Brown v. County School Board of Frederick County, Virginia Brief and Appendix for Appellants

    BRIEF AND APPENDIX FOR APPELLANTS

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9825.

Brenda Elaine Brown, et al, 
Appellants,

vs.

County School Board of Frederick County, 
Virginia, et al,

Appellees.

S. W . T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia

O tto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants

The Press of Lawyers Printing Company, Incorporated, Richmond 7, Virginia



TA B LE  OF CONTENTS

Page

Statement Of The C ase................................ ....... ......... .-  1

The Question Involved ................................. ..................... 3

Statement O f The Facts ........................................----------  4

Argument  ........................................................-.......... —- 9

The District Judge Has Flagrantly Violated His 
Plain Duty Under Brown II And Under The Man­
date O f This C ou rt.............. .......... ................................ 9

Conclusion ........................................................ ....... ..............  4

TA B L E  OF CITATION S

Bell v. County School Board of Powhatan County, 321 
F.2d 494 ( 4th Cir. 1963) ..............................................  13

Brown v. Board of Education, 347 U.S. 483 (1954) ....
10, 11



Page

Brown v. Board o f Education, 349 U.S. 294 (1955) ~
10, 14

Buckner v. School Board of Greene County, 332 F.2d 
452, (4th Cir. 1964) ................................................. ----- 10

Griffin v. School Board of Prince Edward County, —  
U.S. —  (1964) ............ ..............................................-........  15

Taylor v. Board of Education, 191 F.Supp. 181, DC 
SD N Y 1961...................................................................... 15

Watson v. City of Memphis, 373 U.S. 526 (1963) —- 10 

Civil Rights Act of 1964, Section VI ..................... -.....- 15



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9825.

Brenda Elaine Brown, et al, 
Appellants,

vs.

County School Board of Frederick County, 
Virginia, et al.

Appellees.

BRIEF OF APPELLANTS

STATEMENT OF THE CASE

This appeal is from the proceedings and orders of the 
District Court had and entered following this Court’s 
remand of this case pursuant to its January 27, 1964 opin­
ion reading as follows:



2

“ PER C U R IA M :

“ This is a class action by Negro plaintiffs seeking: 
(1 ) admission o f the named plaintiffs to a specified 
school, (2 ) an injunction against the operation of a 
bi-racial school system throughout the county, and 
(3 ) an award of counsel fees. While the action was 
pending it was made known to the court that the named 
plaintiffs were admitted to the school of their choice, 
whereupon the court issued an order removing the 
case from the active docket with leave to the plaintiffs 
to reinstate it without payment of advance costs if 
subsequent developments should warrant.

“ Since the record discloses the existence o f a bi- 
racial system of schools, we remand for consideration 
o f the plaintiffs’ prayers for an injunction and counsel 
fees in the light of this court’s opinions in Bradley v. 
School Board of the City o f Richmond, F.2d 
(decided May 10, 1963), and Bell v. School Board 
of Powhatan County, 321 F.2d 494 (4  Cir. 1963). 
The defendants have conceded that no serious admin­
istrative problem would be involved should they be 
required to abandon the present use of dual zone map 
assignment practices in the elementary schools and 
the present practice of requiring the Negro high school 
students to attend the school in the City of Winchester, 
which is a separate school district. Under these circum­
stances, there would seem to be no obstacle to the 
entry of an order requiring the abandonment o f these 
practices not later than the opening of the next school 
year. The district court, of course, may desire to hear



3

further from the defendants before entering any or­
ders with respect either to the injunction or the request 
for counsel fees.

“Remanded.”

Brown v. County School Board of Frederick County,
. . . F.2d . . . (4th Cir. 1964).

The order of the district court entered June 15, 1964, 
even as amended in accordance with the August 31, 1964 
memorandum of the court, the order of the district court 
entered October 29, 1964 (from  which this appeal was 
noted on November 27, 1964) and the order o f November 
18, 1964 (from  which this appeal was noted November 27, 
1964) simply do not require the abandonment of racially 
discriminatory practices in the public schools o f Frederick 
County. They merely constitute a judicially devised scheme 
by which the school board may avoid its duty to desegre­
gate its school system and continue to provide for the 
segregation the county’s approximately 100 Negro ele­
mentary school children and the much smaller number o f  
Negro high school children.

THE QUESTION INVOLVED

May A District Court Cast Upon Negro Parents 
The School Board’s Duty To Desegregate Schools?



4

STATEMENT OF THE FACTS

The Frederick County School Board operates fifteen 
elementary schools and one high school. The James E. Wood 
High School and fourteen of the elementary schools are 
the schools which white children attend. The principals, 
teachers and administrative assistants at these schools are 
.white persons. The Gibson Elementary School is the only 
school operated by the Frederick County School Board 
to which Negroes are rountinely assigned. It is staffed 
solely by Negro personnel [A. pp. 4, 5],

Each year the principals of each of the elementary 
schools pass out pupil placement forms to be filled out and 
signed by the parents o f graduating pupils. These forms 
have no space provided for the designation of a particular 
high school but printed on the form is a request that the 
“ child be placed in the public school system in [Frederick] 
County.” Pursuant to a policy of the Frederick County 
School Board, the superintendent of schools recommends 
to the Pupil Placement Board that the white children grad­
uated from elementary school attend the James Wood High 
School and that the Negro children similarly advanced 
attend Douglas High School— an all-Negro school located 
in the City of Winchester and operated by the School Board 
of the City of Winchester. Under an agreement with the 
City of Winchester which has existed since prior to 1949, 
the appellee School Board pays tuition to the City of W in­
chester, and provides transportation, to the end that Negro 
students living in Frederick County may attend Douglas 
High School [A. pp. 6, 7],

There are only 26 Negro pupils attending the Douglas 
High School and approximately 100 Negro elementary pupils



5

attending the Gibson School. Approximately 1500 white 
pupils attend the James E. W ood School [ A. p 14]. The 
School Board maintains a fleet o f about 40 buses. Two of 
the buses serve all the Negro pupils, traveling the entire 
length of the county except in the two districts in which 
no Negroes reside, carrying high school pupils into the 
City of Winchester and the elementary pupils to the Gib­
son School. The other 38 buses serve the white children 
[A. pp. 17, 18].

The following excerpts from the testimony o f the Su­
perintendent of Schools eloquently reflect the attitude of 
the local school officials:

“ Q. Then I ask you, other than the factor o f race, 
is there anything that requires these Negro children 
to attend school outside the couty or is there any ob­
stacle preventing their attending school within the 
county ?

“ A. W e have been operating a bi-racial school sys­
tem down through the years. It has been the custom.

“ Q. Aside from race, is there any other obstacle?
“ A. I can’t think of any.

“ Q. So that if the school board wanted to eliminate 
this racially [discriminatory] feature of the school 
operation as far as the high school is concerned, it 
could eliminate that at any time couldn’t they?

“ A. That’s possible. [A. p. 15.]

* * *



6

“ Q- One more question. Assuming the school board 
wanted to, is there any obstacle that would prevent 
their desegregating the entire school system within 
a year?

“ A. I don’t know of any. [A. p. 16.]

* * *

Q. If the school board wanted to forget about race, 
you could then take these pupil placement forms and 
recommend that children attend the schools near their 
homes regardless o f where they live or what their color 
is couldn’t you?

“ A. It could be done.

“ Q. And according to your experience with the 
Pupil Placement Board whatever you recommend, 
that is what they assign— that has been the experience 
up to this time hasn’t it?

“ A. Yes they have— the Board has followed the 
recommendations.”  [A. p. 19.]

At an earlier point, the Superintendent had testified, viz:

“ Q. Well, has the School Board attempted to find 
some method o f desegregating the schools?

“ A. W e haven’t looked for any method. W e realize 
that desegregation will probably come in the future, 
but to this point we haven’t set up any organized plan 
to do this.

“ Q. You have not taken any steps to initiate it?
“ A. No sir.” [A. p. 5.]



The foregoing facts were developed at the September 19, 
1963 hearing and were before this Court in the earlier 
appeal.

By resolution of March 16, 1964, the school board pro­
posed to give parents a “ choice between racially segregated 
schools or schools serving the area in which their home 
is located”  [A. p. 19]. The district judge quite properly 
indicated his reaction that “ no plan that contemplates the 
maintenance by the School Board of racially segregated 
schools could possibly be approved.” (Letter to counsel April 
2, 1964 [A. p. 21].) However, in the same letter, the court 
contradicted that lucid statement by suggesting that the 
plan might be amended to “ make it acceptable without per­
haps radically changing the e f f e c t [Emphasis supplied.]

Following that suggestion, the school board amended 
its March 16, 1964 resolution by substituting the words 
“a school of their choice” for the words “ segregated or 
integrated schools” , by deleting the clause “ Whereas it 
is the concern of the said school board not to disrupt in an 
emotional way the children in their education” , by deleting 
the words “ racially segregated schools and schools serving 
the area in which their home is located” and substituting 
the words “ between schools serving the area in which the 
home of the child is located or some other school” , and by 
adding to the factors by which the freedom of choice might 
be limited the words “ agreements with other school divi­
sions, tuition aid, etc.” [A. p. 21]. (C f. A. pp. 19, 20 and
pp. 21, 22.)

Exceptions to the resolution as amended were filed by 
the plaintiffs on May 8, 1964 [A. p. 23], Thereafter,



8

on June 15, 1964, the District Judge filed an opinion [A. 
p. 25] part o f which is as follows:

“ [I ]t  appears from evidence taken subsequent to the 
handing down of the opinion by the Court o f Appeals 
that the County is still making initial assignments on 
a racial basis though transfers have been freely granted 
upon request. The resolution filed with this court by 
the Defendant School Board makes no provision for 
a termination o f this policy. * * * I feel compelled to 
enter an injunction against any racial discrimination 
whatever on the part o f the defendants in this case. 
However, . . .  I will provide in the injunction order 
that the School Board may within 60 days file with 
the court a plan to provide for immediate steps to 
terminate discriminatory practices with respect to the 
operation o f the public schools and, if a plan is sub­
mitted and approved, the injunction will be suspended 
and the operation of the schools shall thereafter be in 
accordance with the plan.”

Pursuant to such leave granted in the June 15 order 
[A . p. 33], the school board, on July 7, adopted another 
plan permitting children to attend “ the school serving their 
geographic area or other public schools within or without 
the Frederick County school system which they wish to 
attend or which their parents wish them to attend” pro­
viding such wish “ is in accordance with . . . the administra­
tive policies o f the School Board such as school bus routes, 
school crowding, arrangements with other school divisions, 
tuition aid and other such administrative requirements.” 
[A. p. 36.] The plaintiffs filed exceptions [A. p. 37] 
contending:



9

“ 1. The plan does not contemplate the abandonment 
o f practices under which the school authorities 
assign Negro pupils to the county’s one all-Negro 
elementary school.

“ 2. The plan does not contemplate the abandonment 
of practices under which the school authorities 
permit Negro students (and none but Negroes) 
to attend at public expense an all-Negro high 
school which it not a part of the Frederick County 
school system.

“ 3. The plan does not contemplate the abandonment 
o f practices under which none but Negro children 
are taught by Negro teachers.”

Then the district judge, by order entered October 29, 
provisionally approved the July 7 plan “ if amended” in 
the several particulars set out in the order [A. p. 39]. 
The school board complied [A. p. 42], Under date of 
November 17, 1964, counsel for plaintiffs urged that “ [t]he 
assignment plan, read in the light of the factual situation, 
merely provides means by which [the unequivocal duty 
of the school board to end racial discrimination] may be 
avoided or passed on to the parents of Negro children.”  
[A. p. 46.] The plan as amended was approved [A. p.
47].

ARGUMENT

The District Judge Has Flagrantly Violated His Plain 
Duty Under Brown II And Under The Mandate Of

This Court



10

This case is controlled by a principle which is unequivo­
cally stated in Brown v. Board o f Education, 349, U. S. 294, 
298 (1955), viz:

“ All provisions of federal, state, or local law requiring 
or permitting [racial discrimination in public edu­
cation] must yield to [the fundamental principle that 
racial discrimination in public education is unconsti­
tutional].”

Having previously read the defendants’ concession that 
“ if the school board wanted to forget about race . . . chil­
dren [could] attend the schools near their homes regardless 
of where they live or what their color is” [A. pp. 18, 19], 
this Court perceived no obstacle to the entry o f an order re­
quiring the immediate abandonment of “ dual zone map as­
signment practices in the elementary schools.” The district 
judge was alert to the fact that “ no plan that contemplates 
the maintenance . . .  of racially segregated schools could 
possibly be approved” [A. p. 21]. And the district judge 
had read this Court’s reversal of his decision in a similar 
case, Buckner v. School Board of Greene County, 332 F.2d 
452 (4th Cir. 1964) [A. p. 26],

Yet, the district judge suggested, sought and devised 
a means by which the school board might continue to reduce 
the present rights of Negro children under Brown v. Board 
of Education, 347 U. S. 483 (1954) to a mere “ formalistic 
constitutional promise” (C f. Watson v. City of Memphis, 
373 U. S. 526, 530 (1963).

The stated purpose of the district judge was to make 
the school board’s expressed intent to maintain the racially 
segregated character of Gibson Elementary School and



n

to continue its discriminatory practice o f sending Negro 
children to Winchester’s Douglas High School appear 
to he constitutionally acceptable. However, in the light of 
the evidence in this case, the veil which the district judge 
so painstakingly spun is so transparent that its piercing 
is not essential to the revelation o f a local law permitting 
( if  not indeed requiring) the separation of Negro children 
in Frederick County’s school system from others o f similar 
age and classification solely because of race.

Paragraph 2 of the plan provides: “ Children entering 
the public school system for the first time shall make ap­
plication at the office of the prinicipal of the schoolhouse 
serving them, and shall there make application for admis­
sion to the school serving their geographical area or other 
public schools within or without the Frederick County 
School System which they wish to attend or which their 
parents wish them to attend.” [A. p. 43.]

The evidence indicates that the only public school not 
within the Frederick County system to which Frederick 
County children are assigned is Douglas High School 
(for  Negroes) in the City of Winchester. The evidence 
does not disclose any reason why a white parent would 
want his child to attend an elementary school outside his 
area of residence unless such school should be the (all- 
Negro) Gibson Elementary School. The evidence does 
show that, if only from force of custom under which Negro 
children ride to and from Gibson Elementary School on 
the two buses for Negro children, Negro parents do elect 
to send their children to the all-Negro Gibson Elementary 
School. Hence it is readily apparent that the “ choice” which 
is the promise of paragraph 2 is really but an enlistment 
of Negro parents (and white parents living in the Gibson



12

area if in fact some particular part of the county is so 
designated) to serve the school board’s purpose of main­
taining racial segregation.

Paragraph 3 provides means by which the superintendent 
can control the exercise of the choice promised in para­
graph 2. It says, in effect, that denial of requests may be 
predicated on school bus route, school crowding, arrange­
ments with other school divisions, tuition aid, etc. [A. p. 
43], The only evidence regarding school bus routes is 
that the two buses for Negroes canvass the county execpt 
for the two districts where no Negroes live and, to that 
extent, duplicate routes of buses transporting white chil­
dren. There is no evidence in the record regarding the ca­
pacities o f the elementary schools and the extent to which 
they are filled or overcrowded. There is no reason to sup­
pose, however, that a white child will be denied admission to 
the school nearest his home on such basis (unless that 
school be Gibson), although a Negro child might. The 
evidence discloses an “ arrangement” only with the School 
Board of the City of Winchester, and that is with reference 
to Frederick County’s Negro high school students.

The elaborate requirements of paragraph 4 respecting 
notice o f individual assignments, right of review by the 
school board, and ultimate appeal to the Federal court 
[A. pp. 43-45] obviously contemplate a continuation of the 
racially segregated character of Gibson Elementary School 
or a continuation of the practice o f sending Negro students 
to Douglas High School in Winchester or both. Abandon­
ment of these special facilities for Negroes would end 
Federal judicial supervision of the assignment of children 
to schools.



n

The district judge in his June 15, 1964 opinion pointed 
to Bell v. County School Board of Powhatan County, 321 
F.2d 494 (4th Cir, 1963), as justification for permitting the 
school board to postpone the abandonment of its racially 
discriminatory practices. Whatever the reasons (valid or 
invalid) for more deliberation and less speed in totally 
desegregating the schools of Powhatan County where the 
Negro school children equal or outnumber the white chil­
dren in public school and where the evidence disclosed 
community hostility to desegregation and an open threat to 
close the public schools rather than desegregate them, no 
such excuses can avail here. The 1963 testimony in this 
case indicates that desegregation could have been accom­
plished at any time. This Court’s 1964 mandate indicates 
that it should have been accomplished no later than Sep­
tember 1964.

It is unfortunate that the district judge maintains an 
abiding conviction that a school system which is a little bit 
segregated does not offend the Constitution. Support for 
such view comes from the concept of “ freedom of choice”  
between a segregated school and a school which is not 
racially segregated. That concept finds no support in Brown 
v. Board o f Education, supra, although under some circum­
stances it may have merited judicial toleration as an interim 
measure.

In this case in which the evidence unequivocally shows 
that there is no need for a period o f transition, applica­
tion of a “ freedom of choice” concept effects a needless and 
shameful sacrifice o f the constitutional rights o f Negro 
children to obtain equal educational opportunity. The School 
Segregation Cases were not based on any supposed right 
o f any parent to choose the public school his child might 
attend.



14

“ In each of these cases, minors [emphasis supplied] 
of the Negro race, through their legal representatives, 
seek the aid o f the courts in obtaining admission to the 
public schools o f their community on a nonsegregated 
basis.”  [347 U.S. at 487.]

“ At stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on 
a nondiscriminatory basis.” [349 U.S. at 300.]

The opinions do not mention parents. The Court discussed 
the rights of children on the one hand and the correlative 
duty of the school boards on the other. Federal courts do not 
sit to devise means by which school boards may avoid the 
performance of their duty to accord every child within their 
respective jurisdiction equal educational opportunities. The 
function of the court is to enforce performance of that duty 
notwithstanding the indifference o f a parent or even the 
active opposition of all o f the parents.

“ [I ]t  should go without saying that the vitality of 
these constitutional principles cannot be allowed to 
yield simply because of disagreement with them.” 
Brown v. Board of Education, 349 U.S. 294, 300 
(1955).

CONCLUSION

“ The Brown decision, in short, was a lesson in democracy, 
directed to the public at large and more particularly to 
those responsible for the operation of the schools. It im­
posed a legal and moral obligation upon officials who had 
created or maintained segregated schools to undo the dam­



15

age which they had fostered.” (Taylor v. Board o f Educa­
tion, 191 F.Supp. 181, (D C  SD N Y  1961).) Since those 
words were written, the Executive Branch of the national 
government and, in turn, the Congress have produced 
tangible evidences of their respective commitments to that 
lesson in democracy; and the people of the Nation have en­
dorsed their approval.

The second Brown decision was addressed particularly 
to school boards and to the lower federal courts which were 
to determine upon the evidence the extent, if any, to which 
the rights of children might be postponed to serve the public 
interest in the systematic and effective removal of admin­
istrative obstacles. Today, the Department of Health, Edu­
cation and Welfare must look to the federal courts to set 
the pace at which the rights o f local Negro school children 
and the corresponding interests of the Nation will be real­
ized. (Section V I of the Civil Rights Act of 1964.)

Ten years have demonstrated the futility o f gentle, 
sophisticated judicial announcements from this Court. The 
assumptions of good faith o f school boards and deferences 
to the district courts have bred an increasing spate of cases, 
none o f which has truly ended. “ The time for mere ‘de­
liberate speed’ has run out” ( Griffin v. County School 
Board of Prince Edward County, 377 U.S. 218 (1964)).

The plain, clear, and unequivocal duty of the County 
School Board of Frederick County is to eliminate every 
vestige of racial segregation in its school system instantly. 
The plain, clear and unequivocal duty of the district court



is to require such and nothing less. The need for this Court 
to so declare is no less clear.

Respectfully submitted,

S. W. T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia

O tto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Appellants



No. 9825

Brenda Elaine Brown, et al,
Appellants,

vs.

County School Board o f Frederick County, Virginia, et al,
Appellees.

Appendix To Brief for Appellants

CO M PLAIN T filed September 18, 1962 

* * *

VIII

W H EREFO RE, plaintiffs respectfully pray:

(A )  That the Court enter a temporary restraining 
order forthwith enjoining the defendants from denying



Julia Brown and Julian Brown the right to attend James 
W ood High School in Frederick County, Virginia.

(B ) That this Court enter an interlocutory and a per­
manent injunction restraining and enjoining defendants, 
and each of them, their successors in office, and their agents 
and employees, forthwith, from denying infant plaintiffs, 
or either of them, solely on account of race or color, the 
right to be enrolled in, to attend and to be educated in, the 
public schools to which they, respectively, have sought ad­
mission.

(C ) That this Court enter a permanent injunction re­
straining and enjoining defendants, and each of them, their 
successors in office, and their agents and employees from 
any and all action that regulates or affects, on the basis of 
race or color, the initial assignment, the placement, the 
transfer, the admission, the enrollment or the education of 
any child to and in any public school.

(D )  That, specifically, the defendants and each of them, 
their successors in office, and their agents and employees 
be permanently enjoined and restrained from denying the 
application of any Negro child for assignment in or transfer 
to any public school attended by white children when such 
denial is based solely upon requirements or criteria which 
do not operate to exclude white children from said school.

(E ) That the defendants be perpetually restrained and 
enjoined from operating a biracial school system or, in the 
alternative, that the defendants be required to submit a plan 
for the reorganization of schools on a unitary nonracial 
basis.



3

(F ) That the defendants pay to plaintiffs the costs o f 
this action and attorney’s fees in such amount as to the 
Court may appear reasonable and proper.

(G ) That plaintiffs have such other and further relief 
as is just.

TR A N SC R IPT filed September 19, 1963 

Charlottesville, Virginia 

October 2, 1962

(The Court convened at 10:00 a.m.)

RO BERT E. AYLO R, called as a witness by and on 
behalf o f Plaintiff having been duly sworn, testified as 
follows :

D IRECT E X A M IN A TIO N  

By: Mr. S. W . Tucker

Q. Will you please state your name and official position?
A. Robert E. Aylor, Division Superintendent, Frederick 

County Schools.

Q. Flow long have you been Superintendent of Frederick 
County Schools sir ?

A. Since 1949.

Q. Is there any member of the School Board of Frederick 
County in court at this time ?

A. Yes sir.

Q. W ho are they or who is he ?
A. Charles E. Bass, Frederick County School Board.



4

Q. He is the only School Board member present in Court 
now?

A. That’s right.

Q. How many schools are there in the Frederick County 
School system?

A. Sixteen.

(tr. 2)

Q. Will you state how many of those are high schools 
and how many o f them are elementary schools or junior 
high schools as the case may be ?

A. One high school, James W ood High School and fif­
teen elementary schools.

Q. How many o f those schools and designate which ones 
are attended by Negroes ?

A. One elementary school.

Q. What is the name of that school ?
A. Gibson Elementary School.

Q. I assume that the teachers and the administrative 
personnel at the Gibson Elementary School are all Negroes?

A. That’s right.

Q. I assume that no white children attend the Gibson 
Elementary School?

A. That’s correct.

Q. I assume that in the other schools and the administra­
tive personnel are all white persons?

A. Correct.



5

Q. I assume that no Negroes attend any other schools 
other than the Gibson Elementary School ?

A. That’s right.

Q. And that has been so as long as you have been 
Superintendent o f Schools of Frederick County?

A. That’s correct.

(tr. 3)

Q. Does the School Board to your knowledge have in 
mind any plan that will change the racial pattern of school 
attendance that we have just discussed ?

A. You mean do we have any organized plan ?

Q. Does the School Board— has the School Board dis­
cussed the requirements under the Brown decision for a 
desegregated school system with an idea of bringing the 
school system into line with what was required in the 
Brown decision ?

A. W e haven’t discussed that particular decision, no sir.

Q. Well, has the School Board attempted to find some 
method of desegregating the schools ?

A. We haven’t looked for any method. We realize that 
desegregation will probably come in the future, but to this 
point we haven’t set up any organized plan to do this.

Q. You have not taken any steps to initiate it?
A. No sir.

Q. Now you have read the complaint in this case, I 
assume ?

A. Yes sir.



5

Q. You are familiar with the names of the plaintiffs 
listed in the caption of the complaint— that is the Brown 
children and their father ?

A. Yes sir.

Q. Do you know these people ?
(tr. 4)

A. I don’t know any of the children. I have met the father 
this summer for the first time. I probably have seen him at 
the School meetings because I attend meetings of all schools 
but I didn’t know him personally until this summer.

Q. Can you recall what time of the summer, sir?
A. First time I met him was along about August 9 

1962, approximately that date.

Q. He is a resident of Frederick County?
A. That’s right.

Q. And he is a Negro?
A. That’s right.

Q. As a matter of fact some of his children attend the 
Gibson Elementary School?

A. That’s correct.

Q. What is the practice in Frederick County with regard 
to Negro children who have finished Gibson Elementary 
School if they desire to continue their education ?

A. In Frederick County— as I stated a while ago— we do 
not have a— we just have one high school— the James Wood 
High School and we have an agreement with the City of 
Winchester— an agreement of long standing even before 
I became superintendent of schools whereby Negro high



7

school students would attend the Douglas High School. O f 
course we pay tuition for those who attend. And through 
custom and down through the years as the children have 
completed the elementary school in Frederick County— the 
(tr. 5) Gibson Elementary School, the custom has been for 
them to attend the Douglas High School located in the city 
of Winchester. W e provide the transportation and pay the 
tuition and keep them there as long as they desire or until 
they graduate.

Q. Do you have any supervision over the Douglas High 
School in Winchester ?

A. No sir.

Q. Does the School Board of the County of Frederick 
have any control or supervision over the Douglas High 
School in the City o f Winchester?

A. No sir.

Q. When a white child living in Frederick County 
graduates from one o f the fourteen elementary schools 
which white children of Frederick County attend, what is 
the procedure followed by the Board or by the child or by 
your office with respect to that child’s admission to high 
school?

A. Normally they attend the James Wood High School. 
Those who complete the seventh grade in any of the ele­
mentary schools make application on forms furnished by 
the Pupil Placement Board and they are sent to the Pupil 
Placement Board and then, o f  course, sent on to James 
W ood High School.

Q. This Pupil Placement Board form that the— that is 
filled out by the child who has completed the elementary



8

school and is on his way to the James Wood High School 
does not contain the name of the school for which the child 
(tr. 6) is applying does it-—it does not does it ?

A. It does not.

Q. So that what the child actually does or what is actually 
done on the Pupil Placement form is that the child or the 
parent makes a request that the child be placed in school 
is that correct?

A. Yes sir.

Q. The— as to the children who graduate from the 
Gibson Elementary School I assume that they make out a 
similar Pupil Placement form is that correct ?

A. Since they are going to the Winchester School system 
that is handled by the Winchester School system.

Q. Where do they get the form ?
A. The forms are provided by the Pupil Placement 

Board.

Q. How does the form get to the child or to his parent?
A. W e distribute them through the principals of the 

schools.

Q. So that the principal of the Gibson Elementary School 
gives to the graduating child a pupil placement form is 
that correct?

A. Yes sir.

Q. Just as the principal o f each of the other fourteen 
elementary schools in your county gives to the child a pupil 
placement form. The pupil placement form in each case 
is filled out and signed by the parent and returned to the 
principal of the school from which it came?



9

(tr. 7)

A. And then in turn sent to the School Board office.

Q. I am just trying to see what the child’s parent has 
to do. The Pupil Placement Board form is filled out, 
signed by the parent and returned to the principal o f the 
school from which it came is that correct ?

A. That’s the correct procedure.

Q. So that at that stage the principals of each school 
have applications to the Pupil Placement Board asking that 
the child be placed in a school without any designation as 
to the name of the school is that correct ?

A. That’s right.

Q. So now that it is fair to say that any child who is 
now attending high school and any child who resides in 
the County o f Frederick and is now attending high school 
has prepared or someone has prepared for such child a 
Pupil Placement Form at some time or other is that correct?

A. That’s correct.

Q. And that Pupil Placement form was given to the 
principal o f the elementary school in the County of 
Frederick from which the child was graduated?

A. That’s the procedure.

Q. So that the Negro children who reside in Frederick 
County and are now attending the Douglas High School 
in Winchester they or their parents for them did the same 
thing that the white children whô — that were done for the 
white children who are now attending the James Wood 
(tr. 8) High School in the County o f Frederick?

A. That’s the plan.



10

Q. Do they fill out a Pupil Placement form and return it 
to the principal o f the elementary school?

A. Yes sir.

Q. Everything after that is done by the school board or 
by the Pupil Placement Board?

A. That’s right.

Q. Now who made the first determination that these 
children who are graduating from the Gibson Elementary 
School would get an assignment by the Pupil Placement 
Board— on their Pupil Placement form to the Douglas 
High School in Winchester ?

A. That is done through a policy of the Frederick 
County School Board. I have to sign them and recommend 
to the Pupil Placement Board to go to either the James 
W ood or Douglas.

Q. And in the case o f the children graduating from the 
Gibson Elementary School you recommend that they go to 
Douglas and in the case of all the other children graduating 
from the other fourteen elementary schools the recommen­
dation that they go to James W ood?

A. Yes sir.

Q. And the only reason for the difference in this recom­
mendation is race?

A. Yes sir.

Q. The infant plaintiffs Julia Brown and Julian Brown 
(tr. 9 ) are attending the Douglas High School in W in­
chester is that correct?

A. That’s correct.



11

Q. And they are assigned to and attending the Douglas 
High School in Winchester by virtue of the fact that your 
school board or your office recommended to the Pupil Place­
ment Board that they be there assigned is that correct ?

A. That’s right.

Q. Now is there anything required of a white child who 
lives in Frederick County and has graduated from one of 
these fourteen elementary schools in Frederick County 
that white children attend— is there anything required 
of that child to attend James Wood High School in 
Frederick County that has not been done by or on behalf 
of Julia and Julian Brown?

A. I don’t understand the question.

Q. Considering everything and as far as I understand 
the only thing that is required is the filling out of the Pupil 
Placement form, considering everything that a white child 
who has finished elementary school in Frederick County 
and who still lives in Frederick County, considering every­
thing that has been done by or on behalf o f that child as a 
prerequisite to his attending James Wood High School—- 
and my question is— is there anything required of that white 
child or of that white child’s parents that has not already 
been done by Julia and Julian Brown or their parents?

(tr. 10)

A. I don’t know of anything.

Q. Now there have been requests made to you by or on 
behalf o f Julia and Julian Brown that they be permitted to 
attend James W ood High School have there not?

A. Yes he came in and asked that they be transferred 
to the James W ood High School.



12

Q. As a matter of fact he has appeared before the 
School Board on other occasions— on earlier occasions 
and made such requests has he not ?

A. Not to my knowledge.

Q. All right you said he came in— now when did he 
come in to your office ?

A. The first time I saw him was around August 9 or 
thereabouts. I am not sure o f the date but I would say 
around the ninth of August.

Q. And on or about the 9th of August he had conversa­
tion with you?

A. Yes sir.

Q. Have you received a letter in regard to this ?
A. I received a letter from Attorney Otto Tucker.

Q. And the purport o f that letter was a request that 
these children be permitted to attend— these two children—  
Julia and Julian be permitted to attend the James Wood 
High School and that the other children who are plaintiffs 
in this case be permitted to attend the Stonewall Elementary 
School is that correct ?
(tr. 11) A. That was the request in the letter.

Q. And you replied to that letter that in their application 
you suggested that Mr. Brown drop into your office and 
complete the necessary application form and thereupon you 
said they would be processed upon his completing it ?

A. I have a copy o f the letter back in my brief case. 
Your Honor to save some time I will read it in the record. 
It is dated August 28, 1962, Mr. Otto L. Tucker, Attorney 
and Counselor at Law, 901 Princess Street, Alexandria, 
Virginia. Dear sir: If you will have your clients drop by



13

my office in the Frederick County Court House Building 
and complete the necessary application forms, it will be 
processed in the required manner. I will be pleased to assist 
any applicant in completing the forms, with best wishes I 
am, sincerely yours, Robert E. Aylor, Division Superinten­
dent.

H* afs

(tr. 17) By: Mr. S. W . Tucker

REDIRECT E X A M IN A T IO N

Q. You just said the School Board did not deny them 
the request made on behalf o f the Browns. I suggest that 
the School Board has not recommended that that request 
be granted either has it ?

A. No it didn’t recommend that it be granted either no.
They merely stated that the forms or the applications 

would have to be treated in the proper manner.

Q. I f your Honor please there is one area of the examina­
tion I neglected to go into on my original examination I 
would like to go into now.

T H E  C O U R T : That’s quite all right under the circum­
stances.

Q. Can you tell us approximately how many Negro chil­
dren residing in Frederick County attend the Douglas 
High School in Winchester?

A. Approximately 24 to 30—in that area. I would say 
about 26 approximately.



14

Q. Can you approximate the number of elementary 
(tr. 18) school children who attend the Gibson Elementary 
School ?

A. Approximately 100.

Q. Can you tell us approximately how many children 
are enrolled in the James Wood High School?

A. Approximately 1500.

Q. Can you tell us what is the rate of capacity for James 
W ood High School?

A. Would you repeat that question.

Q. What is the school building designed to hold— what is 
the capacity of James W ood High School?

A. Approximately 1100 to 1200.

Q. Would the admission of 30 additional high school 
children— would the addition of another 30 children in 
James W ood High School present an insurmountable 
obstacle ?

A. W e would tend to crowd an already crowded situa­
tion.

Q. By 30?
A. Yes sir.

Q. O f 1500?
A. Yes sir.

Q. Assume they are white children as far as overall 
conditions of James W ood High School is concerned you 
could put 30 more high school children in James Wood 
High School and nobody would be too much aware of the 
fact that you made an addition ?



15

A. Well 30 in 1500 why it possibly wouldn’t be a great 
amount but still we are crowded and adding 30 children 
(tr. 19) would crowd it more.

Q. It would show up on the figures but so far as the 
operation of the school it wouldn’t really affect anybody 
one way or the other to lose 30 children in the 1500?

A. No it wouldn’t affect the overall picture too much.

Q. Then I ask you, other than the factor of race is 
there anything that requires o f  these Negro children to 
attend school outside the county or is there any obstacle 
preventing their attending school within their county ?

A. W e have been operating a bi-racial system down 
through the years. It has been the custom.

Q. Aside from race is there any other obstacle?
A. I can’t think o f anything.

Q. So that if the school board wanted to it could eliminate 
this racially discriminatory feature of the school operation 
as far as the high school is concerned— it could eliminate 
that at any time couldn’t they ?

A. That’s possible.

’ Q. Even tomorrow?
A. I wouldn’t think so' tomorrow because the schedule 

is all set up and the school is in operation and has been in 
operation now about a month. It would be rather difficult 
to make the adjustment tomorrow.

Q. Don’t high school children enroll in high school as 
late as even now?



16

(tr. 20)

A. They move into the county.

Q. If a white family moved into Frederick County 
tomorrow and had five children or three children who are 
in high school in the county from which they moved they 
could be admitted day after tomorrow in the James Wood 
High School couldn’t they?

A. That’s right.

Q. One more question. Assuming the school board 
wanted to is there any obstacle that would prevent their 
desegregating the entire school system of Frederick County 
within a year ?

A.

MR. M A SSIF : Your Honor I am going to object to 
that question on the ground that it calls for a conclusion 
and he is not a member of the school board and this is a 
superintendent o f schools o f the county but this calls for a 
decision to be made by the school board not by him and is 
speculatory and calls for a conclusion.

MR. TU C K E R : Your Honor please he is a chief 
administrator of the school board.

TH E  C O U R T : He would be the one to- call the atten­
tion of the School Board of any obstacle that might exist. 
If he doesn’t know it they wouldn’t know it. I think he can 
answer the question.

MR. M ASSIE : W e make exception to the ruling of 
the Court.

A. I am not sure that possibly all of the Negro families 
(tr. 21) would want to make the transfer.



17

TH E  C O U R T ; That isn’t answering the question.

MR. M ASSIE : There is one other objection I would 
like to make your Honor. Under the laws o f the State of 
Virginia that now exist the School Board as well as the 
superintendent who is the administrator must comply with 
the state law and there are certain state regulations which 
provide for the assignment of children such—

TH E  CO U RT: I don’t think the question is directed 
to that at all. The question was whether there was any 
physical or any other reason other than law— the law is 
what we are concerned with— whether the law is constitu­
tional or not.

MR. M ASSIE : But what I am getting at is this ques­
tion calls for a— for his interpretation of the law of V ir­
ginia.

TH E  C O U R T : No it doesn’t. Disregard the law al­
together in answering the question, just whether there is 
any reason other than law.

A. I don’t know of any other reason.

Q. Let me ask you this— does approximately 100 ele­
mentary school children now attending Gibson Elementary 
School— they are all Negroes— do they live in one part of the 
county or are they scattered throughout the county ?

A. They are scattered somewhat. They are in about 
three— I would say about five areas in the county.

Q. And you had separate school buses to service that 
(tr. 22) school?

A. Yes sir.



18

Q. How many buses?
A. Two.

Q. How many buses are in your entire fleet ?
A. Forty.

Q. Do your buses carry the high school children into 
Winchester ?

A. Yes.

Q. They also have to ride the two buses that service the 
Gibson Elementary School?

A. Yes.

Q. These two buses that service the Gibson Elementary 
School between them travels the entire length o f the 
county ?

A. No sir there are two districts in Frederick County 
in which no Negroes live.

Q. But in the districts where Negroes live there are 
also white children living there too?

A. That’s right.

Q. So that you have in some districts of Frederick 
County a bus went on to pick up colored children and an­
other bus went on to pick up white children.

A. That’s right.

Q. Now if the school board wanted to forget about race 
you could actually eliminate some of the duplication in bus 
(tr. 23) transportation couldn’t you ?

A. That’s right.

Q. If the school board wanted to forget about race you 
could then take these pupil placement forms and recommend



19

that children attend the schools near their homes regard­
less of where they live or what their color is couldn’t you ?

A. It could be done.

Q. And according to your experience with the pupil 
placement board whatever you recommend that is what 
they assign— that has been the experience up to this time 
hasn’t it?

A. Yes they have— the Board has followed the recom­
mendations.

RESOLUTION

W H EREAS, the case of Brown against the County 
School Board of Frederick County, Virginia, is now pend­
ing again in the United States District Court for the 
Western District o f Virginia; and,

W H ER EA S, prior to this case being remanded from the 
Fourth Circuit Court of the United States to the said Dis­
trict Court, the said County School Board of Frederick 
County adopted a freedom of choice policy for all students 
of every race, creed and color in Frederick County to attend 
segregated or integrated schools; and,

W H ER EA S, it is the knowledge of the individual School 
Board members o f Frederick County that the vast majority 
of the pupils and the parents of the school children of 
Frederick County desire to continue this freedom of choice 
in education; and,

W H ER EA S, it is the concern of the said School Board 
to not disrupt in an emotional way the children in their 
education.



20

NOW , TH EREFORE, BE IT RESOLVED  : That the 
following policy be approved: It is recommended to the 
United States District Court for the Western District of 
Virginia in regard to the case of Brown against the County 
School Board of Frederick County, Virginia, that at the 
end o f each school year each student and parents o f each 
student be offered the opportunity to select what school the 
child or their child shall attend for the next school year, 
without coercion or interference by any person whatsoever, 
and that said choice shall be between racially segregated 
schools or schools serving the area in which their home is 
located which selection shall also be in accordance and 
subject to the administrative policies of the School Board, 
such as school bus routes, etc.

Ratified and approved this 16th day of March, 1964.

A  true copy, teste:

E lizabeth  L. S heetz 
Clerk
County School Board of Frederick 
County, Virginia

April 2, 1964

Mr. Joseph A. Massie, Jr.
133 West Boscawen Street 
Winchester, Virginia

Mr. S. W . Tucker 
214 East Clay Street 
Richmond 19, Virginia



21

Re: Brown v. School Board of Frederick County 
C. A . 642— Harrisonburg

Gentlemen:

I have given some further thought to this matter and 
it is perfectly clear to me, as indeed I rather indicated from 
the bench, that the plan of the Frederick County School 
Board cannot be approved in its present form with its 
reference to racially segregated schools. No plan that con­
templates the maintenance by the School Board of racially 
segregated schools could possibly be approved.

Quite a number of free choice plans have been adopted 
around the state and approved and it should be possible 
to amend the Frederick County plan to make it acceptable 
without perhaps radically changing the effect.

Before entering an order on the matter, I will wait a 
reasonable time to see if the Board is willing to amend 
the plan to make it acceptable.

TJM :rpc

Very truly yours, 
T homas J. M ich ie

[ Amended ]

RESOLUTION

W H ER EA S, the case of Brown against the County 
School Board of Frederick County, Virginia, is now pend­
ing again in the United States District Court for the 
Western District o f Virginia; and,



22

W H E R E A S, prior to this case being remanded from the 
Fourth Circuit Court of the United States to the said 
District Court, the said County School Board o f Frederick 
County adopted a freedom of choice policy for all students 
of every race, creed and color in Frederick County to attend 
a school of their choice; and,

W H ER EA S, it is the knowledge o f the individual School 
Board members of Frederick County that the vast majority 
of the pupils and the parents of the school children of 
Frederick County desire to continue this freedom of choice 
in education ; and,

NOW , TH EREFORE, BE IT R E S O L V E D : That the 
following policy be approved: It is recommended to the 
United States District Court for the Western District of 
Virginia in regard to the case of Brown against the County 
School Board of Frederick County, Virginia, that at the 
end o f each school year students and parents of each student 
be offered the opportunity to select what school the child or 
their child shall attend for the next school year, without 
coercion or interference by any person whatsoever, and 
that said choice shall be between schools serving the area in 
which the home of the child is located or some other school, 
which selection shall also be in accordance with and subject 
to the administration policies of the School Board, such as 
school bus routes, school crowding, agreements with other 
school divisions, tuition aid, etc.

Ratified and approved this 16th day of March. 1964.
A  true copy, teste:

E lizabeth  L. S heetz 
Clerk
County School Board of Frederick 
County, Virginia



23

[Caption Omitted]

EXC EPTIO N S TO RESOLU TION  OF SCHOOL 
BOARD SU BM ITTED  TO TH E COURT AS OR IN 

LIEU  OF A PLAN  FOR DESEGREGATION

filed May 8, 1964

The defendant school board has adopted and submitted 
to the court a resolution dated March 16, 1964, suggesting 
a parent’s or student’s selection or choice “ between schools 
serving the area in which the home of the child is located or 
some other school, which selection shall also be in accordance 
with and subject to the administration policies of the 
School Board, such as school bus routes, school crowding, 
agreements with other school divisions, tuition aid, etc.” 
The plaintiffs except to said resolution insofar as it purports 
to be a plan of racial desegregation for the following rea­
sons :

The only administration policy of the School Board of 
which there is evidence is its policy o f  maintaining racial 
segregation. The only agreement with other school divisions 
of which there is evidence is the agreement pursuant to 
which Negro high school children under the jurisdiction of 
the defendant school board attend the City of Winchester’s 
all-Negro high school. The only evidence relating to school 
bus routes is that two of the county’s forty school buses 
transport Negro children from the several areas of the 
county to the all-Negro Gibson Elementary School and to 
Winchester’s all-Negro high school and, in so doing, canvass 
areas which are also served by other buses transporting 
white children. The only evidence relating to school crowd­
ing is the testimony, heard October 2, 1962, that the county’s



24

only public high school was designed for 1100 to 1200 
pupils and had approximately 1500 pupils but that the 
admission o f the county’s 30 Negro high school students 
“ wouldn’t affect the overall picture too much” . There is 
no evidence in the record pertaining to tuition aid and we 
are unable to conceive of any bearing it may have on a 
child’s assignment within the public school system.

The resolution, therefore, as certainly contemplates the 
continuation of a bi-racial system of schools as did the 
resolution of March 16, 1964, which offered a choice be­
tween racially segregated schools or schools serving the 
area in which [the student’s] home is located” . The con­
tinuation of the bi-racial character of the school system 
(with regard to teachers, students, transportation facility 
or what not) whether the “ plan” be ingenious or in­
genuous, cannot be squared with the opinion of the Court 
o f Appeals in this very case which would require the 
abandonment o f racially discriminatory practices not later 
than the opening of the next school year. Any “ plan” 
giving to children of one race a choice which we know will 
be withheld from children of another race by reason of 
prevailing mores, is too patently unconstitutional to permit 
its approval or adoption by the court. The school board may 
not abdicate to parents its duty to eliminate the offending 
system.

W H E R E F O R E : Plaintiffs say that the said resolution 
should not be approved and that an order should be entered 
enjoining the defendant school board, effective with com­
mencement of the 1964-65 school session, from causing or 
permitting considerations of race to be a factor in the 
assignment, retention, dismissal, selection or rejection of 
employees or applicants for employment, from maintaining



Gibson Elementary School or any other school as a school 
in which none but Negroes are taught, and from assign­
ing Negro students to any school other than that attended by 
similarly situated white students.

/ s /  H enry L. M arsh , III 

O f Counsel for Plaintiffs

25

S. W. T ucker 
H enry  L. M arsh , III

214 East Clay Street
Richmond, Virginia 23219

Counsel for Plaintiffs

O P I N I O N  

* * *

This suit was instituted by Brenda Elaine Brown, an in­
fant, and other infants by their father as next friend and 
by their father also as an individual plaintiff against the 
County School Board of Frederick County, Virginia, and 
Division Superintendent of Schools of Frederick County 
as well as the State Pupil Placement Board.

While the cause was pending the Pupil Placement Board 
assigned all o f the infant plaintiffs to the schools to which 
they desired to go so the case appeared moot to this court 
and was ordered stricken from the docket. This order was 
appealed and the Court o f Appeals, in a brief per curiam 
opinion decided January 27, 1964, 327 F.2d 655 (1963), 
held that, since the record disclosed the existence of a bi- 
racial system of schools, the matter should be remanded



26

for further consideration o f plaintiffs’ prayers for an in­
junction and counsel fees in the light o f the opinions of the 
Fourth Circuit Court o f Appeals in Bradley v. School 
Board of the City o f Richmond, 317 F.2d 429, and Bell 
v. School Board o f Powhatan County, Virginia, 321 F.2d 
494 (1963).

Subsequent to the handing down of the per curiam 
opinion, a further hearing was held in this court and 
evidence taken.

The injunction was previously denied hy this court on 
the theory that the question had become moot by the 
admission of all o f the infant plaintiffs to the schools to 
which they desired to go. I can only deduce from the brief 
opinion of the Court of Appeals that that Court con­
sidered that the father o f the original infant plaintiffs, who 
was himself named as a plaintiff, could continue to conduct 
the suit on behalf of other children who might be similarly 
situated.

Turning first to the question o f an injunction, it appears 
from evidence taken subsequent to the handing down of the 
opinion by the Court o f Appeals that the County is still 
making initial assignments on a racial basis though trans­
fers have been freely granted upon request. The resolu­
tion filed with this court by the defendant School Board 
makes no provision for a termination o f this policy.

In a very recent case, Buckner v. County School Board 
o f Greene County, decided May 25, 1964, the Fourth Cir­
cuit Court of Appeals has expressly stated that, “ If, as 
alleged in the complaint, students were initially being as­
signed to schools in a racially discriminatory manner, ‘the



27

School Board is actively engaged in perpetuating segrega­
tion.’ ”  In the light of this opinion, I feel compelled to 
enter an injunction against any racial discrimination what­
soever on the part o f the defendants in this case. However, 
as was done in Bell v. School Board of Powhatan County, 
supra, I will provide in the injunction order that the 
School Board may within 60 days file with the court a 
plan to provide for immediate steps to terminate dis­
criminatory practices with respect to the operation o f the 
public schools and, if a plan is submitted and approved, the 
injunction will be suspended and the operation of the 
schools shall thereafter be in accordance with the plan.

The Court of Appeals in its brief per curiam opinion in 
this case suggested that counsel fees be considered in the 
light of the court’s opinion in Bell v. School Board of 
Powhatan County, supra. In that case the court said:

“ Finally, we consider the District Court’s denial 
of counsel fees to the plaintiffs. The general rule is 
that the award of counsel fees lies within the sound 
discretion of the trial court but, like other exercises 
of judicial discretion, it is subject to review. The 
matter must be judged in the perspective of all the 
surrounding circumstances. Local 149, U .A.W . v. 
American Brake Shoe Co., 298 F.2d 212 (4th Cir.), 
cert, denied, 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed.2d 
276 (1962). Here we must take into account the long 
continued pattern o f evasion and obstruction which 
included not only the defendants’ unyielding refusal 
to take any initiative, thus casting a heavy burden on 
the children and their parents, but their interposing 
a variety of administrative obstacles to thwart the



2S

valid wishes o f  the plaintiffs for a desegregated educa­
tion. To put it plainly, such tactics would in any other 
context be instantly recognized as discreditable. The 
equitable remedy would be far from complete, and 
justice would not be attained, if reasonable counsel 
fees were not awarded in a case so extreme.”

The instant case bears no resemblance to that described 
in the foregoing quotation. This suit was filed on Septem­
ber 18, 1962. Shortly after the suit was filed, a conference 
between the court and attorneys, at which some evidence 
was also taken, was held and on October 16 the court 
wrote attorneys a letter in which the following statement 
was made:

“ When we met here two weeks ago we had a discus­
sion as a result o f which I hoped that the parties would 
be able to agree upon a disposition of this matter with­
out extended litigation. I do not know whether any 
progress has been made along that line.”

On October 17 Mr. Massie, counsel for the School 
Board, wrote Mr. Tucker, counsel for the complainants, 
that the matter would probably be moot by the beginning 
o f the next school year and that the appropriate authori­
ties in Frederick County were open for a discussion of 
the matter with a view to a solution of the problems raised 
by the suit. He suggested that Mr. Tucker come to 
Winchester and meet with the School Board. On November 
20 I wrote counsel to the effect that I had had no reply to my 
letter of October 16 and inquired what progress was being 
made towards a possible settlement. On November 21 Mr. 
Massie wrote to me, again indicating the willingness of 
the authorities to discuss the matter with Mr. Tucker, a



29

copy of this letter of course going to Mr. Tucker. On 
December 17 Mr. Tucker wrote that he would be glad to 
meet with the School Board in January of 1963. Mr. Massie 
failed to answer this letter, later giving as a reason the 
fact that the School Board did not meet in January.

Mr. Massie apparently wrote Mr. Tucker again on 
February 21, 1963 but I do not have a copy of that letter. 
Not having heard anything further from the matter, I 
again raised the question of the status of the case by 
letter dated April 18, 1963 and Mr. Massie replied that 
he had never had an answer to his letter of February 21 
to Mr. Tucker. I then wrote to Mr. Massie, with copy to 
Mr .Tucker, that, unless I heard from Mr. Tucker within 
the next ten days, I would dismiss the case for want of 
prosecution. I got a prompt reply from Mr. Tucker which 
asked that a date for trial be set, apparently abandoning 
any idea of an amicable settlement— which perhaps was 
understandable in view of Mr. Tucker’s failure to respond 
to suggestions for a conference made throughout the 
preceding six months. Nevertheless, still trying, Mr. Massie 
wrote again to Mr. Tucker on April 29 to tell him that 
the School Board was meeting on May 7 and also May 20 
and that they would be delighted to talk the situation over 
with him. Mr. Tucker, in a letter to me of May 1, stated 
that at the time he asked me for a trial date he had sug­
gested to Mr. Massie that he was still ready to attempt to 
avoid trial by negotiation. But Mr. Tucker did not ac­
cept Mr. Massie’s invitation to attend either of the 
May meetings of the School Board. On May 6, 1963 I 
wrote Mr. Tucker, reviewing the correspondence and his 
various failures to reply, and stating as follows:



30

“As I understand from Mr. Massie and Mr. Scott 
there appears to be no real controversy here. As far 
as I can see all that needs to be done is for you and 
Mr. Massie to get together on a program which you 
can agree upon and submit it to me for approval. I 
would enter a decree thereon which would have the 
same effect as if we had gone through the motions of 
bringing in witnesses when there is no real controversy.

“ O f course if you have any ground for feeling that 
there would be a real controversy the situation might 
be altered. But so far none has been suggested. And 
the legal situation seems to me so clear that I do not 
apprehend that any real controversy exists.

“ Under the circumstances I am not disposed to set a 
date for trial and have witnesses come to Harrison­
burg on a matter which should be settled in a few 
minutes o f discussion between you and Mr. Massie.

“ I suggest once more that either by correspondence 
or by a personal interview you endeavor to settle 
this matter.”

On May 8 I wrote to Mr. Massie that I had had no 
reply from Mr. Tucker but I did feel very strongly that 
the two o f them should get together to discuss the matter.

On May 27 Mr. Tucker wrote that he had concluded 
that no further hearing in the matter would be necessary. 
Shortly thereafter, the Pupil Placement Board granted 
the transfers requested by the children involved in the 
suit. Shortly thereafter this court entered the order which 
was subsequently appealed from. That order struck the 
cause from the docket but expressly provided that it could 
be reinstated on the docket without payment of any filing



31

fee in the event the plaintiffs or anyone who would have 
had a right to intervene in the cause should file a petition 
for reinstatement and/or intervention. No such petition 
has been filed.

The situation here is therefore clearly distinguishable 
from that in Bell v. School Board o f Powhatan County, 
Virginia. There is here no “ long continued pattern of 
evasion and obstruction” nor a refusal to take the initiative. 
On the contrary, the County has consistently understood 
that segregation cannot be maintained and has consistently 
pleaded for a conference at which a program could be 
agreed upon. It is the belief of the court that much of 
this litigation could have been avoided had counsel for 
the plaintiffs been willing to sit down and discuss the 
situation with counsel for the defendants. There has 
been here no long continued pattern of evasion and ob­
struction and interposition of a variety of administrative 
obstacles such as was found in the PowTatan County case 
and was referred to by the Court of Appeals as a basis 
for awarding counsel fees. Consequently, I find in this 
case that no counsel fees should be awarded.

An order will be entered accordingly.

s / T homas J. M ic h ie
United States District Judge

June 15, 1964.

ORDER

The order o f this court of July 24, 1963 having been 
appealed to the Court o f Appeals for the Fourth Circuit 
and that court having, by opinion dated January 27,



32

1964, ( Brown v. County School Board of Frederick County, 
327 F.2d 655 (1963 )) remanded the case for the issue of 
an injunction against the operation of a bi-racial school 
system throughout Frederick County and for considera­
tion o f the allowance o f counsel fees in the light o f that 
court’s opinions in Bradley v. School Board o f the City of 
Richmond, 317 F.2d 429, and Bell v. School Board o f Pow­
hatan County, 320 F.2d 494, and this court having sub­
sequently held a hearing at which further evidence was ad­
duced and having considered memoranda of both the 
plaintiffs and the defendants and having filed an opinion in 
the matter,

NOW , TH EREFORE, it is ORDERED that the de­
fendants and each of them, their successors in office and 
their agents and employees be, and they hereby are, re­
strained and enjoined from any and all action that 
regulates or affects on the basis o f race or color the initial 
assignment, the placement, the transfer, the admission, 
the enrollment or the education of any child to or in any 
public school maintained and operated by the County 
School Board o f Frederick County, and are further en­
joined and restrained from causing or requiring any Negro 
child residing in Frederick County to attend a public high 
school which is not maintained and operated by the de­
fendant School Board and from denying the application 
of any Negro child for assignment in or transfer to a 
public school attended by white children at the commence­
ment of any school semester when such denial is based 
solely upon criteria or procedural requirements which would 
not operate to exclude from such a school a white child 
making initial application for enrollment therein.



33

The County School Board of Frederick County and 
the Division Superintendent of Schools, however, are 
granted leave to file with the Court within 60 days a plan 
to provide for immediate steps commencing with the next 
school term in the Fall of 1964, to terminate discrimina­
tory practices with respect to the operation of the public 
schools and, if a plan is submitted and approved, the in­
junction will be suspended and the operation of the schools 
shall thereafter be in accordance with the plan.

For reasons stated in a brief opinion filed herewith, no 
counsel fees will be allowed in this case.

E N TE R : June 15, 1964.

s /  T homas J. M ic h ie
United States District Judge

M OTION  TO A L TE R  JUDGMENT 

Served June 22, 1964

The plaintiffs move the Court to amend its judgment 
entered June 15, 1964, by striking therefrom the words:

“ and from denying the application of any Negro child 
for assignment in or transfer to a public school at­
tended by white children at the commencement of 
any school semester when such denial is based solely 
upon criteria or procedural requirements which would 
not operate to exclude from such a school a white 
child making initial application for enrollment therein.”

and by striking therefrom the paragraph which reads.



34

“ The County School Board o f Frederick County and 
the Division Superintendent o f Schools, however, are 
granted leave to file with the Court within 60 days a 
plan to provide for immediate steps commencing with 
the next school term in the Fall o f 1964, to terminate 
discriminatory practices with respect to the opera­
tion of the public schools and, if a plan is submitted 
and approved, the injunction will be suspended and 
the operation of the schools shall thereafter be in ac­
cordance with the plan.”

As grounds for this motion, the plaintiffs say that the 
mandate of the United States Court o f Appeals for the 
Fourth Circuit is that the defendants abandon their dis­
criminatory practices not later than the opening o f the 
next school year.

The above-quoted provisions of the order are incon­
sistent with the duty of this Court to require the defend­
ants to comply with the Supreme Court’s directive that the 
school authorities “ devote every effort toward initiating 
desegregation and bringing about the elimination o f racial 
discrimination in the school system.” (C f. Buckner v. 
County School Board of Greene County, . . . F.2d . . . , 
4th Cir. No. 9325, May 25, 1964, citing Cooper v. Aaron, 
358 U.S. 1, 7.) In view of the evidence heard by this 
Court, and the concession mentioned by the Court of 
Appeals in its opinion in this case, that no serious ad­
ministrative problem requires delay in eliminating racial 
discrimination in the subject school system, this Court 
should not countenance such delay.

/ s /  S. W . T ucker

O f Counsel for Plaintiffs



35

S, W . T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

O tto L. T ucker 
901 Princess Street 
Alexandria, Virginia

Attorneys for Plaintiffs

A  RESOLU TION  OF TH E  FREDERICK CO U N TY 
SCHOOL BOARD AD O PTED  JULY 7, 1964

Upon motion duly made and seconded, the following 
resolution was adopted by Frederick County School Board 
at its regular monthly meeting held July 7, 1964.

“ BE IT RESOLVED, that the attached plan for 
the operation o f a non-biracial school system and the 
assignment of children therein for Frederick County, 
Virginia, be, and the same is hereby adopted ; and,

BE IT FU RTH ER RESOLVED, that a copy of 
this resolution, together with a copy of the plan, 
be forwarded to The Honorable Thomas J. Michie, 
Judge, United States District Court for the Western 
District o f Virginia.”

A  True Copy, Teste:

E lizabeth  L. Sheetz, Clerk 
Frederick County School Board



36

A PLAN  FOR TH E  ASSIGN M EN T OF CH ILDREN  
IN A  N O N -B IR A C IA L SCH OOL SYSTEM  IN 

FR ED ERICK  COU N TY, V IR G IN IA

1. Frederick County shall be divided into school dis­
tricts, the territory of the districts being determined on a 
geographical location of each school serving the area and 
the feasibility o f bus routes for the transportation of 
children to each school, and the overcrowding of schools 
and schoolrooms.

2. Children entering the public school system for the 
first time shall make application at the office of the principal 
o f the schoolhouse serving them, and shall there make ap­
plication for admission to the school serving their geo­
graphical area or other public schools within or without 
the Frederick County school system which they wish to 
attend or which their parents wish them to attend.

3. The School Board, through its Superintendent, shall 
thereupon make recommendation to the Pupil Placement 
Board for the Commonwealth of Virginia recommending 
the placement of said children in the school serving the 
area of each child making said application or to the other 
public schools within or without the Frederick County school 
system which the child or its parents wish the child to 
attend, provided the same is in accordance with and sub­
ject to the administrative policies of the School Board, 
such as school bus routes, school crowding, arrangements 
with other school divisions, tuition aid and other such ad­
ministrative requirements.

4. Children already in the school system shall continue 
their programs unless application for transfer is timely



37

made and meets the administrative requirements of the 
school system.

5. No administrative requirements shall be based on 
discrimination against race, creed or color.

EXCEPTIO N S TO PLAN  

Served August 25, 1964

Plaintiffs take exception to the Plan for Assignment of 
Children which, by virtue of a Resolution of the Frederick 
County School Board adopted July 7, 1964, has been sub­
mitted to this Court pursuant to the order herein entered 
on June 15, 1964, and as ground for such exception say:

1. The plan does not contemplate the abandonment of 
practices under which the school authorities assign Negro 
pupils to the county’s one all-Negro elementary school.

2. The plan does not contemplate the abandonment of 
practices under which the school authorities permit Negro 
students (and none but Negroes) to attend at public ex­
pense an all-Negro high school which is not a part of 
the Frederick County school system.

3. The plan does not contemplate the abandonment of 
practices under which none but Negro children are taught 
by Negro teachers.

W H ER EFO RE the plaintiffs pray that their exceptions 
be sustained and that, in accordance with the mandate of 
the United States Court of Appeals for the Fourth Cir­
cuit in this case, the defendants be enjoined forthwith



38

from continuing the discriminatory practices herein above- 
mentioned.

/ s /  S. W . T ucker

O f Counsel for Plaintiffs

S. W. T ucker 
H enry  L. M arsh , III

214 East Clay Street
Richmond, Virginia 23219

Counsel for Plaintiffs

M EM O RAN D U M  OF T H E  COURT

A  conference was held in this matter on August 14, 1964. 
Appearing were Mr. S. W . Tucker for the plaintiffs and 
Mr. Joseph A. Massie, Jr. for certain o f the defendants.

Counsel for both parties agreed to plaintiffs' request 
that the court’s order of June 15, 1964 be amended by 
striking the following words therefrom:

“ and from denying the application of any Negro 
child for assignment in or transfer to a public school 
attended by white children at the commencement of 
any school semester when such denial is based solely 
upon criteria or procedural requirements which would 
not operate to exclude from such a school a white 
child making initial application for enrollment there­
in.”

Counsel for the plaintiffs agreed that the filing of de­
fendants’ plan, as allowed by the terms of the court’s June



39

15th order, makes the second request of the plaintiff’s Mo­
tion to Alter Judgment moot. However, counsel for plain­
tiffs will present objections to the approval of defendants’ 
plan in the near future. The court will not act upon the 
plan until plaintiffs’ objections have been filed.

s / T homas J. M ic h ie

United States District Judge
August 31, 1964.

ORDER

The Court by order entered on June 15, 1964 having 
granted leave to the defendants to file a plan providing for 
the termination of discriminatory practices with respect 
to the operation of the public schools of Frederick County 
and the defendants having filed a plan and a hearing hav­
ing been held on this plan and objections entered by the 
plaintiffs and the Court feeling that the plan as adopted 
would not fully comply with the law, it is O R D E R E D :

That the plan of desegregation of the school system of 
Frederick County adopted by the defendant School Board 
on July 7, 1964 be and the same is hereby approved, if 
amended in the following particulars:

1. That instead of the procedures outlined in section 
four o f the plan the following procedures will be used in 
assigning students presently within the school system or 
presently assigned to Douglas Higdi School in the City of 
Winchester but residing in Frederick County.

(a ) In assigning pupils to classes the Superintendent 
o f Schools shall conduct a registration prior to the close



40

of the Spring session each year by mailing or otherwise 
sending to the parent(s), guardian or other persons having 
custody of each pupil attending a school within the Fred­
erick County School System or whom they know to be 
residing in Frederick County a registration form to be 
filled out and returned by a date specified thereon (such 
specified date to be not less than 7 days after such forms 
are sent out) and on which the parent(s), guardian or 
other persons having custody shall indicate the school in 
which they wish their child enrolled for the next ensuing 
school year. On or before the expiration of 30 days from 
the return date specified above the Superintendent shall 
assign pupils for the next ensuing school year and promptly 
notify the parent(s), guardian or other persons having 
custody of each pupil of their child’s assignment, by writ­
ten notice mailed or otherwise delivered to them at their last 
known address. Such notice shall also advise the parent(s), 
guardian or other persons having custody o f such pupil 
o f their rights to seek a review of such assignment by 
the School Board or by this Court under the review pro­
cedures hereinafter set forth.

In making assignments, the Superintendent shall, in­
sofar as practicable, assign or place pupils in accord with 
the wishes of the parent(s), guardian or other persons 
having custody, as expressed on the registration form, tak­
ing into account the location and capacity of school build­
ings, shifts in population and practical attendance problems, 
provided only that the race of the pupil concerned shall not 
be a consideration.

If a parent or guardian or person having custody o f a 
pupil fails or refuses to fill out and return the registra­
tion form within the specified time, after it has been sent



41

to them by the Superintendent, such pupil shall be assigned 
by the Superintendent to the school in which the child is 
then enrolled or to the school nearest the child’s place of 
residence or to such other school as the Superintendent 
may determine without regard to the child’s race.

If any parent, guardian or other person having custody 
o f a pupil shall feel aggrieved by the assignment or place­
ment of their child by the Superintendent under the above 
provisions then such parent, guardian or other person may 
at any time within twenty days from the date of his noti­
fication of the pupil’s assignment make application in 
writing to the School Board for a review of such ac­
tion, setting out therein the relationship of the applicant 
to the pupil and the specific reasons why such pupil should 
not attend the school in which placed and also setting out 
the particular reasons why such pupil should be placed in 
some other school to be named in such application. The 
School Board shall review the initial placement within 
twenty days after receipt of such application for review 
and determine whether the placement sought in such ap­
plication should be allowed and shall promptly enter an 
order either affirming' the initial placement or changing 
the same. A  copy o f the School Board’s order shall be 
furnished the applicant

I f any parent, guardian or other person having custody of 
a pupil shall feel aggrieved by a decision of the School 
Board reviewing the initial placement o f that pupil he 
may petition the Court in this cause for review of such 
assignment.

If the plan is so amended within a reasonable time the 
School Board, so long as it carries out such plan, will be



42

deemed to be in compliance with the injunction heretofore 
entered on June 15, 1964.

E N TE R : October 29, 1964.
s /  T hom as J. M ic h ie

United States District Judge

November 5, 1964

The Frederick County School Board in regular session 
on November 5, 1964, unanimously adopted the following 
resolution upon motion o f Mr. Huyett G. Light and sec­
onded by Mr. Clyde Logan:

The Frederick County School Board hereby approves 
the amended plan for the operation of a non-biracial 
school system as included in these minutes.

A  copy of the plan included in the minutes is submitted 
herewith.

Attest:
E lizabeth  L. S heetz 

Clerk

A  PLAN  FOR TH E  ASSIGN M EN T OF CH ILDREN  
IN A  N O N -B IRA CIAL SCHOOL SYSTEM  IN 

FRED ERICK  COUNTY, VIRG IN IA

1. Frederick County shall be divided into school dis­
tricts, the territory of the districts being determined on a 
geographical location of each school serving the area and 
the feasibility of bus routes for the transportation of chil­
dren to each school, and the overcrowding of schools and 
schoolrooms.



43

2. Children entering the public' school system for the 
first time shall make application at the office of the principal 
o f the schoolhouse serving them, and shall there make ap­
plication for admission to the school serving their geo­
graphical area or other public schools within or without 
the Frederick County School System which they wish to 
attend or which their parents wish them to attend,

3. The School Board, through its Superintendent, shall 
thereupon make recommendation to the Pupil Placement 
Board for the Commonwealth of Virgina recommending 
the placement of said children in the school serving the 
area of each child making said application or to the other 
public schools within or without the Frederick County 
School System which the child or its parents wish the 
child to attend, provided the same is in accordance with 
and subject to the administrative policies of the School 
Board, such as school bus route, school crowding, ar­
rangements with other school divisions, tuition aid and 
other such administrative requirements.

4. The following procedures shall be used in assigning 
students presently within the school system or presently 
assigned to Douglas High School in the City of Winchester, 
Virginia, but who reside in Frederick County, Virginia:

(a ) In assigning pupils to classes the Superintendent of 
Schools shall conduct a registration prior to the close of 
the Spring session each year by mailing or otherwise send­
ing to the parent(s), guardian or other persons having 
custody of each pupil attending a school within the Fred­
erick County School System or whom they know to' be 
residing in Frederick County a registration form to be 
filled out and returned by a date specified thereon (such



44

specified date to be not less than seven days after such 
forms are sent out) and on which the parent(s), guardian 
or other persons having custody shall indicate the school in 
which they wish their child enrolled for the next ensuing 
school year. On or before the expiration of thirty days from 
the return date specified above the Superintendent shall 
assign pupils for the next ensuing school year and promptly 
notify the parent(s), guardian or other persons having 
custody of each pupil o f their child’s assignment, by 
written notice mailed or otherwise delivered to them at 
their last known address. Such notice shall also advise the 
parent(s), guardian or other persons having custody of 
such pupil of their rights to seek a review of such assign­
ment by the School Board or by this Court under the 
review procedures hereinafter set forth.

(b ) In making assignment, the Superintendent shall in­
sofar as practicable, assign or place pupils in accord with 
the wishes o f  the parent(s), guardian or other persons hav­
ing custody, as expressed on the registration form, taking 
into account the location and capacity of school buildings, 
shifts in population and practical attendance problems, 
provided only that the race o f the pupil concerned shall not 
be a consideration.

(c )  I f  a parent or guardian or person having custody 
of a pupil fails or refuses to fill out and return the regis­
tration form within the specified time, after it has been 
sent to them by the Superintendent, such pupil shall be 
assigned by the Superintendent to the school in which the 
child is then enrolled or to the school nearest the child’s 
place of residence or to such other school as the Superin­
tendent may determine without regard to the child’s race.



45

(d ) I f  any parent, guardian or other person having 
custody of a pupil shall feel aggrieved by the assign­
ment or placement o f their child by the Superintendent 
under the above provisions then such parent, guardian or 
other person may at any time within twenty days from 
the date of this notification of the pupil’s assignment make 
application in writing to the School Board for a review 
of such action, setting out therein the relationship of the 
applicant to the pupil and the specific reasons why such 
pupil should not attend the school in which placed and also 
setting out the particular reasons why such pupil should 
be placed in some other school to be named in such ap­
plication. The School Board shall review the initial place­
ment within twenty days after receipt o f such application 
for review and determine whether the placement sought 
in such application should be allowed and shall promptly 
enter an order either affirming the initial placement or 
changing the same. A  copy of the School Board’s order 
shall be furnished the applicant.

(e ) I f any parent, guardian or other person having- 
custody of a pupil shall feel aggrieved by a decision of the 
School Board reviewing the initial placement of that pupil 
he may petition the Court for review o f such asignment.

5. No administrative requirements shall be based on dis­
crimination against race, creed or color.



46

17 November 1964

Honorable Thomas J. Michie, Judge 
United States District Court 
For the Western District o f Virginia 
Charlottesville, Virginia 22902

Re: Brown v. Frederick County School Board 
C. A. 642— Harrisonburg

Dear Judge Michie:

This will acknowledge a copy of your November 16 
letter to Mr. Massie. W e do not alter our position that 
the unequivocal duty of the school board was and is to 
end racial discrimination. The assignment plan, read in 
the light of the factual situation, merely provides means by 
which this duty may be avoided or passed on to the parents 
of Negro children.

If, as your letter suggests, you propose to enter a further 
order, we request that you do so in time for us to include 
it ( if  necessary) in our notice of appeal from the order of 
October 29.

Very truly yours,

/ s /  S. W . T ucker 
of

T ucker & M arsh

H LM  :ews
cc: Mr. Joseph A. Massie

Mr. Leigh B. Hanes, Clerk



47

ORDER

The Court, by order entered on October 29, 1964, hav­
ing approved a proposed plan for the termination of dis­
criminatory practices in the Frederick County school system 
filed by the County School Board if amended in certain 
particulars and the Court having been advised that the plan 
has now been amended as suggested by the Court by resolu­
tion of the County School Board dated November 5, 1964 
and the plaintiffs having seen the amended plan and ob­
jected to the entry o f an order approving the plan and the 
Court having fully considered the plaintiffs’ objection, it is

ORDERED

that the plan of desegregation of the school system of 
Frederick County adopted by the defendant School Board 
on November 5, 1964 be and the same is hereby approved. 
So long as the defendant carries out such plan, it will 
be deemed to be in compliance with the injunction hereto­
fore entered on June 15, 1964.

E N TER : November 18, 1964.

s / T homas J. M ic h ie
United States District Judge

N OTICE OF A P PE A L 

filed November 27, 1964

Notice is hereby given that Brenda Elaine Brown, Pamela 
Brown, Sandra Brown, Cornell Jerome Brown, Julian 
Brown and Julia Brown, infants, by Julian E. Brown, their



48

father and next friend, and Julian E. Brown, plaintiffs, 
hereby appeal to the United States Court of Appeals for 
the Fourth Circuit from the orders entered by this Court 
on October 29, 1964 and on November 18, 1964 by which 
orders the Court approved an assignment plan adopted by 
the defendant County School Board of Frederick County on 
July 7, 1964 and amended on November 5, 1964.

/ s /  H enry  L. M arsh , III 
O f Counsel for Plaintiffs

S. W . T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

O tto L. T ucker 
901 Princess Street 
Alexandria, Virginia 

Counsel for Plaintiffs



.