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SHEPARD v. BOARD OF EDUC. OF ENGLEWOOD

July 9, 1962

Ellen SHEPARD, minor, by Joseph Shepard and Louise Shepard, etc., et al., Plaintiffs,
v.
The BOARD OF EDUCATION OF the CITY OF ENGLEWOOD et al., Defendants



The opinion of the court was delivered by: AUGELLI

This is an action by infant plaintiffs, appearing by their parents and next friends, to enjoin defendants from operating and maintaining a racially segregated public elementary school system in the City of Englewood, and for other relief. Plaintiffs are all citizens of the United States who reside in Englewood and attend the public elementary schools of that City. All are members of the Negro race and they bring the action on their own behalf and on behalf of other Negro children similarly situated.

Defendants are the Board of Education of the City of Englewood; Harry Stearns, as Superintendent of Schools of said City; and Frederick Raubinger, as Commissioner of Education of the State of New Jersey.

 The action is based upon the Civil Rights Act, 42 U.S.C.A. § 1983, jurisdiction being invoked pursuant to 28 U.S.C.A. 1343(3).

 Plaintiffs allege that in making assignments of children to the public schools of Englewood, defendant Board of Education and defendant Superintendent of Schools, with the consent and condonation, and under the direction of defendant State Commissioner of Education, pursue what is commonly known as the 'neighborhood school policy'; that the utilization of this policy has resulted in racially segregated schools in Englewood; that the maintenance of said policy, as a basis for the registration of children in the public schools of Englewood, is contrary to the laws of the United States; that the school boundary lines in Englewood have been drawn and periodically altered for the purpose of requiring infant plaintiffs and other members of their class to attend racially segregated schools; that sites for the construction of new schools have been selected in such manner as to further perpetuate and maintain a racially segregated public school system in Englewood; that white students have been permitted to transfer from schools with all Negro or predominantly Negro student enrollments to schools with predominantly white student enrollments, but that infant plaintiffs and others in their class have not been permitted to enroll in racially desegregated schools; that plaintiffs are injured by the refusal of the local school authorities to cease operating under the 'neighborhood school policy' in Englewood; and that the operation of such policy, and the racially segregated schools resulting therefrom, violates the rights secured to plaintiffs and members of their class by the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution.

 A similar motion to dismiss the complaint, and for the same reason, is made by counsel for the Englewood Board of Education and the Superintendent of Schools.

 As a general rule, available state administrative remedies must be exhausted before resort is had to the courts. Application of the doctrine promotes orderly procedure. The expertise of administrative agencies in their respective fields make a real contribution to the administration of justice. Until such time as there has been an exhaustion of administrative remedies, an asserted right or claim is not ripe for judicial determination. Of course, where it appears that nothing would be gained by utilizing available state administrative remedies in the first instance, the party seeking judicial relief will not be required to perform a futile act.

 The rationale of the exhaustion doctrine has been aptly stated in 42 Am.Jur., Public Administrative Law, § 197, as follows:

 'In its function the doctrine is one of various devices by which the courts deny premature or unnecessary resort to the courts, and, therefore, is very often rationalized on the same grounds which are advanced to justify the requirement of administrative finality as a prerequisite to judicial relief. * * * The doctrine involves a policy of orderly procedure which favors a preliminary administrative sifting process, particularly with respect to matters peculiarly within the competence matters peculiarly within the competence of the administrative authority, and serves to prevent attempts 'to swamp the courts by a resort to them in the first instance'. The court also have emphasized that the doctrine rests on considerations of comity and convenience and is of especial force when resort is had to the Federal courts to restrain the action of state officers. The doctrine is sometimes said to rest upon the presumption that the administrative agency, if given a complete chance to pass upon the matter, will decide correctly.'

 It is admitted by plaintiffs that they have made no effort to exhaust the administrative remedies available to them under the laws of the State of New Jersey. In substance, plaintiffs argue: that the exhaustion of state administrative remedies is not a prerequisite to the institution of an action in a federal court challenging the maintenance of a racially segregated public school system; that whatever remedy is provided by the laws of the State of New Jersey is judicial rather than administrative in nature; that the State Commissioner of Education has no power or authority to give plaintiffs the relief they seek; and that the doctrine of exhaustion of state administrative remedies, even in cases where it has been held to apply, has no application where, as is claimed here, the administrative remedy is inadequate.

 The Court cannot agree with plaintiffs' contention that where the maintenance of a racially segregated school system is challenged, the exhaustion of state administrative remedies is not a prerequisite to the institution of an action in a federal court.

 The rule requiring exhaustion of available state administrative remedies before the jurisdiction of a federal court may be invoked has been applied many times in school segregation cases. See Carson v. Board of Education, 227 F.2d 789 (4 Cir. 1955); Carson v. Warlick, 238 F.2d 724 (4 Cir. 1956); Robinson v. Board of Education, 143 F.Supp. 481 (D.Md.1956); Jeffers v. Whitley, 165 F.Supp. 951 (M.D.N.C.1958); Covington v. Edwards, 264 F.2d 780 (4 Cir. 1959); McKissick v. Durham City Board of Education, 176 F.Supp. 3 (M.D.N.C.1959); Parham v. Dove, 271 F.2d 132 (8 Cir. 1959); McNeese v. Board of Education, 199 F.Supp. 403 (E.D.Ill.1961).

 There are also school segregation cases in which the federal courts have declined to apply the exhaustion doctrine. See Orleans Parish School Board v. Bush, 242 F.2d 156 (5 Cir. 1957); School Board of City of Newport News, Va. v. Atkins, 246 F.2d 325 (4 Cir. 1957); Borders v. Rippy, 247 F.2d 268 (5 Cir. 1957); Kelly v. Board of Education, 159 F.Supp. 272 (M.D.Tenn.1958); Beckett v. School Board, 185 F.Supp. 459 (E.D.Va.1959); Farley v. Turner, 281 F.2d 131 (4 Cir. 1960); Mannings v. Board of Public Instruction, 277 F.2d 370 (5 Cir. 1960); Flax v. Potts, 204 F.Supp. 458 (N.D.Tex.1962).

 Thus, whether a federal court will exercise or decline to exercise its jurisdiction in a school segregation case without first requiring the exhaustion of available state administrative remedies must depend upon the facts of each case.

 We now turn our attention to the provisions of New Jersey law which, defendants say, afford plaintiffs an adequate state administrative remedy in this case, N.J.S.A. 18:3-14 and 15.

 N.J.S.A. 18:3-14 reads as follows:

 'The commissioner (Commissioner of Education of the State of New Jersey) shall decide without cost to the parties all controversies and disputes arising under the school laws, or under the rules and regulations of the state board or of the commissioner.

 'The facts involved in any controversy or dispute shall, if required by the commissioner, be made known to him by the parties by written statements verified by oath and accompanied by certified copies of all ...


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