Plaintiffs' Request for Judicial Notice

    APPENDIX TO APPELLANTS’ BRIEF

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9286

Avis M. Pettaway, et al, 
Appellants,

vs.

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

Appellees.

S. W. T ucker

H en ry  L. M a r sh , III

214 East Clay Street 
Richmond 19, Virginia

Attorneys for Appellants

Ihe Press o f L a w y e rs  Printing C o m p a n y , In co rp o ra ted , R ichm ond 7, V irg in ia



IN D EX TO APPEN DIX
Page

Complaint ..........................-........ —-.....................................  3
Joint Meeting of Board of Supervisors and School 

Board, June 30, 1954 (P X -1 ) ............—...................... 15

School Board Meeting, May 27, 1963 ......................... - 17

School Board Meeting, June 11, 1963 ............................  17

Supervisors Meeting, August 15, 1963 (P X -3 ) .........- 18

School Board Meeting, August 23, 1963 ....................... 19

School Board Meeting, August 24, 1963 ........................  21

Supervisors Meeting, August 29, 1963 (P X -4 ) .......... 24

School Board Meeting, September 3, 1963 ..................  25

School Board Meeting, September 5, 1963 ....................  25

Supervisors Meeting, September 19, 1963 (P X -5 ) ----  27

Depositions Taken September 13, 1963 ........ ...............  27
Edwin F. Huber .........      29
M. B. Joyner .................... .................................... ----- 32

Memorandum of the Court ....................................-...... 37

O rder.....................................................................................  42

Notice of Appeal.......................................... -..................... — 43

Transcript of Proceedings ..................... - ...................... — 44
Franz J. Von Schilling, Jr.........................................  45
William E. Seward, Jr............................  57
Clifton M. Ellis, Jr........................   61
R. Franklin Lawrence ........     68
Scott L. Henderson .................................   75
J. L. W h ite ..................................................................  75
M. B. Joyner ..............................................................  79
Clarence J. Kee ................................. -....................... -  81



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9286

Avis M. Pettaway, et al, 
Appellants,

vs.

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

Appellees.

APPENDIX TO APPELLANTS’ BRIEF

IN TH E UNITED STATES D ISTRICT COURT 
FOR TH E EASTERN DISTRICT OF VIRGIN IA

Richmond Division

Civil Action No. 3766.

Filed Sept. 3, 1963.

AVIS M. PE TTA W A Y , BETTIE L. PE TTA W A Y , 
FLORENCE L. P E T T A W A Y  and LEON S. 

PE TT A W A Y , infants, by Charles L.



2

Pettaway and Bessie W. Pettaway, 
their father and mother and 

next friends,
LILLIAN  DIAN E HARRIS and STEPHEN ERIC 

HARRIS, infants, by Samuel E. Harris and Armenta
P. Harris, their father and mother 

and next friends,
LA  VERNE O. BAILEY, an infant, by Abraham Bailey 

and Gladys P. Bailey, her father and mother 
and next friends, 

and
CHARLES L. PE TT A W A Y , BESSIE W. PE TT A ­

W A Y , SAM UEL E. HARRIS, AR M EN TA P. 
HARRIS, AB RAH AM  BAILEY and 

GLADYS P. BAILEY,
Plaintiffs,

vs.

COUNTY SCHOOL BOARD OF SURRY 
COUNTY, VIRGIN IA 

E. F. HUBER,
Dendron, Virginia 

J. L. W H ITE,
Elberon, Virginia 

MRS. H. T. COOPER,
Waverly, Virginia

M. B. JOYNER, individually and as Division 
Superintendent of Schools of Surry County, 

Virginia,
Dendron, Virginia

BOARD OF SUPERVISORS OF SURRY 
COUNTY, VIRGINIA,
W. E. SEW ARD, JR.,

Claremont, Virginia



3

CLIFTON M. ELLIS, JR..
Wakefield, Virginia 
J. A. SAVEDGE,

Surry, Virginia
A. T. SOWDER, County Treasurer of Surry 

County, Virginia 
Surry, Virginia

STATE BOARD OF EDUCATION, 
Richmond, Virginia

W O ODROW  W. W ILKERSON, Superintendent of 
Public Instruction,

Richmond, Virginia,
Defendants.

COM PLAINT

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 the Act of Con­
gress, Revised Statutes, Section 1977, derived from the 
Act o f May 31, 1870, Chapter 114, Section 16, 16 Stat. 
144 (Title 42, United States Code, Section 1981), as here­
after more fully appears. The matter in controversy, ex­
clusive of interest and cost, exceeds the sum of Ten 
Thousand Dollars ($10,000.00).

(b ) Jurisdiction is further invoked under Title 28, 
United States Code, Section 1343. This action is author­
ized by the Act of Congress, Revised Statutes, Section 
1979, derived from the Act of April 20, 1871, Chapter 22, 
Section 1, 17 Stat. 13 (Title 42, United States Code, Sec­



4

tion 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 the Act 
o f Congress, Revised Statutes, Section 1977, derived from 
the Act of May 31, 1870, Chapter 114, Section 16, 16 Stat. 
144 (Title 42, United States Code, Section 1981), provid­
ing 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 main­
tains and operates public schools. Said infants are within 
the age limits of eligibility to attend, and possess all quali­
fications and satisfy all requirements for admission to, 
said public schools.

3. Adult plaintiffs are Negroes, are citizens of the 
United States and of the Commonwealth of Virginia, and 
are residents of and domiciled in said political subdivision. 
They are parents of one or more of the infant plaintiffs.

4. Plaintiffs bring this action in their own behalf and, 
there being common questions of law and fact affecting 
the rights of all other Negro children attending public 
schools in the Commonwealth of Virginia and, particularly, 
in said political subdivision, and the parents and guardians



of such children, similarly situated and affected with ref­
erence to the matters here involved, 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 plaintiffs 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 at­
tending public schools in the Commonwealth of Virginia 
and, particularly, in said political subdivision, and the 
parents and guardians of such children, similarly situated 
and affected with reference to the matters here involved.

I ll

5. The Commonwealth of Virginia has declared public 
education a state function. The Constitution of Virginia, 
Article IX, 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 IS, inclusive, of the Code of Vir­
ginia, 1950. The establishment, maintenance and admin­
istration of the public school system of Virginia is vested 
in a State Board of Education, a Superintendent of Public 
Instruction, Division Superintendent 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). Both “ state



6

funds” and “ local funds” are normally necessary for the 
support and maintenance of public schools, the availability 
o f  the major portion of the state funds being conditioned 
upon appropriations of local funds being made by the Board 
o f Supervisors of the affected county or by the council of 
the affected city.

6. Chapter 448 o f the Acts o f the General Assembly, 
1960 (Code of Virginia, §§ 22-115.29 through 22-115.33) 
makes or purports to make every child in the Common­
wealth between the ages of six and twenty who has not 
finished or graduated from high school eligible to receive 
a state scholarship in aid of such child’s attendance at a 
nonsectarian private school located in or outside, or a 
public school located outside, the locality in which such 
child resides, the amount of such scholarship per school 
year being one hundred twenty-five dollars for the child 
attending an elementary school and one hundred fifty dol­
lars for the child attending a high school. In addition, the 
statute requires or purports to require the county or city 
o f such child’s residence to pay a further sum, not exceed­
ing one hundred twenty-five dollars per school year, for 
such child s attendance at such school and authorizes or 
purports to authorize the county or city to pay such fur­
ther sums as the local governing body may deem proper. 
The defendant State Board of Education, acting through 
the defendant Superintendent of Public Instruction, is 
charged with the general execution of said statute. The 
genesis of this legislation was Chapters 56, 57 and 58 of 
the Acts of the General Assembly, Extra Session 1956. 
Its intervening development is reflected in Chapters 1, 49, 
50, 53 and 80 of the Acts of the General Assembly, Extra 
Session 1959.



7

7. Chapter 64 of the Acts of the General Assembly, 
Extra Session 1956 (Code of Virginia, §§51-111.38:1 
through 51-111.38:3) provides that any corporation organ­
ized after December 2, 1956 for the purpose of providing 
elementary or secondary education may by resolution duly 
adopted elect to have teachers employed by it become eli­
gible to participate in the Virginia Supplemental Retire­
ment System (Code of Virginia, Title 51, Chapter 3.2, 
§§ 51-111.9, et seq.).

IV

8. The defendant County School Board of Surry County 
exists pursuant to the Constitution and laws of the Com­
monwealth of Virginia as an administrative department 
of the Commonwealth, discharging governmental func­
tions, and is declared by law to be a body corporate. Said 
school board is empowered and required to establish, main­
tain, control and supervise an efficient system of public 
free schools in said county, to provide suitable and proper 
school buildings, furniture and equipment, and to maintain, 
manage and control the same, to determine the studies to 
be pursued and the methods of teaching, to make local 
regulations for the conduct o f the schools and for 
the proper discipline of the students, to employ teachers, to 
provide for the transportation of pupils, to enforce the 
school laws, and to perform numerous other duties, activi­
ties and functions essential to the establishment, mainte­
nance and operation of the public free schools in said 
county. (Constitution o f Virginia, Article IX, Section 133; 
Code of Virginia, 1950, as amended. Title 22.)

9. The defendant M. B. Joyner, Division Superintend­
ent o f Schools, holds office pursuant to the Constitution and



8

laws of the Commonwealth of Virginia as an administrative 
officer of the public free school system of Virginia. (Con­
stitution of Virginia, 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 
both in his official and in his individual capacities.

10. Woodrow W. Wilkerson is Superintendent of Pub­
lic Instruction and as such he is made a party defendant. 
E. F. Huber, J. L. White and Mrs. H. T. Cooper presently 
constitute the defendant County School Board of Surry 
County; and they are made parties defendant in their indi­
vidual capacities. W . E. Seward, Jr., Clifton M. Ellis, Jr. 
and J. A. Savedge presently constitute the defendant Board 
o f  Supervisors of Surry County; and they are made parties 
defendant in their individual capacities. A. T. Sowder is 
the County Treasurer of Surry County and as such he is 
made a party defendant.

V

11. The defendant County School Board and each mem­
ber thereof and the defendant Board of Supervisors and 
each member thereof are opposed to altering the long estab­
lished pattern of racial segregation in the public schools. 
The defendant School Board has done nothing toward 
bringing about the elimination of racial segregation in 
the public school system.

12. It is believed and alleged that unless enjoined and 
restrained from so doing, the defendant Board of Super­
visors will withhold appropriations of money necessary 
for the continued operation of public schools if the defend­



9

ant School Board should voluntarily or through compul­
sion assign teachers to schools without regard to race or 
permit children to attend public school without regard to 
race.

VI

13. Prior to and during the 1962-63 school session, the 
defendant County School Board maintained and operated 
three schools, viz: (1 ) Surry School wherein grades one 
through twelve were taught, (2 ) New Lebanon School 
wherein grades one through seven were taught, and (3) 
L. P. Jackson School wherein grades one through twelve 
were taught. All of the county’s white public school chil­
dren, 431 in number, attended Surry School wherein 
twenty-two white persons were employed as teachers and 
one as principal. A  fleet of ten school busses (each designed 
to carry a maximum of 57 children) transported white 
children to Surry School. Some of the county’s Negro ele­
mentary school children, 443 in number, attended Lebanon 
Elementary School where twelve Negroes were employed 
as teachers and one as principal. The others of the county’s 
Negro elementary school children, 521 in number, attended 
the elementary department of the L. P. Jackson School where 
fifteen Negroes were employed as teachers. The county’s 
Negro high school students, 389 in number, attended the 
high school department of the L. P. Jackson School where 
twelve classroom teachers, a teacher of Home Economics, 
a teacher of Agriculture, and a principal (all Negroes) 
were employed. A  fleet of fifteen busses (each designed to 
carry a maximum of 57 children) transported the Negro 
school children to Lebanon School and L. P. Jackson School.



10

14. The powers and duties of the Pupil Placement 
Board are stated in Sections 22-231.1 through 22-232.17 
of the Code of Virginia of 1960 (Cum. Supp.). On or 
about June 24, 1963, the Pupil Placement Board made and 
announced the assignments of the infant plaintiffs to 
attend Surry School for the 1963-64 session. That board 
has taken no subsequent action with regard to the school 
assignments of these plaintiffs.

15. Within a few days after the announcement of the 
assignment of the seven infant plaintiffs to the formerly 
“ all-white” Surry School, a mass meeting of white residents 
of the county was called and held at the county courthouse 
with approximately one thousand persons in attendance. 
At this mass meeting it was unanimously decided that a 
“private” school for all white children would be formed, 
that persons under contract to teach at the Surry School 
would be released from the public school system and be 
given preference for employment at the “private” school, 
and that the county should continue to operate public 
schools for Negroes. It was and is generally contemplated 
that state and local scholarships will defray the major 
portion of the expense for the attendance of children at 
such “ private” school.

16. On July IS, 1963, the Surry County Educational 
Foundation was incorporated, the purpose of the incorpo­
rators being to establish and operate a school or schools in 
Surry County for all of the white children of the county 
of public school age. The registered agent for said founda­
tion on whom process against it may be served is Ernest 
W. Goodrich, Esq., who also serves in the County o f Surry 
as the attorney for the Commonwealth. Specific state stat­
utes make it the duty of the attorney for the Commonwealth



11

to give his legal opinion when required by the Board o f 
Supervisors on all questions arising before that board 
(Code of Virginia, § 15-257) and to institute and conduct 
actions against local school authorities and their employees 
who shall by malfeasance, misfeasance or nonfeasance 
offend against the provisions of the school laws of the state 
(Code of Virginia, §§ 22-215, 22-216).

17. The defendant County School Board adopted, rati­
fied, partially executed and made possible the complete 
execution of the decision made at the mass meeting. Said 
School Board sought and accepted resignations of the per­
sons who were under contract to teach at the Surry School 
for the 1963-64 session and thus made them available for 
employment as teachers in the foundation’s “ private” 
school. Said School Board made and announced its decision 
to discontinue the operation of Surry School and thus vir­
tually compelled all of the white children of the county to 
attend the foundation’s “private” school. Said School Board 
is believed to have sold or otherwise disposed of some of 
the equipment formerly used at the Surry School and that 
it contemplates selling or otherwise disposing of other 
property formerly used in the operation of Surry School.

18. No private nonsectarian school located in Surry 
County is known to exist or to be contemplated other than 
the school or schools established by the Surry County Edu­
cational Foundation.

19. In seeking and accepting the resignations of the per­
sons who were under contract to teach at Surry School for 
the 1963-64 session, and in doing so after the Pupil Place­
ment Board had recognized and given effect to the right 
of the infant plaintiffs not to be segregated by race in the



12

public schools, the defendant County School Board de­
prived the infant plaintiffs of a liberty protected by the 
Fourteenth Amendment to the Constitution of the United 
States. To the extent that such action and other actions of 
the state, its officers and agencies, as hereinabove related, 
have encouraged and made possible the establishment and 
operation of a school for the education of all of the white 
children of the county, the defendant officers and agencies 
of the state have denied and unless enjoined from so doing 
will continue to deny to the plaintiffs that due process and 
equal protection of law which is guaranteed by the Four­
teenth Amendment to the Constitution.

20. Plaintiffs and those similarly situated and affected 
are suffering irreparable injury and are threatened with 
irreparable injury in the future as a result of the actions 
here complained of and as a result of the failure of the 
defendant School Board to eliminate racial discrimina­
tion from the county’s school system. Plaintiffs have no 
plain, adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of other than 
this complaint for an injunction. Any other remedy to 
which plaintiffs and those similarly situated could be re­
mitted would be attended by such uncertainties and delays 
as would deny substantial relief, would involve a multi­
plicity of suits, and would cause further irreparable injury 
and occasion damage, vexation and inconvenience.

21. The statute which provides for scholarships in aid 
of attendance of children at private schools contemplates 
and permits the payment of such scholarships, or install­
ments thereon, in advance of the child’s actual attendance 
at such school, it being made unlawful for a recipient to 
expend scholarship funds for any purpose other than in 
payment of or reimbursement for tuition costs. (Code of



13

Virginia, § 22-115.35.) Plaintiffs believe and allege that 
unless they will be promptly enjoined from so doing, the 
defendants will expend or cause to be expended large sums 
of money raised by public taxation in the further execu­
tion of the decision of the mass meeting of white residents 
to establish and operate at public expense “private” schools 
for all of the white children of the county.

VII

W HEREFORE, plaintiffs respectfully pray:

(A )  That this action be advanced on the docket and 
that a hearing on the prayers for interlocutory injunctions 
be held as soon as practical.

(B ) That an interlocutory injunction be entered en­
joining and restraining the defendant Board of Super­
visors of Surry County, the defendant A. T. Sowder, 
County Treasurer of Surry County, the defendant State 
Board of Education, and the defendant Woodrow W. 
Wilkerson, Superintendent of Public Instruction, and 
their successors in office, from processing or approving 
any applications for state or county scholarships from 
persons residing in Surry County or from paying or caus­
ing the payment of such scholarships to any person resid­
ing in Surry County until the further order of this Court.

(C ) That an interlocutory injunction be entered en­
joining and restraining the defendant County School Board 
of Surry County from failing and refusing to operate 
Surry School or any other school under its jurisdiction 
and control, during the 1963-64 session.



14

(D ) That an interlocutory injunction be entered en­
joining and restraining the defendant Board of Super­
visors of Surry County from refusing or failing to appro­
priate, for the operation of public schools during the 1963- 
64 session, funds in sums at least equal to those appropri­
ated for such purpose for the 1962-63 session.

(E ) That the Court enter a permanent injunction re­
straining and enjoining the defendant County School Board 
o f Surry County and the defendant M. B. Joyner, Di­
vision Superintendent of Schools of Surry County, and 
his successors in office, their agents and employees from 
any and all action that regulates or affects, on the basis of 
race or color, the initial assignment, the placement, the 
transfer, the admission, the enrollment or the education 
of any child to and in any public school or such child’s 
use and enjoyment of any facility owned or controlled 
by said School Board for the use of other children at such 
school, and from any and all action that regulates or af­
fects, on the basis of race or color the employment or as­
signment of persons as teachers, principals, or as adminis­
trative assistants in any school owned or controlled by 
said School Board.

(F ) That the Court permanently restrain and enjoin 
the defendant Board of Supervisors of Surry County 
from refusing or failing to appropriate funds for the 
continued operation of public free schools in Surry County.

(G ) That the defendants pay to plaintiffs the costs of 
this action and attorney’s fees in such amount as to the 
Court may appear reasonable and proper; and



15

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

S. W. T ucker  
O f Counsel for Plaintiffs

S. W. T ucker  
H en ry  L. M a r s h , III 

214 East Clay Street 
Richmond 19, Virginia 
Counsel for Plaintiffs

(JOIN T M EETING OF BOARD OF SUPERVISORS 
AN D SCHOOL BOARD, JUNE 30, 1954)

PX-1

Virginia: At a Called meeting of the Board of Super­
visors of Surry County, and the County School Board of 
Surry County, held jointly at the Courthouse of said 
County on Wednesday, June thirtieth, nineteen hundred 
and fifty-four.

Present: Clifton M. Ellis, Chairman, Board of Super­
visors

Albert H. Ochsner, Supervisor 
Parke H. Cox, Supervisor 
Ernest W. Goodrich, Attorney for the Com­

monwealth
T. M. Cofer, Chairman, County School Board 
E. F. Huber, Member School Board 
J. L. White, Member School Board 
M. B. Joyner, Division Superintendent of 

Schools

BE IT RESOLVED, by the Board of Supervisors of 
Surry County and the County School Board of Surry



16

County, in meeting assembled this thirtieth day of June, 
1954, as follows:

F IR S T : That it is our considered judgment that the 
best interest o f public education for both the White and 
Negro children in Surry County, and the only way to main­
tain an efficient system of public education as required by 
the Constitution of Virginia, is through the continuation 
o f a segregated school system and to that end we express 
our unalterable opposition to integration of the races in 
the public schools to any degree, now or at any time in the 
future, and pledge to the people of this County our best 
efforts to continue our present educational system.

SECOND: Recognizing the right of all children, re­
gardless o f race, to enjoy equal school facilities, we are 
prepared to equalize school facilities for the colored race 
o f  this county where it does not now exist; to bring about 
complete equalization as quickly as humanly possible, and 
to that end are prepared to go forward with a building 
program which has been started several years ago to reach 
the desired conditions.

On motion of A. H. Ochsner, Supervisor, Ernest W. 
Goodrich and Parke H. Cox are hereby appointed to repre­
sent both the County School Board and the Board of Super­
visors of this County, in any Fourth District meeting to 
be held to discuss or pass on, or in any way touching the 
matter of segregation or integration in Surry County.

* * *



17

(Exhibit with depositions)

SCHOOL BOARD MEETING 
M AY 27, 1963

Virginia: At a meeting of the County School Board of 
Surry County, Virginia held on May 27, 1963 at 2:00 
P.M. in the Superintendent’s Office, Dendron, Virginia.

Present: E. F. Huber, Chairman— Blackwater District 
J. L. White— Cobham District 
Mrs. H. T. Cooper— Guilford District 
M. B. Joyner— Clerk and Superintendent

The Board discussed at some length the applications of 
three Negro pupils for placement in Surry County High 
and Elementary School for the 1963-’64 school session. 
The Superintendent was ordered to hold these applications 
until a thorough study of them can be made before for­
warding them to the State Pupil Placement Board.

* * *

(Exhibit with depositions)

SCHOOL BOARD MEETING 
JUNE 11, 1963

Virginia: At a meeting of the County School Board of 
Surry County, Virginia held on June 11, 1963 at 2:00 
P.M. in the Superintendent’s Office, Dendron, Virginia.

Present: E. F. Huber, Chairman— Blackwater District
J. L. White— Cobham District



18

M. B. Joyner— Clerk and Superintendent 
* * *

The Board discussed at some length the applications of 
four additional Negro pupils for placement in Surry 
County High and Elementary School for the 1963-’64 
school session. The Superintendent was authorized to for­
ward these applications, along with the three discussed at 
the last meeting of the Board, to the State Pupil Place­
ment Board.

* * *

(SU PERVISORS MEETING, AUGUST 15, 1963)

PX-3
Virginia: At a meeting of the Board of Supervisors of 
Surry County, held pursuant to adjournment, at the Court­
house thereof, on Thursday, the 15th day of August, 1963.

Present: W. E. Seward, Jr., Chairman 
C. Morris Ellis, Jr., and 
J. A. Savedge, Supervisors

* * *

M. B. Joyner, Clerk of the County School Board ap­
peared before the Board, and submitted his estimate of 
funds necessary for the operation of public schools in 
Surry County for the month of September, 1963, amount­
ing to $37,000.00. He also reported that he had been ad­
vised that a private school for white pupils in the County 
had been organized, and he could not estimate how many 
white pupils would be attending the public school for white 
pupils, therefore his estimate as presented might be in 
error. Thereupon the Board doth Resolve that no appro­



19

priations for the coming month be made at this meeting, 
but that the Board stand adjourned until Thursday, Au­
gust 29th, 1963, at 9:00 A.M.

* * *

(Exhibit with depositions)

SCHOOL BOARD MEETING 

AUGUST 23, 1963

Virginia: At a meeting of the County School Board o f 
Surry County, Virginia held on August 23, 1963 at 2:00 
P.M. in the Superintendent’s Office, Dendron, Virginia.

Present: E. F. Huber, Chairman— Blackwater District 
J. L. White— Cobham District 
Mrs. H. T. Cooper— Guilford District 
M. B. Joyner— Clerk and Superintendent 
Willis W. Bohannon— Counsel For The Board 

* *

The Superintendent reported that he had been informed 
by the Surry County Educational Foundation that it has 
enrolled for the 1963-’64 session of its private schools 431 
pupils, all o f whom except first grade pupils, were enrolled 
during the 1962-’63 session in the Surry County High 
and Elementary School. He also presented cards addressed 
to the School Board and signed by parents advising that 
these 431 pupils have registered at the Private Schools. 
Mr. Joyner also reported that he had received applications, 
to the Board from the Educational Foundation, for tran­
scripts o f the records of 393 pupils who have registered 
in the Foundation schools and who were formally pupils



20

in the Surry County High and Elementary School. It was 
pointed out by Mr. Joyner that the total number pupils 
enrolled in the Surry School for the 1962-’Q3 session was 
431. He also noted that 7 pupils had been transferred to 
the Surry County High & Elementary School from other 
schools in the County by the State Pupil Placement Board, 
the names of these pupils and the schools from which they 
were transferred being:

Stephen Eric Harris— from— L. P. Jackson School 
Lillian Diane Harris— from— Lebanon Elementary 

School
Laverne O. Bailey— from— L. P. Jackson School 
Avis Merinda Pettaway— from— L. P. Jackson School 
Leon Sidney Pettaway— from— L. P. Jackson School 
Bettie Laverne Pettaway— from— L. P. Jackson 

School
Florence Louise Pettaway— from— L. P. Jackson

Mr. Joyner stated that indications are that there will be 
few, if any, pupils, other than these 7, to be enrolled in the 
Surry County High and Elementary School during the 
1963-’64 session.

Mr. Joyner presented written resignations of the follow­
ing teachers who are under contract as teacher in the 
Surry County High and Elementary School for the 1963- 
’64 session:

Amanda W. Presson 
Laura D. Seward 
Virginia K. Mitchell 
Hazel B. Fisher 
Lilly S. Half

Jayne H. Seward 
Jacqueline C. Johnson 
Nancy F. Threewitts 
Margaret J. Humphreys 
Williene B. Rawls



21

Margaret T. Pond Martha H. Bailey
Elizabeth B. Rowell Alice P. Cobb

Those listed are all of the teachers in the Surry County 
High and Elementary School except the following:

John W. Gordon, Jr. who moved from the County and 
did not return his signed contract.

Helen P. Lore who returned her contract unsigned 
along with a letter stating that she would not 
sign for the 1963-’64 school session.

Dorothy G. Gwaltney who returned her contract un­
signed along with a letter stating that she would 
not sign for the 1963-’64 school session.

Robert H. Moore; Dorothy A. Savedge; Lena F. 
Parker; John F. Parker; and Lillian H. Simmons, 
Audrey B. Williams.

It was the consensus of the Board that no action be 
taken on the resignation of the teachers at this time.

* * *

(Exhibit with depositions)

SCHOOL BOARD MEETING 
AUGUST 24, 1963

Pursuant to adjournment of the meeting of the Surry 
County School Board on Friday, August 23, 1963, a meet­
ing o f the Board was held on Saturday, August 24, 1963 
in the Superintendent’s Office at Dendron, Virginia.

Present: E. F. Huber, Chairman— Blackwater District
J. L. White— Cobham District



22

Mrs. H. T. Cooper— Guilford District 
M. B. Joyner— Clerk and Superintendent 
Willis W. Bohannon— Counsel for the Board

*  *  *

Mr. Joyner presented written resignations of the fol­
lowing teachers who are under contract as teachers in the 
Surry County High and Elementary School for the 1963- 
’64 session.

Mr. Joyner reported that Mrs. Lillian H. Simmons had 
advised him that her resignation is being forwarded to the 
Board. Mr. Joyner stated that he has been informed that 
the two remaining teachers, Miss Lena Parker and Mr. 
John F. Parker, will submit their resignations.

On motion of Mr. White, seconded by Mrs. Cooper, the 
Board decided that the Surry County High and Elementary 
School not be operated for the session 1963-’64 due to the 
lack of sufficient pupils to justify its operation.

On motion o f Mr. White, seconded by Mrs. Cooper, 
the resignations of the following teachers were accepted:

Amanda W. Presson Nancy F. Threewitts 
Laura D. Seward Jacquelyn C. Johnson

Audrey B. Williams 
Dorothy A. Savedge 
Robert H. Moore

Virginia K. Mitchell 
Hazel B. Fisher 
Lilly S. Half

Margaret H. Humphreys 
Williene B. Rawls 
Martha H. Bailey



23

Margaret T. Pond Alice P. Cobb
Elizabeth B. Rowell Audrey B. Williams
Jayne H. Seward Dorothy A. Savedge
Robert H. Moore

On motion of Mr. White, seconded by Mrs. Cooper, the 
Superintendent was authorized and instructed to accept on 
behalf of the Board resignations, other than the foregoing, 
which may hereafter be submitted by any other teachers 
in the Surry County High and Elementary School.

On motion of Mrs. Cooper, seconded by Mr. White, 
Mr. Joyner was instructed to notify the State Pupil Place­
ment Board o f the action taken by the School Board at 
this meeting, and to confer with the Placement Board as 
to action to be taken with respect to pupils assigned by it 
to the Surry County High and Elementary School.

On motion made by Mrs. Cooper, seconded by Mr. 
White, Mr. Joyner was authorized and empowered to do 
all things and to sign and execute such papers or documents 
as may be necessary or proper as a consequence of the 
actions taken by the Board at this meeting.

On motion made by Mr. White, seconded by Mrs. 
Cooper, Mr. Joyner was instructed to report the action 
taken at this meeting to the County Board of Supervisors 
at its next meeting.

Ordered that the Board adjourn.
* * *



24

(SU PERVISORS MEETING, AUGUST 29, 1963)

PX-4

Virginia: At a meeting of the Board of Supervisors of 
Surry County, held pursuant to adjournment, at the Court­
house of said County, on Thursday, August 29, 1963.

Present: W. E. Seward, Jr.,
C. Morris Elllis, Jr., and 
J. A. Savedge, Supervisors 
Ernest W. Goodrich, Attorney for the 

Commonwealth

The object of this meeting being to decide on the neces­
sary appropriation for public schools in the County of 
Surry for the month of September, 1963, M. B. Joyner, 
Division Superintendent of Schools for this County ap­
peared and reported that at a meeting of the County School 
Board since the last meeting of this Board it was decided 
not to open the public schools for white pupils at Surry due 
to the lack of pupils as around 438 pupils have signed up 
to attend the Surry County Educational Foundation school 
for the coming session (that being practically all o f the 
eligible white pupils) and all of the teachers in the public 
school for white pupils have asked that their contracts be 
cancelled. He thereupon filed an adjusted estimate of funds 
necessary for the operation of public schools in this County 
for the month of September, 1963, amounting to $26,- 
000.00, which appropriation, on the motion of C. M. Ellis, 
Jr., seconded by J. A. Savedge, was approved.

* * *



25

(Exhibit with depositions)

SCHOOL BOARD MEETING 
SEPTEM BER 3, 1963

Virginia: At a meeting of the County School Board of 
Surry County, Virginia held on September 3, 1963 at 2 :0G 
P.M., in the Superintendent’s Office, Dendron, Virginia.

Present: E. F. Huber, Chairman— Blackwater District 
J. L. White— Cobham District 
Mrs. H. T. Cooper— Guilford District 
M. B. Joyner— Clerk and Superintendent

Mr. Joyner reported that he has received written resig­
nations from Mrs. Lillian Simmons, Miss Lena Parker 
and Mr. John F. Parker and has accepted these resignations 
on behalf of the Board according to instructions of the 
Board at its last meeting. These three teachers plus those 
whose resignations have been accepted in previous meetings, 
are all o f the teachers who were under contract for Surry 
County High and Elementary School for the 1963-’64 
school session.

* * *

(Exhibit with depositions)

SCHOOL BOARD MEETING 
SEPTEMBER 5, 1963

Virginia: At a meeting of the County School Board of 
Surry County, Virginia held on September 5, 1963, in the 
Superintendent’s Office, Dendron, Virginia.



26

Present: E. F. Huber, Chairman— Blackwater District 
J. L. White— Cobham District 
Mrs. H. T. Cooper— Guilford District 
M. B. Joyner— Clerk and Superintendent 
Willis W. Bohannon— Counsel For The 

Board

Minutes of the last meeting were read and approved.

The Board discussed the matter of employing an attorney 
to represent the Board and the Superintendent of Schools 
in the case pending in the U. S. District Court for the 
Eastern District of Virginia styled Avis M. Pettaway, 
et al vs the County School Board o f Surry County, et al.

A  motion was made by Mr. White, duly seconded by 
Mrs. Cooper and carried that Mr. Bohannon employ Mr. 
Collins Denny or some other attorney to represent the 
School Board and the County Superintendent o f Schools 
in the case pending in the U. S. District Court for the 
Eastern District of Virginia styled Avis Pettaway, et al 
vs County School Board of Surry County, et al.

Ordered that the Board adjourn.
* * *

(SUPERVISORS MEETING, SEPTEM BER 19, 1963)

PX-5
Virginia: At a meeting o f the Board of Supervisors of 
Surry County, held pursuant to adjournment, at the Court­
house thereof, on Thursday, September 19, 1963.

Present: W. E. Seward, Jr., Chairman



27

C. Morris Ellis, Jr. and 
J. A. Savedge, Supervisors 
Ernest W. Goodrich, Attorney for the 

Commonwealth
*  *  *

BE IT RESOLVED, by the Board of Supervisors of 
the County of Surry, Virginia, that the following appro­
priations be, and the same hereby are, made for the month 
o f October, 1963, from the funds and for the purposes or 
functions indicated.

*  *  *

For the operation of public schools to be transferred to 
School Fund and expended only on order of School Board, 
as follows:

Total for operating public schools ................ $30,000.00

For the payment o f pupil scholarships to be transferred 
to school fund and expended only on order of School Board, 
as follows:

Total for pupil scholarships ........................  $56,000.00
* * *

(Dep. 8)

DEPOSITIONS TAKEN  SEPTEM BER 13, 1963 
PRESENT:

Mr. S. W. Tucker,



28

Mr. Henry L. Marsh, III,
Counsel for Plaintiffs 

Mr. John F. Kay, Jr.
Mr. W. W. Bohannon,

Of Counsel for County School Board of Surry County, 
and for Mr. M. B. Joyner, Division Superintendent 
of Schools of Surry County.

Mr. Ernest W. Goodrich,
Commonwealth’s Attorney, and, as such, Attorney for 
the Board of Supervisors of Surry County, 

and
Mr. J. Segar Gravatt,

Special Counsel for the Board of Supervisors of 
Surry County

Mr. Ernest W. Goodrich, and 
Mr. J. Segar Gravatt,

Counsel for Mr. A. T. Sowder, County Treasurer of 
Surry County 

Mr. R. D. Mcllwaine, III,
Assistant Attorney General of Virginia, and, as such, 
of Counsel for the State Board of Education, and Mr. 
Woodrow W. Wilkerson, Superintendent of Public 
Instruction for the Commonwealth of Virginia

It is stipulated by counsel for all parties that Mr. M. B. 
Joyner is the Division Superintendent of Schools for Surry 
County.

That Woodrow W. Wilkerson is Superintendent of Pub­
lic Instruction of the State of Virginia.

That E. F. Huber, Jr., J. L. White and Mrs. H. T. 
Cooper presently constitute the County School Board of 
(Dep. 9) Surry County.



29

That W. E. Seward, Jr., Clifton M. Ellis, Jr. and J. A.. 
Savedge presently constitute the Board of Supervisors o f 
Surry County.

That A. T. Sowder is the County Treasurer of Surry 
County.

It is further stipulated that Paragraph 13 of the Com­
plaint is admitted to be true except that the school busses 
referred to in said paragraph are designed to carry a maxi­
mum of fifty-four children, and except that the County 
negro high school students, who have attended the high 
school department of the L. P. Jackson School, are three 
hundred and six in number, and that the facts referred to 
in Paragraph 13 are true only for the school session of 
1962-63.

* * *

(Dep. 19) ED W IN  F. HUBER, 
a witness of lawful age, being first duly sworn, testified 
as follows:

DIRECT EXAM IN ATIO N

BY MR. TUCKER

Q. Will you state your name, Sir?
A. Edwin F. Huber.

Q. Where do you live?
A. In Surry County, near Dendron.

Q. I want to ask you if, in the latter part o f June, or 
the early part of July, you were present at a meeting of



30

the citizens of Surry County at Surry Courthouse?
A. No, Sir, I was not present.

MR. BO H AN N O N : We object to this line of question­
ing for the reason that it is not relevant, and the questions 
are asked over our objection.

MR. TUCKER

Q. You are a member of the School Board?
A. I am.

Q. How long have you been a member o f the School 
Board?

A. I think it is twenty years, last July.

Q. Mr. Huber, you are aware of the fact, in recent 
weeks, Surry County Educational Foundation has been 
(Dep. 20) formed, and is operating a school in Surry 
County ?

MR. K A Y : We object to the question because it is ir­
relevant to this case. You can go ahead and answer the 
question.

A. I heard that to be the case.

MR. M A R S H : We might save time if it was just shown 
that counsel objects to the questoins without continuing 
the objection on every question.

MR. K A Y : We will make the objection when we think 
it necessary. Thank you.

MR. TUCKER

Q. Other than the school to which I have just referred.



31

do you know of any other private school existing in Surry 
County at the present time?

MR. K A Y : Objection for the same reason. Perhaps, to 
save time, unless something particular comes up, we will 
just state that we object to any of the evidence given by 
the witness as not being relevant to the case.

MR. TUCKER

Q. Will you answer the question, please?
A. Other than the School Foundation?

Q. Yes.
A. No, I don’t know of any other private school.

Q. Have you ever known of any other school to exist 
(Dep. 21) in Surry County other than the public schools, 
other than the Surry County Educational Foundation, 
which we have just mentioned?

MR. B O H AN N O N : We would like for the record to 
show the same objection to each question. We will not 
make it, but the Court Stenographer can show it in the 
record each time the question is asked.

MR. T U C K E R : Will you read the question back, please?

N O TE: Question read back as follows:

Q. Have you ever known of any other school to exist 
in Surry County other than the public schools, other than 
the Surry County Educational Foundation, which we have 
just mentioned?

A. No, I have not.
*  *  *



32

(Dep. 24) M. B. JOYNER,
a witness of lawful age, being first duly sworn, testified 
as follows:

DIRECT EXA M IN ATIO N  

BY MR. TUCKER

Q. Will you state your name, and official position?
A. M. B. Joyner; Superintendent of Schools.
Q. O f Surry County?
A. Yes.

Q. How long have you been Superintendent of Schools 
for Surry County?

A. Thirty-five years.

Q. Did you bring with you, Sir, the figures with respect 
to the present enrollment of the schools of Surry County? 

A. I think I can give you that.
* * *

(Dep. 26) * * *

Q. Will you give us the number of children in each of 
the first grade classrooms?

N O TE: Same objection.

A. Grade One, there are two sections, thirty-three in 
one, and thirty-four in the other.

MR. BO H A N N O N : To prevent further interruption, 
we wish it understood that counsel for the School Board 
and for the Superintendent object to each of these questions 
for the reasons stated.



33

MR. TUCKER

Q. Grade Two.

N O TE: Same objection.

A. Grade Two has two sections, thirty-nine, and twenty- 
nine.

Q. Grade Three.

N O TE: Objection as stated.

A. Grade Three has three sections, twenty-nine, twenty- 
six, and twenty-six.

Q. Grade Four.

N O TE: Same objection.

A. Grade Four has two sections; thirty-five, and thirty- 
(Dep. 27) three.

[Q.] Grade Five.

N O TE: Same objection.

A. Grade Five has two sections, twenty-nine, and 
twenty-seven.

Q. Grade Six.

N O TE: Same objection.

A. Grade Six, two sections, twenty-eight, and thirty- 
one.

Q. Grade Seven.

N O TE: Same objection.

A. Grade Seven has two sections, thirty-three and 
and twenty-one.

Q. Is that the elementary school?

N O TE: Same objection.



34

A. Yes.

Q. Grade Eight is high school?

N O TE: Same objection.

A. Grade Eight is high school, and had two sections at 
the time these figures were taken. Since then we have added 
a teacher, and divided it into three sections.

Q. What is the total?

N O TE: Same objection.

A. Ninety-six in the three sections.

(Dep. 28) Q. Do you have a breakdown of the two 
sections at the time?

N O TE: Same objection.

A. The two sections at the time there were forty-six, 
and fifty, making a total of ninety-six; and now they 
are divided into three sections.

Q. Grade Nine.

N O TE: Same objection.

A. Grade Nine, two sections, thirty-nine, and twenty- 
nine.

Q. Grade Ten.

N O TE: Same objection.

A. Two sections, thirty, and thirty-two.
Q. Grade Eleven.

N O TE: Same objection.

A. Two sections, twenty-one, and twenty-three.
Q. Grade Twelve.



35

N O TE: Same objection.

A. Grade Twelve, two sections, twenty-two, and fifteen. 
Q. That exhausts the high school?

N O TE: Same objection.

A. Yes.

Q. Give the same figures for Lebanon Elementary 
(Dep. 29) School.

N O TE: Same objection.

A. Grade One, two sections, thirty-four, and thirty-four. 

Q. Read on through.

NOTE: Same objection.

A. Grade Two, two sections, thirty-four, and thirty-three. 

Grade Three, two sections, forty-three, and forty-three. 

Grade Four, two sections, thirty-one, and thirty-three. 

Q. And Grade Five?

N O TE: Same objection.

A. There was only one section in Grade Five, and that 
was fifty-three. That grade is being divided, with another 
additional teacher.

Q. It has not been divided as yet?

NOTE: Same objection.

A. No, I don’t think it has been divided yet, but the 
principal has been authorized to help find a teacher.

Q. Grade Six.

N O TE: Same objection.



36

A. Grade Six, one section, forty-six.

(Dep. 30) Q. Grade Seven.

N O TE: Same objection.

A. Grade Seven, two sections, twenty-five, and twenty- 
six.

* * *

(Dep. 33) * * *

Q. Does the State Board o f Education have a standard 
as to its ratio of pupils in the several grades ?

MR. BO H AN N O N : Same objection.

A. Shall I answer that?

MR. BOH ANNON: Yes.

A. There is a formula by which they distribute State 
money, based on thirty pupils per teacher in an elementary 
school, and twenty-three in a high school. That is the 
formula for the basic appropriations.

*  *  *

(Dep. 35) * * *

Q. I direct your attention to the meeting of the Surry 
County Board of Supervisors on August 29, 1963. Do you 
recall that meeting?

N O TE: Same objection.
A. Yes.

Q. Do you recall that meeting?



37

N O TE: Same objection.

A. Yes.

Q. You were present?

NOTE: Safne objection.

A. Yes.
Q. Did you not take to that meeting two estimates for 

funds needed for September, 1963, for school purposes, 
one in the sum of Twenty-Six Thousand Dollars, and the 
other in the sum of Thirty-seven Thousand Dollars?

(Dep. 36) MR. G R A V A T T: We object to that on the 
ground that you are referring to some data which can be 
determined, and the records of the Board will speak for 
themselves.

MR. TU CKER: Are you permitting the witness to an­
swer the question?

MR. G R A V A T T : He can answer the question over our 
objection.

A. I already had a request in for Thirty-seven Thousand 
Dollars, from a previous meeting; and I took to this next 
meeting an amended one for the smaller amount.

M EM ORANDUM  OF TH E COURT

Seven Negro pupils and their parents have instituted 
this suit against the County School Board of Surry County, 
Virginia, and its members; M. B. Joyner, Division Super­
intendent of Schools; the Board of Supervisors and its



38

members; the County Treasurer; the State Board of Edu­
cation; and the Superintendent of Public Instruction.

The cause came on to be heard upon a motion for an 
interlocutory injunction to restrain certain of the defend­
ants from paying State or County scholarships or tuition 
grants to any person residing in Surry County; to restrain 
the School Board from failing to operate Surry School 
or any other school under its jurisdiction during the 1963- 
64 session; and to restrain the Board o f Supervisors from 
refusing to appropriate for the operation of public schools 
during the 1963-64 session funds at least equal to those 
appropriated for the previous session.

Findings of Fact

The Court finds the following facts.

Prior to the 1963-64 school session the Surry County 
School Board operated one school attended by white stu­
dents only known as Surry School at which both elementary 
and high school grades were taught.

The School Board also operated New Lebanon School, 
an elementary school for Negro students, and L. P. Jack- 
son School, an elementary and high school for Negro 
students.

On June 24, 1963 the State Pupil Placement Board as­
signed the infant plaintiffs to the Surry School.

Shortly thereafter a mass meeting of the white citizens 
o f Surry County convened at the Community Center. Mr. 
Ernest W. Goodrich, Commonwealth’s Attorney of Surry 
County, presided at this meeting. Three of the four mem­
bers of the Board of Supervisors also attended. The situ­



39

ation concerning the assignment of the Negro students to 
Surry School was discussed and the possibility of a private 
school for the white students was mentioned. Those present 
at the meeting decided to call another mass meeting.

A  second mass meeting of the white citizens of the 
County was called soon. The attendance was large. Mr. 
Frank Lawrence presided. This meeting was attended by 
some, but not all, of the members of the School Board and 
Board of Supervisors. The persons attending the meeting 
decided to organize a private school and made preliminary 
arrangements to accomplish this. They also recommended 
to the School Board that public schools be continued.

At one or the other of the mass meetings a member of 
the School Board, in response to a question, stated that all 
teachers were under contracts that could be terminated on 
a month’s notice. A member of the Board of Supervisors 
stated that the operation of the private school would not 
reduce taxes.

Mr. Goodrich was authorized to prepare articles of in­
corporation of the Surry County Educational Foundation. 
He was named registered agent of the corporation. On 
July 15, 1963 the State Corporation Commission of the 
Commonwealth o f Virginia issued the certificate of incor­
poration. The Board of Directors of the corporation was 
organized in such a manner that five persons were selected 
from each magisterial district in the County.

Mr. Goodrich, the Commonwealth’s Attorney, served 
on the Board for several weeks. He resigned before the 
hearing on the motion.



40

The Treasurer of the County is Treasurer of the 
Foundation.

The officers and directors of Surry County Educational 
Foundation organized and established a school. The Presi­
dent of the Foundation in July asked the Superintendent 
of Schools to release the teachers under contract to the 
School Board. The Superintendent declined to do so at 
that time.

The officers o f the Foundation prepared forms by which 
the students or their parents could notify the School Board 
that the children were withdrawing from the public school 
and enrolling in the private school. These forms were trans­
mitted to the Board by the parents or by officers of the 
Foundation.

All of the white pupils who formerly attended Surry 
School enrolled in the Foundation’s school. Negro pupils 
who had been assigned to the Surry School sought admis­
sion to the Foundation’s school and were denied. Enroll­
ment in the school is by invitation of the officers of the 
Foundation. No white child who has applied for admission 
has been denied. No Negro child who has applied for ad­
mission has been enrolled.

On August 24, 1963 the School Board closed Surry 
School due to lack of sufficient pupils to justify its opera­
tion and released all of the teachers in that school from 
their contracts. These teachers were employed by the 
Foundation’s school.

The School Board sold three surplus buses to a motor 
vehicle dealer and purchased three new school buses. The 
Foundation purchased from a motor vehicle dealer surplus



41

school buses to provide transportation for its school. Ten 
school buses formerly used for Surry School are still owned 
by the School Board and are not in use at the present time.

Lebanon and Jackson schools were opened on Septem­
ber 5. Initially classes were crowded and the pupil-teacher 
ratio was high. School buses also were crowded. Recently 
new teachers have been employed and the pupil-teacher 
ratio has been reduced. The school buses have been re­
routed and they are no longer crowded. The physical 
capacity of the schools is taxed.

The tuition at the Foundation’s elementary school is 
$375 and at its high school $380. State and County tuition 
grants made available by §22-115.29 et seq. of the Code 
o f Virginia, 1950, as amended, provide $250 for elementary 
school children and $275 for high school children. The 
balance of the cost is being paid by the parents of the indi­
vidual students upon various terms.

The Board of Supervisors has appropriated for the 
month of September $26,000 for the operation of the 
public schools.

Conclusions of Law

The principal question is whether the County and the 
State, which subsidizes the Foundation’s white segregated 
school through tuition grants or scholarships as a substi­
tute for the County’s public integrated school, are denying 
the plaintiffs equal protection of the laws in contravention 
of the 14th Amendment of the United States Constitution.

Griffin v. Board of Supervisors of Prince Edward County,



42

No. 8837, 4th Cir., August 12, 1963, presents a similar 
question. The plaintiffs contend that the Surry situation 
differs in some respects from the Prince Edward case. The 
Court is of the opinion that the differences as presented in 
the evidence on this motion are not controlling. The over­
riding issue pertains to the tuition grants.

Prince Edward County closed both its Negro and white 
schools. The District Court enjoined the payment of the 
tuition grants. The Court of Appeals for the Fourth Cir­
cuit vacated the judgment entered by the District Court in 
Griffin and remanded the case with instructions to the 
District Court “ * * * to abstain from conducting further 
proceedings until the Supreme Court o f Appeals 
o f Virginia shall have decided the case now pending on 
its docket entitled County School Board o f Prince Edward 
County, Virginia, et al v. Leslie Francis Griffin, et al, and 
that decision has become final. * *

Upon authority of Griffin v. Board o f Supervisors of 
Prince Edward County, Virginia, et al, No. 8837, 4th 
Cir., August 12, 1963, the Court concludes that the inter­
locutory injunction should be denied.

/SI Jo h n  D. B u tzn e r , Jr .
United States District Judge

September 30, 1963

O R D E R

Upon consideration of the plaintiffs’ motion for an in­
terlocutory injunction, for reasons stated in the Memo­



43

randum of the Court this day filed, it is ORDERED that 
the motion is denied.

Let the Clerk send copies of this order and of the Memo­
randum of the Court to counsel of record.

/ S / Jo h n  D . B u tzn er , Jr .
United States District Judge

September 30, 1963

NOTICE OF APPE AL

Notice is hereby given that Avis M. Pettaway, Bettie 
L. Pettaway, Florence L. Pettaway and Leon S. Pettaway, 
infants by Charles L. Pettaway and Bessie W. Pettaway, 
their father and mother and next friends; Lillian Diane 
Harris and Stephen Eric Harris, infants, by Samuel E. 
Harris and Armenta P. Harris, their father and mother 
and next friends; Laverne O. Bailey, an infant, by Abra­
ham Bailey and Gladys P. Bailey, her father and mother 
and next friends; Charles L. Pettaway, Bessie W. Pettaway, 
Samuel E. Harris, Armenta P. Harris, Abraham Bailey 
and Gladys P. Bailey

Hereby appeal to the United States Court of Appeals 
for the Fourth Circuit from an order of this court entered 
on September 30, 1963, denying the plaintiffs’ motion 
for interlocutory injunctions as prayed in the complaint.

H en ry  L. M a r sh , III 
O f Counsel for Plaintiffs



44

S. W. T ucker  
H en ry  L. M a r s h , III 

214 East Clay Street 
Richmond, Virginia— 23219 

Counsel for Plaintiffs

Richmond, Virginia 
September 25, 1963

TRAN SCRIPT OF PROCEEDINGS
Before:

H onorable Jo h n  D. B u tzn e r , Jr .
United States District Judge

Appearances:
S. W. T ucker , E squire , and 
H en ry  L. M a r sh , III, E squire ,

Counsel for the Plaintiffs 
R obert Y. B u tto n , E squire ,
Attorney General o f Virginia, and 
R. D. M cI l w a in e , III, E squire ,
Assistant Attorney General o f Virginia, 

Counsel for Defendants W. W. Wilkerson 
and State Board of Education 

E rnest W. G oodrich , E squire , 
Commonwealth’s Attorney, and 
J. Segar G ravatt , E squire ,

Counsel for Defendants Board of 
Supervisors and A. T. Sowder, Treasurer 

W illis  W . B o h a n n a n , E squire ,
Collin s  D e n n y , Jr ., E squire , and



45

Jo h n  F. K a y , Jr ., E squire ,
Counsel for Defendants County School 
Board of Surry, Virginia, and 
M. B. Joyner, Division Superintendent 

A. E. S. Ste ph e n s , Jr., E squire ,
Counsel for Franz J. Von Schilling, Jr.,
J. Melvin Rollings, and R. Franklin Lawrence 

* * *

EVIDENCE ADDUCED ON BEHALF 
OF TH E PLAINTIFFS

(Tr. 11) FRANZ J. VON SCHILLING, JR., called as 
a witness by and on behalf of the plaintiffs, having been 
previously duly sworn, testified as follows:

DIRECT EXAM IN ATIO N  

BY MR. TU CKER:

Q. Would you state your name and address, sir?
A. My name is Franz Von Schilling, Jr., Spring Grove, 

Virginia.

Q. That is Surry County, Virginia?
A. That is in Surry.

Q. I believe, Mr. Von Schilling, you are connected with 
the corporation known as Surry County Educational 
Foundation?

A. I am.

Q. And in what capacity are you connected with that 
corporation ?

A. I am a member of the board and the president.

Q. Would you tell us who the other officers of the cor­
poration are?



46

A. There are twenty-nine o f them.

Q. I did not mean directors. I meant— well, is Frank 
Lawrence a secretary?

A. He is the vice-president.

(Tr. 12) Q. Vice-president. And Ray Bowers?
A. He is the secretary.

Q. And J. A. Savedge?
A. He is not connected with the corporation.

Q. Well, was he connected with the corporation at any 
time?

A. He was.

Q. When it was originally incorporated, what position 
did he hold ?

A. He wasn’t with the corporation when it was orig­
inally incorporated. It was after the incorporation that he 
was elected treasurer.

Q. Did he serve as treasurer?
A. For a very short time only.

Q. Is that the same gentleman who is Treasurer of 
Surry County—who is the County Treasurer of Surry 
County ?

A. Same one.

Q. What is, and has been, the connection of Mr. Good­
rich with the corporation?

A. Mr. Goodrich was one of the original incorporators 
of the corporation. He was at one time on the board, and 
he was at one time the registered agent for the corporation.

Q. And there we are speaking o f Mr. Ernest W. Good­
rich, who is the Commonwealth’s Attorney for Surry 
County ?



47

(Tr. 13) A. That is correct.

Q. Mr. Von Schilling, I ask you if at some time in late 
June o f this year, or early July of this year, you were 
present at a mass meeting o f citizens at the Surry County 
Courthouse ?

A. I was not.

Q. I ask you if you heard of such meeting after it oc­
curred ?

A. Oh, yes.

Q. And of the decisions made at that meeting?
A. I heard of them, but I wasn’t there to hear them 

made.

Q. All right, would you tell us through whom you heard 
of them?

MR. G R A V A T T : If Your Honor please, we object to 
this kind of testimony as pure hearsay. This man knows 
nothing of his knowledge about the mass meeting.

TH E C O U R T: Mr. Gravatt, the question was not what 
took place there, but who reported to him what took place 
there. The objection is overruled.

MR. G R A V A T T : We except.

A. It is very difficult to say from whom I heard it, be­
cause when you go back into Surry County after you are 
away, everybody tells you what goes on. It is a matter of 
(Tr. 14) general interest and information that everybody 
tells you a bit of.

BY MR. TUCKER:

Q. All right, I note that you are one of the original 
board of directors of the Foundation.



48

A. That is correct.

Q. Now, will you tell us when first you gave your con­
sent to serve as one of the directors of the Foundation?

A. That was as a director o f the Foundation. I was 
not a director until I was among the fifteen original men 
that were put down in the charter for the incorporation 
as a director.

Q. Was your consent obtained before the names were 
put down in the Articles of Incorporation?

A. They were— that is true.

Q. All right, now I will ask you whether those fifteen 
persons who were named as directors in the original char­
ter, at any time had a meeting before the execution of the 
Articles of Incorporation on July 12, 1963?

A. Yes.

Q. Am I to take it that those fifteen people who were 
named in the charter were all present at this meeting prior 
to the date of that charter, July 3, 1963?

A. Now just which meeting are you talking about?

Q. I think I just understood from you when I was in- 
(Tr. 15) quiring as to how and when you gave your con­
sent to be named, that there was a meeting of certain 
people, and I think I understood that these people, who 
were the initial directors, were the people present at the 
meeting. I want to verify that.

A. That is correct.

Q. Will you tell us what other persons were present at 
that meeting?

A. These people, these fifteen people.

Q. Were any other people present?
A. Not to my knowledge.



49

Q. Was Mr. Goodrich present?
A. He was present. He is one o f the incorporators on 

the charter.
Q. But not one of the directors named in the charter?
A. Not one o f the directors.

Q. Was any other attorney present?
A. I don’t remember whether Frank Lawrence could 

have been present, but he may have been.
Q. All right, was Mr. Goodrich directed or authorized 

to prepare the Articles of Incorporation?
A. He was.
Q. Was this the initial meeting of the incorporators, or 

the persons who proposed to get the Foundation organized?
A. No.

(Tr. 16) Q. All right, were you present at any earlier 
meeting of the group ?

A. I was.
Q. Can you tell us when that occurred?
A. Well, at the mass meeting at which I was not present, 

these fifteen men were appointed, and I was advised later 
of my appointment as— on this committee, which was in­
structed to form such a corporation.

Q. Now, can you tell us how, or by whom, you were 
advised that you were so appointed?

A. No, I can’t tell. So many people told me that I 
couldn’t remember which one told me first.

Q. Can you remember anyone who told you?
A. Well—
Q. I am asking you specifically if Mr. Goodrich told you.



50

A. Not that I remember. I do remember Frank Law­
rence telling me.

Q. I see. In the formation of this fifteen-man board of 
directors, was there taken into consideration a division of 
those fifteen men that is, five from each of the magis­
terial districts o f the County?

A. That is the way they were selected by the mass meet­
ing, is my understanding.

(Tr. 17) Q. In the statement of purposes of the Founda­
tion, we find this expression: ” to provide exclusively edu­
cational opportunities for students; to train them to meet 
the challenges of our modern, complex society.”

I want to ask you if it is your understanding that the 
schools to be operated by the Educational Foundation are 
to be schools for white children exclusively ?

MR. GOODRICH: If Your Honor please, we object 
to that. What his understanding of it is, is immaterial.

TH E C O U R T: The objection is overruled.

A. My understanding of the organization was that we 
were making an organization, and we would invite the 
children that we wanted to go to the schools.

BY MR. T U C K E R :

Q. And those children whom you wanted to go to the 
schools were white children, and not Negro children?

A. Those children that we wanted to go to the schools 
would be determined by the board of directors.

Q. Has the board of directors determined that it wants 
any Negro children to go to the school?

A. It has not yet.



51

Q. Has the board o f directors determined that any 
white child who lives in Surry County shall be excluded 
from the school?
(Tr. 18) A. They have not yet.

Q. As a matter of fact, are you aware of the fact that 
certain Negro children did seek to be enrolled in the school? 

A. I am aware of the fact.

Q. And those Negro children who did make application 
have not been received, have they?

A. I wasn’t present when they made the application.

Q. Are you aware of any Negro child attending the 
school ?

A. No.

Q. And you are not aware of the board having invited 
any Negro child to attend the school?

A. No.

Q. Since the charter was obtained, have there been any 
additions to the board of directors?

A. Yes.

Q. The number was increased to thirty?
A. The number was increased to thirty.

Q. And in the increased number, at one time, Mr. Good­
rich was named, was he not?

A. He was.

Q. Is he still a member of the board of directors of 
the corporation?

A. He is not.

(Tr. 19) Q. How long did he serve as such?
A. I don’t remember the date that he resigned, but I



52

wouldn’t think that he was on the board more than four 
or five weeks.

Q. Would it refresh your memory to suggest to you 
that Mr. Goodrich resigned some time after September 3 ?

A. I don’t remember the date.

Q. You can’t say whether it was before or after Sep­
tember 3?

A. No.

Q. What amount is charged at the Foundation schools 
for tuition?

A. A  total o f $375.

Q. That is true as to every child, whether he is in high 
school or elementary school?

A. No, it is $5 more for high school than it is for ele­
mentary. 375 for the elementary and 380 for the high 
school.

Q. Are you in a position to say what percentage, or 
approximately what number o f children, or their parents 
for them, have paid tuition to date?

A. W e have— let’s see. W e probably have collected a 
third of our tuitions, and all of the other—-practically all 
o f the other is on a monthly payment proposition or de­
ferred payment basis.

(Tr. 20) Q. To what date, or what time, is credit ex­
tended for payment of tuitions?

A. Well, as a practice, when we made the tuition agree­
ment with the parents, we gave them the opportunity to 
select their payments.

* * *



53

(Tr. 21) * * *

Q. I think my question had to do with your general 
extension of credit. W'ould you enlighten us to what ex­
tent you are extending credit to the children or to their 
parents for attendance in the Foundation school?

A. I was explaining that. When the children made the 
agreement for tuition, we gave them the opportunity to 
select their period dates, either monthly, or as they wished.

Q. Are you extending credit for the semester?
A. Well, some of the parents elected to pay monthly; 

being a farm district, the money coming in when the crops 
are harvested, many of them have elected to pay when 
their crops are harvested; many of them have elected to 
pay by the quarter; and many of them paid cash before 
the children went to school.

Q. By the quarter, you mean just what?
A. Well, quarterly periods through the term of the 

school.

Q. School being—-
A. Ten months, from September through June.

Q. Then I ask you do you have any who are paid by 
the semester, that is at five month intervals ?
(Tr. 22) A. No, not that I know of, unless they hap­
pened to have elected it that way.

Q. Is the Foundation affording transportation for the 
children ?

A. It is.

Q. You purchase buses?
A. We do.

Q. They were surplus buses from other school com­
munities, from other counties?



54

A. W e obtained them from various places.

Q. They are the standard school buses?
A. They are.

Q. That would normally belong to a school board some­
where ?

A. They could have.

Q. Well, did they?
A. I imagine they did.

Q. Did you obtain any o f those buses from school boards 
anywhere in Virginia?

A. Oh, yes. Some of them came from— we bought the 
buses, actually, through a dealer. I know, personally, that 
he obtained some of them from surplus buses in various 
places.

Q. Very well. Now, the persons who serve on the fac­
ulty of your schools, are they the same people who taught 
(Tr. 23) at the Surry School last year?

A. The majority of them are.

Q. Are there any persons, who taught at the Surry 
School last year, who is not teaching in the Foundation 
school this year, as far as you know?

A. I don’t think that there is.

Q. The drivers of the school buses are the same persons 
who drove buses serving the Surry schools last year?

A. Some of them are. All of them, I don’t know.

Q. Do you know of any driver, any person, who was a 
driver of a school bus serving Surry County last year, 
who was not driving a bus serving the Foundation schools 
this year?

A. I don’t know one personally, but there are bound to



55

be one, because the Surry School Board also used student 
drivers, and some of them graduated, and the ones that 
graduated are not driving this year.

Q. But as to those who were adults, those who were 
driving buses serving the Surry School last year, are 
driving buses serving the Foundation schools this year?

A. I know of one that is. The others— I’m not sure 
whether they drove last year or not.

Q. Very well. Referring back to the meetings of the 
boards of directors, or the incorporators of the Foundation, 
when I was asking you about the presence of Mr. Goodrich 
(Tr. 24) and any other attorney, I wanted to ask you if 
Mr. Bohannan was present at any o f those meetings?

A. None.

Q. Now, to what extent has the Foundation been in 
communication or contact with the Superintendent of 
Schools ?

A. Very little.

Q. Will you tell us just what have been the connections 
between you, and to what extent you have furnished him 
information, or he furnished you information?

A. Well, I, personally, have had several conversations 
with Mr. Joyner. One on the question of teachers.

Q. When was this, before or after you had employed 
teachers?

A. It was after I had solicited all of the teachers.

Q. You solicited all of the teachers who taught at Surry?
A. I solicited all o f them.

Q. And what was the result of your initial solicitation?
A. Very favorable.



56

Q. Then what was the substance of your subsequent 
conversation with Mr. Joyner?

A. I talked to Mr. Joyner and asked him if he would 
release the teachers if the teachers would resign, and I got 
(Tr. 25) a negative reply.

Q. Do you recall when this conversation took place ?
A. This conversation took place, perhaps, in the latter 

part of July.

Q. What conversations, or communications, have you 
had with the public school authorities with reference to 
the children who attended Surry School last year?

A. None.

Q. Did you furnish the public school authorities with 
information that the children who attended school last year 
would be attending the Foundation schools this year?

A. The parents of the children did.

Q. How was that done?
A. At our suggestion.

Q. Did you have— did you prepare forms which the 
parents would sign?

A. I did.

Q. And what was on the forms, as well as you can 
remember? Do you happen to have a copy of it with you?

A. It is merely an advice to the School Board that their 
children have enrolled in the Foundation school, and would 
not attend the public school, in essence.

Q. And the parents—
A. The parents signed it.

(Tr. 26) Q. And the parents sent them to this public 
school authority?



57

A. The parents sent them, or some of them came to us, 
and we sent them. It went both ways.

Q. How many children are enrolled in the Surry Founda­
tion School?

A. To date, we have 432.
* * *

(Tr. 28) * * *

W ILLIA M  E. SEW ARD, JR., called as a witness by 
and on behalf o f the plaintiffs, having been previously 
duly sworn, testified as follows:

DIRECT EXAM IN ATIO N  

BY MR. TU CKER:

Q. Would you state your name and residence, please, 
sir?

A. I am William E. Seward, Jr. of Claremont, Virginia.

Q. That is in Surry County?
A. Yes.
Q. You appeared at Mr. Denny’s office on September 13, 

1963, at the time we were taking depositions in this matter?
A. Yes.
Q. Now I will ask you a question. In the latter part 

(Tr. 29) of June, the early part of July of this year, were 
you present at a meeting of citizens of Surry County held 
at the board—

TH E CO U R T: Just a minute.
MR. G R A V A T T: We object to the question, sir, for 

the reason that it is purely immaterial. As a private citi­



58

zen, he had a right to attend any meeting, and that to in­
quire of him as to whether he was present or not is im­
material to any issue in the case.

TH E C O U R T: Nobody is challenging his right to attend 
a meeting, and the objection is overruled.

A. Yes, I was.

BY MR. TU CKER:

Q. Do you remember when the meeting was held?
A. No, I don’t remember the exact date.

Q. Was it in June, latter June or early July?
A. It was in June.

Q. All right—
A. Not in July.

Q. Do you recall hearing that the Pupil Placement Board 
had assigned seven Negro children to attend the Surry 
School during the 1963-64 term?

A. Yes.

Q. The meeting came after you had heard about this 
placement ?

A. Yes.

(Tr. 30) Q. What time o f day was the meeting held?
A. It was at night.

Q. How did you receive notice o f it?
A. I have no idea. Just through— very probably at a 

service station and heard somebody make the remark that 
there was going to be a meeting.

Q. Did you address the meeting?
A. No.



59

Q. Will you tell us who did address the meeting?
A. I believe Mr. Goodrich addressed the meeting.

Q. Who presided at the meeting?
A. Mr. Goodrich, I think.

Q. Who was there keeping order?
A. We didn’t need anybody to keep order.

MR. D E N N Y : I didn’t catch that question.

TH E C O U R T: He said, “ W e didn’t need anybody to 
keep order.”

BY MR. TU CKER:

Q. Did you see Mr. Clifton Ellis at the meeting?
A. Yes.

Q. Did you see Mr. J. A. Savedge at the meeting?
A. Yes.

Q. Did you see Mr. A. T. Sowder, the County Treasurer, 
at the meeting?
(Tr. 31) A. No, I did not.

Q. And you, and Mr. Ellis, and Mr. Savedge compose 
the Board of Supervisors of Surry County?

A. Yes.
Q. Do you recall that at this meeting a decision was 

made that Surry School would be closed?
A. No, sir. No, sir.

Q. Do you recall that at this meeting a decision was 
made that the Lebanon School and the Jackson School 
would continue to operate?

* * *



60

(Tr. 32) * * *

Q. Do you recall at that meeting a decision made that 
the Lebanon School and the Jackson School would continue 
to be operated?

A. No, I don’t remember. It was not any decision made 
at that meeting that I was at.

Q. Was there a decision made at that meeting to or­
ganize a system of private schools?

A. No.

Q. Was anything said at the meeting regarding schools?
A. Yes.

Q. Was anything said at the meeting regarding the fact 
that seven Negro children had been assigned to Surry 
School?

A. That was said— I mean, that was so stated.

Q. By whom was that stated?
A. Mr. Goodrich.

Q. Was there anything said at the meeting that did 
(Tr. 33) not pertain to schools?

A. I certainly think something was said that was not 
pertaining to schools.

* * *

Q. Do you recall at that meeting a question as to 
whether, in the event of the organization of private schools, 
there would be a reduction o f taxes, and that question being 
answered by Mr. Sowder or Mr. Goodrich that a reduction 
o f taxes would not be forthcoming?

A. I think you have got the two meetings mixed up. I 
was not at that meeting that that was discussed.



61

Q. Beg your pardon?
A. I was not at that meeting that that was discussed.

Q. That the taxes were discussed?
A. Yes.

Q. You are telling me there were two meetings of 
citizens ?
(Tr. 34) A. Yes.

Q. Which one did you attend, the first one or the second 
one?

A. The first one.

Q. How much longer—-at the first meeting, was a de­
cision made to hold another mass meeting?

A. Yes, I think it was.

Q. Did Mr. Goodrich announce that decision?
A. No. Mr. Goodrich, he didn’t announce that decision.

Q. Do you recall by whom it was announced?
A. No. It was put to a vote.

Q. And Mr. Goodrich carried the vote? He was pre­
siding, I mean?

A. Yes, he was presiding.

Q. Now I want to ask you if there were any colored 
persons in attendance at that meeting?

A. No.
* * *

(Tr. 37) * * *

CLIFTON M. ELLIS, JR., called as a witness by and 
on behalf of the plaintiffs, being first duly sworn, testified 
as follows:



62

DIRECT EXA M IN ATIO N  

BY MR. TU CKER:

Q. Will you state your name and address for me?
A. C. M. Ellis, Jr., Wakefield, Virginia.

Q. You are a member of the Board of Supervisors of 
Surry County?

A. I am.

Q. I ask you, Mr. Ellis, if you were present at a meeting 
of citizens held at the courthouse in the latter part o f June, 
or early part o f July, o f this year ?

A. I was.

Q. You were?
(Tr. 38) A. I was.

Q. Now it appears from the testimony o f Mr. Seward 
that there were two such meetings held.

A. That is right.

Q. Were you present at both of them?
A. I was.

Q. At the first meeting, who presided?
A. Mr. Goodrich.

Q. Commonwealth’s Attorney?
A. That is right.

Q. Was that first meeting having to do with the public 
schools ?

A. It was.

Q. It followed the announcement that seven Negro chil­
dren had been assigned to attend the previously all white 
Surry schools?

A. I would think it did, yes.



63

Q. Now, would you tell us what persons you remember 
having addressed the first meeting?

A. I can’t say that I know of any. Mr. Goodrich pre­
sided.

Q. Well, what was discussed, and what was decided, as 
far as you can recall ?

A. Nothing was decided.

(Tr. 39) Q. Well, what was discussed?
A. Private schools.

Q. All right. Now, at the second meeting, was Mr. 
Goodrich present at that one also?

A. He was not.

Q. Who presided at the second meeting?
A. Mr. Franklin Lawrence.

Q. Was Mr. Savedge present at the second meeting?
A. Yes, he was.

Q. Were either the School Board members, Mr. Huber, 
Mr. White, or Mrs. Cooper present at this second meeting? 

A. Not that I know of. I did not see them.

Q. Do you recall seeing either of them at the first 
meeting ?

A. No, I do not.

Q. I know your answer, but I forgot who you said 
presided at the second meeting.

A. Mr. Lawrence.
Q. Was Mr. Von Schilling at the second meeting?
A. I didn’t see him.

Q. Now, were there any colored people present at either 
of these meetings?

A. I didn’t see any.



64

Q. And both of them were held at the courthouse ?
(Tr. 40) A. At Surry Courthouse, yes— not at the 
courthouse.

Q. Held at the courthouse?
A. Not at the courthouse, no; the community building.

Q. The second meeting was held at the community build­
ing?

A. They were both held there.

Q. How far is the community building from the court­
house?

A. Half a mile.

Q. Are you saying that neither of these meetings oc­
curred at the courthouse?

A. In the courthouse, no.

Q. At the courthouse; on the courthouse grounds?
A. No.

Q. Now, do you recall Mr. Seward, the Treasurer, being 
present at either o f these meetings ?

A. Mr. Seward is not Treasurer.

Q. I ’m sorry. Mr. Sowder.
A. I don’t remember seeing him.

Q. I am going to ask you if you remember a question 
being directed by one of the citizens as to whether the 
formation of private schools for the white children would 
result in a lessening of the tax bill?

A. I don’t remember that being brought up. A  tax cut 
(Tr. 41) you mean?

Q. A  tax cut, yes.
A. No.

Q. And you don’t recall either Mr. Sowder or Mr. Good­



65

rich answering that such a tax cut would not be a result?
A. Mr. Sowder was not there, and Mr. Goodrich wasn’t 

either.

Q. How did you get notice of the meeting?
A. Just a general rumor in the County. I don’t know 

who told me. Just different ones talking about it.

Q. That was true as to the first meeting?
A. Both meetings.

Q. Well, didn’t the people assembled at the first meeting, 
at which Mr. Goodrich presided, vote to have another 
meeting at a later date?

A. I don’t know whether they did or not. It was under­
stood when we left that meeting, we were to have a mass 
meeting.

Q. Approximately how many people do you recall being 
present at the first meeting?

A. 150, maybe.

Q. Approximately how many at the second meeting?
A. I wouldn’t have any idea. The house was full.

MR. D E N N Y : I didn’t get the last part of your answer, 
sir.

(Tr. 42) TH E W ITN ESS: The house was full. I 
wouldn’t have any idea how many.

BY MR. TUCKER:

Q. Well, did not the last meeting then conclude with— 
strike that.

Was it not decided at the last meeting that the white



66

children would attend schools to be operated by a foundation 
or private corporation?

A. I don’t think it was decided.

Q. Was that proposed?
A. I wouldn’t say it was. It was talked about organiz­

ing one. A  school wasn’t organized at the mass meeting.

Q. Was it proposed that they would organize the cor­
poration ?

A. They thought they would organize; they expected 
to, yes,

Q. No one dissented from that, did they?
A. No.

Q. It was proposed that the white children would attend 
the schools to be conducted by this corporation, to be or­
ganized ?

A. I f their parents wanted them to go, yes,

Q. And no one dissented from that, did they?
A. The parents had to agree.

Q. It was proposed that the same teachers who were 
teaching the children, could be employed to continue to 
(Tr. 43) teach the children in the Foundation schools, 
was it not?

A. I don’t think so.

Q. No one mentioned that?
A. I wouldn’t know. It was mentioned, but I don’t think 

it was decided on.

Q. But was it discussed?
A. Maybe some, but I can’t give you any real thing that 

was said.

Q. But that was discussed?



67

A. I am sure it was.

Q. Did anybody disagree?
A. I don’t know that they did.

Q. Was it proposed that the schools for— the Negro 
schools should continue to be operated?

A. I don’t think that was decided that night.

Q. Was it proposed?
A. We couldn’t decide it. I don’t think we could.

Q. I didn’t ask whether it was decided. Did anybody 
suggest that?

A. Oh, it might have been. It might have been.

Q. Do you remember that it was?
A. I do not.

Q. Are you saying that you can not recall at either of 
these meetings anyone raising a question as to whether to 
(Tr. 44) close the Negro schools?

A. I haven’t heard anything about closing the Negro 
schools. Not the first time.

Q. Nobody has said anything about what to do about 
the Negro schools?

A. I never heard the schools discussed to be closed.

Q. Well, you did hear discussion of closing the Surry 
schools ?

A. Oh, yes.

Q. I see. And no discussion at all with reference to 
closing it?

A. No.
** *



68

(Tr. 45) * * *

R. FRAN KLIN  LAW RENCE, called as a witness by 
and on behalf of the plaintiffs, being first duly sworn, testi­
fied as follows:

DIRECT EXA M IN ATIO N

BY MR. TU CKER:

Q. State your name, please.
A. Ray Franklin Lawrence.

Q. Where do you live, sir?
A. Surry.

Q. I understand that you are the vice-president of the 
Prince Edward Educational Foundation.

A. No, sir.

Q. I ’m sorry. Too many cases. I understand that you 
are the vice-president of the Surry County Educational 
Foundation.

A. That is right.

Q. Mr. Lawrence, I want to ask you if, in the latter part 
o f June, or the early part of July, you were present at a 
(Tr. 46) meeting of citizens of Surry County held at or 
near Surry Courthouse?

A. I was present at a meeting of people of Surry County 
that was held in the community building.

Q. In the community building?
A. That is right.

Q. Were you present at one or two o f such meetings?
A. I was present at two. Actually, one of them wasn’t 

really a meeting. It was just a group of people who got 
together.



69

Q. How large a group?
A. There was possibly at the first meeting 60, 75 people, 

and I don’t know how many were at the larger one. It was 
a good, big meeting.

Q. All right. At the first meeting, that was one Mr. 
Goodrich presided, wasn’t it?

A. That is right.

Q. And the members of the Board of Supervisors were 
present ?

A. I believe that is right, yes.

Q. Do you remember any other officers, such as the 
County Treasurer?

A. Not to my knowledge was he there.

Q. Any other county officers that you remember being 
there?
(Tr. 47) A. Not to my knowledge.

Q. All right, that meeting was called as a result of—  
incidentally, who called that first meeting?

A. A  group of twelve or fifteen people that got together 
and decided that they would individually contact people 
and talk with them and ask them to the meeting.

Q. Were you in this original group of twelve or fifteen?
A. Yes, I was.

Q. Was Mr. Goodrich one of those?
A. I don’t remember.

Q. Mr. Seward?
A. He possibly was.

Q. You say, “ He possibly was” ?
A. He possibly was. I don’t know; I don’t remember.

Q. Mr. Seward?



70

A. Which Seward?

Q. The member of the Board of Supervisors, W. E. 
Seward, Jr.

A. No, he was not.

Q. Mr. Ellis?
A. No.

Q. Mr. Savedge?
A. No.

(Tr. 48) Q. How did you get word around to the com­
munity that you were going to have this first meeting?

A. These people went out and contacted the people 
personally.

Q. And at this first meeting, at which Mr. Goodrich 
presided, the discussion was the school question, wasn’t it ?

A. That is right.

Q- It all came about because the seven Negro children 
had been assigned to the Surry School?

A. Yes and no. That probably provided the incentive 
for it to be done right at that time, but it had been discussed 
for some little time before that.

Q. To be done in the event of desegregation of the 
schools ?

A. I have been in Surry County since 1939, except for 
two short periods, and, actually, among groups in the 
County, private schools have been discussed ever since I 
have been in Surry County. Now there has gained this 
incentive to get something done, yes, since they were as­
signed.

Q. All right. At this first meeting, was the idea of the 
white children being educated in the private school specifi­
cally discussed?



71

A. I don’t know what you are calling the “ first meet­
ing” .

Q. The one at which Mr. Goodrich presided.
(Tr. 49) A. At that meeting, the situation was explored. 
It wasn’t decided that anything should be done, other than 
to get people together for a larger meeting. The situation 
was generally discussed, with regard to the students, yes.

Q. In other words, the idea of the white children attend­
ing a private school was discussed, and the meeting was to 
determine whether the parents would support such a pro­
gram?

A. The whole situation with regard to our schools was 
discussed. That was discussed along with other things.

Q. And at the meeting, it was decided to call this larger 
meeting to see what the general sentiment of the white 
parents would be?

A. What the will of the people in the County was, yes.

Q. That is the white people?
A. Yes.

Q. Now, at the second meeting, you presided?
A. That is right.

Q. And at the second meeting, the decision was made 
that the white children of the County would attend private 
schools ?

A. The decision was made that we would organize, or 
attempt to organize, a school foundation to operate a pri­
vate school.

Q. And it was also considered that the school foundation 
would employ the teachers who had taught at the Surry 
(Tr. SO) School for the previous year?

A. At this meeting, that was not discussed. At that meet­



72

ing, we had no idea what the sentiment o f the teachers 
would be.

Q. I am talking about— oh, I see, go ahead.
A. W e had no idea, because no one teacher at that time 

had been contacted. W e had no idea what their position 
would be.

Q. Well, did you then decide you would contact the 
teachers who taught at Surry School the previous year, 
and ascertain what their position would be?

A. At this meeting?

Q. Yes.
A. No, this was not done at that meeting.

Q. At this meeting which you presided, was there a 
question brought as to whether the County should, or 
should not, continue to operate the schools which Negro 
children attended?

A. There was a decision made that we would attempt 
to operate a private school, and that, of course, we coudn’t 
make the decision for the School Board, but the decision 
was reached that we would recommend that we were in 
favor of the School Board operating the public school.

Q. And by that “public school” , did you mean the public 
schools which the Negroes attended?
(Tr. 51) A. There was nothing specified. We would 
attempt to organize a foundation to operate a private school, 
and that we would be in favor— of course, we couldn’t 
make the decision, because we had no authority, but we 
were in favor of the School Board operating the public 
school.

Q. This is the meeting at which you presided?
A. That is right.



73

Q. And it was very largely attended?
A. The building was full, yes.

Q. Did anybody express any dissension to those things 
that were being discussed?

A. If they did, it was done privately; I didn’t hear it up 
where I was.

Q. Now, you have spoken about the time when the de­
cision was made to solicit the services of the teachers who 
had previously taught at Lebanon School. When was that, 
and who was present at this meeting?

A. Do what now?

Q. I am passing on now to the decision to solicit the 
services of the teachers, who previously taught at Surry 
School, as teachers to teach in the Foundation schools.

A. It was some time after that meeting. Just when, I 
don’t know.

Q. W'as this another general meeting of citizens?
(Tr. 52) A. No, this was no other meeting. This de­
cision to contact the teachers was made at a board meeting.

Q. Now, are you speaking about the board meeting of 
the Surry County Educational Foundation?

A. That is right.

Q. Do you recall when that was made?
A. No, I do not.
Q. At that time— well, anyhow, subsequent to that de­

cision, teachers were contacted?
A. I assume so. I didn’t contact any.
Q. I think we have shown that at these two meetings 

of citizens of the County, that there were no Negroes 
present.



74

A. If there were, I didn’t see them.

Q. And I don’t think we need to quibble about it— the 
idea was the schools to be operated by the Foundation were 
to be for white children?

A. It was never specified.

Q. Well, it didn’t have to be specified, did it?
A. Well, I don’t know. The decision was that we would 

attempt to organize the foundation to operate the private 
schools, and the decision was also unanimous that we urge 
or recommend to the School Board that they operate the 
public school.

Q. All right. Really, the thing that had precipitated 
these meetings, was the fact that seven Negro children had 
(Tr. 53) been assigned to attend schools with white chil­
dren?

A. That provided the incentive to get it done now.

Q. Precisely. So that it would have been perfectly foolish, 
then, just to organize a private school and to admit Negro 
children to that?

A. No, I would not say that, because, as I testified a 
while back, private schools in Surry County had been dis­
cussed for sometime.

Q. The Foundation schools do admit all the white chil­
dren o f the County of school age?

A. The Foundation admits children on invitation only.

Q. There is no white child in the County who has not 
been invited?

A. Now, that I couldn’t say.

Q. You don’t know of any?
A. I don’t know of any, no.



75

Q. You know of any Negro child who has been invited? 
A. No.

* * *

(Tr. 54) * * *

SCOTT L. HENDERSON, called as a witness by and 
on behalf of the plaintiffs, being first duly sworn, testified 
as follows:

DIRECT EXAM IN ATIO N  

BY MR. M ARSH :

Q. Would you state your name and address and occu­
pation, please?

A. Scott L. Henderson, photographer—

MR. D E N N Y : I didn’t catch it.

TH E W IT N E S S : Scott L. Henderson. I am a photog­
rapher. My address is 618 Overbrook Road.

BY MR. M ARSH :

Q. Mr. Henderson, did you, on Monday of this week, 
at my request, take some pictures at some public school 
buildings in Surry County?

A. I did.
* * *

(Tr. 58) * * *

J. L. W H ITE, called as a witness by and on behalf of 
the plaintiffs, being first duly sworn, testified as follows:



76

DIRECT EXAM IN ATIO N  

BY  MR. TU CKER:

Q. Would you state your name and address, sir?
A. J. L. White, Elberon, Virginia.

Q. You, I believe, are one of the members o f the School 
Board of Surry County, Virginia?

A. That is correct.

Q. Mr. White, were you present at any of the meetings 
of citizens of Surry County in the latter part o f June or 
the early part of July of this year ?

A. I attended one meeting. The date, I couldn’t give it 
to you.

Q. Who presided at the meeting which you attended?
A. Mr. Lawrence.

Q. Has your School Board considered or formulated any 
plans for the desegregation of the schools of Surry County?

(Tr. 59) MR. D E N N Y : May it please the Court, the 
actions of the School Board are disclosed in its minutes. 
That is the only way the School Board can act. I—

TH E C O U R T: Do the minutes disclose any plans ?

MR. D E N N Y : Not that I know of, sir.

TH E CO U R T: All right. Well, that settles that.
Proceed.

MR. D E N N Y : But my objection is the best evidence 
and the only evidence are the minutes.

TH E C O U R T: That is not necessarily so, but if there 
are no plans, and counsel makes that statement, why then



77

we don’t need to examine the witness on it. I will accept 
the statement of counsel.

BY MR. TU CKER:

Q. And it is a fact, Mr. White, that at all times— it is 
a fact that up until the close of the last school term, all of 
the white children in the County attended the Surry School ?

A. I wouldn’t say that. I am not positive about it. There 
are a lot o f children in the County. I don’t know where 
they have attended school.

Q. I will put it this way. Surry School was the only 
school which white children attended?

A. To my knowledge it was, in the County.

Q. The only public school in the County, that is what 
(Tr. 60) I am speaking of.

A. That is correct.

Q. And none but white persons taught at Surry School?
A. That is right, all white teachers.
Q. The Jackson School and the Lebanon School were 

attended by none but colored children?
A. So far as I know.

Q. And none but colored persons taught at either of 
those schools?

A. That is right.
* * *

(Tr. 61) * * *

BY MR. D EN N Y:

Q. You have testified that you attended a public meet­
ing at which Mr. Lawrence presided?



78

A. That is right.

Q. Did you have anything to say at that meeting?
A. I asked one question. There was one question I 

wanted to know what it was.

Q. What question was asked you?
A. They wanted to know if our contracts with the teach­

ers contained a cancellation clause of thirty days, and I 
told them all contracts had that clause in it.

*  *  *

(Tr. 63) * * *

TH E COURT: Gentlemen, the Court has considered 
the objection made by Mr. Gravatt to the questions pro­
pounded to Mr. Seward, a member of the Board of Super­
visors, concerning the meeting of the Board. The Court 
sustains the objection.

MR. TU CKER: If Your Honor please, we would like 
a proffer to what the question would have elicited.

TH E C O U R T: Well, I will hear counsel. You may 
proffer.

MR. TU CKER: At this time?

TH E C O U R T: Yes, at this time, while we are waiting 
for the witness.

MR. TU CKER: The purpose of the question was to 
show that at the meeting of the Board of Supervisors, 
there was a suggestion made, I believe by the Common­
wealth’s Attorney, but with reference to* permitting the 
Foundation to use the school buses, or selling the school 
buses to the Foundation. It was not acted on, because of 
the counter-suggestion, I believe from the County Treas­



79

urer, that it was too early to do that. It was noted, but 
was not included in the minutes.

TH E COURT: All right.
* * *

(Tr. 66) * * *

M. B. JOYNER, called as a witness by and on behalf 
of the plaintiffs, being first duly sworn, testified as follows:

DIRECT EXAM IN ATIO N

BY MR. M ARSH :

Q. Would you state your name and address, please?
A. M. B. Joyner, Dendron, Virginia.

Q. And you are the Division Superintendent of Schools, 
Surry County?
(Tr. 67) A. That is right.

Q. Mr. Joyner, does the School Board still own the buses 
which serviced the Surry County schools last year?

A. It owns all o f those that were on regular routes last 
year.

MR. D E N N Y : I didn’t get the answer, Mr. Joyner.

TH E W ITN ESS: It still owns all of the buses that 
were driven on regular routes last year.

BY MR. M ARSH :

Q. Are there any other buses, that were used on other 
routes, that the School Board does not now own?

A. There were a few discarded buses, buses, I think



80

two or three of them were used as spares last year, that 
have been disposed of.

Q. To whom were they sold?
A. They were sold to Mintz Motor Company at Surry.

Q. How many buses were regularly used last year?

MR. D E N N Y : I didn’t get the question.

Q. How many buses were regularly used to service the 
Surry County high and elementary schools last year?

A. There were 25.

Q. Twenty-five?
A. Regular buses.

Q. And how many spare buses?
(Tr. 68) A. Three. I think that is correct.

Q. And the School Board still owns the 25 ?
A. W e still own 25 buses, plus 3.

Q. I thought you had sold the 3.
A. No.

Q. You sold some other buses?
A. We did sell 3, but we bought 3. W e bought 3 new 

buses, so we still have 25 buses— regular buses, or buses 
that could be used as regular, and 3 that we would call 
spare buses.

Q. Now, I am speaking of the buses that serviced the 
white high school and elementary school last year, only.

A. Well, the white school, only, was 10 buses last year.

Q. Ten buses. Where are those buses at the present 
time?

A. They are at the school bus garage, parked on the lot.



81

MR. D E N N Y : They are what, sir ?

TH E W IT N E S S : They are at the school bus garage, 
parked on the lot.

BY MR. M ARSH :

Q. They are not in use?
A. They are not in use at the present time.
Q. And the remaining 15 buses are used to service the 

(Tr. 69) two Negro schools?
A. That is right.
Q. Did drivers who drove the ten buses last year— do 

they still work for the School Board?
A. That operated to the white school, no.
Q. They work for the Foundation now?
A. I don’t know.
Q. They were released after the Foundation schools 

came into being?
A. No, we had no contracts with them.

*  *  *

CLARENCE J. KEE, called as a witness by and on 
behalf of the plaintiffs, being first duly sworn, testified as 
follows:

DIRECT EXAM IN ATIO N  

BY MR. M ARSH :
Q. Mr. Kee, would you state your name, address, and 

(Tr. 70) occupation, please?
A. Clarence J. Kee, 303 First Street, Smithfield, Vir­

ginia. I am the Principal of Lebanon Elementary School, 
Surry, Virginia.

** *



82

(Tr. 73) * * *
BY MR. M A R S H :

Q. Mr. Kee, I show you Plaintiffs’ Exhibits 13, 8 and 
(Tr. 74) 9. Do you recognize those, the bus No. 13, as 
the same bus No. 13 that is referred to on this, and those 
pupils, as pupils attending your school, sir?

A. Yes.
Q. I notice, sir, that the capacity of the buses is listed 

as 54, and the number of students transported is listed at 
54. Does the capacity take into consideration pupils stand­
ing, or is the bus supposed to seat 54 people ?

A. The capacity takes in the number of students the 
bus would carry seated, children that are seated on the bus, 
and I emphasize the “ children who are seated on the bus” .

Q. Isn’t it a fact that children do have to stand who ride 
the buses to your school?

A. Yes, before our arrangements have been made to 
re-route the buses and additional buses have been added. 
That was the condition before this change was made.

MR. D E N N Y : That was the condition— what?
TH E W IT N E S S : That was the condition before this 

change was made. •

BY MR. M ARSH :
Q. Now, these pictures were taken Monday. This was 

the condition at that time?
A. That is right.
Q. I show you Plaintiffs’ Exhibit No. 12. Is that room 

(Tr. 75) in your school building, sir?
A. Yes.
Q. And is that the picture o f a fifth and sixth grade 

being taught in the same room?



83

A. Yes, sir.

Q. At the same time?
A. Yes, sir.

Q. What is the use of that room normally? Is that a 
regular classroom, or is that the cafeteria or something?

A. No, that is the cafeteria.

Q. And those are benches the students are seated on?
A. No, they are tables.

Q. I show you Plaintiffs’ Exhibit 14. Is that a picture 
of a classroom taught in the auditorium of the school, sir ?

A. Yes, sir.

Q. Plaintiffs’ Exhibit 10. What does that show, sir?
A. This is the picture of one of the three third grade 

sections located in the multipurpose room.

Q. Multipurpose room. And I believe Plaintiffs’ Ex­
hibits 13 and 15 show classrooms in your school, sir?

A. Yes, sir.

Q. Is it not a fact, sir, that your school has a problem 
of overcrowding?

MR. D E N N Y : Is it not a fact the school has what?

(Tr. 76) MR. M ARSH : A  serious problem of over­
crowding.

MR. D E N N Y : May it please the Court, I object to 
that question.

TH E C O U R T: The objection is overruled.

A. Is this in terms of teacher load, or is it in terms of 
space ?

Q. Both.



84

A. Well, as far as the classrooms that have been designed 
for classrooms are concerned, they are, or they were, over­
crowded, but conditions have been changed during the last 
few days whereby the classrooms, themselves, have been 
relieved of this crowded condition. Now, that is one of 
the reasons why we have a class in the auditorium and a 
class in the cafeteria, but, as of now, the classrooms are 
not crowded, because of these classes being moved to those 
locations.

Q. Sir, I believe the suit was filed on September 3. Now, 
as late as last week, did you have a class with 53 pupils?

A. Yes, sir, I did.

Q. And there were several others with 40 some?
A. Yes, sir.

(Tr. 79) * * *
*  *  *

CROSS-EXAM IN ATION  

BY MR. D EN N Y:

Q. Mr. Kee, how long have you been Principal of this 
Lebanon School?

A. Going into the seventh year.

Q. Is it not a fact that every year, during the first two 
or three weeks of school, you have considerable adjust­
ments to make, depending upon the number of children, 
the grades they fall in, the places of residents ?

A. Yes, that is true.

Q. As I understand your testimony a few moments ago, 
you now have got things arranged in the school where you 
have no space problem?



85

A. Well, if you mean if I have my enrollments situated, 
yes. That statement is true.

(Tr. 80) Q. Now, as I understand these pictures, which 
would indicate a crowded condition o f some buses, they 
were taken prior to the final working out of the bus routes 
and the assignment of children to buses?

A. That is true.

Q. That final working out of bus routes and the assign­
ment of children to buses has now been made?

A. It has.

Q. And this exhibit which we have here, No. 22, I think 
it is, shows that in only two instances is the capacity of a 
bus exceeded. One bus, No. 23, carried 57 children, with 
seats for 54.

A. That is right.

Q. Does that particularly differ from years gone by? 
A. Yes, it does differ from years gone by.

Q. In what respect?
A. Well, heretofore, they were crowded.

Q. Heretofore, what?
A. They were crowded.

Q. Heretofore, what?
A. The buses were crowded. There were students stand­

ing on the bus heretofore, prior to this year.

(Tr. 81) Q. In other words, the buses are less crowded 
this year than heretofore ?

A. Yes.

MR. D EN N Y: I have no further questions.

MR. M A R S H : May it please the Court, there is just



86

one statement I would like to get in the record. When 
school opened, I don’t think that is in the record. The date 
school opened. I ’d like this witness—

TH E C O U R T: Oh, yes. You may ask him the date 
school opened.

REDIRECT EXAM IN ATIO N

BY MR. M ARSH :

Q. When did school open this year?
A. School opened, officially, September the 5th.

* * *