Appendix

    APPENDIX 

  

  

Supreme Court of the United States 
OcroBER TERM, 1967 

No. 695 

lf   

CuarrLes C. GREEN, ef al., 

Petitioners, 

County ScHooL Boarp or NEw KENT CouNTy, 

VIRGINIA, ef al., 

Respondents. 

  

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT 

  

  

PETITION FOR CERTIORARI FILED OCTOBER 9, 1967 

CERTIORARI GRANTED DECEMBER 11, 1967  



  

 
 

 



 
 

 
 
 
 
 
 

 



  
 
 

 
 

 



INDEX 

District Court Docket Sheet ..... Son pase   

BE YEE a le eed Len sR EA   

Motion toTHamins . ............... ie rescission 

Order on Motion to Dismiss oo... 0 

  

Defendants’ Answers to Plaintiffs’ Interrogatories .... 

Plan {or School Dosegregation ..........cccccemimcmnscsrorceas 

First Memorandum of the Distriet Court .................... 

Pirst Orderof the District Court...   

Defendants’ Plan Supplement ........cnecicinisnecnnnnss 

Plaintiffs’ Exception to Plan Supplement .................... 

Final Memorandum of the District Court .................... 

Pinal Order of the District Court... 

PAGE 

 



  

  

  

  

  

i1 

Decision of the United States Court of Appeals for 

the Fourth Cirenit .....0. cdl inc iiisas, 

Opinions of the United States Court of Appeals for 

the Fourth Ciremit ...........c..oc cortices iui innecaiiiosons 

Judgment of the United States Court of Appeals for 

the Fourth Circuit eccescccnasancscnccens cesarean seca nen esac et nena menean..n 

Order Extending Time to File Petition for Writ of 

Certiorari Lt TT TTT Tp SpUp PEPPER 

Order Allowing Certiorari tecancscsncccccccssnnsssnrccnseacnsessenansnsecan 

PAGE 

63a 

65a 

90a 

   



District Court Docket Sheet 

4266—New Kent 

DATE 

1965 

PROCEEDINGS 

March 15 Complaint filed, summons issued. 

Apr. 

May 

June 

6 

24 

* ¥* * 

Motion to dismiss filed by County School Board 

of New Kent Co., W. R. Davis, E. P. Binns, 

Jr., W. J. Wallace, Jr. and Harry S. Mount- 

castle, ind. & as members of the County 

School Board and Byrd W. Long, Div. 

Supt. of Schools of New Kent Co., Va. 

Motion for consolidation of motion to dismiss 

with hearing on merits, for requirement of 

answer by defts and for fixing of trial date 

filed by pltfs. 

Order deferring ruling on motion to dismiss; 

directing defts. to answer on or before 6-1-65; 

directing Clerk to call case at next docket 

call, ent. 5-565. * * * 

Interrogatories filed by plfs. 

Order extending time to 6-8-65 for deft. School 

Board to file answers to interrogatories ent. 

5-24-65. * * * 

Answer filed by defts. 

Answer to interrogatories filed by County 

School Board of New Kent Co., Va. Exhibits 

attached 
* * * 

Tria Proceebpinegs—DButzner, J.: Parties ap- 

peared by counsel. Issues joined. Discussion. 

Court to enter order.  



  

  

DATE 

May 4 

[1% 10 

[14 17 

June 6 

[13 10 

June 10 

114 16 

{3 28 

[ 

  

2a 

PROCEEDINGS 

* * * Motion of defendants for 30 days within 

which to file Plan, granted. 

Plan of desegregation filed by School Board. 

Memorandum of the court filed 

Order that defts/ motion to dismiss denied; 

Pltfs. prayer for an unjunction restraining 

school construction & purchase of school sites 

denied; Defts. granted leave to submit on or 

before June 6, 1966 amendments to their plan 

which will provide for employment & assign- 

ment on non-racial basis. Pending receipt of 

these amendments to their plan which will 

defer approval of plan & consideration of 

other injunctive relief; Pltfs. motion for 

counsel fees denied; Case will be retained 

upon docket with leave granted to any party 

to petition for further relief; Pltfs. shall re- 

cover their costs to date.; ent. & filed; * * * 

Motion for leave to file & request for approval 

of a plan supplement filed by defts. together 

with plan supplement. 

Exceptions to plan supplement filed by pltf. 

In Opex Courr—Butzner, J.: Counsel dis- 

cussed exceptions to Plan. Court will ap- 

prove Plan. 

Notice of Appeal from order of 5-17-66 filed by 

plfs. 
* ® = 

Memorandum of the Court filed. 

Order approving Plan adopted by the New 

Kent County School Board, ent. 6-28-66. 

Case to be retained on docket. * * * 

   



  

3a 

Complaint 

(Filed March 15, 1965) 

I 

1. (a) Jurisdiction of this Court is invoked under Title 

28, United States Code, Section 1331. This action arises 

under the Fourteenth Amendment to the Constitution of 

the United States, Section 1, and under Title 42, United 

States Code, Section 1981, as hereafter more fully appears. 

The matter in controversy, exclusive of interest and costs, 

exceeds the sum of Ten Thousand Dollars ($10,000.00). 

(b) Jurisdiction is further invoked under Title 28, United 

States Code, Section 1343(3). This action is authorized by 

Title 42, United States Code, Section 1983 to be commenced 

by any citizen of the United States or other person within 

the jurisdiction thereof to redress the deprivation under 

color of state law, statute, ordinance, regulation, custom 

or usage of rights, privileges and immunities secured by 

the Fourteenth Amendment to the Constitution of the 

United States and by Title 42, United States Code, Sec- 

tion 1981, providing for the equal rights of citizens and 

of all persons within the jurisdiction of the United States, 

as hereafter more fully appears. 

II 

2. Infant plaintiffs are Negroes, are citizens of the 

United States and of the Commonwealth of Virginia, and 

are residents of and domiciled in the political subdivision 

of Virginia for which the defendant school board maintains 

and operates public schools. Said infants are within the  



  
  

4a 

age limits or will be within the age limits to attend, and 

possess or upon reaching such age limit will possess all 

qualifications and satisfy all requirements for admission 

to, said public schools. 

3. Adult plaintiffs are Negroes, are citizens of the United 

States and are residents and taxpayers of and domiciled 

in the Commonwealth of Virginia and the above mentioned 

political subdivision thereof. Kach adult plaintiff who is 

named in the caption as next friend of one or more of the 

infant plaintiffs is a parent, guardian or person standing 

in loco parentis of the infant or infants indicated. 

4. The infant plaintiffs and their parents, guardians and 

persons standing in loco parentis bring this action in their 

own behalf and, there being common questions of law and 

fact affecting the rights of all other Negro children attend- 

ing public schools in the Commonwealth of Virginia and, 

particularly, in the said political subdivision, similarly sit- 

uated and affected with reference to the matters here in- 

volved, who are so numerous as to make it impracticable 

to bring all before the Court, and a common relief being 

sought as will hereinafter more fully appear, the infant 

plaintiffs and their parents, guardians and persons stand- 

ing in loco parentis also bring this action, pursuant to Rule 

23(a) of the Federal Rules of Civil Procedure, as a class 

action on behalf of all other Negro children attending or 

who hereafter will attend public schools in the Common- 

wealth of Virginia and, particularly, in said political subdi- 

vision and the parents and guardians of such children sim- 

ilarly situated and affected with reference to the matters 

here involved. 

   



  

Ha 

5. Further, the adult plaintiffs bring this action pursu- 

ant to Rule 23(a) of the Federal Rules of Civil Procedure 

as a class action on behalf of those of the citizens and tax- 

payers of said political subdivison who are Negroes; the 

tax raised contribution of persons of that class toward the 

establishment, operation and maintenance of the schools 

controlled by the defendant school board being in excess 

of $10,000.00. The interests of said class are adequately 

represented by the plaintiffs. 

IIT 

6. The Commonwealth of Virginia has declared public 

education a state function. The Constitution of Virginia, 

Article 1X, Section 129, provides: 

“Free schools to be maintained. The General As- 

sembly shall establish and maintain an efficient system 

of public free schools throughout the State.” 

Pursuant to this mandate, the General Assembly of Vir- 

ginia has established a system of public free schools in the 

Commonwealth of Virginia according to a plan set out in 

Title 22, Chapters 1 to 15, inclusive, of the Code of Vir- 

ginia, 1950. The establishment, maintenance and adminis- 

tration of the public school system of Virginia is vested 

in a State Board of Education, a Superintendent of Public 

Instruction, Division Superintendents of Schools, and 

County, City and Town School Boards (Constitution of 

Virginia, Article IX, Sections 130-133; Code of Virginia, 

1950, Title 22, Chapter 1, Section 22-2). 

IV 

7. The defendant School Board exists pursuant to the 

Constitution and laws of the Commonwealth of Virginia as  



    

6a 

an administrative department of the Commonwealth, dis- 

charging governmental functions, and is declared by law 

to be a body corporate. Said School Board is empowered 

and required to establish, maintain, control and supervise 

an efficient system of public free schools in said political 

subdivision, to provide suitable and proper school build- 

ings, furniture and equipment, and to maintain, manage 

and control the same, to determine the studies to be pur- 

sued and the methods of teaching, to make local regulations 

for the conduct of the schools and for the proper discipline 

of students, to employ teachers, to provide for the trans- 

portation of pupils, to enforce the school laws, and to per- 

form numerous other duties, activities and functions essen- 

tial to the establishment, maintenance and operation of the 

public free schools in said political subdivision. (Constitu- 

tion of Virginia, Article IX, Section 133; Code of Virginia, 

1950, as amended, Title 22.) The names of the individual 

members of the defendant School Board are as stated 

in the caption and they are made defendants herein in their 

individual capacities. 

8. The defendant Division Superintendent of Schools, 

whose name as such is stated in the caption, holds office 

pursuant to the Constitution and laws of the Common- 

wealth of Virginia as an administrative officer of the pub- 

lic free school system of Virginia. (Constitution of Vir- 

ginia, Article IX, Section 133; Code of Virginia, 1950, as 

amended, Title 22.) He is under the authority, supervision 

and control of, and acts pursuant to the orders, policies, 

practices, customs and usages of the defendant School 

Board. He is made a defendant herein as an individual 

and in his official capacity. 

   



  

Ta 

9. A Virginia statute, known as the Pupil Placement 

Act, first enacted as Chapter 70 of the Acts of the 1956 

Extra Session of the General Assembly, viz. Article 1.1 of 

Chapter 12 of Title 22 (Sections 22-232.1 through 22-232.17) 

of the Code of Virginia, 1950, as amended, confers or pur- 

ports to confer upon the Pupil Placement Board all power 

of enrollment or placement of pupils in the public schools 

in Virginia and to charge said Pupil Placement Board to 

perform numerous duties, activities and functions per- 

taining to the enrollment or placement of pupils in, and the 

determination of school attendance districts for, such pub- 

lic schools, except in those counties, cities or towns which 

elect to be bound by the provisions of Article 1.2 of Chapter 

12 of Title 22 (Sections 22-232.18 through 22-232.31) of 

the Code of Virginia, 1950, as amended. 

10. Plaintiffs are informed and believe that in execut- 

ing its power or purported power of enrollment or place- 

ment of pupils in and determination of school districts 

for the public schools of said political subdivision, the 

Pupil Placement Board will follow and approve the recom- 

mendations of the defendant School Board unless it appears 

that such recommendation would deny the application of a 

Negro parent for the assignment of his child to a school 

attended by similarly situated white children. 

11. The procedures provided by the Pupil Placement 

Act do not provide an adequate means by which the plain- 

tiffs may obtain the relief here sought. 

Vv 

12. Notwithstanding the holding and admonitions in 

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



  

  

    

Sa 

349 U. S. 294 (1955), the defendant School Board main- 

tains and operates a biracial school system in which certain 

schools are designated for Negro students only and are 

staffed by Negro personnel and none other, and certain 

schools are designated for white students or primarily for 

white students and are staffed by white personnel and none 

other. This pattern continues unaffected except in the few 

instances, if any there are, in which individual Negroes 

have sought and obtained admission to one or more of the 

schools designated for white students. The defendants have 

not devoted efforts toward initiating nonsegregation in the 

public school system, neither have they made a reasonable 

start to effectuate a transition to a racially nondiscrimina- 

tory school system, as under paramount law it is their duty 

to do. Deliberately and purposefully, and solely because of 

race, the defendants continue to require or permit all or 

virtually all Negro public school children to attend schools 

where none but Negroes are enrolled and none but Negroes 

are employed as principal or teacher or administrative 

assistant and to require all white public school children 

to attend school where no Negroes, or at best few Negroes, 

are enrolled and where no Negroes teach or serve as princi- 

pal or administrative assistant. 

13. Heretofore, petitions signed by several persons 

similarly situated and conditioned as are the plaintiffs with 

respect to race, citizenship, residence and status as tax- 

payers, were filed with the defendant School Board, asking 

the School Board to end racial segregation in the public 

school system and urging the Board to make announcement 

of its purpose to do so at its next regular meeting and 

promptly thereafter to adopt and publish a plan by which 

racial discrimination will be terminated with respect to 

   



  

9a 

administrative personnel, teachers, clerical, custodial and 

other employees, transportation and other facilities, and 

the assignment of pupils to schools and classrooms, 

14. Representatives of the plaintiff class forwarded 

said petitions to the defendant School Board with a letter, 

copy of which was sent to each member of the defendant 

School Board, part of which is next set forth: 

“ * * * Tn the light of the following and other court 

decisions, your duty [to promptly end racial segrega- 

tion in the public school system] is no longer open to 

question: 

Brown v. Bd. of Education, 347 U. S. 483 (1954) ; 

Brown v. Bd. of Education, 349 U. S. 294 (1955) ; 

Cooper v. daron, 358 U. S. 1 (1958); 

Bradley v. School Bd. of the City of Richmond, 

317 F 2d 429 (4th Cir. 1963); 

Bell v. Co. School Ed. of Powhatan Co., 321 F 

2d 494 (4th Cir. 1963). 

“We call to your attention the fact that in the last 

cited case the unyielding refusal of the County School 

Board of Powhatan County, Virginia, to take any 

initiative with regard to its duty to desegregate schools 

resulted in the board’s being required to pay costs of 

litigation including compensation to the attorneys for 

the Negro school children and their parents. We are 

advised that upon a showing of a deliberate refusal 

of individual school board members to perform their 

clear duty to desegregate schools, the courts may re- 

quire them as individuals to bear the expense of the 

litigation.  



  
  

10a 

“In the case of Watson v. City of Memphis, 373 U. S. 

526 (1963) the Supreme Court of the United States 

expressed its unanimous dissatisfaction with the sloth- 

fulness which has followed its 1955 mandate in Brown 

v. Board of Education, saying: ‘The basic guarantees 

of our Constitution are warrants for the here and now 

and, unless there is an overwhelmingly compelling rea- 

son, they are to be promptly fulfilled.”” 

15. More than two regular meetings of the defendant 

School Board have been held since it received the petitions 

and letter above referred to. Neither by word or deed has 

the defendant School Board indicated its willingness to end 

racial segregation in its public school system. 

VI 

16. In the following and other particulars, plaintiffs suf- 

fer and will continue to suffer irreparable injury as a 

result of the persistent failure and refusal of the defen- 

dants to initiate desegregation and to adopt and implement 

a plan providing for the elimination of racial diserimina- 

tion in the public school system. 

17. Negro public school children are yet being edu- 

cated in inherently unequal separate educational facilities 

specially sited, built, equipped and staffed as Negro schools, 

in violation of their liberty and of their right to equal 

protection of the laws. 

18. Negro adult citizens are yet being taxed for the 

support and maintenance of a biracial school system the 

very existence of which connotes a degrading classification 

of the citizenship status of persons of the Negro race, in 

violation of the Fourteenth Amendment to the Constitution. 

   



  

11a 

19. Public funds are being spent and will be spent by 

the defendants for the erection of schools and additions to 

schools deliberately planned and sited so as to insure or 

facilitate the continued separation of Negro children in the 

public school system from others of similar age and quali- 

fication solely because of their race, contrary to the pro- 

visions of the Fourteenth Amendment which forbid gov- 

ernmental agencies, whether acting ingeniously or ingenu- 

ously, to make any distinctions between citizens based 

on race. 

20. This action has been necessitated by reason of the 

failure and refusal of the individual members of the defen- 

dant School Board to execute and perform their official 

duty, which since May 31, 1955 has been clear, to initiate 
desegregation and to make and execute plans to bring about 

the elimination of racial discrimination in the public school 

system. 

vil 

WHEREFORE, plaintiffs respectfully pray: 

A. That the defendants be restrained and enjoined from 

failing and refusing to adopt and forthwith implement 

a plan which will provide for the prompt and efficient elimi- 

nation of racial segregation in the public schools operated 

by the defendant School Board, including the elimination of 

any and all forms of racial diserimination with respect to 

administrative personnel, teachers, clerical, custodial and 

other employees, transportation and other facilities, and 

the assignment of pupils to schools and classrooms. 

B. That pending the Court’s approval of such plan the 

defendants be enjoined and restrained from initiating or  



  

12a 

proceeding further with the construction of any school 

building or of any addition to an existing school building 

or the purchase of land for either purpose to any extent 

not previously approved by the Court. 

C. That the defendants pay the costs of this action in- 

cluding fees for the plaintiffs’ attorneys in such amounts 

as to the Court may appear reasonable and proper and that 

the plaintiffs have such other and further relief as may be 

just. 

/s/ S. W. Tucker 

Of Counsel for Plaintiffs 

* » * 

   



  

13a 

Motion to Dismiss 

(Filed April 5, 1965) 

Now come the County School Board of New Kent County, 

Virginia, W. R. Davis, IL. P. Binns, Jr., W. J. Wallace, Jr., 

and Harry S. Mountcastle, individually and as members of 

the County School Board, and comes Byrd W. Long, Divi- 

sion Superintendent of Schools of New Kent County, Vir- 

ginia, and move the Court to dismiss the Complaint herein 

upon the following grounds: 

1. The Complaint fails to state a claim upon which 

relief can be granted. 

(Signature of Counsel Omitted) 

 



  

14a 

Order on Motion to Dismiss 

The Court defers ruling on the motion to dismiss. The 

defendants are directed to answer on or before June 1, 

1965. 

The Clerk is directed to call this case at the next docket 

call. 

Let the Clerk send copies of this order to counsel of 

record. 

/s/ JorN D. BurzNEegr, Jr. 

Uwited States District Judge 

May 5, 1965 

   



  

15a 

Plaintiffs’ Interrogatories 

(Filed May 7, 1965) 

Plaintiffs request that the defendant School Board, by 

an officer or agent thereof, answer under oath in accordance 

with Rule 33, Federal Rules of Civil Procedure, the follow- 

ing interrogatories: 

1. List for each public school operated by the defendant 

School Board the following: 

a. Date on which each school was erected; 

b. Grades served by each school during the 1964-65 

school term; 

c. Planned pupil capacity of each school; 

d. Number of white pupils in attendance at school 

in each grade level as of most recent dates for which 

figures are available for 1964-65 term; 

e. Number of Negro pupils in attendance at school 

in each grade level as of most recent date for which 

figures are available for 1964-65 term; 

f. Number of Negro teachers and other administra- 

tive or professional personnel and the number of white 

teachers, etc., employed at each school during 1964-65 

school term; 

g. Pupil-teacher ratio at each school during 1964- 

65 school term (most recent available figures); 

h. Average class size for each school during 1964- 

65 school term (most recent available figures); 

i. Name and address of principal of each school.  



  

  
  

  

16a 

2. Furnish a map or maps indicating the attendance 

areas served by each school in the system during the 1963- 

64 term and the 1964-65 term. If no such map or maps can 

be furnished, state where such maps or other descriptions 

of the attendance areas may be found and inspected. 

3. State the number of Negro pupils and the number of 

white pupils, by grade level, residing in each attendance 

area established by the School Board during the 1964-65 

school term. If definite figures are unavailable, give the 

best projections or estimates available, stating the basis 

for any such estimates or projections. 

4. State whether any pupils are transported by school 

buses to schools within the school division, and if there are 

any, give the average daily attendance of transported stu- 

dents during 1964-65 term, stating separately the number 

of white pupils and the number of Negro pupils in the ele- 

mentary grades and in the high schools and in the junior 

high schools. 

5. Furnish a map or maps indicating the bus routes in 

effect throughout the school division during the 1963-64 

term and for the 1964-65 term (indicate for each bus route 

the name and address of the bus driver and the race of the 

students transported). 

6. State with respect to the 1964-65 term, the total num- 

ber of white pupils who reside in the attendance area of 

an all-Negro school, but were in attendance at an all-white 

or predominantly white school. Indicate with respect to 

such pupils the following: 

a. Number, by grade, residing in the attendance 

area of each Negro school; 

 



  

17a 

b. The schools actually attended by white pupils 

residing in the attendance area of each Negro school. 

7. State the total number of Negro pupils who were 

initially assigned to attend all-white or predominantly white 

schools for the first time during either the 1963-64 school 

term or the 1964-65 term. Give a breakdown of these totals 

by schools and grades. 

8. State whether during the 1964-65 term it was neces- 

sary at any schools to utilize for classroom purposes any 

areas not primarily intended for such use, such as library 

areas, teachers’ lounges, cafeterias, gymnasiums, ete. If so, 

list the schools and facilities so utilized. 

9. State whether a program or course in Distributive 

Education is offered in the school system and if so at what 

schools it is offered. 

10. Are any special teachers for subjects such as art and 

music provided ? 

11. If so, state: 

a. The number of such special teachers in the sys- 

tem; 

b. The number of full-time special teachers; 

c. The number of part-time special teachers; 

d. The schools to which they are assigned for the 

current school year; 

e. The schools to which they were assigned for the 

preceding school year.  



  

  

    

18a 

12. Indicate whether a program of vocational education 

was offered in any school or schools in the system during 

the 1963-64 or the 1964-65 school term. 

13. If so, state for each such year the name of each vo- 

cational education course at each school and the number 

of pupils enrolled therein; and give the number of indi- 

viduals teaching vocational education at each school. 

14. Furnish a statement of the curriculum offered at each 

junior high school and each high school in the system dur- 

ing the 1964-65 term. 

15. Furnish a list of the courses of instruction, if any, 

which are available to seventh grade students who attend 

junior high schools in the system but are not available to 

those seventh grade pupils assigned to elementary schools. 

16. State whether any summer school programs operated 

by the School Board have been operated on a desegregated 

basis with Negro and white pupils attending the same 

classes. 

17. Are any buildings of frame construction presently 

being utilized for schools? If so, which ones? 

18. Are any of the school buildings in need of major 

repairs? If so, which ones? 

19. State with respect to any new school construction 

which is now contemplated, the following with respect to 

each such project: 

a. Location of contemplated school or addition;



  

19a 

b. Size of school, present and proposed number of 

classrooms, grades to be served, and projected ca- 

pacity; 

c. Estimated date of completion and occupancy; 

d. Number of Negro pupils and number of white 

pupils attending grades to be served by such school 

who reside in existing or projected attendance area 

for such school. 

20. State as to each teacher and principal first employed 

by the School Board during the school year 1964-65 and 

each of the four preceding school terms the following: 

a. His or her name, age at time of such employment, 

sex, race; 

b. Initial date of employment by the defendant 

School Board; 

c. Teaching experience prior to employment by de- 

fendant School Board; 

d. College from which graduated and degrees 

earned; 

e. Major subjects studied in college and in graduate 

school; 

f. Certificate from State Board of Education held 

at time of initial employment by defendant School 

Board, date thereof, and specific endorsements thereon; 

g. The school and (elementary) grade or (high 

school) subjects which he was assigned to teach at 

time of initial employment; 

h. Ratings earned for each year since initial employ- 

ment by defendant School Board.  



  

  

  

20a 

21. Are any records maintained which reflect the turn- 

over of teachers in each school? 

22. If so, state: 

a. Type of records maintained; 

b. For what periods such records are maintained; 

c. Where they are located; 

d. In whose custody they are maintained. 

23. Are any records maintained which reflect the mobil- 

ity of children in and out of the school system and in and 

out of specific schools, including transfers and dropouts? 

24. If so, state: 

a. Type of records maintained; 

b. Where these records are located; 

c. In whose custody they are maintained. 

25. State the amount of funds received through programs 

of Federal assistance to education during each of the school 

sessions 1963-64 and 1964-65. 

26. State whether any pledge of non-diserimination has 

been signed by or on behalf of defendant School Board. 

27. Give a copy of any plans for desegregation submitted 

to the Department of Health, Education and Welfare or 

to any other agency of the State or Federal Government. 

PLEASE TAKE NoTiCcE that a copy of such answers must 

be served upon the undersigned within fifteen days after 

service. 

/s/ Hexry L. Marsa III 

Of Counsel for Plaintiffs 

 



  

21a 

Answer 

(Filed June 1, 1965) 

The undersigned defendants for Answer to the Complaint 

exhibited against them say as follows: 

1. These defendants deny that the amount in contro- 

versy herein exceeds the sum of Ten Thousand Dollars 

($10,000.00) as alleged in paragraph 1 (a) of the Com- 

plaint. 

2. These defendants deny that this Court has jurisdiec- 

tion under Title 28, United States Code, Section 1331 or 

Title 28, United States Code, Section 1343(3) or Title 42, 

United States Code, Section 1983 to grant any of the relief 

prayed for in the Complaint. 

3. The allegations of paragraphs 2 and 3 of the Com- 

plaint are neither admitted or denied but the defendants 

believe the allegations to be essentially true. 

4. These defendants specifically deny that there are 

questions of law and fact affecting the rights of all other 

Negro children attending public schools in the said po- 

litical subdivision and call for strict proof thereof and of 

the fact that it is impracticable to bring all before the 

Court who desire the relief being sought. These defen- 

dants affirmatively allege that, as will hereinafter more 

fully appear, the Constitutional and statutory rights of 

all children in the said political subdivision, in so far as 

public schools are concerned, are protected by the defen- 

dants and the desire for the relief being sought is common 

only to the named plaintiffs. 

5. These defendants deny that grounds for a class ac- 

tion exist as alleged in paragraph 5 of the Complaint and  



  

22a 

deny that those constituting the group seeking relief herein 

contributed taxes in excess of $10,000.00 and call for strict 

proof. 

6. The allegations of paragraphs 6, 7, 8 and 9 of the 

Complaint are admitted insofar as they assert the existence 

of various Constitutional and statutory provisions of the 

Commonwealth of Virginia. These defendants are not re- 

quired and therefore do not admit or deny the accuracy 

of the plaintiffs interpretation of the provisions of law to 

which reference is made. 

7. These defendants believe the allegations of paragraph 

10 to be correct except that they believe that the Pupil 

Placement Board would refuse to follow any recommen- 

dations which denied an application due to the race of the 

applicant whether the applicant be Negro or white. 

8. These defendants, in answer to paragraph 11 of the 

Complaint, assert that the assignment procedures avail- 

able to the plaintiffs afford an adequate means for ob- 

taining all rights to which they are entitled. 

9. The allegations of paragraphs 12, 13, 14, 15, 16, 17, 

18, 19 and 20 are denied except that the defendants admit 

having received the petition and letter referred to in para- 

graphs 13 and 14. 

10. Infant plaintiffs and all others eligible to enroll in 

the pupil schools in the political subdivision are permitted, 

under existing policy, to attend the school of their choice 

without regard to race subject only to limitations of space. 

WaEREFORE, defendants pray to be dismissed with their 

costs. 

(Signature of Counsel Omitted) 

   



  

23a 

Defendants’ Answers to Plaintiffs’ Interrogatories 

(Filed June 8, 1965) 

Now comes Byrd W. Long, Division Superintendent of 

schools of New Kent County, Virginia, and submits the 

following answers to interrogatories filed by the plaintiffs, 

said answers correspond to the numbered paragraphs in 

the interrogatories, to-wit: 

1. a. Date on which each school was erected: 

1. New Kent High School erected 1930 (Addi- 

tion 1934). Elementary Building erected 1954 (Ad- 

dition 1961). 

2. George W. Watkins High School erected 1950. 

Elementary Building erected 1958 (Addition 1961). 

b. Grades served by each school during the 1964-65 

school term: 

1. New Kent served grades one through twelve. 

2. George W. Watkins served grades one through 

twelve. 

c. Planned pupil capacity of each school: 

1. New Kent High School 207, New Kent Ele- 

mentary School 330. 

2. George W. Watkins High School 207, George 

W. Watkins Elementary School 420. 

d. Pupils by grades—New Kent (All White) 

Elementary: 1-54; 2-61; 3-51; 4-57; 5-48; 6-b4; 

7-42. 

High School: 8-41; 9-49; 10-42; 11-33; 12-20.  



    

24a 

e. Pupils by grades—George W. Watkins (All 

Colored) 

Elementary: 1-87; 2-73; 3-94; 4-79; 5-60; 6-77; 

7-68. 

High School: 8-49; 9-43; 10-34; 11-37; 12-38. 

f. Negro school—1 Principal, 1 Librarian, 26 Teach- 

ers, 1 Supervisor, 1 Counselor 

White school—1 Principal, 1 Librarian, 26 Teach- 

ers, 1 Supervisor, 1 Counselor 

g. Pupil-teacher ratio at each school during 1964-65 

school term: New Kent-22—George W. Watkins-28 

h. Average class size for each school during 1964-65 

school term, Grades 1-12: New Kent-21—George W. 

Watkins-26 

i. Name and address of principal of each school: Ger- 

ald W. Tudor, New Kent High School, New Kent Vir- 

ginia; Todd W. Dillard, George W. Watkins High 

School, Quinton, Va. 

2. New Kent County has no attendance areas. A map 

of the County may be obtained from the Virginia Depart- 

ment of Highways. 

3. As stated in No. 2 above, New Kent County is not 

divided into school attendance areas. 

4. Eleven school buses transport pupils to the George 

W. Watkins school. Ten school buses transport pupils to 

the New Kent School. One bus transports 18 Indian chil- 

dren to a Charles City School. By agreement this bus also 

transports 60 Charles City children. 

  
 



  
  

25a 

White pupils transported—>548 

Negro pupils transported—710 

5. Bus routes in 1963-64 and 1964-65 are the same. 

See attached maps—names of drivers of buses are shown 

on maps. (Exhibits A and B) 

6. As stated in No. 2 and 3 above, New Kent County 

is not divided into attendance areas. 

7. New Kent County Schools have been operated on a 

Freedom of Choice Plan administered by the State Pupil 

Placement Board since the establishment of the Pupil Place- 

ment Board. To September 1964, no Negro pupil had applied 

for admission to the New Kent School and no White pupil 

had applied for admission to the George W. Watkins School. 

8. Both schools are crowded beyond capacity in the 

high school departments. 

New Kent High School: Two basement areas, a 

conference room, stage dressing room, and the audi- 

torium are used for classes. 

George W. Watkins High School: Two basement 

areas, clinic room, and a part of the Vocational Shop 

are used for classes. 

9. Distributive Education is not offered in either school. 

10. There are special teachers for subjects such as art 

and music. 

11. a. New Kent High School—Part-time music teach- 

er. George W. Watkins High School—Part-time music  



  

26a 

teacher. New Kent Elementary School—Part-time music 

teacher. 

b. One—New Kent School—Full time. 

o . One—George W. Watkins School—Part-time. 

d. Stated in b. and ec. 

e. Same as stated in b. and ec. 

12. Vocational Home Economics and Vocational Agri- 

culture were offered in both schools during 1963-64 and 

during 1964-65. 

13. Substantially the same for 1964-65 and 1963-64. 

New Kent High School offered Vocational Agricul- 

ture and Home Economics. Vocational Agriculture: 

1 teacher, 63 pupils. Home Economics: 1 teacher, 32 

pupils. 

George W. Watkins High School offered Vocational 

Agriculture and Home Economics. Vocational Agri- 

culture: 1 teacher, 52 pupils. Home Economics: 1 teach- 

er, 56 pupils. 

14. New Kent County has no junior high schools. Each 

of the two schools are operated on the plan called the 7-5 

plan, which consists of 7 elementary grades and 5 high 

school grades. 

Each high school offers the following: Academic 

Curriculum, Vocational Curriculum, General Course. 

The Academic Curriculum is geared mainly for pupils 

preparing for college. 

| 

   



27a 

The Vocational Course is offered pupils not planning for 

college, and a boy may major in Agriculture; a girl in Home 

Making; and a boy or girl may major in Commercial 

courses. 

Those pupils planning to seek work in general employ- 

ment may enroll in a general course. 

Each high school has a guidance counselor who attempts 

to aid the pupil and parent in the selection of a course ac- 

cording to the pupil’s aptitude and his desired type of 

employment after graduation. 

15. New Kent County has no Seventh grade pupils who 

take courses in the high school department. 

Each school in New Kent County is a combination high 

school and elementary school, but teachers do not work 

partly in high school and partly in elementary school. 

16. The School Board of New Kent County offers no 

summer school program in any school. 

17. At the George W. Watkins School the Agriculture 

building is a frame building. 

18. Extensive repairs were made at both schools during 

the summer of 1963 and 1964. No major repairs are needed 

at either school at the present time. 

19. a. New Kent School—campus type addition. George 

W. Watkins School campus type addition. 

b. New Kent School—4 classrooms planned: 2 sev- 

enth grade classrooms; 2 sixth grade classrooms; two 

toilets to serve the four rooms. This addition will serve 

6th & 7th grade pupils at the above school. George  



20. 

  

28a 

W. Watkins School—4 classrooms planned: 2 seventh 

grade classrooms; 2 sixth grade classrooms; two toilets 

to serve the four rooms. This addition will serve 6th & 

7th grade pupils at the above school. 

c. A completion date has not been set for this project 

as State Literary Loan funds have not been released. 

The two above projects will be let to bid at the same 

time and one contract will be executed for both of the 

projects. 

d. New Kent County has no attendance areas. 

George W. Watkins High School and Grade School: 

a. Todd W. Dillard, Principal, Male, age 30, Negro 

b. Employed April, 1964, effective July 1, 1964 

c. Four years experience 

d. B.S. Virginia State College—Work completed 

for Masters Degree 

e. Science and Mathematics Major 

f. Collegiate Professional Certificate 

g. Does not teach—full-time Principal 

h. Rated as superior 

New Kent High School and Grade School: 

a. Gerald W. Tudor, Principal, Male, age 28, White 

b. Employed July 14, 1964 

c. Five years experience 

d. B.S. East Carolina College—Work completed for 

Masters Degree 

  

er
 

mem
 m
n
 
A 

| 
| 
| 
| 

   



  

29a 

e. Physical Education 

f. Collegiate Professional Certificate 

g. Does not teach—full-time Principal 

For information regarding teachers, see attached 

Exhibit “O°, 

21. Records in the School Board Office will reflect the 

turnover of teachers in each school. 

| 22. Contract with teachers are executed annually for 

i a period of one year. A report of teachers contracted with 

for each year is filed in the school board office. 

a. As stated above 

b. For past 5 years 

ce. School Board Office 

d. The Clerk of the School Board 

23. Teachers’ attendance registers record entries, re- 

entries and withdrawals. No other special records are kept. 

24. Teachers registers 

a. Same as above 

b. School Board Office 

c. Clerk of School Board 

  25. Federal Funds 1963-64 

School. Lunch ..............ccieeiiseisimssnionsorsercnns $ 4,554.68 

PL STL... coocreccrenccrinsaiconasinsrsnriacsincrnonsrienoviies 9,612.00 

| NDBA icine chitin 1,572.00 

CMIAANes o.oo ne 2,000.00 
nem es 

A 30120) Ln En LE CO ro $17,738.68 

|  



  

30a 

Federal Funds—Estimated—1964-65 

  

BSehool Lael in is arsiniasisasid ingen $ 5,500.00 

3 00 TRA CLLR SR LE SS 9,800.00 

NA LL didi imearins 1,750.00 

AAMC i.e... eosnemerssoinsssussarivinss ass: sionsossamsdinsiboses 2,000.00 

POLO] |... civerecienirssissgessvesis atariisine srs nanssshasians $19,050.00 

26. Yes 

HEW Form 441 

27. Plan to accompany HEW Form 441 has not been 

completed at this date. 

/s/ Byrp W. Lona 

Byrd W. Long, Division Superin- 

tendent of Schools of New Kent 

County, Virginia 

J * * * EJ 

   



  

3la 

Exhibit C 

20. Contwmued 

Paul Gilley, age 22, white, male, b. 1963, c¢. None, d. 

V.PI., B.S, e. Agriculture, f. Collegiate Professional, 

Agricultural, g. Agriculture, New Kent High School, h. 

Teachers are not rated in this Division. 

Edward J. Stansfield, age 24, white, male, b. 1961, ec. 

None, d. Houghton, B.A., e. Sociology, f. Collegiate, Soci- 

ology, History, English, g. History, English, New Kent 

High School. 

Billy R. Ricks, age 21, white, male, b. 1964, c. None, d. 

East Carolina, B.A., e. History and Social Science, f. Col- 

legiate History and Social Science, g. History, New Kent 

High School. 

John IK. Averett, age 25, white, male, b. 1963, c. 2 years, 

d. University of Richmond, no degree, e. Physical Educa- 

tion, f. Special License, g. Math, Physical Education, New 

Kent High School. 

Jayne P. Thomas, age 31, white, female, b. 1962, c. 2 

years, d. Madison, B.M. Education, e. Music, f. Collegiate 

Professional, Music, g. Music, New Kent High and Ele- 

mentary School. 

Mary W. Potts, age 38, white, female, b. 1963, c. 4 years, 

d. Longwood, B.S., e. English, Chemistry, f. Collegiate 

Professional 6th and 7th grades, g. 7th grade, New Kent 

Elementary School. 

Alice V. Fisher, age 56, white, female, b. 1963, ¢. 16 

years, d. Mary Washington, no degree, e. Elementary Edu- 

cation, f. Special License, g. 5th grade, New Kent Ele- 

mentary.  



  

32a 

Shirley F. Francisco, age 31, white, female, b. 1964, c. 2 

years, d. Madison, no degree, e. Klementary Education, f. 

Special License, g. 2nd grade, New Kent Elementary. 

Patricia B. Averett, age 20, white, female, b. 1963, ec. 

None, d. Ferrum, no degree, e. Elementary Education, f. 

Special License, g. 1st grade, New Kent Elementary School. 

Murray Carson, age 53, white, male, b. 1964, c. None, 

d. Averett, no degree, e. English and History, f. Special 

License, g. 1/2 day English, New Kent High School. 

Laurenstine Porter, age 22, Negro, female, b. 1964, 

c. None, d. North Carolina College B.S., e. Library, f. Col- 

legiate, Health and Physical Education, Library Science, 

g. Librarian, G. W. Watkins High & Elementary School. 

Guy A. Boykins, age 57, Negro, male, b. 1960, ¢. None, 

d. Virginia Union University, A.B., e. Social Studies and 

History, f. Collegiate Professional, English, g. Social Stud- 

ies and History, G. W. Watkins High School. 

James KE. Coleman, age 23, Negro, male, b. 1964, c. None, 

d. Virginia Union, no degree, e. Chemistry, f. Special Li- 

cense, Science and Physical Education, g. Science and Phys- 

ical Education, G. W. Watkins High School. 

Edith Jackson, age 24, Negro, female, b. 1960, c¢. None, 

d. Virginia Union, B.S., e. Business, f. Collegiate Profes- 

sional, Business, g. Commercial, G. W. Watkins High 

School. 

Gloria Miller, age 41, Negro, female, b. 1964, c. 2 years, 

d. Virginia Union, B.A., e. Elementary, f. Collegiate Pro- 

fessional—English and History, g. English and French, 

G. W. Watkins High School. 

John A. Baker, age 39, Negro, male, b. 1961, ec. 13 years, 

d. Wilburforce University, B.S., e. Agriculture, f. Collegiate 

Professional, g. Agriculture, G. W. Watkins High School. 

   



  

33a 

Charles J. Washington, Sr., age 53, Negro, male, b. 1962, 

¢. None, d. Virginia Union, B.A., e. English, f. Collegiate 

Professional—English and Latin, g. English, G. W. Wat- 

kins High School. 

Seth Pruden, age 37, Negro, male, b. 1960, c. None, d. 

Virginia Union, B.S., e. History, f. Collegiate Professional 

—French and History, g. 7th grade, G. W. Watkins 

Elementary School. 

Phillip Battle, age 24, Negro, male, b. 1963, c. None, d. 

St. Paul’s, B.A., e. History and Social Sciences, f. Col- 

legiate—History and Social Sciences, g. 7th grade, G. W. 

Watkins Elementary School. 

Natalie Boykins, age 24, Negro, female, b. 1964, ¢. 2 

years, d. Virginia State, B.A., e. Sociology, f. Collegiate— 

Sociology, g. 6th grade, G. W. Watkins Elementary School. 

Julia Boyce, age 34, Negro, female, b. 1961, c. 10 years, 

d. Virginia State, B.S., e. English and Physical Education, 

f. Collegiate Professional—All grade subjects in 6th and 

7th, g. 5th grade, G. W. Watkins Elementary School. 

Willie Gillenwater, age 34, Negro, female, b. 1963, c. 2, 

d. Virginia Union, B.A., e. Elementary Education, f. Col- 

legiate Professional—English, g. 4th grade, G. W. Wat- 

kins School—Elementary. 

Audrey Dillard, age 28, Negro, female, b. 1963, c. 6 years, 

d. Virginia State, A.B., e. Social Studies, f. Collegiate Pro- 

fessional—History, g. 4th Grade, G. W. Watkins School 

—Elementary. 

Dorothy Joyner, age 28, Negro, female, b. 1961, c. 3 

years, d. Winston Salem, B.S., e. English & History, f. Col- 

legiate Professional—Elementary, g. 2nd grade, G. W. 

Watkins School—Elementary. 

Susie Bates, age 23, Negro, female, b. 1962, c¢. None, 

d. Virginia State, B.S., e. Elementary, f. Collegiate Pro- 

fessional—Grades 1-7, g. 1st grade, G. W. Watkins School 

—FElementary.  



  

34a 

Plan for School Desegregation 

(Filed May 10, 1966) 

New Kent County PusBLIic ScHOOLS 

ProviDENCE FORGE, VIRGINIA 

. ANNUAL FrEEpoM or CHOICE OF SCHOOLS 

A. The County School Board of New Kent County 

has adopted a policy of complete freedom of 

choice to be offered in grades 1, 2, 8, 9, 10, 11, 

and 12 of all schools without regard to race, color, 

or national origin, for 1965-66 and all grades 

after 1965-66. 

. The choice is granted to parents, guardians and 

persons acting as parents (hereafter called 

“parents”) and their children. Teachers, prin- 

cipals and other school personnel are mot per- 

mitted to advise, recommend or otherwise in- 

fluence choices. They are not permitted to favor 

or penalize children because of choices. 

. PuriLs ExTERING FIRST GRADE 

Registration for the first grade will take place, 

after conspicuous advertising two weeks in ad- 

vance of registration, between April 1 and May 

A fromB8:00 A. M to 2:00 M. 

When registering, the parent will complete a 

Choice of School Form for the child. The child 

may be registered at any elementary school in 

this system, and the choice made may be for that 

   



35a 

school or for any other elementary school in the 

system. The provisions of Section VI of this plan 

with respect to overcrowding shall apply in the 

assignment to schools of children entering first 

grade. 

III. PuriLs ExTErRING OTHER (GRADES 

A. Each parent will be sent a letter annually ex- 

plaining the provisions of the plan, together with 

a Choice of School Form and a self-addressed 

return envelope, by April 1 of each year for 

pre-school children and May 15 for others. 

Choice forms and copies of the letter to parents 

will also be readily available to parents or stu- 

dents and the general public in the school offices 

during regular business hours. Section VI ap- 

plies. 

B. The Choice of School Form must be either mailed 

or brought to any school or to the Superintend- 

ent’s Office by May 31st of each year. Pupils 

entering grade one (1) of the elementary school 

or grade eight (8) of the high school must ex- 

press a choice as a condition for enrollment. Any 

pupil in grades other than grades 1 and 8 for 

whom a choice of school is not obtained will be 

assigned to the school he is now attending. 

IV. PuriLs Newry ENTERING SCHOOL SYSTEM oR CHANG- 

ING RESIDENCE WITHIN IT 

A. Parents of children moving into the area served 

by this school system, or changing their residence 

within it, after the registration period is com-  



  

36a 

pleted but before the opening of the school year, 

will have the same opportunity to choose their 

children’s school just before school opens during 

the week of August 30th, by completing a Choice 

of School Form. The child may be registered at 

any school in the system containing the grade 

he will enter, and the choice made may be for 

that school or for any other such school in the 

system. However, first preference in choice of 

schools will be given to those whose Choice of 

School Form is returned by the final date for 

making choice in the regular registration period. 

Otherwise, Section VI applies. 

. Children moving into the area served by this 

school system, or changing their residence within 

it, after the late registration period referred to 

above but before the next regular registration 

period, shall be provided with registration forms. 

This has been done in the past. 

V. REesipENT AND NON-RESIDENT ATTENDANCE 

This system will not accept non-resident students, 

nor will it make arrangements for resident stu- 

dents to attend public schools in other school 

systems where either action would tend to pre- 

serve segregation or minimize desegregation. 

Any arrangement made for non-resident students 

to attend public schools in this system, or for 

resident students to attend public schools in an- 

other system, will assure that such students will 

be assigned without regard to race, color, or na- 

tional origin, and such arrangement will be ex- 

   



  

37a 

plained fully in an attachment made a part of 

this plan. Agreement attached for Indian chil- 

dren. 

VI. OVERCROWDING | 

| A. No choice will be denied for any reason other 

than overcrowding. Where a school would be- 

| come overcrowded if all choices for that school 

| were granted, pupils choosing that school will be 

| assigned so that they may attend the school of 

their choice nearest to their homes. No preference 

will be given for prior attendance at the school. 

| B. The Board plans to relieve overcrowding by 

building during 1965-66 for the 1966-67 session. 

VII. TRANSPORTATION 

Transportation will be provided on an equal basis 

without segregation or other discrimination be- 

cause of race, color, or national origin. The right 

to attend any school in the system will not be 

restricted by transportation policies or practices. 

To the maximum extent feasible, busses will be 

routed so as to serve each pupil choosing any 

school in the system. In any event, every student 

eligible for bussing shall be transported to the 

school of his choice if he chooses either the for- 

merly white, Negro of Indian school. 

VIII. Services, F'AciLITIES, ACTIVITIES AND PROGRAMS 

There shall be no diserimination based on race, 

color, or national origin with respect to any ser-  



  

38a 

vices, facilities, activities and programs spon- 

sored by or affiliated with the schools of this 

school system. 

IX. STAFF DESEGREGATION 

A. Teacher and staff desegregation is a necessary 

part of school desegregation. Steps shall be taken 

beginning with school year 1965-66 toward elimi- 

nation of segregation of teaching and staff per- 

sonnel based on race, color, or national origin, 

including joint faculty meetings, in-service pro- 

grams, workshops, other professional meetings 

and other steps as set forth in Attachment C. 

. The race, color, or national origin of pupils will 

not be a factor in the initial assignment to a par- 

ticular school or within a school of teachers, ad- 

ministrators or other employees who serve pupils, 

beginning in 1966-67. 

. This school system will not demote or refuse to 

reemploy principals, teachers and other staff 

members who serve pupils, on the basis of race, 

color, or national origin; this includes any de- 

motion or failure to reemploy staff members be- 

cause of actual or expected loss of enrollment in 

a school. 

. Attachment D hereto consists of a tabular state- 

ment, broken down by race, showing: 1) the num- 

ber of faculty and staff members employed by 

this system in 1964-65; 2) comparable data for 

1965-66 ; 3) the number of such personnel demoted, 

discharged or not reemployed for 1965-66; 4) 

   



  

39a 

the number of such personnel newly employed for 

1965-66. Attachment D further consists of a cer- 

tification that in each case of demotion, discharge 

or failure to reemploy, such action was taken 

wholly without regard to race, color, or national 

origin. 

X. PusBricity aAxD CoMMUNITY PREPARATION 

Immediately upon the acceptance of this plan by 

the U. S. Commissioner of Kducation, and once a | 

month before final date of making choices in 1966, 

copies of this plan will be made available to all 

interested citizens and will be given to all tele- 

vision and radio stations and all newspapers 

serving this area. They will be asked to give 

conspicuous publicity to the plan in local news 

section of the Richmond papers. The newspaper 

coverage will set forth the text of the plan, the 

letter to parents and Choice of School Form. 

Similar prominent notice of the choice provision 

will be arranged for at least once a month there- 

after until the final date for making choice. In 

addition, meetings and conferences have been and 

will be called to inform all school system staff 

members of, and to prepare them for, the school 

desegregation process, including staff desegre- 

gation. Similar meetings will be held to inform 

Parent-Teacher Associations and other local com- 

munity organizations of the details of the plan, 

to prepare them for the changes that will take 

place.  



    

XI. CERTIFICATION 

This plan of desegregation was duly adopted by 

the New Kent County School Board at a meeting 

duly called and held on August 2, 1965. 

Siemeds ........ i 

(Chairman, Superintendent or 

other authorized official) 

    

 



  

41a 

Attachment A 

(School Board Letterhead) 

Date Sent to Parents 

and Guardians: 

May 15, 1966 

CHOICE OF SCHOOL FORM 

This form is provided for you to choose a school for your 

child to go to next year. The form must be either mailed 

or brought to any school or to the Superintendent’s office 

at the address above by May 31, 1966. 

1 NameloZ Child" = i Sh ad a cl nos ne 

Last First Middle 

2. Date of Pupil’s Birth (if entering first grade) ............... 

3. Grade Pupil Bhoible for o.oo. 

4. School Last Attended... ties 

 



    

42a 

5. School Chosen (Mark X beside school chosen) 

[] George W. Watkins High and Elementary 

1-12 Quinton, Virginia 

Cl] New Kent High and Elementary 

1-12 New Kent, Virginia 

r] Samaria School (Indian) 

1-12 Charles City, Va. 

Signature -............   

Address 

This block is to be filled in by the Superintendent’s office, 

not by parents. School chosen: ...........cee..cin.c.. School as- 

signed tor ...........ci...e...-, If different, explain: ..........e.. 

csesnnrevsseaw   

 



  

43a 

Attachment B 

(School Board Letterhead) 

May 15, 1966 

Dear Parent: 

A plan for the desegregation of our school system has been 

put into effect so that our schools will operate in all re- 

spects without regard to race, color, or national origin. 

The desegregation plan provides that each pupil and his 

parent or guardian has the absolute right to choose each 

year the school the pupil will attend. No teacher, princi- 

pal, or other school official is permitted to advise you, or 

make recommendations or otherwise influence your deci- 

sion. No child will be favored or penalized because of the 

choice made. 

Attached is a Choice of School Form listing the names and 

locations of all schools in our system and the grades they 

include. Please mark a cross beside the school you choose, 

and return the form in the enclosed envelope or bring it 

to any school or the Superintendent’s office by May 31, 1966. 

No choice will be denied for any reason other than over- 

crowding. Anyone whose choice is denied because of over- 

crowding will be offered his choice from among all other 

schools in the system where space is available in his grade. 

School bus routes will be on a desegregated basis. There 

will be no discrimination based on race, color, or national 

origin in any school-connected services, facilities, activities 

and programs.  



    

44a 

For pupils entering grades one (1) and eight (8) a Choice 

of School Form must be filled out as a requirement for 

enrollment. Children in other grades for whom no choice is 

made will be assigned to the school they are presently at- 

tending. 

Sincerely yours, 

Superintendent 

 



  

45a 

Attachment C 

Additional Steps Toward Staff Desegregation 

Below are possible steps toward faculty and staff desegre- 

gation which have been taken in other school systems and 

one or more of which you may deem appropriate for your 

system to adopt at this time. Please indicate by checking 

the appropriate box or boxes and attach this page to the 

plan when submitting it. 

1 All members of the supervisory staff will be as- 

signed to serve schools, teachers and pupils without 

regard to race, color or national origin. 

2. i Teachers and staff members who serve more than 

one school, such as librarians, music and art teach- 

ers, nurses, counselors will be assigned to serve 

schools, teachers and pupils without regard to race, 

color, or national origin. 

3. @ During the first semester of 1965-66, “pioneer teach- 

ers” of both races will be selected and given special 

preparation and, during the second semester of 

school year 1965-66, assigned to exchange class- 

rooms and schools periodically. 

4. 3 Institutions, agencies, organizations and individuals 

that refer teachers and staff to school systems in 

this State will, during school year 1965-66 be in- 

formed of this school system’s policy of nondis- 

crimination in filling positions for serving pupils 

in this school system and they will be asked to so 

inform persons seeking referrals.  



  

0
 

  

46a 

In the future, there will be no requirement or re- 

quest for the photograph of or racial identification 

of applicants for employment, reemployment or 

reassignment. 

All teaching vacancies will be prominently posted 

in all schools and applicants will be considered with- 

out regard to race, color or national origin. 

No new teacher will hereafter be employed who is 

not willing to work on a completely desegregated 

basis. 

; Gi Other steps as follows: 

 



  

47a 

First Memorandum of the District Court 

(Filed May 17, 1966) 

The infant plaintiffs, as pupils or prospective pupils in 

the public schools of New Kent County, and their parents 

or guardians have brought this class action asking that the 

defendants be required to adopt and implement a plan 

which will provide for the prompt and efficient racial 

desegregation of the county schools, and that the defen- 

dants be enjoined from building schools or additions and 

from purchasing school sites pending the court’s approval 

of a plan. The plaintiffs also seek attorney’s fees and costs. 

The defendants have moved to dismiss on the ground that 

the complaint fails to state a claim upon which relief can 

be granted. They have also answered denying the material 

allegations of the bill. 

The facts are uncontested. 

New Kent is a rural county located east of the City of 

Richmond. Its school system serves approximately 1,300 

pupils, of which 740 are Negro and 550 are White. The 

school board operates one white combined elementary and 

high school, and one Negro combined elementary and high 

school. There are no attendance zones. Kach school serves 

the entire county. Indian students attend a school in 

Charles City County. 

On August 2, 1965 the county school board adopted a 

freedom of choice plan to comply with Title VI of the 

Civil Rights Act of 1964, 42 U. S. C. §2000.d-1, et seq. The 

choices include the Indian school in Charles City County. 

The county had operated under the Pupil Placement Act, 

§§22-232.1, et seq., Code of Virginia, 1950, as amended. 

As of September 1964 no Negro pupil had applied for  



    

48a 

admission to the white school. No Negro faculty member 

serves in the white school and no white faculty member 

serves in the Negro school. 

New construction is scheduled at both county schools. 

The case is controlled by the principles expressed in 

Wright v. School Bd. of Greenville County, Va., No. 4263 

(E. D. Va,, Jan. 27, 1966). An order similar to that en- 

tered in Greenville will deny an injunction restraining con- 

struction and grant leave to submit an amendment to the 

plan for employment and assignment of staff on a non- 

racial basis. The motion for counsel fees will be denied. 

/s/ Jorx D. BuTzNER, Jr. 

United States District Judge 

 



  

49a 

First Order of the District Court 

(Filed May 17, 1966) 

For reasons stated in the Memorandum of the Court this 

day filed in the Memorandum of the Court in Wright 

v. County School Board of Greenville County, Virgima, 

Civil Action No. 4263 (E. D. Va., Jan. 27, 1966), 

It 1s ApJUDGED and ORDERED: 

1. The defendants’ motion to dismiss is denied; 

2. The plaintiffs’ prayer for an injunction restraining 

school construction and the purchase of school sites is 

denied; 

3. The defendants are granted leave to submit on or be- 

fore June 6, 1966 amendments to their plan which will pro- 

vide for employment and assignment of the staff on a non- 

racial basis. Pending receipt of these amendments, the 

court will refer approval of the plan and consideration of 

other injunctive relief; 

4. The plaintiffs’ motion for counsel fees is denied; 

5. The case will be retained upon the docket with leave 

granted to any party to petition for further relief. 

The plaintiffs shall recover their costs to date. 

Let the Clerk send copies of this order and the Memo- 

randum of the Court to counsel of record. 

/s/ JouaN D. BuTzNER, JE. 

United States District Judge  



    

50a 

Defendants’ Plan Supplement 

(Filed June 6, 1966) 

The School Board of New Kent County recognizes its 

responsibility to employ, assign, promote and discharge 

teachers and other professional personnel of the school 

systems without regard to race, color or national origin. 

We further recognize our obligation to take all reasonable 

steps to eliminate existing racial segregation of faculty 

that has resulted from the past operation of a dual system 

based upon race or color. 

The New Kent Board recognizes the fact that New Kent 

County has a problem which differs from most counties in 

that the white citizens are the minority group. The Board 

is also cognizant of the fact that race relations are gen- 

erally good in this county, and Negro citizens share in 

county government. A Negro citizen is a member of the 

County Board of Supervisors at the present time. 

In the recruitment, selection and assignment of staff, the 

chief obligation is to provide the best possible education 

for all children. The pattern of assignment of teachers and 

other staff members among the various schools of this sys- 

tem will not be such that only white teachers are sought 

for predominantly white schools and only Negro teachers 

are sought for predominantly Negro schools. 

The following procedures will be followed to carry out 

the above stated policy: 

1. The best person will be sought for each position with- 

out regard to race, and the Board will follow the policy 

of assigning new personnel in a manner that will work 

toward the desegregation of faculties. We will not 

select a person of less ability just to accomplish de- 

segregation. 

 



  

Hla 

2. Institutions, agencies, organization, and individuals 

that refer teacher applicants to the school system will 

be informed of the above stated policy for faculty de- 

segregation and will be asked to so inform persons 

seeking referrals. 

. The School Board will take affirmative steps to allow 

teachers presently employed to accept transfers to 

schools in which the majority of the faculty members 

are of a race different from that of the teacher to be 

transferred. 

. No new teacher will be hereafter employed who is not 

willing to accept assignment to a desegregated faculty 

or in a desegregated school. 

. All Workshops and in-service training programs are 

now and will continue to be conducted on a completely 

desegregated basis. 

. All members of the supervisory staff will be assigned 

to cover schools, grades, teachers and pupils without 

regard to race, color or national origin. 

. All staff meetings and committee meetings that are 

called to plan, choose materials, and to improve the 

total educational process of the division are now and 

will continue to be conducted on a completely desegre- 

gated basis. 

. All custodial help, cafeteria workers, maintenance 

workers, bus mechanics and the like will continue to 
be employed without regard to race, color or national 

origin. 

. Arrangements will be made for teachers of one race to 

visit and observe a classroom consisting of a teacher 

and pupils of another race to promote acquaintance 

and understanding.  



    

52a 

Plaintiffs’ Exception to Plan Supplement 

(Filed June 10, 1966) 

The plaintiffs take exception to the defendants’ Plan 

Supplement adopted May 23, 1966 and filed herein pur- 

suant to leave granted in this Court’s order of May 17, 

1966 to submit amendments which will provide for employ- 

ment and assignment of the staff on a non-racial basis. 

 § 

The Supplement does not contain well-defined procedures 

which will be put into effect on definite dates. The Supple- 

ment does not even provide the “token assignments” which 

this Court warned would not suffice. 

II 

In all reality, the Supplement states the defendant school 

board’s refusal to take any initiative to desegregate the 

faculties of the several schools. 

WaEeREFORE, the plaintiffs pray that their exceptions be 

sustained and that the defendants be required to forthwith 

eliminate all facets of racial segregation and discrimination 

with respect to administrative personnel, teachers, clerical, 

custodial and other employees, transportation and other 

facilities, and the assignment of pupils to schools and class- 

rooms in the public schools of New Kent County and that 

the defendants be required to establish geographic attend- 

ance areas for each public school in said county and assign 

each child to the school so designated to serve his area of 

residence. 

/8/ 8. W. Tucker 

Of Counsel for Plamtiffs 

  

  

 



  
  

  

53a 

Memorandum of the Court 

(Filed June 28, 1966) 

This memorandum supplements the memorandum of the 

court filed May 17, 1966. The court deferred ruling on the 

school board’s plan of desegregation until after the board 

had an opportunity to amend the plan to provide for 

allocation of faculty and staff on a non-racial basis. The 

board has filed a supplement to the plan to accomplish 

this purpose. 

The plan and supplement are: 

I. 

AxNvuaAL FreepoMm oF CHOICE OF SCHOOLS 

A. The County School Board of New Kent County has 

adopted a policy of complete freedom of choice to be offered 

in grades 1, 2, 8, 9, 10, 11, and 12 of all schools without 

regard to race, color, or national origin, for 1965-66 and all 

grades after 1965-66. 

B. The choice is granted to parents, guardians and per- 

sons acting as parents (hereafter called ‘parents’) and their 

children. Teachers, principals and other school personnel 

are not permitted to advise, recommend or otherwise in- 

fluence choices. They are not permitted to favor or penalize 

children because of choices. 

11. 

PuriLs ExTERING OTHER GRADES 

Registration for the first grade will take place, after con- 

spicuous advertising two weeks in advance of registration, 

between April 1 and May 31 from 9:00 A.M. to 2:00 P.M. 

When registering, the parent will complete a Choice of  



  
  

  

54a 

Memorandum of the Court 

School Form for the child. The child may be registered at 

any elementary school in this system, and the choice made 

may be for that school or for any other elementary school 

in the system. The provisions of Section VI of this plan 

with respect to overcrowding shall apply in the assignment 

to schools of children entering first grade. 

111. 

PuriLs EnTERING OTHER (GRADES 

A. Fach parent will be sent a letter annually explaining 

the provisions of the plan, together with a Choice of School 

Form and a self-addressed return envelope, by April 1 of 

each year for pre-school children and May 15 for others. 

Choice forms and copies of the letter to parents will also 

be readily available to parents or students and the general 

public in the school offices during regular business hours. 

Section VI applies. 

B. The Choice of School Form must be either mailed 

or brought to any school or to the Superintendent’s Office 

by May 31st of each year. Pupils entering grade one (1) 

of the elementary school or grade eight (8) of the high 

school must express a choice as a condition for enrollment. 

Any pupil in grades other than grades 1 and 8 for whom 

a choice of school is not obtained will be assigned to the 

school he is now attending. 

IV. 

PuriLs NewLy ENTERING SCHOOL SYSTEM OR 

CuanciNG ResipENcE WiTHIN IT 

A. Parents of children moving into the area served by 

this school system, or changing their residence within it, 

 



  

ada 

Memorandum of the Court 

after the registration period is completed -but before the 

opening of the school year, will have the same opportunity 

to choose their children’s school just before school opens 

during the week of August 30th, by completing a Choice 

of School Form. The child may be registered at any school 

in the system containing the grade he will enter, and the 

choice made may be for that school or for any other such 

school in the system. However, first preference in choice of 

schools will be given to those whose Choice of School Form 

is returned by the final date for making choice in the regular 

registration period. Otherwise, Section VI applies. 

B. Children moving into the area served by this school 

system, or changing their residence within it, after the late 

registration period referred to above but before the next 

regular registration period, shall be provided with regis- 

tration forms. This has been done in the past. 

V. 

RESIDENT AND NON-RESIDENT ATTENDANCE 

This system will not accept non-resident students, nor 

will it make arrangements for resident students to attend 

public schools in other school systems where either action 

would tend to preserve segregation or minimize desegre- 

gation. Any arrangement made for non-resident students 

to attend public schools in this system, or for resident stu- 

dents to attend public schools in another system, will assure 

that such students will be assigned without regard to race, 

color, or national origin, and such arrangement will be ex- 

plained fully in an attachment made a part of this plan. 

Agreement attached for Indian children.  



    

56a 

Memorandum of the Court 

Yi 

OVERCROWDING 

A. No choice will be denied for any reason other than 

overcrowding. Where a school would become overcrowded 

if all choices for that school were granted, pupils choosing 

that school will be assigned so that they may attend the 

school of their choice nearest to their homes. No preference 

will be given for prior attendance at the school. 

B. The Board plans to relieve overcrowding by building 

during 1965-66 for the 1966-67 session. 

VII. 

TRANSPORTATION 

Transportation will be provided on an equal basis with- 

out segregation or other discrimination because of race, 

color, or national origin. The right to attend any school in 

the system will not be restricted by transportation policies 

or practices. To the maximum extent feasible, busses will 

be routed so as to serve each pupil choosing any school in 

the system. In any event, every student eligible for bussing 

shall be transported to the school of his choice if he chooses 

either the formerly white, Negro or Indian school. 

vil, 

Services, FaciLiTies, Activities AND Procrams 

There shall be no discrimination based on race, color, or 

national origin with respect to any services, facilities, ac- 

tivities and programs sponsored by or affiliated with the 

schools of this school system. 

 



o7a 

Memorandum of the Court 

IX 

STAFF DESEGREGATION 

A. Teacher and staff desegregation is a necessary part 

of school desegregation. Steps shall be taken beginning 

with school year 1965-66 toward elimination of segregation 

of teaching and staff personnel based on race, color, or 

national origin, including joint faculty meetings, in-service 

programs, workshops, other professional meetings and 

other steps as set forth in Attachment C. 

B. The race, color, or national origin of pupils will not 

be a factor in the initial assignment to a particular school 

or within a school of teachers, administrators or other em- 

ployees who serve pupils, beginning in 1966-67. 

C. This school system will not demote or refuse to re- 

employ principals, teachers and other staff members who 

serve pupils, on the basis of race, color, or national origin; 

this includes any demotion or failure to reemploy staff 

members because of actual or expected loss of enrollment 

in a school. 

D. Attachment D hereto consists of a tabular statement, 

broken down by race, showing: 1) the number of faculty 

and staff members employed by this system in 1964-65; 

2) comparable data for 1965-66; 3) the number of such per- 

sonnel demoted, discharged or not re-employed for 1965- 

66; 4) the number of such personnel newly employed for 

1965-66. Attachment D further consists of a certification 

that in each case of demotion, discharge or failure to re- 

employ, such action was taken wholly without regard to 

race, color, or national origin.  



  
  

  

58a 

Memorandum of the Court 

X. 

PusLicity AND CoMMUNITY PREPARATION 

Immediately upon the acceptance of this plan by the U. S. 

Commissioner of Education, and once a month before final 

date of making choices in 1966, copies of this plan will be 

made available to all interested citizens and will be given to 

all television and radio stations and all newspapers serving 

this area. They will be asked to give conspicuous publicity 

to the plan in local news sections of the Richmond papers. 

The newspaper coverage will set forth the text of the plan, 

the letter to parents and Choice of School Form. Similar 

prominent notice of the choice provision will be arranged 

for at least one a month thereafter until the final date for 

making choice. In addition, meetings and conferences have 

been and will be called to inform all school system staff 

members of, and to prepare them for, the school desegrega- 

tion process, including staff desegregation. Similar meet- 

ings will be held to inform Parent-Teacher Associations 

and other local community organizations of the details of 

the plan, to prepare them for the changes that will take 

place. 

SUPPLEMENT 

“The School Board of New Kent County recognizes its 

responsibility to employ, assign, promote and discharge 

teachers and other professional personnel of the school sys- 

tems without regard to race, color or national origin. We 

further recognize our obligation to take all reasonable steps 

to eliminate existing racial segregation of faculty that has 

resulted from the past operation of a dual system based 

upon race or color. 

   



  

59a 

Memorandum of the Court 

“The New Kent Board recognizes the fact that New 

Kent County has a problem which differs from most coun- 

ties in that the white citizens are the minority group. The 

Board is also cognizant of the fact that race relations are 

generally good in this county, and Negro citizens share in 

county government. A Negro citizen is a member of the 

County Board of Supervisors at the present time. 

“In the recruitment, selection and assignment of staff, the 

chief obligation is to provide the best possible education for 

all children. The pattern of assignment of teachers and 

other staff members among the various schools of this sys- 

tem will not be such that only white teachers are sought for 

predominantly white schools and only Negro teachers are 

sought for predominantly Negro schools. 

“The following procedures will be followed to carry out 

the above stated policy: 

1. The best person will be sought for each position 

without regard to race, and the Board will follow the 

policy of assigning new personnel in a manner that 

will work toward the desegregation of faculties. We 

will not select a person of less ability just to accomp- 

lish desegregation. 

2. Institutions, agencies, organization, and individ- 

uals that refer teacher applicants to the schools system 

will be informed of the above stated policy for faculty 

desegregation and will be asked to so inform persons 

seeking referrals. 

3. The School Board will take affirmative steps to 

allow teachers presently employed to accept transfers 

to schools in which the majority of the faculty members  



  
  

60a 

Memorandum of the Court 

are of a race different from that of the teacher to be 

transferred. 

4. No new teacher will be hereafter employed who 

is not willing to accept assignment to a desegregated 

faculty or in a desegregated school. 

5. All workshops and in-service training programs 

are now and will continue to be conducted on a com- 

pletely desegregated basis. 

6. All members of the supervisory staff will be as- 

signed to cover schools, grades, teachers and pupils 

without regard to race, color or national origin. 

7. All staff meetings and committee meetings that 

are called to plan, choose materials, and to improve the 

total educational process of the division are now and 

will continue to be conducted on a completely desegre- 

gated basis. 

8. All custodial help, cafeteria workers, maintenance 

workers, bus mechanics and the like will continue to 

be employed without regard to race, color or national 

origin. 

9. Arrangements will be made for teachers of one 

race to visit and observe a classroom consisting of a 

teacher and pupils of another race to promote acquaint- 

ance and understanding.” 

The plaintiffs filed exceptions to the supplement charging 

that it does not contain well defined procedures which will 

be put into effect on definite dates and that it demonstrates 

the board’s refusal to take any initiative to desegregate the 

staff. 

 



6la 

Memorandum of the Court 

The plan for faculty desegregation is not as definite as 

some plans received from other school districts. The court 

is of the opinion, however, that no rigid formula should be 

required. The plan will enable the school board to achieve 

allocation of faculty and staff on a non-racial basis. The 

plan and supplement satisfy the criteria mentioned in 

Wright v. School Board of Greensville County, Va., No. 

4263 (B.D. Va., Jan. 27 and May 13, 1966). 

Provision should be made for a registration period in the 

summer or immediately prior to the beginning of the 1966- 

67 term to allow pupils to exercise their choice of school. 

This is necessary because the supplement to the plan was 

adopted late in the school year. The summer or fall regis- 

tration should present no administrative difficulties. Many 

of the schools which have adopted a freedom of choice plan 

provide for such registration as a matter of course. 

It may become necessary for the board to modify the 

plan. It may become necessary to revoke in full or in part 

the approval that the court has given the plan. The case 

will remain on the docket for any of the parties to seek 

relief which future circumstances may require. 

/s/ JouN D. BurzNERr, JE. 

United States District Judge 

 



  

62a 

Order 

(Entered June 28, 1966) 

For reasons stated in the memorandum of the court this 

day filed and in Wright v. School Board of Greensville 

County, Va., No. 4263 (E.D. Va., Jan. 27 and May 13, 

1966), it is Apsupcep and Orperep that the plan adopted 

by the New Kent County School Board is approved. 

This case will be retained on the docket with leave 

granted to any party to seek further relief. 

Let the Clerk send copies of this order and of the mem- 

orandum of the court to counsel of record. 

/s/ JorN D. BuTzNER, J&R. 

United States District Judge 

   



  

63a 

Decision of the United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,792. 
  

Charles C. Green, Carroll A. Green and Robert C. Green, 

infants, by Calvin C. Green and Mary O. Green, 

their father and mother and next friends, 

and all others of the plaintiffs, 

Appellants, 

Versus 

County School Board of New Kent County, Virginia, et al., 

Appellees. 

  

Appeal FROM THE UNITED STATES DisTrRicT COURT FOR 

THE HASTERN DisTRICT OF VIRGINIA, AT RicEMOND. 

JouN D. BurznEgr, Jr., DistRICT JUDGE. 
  

(Argued January 9, 1967. Decided June 12, 1967.) 
  

Before HayxsworTH, Chief Judge, and SoBeLorF, BOREMAN, 

Bryan, J. Spencer Berr,* Winter and Craven, Circuit 

Judges, sitting en banc. 
  

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, 

Jr., Jack Greenberg and James M. Nabrit, ITI, on brief) 

for Appellants, and Frederick T. Gray (Williams, Mullen 

& Christian on brief) for Appellees. 
  

* Judge Bell sat as a member of the Court when the case was heard 

but died before it was decided.  



  

64a 

Decision of the United States Court of Appeals 

For the Fourth Circuit 

PER CURIAM : 

The questions presented in this case are substantially the 

same as those we have considered and decided today in 

Bowman v. County School Bd. of Charles City County. 

For the reasons stated there, the rulings of the District 

Court merit our substantial approval, but the case is neces- 

sarily remanded for further proceedings in accordance with 

the District Court’s order and our opinion in Bowman. 

Remanded. 

  

14 Cir. .... 7.24 ... (Decided this day). The special concurring 

opinion of Judge Sobeloff, in which Judge Winter joins, in Bowman is 

applicable to this case also. 

SE



60a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,793. 
  

Shirlette L. Bowman, Rhoda M. Bowman, Mildred A. 

Bowman, Richard M. Bowman and Sandra L. Bowman, 

infants, by Richard M. Bowman, their father and next 

friend, and all others of the plaintiffs, 

Appellants, 

VEYrSUS 

County School Board of Charles City County, 

Virginia, et al., 

Appellees. 

  

Appeal FROM THE UNITED STATES DisTRicT COURT FOR 

THE KAsSTERN DistricT oF VIRGINIA, AT RicmMoxD. 

JouN D. BurzNER, Jr. DistrICT JUDGE. 
  

(Argued January 9, 1967. Decided June 12, 1967.) 
  

Before Hay~xsworTH, Chief Judge, and SoBeLoFF, BOoREMAN, 

Bryan, J. Spencer Berr,* Winter and Craven, Circuit 

Judges, sitting en bane. 
  

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, 

Jr., Jack Greenberg and James M. Nabrit, III, on brief) 

for Appellants, and Frederick T. Gray (Williams, Mullen 

& Christian on brief) for Appellees. 
  

* Judge Bell sat as a member of the Court when the case was heard 

but died before it was decided.  



      

66a 

Opinion of the Umited States Court of Appeals 

For the Fourth Circuit 

HaynswortH, Chief Judge: 

In this school case, the Negro plaintiffs attack, as a dep- 

rivation of their constitutional rights, a “freedom of 

choice” plan, under which each Negro pupil has an ac- 

knowledged “unrestricted right” to attend any school in the 

system he wishes. They contend that compulsive assign- 

ments to achieve a greater intermixture of the races, not- 

withstanding their individual choices, is their due. We 

cannot accept that contention, though a related point af- 

fecting the assignment of teachers is not without merit. 

I 

“Freedom of choice” is a phrase of many connotations. 

Employed as descriptive of a system of permissive trans- 

fers out of segregated schools in which the initial assign- 

ments are both involuntary and dictated by racial criteria, 

it is an illusion and an oppression which is constitutionally 

impermissible. Long since, this court has condemned it. 

The burden of extracting individual pupils from discrimi- 

natory, racial assignments may not be cast upon the pupils 

or their parents. It is the duty of the school boards to 

eliminate the discrimination which inheres in such a system. 

Employed as descriptive of a system in which each pupil, 

or his parents, must annually exercise an uninhibited choice, 

and the choices govern the assignments, it is a very different 

1 Nesbit v. Statesville City Bd. of Edue., 4 Cir., 345 F.2d 333, 334 n. 3; 

Bradley v. School Bd. of Educ. of City of Richmond, 4 Cir., 345 F.2d 310, 

319 & n. 18; Wheeler v. Durham City Bd. of Edue., 4 Cir.,, 309 F.2d 

630, 633; Jeffers v. Whitley, 4 Cir.,, 309 F.2d 621; Marsh v. County 

School Bd. of Roanoke County, 4 Cir., 305 F.2d 94; Green v. School 

Bd. of City of Roanoke, 4 Cir., 304 F.2d 118; Hill v. School Bd. of City 

of Norfolk, 4 Cir., 282 F.2d 473; Jones v. School Bd. of City of Alex- 

andria, 4 Cir., 278 F.2d 72. 

 



  

67a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

thing. If each pupil, each year, attends the school of his 

choice, the Constitution does not require that he be de- 

prived of his choice unless its exercise is not free. This we 

have held, and we adhere to our holdings. 

Whether or not the choice is free may depend upon cir- 

cumstances extraneous to the formal plan of the school 

board. If there is a contention that economic or other 

pressures in the community inhibit the free exercise of the 

choice, there must be a judicial appraisal of it, for “freedom 

of choice” is acceptable only if the choice is free in the 

practical context of its exercise. If there are extraneous 

pressures whih deprive the choice of its freedom, the school 

board may be required to adopt affirmative measures to 

counter them. 

A panel of the Fifth Circuit? recently had occasion to con- 

centrate its guns upon the sort of “freedom of choice” plan 

we have not tolerated, but, significantly, the decree it pre- 

scribed for its district courts requires the kind of “freedom 

of choice” plan we have held requisite and embodies stan- 

dards no more exacting than those we have imposed and 

sanctioned. 

The fact that the Department of Health, Education and 

Welfare has approved the School Board’s plan is not deter- 

minative. The actions of that department, as its guidelines, 

are entitled to respectful consideration, for, in large mea- 

2 Wheeler v. Durham City Bd. of Edue., 4 Cir., 346 F.2d 768, 773; 

Bradley v. School Bd. of Edue. of City of Richmond, 4 Cir., 345 F.2d 310, 
313, vacated and remanded on other grounds, 382 U.S. 103. See Jeffers v. 
Whitley, 4 Cir., 309 F.2d 621. 

3 United States v. Jefferson County Board of Education, 5 Cir., 372 
F.2d 836, aff’d on rehearing en bane, ...... Pd... ; see also, Deal v. Cin- 

cinnati Board of Education, 6 Cir., 369 F.2d 55.  



  

  

68a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

sure or entirely, they are a reflection of earlier judicial 

opinions. We reach our conclusion independently, for, while 

administrative interpretation may lend a persuasive gloss 

to a statute, the definition of constitutional standards con- 

trolling the actions of states and their subdivisions is 

peculiarly a judicial function. 

Since the plaintiffs here concede that their annual choice 

1s unrestricted and unencumbered, we find in its existence 

no denial of any constitutional right not to be subjected to 

racial discrimination. 

II 

Appropriately, the School Board’s plan included provi- 

sions for desegregation of the faculties. Supplemented at 

the direction of the District Court, those provisions are 

set forth in the margin.* 

4 The School Board of Charles City County recognizes its responsibility 
to employ, assign, promote and discharge teachers and other professional 

personnel of the school systems without regard to race, color or national 

origin. We further recognize our obligation to take all reasonable steps 

to eliminate existing racial segregation of faculty that has resulted from 

the past operation of a dual system based upon race or color. 

In the recruitment, selection and assignment of staff, the chief obliga- 

tion is to provide the best possible education for all children. The pattern 
of assignment of teachers and other staff members among the various 

schools of this system will not be such that only white teachers are sought 

for predominantly white schools and only Negro teachers are sought for 

predominantly Negro schools. 

The following procedures will be followed to carry out the above stated 

policy: 

1. The best person will be sought for each position without regard 

to race, and the Board will follow the policy of assigning new 
personnel in a manner that will work toward the desegregation of 

faculties. 

2. Institutions, agencies, organizations, and individuals that refer 

teacher applicants to the school system will be informed of the 

TNH,



  

69a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

These the District Court found acceptable under our deci- 

sion in Wheeler v. Durham City Board of Education, 363 

F.2d 738, but retained jurisdiction to entertain applications 

for further relief. It acted upon a record which showed that 

white teachers had been assigned to the “Indian school” 

  

10. 

11, 

above stated policy for faculty desegregation and will be asked to 

so inform persons seeking referrals. 

The School Board will take affirmative steps including personal 

conferences with members of the present faculty to allow and en- 

courage teachers presently employed to accept transfers to schools 

in which the majority of the faculty members are of a race differ- 

ent from that of the teacher to be transferred. 

No new teacher will be hereafter employed who is not willing to 

accept assignment to a desegregated faculty or in a desegregated 

school. 

All Workshops and in-service training programs are now and will 

continue to be conducted on a completely desegregated basis. 

. All members of the supervisory staff have been and will continue 

to be assigned to cover schools, grades, teachers and pupils with- 

out regard to race, color or national origin. 

It is recognized that it is more desirous, where possible, to have 

more than one teacher of the minority race (white or Negro) on 

a desegregated faculty. 

All staff meetings and committee meetings that are called to plan, 

choose materials, and to improve the total educational process of 

the division are now and will continue to be conducted on a com- 

pletely desegregated basis. 

All custodial help, cafeteria workers, maintenance workers, bus 

mechanics and the like will continue to be employed without regard 

to race, color or national origin. 

Arrangements will be made for teachers of one race to visit and 

observe a classroom consisting of a teacher and pupils of another 

race to promote acquaintance and understanding. 

The School Board and superintendent will exercise their best efforts, 

individually and collectively, to explain this program to school 

patrons and other citizens of Charles City County and to solicit 
their support of it.  



      

70a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

and one Negro teacher had been assigned to a formerly all 

white school. 

The appellants’ complaint is that the plan is insufficiently 

specific in the absence of an immediate requirement of sub- 

stantial interracial assignment of all teachers. 

On this record, we are unable to say what impact such 

an order might have upon the school ssytem or what ad- 

ministrative difficulties might be encountered in complying 

with it. Elimination of discrimination in the employment 

and assignment of teachers and administrative employees 

can be no longer deferred,’ but involuntary reassignment 

of teachers to achieve racial blending of faculties in each 

school is not a present requirement on the kind of record 

before us. Clearly, the District Court’s retention of juris- 

diction was for the purpose of swift judicial appraisal of 

the practical consequences of the School Board’s plan and 

of the objective criteria by which its performance of its 

declared purposes could be measured. 

An appeal having been taken, we lack the more current 

information which the District Court, upon application to 

it, could have commanded. Without such information, an 

order of remand, the inevitable result of this appeal, must 

be less explicit than the District Court’s order, with the 

benefit of such information, might have been. 

While the District Court’s approval of the plan with its 

retention of jurisdiction may have been quite acceptable 

when entered, we think any subsequent order, in light of the 

appellants’ complaints should incorporate some minimal, 

objective time table. 

5 Bradley v. School Bd. of Educ. of City of Richmond, 382 U.S. 103; 

Wheeler v. Durham City Bd. of Edue., 4 Cir., 363 F.2d 738.



  

Tla 

Concurring Opinion of Judges Sobeloff and Winter 

Quite recently, a panel of the Fifth Circuit Court of Ap- 

peals® has required some progress in faculty integration for 

the school year 1967-68. By that decree, school boards are 

required to take affirmative steps to accomplish substantial 

desegregation of faculties in as many of the schools as pos- 

sible for the 1967-68 school year and, wherever possible, to 

assign more than one member of the minority race to each 

desegregated faculty. As much should be required here. 

Indeed, since there was an earlier start in this case, the 

District Court, with the benefit of current information, 

should find it appropriate to fashion an order which is 

much more specific and more comprehensive. What is done 

on remand, however, must be done upon a supplemented 

record after an appraisal of the practical, administrative 

and other problems, if any, remaining to be solved and 

overcome. 

Remanded. 
  

SoBeLorr, Circuit Judge, with whom Winter, Circuit 

Judge, joins, concurring specially. 

Willingly, I join in the remand of the cases* to the Dis- 

trict Court, for I concur in what this court orders. I dis- 

agree, however, with the limited scope of the remand, for I 

think that the District Court should be directed not only to 

incorporate an objective timetable in the School Boards’ 

plans for faculty desegregation, but also to set up proce- 

6 United States v. Jefferson County Bd. of Edue., fn. 3, supra. 

* This special concurrence is directed not only to Bowman v. County 

School Bd. of Charles City County, but also Green v. County School Bd. 

of New Kent County, ...... Pad... , decided this day.  



      

72a 

Concurring Opinion of Judges Sobeloff and Winter 

dures for periodically evaluating the effectiveness of the 

Boards’ “freedom of choice” plans in the elimination of 

other features of a segregated school system. 

With all respect, I think that the opinion of the court is 

regrettably deficient in failing to speel out specific direc- 

tions for the guidance of the District Court. The danger 

from an unspecific remand is that it may result in another 

round of unsatisfactory plans that will require yet another 

appeal and involve further loss of time. The bland discus- 

sion In the majority opinion must necessarily be pitched 

differently if the facts are squarely faced. As it is, the 

opinion omits almost entirely a factual recital. For an 

understanding of the stark inadequacy of the plans promul- 

gated by the school authorities, it is necessary to explore 

the facts of the two cases. 

New Kent County. Approximately 1,290 children attend 

the public schools of New Kent County. The system oper- 

ated by the School Board consists of only two schools—the 

New Kent School, attended by all of the county’s white 

pupils, and the Watkins School, attended by all of the 

county’s Negro pupils. 

There is no residential segregation and both races are 

diffused generally throughout the county. Yet eleven buses 

traverse the entire county to pick up the Negro students and 

carry them to the Watkins School, located in the western 

half of the county, and ten other buses traverse the entire 

county to pick up the white students for the New Kent 

School, located in the eastern half of the county. One ad- 

ditional bus takes the county’s 18 Indian children to the 

“Indian” school, located in an adjoining county. Each of 

the county’s two schools has 26 teachers and they offer 

identical programs of instruction. 

 



  

73a 

Concurring Opinion of Judges Sobeloff and Winter 

Repated petitions from Negro parents, requesting the 

adoption of a plan to eliminate racial discrimination, were 

totally ignored. Not until some months after the present 

action had been instituted on March 15, 1965, did the 

School Board adopt its “freedom of choice” plan.? 

The above data relate to the 1964-1965 school year.? 

Since the Board’s “freedom of choice” plan has now been in 

effect for two years as to grades 1, 2, 8, 9, 10, 11 and 12 

and one year as to all other grades, clearly this court’s re- 

mand should embrace an order requiring an evaluation of 

the success of the plan’s operation over that time span, not 

only as to faculty but as to pupil integration as well. While 

the court does not order an inquiry in the District Court as 

to pupil integration, it of course does not forbid it. Since 

the District Judge retained the case on the docket, the 

matter will be open on remand to a thorough appraisal. 

Charles City County. Approximately 1,800 children at- 

tend public schools in Charles City County. As in New Kent 

County, Negroes and whites live in the same neighborhoods 

and, similarly, segregated buses (Negro, Indian and white) 

traverse many of the same routes to pick up their respective 

1 As this circuit has elsewhere said, “Such a last minute change of 
heart is suspect, to say the least.” Cypress v. The Newport News General 

& Nonsectarian Hospital Ass'n, ...... F.2d... oe iar (4th Cir. Mar. 9, 1967). 

See also Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966). Of 
course, in the present case, the District Court has noted that the plan 

was adopted in order to comply with Title VI of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000.d-1 (1964), and thus ensure the flow of federal 

funds. 

2 These data are culled from answers to plaintiffs’ interrogatories. 

Neither side has furnished us or the District Court with more recent 
data. In oral argument, the defendant replied obscurely and unspecifically 

to inquiries from the bench as to what progress the county had made.  



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T4a 

Concurring Opinion of Judges Sobeloff and Winter 

charges.? The Board operates four schools in all—Ruth- 

ville, a combined elementary and high school exclusively 

for Negroes; Barnetts, a Negro elementary school ; Charles 

City, a combined elementary and high school for whites; 

and Samaria, a combined elementary and high school for 

Indian children. Thus, as plaintiffs point out, the Board, 

well into the second decade after the 1954 Brown decision, 

still maintains “what is in effect three distinct school sys- 

tems—each organized along racial lines—with hardly 

enough pupils for one system!” * The District Court found 

that “the Negro elementary schools serve geographical 

areas. The other schools serve the entire county.” ® This 

contrasting treatment of the races plainly exposes the pre- 

vailing discrimination. For the 1964-65 school year, only 

eight Negro children were assigned to grades 4, 6, 7, 8, 9, 

10 and 11 at the all-white Charles City School—an instance 

of the feeblest and most inconsequential tokenism. 

Again, as in New Kent County, Negro parents on several 

occasions fruitlessly petitioned the School Board to adopt a 

desegregation plan. This suit was instituted on March 15, 

3 The Eighth Circuit has recently held that the operation of two school 

buses, one for Negro children and one for white, along the same route, 

is impermissible. “While we have no authority to strike down transpor- 

tation systems because they are costly and inefficient, we must strike 

them down if their operation serves to discourage the desegregation of 

the school systems.” Kelley v. Arkansas Public School District, 35 U.S.L. 

WEEK 2619 (8th Cir. Apr. 12, 1967). 

4 The Board seems to go to an extreme of inefficiency and expense in 

order to maintain the segregated character of its schools, indulging in the 

luxury of three separate high school departments to serve a total of 

approximately 600 pupils, 437 of whom are in one school, and three 

separate and overlapping bus services. 

Bis F.Supp. ....-. 3 Seon: (1966). 

 



75a 

Concurring Opinion of Judges Sobeloff and Winter 

1965 and the Board adopted the plan presently under con- 

sideration on August 6, 1965. Not until June 1966 did the 

Board assign a single Negro teacher to the all-white faculty 

at Charles City School. Apart from this faint gesture, how- 

ever, the faculties of the Negro and white schools remain 

totally segregated.® 

The majority opinion implies that this court has gone as 

far as the Fifth Circuit and that the “freedom of choice” 

plan which that circuit has directed its district courts to 

prescribe “embodies standards no more exacting than those 

we have imposed and sanctioned.” If this court is willing to 

go as far as the Fifth Circuit has gone, I welcome the re- 

solve.” It may be profitable, therefore, to examine closely 

what the Court of Appeals of that jurisdiction has recently 

said and done.! We may then see how much further our 

court needs to go to bring itself abreast of the Fifth Circuit. 

6 Three of the Board’s eight teachers in the 175 pupil “Indian” school 

are white, the other five are Indian. 

The Board asserts that it is “earnestly” seeking white teachers for the 

nine existing vacancies in the Negro schools, but so far its efforts have 

not met with success. This is not surprising, considering that the Board 

has formally declared that it “does not propose to advertise vacancies in 

papers as this would likely cause people of both races to apply who 
are not qualified to teach.” 

7 A recent article in the Virginia Law Review declares the Fifth Cir- 

cuit to be “at once the most prolific and the most progressive court in 

the nation on the subject of school desegregation.” Dunn, Title VI, the 

Guidelines and School Desegregation in the South, 53 VA. L. REV. 42, 

73 (1967). 

8 United States v. Jefferson County Bd. of Edue., ...... P24... (5th 

Cir. 1966), aff’d on rehearing en banc, ...... P24... (5th Cir., Mar. 29, 

1967).  



  

76a 

Concurring Opinion of Judges Sobeloff and Winter 

I. Pupils 

Under the plans of both Charles City County and New 
Kent County, only children entering grades one or eight are 

required to express a choice. Freedom of choice is permitted 

children in all other grades, and “any pupil in grades other 

than grades 1 and 8 for whom a choice of school is not ob- 

tained will be assigned to the school he is now attending.” 

In sharp contrast, the Fifth Circuit has expressly abol- 

ished “permissive” freedom of choice and ordered manda- 

tory annual free choice for all grades, and “any student who 

has not exercised his choice of school within a week after 

school opens shall be assigned to the school nearest his 

home * * * ”°® This is all that plaintiffs have been vainly 

seeking in New Kent County—that students be assigned to 

the schools nearest their homes. 

If, in our cases, those who failed to exercise a choice were 

to be assigned to the schools nearest their homes, as the 

Fifth Circuit plan provides, instead of to the schools they 

previously attended, as directed in the plans before us, 

there would be a measure of progress in overcoming dis- 

crimination. As it is, the plans manifestly perpetuate 

discrimination. In view of the situation found in New Kent 

County, where there is no residential segregation, the elim- 

ination of the dual school system and the establishment of a 

“unitary, non-racial system” could be readily achieved with 

a minimum of administrative difficulty by means of geo- 

graphic zoning—simply by assigning students living in the 

eastern half of the county to the New Kent School and those 

living in the western half of the county to the Watkins 

9 United States v. Jefferson County Bd. of Edue., ..... F.2d .... SE 
(5th Cir., Mar. 29, 1967) (en banc). (Emphasis supplied.) 

   



77a 

Concurring Opinion of Judges Sobeloff and Winter 

School. Although a geographical formula is not universally 

appropriate, it is evident that here the Board, by separately 

busing Negro children across the entire county to the ‘“Ne- 

gro” school, and the white children to the “white” school, 

is deliberately maintaining a segregated system which 

would vanish with non-racial geographic zoning. The con- 

ditions in this county present a classical case for this ex- 

pedient. 

In Charles City County, Negro elementary school chil- 

dren are geographically zoned, while white elementary 

school children are not, despite the conceded fact that the 

children of both races live in all sections of the county. 

Surely this curious arrangement is continued to prop up 

and preserve the dual school system proscribed by the 

Constitution and interdicted by the Fifth Circuit . . . 

“The Court holds that boards and officials administer- 

ing public schools in this circuit have the affirmative 

duty under the Fourteenth Amendment to bring about 

an integrated, unitary school system in which there are 

no Negro schools and no white schools—just schools. 

$2.2 * In foifilling this duty it is not enough for 

school authorities to offer Negro children the oppor- 

tunity to attend formerly all-white schools. The neces- 

sity of overcoming the effects of the dual school system 

in this circuit requires integration of faculties, facili- 

ties, and activities, as well as students.” *° 

The Fifth Circuit stresses that the goal is “a unitary, non- 

racial system” and the question is whether a free choice 

plan will materially further the attainment of this goal. 

10... P2d at... (en banc). (Emphasis supplied.)  



  

78a 

Concurring Opinion of Judges Sobeloff and Winter 

Stating that courts must continually check the sufficiency of 

school boards’ progress toward the goal, the Fifth Circuit 

decree requires school authorities to report regularly to the 

district courts to enable them to evaluate compliance “by 

measuring the performance.” In fashioning its decree, that 

circuit gave great weight to the percentages referred to in 

the HEW Guidelines, declaring that they establish “mini- 

mum” standards 

“for measuring the effectiveness of freedom of choice 

as a useful tool. * * * If the plan is ineffective, longer 

on promises than performance, the school officials 

charged with initiating and administering a unitary 

system have not met the constitutional requirements 

of the Fourteenth Amendment; they should try other 

tools” »@ 

11 “I'STtrong policy considerations support our holding that the stan- 
dards of court-supervised desegregation should not be lower than 

the standards of HEW-supervised desegregation. The Guidelines, of 
course, cannot bind the courts; we are not abdicating any judicial 

responsibilities. [Footnote omitted.] But we hold that HEW’s stan- 

dards are substantially the same as this Court’s standards. They are 
required by the Constitution and, as we construe them, are within 

the scope of the Civil Rights Act of 1964. In evaluating desegrega- 
tion plans, district courts should make few exceptions to the Guide- 

lines and should earefully tailor those so as not to defeat the policies 

of HEW or the holding of this Court.” 

United States v. Jefferson County Bd. of Edue,, ...... 2d... EL (5th 

Cir., Dec. 29, 1966), adopted en bane, ...... Fad... (5th Cir., Mar. 29, 

1967). Cf. Cypress v. Newport News Gen. Hosp, ...... ¥24... es n.15 

(4th Cir., Mar. 9, 1967). 

12 Pad... . (Emphasis supplied.) The HEW Guidelines provide: 

(1) if 8 or 9 percent of the Negro students in a school district transferred 
from segregated schools during the first year of the plan, the total trans- 

fers the following year must be on the order of at least twice that 

percentage; (2) if only 4 or 5 percent transferred, a “substantial” in- 

crease in the transfers will be expected the following year—bringing the 

   



79a 

Concurring Opinicn of Judges Sobeloff and Winter 

“Freedom of choice” is not a sacred talisman; it is only 

a means to a constitutionally required end—the abolition of 

the system of segregation and its effects.® If the means 

prove effective, it is acceptable, but if it fails to undo seg- 

regation, other means must be used to achieve this end. The 

school officials have the continuing duty to take whatever 

action may be necessary to create a “unitary, non-racial 

system.” 

While I would prefer it if this court were more explicit 

in establishing requirements for periodic reporting by the 

school officials, I assume that the District Court will do 

this, rather than place the burden upon the plaintiffs to 

collect the esential data to show whether the free choice 
  

total to at least triple the percentage of the previous year; (3) if less 

than 4 percent transferred the previous year, then the rate of increase 

in total transfers for the following year must be proportionately greater 

than that under (2); and (4) if no students transferred under a free 

choice plan, then unless a very “substantial start” is made in the following 

year, the school authorities will “be required to adopt a different type of 

plan.” HEW Reg. A., 45 C.F.R. § 181.54 (Supp. 1966). 
In both New Kent County and Charles City County, at least some 

grades have operated under a “freedom of choice” plan for two years. 

In Charles City County, only 0.69% of the Negro students transferred to 

the white school for the 1964-65 session. Under the standards subscribed 

to by the Fifth Circuit, therefore, a minimum of 69, of the Negro pupils 
in that county should have transferred to the “white” school the following 

year. Less than this percentage would indicate that the free choice plan 

was “ineffective, longer on promises than performance,” and that the 

school officials “should try other tools”—e.g., geographic zoning or pairing 

of grades. 

In New Kent County, no Negro students transferred during the first 

year of the plan. Thus, unless the requisite “substantial start” was made 

the following year, school officials must adopt a different plan—one that 
will work. 

13 Judge Wisdom, in Singleton v. Jackson Munie. Separate School Dist., 

355 F.2d 865, 871 (5th Cir. 1966), referred to “freedom of choice” plans 

as a “haphazard basis” for the administration of schools.  



  

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80a 

Concurring Opinion of Judges Sobeloff and Winter 

plan is materially furthering the achievement of ‘a unitary, 

non-racial system.” ** 

A significant aspect of the Fifth Circuit’s recent decree 

that, by implication, this court has adopted, deserves ex- 

plicit recognition. - The Jefferson County decree orders 

school officials, “without delay,” to take appropriate mea- 

sures for the protection of Negro students who exercise a 

choice from “harassment, intimidation, threats, hostile 

words or acts, and similar behavior.” Counsel for the 

school boards assured us in oral argument that relations 

between the races are good in these counties, and that no 

incidents would occur. Nevertheless, the fear of incidents 

may well intimidate Negroes who might otherwise elect to 

attend a “white” school.’® To minimize this fear school 

14 See Section IX of the decree issued in United States v. Jefferson 

County Bd. of Edue,, ..... ¥a4 .... > erase (6th Cir. Mar. 29, 1967) (en 

banc) providing for detailed reports to the district courts. 

15 Various factors, some subtle and some not so subtle, operate effiec- 

tively to maintain the status quo and keep Negro children in “their” 

schools. Some of these factors are listed in the recent report issued by 

the U.S. Commission on Civil Rights: 

“Freedom of choice plans accepted by the Office of Education have 

not disestablished the dual and racially segregated school systems 

involved, for the following reasons: a. Negro and white schools have 

tended to retain their racial identity; b. White students rarely elect 

to attend Negro schools; e. Some Negro students are reluctant to sever 

normal school ties, made stronger by the racial identification of their 

schools; d. Many Negro children and parents in Southern States, 

having lived for decades in positions of subservience, are reluctant 
to assert their rights; e. Negro children and parents in Southern 

States frequently will not choose a formerly all-white school because 

they fear retaliation and hostility from the white community; f. In 

some school districts in the South, school officials have failed to pre- 

vent or punish harassment by white children who have elected to 

attend white schools; g. In some areas in the South where Negroes 

have elected to attend formerly all-white schools, the Negro com- 

   



  

8la 

Concurring Opinion of Judges Sobeloff and Winter 

officials must demonstrate unequivocally that protection will 

be provided. It is the duty of the school boards actively to 

oversee the process, to publicize its policy in all segments 

of the population and to enlist the cooperation of police 

and other community agencies.!® 

The plaintiffs vigorously assert that the adoption of the 

Board’s free choice plan in Charles City County, without 

further action toward equalization of facilities, will not cure 
present gross inequities characterizing the dual school sys- 

tem. A glaring example is the assignment of 135 commer- 

cial students to one teacher in the Negro school in contrast 

to the assignment of 45 commercial students per teacher in 

the white school and 36 in the Indian school. In the Jeffer- 

son County decree, the Fifth Circuit directs its attention 

to such matters and explicitly orders school officials to take 

“prompt steps” to correct such inequalities. School authori- 

ties, who hold responsibility for administration, are not 

allowed to sit back complacently and expect unorganized 

pupils or parents to effect a cure for these shockingly dis- 

criminatory conditions. The decree provides: 

“Conditions of overcrowding, as determined by pupil- 

teacher ratios and pupil-classroom ratios shall, to the 

  

munity has been subjected to retaliatory violence, evictions, loss of 

jobs, and other forms of intimidation.” 

U.S. COMM’N ON CIVIL RIGHTS, SURVEY OF SCHOOL DESEG- 
REGATION IN THE SOUTHERN AND BORDER STATES—1965-66, 
at 51 (1966). In addition to the above enumeration, a report of the Office 
of Education has pointed out that Negro children in the high school 

grades refrain from choosing to transfer because of reluctance to assume 

additional risks close to graduation. Coleman & Campbell, Equality of 
Educational Opportunity (U.S. Office of Education, 1966). See also 

Hearings Before the Special Subcommittee on Civil Rights of the House 

Committee on the Judiciary, 89th Cong., 2d Sess., ser. 23 (1966). 

16 HEW Reg. A, 45 C.F.R. § 181.17(c) (Supp. 1966).  



  

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i 

82a 

Concurring Opinion of Judges Sobeloff and Winter 

extent feasible, be distributed evenly between schools 

formerly maintained for Negro students and those 

formerly maintained for white students. If for any 

reason it is not feasible to improve sufficiently any 

school formerly maintained for Negro students, * * * 

such school shall be closed as soon as possible, and 

students enrolled in the school shall be reassigned on 

the basis of freedom of choice.” !* 

II. Faculty 

Defendants unabashedly argue that they cannot be com- 

pelled to take any affirmative action in reassigning teachers, 

despite the fact that teachers are hired to teach in the 

system, not in a particular school. They assert categorically 

that ‘they are not required under the Constitution to de- 

segregate the faculty.” This is in the teeth of Bradley v. 

School Bd. of Richmond, 382 U.S. 103 (1965). 

Having made this declaration, they say that they have 

nevertheless submitted a plan which does provide for fac- 

ulty desegregation, but circumspectly they add that “it will 

require time and patience.” They protest that they have 

done all that could possibly be demanded of them by pro- 

viding a plan which would permit ‘a constructive begin- 

ning.” This argument lacks appeal an eighth of a century 

after Brown.'® Children too young for the first grade at 

1 sos P2d a... (en banc). (Emphasis supplied.) 

18 “The rule has become: the later the start the shorter the time allowed 
for transition.” Lockett v. Bd. of Edue. of Muscogee County, 342 F.2d 

225, 228 (5th Cir. 1965). See Rogers v. Paul, 382 U.S. 198, 199 (1965) ; 

Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965) ; Griffin v. County 

School Bd., 377 U.S. 218, 229 (1964); Watson v. City of Memphis, 373 
U.S. 526, 530 (1963). 

  

  
 



  

  

83a 

Concurring Opinion of Judges Sobeloff and Winter 

the time of that decision are beyond high school age by 

now. Yet their entire school experience, like that of their 

elder brothers and sisters, parents and grandparents, has 

been one of total segregation. They have attended only a 

“Negro” school with an all Negro staff and an all Negro 

student body. If their studies encompassed Brown v. Bd. 

of Educ. they must surely have concluded sadly that ‘the 

law of the land” is singularly ineffective as to them. 

The plans of both counties grandly profess that the pat- 

tern of staff assignment “will not be such that only white 

teachers are sought for predominantly white schools and 

only Negro teachers are sought for predominantly Negro 

schools.” No specific steps are set out, however, by which 

the boards mean to integrate faculties. It cannot escape 

notice that the plans provide only for assignments of “new 

personnel in a manner that will work towards the desegre- 

gation of faculties.” As for teachers presently employed by 

the systems, they will be “allowed” (in Charles City County, 

the plan reads “allowed and encouraged”) to accept trans- 

fers to schools in which the majority of the faculty members 

are of the opposite race. We are told that heretofore an 

average of only 2.6 new white teachers have been employed 

annually in New Kent County. Thus the plan would lead to 

desegregation only by slow attrition. There is no excuse 

for thus protracting the corrective process. School authori- 

ties may not abdicate their plain duty in this fashion. The 

plans filed in these cases leave it to the teachers, rather than 

the Board, to ‘“‘disestablish dual, racially segregated school 

systems” and to establish “a unitary, non-racial system.” 

This the law does not permit.  



    

84a 

Concurring Opinion of Judges Sobeloff and Winter 

As the Fifth Circuit has put it, “school authorities have 

an affirmatwe duty to break up the historical pattern of 

segregated faculties, the hallmark of the dual system.” ** 

“[Ulntil school authorities recognize and carry out 

their affirmative duty to integrate faculties as well as 

facilities, there is not the slightest possibility of their 

ever establishing an operative non-diseriminatory 

school system.” 2° 

In contrast to the frail and irresolute plans submitted by 

the appellees, the Fifth Circuit has ordered school officials 

within its jurisdiction not only to make initial assignments 

on a non-discriminatory basis, but also to reassign staff 

members “to eliminate past discriminatory patterns.” 

For this reason, I wholeheartedly endorse the majority’s 

remand for the inclusion of an objective timetable to facili- 

tate evaluation of the progress of school authorities in de- 

segregating their faculties. I also join the majority in 

calling upon the District Court to fashion a specific and 

comprehensive order requiring the boards to take firm steps 

to achieve substantial desegregation of the faculties. At 

this late date a desegregation plan containing only an in- 

definite pious statement of future good intentions does not 

merit judicial approval. 

i Fada... 

20 United States v. Jefferson County Bd. of Educ, ...... Faq... wh of 
(5th Cir. 1966), adopted en bane, ........ Pod... (5th Cir. Mar. 29, 1967). 

This thought has been similarly expressed in Bradley v. School Bd. of 

City of Richmond, 345 F.2d 310, 323 (4th Cir. 1965) (concurring opinion) : 

“It is now 1965 and high time for the court to insist that good faith 

compliance requires administrators of schools to proceed actively with 
their nontransferable duty to undo the segregation which both by 

action and inaction has been persistently perpetuated.” (Emphasis 

in the original.) 

  

 



  

    

85a 

Concurring Opinion of Judges Sobeloff and Winter 

I must disagree with the prevailing opinion, however, 

where it states that the record is insufficiently developed to 

order the school systems to take further steps at this stage. 

No legally acceptable justification appears, or is even 

faintly intimated, for not immediately integrating the 

faculties. The court underestimates the clarity and force 

of the facts in the present record, particularly with respect 

to New Kent County, where there are only two schools, 

with identical programs of instruction, and each with a 

staff of 26 teachers. The situation presented in the records 

before us is so patently wrong that it cries out for im- 

mediate remedial action, not an inquest to discover what 

is obvious and undisputed. 

It is time for this circuit to speak plainly to its district 

courts and tell them to require the school boards to get on 

with their task—mno longer avoidable or deferrable—to inte- 

grate their faculties. In Kier v. County School Bd. of Au- 

gusta County, 249 F. Supp. 239, 247 (W.D. Va. 1966), 

Judge Michie, in ordering complete desegregation by the 

following years of the staffs of the schools in question, re- 

quired that “the percentage of Negro teachers in each school 

in the system should approximate the percentage of the 

Negro teachers in the entire system” for the previous year. 

See Dowell v. School Bd., 244 F. Supp. 971, 977-78 (W.D. 

Okla. 1963), aff’d, 35 U.S.L. Weer 2484 (10th Cir., Jan. 

23, 1967), cert. denied, 35 U.S.L. Week 3418 (U.S. May 

29, 1967). While this may not be the precise formula ap- 

propriate for the present cases, it does indicate the attitude 

that district courts may be expected to take if this court 

speaks with clarity and firmness.  



    

86a 

Concurring Opinion of Judges Sobeloff and Winter 

III. The Briggs v. Elliott Dictum 

The defendants persist in their view that it is constitu- 

tionally permissible for parents to make a choice and assign 

their children; that courts have no role to play where segre- 

gation is not actively enforced. They say that Brown only 

proscribes enforced segregation, and does not command 

action to undo existing consequences of earlier enforced 

segregation, repeating the facile formula of Briggs v. 

Elliott.® 

The court’s opinion recognizes that “it is the duty of the 

school boards to eliminate the discrimination which inheres” 

in a system of segregated schools where the “initial assign- 

ments are both involuntary and dictated by racial criteria,” 

but seems to think the system under consideration today “a 

very different thing.” I fail to perceive any basis for a dis- 

tinction. Certainly the two counties with which we are 

here concerned, like the rest of Virginia, historically had 

de jure segregation of public education, so that by the 

court’s own definition, the boards are under a duty “to 

eliminate the discrimination which inheres” in such a sys- 

tem. Whether or not the schools now permit “freedom of 

choice,” the segregated conditions initially created by law 

are still perpetuated by relying primarily on Negro pupils 

“to extricate themselves from the segregation which has 

long been firmly established and resolutely maintained 

* xx 2 “Those who operate the schools formerly segre- 

21 “Nothing in the Constitution or in the decision of the Supreme Court 

takes away from the people freedom to choose the schools they attend. 

The Constitution, in other words, does not require integration. It 

merely forbids discrimination.” 132 F. Supp. 776, 777 (E.D.S.C. 
1955). 

22 Bradley v. School Bd. of City of Richmond, 345 F.2d 310, 322 (4th 

Cir. 1965) (concurring opinion). 

  
 



  
  

87a 

Concurring Opinion of Judges Sobeloff and Winter 

gated by law, and not those who attend, are responsible for 

school desegregation.” #3 

It is worth recalling the circumstances that gave birth 

to the Briggs v. Elliott dictum—it is no more that dictum. 

A three-judge district court over which Judge Parker 

presided had denied relief to South Carolina Negro pupils 

and when this decision came before the Supreme Court as 

part of the group of cases reviewed in Brown v. Bd. of 

Educ., the Court overruled the three-judge court and issued 

its mandate to admit the complaining pupils to public 

schools “on a racially non-discriminatory basis with all 

deliberate speed.” Reassembling the three-judge panel, 

Judge Parker understook to put his gloss upon the Su- 

preme Court’s decision and coined the famous saying. 

This catchy apothegm immediately became the refuge of 

defenders of the segregation system, and it has been quoted 

uncritically to eviscerate the Supreme Court’s mandate.?® 

23 Dunn, Title VI, the Guidelines and School Desegregation in the 

South, 53 VA. L. REV. 42, 45 (1967). 
See Dowell v. School Bd., 244 F. Supp. 971, 975, 981 (W.D. Okla. 1965), 

af’d, 35 U.S.L. WEEK 2484 (10th Cir. Jan. 23, 1967), cert. denied, 35 
U.S.L. WEEK 3418 (U.S. May 29, 1967): 

“The Board maintains that it has no affirmative duty to adopt policies 

that would increase the percentage of pupils who are obtaining a 

desegregated education. But a school system does not remain statie, 

and the failure to adopt an affirmative policy is itself a policy, ad- 

herence to which, at least in this case, has slowed up—in some cases— 
reversed the desegregation process. 

* * * 

The duty to disestablish segregation is clear in situations such as 

Oklahoma City, where such school segregation policies were in force 

and their effects have not been corrected.” (Emphasis supplied.) 

24 See n.21, supra. 

25 Judge Wisdom, in the course of a penetrating criticism of the Briggs 
decision, says:  



    

88a 

Concurring Opinion of Judges Sobeloff and Winter 

Having a deep respect for Judge Parker’s capacity to 

discern the lessons of experience and his high fidelity to 

duty and judicial discipline, it is unnecessary for me to 

speculate how long he would have adhered to his view, or 

when he would have abandoned the dictum as unworkable 

and inherently contradictory.” In any event, the dictum 

cannot withstand the authority of the Supreme Court or 

survive its exposition of the spirit of the Brown holding, as 

elaborated in Bradley v. School Bd., 382 U.S. 103 (1965) ; 

Goss v. Bd. of FEdue., 373 U.S. 683 (1963); Cooper v. 

daron, 358 U.S. 1 (1958). 

  

“Briggs overlooks the fact that Negroes collectively are harmed when 

the state, by law or custom, operates segregated schools or a school 
system with uncorrected effects of segregation. 

* * ¥* 

Adequate redress therefore calls for much more than allowing a few 

Negro children to attend formerly white schools; it calls for liquida- 

tion of the state’s system of de jure school segregation and the 

organized undoing of the effects of past segregation. 

* * 

The central vice in a formerly de jure segregated public school system 

is apartheid by dual zoning * * *. Dual zoning persists in the eontinu- 
ing operation of Negro schools identified as Negro, historically and 
because the faculty and students are Negroes. Acceptance of an in- 

dividual’s application for transfer, therefore, may satisfy that par- 

ticular individual; it will not satisfy the class. The class is all Negro 

children in a school district attending, by definition, inherently un- 
equal schools and wearing the badge of slavery separation displays. 

Relief to the class requires school boards to desegregate the school 

from which a transferee comes as well as the school to which he goes. 

* % * [T]he overriding right of Negroes as a class [is] to a com- 
pletely integrated public education.” 

hes ¥2d at ....., ...... (Emphasis supplied.) 

26 Shortly after pronouncing his dictum, in another school case Judge 

Parker nevertheless recognized that children cannot enroll themselves and 

that the duty of enrolling them and operating schools in accordance with 

law rests upon the officials and cannot be shifted to the pupils or their 

parents. Carson v. Warlick, 238 F.2d 724, 728 (1956). 

  

  

 



  

89a 

Concurring Opinion of Judges Sobeloff and Winter 

Anything that some courts may have said in discussing 

the obligation of school officials to overcome the effects of 

de facto residential segregation, caused by private acts and 

not imposed by law, is certainly not applicable here. Ours 

is the only circuit dealing with school segregation re- 

sulting from past legal compulsion that still adheres to the 

Briggs dictum. 

“The Fourth is apparently the only circuit of the 

three that continues to cling to the doctrine of Briggs 

v. Elliott and embraces freedom of choice as a final 

answer to school desegregation in the absence of intimi- 

dation and harrassment.” #7 

We should move out from under the incubus of the Briggs 

v. Elliott dictum and take our stand beside the Fifth and 

the Eighth Circuits. 

27 Dunn, Title VI, the Guidelines and School Desegregation in the South, 

53 VA. L. REV. 42, 72 (1967). See United States v. Jefferson County 
Bd. of Fdue,, ...... Pod... (5th Cir., Mar. 29, 1967) (en banc); Single- 

ton v. Jackson Munic. Separate School Dist., 348 F.2d 729, 730 n.5 (5th 
Cir. 1965) (“[T]he second Brown opinion clearly imposes on public 

sehool authorities the duty to provide an integrated school system. Judge 
Parker’s well known dictum * * * in Briggs v. Elliott * * * should be 

laid to rest. It is inconsistent with Brown and the later development of 
decisional and statutory law in the area of ecivil rights”); Kemp v. 

Beasley, 352 F.2d 14, 21 (8th Cir. 1965) (“The dictum in Briggs has 

not been followed or adopted by this Circuit and it is logically inconsistent 

with Brown and subsequent decisional law on this subject.”) 

Cf. Evans v. Ennis, 281 F.2d 385, 389 (3d Cir. 1960), cert. denied, 364 

U.S. 933 (1961): “The Supreme Court has unqualifiedly declared inte- 
gration to be their constitutional right.” (Emphasis supplied.)  



    

90a 

Judgment of United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,792 
  

Charles C. Green, Carroll A. Green and Robert C. Green, 

infants, by Calvin C. Green and Mary O. Green, 

their father and mother and next friends, 

and all others of the plaintiffs, 

Appellants, 

Versus 

County School Board of New Kent County, Virginia, et al., 

Appellees. 

  

AprpeEAL FROM THE UNITED STATES District COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

  

This cause came on to be heard on the record from the 

United States District Court for the Eastern District of 

Virginia, and was argued by counsel. 

On consideration whereof, it is now here ordered, ad- 

judged and decreed by this Court that this cause be, and 

the same is hereby, remanded to the United States District 

Court for the Eastern District of Virginia, at Richmond, 

for further proceedings consistent with the opinion of the 

Court filed herein; and that each side bear its own costs 

on appeal. 

CLemeNT F. HAaYyNSWORTH, JR. 

Chief Judge, Fourth Circuit 

Filed: June 12, 1967 

Maurice S. Dean, Clerk 

  

 



  

91a 

Order Extending Time to File Petition for 

Writ of Certiorari 

SUPREME COURT OF THE UNITED STATES 

No. ...... , OcroBer TErM, 1967 

  tif 

SHIRLETTE L. Bowman, CHARLES C. GREEN, ef al., 

Petitioners, 

amen pene 

County ScHoOoL BoArps oF CHARLES City CoUNTY, VIRGINIA, 

and New Kent County, VIRGINIA, ef al. 

  —p— 

Upon ConsipEraTioNn of the application of counsel for 

petitioner(s), 

It Is Orperep that the time for filing a petition for writ 

of certiorari in the above-entitled cause be, and the same 

is hereby, extended to and including October 10, 1967. 

/s/ Hueco L. Brack 

Associate Justice of the Supreme 

Court of the Uwmited States 

Dated this 8th day of September, 1967 

 



92a 

Order Allowing Certiorari—December 11, 1967 

SUPREME COURT OF THE UNITED STATES 

No. 695, Octoser Term, 1967 

  tl 

CuarLes C. GREEN, et al. 

Petitioners, 

—VS.— 

County ScHooL Boarp or NEw Kent COUNTY, 

VIRGINIA, et al. 

Respondents. 

  KL 

The petition herein for a writ of certiorari to the United 

States Supreme Court of Appeals for the Fourth Circuit 

is granted and the case is placed on the Summary Calendar. 

And it is further ordered that the duly certified copy of 

the transeript of the proceedings below which accompanied 

the petition shall be treated as though filed in response to 

such writ. 

 



  

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