Green v. City of Roanoke School Board Brief of Appendix on Behalf of Appellees

    BRIEF AND APPENDIX ON BEHALF OF THE APPELLEES

United States Court of Appeals 
for the Fourth Circuit

No. 8534

CYNTHIA D. GREEN, a n  I n f a n t , a n d  REV. EM M ETT L. 
GREEN, H er F a t h e r  a nd  N ext  F r ie n d , et  a l .,

Appellants,
v,

SCHOOL BOARD OF TH E CITY OF ROANOKE, a  B ody 
C o r po ra te ; E. W. RUSHTON, S u p e r in t e n d e n t , R o a n o k e  C ity  
P u b lic  S c h o o l s ; a nd  E. J . OGLESBY, EDWARD T. JTJSTIS 
a nd  ALFRED L. WINGO, I n d iv id u a lly  a n d  Co n s t it u t in g  t h e  
P u p il  P l a c e m e n t  B oard of t h e  C o m m o n w e a l t h  of V ir g in ia , 

R ic h m o n d , V ir g in ia ,
Appellees.

R a n  G. W h it t l e , City Attorney 
City Hall 
Roanoke, Virginia 

S id n ey  F. P a r h a m , J r .
Woods, Rogers, Muse & Walker 
105 Franklin Road, S. W.
Roanoke, Virginia

Counsel for the Roanoke City 
School Board and Division 
Superintendent

A. B. S cott
Peyton, Beverley, Scott & Randolph 
1200 Travelers Building 
Richmond 19, Virginia

Counsel for Pupil Placement 
Board



TABLE OF CONTENTS
Page

P r e l im in a r y ................................................... ........-................................... —  1

F acts -------------- ---------------- --------------- -------..................... -..................... 2

A. The Status of the Proceeding.................................................  2

B. The Composition of the Pupil Placement B oard.................  3

C. Integration of Roanoke City Public Schools................ -.....  3

D. “Plan of Desegregation”  -----......—-............... -............-  5

I ssues .......................................................................... .......................................... - ^

A r g u m en t  ...................................... -......... -.......................................................... 5

1. The Appeal Is Premature .......................................................  5

2. The Initial Assignment System................................... -........... 6

3. No Discriminatory Criteria Are Applied to Negroes ...........  8

4. The Pupil Placement Protest and Hearing Procedure Is an
Adequate Administrative Remedy..... ................................. -  9

5. The Appellants’ Constitutional Rights Are Individual.........  9

C o n c lu sio n  ................... .......................-.......-.............—-............... -..................  19

A ppe n d ix  :

Report of Pupil Placement B oard.................................. — App. 1

Additional Excerpts by Appellees from Transcript.........  App. 4

Testimony of E. W. Rushton................ ......................  App. 4
Direct Examination.................................... —- — App. 4

Testimony of B. S. H ilton ...........................................  App. 17
Direct Examination ............... - .............................  App. 17

Testimony of Dr. James A. Bayton ...... ............ -....... App. 18
Direct Examination............................. -........... -.....  App. 18



Page

Testimony of Dorothy L. Gibney..........................   App. 22
Direct Examination .......................................    App. 22

Testimony of Ernest J . Oglesby...............      App. 24
Cross-Examination ....   App. 24

Testimony of B. S. Hilton (Recalled) ....................   App. 27
Redirect Examination........................    App. 27

Testimony of Dorothy L. Gibney (Recalled) ..............App. 28
Redirect Examination......... ...................................  App. 28

TABLE OF CASES

Beckett v. School Board of the City of Norfolk, Virginia, 185 F. 
Supp. 459 - ......... ............ ......................................... ................ . 3

Briggs v. Elliott (1955), 132 F. Supp. 776.....................................  7

Carson v. Warlick (1956), 238 F. 2d 724.......... ........................  9, 10

DeFebio v. School Board, et als. (1957), 199 Va. 511, 100 S. E. 
(2d) 760 ...... .................................... ................. ...........................  10

Farley v. Turner, 281 F. (2d) 131 ............................................ . 3, 10



United States Court of Appeals 
for the Fourth Circuit

No. 8534

CYNTHIA D. GREEN, an  I n f a n t , and  REV. EM M ETT L. 
GREEN, H er F a t h e r  a n d  N ext F r ie n d , et  a l .,

Appellants,
v.

SCHOOL BOARD OF TH E CITY OF ROANOKE, a B ody 
C orporate ; E. W. RUSHTON, S u p e r in t e n d e n t , R oan o k e  C ity  
P u b lic  S c h o o l s ; and  E. J. OGLESBY, EDWARD T. JUSTIS 
and  ALFRED L. WINGO, I ndiv id u a lly  a nd  Co n s t it u t in g  t h e  
P u p il  P la c e m e n t  B oard of t h e  C o m m o n w e a l t h  of V ir g in ia , 

R ic h m o n d , V ir g in ia ,
Appellees.

BRIEF ON BEHALF OF THE APPELLEES

PRELIMINARY STATEMENT
In the appendix of this brief are printed additional ex­

cerpts from the transcript of the proceedings before District 
Judge Lewis which appellees deem pertinent to the issues 
before the court. In addition thereto there is printed in the 
appendix the report of the Pupil Placement Board rendered 
by it pursuant to the direction of Judge Lewis in his Memo­
randum Opinion (Appellants’ Appendix 202a). This report 
was mailed directly by counsel for the Pupil Placement 
Board to Judge Lewis with copies to all counsel. Apparently 
the report was never filed in the Clerk’s Office of the court. 
The appellants filed written objections thereto and these are 
printed in their appendix at page 212a. It seems appropriate 
that the record be completed by the inclusion of this report.



2

FACTS
A.

The Status of the Proceeding
The purpose of the instant action was to secure the admis­

sion to certain public schools in the City of Roanoke of 
twenty-eight (28) individual Negro pupils who alleged that 
the appropriate school authorities had discriminated against 
them in denying their applications to attend these schools 
because of their race or color. The judgment of the District 
Court was that one of the applicants had through admitted 
inadvertence and mistake been excluded from a school to 
which she was entitled to attend and that she should be 
admitted thereo; that applications of fifteen (15) of the 
remaining pupils should be reconsidered by the Pupil Place­
ment Board, which board was directed to report the results 
of its reexamination after the application of “just, reason­
able and nondiscriminatory criteria fairly applied” ; and as 
to the remaining twelve (12) infant plaintiffs the action of 
the school authorities was sustained. The judgment provides 
for a hearing at a date to be fixed by the court upon the 
report of the Pupil Placement Board and any exceptions 
thereto (Appellants’ Appendix 216a et seq.).

The Pupil Placement Board duly reexamined the fifteen 
(15) applications and upon such reexamination admitted 
five (5) of the original plaintiffs to the schools to which they 
sought admission. It reaffirmed its position with respect to 
the remaining ten (10) and supplied to the court additional 
reasons for its action. Exceptions to this report were filed 
by the plaintiffs. No hearing date was requested or set and 
the judgment of the court was in fact entered at a date subse­
quent to the rendition of the report of the Pupil Placement 
Board.



3

B.
The Composition of the Pupil Placement Board

As the court is doubtless aware, an entire new three-man 
Pupil Placement Board of Virginia was appointed by Gov­
ernor Almond in the summer of 1960. The board so appoint­
ed consisted of two members of the State Department of 
Education, one of whom is in charge of its Testing Program 
in all schools throughout the entire state, and a professor at 
the University of Virginia. The actions of this board with 
respect to assignment of pupils to the schools of the City of 
Roanoke and elsewhere in Virginia are such as to completely 
negate the characterization of the original members of the 
Pupil Placement Board contained in District Judge Hoff­
man’s opinion in Beckett v. School Board of the City of 
Norfolk, Virginia, 185 F. Supp. 459, approved by the opin­
ion of this court in Farley v. Turner, 281 F. (2d) 131.

C.
Integration of Roanoke City Public Schools

Subsequent to the decision of the Supreme Court of the 
United States in the Brown case and prior to the spring of 
1960, no individual Negro pupil had sought admission to 
any of the public schools of the City of Roanoke theretofore 
attended exclusively by white pupils. In 1960 thirty-nine 
(39) applications for admission to such schools were re­
ceived and in accordance with state law transmitted to the 
Pupil Placement Board. Upon consideration of these appli­
cations nine (9) pupils were admitted to three (3) schools, 
so that for the school year 1960-1961 three (3) of the city’s 
schools were desegregated without any action by a federal 
court. Two (2) of the remaining thirty (30) pupils were



4

presumptively satisfied with the assignments made by the 
Pupil Placement Board, and the remaining twenty-eight 
(28) are the infant plaintiffs in this suit. Of that twenty- 
eight (28) one (1) was admitted by the court, five (5) were 
assigned in accordance with their request upon reexamina­
tion of the Pupil Placement Board pursuant to the court’s 
direction, and two (2) others (Curtis Strawbridge and 
Brenson Long), whose original assignments had been sus­
tained by the trial court, were admitted upon reapplication 
for the 1961-1962 school term. Thus, of the original thirty- 
nine (39) nineteen (19) have now been admitted to desegre­
gated schools.

In the spring of 1961 thirty-two (32) additional individ­
ual Negro pupils applied for admission to predominantly 
white schools. One (1) subsequently indicated a desire to 
remain at the school he was then attending and the 
following action was taken with respect to the remaining 
thirty-one (31): Nine (9) were initially admitted to the 
schools applied for and twenty-two (22) denied. Of this 
twenty-two (22), twelve (12) protested the initial assign­
ments of the Pupil Placement Board and after the hearing 
provided by law which was held in Roanoke, the Pupil Place­
ment Board reversed its initial action with respect to six (6) 
of them and ordered their enrollment in the schools applied 
for.

In summary, seventy-one Negro pupils have applied in 
two years for admission to predominantly white schools in 
the City of Roanoke, Virginia. One (1) voluntarily with­
drew his application, twenty-eight (28) are now attending 
the schools applied for, twenty-two (22) have not elected 
to pursue their applications further, and twenty (20) are 
the appellants here.



5

D.
“Plan of Desegregation”

No public announcement has been made or action taken 
by the School Board of the City of Roanoke or the Pupil 
Placement Board as to the establishment of a “plan of 
desegregation”. The plan of the Pupil Placement Board and 
the school authorities of the City of Roanoke is to assign 
each child to that school which in their judgment is best for 
him and the school system without the application of any 
discriminatory practice on account of the child’s race or 
color.

ISSUES
1. Is the appeal premature with respect to those pupils 

whose applications the court below directed the Pupil Place­
ment Board to reexamine?

2. Have the individual infant appellants been discrimi­
nated against on account of their race or color?

ARGUMENT
1.

The Appeal Is Premature
It is evident from the judgment (Appellants’ Appendix 

216a) that the court has taken no final action of any kind 
with respect to appellants Melvin Franklin, Walter Wheaton, 
Melvin Anderson, Nancy Lee Martin, Robert Harry Rob­
erson, Linda Lavern Anderson, Roberta Roberson, Nannie 
Roberson, Phillys D. Martin and Cynthia Green. Nothing 
in this judgment precludes later action by the district court



6

consistent with the fundamental relief sought by them, i.e., 
admission to particular schools.

The judgment specifically provides for a hearing for these 
appellants upon return of the report of the Pupil Placement 
Board therein provided. It is submitted that the orderly 
admission of justice requires that the appeal of these plain­
tiffs be dismissed as premature.

2.

The Initial Assignment System
Appellants’ brief is largely directed toward alleged dis­

criminatory practices in the Roanoke school system with 
respect to the initial assignment of pupils. They make the 
statement that all the Negro schools are organized in a 
separate Section II. This is true, but not because they are 
schools attended solely by Negroes but because they are 
situate in the same geographical area of the City of Roanoke 
and spring from the coincidence of residence.

While there is no such actual requirement and none such 
was proved, it is only normal and natural that for pre­
school registration each year pupils and their parents ordi­
narily go to the schools in their area or neighborhood. This 
has been a long standing custom, has long been known and 
understood, and anything else would be inconvenience and 
confusion.

If they do not desire or prefer some other specific school 
they do nothing, and the temporary assignment is later acted 
on in more or less routine manner.

If, on the other hand, they prefer or desire some other 
specific school, they have only to say so, and this is so irre­
spective of race. That they can do so, and that in some 
instances they do so, is shown by the facts of this case.



7

If no other specific school is requested, whether it be a 
white child, or negro child, or a child of any other race, 
it is naturally assumed that the pupil and parents are satis­
fied and voluntarily desire such placement. This, we submit, 
is normal, natural, sensible, and logical practice, applicable 
to all races and in all cases; and it involves no essential dis­
crimination as to race, for as was said by the court in 
Briggs v. Elliott (1955), 132 F. Supp. 776 (one of the 
original cases on remand from the Supreme Court of the 
United States) :

“Having said this it is important that we point out 
exactly what the Supreme Court has decided and what 
it has not decided in this case. It has not decided that 
the federal courts are to take over or regulate the public 
schools of the states. It has not decided that the states 
must mix persons of different races in the schools or 
must require them to attend schools or must deprive 
them of the right of choosing the schools they attend. 
What it has decided, and all that it has decided, is that 
a state may not deny to any person on account of race 
the right to attend any school that it maintains. This, 
under the decision of the Supreme Court, the state may 
not do directly or indirectly; but if the schools which 
it maintains are open to children of all races, no viola­
tion of the Constitution is involved even though the 
children of different races voluntarily attend different 
schools, as they attend different churches. Nothing in 
the Constitution or in the decision of the Supreme Court 
takes away from the people freedom to choose the 
schools they attend. The Constitution, in other words, 
does not require integration. It merely forbids dis­
crimination. It does not forbid such segregation as 
occurs as the result of voluntary action. It merely for­
bids the use of governmental power to enforce segre­
gation. The Fourteenth Amendment is a limitation



8

upon the exercise of power by the state or state agen­
cies, not a limitation upon the freedom of individuals.’'

The City of Roanoke has been in the process of an exten­
sive building program. During that period it has not always 
been practicable to assign pupils on a strictly geographical 
basis on initial assignments. It may well be true that during 
that period Negro pupils who live closer to other schools 
than to Section II schools have been assigned to Section II 
schools. There is nothing in the record to support the as­
sumption of appellants that this situation is a fixed policy 
of the local school board or one that will not be changed now 
that the building program is substantially complete. This 
would appear to be particularly true in view of the substan­
tial progress made in the city toward a voluntary desegre­
gation of the schools.

3.
No Discriminatory Criteria Are Applied to Negroes

The record does not support appellants’ contention 
that discriminatory criteria were applied. The trial court 
in its opinion (Appellants’ Appendix 202a) specifically 
found that certain of the criteria were not discriminatory, 
that two criteria were discriminatory and required further 
evidence as to a third. The appellees have abandoned those 
criteria disapproved by the trial judge and submitted 
to the judge evidence supporting the one question. Com­
mencing with applications for assignment for the year 1961- 
1962 the criteria applied are those not disapproved by the 
trial judge.



9

4.
The Pupil Placement Protest and Hearing Procedure 

Is an Adequate Administrative Remedy
It is submitted that the opinions of this court and the 

district courts in Virginia prior to the constitution of the 
present Pupil Placement Board and cited by appellants are 
not applicable to the present facts. It is further submitted 
that the results of the use of this procedure in applications 
for admission to Roanoke City schools for the year 1961- 
1962 refutes appellants’ argument. There were twelve (12) 
persons who availed themselves of that procedure and six 
(6) of them obtained admission to the schools they desire. 
The remaining six (6) failed to challenge the protest ma­
chinery in the courts.

5.
The Appellants’ Constitutional Rights Are Individual
As was said by the late Chief Judge Parker for a court 

including the present Chief Judge of this court and now 
Circuit Judge Bryan in Carson v. War lick (1956), 238 F. 
2d 724:

“There is no question as to the right of these school 
children to be admitted to the schools of North Carolina 
without discrimination on the ground of race. They are 
admitted, however, as individuals, not as a class or 
group; and it is as individuals that their rights under 
the Constitution are asserted. Henderson v. United 
States, 339 U. S. 816, 824, 70 S. Ct. 843, 94 L. Ed. 
1302. It is the state school authorities who must pass 
in the first instance on their right to be admitted to any 
particular school and the Supreme Court of North



10

Carolina has ruled that in the performance of this duty 
the school board must pass upon individual applications 
made individually to the board.”

That in Virginia the board must pass upon individual 
applications made individually to the board has been enacted 
into law by the General Assembly in the Pupil Placement 
Law itself, and that such Act is valid has been decided by 
the Supreme Court of Appeals of Virginia, in DeFebio v. 
School Board, et cds. (1957), 199 Va. 511, 100 S. E. (2d) 
760.

This court again as late as June 28, 1960, reaffirmed its 
holding in Carson v. War lick, supra, in Farley v. Turner, 
supra, when it said:

"This court has consistently required Negro pupils 
desirous of being assigned to schools without regard to 
race to pursue established administrative procedure 
without seeking intervention of a federal court.”

The Supreme Court of the United States in the second 
opinion in the original cases on May 1, 1955, 349 U. S. 294, 
said:

“Because of their proximity to local conditions and the 
possible need for further hearings, the courts which 
originally heard these cases can best perform this 
judicial appraisal.”

CONCLUSION
Under the particular facts and circumstances of this 

case it is respectfully submitted that the judgment of 
the trial court should be affirmed with respect to those 
infant plaintiffs who are properly before this court on



11

appeal and the case should be remanded to the district court 
for such hearing upon the exceptions of the other infant 
plaintiffs as may be appropriate.

Respectfully submitted,

R an  G. W h it t l e , City Attorney 
City Hall 
Roanoke, Virginia 

S id n e y  F. P a r h a m , J r .
Woods, Rogers, Muse & Walker 
105 Franklin Road, S. W.
Roanoke, Virginia

Counsel for the Roanoke City 
School Board and Division 
Superintendent

A. B. S cott
Peyton, Beverley, Scott & Randolph 
1200 Travelers Building 
Richmond 19, Virginia

Counsel for Pupil Placement 
Board



A P P E N D I X



REPORT OF PUPIL PLACEMENT BOARD
(Mailed to Judge on August 16, 1961)

In accordance with the memorandum opinion of the court 
under date of July 7, 1961, the Pupil Placement Board has 
re-examined and reconsidered all of the specific cases and 
makes the following report:

First, as to Applicant # 9  (Sylvia Long) it developed 
during the re-examination that she resides closer to the new 
Hurt Park Elementary School which is only four (4) blocks 
away and which will be opened for use for the first time 
for the school session 1961-1962, than she does to the West 
End Elementary School which is at least twelve (12) blocks 
away, and in order to reach which the pupil will have to cross 
two main and extra hazardous thoroughfares. Wherefore, 
the Board reports and submits that this pupil should be 
placed rather in the Hurt Park school.

Applicant # 6  (Jerome Croan) has been granted request­
ed transfer but to Melrose rather than Monroe where there 
is no 6th Grade, and his parents have been or will be so 
notified.

Applicant # 8  (Brenson Long) has also been granted re­
quested transfer but to Monroe rather than Lee, because 
Monroe is closer to his home and his parents likewise have 
been or will be notified.

Applicant # 7  (Christopher Kaiser) has also been granted 
requested transfer to Melrose because of the sibling rela­
tionship, he having a brother who was also placed in Mel­
rose. The same as to his parents.

Applicant #15 (Alene Green) was also granted requested 
transfer to Melrose since she could not be denied on legiti­
mate grounds, and Applicant #26  (Paula Green), her sister, 
while still deemed academically unqualified was nevertheless



App. 2

granted transfer to Melrose because of the sibling relation­
ship. Their parents have been or will be notified to such 
effect.

As to all other applicants the Pupil Placement Board is 
still of the opinion that their transfers are academically un­
sound and should not be granted for the additional reasons 
hereafter assigned in each case, namely:

Applicant #  16 (Nancy Martin), and #24  (Phyllis Mar­
tin) live closer to the aforesaid new Hurt Park Elementary 
School rather than to the school to which transfer is sought, 
because of which this Board feels that they should be placed 
in due course by administrative transfer in the Hurt Park 
Elementary School.

Applicant #17  (Cynthia Green) is below the mean of the 
school presently attended and eleven points below that of the 
school to which transfer is desired.

Applicant #20 (Linda Anderson) is seeking to enter the 
6th Grade and was 1 year, 4 months below in achievement 
at the end of the 5th Grade, her reading level in fact, at the 
end of the 5th Grade being equivalent to that for the 4th 
Grade, in addition to which she is the sister of Applicant 
#  14 next hereinafter referred to.

Applicant #14  (Melvin Anderson) seeks entry into the 
4th Grade, whereas his reading level is the equivalent only 
to that at the end of the 2nd Grade, and is the brother of 
Applicant #20.

Applicant #11 (Melvin Franklin) is seeking to enter the 
3rd Grade, whereas his academic achievement is just about 
at the lower 25th percentile and his teacher says that he is not 
even able to do 2nd Grade work.

Applicant #12 (Walter Wheaton) is in many respects



App. 3

below the mean of the school presently attended and below 
the lowest 25th percentile of the school to which transfer is 
sought and, in addition, the nearest senior high school to his 
residence would be Addison High School rather than Mon­
roe to which transf er is being sought.

Applicant #23 (Nannie Roberson) is below the mean in 
the school presently attended and just about at the level of 
the lowest 25th percentile in the school to which transfer 
is being sought.

Applicants #18  (Robert Roberson) and #22 (Roberta 
Roberson) did not re-apply for transfer by July 1, 1961, in 
addition to which Applicant #22 (Roberta Roberson) is one 
year deficient in achievement and both are the siblings of 
Applicant #23 (Nannie Roberson).

In substantiation of the fact that a sibling relationship is 
taken into consideration and applied by the Roanoke City 
Public Schools uniformly to white and negro pupils alike, 
affidavits of the Director of Personnel of the Roanoke City 
Public School dated respectively July 20, July 21, and July 
25, 1961, are attached hereto and asked to be read as a part 
of this report. (Attached affidavits omitted because origi­
nals in record.)

Respectfully submitted,
P u pil  P lacement Board of th e  

Commonwealth of V irginia  
By Counsel

A. B. Scott, of
Christian, Marks, Scott & Spicer 
1309 State-Planters Building 
Richmond 19, Virginia,
Special Counsel for the 
Pupil Placement Board.



App. 4

ADDITIONAL EXCERPTS BY APPELLEES 
FROM TRANSCRIPT

Testimony of E. W. Rush ton
DIRECT EXAMINATION

[tr. PP. 56-58]
Q Mr. Rushton, is it true that there was no action by 

the Board or response, as such, on the Plaintiffs’ petition that 
came with these individual applications ?

M r. P arham : Which board do you mean?
M r. N abrit : The local School Board.
T he  W itness : No action with respect to the decision on 

these Plaintiffs.
By M r. N a brit :

Q No, no. On that formal petition that came with the 
Pupil Placement form and letter from Mr. Lawson.

A We—if I understand—
Q Petition denied or petition granted ?
A No, no. We sent the applications, as I said, we sent 

them to the Pupil Placement Board as they were presented 
to me.

Q All right. Now, in your handling of this matter, did 
you work under explicit instructions from the Roanoke 
County Board, the Roanoke City School Board or did they 
allow you to use your own judgment ?

A That was an administrative matter and I handled it 
that way.

Q Did you keep them advised as you went along?
A Yes.
Q Did they tell you what to do? Did you have any



meetings where they told you what to do with handling 
these ?

A No, no. At the time I met with the Board, I said, I 
presented them to the Board and told them that I was going 
to send them on to the Pupil Placement Board.

Q Now, before you went down to the Pupil Placement 
Board to have this conference, did you make your local board 
members aware of the information that you had on these 
various pupils; discuss that ?

A We didn’t discuss it, the information that we had. I 
told them about the information that was called for and we 
were going down with the information that the Pupil Place­
ment Board asked us to bring. We had informal meetings 
of the Board at which time they were informed about that.

Q Did they give you any instructions or make any rec­
ommendations to you or what did you tell them what you 
were going to do?

A I just said I was going to, at the request of the Pupil 
Placement Board, to meet with them on the 15th of August, 
and I got no instructions from them as to what, how they 
would proceed or anything of the kind.

Q Did you tell your local board at this time what the 
situation was or anything about these various individual 
pupils or groups of pupils among this 39 ?

A We just talked in general about the applications we 
had, information that I was called to bring and that is what 
I was going to go down to talk with the Pupil Placement 
Board about. Since we had no responsibility for making 
any decisions, there was no need, as I saw it, to do anything 
about it here; I mean locally.

*  *  *

App. 5



App. 6

[ t r . p p . 67-80]
T he  Court : That is what they do.
Now I say if you have got any evidence that a guardian 

wants a transfer he hasn’t received, then you ought to bring 
that guardian in here and let him tell me. Because the 
Court is going to assume that is a fact until somebody tells 
me to the contrary. And I don’t need counsel on either side. 
The best evidence is the person himself. Now, you have 30 
of them here who are in that category. Their guardians have 
requested a transfer.

M r. N abrit : Your Honor, we are dealing with the moti­
vation and the feelings and speculating—the 4000 Negro 
children—and why they don’t do something. I cannot agree 
on any general reason why those people didn’t do something. 
And I am not trying to get you, too, sir.

T he  Court: Whether you want to agree to it or not 
doesn’t make the slighest difference to the Court. The facts—

M r. N a brit : Very well.
T h e  Court: The facts are these: That there is an estab­

lished procedure, which you concede on the face of it is con­
stitutional, whereby any student who doesn’t like, through 
his guardian, the assignment that is routinely made shall 
follow a certain procedure. And the procedure is to apply 
for a transfer. Now, until either this Court or some other 
Court says that basic procedure is wrong, that is, illegal, 
then the Court is duty bound to follow it. It cannot do 
otherwise.

Mr. N a brit : Well. I would say that I wouldn’t concede 
that the statute was constitutional when it is superimposed 
upon the fact that the Roanoke situation:—I say its consti­
tutional phase, I mean it is constitutional in that it is on the 
statute book without any reference to any specific situation.



A p p .7

That was the contention that I thought I made yesterday. 
That is what Your Honor was referring to.

T he  Court: You are not attacking the constitutionality 
of the Pupil Placement Act in this proceeding. If you are, 
you need a three-judge court, as far as I am concerned.

M r. N a brit : Yes, sir.
T he  Court : So we are accepting it as being a valid enact­

ment of law for this purpose.
M r. N abrit : That is correct, sir.
T he  Court: And that law, as I understand it, provides 

that the pupil shall be in the school where they are duly and 
ordinarily assigned except in those cases where the guardian 
or parent wants him transferred.

Now, if that is the law, then the burden is upon the appli­
cant to do two things: First, to make application for a trans­
fer. And, if that transfer is denied, on the ground of race, 
then this Court will upset it. If it is not denied on that 
ground, then, of course, this Court will not upset it.

Now, that is what we are trying to find out. The only one 
thing in this case is whether the 29 or 30, whatever the 
number is, whoever complied with the law and filed their 
applications, whether or not the denial of their requests was 
made on the discriminative basis, on the ground of color. 
If it were, the Court has no hesitancy—turn down every 
one of those assignments. Now, the burden is upon you to 
show that there was discrimination insofar as these trans­
fers are concerned. And the only reason, the only legal 
reason that they were not assigned to the school of their 
choice was because they are colored. Now, I have been 
waiting to hear evidence on that subject. That is the only 
thing, in substance, that I am going to consider in this case.



App. 8

M r. N abrit : Your Honor, I understand that to be a part 
o£ my burden. I maintain that there is another question.

T he  Court : What is that ?
Mr. N a brit : Your Honor, that would be the validity of 

using it to keep it that way—a segregated school. Now, 
when I say the Pupil Assignment Law is valid on its face, 
I did not mean it is valid when you use it to preserve segre­
gation.

T he  Court : Then you or somebody ought to file a proper 
suit and test the validity of that very assertion. Because 
the Court must start with some premise and the premise is 
that everybody is satisfied with his assignment except those 
who have made a request for a transfer and it has been 
denied. Now, I have to accept that premise. If you say that 
the premise is illegal or is a false premise or one that the 
Court ought not to accept, then, of course, that would be a 
question the Court would have to pass on in an appropriate 
proceeding, but this is not it.

Mr. N a brit : I don’t know. I say that it doesn’t matter 
for the purpose of the argument I am trying to make. 
Perhaps if I state my argument another way, it may be 
clearer. That the school authorities, all of them, whatever 
their respective duties under the situation are, they have 
the duty to initiate desegregation—U.S. Supreme Court. 
That they don’t accomplish that by using the Pupil Place­
ment Statute to keep a school segregated. They don’t ac­
complish that by continuing to make—they don’t live up to 
that duty by continuing to make initial assignments on the 
basis of race, by having feeder systems, by having all-Negro 
schools feed all-Negro schools, and things like that, by pre­
serving these various facets of the segregated situation— 
perpetuated.



App. 9

T h e  Court : I understand what you are talking about. 
I had it in Richmond and I had it in several other cases. 
If you want this Court to answer it, then you ought to file 
the appropriate proceeding before the Court—either use 
Roanoke or anybody else you want to and say that they are 
in violation of the decision laid down in the Brown Case in 
that the local School Board or local body is making no plans 
or preparation or isn’t doing anything to reassign the chil­
dren so that they be on an integrated basis. If you make that 
contention, the Court will have to pass on it in an appro­
priate suit. But I am not going to pass on it in this kind of 
suit.

M r. N abrit : Your Honor, I don’t want to. We will be 
happy to defer the question or whatever Your Honor wishes.

T he  Court : The Court in this specific case, the Court 
understands that case to be a case whereby the Court is called 
upon to determine the individual rights of the applicants 
who made application in due form for a transfer to a school 
other than that to which they were assigned. And, if the 
Court finds that that transfer was denied solely or basically, 
without using the word “solely”—too limited—basically on 
the ground of color, the Court has no hesitancy in saying 
and it will say that it is an improper assignment. Conversely, 
if the Court finds that there were basic, solid grounds for 
the assignment, refusal of the request, the Court will so 
indicate. And that is all that we are going to determine in 
this case.

In other words, I am not going to determine—
Mr. N abrit : D o you want me to respond to that, sir, or 

save it for later?
T he Court: Y ou may respond, if you want to. Unless 

you convince me I am wrong, that is all I am going to 
determine.



App. 10

Mr. N a brit : I would point out to the Court at this time 
that the Court of Appeals for this circuit has three cases 
involving pupil assignments—within the past year, Virginia 
pupil assignments: The Jones Case, decided in 1960, involv­
ing Alexandria; the Hill Case, involving Norfolk, and the 
Dodson Case, involving Charlottesville schools. In each of 
those cases—considered the type of presentation that you 
have discussed in terms of individual rights as well as con­
sidered the overall system of the school system to determine 
whether the school authorities have fulfilled their obligation 
—developed arrangements for the earliest, practical elimina­
tion of discrimination in the system. This is what the 
Brown Case, the second Brown Case required.

T he  Court: May I ask you this—that is correct; it did 
do that.

M r. N abrit : They even—
T he  Court : Wait a minute. It did do that a time when 

the local bodies, the local School Boards were attempting to 
fulfill the function of controlling the assignment of children 
from a local level. Subsequent thereto, the State has adopted 
a present pupil assignment plan which takes away from the 
locality any duty or any responsibility. You say that is not—

M r. N a brit : N o, sir. I would say that law which you 
have just mentioned that takes away the duty was in effect 
when all of these cases were considered at the trial level and 
at the appellate level. As I have tried to explain yesterday, 
the Norfolk case, Judge Hoffman disregarded the Pupil 
Placement record but in the Northern Virginia case, Judge 
Bryan disregarded Pupil Placement for another reason, 
which we urged here, which is the lack of adequate adminis­
trative remedy under Pupil Placement. But in both of those 
cases, the trial judges were sustained.



App. 11

T h e  Court : Judge Bryan did what you said he did. Why 
is the Pupil Placement Board in existence ?

M r. N abrit : In existence ?
T he  Court: Yes.
M r. N abrit : I think they have—
T he  Court: I understood you to tell me that Judge 

Bryan ruled the complexity or the cumbersomeness of the 
procedures followed by Pupil Placement Board were so 
ornate that nobody paid any attention to it. Now, if that is 
so—

M r. N abrit : I don’t know if Your Honor had an oppor­
tunity to look at the opinion I referred to. but I have it right 
here.

T he  Court: I will read that opinion very carefully and 
get the whole record and talk to Judge Bryan about it. He 
is the Chief Judge in my district. So I will understand 
exactly what Judge Bryan ruled before I decide on this case. 
But, if one moment you tell me that we don’t pay any atten­
tion to Pupil Placement Board because their procedure is too 
complex and, therefore, you do not have to comply with it, 
and if that is true, then I ought to determine that question. 
But we are wasting a lot of time in finding out what they 
did, what they don’t do. I cannot do both.

M r. N abrit : No, sir. I submit the two inquiries are not 
mutually inconsistent. The first inquiry, on a legal basis, 
is whether the State Pupil Placement Board has, under the 
statute, provided a reasonable administrative remedy; that 
is, a prerequisite to Plaintiff’s coming into court and asking 
for relief of any nature. The second question would be 
whether, in the circumstances shown of the actual practices 
and procedures used, the Pupil Placement Board is using 
some or any procedures which are constitutionally permissi­



App. 12

ble; and what Judge Bryan did hold that he invited them to 
come into the case, if they wanted to contest it and they 
never accepted the invitation. And when you read the Harm 
Case, you don’t see any discussion of this, because those 
rules of Judge Bryan were not entirely argued on the appeal 
by the State. They didn’t even appeal them. This opinion 
that I keep referring to is the opinion Judge Bryan wrote 
in the mandate, came back from the Harm Case, dated June 
3, 1959.

T he  Court: Well, if I should rule in this case that it 
wasn’t necessary to file an application with the Pupil Place­
ment Board, wouldn’t I have to rule that somebody else had 
to do it ? Somebody has got to assign these children.

M r. N abrit : That is correct, sir. Judge Bryan’s view 
was that perhaps you had to file a Pupil Placement form 
which we have done. We did it under protest. We filed the 
form. And we have been in the position of being ready to 
furnish any school authority any information he wanted, 
as far as his parents were concerned. Mr. Lawson wrote a 
letter and said, “We are going to cooperate. What do you 
want us to do ?” But we do insist that we are not required 
to conform to these various rules and regulations.

T he Court : Any rules applied by whom ?
Mr. N a brit : I don’t think the Pupil Placement Board 

applies any. It is the local authority.
T he Court: Y ou said you don’t have to—such as the 

60-day rule or such provision as this protest appeal. Those 
are the two principal things.

You say that you don’t have to do that. And, if you are 
right, then you must have to comply with the rules that some­
body makes. Now, whose rules are you going to comply 
with on the assignment? You have to comply with some­



App. 13

body. Certainly, the student couldn’t just go to any school 
he wanted to, white or colored; if you did that, you would 
have chaos.

M r. N a brit  : I never suggested  such.

T he  Court : You tell us what you have to comply with.
M r . N a brit  : Pertaining to what ?
T h e  Court : What ?
M r . N a brit  : P ertain ing  to request for transfer.

T h e  Court : Pertaining to your right to at least 29 chil­
dren who go to school that they wanted to go to. Now, what 
do you comply with ?

Mr. N a br it  : I will try to state it as best I can. I would 
say that these pupils have to abide and submit to all pro­
cedures. It may be measured by all qualifications and stand­
ards. It may be judged by all criteria. You will have to 
submit to any type of rules or regulations or procedures 
that applied to all students on initial assignment and all stu­
dents on transfers.

T h e  Court : By whom ?
M r. N a brit : By whomever established the particular 

rule in question.
T he  Court: Y ou certainly lost me. I understood you 

to say that you don’t have to comply with the Pupil Place­
ment Board’s procedure because—for various reasons. Now, 
if you don’t have to follow what they laid down, you either 
have to follow what the local school board lays down or 
what somebody lays down. There must be rules for the 
organization of anything, including a baseball game. You 
couldn’t even play baseball without rules.

M r. N a b r it : Certainly wouldn’t be any question. For



App. 14

example, these Plaintiffs are bound by that statute that they 
have to be six years old to go to school.

T he  Court : By what right do they claim they go to the 
school that they want to and w 1k > is the judge of whether 
they can or cannot go to the school ? I mean, I have before 
me the request of 30 pupils.

M r. N a brit : Twenty-eight.
T he  Court: —who want to go to a specific school. Now, 

the Roanoke City people say, “I didn’t send them to that 
school and I didn’t deny them the right for them to go to 
that school. I have no authority. I referred their applica­
tions to a State body.” The State body said they heard it. 
And 28 of those students—what they considered to be good, 
valid reasons, they were improper transfers. Aren’t we lim­
ited to the question of whether the reasons that they said 
were valid or whether they are false because, if they are false 
and if their only reason for not transferring these children 
was on account of race, I will certainly upset it.

M r. N abrit : Yes, sir, I understand that. But this doesn’t 
at all exclude the other question. That is, what are the gen­
eral assignment procedures used in the Roanoke system by 
either the local authorities and/or ratified by the Pupil Place­
ment Board by acquiescence, such as the feeder system or 
initiated by the Pupil Placement Board by themselves. What 
are the procedures which contribute ?

T he  Court: Didn’t the Defendants stipulate that the 
procedure being followed in the Roanoke schools, that is it ?

Mr. N a brit : Yes, sir.
T he  Court: That is the procedure that everybody is 

being assigned in Roanoke.
M r. N a brit : My only point before the Court is a ques­



App. 15

tion as to what relief it shall grant to insure the systematic 
elimination of these various facets of segregation that still 
exist, that are still applied by perpetuating segregation? 
That is it. And the Court can also determine on what basis 
they shall be eliminated as to the parties in time schedule, 
on the second Brown Case.

T he  Court : Are you not then attacking the procedure 
that is in effect in Roanoke as being unconstitutional or 
invalid.

M r. N abrit : I think that these Plaintiffs in the class they 
represent are being denied the rights under the equal protec­
tion clause by this present arrangement.

T he  Court : All right.
M r. N abrit : But this question of a three-judge court, 

that certainly doesn’t come in.
T he  Court: N ow, I want you to produce evidence— 

show me that the procedure they have used in this case, in 
the case of these petitioners, is in any degree different than 
the procedure they used for the transfer of all other students 
in Roanoke City, both white and colored. Now, if they have 
two standards, one for the colored and one for the white, 
then the 14th Amendment is violated. But I want you to 
produce evidence to show me that they have two systems.

M r. N abrit : The 4th Circuit proves something else and 
establishes the same point in the Jones Case. That is what 
the Court said. This is in 27B Fed. Section on page 77.

T h e  Court : I take it that you are not in a position in 
this case to prove that the procedure, whatever it is which 
we have agreed upon, is different in the case of white trans­
ferred students than it is in the case of colored. You are 
going to use another method ?



App. 16

M r. N a brit : What I am prepared to prove—that any 
white transferred students, they are certainly in a different 
position than the Negro-transferred students. I mean, we 
know for a fact that nobody here went through this. Cer­
tainly, it is clear in the deposition. And we haven’t heard it 
today. Nobody else went through this and subjected to this 
kind of screening or screening of this kind of personal pres­
entation to the State Pupil Placement Board, this kind of 
examination. So, we know that. But even if they were, I 
would still have this other information.

T he Court: I say, you show me the evidence. That is 
what I want to hear—they put the colored children in an 
entirely different type of test than they put the white children 
that the}' want to transfer.

M r. N abrit : They made a separate evaluation of these 
people and, therefore, used the results which they have for 
everybody in a different way.

T he  Court: Where is that evidence before the Court? 
That is what I would like to get.

M r. N abrit : I will try to produce that. At least I hope 
this discussion has clarified what I am trying to do.

T he  Court : You present this afternoon any and all evi­
dence, positive evidence that you have, as to any different 
procedure being used by the State Pupil Placement Board 
in passing upon the transfer of white or other children as 
distinguished from the specific procedure used in the trans­
fer of these children. And, if you show me a difference, I 
want to hear it by evidence and not by argument. And I 
want to know the reasons, either through your evidence or 
through somebody’s evidence, as to why these children were 
turned down, so that I can evaluate whether it was on the



App. 17

ground of race or not. That is all I want to hear and no 
more.

I will recess for lunch, until 2:15.
(Whereupon the luncheon recess was taken.)
(The hearing was resumed at 2:15 o’clock p.m., with the 

same appearances as at the morning session.)
^  5jC

Testimony of B. S. Hilton
DIRECT EXAMINATION

[TR. P. 105]
Q Now, since you have been executive secretary, did 

your Board ever take—-strike that.
M r. N a brit : Your Honor, I was about to ask a ques­

tion on the matter we have stipulated on, I believe. I don’t 
recall whether our stipulation with reference to the policy 
included about not having a desegregation plan, did that 
include both the Pupil Placement Board and the local board ? 
Does Counsel recall ?

T he  Court : I will ask him. He wants to know if you 
will stipulate that the State Pupil Placement Board does not 
have a fixed plan for desegregating?

Mr. P a r h a m  : The Commonwealth has a plan of not 
segregating on account of race, creed and color. I will 
stipulate that.

T he  Court: D o you stipulate that they have made no 
plans to desegregate all of the schools in the State of Vir­
ginia ?

M r. Scott: I will stipulate that the Pupil Placement 
Board has no plans other than the fact that they will not



App. 18

discriminate replacement transfers on the grounds of race, 
creed or color; no plan other than that.

T he  Court: What is the specific stipulation that you 
want to ask that they will make ?

M r. Scott : I will stipulate that, sir.
* * *

Testimony of Dr. James A. Baytoix
DIRECT EXAMINATION

[TR. PP. 124-129]
T he  Court: Let me ask you this question, and then I 

will let Mr. Nabrit continue. Could you take these children, 
who are designated on these sheets here, and given the time, 
could you give them tests from a scientific standpoint and, 
as a result of those tests, determine whether the findings on 
these sheets are correct or incorrect ?

T he  W it n e s s : Could I personally do that?
T he Court: Yes, sir, as a Ph. D. psychologist, can you?
T he WTtness : Yes, I personally could do that. But there 

are other clinical psychologists that could, too, plenty.
T he Court : And they could tell whether that is a correct 

finding or not; isn’t that right ?
T he  W it n e ss : Yes.
T pie Court : Now, if you had the burden of showing that 

this is an incorrect finding, wouldn’t the best way to do it 
be to take at least one or two of these statements and come 
up with some scientific finding so the Court would know 
which is the correct situation ?

T he  W it n e ss : Yes, sir. I don’t know—I would say this:



App. 19

If the Court is going to consider such a statement as this 
child’s behavior as not well adjusted, I would ask that it 
consider it on the basis of the competency of the person who 
made the statement.

T h e  Court: Now, I ask you if you had the burden of 
advising the Court if the information pertaining to this 
child, which we will call one, from top to bottom, was correct 
or incorrect, could you do it by professional, scientific exam­
ination of the child ?

T he  W it n e s s : It seems to me that the person making 
the claim has the burden on them to demonstrate this.

T he  Court: I am not asking you what the burden is. 
The physical examination or scientific examination would 
bring a better result than this would bring ?

T he  W it n e ss : Yes.
T h e  Court : Can you tell by examining these forms, all 

of them, whether or not any of this information is correct 
or incorrect?

T he  W it n e ss : No, sir. I cannot.
T he  Court : So it doesn’t make any difference how many 

you would examine, you couldn’t tell whether they are cor­
rect or incorrect?

T h e  W it n e ss : I have never seen these. I am going by 
the record.

T he  Court: Y ou don’t know if the record is correct on 
this child or not?

T he  W it n e ss : No, sir.
T he  Court : You have no reason to know that it is in­

correct ?
T h e  W itness : No, I have no reason to know it is incor­

rect. I raise the question about the competency of the person.



App. 20

By M r. N a brit :
Q Is it your statement that no trained person can tell 

from that information about the child, about whether it is 
correct or incorrect?

A I don’t know how a trained person can say this state­
ment is correct or not; just take this without seeing the child 
and say this is correct.

T he  Court : However, the people who made this not only 
have seen the child, they have been teaching him for a good 
many years. They may not be a psychologist, but they have 
been supervising the education of this particular child for 
X number of years. And, based upon their records contained 
over the years, they came up with certain factual informa­
tion which they say is correct. Now, I am asking you, can 
you take that same information and tell the Court whether 
it is not correct?

T he  W itness : Could I make an analogy on this ?
T he  Court: Yes.
T he W it n e ss : Let us say that the record here had 

health, sex and the teacher had written down here something 
like headaches and high blood pressure. That is a statement 
for me to make my point. Now, the statement of headaches 
tied in with blood pressure, that is the kind of diagnostic 
statement that only a licensed physician, it seems to me, 
would make; neither matter has a legal point, as made by a 
licensed physician.

T he  Court: Y ou don’t mean, Doctor, that an MD can 
tell me any better whether I have a headache than you can?

T he  W it n e ss : I am not—I will try to establish—
T he  Court: Well, a headache is subjective. It relies on 

what I can tell him.



App. 21

T he  W itness : Well, when it gets down to the cause of 
the headache—

T h e  Court: He doesn’t know if I have it unless I tell 
him, does he?

T he  Court: I am trying to establish professional com­
petency, sir.

By M r . N a brit :
Q Can you explain further what you were trying to say 

about high blood pressure ? That was the clinical term that 
you were addressing yourself to.

A I was trying to establish that this might be in the 
record. But if this becomes a matter of legalism, whether 
or not this person has this condition, it would be certainly 
established by competent medical authority. The medical 
authority might so that the teacher was right. But to make 
an action to that individual, taking a health statement that 
wasn’t established by a medically competent person, I don’t 
see how they can do that.

T h e  Court: You don’t mean the health record in the 
school, that is compiled by the school officials, including 
dental condition and so forth. I mean, they keep regular 
records and they are not done by a doctor. Everybody is not 
a doctor in the school. You don’t tell me they have no value?

T he W it n e s s : I don’t say they have no value, but I am 
raising this point. Suppose by some stretch of the imagina­
tion a legal matter developed because of this medical diffi­
culty. I am trying to say that I believe that at that level 
whether or not in fact this medical difficulty, which is cited 
on the record, exists would have to be done by a medically 
competent professional. That is the only issue I am trying 
to bring.



App. 22

T he  Court: If you have a burden to show that it was 
incorrect, then you would want to get that professional 
advice ?

T he  W it n e s s : Yes, sir.
T he  Court : I would like to hear the professional advice 

myself. That is what I am here to listen to, any advice, 
professional or otherwise, to show me that these evaluations 
are wrong. That is what I want to hear.

M r. N a rb it : Your Honor, I don’t presume to object to 
the Court’s questions, but did I understand the Court to 
state, the Court’s view, that Plaintiff has the burden of 
establishing the mental health of these Plaintiffs ?

T he  Court: No. I said the Court is of the opinion that 
the Plaintiff has the burden of showing that these transfers 
were withheld on the ground of race. The burden is on you 
in this case.

M r. N abrit : It would certainly seem— perhaps I should 
continue with the evidence and argue later.

*  =1= *

Testimony of Dorothy L. Gibney
DIRECT EXAMINATION

[TR. PP. 191-192]
T he Court: The Court deems it necessary in determi­

nation of this case, of course, it will have to go through each 
one of these itself. Of course, I think, Mr. Nabrit, it would 
be more informative to ask these questions of the Pupil 
Placement Board rather than this witness. This witness 
merely says this is factual information she gave to the Board. 
Now, the Board reached the conclusion and if you give them 
this material it would be more informative to the Court to



App. 23

ask the Board. I mean these specific questions as to why they 
did or did not do something instead of asking this witness 
because she didn’t do anything other than furnish statistical 
information. She said she made no recommendation.

M r. Na brit : Yes, sir.
T h e  Court : So, it would be more helpful to the Court 

if you want to put it in, specifically if you want to find out 
specific reasons why a child, for example, was denied admis­
sion, that you adduce that information from the ones whose 
responsibility it was to assign her.

M r. Nabrit : Let me question this witness about this 
pupil number 9 before I release her, Your Honor. I think 
this is a factual situation we have here.

T he  Court: I don’t want to cut you off. Everything 
that is on here in substance was available to the Pupil Place­
ment Board. And this information plus what else they had 
was the basis of their judgment. So, they are the ones to 
ask and question, question the validity of their judgment, 
not this witness. Frankly, if she had the responsibility of 
assigning on this factual information she may or may not 
have come up with a different conclusion than the Pupil 
Placement Board did. But, so what if she did? Theirs was 
the ones that counts.

Mr. N a brit : I am trying to get an interpretation of 
Court Exhibit No. 1.

T he  Court: You may ask her. Go ahead.

By Mr. N abrit :
Q Referring to pupil number 14 and 20, I believe—
A May I see their names ? Numbers are so blurred here.

*  *  *



App. 24

Testimony of Ernest J. Oglesby
CROSS-EXAMINATION

[t r . p p . 227-230]
Q Can you give me an illustration of each. Before— 

how many of those have you had?
A I am not sure, sir. We have had several involving 

whites. But, may I give you the illustration that I remember 
best, which was the case of the 39 white people in Waynes­
boro who protested the action of our Board in giving them 
the school that they had been assigned to by the local 
Waynesboro people?

M r. N a brit : Your Honor, the objection—testimony 
along that line is totally irrelevant and immaterial and no 
bearing on the case.

T h e  Court : Objection overruled.
T he  W it n e ss : A group of citizens from Waynesboro 

came to our Board and protested and they were within the 
limit of their IS days and made a formal protest. We ad­
vertised as quickly as we could, following the law as to the 
minimum amount of time that we had to allow between the 
protest—
By M r. Scott :

Q What was the result of that ?
A The result in this case was that we went to Waynes­

boro and had an all-day meeting and granted the petitions 
of these 39 people.

Q In other words, you reversed ?
A We reversed ourselves.
Q And the other case, what was the history of that, or 

do you recall ?
A The case in Richmond was one where we had made



App.25

a decision based entirely upon distance. The protesting par­
ents came before us and asked us why we had made the 
decision we had. And we told them it was made purely on 
distance. And they put in evidence which indicated that we 
had been wrong in our decision with respect to distance. We 
had conflicting evidence. So, we arranged to have a surveyor 
measure the actual distance so we would know. We found 
out that the parents were wrong; that the evidence we had 
gone before us was correct and we did not reverse our deci­
sion based upon the surveyor’s evidence. May I give you 
the time element on that ?

A Wait a second. What is your policy with regard to 
hearing protests as to whether they are in Richmond or in 
the community of the protestants ?

M r. N abrit : Your Honor, may we have an understand­
ing that I continue my objection through this entire line of 
questioning ?

T h e  Court : Yes. You are making an objection and it is 
overruled. Objection is overruled. Go ahead.
By M r. S cott :

0  Do you understand the question ?
A I think I do, sir. It has been our policy and it is our 

present intention to go to the community where the protest 
is made if the number is sufficient to justify that, to have the 
hearing there because we feel we can find out more right on 
the ground where the situation takes place than we can in 
Richmond, and also it would be much simplier for this Board 
to make that trip than have the parents and children involved. 
One of the principal reasons we hope in the future to go to 
the home of the parents because we feel that we are going to 
be able to get an awfully lot more information when we 
actually have the parent and children involved in before 
the Board for them to tell us the story than for us to have



App. 26

it decided on technical and the evidence that we get from the 
lawyers involved in it. We would like to know as much as 
we can.

Q In these protests that you have heard, has a court 
reporter been there, taking down everything?

A Yes, sir.
Q What has been the time element, your best recollec­

tion, consumed in these protests that you have had ?
A The very minimum that the law allowed us to per­

form, there are certain restrictions how long we have got 
to advertise and how long we have to wait. We did it as 
quickly as possible, though by law we have—allowed 30 days 
from our decision. We made the decision in Waynesboro in 
four days and we made the decision in Richmond in 15 days. 
The 15 days—we took about all of that time to get the survey 
figures in and call them in.

Q So, in those cases from the time the protest was filed 
until your findings in the individual cases and your conclu­
sions of fact were filed, roughly speaking, how long did it 
take?

A Less than three weeks, I think. It would be a little 
more in the Richmond case because we had to allow certain 
time for the figures in that case. About 15 between the 
protest filed and the time we had the hearing, 15 days for 
the Board to make a decision.

Q In general, what, in individual cases, is your policy so 
far as pupils are concerned and insofar as over-all education 
is concerned ?

M r. N abrit : Now, I couldn’t hear.
Q What is your policy, over-all, in connection with pu­

pils and over-all—education ?



App. 27

A We believe we exist for the purpose of doing the best 
we can for the over-all education of the people of Virginia as 
well as for the protection of the civil rights and so on of 
those children involved in the protest.

*  *

Testimony of B. S. Hilton (Recalled)
REDIRECT EXAMINATION

[tr. p p . 285-288]
Q Have you on the administrative side of the staff ever 

made any routine inquiries as to the local practices on such 
things as overlapping school zones, feeder systems ?

T he  Court: I am only going to sustain the objection 
because the Board itself said it did not and it wasn t inter­
ested in the local school setup. And what he did administra­
tively is immaterial. The Board’s policy is what governs 
and they are bound by their own policy. And they say that 
they do not have that information and did not seek it. What 
difference does it make ?

M r. N abrit : I withdraw that question, sir.
*  *

M r. N abrit : I have no further questions, Your Honor.
M r. Scott : I have none.
M r. P arham : No questions.
Mr. M cI l w a in e : No questions.
T he  Court : Step down.
(The witness withdrew from the witness stand.)
T h e  Court : Call your next witness.
M r. N abrit : Miss Gibney, please.



App. 28

Testimony of Dorothy L. Gibney (Recalled)
REDIRECT EXAMINATION

By M r. N abrit :
Q Miss Gibney, this piece of—this large piece of graph 

paper with the information on it and the—part of Court 
Exhibit 2, can you tell me who prepared this ?

A Yes. This is Mr. A. B. Camper’s handwriting.
Q And do you recall that this was exhibited to the Place­

ment Board at that meeting or what—
T he Court : The Court already—it was there available 

for them. It was before the Pupil Placement Board.
M r. Na br it : I am trying to find out whether it was in 

the room. I acknowledge previous testimony it was in the 
room. I—

T he Court : The Court understands that all of this in­
formation was not only in the room but it was examined or 
that portion thereof that they wanted to examine and it 
was all available for their use. They asked for it and that 
is what they got.
By M r. N abrit :

Q Is that your understanding ?
T he Court : Regardless of whether it is her understand­

ing, it is the Court’s understanding. Objection sustained. 
Maybe you don’t want to accept it as a fact.
By Mr. N abrit :

Q Miss Gibney, were the accumulative folders of the 
students exhibited to the Placement Board. Is that your 
same ruling?

T he Court : I don’t understand you. It is perfectly clear 
the Court has accepted in evidence that information that it



App.29

obtained under Court Exhibit No. 2 as being all statistical 
data furnished by the school board of Roanoke at the request 
of the State Pupil Placement Board and it was all before 
them and was used by them along with other information 
that they got orally in reaching the conclusions that they 
reached in these individual cases. I don’t know how you can 
establish that fact any better. Because, regardless of what 
this witness says, that is a fact.
By M r. N abrit :

O Was this information before the Pupil Placement 
Board for any longer—

T he  Court: Objection sustained. Next question.
M r. N a brit : No further questions.
T he  Court : Step down.
(The witness withdrew from the witness stand.)
T h e  Court : Call your next witness.
M r. N abrit : May it please the Court, we have no further 

witnesses to present. We have agreed to stipulations of Mr. 
Parham which I wrote out in my handwriting.

M r. P arham : I will be delighted if you will read it. It is 
your handwriting.

T he  Court : Read the stipulations.
M r. N abrit : First stipulation was that the current school 

year ends June 9, 1961.
Second stipulation was that none of the infants’ parents 

or guardians filed protests with the Pupil Placement Board 
after the August 15th, 1960, decision.

T he  Court : So stipulated by all parties to this suit. And, 
if there is no objection, the stipulations shall be made a part 
of the record.

*  *  *



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