Brief for the Petitioner — McNeese v. Board of Education for Community Unit School District 187 Cahokia

LISRARY ae ee

. SUPREME COURT, U. Bm

JOHN F. DAVIS, CLERK

Gunnee Gene ot

Ruited States

Ocrosern Tzem, A.D. 1962

No. 480

_

LOUIS McNEESE, JR., A Minor, By MABEL McoNEESE,

His Mother And Next Friend, et al,

: Petitioners,

vs.

BOARD OF EDUCATION FOR COMMUNITY UNIT SCHOOL

DISTRICT 187, CAHOKIA, ILLINOIS, et al,

Respondents.

On Writ Of Certiorari To The United States;

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONERS. —

Jouyw W. Rogers,

Eart E. SrrayHorn,

Raymonp E. Hartu,

CuarLes H. Jonezs, Jr.,

_ Crayton R. WriuiaMs,

109 N. Dearborn Street,

Chicago 2, Illinois,

Attorneys for Petitioners.

J Jack GREENBERG,

Constance Baker MOT Ley,

James M. Nasait, III,

Of Counsel.

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Midwest Law Printing Co, — 326 N. Michigan Ave., Chicago — FI 6-3988

INDEX.

PAGE

isin TIT sescesccssascccsiennsesitbacsstenssanenyenns EIA ARE Bes 1

Jurisdiction cece. WES eR mY ee 2

Questionn Presemted i... cece cco eececcccecceececcscseteceens 2

Statutes Involved ARE, MEN ie bein 3

a At 6

Fe ERENT AREER E RS TNE RENN oe Om 15

A. The Exhaustion Of State Administrative Rem-

edies IS‘Not A Prerequisite To Filing Suit In A

Federal Court Under The Civil Rights Act Seek-

ing Declaratory And Injunctive Relief —

A Racially Segregated Public School & stem... 15

B. Illinois Has Not Provided Any Reasonably Ex-

peditious, Adequate, Or Effective Administra-

tive Remedy To Cure The Discrimination Al-

leged By Petitioners To Exist 2.00.0... 0... 21

C. The Illinois Statute (Ch. 122, §22-19) rTRS

ably Conditions The Commencenent Of A Pro-

ceeding By Requiring An Aggrieved Party To

Obtain The Signatures Of 50 Persons On His

Complaint, Thus Failing To Give Due Protec-

tion To Personal Constitutional nights . iacaineacaide 30

Conclusion ............. + LL * ELE a ae eT a SI ns” O6

TABLE Or Cases

‘Bacon v. Rutland R. Co., 232 U.S. 134 27

Borders v. Rippy, 247 F. 2d 268 (5th Cir. 1957) \........ 19

Boson v. Rippy, 285 F. 2d 43 31

Browder e, 142 F. Supp. 707, Affirmed Per

352 U.S. 903 19

__ Brown v. Bd. of Education, 347 U.S. 483 .............. 15, 17, 31

KR

. ii

E .

Brown v. OA of 24. 3008-28 2... 31

Bruc v. Stilwell, 206 F. 2d 554 (5th Cir. 1953) _..... 19

Carson v. Bd. of’ Education, 207 F. 2d 789 (4th Cir.

ON a)

Carson vy. Warlick, 238 F. 2d 724 (4th Cir. 1956),

Co Sere eee es ee 20, 27

Carter v. School Bd. of Arlington County, 182 F. 2d

6. Re, Scot Se Beira 19

City Bank Farmers Trust Co. v. Schnader, 291 US.

| Sede RETA AEE ae or 27

Conley v. Gibson, 355 US. aT ee 17

Cooper hae, 26 US 1 15, 31

Detroit & Mackinac R. Co. v. Michigan RR. ——

BEE RSS Seem SSS etn OO a «EO 27

Dove _Parham,, 282 F. 2d O56 (8th Cir. 1960) _.......... 27

Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960) 00... 233

Gibson v. Bd. of Publi¢ — 202, F. bs a (5th

— Cries TOU) a hic cee 19

Gomillion v. Lightfoot, 364 fr S. 339 Bs Tas Se Oe 17

Government and Civie Employees Organizing Com-

_inittee v. Windsor, 353 U.S. 364 siete lacie tana icacat ics ()

Great. Lakes Huffman 319

5S RU iin OMT eer alee Be te a eee eae 26

Green v. School Bd. of City of Roanoke; 304 F. od 118 ‘

Ct RES pA EM BP Ren tae eee 19

Grubb v. PubfUtil. Comm., 281 CS. Wo a, 7

Harrison v. Civil Serv. Comm., 1 Ill. 2d Bt, 115

TRAM Gm DIN els ete al Y-

Harrison v. N.A.A.CP., 360 US. 167 PSR UE ke a 20

Hillsborough Township v. Cromwell, 326 U.S. 620 .., 26, 33

Holland v. Bd. of Pub. nats 258 F. 2d 730 (5th

BR agra ERE NN MOONE oC ARON i9

Jackson v. Rawdon, 235 F. od 93 (5th Cir. 4956),

ae te = ne ee si. 49

Jeffers v. Whitley, 309 F. 2d: 621 (4th Cir. 1962) ne 19

Lane -v. Wilson, S07 Us QGB nije cnscteccsnsnccheneoennsnseeenens OT, 28

- Levers v. Anderson, 326 °U.S. 219 .............................. 33 -

-. Mc@abe v. Atchison T. & S. F. R. Co., 235 U.S. 151... 3

McCoy v. Greensboro City Bd. of Ed, 283 F. 2d 667

(4th Cir. sors 8

7 had

wan

iil ae

McLaurin v. Oklahoma State Regents, 339 U.S. 637 .... 17

Mannings v. Bd. of Public Instr., 277 F. 2d 370 (5th

Car, 1960) .nnn.n.-.--22ssesecnceeeenencensenegeeesensensnsescensnenncesensnnens 19, 20

Marsh v. County School Bd. of Roanoke County, 305

F. 2d 94 (4th Cir. 1962). ........---------------2-e te: Rhee Ss 19

Missouri ex rel. Gaines v. Canada, 305 U.S. eee 31

Monroe v. Pape, 365 U.S. 167 -...-..--------------eceee 16, 18

Montana National Bank of Billings v. Yellowstone

County, 276 U.S. 499 RET ST EES Ria I RS 23

Northeross v. Bd. of Ed., 302 F. 2d 818 (6th Cir.

1962) cert. den. 370 U.S. 944 -.......-2.-- cislkececahemasese 19

Order of Railway Conductors of America v. Swan,

a a Se pee SE a ent eee Pm 22

Orleans Parish School Bd. v. Bush, 242 F. 2d 156 (5th

- y. Cir. 1957), cert. den. 354 U.S. 921... So saiceaieant » 19

Oyama Vv. Califprnia, BA Se” See eeennerre 31

Pacific Teleph.’& Teleg. Co. v. Kuykendall, 265 U.S.

cae ceestsd cigars nnspsanwmcsocomntoatts ratte a 27

Parham v. Dove, 274 F. 2d 132 (8th Cir. 1957) ........ 2

People v. Western Union Tel. Co., 70 Colo. 90, 198

Pane, 246 ...ni.n--2ccnc-t--nceoersenesnnesnceccsreeenesenqeontecessneqeossesesensens 3

‘Prendergast v. N. Y. Telephone Co., 262 U.S. 43 .... 27, 33

’ Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210 .... 27

Romero v. Weakley, 226 F. 2d 399 (9th Cir. 1955)... 19

St. Helena Parish School Bd. v. Hall, 287 F. 2d 376

ae Nc 19

School Board of City of Charlottesville v.- Allen, 240 .

F.2d 59 (4th Cir. 1956) cert. den. 353°E;S. 910 ... 19, 23

School Board of Newport News v. Atkins, 246 F.2d |

395 (4th Cir. 1957) cert. den. 355 US. 886 =... 19, 23

Shelley v. Kraemer, 334 U!S. 1-1 ----ee 9/31

Sipuel v. pe Regents, 332 U.S. 631 ....--.----------2-- 5 i

Sweatt v. Painter, 339 U.S. 629 -.......... 7s oe EO 31

Taylor v. Bd. of New Rochelle, 191 F.

N.Y., 1961) App. Dismissed, 288 F°

Cir. 1961); 195 F. Supp.) 231 (S.D. N-

Affirmed 294 F. 2d 36 (2nd Cir. 1961), cert. den.

- 368 US. 940 ....x..- Ca ie en eae 17, 31°

U.S. Alkali Export Ass'n. v. U. S., 325 U.S. 196 ........ 23, 24 ©

Waite v. Macy, 246 U.S. 606. Sha lcucatiatctelaianlscsnlipedbaimoes 7

; {

}

iv

Wheeler v. mee City Bd. of Ed., 309. F. 2d 630

nN 17, 19

Yick Wo v. Hopkins, 118 U.S. BG onan nnannnscn ns senreennnsntec 16

FEDERAL STATUTES

Be Ty, Fi A, ND ects cecnprepsncocsaidevennns 5, 16, 31

ES I DART etree Oe eevee canon Fe 15

ee I ndcpecIboriincteensiccdaccinasiianesicinsmamsacwie 5, 16, 27, 31

HWavenas, Rvuves Or Civit Procepure

ni FRI eee Cat te Ne 320

20 hg ag .

Illinois Revised Stat

STATE STATUTES

tes: (Smith- Hurd Annotated °

_ Statutes)

Chap. 14, §4 fpeceescnsscssesesnnsseneeesnsssscsessrsssssenstennesseetensed 25

Chap. 38, §§13-1 OS PE ee Ee a 16, 25

ee NN 27

Chap. 110, §264 et seq. .............. fae AMEE NAC 24, 28

___ Chap. 122.(Sehool Code) — :

I I iaicae is outs couiccdceosseenpeinidccnba poesenianccien 21

eens 4... PEI SPAT het Rat We 16, 21

§18-12 ee Sa a ae 4.16, 21

23-11 Py eBek ot ALLA A AER NO Oe Sala” ae

[Sena eh fsigiclic ten \.- 16

§22-19 % eae 3, 11, 21, 22, 24, 30

I aid nica cseciogeptus sccadanneseh cl spulh adalat 16

SEES Ee teks brane Tae he 16

*

\

IN THE

Supreme Court of the United States

Ocroser Term, A.D. 1962

No. 480

‘LOUIS McNEESE, JE., A Minor, By MABEL McNEESE,

His Mother And Next Friend; et al.,

Petitioners,

vs.

BOARD OF EDUCATION FOR COMMUNITY UNIT ‘SCHOOL

DISTRICT 187, CAHOKIA, ILLINOIS, et al,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

~

BRIEF FOR PETITIONERS?

OPINIONS BELOW.

The oy yn of the United States District Court for the

Eastern District of Illinois is reported at 199 F. Supp.

403. The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 305 F. 2d 783.

iii:

JURISDICTION.

The judgment of the Court of Appeals (as entered July

5, 1962 (R. 31-32). The Petition for Writ of Certiorari

was filed in this Court October 3, 1962, and the writ was

granted December 10, 1962 (.R. 32).

This Court has jurisdiction under 28 United States Code, —

Section 1254(1). >

QUESTIONS PRESENTED.

1. Whether, where plaintiffs sought equitable relief

against public school segregation, invoking federal court

jurisdiction under the Civil Rights Acts, the court erred

in dismissing the case on the ground that plaintiffs must

exhaust state administrative remedies before filing a suit.

2. Whether a state procedure requiring a hearing be-

fore an official without power to grant relief, who can

merely request that the State Attorney General seek relief

in a state court, is an inadequate, uncertain and partially

judicial procedure which need not be exhausted as a pre-

requisite to the grant of equitable relief in the federal

courts to correct racial segregation in public schools.

3. Whether the court below erred in requiring resort

to a procedure inadequate because of its unavailability to

individuals who do not obtain the signatures of 50 persons

on & — to the administrative officials. |

Cc

cn ae

STATUTES INVOLVED.

o S anEEeEEEEan

*

.* a

1. This case involves Illinois Revised Statutes, 1961,

Chapter 122, Section 22-19, which provides as follows:

“See. 22-19. Upon the filing of a complaint with

the Superintendent of Public Instruction, executed in

duplicate and subscribed with the names and addresses

of at least 50 residents of a school district or 10%,

whichever is lesser, alleging that any pupil has been

excluded from or segregated in any school on account

of his color, race, nationality, religion or religious af-

filiation, or that any employee of or applicant for

employment or assignment with any such school dis-

trict has been questioned concerning his color, race,

nationality, religion or religious affiliation or subjected

to discrimination by reason thereof, by or on behalf of

the school board of such district, the Superintendent

of Public Instruction shall promptly mail a copy of

such complaint to the secretary or clerk of such school

board.

“The Superintendent of Public Instruction shall

fix a date, not less than 20 nor more than 30 days

from the date of the filing of such complaint, for a

hearing upon the allegations therein. He may also fix

a date for hearing whenever he has reason to believe

that such discrimination may exist in any sehool dis-

trict. Reasonable notice of the time and place of such

hearing shall be mailed to the secretary or clerk of the

school board and to the first subseriber to such com-

© plaint. . | |

“The Superintendent of Public Instruction may des-

ignate an assistant to conduct such hearing and receive

testimony concerning the situation complained of. The

complainants may be represented at “wien aria by

&

one of their number or by counsel. Eaeh “party shall “

have the privilege of cross examining witnesses. The

Superintendent of Public Instruction or the hearing

_ o

. officer appointed by him shall have the power to sub-

poena witnesses, compel their attendance, and require

the production of evidence relating to any relevant

matter under this Act. Any Circuit or Superior Court

of this State, or any judge thereof, either in term

time or vacation, upon the application of the Super-

intendent of Public Instruction or the hearing officer

appointed by him, may, in its or his discretion, com-

_pel the attendance of witnesses, the production of

_ books, papers, records or memoranda and the giving

of testimony before the Superintendent of Publie In-

struction or the hearing officer appointed by him con-

ducting an investigation or holding a hearing author-

ized by this Act, by an attachment for contempt, or

otherwise, in the same manner as production of evi-

dence may be compelled before said court. The Super-

intendent of Public Instruction or the hearing officer

appointed by him may cause the depositions of wit-

nesses within the State to be taken in the manner

prescribed by law for like depositions in civil actions

in courts of this State, and to that end compel the

attendance of witnesses and the production of books,

papers, records and memoranda. All testimony shall

be taken under oath administered by the hearing

officer, but the formal rules’ pertaining to evi-

dence in judicial proceedings shall not apply. The Su-.

perintendent of Public Instruction shall provide a com-

petent reporter to take notes of all-testimony. Either

party desiring a transcript of the hearing shall pay

for the cost of such transcript. The hearing officer

shall report a summary of the testimony to the Su-

perintendent of Public Instruction who shall deter-

mine whether the allegations of the complaint are sub-

stantially coftrect. The Superintendent of Public

Instruction shall notify both parties of his decision.

If he so determines, he shal] request the Attorney Gen-

eral to apply to the appropriate circuit court for such

injunctive or other relief as may be necessary to recti-

fy the practice complained of.

mews

“The provisions of the ‘Administrative Review Act,’

approved May 8, $945, and all amendments and modi-

fications thereof’ and the rules adopted’ pursuant

thereto shall apply: to and govern all proceedings for |

the judicial review of any final decision rendered by

‘the Superintendent of Public saqyrection a to

this Section.”

” 9. This case ilies involves Title 42, United States Code,

Section 1983, which provides:

1983. Civil action . for deprivation of rights.—

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or |

Territory, subjects, or causes to be.subjected, any citi-

zen of the United States or othér person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured hy. the Constitution

and laws, shall be liable to the party injured in an ac- |

tion at law, suit in equity, or other. Proper proceeding

for redress. 0

3. This case also involves Title 28, United States Code,

Section 1343(3):

be 1343. Civil rights—The district courts: shall have

original jurisdiction of any civil ‘action: authorized by

law to be commenced by any person:

* ee © @&

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, eustom or

usage, of any right, privilege or imniunity secured by

the Constitution of the United States or by any Act

of Congress providing for equal rights of: citizens or

of all persons within the iguana of the United

States.

a 4

ee VE

STATEMENT.

This action was commenced in the United States District

_Court for the Eastern District of Illinois on September

12, 1961, by a group of Negro school children and their

parents residing in St. Clair County, Illinois, and attend-

ing schools in Community Unit School District No. 187.

The complaint named as defendants the Board of Educa-

tion for Community Unit School District No. 187; the

County Superintendent of Schools for St. Clair County,

Illinois; and the Superintendent of Schools for School

District No. 187.

Jurisdiction of the District Court was invoked pursuant

to 26 U.S.C. 1343(3) as authorized by Title 42, U.S.C.,

$1983 to gedress the deprivation of rights secured by the

due process and equal protection clauses of the Fourteenth

Amerdment to the Constitution of the United States. The

action was brought pursuant to Federal Rules of Civil

Procedure, Rule 23(a)(3) “on behalf of all other Negro

children and their parents in Centreville, Illinois who are

similarly situated and affected by the policy, practice, cus-

tom and usage complained of herein” (R.3). —

Defendants moved to dismiss the complaint; plaintiffs

were granted leave to amend the complaint; and the de-

fendants’ motion to dismiss was extended to attack the

amended complaint (R. 2). The District Court heard ar-

guments on the motion to dismiss October 6, 1961 (R. 2)

and on November 24, 1961, entered an order granting de-

fendants’ motion and dismissing the amended complaint

(R. 15).

i

Because the case was decided on the pleadings, a de-

tailed description of the’ amended complaint is necessary.

It was alleged that the minor plaintiffs are Negro chil-

dren attending the public elementary schools in Communi-

ty Unit School District No. 187 (R. 3) which are under

the jurisdiction, management, and control of the ‘several

defendants (R. 3); that the questions presented by the

‘ action are common to all Negro children in the school dis-_

trict, and that the members of the class plaintiffs represent

are so numerous as to make it impracticable to bring them -

all individually before the-court, but that the class was

fairly and adequately represented (R. 3-4)..It was alleged

that the defendants were charged by Illinois law with the |

duty of maintaining and operating a public school system

in District No. 187; that they are presently operating

public schools in the area in purported pursuance of said

laws; that the defendant school board established and

maintained within the District various free schools or-

ganized as elementary, junior high and high schools.

It was further alleged that defendants were’ pursuing

a policy, custom and practice for determining the assign-

ment of pupils to the elementary schools in the district

generally. known as the “neighborhood school policy” or

“attendance area policy” by which children are compelled

to attend schools in attendance areas where they reside

and are not permitted to attend schools in other areas

except under special circumstances not applicable to the

plaintiffs or the class represented and with certain other

exceptions which are described below.

The complaint alleged further that the defendants op-

erate elementary schools known as the Chenot School and

and Centreville School and approximately four other

schools, each of which had a prescribed attendance area

ek

(R. 5). Plaintiffs alleged that the Chenot School which

began operation in 1957, “was planned and built, and its at-

tendance area boundaries were so drawn as to make it an

_ exclusively Negro school in its student enrollment” (R.

5); and that Negroes, including plaintiffs, in the communi-

ty lived within well-defined geographic areas known as

ghettoes which were well known to the defendants at the

time the boundaries of the school attendance areas were

established (R. 5): It was alleged that as a result of the

defendants’ adoption and pursuance of the attendance area

policy, defendants have created and do maintain racially

segregated public elementary schools and that the minor

plaintiffs are compelled to attend sneh a racially segre-

gated school by the defendants (R. 6). In explanation it

was asserted that prior to 1957 when the Chenot School

was opened, Negro elementary pupils residing in what

is now the Chenot attendance area were assigned to the

Centreville School; that Negto children were compelled

to attend classes at Céntreville School exclusively in the

afterno6n, while white children in the same school attended

classes exclusively in the morning, with the exception of.

- certain “slow” white pupils who attended classes through-

out the day. (R. 6); that when the Chenot School was open-

ed in 1957, “all or practically ,all the children of elemen-

tary school age who resided in the Chenot attendance area

were Negroes, a result intentionally achieved. by the de- —

fendants hy. the manner in which the Chenot attendance

area boundaries are drawn, in pursuance of a plan to make

Chenct School an all-Negro school in student enrollment”

(BR. 6).

It was alleged that since 1957, ellen of overcrowding

in the adjacent Centreville School area, certain fifth and

, sixth grade classes at the Centreville School were trans-

€

in.

ferred to Chenot School; that these classes consisted of

approximately 97% white and 3% Negro students; and that

these classes were maintained intact as separate classes

within Chenot School “in pursuance of [defendants’] de-

sign to maintain separate and racially segregated educa-

tional facilities for Negro school children, or as nearly

so separated and segregated as practicable” >(R. 6-7). It

was alleged that as a result of the foregoing policy during .

the 1960-61 school year (the one next preceding the filing

of the complaint) there were no white children of elemen-

tary school age residing in the Chenot attendance area;

that the enrollment-at-the Chenot School consisted of 251°

Negro students and 254 white students; that alt these —

white students were in the fifth and sixth grade classes

transferred from the Centreville School as described above ;

that only eight Negro students were in classes with white

students (R. 7); that at. the Chenot School there were 10

classes with only Negro students, three classes with only

white students, and five classes among which eight Negro

students were divided along with about 146 white pupils.

. It was alleged. that except for the eight Negro students

at Chenot School ‘who were transferred from Centreville

School, all Negro students within the school “attended

classes located together in one part of the school building,

separate and apart from the white students, and were

further compelled to use entrances to and exits from the

school building separate from those used by the white

students” (R. 8).

It was alleged that the described conditions were con-

tinuing and current (R. 8), and that “despite requests, de-

mands and pleas to the defendants to cease and desist”

they had failed and refused to desegregate the schools

under their jurisdiction and were acting so as to perpetu-

/

—_—-s

J

—10—

ate the system of segregated schools and facilities con-

trary to the Constitution of the United States (R. 9); and

that the defendants’ actions in drawing boundary lines of

‘the attendance area and in “creating and maintaining ra-

cially segregated classes and separate educational facili-

ties,” and in compelling minor plaintiffs to attend a racial-

ly segregated school deprived plaintiffs of the equal pro-

tection of the laws and due process of the law as guaran-

teed by the Fourteenth Amendment (R. 9). lt was alleged

that the defendants’ action caused the plaintiffs irrepar-

able injury which will continue unless defendants are en-

joined by the court and that any other relief to which plain-

tiffs could be remitted “would be attended by such uncer-

tainties and delays as to deny to plaintiffs substantial re-

lief to which they are entitled” (R. 10).

Plaintiffs further alleged that they had not exhausted

certain administrative remedies provided by the Illinois

law “for the reason’that the remedy there provided is in-

adequate to provide the relief sought” (R. 10)>-

The complaint prayed for declaratory relief adjudging

the defendants’ practices at the Chenot School to be in vio-

latioz. of ‘tthe Fourteenth Amendment and sought an in-

junction against these same practices. The complaint also

requested that the court require the defendants to submit

to the court a plan for compliance with “deliberate speed”

in order to register the minor plaintiffs in racially inte-

grated public elementary schools, and for sd other ap-

propriate relief (R. 11).

The defendants’ motion to dismiss asserted that the

-complaint failed to state a claim upon which relief coukl

be granted stating, inter alia, that the plaintiffs have not

-exhaust-1 procedures under certain Illinois laws, namely,

“Section 22-19 of the School Code” “(B. 12-13).

or

inte

The provisions of Ch. 122, §22-19 of the “Illinois School

Code of 1961” (enactéd in 1961) can be summarized as

follows: 4

. If a complaint is-filed with the Illinois Superintendent

of Public Instruction executed in d&plicate by at least 50

residents of a school district or 10% whichever is lesser,

alleging that any pupil “has been excluded from or segre-.

gated in any school on account of his color, race,-national-

ity, religion or religious affiliation,” orthat there has

_ been discrimination-with respect to any employee or ap-

plicant for employment of a school district on these

‘grounds by or on behalf of ary school board, that the

Superintendent of Public Instruction shall mail a copy

of such complaint to the named school board. (The statute

deals only with racial discrimination and with no other,

type of controversy.) Therefore, the Superintendent of

Public Instruction is required to set a date for a hearing

on the-allegations in the complaint not jess than 20 nor

more than 30 days after its filing.

It is also provided that the Superintendent may set the

date for a hearing “whenever he has reason to believe

: that such discrimination may exist in any school district.”

The statute contains provisions for hearings to be con-

ducted. by the -Superintendent or an assistant, for the

parties to be represented by counsel, for parties to have

the privilege to cross examine witnesses, and for the Su-

perintendent to have a subpoena power enforceable by the

courts. It is also provided that the Superintendent might

take depositions as in civil actions and for testimony to

be taken under oath and transcribed-by a competent re-

porter. :

&

% é : ;

ar =!

. -

s as \ os

Following the hearing, the hearing tine is required

to “report a summary the testimony to the Superin-

¢ tendent of Public Instruction who shal] determine whether

the allegations of the complaint are substantially correct.”

The statute provides that the ‘ Serine of Public

further” provides that if he so determines, the Superin-

tendent “shall request the Attorney General to apply to

e appropriate circuit court for such jnjunctive or other .

*relieg may be necessary to rectify the practice complain- _

ed of.” ould be noted that the statute contains no

other provisions for action by the Superintendent of Pub-

lic Instruction eXxcept those just mentioned, e.g., a deter-

- mination of whether or not the allegations of the complaint

are “substantially correct” and a réquest to the Attorney

General to apply for relief“in the courts.

* The statute | also provides that any final deéision ren-

dered ‘by the Superintendent of: Public Instruction pur-

suant.to this Section may be reviewed under the provi-

sione of the “Administrative Review Act”. (see Smith-

Hurd Ann. Stats. Ch. 110, See. 264, et seq.) -.,

Plaintiffs responded to the motion to dismiss asserting,

inter alia, that plaintiffs’ action under 42 U.S.C. §1983 -

“need not be preceded by: the exhaustion of any state reme-

diés”; and that the state remedies referred to by the de-

fendants . “are neither administrative, adequate or -ay ‘ail-

able to the plaintiffs”.

The District Court filed an opinion on Weumahi 24,

1961 (R.\16-22), in zs it recapitulated the pleadings

‘and proceedings i in. thpt court and set forth its reasons for ~

dismissing the compldint. The court stated that it was not

deciding whether plaintiffs. had been denied equal protec-

\

a \

v

shall notify both parties of his decision.” It

a

Ps

tion of the laws but only whether the court could entertain

the action in view~of the fact that plaintiffs admittedly

had not exhausted any state administrative remedies avail-

able under Illinois law (R.-22). The court sustained the

' defendants’ motion to dismiss, and ordered the amended

~~ complaint dismissed because of plaintiffs’ failure to ex-

haust the “remedy” provided by the Illinois School Code

(Smith-Hurd Ann. Stats., Ch. 122 §22-19). |

The court rejected plaintiffs’ argument that the rele-

vant Illinois statute did not provide an adequate procedure

in that the remedy, if any, was judicial rather than ad-

ministrative, and also rejected plaintiffs’ arguments that

the remedy wad inadequate in that the statute required

50 persons to make a complaint to the Superintendent of

Public Instruction, and in that it provided for an action

to be brought by the State of Illinois in the Illinois courts.

The Court said that the Superintendent of Public Instruc-

tion was required by the statute to conduct a hearing to

* determine the validity of complaints, and that ‘in all like-

lihood” plaintiffs would have had “little difficulty in ob-

taining the number o ignatures required” (R. 22).

The court assert at by ignoring the statute plain-

tiffs had deprive State of Illinois of the “opportunity

to rectify its own wrong if.it is found that one does exist”

(R. 22); and held that plaintiffs’ “mere assertion” that the

administrative remedy was inadequate was insufficient to

demonstrate that the remedy was “in fact ineffective to

produce the result attempted by the statute and desired

heyein” (R. 22).

On « plaintiffs’ appeal the Court'.of Appeals for the

Seventh Cireuit affirmed (R. 31-32). The Court of Appeals

similarly determined that the action should be dismissed

%

) --14-—- f

as :

for failure to exhaust the remedies provided by the Illinois

law, and rejected plaintiffs’ arguments that under the

_ facts alleged they were not required to exhaust the remedy

provided, that the remedy is. not administrative but judi-

cial, and that the remedy is inadequate. The Court of Ap-

peals read plaintiffs’ complaint as, failing to “allege school

board policies which are unconstitutional in themselves”

* (R. 29) and thus asserted that plaintiffs were required

to resort to the “remedy provided in:the [linois School

Code. The Court also found the ftatute’s requirement of

50 signatures not to be unreasonable “since the function of

the requirement is similar to that of a class suit, that is, ,

one of convenience and orderly procedure for presentation’

in a common cause many individual complaints instead of

many individual particular causes” (R. 30). The Court

also asserted that the statute gave the Superintendent of

Public Instruction power to initiate a hearing whenever

he has reason to believe discrimination may exist; that

plaintiffs had not requested him to initiate such a hearing;

and that if in practice “an individual is denied the remedy

he may then turn to the federal courts” (R. 30).

Plaintiffs’ petition for a writ of certiorari was allowed

by an order entered December 10, 1962 (R. 30).

ch

Dee

y

- ARGUMENT.

4

Ces

THE EXHAUSTION OF STATE ADMINISTRATIVE REM.

EDIES IS NOT A PREREQUISITE TO FILING SUIT IN A

FEDERAL COURT UNDER THE CIVIL RIGHTS ACT SEEK-

ING DECLARATORY AND INJUNCTIVE RELIEF AGAINST

A RACIALLY SEGREGATED PUBLIC SCHOOL SYSTEM.

Petitioners brought this action pursuant to federal civil

rights statutes conferring jurisdiction on the United States

District Cotrt, "8 U.S.C. §1343(3) ; 42 U S.C. §1983.

e

The complaint, asserted that ater ti Negro citizens,

were being deprived of rights under the due process and

equal protection’ clauses of the Fourteenth Amendment

by defendants, who are state officers and a state agency

operating a system of public schools pursuant to state law,

in that defendants were deliberately segregating plaintiffs

and other Negro children, principally by planning school

attendance areas on a-racial basis to conform to the boun-

- daries of Negro zhettoes so as to create an all-Negro school

‘area, and by practices designed to segregate Negro from

white pupils within the same school building. The com-

plaint alleges other actions and policies which enforce

segregation, and that despite demands upon the defend-

‘ants to abandon these practices the policies were _being

continued.

‘Under Brown y. Board of Education, 347 U. S. 483, and

ine v. Aaron, 358 U.S. 1, the enn am plainly states

@) ‘Althoua the ne ie Or did not mention 42 U.S.C.

§1981, this statute also provides for the equal rights of cit-

izens and implements the Fourteenth Amendment.

1 Rr LEy cise neme a!

=

a claim for .relief within the jurisdiction of the federal

courts. It does not matter that the discrimination was

produced by discriminatory official action and not by a _

law commanding segregation. “) Indeed, the federal courts

will afford a remedy even though a denial of equal treat-

ment is also in defiance of state law. ‘

The District Court seems to have proceeded upon the

assumption either that the complaint adequately alleged an

unconstitutional practice, or that it was not necessary to

decide this issue (R_ 18-19; 199 F. Supp. at 403). However,

the Court of Appeals’ opinion contains language critical

of the complaint (R. 28; 305 F. 2d at 785), and a state-

ment that it “does not allege school board policies which

are unconstitutional in themselves” (R. 29; 305 F. 2d 786).

This.cfiticism had reference to plaintiffs’ claim that the

defendants had manipulated school attendance areas’ on

a racial basis to establish an all Negro attendance area,

and not to the claim of racial segregation of pupils within

the Chenot School building, which the opinion does not

discuss. With respect to the former claim, the complaint

alleged not only that the Chenot School “attendance area

boundaries, were so drawn as to make it an exclusively

Negro school * * *” (R. 5), but also that when the school

}

(2) 28 U.S.C. §1343(3) and 42 U.S.C. §1983 are addressed

to regulations, customs or usages as well as to statutes and ‘

ordinances. Discriminatory administration of a law fair on,

its face is constitutionally forbidden. Y — Wo v. Hopkins,

118 U.S. 356.

() Monroe v. Pape, 365 U.S. 167. Illinois has various _

laws prohibiting racial discrimination in public schools and

other public. and privately? owned faeilities: Smith-Hurd

Ann. Stats., Ch. 122, §§22-11, 22-12, 10-22.5, 18-12, 34-18,

24-4 and Smith-Hurd Ann. Stats. (Special insane Crim-

} inal Code of 1961), Ch. 38, §§13-1 to 13-4,

eee : :

ae ais

was put in operation “all or practically all the children

of elementary school age who resided in the Chenot attend-

ance area were Negroes, a result intentionally achieved by

the Defendants by the mamer in which the Chenot attend-

ance boundaries were drawn, in pursuance of a plan to

make Chenot School an all-Negro school in student enroll- -

_ment” (R. 6; emphasis supplied); and further that de-

fendants have created and are maintaining racially segre-

gated schools “as a result of the schemes, plans and con-

trivances of the Defendants in drawing the boundary lines

of the attendance areas of the schools” (R. 9). It is sub-

mitted that this is fully sufficient to constitute the “shért

and plain statement of the claim” required by the Feral

Rules of Civil Procedure in order to give fair notice of

plaintiffs’ claim and the grounds upon which “it rests. No

more “specific facts to support * * * [the] general allega-

tions of discrimination” were required. Conley v. Gibson,

355 U.S. 41, 47. Obviously a manipulation of. school attend

‘ance areas on a racial basis violates the principles of

Brown v. Board of Education, 247 U.S. 483. See Taylor v.

Board of Education of City of New Rochelle, 191 F.Supp.

181, 192 (S.D. N.Y. 1961), app. dismissed, 288 F. 2d 600

(2nd Cir. 1961); 195 F. Supp: 231 (S.D. N.Y. 1961)s aff'd

294 .F. 2d 36 (2nd Cir. 1961), cert. den. 368 U.S. 940 (ger-

rvmandering of school areas) ;.cf. Wheeler v. Durham City

Board of Education, 309 F. 2d 630, 632 (4th Cir.. 1962)

(dual racial attendance areas) and cages s cited therein. Cf.

Gomillion v. Lightfoot, 364 U.S. 339. Similarly, allegations

that ‘Negro pupils are intentionally separated. by race —

from white pupils within the Chenot School in separate

classrooms, and .equired, as part.of a segregation policy,

_ to use separate entrances to’ and exits from the building

(R. 3) would, if established, justify relief as an infringe-

ment of constitutional rights. See, McLaurin v. Oklahoma

é)

| Y: —-]x—

State Regénts, 339 U.S. 637; ef. McCoy v. Greensboro City

Board of Ed., 283 F. 2d 667 (4th Cir. 1960) (separate |

buildings for Negro and white pupils on single elementary

school, campus).

Plaintiffs submit that the District Court plainly had

jurisdiction .and that the complaint adequately alleged

racial discrimination by state officials in violation of the

Fourteenth Amendment. This being true, it was error for

ttretyial court to dismiss the case because of an alleged

* failure to) exhaust administrative remedies. Petitioners

urge in parts B and C of the Argument, infra, that the par-

tievlar procedures available to them are inadequate and ©

need not be exhausted in any event. But, notwithstanding

any issue as to adequacy, since the court had jurisdiction

of the claim and it was properly alleged that a deprivation

of constitutional rights had already oceurred and was con-

tinuing, the court should have retained jurisdiction rather

than dismissing the case. If a court should determine, as a

matter of equitable discretion, giving due consideration to

the presence or absence of emérgency factors, or other

matters affecting the balanee of equities, that final deter-

mination of the claim should be deferréd pending pursuit

‘of adequate local procedures (and petitioners contend that

‘this would not eo here), then at the very

least’ the court should retal jurisdiction of the case pend-

ing such action. A Pee i

The history of the Civil Rights Act of 1871, upon which

jurisdiction here rests, makes it plain that Congress gave

the federal courts a primary duty to provide relief ‘for

Fourteenth /Amendment violations, independent of any

state remedies. Monroe v. Pape, 365 U.S. 167, 183. The

opinion below rests upon the contrary assumption that

exhaustion of state remedies is jurisdictional and an-abso- —

—~f9— %

lute prerequisite to the exercise of federal judicial powers.

This view would result in complete abdication of federal

judicial responsibility, depriving petitioners of a federal

trial forum completely and remitting them to remedies

made available by the state.

Several courts of appeals decisions are in accord with

the view that once a claim for relief is stated, the federal

courts have the power to proceed to adjudicate the claims

before them without requiring exhaustion. See Borders v.

Rippy, 247 F. 2d 268 (5th Cir. 1957); Carter v. School

Board of Arlington County, 182 F. 2d 531 (4th Cir.’

1950).

() The Circuit Courts have generally recognized that ex-

haustion is not an absolute requirement, frequently grant-

ing relief in various circumstances to parties who had either

not completely exhausted administrative remedies or’ had

not sought them at all. See Mannings v. Board of: Public

Instruction, 277 F. 2d 370 (5th. Cir. 1960); Northc¥oss v. —

Board of Education, 302 F. 2d 818 (6th Cir. 1962), cert.

den. 370 U.S. 944; Orleans Parish School Board v. Bush, °

242 F. 2d 156 (5th Cir. 1957), cert. den. 354° U.S. 921;

Jackson v. Rawdon, 235 F. 2d 93 (5th Cir: 1956); cert.

den. 352 U.S. 925; Gibson v. Board of Public Instruction,

272 F. 2d 763 (Sth Cir. 1959); Marsh v. County School

Board of Roanoke County, 305 F. 2d 94 (4th Cir. 1962) ;

Green v. School Board of City of Roanoke, 304 F.2d 118

(4th Cir. 1962); Jeffers v. Whitley, 309 F. 2d 621 (4th Cir.

1962) ;.Wheeler v. Durham City Board of Education, 309

F. 2d 630 (4th Cir. 1962) ; School Board, etc. v. Allen, 240

F. 2d 59 (4th Cir. 1956); Bruce v. Stilwell, 206 F. 2a 554

(5th Cir. 1953); School Bd..of Newport News vy. Atkins,

246 F. 2d 325 (4th Cir. 1957) ; Holland v. Bd. of Pub. Instr.,

258 F. 2d 730 (5th Cir. 1958) ; St. Helena Parish School Bd.

v. Hall, 287 F. 2d 376 (Sth Cir. 1961); Romero v. Weakley,

. 226 F. 2d 399 (9th Cir. 1955) Cf. Browder v.’ Gale: 142 F.

Supp. 707, Aff’d. Per Curiam 352 U.S: 903.

i

—20—

Even in Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956),

cert. den. 353 U.S. 910, a case strongly relied upon by the

Court below, the plaintiffs had been given an opportunity

to exhaust the available remedies and had declined to do

so before the case was dismissed. See Carson v. Board of

Education, 227 F. 2d 789 (4th Cir. 1955). In Parham v.

Dove, 271 F. 2d 132 (8th Cir. 1959) and Mannings v. Board

of Public Instruction, 277 F\ 2d 370 (5th Cir. 1960), the

courts determined that plaintiffs should be granted at

least the protection of generah injunctive orders against

discrimination before being required to submit to admin-

istrative mate =).

A similar ‘practice ha’prevailed in the development of

the judicially-created equitable abstention doctrine where

this Court has required trial courts to retain jurisdiction .

over properly: stated claims, even where they withheld

relief pending the resolution of doubtful issues as to the

applicability of state laws. This insures that the courts

can exercise their power to. protect aggrieved parties while

the case develops. Harrison\v. N.A.A.C.P., 360 U.S. 167,

179; Government and Civic Employees Organizing Com-

mittee v. Windsor, 353 U.S. 364. ~

— )

a

ILLINOIS HAS NOT PROVIDED ANY REASONABLY EX.

OUS, ADEQUATE, OR EFFECTIVE ADMINISTRA.

TIVE TO CURE THE DISCRIMINATION ALLEGED

BY abi Bp TO EXIST.

Pet tioners submit that the holdings that Ch. 122, §22-19

of thé Illinois School Code of 1961 provides an adequate

administrative remedy are erroneous. Neither court below

has pointed to any provision of law which gives the Su-

perintendent of Public Instruction power to correct the

practices of the local school officials complained of in this

case. Section 22-19 conspicuously fails to give the Super-

intendent of Public Instruction power to. make an order

of any kind requiring local school officials to take any

action or refrain from any action with respect-to racial

discrimination. The School Code grants to.local school

boards the power to assign pupils and prohibits them from

excluding pupils from schools on the basis of race (Ch.

122, §10-22.5). But with the exception of (22-19, and one

other statute also not providing any direct powers, ©) the

laws defining the powers and duties of the Superintendent

of Public Instruction grant no express authority relating

to assigning pupils to schools or correcting racial segrega-

tion of pupils. «

©) The other exception is Ch. 122, §18-12, which pro-

vides that the Superintendent not disburse certain state

funds to a local board unless he obtains from its clerk or

secretary an affidavit that the district is complying with

the provisions of Ch. 122, §10-22.5 prohibiting discrimina-

tion. There is nothing in either §18-12 or §22-19 to indi-

cate that the Superintendent can withhold these funds if

he does receive such an affidavit from the local officials.

(*) The general powers and duties of the Superintendent ”

are set out in Ch. 122, §§2-3 to 2-3.34.

—23.—

Section 22-19 directly limits the Superintendent to de-

ciding, following a hearing, whether allegations of dis-

crimination “are substantially correct.” If he so finds he

“shall request the Attorney General to apply’to the appro-

priate cireuit court for such injunctive-or other relief as

may be necessary to rectify, the practice complained of.”

Thus, the only function of the Superintendent is to conduct

a hearing, conclude whether a complaint is substantially

correct, and request that* the State’s chief legal offighr

begin a lawsuit against a school board found fo be prac-

- ticing discrimination. The statute does not authorize the

Superintendent to order a local school board to stop such

practices or give him any sanctions to enforee such an

order. He-can merely ask that a lawsuit be filed.

~~

Through this stage of the process contemplated by the

statute, it is readily-apparent that it is not possible for an

aggrieved party to secure any relief. The court below as-

serted that the Superintendent might “cause an adjust-

ment” of the complaint, but it recognized his lack of power

under the School Code (R. 29-30, 305 F. 2d at 786). Per-

haps the Court had i in mind that the Superintendent might

exercise a persuasive influence on local authorities, al-

though §22-19 does not even direct him to make concilia-

tory efforts. Any prestigious state official or even a pri-

vate citizen might have sufficient influence to persuade

the school board to abandon discrimination. This possibil-

ity is no substitute for an administrative power to decide

and settle disputes. shi |

This statutory ialdiiiie requiring a hearing before

a powerless state officer is at least as tht as a plea to

an administrative agency stalemated by internal disagree-

ment (Order of Railway Conductors of America v. Swan,

329 U.S.. 520, 524), or a plea to an agency bound to deny

o

oo

—

relief because of a controlling regulation of its executive

superior (Waite. v. Macy, 246 U.S. 606) or a controlling

judicial decision (Montana Nat. Bank of Billings v. Yel-

lowstone County, 276 U.S. 499, 505). In none of these cases

has the Court required exhaustion, recognizing that futile

procedures should not be required. In several school seg-

regation cases the Fourth Circuit has refused to require

exhaustion of administrative remedies where the agency

had a “fixed and definite policy” in opposition to the claim

for relief. School Bd. of City of Newport News v. Atkins, _

246 F. 2d 325 (4th Cir. 1957), cert. den. 355 U.S. 855; School

Bd. of City of Charloitesville‘v. Allen, 240 F. 2d 59 (4th

Cir, 1956), cert. den. 353 U.S. 910; Farley v. Turner, 281

F. 2d 131 (4th Cir. 1960).

This -Court’s decision in United States Alkali Export

Ass’n v. United States, 325 U.S. 196, 210, furnishes a close

precedent for the instant case. The Court refused to re-

quire the United States to pursue a process closely analo-

gous to that available here as a prerequisite to an action

to restrain violations of the Sherman Act. The asserted -

remedy consisted of an investigation by the Federal, Trade

Commission, a recommendation that the offender read-

‘just its business if violations were found, and upon a

failure to comply with such recommendations a reference

of the matter to.the Attorney General for such action as

he ‘might deein proper (325 US. at 199-200). This court

rejected an. argument that equity should not interfere in

* advance of this process saying:

* * * the only function of the Federal Trade Com-

~ mission under §5 of the Webb-Pomerene Act is to in-

vestigate, recommend and report. It can give no reme-

dy. It can make no controlling finding of law or fact.

Its recommendation need not be followed by any court”

or administrative officer or executive officer. (325

US. at 210.)

aes,

—24—

The present case is equally, if not more, compelling.

Under §22-19 the Superintendent can give no remedy, can

make no controlling finding of law or fact, is not even

authorized to make a recommendation to the offender, and

cannot enforce any request that a lawsuit be filed. ‘') The

court below said that the Superintendent had “no judicial

power” and that his findings of fact on the issue of segre-

gation are “not binding in 4 suit at law or in equity” (R.

30; 305 F. 2d at 786).

The possible procedures which remain after & determi-

nation by the Superintendent are all plainly judicial in na-

ture. They are also subject to so much doubt, uncertainty,

and discretion, as to be inadequate remedies. This is true

whether or not the Superintendent finds that the com-

plaint of discrimination is substantially correct. ;

If the Superintendent does so find, “thing in §22-19

requires the Attorney General to commence a lawsuit.

©) In the U. 8S. Alkali Export Ass’n, situation, the At-

torney General would presumably follow any eventual

F.T.C. recommendation that he file a lawsuit, since he had.

done so in advance of a mmendation. There can be no

similar assumption that the [Hinois Attorney General would

agree to prosecute petitioners ievance.

_ ™~ This much of the holding seems plainly correct. The

possible effect of the Superintendent's findings in a proceed-

ing by either party er the Illinois Administrative Re-

view Act (Ch. 110, §264, et seq.) to review the Superin-

tendent’s decision (to ask or not to ask the Attorne i

eral to file suit) is an entirely different matter. -Al

as the discussion below indicates, the Attorney General’ 8

authority to bring an action in the cireuit courts ‘‘for in-

junctive or other relief’’ is questionable, there is no rea-

son to believe that the statute contemplates anything other

than a conventional lawsuit with ordinary judicial fact-

finding methods.

This decision fs left to the diseretion of the Attorney Gen-

eral. But, even worse, Ilinois law 'ezves substantial doubt

as to whether the Attorney General has any power to

bring an action capable of rectifying the practices com-

plained of. It is doubtful that §22-19 grants this authority

to the Attorney General, as there ix no explicit authoriza-

tion in this statute. Whether an attorney general might

find such authority conferred by implication, and the. Lli-

_nois courts would support him, cannot be forecast. A

seatch Of Illinois statutes reveals no other authorization

for the Attorney General to bring an injunction suit:

against a school board.) The laws which do give the At-

torney General powers with respect te_civil rights viola-

tions give no hint of any authority” to <eek—injunctive

relief against a school board to remely diserimination.©”

(*) Smith-Hurd Ann. Stats. Ch. 14. +4. providing the gen-—

eral duties of the Attorney General, ~lie- no light on the

issue. | :

(°) Smith-Hurd Ann. Stats. (Special Pamphlet, Crami-

nal Code of 1961), Ch. 38,.4§13-1 te 1-4. Prestmably the

Attorney General could bring crim /ua/ joeeedings against

a school official for a violation ¢f civil rights as “efined:in

Ch. 38, §§13-1(¢), 13-2(¢), 13-3(a). It ix also conceivable,

though not so clear, that the Attorney fieneral could insti-

tute an administrative proceeding (a)-}) ~vhject to judicial

review) to remeve an official | from ape for a eivil rights

violation under Ch. 38, §13-3(d). Hlowd. er, the availability

of an injunctive remedy pursuant to [!3-}:¢) is subject to

grave doubts. That provision authoriz¢= the Attorney Gen-

eral to bring injunctive proceeding= wi ‘places of pub-

lie tion and amusement” | «- defined ih detail

in §13-1(a)), labeling racial discrimination a ‘public nui- -

sance.’’ But there is no mention of injunctive relief against

discrimination by officials, or in governmental institutions,

or any places not enumerated in the jaw.

Oey..

constitutional rikhts of an aggrieved ‘person against a

state officer, as distinguished from renten Sy, the right to

equal treatment under Illinois law.

Notwithstanding the possibility that some such power

of-the Attorney General might be found somewhere, the

state of the law treates grave doubt as to the availability

of any ‘judicial ré is doubt renders any remedy so

uncertain and sacelanion that petitioners’ federal rights

“gan be fully protected ont if the District Court exercises

its jurisdiction to protect those rights. This conclusion ac-

cords with Hillsberough Township v. Cromwell, 326 U:S.

620, 625, where it was unclear, in part because of possibly

oatiheting state court decisions, whether a litigant's fed-

eral right to nondiscriminatory treatment under state tax

laws could be’ proteeted in stat® proceedings. This Court

approved, the grant of declaratory relief.“”) In the instant -

case, uncertainty as to the protection of the federal rights

is manifest because the Attorney. General has discretion

to refuse to file a ease, and because the statute’s lack of

clarity beclouds whether such an action | may 1y_be-brought.

More bilidiaminiatiy even if a ‘a state injunctive remedy

were clearly available in a suit by the Attorney ‘General,.

any such remedy ini the “appropriate cireuit court” under

_ §22-19 would be — rather sp ‘administrative: or

’

= °

@) Relief eR granted notwithstanding Great Lakes

Dredge & Dock Co. v. Huffman,-819 U.S. 293, which held °

that the policy of the ‘‘Johnson Act of 1937”” (now. 28

U.S.C. §1341), prohibiting injunctions against state tax

collections if there. was a “‘plain, speedy and efficient rem-

edy’’ in the state courts, governed the exercise isere-

tion in declaratory judgment cases inyolving state taxes.

~

-

4

i,

: " lifes

legislative. This Court often has held that a party may not

be required to submit his claim to state judiciai remedies

_ where Congress has granted the federal courts jurisdic-

tion. Lane vy. cence te U.S. 268, 274-275, applied this

principle to the jurisdiction of the federal courts under

the civil rights laws.©?) See also City Bank Farmers Trust>

Co. v. Schnader, 291 U.S.'24, 30; Prendergast v. New York

Telph. Co., 262 U.S. 43, 48; Racon v. Rutland’ R-Co., 232

U.S. 184; Pacific-Teleph. & Teleg. Co. v. Kuykendall, 265

U.S. 196, 200-201 ; ef. Prentis v. Atlantic Coast Line R. Co.,

211 U.S, 210, 228. The principle has been applied ‘in sehool

segregation eases by lower federal courts relying on Lane

v. Wilson, supra. See, e.g., Carson v. Warlick, 238 F. 2d

724, 729 (4th Cir. 1956), cert. den. 353 U.S. 910; Dove v.

Parham, 282 F. 2d 256 (8th Cir. 1960).

ee

court action to be conducted. by an official of the same |

state government which he asserts is infringing his con-

stitutional rights. It might be argued that if an aggrieved

person feared to stand aside from the litigation, not trust-

ing proseeution of his -rights by state officials, he might

seek to intervene in the state court proceedings. This might

be possible under the [linois Civil Practice Act (Smith-

Hurd Ann.‘ Stats. ‘Ch. 110, §26.1). Intervention, however, «__

would bar litigation, of the same claim in the federal

‘ courts. Grubb v. Public Utilities Commission, 281 U.S.

470; Detroit & Mackinac R. Co. v. Michigan Railroad

Comm., 235 U.S. 402. Thus Iinois offers petitioners the al-

%) Jurisdiction in that case was founded on RS. §1979,

now 42 U.S.C. §1983.

—28— . a

ternatives of standing aside while their claim is litigated

by others in the state courts, with the hope) that an unfa-

vorable. adjudication would not bar their eventual return

to the federal forum, or of sacrificing the federal trial

forum altogether and seeking intervention) in the state.

rourt proceedings. A Court of equity should not impose

an

ly granted jurisdiction tg vindicate federal Ponstitationa

rights.

Of course, if the hapdrinthades! of Publis Instruction,

having conducted a hearing pursuant to §22-19, refuses to :

request that the Attorney General file a alveiil, still

another ‘state judicial proceeding is required|by the stat-

ute, i.e., a judicial review of this decision under Illinois’

“Administrative: Review Act” (Smith-Hurd \Ann: Stats.

Ch. 110, §264, et seq.). This lawsuit to require the Superin-

tendent of Public Instruction to ask the Attorney General

to bring’a lawsuit (which the Attorney General may refuse

to bring even. if requested ) is also clearly a j aicial pro-

ceeding, This has been expressly decided by the Illinois

Supreme Court Which has held that the functioning of its _

courts under the Administrative Review Act does not of-

fend the principle of separation of powers since the_pro-

ceedings are “essentially judicial in character.” | Harrison .

v. Civil Service Commission, 1 Ill. 2d 137, 115-N.E. 2d 521, \

526 (1953).¢*) Thus, the rale of Lane v. jae and the

% r \ /

+

(*) In the Harrison case, supra, the fourt also said that

these are proceedings which have ‘‘tyaditionally been re

garded as a judicial function’’ and that the scope of re-

view was ‘‘comparable to the issue/ ‘at law as to whether

there is competent evidence to support a judgment of a

lower court.’ The statute has all the indicia of providing

a judicial remedy, —— the (bites ee | to the

ren: RD _ 2

_

other cases cited above at p. 27, would also apply to this

process.

_ Of course, a school board dissatisfied with a determina-

tion by the Superintendent that a complaint against it

was “substantially correct” could also appeal to the state

court under the “Administrative Review Act” in an at-.

tempt\to prevent his making a request to the Attorney

General. The complainant at the Superintendent’s hearing

would have to be made a defendant (Ch. 110, §271). The

potentials of §22-19 for involving someone whose consti-

tutional rights have been denied in profitless proceedings

in which no meaningful relief possibly can be obtained

are seemingly infinite.

——

,

(3) Continued \

scope of review (Ch. 110, §274); providing the power of

the trial court ($275); providing for appellate review

(§276); governing the pleadings (4267); the Service of

process (§269); jurisdiction and venue (4268) ; and the ap-

plicability of the Minois Civil Practice Act (§277))

,-)

—_

C.

THE ILLINOIS STATUTE (CH. 122, §22-19) UNREASON-

ABLY ONS THE COMMENCEMENT OF A PROCEED-

ING BY G AN AGGRIEVED PARTY TO OBTAIN

THE SIGNATURES OF 50 PERSONS ON HIS COMPLAINT,

THUS FAILING TO GIVE ee

CONSTITUTIONAL RIG

In addition to all the infirmities of §22-19 discussed

ve, the statute includes a requirement which is com-

pletNy alien to the accepted principle that Fourteenth

cS ent rights are personal to the individual. Section

22-19 provides that the Superintendent “shall” hold a hear-

ing if “atNeast 50 residents of a school district or 10%,

whichever isNesser”(*) execute and file 2 complaint alleg-

ing discrimination against “any pupil” or “any employee

* * * or applicant for employment.” The statute goes on

_to provide that the Superintendent “may also fix a date

for a hearing wherever he has reason to believe that such

discrimination may exist in any school district” (emphasis

supplied). |

The court below upheld the 50 signature requirement

as “reasonable,” commenting that petitioners alleged no

unsuccessful effort to obtain 50 signatures or to persuade

the Superintendent bf Public Instruction to initiate a hear-

ing, and that if the remedy was denied “in practice” to an

individual “he may then turn to the Federal Courts” (R.

30; 305 F. 2d at 786).

(*) The 10% rule would not apply in Community Unit

School District No. 187 which has far more than 500 resi-

dents. According to the complaint 505 pupils (251 Negroes

and 254 siti attend wey enot School alone (R. 7).

Re

It is submitted that this engrafts a condition upon the

availability of the federal courts to protect eonstitutional

rights which is not reasonable, equitable, or in accordance

with the jurisdictional statutes.

FirstNit_is a familiar principle that the right of a pupil

to be free from racial segregation or discrimination. in

publie schools is a personal and individual right. This

right should not be made to depend upon the desire of

other persons to assert their similar rights. Brown vy.

Board of Education, 347 U.S. 483: 349 U.S. 294, 300:

Sweatt v. Painter, 339 U.S. 629, 635; Sipuel v. Board of

Regents, 332 U.S. 631, 633; Missouri ex rel. Gaines v.

Canada, 305 U.S. 337; ef. McCabe y. Atchison T. 2S. F.

R. Co., 235 U.S. 151, 161-162; Shelley v. Kraemer, 334 U.S.

1, 22; Oyama v. California, 332 U.S. 633. Nor can the grant

of such rights be made legally dependent upon the consent

of a community majority such as by an election. Boson y.

Rippy, 285 F. 2d 43, 45 (5th Cir. 1960); Taylor v. Bd. of ©

Ed. of City of New Rochelle, 191 F. Supp. 181, 197 (S.D.

N.Y. 1961); ef. People v. Western Union Telegraph Co..,

70 Colo. 90, 97-99, 198 Pace. 146, 149 (1921) (holding jn-

valid a provision for review of judicial decisians by ais

endum). Cf. Cooper v. Aaron, 358 U.S. 1. ;

Additionally, Congress has opened the federal courts

to suits by. individuals for the redress of their personal

rights under the Fourteenth Amendment, enacting in, 28

U.S.C. §1343 that the courts have jurisdiction of civil

actions by “any person,” and providing for civil liability

under 42 U.S.C. §1983 to “any citizen of the United Statés .

or other person within the jurisdiction thereof.” The right

of a single individual to access to the courts is not altered

by the fact that he may seek relief broad enough to protect

those similarly situated im a class action under Rule

——e—

Ce

23(a)(3), Federal Rules of Civil Procedure. Rule 23 pro-

vides for representation by such members of a class “one

or more, as will fairly ensure the adequate representation

of all” (emphasis supplied).

Compliance or attempted compliance with the fifty sig-

nature rule imposes a burden on an individual seeking

redress of a constitutional violation far in excess of that

required by the applicable federal statutes and rules which

allow any individual to proceed alone to protect his rights.

The fifty signatures requirement has no rational relation-

ship to the purported function of the proceeding under

§22-19 to vindicate the rights of “any pupil”. The statute

does not represent a legislative judgment that the admin-

istrative process be made available only if the rights of

many are involved, but merely a judgment that it be made

available only if one whose rights are involved can per-

suade other people to join in a protest against his treat-

ment. The scheme of the statute is not to fix an arbi-

trary number to secure adequate representation of a class.

There is no requirement;that all or any of the 50 signers

have any grievance involving their own rights. They need

not even be parents of pupils in schools. The only require-

ment is that the signers reside in the school district.

The suggestion by the court below that petitioners should

have attempted to persuade the Superintendent to initiate

a hearing if they could not obtain 50 signatures does not

justify the decision to dismiss the case. The Superintend-

ent plainly had a discretion to grant or deny such a re-

quest, there being no reason to believe that the word “may”

in the statute really means “must”. Since the grant of a

hearing without 50 signatures is purely discretionary, no

request for it should be required before resort to the

eourts. This court has applied an analogous principle in

ay

— os

declining to require requests for rehearing of adtuinistra-

tive decisions where the grant of rehearing is dise ‘retionary

and not a matter of right. Levers v. Ande rson, 326, US.

219% Prendergast v. New York Tel. Co. 262 U.S. 43, 48,

There is additional uncertainty as to the rights of an

aggrieved party in any hearing which is initiated by the

Superintendent and is not founded upon a complaint meet-

ing the 5) signature requirement. Even the provision in

{22-19 for notice of the time and place of the hearing only

requires that it be given to “the secretary or clerk Of the

school board and to the first subscriber to such complaint.”

The phrase “such complaint” would seem to refer only fo

a complaint filed in accordance with the statutory require-

ment of 50 signatures as this is the only complaint men-.

tioned in the law. There is a similar statutory failure >to

specify the rights of an aggrieved person to representa-

tion by counsel, cross examination, ete., in a proceeding

initiated by the Superintendent of Public Instruction. It

is not clear whether one must be a signatory to a complaint

meeting the 50 signature requirement in order to be a

“party” or a “complainant” and thereby obtain standing

at the hearing.

Here again there is “such une ertainty surrounding the

adequacy of the state remedy as to justify the District

Court in retaining jurisdiction of the cause.” Hillsborough

Township v. Cromwell, 326 U.S. 620, 625. In the last men-

tioned case a part of the state remedy involved was “not

a matter of right, but purely discretionary” (/hid.). This

was part of the basis for the holding that the remedy was

too uncertain and speculative to be “plain, speedy and

efficient,” and that equity principles did not require ex-

haustion of the remedy.

For the foregoing reasons, it is respectfully submitted

that the judgments below should be reversed.

a

Respectfully submitted,

Jonx W. Rocers,

Eart E. Strraynory,

_ Raymonp E. Harta,

-Cuartes H. Jonzs, Jr.,

Ciaytox R. WiuiaMs,

109 N: Dearborn Street,

Chicago 2, lilinois,

Attorneys for Petitioners.

Jack GreensBERc,

Constance Baxer Mot.ey,

James M. Nasarr, ITI,

Of Counsel.