Alfred Avery, Jr., a Minor, by His Mother and Next Friend, (Mrs.) Alfred Avery v. Wichita Falls Independent School District , 241 F.2d 230 ( 1957 )

RIVES, Circuit Judge.

This action was brought by twenty negro children of public school age, residents of the Wichita Falls Independent School District, as a class action, the complaint averring,

“4. Minor plaintiffs bring this •action by their next friends in their own behalf, and on behalf of all other Negro minors who are similarly situated because of race or color within the defendant Wichita Falls Independent School District. They állege that they are members of a general class of persons who are segregated and discriminated against by order of the defendant board of trustees of the defendant Wichita Falls Independent School District because of their race and color; that the members of the class are so numerous as to make it impracticable to bring all of them before this Court; that they, as members of the class, can and will fairly, represent all of the members of the class; that the character of the right sought to be enforced and protected for the class is several and that there is a common question of fact and law af-' feeting the several rights of all and a common relief is sought, and that they bring this action by their next friends as a class action pursuant to Rule 23(a) (3), of the Federal Rules of Civil Procedure. [28 U.S.C.A.]”

The prayer was for a declaratory judgment as to the rights and privileges of the class, and that the defendants be enjoined from denying to the minor plaintiffs and the members of the class of persons they represent the right and privilege of attending the public elementary school nearest their respective homes “under the same conditions and circumstances and without any distinctions being made as to them on the basis of their race or color.”

The defendants moved to dismiss the complaint and in the alternative for a summary judgment, and the court dismissed the complaint stating in its order of dismissal that:

“taking into consideration all of the proof, the declared purpose and policy of the defendants to carry out desegregation in the schools of the District during the next school term, the progress already made and the definite prospect that such voluntary adjustment will be accomplished within a matter' of months, it appears to the Court that judicial intervention -under-the equity powers at this time would be premature or inadvisable, ■and the Court is also of the opinion that the specific grievance alleged by the plaintiffs from being denied entrance at the Barwise School, has now become moot.”

The negro population in the Wichita Falls Independent School District lived largely in one single concentrated area. At the time the action was filed, some fourteen to sixteen negro children along with 680 white children attended the Sheppard Air Force Base Elementary School which was operated on a nonsegregated basis,¹ and nearly all other negro pupils in the Wichita District, slightly over a thousand, attended the Booker T. Washington School, a school operated for negroes only. The answer admitted that,

“Present statistics indicate that there are approximately 140 colored students who should be admitted to Barwise school if the district comprises a compact unit situated within its natural access boundaries.”

In addition there were still other negro children of school age, about seventeen in number, residing within the areas served by various other schools in the Wichita District, but who were “automatically” transferred to the Booker T. Washington School. Altogether more than 13,000 pupils were enrolled in the schools of the Wichita Falls Independent School District. No negro child was going to any school other than the Booker T. Washington School and Sheppard Air ■Force Base School. ■

The plaintiffs lived in the area served by the Barwise School. At the opening of the school term in September, 1955, they applied for admission to that school and it is admitted that they were refused on racial grounds. ¡The Barwise School was then being attended by.white children only, but a new school was under construction in Sunnyside Heights, a white section of the town, to which it was planned to transfer the white pupils. The new school had been scheduled for completion by September, 1955 but was not actually completed until January, 1956, after the present suit had been filed. The white pupils were then transferred from Barwise to the new school; Barwise was renamed the A. E. Holland School after a former negro principal of the Booker T. Washington School, and was opened on a nominally desegregated basis though only negro pupils, including the minor plaintiffs, registered.

The Superintendent of Schools testified that a start had been made toward desegregating the schools because the Sheppard Air Force Base School had been desegregated and was attended by white children and by some fourteen to sixteen negro children, and because the A. E. Holland School was legally desegregated though actually attended by negro children only, and, further, that it was the intention of the Board to completely desegregate the entire district “at the earliest feasible moment”, that “by the beginning in September of this, of 1956, we will have a very good beginning; and by midterm of 1957 it’s altogether possible that the entire school system could be desegregated.”

Clearly plaintiffs seeking judicial relief from racial discrimination applied against the members of a numerous class may maintain a class action.²

At the time the district court dismissed the complaint, a part of the plaintiffs’ prayer had been met, that is they were attending the public school nearest their homes, but it is by no means certain that they had the same free privilege of transfer to or attendance on any school of their choice as was accorded the white children. Admittedly desegregation of the schools of the district had not then been completed, though the defendants professed such a purpose, and the court thought that it would be accomplished “within a matter of months”.

Upon this appeal, the appellees have attached as an exhibit to their brief an affidavit of the Superintendent of Schools to the effect that the 1956 summer session of the Wichita Falls Senior High School was non-segregated and was actually attended by 411 white and 15 negro children; that, on September 5, 1956, all pupils were admitted to the schools to which they applied for admission without any discrimination because of their color, though no negro children applied for admission to any school except Sheppard Air Force Base School, Booker T. Washington School and A. E. Holland School. The appellees urge upon us that, if not moot at the time the district court dismissed the complaint, the cause has now become moot and that the appeal should be dismissed or that the judgment of the district court should be affirmed.

The appellants, on their part, deny that the public schools within the Wichita Falls Independent School District have actually and in good faith been desegregated, and insist that, it being undisputed that when the complaint was filed the defendants had denied to the plaintiffs solely on account of their race the right to attend the school of their choice, a claimed cessation of such unlawful conduct would not render the action moot nor justify its dismissal.³

The Constitution as construed in the School Segregation Cases, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Id., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, forbids any state action requiring segregation of children in public schools solely on account of race; it does not, however, require actual integration of the races. As was well said in Briggs v. Elliott, D.C.E.D.S.C., 132 F.Supp. 776, 777:

“ * * * it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away, from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. .. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary' action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amend-' ment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individuals.”

Keeping that principle in mind, we cannot say that the district court abused its discretion in declining to enter a decree declaring the rights of the parties or enjoining against discrimination. The primary responsibility rested upon the Board, and the district court had the discretion to withhold action when convinced that the Board had made “a prompt and reasonable start” and was proceeding to a “good faith compliance at the earliest practicable date.” ⁴ Such start and continuation were steps, but no more than steps, toward compliance, and, until that goal was reached, the plaintiffs and the class represented by them would be denied their constitutional right to be free from state imposed discrimination because of their race or color. In the Brown Case, supra, it appeared that,

“The presentations * * * demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation.” 349 U.S. at page 299, 75 S.Ct. at page 755.

The Court nevertheless directed that, “During this period of transition, the courts will retain jurisdiction of these cases.” 349 U.S. at page 301, 75 S.Ct. at page 756. See also, Brown v. Rippy, 5 Cir., 233 F.2d 796.

We are of the clear opinion that, at the time of the rendition of judgment by the district court the case had not become moot and thatiit was error to dismiss the action.

The cases relied on by appellants establish the proposition that voluntary cessation of illegal conduct does not make the case moot. If, however, in addition the court finds that there is no reasonable probability of a return to the illegal conduct, and that no disputed question of law or fact remainfe to be determined, that no controversy .remains to be settled, then it should not adjudicate a cause which no longer exists. United States v. W. T. Grant Co., supra, 345 U.S. at page 633, 73 S.Ct. 894, 97 L.Ed. 1303; Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620. It cannot be claimed that the appeal has become moot through compliance with a: proper decree. Instead, the claim is that the entire case has become moot through cessation of the unlawful conduct. Ordinarily, such a claim should be considered by the trial court in the first instance. It is said, however, that in so ¡far as the law is concerned no question is now presented which has not already been settled by the School Segregation Cases, supra, and that is true. The facts, on the other hand, may be subject to more than one interpretation. The appellants question whether the actual segregation existing in most of the schools is, in fact, voluntary. Events which have occurred since the judgment of dismissal, or which may occur in the future may constitute “good faith compliance”, but, in the present circumstances, that cjuestion should not be determined by this Court on the basis of ex' parte affidavits; such an issue depending largely on the good faith of the defendants can be better decided by the district court after a full and fair hearing. “Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal.” Brown v. Board of Education, supra, 349 U.S. at page 299, 75 S.Ct. at page 756. The district court should retain jurisdiction for the entry of all judgments and orders necessary to ascertain, or else to require, “good faith compliance.”

The judgment is, therefore, reversed and the cause remanded.

Reversed and remanded.

CAMERON, Circuit Judge, dissents.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

1 . It had been desegregated at the request of the United States Department of Health, Education and Welfare.

2 . Rule 23, F.R.C.P.; The School Segregation Cases, Brown v. Board of Ed. of Topeka, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873: Beal v. Holcombe, 5 Cir., 193 F.2d 384; Frasier v. Board of Trustees of University of North Carolina, D.C.M.D.N.C., 134 F.Supp. 589, 593, affirmed per curiam 350 U.S. 979, 76 S.Ct. 467; Holmes v. City of Atlanta, D.C.N.D.Ga., 124 F.Supp. 290, 293, affirmed 5 Cir., 223 F.2d 93, modified and remanded 350 U.S. 879, 76 S.Ct. 141; Kansas City, Mo. v. Williams, 8 Cir., 205 F.2d 47, 51, 52; Wilson v. Board of Supervisors, E.D.La., 92 F.Supp. 986, affirmed per curiam, 340 U.S. 909, 71 S.Ct. 294, 95 L.Ed. 657.

3 . For this position, the appellants cite and rely on the following casos: United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; United States v. U.S. Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343; Federal Trade Comm. v. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863, 82 L.Ed. 1326; Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29; United States v. Oregon Med. State Soc., 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978; United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303.

4 . Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756.