Hеlen COVINGTON, personally and as mother and next friend of
Cornett Covington et al., Appellants,
v.
J. S. EDWARDS, Superintendent of Schools of Montgomery
County, North Carolina, E. R. Wallace, D. C. Ewing, Harold
A. Scott, James R. Burt and James Ingram, members of the
Montgomery County Board of Education, Appellees.
No. 7802.
United States Court of Appeals Fourth Circuit.
Argued March 12, 1959.
Decided March 19, 1959.
Jack Greenberg, New York City, and J. Kenneth Lee, Greensboro, N.C. (Conrad O. Pearson, Durham, N.C., and Thurgood Marshall, New York City, on the brief), for appellants.
Thomas F. Ellis, Rаleigh, N.C. (Garland S. Garriss, Troy, N.C., on the brief), for appellees.
Ralph Moody, Asst. Atty. Gen. of North Carolina (Malcolm B. Seawell, Atty. Gen. of North Carolina, on the brief), for State Board of Education and State Supеrintendent of Public Instruction.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit judges.
PER CURIAM.
The parents of a number of Negro children in Montgomery County, North Carolina, brought this suit to secure an injunction against the Superintendent of Schoоls and the County Board of Education, directing the defendants to present a plan of desegregation of the races in the schools and forbidding them to assign Negroes to particular schools because of their race. The complaint was filed on July 29, 1955, as a class action by thirteen adults personally and as the next friends of the forty-five minor plaintiffs, all of whom are Negroes. The defendants filed an answer on September 22, 1955, alleging that the plaintiffs had failed to exhaust the administrative remedies provided by the State, in that they did not comply with the statutes of the State which regulate the assignmеnt and enrollment of pupils in the public schools. On this account, the defendants moved the court to dismiss the suit, and the District Judge after hearing granted the motion.
We are of the opinion that the present case is ruled by the prior decisions of this court in Carson v. Board of Education, 4 Cir.,
'* * * The Act of March 30, 1955,1 entitled 'An Act to Prоvide for the Enrollment of Pupils in Public Schools', being chapter 366 of the Public Laws of North Carolina of the Session of 1955, provides for enrollment by the county and city boards of education of school сhildren applying for admission to schools, and authorizes the boards to adopt rules and regulations with regard thereto. It further provides for application to and prompt hearing by the board in thе case of any child whose admission to any public school within the county or city administrative unit has been denied, with right of appeal therefrom to the Superior Court of the county and thence to the Supreme Court of the state. An administrative remedy is thus provided by state law for persons who feel that they have not been assigned to the schools that they are entitled to attend; and it is well settlеd that the courts of the United States will not grant injunctive relief until administrative remedies have been exhausted. * * *'
This case was brought to this court a second time, in Carson v. Warlick, supra, after the Supreme Court of North Carolina in Joyner v. McDowell County Board of Education,
'Somebody must enroll the pupils in the schools. They сannot enroll themselves; and we can think of no one better qualified to undertake the task than the officials of the schools and the school boards having the schools in charge. It is to be presumed that these will obey the law, observe the standards prescribed by the legislature, and avoid the discrimination on account of race which the Constitution forbids. Not until they have been applied to and have failed to give relief should the courts be asked to interfere in school administration. As said by the Supreme Court in Brown v. Board of Education,
"* * * School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional prinсiples'.
'It is argued that the statute does not provide an adequate administrative remedy because it is said that it provides for appeals to the Superior and Supreme Courts of the State аnd that these will consume so much time that the proceedings for admission to a school term will become moot before they can be completed. It is clear, however, that the appeals to the courts which the statute provides are judicial, not administrative remedies and that, after administrative remedies before the school boards have been exhausted, judicial remеdies for denial of constitutional rights may be pursued at once in the federal courts without pursuing state court remedies. Lane v. Wilson,
'There is no question as to the right of thеse school children to be admitted to the schools of North Carolina without discrimination on the ground of race. They are admitted, however, as individuals, not as a class or group; and it is as individuals that their rights under the Constitution are asserted. Henderson v. United States,
We are advertent to the circumstances upon which the plaintiffs rest their case, namely, that the County Board has taken no steps to put an end to the planned segregation оf the pupils in the public schools of the county but, on the contrary, in 1955 and subsequent years, resolved that the practices of enrollment and assignment of pupils for the ensuing year should be similar to those in use in the current year. If there were no remedy for such inaction, the federal court might well make use of its injunctive power to enjoin the violation of the constitutional rights of the plaintiffs but, as we have seen, the State statutes give to the parents of any child dissatisfied with the school to which he is assigned the right to make application for a transfer and the right to be heard on the question by the Bоard. If after the hearing and final decision he is not satisfied, and can show that he has been discriminated against because of his race, he may then apply to the federal court for relief. In thе pending case, however, that course was not taken, although it was clearly outlined in our two prior decisions, and the decision of the District Court in dismissing the case was therefore correct. This conclusion does not mean that there must be a separate suit for each child on whose behalf it is claimed that an application for reassignment as been improperly denied. Therе can be no objection to the joining of a number of applicants in the same suit as has been done in other cases. The County Board of Education, however, is entitled under the North Carolina statute to consider each application on its individual merits and if this is done without unnecessary delay and with scrupulous observance of individual constitutional rights, there will be no just cause for complаint.
The appellants also raise the point that the District Judge was wrong in rejecting the motion of the plaintiffs to amend the bill of complaint by joining the State Board of Education and the Superintendеnt of Public Instruction of the State as parties defendant. It is pointed out that the State Board has general control of the supervision and administration of the fiscal affairs of the public schoоls and other important powers conferred by the General Statutes, secs. 115-4, 115-11 and 115-283. The provisions of sec. 115-178 of the Pupil Placement Act, however, places the authority in the County boards of eduсation to make the assignments and enrollment of pupils and contains no direction for the participation of the State Board of Education in these matters. We therefore think that nothing would bе gained by joining these officials as additional defendants and that the judge was correct in denying the motion to amend the complaint.
Affirmed.
Notes
This act in its present form is found in the General Statutes of North Carolina, Chapter 115, Article 21, Secs. 115-176 to 115-179. Changes of assignment are regulated by Sec. 115-178