# Ross v. Dyer

> Court of Appeals for the Fifth Circuit · December 28, 1962 · 312 F.2d 191

URL: https://www.frixlaw.com/law-library/cases/6924302

## Case

- **Full name:** Delores ROSS, a Minor, by her Mother and Next Friend, Mary Alice Benjamin v. Mrs. Frank DYER, as President of Board of Trustees of Houston Independent School District
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 28, 1962
- **Citations:** 312 F.2d 191
- **Precedential status:** Published
- **Opinion:** Concurrence by Hutcheson
- **Judges:** Brown, Hutcheson
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6924302

## Opinion text

JOSEPH C. HUTCHESON, Jr., Circuit Judge
(concurring in the result).
I agree with the result reached by the majority, but I prefer to reach it by a slightly different and certainly shorter road. As the majority opinion points out, we must, of course, start with the basic proposition that, while the Supreme Court has ruled that segregation as such violates the constitutional rights of Negroes, it has also held that the enjoyment of those rights is subject, to the modifying concept of gradualism which is that although segregation violates their constitutional rights, these rights need not be accorded them immediately but may be granted them over a period committed to the sound discretion of the school board and the courts.
We have thus far in Houston, on the first appeal of this case, said this period might be as long as thirteen years. However, as to certain grades of school, it was determined that the rights must be granted with some immediacy. This immediate grant of rights to- certain grades *198 with the provision for gradually according them to others was upheld by this court as a valid order. This plan, proposed by the district judge and approved by us, on its face clearly stated that all students in certain grades were entitled to the free choice of schools. At the time of the establishment of this plan in and by the district court, no mention of any kind was made of the so-called Brother and Sister rule and particularly was no attention called to its effect on the rights accorded in the decree. When, thereafter, the board applied the Brother and Sister rule, which, though previously in effect, had not been brought to the court’s attention in connection with its plan, this clearly limited the effect of the district court’s grade a year plan because it carved out of the first grade those students who had brothers or sisters in the higher grades in the school and, while it is true that this rule was not adopted to produce racial discrimination and it had been long in effect on a non-discriminatory basis, it, nevertheless, had the effect on the court’s ordered plan of setting aside to that extent our mandate affirming his earlier judgment.
For this reason the decree appealed from had the effect of taking away a constitutional right definitely and precisely accorded to the appellants by the judgment of the district court and of this court without any adequate showing being made that this, could or should be done.
I do not by this mean to say or to suggest that the district court, having retained jurisdiction for further orders at the foot of the decree could not upon due consideration and adequate legal grounds modify the original plan. I say only that the ground put forward by the board and accepted by the court as a sound claim, the Brother and Sister rule is not, in the posture of this case, such, and that the judgment appealed from must therefore be reversed for further and not inconsistent proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6924302. Public record. Not legal advice.