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"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

“While giving weight to these public and private considerations, the courts will require that the de fendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary 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

ly nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

“The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."

The Court is convened to hear any concrete suggestions you may have to make as to the decree that it should enter.

Decree This cause coming on to be heard on the motion of plaintiffs for a judgment and decree in accordance with the mandate of the Supreme Court, and the Court having carefully considered the decision of the Supreme Court, the arguments of counsel, and the record heretofore made in this cause:

It is ordered that the decree heretofore entered by this Court be set aside and, in accordance with the decision and mandate of the Supreme Court, it is ordered, adjudged and decreed that the provisions of the Constitution and laws of the State of South Carolina requiring segregation of the races in the public schools are null and void because violative of the Fourteenth Amendment to the Constitution of the United States, and that the defendants be and they are hereby restrained and enjoined from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such school on a non-discriminatory basis with all deliberate speed as required by the decision of the Supreme vurt in this cause.

It is further ordered that this cause be retained on the docket for the entry of further orders herein if necessity for same should arise.

om som

v.

Philip Wittenberg, Columbia, S. C., Sarah Mao FLEMMING, Appellant, and Robert L. Carter, New York City

(Thurgood Marshall, New York City, SOUTH CAROLINA ELECTRIC AND and Spottswood W. Robinson, III, RichGAS COMPANY, a corporation, mond, Va., on brief), for appellant. Appellee.

Frank B. Gary and Frank K. Sloan, No. 6996.

Columbia, S. C. (Paul A. Cooper, Colum(224 F. 2d 752)

bia, S. C., on brief), for appellee.

Before PARKER, Chief Judge, and
United States Court of Appeals SOPER and DOBIE, Circuit Judges.
Fourth Circuit.

PER CURIAM.
Argued June 21, 1955.

This is an action for damages brought
Decided July 14, 1955.

by a Negro woman against a bus comAction by Negro woman against pany because the driver of the bus rebus company for damages on account of quired her to change her seat in accordbus driver's requiring her to change her ance with the segregation law of South

Carolina applicable to motor vehicle carseat in accordance with South Carolina segregation law. The United States Dis. riers, South Carolina Code 1952, $$ 58trict Court for the Eastern District of 1491 to 58–1496, which she claimed to be South Carolina, G. B. Timmerman, J., Amendment to the Federal Constitution.

violative of her rights under the 14th 128 F.Supp. 469, dismissed action, and There was no diversity of citizenship, plaintiff appealed. The Court of Appeals and defendant challenged the jurisdicheld that District Court had jurisdiction tion of the court to entertain the action of action under Civil Rights Act.

under the Civil Rights Acts, 42 U.S.C.A. Reversed and remanded.

$S 1981, 1983 and 28 U.S.C. § 1343(3).

The trial judge, without discussing the 1 Civil Rights 7

question of jurisdiction, dismissed the The "separate but equal" doctrine

case on the ground that state statutes has been repudiated in its application to

complained of were valid under the deci. cases involving transportation as well as

sion of Plessy v. Ferguson, 163 U.S. 537, in its application to school cases.

16 S.Ct. 1138, 41 L.Ed. 256. See Flem2. Courts 284

ming v. South Carolina Electric & Gas District court had jurisdiction, un- Co., D.C., 128 F.Supp. 469. The correctder Civil Rights Act, of action by Negro ness of that ruling as well as the question woman against bus company for damages of jurisdiction are presented by the ap

peal. on account of bus driver's requiring her to change her seat in accordance with [1] We do not think that the sepaSouth Carolina segregation law. Coderate but equal doctrine of Plessy v. Fer1952 S.Car. $$ 58–1491 to 58–1496; 28 guson, supra, can any longer be regarded U.S.C.A. § 1343(3); 42 U.S.C.A. $$ as a correct statement of the law. That 1981, 1983; U.S.C.A.Const. Amend. 14. case recognizes segregation of the races

by common carriers as being governed 8. Civil Rights 7

by the same principles as segregation in Where South Carolina law required the public schools; and the recent decibus company to enforce segregation law, sions in Brown v. Board of Education, bus company was liable in damages for 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 unconstitutional enforcement of such law and Bolling v. Sharpe, 347 U.S. 497, 74 S. by bus driver, even though bus driver Ct. 693, 98 L.Ed. 884, which relate to was also a police officer of state. Code public schools, leave no doubt that the 1952 S.Car. § 58-1494.

separate but equal doctrine approved in herewith. [2, 3] We think that there can be no Reversed and Remanded. 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

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 it is obvious that racial the driver is made a police officer of the segregation in recreational activi- state by section 58-1494 of the South ties can no longer be sustained as a Carolina Code, his action is not attributproper exercise of the police power

able to the defendant; but we think it of the State; for if that power can

clear that he was acting for the defendnot be invoked to sustain racial seg. ant in enforcing a statute which defendregation in the schools, where at- ant itself was required by law to enforce. tendance is compulsory and racial

See Code 58–1491. He was thus not only friction may be apprehended from

acting for defendant, but also acting unthe enforced commingling of the

der color of state law, races, it cannot be sustained with re

The decision appealed from will be respect to public beach and bath-house

versed and the case will be remanded for facilities, the use of which is entire

further proceedings not inconsistent ly optional.”

19

KOT TUNDEN SISTEM

boards and division superintendents of Tho SCHOOL BOARD OF THE CITY OF schools from enforcing racial segrega. CHARLOTTESVILLE, VIRGINIA, and

tion, did not attempt to direct school Fendall R. Ellis, Division Superintend.

officials as to how they should perform ant of Schools of the City of Charlottes.

their duties or exercise discretion vested ville, Virginia, Appellants,

in them by law, but simply forbade them v.

to discriminate against plaintiffs, or Doris Marlo ALLEN et al, Appellees.

other Negro children similarly situated, COUNTY SCHOOL BOARD OF ARLING

on ground of race or color, in violation TON COUNTY, VIRGINIA, and T. Ed.

of their federal rights, actions were not ward Butter, Division Superintendent

suits against state within meaning of of Schools, Arlington County, Virginia

11th Amendment of the United States Appellante,

Constitution. U.S.C.A.Const. Amend. 11.
V.
Clarissa S. THOMPSON et along

2. Courts 803(7)
Appelloos.

Doctrine permitting federal District Nos. 7803, 7810.

Court, despite 11th Amendment preclud(240 F. 2d 59)

ing suits against state, to enjoin violaUnited States Court of Appeals tion by state official of federal constituFourth Circuit

tional rights under authority of his office,

applies to corporate agencies of the state Argued Nov. 27, 1956.

such as school boards, as well as to inDecided Dec. 31, 1956.

dividuals. U.S.C.A.Const. Amend. 11. Writ of Certiorari Denied March 25, 1957. See 77 S.Ct. 667.

3. States 66

A state can act only through agents. Actions in behalf of Negro school

U.S.C.A.Const. Amend. 11. children to enjoin school boards and division superintendents of schools from Courts 303(7) enforcing racial segregation. The Unit- Whether state agent be an individ. ed States District Court for the Western ual officer or a corporate agency, he or it District of Virginia, at Charlottesville, ceases to represent state when attempt John Paul, Chief Judge, and the United is made to use state power in violation of States District Court for the Eastern United States Constitution, and each District of Virginia, at Alexandria, Al- may be enjoined from such unconstitubert V. Bryan, J., 144 F.Supp. 239, grant- tional action, despite 11th Amendment. ed injunctions, and defendants appealed. U.S.C.A.Const. Amend. 11. The Court of Appeals, Parker, Chief Judge, held that where decrees did not

8. Courts 262.4(9) attempt to direct school officials as to how Negro pupils, who had made applicathey should perform their duties or exer

tions to school boards, without result, for cise discretion vested in them by law, but

admission to schools upon nonsegregated simply forbade them to discriminate basis, had properly exhausted adminisagainst plaintiffs, or other Negro chil

trative remedies, within that prerequidren similarly situated, on ground of

site to federal injunctive relief, in view race or color, in violation of their federal

of inapplicability of recently enacted Virrights, actions were not suits against ginia Pupil Placement Law which had state within meaning of Eleventh not become effective, and in view of futilAmendment to United States Constitu

ity of individual application to a particution, and that injunctive decrees were in

lar school for admission. Code Va.1950, all respects properly granted.

§ 22-57; Acts 1956, Ex.Sess., c. 70. Affirmed.

6. Courts - 282.4(9) L Courts 303(7)

Where, in view of announced policy Where decrees, in actions in behalf of respective school boards, individual of Negro school children to enjoin school application by Negro child for admission

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. 7910). dividual application as condition of seek

Before PARKER, Chief Judge, and ing injunctive relief against allegedly

SOPER and SOBELOFF, Circuit unconstitutional actions of school boards

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

PARKER, Chief Judge.

These are appeals in actions instituted 7. Equity 54

in behalf of Negro school children to enEquity does not require the doing of

join School Boards and Division Supera 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 exDecrees 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 ape 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

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