board and the Division Superintendent of Schools, for admission of Negro children to the public schools of Arlington County on a non-racial basis, and said request has been denied, or no action taken thereon, the equivalent of a denial thereof".

The decree, which was made effective with respect to elementary schools at the beginning of the second semester of the 1956-1957 session and with respect to high schools at the commencement of the 1957-1958 session, restrained and enjoined the defendants "from refusing on account of race or color to admit to, or enroll or educate in, any school under their operation, control, direction or supervision any child otherwise qualified for admission to, and enrollment and education in, such school."

The foregoing general language of the decree was limited by paragraph 4 thereof, which made clear that the court was not attempting to direct how the school board should handle the problem of assigning pupils but was merely forbidding unconstitutional discrimination on the ground of race or color. That paragraph is as follows:

"4. The foregoing injunction shall not be construed as nullifying

any State or local rules, now in force or hereafter promulgated, for the assignment of children to classes, courses of study, or schools, so long as such rules or assignments are not based upon race or color; nor, in the event of a complaint hereafter made by a child as to any such rule or assignment, shall said injunction be construed as relieving such child of the duty of first fully pursuing any administrative remedy now or hereafter provided by the defendants or by the Commonwealth of Virginia for the hearing and decision of such complaint, before applying to this court for a decision on whether any such rule or assignment violates said injunction."

In his memorandum filed at the time of the entry of the decree, the judge said:

"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 neces-
sitate such extensive changes in the
school system as some anticipate."

[1] We see nothing in these decrees of which the defendants can complain.

The decrees do not attempt to direct the school officials as to how they shall perform their duties or exercise the discretion vested in them by law, but simply forbid them to discriminate against the plaintiffs, or other Negro children similarly situated, on the ground of race or color, in violation of their rights under the Constitution of the United States as declared by the Supreme Court. A suit for such relief is not a suit against a state within the meaning of the 11th Amendment to the Constitution, but is a suit for the protection of individual rights under the Constitution by enjoining state officers and agencies from taking action beyond the scope of their legal powers. The difference between using the injunctive power of the court to direct the exercise of discretion by a state officer and using it to enjoin the violation by him of Constitutional rights under the authority of his office was pointed out nearly a half a century ago in Ex parte Young, 209 U.S. 123, 159160, 28 S.Ct. 441, 453, 52 L.Ed. 714, where the court said:

"It is contended that the complainants do not complain and they care nothing about any action which Mr. Young might take or bring as an ordinary individual, but that he was complained of as an officer, to whose discretion is confided the use of the name of the state of Minnesota so far as litigation is concerned, and that when or how he shall use it is a matter resting in his discretion and cannot be controlled by any court.

"The answer to all this is the same as made in every case where an official claims to be acting under the authority of the state. The act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect the state in its sovereign or governmental capacity. It is simply an illegal act