Jackson v. Marvell School District Petition for Rehearing

    I n the

Imtpfc (tart at Appals
F oe the F ourth Cibcuit 

No. 8535

Gwendolyn Y vette Maesh, et al.,

Appellants,

T he County S chool B oabd of R oanoke County, et al.,

Appellees.

appeal from the united states distbict court fob the
WESTERN DISTBICT OF VIRGINIA, ROANOKE DIVISION

APPELLANTS’ BRIEF

James M. Nabeit, II I  
Jack Greenberg

10 Columbus Circle 
New York 19, New York

R euben E. L awson
19 Gilmer Avenue, N.W. 
Roanoke 17, Virginia

Attorneys for Appellants



I N D E X

Statement of the Case ............................—- ..........—-  1

Questions Involved........................................................ 5

Statement of Facts........................................................ 7
I. Segregation Practices in the County School

System.................................................................  7
II. Facts Relating to Plaintiffs’ Applications....... 12

A rgum ent.......................................................................  18
I. Plaintiffs were excluded from the all-white 

Clearbrook School by use of racially discrimi­
natory rules and procedures and are entitled 
to injunctive relief requiring their admission 18
A. Plaintiffs possessed all the qualifications

required of white pupils attending Clear­
brook but were assigned elsewhere on the 
basis of their race......................................... 18

B. The 60-day rule was unreasonable and
racially discriminatory as applied to ap­
pellants .......................................................... 18

C. The Placement Board’s protest and hearing
procedure was not an adequate and expedi­
tious remedy, as every court that con­
sidered it prior to this case has h eld ........  24

D. Overcrowding at Clearbrook and the estab­
lishment of a new all-Negro school in plain­
tiffs’ neighborhood cannot bar their admis­
sion to Clearbrook......................................... 28

PAGE



II. Appellants are entitled to an injunction re­
straining defendants’ discriminatory assign­
ment practices ....................................................  30

Conclusion..................    33

Table of Cases:

Aaron v. Tucker, 186 F. Supp. 913 (E. D. Ark. 1960) 37
Adkins v. School Board of City of Newport News,

148 F. Supp. 430 (E. D. Va. 1957), aff’d 246 F. 2d
325 (4th Cir. 1957) .................................................... . 25

Allen v. County School Board of Prince Edward
County, 266 F. 2d 507 (4th Cir. 1959) ......................  30, 37

Allen y. School Board of City of Charlottesville, 3 
Race Eel. Law R, 937 (W. D. Va. 1958) ..................  26

J. W. Bateson Co. v. Romano, 266 F. 2d 360, 2 F. R.
Serv. 2d 26d.42, Case 1 (6th Cir. 1959) ..................  23

Beckett v. School Board of City of Norfolk, 185 F.
Supp. 459 (E. H. Va. 1959), aff’d sub nom. Farley
v. Turner, 281 F. 2d 131 (4th Cir. 1960) ..............  25, 27

Blackwell v. Fairfax County School Board, 5 Race
Rel. Law R. 1056 (E. D. Va., Sept. 22, 1960) ....... 26

Brown v. Board of Education, 347 U. S. 483 (1954);
349 U. S. 294 (1955) ................................................  33, 37

Bush v. Orleans Parish School Board, 242 F. 2d 156 
(5th Cir. 1957) ............................................................ 36

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) ....... 34, 35
Cleary v. Indiana Beach, Inc., 275 F. 2d 543 (7th

Cir. 1960), cert. den. 364 U. S. 825 .......................... 23
Clemmons v. Board of Education of Hillsboro, Ohio,

228 F. 2d 853 (6th Cir. 1956) .................................  29
Cooper v. Aaron, 358 U. S. 1 (1958) .........................  33, 37
Covington v. Edwards, 264 F. 2d 780 (4th Cir. 1959) 35

n
PAGE



I ll

Dodson v. School Board of the City of Charlottes­
ville, 289 F, 2d 439 (4th Cir. 1961) .......................... 30, 33

Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960) ..............  29

Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960) ....... 16

Green v. School Board of Roanoke City, et al. (No.
8534, 4th Cir.) ...........................................................  8

Hansberry v. Lee, 311 U. S. 32 (1940) ......................  36
Hecht Co. v. Bowles, 321 U. S. 321 (1944) ............. . 33
Hill v. School Board of the City of Norfolk, 282 F. 2d

473 (4th Cir. 1960) ...................................................  33, 37
Holt v. Raleigh City Board of Education, 265 F. 2d

95 (4th Cir. 1959) ............... ....................................  35
Hood v. Board of Trustees of Sumter County School 

District No. 2, 295 F. 2d 390 (4th Cir. 1961) ........... 37

Jackson v. The School Board of the City of Lynch­
burg, Va. (W. D. Va., C. A. No. 534, Jan. 15, 1962,
not yet reported) ......................... ......... ...............28, 32, 37

Jones v. School Board of the City of Alexandria, 278
F. 2d 72 (4th Cir. 1960) ....................... ....... ...21, 22, 32, 33

Jones v. School Board of City of Alexandria, 4 Race 
Eel. Law R. 31 (E. D. Va., Oct. 22, 1958; Jan. 23,
1959; Feb. 6, 1959); aff’d 278 F. 2d 72 (4th Cir.
1960); 179 F. Supp. 280 (E. D. Va. 1959) ..............  26

Mannings v. Board of Public Instruction, 277 F. 2d
370 (5th Cir. 1960) ............................... ...... ...22, 27, 33, 37

McCoy v. Greensboro City Board of Education, 179 
F. Supp. 745 (M. D. N. C. 1959), rev’d 283 F. 2d
667 (4th Cir. 1960) ............. ..... ....... .........................  35

McCoy v. Greensboro City Board of Education, 283 
F. 2d 667 (4th Cir. 1960)

PAGE

29



IV

Merchants Motor Freight, Inc. v. Downing, 222 F. 2d 
247, 22 F. R. Serv. 26d.42, Case 1 (8th Cir. 1955) .... 23

New Rochelle Tool Co. v. Ohio Crankshaft Co., 3 F. R.
Serv. 2d 30b.35, Case 1, 25 F. R. D. 20 (N. D. Ohio
1960) ..................... ...... ....... .......................................  23

Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) ..18, 22, 27,
33, 36, 37

Porter v. Warner Holding Co., 328 U. S. 395 (1946) 34

Rosenthal v. Peoples Cab Co., 3 F. R. Serv. 2d 26d.43,
Case 1, 26 F. R. D. 116 (W. D. Pa. 1960) ..............  23

School Board of the City of Charlottesville v. Allen,
240 F. 2d 59 (4th Cir. 1956) ..................................... 30

Screws v. United States, 325 U. S. 91 (1945)..............  20
Smith v. Swormstedt, 16 How. (US) 288, 14 L. ed.

942 (1853) ...................................................................  36

Taylor v. School Board of the City of New Rochelle,
191 F. Supp. 181; 195 F. Supp. 231 (S. D. N. Y.
1961) , aff’d 294.F. 2d 36 (2d Cir. 1961), cert. den.
7 L. ed. 2d 339 ............................................................ 30

Thompson v. County School Board of Arlington 
County, 159 F. Supp. 567 (E. D. Va. 1957), aff’d 
252 F. 2d 929 (4th Cir. 1957), cert, denied 356 U. S.
958 ..............................................................................  25

Thompson v. County School Board of Arlington 
County, 166 F. Supp. 529 (E. D. Va. 1958), aff’d in 
part and remanded in part, sub nom. Hamm v. 
County School Board of Arlington County, 263 F.
2d 226; 264 F. 2d 945 (4th Cir. 1959) .................. . 25, 29

PAGE



Y

Thompson v. County School Board of Arlington 
County (E. D. Va., C. A. No. 1341, June 3, 1959),
unreported ........... .....................................................  25, 33

Thompson v. County School Board, etc., 4 Race Eel.
Law R. 609 (E. D. Va., July 25, 1959); 4 Race Rel.
Law R. 880 (E. I). Va., Sept. 1959) ; 5 Race Rel.
Law R. 1054 (E. D. Va., Sept. 16, 1960) ................. 26

United States v. United States Gypsum Co., 333 U. S.
364 (1948) ............ ....................................................  31

Walker v. Floyd County Board (W. D. Va., C. A. No.
1012; Sept. 23,1959, unreported)......................-......  26

Statutes:

28 U. S. C. §1291 ...................... .............................. - - -  1
28 U; S. C. §1343 ..............................................   2
42 U. S. C. §1981........................................................... 2
42 U. S. C. §1983 ...................    2
F. R. C. P. Rule 23(a) (3) ................... .........- ............2, 35, 36
F. R. C. P. Rule 26(d)(2) ........ .......................... .........  23
F. R. C. P. Rule 54(c) .................................. - .............. 34
Code of Va., §22-232.8 ________ _________ _____ .14,15,19,

24, 25

Other Authorities:

4 Moore’s Federal Practice 1190 H26.29 ......................  23
Davis, Administrative Law Treatise, Vol. I, §§6.11,

6.09-6.10.......................... ....... ..........- ............. ........  19
Pomeroy, Equity Jurisprudence, 5th Ed., 5 Symons,

1941, Vol. 1, §§260, 261a-n

PAGE

36



In t h e

Httitefc Court of Apprals
F oe the F ourth Circuit 

No. 8535

Gwendolyn Y vette Marsh, et al.,

Appellants,

T he County S chool B oard of R oanoke County, et al.,

Appellees.

appeal from the united states district court for the
WESTERN DISTRICT OF VIRGINIA, ROANOKE DIVISION

APPELLANTS’ BRIEF

Statement of the Case

This is an appeal from a final judgment (129a)1 entered 
October 4, 1961, dismissing an action for injunctive and 
declaratory relief against racial discrimination brought 
by the plaintiffs-appellants, Negro school children and 
parents in Roanoke County, Virginia, against the School 
Board of Roanoke County, the Superintendent of Schools, 
and the Pupil Placement Board of the Commonwealth of 
Virginia. This appeal is brought under 28 U. S. C. §1291.

The complaint, filed August 31, 1960, by seven Negro 
pupils (five of whom are appellants) and their parents and

1 Citations are to the Appendix to this Brief.



2

guardians, was a class action “ on behalf of all other Negro 
children attending the public schools of the County of 
Roanoke and their respective parents or guardians” (5a), 
under Rule 23(a)(3), Federal Rules of Civil Procedure. 
There was jurisdiction under 28 U. S. C. §1343, the action 
being authorized by 42 U. S. C. §1983 to enforce rights 
secured by the Fourteenth Amendment to the Constitution 
of the United States, and by 42 U. S. C. §1981 providing 
for the equal rights of citizens.

The complaint identified the defendants County School 
Board and Superintendent of Schools (5a-6a) as a state 
agency and a state agent, respectively, exercising various 
duties in maintaining, operating, and administering the 
public schools of Roanoke County. It identified defendants 
Oglesby, Justis and Wingo constituting the Virginia Pupil 
Placement Board, a state agency vested with statutory 
powers over the placement of pupils in schools (8a-9a). 
The complaint alleged that despite the Supreme Court’s de­
cisions that state-imposed racial segregation was uncon­
stitutional and plaintiffs’ applications to the defendants 
to attend public schools which they are eligible to enter 
except for their race, the defendants were pursuing a 
policy, practice, custom and usage of racial segregation and 
would continue to do so unless restrained by the Court (7a- 
8a). The complaint alleged that defendants were apply­
ing the Virginia Pupil Placement Act in such a manner 
as to perpetuate the pre-existing segregation system (9a); 
that they required pupils seeking to attend a non-segregated 
school to pursue certain inadequate administrative remedies 
(10a); that plaintiffs had applied to enter an all-white 
school prior to the 1960-61 school term and had been denied 
admission on a racially discriminatory basis; and that the 
various practices of the defendants complained of denied 
plaintiffs their liberty without due process of law and the



3

equal protection of the laws secured by the Fourteenth 
Amendment (lOa-lla).

Plaintiffs sought a declaration that certain of the ad­
ministrative procedures prescribed by the Pupil Placement 
Act were inadequate to secure plaintiffs’ rights to a non- 
segregated education and need not be pursued by them as a 
prerequisite to judicial relief, and prayed for a declaration 
that the Pupil Placement Board’s policies and practices in 
assigning pupils to segregated schools on the basis of race 
was unconstitutional. The complaint also sought temporary 
and permanent injunctive relief to restrain defendants from 
“ any and all action that regulates or affects, on the basis of 
race or color, the admission, enrollment or education of the 
infant plaintiffs, or any other Negro children similarly 
situated, to and in any public school operated by the defen­
dants.” The complaint asked that the defendants be re­
quired to present to the Court a comprehensive plan for 
desegregation of the school system “with all deliberate 
speed” in the event that they requested any delay in full 
compliance (12a-14a).

On September 15, 1960, the Court heard and denied the 
motion for preliminary injunction. On September 20, 1960, 
the county school authorities filed a “Motion To Dismiss 
and Answer” (15a). The motion to dismiss urged that the 
complaint failed to state a claim charging (1) that facts 
detailing the allegations of discrimination were not alleged;
(2) that plaintiffs’ applications for enrollment or transfer 
were not timely filed under Placement Board rules and;
(3) that plaintiffs did not exhaust administrative remedies 
under the Pupil Placement Act. The answer generally 
denied the allegations of the complaint except for the 
identity of the defendants and the receipt of plaintiffs’ 
applications for assignment to Clearbrook School. The an­
swer alleged that the County School Board had “ devoted



4

itself to a concerted policy and effort of maintaining 
good race relations” ; that prior to plaintiffs’ applications no 
Negro pupils had requested admission to any white school; 
that a school construction program was in progress, includ­
ing a plan to erect a school in the neighborhood where the 
plaintiffs lived, to be completed by September 1961, and 
to which all of the plaintiffs “will definitely be assigned and 
transferred for said 1961-62 school year” ; and that all 
legal power over assignments was vested in the Pupil Place­
ment Board.

The Placement Board’s answer (21a) generally denied 
the allegations of the complaint except for the identity of 
the defendants; asserted that the denial of plaintiffs’ re­
quests for enrollment in Clearbrook School for the 1960-61 
year was in accordance with a rule denying such requests 
unless submitted at least 60 days before the school session; 
asserted that they were also denied because of the lack 
of a favorable recommendation from the county school 
authorities; denied that plaintiffs were placed in school 
or denied transfers on the “ sole ground of race or color” ; 
asserted that the Placement Board was “under no obligation 
or compunction to promote or accelerate the mixing of the 
races in the public schools” ; and set up as a defense the 
fact that the plaintiffs did not invoke the Board’s protest 
and hearing procedures.

The case was tried May 24, 1961; the Court having re­
served judgment on the motion to dismiss. Evidence pre­
sented by the plaintiffs was received; the defendants called 
no witnesses. On July 10, 1961, the Court filed its memo­
randum opinion (122a). The Court stated (125a):

No evidence of any kind was offered indicating that 
the Pupil Placement Board had discriminated on ac­
count of race or color in the assignment of any student, 
new or transferring, to the schools of Roanoke County.



5

The Court said of plaintiffs’ requests for enrollment (125a):

There is absolutely no evidence that these transfer 
applications were denied on the ground of color or race. 
They were denied solely on account of the fact that 
they were not timely filed. The rule that all transfer 
requests must be submitted sixty days prior to the 
commencement of any school session is not unreason­
able and must be complied with except in unusual 
cases. It applies to all students, white and colored alike.

The Court concluded that the denial of the plaintiffs’ 
applications was proper; that the administrative proce­
dures set forth in the Pupil Placement Act were not unrea­
sonable and must be complied with except in unusual cases; 
and that there was no evidence to justify the complaint that 
the Pupil Placement Board members were administering 
the Act so as to preserve and perpetuate the policy, practice, 
and custom of assigning children to separate schools on 
the basis of their race and color. The Court held that plain­
tiffs were not entitled to any relief.

On October 4, 1961, the Court entered a final judgment 
dismissing the case at the plaintiffs’ costs (129a). Notice 
of appeal was filed on November 1, 1961 (131a).

Questions Involved

The following questions involved in this appeal were 
presented by the pleadings in light of the evidence received 
(see Statement of Facts) and were decided in the opinion 
below against the claims of the appellants:

1. Whether the Negro pupil-plaintiffs are entitled to in­
junctive relief requiring their admission to the all-white 
Clearbrook Elementary School, having been refused admis­



6

sion by the application of racially discriminatory rules and 
procedures.

This question includes several subsidiary issues, namely:
(a) the validity of the Pupil Placement Board’s cut-off date 
for applications as applied in the circumstances of this case;
(b) whether the plaintiffs’ failure to pursue the Pupil Place­
ment Board’s protest and hearing procedure bars their 
obtaining relief; and (c) whether the other matters urged 
in defense, i.e., overcrowding at Clearbrook School and 
the planned construction of a new all-Negro school in the 
area where plaintiffs reside, were proper grounds for the 
denial of relief.

2. Whether the plaintiffs and the class they represent 
are entitled to injunctive and declaratory relief prohibiting 
and condemning the racially discriminatory school assign­
ment practices and procedures used by the defendants by 
which pupils are initially assigned to schools on a racially 
segregated basis and are then subjected to discriminatory, 
burdensome and unreasonable procedures and assignment 
standards if they attempt to escape the segregated initial 
assignments.

The subsidiary issues included are: (a) the validity of 
defendants’ initial assignments of pupils on a racial basis 
to separate schools in accordance with separate overlapping 
Negro and white school zones; (b) the validity of the de­
fendants’ practice of planning new schools and selecting 
sites for such schools on a racial basis so as to create all- 
Negro schools; (c) the validity of defendants’ policy of re­
fusing to take action to initiate desegregation and to de­
velop a plan to eliminate assignments based on race; (d) 
the validity of the defendants’ transfer procedures and 
standards in light of the circumstances.



7

Statement of Facts

I. Segregation Practices in the County School System.

The Roanoke County public school system is composed 
of 28 schools (28a, 120a) serving “ over 14,000” pupils, only 
950 of whom are Negroes (30a). Three of the schools are 
all-Negro schools (Carver High School, Craig Avenue and 
Hollins elementary schools) (29a, 120a) and the other 
schools are all-white (29a), there having been no desegrega­
tion of pupils in the county schools at the time of the trial 
(35a).2 Teachers (35a) and school buses (55a) are also 
allocated on a segregated basis.

Pupils in the system are, with but a few individual excep­
tions, assigned to and attending schools in accordance with 
school zones established each year by the county school 
authorities (31a-32a). Plaintiffs’ Exhibit 2 is a map depict­
ing the 1960-61 school zones. Separate school zones are 
established for the all-Negro schools which overlap the 
zones of white schools in the County (32a-33a).3

2 The record does not indicate the fact that after the trial one 
Negro pupil (not a party in this case) successfully applied for 
and obtained admission to one of the all-white high schools at the 
beginning of the 1961-62 school term. Insofar as counsel are aware, 
this one child’s admission in a white school represents the only 
desegregation which has occurred in the county system.

3 Superintendent Horn testified (32a-33a) :
Q. Except for this type of individual exception, the students 

are assigned in accordance with these zones? A. Yes, the 
zones for this present year.

Q. Now, is it true that the zones for the three Negro schools 
in the County are separate zones in the sense that they overlap 
zones established for white schools? A. Yes. The three Ne­
groes’ serve the entire County. The zones overlap.

Q. You have one Negro high school and four white high 
schools? A. Yes, sir.

Q. Now, do the four white high schools have separate geo­
graphic areas that they serve in the County? A. Yes.

(footnote continued on next page)



The opinion below did not discuss the school zones at all. 
The opinion apparently inadvertently confused the evi­
dence in this case with that in Green v. School Board of 
Roanoke City, et al. (see record in No. 8534, 4th Cir.) which 
was tried just after the instant case and does involve a 
system described in the opinion as a “ feeder system” under 
which certain schools “ feed” their students upon gradua­
tion to other pre-designated schools (124a). There was 
no evidence about a “ feeder system” in the instant case.

The Negro pupils are “fairly scattered” in different white 
school zones about the County (57a), but they all attend the 
three all-Negro schools.

Parents having children entering schools are routinely 
directed to the school in their zone where they fill out a 
Pupil Placement Board form (36a), which is checked by a 
teacher or principal and forwarded to the superintendent’s 
office where his staff again checks it and indicates a recom­
mended assignment on the form. Such recommendations 
are made in accordance with the County’s school zones 
(37a). The forms are then forwarded to the Pupil Place­
ment Board office in Richmond where the recommended 
assignments are routinely approved—thus it is that the 
students attend schools consistent with the county’s school 
zones (37a-38a). Neither Superintendent Horn (38a) nor 
Mr. Hilton, Executive Director of the Placement Board 
(79a-80a), could recall any instance in which the county

Q. And the Negro high school— Carver— serves Negroes liv­
ing everywhere? A. Yes.

Q. And for the elementary schools, the same type of thing 
would be true; that is, the Negro school zones established on 
the map overlap the white schools? A. Yes, sir. They do.

Q. Do you recall Exhibit 2? Do you recall correctly that 
it shows the Negro school zones in crayon in one color and 
the white schools in another color? A. I believe it does. But 
I believe they are on different colors.



9

authorities’ recommendation for assignment was rejected 
by the Pupil Placement Board. Mr. Oglesby, Chairman of 
the Placement Board, testified that the only applications 
“ that we spend time on are those where there is a conflict 
between the desire of the parent and the recommendation 
of the local school board,” and that the staff handles the 
rest of the applications (83a). Mr. Hilton testified that the 
Board assigns about 200,000 pupils a year; that these ap­
plications, accompanied by local recommendations (70a- 
71a), are handled by “processors” in the office who com­
plete the portion calling for “action by the State Board,” 
and rubber stamp Mr. Hilton’s signature on the forms 
(76a).

It may be noted that the Court below said in its opinion 
that “ The School Board and its Division Superintendent 
do not make any assignments or any recommendations in 
reference thereto.” (Emphasis supplied; 124a.) This 
finding that the local authorities do not make recommenda­
tions is wholly erroneous (there being no evidence in the 
record even tending to support it), and is in conflict with 
the uncontradicted testimony of the defendants themselves 
and the documentary evidence as well. In addition to the 
testimony on this subject discussed above (37a-38a, 79a- 
80a, 82a-83a), see the references to and record of recom­
mendations for the assignment of the seven plaintiffs in 
this case (101a-107a, 43a, 47a-48a). Indeed, the Placement 
Board’s answer referred to its policy of refusing transfers 
in the absence of a “ favorable recommendation by local 
school officials” and asserted that there had been no such 
recommendation in plaintiffs’ cases (22a).

When pupils move their homes from one zone to another, 
they are transferred either immediately or at the end of 
the school session to the school in their new zones (39a), 
and when they move into the County during a school



10

year they also attend the school in their zones (49a). The 
basic qualification for admission to any of the schools 
is residence in the zone, satisfying the age requirements, 
and being in the grade levels served by the school (40a). 
There are no specialized elementary or high schools; each 
school is attended by the pupils who happen to live in its 
zone (39a-40a). A few schools have ability grouping within 
grades, but this is left to the principals and teachers (40a).

Both Messrs. Hilton and Oglesby were aware that vari­
ous communities used school zones (77a, 84a). However, 
Mr. Hilton testified that he did not have a copy of the 
school zones used in Roanoke County and had never re­
quested one (77a), and that the Placement Board had 
never issued any memorandum to local school officials on 
the subject of separate overlapping zones for Negro and 
white pupils (77a-78a). Chairman Oglesby testified that 
the Placement Board had made no announcements and 
taken no action with respect to separate overlapping zones 
for Negroes and whites in any community (83a-84a).

Mr. Oglesby stated that:

The applications acted on by the Pupil Placement 
Board are those in which the wishes of the parents 
differ from the ordinary assignment which is recom­
mended by the School Board. All those were acted on 
carefully. Some of those are Negro and some of them 
are white (82a-83a).

He said that the assignment standards used by the Place­
ment Board in such cases were: (1) requiring pupils to 
attend the closest school to their homes (90a, 93a), without 
regard to any school zones used by the local authorities 
in organizing the pupils in schools (93a), and (2) requir­
ing that transferring pupils have academic qualifications 
“ at least up to the average in the school sought” (91a) or 
“be good enough for us to believe that he would do the



11

work in the environment in which he wants to go” (92a), 
in order to be granted a transfer.

Superintendent Hilton (35a) and the Chairman of the 
County School Board, Mr. Trout (60a), testified that there 
had been no announcement of any desegregation plans for 
the system. Mr. Oglesby indicated that the Placement 
Board had never participated in the formulation of any 
plans for desegregation of any school district, and “ cer­
tainly” did not contemplate doing anything of that nature 
(84a). The minutes of the School Board and the Placement 
Board do not indicate that any action was taken on a 
petition for desegregation of the system submitted by 
plaintiffs with their applications (42a~43a, lOSa-llOa, 116a).

Mr. Trout testified that the School Board located schools 
for Negroes in the areas of the concentration of the Negro 
population, planning the size of facilities on the basis of 
the Negro population of the area concerned (61a), and that 
this was true of the Pinkard Court School then under con­
struction (61a). Superintendent Horn testified to substan­
tially the same effect (97a), and stated that the Pinkard 
Court School, to be opened in the neighborhood where the 
plaintiffs live in September 1961 (94a), had been appointed 
an all-Negro staff, and that there was a prepared list of 
children—all of whom were Negroes—who were to be ad­
ministratively transferred to that school for the 1961-62 
term (95a). The School Board had authorized a committee 
to purchase the site for this school at a meeting held Sep­
tember 13,1960, two days before the preliminary injunction 
hearing in this case. The Board’s minutes for the meeting 
indicated its plan to base a part of its defense to the pres­
ent lawsuit upon the availability of this school in plain­
tiffs’ neighborhood (118a).



12

II. Facts Relating to Plaintiffs’ Applications.

The seven plaintiffs all live within the Clearbrook School 
zone for white pnpils in the county (49a). They reside 
about two and one-lialf miles from Clearbrook School 
(where they applied) and ten miles from Carver School 
(where they were assigned) (54a). White children attend­
ing Clearbrook and living farther from that school than 
plaintiffs do ride a school bus through the section where 
plaintiffs live (55a).

On July 16, 1960, the plaintiffs’ applications4 and a peti­
tion requesting desegregation of the school system were 
delivered to Superintendent Horn’s office (40a-42a). Six 
of the plaintiffs sought transfer to Clearbrook and one was 
a beginner seeking original admission there.

Almost three weeks later (August 4th), these applica­
tions were presented by Superintendent Horn at a regular 
meeting of the County School Board, which merely directed 
that the applications be transmitted to the Pupil Placement 
Board (108a-109a). At this meeting Superintendent Horn 
stated his view that assignments for the 1960-61 session 
should be “ frozen” as of that date. The Board then adopted 
a resolution barring further transfers during the school 
year except “ for cases where parents have moved from 
one school area to another” (109a).

After 11 more days (August 15, 1961), Superintendent 
Horn carried out the direction to transmit the applications 
to the Placement Board (111a), with a letter indicating 
they were “ the applications of 7 Negro children to be ad­

4 The Pupil Placement forms are at 101a-107a. The standard 
forms do not have any place for parents to indicate their choice 
of schools. Plaintiffs wrote in “ Clearbrook” on the line calling for 
the name of the county or state. The forms had been executed and 
given to plaintiffs’ attorney on June 6, and June 16; the attorney 
was not aware of the 60-day rule (125a).



13

mitted to the Olearbrook Elementary School,” and also 
stating the date of their delivery to his office by Attorney 
Lawson (111a). Superintendent Horn’s assistant, at his 
direction, recommended that all of the plaintiffs be assigned 
to Carver School (43a, 47a, 101a-107a).

No indication of the reasons for this recommendation 
was communicated to the Placement Board (43a, 46a) or 
the plaintiffs. Mr. Horn testified that the reason for recom­
mending that the plaintiffs be assigned to Carver was that 
Clearbrook was overcrowded and that if plaintiffs were 
admitted he would be required to admit the other 125 Negro 
children living in the same area (47a-48a). He acknowl­
edged that none of the other 125 pupils had applied to 
enter Clearbrook (48a); that white pupils moving into the 
Clearbrook zone after the plaintiffs applied would be ad­
mitted routinely (49a), and that some white pupils did 
move into the Clearbrook area and were admitted after 
plaintiffs applied (58a). An exhibit prepared by Mr. Horn’s 
office (12a) indicates that Clearbrook has a capacity of 
360 pupils and Carver a capacity of 630 pupils. Another 
exhibit indicates that Clearbrook had an enrollment of 383 
on September 6, 1960, and 395 on October 1, 1960, while 
Carver had an enrollment on September 6, 1960, of 639 
and on October 1, of 686 pupils (121a). Carver School had 
a lower pupil-teacher ratio than Clearbrook (121a), but it 
should be noted that Carver, unlike any other school in 
the County, serves all twelve school grades (57a).

On the next day, August 16, Mr. Hilton wrote to Dr. 
Horn saying in part (112a):

Since you state that these applications were received 
by you on July 14, it would not be in accordance with 
Pupil Placement Board regulations to consider the 
applications for transfer of these pupils at the begin­
ning of the fall semester, September 1960. I refer you



14

to Pupil Placement Board Memo #24, issued July 17, 
1959.

The Memorandum No. 24 referred to contains this Place­
ment Board resolution (99a):

It was unanimously agreed that the Pupil Placement 
Board will not consider any transfer request sub­
mitted to it after sixty (60) days prior to the com­
mencement of any school semester.

Mr. Hilton’s letter also asked that Mr. Horn advise the 
plaintiffs of this information (112a). This was not done 
until 13 days later when Superintendent Horn wrote the 
parents on August 29th (113a-115a), also informing them 
that their children would he assigned to Carver School 
“until the Pupil Placement Board acts.” The Placement 
Board acted on the same day (August 29) denying the 
requests “ in accordance with” the 60-day rule (116a); the 
parents were so advised by Mr. Hilton’s letter of August 
30 (122a). The school year was scheduled to begin a few 
days later on September 6, 1960 (72a). Upon receiving 
notice of the Board’s action, the plaintiffs did not file a 
further protest with the Placement Board as required by 
the Placement Act (Code of Va., §22-232.8). They filed 
this action on August 31, 1960 (la). Under the protest pro­
cedure the Board is required to hold a hearing within 30 
days after receiving a protest; before the hearing the 
Board must first “publish a notice once a week for two 
successive weeks in a newspaper of general circulation in 
the city or county” involved indicating “ the name of the 
applicant and the pertinent facts concerning his applica­
tion, including the school he seeks to enter and the time and 
place of the hearing.” At such a hearing any parent or 
guardian of a child in the school involved is entitled to 
intervene and participate. The Board is then allowed 30



15

days after the hearing to make its decision (Va. Code 
§22-232.8).

Superintendent Horn testified that he had not taken any 
action to advertise the 60 day rule in Roanoke County or 
to make it known to anyone (51a-52a); that when Memo­
randum No. 24 came to him from the Placement Board it 
was merely kept on file (62a); that it was not reproduced 
locally or distributed to principals, teachers, parents, the 
press, or the School Board (52a). Mr. Hilton testified that 
when the 60 day rule was adopted one cop}7 was sent to 
each school superintendent (65a); that there was no re­
quest that local authorities publicize the rule; and that 
there was no publication of the rule in the form of a par­
ticular notice in the newspapers (65a); but that there was 
a general practice of releasing such information to the 
Richmond, Virginia newspapers and the news wire ser­
vices, the witness stating, “ I think that applied to this par­
ticular release” (65a). There is no indication on the ap­
plication forms that there is any deadline for applications 
(P. P. B. Form No. 1; 101a).

Under the 60 day rule there was a slight variation in 
the cut-off date in different communities around the State 
(66a). It should be noted that as the rule was announced 
July 17, 1959 (99a), less than 60 days prior to the 1959-60 
school session, the first cut-off date to occur after the rule 
was adopted was not until the summer of 1960.

Mr. Oglesby testified that the 60-day rule was applicable 
only to pupils whose parents’ desires conflicted with the 
local school board’s assignment recommendations (85a); 
that transfers requested after the cut-off date would be 
granted if there was no conflict between the parents’ de­
sires and the local recommendations (86a-87a); that this 
would be true in the case of administrative transfers such 
as where a school burned down or a school became over-



16

crowded (87a); that the Board would accept the local rec­
ommendation where a child enrolling for the first time 
applied late (88a); and that there would he no attempt to 
apply the rule where pupils moved into the system during 
a school year (88a).

The text of the 60-day rule referred to “any transfer 
request” (99a), but did not mention initial enrollments 
in the schools. Mr. Hilton stated that he knew of no public 
announcement that the rule also applied to original enroll­
ments, but that this interpretation had been given to indi­
vidual superintendents who had inquired (66a). The plain­
tiff who applied for original enrollment in the first grade 
was admitted at the all-Negro Carver school, but was not 
permitted to attend the all-white school requested (67a- 
70a).

On August 29, the same day the Placement Board denied 
plaintiffs’ applications, it also adopted a new rule super­
seding the 60-day rule (117a). The new rule mentioned 
both “ applications for original placement” and for “ trans­
fers” , fixed July 1 as the new deadline for filing with either 
the Superintendent of Schools or the Placement Board 
(the former rule referred only to filing with the Place­
ment Board), and excepted cases of change of residence 
after July 1 (117a).

The members of the Placement Board who were serving 
when the 60-day rule was adopted resigned effective June 
1, 1960 (71a).5 The new (and present) members did not 
assume office and hold a meeting until about July 25, 1960 
(71a; cf. 81a). During the period from June 1 to July 25, 
1960, there was no Board functioning. Placement applica- 6

6 The former members were Messrs. Farley, Randolph and White. 
See, Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960), describing 
their segregation policies.



17

tions received in the Richmond office during this period 
were held there but not approved until the new Board be­
gan functioning (71a).6

6 The trial court refused to receive the depositions taken and 
offered by the plaintiffs in evidence (26a-27a). Mr. Hilton’s depo­
sition, excluded but a part of the record on appeal, contains some 
slight amplification of the factual situation mentioned above (R. 
47; depositions pp. 78-79) :

Q. Mr. Hilton, what happened to all the pupil placement 
blanks, which were sent in to your office prior to the date 
that the new Placement Board began to function, and sub­
sequent to the date that the old Board ceased to function— 
and what were the dates? A. The old Board resigned as of 
June 1st. Those applications were placed in the files, awaiting 
a Board to take action.

Q. Now, the dates of those were what? What date did the 
old Board resign, effectively? A. As I recall, the old Board’s 
resignation was June 1, 1960.

Q. And what was the date the new Board took over! A. 
I can’t tell you the dates of the appointment. July, some time, 
I believe—July, about the 25th or 26th, was the first meeting 
of the new Board.

Q. In other words, during the period from July 1st to July 
25th, or 26th, or whatever it was, there was no Board func­
tioning at all? A. No, sir.



18

ARGUMENT

I.
Plaintiffs were excluded from the all-white Clearbrook 

School by use of racially discriminatory rules and pro­
cedures and are entitled to injunctive relief requiring 
their admission.

A. Plaintiffs possessed all the qualifications required 
of white pupils attending Clearbrook but were as­
signed elsewhere on the basis of their race.

It is undisputed that the plaintiffs met the basic qualifi­
cations required of white pupils attending Clearbrook 
School, in that they lived within the school zone and were 
in the appropriate school grades (40a, 49a). White pupils 
living in the zone are routinely initially assigned to Clear­
brook on the basis of their residence in the zone. This is 
accomplished by local recommendations based on the school 
zone, which are routinely approved by the Pupil Place­
ment Board (36a-38a). Plaintiffs’ initial placement in 
Carver school was based on race through use of the sepa­
rate overlapping school zones for Negroes. Thus, plain­
tiffs were forced to request transfers to obtain assignments 
which white pupils similarly situated are granted as a 
matter of course under the routine initial assignment pol­
icy. Cf. Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961). 
Similarly, one plaintiff, Barbara West, sought original 
placement in the first grade at Clearbrook a right routinely 
granted to white pupils living, as she did, in the zone.

B. The 60-day rule was unreasonable and racially 
discriminatory as applied to appellants.

The conclusion of the Court below that plaintiffs’ trans­
fer applications “were denied solely on account of the fact



19

that they were not timely filed”, and that the 60-day rule 
was “ not unreasonable” , was the principal basis for denial 
of the requested relief. Plaintiffs submit that the use of 
the 60-day rule in the circumstances of their case was 
unreasonable and racially discriminatory in that:

1. the defendants made no reasonable effort to make 
the existence of the 60-day rule known to pupils and 
parents in Roanoke County, and took no action to ad­
vise the public of its applicability to some initial en­
rollments ;

2. the 60-day rule is discriminatory and operates 
to preserve segregation in that it is not applicable to 
routine transfers or routine initial assignments recom­
mended by local school authorities;

3. filing the applications prior to the deadline in 
1960 would not have materially affected decision of the 
applications since the Placement Board had no mem­
bers at that time and did not begin functioning until 
after the applications were submitted.

The record clearly reveals that none of the defendants 
made any reasonable effort to publicize the 60-day rule in 
Roanoke County (51a-52a; 65a). The memorandum con­
taining the rule was sent by the Placement Board to the 
Superintendent of Schools, who did nothing but place it 
in his files. There was no official publication of the rule 
anywhere.7 There was no effort by anyone to make the 
60-day rule known in Roanoke County to pupils, teachers, 
principals, parents, or even to the County School Board.

7 See the discussion in Davis, Administrative Law Treatise, Vol. 
I, §6.11, on the egregious deficiencies of the states in disseminating 
administrative regulations and making them accessible to the 
public. Cf. the Federal Register System discussed in §§6.09-6.10. 
Note the newspaper publication required for each pupil’s assign­
ment hearing by Ya. code §22-232.8.



20

This regulation was little more than a private communi­
cation passing from the Placement Board to Superinten- 
dant Horn, and then to the latter’s files. It is true that the 
Placement Board did make the rule “ available” to the 
press when adopted. But this was in Richmond, Virginia, 
not Roanoke County, and was in July 1959, almost a year 
before the first cut-off date occurred under the rule. (The 
record is silent as to which, if any, newpapers actually 
published it.) Certainly this was no reasonable notice to 
people in Roanoke County. The variability of the cut-off 
date in different places (due to different opening dates for 
schools) further lessens the possibility that press coverage 
of the 1959 announcement could have been meaningful to 
the public if there was any.

The Placement Board conspicuously failed to use the 
most simple, efficient and obvious method of disseminating 
the rule to persons concerned, namely, printing the rule 
on the standard application form.8

It is submitted that it is a sheer denial of elementary 
standards of fairness to hold the plaintiffs bound by an 
administrative rule when no reasonable effort was made 
to publicize the existence of the rule.9

“ To enforce such a statute would be like sanctioning 
the practice of Caligula who ‘published the law, but 
it was written in a very small hand, and posted up 
in a corner, so that no one could make a copy of it.’ 
Suetonius, Lives of the Twelve Caesars, p. 278.” 
Screws v. United States, 325 U. S. 91, 96 (1945).

Enforcement of the 60-day rule against plaintiff Barbara 
West was completely unjustifiable for an additional reason.

8 This form, PPB Form No. 1, does not even provide a space for 
parents to indicate their choice of schools (101a).

9 The applications were filed Ju|\| 16th. Plaintiffs were not even 
told that they were late until August 29 (113a-115a).



21

The plain language of the rule referred only to transfers. 
Defendants made no effort whatsoever to notify the public 
that “ transfer request” included some applications for 
original enrollment by new pupils. Mr. Hilton merely so 
advised school superintendents who troubled to inquire 
(66a).

The lack of publicity given to the 60-day rule is readily 
understandable when its extremely limited applicability 
is understood. On its face the rule applies to “ any trans­
fer request” , but under the Placement Board’s policy, it 
does not apply to any of the routine types of transfer 
requests. It does not apply to cases of change of residence 
during the school year or to any requested transfers 
recommended local school authorities (85a-88a). Likewise, 
it does not apply to every request for original placement, 
only to those where parents and school authorities dis­
agree.

This Court held in Jones v. School Board of the City of 
Alexandria, 278 F. 2d 72, 77 (4th Cir. 1960), that place­
ment criteria applicable only to transfer requests and not 
to applications for initial enrollment would be “ subject to 
attack on constitutional grounds, for by reason of the 
existing segregation pattern it will be Negro children, 
primarily, who seek transfers.”  Similar reasoning reveals 
the discriminatory operation of the 60-day rule. Where 
a placement rule, such as this deadline, is applicable only 
to a limited class of transfers and initial enrollments de­
fined by reference to local recommendations, and the local 
recommendations are based on race under an invalid system 
of separate school zones for whites and Negroes, it is 
evident that any restriction made applicable only to per­
sons who dispute the recommendations will be primarily 
applicable to Negroes seeking to enter white schools. The 
fact that the rule might in some cases apply to white 
children (if, for example, they applied to a Negro school



22

or were protesting local school zones) does not validate 
the rule. Its plain effect is to reinforce the segregated 
situation by placing special restrictions on persons seek­
ing a change. It should therefore be held invalid under 
the reasoning of Jones v. School Board of the City of 
Alexandria, supra. The holding in Jones has been followed 
in Norwood v. Tucker, 287 F. 2d 798, 803 (8th Cir. 1961), 
where the court directed an order requiring a school board 
to make all initial assignments on the same basis used 
to determine transfer applications. See also Mannings v. 
Board of Public Instruction, 277 F. 2d 370, 374 (5th Cir. 
1960).

The racially discriminatory effect of the 60-day rule is 
strikingly illustrated by the case of plaintiff Barbara 
West, who applied for original enrollment in a first grade 
class. She was permitted to enter a first grade class de­
spite this “ late” application, as were white children who 
applied to Clearbrook even “ later.” The difference in 
treatment was that the white children in her area who 
applied “ late” were allowed to go to Clearbrook (49a- 
50a), while plaintiff was assigned to the all-Negro Carver 
school. This discrimination is sought to be esplained by 
the fact that all the “ late” applicants were assigned where 
the local authorities recommended. But, we have already 
seen that the recommendations are based on the unlawful 
dual racial school zones. The 60-day rule’s effect is to 
prevent a pupil from obtaining desegregation while not 
affecting pupils who do not protest the routine racially 
segregated assignments.

Finally, under the peculiar circumstances prevailing in 
the summer of 1960, the plaintiffs’ delay in filing their 
applications could not have materially affected the time the 
Placement Board could act upon them, since the Place­
ment Board had no members when the applications were 
filed, and would have had the applications in ample time



23

for action when it did begin functioning if they had been 
expeditiously handled by the local school authorities.

The Roanoke County schools opened on September 6, 
1960. The deadline for receipt of applications by the 
Placement Board was thus about July 8, 1960. Plaintiffs’ 
applications were delivered to Dr. Horn’s office nine days 
later, on July 16, but the Placement Board had no mem­
bers and was not approving applications from June 1 
until the first meeting of the new members on July 2510 
(71a). If the applications had been promptly forwarded 
to the Placement Board when received in the superin­
tendent s office they would have been available for action 
when the new board began work on July 25. However,

0 I f  the Court deems it necessary to consider the depositions (see
M S 6C o ^ % ’fi?27«TayTbvf COnsf dered even though excluded by the trial Court (26a-27a). The exclusion was contrary to the express
terms of Rule 26(d) (2), providing: P

“ The deposition of a party or of any one who at the time 
o± taking the deposition was an officer, director, or managing 
agent of a public or private corporation, partnership, or asso­
ciation which is a party may be used by an adverse party for 
any purpose.” 1 J

The trial Court erred in ruling that the depositions could be used 
only for impeachment. 4 Moore’s Federal Practice 1190, P 6 .29 : 

Rule 26 (d )(2 ) permits the deposition of a party to be 
used by an adverse party for any purpose at the trial or hear-
w m e3fn u°Ugr party is Present at the trial and has testified orally. In that situation the deposition may be used 
as evidence of an admission and may be introduced as inde­
pendent or original evidence by the adverse party and not 
26e(d ) ( l ) ° ”  PUrp°SeS ° f  lmPeacilment as provided in Rule

See Cleary v. Indiana Beach, Inc., 275 F. 2d 543 (7th Cir 19601
Sf/ p 7 T ° ° l « L °  ;
t  1 * •JR- J erv- 2d 30b'35’ Case J> 25 FRD 20 (N. D. Ohio 19601 • 
Merchants Motor Freight, Inc. v. Downing, 222 F 2d 247 22 F r '

3 FwR'n  f  2d 26d'43’ Case T 26 F. R. D. 116 (W. D Pa 1960) • 
i ^ 2 , C i J S " ! ’ 266 R  2d 36°- 2 *  K- St v - «

B; S\ Hl? ^  as the ehief administrative officer (Executive Secretary) of the Placement Board is plainly within the purview of Rule 26(d) (2). pmimy witum



24

Superintendent Horn held the applications for 19 days 
to present them to the School Board (a departure from 
the routine practice; 37a). When the School Board di­
rected that they be sent to the Placement Board they were 
still not sent for another eleven days.

It would have been a futile and vain act for plaintiffs to 
have filed the applications at the time required by the 
60-day rule since they could not have acted upon them at 
that time in any event. The effect of the ruling below is 
to penalize plaintiffs for not having done an act which 
could not have made any difference had it been performed.

C. The Placement Board’s protest and hearing proce­
dure was not an adequate and expeditious remedy, 
as every court that considered it prior to this case 
has held.

Plaintiffs’ applications were filed July 16th. They re­
ceived no notice of their assignments until Superintendent 
Horn’s letter of August 29 (113a-115a). Under the 
procedure provided by Va. Code §22-232.8, plaintiffs could 
not possibly have obtained a hearing and decision before 
the beginning of the term on September 6. The protest 
procedure requires a newspaper publication of a notice 
once a week for two successive weeks prior to a hearing. 
The Placement Board could take as much as 60 days after 
a protest is filed before deciding it. Therefore, plaintiffs 
filed this action on August 31, 1960, and sought to obtain 
a preliminary injunction prior to the start of the school 
session.

In Green v. School Board of the City of Roanoke (W. D. 
Va. July 1961), Judge Lewis held that plaintiff’s failure to 
file a protest was justified as an “unusual circumstance” 
where the Placement Board did not act until five or six days 
before the school term began (see record in 4th Cir. No. 
8534). In the instant case Judge Lewis pretermitted the
issue.



25

Plaintiffs’ decision not to pursue the protest machinery 
was even more justifiable since every court that had 
considered §22-232.8 had held that Negro pupils seeking 
desegregation need not follow the procedure. Judge Hoff­
man’s holding in Beckett v. School Board of City of 
Norfolk, 185 F. Supp. 459 (E. D. Ya. 1959), aff’d sub nom. 
Farley v. Turner, 281 F. 2d 131 (4th Cir. 1960), while 
relying in part on the Placement Board’s fixed opposition 
to desegregation, was also based upon a determination 
that the remedy was inadequate since the Placement Board 
had not acted upon the applications until three days prior 
to the school term and the protest procedures reqrured 
so much time.

Prior to the Beckett case, Judge Bryan had reached a 
similar conclusion on several occasions in the Thompson 
case, infra. None of the Negro pupils who obtained ad­
mission to white schools during the several years such 
orders were issued in Arlington were required to follow 
the protest machinery. This was true both before and 
after the Placement Act amendments of 1958. Compare 
Thompson v. County School Board of Arlington County, 
159 F. Supp. 567 (E. D. Va. 1957) (procedure is “ too 
sluggish and prolix” ), aff’d 252 F. 2d 929 (4th Cir. 1957), 
cert, denied 356 IT. S. 958, and Adkins v. School Board of 
City of Newport News, 148 F. Supp. 430, 442-443 (E. D. 
Va. 1957), aff’d 246 F. 2d 325 (4th Cir. 1957), with Thomp­
son v. County School Board of Arlington County, 166 
F. Supp. 529, 531 (E. D. Ya. 1958) (after amendment to 
present form, Placement Law held “ still not expeditious” ), 
aff’d in part and remanded in part, sub nom. Hamm v. 
County School Board of Arlington County, 263 F. 2d 226 
and 264 F. 2d 945 (4th Cir. 1959). Judge Bryan rejected 
the protest machinery as inadequate once more after the 
invalidation of the massive resistance laws. Thompson v. 
County School Board of Arlington County (E. D. Va., 
C. A. No. 1341, unreported “Memorandum on Formulation



26

of Decree on Mandate” dated June 3, 1959), holding that 
Negro pupils could ignore the protest machinery because 
it still was not expeditious.

The simple fact is that none of the dozens of Negro 
pupils who obtained admission to white schools by court 
orders in the Arlington County case,11 Fairfax County,12 13 
or Alexandria13 school segregation cases were required to 
pursue the Placement Board’s protest machinery.

There were similar rulings in the Charlottesville and 
Floyd County cases by Judges Paul and Thompson, Allen 
v. School Board of City of Charlottesville, 3 Race Rela­
tions Law Reporter 937, 938 (W. D. Va. 1958); Walker 
v. Floyd County School Board (W. D. Va., C. A. No. 1012; 
Sept. 23, 1959, unreported).

Another equally fundamental reason why plaintiffs should 
not be required to pursue the protest machinery is that 
such a requirement would be, in itself, racially dis­
criminatory in light of the assignment policies of the de­
fendants. As was true with the 60-day rule discussed 
above, the protest machinery never need be pursued by 
a student seeking the local board’s recommendations which 
are based on the invalid dual racial school zones. The 
practice of initially assigning pupils on the basis of race 
and then requiring a protest and hearing for a student

11 See for example Thompson v. County School Board, etc., 4 
Race Rel. Law R. 609 (B. D. Va. July 25, 1959); 4 Race Rel. Law 
R. 880 (E. D. Va. Sept. 1959) ; 5 Race Rel. Law R. 1054 (E. D. Va. 
Sept. 16, 1960).

12 Blackwell v. Fairfax County School Board, 5 Race Rel. Law R. 
1056 (E. D. Va. Sept. 22, 1960).

13 Jones v. School Board of City of Alexandria, 4 Race Rel. Law 
R. 31, 33 (E. D. Va. Oct. 22, 1958; Jan. 23, 1959; Feb. 6, 1959); 
affd 278 F. 2d 72 (4th Cir. 1960) ; see also 179 F. Supp. 280 
(E. D. Va. 1959).



27

to obtain a desegregated assignment is discriminatory, 
especially where the assignment criteria used in deciding 
protests are different from those applied in the initial 
assignments. Beckett v. School Board of Norfolk, 185 
F. Supp. 459 (E. D. Va. 1959), aff’d sub nom. Farley v. 
Turner, supra; Mannings v. Board of Public Instruction, 
211 F. 2d 370, 373 (5th Cir. 1960). In addition, the 
machinery is designed to discourage dissidents by publiciz­
ing the fact of their application in the press.

The protest and hearing procedure is an inadequate 
remedy in that Negro pupils seeking desegregation start 
it at a disadvantage since the racial initial assignments 
require them to protest in order to obtain that which 
white pupils obtain without protesting, namely, assign­
ment in their zones of residence.

The protest machinery affords no means for correcting 
the discrimination except in fortuitous cases, as the cir­
cumstances of this case illustrate. Plaintiffs live in the 
Clearbrook zone for white pupils, but the closest school 
to their homes was actually Ogden School (54a), another 
all-white school. Under the Placement Board’s established 
criterion for cases where the parents and local authorities 
disagree, namely, requiring pupils to attend the closest 
schools to their homes and ignoring local school zones 
(93a), the plaintiffs would not be able to qualify for 
Clearbrook, the school white pupils in their zone attend 
(even if they could satisfy the special academic criterion). 
This vividly demonstrates the correctness of the holdings 
in the Jones and Norwood cases, supra, condemning the 
use of the different assignment criteria for transfers and 
initial assignments. The policy of testing Negroes seek­
ing admission to white schools by a proximity rule while 
applying a zone rule to all others, is an obvious dis­
crimination. Judge Michie so held in Jackson v. The School



Board of the City of Lynchburg, Va. (W. D. Va., C. A. 
No. 534, January 15, 1962, not yet reported), stating:

If the Pupil Placement Board is not going to make 
the initial placements of all public school students in 
the state (and, as indicated above, it obviously cannot) 
and if on appeal it is not going to consider whether 
or not those placements have been made on a dis­
criminatory and racial basis, then obviously the ap­
peal to the Pupil Placement Board can afford no ade­
quate remedy to those children who have been 
discriminated against because of their race unless per­
chance they happen to live nearer to the school they 
wish to attend. Under these circumstances it would 
be almost a cruel joke to say that administrative 
remedies must be exhausted when it is known that 
such exhaustion of remedies will not terminate the 
pattern of racial assignment but will lead to a remedy 
only in a few given cases based on geography—a 
consideration which has been disregarded in the as­
signment of white pupils.

D. Overcrowding at Clearbrook and the establishment 
of a new all-Negro school in plaintiffs’ neighborhood 
cannot bar their admission to Clearbrook.

The record shows that despite a slightly overcrowded 
condition at Clearbrook school (23 above capacity on open­
ing day; 35 over on October 1; 120a-121a),14 white pupils 
who applied after plaintiffs did were accepted at Clear­
brook under the routine practice (49a-50a). This is a plain 
racial discrimination.

Overcrowding defenses were rejected as discriminatory 
in Thompson v. County School Board of Arlington County,

14 Carver School where plaintiffs were assigned was also over­
crowded ; 9 over capacity opening day, 56 over on October 1.



29

166 F. Supp. 529, 536 (E. D. Ya. 1958) (court approved 
rejection based on overcrowding); case remanded 264 F. 2d 
945 (4th Cir. 1959) (plaintiffs subjected “to tests that 
were not applied to the applications of white students 
seeking transfers” ) ; on remand, 4 Race Rel. L. Rep. 609, 
610 (E. D. Ya., July 25, 1959) (overcrowding criterion 
rejected as discriminatory). See also Clemmons v. Board 
of Education of Hillsboro, Ohio, 228 F. 2d 853 (6th Cir. 
1956).

The superintendent’s explanation that if these seven 
pupils were admitted he might be required to admit 125 
more Negroes, who had not applied for Clearbrook, cannot 
justify the discrimination practiced against plaintiffs. A 
similar argument was rejected and described as “ fraught 
with unreality” in Evans v. Ennis, 281 F. 2d 385, 386, 391 
(3d Cir. 1960). If large numbers of Negroes had applied 
for Clearbrook a different situation would have existed. 
In the situation which did exist, plaintiffs were excluded 
on an overcrowding standard not used to bar later white 
applicants.

The construction of a new all-Negro school in the plain­
tiffs’ neighborhood, as a planned and calculated part of 
the defense to this case (118a), is equally unavailing to 
bar the plaintiffs. The new school was planned so as to 
maintain the segregated system with facilities to accom­
modate the Negroes living in its area. White children in 
the same area attend Clearbrook and were not placed on 
the list for administrative reassignment to the new school, 
as the Negroes were (95a-96a).

The effect of this action is no different from that in 
McCoy v. Greensboro City Board of Education, 283 F. 2d 
667 (4th Cir. 1960), where Negro pupils were held entitled 
to attend a desegregated school notwithstanding the 
transformation of a near-by school to all-Negro use. Like­



30

wise, in Dodson v. School Board of the City of Charlottes­
ville, 289 F. 2d 439 (4th Cir. 1961), a practice of assigning 
white children living in the zone of the all-Negro Jefferson 
school to other schools, while refusing to let Negroes living 
in the Jefferson area transfer out, was held to be discrim­
inatory at 442-443. See also, Taylor v. School Board of 
the City of New Rochelle, 191 F. Supp. 181, 185; 195 F. 
Supp. 231 (S. D. N. Y. 1961), aff’d 294 F. 2d 36 (2d Cir. 
1961), cert. den. 7 L. ed. 2d 339, condemning a prior prac­
tice of allowing white pupils in a Negro school area to 
transfer out while denying this right to Negroes.

II.

Appellants are entitled to an injunction restraining 
defendants’ discriminatory assignment practices.

The court below refused to issue an injunction against 
the defendants as prayed,15 holding that the Placement 
Board’s practices and policies were justified and that the 
County Board and Superintendent were not in fact per­
forming assignment duties (127a-128a) and concluding that 
there was no justification for entering a permanent in­
junction. The case was dismissed and “ stricken from the 
docket” (129a).

The undisputed evidence demonstrates that the County 
School authorities have a system of recommending the 
assignments of pupils in accordance with a dual system of 
attendance areas based on race (37a); that the pupils in 
the County are in fact attending school consistent with the

15 Part B of the Prayer for Eelief (13a) was modeled after the 
language approved by this Court in School Board of City of 
Charlottesville v. Allen, 240 P. 2d 59, 61 (4th Cir. 1956), and 
directed to be used in Allen v. County School Board of Prince 
Edward County, 266 F. 2d 507, 511 (4th Cir. 1959).



31

dual racial zones (31a-33a); and that neither the Super­
intendent of Schools nor the Secretary of the Placement 
Board could recall any case where the Placement Board 
had not accepted the recommended assignment from Ro­
anoke County (38a; 79-80a). The Placement Board’s an­
nounced policy was to examine only those of the thousands 
of placements involving a conflict between the parents and 
local authorities (83a).

The Court’s finding that the County authorities did not 
make “any recommendations in reference” to assignments 
(124a), may and should be disregarded as a plain error 
based upon no evidence. United States v. United States 
Gypsum Co., 333 U. S. 364, 394-395 (1948) held that an 
appellate court may disregard a trial finding under Rule 
52(a) where “ left with a definite and firm conviction that 
a mistake has been committed.” The testimony and docu­
mentary evidence conclusively demonstrates that the County 
authorities routinely recommend assignments and recom­
mended the assignments of the plaintiffs to Carver School. 
There is no evidence from wdiich even an inference that 
the local authorities did not recommend assignments could 
be drawn, and no relevant demeanor testimony which might 
justify the finding—since all the evidence came from the 
defendants themselves and from their records. (See pages 
8-9, supra.)

The Court’s conclusion that the School Board and Divi­
sion Superintendent “ do not make any assignments” (124a) 
is true only in the sense that the Placement Board has 
ultimate statutory authority to make assignments and its 
staff rubber-stamps every application. But the undisputed 
evidence shows that under the Placement Board’s policy, 
local authorities exercise the decisive judgment in the vast 
majority of cases since the Placement Board approves their 
recommendations unless there is a protest. Proof that the 
county authorities actually shape the assignment pattern



32

lies in the fact that pupils are actually attending school in 
accordance with the school zone maps approved annually 
by the County School authorities (31a-32a), while the 
Placement Board has never even received or requested a 
copy of the school zone maps (77a).

In Jack.son v. School Board of the City of Lynchburg, 
Virginia (W. D. Va. C. A. No. 534, Jan. 15, 1962), not yet 
reported, Judge Miehie appraised the relationship between 
the Placement Board and local boards of education as 
follows:

If the Pupil Placement Board is not going to fulfill 
the duty, with which it has been charged by statute, of 
making the initial assignments throughout the state 
(and obviously it cannot), then the only remedy for the 
discrimination found to exist in the initial assignments 
is by injunction directed to the appropriate school 
board and school officials who are in fact (though not 
in theory) in charge of making the initial assignments. 
When the initial assignments are admittedly made 
on a racial basis as is the case here, and the Pupil 
Placement Board on appeal to it will not consider 
whether the initial placements have been made on a 
racial basis but only the location of the appellant’s 
home and, if that location would entitle him to go to 
the school to which he has applied, his grades, re­
quiring the exhaustion of such a “ remedy” wrnuld be 
merely an exercise in futility.

It is apparent that the actual result of the defendants’ 
assignment policies (however the responsibility is allocated 
between them) is the use of a dual system of attendance 
areas based on race. This was condemned by this Court in 
Jones v. School Board of the City of Alexandria, 278 F. 2d 
72, 76 (4th Cir. 1960) in the clearest language before the 
present case arose.



33

The reassignment policy, by which pupils initially placed 
on , the basis of race are then required to meet special 
residence and academic standards, having no relation to 
the method of initial placement and the organization of the 
pupils in the schools, in order to transfer, are equally clearly 
invalid under numerous precedents. Jones v. School Board 
of the City of Alexandria, supra; Hill v. School Board of 
the City of Norfolk, 282 F. 2d 473 (4th Cir. 1960); Dodson 
v. School Board of the City of Charlottesville, 289 F. 2d 
439 (4th Cir. 1961); Norwood v. Tucker, 287 F. 2d 798 (8th 
Cir. 1961); Mannings v. Board of Public Instruction, 277 
F. 2d 370 (5th Cir. 1960); Thompson v. County School 
Board of Arlington County (E. D. Va. C. A. No. 1341, 
Sept. 16, 1960), 5 Race Eel. L. E. 1056.

The School Board’s demonstrated practice of creating 
further segregation by planning and constructing new 
school facilities on a racial basis, administratively trans­
ferring only Negro pupils to such schools, and staffing them 
with all Negro personnel, is also an unconstitutional perpet­
uation of segregation which is inconsistent with the school 
authorities’ duty under Brown v. Board of Education, 347 
IT. S. 483 (1954); 349 U. S. 294 (1955), and Cooper v. 
Aaron, 358 U. S. 1 (1958) to “ devote every effort toward 
initiating desegregation and bringing about the elimination 
of racial discrimination in the public school system” (358 
U. S. at 7). It is equally clear that defendants are not 
performing these duties when they continue to make initial 
assignments on the basis of race and refuse to make plans 
for eliminating the segregated system by creating a non- 
raeial assignment system.

One of the traditional equity principles which Brown 
requires the courts to use in shaping remedies in these 
cases is the equitable principle of granting complete relief. 
Hecht Co. v. Bowles, 321 IT. S. 321, 329 (1944). The obliga­



34

tion to grant complete relief, even when it benefits persons 
not before the court, is evident, from Porter v. Warner 
Holding Co., 328 U. S. 395, 398 (1946) where-the Court 
said:

And since the public interest is involved in a pro­
ceeding of this nature, those equitable powers assume 
an even broader and more flexible character than when 
only a private controversy is at stake. Virginian R. 
Co. v. System Federation, R. E. I)., 300 US 515, 552, 
81 L ed 789, 802, 57 S Ct 592. Power is thereby resi­
dent in the District Court, in exercising this jurisdic­
tion, “ to do equity and to mould each decree to the 
necessities of the particular case.” Hecht Co. v. Bowles, 
321 US 321, 329, 88 L ed 754, 760, 64 S Ct 587. It may 
act so as to adjust and reconcile competing claims and 
so as to accord full justice to all the real parties in 
interest; if necessary persons not originally connected 
with the litigation may be brought before the court 
so that their rights in the subject matter may be deter­
mined and enforced. In addition, the court may go 
beyond the matters immediately underlying its equi­
table jurisdiction and decide whatever other issues and 
give whatever other relief may be necessary under the 
circumstances. Only in that way can equity do complete 
rather truncated justice. Camp v. Boyd, 229 US 530, 
551, 552, 57 L ed 1317, 1326, 1327, 33 S Ct 785.

Indeed, Rule 54(c), F. R. C. P. requires the courts to grant 
the relief to which the parties are entitled whether or not 
demanded. , . , , i

The defendants argued below that under Carson v. War­
ticle, 238 F. 2d 724 (4th Cir. 1956), the plaintiffs could not 
maintain a class action but in light of the pupil placement 
law can only obtain individual relief for assignment to



35

particular schools. The. manner of the trial court’s citation 
of Qarson v. Warticle, supra, indicates apparent agreement 
with that view (126a).

Plaintiffs submit that Carson v. Warlick, supra; Coving­
ton v. Edwards, 264 F. 2d 780 (4th Cir. 1959) and Holt 
v. Raleigh City Board of Education, 265 F. 2d 95 (4th Cir. 
1959), are inapplicable and do not support the proposition 
that the courts are powerless to deal with discriminatory 
assignment practices affecting pupils in a school system, 
except by reviewing individual applications to a particular 
school. This was the theory used to justify the trial court’s 
action in McCoy v. Greensboro City Boa,rd of Education, 
179 F. Supp. 745, 749-780 (M. D. N. C. 1959), which this 
Court reversed, 283 F. 2d 667 (4th Cir. 1960). Actually, 
the Carson, Covington and Holt cases held that injunctive 
relief would not be granted where parties had failed to 
pursue reasonable and adequate administrative remedies 
under a pupil placement law. The Court in Carson made 
it plain that it was not deciding what relief might be 
granted where some individuals had exhausted their ad­
ministrative remedies or where the remedies afforded were 
inadequate or unreasonable. The Court said in Carson, at 
238 F. 2d 724, 729:

“We are dealing here, of course, with the admin­
istrative procedure of the state and not with the right 
of persons who have exhausted administrative reme­
dies to maintain class actions in the federal courts in 
behalf of themselves and others qualified to maintain 
such actions.”

The procedural aspects of the class action issue may be 
disposed of without difficulty, for it is the substantive issue 
as to what relief may be granted that is really in dispute. 
The case comes within Rule 23(a)(3), F. R. C. P. in that



36

it involves a numerous class of persons (all Negro pupils 
in the system); it is obviously impracticable to bring them 
all before the court; and they are represented by “ one or 
more members of the class.” The fact that the rights in­
volved are personal and individual constitutional rights 
does not remove the case from Rule 23(a)(3). That pro­
vision applies only to “ several” rights. The case meets 
the requirement that the “ several” rights involve common 
questions of law and fact and that common relief be sought. 
The fact that other members of the class have not pursued 
individual transfer requests does not place them in a dif­
ferent class, because the common relief sought goes only 
to those issues of law and fact which do affect all Negro 
pupils in the community in common, and for which there 
is no administrative remedy to be exhausted, namely, the 
policy of making initial assignments on the basis of race.

Rule 23(a)(3) was designed to cover exactly this type 
of situation, to “ clean up” the litigious situation in one 
action (see Pomeroy’s Equity Jurisprudence, 5th Ed., 5 
Symons, 1941, Vol. 1, §§260, 261a-n) and to avoid a multi­
plicity of actions, as the equitable origins of the class action 
attest. Smith v. Swormstedt, 16 How. (TJ. S.) 288, 14 L. 
ed. 942 (1853) ; Hansberry v. Lee, 311 TJ. S. 32, 41-42 
(1940). See Bush v. Orleans Parish School Board, 242 
F. 2d 156, 165 (5th Cir. 1957).

The defendants’ argument that no class action may be 
maintained is in essence a substantive argument that they 
can insulate themselves from an injunction requiring them 
to cease the dual racial initial assignment system, and that 
the placement law renders the court powerless to grant 
relief against this practice. This doctrine would effectively 
overturn the rule of the Jones case, supra, that dual racial 
school zones are invalid. It is submitted that the contrary 
view taken by the 8th Circuit in Norwood v. Tucker, 287 
F. 2d 798 (8th Cir. 1961) is sound, and that the courts



37

have and should exercise full power to prohibit discrim­
inatory initial assignment practices. Manning v. Board of 
Public Instruction, 277 F. 2d 370 (5th Cir. 1960). See, also, 
Jackson v. School Board of the City of Lynchburg (W. D. 
Va.) (C. A. No. 534, Jan. 1962), unreported, requiring a 
school board to present a plan for eliminating discrimi­
natory initial assignments, stating:

“ It is obvious that, if a general injunction requiring 
desegregation can never be issued against a school 
board or other assignment authority in a state in 
which a pupil placement act is in effect, then the 
courts can never perform this supervisory function 
which the United States Supreme Court has told them 
they should perform” [in Brown v. Board of Educa­
tion, 349 U. S. 294 and Cooper v. Aaron, 358 U. S. 1].

Finally, it is submitted that the court below erred in 
striking the case from the docket and failing to retain 
jurisdiction during the period of transition to a nonsegre- 
gated system as required by Brown v. Board of Education, 
349 U. S. 294, 301 (1955). This Court has on several oc­
casions directed trial courts to retain school segregation 
cases on the docket in order to supervise the transition. 
Allen v. School Board of Prince Edward County, 266 F. 2d 
507, 511 (4th Cir. 1959); Hill v. School Board of the City 
of Norfolk, 282 F. 2d 473 (4th Cir. 1960); Hood v. Board 
of Trustees of Sumter County School District No. 2, 295 
F. 2d 390 (4th Cir. 1961). See, also, Norwood v. Tucker, 
287 F. 2d 798 (8th Cir. 1961), reversing Aaron v. Tucker, 
186 F. Supp. 913, 933 (E. D. Ark. 1960) (where the trial 
court had refused to retain jurisdiction because of a pupil 
assignment law).



38

CONCLUSION

It is respectfully submitted that the judgment of the 
court below should be reversed and the case remanded 
with directions that the appellants be granted the relief 
sought and such other and further relief as may be just.

Respectfully submitted,

J ack Greenberg
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

R exjben E. L awson

19 Gilmer Avenue, N.W. 
Roanoke 17, Virginia

Attorneys for Appellants



38