Hamm v. Arlington County, VA School Board Brief for Appellants and Cross-Appellees
Public Court Documents
January 1, 1958

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Brief Collection, LDF Court Filings. Hamm v. Arlington County, VA School Board Brief for Appellants and Cross-Appellees, 1958. 8812da4c-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/01ccaf3b-12e7-463c-99fe-49062aa45773/hamm-v-arlington-county-va-school-board-brief-for-appellants-and-cross-appellees. Accessed July 30, 2025.
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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.