Board of Public Instruction of Duval County, Florida v. Daly N. Braxton and Sharon Braxton, Minors, by Sadie Braxton, Their Mother Andnext Friend

JONES, Circuit Judge

(dissenting).

I find myself out of harmony with the majority, both on the jurisdictional question and on the merits. I do not think the order from which the appeal is taken is such a final decision as is within the terms of 28 U.S.C.A. § 1291 . A decision is final for the purpose of an appeal when it terminates the litigation and leaves nothing to be done but to enforce what has been determined. Ex parte Norton, 108 U.S. 237 , 2 S.Ct. 490 , 27 L.Ed. 709 ; Winthrop Iron Co. v. Meeker, 109 U.S. 180 , 3 S.Ct. Ill, 27 L.Ed. 898 ; Milton v. United States, 5th Cir. 1941, 120 F.2d 794 ; Smith v. Kincade, 5th Cir. 1956, 232 F.2d 306 . This is true even though the merits of the cause may have been substantially decided by the trial court. Life & Fire Insurance Co. v. Adams, 9 Pet. 571 , 34 U.S. 571 , 9 L.Ed. 234 . The majority agrees with this view but decides that the order of the district court is one granting an injunction and appealable under 28 U.S.C.A. § 1292 (a) (1). It would seem to be no injunction at all where the court directed something to be done and then provided that it need not be done unless required by a further order. As to the direction to submit a plan I think that the case of Taylor v. Board of Education, 2nd Cir. 1961, 288 F.2d 600 , cert. den. 368 U.S. 940 , 82 S.Ct. 382 , 7 L.Ed.2d 339 , is not only well considered, as the majority says, but is not to be distinguished from this case. I think the Second Circuit has stated a sound principle and that we should follow it. The failure of the Court to notice an absence of jurisdiction in Orleans Parish School Board v. Bush, 242 F.2d 156 , cert. den. 354 U.S. 921 , 77 S.Ct. 1380 , 1 L.Ed.2d 1436 , if jurisdiction was not there present, could hardly confer jurisdiction in a similar case where jurisdiction is not otherwise present.

The determination made by the majority on the merits of the appeal seems to me to be incorrect. The decision is based, as it must be, on Brown v. Board of Education. In the Brown case there had been a finding that:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system.” 347 U.S. 483, 494 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 .

It was on these and similar fact findings that the Supreme Court made its determination that the racial segregation of pupils in. public schools was inherently unequal. Laws and customs requiring such segregation deny equal protection of the law to the class at which they are directed. By judicial alchemy the factual determination of Brown has been *622 transmuted into a rule of law so that it is now conclusively presumed that racial segregation of pupils is detrimental to them and denies to them a constitutionally guaranteed right. Stell v. Savannah-Chatham County Board of Education, 5th Cir. 1963, 318 F.2d 425 .

It should be kept in mind, however, that the principles of law declared in Brown were dependent upon the factual finding of injury to pupils. In this case it is found that “Negro personnel [teachers, principals, supervisory and operating personnel] are assigned to Negro schools and white personnel are assigned to white schools.” The appellees, who were plaintiffs in the district court, are Negro children who are pupils in the public schools of Duval County, Florida. In their complaint they allege that they “and the members of their class, are injured by the policy of assigning teachers, principals and other school personnel on the basis of the race and color of the children attending a particular school and the race and color of the person to be assigned.” There was no proof made of the injury and no finding by the court that the policy of assigning Negro personnel to Negro schools and white personnel to white schools has a detrimental effect upon Negro children. No such finding of fact has been made in any other case, so far as I am aware.

In Augustus v. Board of Public Instruction of Escambia County, D.C.N.D. Fla.1960, 185 F.Supp. 450 , the complaint alleged, among other things, that the plaintiffs, Negro children, were injured by the policy of the School Board of assigning teachers, principals and other school personnel on the basis of the race and color of the children attending a particular school and color of the person to be assigned. The allegation was substantially the same as that in this case. In the Escambia County case the district court held that, as a matter‘of law, no rights of the Negro children plaintiffs were violated by the assignment of school personnel on the basis of race or color. The averments were stricken by the district court. This Court reversed, holding that fact issues were presented which should have been determined, and that the question should not have been disposed of on a motion to strike. Augustus v. Board of Public Instruction, 5th Cir. 1962, 306 F.2d 862 . Here the district court has held that, as a matter of law, the Negro children plaintiffs had rights which were violated by the assignment of school personnel on the basis of race or color. It is my belief that there should be proof made of the injury resulting from the manner of assignment of personnel. I think it should be shown, if it can be shown, that the manner of assignment has a detrimental effect on the Negro children with a tendency to retard their educational and mental development, as w;as done in Brown v. Topeka with respect to segregation of pupils, or there should be shown some other detriment in proof of the allegation of the complaint.

The Supreme Court, in its second Brown case, said, as quoted in the opinion of the majority, that “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 * * *.” 349 U.S. 294, 300-301 , 75 S.Ct. 753, 756 , 99 L.Ed. 1083 . [Emphasis supplied.] Brown dealt with pupil segregation, not with assignments of school personnel. The comments of the Supreme Court are to apply to cases in which “admission to the public schools on a nonracial basis” is sought. “Admission to public schools” refers, surely, to admission of pupils. It cannot be said that teachers, principals and administrative personnel are “admitted” to the public schools. It is hardly persuasive authority for the proposition that racial segregation of school personnel is injurious to school pupils, to say that in cases involving the admission of pupils to public schools on a nonracial basis consideration may be given to school per *623 sonnel. It does not follow that because injury to Negro children will be presumed from racial segregation of pupils in public schools, proof need not be made of the factual allegation that injury to Negro children as a class is caused by racial segregation of school personnel.

For the reasons which I have tried to outline, I dissent.

Rehearing denied; JONES, Circuit Judge dissenting.