Hamm v. Arlington County, VA School Board Brief for Appellants and Cross-Appellees

    BRIEF FOB APPELLANTS AND CROSS-APPELLEES

IN TH E

Dni led S t a t e s  Cour t  oi Appea l s
1 F ob t h e  F ourth  C ircuit

No. 7776

E. L E SL IE  HAMM, JR ., an  I n f a n t , by E. L E SL IE  HAMM, S R , 
His F a th er  and  N ex t  F rien d , e t  a h ,

Appellants,
v.

COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, 
VIRGINIA and RAY E. REID , D iv ision  S u per in ten d en t  

of S chools, A rlington  Co u n ty , V ir ginia ,
Appellees.

a n d

COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, 
V IRGINIA and  R A Y  E. REID, D ivision  S u per in ten d en t  

of S chools, A rlington  Co u n ty , V ir ginia ,
Cross-Appellants,

v.
RONALD DESKINS, M ICHAEL GERARD JONES, LANCE 
DW IGHT NEWMAN and  GLORIA DELORES THOMPSON,

Cross-Appellees.

Appeal and Cross-Appeal from the United States District Court 
For the Eastern District of Virginia, Alexandria Division

Of Counsel:

Robert L. Carter 
New York, N. Y.

J ames M. Nabr.it, J r. 
H ouston, Texas

H erbert O. Reid 
W ashington, D. C.

J ames A. Washington, J r. 
W ashington, I). C.

Oliver W. H ill
118 E as t L eigh S treet 
Biehmond 19, V irg in ia

F rank D. Beeves, and
J ames M. Nabrit, I I I  

473 F lo rid a  Avenue, N . W. 
W ashington 1, D, C.

S. W. Bobinson, I I I  
623 N orth  T h ird  S treet 
Biehmond 19, V irg in ia

Otto L . T ucker 
901 Princess S treet 
Alexandria., V irg in ia

Counsel fo r Appellants 
and Cross-Appellees.

P ress of  B yrc™ S . A d a m s , W a s h in g t o n , D . C .



Statement of the Case

INDEX
Page 
. 1

Questions Presented  ..............................................  3

Statement of the Facts:
I. Prior Proceedings.................................................  4

II. Statement of Facts on the Instant A ppeal.........  7
III. Historical Background .................................. .. 14

Argument:
I. The manner in which appellees acted upon ap­

pellants applications for admission to “ white” 
schools is racial discrimination in contravention 
of appellants constitutionally guaranteed rights 
to due process and equal protection of the laws .. 18

II. The court below erroneously considered appellees’ 
rejection of appellants applications for admission, 
enrollment and education in designated “ white” 
schools as “ administrative determinations” to be 
reviewed pursuant to the “ substantial evidence” 
doctrine and, having thus limited its scope of in­
quiry, failed to discharge its obligation to make 
an independent evaluation and determination of 
the facts decisive of appellants’ constitutional 
claim that their exclusion from said schools was 
because of race or co lo r......................................  28

III. Review and consideration of the Available and 
pertinent evidence compels the conclusion that the 
reasons advanced by appellees for their rejection 
of appellants’ applications for admission, enroll­
ment and education in “ white” schools were 
based upon considerations of race or color in con­
travention of appellants’ constitutionally guaran­
teed rights of due process and equal protection
and in violation of the prior orders of the court .. 33
Response to appellee’s cross-appeal....................  39



11 Index Continued

IV. The court’s previous judgment, affirmed on ap­
peal, that five appellants were qualified for and 
could not be refused admission to designated 
“ white” schools, may not be nullified, in subse­
quent proceedings for its enforcement, on the 
ground of appellants’ alleged disqualification for 
reasons available to but not urged by appellees 
in the prior proceedings......................................  41

V. The court below erred in postponing until the 
second semester of the school session of 1958-59, 
the effective date of its order restraining and en­
joining appellees from refusing to admit four of 
appellants in the “ white” school from which they

Page

had been improperly excluded ...........................  45
Conclusion .....................................................................  50

TABLE OF CITATIONS
Cases :

Aaron v. Cooper, F.2d , (8th Cir. No. 16094,
10 November 1958) .............................................. 26,35

Adkins v. School Board of the City of Newport News,
148 F. Supp. 430 (E.D.Va. 1957), aff’d 246 F.2d
325 (4th Cir. 1957) .................................................  15

Baltimore & Ohio RR Co. v. United States, 298 U.S.
349 (1936) .............................................................. 32

Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927) 42
Bolling v. Sharpe, 347 U.S. 497 (1954) ....................  24
Brown v. Board of Education, 347 U.S. 483 (1954) ;

349 U.S. 294 (1955) ................................... 24,34,47,49
Buchanan v. Warley, 245 U.S. 60 (1917) ............. 24,26
Carter v. School Board of Arlington County, 182 F.

2d 531 (4th Cir. 1950) .......................................... 39
Cassell v. Texas, 339 U.S. 282 (1950)........................ 26
Child Labor Tax Case, 259 U.S. 20 (1922) ............. 21
City and Town of Beloit v. Morgan, 74 U.S. (7 Wall.)

619 (1869)...........................    42
Clemmons v. Board of Education of Hillsboro, Ohio,

228 F. 2d 853 (6th Cir. 1956), cert den. 350 U.S.
1006 (1956) ..................................................... 35,49,50

Chicot County Drainage Dist. v. Baxter State Bank
308 U.S. 371 (1940) .............................................  43

C. I. R. v. Sunnen, 333 U.S. 591 (1948) ................  43



Index Continued iii

Page
Cooper v. Aaron, 358 U.S. 1 (1958) . . .  .24, 34, 45, 48, 49
Cromwell v. Sac County, 94 U.S. 351 (1877) .........  42
Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala., S.D.

1949) ......................................................................  21
Dowell v. Applegate, 152 U.S. 327 (1894) ................  42
Ex Parte Endo, 323 U.S. 283 (1944) .....................24,38
Feiner v. New York, 340 U.S. 315 (1951) ................  33
Gould y. Evansville & C. R. Co., 91 U.S. 526 (1876) 43
Grubb v. Public Utilities Commission of Ohio, 281

U.S. 470 (1930) ..................................................... 43
Hill v. Texas, 316 U.S. 400 (1942) ...........................  26
Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945) 32
Hopkins v. Lee, 19 U.S. (6 Wheat.) 109 (1821) . . . .  43
Korematsu v. United States, 323 U.S. 214 (1944) .. 23
Lane v. Wilson, 307 U.S. 268 (1939) ........................23, 25
Maggio v. Zeitz, 333 U.S. 56 (1948) ........................ 43
Marsh v. Alabama, 326 U.S. 501 (1946) ................  32
McCullough v. Virginia, 172 U.S. 102 (1898) .........  44
McKissick v. Carmichael, 187 F. 2d 948 (4th Cir.

1951), cert. den. 341 U.S. 951 (1951) ................ 38,49
McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950) .................................... ........................ 24,44,47
Meyer v. Nebraska, 262 U.S. 390 (1923) .................  38
Morgan v. United States, 304 U.S. 1 (1938) .........  30
NAACP v. Patty, 159 F. Supp. 503 (E.D.Va. 1958) 15
National Labor Relations Board v. Babcock & Wilcox

Co., 351 U.S. 105 (1956) ......................................  39
Ng Fung Ho v. White, 259 U.S. 276 (1922) ............. 32
Niemotko v. Maryland, 340 U.S. 268 (1951) .........  33
Nixon v. Herndon, 273 U.S. 536 (1927) ................  24
Norris v. Alabama, 294 U.S. 587 (1935) ................  32
Ohio Valley Water Co. v. Ben Avon Borough, 253

U.S. 287' (1920) .......................................... ' .........  32
Oriel v. Russell, 278 U.S. 358 (1929) ........................  43
Perry v. Cyphers, 186 F. 2d 608 (5th Cir. 1951) . . . .  26
Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . .  38
Pierre v. Louisiana, 306 U.S. 354 (1939) .............33,49
Radio Corp. of America v. United States, 341 U.S.

412 (1951) ........................................... .................  39
Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947), cert.

den. 333 U.S. 875 (1948) ......................................  26
Secretary of Agriculture v. Central Roig Refining

Co., 338 U.S. 604 (1950) ....................................... 39
Shelley v. Kraemer, 334 U.S. 1 (1948)...................25, 45



IV Index Continued

Sibbald v. United States, 37 U.S. (12 Pet.) 488 (1838) 42 
Sipnel v. Board of Regents, 332 U.S. 631 (1948) . .24, 47
Skinner v. Oklahoma, 316 U.S. 535 (1942) ............. 24
Smith v. Allwright, 321 U.S. 649 (1944) ................. 26
Smith v. Cahoon, 283 U.S. 553 (1931) ....................  23
Smith v. Texas, 311 U.S. 128 (1940) ........................ 26
Sonthern. Garment Mfr’s. Ass’n v. Fleming, 122 F

2d 622 (D.C. Cir. 1941) ........................ . . . . . . .  30
Sparrow v. Strong, 70 U.S. (3 Wall.) 97 (1866)__  21
Steele v. Louisville & Nashville R.R. Co., 323 U.S

192 (1944) .............................................................. 23
St. Joseph Stock Yards Co. v. United States, 298

Page

U.S. 38 (1936) ............................................. . 32
Sweatt v. Painter, 339 U.S. 629 (1950) ................ 24,47
Terry v. Adams, 345 U.S. 461 (1953) ....................  26
The Haytian Republic, 154 U.S. 118 (1894) ............. 42
Thompson v. School Board of Arlington County, 144 

F. Supp. 239 (E.D.Va. 1956), aff’d, 240 F. 2d 59 
(4th Cir. 1956), cert. den. 353 U.S. 910 (1957) ;
159 F. Supp. 567 (E.D.Va. 1957), aff’d, 252 F. 2d 
929 (4th Cir. 1958), cert. den. 356 U.S. 958
(1958) ..............................................................2, 5, 6, 25

United States v. Munsingwear, Inc., 340 U.S. * 36
(1950) .........................................    43

United States v. Peters, 9 U.S. (5 Cranch) 115
(1809) .............................................................   44

Washington Bridge Co. v. Stewart, 44 U.S. (3 How )
413 (1845) ................................................     42

Watts v. Indiana, 338 U.S. 49 (1949) ....................21 32
Yick Wo v. Hopkins, 118 U.S. 356 (1886) . .24, 34, 36,’ 37

S outhern* S chool N e w s :

Vol. 2, No. 8, Feb. 1956, p. 1 4 ..................................  15
Vol. 2, No. 9, March 1956, p. 1 4 ........... 16
Vol. 2, No. 10, April 1956, p. 13 ......................”  ”  17
Vol. 2, No. 12, June 1956, p. 1 3 ............................... 18



IN  THE

Uni ted S t a t e s  Cour t  oi Appeals
F ob t h e  F ourth  Circuit

No. 7776

E. LE SL IE  HAMM, JR ., an  I n f a n t , by E. L E SL IE  HAMM, SR., 
His F a th er  and N ex t  F rien d , et  a l .,

Appellants,
v.

COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, 
VIRGINIA and  RAY E. REID , D iv ision  S u per in ten d en t  

of S chools, A rlington  Cou n ty , V ir ginia ,
Appellees.

and

COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, 
VIRGINIA and RAY E. REID , D ivision  S u p er in ten d en t  

of S chools, A rlington  Cou n ty , V ir ginia ,
Cross-App ellants, 

v.
RONALD DESKINS, M ICHAEL GERARD JONES, LANCE 
DW IGHT NEWMAN and  GLORIA DELORES THOMPSON,

Cross-Appellees.

BRIEF FOR APPELLANTS AND CROSS-APPELLEES

Appeal and Cross-Appeal from the United States District Court 
For the Eastern District of Virginia, Alexandria Division

STATEMENT OF THE CASE

On 31 July 1956 the court below entered an Order of 
Injunction restraining and enjoining appellees from refus­
ing on account of race or color to admit, enroll and educate 
in any school under their operation, control, direction or 
supervision (i.e. the public schools of Arlington County, 
Virginia) any child otherwise qualified. A Supplemental



2

Decree of Injunction entered by the court below on 14 
September 1957, restrained and enjoined appellees from 
refusing to admit, enroll and educate these seven children 
in the schools to which they had applied, effective 23 Sep­
tember 1957. Both of these prior judgments were affirmed 
on previous appeals to this Court, and petitions for writs 
of certiorari were denied.

The instant and third appeal in this case is from the 
Supplementary Order of Injunction entered by the court 
below on 22 September 1958, upon appellants’ complaint 
in intervention and motion for further relief under the 
prior orders, in which the court (i) approved, as being 
based upon valid evidence of disqualification and untainted 
by considerations of race or color, appellees’ rejection of 
the applications by twenty-five appellants, including five 
of the seven previously ordered admitted, for admission 
to designated “ white” schools; and (ii) delayed until the 
commencement of the second semester of the current school 
term, the effective date of its decree insofar as it restrained 
and enjoined appellees from refusing to admit, enroll and 
educate four of the appellants in the “ white” Stratford 
Junior High School, the rejection of whose applications 
by appellees the court found unjustified by the evidence.

The appellees have filed a cross-appeal from the order 
of the court below restraining and enjoining them from 
refusing to admit the four appellants in Stratford Junior 
High School, and a separate brief in connection with that 
cross-appeal. In lieu of a separate responsive brief, a 
designated portion of this brief, infra, is addressed to 
the issues presented by the cross-appeal.

The previous decisions in the instant case have been 
reported sub nom., Thompson v. School Board of Arlington 
County as follows: 144 F. Supp. 239 (E.D. Va. 1956), 
aff’d, 240 F. 2d 59 (4th Cir. 1956), cert. den. 353 U.S. 910 
(1957); 159 F. Supp. 567 (E.D. Va. 1957), aff’d, 252 F. 2d 
929 (4th Cir. 1958), cert, den., 356 U.S. 958 (1958). The 
opinion of the court below is reported at 166 F. Supp. 529 
and included in the Joint Appendix herein at pp. 11-24.



3

QUESTIONS PRESENTED

The questions presented on this appeal are as follows:
1. Whether appellees’ action in refusing to admit, enroll 

and educate appellants in the “ white” schools to which 
they applied, on the basis of appellees ’ ex parte determina­
tion, that appellants were not qualified for admission, en­
rollment and education in said schools by the application 
of standards not similarly applied to white pupils admitted, 
enrolled and educated in the same schools, contravened 
appellants’ rights to due process and equal protection of 
the laws under the Fourteenth Amendment.

2. Whether the court below erred in failing and refusing 
to exercise its independent judgment on those issues of 
fact which were decisive of appellants’ claim that appellees 
refused, on account of race or color and in contravention 
of appellants’ constitutional rights, to admit, enroll and 
educate appellants in the “ white” schools for which they 
applied.

3. Whether the court below erred in failing and refusing 
to hold, upon the available and pertinent evidence, that the 
reasons advanced by appellees for their rejection of appel­
lants’ applications for admission, enrollment and education 
in the schools to which they had applied were based upon 
considerations of race or color in contravention of appel­
lants’ constitutionally guaranteed rights of due process 
and equal protection dnd in violation of the prior orders 
of the court.

4. Whether five appellants, previously found by the 
court to be qualified and ordered admitted and enrolled 
in designated “ white” schools, can now be refused admis­
sion and enrollment in said schools, after appeal and 
affirmance of the court’s order, on the basis of their alleged 
disqualification for reasons available to but not urged by 
appellees until said appellants sought enforcement of the 
prior order in the proceedings below".

5. WThether the court below erred in postponing, until 
the commencement of the second semester of the 1958-1959



4

school term (2 February 1959), the effective date of its 
order, entered (22 September 1958) two weeks after the 
beginning of the first semester (8 September 1958), re­
straining and enjoining appellees from refusing to admit, 
enroll and educate four appellants in the “ white” schools 
from which they unlawfully had been excluded.

These questions are raised in the record by the court’s 
Supplementary Order of Injunction entered 22 September 
1958 (JA 224), based upon its Findings of Fact and Con­
clusions of Law entered 17 September 1958 (JA 11-24), 
denying the relief sought in the Motion for Further Relief, 
filed 26 August 1958 (JA 1-5) in behalf of eight of the 
present appellants then parties to the suit (A, B, C, D, E, 
1, 13, and 22),1 and the Complaint in Intervention, filed 
26 August 1958 in behalf of twenty-two Negro children 
not theretofore parties (2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 14, 15, 
16, 17,2 18, 19, 20, and 21).

STATEM ENT OF THE FACTS

The consideration and determination of this appeal 
requires a review of the background and prior proceedings 
in this case, as follows:

I. PRIOR PROCEEDINGS

On 31 July 1956, the court below, acting upon the com­
plaint of plaintiff Negro children of school age resident 
in Arlington County, Virginia, and their parents or 
guardians, for themselves and others similarly situated, 
entered the following Order Granting Injunction (R. 
179, 181) :

. . . A djudged , Ordered, an d  D ecreed th a t  effective 
a t  th e  tim es  a n d  su b jec t to  th e  co n d itio n s h e re in a f te r

1 Throughout the  testim ony, the exhibits and the  c o u rt’s F ind ings of F a c t 
and Conclusions of Law, the indiv idual pupil-p lain tiffs are referred  to  by 
letters , iden tify ing  those who were ordered adm itted  to designated “ w h ite”  
schools in  Septem ber 1957, and by num bers iden tify ing  those whose admission 
to designated ‘ ‘ white ’ ’ schools was before the court fo r th e  first tim e. The 
nam es of these individual p lain tiffs1 a re  re la ted  to the  le tte rs  and  num bers 
in  a  “ Code fo r Spot M ap s” ( JA  284-285.)

2 This p la in tiff has le f t  th e  ju risd ic tion  and, therefore, is no t included 
am ong the  p resen t appellants.



5

stated, the defendants, their successors in office, agents, 
representatives, servants and employees be, and each 
of them is hereby, restrained, and enjoined from re­
fusing on account of race or color to admit to, or 
enroll or educate in, any school under their operation, 
control, direction, or supervision any child otherwise 
qualified for admission to, and enrollment and educa­
tion in, such school.

# # # #
. . . the injunction hereinbefore granted should be, 

and it is hereby made, effective in respect to elementary 
schools at the beginning of the second semester of the 
1956-1957 session, to wit, January 31, 1957, and in 
respect to junior and senior high schools at the com­
mencement of the regular session for 1957-1958 in 
September 1957.

This judgment was affirmed by this Court on 31 December 
1956 (R. 188). Writ of certiorari was denied 25 March 
1957. See 353 TI.S. 910.

No Negro pupils having been admitted to or enrolled 
in the theretofore white schools pursuant to this judgment, 
on 29 July 1957, the court below entered an order on 
plaintiffs’ motion to amend the original decree, as follows 
(R, 206):

That the injunction specified in said judgment become 
in respect to both elementary and secondary schools 
effective at the commencement of the regular school 
term for 1957-1958 commencing in September 1957.

On 4 September 1957, the court below, in granting plain­
tiffs’ motion for further relief, found that

Seven Negro children of school age were refused 
admission as pupils in the public schools of Arlington 
County, Virginia on the opening day of the current 
session. . . . (R. 239)

# # * #
Nothing in the evidence indicates that any of the 

plaintiffs is not qualified in his studies to enter the 
school which he sought to enter . . . Anyway, no



6

intimation of disqualification appeared as to any ap­
plicant. (R. 243-244)

A review of the evidence is convincing that the only 
ground . . .  for the rejection of plaintiffs was that they 
were of the Negro race. The rejection was simply 
the adherence to the prior practice of segregation. 
No other hypothesis can be sustained in any of the 
seven instances. . . . (R. 244)

Whereupon, on 14 September 1957, the court below entered 
a Supplemental Decree of Injunction, as follows (R. 248- 
249) :

Ordered th a t  th e  d e fen d an ts , th e ir  su ccesso rs  in  
office, a g e n ts , re p re s e n ta tiv e s , s e rv a n ts , a n d  em ployees 
be, and  each of th em  is  h e reb y  r e s tr a in e d  a n d  en jo in ed  
fro m  re fu s in g  to  ad m it th e  sa id  m o v an ts  to , o r  en ro ll 
a n d  ed u ca te  th em  in, th e  sa id  schools to  w hich  th e y  
h av e  m ad e  a p p lic a tio n  fo r  ad m issio n , th a t  is :

# # # *
3. Robert A. Eldridge III in the Fillmore School or 

the Patrick Henry School;
4. Oeorge Tyrone Nelson in the Stratford Junior 

High School; or the Swanson Junior High School;
5. E. Leslie Hamm, Jr. in the Stratford Junior 

High School or the Swanson Junior High School;
6. Louis George Turner in the Swanson Junior High 

School;
7. Melvin H. Turner in the Swanson Junior High 

School; upon the presentation by the said movants of 
themselves for admission, enrollment and education 
in the said schools commencing at the opening of said 
schools on the morning of September 23, 1957.

This injunction was suspended pending appeal (R. 256) 
and, on 12 February 1958, was affirmed by this Court (R. 
399). Writ of certiorari was denied 19 May 1958. See 
356 H.S. 958.

Against this background, we present the factual basis 
for the instant appeal.



7

II. STATEMENT OF FACTS ON THE INSTANT APPEAL

Subsequent to the close of the 1957-58 school term, appel­
lants, Negro pupils attending the Arlington County, Vir­
ginia, public schools, through their parents and guardians, 
applied to the appellees, the School Board and the Division 
Superintendent of Schools of Arlington County, Virginia, 
for admission and enrollment at the commencement of the 
next school term on 4 September 1958 in designated schools 
theretofore maintained exclusively for white students, “ or 
to such other school his [or her] assignment to which may 
properly be determined on the basis of objective considera­
tions without regard to his [or her] race or color.” This 
group of thirty pupils included five of the seven students 
who had been ordered admitted to designated schools by 
the Supplemental Order of Injunction entered by the court 
belowT on 14 September 1957, supra.

The parents or guardians of each of these infant appel­
lants received a letter dated 7 August 1958 from the Pupil 
Placement Board of the Commonwealth of Virginia request­
ing that they appear with their children for personal 
interviews to be conducted by that agency [PL Ex. 7, 
T. 359]. All declined to attend the interviews, but they 
again requested the appellees to assign their children in 
accordance with their previous requests, offering to co­
operate in furnishing necessary information to appellees 
[Def. Ex. 13, T. 356]. Subsequently, the appellees and 
the Pupil Placement Board jointly summoned the appel­
lants to personal interviews [PI. Ex. 8, T. 359]. Each of 
the pupils, accompanied by one or both parents, attended 
one of the interviews which wrere conducted jointly by the 
state and local authorities on 18, 19, and 29 August 1958, 
and each applicant was subsequently notified by appellees 
that their requests (for assignment to ‘‘white’’ schools) 
had been denied by the Pupil Placement Board.

On 26 August 1958, twenty-two of the applicants who 
had not previously been parties to this action filed a Com­
plaint in Intervention (E. 408), which complaint, as did 
the Motion for Further Belief simultaneously filed in be­



8

half of the eight applicants already parties herein (JA 1-5), 
prayed for specific injunctive relief in enforcement of 
the previous orders entered herein. On the same day 
appellees filed a Report and Request for Guidance, describ­
ing the course of events subsequent to the filing of the 
Mandate and Opinion of this Court on the previous appeal, 
and stating that they intended to make no assignments of 
the appellants unless directed to do so by the court below 
(JA 6-9).

On the evening of 28 August 1958, having studied and 
familiarized themselves, upon advice of counsel, with sum­
maries of data prepared from the cumulative folders of 
each of the appellants, appellee School Board met in closed 
session and, after discussion, determined that the appli­
cations submitted by appellants fell into five different prob­
lem areas on the basis of which, by vote of appellee School 
Board, each of the applications would be rejected if the 
court should determine that appellees had the legal re­
sponsibility for assigning appellants to Arlington County 
public schools (JA 43-44). Appellees’ “ proposed” rejec­
tion of appellants’ applications for admission to “ white” 
schools and the reasons therefor were first disclosed to 
appellants and the public on 2 September 1958 at the 
hearing before the court below. {Ibid.)

The five problem areas into which appellants’ applica­
tions fell and on the basis of which all were rejected by 
appellee School Board were described as follows: I. At­
tendance Area; II Overcrowding at Washington and Lee 
High School; III Academic Achievement; IV Psycho­
logical Problems; and V Adaptability {Ibid.).

The procedure followed by appellees in the consideration 
and rejection of appellants’ applications, was a procedure 
developed and used only with respect to those pupils who 
sought to enter schools attended by pupils of the opposite 
race (JA 32, 74-78).

The evidence presented at the hearing with specific 
reference to appellees’ consideration of each of the afore­



9

mentioned problem areas as reasons for rejecting appel­
lants’ applications is as follows:

Attendance Area

Rejection of the applications of eleven appellants (2, 3, 
4, 9, 14, 15, 17, 18, 23, 24, 25) was voted by appellee School 
Board on the basis of problems related to attendance area 
(JA 44-49). These eleven pupils were residents of the 
attendance area prescribed for the Hoffman-Boston School, 
and were reassigned by the Pupil Placement Board and 
appellees to that school. The Hoffman-Boston School has 
heretofore enrolled and now enrolls Negro pupils only 
(JA 90-91, 99-100), and houses both elementary and sec­
ondary grades. The boundaries of this attendance area 
were established prior to this litigation (JA 90), and for 
the specific purpose of serving the Negro pupils within 
its confines (R. 374). The portion of Arlington County 
embraced by the Hoffman-Boston attendance area bound­
aries is occupied almost exclusively by Negroes, but the 
few white pupils residing therein are assigned to schools 
other than Hoffman-Boston (JA 91-92, 142-146).

Four of the pupils affected by this reason for rejection 
are high school students seeking admission to Wakefield 
School. For high school zoning purposes, the Hoffman- 
Boston area forms an elongated enclave within the Wake­
field (“ white” ) attendance area (Def. Ex. 7, T. 101). The 
seven remaining pupils sought admission to Kenmore, 
Gfunston, and Thomas Jefferson (“ white” ) Junior High 
Schools. These schools are located closer to their respec­
tive residences than Hoffman-Boston, the latter school 
being located at one end of the district and their residences 
at the other end (Def. Ex. 6, T. 101).

Each of the rejections based upon Attendance Area was 
approved by the court below.

Overcrowding at W ashington and Lee High School

Five pupils (D, 1, 12, 19, 21) were denied assignment to 
the Washington and Lee (“ white” ) High School on the



10

ground that Washington and Lee was overcrowded (JA 
50, 53). These students are residents of an area referred 
to as the North Hoffrnan- Boston area. This area which 
was entirely surrounded by the Washington and Lee at­
tendance area, and was widely separated from the Hoffman- 
Boston school and Hoffman-Boston attendance area above- 
described, was reported to have been abolished for assign­
ment purposes by the appellee School Board at the same 
meeting at which the appellee School Board considered and 
rejected appellants’ applications. The area was made 
a part of the Washington and Lee attendance area for 
high school students and a part of the Stratford attendance 
area for junior high school students (JA 46, 48).

For the 1958-59 school term Washington and Lee had 
a planned enrollment of 2600 and a capacity of 2000; 
Wakefield had a planned enrollment of 2540, with a capacity 
of 2000; and Hoffman-Boston had a combined elementary 
and secondary enrollment of 575, with a capacity of 375, 
increased by 100 through the use of temporary facilities, 
and with facilities for 100 more students under construc­
tion and estimated for completion in January 1959 (PI. 
Ex. 5, JA 225).

In a prior action unrelated to appellants’ request for 
admission to Washington and Lee, the appellee School 
Board had assigned all 10th grade students residing in the 
northwestern sector of the Washington and Lee attend- 
and area, numbering 250, to attend the Wakefield School, 
in order to equalize the burden of overcrowding between 
Washington and Lee and Wakefield, pending completion 
of a proposed new high school (JA 50-51). The area from 
which these 250 white 10th grade students were siphoned- 
off from Washington and Lee to Wakefield abuts but 
does not embrace the “ abolished” North Hoffman-Boston 
attendance area where the affected appellants reside (JA 
53). The five affected appellants, four of whom were 
10th grade students, were assigned to the Hoffman-Boston 
School.



11

The court below approved this reason as the basis for 
rejection of these five requests for assignment to Washing­
ton and Lee, or other appropriate “ white” high school.

Academic Achievement

Twenty-two appellants (B, C, D, E, 2, 3, 4, 5, 6, 8, 9, 10, 
11, 12, 14, 15, 17, 21, 22, 23, 24, 25) were refused admission 
and enrollment, in “ white” schools on the basis of academic 
accomplishment (JA. 54-62). These included all of the 
pupils rejected for reasons of Attendance Area and Over­
crowding except for Nos. 1, 18, and 19, in addition to nine 
others not previously mentioned.

The data used by the Board in connection with this reason 
for rejection consisted of the latest available scores at­
tained by the appellants on the California Achievement 
Test. This test is given annually in the county schools to 
children in grades 3, 5, 7, and 9 (JA 54). The individual 
pupil’s test scores were compared with statistical data indi­
cating the median achievement levels of typical junior and 
senior high school classes at Ho f'f man -Boston (Negro) 
School, and with similar data for Stratford Junior High 
and Washington and Lee Senior High (white) Schools. 
This data indicated that in the two all-white schools seventy 
percent of the pupils scored above the national norm, 
while at Hoffman-Boston only twenty percent of the 
students scored above the national norm (JA 56). In 
Arlington County the median score at the white schools 
ranged above and at the Negro school below the national 
norm (JA 55).

The applicants who had scored below the national norm 
and who, consequently, fell below the median score of the 
typical class at the white school to which they applied 
were rejected. The scores of these applicants fell within 
the lower one-third of the typical white class to which they 
were seeking admission (JA 116).

An expert witness called by appellants testified that the 
California Achievement tests are extremely limited as a 
means of determining the proper grade placement of pupils



12

(JA 148) ; that the national norm published by the authors 
of the test does not represent a minimum standard of 
achievement for pupils in a particular grade because fifty 
percent of all pupils will score above and fifty percent 
below this median score or national norm (Ibid.) • and 
that within any typical class of a given grade tested, 
there would normally be a variation of scores within the 
middle sixty percent of such class of two to three years 
in grade equivalent (JA 148-149). This witness concluded 
that, upon examination of the school records of the appel­
lants, all but three of them scored within the range of 
achievement of this middle sixty percent (JA 167), and 
were qualified for advancement to the next grade in any 
school (JA 153-166) ; and that the three students who 
scored within the bottom twenty percent probably needed 
remedial work (JA 167-171). The witness stated that in 
his opinion the gap between the achievement of pupils in 
segregated Negro and white schools tended to increase with 
the passage of time, and thus to be greater in the higher 
than in the lower grades (JA 171).

The court below approved the rejections based upon the 
Academic Achievement reason and the consequent assign­
ment of these appellants to Hoffman-Boston School.

Psychological Problems

Seven appellants (C, 1, 2, 6, 8, 21, 24) who were also 
disqualified for admission to the “ white” schools they 
sought to enter for one or both of the reasons described 
above, where rejected because of alleged psychological 
problems (JA 65). The appellee School Board explained 
that it had relied upon the conclusions of the State Di­
rector of Psychological Services, which conclusions were 
based upon his examination of appellants’ school records. 
He did not testify, but the report he submitted to the 
appellee School Board stated that the records of the pupils 
discussed evidenced such things as “ instability”, “ lack 
of self-control” , “ extreme shyness” , etc., and he con­
cluded that it would be unwise to subject these pupils to 
the pressures of attending a school with children of another



13

race (JA 64-65 and Def. Ex. 10, JA 286). Accordingly, 
these appellants would remain at Hoffman-Boston School.

An expert witness called by appellants testified that there 
was insufficient data in the School Board’s cumulative 
records on the individual pupils to justify any clinical 
judgment with respect to their psychological problems 
(JA 211-213), but that, on the evidence available, conclu­
sions opposite to those made by appellees were justified 
(JA 198-199).

With respect to Psychological Problems, the court below 
concluded as follows (JA 21):

3. The reasons given for disqualifying the seven 
students upon the test of the Psychological Problems 
obviously give consideration to race or color. On 
the other hand, the rejection was not due solely to these 
features. The court, however, does not rule on the 
evidence to be accorded this test because the evidence 
before it upon the point is too scant. . . . Therefore, 
this test must be disregarded for this case.

Adaptability

The remaining appellants, who had not been disqualified 
for any of the foregoing reasons (A, 7, 13, 16, 20), were 
rejected by the School Board for lack of adaptability to 
new situations (JA 66). The appellee Division Super­
intendent of Schools defined this reason as the ability to 
accept and conform to the new and different educational 
environment occasioned by entering a school predominantly 
occupied by pupils and teachers of another race (JA 70-72). 
The sole evidence upon which the appellee School Board 
acted in the application of this “ standard” was the Super­
intendent’s opinion that, if these five students were ad­
mitted and enrolled in the “ white” schools they sought 
to enter, they would lose the position of leadership and 
scholastic superiority which they enjoyed in the all-Negro 
schools they attended, as well as their “ sense of belong­
ing”, that this loss would be discouraging and possibly 
emotionally disturbing to them (Ibid.), and that only 
superior gifted Negro children could adapt to desegregated



14

schools (JA 71, 80-81). An expert witness for the appel­
lants expressed a contrary view (JA 213-218).

The court below concluded that there was no ground in 
the record to bar four appellants (7, 13, 16 and 20) from 
the school to which they had applied for the Adaptability 
reason. However, as to one appellant (A), the court 
said (JA 23):

. . .  In certain circumstances, undoubtedly, the line 
of demarcation between it [adaptability] and racial 
discrimination can he so clearly drawn, that it can be 
the foundation for withholding a transfer. Pupil A 
exemplifies this hypothesis.

At the conclusion of the hearing before the court below, 
the court stated that it had no objection to the operation 
of the schools on the basis of the assignments proposed by 
appellees (i.e. to Hoffman-Boston School) pending the 
court’s decision (JA 222). The 1958-1959 school term com­
menced on 8 September 1958, the School Board having 
once postponed the opening scheduled originally for 4 
September 1958, Although the court below in its Findings 
of Fact and Conclusions of Law, filed on 17 September 
1958, disapproved appellees’ rejection of the applications 
by four of the appellants for admission and enrollment in 
the “ white” Stratford Junior High School, it postponed 
until the commencement of the second semester of the 
current school term in January 1959,3 the effective date of 
its decree, entered 22 September 1958, restraining and en­
joining appellees from refusing to admit, enroll and educate 
these four appellants in said school (JA 11-12, 224-225)

III. HISTORICAL BACKGROUND

Following the decision of the Supreme Court in Brown 
v. Board of Education the official, declared and operative 
policy and practice of the government of the Common­
wealth of Virginia became and continue to be “ massive 
resistance” to desegregation. The first official action in 
furtherance of this policy and practice was the Governor’s

3 The second sem ester is  scheduled to commence on 2 F eb ru ary  1959.



15

appointment of the Gray Commission on Public Education, 
to study and make recommendations concerning public 
school desegregation. That Commission’s report was sub­
mitted in November 1955. The nature of that report and 
the subsequent history of “ massive resistance” is exhaus­
tively treated in NAACP v. Patty, 159 F. Supp, 503, 511- 
518 (E. D. Va. 1958). See also Adkins v. School Board of 
the City of Newport News, 148 F. Supp. 430, 434-442 
(E.D. Ya. 1957), aff’d. 246 F. 2d 325. (4th Cir. 1947).

Pursuant to the “ massive resistance” policy, the 
legislature of the Commonwealth of Virginia, acting upon 
recommendations by the Governor, has enacted twenty-odd 
statutes designed and intended to thwart desegregation, 
including provisions—already invoked—for the closing of 
schools desegregated by court order, cutting-off funds for 
such schools, and creating the Pupil Placement Board. See 
Adkins v. School Board of the City of Newport News, and 
NAACP v. Patty, supra.

The “ massive resistance” policy has had a direct bear­
ing and impact upon Arlington County, Virginia and 
appellees, as is indicated by the following excerpts from 
the Southern School News:

Item 1—Southern School News, Vol. 2, No. 8, Feb. 1956, 
p. 14:

The Arlington County School Board has adopted a 
plan to integrate county schools . . .

# *  ^  #

The plan presented by Supt, T. Edward Butter, 
and unanimously approved by the Board, based on 
the assumption that the Gray Commission proposals 
will become law. The Gray plan is designed to prevent 
enforced integration but not to prevent a locality from 
integrating if it chooses to do so.

# # # *
Here is the text of the statement adopted by the Arling­

ton Board:
“ The Arlington School Board interprets the Gray 

Commission recommendation and the vote Monday, 
Jan. 9, 1956, for the Constitutional Convention in Vir­
ginia, to mean that no child in Virginia shall be forced



16

to attend a school in which children of both white and 
Negro races are enrolled. The Arlington public 
schools as a division of the public school system of 
Virginia will comply with any action taken by the 
State Legislature.

The Arlington School Board also believes that legis­
lation will be enacted to carry out the proposed Gray 
Plan and that in order to meet the Supreme Court’s 
decree for ‘deliberate speed’ desegregation, it will be 
necessary to provide schools, in which children of both 
races may attend classes.
_ “ Assuming that the legislature will enact the provi­

sions recommended by the Gray Commission, the 
Arlington School Board adopts the following policy:

“ Integration will be permitted in certain elementary 
schools in the Fall of 1956.

‘‘The Arlington School Board will continue the 
policy of determining elementary school attendance 
areas on a geographical basis.

“ Children whose parents object to their attendance 
at an integrated school will be assigned to a school 
that is not integrated.

“ Parents who ask to have their children assigned 
to schools outside their own school district will be 
responsible for their children’s transportation to and 
from school.

“ Certain Arlington junior high schools will be inte­
grated in the fall of 1958; certain senior high schools 
will be integrated in the fall of 1958. For these grade 
levels, also, a plan will be put into effect permitting 
transfer of those students whose parents object to 
their attending integrated schools.

“ Any child in Arlington may attend a non-segre- 
gated school if his parents so desire. The Arlington 
School Board does not anticipate the necessity of pay­
ing tuition grants for children to attend private 
schools.”

Item 2—Southern School News, Vol. 2, No. 9, Mar. 1956 
p. 14:

_ Overwhelming approval of an interposition resolu­
tion and consideration of another resolution to con­
tinue segregation during the 1956-57 school year high­
lighted February’s deliberations of the Virginia Gen­
eral Assembly.



17

The Arlington County School Board’s announced 
intention of beginning desegregation next fall . . . also 
touched^ off a bitter controversy in the Assembly.

The fight revolved around a bill which would take 
away from Arlington its right to elect its school board 
members by popular vote. Arlington is the only county 
in the State in which school board members are 
elected.

*  *  # #

By a vote of 90-5 in the House of Delegates and 36-2 
in the State Senate, the General Assembly on Feb. 1 
adopt a resolution “ interposing the sovereignty of 
Virginia against encroachment upon the reserved 
powers of this state, and appealing to sister states to 
resolve a question of contested power.

 ̂  ̂ #
The Arlington county controversy in the Assembly 

centered around a bill introduced by delegate Frank 
Moncure of Stafford County (a county with 14% 
Negro school enrollment) to take from Arlington its 
privilege of electing its school board members.

# # # ■%.

Delegate Moncure’s bill, as introduced, would pro­
vide for replacing the present board members by the 
system used in most Virginia counties. Under this 
system, the Circuit Judge appoints a school trustee 
electoral board, which in turn appoint the school board.

A House committee, however, voted to amend the 
Bill to permit appointment of the school board by the 
county’s governing body, the Arlington County Board. 
This is the system used in all Virginia cities and in a 
few counties.

Item 3—Southern School News, Vol. 2, No. 10, April 
1956, p. 13:

Meanwhile in addition to approving an interposition 
resolution—the Assembly’s other action dealing with 
the segregation issue included:

1) Arranging for a Constitutional Convention, sub­
sequently held March 5-7, to amend the State Constitu­
tion to permit the payments of public money tuition- 
grants to children attending private non-sectarian 
schools.



18

2) Adoption of a resolution opposing racially-mixed 
competition involving public school athletes.

3) Adoption of a bill to take away from Arlington 
County residents the power to elect their school board. 
The Arlington Board is the only one in Virginia to 
announce definite plans to begin integration next 
school year.

Item 4—Southern School News, Vol. 2, No. 12, June 1956, 
p. 13:

Virginia has temporarily shelved—and conceivably 
may abandon—its much-publicized Gray Plan for solv­
ing the School Segregation problem.

* * * *
Suits seeking to force an end to racial segregation 

in the schools at the start of the fall term have now 
been filed against five Virginia localities—Prince Ed­
ward and Arlington Counties and the cities of Nor­
folk, Newport News, and Charlottesville. All cases 
are in Federal District Courts.

In this context, appellants submit and urge the Court’s 
consideration of their contentions in this case.

ARGUMENT
I.

THE MANNER IN WHICH APPELLEES ACTED UPON APPEL­
LANTS' APPLICATIONS FOR ADMISSION TO "WHITE" 
SCHOOLS IS RACIAL DISCRIMINATION IN CONTRAVEN­
TION OF APPELLANTS' CONSTITUTIONAL GUARANTEED 
RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF 
THE LAWS.

A. In the attem pted exercise of their right to enjoy educational 
opportunities provided by appellees, appellants w ere su b ­
jected to terms and  conditions based  solely upon race or 
color.

The elimination of race or color as a factor in the assign­
ment of pupils to the public schools of Arlington County, 
Virginia was decreed by the court below in July 1956. In 
September 1957 the court below made a judicial finding 
that appellees were still adhering to the prior practice of 
racial segregation. As late as 26 August 1958', appellees



19

made the following admissions: (1 ) that they had solicited 
and referred to the State Pupil Placement Board all appli­
cations from pupils seeking to enjoy the constitutional 
rights decreed by the court; (2) that they had cooperated 
with the Pupil Placement Board in furnishing information 
and in interviewing these applicants; (3) that the Pupil 
Placement Board had rejected all of these applications; 
and (4) that they had made and would make no assign­
ments of these applicants and would admit them only to 
the [Negro] schools to which they had been assigned by 
the Pupil Placement Board, unless directed otherwise by 
the court. This course of action appellees ‘ ‘ felt ’ ’ was com­
pliance with the order of the court. (Report and Request 
for Guidance, JA 7-9)

Meanwhile, on 26 August 1958, appellants filed their 
Complaint in Intervention and Motion for Further Relief, 
alleging, in effect, that appellees were still adhering to 
their prior practice of racial segregation. Consequently, 
on 28 August 1958—five days before said complaint and 
motion and appellees’ report and request for guidance 
were scheduled to be heard by the court and seven days 
before the scheduled commencement of the 1958-1959 school 
term—appellee School Board met in closed session and, 
having studied and familiarized themselves, on advice of 
counsel, with summaries of information pertaining to the 
30 applications of Negro pupils seeking admission to 
“ white” schools, found that these 30 cases fell into certain 
“ groupings” or “ problem areas”, upon the basis of which 
the appellee School Board voted to reject each of appel­
lants’ applications (JA 43-44).

It is vital to an understanding of this proceeding to 
note that these “ problem areas”, “ groupings”, “ criteria”, 
“ tests” , or “ categories”, as they are referred to, were 
not a “ plan”, “ assignment regulations”, or “ formal cri­
teria” adopted, promulgated and published by appellees 
in the regular course and discharge of their lawful duties 
and responsibilities in the operation and maintenance of 
the Arlington County public schools. These “ problem 
areas” were formulated and used by appellees solely as



20

reasons to explain or justify their rejection of the thirty 
applications which were involved in the pending litigation. 
They were first disclosed and tendered to the court at the 
hearing below, not as formally adopted ‘ ‘ criteria for as­
signment ’ ’ applicable to all pupils seeking admission to a 
school other than that in which he had theretofore been en­
rolled, but as the basis upon which appellees would refuse 
to assign the thirty appellants to the schools in which they 
sought admission.

Thus, as appellees appeared before the court below on 
2 September 1958, racial segregation in the public schools 
of Arlington County, Virginia, remained an accomplished 
fact. This result is consistent with the Commonwealth 
of Virginia’s declared official policy of “ massive re­
sistance” to desegregation and appellees ’ prior judi­
cially declared adherence to the maintenance and operation 
of racially segregated schools.

The pattern of “ different” treatment afforded to the 
Negro appellants is patent. The evidence in the record 
discloses that, notwithstanding appellees’ alleged adoption 
of “ an administrative procedure applicable to all . . . ap­
plicants for transfer to a school other than the one at­
tended at the end of the 1957-1958 session” (Report and 
Request for Guidance, JA 7), the only pupils in the Arling­
ton County public school system whose requests for trans­
fer were subjected to (1 ) the preparation and submission 
of data to the State Pupil Placement Board (JA 25, 32); 
(2) personal interviews by representatives of appellees 
and the Pupil Placement Board (Report and Request for 
Guidance, JA 8) ; and (3) application of the five “ criteria” 
or ‘ ‘ standards ’ ’ upon the basis of which their individual re­
quests were rejected, were the thirty Negroes and two 
white students seeking transfers to schools theretofore at­
tended exclusively by pupils of the other race (JA 74-76).

The court below specifically rejected appellants ’ conten­
tion that the very formulation and use of these “ criteria”, 
as well as the other special treatment accorded appellants’ 
applications, was racial discrimination (JA 20). This con­
clusion the court justified on the basis that there was no



21

previous necessity for the use of such tests and their use 
represented a new method for assignment of pupils which 
was “ not discriminatory as born of a social change.”

This argument disregards the essential realities of the 
situation as disclosed by the record in this case. The dif­
ferent treatment accorded to appellants was not part of a 
“ plan” designed or intended to facilitate and accommodate 
a ‘ ‘ social change ’ ’. On the contrary, it operated, as it was 
intended, to maintain the status quo. The failure and re­
fusal of the court below to discern this obvious fact recalls 
the expression by Chief Justice Taft in the Child Labor 
Tax Case, 259 U. S. 20, 37 (1922) :

. . . All others can see and understand this. How 
can we properly shut our minds to it 1

Gf. Sparroiv v. Strong, 70 IT. S. (3 Wall.) 97, 104 (1866); 
Watts v. Indiana, 338 IT. S. 49, 52 (1949); Davis v. Schnell, 
81 F. Supp. 872, 881 (S.D. Ala., S. I). 1949).

The evidence in this record emphatically and indisput­
ably demonstrates that the method by which appellants’ 
transfer requests were handled applies only in those cases 
that are differentiated from all others by the factor of 
race alone. The limited operation of what the court below 
chose to call “ assignment regulations” and an “ assign­
ment plan” is underscored by the uncontradicted testimony 
of appellees’ witnesses, supra, that these ‘‘assignment 
regulations” had no application to any student other than 
a Negro student seeking enrollment in a previously “ all- 
white” school, or a white student seeking enrollment in a 
previously “ all-Negro” school (JA 74-76).

As respects those to whom applied, the “ assignment 
regulations” in issue establish standards and procedures 
significantly variant from those normally applicable to 
other children. Ordinarily, in cases other than those in­
volving ‘ ‘ racial ’ ’ transfers, assignments are accomplished 
routinely, without personal interviews, school board con­
sideration and action, or special procedures. And, al­
though it is only in cases where children seek admission 
and enrollment in a school populated by pupils of the op­



22

posite race that appellees applied the special standards 
or criteria here involved (JA 77-78), the conrt below con­
cluded this does not prove discrimination.

It is beyond question that the “ assignment plan” under 
consideration subjects all Negro applicants for nonsegre- 
gated education to a searching scrutiny and a survival of 
disqualifying phenomena not present in ordinary cases. 
This is more than merely the inconveniences, loss of time 
and trouble incidental to compliance with the special “ as­
signment” procedures which were applied. It is necessary 
that the Negro child satisfy requirements additional to and 
different from those established for and applied in all other 
cases. For the Negro child, rejections may follow from 
either a lack of special abilities and qualifications, or the 
presence of special circumstances. The difference in treat­
ment of Negro applications under the approved “ assign­
ment regulations” appears plainly from the fact that no 
white child is excluded from the schools to which the Negro 
appellants seek admission because his academic ability is 
rated below the median of the typical class in that school, 
or because he has “ psychological problems”, or because 
he is not “ adaptable.”

These “ criteria,” the analyses of individual records, and 
interviews4 utilized in consideration of “ racial” transfer 
requests, all accumulate their weight to make exceedingly 
heavier demands of the Negro applicant to a white school. 
The validity of this observation is amply demonstrated by 
the fact that of the thirty Negro applicants submitted to 
appellees’ “ assignment regulations” , all were denied the 
requested transfers. This result is not remarkable when 
it is considered that the “ plan” necessarily operates in 
such fashion that while the Negro child, if exceptional, may 
survive application of the other criteria, he is doomed to 
failure under the Adaptability standard if he is not excep­

4 A tran sc rip t of the  personal interview s conducted by  appellees and the 
S ta te  P up il P lacem ent B oard appears in  th e  record as P la in tiffs E xhib its 
1, 2, 3, 4. (T . 349). The character of these interview s is exemplified by  a 
question asked of each p a ren t in  substan tia lly  the  following w ords: ‘ ‘ Are
you seeking th is tra n s fe r  solely because of your so-called constitutional rights 
under the M ay 17, 1954 decision.”



23

tionally gifted or superior (JA 80-81). The vice in its 
operation is accentuated by the consideration that the 
Negro applicant to a Negro school or the white applicant to 
a white school need not be special but is admitted as a 
matter of course.

In the context in which these “ problem areas” were 
conveniently contrived in a hastily called night meeting 
five days before the trial below, and in light of the fact that 
only Negro pupils were placed in such “ groupings,” and 
that the entire state is politically united in “ massive 
resistance” to desegregation, any consideration of these 
so called “ groupings” must be with suspicious scrutiny. 
Cf. Korematsu v. United States, 323 U. S. 214 (1944).

In the light of these facts and its own previous and 
present experience with appellees’ efforts to thwart the 
court’s prior order by disclaiming responsibility for appel­
lants’ assignments, the court’s legal justification for appel­
lees’ continued successful defiance of the constitutional 
mandate for non-segregated public school education makes 
the following statement from the concurring opinion by the 
late Mr. Justice Murphy in Steele v. Louisville <fc Nashville 
R. R. Co., 323 U. S. 192, 208 (1944) peculiarly apposite 
here :

The utter disregard for the dignity and the well­
being of colored citizens shown by this record is so 
pronounced as to demand the invocation of constitu­
tional condemnation. To decide the case and to analyze 
the statute solely upon the basis of legal niceties, while 
remaining mute and placid as to the obvious and 
oppressive deprivation of constitutional guarantees, 
is to make the judicial function something less than 
it should be.

B. The difference betw een the treatm ent accorded appellants and 
others similarly situated, based  upon race alone, invokes the 
condem nation of the due process and equal protection guar­
antees of the Fourteenth Amendment.

J#: The equal protection clause does not leave the state free 
to unjustifiably impose upon the exercise of rights by one 
group requirements not applicable to other groups. Smith 
v. Cahoon, 283 U. S. 553 (1931). See also Lane v. Wilson,



24

307 U. 8. 268 (1939). Classifications violate the Constitu­
tion when they unjustifiably increase the group burdens, 
or depreciate the group benefits, of public education. 
Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Okla­
homa State Regents, 339 U. S. 637 (1950); Sipuel v. Board 
of Regents, 332 U. S. 631 (1948). And it is hardly neces­
sary to state that the difference in treatment^ cannot be 
justified upon grounds of race, Broivn v. Board of Educa­
tion, 347 U. S. 483 (1954); Sweatt v. Painter, supra; Ex 
parte Endo, 323 U. S. 283 (1944); Skinner v. Oklahoma, 
316 U. S. 535 (1942), at 541; Nixon v. Herndon, 273 U. S. 
536 (1927), at 541. Where, as here, such requirements are 
enforced at all, they must be enforced without unequal 
results among groups identically situated despite differ­
ence as to race^'Here the “ special” requirements con­
tained in the “ plan” under consideration are imposed only 
upon Negro children seeking to enter white schools, and 
white 'children seeking entry to Negro schools. The single 
factor determinative of its operation in particular cases 
is the difference in race between the appellants and those 
already in the school. Subjection to the “ plan” thus de­
pends solely on race—“ simply that and nothing more.” 
Buchanan v. Warley, 245 IT. S. 60, 73 (1917).
//Neither the making of classifications based upon race, 
nor different treatment (by imposition of burdens or grant 
of benefits) to groups defined by racial considerations, 
have any reasonable relation to any legitimate purpose of 
the appellee School Board. Such discriminations by the 
school board constitute deprivations of liberty without 
the due process of law and denials of the equal protection 
of the laws in violation of the 14th Amendment. Brown v. 
Board of Education, 347 IT. S. 483 (1954); Bolling v. 
Sharpe, 347 IT. S. 497 (1954), Cooper v. Aaron, 358 IT. S. 1 
(1958).

An unjust discrimination not expressly made by the 
“ standards” adopted by appellees, but made possible by 
them, is nevertheless a denial of equal protection. Tick 
Wo v. Hopkins, 118 U. S. 356 (1886) is the classic state­
ment of the rights of persons aggrieved by discriminatory



25

administration of schemes appearing innocent on the sur­
face, where, at pp. 373-374, the court said:

. . . Though the law itself he fair on its face and 
impartial in appearance, yet, if it is applied and 
administered by public authority with an evil eye and 
an unequal hand, so as practically to make unjust and 
illegal discriminations between persons in similar cir­
cumstances, material to their rights, the denial of 
equal justice is still within the prohibition of the Con­
stitution.

The fact that this different treatment may apply to 
white children who seek enrollment in “ Negro” schools, 
as well as to Negro applicants to “ white” schools, is en­
tirely beside the point. Shelley v. Kraemer, 334 U. S. 1, 
21-22 (1948). In any event, in all of its ramifications the 
“ plan” here involved applied only to Negroes.

The fact that the “ plan” may not absolutely preclude 
all Negro children, and that oseaptidnally-gifted: children 
may survive its operation, does not save it from constitu­
tional condemnation. Indisputably, it discriminates against 
the class that included the Negro appellants here by im­
posing greater demands upon them than upon others. This 
vice in its operation alone suffices to render it invalid. As 
the Court in Lane v. Wilson, supra at 275, stated in 
treating another constitutional right

The [Fifteenth Amendment] nullifies sophisticated 
as well as simple-minded modes of discrimination. It 
hits onerous procedural requirements which effectively 
handicap exercise of the franchise by the colored race 
although the abstract right to vote may remain unre­
stricted as to race.

Nor is the decision to be affected by the consideration 
that the discrimination resulting from the operation of the 
plan may not have been intended by the defendants. “ It 
is immaterial that the defendants may not have intended 
to deny admission on account of race or color. The inquiry 
is purely objective. The result, not the intendment, of 
their acts is determinative. ’ ’ Thompson v. County School 
Board of Arlington County, Mupm. Non-intentional dis-



26

crimination is nonetheless unconstitutional. Cassell v. 
Texas, 339 XT. S. 282 (1950); Hill v. Texas, 316 U. S. 400 
(1942); Smith v. Texas, 311 IT. S. 128 (1940). The fact 
that appellee School Board sought to achieve, by the means 
employed, compliance with the previous orders of the court 
below is equally impotent. However, well-intended their 
efforts may be, this objective cannot be attained by a device 
that denies rights created or protected by the Federal 
Constitution. Buchanan v. Warley, supra, at 81. //

C. The failure of the court below to recognize and  condemn the
paten t discrimination in the method by which appellees acted 
upon appellants' applications is inconsistent with cases in 
other a reas  in which State action h as been  pierced and 
found to represent a  stratagem  or device resorted to for 
purposes of preserving racial discrimination.

See Terry v. Adams, 345 IT. S. 461 (1953); Smith v. All- 
wright, 321 U. >S. 649 (1944); Perry v. Cyphers, 186 F. 2d. 
608 (5th Cir. 1951); Rice v. Elmore, 165 F. 2d 387 (4th Cir. 
1947), cert. den. 333 XL S. 875 (1948). Singularly apposite 
is the following excerpt from the recent opinion of the 
United States Court of Appeals for the Eighth Circuit in 
Aaron v. Cooper, F.2d (8th Cir., No. 16,094, 10 No­
vember 1958):

The effect of all these cases [cited above], in their 
relation to the present situation has been epitomized 
by the Supreme Court in Cooper v. Aaron, 78 S. Ct. 
1401, 1409, as follows: “ In short, the constitutional 
rights of children not to be discriminated against in 
school admission on grounds of race or color declared 
by this Court in the Brown case can neither be nullified 
openly or directly by state legislators or state execu­
tive or judicial officers, nor nullified indirectly by them 
through evasive schemes for segregation whether at­
tempted ‘ingeniously or ingenuously’ ” .

D. The court's conclusion that appellees' rejection of appellants'
applications w as not based  upon race or color is incon­
sistent with its findings that two of the reasons for rejection 
involved racial considerations.

In its examination of the five reasons or “ criteria” ten­
dered by appellees in justification of the rejection of ap­
pellants’ applications, the court below concluded that



27

“ 'The reasons given for disqualifying the seven stu­
dents upon the test of Psychological Problems ob­
viously give consideration to race or color . . . (JA 
21)

and with reference to the testimony of appellee Division 
Superintendent in his definition and opinion concerning the 
Adaptability test, the court said:

. . . Race or color is not the basis for his opinion, 
though, he owns, the necessity for his decision is oc­
casioned by the removal of racial bars (JA 20)

These are express findings that race or color was involved 
in at least two of the reasons given by the appellee School 
Board. There is an apparent inconsistency between the 
court’s opinion that “ it would be almost a mental impos­
sibility for a witness to say how* much weight he gave to 
any one of the several factors” (JA 113) and the rationale 
by which the court itself found that two of the factors 
“ obviously give considerations to race and color” , but con­
cluded that the other three were ‘ ‘ valid criteria, free of 
taint of race or color.” (JA 22)

It is submitted that the foregoing considerations sup­
port only one credible conclusion, namely, that appellees ’ 
action upon appellants’ applications is designed and ad­
ministered to accomplish, pursuant to the policy, practice 
and custom of the Commonwealth of Virginia, perpetua­
tion of racial segregation in the Arlington County public 
schools, in contravention of appellants’ constitutionally 
guaranteed rights to due process and equal protection of 
the laws.

t
f



II.

THE COURT ERRONEOUSLY CONSIDERED APPELLEES' REJEC­
TION OF APPELLANTS' APPLICATIONS FOR ADMISSION, 
ENROLLMENT AND EDUCATION IN DESIGNATED "WHITE" 
SCHOOLS AS "ADMINISTRATIVE DETERMINATIONS" TO BE 
REVIEWED PURSUANT TO THE "SUBSTANTIAL EVIDENCE" 
DOCTRINE AND, HAVING THUS LIMITED ITS SCOPE OF 
INQUIRY, FAILED TO DISCHARGE ITS OBLIGATION TO 
MAKE AN INDEPENDENT EVALUATION AND DETERMINA­
TION OF THE FACTS DECISIVE OF APPELLANTS' CONSTI­
TUTIONAL CLAIM THAT THEIR EXCLUSION FROM SAID 
SCHOOLS WAS BECAUSE OF RACE OR COLOR.

As this case came on for hearing in the court below, the 
only issues presented upon the pleadings filed by the par­
ties were: (i) appellants’ demand for the enforcement 
and implementation of the previous orders of the court re­
straining and enjoining appellees from refusing to admit, 
enroll and educate appellants in any public school in Ar­
lington County on account of race or color; and (ii) ap­
pellees ’ request for guidance, in the light of their contention 
that all power and authority to assign pupils to schools in 
Arlington County was vested in the Pupil Placement 
Board. However, at the hearing below, appellees were al­
lowed to present evidence as to the action they would take 
upon appellants’ applications if the court should reject ap­
pellees ’ disclaimer of authority to make pupil assignments. 
Thus appellees’ witness testified that appellee School Board 
met, upon advice of counnsel, five days before the hearing 
below, considered appellants’ applications, and voted to re­
ject all of them because they fell into five “ problem areas.” 

It was during cross-examination of appellees ’ principal 
witness that the court below first indicated its concept of 
the scope of the inquiry in the instant proceedings, as fol­
lows :

The Court: As I  understand the case now, it has 
been channeled and reduced to the point where the 
Court is actually reviewing administrative action, and 
the inquiry of the Court is not whether the Court would 
have done this or that, but whether there is evidence 
to support what has been done; that is, that it is 
neither capricious, arbitrary or unlawful . . . (JA 82) 
[Emphasis supplied]



29

Having thus indicated the limits of the scope of the judi­
cial inquiry in this matter, the court below, in its Finding’s 
of Fact and Conclusions of Law of 17 September 1958, 
stated (JA 11) :

. . . Decision is restricted to an administrative re­
view. . . .

A. Appellees' action w as not such an  "adm inistrative determ ina­
tion" as would justify application of the “substantial evi­
dence" doctrine.

In concluding that appellees’ action upon appellants’ 
applications was an “ administrative determination” en­
titled to conclusive respect if based upon substantial evi­
dence, the court below relied upon premises which are not 
supported by the record in this case. More specifically, 
the court stated (JA 11) :

The case signally demonstrates the soundness and 
workability of these propositions: (1) that the Federal 
requirement of avoiding racial exclusiveness in the 
public schools—loosely termed the requirement of inte­
gration—can be fulfilled reasonably and with justice 
if the guide adopted is the circumstances of each child, 
individually and relatively; (2) that it may he 
achieved through the pursuit of any method wherein 
the regulatory body can, and does, act after a fair 
hearing and upon evidence; and (3) that when a con­
clusion is so reached in good faith, without influence 
of race, though it be erroneous, the assignment is no 
longer a concern of the United States courts.

Tested by the existing record in this case appellants 
contend, and argue elsewhere in this brief, that the first 
and third of the above-stated “ propositions” are not sus­
tained. However, the second “ proposition” is the basis 
upon which the court limited the scope of its inquiry to 
an “ administrative review” and commands our immediate 
attention.

To justify the court’s conclusion in this case it must 
appear that appellees’ action was based upon a “ fair hear­
ing” . The barest essentials of a “ fair hearing” would be 
notice, an opportunity to he heard, and findings based



30

upon the evidence. The fact that appellees acted ex parte, 
in closed session, without notice to appellants, or an oppor­
tunity for them to he heard in their own behalf is uncon­
troverted in this record. As stated in one of the leading- 
cases in this area, Morgan v. United States, 304 U. S. 1, 
18-19 (1938):

. . . The right to a hearing embraces not only the 
right to present evidence but also a reasonable oppor­
tunity to know the claims of the opposing party and 
to meet them . . . Those who are brought into contest 
with the Government in a quasi-judicial proceeding 
aimed at the control of their activities are entitled to 
be fairly advised of what the Government proposes 
and to be heard upon its proposals before it issues its 
final command.

No such reasonable opportunity was accorded appel­
lants. [Emphasis supplied]

The fundamental rationale upon which administrative 
determinations are accorded respect by the courts is the 
fairness and adequacy of the procedure before the admin­
istrative agency. In Southern Garment Mfrs. Ass’n. v. 
Fleming, 122 P. 2d 622, 632 (D.C. Cir. 1941) the stand­
ards are set forth which, applied to the record in this case, 
conclusively demonstrate the court’s error:

The scope of judicial review should depend largely 
upon the adequacy of the preceding process. Here the 
process was fair and complete. The 'Committee and 
the Administrator did work that was authorized by 
Congress and they did it the way that body directed. 
The Committee heard evidence and deliberated. Its 
report went to the Administrator. There, the proceed­
ing was upon narrow, well-defined issues; the consid­
eration was detailed; the affected parties or their 
representatives were present; specific wage orders re­
sulted. These elements, inter alia, caused the Supreme 
Court, in the Opp ease to call this proceeding judicial 
in character. A court, under such circumstances, 
should hesitate long before nullifying the resultant 
classification.

It is submitted, therefore, that the “ administrative de­
termination” here was not entitled to the conclusive effect



31

and application of the “ substantial evidence” doctrine 
accorded it by the court below.

B. Moreover, appellants' claim that appellees had  excluded them 
from the schools to which they applied, on account of their 
race or color, in violation of constitutionally guaran teed  
rights, obligated the court below to m ake an  independent 
evaluation and  determ ination of the factual issues decisive 
ol appellants' claim.

Accordingly, the court below was required to make its 
own independent evaluation and determination, upon all 
of the available and pertinent evidence, of the decisive 
factual issue; viz., whether appellees refused on account 
of race or color to admit, enroll and educate appellants, 
who were otherwise qualified, in the “ white” schools for 
which they applied. Thus, the issue of appellants’ qualifi­
cations, or lack thereof, was decisive of their claimed con­
stitutional right. The court was obliged to examine the 
evidence on this issue not merely to determine “ whether 
there is evidence to support the assignments as made” , 
or “ whether there is evidence to support what has been 
done,” or “ whether there is evidence to support the admin­
istrative finding” , or “ whether or not there was before 
the administrative agency valid evidence that supports its 
findings” , or “ whether there was justification in the mind 
of the others to come to the conclusion that they have 
reached,” or “ only to see if the rebuttal evidence destroys 
any weight that might he given to the defendants ’ proof. ’ ’ 
Directly contrary to these expressions of the court’s inhi­
bition and self-imposed limitations in the proceedings 
below, appellants contend that the court’s responsibility 
was to make an independent review and determination 
upon the evidence “ whether the court would have done 
this or that,” and to weigh the evidence “ in the light that 
the court ordinarily weighs evidence, that is, determining 
the decision that the court will make,” resolving “ such 
differences” as may appear in the evidence, and, if so 
persuaded, making ‘ ‘ a different decision on this evidence ’ ’ 
which “ may not agree with the conclusions of the Boards.” 

Wherever a citizen submits to a Federal court his claim



32

that ail administrative body has acted in derogation of 
his constitutional rights, the court may and must exercise 
its independent judgment on those issues of fact that are 
decisive of the constitutional claim. This conception of 
the duty and function of the court is supported by the case 
law. In Ohio Valley Water Co. v. Ben Avon Borough, 253 
U. S. 287 (1920) it was held that a court must exercise its 
independent judgment on the law and the facts in deter­
mining a claim of confiscation of property without due 
process of law, which resulted from a regulation of utility 
rates. The principle was again applied in St. Joseph Stock 
Yards Co. v. United States, 298 U. S. 38, 49 (1936). Cf. 
Ng Fung Ho. v. White, 259 U. S. 276, 284-285 (1922). In 
Baltimore & Ohio RR Co. v. United States, 298 U. S. 349, 
372 (1936), the court again applied this doctrine, and re­
ferred in a footnote to Norris v. Alabama, 294 U. S. 587, 
589-590 (1935), which may be regarded as involving an 
analogous principle. This principle, frequently stated in 
cases involving claimed coerced confessions and systematic 
exclusion of Negroes from juries, is that the power of the 
federal judiciary, in appellate review of state court pro­
ceedings, extends in certain circumstances to a considera­
tion of “ issues of fact.” The proposition is clearly stated 
in Watts v. Indiana, 338 U. 8. 49, 50-51 (1949):

. . . “ issue of fact” is a coat of many colors. It 
does not cover a conclusion drawn from uncontro­
verted happenings, when that conclusion incorporates 
standards of conduct or criteria for judgment which 
in themselves are decisive of constitutional rights. 
Such standards and criteria, measured against the 
requirements drawn from constitutional provisions, 
and their proper applications, are issues for this 
Court’s adjudication. Hooven & Allison Co. v. Evatt, 
324 U. S. 652, 659, and cases cited. Especially in cases 
arising under the Due Process Clause is it important 
to distinguish between issues of fact that are here 
foreclosed and issues which, though cast in the form 
of determinations of fact, are the very issues to review 
which this Court sits, See Norris v. Alabama, 294 U. S. 
587, 89-901; Marsh v. Alabama, 326 U. S. 501, 510.



33

See also: Niemotho v. Maryland, 340 U. S. 268, 271 (1951) 
and Pierre v. Louisiana, 306 TJ. S. 354, 358 (1939); Feiner 
v. New York, 340 TJ. S. 315, 316, 323 footnote 4 (1951).

Logic and reason cannot sustain the contention that 
appellees’ “ administrative determination,” made ex parte 
and without notice in closed and secret session and without 
a record other than the testimonial recital in the instant 
proceeding below, is entitled to greater respect than the 
determinations by the quasi-judicial administrative bodies 
and the courts represented in the cases cited, supra.

Therefore, it is respectfully submitted that the court 
below erred in failing to make an independent determina­
tion, on all the evidence properly before it, of the decisive 
issue of appellants’ qualification, or lack thereof, for 
admission to the “ white” schools from which they claimed 
appellees excluded them on account of their race or color.

xn.
REVIEW AND CONSIDERATION OF THE AVAILABLE AND 

PERTINENT EVIDENCE COMPELS THE CONCLUSION THAT 
THE REASONS ADVANCED BY APPELLEES FOR THEIR 
REJECTION OF APPELLANTS' APPLICATIONS FOR ADMIS­
SION, ENROLLMENT AND EDUCATION IN "WHITE" 
SCHOOLS WERE BASED UPON CONSIDERATIONS OF RACE 
OR COLOR IN CONTRAVENTION OF APPELLANTS' CON­
STITUTIONALLY GUARANTEED RIGHTS OF DUE PROCESS 
AND EQUAL PROTECTION AND IN VIOLATION OF THE 
PRIOR ORDERS OF THE COURT.

Appellants contend that an independent review and de­
termination upon the uncontroverted evidence in the record 
herein compels a conclusion contrary to that of the court 
below.

A. Attendance Area

The Attendance Area reason as applied denies to appel­
lants the equal protection of the laws as guaranteed by 
the Fourteenth Amendment.

An attendance area basis for the assignment of school 
children to particular schools is, of course, not unusual 
or objectionable where applied without reference to race 
or color. However, even this seemingly innocuous and



34

rational standard may be applied in sucli a manner as to 
violate the mandate of equal protection. The action of 
appellees exemplifies this proposition.

The evidence indicates that Attendance Area as a basis 
for assignment has been loosely applicable in Arlington 
County. The attendance area for the principal Negro 
school in the county, Hoffman-Boston, was established and 
has remained unchanged as an area for determining the 
assignment of Negro students only. (R. 374, JA 90-92). 
The few white children living within its boundaries 
are not required to attend Hoffman-Boston school (JA 90- 
91, 143-145). Approximately 100 students are daily trans­
ported from outside [from former North-Hoffman-Bos- 
ton area] to Hoffman-Boston school. Those of the 
appellants, and all other Negroes, living outside the 
zone were nevertheless assigned by appellees to Hoff­
man-Boston school. It is submitted that this simple 
recitation conclusively demonstrates that Attendance Area, 
as administered by appellees, is but a rationalization for 
the use of “ naked and arbitrary power” to maintain 
segregation. Cf. Yich Wo v. Hopkins, supra at 366.

In Brown v. Board of Education, 349 U.S. 294, 300-301 
(1955), the Court indicated that among the factors to be 
considered by the district courts in granting time for 
compliance, were problems related to “ revision of school 
districts and attendance areas into compact units to achieve 
a system of determining admission to the public schools 
on a nonracial basis.” In Cooper v. Aaron, supra at 7, the 
Court said that “ State authorities were thus duty bound 
to devote every effort toward initiating desegregation 
and bringing about the elimination of racial discrimination 
in the public school system.” Certainly the action of ap­
pellees herein, in continuing to maintain the prior school 
zones specifically designed to facilitate and accommodate 
the invalidated system of racial segregation, coupled with 
their disregard of these zones in cases where rigid enforce­
ment is incompatible with the maintenance of segregation, 
cannot be squared with any concept of “ good faith com­
pliance” with the duty “ to devote every effort toward



35

initiating desegregation.” See also Aaron v. Cooper, 
supra, with respect to the affirmative obligations of state 
and local authorities.

B. Overcrowding ai Washington and Lee

The Overcrowding reason is a mere rationalisation for 
continued racial segregation.

Appellees assign overcrowding as their reason for re­
jecting the applications of live Negro students to Wash­
ington and Lee High School. Appellants do not contro­
vert the fact that the enrollment at Washington and Lee 
exceeds the school’s planned capacity. Similarly there 
is no contradiction of appellees’ assertion that a portion 
of the Washington and Lee attendance area was “ severed” 
and annexed to the Wakefield High School area for the 
assignment of 250 10th grade students to the latter school 
to equalize the burden between the two schools. However, 
upon these facts, appellees ’ treatment of the five appellants 
who did not live within the severed area is the most patent 
and obvious racial discrimination. These students, one 
of whom was in the 11th grade and would not have been 
affected by the severance in any event, were assigned 
in a manner dissimilar from all other students in the Wash­
ington and Lee attendance area—except the 100 other 
Negroes not parties to this suit—to the Hoffman-Boston 
School. Thus, although appellees claimed abandonment 
of the “ North” Hoffman-Boston attendance area in defer­
ence to its clearly racial character, the assignment of these 
five appellants and all other Negroes in that area to the 
Hoffman-Boston School is an obvious contradiction and 
adherence to the prior policy of segregation.

The use of Overcrowding as a rationalization for con­
tinued maintenance of racial segregation has been specifi­
cally rejected. Clemmons v. Board of Education of Hills­
boro, Ohio, 228 F. 2d 853, 857, 860 (6th Cir. 1956), cert, 
den. 350 U.S. 1006 (1956). In a concurring opinion, Circuit 
Judge (Now Mr. Justice) Potter Stewart said (p. 860):

It was estimated at the time of the hearing in the 
district court that the new school buildings in Hillsboro



36

would be completed about January, 1957, although 
the record is not entirely clear on this point. If that 
is true, there may be some overcrowding of classrooms 
for the first half of the next school year, in the event 
the Board decides to make no use of the present 
Lincoln School building. Overcrowded classrooms, 
however, are unfortunately not peculiar to Hillsboro, 
and the avoidance alone of somewhat overcrowded 
classrooms cannot justify segregation of school chil­
dren solely because of the color of their skins. [Em­
phasis supplied]

C. Academic Achievement

The uncontroverted evidence with respect to the Aca­
demic Achievement reason conclusively demonstrates that 
this is an attempted justification for continued racial 
segregation.

No white children, including those with achievement 
scores lower than those of the appellants, were excluded 
from the schools appellants sought to attend. It is said 
that the Negro students excluded for reason of academic 
deficiency, were found to have achievement scores that 
would place them in the lower portions of their classes 
if admitted to “ white” schools, and that they will have seri­
ous academic difficulties if transferred. But it is apparent 
on the face of the record that there were some white stu­
dents in the schools involved with achievement scores as 
low as those of the appellants. For, although the Arlington 
“ white” schools have median achievement levels above the 
national median, the “ Negro” schools have students scoring 
above and below these median scores. By definition a 
“ median” is merely the point dividing the upper and 
lower halves of the students tested.

The pattern of discrimination is clear. Students are di­
vided into two groups, those with relatively high and those 
with relatively low achievement attainments. Those with 
relatively high attainments are deemed qualified. Those 
with relatively low attainments are then divided into two 
more classes—those excluded from a given school (all 
Negroes) and those not excluded (all white students). Cf. 
Yick Wo v. Hopkins, supra. It is apparent that the deci­



37

sion on whether or not those students with low attainments 
are qualified for attendance at the heretofore “ white” 
schools is exercised on a racial basis.

It is submitted that it was erroneous, as a matter of law, 
for the court below to restrict the right not to be racially 
segregated in public schools to Negroes who are intellectu­
ally gifted. The equal protection of the laws is a “ pledge 
of the protection of equal laws” to all persons within the 
state, Tick Wo v. Hopkins, supra. The state is not required 
to treat as alike the genius and the imbecile, for they are 
different in fact, but the state may make no distinctions 
in its treatment of either geniuses or imbeciles of different 
races.

To exclude these Negro children from the benefits of 
superior schools, for the reason that as the victims of in­
ferior segregated schools they have not as a group reached 
the level of achievement of the more privileged race, is 
to forever consign them to an inferior education in seg­
regated schools.

D. Psychological Problems

The exclusion of some appellants by reason of psycho­
logical problems was disapproved by the court below for 
insufficient evidence. It is submitted that the court’s 
finding that this reason involved considerations of race 
and color was sufficient to invalidate it, without regard to 
the quantum of evidence on this point.

E. Adaptability

Finally, with respect to lack of adaptability as a reason 
for exclusion of appellants, it is submitted that this also 
tvas a racial and discriminatory standard. Its racial char­
acter is clearly indicated in the definition of this standard 
as given by the appellee School Superintendent, and testi­
mony that, in his opinion, the five appellants who had 
successfully met every other test mentioned above, should 
nevertheless be excluded from the schools to which they 
sought admission on the ground that they might be injured 
or harmed by the transition to attending school with mem­



38

bers of the other race, and their consequent loss of school 
superiority and leadership. One of the presuppositions 
of this opinion is a theory of the supremacy of the white 
race. The testimony of the appellees’ witness is that only 
exceptionally gifted Negro children could “ adapt” to 
desegregated schools (JA 80-81).

Not only are the presuppositions of this rationale alien 
to American ideals, Ex Parte Endo, supra at 308, but 
the paternal solicitude for the supposed welfare of the 
appellants, which is urged to justify continued deprivation 
of their constitutional rights, touches an area beyond the 
power of the appellees or the courts, i.e. the rights of par­
ents and the children to decide whether or when to exercise 
their constitutional rights and what is in their best interests. 
McKissick v. Carmichael, 187 F. 2d 948, 954 (4th Cir. 1951) 
cert. den. 341 TJ..S. 951 (1951); Meyer v. Nebraska, 262 U.S. 
390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 
(1925).

The conclusion of the court below that pupil A was 
lacking in adaptability, and that this was a proper ground 
for his exclusion from the school that he otherwise was 
qualified to attend, is similarly erroneous. In its consider­
ation of this pupil, the court below has assigned reasons 
for his rejection not suggested by appellees. The court 
below considered information relative to his academic 
achievement, although appellees did not raise this objection. 
As no achievement test score was available for pupil A, the 
court below concluded that the statement taken from his 
most recent report card, that he was “ on grade level” , 
meant that he was on grade level in relation to the inferior 
standards of the Negro school to which he was assigned 
by appellees, despite the fact that a witness for appellees 
testified with respect to this very same pupil that the term 
“ on grade level’’ was used in relation to all the schools 
in the county (JA 37). The balance of the court’s dis­
cussion of this pupil amounted to a balancing or weighing 
of the advantages and disadvantages to him of attending 
the white and Negro schools. This type of treatment of 
appellant A ’s constitutional claim is clearly erroneous.



39

Carter v. School Board of Arlington County, 182 F. 2d 
531 (4th Cir. 1950).

Response io Appellees' Cross-Appeal

The appellees have filed a cross-appeal from the deci­
sion of the court below restraining and enjoining them 
from refusing to admit, enroll and educate four appellants 
in the Stratford Junior High School at the commencement 
of the second semester of the current school term, which 
decision was based upon the court’s finding and conclusion 
that there was no substantial evidence to support appellees’ 
disqualification of these pupils by reason of lack of 
adaptability.

As indicated, supra, in this brief appellants (cross­
appellees) disagree with the premises upon which appellees’ 
(cross-appellants) argument is based with respect to the 
proper function and scope of inquiry of the District Court. 
In this connection, the three eases relied upon by cross­
appellants in their brief on cross-appeal—National Labor 
Relations Board v. Babcock .& Wilcox Co., 351 U.S. 105 
(1956); Radio Corp. of America v. United States, 3,41 U.S. 
412 (1951); and Secretary of Agriculture v. Central Roig 
Refining Co., 338 U.S. 604 (1950)—have no relation to the 
problem posed by this appeal. Those cases involved the 
quasi-judicial determinations of administrative bodies 
fulfilling specialized technical functions, exercising expert 
knowledge, and following procedures affording to the inter­
ested parties full administrative or procedural due process, 
all as contrasted with the secret ex parte determinations 
of the appellee School Board (itself an interested party) 
based upon only the evidence it chose to consider and upon 
no “ record.” The school board’s suggestion that they 
acted “ after a fair hearing and upon evidence” is palpably 
false. No hearing was accorded to the plaintiffs by the 
defendants and they were neither requested nor given an 
opportunity to present “ evidence” to the school board 
in support of their requests.

However, assuming arguendo, that the court below prop­
erly used and applied the “substantial evidence” doctrine,



40

it is submitted that there is no evidence in the record to swp- 
port the School Board’s conclusion that these four pupils 
were not qualified to attend Stratford Junior High School. 
The testimony of the school board’s own witnesses estab­
lished that these students lived within the Stratford 
attendance area, were academically qualified by applica­
tion of the board’s own standards, had no disqualifying 
psychological problems and could not be barred for lack 
of space. The only suggested reason offered by appellees 
for their exclusion was that these four students could 
not adapt to the new situation they faced. This was an 
opinion and a prediction based upon no individual data 
or information with respect to these students, at least so 
far as was disclosed to the court. The school board 
clearly failed to present any adequate evidence in justifica­
tion of the exclusion of these four students from the schools 
which they were otherwise admittedly qualified to attend. 
No basis for the exercise of discretion in their case was 
proffered except for the opinion of the School Superin­
tendent, and this is on its face a subjective prediction, 
admittedly occasioned only by the prospective removal 
of racial barriers. It is apparent that this reason has no 
meaning except in terms of racial issues and that the real 
basis for exclusion is race or color.

And, of course, the objections to the entire procedure 
and pattern of action pursued by the school board, devel­
oped elsewhere in this brief, apply with equal force in 
consideration of the rights of these four students.



41

IV.

THE COURT'S PREVIOUS JUDGMENT, AFFIRMED ON APPEAL, 
THAT FIVE APPELLANTS WERE QUALIFIED FOR AND 
COULD NOT BE REFUSED ADMISSION TO DESIGNATED 
"WHITE" SCHOOLS, MAY NOT BE NULLIFIED, IN SUBSE­
QUENT PROCEEDINGS FOR ITS ENFORCEMENT, ON THE 
GROUND OF APPELLANTS' ALLEGED DISQUALIFICATION 
FOR REASONS AVAILABLE TO BUT NOT URGED BY AP­
PELLEES IN THE PRIOR PROCEEDINGS.

A. The 14 September 1957 Decree Herein Foreclosed Further 
Litigation With Respect to the Qualification of Five Appel­
lants for Admission to Designated "White" Schools

In the Findings of Fact and Conclusions of Law entered 
in this case on 14 September 1957, the court below found 
that seven Negro children, including five of the present 
appellants (A, B, C, D, and E), were refused admission 
to designated “ white” schools because of their race, inas­
much as “ no intimation of disqualification appeared as 
to any applicant.” Upon the basis of the foregoing find­
ings and conclusions, the court below entered its Supple­
mentary Decree of Injunction, ordering that the defendants 
[appellees here] he restrained and enjoined from refusing 
to admit, or enroll, or educate the named plaintiffs in the 
[white] schools to which they have made application for 
admission upon the presentation of said plaintiffs for 
admission, enrollment and education in the said schools 
commencing at the opening of said schools on the morning 
of September 23, 1957 (R. 248). This injunction, on the 
present appellees’ motion (R, 252), was suspended pending 
appeal (R. 256). On 12 February 1958, this judgment was 
affirmed by this Court (R. 399) and writ of certiorari was 
denied 19 May 1958.

The court below, with specific reference to appellants’ 
present contention said (JA 14):

. . . Five of the thirty are the children who were 
ordered admitted by this court in September 1957, 
hut the order was stayed pending appeals. Contrary 
to their argument, however, these pupils have not by 
virtue of that order a vested position for this session. 
Admissions must be judged on current conditions, the 
rule to he applied to all students . . .



42

Appellants contend that the court’s order of 14 Septem­
ber 1957 was final and conclusive of the rights of the parties 
thereby adjudicated. Washington Bridge Co. v. Stewart, 
44 U.S. (3 How.) 413 (1845); Sibbald v. United States, 37 
U,S. (12 Peters) 488 (1838).

More specifically, the issue of these appellants’ qualifica­
tions for admission to the schools to which they applied 
was tendered, litigated and forever settled as between the 
parties and their privies. Baltimore S. S. Co. v. Phillips, 
274 U.S. 316 (1927); City and Town of Beloit v. Morgan, 
74 U.S. (7 Wall.) 619 (1869). This result obtains, notwith­
standing appellees’ claim that the defenses and evidence 
presented in the instant proceeding were not presented in 
the proceedings leading to the 14 September 1957 order.

This is not a case where the law has been subsequently 
changed relative to the authority of the appellees to judge 
the qualifications of the five appellants. Nor is it one where 
subsequent to the 1957 decree additional data on the five 
appellants were obtained and reviewed by the appellees. 
The objections raised at the 1958 hearing were based upon 
the same data available to appellees prior to the 1957 
hearing. Under our system of jurisprudence, it is well- 
established that a decree of judgment estops not only 
as to every ground of defense actually presented in an 
action, but also as to every ground which might have been 
presented. Otherwise, in many instances, litigation would 
be interminable. The Eaytian Republic, 154 U.S. 118 
(1894); Dowell v. Applegate, 152 U.S. 327 (1894). In 
Cromwell v. Sac County, 94 U.S. 351, 352-353 (1877), the 
Court said:

Thus, for example, a judgment rendered upon a 
promissory note is conclusive as to the validity of the 
instrument and the amount due upon it, although it 
be subsequently alleged that perfect defenses actually 
existed, of which no proof was offered, such as forgery, 
want of consideration or payment. If such defenses 
were not presented in the action, and established by 
competent evidence, the subsequent allegation of their 
existence is of no legal consequence . . . The language, 
therefore, which is so often used, that a judgment



43

estops not only as to every ground of recovery or 
defense actually presented in the action, but also as 
to every ground which might have been presented, 
is strictly accurate . . .

See also Gould v. Evansville & C. R. Go., 91 U.S. 526 (1876); 
Grubb v. Public Utilities Commission of Ohio, 281 U.S. 
470 (1930); Chicot County Drainage List. v. Baxter State 
Bank, 308 U.S. 371 (1940); C.l.R. v. Sunnen, 333 U.S. 591 
(1948); U.S. v. Munsingwear, Inc., 340 U.S. 36, 38 (1950).

Moreover, if the appellees are allowed to litigate the 
qualifications of the five appellants and in some subsequent 
proceedings, as below, to relitigate the same matter by 
tendering further objections which could have been raised 
in the prior proceedings, then the constitutional rights 
of the appellants could easily be “ frittered away” and 
rendered incapable of effective enforcement. Cf. Oriel 
v. Russell, 278 U.S. 358, 363 (1929); Maggio v. Zeitz, 333 
U.S. 56, 68-69 (1948).

B. The Final Judgment Securing These Appellants' Consti­
tutional Rights Could Not be Vacated and Set Aside by 
Appellees' Subsequent Action

In 1957 the court below found the five appellants qualified 
and ordered their admission to certain designated schools. 
In the instant proceedings below the appellees found appel­
lants disqualified by the application of “ criteria” which, 
when recognized by the court below, had the effect of nulli­
fying the prior injunction. No change in circumstances 
was shown. Prior to the 1957 hearing the appellees had 
the power and authority to apply the same “ criteria” 
subsequently tendered. The 1957 decree was thus “ va­
cated” without any showing of a change in state law, or 
administrative regulations, or that it was impossible for 
the appellees to carry out the terms of the injunctive 
order. In other words, whatever the distinction between 
a decree and a judgment at law, the 1957 decree did estab­
lish in the appellants a constitutional right to attend the 
schools designated by its terms. The decree fixed the rights 
of the appellants, Hopkins v. Lee, 19 U.S. (6 Wheat.)



44

109 (1821), and by force of the decree the appellants were 
in legal effect placed in the designated schools. It has 
been repeatedly held that where a judgment has been 
rendered the rights flowing from it have passed beyond 
the legislative (administrative) power, either directly or 
indirectly, to reach or destroy. In United States v. Peters, 
9 U.S. (5 Cranch) 115, 136 (1809), Chief Justice Marshall 
observed:

If the legislatures of the several states may, at will 
annul the judgments of the courts of the United States, 
and destroy the rights acquired under those judgments, 
the Constitution itself becomes a solemn mockery; 
and the nation is deprived of the means of enforcing 
its laws by the instrumentality of its own tribunals.

See also McCullough v. Virginia, 172 U.S. 102 (1898).
The appellants submit, therefore, that the court’s ap­

proval of appellees’ subsequent rejection of appellants’ 
applications on the basis of the alleged ‘ ‘ criteria ’ ’ is within 
this principle. The action of appellees, approved by the 
court, nullified the rights flowing from the 1957 injunctive 
decree.

C. The Finally Adjudicated Constitutional Right of These 
Appellants to Attend the Schools Designated in the Court's 
14 September 1957 Order Could Not be Subjected to Con­
ditions Not Sim ilarly Applied to A ll Other Students 
Admitted and Enrolled in Said Schools

The 1957 decree gave the five appellants a legal status 
comparable to that of those students who were already 
enrolled. With this status they were entitled to be treated 
in the same manner as other students already enrolled, 
rather than as mere applicants for admission. Cf. 
McLaurin v. Oklahoma State Regents, supra. Appellees, 
however, applied the “ criteria” only to these five appel­
lants and the other Negro children seeking admission to 
“ white” schools. No white students, enrolled in these 
schools, or seeking admission for the first time, were 
subjected to these “ criteria” . This is a clear case of 
arbitrary and discriminatory action on the part of the



45

appellees well within the “ controlling legal principles” 
pronounced in Cooper v. Aaron, 358 U.S. 1, 16-17 (1958).

Furthermore, since the District Court failed to enforce 
the 1957 decree on the basis of “ criteria” which could 
not be constitutionally applied to these five appellants, 
its action may be deemed to be unconstitutional within the 
meaning of the principles declared in Shelley v. Kraemer, 
supra.

Accordingly, it is submitted that the ruling of the Dis­
trict Court, denying to these five appellants the enforcement 
and implementation of their constitutional rights as finally 
and specifically adjudicated under the prior orders of 
the court, should be reversed.

v.
THE COURT BELOW ERRED IN POSTPONING, UNTIL THE 

SECOND SEMESTER OF THE SCHOOL SESSION OF 1958-1359, 
THE EFFECTIVE DATE OF ITS ORDER RESTRAINING AND 
ENJOINING APPELLEES FROM REFUSING TO ADMIT, 
ENROLL OR EDUCATE FOUR OF APPELLANTS IN THE 
"WHITE" SCHOOL FROM WHICH THEY HAD BEEN IM­
PROPERLY EXCLUDED.

A. The Court Below Erred in Postponing the Enjoyment of 
the Personal and Present Rights of the Four Appellants 
It found to Have Been Excluded U nlaw fully From Strat­
ford Junior High School

The court below, upon review' of appellees’ determina­
tion that each of thirty timely requests by Negro pupils 
for admission and enrollment in designated white schools 
for the current (1958-1959) school term should be rejected, 
found that as to four of these pupils “ . . . refusal of their 
applications for transfer is not justified in the record 
(JA 11).” In apparent anticipation of this result, the court, 
at the conclusion of the proceedings below on 4 September 
1958, made the following remarks:

Without intending intrusion for a moment upon 
the functions of the administrative agency or of the 
State, the Court simply wants to say that as far as 
the Court is concerned, the schools may be opened 
and the pupils assigned to them. That includes the 
right of the applicants here to enter the schools under 
the assignments as made, but reserving to themselves



46

without prejudice in any way, the right still to insist 
tipon the change of the assignment after their cases 
have been heard. This would be the course that would 
be followed if, I am sure, there was no 'Constitutional 
question involved. I mention that simply because 1 
do not want anyone to he prejudiced by the time that 
the Court will require to reach its decision in this case. 
(JA 222)

#  & # #

. . .  I mean the children may return to the school as 
scheduled with reference to the applicants, the 30 here, 
they would take their places in schools as they are 
assigned now, hut in doing so, they would not in any 
way waive their right to continue the prosecution of 
their objections which are now before the Court (JA 
223).

*  # ^ #

. . . In other words, if these 30 enter the schools, 
they will he receiving the same class work, I  take it, 
but under conditions that they do not accept, but 
would only he for the temporary period until the Court 
decides one way or the other (JA 223-224). [Emphasis 
supplied]

However, notwithstanding the foregoing assurances that 
appellants would not be prejudiced by the delay involved 
in the court’s consideration and determination of their 
motion to be admitted and enrolled at the commencement 
of the current session, on 4 September 1958, in the schools 
to which they had made timely application, the court, in 
its Findings of Fact and Conclusions of Law, entered on 
17 September 1958, declared (JA 11-12) :

These four are all applicants for Stratford Junior 
High School; they have asked to enter the seventh 
grade, the first year of junior high. Before this deci­
sion can be effectuated by a final decree, ten days or 
more would routinely elapse, carrying the effective 
date into October. In the judgment of the court it 
would be unwise to make the transfers as late as that 
in the term.5 The decree, therefore, will be made

5 I t  should be noted th a t  appellees postponed u n til 8 Septem ber 1958 the 
opening of the 1958-1959 school term . N ote also* th a t, on 14 Septem ber 1957, 
the  court below ordered the  admission of seven N egro ap p lican ts in to  the 
w hite schools to which they had  applied, effective 23 Septem ber 1957, no t­
w ithstand ing  the 1957-1958 school term, had  commenced on 4 Septem ber 1957 
(R . 239, 248).



47

effective at the commencement of the next semester, 
January 1959. This short deferment will not be hurt­
ful. Indeed, if the basic problem can be solved by time, 
the price is not too dear.

Five days thereafter, on 22 September 1958, the court 
entered its Supplementary Order of Injunction

. . . that the defendants, their successors in office, 
agents, representatives, servants and employees be, 
and each of them is hereby restrained and enjoined 
from refusing to admit, enroll or educate plaintiffs 
Ronald Deskins, Michael Gerard Jones, Lance Dwight 
Newman and Gloria Delores Thompson to, or in, 
Stratford Junior High School, Arlington County, Vir­
ginia at the commencement of the second semester of 
the school session of 1958-1959, . . .

The rights of appellants to the equal protection of the 
laws and to due process of law as secured by the Fourteenth 
Amendment are “ personal and present” rights. Sweatt 
v. Painter, supra at 635; McLaurin v. Oklahoma, State 
Regents, supra at 642, and the state must provide these 
rights for appellants “ as soon as it does for applicants 
of any other group. ’ ’ Sipuel v. Board of Regents, supra 
at 633.

B. Appellees Presented No Evidence in Justification 
of the D elay Granted

In Brown v. Board of Education, 349 U.S. 294 (1955) 
it is suggested that the United States District Courts 
must apply equitable principles in the timing of desegre­
gation orders, by consideration of particular local prob­
lems. However, the Brown decision clearly states the 
limitation of the area of this discretion and the conditions 
upon which delay in compliance may be permitted. Thus, 
at 349 U.S. 294, 300-301, the Supreme Court said:

. . . At stake is the personal interest of the plaintiffs 
in admission to public schools as soon as practicable 
on a nondiscriminatory basis. To effectuate this inter­
est may call for elimination of a variety of obstacles 
in making the transition to school systems operated



48

in accordance with the constitutional principles set 
forth in our May 17, 1954 decision. Courts of equity 
may properly take into account the public interest 
in the elimination of such obstacles in a systematic 
and effective manner . . .

While giving weight to these public and private 
considerations, the courts will require that the defend­
ants make a prompt and reasonable start toward full 
compliance with our May 17, 1954 ruling. Once such 
a start has been made, the courts may find that addi­
tional time is necessary to carry out the ruling in an 
effective manner. The burden rests upon the defend­
ants to establish that such time is necessary in the 
public interest and is consistent with good faith com­
pliance at the earliest practicable date . . . [Emphasis 
supplied]

Similarly, in Cooper v. Aaron, 358 U.S. 1, 3 L. Ed. 2d 
(Adv.) 5,10, the Court, after quoting the preceding passage 
with approval said:

Under such circumstances, the District Courts were 
directed to require “ a prompt and reasonable start 
toward full compliance,” and to take such action as 
was necessary to bring about the end of racial segre­
gation in the public schools “ with all deliberate speed. ” 
Ibid. . . . It was made plain that delay in any guise 
in order to deny the constitutional rights of Negro 
children could not be countenanced and that only a 
prompt start, diligently and earnestly pursued, to 
eliminate racial segregation from the public schools 
could constitute good faith compliance . . . [Emphasis 
supplied]

In the instant case, none of the conditions is present 
upon which the District Courts are “ directed” to predi­
cate the exercise of their discretion in granting delay in 
admission of Negro children to white schools in accordance 
with the Supreme Court’s desegregation mandate. The 
prior proceedings and present record in this case conclu­
sively demonstrate that no “ prompt and reasonable start” 
has been made by appellees “ toward full compliance” 
with the May 17, 1954 decision or with the prior decisions 
in this case. In these circumstances, there can be no occa­



49

sion for consideration of the factors which might justify 
a delay if there had been such a start. Brown, supra, and 
Cooper v. Aaron, supra. The appellees not only did not 
carry “ the burden . . .  to establish that such time is 
necessary in the public interest and is consistent with good 
faith compliance at the earliest practicable date,” they 
did not, on the existing record, even assume that burden. 
Thus, there is no occasion for a balancing of interests or 
equities where previously determined and adjudicated 
constitutional rights are being thwarted by those local 
authorities who are duty bound to secure them. There is 
no conflict of public and private interests to be considered 
here, for it is always in the public interest to enforce the 
Constitution’s guarantee to each citizen or group of citi­
zens of the equal protection of the laws. “ [Ejqual protec­
tion to all is the basic principle upon which justice under 
law rests . . . ” Pierre v. Louisiana, supra at 358

C. The Appellants Neither Requested Nor Consented to the 
Delay for Their Benefit. On the Contrary, They Requested  
Immediate Relief

If, as it appears from the opinion of the court be­
low (JA 11-12), the delay is sought to be justified 
by a concern for the interest of appellants themselves, 
the court’s action is erroneous as a matter of law, 
since neither these infants nor their parents sought 
a delay. The court and the school authorities have 
no power or obligation to decide for appellants when 
or whether they may demand their right to equal 
treatment before the law, except under the expressly de­
fined and limited area of judicial discretion permitted by 
Brown v. Board of Education, supra. See Clemmons v. 
Board of Education of Hillsboro, supra at 857, 859. Indeed 
when the constitutional rights of the individual citizen 
are at stake “ it is for him to decide in which direction his 
advantage lies.” McKissick v. Carmichael, supra at 954.

It is respectfully submitted, that the court below erred 
as a matter of law, in delaying the enforcement of its 
injunction as to the four appellants whose constitutional



50

rights it found were denied by appellees and that, in this 
sense, the error constituted an abuse of judicial discretion 
which must be reversed. Clemmons v. Board of Education 
of Hillsboro, supra.

CONCLUSION

For the reasons stated herein, it is respectfully submitted 
that the judgments appealed from should be reversed as to 
the appellants herein, except as to Appellants (Cross-Appel­
lees) Ronald Deskins, Michael Gerard Jones, Lance Dwight 
Newman and Gloria Delores Thompson, with respect to 
whom the judgment appealed from should be affirmed and 
modified to make it effective forthwith.

Respectfully submitted,

Oliver W,. H ill  
118 East Leigh Street 
Richmond 19, Virginia

F rank  D. R eeves, an d
J ames M. N abrit, III 

473 Florida Ave., N. W. 
Washington 1, D. C.

S. W. R obinson , III 
623 North Third Street 
Richmond 19, Virginia

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

Counsel for Appellants 
and Cross-Appellees.